State Supreme Court Says Forfeiture Issued Against Retail Supplier Unsupported, Upholds License Revocation

Court Says Retail Suppliers Must Require Maintenance, Production Of Records From Sales Vendors To Comply With Record Retention Rule

February 24, 2026

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Copyright 2026 EnergyChoiceMatters.com
Reporting by Paul Ring • ring@energychoicematters.com

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The Supreme Court of Ohio has found that the PUC of Ohio failed to support PUCO's forfeiture decision which had directed that RPA Energy pay a $1.44 million forfeiture related to various marketing violations

The Court remanded the issue of the forfeiture to PUCO, as the Court also remanded to PUCO the separate question of which customers are to be re-rated by RPA under PUCO's order

The Court upheld PUCO's revocation of RPA's electric and natural gas supplier licenses

See background on PUCO's order and the behavior leading to such order here

Regarding license revocation, the Court said, "the evidence supports the commission’s findings that RPA committed numerous unfair, deceptive, or unconscionable acts or practices and that it lacked managerial capability."

"These statutory and rule violations harmed consumers, and the commission did not abuse its discretion in determining that RPA should no longer be able to operate in Ohio," the Court said

The Court, however, said that PUCO did not support the forfeiture amount of $1.44 million

While PUCO's order cited over 150 violations (with the $1.44 million potentially arrived at by multiplying each violation by the $10,000 per-day limit on forfeitures, less $60,000 referenced in the PUCO order), the Court called PUCO's order "vague", with no explicit calculation

While the record included a spreadsheet of violations alleged by PUCO Staff, the Court said, "it is essentially impossible to determine from the spreadsheet which specific violations the commission found ... From our review of the spreadsheet, we cannot determine how staff identified each specific violation"

"[T]he spreadsheet and the staff testimony about the violations are the only evidence the commission cited in its order when discussing the total number of violations found and how it connected those violations to the amount of the forfeiture," the Court said

The Court remanded the forfeiture issue and directed PUCO to identify and "thoroughly explain" the evidence that PUCO used to support the ordered forfeiture.

Rejecting an argument from RPA, the Court affirmed that PUCO is empowered to order re-rates of customers (payment of difference between default service and retail supplier rate)

The Court said, "The commission’s authority to order recission or restitution is not explicitly limited to actions arising from complaints brought by consumers, and nothing in the statutes suggests that the commission is limited to ordering recission or restitution for only those consumers who filed complaints."

RPA argued that the commission cannot order RPA to both return consumers to their original rates with their default utility provider and to refund consumers for the difference between the monthly variable rate customers paid to RPA and what customers would have paid to their default-utility provider. RPA notes that R.C. 4928.16(B)(1) and 4929.24(B)(1) provide that the commission may, "[o]rder rescission of a contract, or restitution to customers" (emphasis added), and RPA argues that the statutes’ use of 'or' means that the commission must choose either rescission or restitution.

The Court disagreed with RPA’s statutory interpretation on this point

The Court said, "The use of 'or' in a statute is not always disjunctive. Rather, '‘[a]nd’ may be read ‘or,’ and ‘or’ may be read ‘and’ if the sense requires it.' R.C. 1.02(F). In addition, R.C. 4928.16(B) and 4929.24(B) provide that the commission 'may do any of the following,' indicating that the commission may order both rescission of consumer contracts and payment of restitution to consumers. Indeed, it would be odd if the commission were unable to order rescission of a contract yet could award restitution to a consumer for harms arising from that very contract. Here, the context of the statutes conveys that this court should interpret the use of 'or' as allowing the commission to order both recission and restitution."

Further, the Court observed that, "If RPA were required to return consumers to their original default-utility rates but were allowed to keep the profits it gained from consumers as a result of its illegal actions, the consumers would not be made whole."

However, the Court agreed that PUCO inconsistently stated which customers are to be re-rated, and remanded to PUCO the issue of determining which customers are to be re-rated (with the Court affirming that PUCO may order re-rates)

On appeal, RPA had notably argued, among other things, that PUCO's findings based on alleged oral misrepresentations during sales pitches do not amount to rule violations, due to Ohio law governing written contracts

In a non-energy-marketing case, the Court has previously found that, "a consumer may not present extrinsic evidence contradicting the parties’ final written contract to prove a violation of that act." ("parol-evidence" rule)

RPA argued that the "parol-evidence" rule established by the Court bars claims based on CRES and CRNGS providers’ oral representations that conflict with the terms of a written agreement.

Ohio's parol-evidence rule, as described by the Court, is, "a rule of substantive law that prohibits a party who has entered into a written contract from contradicting the terms of the contract with evidence of alleged or actual agreements."

The Court rejected RPA's claim that PUCO's finding of violations in the sales pitches contravened the parol-evidence rule

The Court distinguished RPA's behavior during sales pitches from prohibited attempts to modify a written agreement

The Court said, "[T]he commission did not find that the terms of RPA’s contracts were modified by RPA’s oral representations to consumers. Rather, the commission found that RPA, when marketing its services, falsely represented that a specific price advantage, savings, or guarantee exists and that such misrepresentations are prohibited by Adm.Code 4901:1-21-05(B)(8)(a) and 4901:1-29-05(D)(8)(a)."

The Court found that most of PUCO's findings with respect to whether various violations occurred were supported by probative evidence

Notably, with regards to alleged phone call ID spoofing activity by RPA, while RPA said that PUCO's rules contain no rule against spoofing, the Court agreed with PUCO that the spoofing alleged to have been conducted by RPA amounted to "misleading" behavior, which is prohibited by the PUCO rules

The Court also said that a pattern of misleading behavior need not be found in order to establish a violation

One instance in which the Court rejected PUCO's finding of a violation is an alleged instance in which the sales agent was found by PUCO to have been on the TPV call. The Court said that the evidence did not support such a finding, as the TPV was not in the PUCO record

However, with respect to other TPV violations (such as content of the TPV, questions asked, etc), the Court found that PUCO had supported PUCO's findings of violations

RPA had on appeal alleged due process violations

RPA argued that various notices and reports from PUCO Staff concerning the alleged violations did not explicitly state for each consumer the violations that RPA allegedly committed with respect to that consumer, and thus did not provide RPA with sufficient notice of the alleged violations.

The Court rejected this argument, stating, "Nothing in R.C. 4928.08(D) or 4929.20(C)(1) requires the commission or its staff to provide that level of detail."

The Court further observed that, "staff did cite the statutes and rules that it alleged RPA had violated, and staff identified representative consumer complaints for each alleged violation. It then provided RPA with over 1,400 pages of documentation supporting the allegations."

RPA also argued that PUCO rules and precedent exempt PUCO Staff from discovery, with RPA arguing that such exemption violates RPA's due process

However, the Court said that RPA did not claim that RPA had sought to serve interrogatories on PUCO Staff and that RPA was denied responses, "and there is no evidence in the record, that it [RPA] ever attempted to serve discovery demands on the commission or its staff."

Thus, the Court said that RPA had forfeited any due process violation claim related to discovery, since RPA had not raised the issue before PUCO prior to a rehearing request, and thus RPA did not provide PUCO the opportunity to determine the validity of any discovery requests

One of the issues addressed in PUCO's order related to RPA's failure to provide PUCO Staff with data held by vendors

As summarized by the Court, "RPA asserted that it did not have the requested records but, rather, its vendors did, and RPA refused to obtain the records from its vendors, on the advice of counsel."

The commission found that RPA violated Adm.Code 4901:1-21-04(A) and 4901:1-29-04(A) when RPA refused to obtain and produce the records.

RPA argued that PUCO unlawfully punished RPA for relying on the advice of counsel and that, "[a] layperson under active investigation by Commission enforcement staff cannot be expected to understand their rights and duties relative to Staff information requests[, which] is why they hire lawyers."

The Court found RPA's argument on this point to be unsupported by any cited precedent, and said, "taking RPA’s argument at face value would allow a regulated utility to violate commission rules so long as its counsel interprets the rules differently from the commission."

In a related matter, PUCO found that RPA lacked managerial capability because RPA did not maintain records sufficient for the commission to verify RPA's compliance with commission rules and service standards. Of note, this finding was due to RPA not producing records that RPA alleged were held by vendors

RPA argued that Adm.Code 4901:1-21-04 and 4901:1-29-04, the records rules, cannot be rationally interpreted to require a supplier to create, maintain, or produce records about the back-office operations of its vendors.

The Court said, "We reject this argument. RPA is required to maintain records sufficient for the commission to '[v]erify its compliance with the requirements of any applicable commission rules' and '[s]upport any investigation of customer complaints,' Adm.Code 4901:1-21-04(A) and 4901:1-29-04(A)."

The Court said, "Although RPA’s vendors are the entities that directly solicited the consumers, they did so on behalf of RPA. And it is RPA, not RPA’s vendors, that was certified by the commission to be a CRES and CRNGS provider. Because RPA is unable to provide documentation showing that its vendors were complying with the commission’s rules, RPA is unable to document that it complied with the rules."

The Court held that PUCO did not err in granting the Ohio Consumers' Counsel intervention in the RPA investigation proceeding. RPA had argued that OCC is not a party that would be adversely affected by the case, and thus RPA argued that OCC had no standing to intervene

The Court said that, "Because residential consumers had interests that could be adversely affected by the commission’s decision in this case, and because OCC is empowered to represent those interests, the commission did not abuse its discretion in granting OCC’s motion to intervene."

In a statement, Ohio Consumers’ Counsel Maureen Willis stated, "There have been too many instances where marketer misconduct has cost Ohio consumers. Today’s decision affirms OCC’s critical role in protecting residential consumers and confirms that the PUCO has the authority to revoke a marketer’s right to operate in Ohio when it engages in deception or other misconduct."

"We will continue working to protect consumers from harmful marketing practices and encourage Ohioans to make informed energy supply choices," OCC stated

Mark A. Whitt, counsel for RPA Energy, provided the following statement concerning the matter: "We are currently evaluating the Court’s decision and have no additional comment at this time."

In re RPA Energy, Inc., Slip Opinion No. 2026-Ohio-563

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