NRGNRG Energy

We note your disclosure under Regulatory Matters on page 158, indicating you had taken action to comply with the Retail Reset Order issued by the New York State Public Service Commission (NYSPSC) prior to the effective date of April 16, 2021. You explain that the order limited ESCO's offers for electric and natural gas to three products.

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However, you state that on January 8, 2024 the NYSPSC notified eight of your retail energy suppliers of alleged non-compliance, to include having not transitioned residential customers to one of the three compliant products as required by the order. You state that the matter has the potential to negatively impact your retail business in New York. Given the apparent significance of the retail business among your Operational Statistics on page 12, it appears that you should expand MD&A to clarify the nature and extent of your exposure, to include the reasonably likely impact on revenues and earnings of your New York retail business, the East operating segment, and consolidated results, to comply with Item 303 of Regulation S-K. Please also clarify the nature and extent of any actions 1. that you are undertaking to ensure compliance or to resolve non-compliance with the order, as well as the timeframe within which you expect the matter to resolve. Please expand the disclosures in the notes to your financial statements to similarly clarify the nature of your exposure and responsibility for compliance relative to the actions of your suppliers, and to include your estimate of reasonably possible loss or range of reasonably possible loss to comply with FASB ASC 450 as appropriate.

The Company respectfully acknowledges the Staff’s comment and advises the Staff that management considered and assessed the requirements of Item 303 of Regulation S-K with respect to the Notice of Apparent Violation (the “NOAV”) issued by the NYSPSC through that agency’s staff while preparing

MD&A for the Form 10-K. The Company concluded that receipt of the NOAV does not have a material impact on current operations and is not reasonably likely to have a material impact on future operations.

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The most common consequences associated with a NOAV are financial in nature, require specific performance (such as modifying how a company operates prospectively) or a combination thereof.

The population of the existing customer base that could be impacted by this matter represent less than 1% of consolidated and 1.5% of East segment gross Retail revenue, respectively. It continues to be unclear what remedy would be imposed or penalty incurred, if any at all, as the Company’s position is that it did, and continues to, comply with the Retail Reset Order. Finally, the matter does not have a bearing on sales volumes and, therefore, has no impact on the Operational Statistics tables as noted by the

Staff.

Further, the Company respectfully notes that the Commission Guidance

Regarding Management’s Discussion and Analysis of Financial Condition and Results of Operations, Release No. 33-8350 Sections I.B.,

I.C. and III.B. (Dec. 19, 2003) (the “Commission Guidance”) specifically directing companies to, with respect to their MD&A, eliminate immaterial information and avoid unnecessary information that does not promote understanding of companies’ overall financial condition and operating performance. In an effort to comply with the Commission’s Guidance, following the determinations set forth above, management concluded that the discussion on the NOAV should not be contained within MD&A.

Although the NOAV did not rise to the level to require disclosure in

MD&A, additional considerations were given to the requirements of FASB ASC 450 (“ASC 450”). The Company considered ASC

450 and determined that the impact of the NOAV was uncertain because receipt of a NOAV is an initial indication of a possible issue but is not a firm or final indication that any enforcement action will be taken. As an initial matter, the staff of the NYSPSC, not the commission itself, asserted potential alleged violations but invited the Company to explain its position. The Company took advantage of this informal avenue of resolution and remains in that position as of the date of this response. The Company believes it has complied with the Retail

Reset Order and does not agree with the NYSPSC staff’s assertions made in the NOAV. Prior to the effective date of the Retail Reset

Order, the Company sought guidance from the the commission on how to comply with the Retail Reset Order, justifiably relied on guidance provided by the the Commission in how to treat existing and prospective customers, and further relied on approvals given by the NYSPSC staff on the Company’s marketing and operating plans. This background to the dispute makes the outcome of any negotiation on an ultimate resolution uncertain.

Discussions with the NYSPSC staff are ongoing and if we are unable to resolve the matter and/or the NYSPSC staff continues to believe a violation has occurred, there are additional procedural steps before the NYSPSC staff could impose a penalty, at which time the Company has the opportunity to seek judicial intervention.

The Company also has, at any time, the ability to litigate the matter to assert its positions, if necessary, and could prevail entirely through court proceedings. For clarity, to date, neither the NYSPSC staff or the commission has taken any further action with respect to the NOAV.

As such, management considered ASC 450-20-50-2 concluding at the time it was not probable that any proceedings or resolution would result in a loss or an additional loss that needed to be disclosed in the Company’s financial statements and therefore addressed the disclosure requirements, in Note 24 – Regulatory

Matters in the notes to the consolidated financial statements, under ASC 450-20-50-3 and ASC 450-20-50-4. The Company disclosed the nature of the contingency and that such estimate of the loss could not be made in accordance with ASC 450-20-50-4.The Company stated that such estimate of loss could not be made within Note 23 – Commitments and Contingencies, under the

Contingencies heading, by stating on Page 156 of the Form 10-K that “Unless specified below, the Company is unable to predict the outcome of these legal proceedings or reasonably estimate the scope or amount of any associated costs and potential liabilities” and also referenced Note 24 – Regulatory Matters as containing additional legal matters.

As detailed above, the timeframe to conclude on a path forward was unknown at the time of the Form 10-K filing and had remained unknown through the date of our subsequent Form 10-Q filings for the first and second quarters of 2024. As new information becomes available and additional developments occur, management will update the Company’s disclosures in accordance with ASC 450.

We hope that the foregoing has been responsive to your comments and await the Staff’s response. Please do not hesitate to contact the undersigned at Bruce.Chung@nrg.com or 609-524-5254 with any questions or comments concerning this letter.

Very yours truly,

NRG Energy Inc.

/s/ Woo-Sung Chung

Woo-Sung Chung

Chief Financial Officer

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We note that you identify “economic gross margin” as a non-GAAP measure, and provide a reconciliation to “gross margin” on page 53 as the most directly comparable GAAP measure. You include a compilation of gross margin, which reflects various deductions from operating revenues to yield the measure for each period.

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However, the deductions for 2020 amount to $5,139 which is not consistent with the cost of sales that you report on page 52 of $4,920, nor the cost of operations that you report on page 92 of $6,540, and it appears that you have excluded depreciation and amortization from all three measures; the corresponding 2019 amounts reflect similar discrepancies. Please revise your compilation of gross margin and the related disclosures on pages 55 and 56 as necessary to reflect all costs of sales that would be attributable to operating revenues in accordance with GAAP, consistent with the reporting requirements in Rule 503.2 of Regulation S-X and the definition of gross margin in the FASB Master Glossary. If the cost of sales measure reported on page 52 does not reflect all costs and expenses that would be attributable to revenues in accordance with GAAP, the measure should be revised for completeness or relabeled to more clearly reflect its composition.

In the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2020, the deductions from total operating revenues to calculate gross margin were Cost of fuel,

Purchased power and Other costs of sales, which aggregate to $4,920 million and were presented as Cost of sales on page 52, in addition to Mark-to-market for economic hedge activities and Contract and emission credit amortization, which were shown separately on page 52.

In total, the deductions to calculate gross margin, which represented the costs applicable to total operating revenues, were $5,139 million in 2020

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as presented in the reconciliation of gross margin to economic gross margin on page 53. The Company will revise its presentation on page 52 to show Cost of fuel, Purchased power and Other costs of sales as separate lines in lieu of the combined Cost of sales to make the presentation consistent.

In addition, the Company presented separately Operations and maintenance and Other cost of operations on page 52. Operations and maintenance costs primarily consist of preventative and corrective maintenance activities to ensure the safe and reliable operation of the Company’s generation portfolio, as well as costs associated with retaining and maintaining the Company’s customer base, such as call center support, portfolio maintenance, and data analytics. Other cost of operations primarily includes gross receipts taxes, insurance, property taxes and asset retirement obligation expense. These costs are not included in the reconciliation of gross margin to economic gross margin on page 53, as gross margin does not consider all operating costs, only the costs applicable to total operating revenues in accordance with the definition of gross margin in the FASB Master Glossary. Along with the costs detailed in the paragraph above, the aggregate Cost of operations that is presented on the Consolidated Statement of Operations on page 92 is $6,540 million.

While the Company presents Depreciation and amortization separately from Cost of operations in its Consolidated Statement of Operations, in consideration of the guidance in SAB Topic 11:B, Regulation

S-X Rule 5-03.2, and the definition of gross margin in the FASB Master Glossary, the Company will revise its presentation of Gross margin in MD&A on pages 53 through 56 to include Depreciation and amortization. Please see Attachment A for an illustrative presentation of the primary changes to be made by the Company in future filings. The illustrative presentation reflects the application of the foregoing proposed revisions to the financial data tables set forth on pages 52, 53 and 92 of the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2020.

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We note that you disaggregate your Cost of Operations measure in MD&A to identify the components Cost of sales, Mark-to-market for economic hedging activities, Contract and emissions credit amortization, Operations and maintenance, and Other cost of operations.

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Given your presentation in the Statements of Operations on page 92, tell us how Cost of Operations may be similar to Cost of Sales, and how you considered the guidance in SAB Topic 11:B, as may be applied to your measure. Please expand your disclosures in financial statement Note 2 to include a description of the costs reported within Cost of Operations, including each of the subcategories identified in MD&A. Please also conform the labeling of the line caption on page 52 with that which appears on page 92, and provide some description of the measure as a subcategory of and in relation to “Total operating costs and expenses.”

to the Staff’s comment, the Company will expand its disclosures in Note 2 in future annual filings to include further description of the costs reported within Cost of operations, including each of the subcategories identified in MD&A; Cost of fuel, Purchased power, Other cost of sales, Mark-to-market for economic hedging activities, Contract and emission credit amortization, Operations and maintenance, and Other cost of operations. Please see Attachment

B for an illustrative disclosure to be used by the Company in future annual filings.

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The illustrative disclosure reflects the application of the foregoing proposed revisions to Note 2 of our Annual Report on Form 10-K for the fiscal year ended December 31, 2020.

Additionally, in consideration of the guidance in SAB Topic

11:B, the Company will revise in future filings its line caption of Cost of operations on page 92 to Cost of operations (excluding depreciation and amortization shown below) and will conform the labeling on page 52.

We hope that the foregoing has been responsive to your comments and await the Staff’s response. Please contact David Callen, Senior Vice President and Chief Accounting Officer, at (609) 524-4734,

Brian Curci, Executive Vice President and General Counsel, at (609) 524-5171, or me at (609) 524-5475 if you have questions regarding our responses or related matters.

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