A federal bankruptcy judge has delayed approving interim and final fees owed to the law firm representing the estate of FirstEnergy Solutions, the former FirstEnergy Corp. power plant subsidiary now operating as Energy Harbor. The two companies have been implicated in an ongoing Justice Department investigation of political corruption that led to the creation of a $1.3 billion, six-year public subsidy of the Energy Harbor's two nuclear power plants in northern Ohio.
The ruling — which means the case is technically not over — came Tuesday, a day after Ohio Attorney General David Yost intervened in the case and asked for an indefinite delay of all final payments while the federal probe continues and his office considers its own charges.
Bankruptcy Judge Alan Koschik approved the final fees of lawyers and other professionals representing the former company's hundreds of creditors. Fees are paid from the estate of FES, leaving less money to pay unsecured creditors. Koschik set a November hearing to consider final approval of about $68 million in fees by Akin Gump Strauss Hauer & Feld, a national law firm which also provides lobbyists to its clients. Most of the firm's fees have already been paid on an interim basis as previously approved by the court under bankruptcy rules.
The 90-day delay in the court's final approval of all professional fees to Akin Gump was the suggestion of the firm's attorneys during the hearing as the judge struggled with the fairness to creditors' lawyers of a blanket indefinite delay. Koschik said he intends to ask federal prosecutors to indicate by November whether the court's actions would interfere with their investigation. The delay adds to the pressure on FirstEnergy.
Koschik's ruling came a day after FirstEnergy filed its delayed second-quarter financial report with the Securities and Exchange Commission alerting investors that the federal probe could be costly for the company. The 10-Q noted that news of the investigation had already impacted its share price and could impact future earnings.
"We have received requests for information related to a government investigation, which could divert management's focus and result in substantial investigation expenses," the quarterly report noted.
"We are unable to predict the outcome, duration, scope, result or related costs of the investigation and related litigation and, therefore, any of these risks could impact us significantly beyond expectations. Moreover, we are unable to predict the potential for any additional investigations, litigation or regulatory actions, any of which could exacerbate these risks or expose us to potential criminal or civil liabilities, sanctions or other remedial measures."
The federal investigation has centered on former Ohio House Speaker Larry Householder and four associates and how they spent nearly $61 million in corporate "dark money" to give Householder enough political control to force passage of legislation subsidizing the company's nuclear power plants.
FirstEnergy tried to convince state lawmakers to subsidize its nuclear operations for several years before spinning off FirstEnergy Solutions. Charles Jones, FirstEnergy's CEO, told analysts during the second quarter earnings call in July that the company provided about a quarter of that $61 million, contributing it to a 501c4 non-profit organization. Federal investigators alleged that the non-profit controlled by Householder then funded the campaigns of selected state House and Senate candidates. Householder and four associates have each been charged with one count of racketeering while the investigation continues.
The company's share price tumbled from about $41 in July before the FBI arrested Householder to below $30 in recent trading. That shareholders are paying close attention was obvious during Tuesday's bankruptcy hearing. The share price continuously fell during the hearing and struggled to recover the rest of the day, closing at just $28.89, down 5 cents from Monday. The price slipped further Wednesday, closing at $28.63. FirstEnergy's share price has been as high as $52.52 in the last 52 months.