„Many commercial facilities were based on gas prices from 9 months ago,“ Feldman said. Since then, natural gas prices have doubled. „Only the biggest players can handle this risk,“ he added. Regulatory risks persist, particularly in California, where price caps have been introduced, which affects dealerships. ORLANDO – As gas prices rise and electricity prices rise, more and more companies are turning to tolls to finance and share the risk of building new commercial power plants, traders say. In August 2014, Duke Energy Corporation (Duke) and Calpine Corporation (Calpine), a competing wholesale electricity seller in Florida, agreed to Duke`s purchase of the Osprey Energy Center (Osprey) in Florida. The structure of the proposed transaction included a toll agreement that entrusted Duke with responsibility for determining the energy to be produced at BeiOsprey and for purchasing the fuel needed to produce that energy. Essentially, the toll agreement allowed Duke to take operational control of the Osprey plant and limited Calpine`s role to „the mechanical operation of the Osprey facility in accordance with Duke`s instructions.“  As part of a toll agreement, the toll company provides fuel to a power plant operator and buys the electricity as a product and then markets it. Feldman said the agreements had begun a significant cog in risk allocation in the sector and were based on a different cost-effectiveness than the original independent electricity projects. Although such toll agreements, including provisions that give buyers control over production, are increasingly common in purchasing Energy inbuver Osprey and have had no justification regardless of the transaction.  Indeed, the toll agreement was to expedite FERC`s authorization for the transaction by allowing Duke to prove that it „already controls“ Osprey, so that „no new damage could be caused by the direct acquisition of Duke Osprey.“  According to the DOJ, agreements that are entrusted to the economic beneficiary and are executed prior to notification and waiting time for the HSR may be reduced to impact pistols under the HSR Act when they are concluded, while a buyer intends to acquire the destination.  These types of agreements allow the purchaser to take control of a target and obtain the effects of the combination before the regulators have completed their review of cartels and abuse of dominance.
DOJ submitted, therefore, that, overall, the deadline and toll agreement had the effect of removing Calpine as an independent competitive presence in the market and allowing Duke to make all competitive decisions regarding the Osprey plant from the date of the toll agreement and well before the HSR notification.