Diversity & Inclusion
Our Energy Regulation and Litigation Group is consistently ranked among the leading practices by Chambers USA and Legal 500. The group has been described in Chambers USA as “Outstanding, the best of the best, the gold standard” … with a “very broad and deep bench of outstanding attorneys” “the gold standard” and, further, that “Skadden is an absolute powerhouse. … A true juggernaut practice.” Our leading role is due to the depth and breadth of our group’s experience in this area and the prominence of its practitioners, including former high-ranking government officials.
The group offers clients creative and effective solutions to complex legal problems in the following areas, among others:
Mergers and Acquisitions
Skadden is a recognized leader in handling regulatory approvals for complex M&A transactions, including, most recently, FERC and federal antitrust approval process for numerous transactions, including Exelon Corporation/Pepco Holdings, Inc.; Wisconsin Energy Corp./Integrys Energy Group, Inc.; Hawaiian Electric Industries, Inc./NextEra Energy, Inc.; SunEdison, Inc. and TerraForm Power, Inc./First Wind Holdings, Inc.; Dynegy Inc./Energy Capital Partners; and Enel Green Power S.p.A./GE Energy Financial Services. The volume of deals we handle gives us keen insights on how to manage the interaction of the multiple agency approvals needed for many utility M&A transactions, including FERC, DOJ/FTC and state approvals. This extensive experience also gives our attorneys familiarity with the business realities driving potential transactions, and we regularly advise the boards and senior management of our clients throughout the M&A process.
Skadden’s Energy Regulation and Litigation Group, in conjunction with the firm’s litigation practice, has the breadth and depth to handle virtually all forms of complex energy litigation. We have represented companies in high-profile enforcement cases in federal district court and before FERC and the CFTC. We have advised clients in federal preemption disputes in federal district court and the federal courts of appeal. Our attorneys have handled complex administrative trials before FERC on a range of issues, including breach of contract cases, rate cases, manipulation cases and the California refund litigation. We also have one of the leading energy appellate practices, representing companies seeking to overturn or defend FERC orders in the federal courts of appeals. Our group has handled complex energy litigation, including merger approvals and stranded cost claims, before state regulatory bodies.
We have combined our litigation skill and depth, our broad knowledge of the relevant legal criteria, and our intimate understanding of agency priorities to help companies navigate their most difficult enforcement cases. Given the increasingly common multi-agency and potential judicial nature of such cases, we also routinely collaborate with our white collar defense group, our civil litigation attorneys and our CFTC practitioners.
Our attorneys have defended a majority of the FERC enforcement cases involving market manipulation allegations that have become public, including for Barclays Bank PLC (the first case to go to federal district court), JP Morgan Ventures Energy Corp.; DB Energy Trading, LLC; Rumford Paper Company; Dr. Alan Chen; and Energy Transfer Partners. We also defended H.Q. (United States) in the first complaint case claiming market manipulation.
We have represented companies in some of the most significant reliability enforcement matters to date, including investigations into significant outages and major electrical disturbances. We also counseled companies involved in the southwestern and San Diego outages in 2011, and we advised the Edison Electric Institute in its successful bid to reform FERC’s Penalty Guidelines with respect to reliability enforcement.
Our representations in this field give us deep knowledge into effective strategies for dealing with regulatory agencies in this area — particularly, but not exclusively, FERC and the CFTC. We also employ state-of-the-art data retrieval and web-based litigation support systems to accommodate the needs of specific clients and matters. This sort of “knowledge bank,” the product of extensive and practical experience in a complex area, is a significant source of value for our clients.
FERC and the CFTC have aggressively pursued market manipulation claims against energy companies in recent years. FERC in particular has been active in prosecuting manipulation claims and has sought hundreds of millions in civil penalty fines and disgorgement. Our group has been a leader in defending companies in these cases, including defending the first major FERC manipulation case (Barclays) to be challenged in federal court. (See link to Experience section above.) Our representations in this field give us deep knowledge of the substantive law and have provided us with important insights into effective strategies and tactics for dealing with regulatory agencies.
We have played a leading role in FERC and appellate proceedings regarding the design of organized power markets throughout the nation, including ISO New England, PJM, California ISO, Midwest ISO, New York ISO and other markets. Our attorneys have helped develop these market rules and have defended the rules and market outcomes against challenges. This area of regulation is becoming increasingly important given the significant challenges confronting organized electric markets, including changes in generation resource mix, the integration of large amounts of variable resources, and recurring interventions and subsidies by state and local entities. In representing companies in this area, we also utilize our longstanding relationships with the leading electricity market economists.
We have extensive experience in developing compliance programs for energy companies subject to FERC regulation. We authored the 2005 Compliance Handbook (first edition), which became a leading public reference work on FERC compliance, and released the second edition in late 2014. From 2008-09 we represented 27 companies from across the energy industry in creating a model FERC compliance program guide, which includes a comprehensive identification of FERC requirements; an assessment of actions that can trigger those requirements; and guidance on controls, training and documentation, as well as compliance policies and “culture of compliance” issues. We provide similar services to individual companies, assisting them in evaluating and, as appropriate, updating their compliance programs.
Skadden has been at the forefront in advising on FERC’s regulation of electric reliability matters. We have represented companies in virtually every region of the U.S. on reliability enforcement matters, including in major FERC investigations involving outages and electrical disturbances. We also have assisted companies in developing compliance programs that address reliability requirements and processes. Our attorneys have written extensively on FERC’s regulation of the standards development process and have counseled companies and industry groups on the participation in that process.
We have represented electric companies over the last two decades in a broad range of proceedings affecting their transmission businesses. Our attorneys played a leadership role in developing the first open access transmission tariffs and in the creation of regional transmission organizations to operate and plan the transmission grid. More recently, we have represented a range of transmission companies in responding to the changing nature of the industry, including integrating renewable resources, addressing the elimination of federal rights of first refusal, obtaining transmission incentives, preparing and prosecuting transmission rate cases, handling disputes over transmission cost allocation, representing merchant transmission developers and participating in regional transmission planning.
Our lawyers have been heavily involved in affiliate regulation issues on both a policy and practical level, from the inception of the first affiliate regulations imposed on energy companies through each step of their evolution. Because we advise numerous electric and gas companies in this area, there are few fact patterns we have not seen. We know how to anticipate problems, resolve issues and distinguish real problems from manufactured ones. Clients turn to us for creative solutions that achieve compliance with minimal regulatory impingement on business objectives (including, for example, obtaining Affiliate Restrictions and Standards of Conduct waivers and no-action letters, as well as sorting through difficult issues regarding permissible activities of employees and officers and permissible compensation for services that affiliated energy companies provide each other).
Skadden has long represented a variety of clients in the energy industry that own, operate and/or design nuclear generating facilities, and we have worked on many transactions that have involved nuclear issues. These transactions have included sales of individual nuclear plants, mergers of utilities that own nuclear plants, mergers of nuclear suppliers including reactor and fuel supply vendors, joint-ownership arrangements for new plants and the spin-off of a utility’s nuclear power business. We advise clients regarding the regulatory implications of their transactions, including assisting in obtaining the necessary regulatory approvals when required. Skadden also has counseled clients on potential new construction, government financial incentives, and loan guarantees and joint-ownership arrangements. We advise with respect to tenant-in-common arrangements historically used by traditional utilities as well as the creation of new joint ventures formed to pursue new merchant nuclear plant construction. This has included advising international companies regarding Atomic Energy Act restrictions on foreign ownership of nuclear reactors in the United States and the creation of ownership structures designed to comply with those restrictions.
Skadden has been involved with natural gas pipeline and related issues for more than 35 years. In recent years, our natural gas practice has focused on:
Skadden has significant experience representing project sponsors in creating yieldco vehicles, including major solar and wind power companies. Yieldcos, with their low cost of capital and need for continued growth, will continue for some time to have a major impact on the renewable energy market, including the M&A market and as an “exit strategy” for developers. Whether or not a company’s transactions involve yieldcos, the firm’s experience representing developers in forming yieldcos, and our experience with yieldcos in the M&A market, will assist when formulating and implementing an acquisition strategy in today’s market.
Members of Skadden’s Tax Group have significant experience planning and structuring transactions in the energy sector. Our tax-related energy experience also involves assisting energy-focused clients with industry-specific issues, both in the transactional and planning context, and in controversies and litigation, including matters before the IRS.
Many of our attorneys have extensive tax-related administrative and policy experience and formerly have held senior positions at the Treasury Department and IRS, and in key congressional tax writing committees. That experience, coupled with our unparalleled tax controversy capabilities, enables our Tax Group to react quickly in analyzing novel transaction structures and, where necessary, seek rulings or other government guidance to facilitate their prompt implementation.