Will Supreme Court Find Constitutional Problems With ALJs?

Recent federal circuit court of appeals decisions have cast doubt on the constitutionality of the use of administrative law judges (ALJs) in adjudicative proceedings. ALJs are widely used to adjudicate disputes and enforcement actions in regulated industries, including in administrative proceedings overseen by the Federal Energy Regulatory Commission (FERC) and the Securities and Exchange Commission (SEC). [1] At FERC, ALJs also preside over adversarial trial-type rate and technical proceedings. As of March 2017, the Office of Personnel Management (OPM) reported that nearly 2,000 ALJs were...

Energy Legal Blog® Nominated for 2017 Best Legal Blog

We are pleased to announce that Energy Legal Blog® has again been selected to compete in The Expert Institute’s annual Best Legal Blog Contest . After receiving thousands of nominations, The Expert Institute has narrowed contestants down to those blogs regarded as the "most exciting, entertaining, and informative legal blogs online today." Voters may cast a single vote for each blog, but are permittted to vote for as many blogs as they like across nine different categories. Each blog will compete for rank within its category, while the three blogs that receive the most votes in any category...

Statute of Limitations Bars FERC Penalty in Preeminent Market Manipulation Case

On Friday, the U.S. District Court for the Eastern District of California handed the Federal Energy Regulatory Commission (“FERC” or “Commission”) a significant defeat by concluding that FERC’s action against a former trader of Barclays Bank PLC accused of participating in a scheme to manipulate western energy markets [1] was barred by the statute of limitations. For now, the related allegations against Barclays, which is facing a $435 million civil penalty plus $34.9 million in disgorgement, and against three other traders remain intact. However, this dismissal, which comes on the heels of...

DOE Proposes FERC Action to Preserve and Compensate Baseload Generation Resources

Pursuant to its authority under Section 403 of the Department of Energy Organization Act, on September 29, 2017, the Department of Energy (“DOE”) issued a Notice of Proposed Rulemaking (“NOPR”) directing the Federal Energy Regulatory Commission (“FERC”) to take prompt action to help prevent further retirements of baseload generation resources located within the centralized markets operated by FERC-jurisdictional Regional Transmission Organizations (“RTO”) and Independent System Operators (“ISO”). The NOPR comes just over one month after issuance of a report by DOE staff on electricity markets...

The CFTC Wants You To Turn Yourself In

On September 25, 2017, James McDonald, Director of the Division of Enforcement (“Division”) at the Commodity Futures Trading Commission (“CFTC” or “Commission”) gave a speech at New York University in which he discussed the mission of the Division of Enforcement and revealed a new framework for policing financial markets. [1] McDonald noted that the Division of Enforcement’s role is “not to bring enforcement actions for their own sake” but rather “to facilitate healthy, robust, and resilient markets” with the “ultimate goal” being to “deter misconduct in these markets.” Recognizing these...

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