16 U.S.C. § 825d

Officials dealing in securities

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(a) Benefits; making or declaring dividends out of capital account

It shall be unlawful for any officer or director of any public utility to receive for his own benefit, directly or indirectly, any money or thing of value in respect of the negotiation, hypothecation, or sale by such public utility of any security issued or to be issued by such public utility, or to share in any of the proceeds thereof, or to participate in the making or paying of any dividends of such public utility from any funds properly included in capital account.

(b) Interlocking directorates(1) In general

After 6 months from August 26, 1935, it shall be unlawful for any person to hold the position of officer or director of more than one public utility or to hold the position of officer or director of a public utility and the position of officer or director of any bank, trust company, banking association, or firm that is authorized by law to underwrite or participate in the marketing of securities of a public utility, or officer or director of any company supplying electrical equipment to such public utility, unless the holding of such positions shall have been authorized by order of the Commission, upon due showing in form and manner prescribed by the Commission, that neither public nor private interests will be adversely affected thereby. The Commission shall not grant any such authorization in respect of such positions held on August 26, 1935, unless application for such authorization is filed with the Commission within sixty days after that date.

(2) Applicability(A) In generalIn the circumstances described in subparagraph (B), paragraph (1) shall not apply to a person that holds or proposes to hold the positions of—(i) officer or director of a public utility; and(ii) officer or director of a bank, trust company, banking association, or firm authorized by law to underwrite or participate in the marketing of securities of a public utility.(B) CircumstancesThe circumstances described in this subparagraph are that—(i) a person described in subparagraph (A) does not participate in any deliberations or decisions of the public utility regarding the selection of a bank, trust company, banking association, or firm to underwrite or participate in the marketing of securities of the public utility, if the person serves as an officer or director of a bank, trust company, banking association, or firm that is under consideration in the deliberation process;(ii) the bank, trust company, banking association, or firm of which the person is an officer or director does not engage in the underwriting of, or participate in the marketing of, securities of the public utility of which the person holds the position of officer or director;(iii) the public utility for which the person serves or proposes to serve as an officer or director selects underwriters by competitive procedures; or(iv) the issuance of securities of the public utility for which the person serves or proposes to serve as an officer or director has been approved by all Federal and State regulatory agencies having jurisdiction over the issuance.(c) Statement of prior positions; definitions(1) On or before April 30 of each year, any person, who, during the calendar year preceding the filing date under this subsection, was an officer or director of a public utility and who held, during such calendar year, the position of officer, director, partner, appointee, or representative of any other entity listed in paragraph (2) shall file with the Commission, in such form and manner as the Commission shall by rule prescribe, a written statement concerning such positions held by such person. Such statement shall be available to the public.(2) The entities listed for purposes of paragraph (1) are as follows—(A) any investment bank, bank holding company, foreign bank or subsidiary thereof doing business in the United States, insurance company, or any other organization primarily engaged in the business of providing financial services or credit, a mutual savings bank, or a savings and loan association;(B) any company, firm, or organization which is authorized by law to underwrite or participate in the marketing of securities of a public utility;(C) any company, firm, or organization which produces or supplies electrical equipment or coal, natural gas, oil, nuclear fuel, or other fuel, for the use of any public utility;(D) any company, firm, or organization which during any one of the 3 calendar years immediately preceding the filing date was one of the 20 purchasers of electric energy which purchased (for purposes other than for resale) one of the 20 largest annual amounts of electric energy sold by such public utility (or by any public utility which is part of the same holding company system) during any one of such three calendar years;(E) any entity referred to in subsection (b); and(F) any company, firm, or organization which is controlled by any company, firm, or organization referred to in this paragraph.On or before January 31 of each calendar year, each public utility shall publish a list, pursuant to rules prescribed by the Commission, of the purchasers to which subparagraph (D) applies, for purposes of any filing under paragraph (1) of such calendar year.(3) For purposes of this subsection—(A) The term “public utility” includes any company which is a part of a holding company system which includes a registered holding company, unless no company in such system is an electric utility.(B) The terms “holding company”, “registered holding company”, and “holding company system” have the same meaning as when used in the Public Utility Holding Company Act of 1935.11 See References in Text note below.(June 10, 1920, ch. 285, pt. III, § 305, as added Aug. 26, 1935, ch. 687, title II, § 213, 49 Stat. 856; amended Pub. L. 95–617, title II, § 211(a), Nov. 9, 1978, 92 Stat. 3147; Pub. L. 106–102, title VII, § 737, Nov. 12, 1999, 113 Stat. 1479.)Editorial NotesReferences in Text

The Public Utility Holding Company Act of 1935, referred to in subsec. (c)(3)(B), is title I of act Aug. 26, 1935, ch. 687, 49 Stat. 803, which was classified generally to chapter 2C (§ 79 et seq.) of Title 15, Commerce and Trade, prior to repeal by Pub. L. 109–58, title XII, § 1263, Aug. 8, 2005, 119 Stat. 974. For complete classification of this Act to the Code, see Tables.

Amendments

1999—Subsec. (b). Pub. L. 106–102 inserted subsec. heading, designated existing provisions as par. (1), inserted heading, and substituted “After 6” for “After six”, and added par. (2).

1978—Subsec. (c). Pub. L. 95–617 added subsec. (c).

Statutory Notes and Related SubsidiariesEffective Date of 1978 Amendment

Pub. L. 95–617, title II, § 211(b), Nov. 9, 1978, 92 Stat. 3147, provided that: “No person shall be required to file a statement under section 305(c)(1) of the Federal Power Act [subsec. (c)(1) of this section] before April 30 of the second calendar year which begins after the date of the enactment of this Act [Nov. 9, 1978] and no public utility shall be required to publish a list under section 305(c)(2) of such Act [subsec. (c)(2) of this section] before January 31 of such second calendar year.”

Notes of Decisions

Cited in 11 cases, 1941–2015 · leading case: Montana-Dakota Utils. Co. v. Nw. Pub. Serv. Co., 341 U.S. 246 (1951).

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Montana-Dakota Utils. Co. v. Nw. Pub. Serv. Co., 341 U.S. 246 (1951). · cites it 4× “16 U. S. C. § 825d (b). At different times between 1935 and 1945 contracts were made between the two corporations for the sale of electric energy.”

Edwin I. Hatch v. Fed. Energy Regulatory Comm'n, 654 F.2d 825 (D.C. Cir. 1981). · cites it 3× “1 Petitioner contends that the Commission acted arbitrarily and in violation of its statutory mandate under section 305(b) of the Federal Power Act (“the Act”), 16 U.S.C. § 825d(b), 2 by refusing to allow him to hold simultaneously the positions of director of a public utility…”

Fed. Energy Regulatory Comm'n v. Barclays Bank PLC, 105 F. Supp. 3d 1121 (E.D. Cal. 2015). · cites it 2× “22 Defendants also point *1146 out that 16 U.S.C. § 825d uses language other than “entity” to refer to conduct explicitly prohibited by persons.”

Nat'l Mar. Union of Am. v. Herzog, 78 F. Supp. 146 (D.D.C. 1948). · cites it 2× “§ 19 ; against interlocking directorates between utilities and underwriters, 16 U.S.C.A. § 825d and between banks and underwriters, 12 U.”

Hendricks v. Dynegy Power Mktg., Inc., 160 F. Supp. 2d 1155 (S.D. Cal. 2001). “See 16 U.S.C. § 825d. 7 . The fact that some Plaintiffs might have used the phrase "just and reasonable” or “unjust and unreasonable” in their complaint does not change the Court’s analysis because there is no indication that Plaintiffs intended to use these claims as they are…”

Alabama Power Co. v. Fed. Energy Regulatory Comm'n, 160 F.3d 7 (D.C. Cir. 1998). “…to determine the reasonableness of the proposed rate change and to reject the change if it is found unreasonable. 16 U.S.C. § 825d(e).”

California Indep. Sys. Operator Corp. v. Fed. Energy Regulatory Comm'n, 372 F.3d 395 (D.C. Cir. 2004). “FPA section 305 bolsters this reading of section 206. Section 305 delegates to FERC limited authority to regulate conflicts of interest among the directors of public utilities and market actors who deal with such utilities.”

Pennsylvania Water & Power Co. v. Fed. Power Comm'n (Two Cases). Pennsylvania Power Util. Comm'n v. Fed. Power Comm'n, 193 F.2d 230 (D.C. Cir. 1952). “For example, Representative Rayburn, Chairman of the House Committee reporting the bill, pointed out that there was no need to make certain prohibitions contained in § 305(a), 16 U.S.C.A. § 825d(a), specifically applicable to licensees because they had already been made…”

Glassberg v. Boyd, 116 A.2d 711 (Del. Ch. 1955). “NOTES [1] The complaint charges that the other individual defendants are in one way or another beholden to the defendants, Kayser, Liddell and Vanston and accordingly are incapable of exercising individual unbiased judgment as corporate directors.”

Mississippi Valley Generating Co. v. United States, 175 F. Supp. 505 (Ct. Cl. 1959). · cites it 2× “In March 1955 certain officers and directors of Middle South and Southern, including Yates and Barry of Southern, and Dixon, Canaday, and Sanders of Middle South, filed an application to hold interlocking positions on plaintiff's board pursuant to the provisions of Section…”

Michelsen v. Penney, 41 F. Supp. 603 (S.D.N.Y. 1941). “856 , Title 16 U.S.C.A. § 825d; Public Utility Holding Company Act of 1935, Title I, Section 17(c), 49 Stat.”

— 16 U.S.C. § 825d(a) — 1 case

— 16 U.S.C. § 825d(b) — 2 cases

Edwin I. Hatch v. Fed. Energy Regulatory Comm'n, 654 F.2d 825 (D.C. Cir. 1981). “1 Petitioner contends that the Commission acted arbitrarily and in violation of its statutory mandate under section 305(b) of the Federal Power Act (“the Act”), 16 U.S.C. § 825d(b), 2 by refusing to allow him to hold simultaneously the positions of director of a public utility…”

Mississippi Valley Generating Co. v. United States, 175 F. Supp. 505 (Ct. Cl. 1959). “In March 1955 certain officers and directors of Middle South and Southern, including Yates and Barry of Southern, and Dixon, Canaday, and Sanders of Middle South, filed an application to hold interlocking positions on plaintiff's board pursuant to the provisions of Section…”

— 16 U.S.C. § 825d(e) — 1 case

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