by Dan Watkiss
In a July 16 order, the Federal Energy Regulatory Commission (FERC) assessed civil penalties of $453 million against a British banking conglomerate (BCL) and four of its power traders for manipulating western electricity markets from from November 2006 to December 2008 in violation of the Federal Power Act (FPA) and Commission regulation 1c.2. The bank has 30 days to pay its $435 million penalty and disgorge $34.9 million in profits plus interest from its manipulative trades; likewise, the traders have 30 days to pay penalties ranging from $1 million to $15 million each. The bank announced that it will not pay and instead will contest the finding of market manipulation in federal court. The penalties are among the highest FERC has ever assessed under the authority Congress conferred on it in 2005 to police market manipulation.
FERC’s Office of Enforcement launched its investigation of BCL in July 2007, culminating in an October 2012 FERC order directing the bank and its traders to show cause why they should not be found guilty of market manipulation and assessed penalties. Following the investigation, FERC concluded that the bank and traders traded fixed price products not to profit from the relationship between the market fundamentals of supply and demand, but rather to move the daily Index Price in favor of BCL’s long or short financial swap positions at the four most liquid western trading locations: Mid-Columbia, Palo Verde, North Path 15 and South Path 15. According to FERC’s July 16 order, Enforcement Staff’s investigation unearthed a trove of communications among the BCL’s traders describing the allegedly manipulative scheme and affirming their intent to effectuate it, including so-called “speaking” documents in which traders describe their efforts “to drive price,” “move” the Index and “protect” their swap positions.
As amended to include an anti-manipulation rule modeled on the Securities and Exchange Commission’s Rule 10b-5, the Federal Power Act and FERC’s implementing regulations prohibit an entity from: (1) using a fraudulent device, scheme or artifice to defraud or to engage in a course of business that operates as a fraud or deceit; (2) with the requisite intent; (3) in connection with the purchase, sale or transmission of electric energy subject to the jurisdiction of the Commission. The Act also empowers FERC to assess a civil penalty of up to $1 million per day, per violation against any person who violates Part II of the FPA (including section 222 of the FPA) or any rule or order thereunder. As it has in other prosecutions for market manipulation, FERC rejected BCL’s defense that “open market” trading is per se not manipulative.
The July 16 order is noteworthy not only for the amount of penalties FERC assessed, but also for the procedural history of the BCL investigation. The bank and traders chose to forego their right to an evidentiary hearing before a FERC judge and instead had the Office of Enforcement’s proposed findings of manipulation submitted directly to the Commission for its determination. The bank’s and traders’ claims that the statute of limitations had run or that Enforcement Staff was equitably estopped from making its allegations were not successful in convincing the government to drop the charges against them.
FERC must now seek to enforce its decision and collect the penalties and disgorgement in federal court.