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Prosecuting Energy Trading Fraud under the CEA

By Michael E. Clark
April 01, 2004

In the aftermath of Enron's collapse, attention turned to the accounting and other practices of energy companies. Numerous investigations and suits have been brought against traders and energy companies involved with supplying power to California and elsewhere during the 2000-2001 energy crisis. The government has focused on such practices as “round-trip trades,” in which energy companies entered into pre-arranged transactions, lacking market risk, to inflate reported trading volumes. Federal prosecutors in California and Texas have charged individuals with causing inaccurate or fictitious trades to be reported to trade journals.

In a speech last October entitled “Market Manipulation in the Energy Markets,” Commissioner Sharon Brown-Hruska of the Commodity Futures Trading Commission (CFTC) said the Commission was investigating 32 companies and their employees to determine whether they violated the Commodity Exchange Act (CEA) through wash trading, manipulation, and false reporting. She noted that the law views manipulation somewhat like an antitrust violation because “both require a showing of monopoly power in the relevant market and intentional anticompetitive conduct, and that proving these elements requires “a blend of both legal and economic analysis.”

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