Investigations Practice Background 2
Energy Investigations
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Crowell & Moring’s multi-service Energy Group offers a complete range of services to clients involved in the regulatory, policy, and legal requirements affecting the energy industry throughout the U.S., and we have significant experience representing energy companies and their executives in internal and agency investigations, as well as in civil and criminal enforcement matters. Our practice has extensive capabilities and experience, particularly with respect to federal and state electric and gas regulation, infrastructure project development, financing and acquisition transactions, litigation, compliance, and enforcement matters.

We have represented clients in public and non-public investigations and other inquiries conducted by the U.S. Federal Energy Regulatory Commission, Commodity Futures Trading Commission, Securities and Exchange Commission, Department of Justice, and other federal and state prosecutorial and regulatory authorities. Many of these investigations were closed with no further action taken or pursuant to advantageous settlements. When necessary, our effective litigators can help clients protect their interests in court or in arbitration.

Crowell & Moring has assisted numerous clients in conducting internal compliance audits and investigations in connection with energy sales and procurements, trading, bidding and scheduling, plant operations, natural gas buy-sell arrangements, "shipper must have title" and "anti-flipping" issues, price reporting practices, and other obligations imposed on market participants in tariffs, market rules, orders, and regulations. When conducting sensitive internal investigations, we know that the client must fully understand the pertinent facts; to that end, we provide clear guidance as to the applicable laws and rules, and as to whether and how to self-report potential violations to FERC, market monitors, or other applicable authorities.

Services

Members of our energy team advise in-house compliance and legal departments on self-reporting considerations and in conducting internal investigations. To help uncover the facts, take effective remedial action, and present a complete, persuasive argument to agency officials, we regularly:

  • Interview trading and operations personnel
  • Prepare and defend depositions
  • Collect, assess, and produce data, including high-volume discovery
  • Prepare narrative responses to information requests
  • Meet with enforcement staff and other government investigators
  • Negotiate and draft settlement agreements
  • Recommend and implement compliance programs and other corrective measures, including adoption of new compliance programs

Experience

Our team is recognized for providing high-quality legal advice and services to our energy industry clients. Chambers USA has consistently ranked our lawyers as leaders in their field. In addition, lawyers in the Energy Practice have been consistently recognized by Chambers Global, Legal 500, and The Best Lawyers in America. BTI Power Rankings 2016 ranked Crowell & Moring among the top 17 firms that general counsel go to for energy work.

Representative Engagements

  • Representing a major energy company in a confidential DOJ investigation into alleged public corruption. Our lawyers are advising a major energy company in connection with a public corruption investigation being conducted out of the Southern District of New York. The investigation is focused on potential allegations of bribery of a high-ranking state public official in conjunction with the development of a power plant.
  • Represented a power company regarding alleged Federal Power Act (FPA) violations. We counseled Maxim Power Corp. in a FERC Office of Enforcement investigation in connection with the company’s power generation subsidiaries’ participation in New England electricity markets and alleged violations of the Federal Power Act’s (FPA) anti-manipulation rule. Maxim Power Corp., FERC Docket No. IN15-4-000.
  • Represented multiple clients in non-public FERC Office of Enforcement investigations into alleged market manipulation.
  • Represented clients in Federal Power Act compliance investigations. We have assisted clients in conducting internal FPA compliance investigations after discovery of failures to make required filings, and prepared self-reports to the FERC Office of Enforcement. In a significant number of these cases, the matters were closed without further action.
  • Provided comprehensive counsel relating to alleged North American Electric Reliability Corporation (NERC) violations. We represented clients in connection with violations of NERC electric reliability standards, including (i) advising on steps to take if possible violations are identified; (ii) designing or advising on the scope of internal investigations sufficient to determine whether violations occurred; (iii) advising on whether and when to self-report potential violations to NERC; (iv) preparing root-cause analyses (including use of the “5-Why” methodology of root-cause analysis) and mitigation plans; (v) responding to inquiries from and negotiating settlements with NERC’s regional entities’ enforcement staff in connection with alleged violations, self-reports, and mitigation plans which, in each case, resulted in a substantial reduction in the penalties that the regional entities had originally intended to impose.
  • Counseled NRG Energy, Inc., in a regulatory investigation. We advised our client in connection with investigation of allegations of intentional failure of a generating unit to respond to dispatch instructions. The inquiry culminated in an extremely favorable disposition for our client. NRG Energy, Inc., 118 FERC ¶ 61,025 (2007).
  • Advised on investigations of supplemental energy bidding practices. We represented several clients in a market-wide FERC Office of Enforcement investigation of supplemental energy bidding practices in the California independent system operator (ISO) market, resulting in no action.
  • Provided counsel in connection with investigations of prescheduling practices. We represented several clients in market-wide investigations conducted by the market monitor and FERC Office of Enforcement into prescheduling practices in the California ISO market, resulting in no action.
  • Conducted internal investigations of natural gas buy-sell arrangements. We represented several clients in conducting internal investigations of compliance with FERC’s rules prohibiting buy-sell arrangements for natural gas, resulting in a self-report to and favorable settlement with FERC’s Office of Enforcement.
  • Advised on natural gas sales that occurred during a bitter winter. We counseled clients that were required to respond to inquiries from FERC, ISO New England, and the Connecticut attorney general regarding sales of natural gas by electricity generators during the January 2004 cold snap and price spike in New England.
  • Represented a utility involved in an investigation regarding congestion charges. We advised Competitive Power Ventures in connection with a Connecticut Department of Public Utility Control proceeding on the investigation of measures to reduce federally mandated congestion charges. Investigation of Measures to Reduce Federally Mandated Congestion Charges, Docket No. 5-7-14PH2.
  • Represented a major utility in issues arising out of the California energy crisis. We represented Duke Energy in multiple proceedings that arose out of the California electricity crisis of 2000-2001 and the concurrent Enron disclosures regarding market manipulation. We achieved client-favorable settlements of all FERC-related matters and successful resolution of other governmental investigations. Matters that were resolved favorably included multibillion-dollar FERC refund proceedings, FERC investigations and show-cause proceedings relating to allegations of improper trading practices, wash trades, and improper index price reporting, SEC and CFTC investigations growing out of trading and price reporting practices, other investigations conducted by the DOJ and state attorneys general, and multiple class action lawsuits.