David Doot, Joseph Fagan, James Blackburn and Patrick Gerity wrote an article published in Law360 entitled "Not So Fast, Ohio: FERC Weighs In On Wholesale Energy." The article discusses efforts by Ohio utilities, with the blessing of their state regulators, to enter into power purchase agreements (PPAs) that would increase revenues above the usual market revenues in order to maintain the economic viability and continued operation of certain of their affiliated (nuclear and coal-fired) power plants in Ohio. The utilities sought to avoid Federal Energy Regulatory Commission (FERC) approval of the PPAs by relying on a prior FERC waiver, but, in response to industry complaints, the FERC stepped in, explained that it would not allow the waiver to be applied here, and asserted its exclusive role in ensuring just and reasonable rates for wholesale sales of electric energy and capacity. The Ohio utilities are exploring alternatives to advance their goals (shared by Ohio) of providing above-market financial support to certain generators without invoking FERC’s jurisdiction. If these efforts are successful, other states may also seek to advance their public policy initiatives through similar creative mechanisms that impose higher costs on captive retail customers in the near term in ways designed not to avoid federal review. Such efforts are sure to be controversial and subject to regulatory and judicial challenges.
Bill Goddard was quoted in an article "Fed Looks To Tailor Bank-Focused Capital Rules To Insurers," in Law360. In the article, Goddard discusses the fears of some market participants that the Federal Reserve could impose bank-like regulations on the insurance industry. This would pose a challenge to insurers to change their accounting measures in order to report capital in the way that other companies do. Requiring insurance companies to measure their capital in the way that Governor Tarullo described in a speech on May 20th appears to recognize the differences in financial reporting at insurance companies, as well as the differences in their funding structures, Goddard believes. The Fed is researching using "the building block approach" for non-systemic companies that would allow groups to add up the regulatory capital they maintain at each of their operating units in order to give a picture of their total capital levels.
Harold Blinderman and Eric Jedrychowski wrote an article "New Regulations Increase Oversight of Conn. Dams," for The Connecticut Law Tribune. The article is about how Connecticut's dam owners face additional inspection and reporting obligations under revised dam safety regulations implemented by the Connecticut Department of Energy and Environmental Protection (DEEP) in February. While the Connecticut legislature has previously taken steps to require inspections of many dams classified as "high or significant hazard" in Connecticut, DEEP’s revised regulations impose new requirements on most owners and strengthen and clarify various existing regulatory provisions. Implementation of the new regulatory provisions marks the final step in a multiyear process to transfer responsibility for monitoring and inspecting Connecticut's dams from DEEP to dam owners.
Barbara Freedman Wand was featured in an article, "Retrospective: A Conversation with Departing PAC Chair Barbara Freedman Wand," in The Philanthropic Advisor Newsletter of The Boston Foundation.
Jim Rotondo and Jennifer Shukla wrote an article, "Conn. High Court Modifies Design Defect Standards," for Law360. The article is about the significance of the decision in Izzarelli v. R.J. Reynolds Tobacco Co., 321 Conn. 172 (2016) (officially released May 3, 2016) nicknamed by the media as the "Good Tobacco" litigation. With the decision, the Connecticut Supreme Court altered the legal landscape in Connecticut for design defect product liability claims. The authors describe the case as "Connecticut Supreme Court’s attempt at finding a middle ground in a national debate about the best standard to use in design defect product liability cases." The plaintiff sued R.J Reynolds for allegedly intentionally manipulating the additives and nicotine content in its Salem brand of cigarettes to make the cigarettes more addictive and consequently more carcinogenic and won the first trial. The case established that the modified consumer expectations test, which involves balancing several risk and utility factors and will generally require expert evidence, is the default and primary standard for design defect cases in Connecticut. The case fits squarely within a national trend of moving away from the ordinary consumer expectations test in design defect cases.
Dan Wenner wrote an article, "Dvorin And Prosecutorial Vindictiveness: A Hard Row To Hoe," for Law360.
On May 19, Paul Belval will moderate a webinar held by the American College of Investment Counsel (ACIC). The webinar, entitled "New Developments in Energy Project Finance," will examine topics such as midstream oil and gas investments, investing in distributed solar portfolios, market trends affecting electricity prices and federal and state regulatory developments.
Eric Fader authored a chapter in the 2016 edition of Westlaw's "Data Security and Privacy Law" treatise, published by Thomson Reuters. Mr. Fader edited the "Health Care Privacy and the Health Insurance Portability and Accountability Act of 1996" chapter of the treatise, as he has done since the 2014 edition.
Tom Havens and Jennifer Galiette wrote an article, "Could Community Microgrids Be More Than Just A Fad?," for Law360. Additional research for the article was done by Samantha Bishop, a student at UConn Law School, during an externship with Day Pitney.
Day Pitney Alert
Matt Shiroma and Dan FitzMaurice wrote an article, "Improving Arbitration by Borrowing from Recent Amendments to Rules of Litigation," for the ARIAS·U.S. Quarterly. The article discusses the recent amendments to the Federal Rules of Civil Procedure and considers whether adoption of the same amendments might improve reinsurance arbitration practice and procedure.
Susan Huntington was appointed to the Enterprise Risk Management Task Force of the American Health Lawyers Association.