Discussion of Brian Hunter: FERC's First Market Manipulation Decision

Transcription

1 Discussion of Brian Hunter: FERC's First Market Manipulation Decision PRESENTED BY Lisanne Crowley Dan Larcamp Mark Nagle

2 EPAct Statutory Provisions The Energy Policy Act of 2005 (EPAct 2005) amended the Natural Gas Act (NGA) and the Federal Power Act (FPA) and provided enhanced enforcement authority to the Federal Energy Regulatory Commission EPAct 2005 amended the NGA to provide enhanced civil penalty authority up to $1 million per day per violation and a prohibition on market manipulation

3 NGA Revised Section 4A- Prohibition on Market Manipulation It shall be unlawful for any entity, directly or indirectly, to use or employ, in connection with the purchase or sale of natural gas or the purchase or sale of transportation services subject to the jurisdiction of the Commission, any manipulative or deceptive device or contrivance (as those terms are used in section 10(b) of the Securities Exchange Act of 1934 (15 U.S.C. 78j(b))) in contravention of such rules and regulations as the Commission may prescribe as necessary in the public interest or for the protection of natural gas ratepayers. Nothing in this section shall be construed to create a private right of action.

4 FERC s Anti-Manipulation Rule In Order No. 670, Prohibition of Energy Market Manipulation, the Commission amended its regulations to implement new section 4A under the NGA and new section 222 of the FPA The Commission s regulations at 18 C.F.R. 1c.1 state: Prohibition of natural gas market manipulation (a) It shall be unlawful for any entity, directly or indirectly, in connection with the purchase or sale of natural gas or the purchase or sale of transportation services subject to the jurisdiction of the Commission, (1) To use or employ any device, scheme, or artifice to defraud; (2) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or (3) To engage in any act, practice, or course of business that operates or would operate as a fraud or deceit upon any entity.

5 Brief Procedural History of Brian Hunter April FERC OE Division of Energy Market Oversight (DEMO) noticed anomalous trading activity on the NYMEX May NG Futures Contract June OE opens non-public, preliminary investigation July FERC issues Show Cause order against Amaranth (eight entities), and two individuals, Hunter (lead trader) and Matthew Donohoe (trader) July FERC sets the matter for hearing December OE settlement with Amaranth, Hunter and Donohoe filed; February FERC rejects the settlement July Second OE settlement, with Amaranth and Donohoe filed - $7.5m penalty; August FERC accepts this settlement Hearing commenced August 2009 and concluded September 2009 January ALJ Cintron finds that Hunter's conduct was market manipulation

6 Principal Findings Judge Cintron s Initial Decision Overall, Hunter s conduct was fraudulent, with the requisite scienter, and with reckless disregard to jurisdictional transactions The elements of the market manipulation claim were satisfied Hunter had the incentive to lower the price of the natural gas futures contracts in question to benefit his positions in other trading platforms and his trading was fraudulent or deceptive Hunter intentionally manipulated the settlement price of the natural gas futures contracts at issue The evidence in this case shows that the NYMEX futures settlement price has significant impact on physical gas transactions. Accordingly, Hunter s conduct on the trading days at issue in this case was in connection with natural gas transactions subject to FERC s jurisdiction

7 Principal Findings Judge Cintron s Initial Decision continued Judge Cintron noted that FERC reserved penalty imposition, but gave the following factor analysis: Hunter s actions were serious, willful, and harmful, and he held an executive level position Hunter recklessly disregarded the impact of his manipulation on jurisdictional transactions and knew his activity was not in compliance with Amaranth manuals and instructions Hunter was not forthright with the tribunal, his explanations were not credible Hunter was uncooperative, failed to appear at a deposition, and refused to give sworn testimony- his behavior did not warrant a reduction in penalty

8 Hunter s Brief on Exceptions Hunter filed a brief on exceptions citing 95 errors and principally argued: He did not trade with the intent to create an artificial price and the evidence during the hearing didn t prove that trades Hunter directed had a direct causal effect on the settlement price Trial Staff failed to show legally sufficient conclusions between Hunter s trading on NYMEX and jurisdictional transactions in order to justify jurisdiction Trial Staff failed to meet its burden with regard to the penalty factors by not developing a record at the hearing as to the factors

9 The Commission s April 21, 2011 Order Affirmed the Initial Decision on all points Elements of Market Manipulation Hunter conducted trades in the NYMEX futures market with the intent to depress prices, then caused artificial prices in that market The evidence demonstrates Hunter intended and did manipulate the settlement price of natural gas futures contracts during the days in question FERC affirmed the ALJ's finding that the manipulative conduct was "in connection with" the jurisdictional FERC gas market because Hunter knew of the nexus between the futures and physical gas markets and "acted recklessly"; thus, there was a "nexus between the manipulative conduct and the jurisdictional transaction"

10 The Commission s April 21, 2011 Order, continued The Commission imposed a $30 million civil penalty FERC did not follow penalty guidelines because he was an individual and settlement discussions had been held The Commission found that Hunter s sale, with manipulative intent, of each natural gas futures contract during the at-issue settlement periods constituted a separate violation of NGA section 4A and the antimanipulation rule FERC emphasized the gravity of the violations, harm to physical market participants, and senior position of Hunter FERC agreed with the Judge that no mitigating factors were present, and considered the impact of the penalty on Hunter's financial viability

11 Significant Milestones in Hunter Decision First FERC case litigated to conclusion under the market manipulation rule First FERC application of the in connection with language First FERC interpretation of the scienter standard First litigated example of FERC/CFTC cooperation post-mou

12 Post-Hunter Considerations for Compliance Teams FERC will pursue individuals, not just companies Avoid lone ranger situations Be vigilant for concerns from co-workers about aggressive/risky behavior Develop follow-up/auditing system (i.e. marking the close prohibition) Emphasize care with all electronic communications, including IMs Expansiveness of in connection with standard The scienter test- legitimate business purpose after all? Atypical behavior attracts attention Hostile or uncooperative conduct during the investigation will be punished

13 Personal Jurisdiction Hunter argued Commission lacked personal jurisdiction over him as a Canadian national doing business from Canada Initial Decision found, and Commission affirmed, that exercise of personal jurisdiction was proper ID and Commission applied two-part test developed by federal courts Minimum contacts with forum (U.S. in this case) Exercise of jurisdiction would not offend traditional notions of fair play and substantial justice

14 Hunter s Claim For De Novo District Court Determination Of Penalty Hunter: NGA 24 (15 U.S.C. 717u) gives District Courts exclusive jurisdiction of violations of [NGA] or rules, regulations or orders thereunder. Therefore District Court must make de novo decision on penalty. Commission: Rejects Hunter s argument pursuant to its decision in Energy Transfer Partners, 121 FERC 61,282 (2007): NGA 24 must be read together with other NGA provisions NGA 22 (15 U.S.C. 717t-1) gives Commission power to fix penalties after notice and opportunity to be heard NGA 19 (15 U.S.C. 717r) provides that party aggrieved by order of Commission may seek review in appropriate Circuit Court of Appeals Commission must determine whether violation has occurred; once determination made, aggrieved party seeking review must go to Court of Appeals District Court s role arises in collection of penalty not determination of whether violation occurred. Once Commission determines that violation occurred (and Circuit affirms, if violator appeals), Commission goes to District Court to enforce penalty. º District Courts have power to issue writs of attachment, garnishment, and other judgment-enforcing tools Construing NGA this way renders its penalty enforcement mechanism consistent with other civil penalty statutes (FAA, OSHA)

15 Appendix Anti-Manipulation Rule Cases

16 FERC s Anti-Manipulation Rule The Commission has dealt with alleged violations of the Anti-Manipulation Rule in the following cases: Cheyenne Plains affiliate bidding schemes º Settlements reached with some parties after FERC staff alleged market manipulation º Two holdouts were issued show cause orders (with two Commissioners dissenting, claiming inadequate notice of violative conduct) º Holdouts eventually settled, but market manipulation allegations were dropped and violations limited to SMHT and buy/sell prohibition claims

17 FERC s Anti-Manipulation Rule continued Energy Transfer Partners, L.P., 128 FERC 61,269 (2009) FERC Staff alleged manipulation of physical gas prices in certain Texas markets Settlement reached after show cause order, $5 million penalty and $25 million victim compensation fund Likely only case brought under FERC market behavior rule for gas that preceded NGA Section 4A

18 FERC s Anti-Manipulation Rule continued North America Power Partners, 133 FERC 61,089 (2010) settlement resolving an investigation of alleged violation of 18 C.F.R. 1c.2 in connection with NAPP s conduct in PJM s Synchronized Reserve Market Richard Blumenthal, AG for the State of Connecticut v. ISO New England, Inc., 135 FERC 61,117 (2011) FERC affirmed the Initial Decision of Judge Peter Young which found that the Connecticut Representatives failed to prove allegations of market manipulation against the respondents in connection with energy supply offers

19 Additional Proceeding Moussa I. Kourouma d/b/a Quntum Energy LLC, Docket No. IN Show cause proceeding currently pending against an individual for alleged submission of misleading information regarding company ownership