FERC Enforcement Policy — the Practitioner's View

Schiff Hardin LLP is honored that our colleague Barbara K. Heffernan was among the four private practice attorneys asked by the Federal Energy Regulatory Commission (FERC) to give the Practitioners' view of its new enforcement policy at its November 16, 2007 Conference on Enforcement Policy.  Ms. Heffernan, co-leader of Schiff Hardin's Energy Practice Group, has represented clients before the FERC for almost 30 years, and is a past President of the Energy Bar Association.

Ms. Heffernan's presentation, drawing on her experience with the enforcement process, starts by examining due process issues in the investigation stage, urging a heightened awareness on the part of the FERC Office of Enforcement of attorney-client privilege, related civil litigation, and maintaining a generally open-minded approach.  Moving to the post-investigation stage, the presentation suggests measures to be taken if a settlement cannot be reached, with an eye towards keeping the process streamlined and fair to the investigated party. Finally, the benefits of self-reporting and compliance programs are considered. During the conference, and in response to questions from the Commissioners, Ms. Heffernan candidly expressed her view that the enforcement process needs to be structured to ensure that there is no perception of pre-judgment.  This is especially important in order to ensure that companies are not dissuaded from self-reporting.

At the Conference, the Commissioners stressed once again that the most important step a company can take to increase its odds for a favorable outcome during the enforcement process is to have a comprehensive training program that promotes a culture of compliance, and when mistakes do happen, to properly self-report such violations.  Whether a company is implementing self-reporting and compliance programs or interacting directly with the FERC in an investigative context, skilled and knowledgeable counsel is an invaluable asset.  We urge parties in the energy sector to consider the issues raised in this presentation carefully, and we welcome any related inquiries.

Barbara Heffernan's presentation (PDF 35KB)

Web cast of the presentation on FERC Web site (expires 3 months from event date)

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Schiff Hardin LLP