Earlier this year, the CFTC and FERC announced an information sharing Memorandum of Understanding (MOU) between the two agencies. The agencies have now announced that they have begun sharing market data pursuant to this MOU. In addition, they have created an Interagency Surveillance and Data Analytics Working Group “to coordinate information sharing between the
Director of FERC Enforcement Highlights Need for Jurisdictional Clarity and Improved Information Sharing with CFTC, Role of Financial Institutions in Physical Markets
Norman Bay, Director of FERC’s Office of Enforcement, testified yesterday before the Senate Subcommittee on Financial Institutions and Consumer Protection regarding regulations for financial holding companies and physical commodities.
In prepared remarks, Mr. Bay stated that FERC has the “tools necessary to effectively police FERC-regulated markets” but identified two regulatory limitations to its…
FERC and CFTC Enter into Long-Awaited MOUs in Response to Dodd-Frank Act
On January 2, 2014, the Federal Energy Regulatory Commission (FERC) and the Commodity Futures Trading Commission (CFTC) entered into two Memoranda of Understanding (the MOUs) to set forth procedures to address circumstances of overlapping jurisdiction (the Jurisdiction MOU) and to share information in connection with market surveillance and investigations into potential market manipulation, fraud or abuse (the Information MOU).
The MOUs were entered into in response to a provision of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the Dodd-Frank Act) that directed the FERC and CFTC to develop the MOUs. The directive in the Dodd-Frank Act was the result, in part, of jurisdictional disputes in recent years related to investigations that implicated the jurisdictions of both the FERC and the CFTC, particularly in cases dealing with the potential manipulation of the natural gas markets. Specifically, in Hunter v. FERC, No. 11-1477 (D.C. Cir. Mar. 15, 2013), the D.C. Circuit Court rejected FERC’s assertion of jurisdiction over the trading of natural gas futures contracts when the Court held that the CFTC has exclusive jurisdiction over all transactions involving futures (the underlying FERC case was filed prior to the passage of the Dodd-Frank Act). In addition to directing the FERC and CFTC to enter into the MOUs, the Dodd-Frank Act also clarified the jurisdiction of the respective agencies. The MOUs supersede a 2005 Memorandum of Understanding the agencies had been employing for the exchange of information related to oversight or investigations.
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Barclays Moves to Dismiss FERC Market Manipulation Suit
Barclays Bank and four of its traders (collectively, “Barclays”) moved on December 16, 2013 to dismiss charges of market manipulation brought by FERC’s Office of Enforcement. FERC’s complaint seeks to affirm a combined $488 million in civil penalties and disgorgement in federal court for the Eastern District of California based on its claim that Barclays…
FERC Sues in Federal Court to Affirm Demand Response Manipulation Orders
FERC on December 2 filed two suits in the District of Massachusetts to affirm orders alleging market manipulation in the ISO New England demand response market in 2007 and 2008.
In the first case (docket number 13-13054), the Commission seeks to affirm its August 29, 2013 order finding that Competitive Energy Services (CES), an energy…