Commissioner James Danly Dissent Regarding GreenHat Energy, LLC, et al.

Commissioner James Danly Statement
November 5, 2021
Docket No. IN18-9-000 | Errata

In June of 2018, GreenHat Energy, LLC (GreenHat) defaulted on its obligation to make payments for Financial Transmission Rights (FTRs) that came due.  This was the largest default in the history of PJM’s FTR market, and it caused PJM’s members to suffer approximately $180 million in losses.  As I stated in my concurrence to the Order to Show Cause, PJM was roundly and justly criticized for its deficient collateral requirements and oversight of GreenHat that allowed this default to happen.[1]  While not the subject of the instant proceeding, we would do well to keep in mind the share of the blame that must rightly be assigned to PJM.

Given the magnitude of the default, the Commission was correct to launch an investigation of GreenHat and its owners (collectively, GreenHat).[2]  Following the conclusion of Enforcement’s investigation, we issued an Order to Show Cause, which I supported because I believed there was enough prima facie evidence to warrant a formal, open proceeding.  As I explained in my concurrence, there were a number of outstanding issues in the case presented by the Commission’s Office of Enforcement (Enforcement) that required resolution, amplification, clarity or evidentiary support.[3]  I also offered guidance to GreenHat and Enforcement as to what information I would have considered helpful when responding to the Order to Show Cause.[4] 

Having reviewed GreenHat’s answer and Enforcement’s reply, I remain deeply skeptical of GreenHat’s explanations.  But my skepticism is irrelevant.  It is not for GreenHat to prove its innocence—it is for Enforcement to prove its case to a preponderance of the evidence in order to make out a claim of market manipulation and for us to decide, based on that evidentiary showing, whether to assess a penalty of approximately $180 million and disgorgement of over $13 million.  To do any of that, we need proof.  And skepticism about GreenHat’s explanations is not proof.

Based on my review of the parties’ submissions, I conclude that Enforcement failed to provide the proof necessary to meet its burden.  I therefore dissent in full from today’s order assessing civil penalties.[5]  

Enforcement Failed to Meet Its Burden

Elements of Manipulation Claim and Evidentiary Burden

We begin with what is required to establish a market manipulation claim.  It must be shown by preponderance of the evidence that an entity: 

(1) use[d] a fraudulent device, scheme or artifice, or makes a material misrepresentation or a material omission as to which there is a duty to speak under a Commission-filed tariff, Commission order, rule or regulation, or engage[d] in any act, practice, or course of business that operates or would operate as a fraud or deceit upon any entity; (2) with the requisite scienter; (3) in connection with the purchase or sale of . . . electric energy . . . or transmission of electric energy subject to the jurisdiction of the Commission.[6]

“As the proponent of the Order to Show Cause, OE Staff bears the burden of proof, which is to say, the ultimate burden of persuasion.”[7]  The burden then “falls upon [GreenHat] to rebut the prima facie case established in the Staff Report: ‘[W]hen the party with the burden of persuasion establishes a prima facie case supported by ‘credible and credited evidence,’ it must either be rebutted or accepted as true.’”[8]

Because all elements of a manipulation claim must be demonstrated by a preponderance of the evidence, Enforcement bears the burden of proving the allegations against GreenHat.  GreenHat is not required to prove its innocence.

The Alleged Market Manipulation Scheme

According to the majority, GreenHat violated section 222(a) of the FPA[9] and the Commission’s Anti-Manipulation Rule[10] and section 1c.2 of the Commission’s regulations[11]

in four related but distinct ways, by:  (1) engaging in a manipulative scheme in PJM’s FTR market consisting of acquiring an FTR portfolio made up of primarily long-term FTRs with virtually no supporting, upfront capital, planning not to pay for losses at settlement, and obtaining cash for the individual Respondents by selling profitable FTRs to third parties at a discount; (2) purchasing FTRs based not on market considerations but to amass as many FTRs as possible with minimal collateral, thereby engaging in a course of conduct for the purpose of impairing, obstructing, or defeating a well-functioning market; (3) making false statements to PJM regarding money purportedly owed by Shell with the intent to convince PJM not to proceed with a planned margin call; and (4) submitting inflated bids into the PJM long-term FTR auction with the intent to artificially raise the clearing price of FTRs that Shell had purchased from GreenHat and offered for sale in the auction.[12] 

The majority also finds that GreenHat violated PJM Tariff Attachment Q, section Ia.B[13] and PJM’s Amended and Restated Operating Agreement, section 15.1.3.[14]

To arrive at a decision whether to issue a penalty assessment order, we need merely weigh the evidence proffered by Enforcement to support its claim against countervailing evidence.  Enforcement has failed to carry its burden of proving its claims to a preponderance of the evidence.

The First and Second Allegations

The crux of Enforcement’s first and second allegations is that GreenHat, LLC (GreenHat) developed a strategy of purchasing FTRs, it did so with the sole objective of maximizing its purchases of FTRs while minimizing its collateral obligations to PJM Interconnection, LLC (PJM), and without regard to the FTRs’ actual value, and it amassed an FTR portfolio with the intent of not paying when their obligations came due.  We are told that GreenHat then employed this strategy as part of a four-stage manipulative scheme described by Enforcement as a “bust out” scheme in which GreenHat purchased the FTRs to sell the “winners” and walk away from the “losers.”[15]  According to Enforcement, the four stages were: (1) amass a huge FTR portfolio based not on market fundamentals but on acquiring FTRs with virtually no upfront cash (Stage 1); (2) buy primarily long-term FTRs, which gave GreenHat ample time to try to sell the FTRs to third parties (Stage 2); (3) plan (as the totality of the evidence shows) not to pay for losses at settlement (Stage 3); and (4) obtain cash for the GreenHat owners by selling profitable FTRs to third parties at a discount (Stage 4).[16]

Enforcement’s theory is based largely on two sets of email correspondence: the Kevin Kelley email to the FERC Enforcement Hotline and Matt Arnold’s email correspondence with Paolo Dadone.[17]  There is nothing wrong with relying on such evidence to develop a manipulation claim.  However, these emails are corroborative at best and cannot form the primary basis for a manipulation finding.  In considering the probative value of the emails, their content, context and timing must not be overlooked.  Neither Kelley nor Arnold is an employee of GreenHat and neither set of email correspondence includes any emails to or from GreenHat.  Nor do either Kelley or Arnold assert that GreenHat told them it intended to engage in the scheme Enforcement alleges.  The timing of these emails also is significant.  Kelley’s email was sent two years after Kelley’s meeting with GreenHat.  Arnold’s email was sent after PJM’s threatened collateral call, and it does not provide a direct quotation or paraphrase of what GreenHat told him.

Having framed its story based on these emails, Enforcement then gathered evidence in an attempt to validate the inferences it had drawn.[18]  But the quantity and quality of evidence supporting Enforcement’s allegations is remarkably sparse, especially given the length and extent of Enforcement’s investigation and how high-profile a case this is.  Instead, Enforcement’s analysis is premised primarily on conclusory and unsubstantiated inferences from inferences.[19]

This lack of evidentiary support is due in part to the fact that Enforcement took no depositions of any of the key third-party actors mentioned in its report.  There are no depositions from either Kelley or Arnold, who are the authors of the emails that constitute the primary evidence for Enforcement’s first two allegations.  Nor are there any depositions of the key PJM and Shell employees associated with Enforcement’s allegations that GreenHat fraudulently induced PJM into accepting worthless collateral for its FTR holdings, which represents Enforcement’s third allegation, which I discuss below.[20] 

Not only are there no depositions of these people, but the record contains no notes or other evidence of the contents of the third-party interviews Enforcement conducted of these or other people.[21]  It does not matter why Enforcement decided not to gather or include evidence related to the third-party authors’ views of Enforcement’s inferences—all that matters is whether there is sufficient evidence to satisfy the required burden.  The point is that information such as this would have been invaluable to the Commission in evaluating Enforcement’s allegations.  Instead, we are left with only a handful of documents produced in discovery.  Enforcement asks us to accept certain inferences drawn from those documents that it claims reflect third party confirmation of its allegations.  But Enforcement provides the Commission with no evidence that the third-party witnesses in fact agree with its inferences.  It is our responsibility to review those documents to determine whether, in fact, they support Enforcement’s inferences.  And we should not excuse Enforcement’s failure to provide adequate support for those inferences when Enforcement, and Enforcement alone, chose not to put any such evidence in the record.

The lack of corroboration forces me to conclude that there simply is not evidence to find that Enforcement has proved the first two of its four allegations of manipulation, that GreenHat engaged in manipulation by:

(1) engaging in a manipulative scheme in PJM’s FTR market consisting of acquiring an FTR portfolio made up of primarily long-term FTRs with virtually no supporting, upfront capital, planning not to pay for losses at settlement, and obtaining cash for the individual Respondents by selling profitable FTRs to third parties at a discount; (2) purchasing FTRs based not on market considerations but to amass as many FTRs as possible with minimal collateral, thereby engaging in a course of conduct for the purpose of impairing, obstructing, or defeating a well-functioning market.[22]

In advancing these allegations, Enforcement has never come to grips with the fact that PJM itself assigned a positive value to GreenHat’s FTRs.  This is the reason why, from the very beginning, PJM allowed GreenHat to purchase such a large quantity of FTRs without requiring significant collateral.  And after PJM changed its valuation methodology, which then caused GreenHat’s FTRs to be assigned a negative value, GreenHat purchased additional FTRs assigned positive values by PJM, thereby assembling a new portfolio of FTRs with a (PJM-determined) positive value.  Thereafter, in an internal email, PJM itself dismissed complaints about GreenHat’s lack of collateral as follows:  “GreenHat is okay, they are making money.”[23] 

The importance of PJM’s valuations of the FTRs GreenHat purchased to our consideration of Enforcement’s allegations can be demonstrated by a simple hypothetical:  Suppose PJM’s valuations were accurate.  In such event, there could not have been any basis upon which to find manipulation for either of these first two charges because you cannot claim manipulation when a market participant successfully pursues and executes profitable trades that do not require them to post collateral.  Had PJM’s valuations been correct, the issue of posting collateral would never have arisen.  Of course, PJM’s valuations were wildly inaccurate, even when the initial valuations based on historical data were then supplemented with PROMOD results.  Regardless, if GreenHat actually agreed with PJM’s valuations, we could not conclude that its trading based on those valuations was intentionally fraudulent or manipulative. 

Enforcement has repeatedly batted away the importance of PJM’s valuation of the FTRs as if it is not significant or relevant.[24]  In fact, Enforcement’s only attempt to address the significance of PJM’s assessment of the valuations were the assertions in its Report[25] that there is no evidence GreenHat knew of the existence of PJM’s defense of its valuation contained in PJM’s Commission pleadings, that GreenHat could not have acted in reliance on PJM’s other statements because they were made after GreenHat had started purchasing FTRs, and that PJM did not purport to provide investment advice to FTR traders.[26]

Enforcement also asserts that no FTR trader could possibly agree with PJM’s valuations[27] and that the values GreenHat assigned to its FTRs were based on stale historic data that no one would seriously consider in valuing FTRs.[28]  But that is demonstrably incorrect.  These values were defended by PJM and the PJM Market Monitor (IMM).[29]

It matters not that, as Enforcement observes, PJM was not offering investment advice to FTR traders.  After noting what PJM was not trying to do with its valuations, Enforcement never considers the implications of what PJM was attempting to do.  PJM was attempting to derive the most accurate FTR values possible in order to determine the amount of collateral needed to trade FTRs thereby preventing defaults by FTR traders.  And Enforcement’s arguments about whether GreenHat was aware of PJM’s statements defending its values is no more germane.  The relevance of PJM’s valuations is that two sophisticated entities (indeed, the most sophisticated entities, PJM and the IMM) in possession of the best data and having the most familiarity with the PJM transmission system, and with the greatest possible incentive to get their FTR values right, both believed in the accuracy of the valuations of the FTRs GreenHat was purchasing.  That being the case, the Commission cannot conclude without further evidence that GreenHat could not have believed those valuations.  This is especially true, given that GreenHat must have been aware of PJM’s familiarity with its system and the purpose of the valuations, even if it was not specifically aware of PJM’s filings defending its numbers.  And as far as we are concerned, absent a determination that GreenHat did not believe in the validity of PJM’s values, we cannot find that GreenHat engaged in the manipulative scheme alleged by Enforcement.  Use of PJM’s Credit Calculator and the resulting consequences do not establish indicia of fraud as the majority contends.[30]

And here is where the lack of actual evidence presented by Enforcement is so frustrating.  Enforcement cites to a few isolated emails, presentations, and internal documents, but when these documents are viewed objectively and not with a lens that sees everything as incriminating, they do not—by their own terms—purport to say anything about what GreenHat believed or what it intended.  GreenHat makes a number of assertions on this score in its answer, but Enforcement’s claims are again unaccompanied by any compelling evidence.  If only we had deposition transcripts or further evidence from the third parties that originated these documents, we might have a better record upon which to reach a conclusion, but we do not.

In that regard, the documents cited by Enforcement are mixed.  True, in some of them GreenHat uses measures of value other than the ones developed by PJM when attempting to make sales.[31]  With respect to the sales of FTRs, it is not surprising that the prices for the sales of these FTRs would be based on market prices because the transactions were based on the assumption that Shell would resell the FTRs prior to the date PJM made payments to the FTR holders.  It also is not surprising that GreenHat would present measures of valuation that it knew its prospective customers relied upon when making a sales pitch.  This did not necessarily mean that GreenHat agreed with its purchasers’ valuations.  My conclusion in this regard is not baseless speculation.  The Commission’s Order cites to at least two communications from GreenHat to other traders in which GreenHat offered to engage in transactions using the values from GreenHat’s credit calculator, which was based on PJM’s FTR values.[32]  The Commission does not explain why GreenHat would have made such offers if no trader would ever accept the PJM values as valid.[33]

The Enforcement Staff Report also cites to evidence indicating that GreenHat transferred the proceeds from FTR sales from its account to its owners at the same time it was telling its counterparties to those transactions that it was making the sales to support its business activities or to purchase FTRs in the next annual auction.[34]  Enforcement also asserts that GreenHat knew that trading based on the PJM values would be unprofitable because of losses GreenHat incurred when purchasing FTRs in 2014.[35]  This evidence could potentially be corroborative of other more direct evidence but, standing alone, has relatively little probative value.

The bottom line is this: if Enforcement provides no direct evidence in support of its theory based upon documents and inferences drawn from third-party statements, each of which 1) do not purport to describe GreenHat’s state of mind and 2) are amenable to another equally plausible interpretation, Enforcement’s evidentiary showing is insufficient.  I recognize that a manipulation claim can be proven through inferences drawn solely from indirect evidence, but that does not mean that we must accept any inference Enforcement wants to draw regardless of its strength.  Enforcement’s allegations are nothing more than surmise based on after-the-fact documents unsupported by direct, corroborative evidence.  Nor can the weakness of these inferences be remedied—as the majority asserts—by reference to the “totality of the evidence.”[36]  Weak inferences do not become stronger when lumped with other weak inferences.  And appeals to the “totality of the evidence” effectively relieve Enforcement of its obligation to adduce some evidence in support of its theories.[37]  At some point we must require convincing, probative evidence, direct or indirect.  The fact is that the inferences drawn by Enforcement are not as credible as the simpler explanation—GreenHat relied upon a set of valuations that were themselves defended by PJM and the IMM.  Based on the record before us, Enforcement has failed to carry its burden by proving its allegations to the preponderance of the evidence. 

And when considering inferences, we also should consider the inference to be drawn from the failure of Enforcement to attempt to obtain or place into the record any direct evidence of the third-party witnesses’ views of the evidence it cites.  This is especially troubling because we know that Enforcement interviewed those witnesses but then placed no notes of the interviews in the record[38] and declined to conduct on-the-record depositions.  The majority is of course correct that Enforcement has “discretion in how to effectively and efficiently gather facts and obtain evidence.”[39]  But I simply cannot imagine a legitimate reason not to have taken these third-party witness depositions.  Certainly, the failure to do so cannot be credibly explained by Enforcement’s desire to gather evidence effectively and efficiently.

The Third Allegation

Enforcement’s third allegation is that GreenHat made false statements to PJM in order to induce PJM to enter into a collateral agreement.  That collateral agreement assigned GreenHat’s revenues from future FTR sales to Shell, which were purportedly worth about $62 million.  GreenHat asserts that it “genuinely understood that Shell owed it $62 million” and point to “the purchase price agreed to in FTR Center’s Price Field.”[40] 

(a)      The Commission should have deferred ruling on this allegation until after the Texas courts resolve GreenHat’s contract claim

The Commission has already engaged on this subject, to some degree.  On May 29, 2020, Shell filed a petition for a declaratory order requesting the Commission’s interpretation of PJM’s Tariff to “clarify whether the entry of price, volume, and other data regarding FTR bilateral transfers into PJM’s FTR Center automatically establishes stand-alone bilateral contracts at the stated price.”[41]  In its Declaratory Order, the Commission found “that entry of data about bilateral FTR trades into the FTR Center does not automatically establish stand-alone bilateral contracts at the stated price, absent a separate agreement by the parties to do so.”[42]  But the Commission “decline[d] to assert primary jurisdiction to resolve the dispute under Texas law as to whether Shell and GreenHat entered into separate contracts in which Shell agreed to pay a purchase price based on entries in the FTR Center, in addition to paying the Final Purchase Price specified in their three Agreements.”[43]

I agree that the mere fact that sales prices were entered into PJM’s FTR Center does not mean that Shell had created a contractual obligation to pay additional amounts at that price for the FTRs it had purchased from GreenHat.[44]  In my concurrence to the Order to Show Cause, I pointed out a procedural concern with Enforcement’s allegations, i.e., “in order to evaluate Enforcement’s allegation, we will need to evaluate the validity of GreenHat’s contract claim that Shell owed it $62 million,” and we had recently, in the Declaratory Order, stated that we would not address the merits of the contract claim but rather would defer to the Texas court.[45]  I reiterate that if in fact Shell did have such a contractual obligation, then we cannot find anything improper about GreenHat’s offer to pledge its rights to the $62 million owed by Shell as collateral.

Accordingly, I asked GreenHat and Enforcement to address whether we should reach a decision on this question before the Texas court’s decision.  Upon reading the answers from GreenHat and Enforcement, it is my view that the Commission was correct in declining to exercise primary jurisdiction on the contract claim.  I would, therefore, wait to until after the Texas court’s decision to determine whether the third allegation has merit.  But the majority, even after disclaiming primary jurisdiction on the question and deferring to the Texas court to address GreenHat’s contract claim,[46] nevertheless forges ahead to find a “lack of evidence of a valid agreement supporting the representations made to PJM.”[47]  This was in support of its position that “[i]t is those representations that give rise to the present enforcement action, over which we have exclusive jurisdiction.”[48]

(b)      The evidence on GreenHat’s contractual claim raises several unanswered questions

The majority’s determination that there is insufficient evidence of a valid agreement presents several unanswered questions.  Even though the mere entry of prices into the FTR Center alone does not create a contractual payment obligation, why did: (1) PJM accept a claim of a $62 million payment based on those values (if in fact it did); and (2) Shell continue negotiations over the amounts entered into the FTR Center?[49]  Enforcement does not provide an answer to these questions.  And to be fair, GreenHat raises the questions but also fails to provide satisfactory answers.

As in the case of Enforcement’s primary manipulation claims, depositions or other evidence from PJM and Shell witnesses would have been helpful.  In particular, I note that Enforcement states in its report that it interviewed an employee of Shell who informed Enforcement that he (the Shell employee) told a PJM representative that Shell did not owe GreenHat any further payments at the time PJM entered into the collateral agreement with GreenHat.[50]  I would have liked to know more about that conversation; depositions of both participants likely would have shed some light on the matter.

I note that Enforcement carefully worded its claim to allege that GreenHat made false statements to PJM, without making any allegations as to whether PJM was deceived by those statements.[51]  Yes, it is true that making a false statement can be found to be fraudulent even if no one was deceived.[52]  But I, for one, would be rather reluctant to fine GreenHat $179 million if it turned out that PJM actually understood the exact nature of the collateral offered by GreenHat and nevertheless accepted that collateral.  Were that the case, PJM would bear all the responsibility for GreenHat’s insufficient collateral.

I raise these questions, not only because they cast a shadow over the sufficiency of the evidence supporting Enforcement’s claim, but also to bring them to the attention of the court which will consider this matter de novo.

The Fourth Allegation

Enforcement’s final manipulation allegation is that GreenHat submitted inflated bids into the PJM long-term FTR auction with an intent to artificially raise the clearing price of FTRs that Shell had purchased from GreenHat and offered for sale in the auction.[53]  I find this to be the most troubling of all of the claims Enforcement has raised against GreenHat and, perhaps, with better evidence in the record, Enforcement could have successfully made out a credible manipulation claim on this issue.  I am somewhat skeptical of GreenHat’s explanation that it submitted all of its bids in the belief that it could resell them to Shell.[54]  But in the case of at least some of the sales, that is exactly what GreenHat did.[55] 

The problem is that the evidence supporting Enforcement’s allegation consists of no more than the prices of GreenHat’s bids, and, as with its other claims, Enforcement neither collected nor offered any corroborating evidence as to GreenHat’s intent.  GreenHat’s bids, and Enforcement’s suppositions based upon them, is insufficient evidence to prove Enforcement’s claims to a preponderance of the evidence.

GreenHat does not deny that it bid on FTR paths that it sold to Shell.[56]  And there are problems with GreenHat’s explanations.  I am skeptical of its claim that it did not have inside information based both on the structure of its agreements and on the fact that Shell sent GreenHat spreadsheets after each relevant long-term auction that reported how many of the FTRs included in that deal it had offered, how many cleared, and their market clearing prices.[57]

I am also not persuaded by GreenHat’s argument that because other market participants could not see its bids, it was unable to raise the prices.  For example, in the 2018/2021 Round One Auction, GreenHat submitted bids equal to or double Shell’s offered MWs on approximately 91% of the FTR paths that Shell purchased from GreenHat and then offered into the auction.[58]  Respondents used the Threshold Prices in the third bilateral agreement to submit bids into the 2018/2021 Round One Auctions that were 22.2% above Shell’s offers.[59]  Respondents admit that these bids were higher than approximately 82% of the offers that cleared in the auction for paths included in the third bilateral agreement.[60]

And while although the facts recited above look bad, and although they cast serious doubt on GreenHat’s explanations, skepticism is not proof.  Enforcement has again failed to meet its burden to a preponderance of the evidence regarding GreenHat’s intent because there is no evidence regarding intent.[61]

Tariff and Operating Agreement Violation Allegations

Enforcement’s final allegation is that GreenHat violated the PJM Tariff and Operating Agreement in two respects:  (1) In defaulting on its obligations to settle its FTRs, GreenHat violated tariff provisions obligating it to pay all bills arising in connection with the Operating Agreement; and (2) GreenHat made false certifications as to its valuations and risk management practices, and to the accuracy of its financial statements submitted to PJM.[62]

I view the additions of the tariff and operating agreement violations as simply stacking the litany of charges against GreenHat to see what ultimately sticks.  While we have authority to pursue these claims, I am unaware of any occasion in which the Commission has imposed penalties for a default on a payment obligation on the grounds that the default constitutes a tariff violation, nor do I believe that such a penalty would likely be appropriate.

Rather, we typically rely on our remedial authority pursuant to section 309 of the Federal Power Act[63] to make parties whole and payment defaults are not used as the predicate for enforcement actions.  These charges do not stand on their own, and I do not support them.

Joint and Several Liability for the Kittell Estate

GreenHat argues that the Commission lacks statutory authority to impose joint and several liability.[64]

It has become the Commission’s typical practice to impose joint and several liability when it seeks disgorgement[65] from multiple respondents.[66]  I agree that FPA section 309 gives us broad authority to, among other things, “perform any and all acts . . . as [we] may find necessary or appropriate to carry out the provisions of [the FPA],”[67] and I recognize that courts have interpreted this provision to give us wide latitude to fashion remedies as we deem appropriate.[68]

Here, however, the facts are somewhat different from the ordinary situation because the Commission is imposing joint and several liability not just on the living GreenHat employees, but also on an estate.  Even if the Commission met its prima facie case and has authority under the FPA to assess joint and several liability, Enforcement has not persuaded me that imposing joint and several liability on the Kittell Estate is appropriate here.  The Commission has not proposed to seek any penalties from the Kittell Estate, an implicit concession that it has no authority to do so.  But imposing joint and several liability, even “as a remedy only, not as an additional penalty,”[69] for disgorgement is nothing more than a back-door maneuver to penalize the Kittell Estate by making it liable for disgorgement of profits that went to the other respondents.  Moreover, since disgorgement is an equitable remedy, the equities should count.  It would be fundamentally unfair and improperly punitive to require an estate to disgorge funds that ended up in the hands of the other respondents.

I believe the correct course in this case would have been either not to name the Kittell Estate as a respondent or, failing that, to seek a specified amount in disgorgement traceable to Kittell’s alleged unjust enrichment.

Conclusion

I cannot support this Order.  Enforcement failed to meet its burden of proving prove its claims to a preponderance of the evidence.

For these reasons, I respectfully dissent.