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Business Group Prepared To Withdraw Trade Practices Petition Concerning Exiting Retail Supplier

Supplier Challenges Regulator's Authority To Open Investigation Of C&I Contracts

June 6, 2018

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Copyright 2010-17
Reporting by Paul Ring •

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The Connecticut Business & Industry Association said in a filing with PURA that it is prepared to withdraw its petition that had sought a PURA investigation of alleged possible unfair or deceptive trade practices, if Mint will verify through a filing to PURA that it will no longer be entering into new supply contracts with Connecticut energy customers.

See background on CBIA's petition regarding Mint's trade practices here

CBIA noted that Mint, as previously reported, had recently announced that it was selling its retail contracts as, "part of Mint’s decision to withdraw from servicing customers in the New England and Pa./N.J./Md. Markets."

Separately, Mint previously sought a motion to stay the PURA proceedings in light of Mint's filing of an Administrative Appeal to the Connecticut Superior Court

Mint appealed a PURA ruling which declined to close the investigation, with Mint in its appeal stating, "The Ruling keeping the proceeding open and allowing the investigation to proceed will subject Mint to improper and unnecessary regulatory scrutiny, will cause Mint to incur substantial costs and commit substantial resources, and may result in inconsistency and confusion, none of which can be remedied or recovered if the proceeding continues, leaving Mint without an adequate remedy at law."

Mint in its appeal stated, "The Ruling asserts that the Authority maintains jurisdiction to investigate CBIA's allegations, despite the fact that such allegations arise out of contractual disputes between commercial businesses."

Mint in its appeal stated, "The Authority, in the Notice, relies on Conn. Gen. Stat. § 16-245t for authority to address issues raised in the Petition. This statute authorizes the Authority to receive and act on customer inquiries and complaints, not breach of contract allegations."

Citing arbitration and choice of law provisions in the contracts, which were with commercial customers, Mint said in its appeal, "The contracts at issue in this proceeding were not only executed by private parties, they were negotiated by those parties. As an administrative tribunal with only the authority granted it by statute, the Authority does not have jurisdiction over the contracts at issue in the instant proceeding."

Mint in its appeal stated, "While Conn. Gen. Stat. § 16-245u, upon which the Authority also relies, provides that the Authority may investigate unfair or deceptive trade practices, the Authority itself has interpreted Section 16-245u as a provision that supports individual (principally residential) consumer protection, not agreements between commercial, sophisticated parties."

Mint in its appeal stated that PURA's reliance on section 16-245o(f)(2) as grounds for the proceeding is improper.

"In pertinent part, section 16-245o(f)(2) provides that a supplier's service agreement 'shall ... include a clear and conspicuous statement providing the customer's right to cancel such contract .. . describing under what circumstances, if any, the supplier may terminate the contract and describing any penalty for early termination of such contract.' The Section continues by stating that a supplier service agreement must include 'a clear and conspicuous statement explaining the rates that such customer will be paying, including the circumstances under which the rates may change ..., '" Mint stated in its appeal

Mint in its appeal stated that, "Mint's contracts plainly satisfy both portions of section 16-245o(f)(2). In accordance with the statute, Mint's agreements conspicuously explain the various methods by which Mint may terminate the agreement."

In its motion at PURA for a stay, Mint stated, "If the Authority proceeds with its investigation, the potential exists for inconsistent rulings related to the contractual obligations of the counterparties. Disputes under the contracts are to be resolved through arbitration, as agreed by the counterparties. Currently, arbitration has not been initiated, so it has not been determined whether Mint breached any of its contracts, which forms the basis of the allegations put forth in CBIA's petition."

"Given that the Appeal also raises several procedural and substantive questions of law, particularly the threshold question of whether the Authority has jurisdiction to open an investigation into Mint's business practices, it would be improper and inequitable for the Authority to continue with these proceedings until the Court issues a final order on the Appeal," Mint said in its motion at PURA

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