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Monday, October 21, 2019

Plaintiffs lose fight against Massachusetts utility

By Kristin Danley-Greiner | Aug 9, 2016

BOSTON (Legal Newsline) -- The Massachusetts Supreme Judicial Court on July 29 decided to reverse a Superior Court order that granted class certifications for two classes of residential and business customers of the defendant, Fitchburg Gas and Electric Light Company.

This case, Bellermann v. Fitchburg, involved plaintiffs seeking relief under a Massachusetts consumer protection law, alleging the utility company failed to properly prepare and plan for a major winter storm and made deceptive communications to consumers before and during the storm. 

The Supreme Judicial Court initially denied class certification in a 2014 decision, ruling the plaintiffs could not establish that the defendant’s conduct caused similar injury to consumers on a class-wide basis.

The plaintiffs then filed a renewed motion for class certification based upon a different liability theory, said Pierce Atwood litigation partner Donald R. Frederico. 

The renewed motion for class certification stated they had suffered economic injury by overpaying for a level of emergency preparedness, as required by state Department of Public Utility regulations, that allegedly wasn’t provided.

The plaintiffs alleged the company’s customers suffered injury under the Massachusetts consumer protection statute, Chapter 93A, due to the overpayment. But because no customer experienced a lapse or interruption in service or failed to receive electricity as a result of the alleged violation, the plaintiffs could not establish a cognizable injury under the statute, the Supreme Judicial Court ruled.

Frederico told Legal Newsline that the court reversed the Superior Court’s grant of class certification because the “plaintiffs could not meet the requirement of showing that they had been injured as a result of the alleged regulatory violation.”  

“Specifically, plaintiffs alleged that the defendant’s conduct put them at an increased risk of losing power in a major storm," Frederico said. 

"However, because the major storm never happened, and they didn’t lose power, the court held that they couldn’t satisfy the statutory requirement of injury.” 

The Supreme Judicial Court has remanded the case to the Superior Court.

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