The following is an excerpt from Practice Perspectives: Vault’s Guide to Legal Practice Areas.

Kenneth W. Irvin, Partner—Energy

Ken Irvin, a co-leader of Sidley’s global Energy practice, has a wide-ranging energy and commodities practice, representing clients on federal and state commodity and energy, electricity, natural gas, oil, alternative energy and emissions matters. He provides counsel and advice on hedging and credit risks, contract structures and disputes, arbitrations, bankruptcy, non-performing assets and regulatory issues involving energy and commodities trading, market regulation and structured transactions. Ken helps to ensure client compliance with Federal Energy Regulatory Commission (FERC) and Commodity Futures Trading Commission (CFTC) requirements, and he works closely with those handling compliance with the Financial Conduct Authority (UK) requirements.

Please provide an overview of what, substantively, your practice area entails.

I have considerable experience advising clients on issues relating to trading in wholesale power and natural gas, inventory facilities, and energy transportation and long- term supply agreements. I also regularly counsel clients on hedging contract structures and credit risks, disputes, and regulatory issues involving energy and commodities trading. I am also experienced in serving clients in the acquisition or disposition of distressed energy assets and restructuring transactions.

What types of clients do you represent?

Our diverse client base includes companies that develop, produce, transport, and market energy. We have represented U.S. and international financial institutions, multinational companies, independent power producers, investment funds, oil and natural gas companies, private equity funds, trade associations, commodity marketers, and exchange and clearing organizations.

What types of deals and/or cases do you work on?

Our matters include a wide spectrum of corporate transactions, litigation, international arbitration, and internal and government-related investigations, rate cases, reliability standards, enforcement actions, market manipulation, compliance planning and training, and corporate restructurings.

How did you decide to practice in your area?

I have been a partner and co-leader for the Global Energy practice at Sidley since February 2015. I started my career as a trial attorney focusing on creditors’ rights in bankruptcy. With the California energy crisis, starting in 2000 my practice focused on counseling clients on transaction, enforcement, and regulatory issues for energy trading, wholesale and retail energy providers, hedge providers, and other energy market participants. I have successfully led teams prosecuting clients’ rights under wholesale power purchase agreements, asset purchase agreements, natural gas supply agreements, credit facilities, covenants not to compete, partnership agreements, shareholders’ agreements, and leases. I have assisted clients in the acquisition or disposition of companies or assets through bankruptcy or strategic restructuring. Furthermore, I regularly represent clients being investigated for manipulation.

What is a typical day or week like in your practice area?

My typical day or week involves advising clients about their transactions—helping them document the parties’ agreements and helping them ensure a proposed strategy complies with anti-manipulation requirements. With a substantial portion of my practice currently focused on assisting the Mexican electric utility (the Comisión Federal de Electricidad or CFE), a lot of time is devoted to contract negotiations for the development of pipelines transporting natural gas from Texas to Mexico. As a team leader, I work hard to build our practice and foster strong ties with clients. I enjoy traveling to visit with our clients to keep them and us abreast of developments. Mentoring our younger lawyers is also an essential part of my role. In addition, I devote time to speaking and writing about issues important to our clients and friends.

What is the best thing about your practice area?

The best thing about our practice is the close bonds we build with our clients and our team members. By working earnestly to understand our clients’ goals and concerns, we strive to earn their trust. We work every day to deliver value—to make sure our legal advice is commercial and actionable for the complex market in which our clients work. Sidley’s broad energy practice enables us to have a holistic perspective so we can add value as our clients contemplate new ideas and better ways to develop and distribute energy, manage risk and allocate capital. Our team harnesses the experience of lawyers from the array of practices within the firm. Members of our team have an uncommon insider’s perspective on energy regulation, enforcement, and litigation, with many having served in various leadership roles at governmental agencies. Our team features a former congressman and member of the House and Energy Commerce Committee; former Federal Energy Regulatory Commission (FERC) staff lawyers, including the former leader of the FERC trial staff; two former enforcement lawyers at the U.S. Commodity Futures Trading Commission (CFTC), including the former director of the agency’s enforcement division; general counsels of the U.S. Environmental Protection Agency, the Surface Transportation Board and the Securities and Exchange Commission; and several former U.S. Department of Justice section chiefs.

What is the most challenging aspect of your practice area?

The most challenging aspect of our practice right now is responding to the change wrought with the new administration in Washington, D.C. Significant changes in the federal government’s approach to carbon regulation, foreign trade, immigration, taxes, and regulation are keeping our clients in a constant state of alert. It is our honor to serve their needs, but that comes with the responsibility to keep abreast of these rapid changes, to be accurate and complete with our analysis, to be timely, and to follow through so our clients have the best matrix of options available to meet their legal needs.

What training, classes, experience, or skills development would you recommend to someone hoping to enter your practice area?

Our energy markets are regulated based on principles of law and economics. Understanding the foundational principles of both is essential. Equally important is recognizing that inter-personal relationships lie at the heart of every success endeavor. Understanding how to communicate, how to negotiate, how to deal with difficult conversations—these are essential skills for lawyers. At bottom, you have to be keenly

interested in our practice area—so keenly interested that you read about it all the time, you network with clients and competitors to learn more, you contextualize the clients’ needs, and you anticipate the consequences for the decisions of clients and regulators.

What misconceptions exist about your practice area? What do you wish you had known before joining your practice area?

Often it appears politically attractive to malign energy market participants because of concerns about the conduct of business, the protection of our environment, and other important public interests. In fact, our clients form a substantial part of the brainpower and capital that drive our energy markets to new technologies, new efficiencies, and a better world for tomorrow. Energy powers our world, making it a vital and complex industry in which to conduct business, and the improvements in quality of life and the pursuit of happiness we can enable by helping our clients makes our practice very rewarding.

What is unique about your practice area at your firm?

We focus on integrating our different skill sets to provide value to our clients and to essentially partner with clients. Being part of the team that helps clients succeed is our mindset. Our deep and broad knowledge of energy and commodity markets, the financial services industries, and the interplay between the two, complements the existing capabilities of our strong team of lawyers focused on the energy space in New York, Washington D.C., Texas, California, and around the world. We have experience in M&A deals, sophisticated hedging transactions, and infrastructure projects across a variety of industries that are valuable to clients both within and outside of the energy and financial services industries. Moreover, our FERC and CFTC anti-manipulation experience offers an excellent fit with our leading enforcement and litigation practices in Washington D.C.

What activities do you enjoy when you are not in the office, and how do you make time for them?

I enjoy attending energy conferences. Recently, I spoke at the 22nd Annual Conference on Buying & Selling Electric Power in the West (Seattle, WA, January 23-24, 2017). I also spoke at the Platts 20th Annual Mexican Energy Conference (Mexico City, Mexico, November 14-15, 2016), and before that at the Platts 9th Annual Nodal Trader Conference (New York, NY, October 27-28, 2016). I presented on “Blurring the Line Between FERC and States: Trio of Supreme Court Cases Could Electrify U.S. Energy Markets” at the WSPP Spring Conference (Alberta, Canada, March 4, 2016). In addition, I spoke at Buying and Selling Electricity in the West in January 2016 and Platts Nodal Trader in October 2015. I chaired the ERCOT Market Summit Conference in February 2014, chaired the Energy Bar Association’s Finance & Transactions Committee for 2013–2014 and served as director for the Foundation of the Energy Law Journal (2013–2016). The biggest priority for me, however, is my wife and kids. We enjoy basketball, skiing, swimming, and visiting the U.S. national parks.

2017 Practice Ad Sidley Energy