By Ted Caddell

The Federal Energy Regulatory Commission on Friday ordered Richard and Kevin Gates and their associates to pay $34.5 million in penalties and disgorged profits in their high-profile market manipulation case. But the brothers say they will force FERC to collect in federal court, where a statute of limitations defense could reduce penalties.

“We’re going to fight, and we look forward to meeting them in court,” Kevin Gates said Saturday.

No Loophole

The commission’s order accepts the Office of Enforcement’s findings that the brothers’ Powhatan Energy Fund and trader Houlihan “Alan” Chen violated anti-manipulation rules by making riskless back-to-back up-to-congestion trades to profit on line-loss rebates (IN15-3). FERC Chairman Norman Bay, who oversaw the investigation in his previous role as Enforcement director, did not participate in the order.

“The fact that the PJM tariff does not explicitly prohibit round-trip UTC trades does not create a loophole or otherwise render respondents’ transactions lawful,” the commission wrote. “Respondents’ round-trip UTC transactions were deceptive and manipulative.”

The order seeks $29.8 million in civil penalties and $4.7 million in disgorgement of profits.

If the Gates brothers don’t pay up within 60 days, as they insist they won’t, FERC will have to file a complaint in U.S. District Court to force payment.

New Venue

That would give the brothers a new venue in which to argue their case that the trades were not riskless and thus not market manipulation. (See PJM UTC Case Likely Headed to Court After FERC Notice.)

The brothers also could benefit from the U.S. Supreme Court’s 2013 ruling in Gabelli v. Securities and Exchange Commission, which held that a five-year statute of limitations for the SEC to bring a civil suit seeking penalties for securities fraud begins when the alleged fraudulent activity occurs, not when it is discovered.

The court found that the “discovery rule,” which starts the statute of limitations when a victim learns he has been defrauded, did not apply when the government brings an enforcement action for civil penalties.

“The discovery rule exists in part to preserve the claims of victims who do not know they are injured,” the court ruled. “The SEC … is not like an individual victim who relies on apparent injury to learn of a wrong. Rather, a central ‘mission’ of the commission is to ‘investigat[e] potential violations of the federal securities laws.’”

Under the 60-day clock, the earliest FERC could file would be about July 29. If the Gabelli ruling were applied in the Powhatan case, that could mean that FERC could seek penalties and disgorgement for only the last few days of the months of questionable trades.

That would be an embarrassment for FERC, which seemingly left the investigation in limbo for almost two years.

Evolving Strategy

Chen, who conducted the trades in question, began trading UTCs in 2007, after leaving Merrill Lynch, where FERC said he studied UTCs as a tool for physical and financial transactions.

Initially, his trades were based on market fundamentals and models he developed using a “careful, low risk approach of what he called `directional bets,’” FERC said. Most bids were under 100 MW, and his profitability depended on favorable price spreads.

In October 2009, after discovering he was receiving line-loss rebates, Chen switched to a strategy designed to capture increased volumes of rebates, FERC said.

His strategy changed again after suffering a $176,000 loss on May 30, 2010, when one leg of a trade saw an unexpected price spike.

Following the loss, Chen switched to a round-trip trading strategy between the same two points (A-to-B, B-to-A) that FERC said made the underlying trades effectively riskless.

FERC is seeking penalties only for what it calls the “Manipulation Period,” from June 1, 2010 through August 3, 2010, when Chen stopped the trading after receiving a warning from PJM Market Monitor Joe Bowring.

Four-Year Investigation

FERC began investigating Chen and his partners the same month. Over the next three years, Chen and the Gates brothers responded to FERC data requests and sat for depositions while their lawyers sparred with FERC’s attorneys and provided affidavits from an economist and an attorney supporting their defense. Kevin Gates said he rejected FERC’s offer to enter settlement discussions.

In October 2011, FERC said a charging decision was “imminent,” according to William M. McSwain, attorney for the Gates brothers.

The commission took no further action, however, until almost two years later, in August 2013, when FERC staff delivered a 28-page “preliminary findings” letter summarizing why they thought Chen’s trades were improper. Attorneys for Chen and Gates rejected the arguments and reiterated their demand that FERC end the investigation.

FERC refused.

Frustrated, Kevin Gates began planning a publicity campaign to make the case that he and his partners had been unfairly hounded by FERC. On Jan. 30, 2014, President Obama nominated Bay to fill the seat of former FERC Chairman Jon Wellinghoff.

A month later, Gates went public, launching a website that included much of the correspondence between FERC and the investors’ attorneys and statements from academics, consultants and former FERC officials backing their defense. (See PJM Trader Calls FERC on Manipulation Probe.)

It wasn’t until last August that FERC staff issued a Notice of Alleged Violations against Gates and his partners, the commission’s first public acknowledgement of the investigation. The notice was filed the day after Bay was sworn in as a commissioner.