CFTC Fines and Imposes Permanent Ban on Trader Accused of Spoofing

On July 26, 2017, the U.S. Commodity Futures Trading Commission (“CFTC”) issued an order approving a settlement resolving allegations that Simon Posen of New York violated the CFTC’s prohibition on spoofing by entering bids or offers with “the intent to cancel the bid or offer before execution.” [1] Posen’s transactions occurred in gold, silver, and copper futures contracts (on the Commodity Exchange, Inc.) and crude oil futures contracts (on the New York Mercantile Exchange). Mr. Posen was not, at the time, employed by any corporate entity. According to the order, Mr. Posen engaged in...

Dallas Court of Appeals Reverses Partnership Verdict: Preliminary Agreements Precluded Partnership

On Tuesday, July 18, 2017, the Dallas Court of Appeals reversed a $535 million judgment against Enterprise Products Partners, L.P. (Enterprise), finding that unfulfilled conditions precedent in Enterprise’s written agreements with Energy Transfer Partners, L.P. (ETP) precluded the formation of a partnership between the parties. The jury verdict had generated concerns in the business community that parties could unwittingly form a partnership and be subject to the attendant fiduciary duties. The court of appeals’ decision signals that the risk of an inadvertent partnership can be minimized...

A Path Begins to Emerge: Industry Responses to FERC Proposals Respecting State Policies and Eastern Wholesale Markets

A Path Begins to Emerge: Industry Responses to FERC Proposals Respecting State Policies and Eastern Wholesale Markets On May 1-2, 2017, the Federal Energy Regulatory Commission (“FERC”) held a two day conference focused on the interplay between state policy goals and the organized markets for energy and capacity operated by Regional Transmission Organizations (“RTO”) and Independent System Operators (“ISO”) in the East. The conference focused on what steps, if any, FERC should take to protect the integrity of wholesale markets given the recent proliferation of state policies intended to...

U.S. Futures Exchanges Disciplinary Actions Report - June 2017

NYMEX NYMEX 16-0498-BC Position Limit Violation of Rule 562 – Position Limit Violations Pursuant to a settlement offer, a Business Conduct Committee panel (“BCC Panel”) found that on July 27, 2016, a non-member entity held a futures equivalent long position of 1,159.25 contracts in August 2016 Henry Hub Natural Gas Look-Alike Last Day Financial Futures, which was 159.25 contracts, or 15.925%, beyond the standard expiration month limit. As a result, the non-member entity may have violated Rule 562. $50,000 fine. NYMEX 16-0600-BC Misc. Violation of Rule 432 – General Offenses, Rule 576 –...

FWS Publishes Notice of Availability of Draft Candidate Conservation Agreements for Activities Affecting the Texas Hornshell Mussel

On July 7, 2017, the U.S. Fish and Wildlife Service (Service) published notice of the filing of applications by the Center of Excellence in Hazardous Material Management (CEHMM) and the New Mexico State Land Office (NMSLO) for two separate enhancement of survival (EOS) permits pursuant to the Endangered Species Act (ESA). The permit applications include draft programmatic candidate conservation agreement with assurances (CCAA) for the Texas hornshell mussel and other covered species, including the Rio Grande River cooter (turtle) and Pecos sprinsnail and two fishes that share habitat and...

In Win for Energy Industry, Court Strikes Down Portions of Obama-Era Waste Rule

On July 7, 2017, in a 2-1 decision, the U.S. Court of Appeals for the District of Columbia Circuit struck down parts of a 2015 U.S. Environmental Protection Agency (EPA) rule that revised the definition of solid waste for purposes of the federal hazardous waste regulatory program under RCRA. The EPA’s stated objective in promulgating the rule was to provide stronger protections against potential mismanagement of hazardous secondary materials intended for recycling and to establish a clear, uniform legitimate recycling standard for all hazardous secondary materials recycling to ensure that...

DC Circuit Vacates EPA’s Initial Stay of Methane Rule Requirements

On July 3, 2017, the U.S. Court of Appeals for the District of Columbia Circuit issued a decision vacating the U.S. Environmental Protection Agency’s (“EPA’s”) initial 90-day stay of parts of the 2016 rule establishing methane emissions standards for the oil and gas industry (“Methane Rule”). Clean Air Council v. Pruitt , No. 17-1145 (D.C. Cir, July 3, 2017). The Methane Rule applies to oil and gas facilities for which construction, modification, or reconstruction started after September 18, 2015. See 40 C.F.R. Part 60, Subpart OOOOa (40 C.F.R. § 60.5360a et seq. , adopted at 81 Fed. Reg...