The judge in Energy Harbor’s bankruptcy case has hit the brakes on approving millions of dollars in fees and expenses for the utility’s outside law firms and consultants after learning of the federal racketeering case against former Ohio House Speaker Larry Householder.
Judge Alan Koschik said he’d been prepared to approve remaining interim fees and expenses for nineteen firms at the July 21 court hearing, according to a transcript reviewed by the Energy and Policy Institute.
The judge had also been prepared to grant allowances for the total final fees and expenses incurred by the firms over the course of the multi-year bankruptcy case, much of which have already been paid for, including nearly $68 million for the utility’s bankruptcy counsel and lobbying firm Akin Gump Strauss Hauer & Feld, and $2.4 million for the public relations firm Sitrick & Company.
Energy Harbor is the new name for the company formerly known as FirstEnergy Solutions (FES), which had been a subsidiary of FirstEnergy Corp. until it emerged from bankruptcy at the end of February. Both Akin Gump and Sitrick & Company were involved in last year’s successful campaign by FES to pass House Bill 6. The new law benefits Energy Harbor by providing long sought subsidies to the Davis-Besse and Perry nuclear plants, and what environmentalists call a “stealth bailout” of the coal-fired Sammis power plant, as well as rolling back Ohio’s renewable energy and energy efficiency standards for electric utilities.
Instead of approving the fees and expenses, Koschick read aloud excerpts from a Cleveland.com article by Jeremy Pelzer, with the headline “House Speaker Larry Householder arrested in $60 million bribery case related to HB6 nuclear bailout,” that was handed to him shortly before the hearing began.
“The investigation centers on House Bill 6, the one billion dollar plus rate payer bailout of two Ohio nuclear power plants owned by FirstEnergy Solutions, now Energy Harbor, that Householder helped push through last year, with the help of millions in dark money, according to the Toledo Blade,” he read.
“Former Ohio Republican Party Chair turned consultant, Matt Borges, prominent lobbyist, Neil Clark, FirstEnergy Solutions lobbyist Juan Cespedes and Householder aid Jeff Longstreth, all are currently in custody, according to a source,” he continued.
Koschick announced at the hearing “that this may not be the right day to finally approve fees and expenses relating to what was the FirstEnergy Solutions case, now Energy Harbor.”
Koschick and a representative for the U.S. Trustee said they would contact the U.S. Attorney’s office to learn more about the federal criminal investigation, and consult with prosecutors on how to deal with the final payments to Energy Harbor’s outside firms.
The judge did not accuse any of the firms of any wrongdoing, and admitted to being in the dark on the allegations. None of the firms have been publicly named or charged by federal investigators, who say their investigation is ongoing.
“I also don’t know what’s going on, and there’s reference to dark money, right,” Koschick said. “So is there some… problem not only with the — you know, certain professionals may be involved in something, or is there simply an issue of the money that the company has — I don’t know.”
A federal affidavit and indictment in the racketeering case allege that Householder and the other “conspirators” engaged in what amounted to “money laundering” by using various front groups and companies to hide how they used FirstEnergy’s secret funding for personal and political gain.
Documents link lobbyist Juan Cespedes, an indictee in federal racketeering case, to a number of outside firms involved in FES’s bailout campaigns
Searches of the final applications for compensation filed by Energy Harbor’s outside firms and other records filed in the bankruptcy case linked a number of the firms to indicted lobbyist Juan Cespedes, who federal prosecutors say served as a key “middleman” between FirstEnergy and what they call Householder’s “Enterprise.”
The “Enterprise” used millions of dollars of funding from FirstEnergy to elect Larry Householder as Ohio House Speaker, pass HB 6, and then block a voter referendum that threatened to overturn the new law from reaching the ballot in 2020.
Below is an overview of the total and fees so far reported for the outside firms* employed by Energy Harbor that were involved in the then-bankrupt utility’s bailout campaigns in Ohio and in neighboring Pennsylvania. A more detailed analysis of Akin Gump’s involvement and communications with Cespedes and another defendant, Matthew Borges, follows.*
*Note: While Akin Gump and Sitrick & Company filed detailed final applications for compensation that still need to be approved by the bankruptcy court, most of other outside firms listed below – including Cespedes’ Oxley Group – were subject to fewer reporting requirements because they were treated as “Ordinary Course Professionals,” whose total payments through December 2019 were reported to court back in February.
Akin Gump Strauss Hauer & Feld:$67,928,742.74 as counsel for FES in bankruptcy case and external affairs work
The application discloses many details about Akin Gump’s work for FES on state government affairs, including the firm’s work related to the 2018 midterm elections and Ohio House speaker’s race that propelled Larry Householder to power. It also describes Akin Gump’s work on last year’s campaigns to pass House Bill 6 and defeat a referendum petition campaign that sought to give voters the opportunity to overturn the new law at the ballot box in 2020.
A declaration signed by Cespedes said that his lobbying firm, the Oxley Firm, was initially retained by Akin Gump and then by the FirstEnergy Service Company to render government affairs services for FES.
Akin Gump also disclosed many mentions of communications and meetings between its political team and defendant Juan Cespedes and his firm the Oxley Group. The Energy and Policy Institute has annotated a copy of the Akin Gump’s application, which can be found here, and more information can be found below.
One example is a $960 “Dinner with clients” at Teddy and the Bully Bar in Washington, D.C. in June 2018 disclosed by Akin Gump lobbyist Jame R. Tucker. Members of Akin Gump’s political team met with Cespedes, employees of FES, and some of the other outside consulting firms described below, including Sitrick & Company, the Dewey Square Group, and Ridge Policy Group.
In June of 2019, the Energy and Policy Institute asked Sitrick & Company to comment on why FES employees appeared in Generation Now’s ads supporting HB 6, and if FES was funding the group. The PR firm acknowledged the request, but never answered the questions.
Zeiger, Tigges, & Little LLP: $551,192.17 to defend HB 6 subsidies as a “tax” that could not be overturned by a voter referendum
FES retained the law firm Zeiger, Tigges, & Little LLP to provide “litigation advice and, if necessary, litigation services regarding pending legislation” in June of 2019, about a month before HB 6 was passed and signed into law by Governor Dewine. Attorney John Zeiger sent a letter to the Ohio Secretary of State after the bill passed which argued that the HB 6 subsidies amounted to a tax that could not be challenged via a voter referendum, though, in that communication, he did not disclose FES as his client. Zeiger later sent a letter to the Ohio Attorney General that disclosed FES as his client, and filed a lawsuit with the Ohio Supreme Court on behalf of FES that made the same argument.
In September of 2019, Sitrick & Company emailed a copy of Zieger’s lawsuit and a related statement from FES to the Energy and Policy Institute. The email was in response to an inquiry from the Energy and Policy Institute seeking information about why FES employees appeared in controversial ads paid for by Ohioans for Energy Security. Federal investigators later described Ohioans for Energy Security as a “Front Company” that used millions of dollars from Householder’s FirstEnergy-backed “Enterprise” to block a voter referendum challenging HB 6 from reaching the ballot in 2020. Sitrick & Company never provided an on the record answer to the question of why FES employees appeared in Ohioans for Energy Security.
SRA Communications: $653,660.66 to support Nuclear Powers Pennsylvania
SRA Communications was retained by the FirstEnergy Service Company in July 2018 to render services to FES, including “coalition services alongside Nuclear Powers Pennsylvania,” a pro-nuclear bailout coalition backed by FES and Exelon.
The Oxley Group: $293,765.42 for lobbying in Ohio (plus $600,000 from Householder’s Enterprise)
Charles Jones, the CEO of FirstEnergy Corp., claimed last year that FES was basically a separate company and has recently sought to downplay the role the parent company played in “running external affairs” for its subsidiary FES during the bankruptcy case and debate over HB 6. The Service Company that retained Cespedes and the Oxley Group on behalf of FES is led by FirstEnergy Corp.’s executive team, with Jones at the helm.
The affidavit and indictment in the federal racketeering case describe Cespedes as a key “middleman” in the scheme who in 2019 received $227,000 from FirstEnergy and $600,000 from Householder’s Enterprise, which was itself backed by FirstEnergy. More on the information disclosed about Cespedes and the Oxley Group in FES’s bankruptcy case can be found below.
“Ridge” was listed as a participant in “discussions with External Affairs Working Group” in July 2018 that also included FES, Akin Gump, and the Oxley Group. The discussion was disclosed in a timesheet filed by Marsal & Alvarez, a financial advisor to FES.
Van Meter, Ashbrook & Associates: $90,000.00 for government affairs consulting
Marsal & Alvarez (final total fees and expenses N/A)
FES’s financial advisor during the bankruptcy case has not filed a final application for compensation in FES’s bankruptcy case, but monthly applications filed by the firm include some mentions of the Oxley Group, as noted above, and make clear that its fees and expenses totaled in the millions of dollars.
An expense summary for Dave Jurgens, a senior director with Alvarez & Marsal, places Juan Cespedes of the Oxley Group and others from FES (including lobbyist David Griffing and CEO John Judge), Akin Gump, and Alvarez & Marsal at a $2,700.32 “Out of town Client dinner” on November 19, 2019.
FES also faced claims that its nuclear plants in Ohio were in fact profitable as it lobbied for HB 6 in 2019. Charles Moore of Alvarez & Marsal, who served as FES’s chief restructuring officer, testified at an Ohio Senate hearing on HB 6 last June, where he argued that the plants were “unprofitable” and would be closed without legislative support.
Sworn declarations signed by Juan Cespedes
Initial and supplemental Declarations signed by Cespedes as truthful under penalty of perjury and filed in FES’s bankrupcy case show that the Oxley Group was initially retained by Akin Gump to render services to FES in March and April 2018. Cespedes and the Oxley Group were then “employed by non-debtor affiliate FirstEnergy Service Company… to render services to debtor FirstEnergy Solutions Corp… in the ordinary course of business.”
The declarations included no explicit mention of Householder, Generation Now, or any of the other defendants in the federal racketeering case, but rather described in general terms the government affairs services the Oxley Group would provide to FES as follows:
The Firm, through me, and other members, partners, associates, or employees of the firm has provided the following services to FES from and after the petition date:
Facilitate meetings with Ohio Legislators and other interested parties on behalf of FES
Advocate on behalf of FES to all stakeholders in the Ohio Legislature and Executive Branches of State Government
Participate in the process of selecting a proposed solution to market to the current General Assembly and Governor’s Office
The federal affidavit filed in the racketeering case in July 2020 describes records obtained by the FBI that show how FES entered into a contract with the Oxley Group in June 2018 to provide services that included assisting the bankrupt utility in “attaining necessary funding through government action to allow for the financial stability/sustainability of its two nuclear plants.”
There are two primary reasons for the increase in the Firm’s monthly fee: (i.) the Firm is entering a new stage in its work for FES and is transitioning from strategy development to execution of the strategy, which will require the firm to dedicate more hours to its work for FES and (ii) FES has eliminated government consulting services from certain other professionals, which will increase the workload on the firm.
What about that $600,000 Cespedes received from Householder’s Firstenergy-backed “Enterprise”?
In January 2020, FES filed a statement with the bankruptcy court listing the amounts it paid to the Oxley Group and other “Professionals Utilized in the Ordinary Course of Business” for post- bankruptcy petition fees and expenses between April 2018 and December 2019. During the time period, the Oxley Group was paid over $290,000. The federal affidavit in the racketeering case described $227,000 Cespedes received from FirstEnergy in 2019 alone, and $600,000 from Householder’s Enterprise.
The $600,000 Cespedes received from the Enterprise in 2019 is not accounted for in the statement filed with the bankruptcy court by FES.
“The $600,000 paid to Cespedes was passed through the 17 Consulting Group bank account, which was funded exclusively by Generation Now,” according to the federal affidavit from the racketeering case, which alleges that the vast majority of Generation Now’s funding came from FirstEnergy.
Monthly invoices disclosed details about the role Akin Gump’s political team played in FES’s bailout strategy, and the firm’s coordination with Juan Cespedes
Akin Gump’s final application for compensation includes copies of monthly invoices filed earlier in the bankruptcy case, which detail the daily work of the firm’s employees for FES over a nearly two-year period. The degree of detail in the daily work logs varies. Akin Gump attorneys reviewed the monthly invoices to “remove privileged information and to ensure accuracy and compliance” with the bankruptcy court’s orders and rules, as well as U.S. Trustee guidelines.
One invoice entry for April 10, 2018, described lobbyist Sean G. D’Arcy’s review of a “Dispatch piece on Speaker’s race and investigation, and compliance issues…” A few days earlier, the Columbus Dispatch published a story by Jim Siegel on Larry Householder’s bid to return to the speakership, fourteen years after he left the position while under an earlier ethics investigation. Householder was never formally charged in that earlier case.
Seigel noted some were “nervous that he may bring back scandal to the Statehouse — and the FBI is better-prepared to deal with it this time.”
Another entry from April 10 of that same year disclosed Akin Gump lobbyist Jamie R. Tucker’s work on “Emails re: Speaker resignation and impact on strategy…”
On that same day, another Akin Gump lobbyist named Geoffrey Verhoff had a call with “J. Oxley” regarding “OH Speaker resignation…”
A federal affidavit later described the April 2018 resignation of Ohio House Speaker Cliff Rosenberger as a key turning point in Householder’s campaign to regain the speakship, which was secretly fueled by FirstEnergy’s money, and the utility’s campaign to secure bailouts for its nuclear plants.
Akin Gump lobbyists communications with Cespedes overlap with some events described in the federal racketeering case
The federal affidavit in the racketeering case includes text messages from June 14, 2019 between Cespedes and Longstreth regarding a $15 million budget for Generation Now’s House Bill 6 campaign. On that same day, an Akin Gump invoice shows Verhoff participated in a daily conference call with Akin Gump’s “client” (FES) and the “Ohio team,” and did “follow up with Oxley and Josh re Ohio issues…”
On June 27, 2019, Cespedes and Longstreth communicated about hiring “all the good” signature gathering firms to defend against a possible petition campaign and voter referendum on HB 6, according to the federal affidavit. Akin Gump’s invoice shows Verhoff participated in another “Ohio team” call with FES on that day, and had a follow-up “call with J. Cespedes and Josh re: state issues…”
Akin Gump lobbyists who worked for FES also met with Matthew Borges in 2018, another indictee in the federal racketeering case
The federal investigation is focused on Borges’ later involvement in the 2019 campaign to block a voter referendum on HB 6 from reaching the ballot.
“Potential political action committee issues” and “compliance issues” flagged in Akin Gump’s FES invoices
The federal affidavit and indictment in the Householder case described how Generation Now used FirstEnergy’s money to fund an ad blitz by a “PAC” (which has been identified as the Growth & Opportunity PAC) in support of pro-Householder candidates for the Ohio House during April and May of 2018.
Akin Gump’s monthly invoice for May 2018 included no explicit mentions of Generation Now or the Growth & Opportunity PAC, but the invoice did disclose multiple communications regarding “potential political action committee issues” and “PAC Issues.” It also described “Comms with Oxley group re status of OH Speakers’ election…”
After a May 23 call “re compliance issues for OH,” Verhoff did “follow up with Juan re same…”
Following another call “re PAC,” an Akin Gump lobbyist did research on “Federal Election Commission regulations and advisory opinions applicable to affiliated entities…”
The Energy and Policy Institute later contacted Tom Mulligan, an FES spokesperson at Sitrick & Company, via email for comment on the PAC issues identified in the invoices.
“We’re not going to comment beyond Akin’s public filings,” Mulligan responded.
On that same day, the Growth & Opportunity PAC began to file paperwork for a new round of political ads targeting state legislative primaries.
“During the 2020 primary election, Householder’s Enterprise laundered over $1,000,000 from Generation Now to PAC, via Coalition, to pay for media buys in PAC’s name to help elect candidates supported by Householder,” according to the affidavit in the federal racketeering case.
Akin Gump helped launch the Ohio Clean Energy Alliance, whose spokesperson also formed a “front company” described in the federal investigation
Akin Gump also took credit for its role in the launch of the Ohio Clean Energy Jobs Alliance (OCEJA), a coalition “powered by FirstEnergy Solutions” that backed HB 6, in its final application for compensation in the bankruptcy case. OCEJA spokesperson Carlo LoParo of LoParo Public Relations also formed Ohioans for Energy Security, the “front company” described in the federal investigation as the recipient of $23 million used to oppose the ballot campaign that threatened to repeal House Bill 6.
Image from the federal affidavit of one of Ohioans for Energy postcard that was part of a scare campaign to block a voter referendum on HB 6 from reaching the ballot in 2020.
More evidence of the FirstEnergy Service Company’s role
