25 November 2015

Energy Enforcement Update

Recent developments:

  • Judge in FERC v. Powhatan/Chen case issues order setting prehearing conference.
  • FERC files Opposition to Barclays motion for discovery.
  • Shareholder files derivative complaint against J.P. Morgan for breaches of fiduciary duty related to FERC settlement.

Judge in FERC v. Powhatan/Chen case issues order setting prehearing conference.  Today, in the FERC v. Powhatan/Chen case, presiding judge M. Hannah Lauck issued an Order Setting Pretrial Conference.  The pretrial conference will be January 7, 2016 at 2:00 PM in Richmond.

Most of the order is standard form for this judge, including the statement that “the case will be set for trial” at the conference.  Of note, however, Judge Lauck orders the parties to file a memorandum on the de novo review procedure.  Not later than close of business seven days before the pretrial conference, all parties shall file memoranda detailing the respective party’s position regarding what de novo review means in this FERC manipulation case.  Judge Lauck  orders the parties, to the extent they disagree as to the applicable procedure, to meet and confer prior to the January 7 pretrial conference.  She also mandates that counsel shall come prepared with a joint statement as to disagreements that continue to exist as of the January 7, 2016 date, if any.

Powhatan Order Setting Pretrial Conference

FERC files Opposition to Barclays motion for discovery.  Today, FERC filed its Opposition to Barclays’ motion for discovery in the Eastern District of California.  According to FERC, Barclays does not need discovery in order to oppose FERC’s motion to affirm the assessed penalties.  FERC argues that Barclays should not be permitted to engage in discovery unless the court determines that the record should be supplemented.  FERC also argues that Barclays’ discovery  requests are not limited, targeted, or essential.

FERC states: “The issue presented by the Commission’s motion will be whether the Court should affirm, vacate or modify the penalty assessment.  In moving the Court to affirm the assessment, the Commission will ask the Court to review de novo the facts and legal arguments the parties presented to the Commission.  In opposing the Commission’s motion and in challenging the Commission’s penalty assessment, Defendants should, in the first instance, likewise be limited to those facts and arguments before the Commission in assessing the penalties.”

FERC Opposition to Barclays Motion for Discovery

Shareholder files derivative complaint against J.P. Morgan for breaches of fiduciary duty related to FERC settlement.  On November 20, a shareholder filed a complaint against 18 of J.P. Morgan’s current and former executives in California state court, claiming that the executives breached their fiduciary duty by allowing schemes that gamed the wholesale energy markets in California and the Midwest that cost the bank more than $410 million.  The complaint alleges that J.P. Morgan, through its subsidiary J.P. Morgan Ventures Energy Corp., improperly took advantage of market rules governing the compensation of energy suppliers in wholesale energy markets in California and the Midwest, which led to a $285 million civil penalty and disgorgement of $125 million in unjust profits as part of a July 2013 settlement with FERC.  According to the complaint, the named executives were in positions of power and could have prevented the wrongful acts.  The complaint requests damages arising out of the alleged breaches of fiduciary duties, including but not limited to, the $410 million FERC settlement.

JPM Shareholder Derivative Complaint

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