FERC Lacks Power to Regulate Futures, Court Rules

The Federal Energy Regulatory Commission lacks authority over futures contracts, a U.S. appeals court ruled, handing a victory to the Commodity Futures Trading Commission and an ex-Amaranth Advisors LLC trader fined $30 million by FERC.

Congress intended to centralize oversight of futures contracts in the CFTC, the U.S. Court of Appeals in Washington said today. It brushed aside FERC’s contention that the two agencies share jurisdiction over aspects of energy markets that allowed FERC to fine trader Brian Hunter for alleged market manipulation.

“FERC lacks jurisdiction to charge Hunter with manipulation of natural-gas futures contracts,” U.S. Circuit Judge David Tatel wrote for a three-judge panel. The Commodity Exchange Act gives the CFTC “exclusive jurisdiction,” he said.

The case highlights a turf battle between the two agencies developing at least in part from expanded powers Congress granted to FERC in 2005 to regulate energy trading in the wake of blackouts in California triggered by Enron Corp. traders.

FERC had argued that the CFTC’s exclusive jurisdiction over regulating futures contracts and futures markets doesn’t extend to manipulation.

‘Mere Futures’

“Market manipulation transactions go beyond mere futures trading and involves conduct in several markets,” Robert Solomon, a FERC lawyer, told the judges in a Feb. 7 hearing. If the transactions have “a direct and profound effect on physical natural gas markets then FERC does have a role.”

In such circumstances, as in the Hunter case, both agencies would have authority, Solomon said.

Steve Adamske, a spokesman for the CFTC, and Tamara Young Allen, spokeswoman for FERC, declined to comment on the ruling.

Hunter’s attorney, Michael Kim, of Kobre & Kim LLP, said in a statement that “FERC unjustly vilified Mr. Hunter for years, but in fact it was the FERC which had acted outside the law.”

Hunter dumped large numbers of contracts within the last 30 minutes of trading in an effort to drive down the closing price of the futures, according to court documents. The move benefited Amaranth’s larger opposing positions in off-exchange derivatives, regulators said.

Amaranth Losses

Amaranth lost $6.6 billion betting on the price of natural gas. The Greenwich, Connecticut-based hedge fund that once controlled half of the gas market collapsed in 2006. In August 2009, the company agreed to pay $7.5 million to end U.S. cases brought by FERC and the CFTC over price manipulation.

On April 11, a federal judge in Manhattan gave final approval to a $77.1 million settlement by Amaranth to resolve a class action brought by traders.

FERC filed an administrative case against Hunter the day after the CFTC brought a civil enforcement action against him in federal court in Manhattan over the same trading. The commission ordered him to pay $30 million in penalties, ruling he manipulated the price of contracts on the New York Mercantile Exchange in 2006 while boosting the value of financial derivatives.

The CFTC’s case against Hunter was put on hold in January 2012 after Hunter sued to challenge FERC’s authority in the matter, according to court records.

Enforcement Staff

FERC, with an enforcement staff of 200 people, hasn’t backed down in its oversight. The agency’s staff on Jan. 28 proposed $488 million in penalties for Barclays Plc and four former traders for allegedly gaming the electricity markets. The London-based bank has vowed to challenge the matter in court.

An energy-trading unit of Deutsche Bank AG on Jan. 22 agreed to pay FERC’s proposed penalty of $1.6 million for alleged violations, rather than fight the matter in court. The agency is also investigating a JPMorgan Chase & Co. unit for alleged manipulation and has suspended its electricity-trading authority for six months starting in April.

The case is Hunter v. Federal Energy Regulatory Commission, 11-1477, U.S. Court of Appeals for the District of Columbia (Washington).

To contact the reporter on this story: Andrew Zajac in Washington at azajac@bloomberg.net.

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net.

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