Practice Areas & Industries: Sutherland Asbill & Brennan LLP


Government Enforcement & Investigations Return to Practice Areas & Industries

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Practice/Industry Group Overview

Intimate knowledge of the energy and commodities markets uniquely qualifies Sutherland for government enforcement matters and internal investigations.

Leaders in energy law since the birth of the financial energy markets, Sutherland has guided clients through the sector’s globalization and regulatory evolution. We not only know the energy and commodities industries, we understand complex financial products. This enables us to anticipate regulatory obstacles for our clients—obstacles that we regularly help them overcome.

Sutherland attorneys assist energy industry clients in enforcement actions initiated by FERC, CFTC, CME/ICE (and other global exchanges and self-regulatory organizations) EPA, NERC, FTC, OFAC, DOI and U.S. Coast Guard, FCPA, and U.S. Customs Service. Our clients in these cases include major oil and gas companies, international oil companies, the commodity arms of large investment banks, trading companies, drillers and drill operators; mid-stream concerns including pipeline companies and refiners, natural gas distribution companies, power utilities and generators and various other energy entities. In each instance we bring a thorough familiarity with our client’s business and regulatory obligations, resolving cases reasonably and early and defending the client forcefully in adversary proceedings if needed.

The most effective way to deal with government investigation and enforcement issues is to avoid them in the first place. We regularly develop comprehensive compliance procedures to guide our clients in energy commodity and derivative trading, and we conduct training sessions and provide ongoing transactional advice. We undertake internal investigations to minimize the impact of potentially improper actions. And, we actively work with authorities in their rule-making processes to ensure businesses are not unduly encumbered by unnecessary or overly burdensome regulations. In cases where the regulators feel the need to act, Sutherland provides counsel and defense, specifically tailored to client needs. We are as comfortable dealing with EPA renewable fuel program fraud as we are defending a market manipulation investigation by FERC or CFTC. Our focus is to quickly and cleanly secure the optimal outcome so that our client can get back to business.

Why Sutherland
Energy and agriculture. We understand the energy and commodities businesses and the global marketplace in which our clients operate. We focus on practical, commercially attractive solutions to issues that arise.

Depth. Because globalization has changed the nature of energy markets, the legal needs of our clients changed as well. Sutherland’s Government Enforcement and Investigations team relies on lawyers throughout the firm with specific relevant experience. In addition to our own knowledge of the rules and regulations, we draw on the insights of our maritime, tax and financial practices to resolve matters at the state, federal and international level.

Derivatives. The expansion of the markets has created a need for evermore complex financial instruments. We have spent years addressing energy and commodity derivatives issues. Sutherland regularly engages in derivatives contracting and documentation. We understand both the regulatory and tax issues involved. And when conflict resolution is necessary, we approach from a business-friendly angle.

Pre-globalization perspective. Sutherland's attorneys were involved in all aspects of the market before the market globalized. We had experience in energy and commodities, we knew maritime and tax law and we understood environmental and compliance regulations. When the market brought all of these areas together, the foundations of our practice were already in place.

Compliance acumen. We know the ins and outs of market manipulation rules and trade practice requirements. Sutherland’s attorneys are adept at dealing with international sanctions and antiboycott regulations. We also understand anti-money laundering requirements as well as antitrust laws. Moreover, we offer training to our clients to ensure that compliance is built into their business practices.

Nuts and Bolts
On petroleum issues, we regularly:

  • Develop comprehensive compliance procedures
  • Represent clients before the Commodity Futures Trading Commission and the Federal Trade Commission
  • Actively participate in CFTC rulemaking
  • Design, negotiate and document OTC energy derivatives transactions
  • Design comprehensive oil spill risk management programs
  • Advise clients on the legal and public relations consequences of oil spills
  • Perform environmental risk assessments
  • Counsel clients regarding the EPA audits and enforcement actions
  • Represent petroleum refiners and importers on environmental policy matters
  • Represent international trading companies in customs, trade and trade sanctions matters
  • Represent clients before both FERC and the U.S. Courts of Appeals
  • Advise clients on compliance with the Interstate Commerce Act and the Outer Continental Shelf Lands Act requirements
  • Guide clients regarding the applicability of new MMS open access and nondiscriminatory requirements
  • Represent shipper groups in proceedings at FERC
  • Advise clients regarding FERC ratemaking issues

On natural gas issues, we regularly:

  • Conduct internal investigations and FERC compliance reviews
  • Represent clients in enforcement matters before FERC and CFTC
  • Design and implement FERC and CFTC compliance plans, conduct training sessions and provide ongoing transactional advice

In electric power, our attorneys regularly:

  • Represent power marketers, generators and electric utilities in FERC audits and conduct mock audits and internal compliance reviews.
  • Conduct compliance training for legal, operations and trading personnel.
  • Represent power marketers and generators in FERC investigations into market manipulation.
  • Litigate proceedings involving horizontal market power issues and affiliate transactions.
  • Defend independent power producer and power marketer clients in Federal Power Act Section 206 complaints.
  • Advise on compliance with North American Electric Reliability Corporation (NERC) requirements.

In renewables, biofuels and emission allowance, Sutherland's lawyers:

  • Advise clients on rules about trading renewable energy certificates (RECs), offset credits, renewable identification numbers for renewable fuels and emissions allowances
  • Develop compliance plans related to tracking and reporting energy transactions under the California Air Resources Board CARB greenhouse gas rules

In agricultural commodities, our team:

  • Represents clients in International Cotton Association (ICA) arbitrations
  • Defends clients in CFTC investigations
  • Represent clients in IntercontinentialExchange (ICE) enforcement investigations

Take Action
Sutherland’s diverse experience in energy and commodity trading gives clients access to a uniquely interdisciplinary approach to government enforcement and investigation matters.

Selected Experience
Sutherland conducts internal investigation into shale gas trading losses for asset management company.
Trading losses prompted an asset management company to engage Sutherland to conduct an internal investigation.

Sutherland defends hedge fund in CFTC and FERC investigation.
Sutherland represented a major hedge fund in an investigation by regulators into natural gas market manipulations.

Sutherland represents oil entity in EPA reformulated gasoline enforcement proceeding.
Sutherland represented an oil entity in an enforcement proceeding concerning EPA’s reformulated gasoline program.