Firms To Watch: Energy litigation: electric power

Duane Morris LLP‘s team, co-led by Phil Cha (Cherry Hill), Brad Thompson (Austin) and Shelton Vaughan (Houston), is experienced in litigation and regulatory work for clients in all segments of the energy industry, including the electricity, oil, natural gas and petrochemical sectors, and handles matters before federal and state courts including FERC.

Energy litigation: electric power in United States

McGuireWoods LLP

Predominantly out of the firm’s Washington DC office, McGuireWoods LLP fields a strong team within energy enforcement, having participated in a notable number of Federal Energy Regulatory Commission (FERC) enforcement cases in federal court over the past few years. In a particular highlight, the firm represented Southeast Energy Market Members made up of 17 companies in establishing and obtaining regulatory approval for a new intrahour energy market covering a wide area in the Southeastern United States. Todd Mullins  chairs the energy enforcement practice group and represents energy clients in enforcement and compliance matters involving FERC, the Commodity Futures Trading Commission (CFTC), the North American Electric Reliability Corporation (NERC) and other regulators. Noel Symons  acts for electric utilities and other energy companies before FERC and appellate courts, and also advises on cross-jurisdictional matters involving other regulatory bodies. Julia English represents electric generation and transmission owners, among other players, and handles compliance matters involving FERC, the US Department of Energy (DOE) and the Department of State.

Practice head(s):

Todd Mullins; Noel Symons

Other key lawyers:

Julia English; Katlyn Davis Farrell; Bernard McNamee

Key clients

Exelon Corporation

DATC Path 15, LLC

Edison Electric Institute

Evergy

Black Hills Corporation

Alabama Power Company*

Georgia Power Company and Mississippi Power Company, (collectively known as Southern Companies)*

Associated Electric Cooperative, Inc.*

Dalton Utilities*

Dominion Energy South Carolina, Inc.*

Duke Energy Carolinas, LLC*

Duke Energy Progress, LLC*

Louisville Gas and Electric Company and Kentucky Utilities Company*

Georgia System Operations Corporation*

Georgia Transmission Corporation*

Municipal Electric Authority of Georgia (referred to as MEAG Power)*

North Carolina Electric Membership Corporation*

North Carolina Municipal Power Agency Number 1*

Oglethorpe Power Corporation (An Electric Membership Corporation)*

PowerSouth Energy Cooperative*

South Carolina Public Service Authority (referred to as Santee Cooper)*

Tennessee Valley Authority*

PSE&G

Dominion Energy, Inc

Dominion Energy Virginia

Work highlights

  • Representing the Edison Electric Institute (EEI), Electric Power Supply Association (EPSA), and Energy Trading Institute (ETI) in an amicus brief in support of the statute of limitations arguments made by Vitol, Inc. and in opposition to arguments made by FERC in a case in which FERC requested over $2.7 million worth of penalties and disgorgement and fined one of Vitol’s employees $1 million after concluding its trading activity manipulated California electricity markets.
  • Counselling Exelon Corporation in connection with the planned spin-off of its generation fleet (article linked below). McGuireWoods advised on necessary FERC approvals and prepared and made the FERC filing seeking approval of the transaction, which was granted in late 2021.
  • Represented Exelon in a novel reliability-must-run (RMR) case to keep Exelon’s Mystic Generating Plant (Mystic), a uniquely situated facility adjacent to an affiliate-owned liquefied natural gas import terminal, operational to provide fuel security in ISO-New England. FERC allowed Exelon to charge cost-based rates for fuel security even though it had never before considered whether provision of fuel security could be a basis for such a charge.

Steptoe & Johnson LLP

Steptoe & Johnson LLP handles complex regulatory, litigation, enforcement and antitrust matters for electric companies facing investigations and regulatory challenges. The firm has been present in internal and government investigations involving the power industry, including litigating rates and terms for transmission and wholesale services before FERC. Richard Roberts co-chairs the firm’s energy group and has tried numerous cases before FERC and federal district courts. David Mullen is the other co-chair of the practice; he also has experience defending public and private companies as well as financial institutions in energy enforcement investigations brought by FERC and CFTC. Associate Karen Bruni focuses on the regulation of electric utilities by FERC, especially in connection with enforcement, compliance and investigations matters. All lawyers mentioned are based in Washington DC.

Practice head(s):

Richard Roberts; Daniel Mullen

Other key lawyers:

Doug Green; Wesley Heath; Karen Bruni

Key clients

Duke Energy Corp.

Entergy

Southern California Edison

Eversource Energy

Pacificorp (Berkshire Hathaway Utilities)

American Electric Power

Exelon Corporation

Public Service Electric & Gas

Evergy Inc.

Dominion Energy Services, Inc.

PPL Electric Utilities Corporation

Tucson Electric

Work highlights

  • Won a summary judgement on behalf of Duke Energy Corp in federal district court in Charlotte, dismissing antitrust and unfair competition counterclaims brought against Duke by NTE Carolina LLC.
  • Representing Entergy in litigation before FERC that will determine whether a utility is permitted to recover, in rates, payments it makes under the renewal of a sale-leasebacks agreement, and the proper treatment of uncertain tax deductions for ratemaking purposes.
  • Representing Tipmont Rural Electric Membership Cooperative in a two-week trial at FERC to determine the terms and conditions which it may exit membership from the Wabash Generation and Transmission Cooperative.

Baker Botts L.L.P.

Baker Botts L.L.P.‘s energy litigation group is led by William Kroger in the Houston office and is integrated with other disciplines, harnessing the firm’s regulatory, appellate and intellectual property experts, among others. In recent years, the firm has focused on representing major electrical power producers who suffered massive losses or are facing litigation arising from Winter Strom Uri in 2021. The team services a diverse client base, including conventional electricity and gas power industry clients. John Anaipakos  in Houston handles high stakes litigation for clients in the energy industry, among others; he has particularly deep experience in representing oil and gas, and utility clients. San Francisco-based Megan Berge supports clients in environmental law in areas including civil litigation, rulemaking and compliance counselling, while also assisting them with the development of strategies to accomplish sustainability targets. In Austin, Juliana Sersen joined from ERCOT and uses her vast experience as Assistant General Counsel – Regulatory & Litigation to represent energy clients in regulatory matters and complex energy market issues.

Practice head(s):

William Kroger

Other key lawyers:

John Anaipakos; Megan Verge; George Fibbe; Kevin Jacobs; Andrea Stover; Tina Nguyen; Juliana Sersen; Ben Gonsoulin; Matthew Sheridan; Anthony Lucisano

Testimonials

‘Effective litigators who work well with clients.’

‘Retrieving data. Wait a few seconds and try to cut or copy again.’

Key clients

AES Corporation

Avangrid Renewables

Brookfield Renewable US

Calpine Corporation

CenterPoint Energy

Clearway Energy Group, LLC

EDP Renewables, North America

ENGIE North America, Inc.

Entergy Services, Inc.

Freeport Power Limited

Griddy Energy LLC

ITC Project Holdings LLC

Kindle Energy LLC

LG&E and KU Energy LLC

Longroad Energy

Murphy Exploration & Production Company

NRG Energy, Inc.

Oxbow Calcining LLC

Phillips 66

Pinegate Renewables

Sempra Energy

Skyline Renewables

Sunnova Energy Corporation

Talen Energy Corporation

XCEL Energy

Work highlights

  • Represented Sunnova in over 20 dispute matters, ranging from commercial disputes with competitors to consumer arbitrations across the United States. We are also handling trial court matters for Sunnova, including claims arising under the Fair Employment and Housing Act, the Telephone Consumer Protection Act, and the Fair Credit Reporting Act.
  • Leading the defense of the approximately 190 lawsuits filed by 500+ claimants against more 400+ defendants—from ERCOT (the grid operator), to power generators, to electric utilities, to natural gas producers, to retail electric provides, to others across the energy industry—that have been transferred to the Texas state court Winter Storm Uri Multi-District Litigation (MDL). We represent one of the largest joint defense groups of traditional and renewable power generation companies, which includes NRG Energy, Calpine, Avangrid, Clearway Energy, Engie, and several others.
  • Representing Calpine and NRG Energy as intervenors in Just Energy’s cross-border Chapter 15 bankruptcy adversary proceeding, in which Just Energy challenges the validity of the PUC’s emergency pricing orders and ERCOT’s invoices issued during Winter Storm Uri.

Bracewell LLP

Bracewell LLP‘s litigators are well known for their ‘excellent team work’  in representing industry-leading companies in complex disputes, such as representing global power producers in litigation and arbitration throughout the US and before state and federal bodies. The team has experience in acting both for plaintiffs and defendants, and in a stand-out mandate is representing Tenaska Power Services Co against Olin Corporation in the Texas ERCOT market after being named in various suits alleging wrongful death, personal injury and property damage; this is one of the first matters to address responsibility of ancillary service imbalance charges that accrued during Winter Storm Uri in February 2021. Houston-based Stephen Crain, chair of the firm’s litigation group, represents developers and producers, commodity traders and suppliers to the energy industry. Deanna King in Austin advises domestic and foreign energy industry clients in regulatory and compliance matters, and litigation, having appeared before FERC and other state and federal agencies. Andrew Zeve in Houston handles disputes related to the oil and gas industry. In Washington DC, Charles R. Mills joined from Steptoe & Johnson LLP in March 2022.

Practice head(s):

Stephen Crain; Andrew Zeve; Deanna King

Other key lawyers:

Bradley Benoit; Bryan Dumesnil; Catherine McCarthy; Michael Brooks; Charles R. Mills

Testimonials

‘Excellent team work.’

‘Efficient and practical. Lots of experienced professionals to help you prepare for what’s around the next corner.’

‘Bracewell has deep knowledge and experience with the energy markets, and excellent contacts within the energy industry and with energy regulators.’

‘Michael Brooks and Charley Mills are excellent. Very knowledgeable, very effective and good to work with. Both have a lot of experience with FERC and FERC enforcement. I would unequivocally recommend them to anyone needing representation or legal advice. they are both first rate.’

 

Key clients

Tenaska Power Services Co

Tenaska Gateway Partners

Alliance of Cooperative Energy Services Power marketing LLC (ACES)

Evergy, Inc

Shell Energy North America (US), L.P.

Vistra Corp.

Arroyo Energy Investment Partners, LLC

New York State Electric & Gas Corporation

Rochester Gas and Electric Corporation

Southern Maryland Electric Cooperative

Work highlights

  • Representing Shell in certain western energy markets cases that continue to be heavily litigated before FERC involving long-term contracts.
  • Counselling Vistra’s subsidiary, Oakland Power Company, in litigation before FERC related to a Reliability Must-Run Agreement (RMR) under which Oakland is required to make its 110 MW generation facility available to the CAISO to maintain reliability in California.
  • Representing Southern Maryland Electric Cooperative (SMECO) in connection with its efforts to modify retail rates for the provision of electric distribution service to the cooperatives’ customer members.

Dentons

Dentons advises government bodies, and electric and gas utility entities on matters relating to advocacy and energy compliance, having represented notable client Council of the City of New Orleans in its role as utility regulator. A range of clients seek the firm’s representation before FERC in regulatory matters including those related to operations, rates, project development, enforcement, compliance and agency rulemaking. Co-chair of the firm’s US energy practice as well global energy sector, Washington DC-based Clinton Vince acts as general counsel of the GridWise Alliance Grid Infrastructure Advisory Council’s (GIAC) board of directors and is experienced in handling appellate cases and advising on major project developments. Emma Hand in Washington DC has extensive expertise in energy efficiency and demand-side management programs. Karl Zobrist in Kansas City specializes in the electricity industry; some of his key clients include public utilities.

Practice head(s):

Clinton Vince

Other key lawyers:

Emma Hand; Karl Zobrist; Peter Thieman; Carl Steen; Justin Mirabel

Work highlights

  • Serving as lead litigation and crisis response counsel for CPS Energy regarding the Winter Storm Event in February 2021. Representing CPS Energy in this case against ERCOT for its lack of oversight, preparedness, and failure to follow its own protocols that resulted in $16 billion in overcharges to market participants and customers.
  • Lead strategic, crisis management, dispute, regulatory/PUCT, and securitization counsel for Rayburn Country Electric Cooperative in connection with the Winter Storm Event in February 2021 and related ERCOT market meltdown, which resulted in at least a $16 billion overcharge to market participants and customers across Texas (i.e., one of the largest wealth transfers from consumers to fuel suppliers and generators in history).
  • Competed for and was selected to represent IHI, one of the largest Japanese conglomerates, in connection with IHI’s engineering procurement and construction litigation dispute against Kinder Morgan over the construction of $1+ Billion LNG export liquefaction facility project in the US.

Gibson, Dunn & Crutcher LLP

Gibson, Dunn & Crutcher LLP handles a range of complex energy matters, including FERC enforcement and litigation cases, regulatory matters involving acquisitions, rate proceedings, investigations, complaints and rulemakings. William Hollaway has experience with numerous wind and solar renewable power projects, among others, and represents clients in energy regulation matters and transactions, including proceedings before FERC. Senior counsel Janine Durand focuses on the development and management of energy transmission and generation, and also represents clients before FERC. Jeffrey Jakubiak left the firm in January 2023. All mentioned lawyers are based in Washington DC.

Other key lawyers:

William Hollaway; Janine Durand

Key clients

Versant Power

Westlands Water District

IMG Energy Solutions

Neptune Regional Transmission System

TotalEnergies Gas and Power North America, Inc.; TotalEnergies, S.E.; TotalEnergies Gas and Power Ltd.

Hudson Transmission Partners

Berkshire Hathaway Energy Renewables

TC Energy

Tampa Electric Company

Energy Transfer and Rover Pipline

Haynes and Boone, L.L.P.

With a strong presence in the Texas energy industry, Haynes and Boone, L.L.P.‘s experience within power litigation includes representing clients in complex business, regulatory and tort litigation. The team has experience acting for a wide range of clients including investors and lenders, transmission and utility distributors, and power cooperatives. Noteable is the firm’s extensive history working with the Electric Reliability Council of Texas (ERCOT). Practice co-head Leslie C. Thorne, who is based in New York and Austin, has litigated and arbitrated cases for clients in both the conventional and renewable energy spaces. Ben Mesches, who co-leads the group from Dallas, is an appellate practitioner in the electric power sector. He is currrently representing Panda Power before the Texas Supreme Court in a case that will determine whether ERCOT enjoys sovereign immunity.

Practice head(s):

Leslie Thorne; Ben Mesches

Other key lawyers:

Jason Jordan; Andrew Guthrie; Ryan Pitts; Pat Hughes

Testimonials

‘They are simply the best.’

‘Pat Hughes and Leslie Thorne are superb lawyers and a pleasure to work with. Top drawer.’

‘The Haynes and Boone team is extremely agile, and well-coordinated across jurisdictions, to seamlessly provide service throughout the United States.’

‘Leslie Thorne is a phenomenal strategist and extremely well-versed in litigation procedure and law to provide a full 360 degree assessment on issues that matter to business.’

Key clients

Panda Power Funds

Papalote Creek II, LLC

Southwest Power Pool, Inc.

South Texas Electric Cooperative, Inc. (STEC)

EDP Renewables North America, LLC

NextEra Energy

Tokai Carbon

Ormat Technologies

El Algodon Alto, LLC

RWE Renewables Americas, LLC

Work highlights

  • Representing Panda Power Funds against ERCOT, the Texas electricity grid operator, and several ERCOT current and former officers in a case of first impression with respect to Capacity, Demand and Reserves reports relied on for financing of three new gas-fired generating units, one of which is now in bankruptcy. The lawsuit alleges $2 billion in damages, and the case raises the issues of whether ERCOT is immune from suit and the Public Utility Commission of Texas has exclusive jurisdiction over these claims.
  • Counselling multiple clients, including Tokai Carbon, NextEra, EDP Renewables, and South Texas Electric Cooperative—in relation to mass tort litigation arising out of Winter Storm Uri in Texas in February 2021.
  • Representing Ormat’s subsidiary, Viridity Energy Solutions, a qualified scheduling entity (QSE), in commercial litigation arising out of ERCOT’s demand response programs, which permit customers to voluntarily reduce or modify their use of electricity in coordination with other market participants, or in response to price signals. The claim in this case relates to a counter-party’s failure to indemnify Viridity for charges assessed by ERCOT.

K&L Gates

K&L Gates acts as counsel in matters involving federal and state regulation of the electric power industry for a range of clients including traditional electric utilities to grid-edge developers in renewable generation, transmission and storage technologies. The team is regularly involved in FERC proceedings, including defending and challenging rulings on appeal in federal courts of appeals. Donald Kaplan focuses on litigation and representation before courts and administrative agencies, especially in matters related to energy and competition. Kimberly Frank‘s practice revolves around electric utility regulatory matters before FERC and state public utility commissions; she continues to advise renewable and grid-edge developers in negotiating complex regulatory requirements. Both lawyers mentioned are based in Washington DC.

Other key lawyers:

Donald Kaplan; Kimberly Frank; Ruta Skucas; Maria Faconti; Nathan Howe

Key clients

PPL Electric Utilities Corporation

Oklahoma Gas and Electric Company

El Paso Electric Rate 41 group

Morgan, Lewis & Bockius LLP

Morgan, Lewis & Bockius LLP is experienced both in energy regulation and litigation and fields a team of energy litigators on both US coasts, in Texas and in Chicago. The firm aims to help clients avoid litigation wherever possible, and excels at negotiations, settlements, and mediation, with matters ranging from small third-party subpoenas to high-stakes commercial and regulatory disputes. The team stands out in particular for its litigation work in the nuclear industry. Brad Fagg in Washington DC assists commercial clients with contractual and regulatory disputes, as well as government and internal investigations. Houston-based Michelle Pector represents energy clients in a range of business and consumer disputes, and injunction proceedings. In Los Angeles, James J. Dragna  acts for energy clients in environmental proceedings nationwide. John McGahren , situated in Princeton, counsels clients on litigation, and has served as a federal mediator for the District of New Jersey and as a state mediator for the New Jersey Supreme Court Civil Mediation Program. All individuals mentioned are all co-leads of the team.

Practice head(s):

Brad Fagg; Michelle Pector; James J. Dragna; John McGahren

Other key lawyers:

John Gisleson; Stephen Spina; Jared Wilkerson; Elise Attridge; Veronica Lew; Heidi Rasmussen

Key clients

Duke Energy

Franklin Electric Co. Inc.

Work highlights

  • Represented Duke Energy in obtaining an agreement from the federal government to pay the company $281 million in breach-of-contract damages for claims based upon the failure of the DOE to accept SNF for disposal from four Duke sites
  • Counseled Franklin Electric Co. Inc. and its Mexican subsidiary in a breach-of-contract suit involving important issues on cross-border parent-subsidiary liability and the validity of liquidated damages provisions under Mexican law.

Skadden, Arps, Slate, Meagher & Flom LLP

Skadden, Arps, Slate, Meagher & Flom LLP is well regarded for its work on high-profile M&A transactions involving utilities, and alongside this has longstanding experience defending companies in high-profile FERC enforcement actions and handling appeals from FERC decisions in the US Courts of Appeals. Will Barksdale represents electric power and natural gas market participants in investigations before FERC, including actions involving alleged violations of FERC’s anti-manipulation rule. Former practice head John Estes left the firm in October 2022. All lawyers mentioned are based in Washington DC.

Work highlights

    Troutman Pepper

    Troutman Pepper has longstanding experience advising clients in the electric power industry. The firm has a speciliased FERC practice and represents utilities before state public service commissions in a variety of proceedings. The team have diverse regulatory and legislative backgrounds, including experience within regulatory agencies and legislative bodies. Christopher Jones in Washington DC handles FERC proceedings for a range of large utilities, utility holding companies, and power project developers; he also has noteable appellate experience. Brandon Marzo leads the firm’s state regulation of utilities practice area and has worked on a number of matters involving new nuclear generation and renewable resources, while Amie Colby represents clients in the energy industry before FERC and has experience with vertically integrated utilities and transmission-related issues. Molly Jagannathan in Charlotte has significant experience both in state and federal courts, including corporate and commercial disputes related to contracts, construction litigation, and managing the discovery process in preparing witnesses to testify.

    Practice head(s):

    Amie Colby; Brandon Marzo; Chris Jones

    Other key lawyers:

    Molly Jagannathan

    Key clients

    Duke Energy

    Ameren Corporation

    Public Service Company of New Mexico (PNM)

    PacifiCorp

    Tucson Electric Power

    NV Energy

    Dominion Energy, Inc.

    LG&E and KU Energy

    National Hydropower Association

    Georgia Power