On November 17, FERC’s Office of Enforcement released its 2016 Report on Enforcement. The Report shows continued focus on fraud and market manipulation, serious violations of mandatory Reliability Standards, anticompetitive conduct and conduct that threatens the transparency of regulated markets.
On October 24, FERC and ETRACOM filed a joint status report in the U.S. District Court for the Eastern District of California. FERC argues that the court need not address discovery at this time because the proper and best mechanism for resolving this case is a motion to affirm designed to allow the court to review the administrative record supporting the FERC’s Order Assessing Penalties. According to FERC, this approach is similar to the procedures adopted by Judge Nunley in the Barclays case before the same court. On the other hand, ETRACOM argues that the “de novo” review proceeding is governed by the Federal Rules of Civil Procedure, so it is entitled to discovery and a trial as judges have ruled in FERC’s enforcement cases against Maxim Power and City Power. ETRACOM attached as an exhibit its first request to FERC for production of documents, which it served to FERC on October 7.
On October 25, the DC Circuit ruled that it lacked jurisdiction to take up a lawsuit brought against FERC for inaction on ISO-NE’s controversial capacity auction conducted in 2014. Public Citizen and Connecticut sued FERC after FERC deadlocked 2-2 on a vote over whether it should block or investigate the results of the ISO-NE annual forward capacity auction (FCA 8). The tie vote at FERC, with one Commissioner vacancy at the time, allowed the auction results to stand. In reviewing FERC’s inaction, the DC Circuit held, “In sum, we hold FERC’s deadlock does not constitute agency action, and the Notices describing the effects of the deadlock are not reviewable orders under the FPA.” The DC Circuit’s opinion suggests that the challengers should take their complaints to Congress: “Any unfairness associated with this outcome inheres in the very text of the FPA. Accordingly, it lies with Congress, not this Court, to provide the remedy.”
On October 25, TOTAL filed its opening brief in the Fifth Circuit in its declaratory judgment action against FERC. As it argued before the district court, TOTAL argues that FERC must go to federal court to prove its allegations of market manipulation under the Natural Gas Act (NGA). TOTAL claims that FERC cannot force respondents in such cases to defend themselves in an in-house agency proceeding before a FERC administrative law judge, subject only to deferential review in a federal appellate court. According to TOTAL, Section 24 of the NGA declares that federal district courts have “exclusive jurisdiction of violations” of the NGA and of “all” suits and actions to “enforce any liability or duty created by” the NGA.
On October 27, the CFTC filed an opposition to defendants DRW Investments, LLC and Donald R. Wilson’s motion for reconsideration of the September 30 decision denying summary judgment in the U.S. District Court for the Southern District of New York. In its opposition, the CFTC argues that the defendants’ motion does not meet the high standard for reconsideration. According to the CFTC, the defendants do not identify any new law or new evidence in support of their motion, nor do they identify any decisions or matters that the court actually overlooked. Therefore, the CFTC requests that the court reject the defendants’ attempt to repeat the same arguments they made in their summary judgment briefings (i.e., that the alleged bidding strategy based on the defendants own subjective estimate of fair value is per se legitimate and thus insulates them from liability for manipulation as a matter of law).
On October 26, FERC filed an opposition to City Power’s motion for discovery under Rule 56(d) of the Federal Rules of Civil Procedure in the U.S. District Court for the District of Columbia. According to FERC, City Power has failed to provide any persuasive reason for needing discovery. In particular, FERC claims that City Power does not need discovery about the legitimate purposes of virtual trading in PJM, evidence of intent, or City Power’s allegedly untruthful statements about instant messages. According to FERC, City Power already has much of the requested information. Thus, FERC requests that the court deny City Power’s motion for discovery and grant FERC’s motion for summary judgment.
At Platts Nodal Trader on Thursday, October 27, Director Collins gave a presentation about how FERC Enforcement’s Division of Analytics and Surveillance monitors markets. Collins described his staff and explained how they screen trade data. As the accompanying presentation shows, FERC uses masked and unmasked data, as well as the larger trader position reports now shared by CFTC to screen for concerns warranting further inquiry. Collins observed that persistence – the repeated occurrence of trader activities, especially seemingly uneconomic activity – is a key issue for his team of analysts. When their screens are tripped, Collins explained, they use a peer based evaluation decision process on whether to advance their surveillance through direct inquiry to the company or trader responsible for the suspicious trading. After that, DAS management decides whether to refer the matter to Enforcement Division of Investigation (i.e., the prosecutors). On compliance, Collins shared that if DAS can discern patterns or conduct in the data, then company compliance programs surely should as well. Despite a flurry of probing questions, Collins would not detail what they screen for beyond uneconomic and persistent activity. It was clear, however, that DAS is actively monitoring the markets and provides a strong prong for the triad defending against market manipulation (RTOs and their market monitors, whistleblowers, and FERC DAS).
Updates on Cases to Watch:
- ETRACOM files answer to FERC complaint and response on FERC lodging of administrative record.
- DRW and Wilson file motion for reconsideration of order denying summary judgment.
- City Power files motion for discovery in district court proceeding.
- Fifth Circuit denies TOTAL motion to expedite its appeal.
On October 18, the CFTC approved a final order in response to a petition from Southwest Power Pool, Inc. (SPP) for exemption of certain transactions in the SPP market. The CFTC’s final order exempts certain specified transactions within SPP from the Commodity Exchange Act (CEA) and CFTC regulations, with the exception of the CFTC’s general anti-fraud and anti-manipulation authority, and scienter-based prohibitions. In addition, the final order expressly exempts such transactions from private actions under CEA section 22. Other than the express addition of the exemption from private actions, the final order for SPP is similar to the CFTC’s March 28, 2013 final order that exempted specified transactions of six other RTOs/ISOs from certain provisions of the CEA and CFTC regulations. In addition, the CFTC issued an amendment to the 2013 final order related to the other RTOs/ISOs. The amendment explicitly provides that the transactions covered under the 2013 order are exempt from private actions under CEA section 22.
On October 19, Igor Oystacher and his firm, 3Red Trading, announced in court that they had reached an agreement in principle with the CFTC that settles a spoofing lawsuit ahead of trial scheduled for January in the U.S. District Court for the Northern District of Illinois. Oystacher and 3Red Trading faced allegations that they placed fake orders on several futures markets in order to make money based on resulting price fluctuations. The CFTC sued Oystacher in October 2015, alleging that he placed false buy and sell orders on six contract markets (including copper, crude oil and natural gas) between 2011 and 2014. According to the CFTC, Oystacher never intended to fill those orders, but instead used these “spoof” orders to take advantage of the resulting misperceptions about market demand. Lawyers for the parties told the court that minor details of the agreement still needed to be finalized, but those details likely would not hold up the settlement.
Notably, Judge St. Eve recently rejected Oystacher’s viewpoint that the statute didn’t give traders fair notice of potential misconduct. In denying his motion to dismiss, Judge St. Eve said that economic laws and regulations have a much less stringent vagueness standard than other laws because those participating in the markets are much more likely to consult the law.