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PSC Declines To Order Retail Supplier Customer Refund Letters To Include People's Counsel's Sought Language About Not Waiving Any Legal Claims
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The Maryland PSC has declined to order that SmartEnergy Holdings, LLC d/b/a SmartEnergy shall include in customer refund letters, issued pursuant to a prior PSC order, language sought by the Office of People's Counsel concerning the non-waiver of the customer's legal claims
The refund letters are being issued pursuant to a PSC order that had held that SmartEnergy's telephonic enrollments, even though the call was inbound from a customer, were still subject to the wet signature requirement of the Maryland Telephone Solicitations Act (MTSA), and that SmartEnergy did not obtain such signature, nor did SmartEnergy's marketing qualify for an exemption under the MTSA.
The PSC had ordered SmartEnergy to pay in aggregate $6.5 million to customers in refunds
See more background here
Notably, the PSC's refund order requires that SmartEnergy pay to customers only 40.7% of the difference between the SOS cost and what the customer paid SmartEnergy.
SmartEnergy has been working with PSC Staff and OPC on the content for customer letters concerning the refunds
SmartEnergy alleged that OPC as well as PSC Staff had agreed on language for the letters
SmartEnergy alleged that, after such agreement, SmartEnergy noted an error in the letters and proposed a correction
SmartEnergy alleged that, in response to SmartEnergy's notification of the error, OPC proposed that the letter also include the following language: "By accepting this refund from SmartEnergy, you are not waiving any individual legal claims or rights you may have against SmartEnergy."
SmartEnergy opposed OPC's proposed language, arguing that it would be inappropriate to include "legal advice" in notification letters such as the refund letters
SmartEnergy further alleged that OPC's proposed language is "inaccurate", as SmartEnergy alleged that the PSC's refund order "fully resolved" the refund amounts
SmartEnergy said in a PSC filing that, "The Commission ruled that SmartEnergy violated certain laws and decided that the remedy for those violations is that each customer shall receive 40.7% of what they were owed, assuming SmartEnergy pays in accordance with the Orders. Once SmartEnergy complies with the Orders, a customer is collaterally estopped from re-litigating the remedy for the same violations, all of which have been decided. Thus, a customer cannot later file a complaint and request the remaining 59.3% that the Commission abated."
SmartEnergy said in a PSC filing that, "Further, there is privity between OPC and SmartEnergy’s former customers because OPC is the statutory representative for all residential ratepayers, including those that might file complaints against SmartEnergy in the future if OPC has its way."
OPC argued that SmartEnergy’s customers may have a statutory right of
action under the state's Consumer Protection Act (CPA), which exists separately and independently
from any action by a government agency.
OPC said that the MTSA provides that any violation of the MTSA is also a violation of the
CPA.
OPC said that the CPA provides that any person harmed by a violation of the CPA may
bring a separate action to recover for their injury or loss in addition to any action by the
Consumer Protection Division, Attorney General, or other action authorized by law.
OPC said that its proposed language, "is necessary to dispel any possible customer confusion, given that in other
circumstances acceptance of a payment means all rights are finally resolved."
In an order, the PSC concluded that the language that OPC proposes to include in the letters is beyond what the Commission required in its refund orders (Order Nos. 91626 and 91676).
In denying the inclusion of OPC's language, the PSC further said, "it would be inappropriate for letters to customers to address any legal rights or claims that customers may have beyond the limited scope of the Commission’s decision in this matter."
However, the PSC also directed that SmartEnergy shall not include any language akin to or stating that, "by signing this check the customer hereby releases SmartEnergy from any and all claims arising from the complaint adjudicated by the Commission in this matter."
The PSC said, "If the question of customer rights or claims arises beyond the Commission’s resolution of this matter, that question is left to the judgment of the court or other body before whom such future disputes are brought."
SmartEnergy provided the following statement concerning the matter:
"All information relevant to the dispute is contained in the docket we filed with the Maryland Public Service Commission, as well as in the Commission’s publicly available decision. We have no further comment at this time."
--- Statement from SmartEnergy
Case 9613
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August 27, 2025
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Copyright 2025 EnergyChoiceMatters.com
Reporting by Paul Ring • ring@energychoicematters.com
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