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Barclays to fight $453 million power fine in US court

Wednesday, 17 Jul 2013 | 6:49 AM ET
Adam Jeffery | CNBC

Barclays will contest a record $453 million (297.86 million pounds) fine imposed by a U.S. energy regulator against the British bank and four of its power traders, setting up a likely federal court battle.

The fines, which were upheld by the Federal Energy Regulatory Commission (FERC) on Tuesday, confirm the top U.S. energy cop will pursue its most ambitious market manipulation case to date.

For Barclays, the sanction is the latest of a series of scandals that include a $450 million fine by U.S. and UK regulators for rigging global benchmark interest rates last year. But unlike its settlement over Libor (London Interbank Offered Rate), where the bank accepted wrongdoing, it has fought the FERC allegations from the start.

FERC first proposed the fines in October 2012 over alleged manipulation of Californian and other western power markets by the British bank in the last decade.

Tuesday's ruling said FERC commissioners agreed with earlier findings by regulatory staff, which said the bank deliberately lost money in physical power markets to benefit its financial positions between 2006 and 2008, and that the Barclays traders knew their activity was unlawful.

(Read More: Barclays CEO: We Aren't at Odds With Regulators)

"FERC finds that their actions demonstrate an affirmative, coordinated and intentional effort to carry out a manipulative scheme, in violation of the Federal Power Act and FERC's Anti-Manipulation Rule," the regulator said in a statement.

The case will likely now move to a federal court.

"We have cooperated fully with the FERC investigation, which relates to trading activity that occurred several years ago," Barclays spokesman Marc Hazelton said in a statement on Tuesday. "We intend to vigorously defend this matter."

Barclays Chief Executive Antony Jenkins, who took the helm last year, is trying to rebuild the bank's battered reputation and repair testy relationships with regulators.

One of his first moves was to tackle the investment banking business criticized for a free-wheeling culture and accused of paying staff too much.

(Read More: Barclays Pulled Into US Money Laundering Investigation)

Jenkins said in April he wanted his bank "to become a model of constructive engagement with regulators", but has admitted turning the bank around could take at least five years.

Barclays shares were down 0.7 percent at 306.1 pence by 1004 GMT, in line with a slightly lower European banking index.

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Test of powers

The U.S. case is expected to be a major test of FERC's enforcement powers, expanded by Congress in 2005 legislation that had its genesis in the Enron electricity manipulation scandals in the western United States earlier in the decade.

Ron Wyden, the chairman of the Senate's Energy and Natural Resources Committee, said FERC sent a strong message to traders and banks.

"Consumers have the right to heat and power their homes without fear that traders are stacking the deck against them to rack up unjust profits," Wyden said in a release.

The FERC order said the bank must pay $435 million within 30 days, while the managing director of the power trading team, Scott Connelly, must pay $15 million. FERC also ordered Barclays disgorge $34.9 million in "unjust profits" and interest.

FERC said three other traders involved in the scheme must pay fines of $1 million each.

(Read More: Barclays Urged to Pay Bankers 'Realistically')

A former FERC enforcement director said that if Barclays refuses to pay the fine, agency staff will likely file an action in a U.S. District Court.

It would be the first time an energy market manipulation case from FERC would be considered in such a venue, said Susan Court, FERC's director of enforcement from 2005 to 2009.

The court "can make its own findings of fact and conclusions of law, and craft a remedy that it sees fit," said Court, who is now a principal at SJC Energy Consultants, LLC.

Since 2005, FERC has increased its enforcement division's staff to more than 200 from about a dozen, led by a number of high-profile law enforcement recruits.

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