Fred Fucci is a transactional and project finance lawyer who focuses on the acquisition, development and financing of power generation and other energy assets. He has represented developers and acquirers of both renewable (wind, solar, biomass, geothermal, hydro) and fossil fuel (natural gas, coal, petroleum and cogeneration) power plants in the United States and in several other countries. He also advises energy services companies on energy efficiency projects and the installation of distributed generation facilities. Fred was named to the 2013-2016 NY Metro Super Lawyers List in Energy and Natural Resources.
Fred also devotes a significant portion of his practice to corporate transactions including mergers, acquisitions, joint ventures and asset purchases and dispositions. He has represented many foreign companies in starting up or acquiring businesses in the United States. Related to these corporate transactions, he provides general commercial and corporate advice for foreign and U.S. entities and is well-versed in contracts involving supply and sales of goods and equipment.
Rounding out his transactional experience, Fred has maintained over the course of his career continued involvement in international commercial arbitration and regularly acts as a neutral arbitrator in disputes under the arbitration rules of the International Chamber of Commerce, the International Centre for Dispute Resolution, the American Arbitration Association and the London Court of International Arbitration.
He has full fluency and ability to work in the French language (spoken and written) and also is fluent in Italian and German. He has a strong working knowledge of Spanish and can read Portuguese.
Energy Related Acquisitions, Financings and Development Projects
Fred regularly represents strategic and financial acquirers of power generation and other energy assets and projects. He manages the whole process of an acquisition from reviewing letters of intent and bid documents, organizing the due diligence, drafting and negotiating acquisition agreements, coordinating the financing arrangements and bringing deals to closure. He is also deeply experienced in the development process for power plants. He advises on equity investment and owner control agreements for project companies, and is proficient in all the building blocks of power projects including power purchase agreements, concessions and land-use arrangements, equipment supply, construction contracts (EPC, Design Build), operations and maintenance agreements and fuel supply, as well as the associated financing agreements including individual credit facilities, common and participation agreements and security packages, both domestically and internationally.
- Con Edison Development in the acquisition of:
- A project company owning the development rights for the 95 MW Campbell County Wind Farm in South Dakota and associated balance of plant EPC and equipment supply arrangements (June 2015);
- A project company owning the 20MW Oak Tree wind farm in South Dakota at the time of commercial operation (Dec. 2014);
- A 50% interest in the 75 MW Broken Bow II wind farm in Nebraska just after commercial operation (Nov. 2014);
- a 50% interest in a 250 MW utility scale solar project under construction in Nevada (Copper Mountain Solar 3) and negotiation of 50-50 LLC Agreement with seller (closed March 2014);
- a 50% interest in a 150 MW solar generating plant in Arizona (Mesquite Solar I) and related lender consents (closed Sept. 2013);
- a 50% interest in a solar generating plant in Nevada (Copper Mountain Solar 2)( closed May 2013) of which 150 MW was completed and an additional 75 MW under construction and negotiation of associated joint venture agreement; and
- a 92 MW photovoltaic power plant under construction in central California (July 2012) and the subsequent (October 2012) acquisition of two additional development stage solar projects in the same area, each a 20 MW solar plant, and the subsequent sale of a 50% interest in those projects post-completion (closed May 2014).
- Con Edison Solutions in the acquisition or development of:
- A project company owning rights to an 8 MW wind project in Massachusetts (Dec. 2014) and negotiation of turbine supply, O&M and other project agreements.
- A 4 MW distributed wind facility in Ohio (closed Nov. 2013).
- Controlling interests in two 4 MW ground-mounted photovoltaic power plants under development in Massachusetts, one under contract with a municipal utility and the other with a university (closed 2012).
- A rooftop solar array for an industrial company based in Quincy, Massachusetts.
- An energy services company specializing in energy efficiency and performance contracting.
- Con Edison Energy in the negotiation and closing of a receivables financing related to a fuel supply agreement.
- A private equity fund in the negotiations for an acquisition of a majority interest in a project company owning a 55 MW biomass power plant in the Southeastern U.S.
- An Italian company in the negotiation of a term sheet and the subsequent due diligence and investment agreement for the acquisition of a majority interest in a company having several large-scale wind farms in Texas under development.
- A developer in the negotiation and execution of a concession with the government of a Caribbean Basin country and a PPA with the state power company for a geothermal power plant;
- An energy services company in the development of a model Solar PPA and energy performance contracts used in numerous distributed solar and energy efficiency projects in the Eastern U.S.;
- An energy services company in the development and financing of numerous on-site cogeneration projects including for a bottling plant, a U.S. Navy Medical Center, a county government center, a plastics manufacturer, a university, a department store chain, a pulp and paper mill, and a wastewater treatment plant;
- Solar Blue LLC in the negotiation and entry into a Power Purchase Agreement with the Philadelphia Eagles for the installation of a cogeneration plant and solar and wind generation facilities at Lincoln Financial Field and an Energy Services Agreement with the Boston Red Sox for cogeneration and solar installations at Fenway Park;
- A European power equipment supplier on the negotiation of a project participation and funding agreement from a U.S. energy developer with respect to a series of fuel oil power projects in Brazil;
- A U.S. energy company in the arranging of a series of sale and leaseback financings of industrial utility equipment used by Mexican and Brazilian industrial companies; drafted and negotiated lease financing documentation, as well as NY law trust instruments and participation agreements for issuance of notes to U.S. investors.
- ABB Energy Ventures and CMS Generation for the development and project financing of the 1200 MW Jorf Lasfar, Morocco thermal power plant; financing included a commercial bank facility for acquisition of concession and construction financing; credit facilities from Ex-Im Bank and other export credit agencies, a direct loan from OPIC, World Bank counter-guarantees; involved in intercreditor issues and all aspects of security package; subsequently advised the owners of the project company on the restructuring of contractual relations with the Moroccan State electric company and the reorganization of original financing.
Corporate Transactional Work
Fred also is an experienced M&A lawyer in numerous industrial sectors including cement and building materials, automotive, ports and terminals, electronics, food products and fashion.
- The U.S. subsidiary of a European cement and building materials company in numerous stock and asset purchases of U.S. companies; representation included letters of intent, due diligence and drafting, negotiating and closing stock and asset purchase agreements and associated escrows and holdbacks, as well as the financing instruments (note purchase agreements, acquisition financing).
- The European parent of that company in a $250 million joint venture with a Brazilian cement company for investment in a Brazilian enterprise.
- A major French holding company in the disposition of a U.S. subsidiary in the electronics sector.
- A French family office in an attempt to gain a controlling interest in a U.S. listed fashion company.
- A French company in the food products industry on the acquisition of the assets of an American competitor from a Chapter 11 bankruptcy proceeding and another French company in the successful acquisition of the assets of a Pennsylvania-based manufacturer of specialty electric switching equipment .
- The U.S. affiliate of a French auto parts manufacturer in the unwinding of a joint venture with a U.S. partner and related asset transfers.
- The U.S. affiliate of a European industrial company in the acquisition by unsolicited tender offer of a company in which it held a minority interest.
Commercial Arbitration and Mediation Experience
As a complement to his transactional work, Fred also has had a career-long interest in alternative dispute resolution techniques, in particular international commercial arbitration. He has acted as counsel to parties to disputes and as a neutral arbitrator in international and domestic arbitration proceedings under International Chamber of Commerce (ICC), International Centre for Dispute Resolution (ICDR), American Arbitration Association (AAA) and London Court of International Arbitration (LCIA) rules. He is listed on the AAA’s construction, commercial and international rosters and is a member of the ICDR panel and the International Energy Law Association’s selective Energy Arbitrator’s List. He is also a member of the Toronto Commercial Arbitration Society and the International Panel of the British Columbia International Arbitration Centre. His experience as an arbitrator includes serving as:
- A co-arbitrator in a case under LCIA rules involving a breach of contract claim by an aluminum producer against a middle eastern buyer; hearings in London pending.
- A sole arbitrator under AAA rules in a dispute between a petroleum company and a terminal operator over storage nominations under a throughout agreement; hearings pending.
- A sole arbitrator in a dispute under the AAA Expedited Procedures between an engineering consultant and a public housing project related to services performed on a planned solar installation. Appointed January 2016, award delivered February 2016.
- A co-arbitrator in an ad hoc proceeding initiated by a solar power developer against a Caribbean basin state power authority with respect to disputed utility-scale solar projects. Preliminary Hearing held; hearings pending.
- A coarbitrator in a dispute under ICDR rules between a US consumer products company and a Chinese supplier; tribunal constituted, preliminary hearing held (Dec. 2014); default award based on Claimant’s submissions delivered March 2016.
- A party-appointed coarbitrator in a dispute under LCIA rules relating to an alleged breach of a petroleum and biofuels commodity supply agreement. Proceedings suspended for settlement discussions (Oct. 2014);
- A member of a panel under the ICDR rules in a dispute between a French purchaser and a Korean seller relating to the sale of an industrial enterprise and alleged breaches of representations and warranties in the Purchase and Sale Agreement. Hearings held Dec. 2014, reasoned award delivered June 2015.
- A member of a panel under the AAA rules in a dispute between a developer of solar projects and the host site of the solar facility. Hearings concluded, partial and final awards issued (Oct. 2014 and Jan. 2015);
- A sole arbitrator under the AAA's Construction Arbitration Rules (Large Complex Cases) in a dispute between an installer of commercial solar projects and a sponsor of several projects. Hearings held, reasoned award delivered in April 2014;
- A member of a panel under the ICDR rules in a dispute relating to the supply of photovoltaic modules from an Asian manufacturer to a series of commercial solar projects being installed by a U.S. developer. Outcome of the case was a settlement negotiated by the parties (Dec. 2013);
- A sole arbitrator in an ICDR case involving claims of U.S. distributor against an Italian joint venture partner in the luxury goods (travel) business; delivered a reasoned award (Jan. 2010);
- A co-arbitrator in a case under ICC Rules involving post-closing dispute in an acquisition by a German company of a Hong Kong company; claims were over $5 million; participated in the drafting of a reasoned interim award and a reasoned final award;
- Member of an ICDR panel hearing a dispute between a US Investor and a Chinese company relating to the provision of information necessary to list the Chinese company's shares on a U.S. exchange. Outcome was a settlement negotiated by the parties.
Fred also has participated in mediation proceedings as a party and has completed the AAA’s 40-hour Essential Mediation Skills for the New Mediator training program.
Professional Community Involvement
- Fred is an active participant in professional associations and regularly speaks at conferences and moderates panels. He also has published a number of articles and chapters, as detailed below. He also devotes a portion of his time to pro bono work.
- From 2009 to 2012, he was the chair of the Energy Committee of the New York City Bar Association and continues to be a member of the Association.
- He was counsel to the US Green Building Council, NY Chapter, with relation to the New York City Green Codes Task Force, an initiative to revise the New York City Building Code.
- He has been a U.S. delegate since November 2003 to the Commission on Arbitration of the International Chamber of Commerce (ICC) and has participated in the work of the Commission on the review and development of the ICC’s arbitration rules and standards
- He is a member of the United States Council on International Business Committee on Arbitration and is the Chair of its Transactional Lawyers Subcommittee.
- He is a member of the International Bar Association (Section on Energy and Natural Resources Law) and the American Bar Association (Section of International Law)
- His main pro bono project is serving as counsel to the Emergency Shelter Network of Faith-Based and Community Organizations, a New York not-for-profit corporation coordinating approximately 50 homeless shelters within New York City housed at places of worship and community organizations. He incorporated the association and obtained charitable organization (501(c)(3)) status on its behalf and continues to serve as pro bono counsel.
Presentations and Publications
- “M&A Market Outlook”, Moderator of Panel, Infocast Projects & Money, New Orleans, Louisiana (Jan. 2013, 2014 and 2015).
- “Financeability and Financial Security Issues in Construction Contracts”, Presentation at International Construction Projects Committee, IBA Annual Meeting, Tokyo, October 2014
- “The Solar M&A Market Landscape”, Infocast Solar Power & Investment Summit, San Diego, February 2014.
- “Will New York’s Revised Generation Siting Law Promote or Hinder Development?”, Electric Light & Power, (Sept. /Oct. 2012).
- “Distributed Generation”, Chapter in The Law of Clean Energy: Efficiency and Renewables, published by the American Bar Association (May 2011).
- “Energy Finance, Legal and Regulatory Considerations”, Presentation at Intro to Energy Finance, Council of Development and Finance Agencies, Washington, D.C. (May 2012, Sept 2010).
- “Alternative Options for Buildings: Distributed Generation – Power Generation at or Near Buildings” and “Energy Performance Contracting for Buildings”, Chapters in The Law of Green Buildings: Regulatory and Legal Issues in Design, Construction, Operations and Financings, published by the American Bar Association (Aug. 2010).
- “District Energy in the U.S., Promises and Obstacles”, Presentation at Energy Finance for Real Estate, Urban land Institute, New York, NY (June 2010).
- “Federal Incentives for Renewable Energy Projects”, Presentation at ABA Section of International Law Annual Meeting, Legal Framework Comparison (April 2010).
- “Alternative Energy in Commercial Real Estate and Multi-Family Housing – Application of Distributed Resources – Practical and Legal Ramifications”, Chapter in The Green Real Estate Summit 2010, published by Practicing Law Institute (March 2010).
- “Federal Cash Grant Program for Renewable Energy Property Now in Effect: Final Guidelines Released/Applications Being Accepted”, The Real Estate Finance Journal (Winter 2010).
- “Retrofitting Commercial Buildings to Be Green”, Presented at Urban Land Institute, Washington, D.C. (June 2009).
- “Implementing Efficiency Improvements with Energy Performance Contracts”, Webinar for Lorman Education Services, (Sept 2008).
- “Distributed Generation in the U.S. – Practical Issues in Project Development”, IBA Section of Energy and Resources Law Conference Papers (May 2004).
- “Risk Management in International IPPs: Terms of the Project Documents”, PowerGen Conference Proceedings (1999).
- April 2017 - Author, "Arbitration in M&A Transactions: Laws of New York and Delaware Part III," Dispute Resolution Journal Vol. 71 No. 4.
- January 2017 - Author, "Arbitration in M&A Transactions: Laws of New York and Delaware Part II," Dispute Resolution Journal Vol. 71 No. 3.
- October 2016 - Author, "Arbitration in M&A Transactions: Laws of New York and Delaware," Dispute Resolution Journal Vol. 71 No. 2.
- February 4, 2015 - United States Council on International Business, Committee on Arbitration – Moderator of Panel – The Pros and Cons of Arbitration Clauses in International Agreements: An In-House Perspective
- November 3, 2014 – International Chamber of Commerce, Miami Conference on Latin American Arbitration – Arbitration in M&A Transactions.
- May 7, 2013 - United States Council on International Business, Committee on Arbitration – Moderator of Panel – New York as a Place of Arbitration.
- January 16, 2011 – United States Council on International Business, Committee on Arbitration – Moderator of Panel – Choosing a Place of Arbitration.
- September 23, 2010 - International Chamber of Commerce Court of Arbitration – Annual New York Conference – Moderator of Panel – Negotiating a Successful Deal.
- May 13, 2010 – Lewiatan Arbitration Court / ICC Court of Arbitration – Dispute Resolution in M&A Transactions (Warsaw) – Presentation on Means of Dispute Settlement in M&A Transactions: Does Arbitration Have Competitors? – U.S. Perspective.
- November 6, 2007 – “Getting Transactional Lawyers Thinking about Dispute Resolution" ICC Conference on International Commercial Arbitration in Latin America (Presentation and Paper).
- April 2006 - “Hardship and Changed Circumstances as Grounds for Adjustment or Non-Performance of Contracts - Practical Considerations in International Infrastructure Investment and Finance”; Proceedings of the ABA Section of International Law Spring Meeting (subsequently published by OGEMID).
- January 2004 - American Foreign Law Association, New York – “Drafting Arbitration Provisions in International Project Agreements – Issues and Best Practices.”
- September 2003 – “Issues in the Enforceability of Arbitral Awards in International Project Lending” IBA Conference Paper.
- Georgetown University Law Center, J.D., 1987
- Johns Hopkins University, M.A., School of Advanced International Studies, 1987
- Amherst College, B.A., 1981
England & Wales
U.S. District Court for the Southern District of New York