Commissioner James Danly Statement
July 15, 2021
Docket No. IN12-17-000
Item G-1
I concur with today’s order because I agree that the staff of the Office of Enforcement (OE Staff) has made out a prima facie case of manipulation. Having said that, the Respondents[1] have set forth facially plausible arguments to counter OE Staff’s claims regarding the alleged fraudulent scheme, and to demonstrate that Respondents lacked the necessary scienter. The Respondents’ arguments raise issues of material fact, and my fellow commissioners and I must keep an open mind and give serious consideration to the evidence presented both by OE Staff and the Respondents at the hearing.
Moreover, the Respondents have presented evidence that raises grave concerns as to the credibility of OE Staff’s witnesses. Witness credibility is, of course, best assessed at hearing by the trier of fact.[2] Given the Respondents’ allegations in this case, I expect the presiding Administrative Law Judge to carefully assess witness credibility at the hearing.
For these reasons, I respectfully concur.
[1] Total Gas & Power North America, Inc. (TGPNA), Total, S.A. (Total), Total Gas & Power, Ltd. (TGPL), Aaron Hall (Hall), and Therese Tran f/k/a Nguyen (Tran) (collectively, Respondents).
[2] See, e.g. Penasquitos Village, Inc. v. NLRB, 565 F.2d 1074, 1078-79 (9th Cir. 1977) (“Weight is given the administrative law judge’s determinations of credibility for the obvious reason that he or she sees the witnesses and hears them testify . . . . All aspects of the witness’s demeanor . . . may convince the observing trial judge that the witness is testifying truthfully or falsely.”) (internal quotations omitted); see also San Diego Gas & Elec. Co. v. Sellers of Energy & Ancillary Servs., 149 FERC ¶ 61,116, at P 49 (2014) (“With regard to the credibility of witnesses, and the amount of weight to be accorded to particular testimony or evidence, we note that as the trier of fact, the Presiding Judge had the opportunity to observe the witnesses’ live testimony and demeanor, and was thus in the best position to evaluate the witnesses’ credibility.”).