Energy Enforcement Update

On May 10, 2016, the Commodity Futures Trading Commission (CFTC) issued a press release announcing proposed amendments (the Proposed Amendments) to an order issued in 2013 (the RTO-ISO Order) relating to certain electric energy-related products. If adopted, the amendments would allow private litigants to sue certain Regional Transmission Organizations (RTOs), Independent System Operators (ISOs) and market participants for certain violations of the Commodity Exchange Act (CEA) and CFTC regulations (the CFTC Rules) relating to such products, including for alleged fraud or market manipulation. The Proposed Amendments would effectively reverse the holding in a recent Fifth Circuit case, Aspire Commodities v. GDF Suez Energy North America,  in which the court held that private rights of action for violation of the CEA and CFTC Rules were foreclosed pursuant to the RTO-ISO Order. The Proposed Amendments were approved by the Commissioners by a two over one vote with a dissent from Commissioner J. Christopher Giancarlo.

The CFTC’s proposal to amend the RTO-ISO order was published in the Federal Register as of May 16, 2016. The Proposed Amendments will be open for public comment until June 15, 2016.

Please see the full update here.

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