Energy companies operate under an increasingly complex set of laws and regulations around the world, including those regulating mergers, acquisitions and divestitures, securities issuances, electricity sales, corporate governance, environmental, taxation, employment, health and safety matters. Working with our market-leading Power & Utilities and Renewable Energy lawyers, our Energy Regulation lawyers can help your investors, officers, and directors understand the regulatory regimes in which energy businesses, and their investors and lenders, operate and have the knowledge needed to minimize risks and maximize opportunities.
Mayer Brown has a long history representing power generators and conventional and renewable electricity providers, equity investors and generation holding companies, natural gas producers and utility companies around the world. We help our international clients acquire equity and tax equity interests in, and extend financing to, US energy companies; our US clients invest in energy markets abroad. In recent years, we have been active in representing clients in the US and international merchant power markets in acquisition, market participation and compliance matters. We regularly represent institutions that finance energy assets. We have assisted clients in developing, constructing and operating electric power and natural gas transmission and storage projects. We use the know-how accumulated from our involvement in these matters to facilitate our clients' growth in the 21st century.
Our Energy Regulation lawyers work with colleagues around the world to offer a full range of interrelated regulatory services in the United States, Europe, Asia and Latin America. We are regulatory counsel to dozens of private equity funds and their managers and advisors, to numerous US and international lenders in the electric power and natural gas sectors, to well over 200 US generating companies and to some of the largest and most visible multinational and US-based owners of generating companies. Our lawyers have advised and represented parties in over 500 Federal Energy Regulatory Commission (FERC) merger, acquisition, divestiture, fund management and similar control proceedings. Our work includes negotiating and securing regulatory approvals and assisting energy companies in establishing and implementing their legal and regulatory compliance programs, including compliance with the special FERC requirements that apply to owning or managing fleets of generating assets. Because we regularly deal with regulatory and compliance issues before a wide range of US and non-US regulators, represent both equity and financing parties, and work with producers, pipelines, generators and transmission providers, we have the ability to look at transactions and issues with a uniquely wide lens.
We also routinely represent clients in hearings, investigations and other formal proceedings before FERC and other US and international energy industry regulatory authorities.
Physical and Financial Commodity Trading
The regulation of both physical and financial commodity trading has been an area of increased attention and activity for regulators both in the European Union and the United States. New legislation puts previously unregulated activities under regulators’ licensing, supervisory and market conduct regimes, with more to come over the coming months. These regulatory regimes not only expand the regulation of commodity derivative trading but also apply to some purely physical supply contracts. Our lawyers can help clients understand and adapt to these new regulatory regimes, as we have considerable experience with obtaining financial services licenses, advising on what can be done without a financial services license and advising on the requirements for ongoing compliance with such regimes. We are also experienced in defending clients against regulatory investigations for breaches of these regulations.
Our regulatory lawyers in the United Kingdom also have considerable experience with commodity trading regulation, having worked in this field both for the regulator, the UK Financial Services Authority, and in-house for a commodity trader with extensive global trading activities in physical oil and gas and with associated trading in soft commodities, emission allowance, metals and commodity derivatives, both OTC and on exchange.
Anti-Corruption and Economic Sanctions
The extraction industries and the trading organizations that trade the commodity products they produce face particular challenges in the area of corruption, money laundering and ethics, given the scale of the work they undertake and the challenging jurisdictions in which they typically operate. Our regulatory and dispute resolution teams are well-versed in anti-corruption legislation, such as the US FCPA and the UK Bribery Act, and can advise on systems and controls to combat corruption and comply with the relevant legislation and can also conduct internal investigations into allegations of corruption.
- Acquisition support. We represented a top-20 US gas holding company in the sale of its primary local distribution company subsidiary.
- Anti-money laundering. We are advising the trading division of a global energy producer on anti-money laundering systems and controls and market conduct and abuse issues.
- Acquisition approvals. We have advised sellers, target companies and purchasers in over 500 FERC-regulated direct and indirect merger, acquisition, divestiture and similar change-in-control proceedings and exemption determinations. These proceedings have ranged from partial-interest transactions in a single generating company to complex, high-dollar control transactions involving large fleets of generating assets and market-leading realization transactions involving packages of assets. Our regulatory lawyers have also represented sellers and purchasers of controlling interests in franchised utilities and electric transmission companies.
- Bankruptcy and insolvency regulation. US energy regulators including FERC exercise jurisdiction in a variety of bankruptcy and insolvency contexts. Our lawyers have been FERC counsel to an interested party in every major US electric-sector bankruptcy during the past 20 years, often appearing before FERC to obtain required regulatory approvals for final plans of reorganization and asset and interest sales in bankruptcy and to advocate for the assumption or rejection of particular FERC-regulated power sale, fuel and interconnection contracts.
- Commodity transactions. We are advising a major investment bank in relation to a global revolving credit agreement in the aggregate principal amount of up to $1 billion for the financing of margin payments in relation to exchange-traded commodity broking and prime broking activity. The advice focuses on the regulatory aspects of the commodity transactions (metals and soft commodities), margining and clearing, client money considerations and the regulatory capital impact.
- Cross-border acquisitions. We advised owners of US power generating companies on a series of sales of all of their economic interests to a consortium of Asian financial institutions, successfully avoiding complex US acquisition approval requirements and closing the transaction in one of the shortest time frames permissible under US energy law.
- International energy fund management acquisition. We advised a large US multi-sector fund manager on the sale of a 62 percent controlling interest in the manager to a non-US energy fund manager, using a first-of-its-kind voting trust structure to overcome potential competition impediments and advised on post-consummation compliance and regulatory integration requirements.
- Government investigations and enforcement proceedings. We have represented electric power firms and investors in numerous regulatory compliance investigations, enforcement proceedings, and compliance audits and examinations. We successfully represented insurance company investors in Enron Corporation, leading to the first-ever exoneration of investor parties in FERC’s protracted Enron investigations.
- International energy transactions. We regularly advise international fund managers on the acquisition of interests in US energy businesses and counsel US energy businesses on sales of electric power and natural gas interests and assets to international acquirers. We work closely with our international trade and national security colleagues on the coordination of required multi-agency approvals and on post-closing compliance requirements.
- Interstate transport. We have represented gas-fired generating companies, natural gas producers and local distribution companies before FERC with respect to interstate transportation access, rates and services.
- Power sales approvals and compliance. We represent over 200 US electricity generators and marketers that sell power subject to FERC regulation. We advise our clients on FERC disclosure and compliance requirements, periodic renewal and changes in status, and FERC-related competition and market conduct issues, which vary from typical antitrust strictures.
- Private equity fund investments and transactions. Our lawyers have been counsel to a party in nearly every significant FERC-regulated private equity fund management transaction. We closely coordinate technical, market, competition, valuation, control analysis, regulatory filings, and responses to government staff inquiries with our global projects, antitrust, investment management and tax colleagues. Following consummation, we advise fund managers and advisers in ongoing FERC disclosure, market conduct, project company interest and asset sales, and related requirements.
- Regulatory approval. We represented an investment company in the acquisition of an interest in an interstate natural gas pipeline.
- Regulatory policy. We have represented equity investors, lenders and generating companies in FERC rulemaking proceedings, advocating for lighter-handed treatment of FERC-regulated transactions, for the protection of regulatory exemptions and for the preservation of investor value in the electric sector.
- Tax equity investments. In formal rulemaking proceedings, we represent issuers and purchasers of tax equity interests in establishing and preserving the exemptions from FERC M&A regulation for tax equity and similar passive investments.
- Trading compliance. We represented a financial institution with regulatory issues relating to its natural gas- and electricity-trading activities.
- Trading regulation. We are advising on the financial services and other regulatory issues relating to the formation of an oil and gas trading entity dealing in physical and financial instruments.
- UK market dominance proceeding. We represented a European utility in its successful defense to the action of the UK regulator, Ofgem, under Article 82 and Chapter II of the Competition Act. Ofgem claimed that the utility’s withdrawal of meter-reading services in certain areas of the United Kingdom was an abuse of its market dominance. The case involved an attempt by Ofgem to use Article 82 and Chapter II in a novel and unprecedented way—to force the utility to continue to operate a business that it no longer wished to operate. Ofgem issued a formal decision exonerating the utility in 2007.
- US pricing investigation. We assisted a major international energy distributor in various investigations conducted by the FTC, Congress and various state attorneys general into the company’s pricing practices and in connection with a claimed “price gouging” investigation post-Hurricane Katrina.