"Such A Fact Pattern Does Not A $5 Million Penalty Make."

Or so says one dissenting FERC Commissioner in the recent Maxim Power enforcement proceeding.¹  On May 1, 2015, FERC issued an order assessing civil penalties (the "Order") of $5 million against Maxim Power Corporation and its named subsidiaries ("Maxim"),² as well as $50,000 against Maxim Energy Marketing Analyst, Kyle Mitton (together, the "Respondents"), for violating the Commission's Anti-Manipulation and Market Behavior rules.  The Commission did not order disgorgement of profits because the overpayments at issue in the matter were returned through ISO-NE tariff processes.  Nor did the Commission impose compliance obligations or other penalties.

The Commission's Order largely followed the facts and reasoning articulated by FERC Enforcement Staff ("Staff") in its Order to Show Cause and reply to Respondents' answer, which we have described in recent Clients and Friends Memos.³  The Commission found,⁴ with the exception of dissenting Commissioner Clark, that