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Reversing ALJ, Illinois Grants Supplier's Requested Interlocutory Review, Requires Staff To File Formal Complaint To Address Supplier's Due Process Concerns in Investigation

February 5, 2016

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Copyright 2010-16 EnergyChoiceMatters.com
Reporting by Paul Ring • ring@energychoicematters.com

The Illinois Commerce Commission recently granted a petition for interlocutory review from Sperian Energy, which reversed an ALJ's ruling denying a prior motion from Sperian Energy concerning Sperian's due process concerns regarding an investigation initiated by the ICC into the supplier's marketing practices.

As previously reported, the ICC in July issued a show cause order to Sperian Energy after a Staff report alleged "significant violations" by the company

Click here for specific allegations leading to the show cause order

Sperian had argued that the Staff report which formed the basis of the ICC's show cause order was inadequate.

In raising due process concerns, Sperian had said that the case should not proceed, "without a complaint or equivalent formal pleading."

As previously reported, Sperian cited precedent in which an Illinois court had previously rejected the reliance on a Staff "report", along with testimony and hearings as sufficient to meet due process requirements, as the court held that a "written complaint" was required. Sperian specifically argued that the lack of a formal complaint, and reliance on a Staff report, failed to provide Sperian Energy with full and adequate notice of the specific violations that Staff is alleging, such that Sperian may adequately respond and prepare its defense (click here for further discussion).

An ALJ had denied Sperian's motion, finding that the company was not denied due process, as the Staff report sets forth the specific allegations against the company, references to the specific provisions of the Public Utilities Act and Commission rules allegedly violated, and sets forth the relief sought.

Sperian petitioned for interlocutory review of the ALJ's ruling, again arguing that the Staff report fails to sufficiently identify all of the specific allegations and charges being asserted, and as such is not a sufficient substitute for a complaint. "It presents an unverified review of certain sales materials of the Company, together with a series of narratives regarding Staff’s concerns, as well as specific and general opinions about the Company’s conduct. While the Staff Report does contain many specific allegations, the narrative portions of the Report suggest that there could be other violations, time frames, or legal theories being contemplated by Staff that will not be asserted until testimony or possibly even briefs ... Sperian Energy’s due process rights will be undermined, at the outset, if there is no clear description of the facts upon which Staff relies for its allegations," Sperian said

The ICC granted interlocutory review in a 3-2 vote, with Chairman Brien Sheahan, and Commissioners Sherina Maye Edwards and John Rosales voting to grant review. Commissioners Ann McCabe and Miguel del Valle voted against granting interlocutory review

With interlocutory review granted, an ALJ established a February 4 deadline for Staff to file a, "Complaint or More Definite Statement."

Docket 15-0438

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