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Regulator Affirms Precedent Concerning Attorney General's Lack Of Authority To Recover, From Retail Supplier, Costs For Experts In Investigation Cases
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The Massachusetts DPU has affirmed prior precedent that the Massachusetts Attorney General may not recover from a retail supplier costs that the Attorney General incurs for experts and other consultants retained by the AG as part of participating in DPU proceedings involving retail suppliers, including DPU violation investigations of retail suppliers
The DPU affirmed this precedent in a order in an investigation proceeding involving CleanChoice Energy, Inc.
The DPU's order only addressed the AG's request to retain experts and receive cost recovery for such, and such order did not address the merits of allegations made in the investigation, with the investigation proceeding remaining ongoing
As previously reported by ECM, a Delegated Commissioner's Notice of Probable Violation has proposed a $5 million civil penalty and a revocation of CleanChoice's license for what the Delegated Commissioner alleges are, "egregious misconduct and a pattern of misconduct," in violation of various applicable statutes and rules, Among other things, the Delegated Commissioner's Notice of Probable Violation alleged, after fixed rate expiration, "multiple months of price increases, [with] customers [] charged prices between 34.7 and 59.4 cents per kWh or price increases between 133 percent and 214 percent".
See full background here
Statute allows the Attorney General (AG) to retain experts or consultants in certain DPU proceedings, and provides that reasonable and proper expenses "shall be borne by the affected party" and are "recoverable through rates."
However, such statutory authority for the AG to retain experts is limited to being undertaken, "in the performance of [the AG's] duties under this section,", with such statutory section only governing a matter, "involving rates, charges, prices and tariffs of an electric company, water company, gas company, generator, transmission company, telephone company and telegraph company". [Section 11E]
Competitive retail suppliers are not listed as within the AG's expert retention authority under this section of the statute
The DPU previously, in D.P.U. 14-140-C, found that the AG can not recover expert costs from retail suppliers, because the term "supplier" or "competitive supplier" is not used in the statute granting such authority to the AG
The DPU in a July 1 ruling affirmed such prior finding, rejecting arguments from the AG to distinguish the CleanChoice case from the precedent
"This proceeding concerns CleanChoice’s business practices as a competitive supplier. It does not concern the rates, charges, prices, or tariffs of an electric distribution company or any other entity enumerated in Section 11E(a). The Department’s authority to license and investigate competitive suppliers under G.L. c. 164 and 220 CMR 11.00 does not transform a competitive supplier into a public utility, an electric company, or an affected party for purposes of Section 11E(b)," the DPU held
The DPU said, "The Attorney General argues that D.P.U. 14-140-C is distinguishable because that docket was a market-wide, non-adjudicatory investigation, while this proceeding is an NOPV directed at one competitive supplier. The distinction does not alter the statutory analysis. The dispositive reasoning in D.P.U. 14-140-C did not depend on whether the proceeding was adjudicatory or market-wide; it depended on the statutory terms chosen by the Legislature and the legal status of competitive suppliers."
"Section 11E(a) does not identify competitive suppliers among the entities whose rates, charges, prices, or tariffs trigger Section 11E(b) expert and consultant cost recovery," the DPU said
The DPU further said, "The Attorney General further argues that this proceeding falls within Section 11E because competitive supply charges may appear on distribution company bills and because distribution companies may be required to purchase certain competitive supplier receivables ... Bill presentation does not change the underlying character of CleanChoice’s charges; they remain charges under competitive supply arrangements and not Department-approved utility rates, charges, prices, or tariffs. Likewise, any indirect effect on distribution company billing or receivables does not make a distribution company the affected party in this NOPV proceeding or create a Section 11E(b) mechanism for recovery through regulated rates."
Under the ruling, the Attorney General may still obtain expert or consultant assistance, at the AG Office's own expense or through other permissible funding sources available outside of Section 11E, and the AG may use such assistance in the proceeding subject to the DPU's procedural rules and orders.
The DPU stressed that its ruling only addresses cost recovery of expert costs, and does not change the AG's status as an intervenor in the case
Kate Colarulli from CleanChoice provided the following statement concerning the matter:
"CleanChoice Energy is pleased with the MA DPU ruling. CleanChoice remains committed to providing 100% renewable energy service to its Massachusetts customers and to participating constructively in this proceeding."
--- Statement from Kate Colarulli from CleanChoice
CleanChoice Motion To Dismiss
CleanChoice recently filed a motion to dismiss the NOPV
Among other things, CleanChoice, in addressing the allegations about fixed to variable pricing transitions, said in the motion that, "there is no prohibition on
introductory price offers or restriction on the amount a variable price can increase or how
quickly."
CleanChoice in the motion also generally alleged that the NOPV seeks to enforce what CleanChoice termed "myriad Proposed Disclosure Standards" for which CleanChoice said that the NOPV, "does not cite any legal authority," including the following:
• Advising customers and potential customers about 'the potential extreme
magnitude' of the variability of pricing;
• Informing prospective customers before enrollment of the monthly variable price(s) in effect at that time; and prior history of monthly variable prices;
• Advising prospective customers that 'prices could be significantly higher'
after the introductory price expired;
• Notifying existing customers that the introductory price was expiring; and
• Informing existing customers of monthly variable prices.
CleanChoice in the motion alleged, "To support its claims, the NOPV attempts to invent new legal and compliance
standards without authority to do so or any supporting precedent. Specifically, the NOPV
purports to create the following new legal and compliance standards never previously
articulated by the Department: (a) inaccurate information conveyed to customers prior to
enrollment nullifies the affirmative choice made by the customers that received that
information ('Proposed Nullification Standard'); (b) a prohibition on introductory price
offers and restriction on the amount a variable price can increase or how quickly
('Proposed Pricing Standards'); and (c) a litany of new disclosure obligations regarding variable pricing arrangements that are not included in Chapter 164 or the Department’s
regulations or orders ('Proposed Disclosure Standards')."
CleanChoice alleged, "the NOPV cannot invent new legal and compliance standards
without any authority. Moreover, any attempt to apply these newly proposed standards
within the NOPV is a clear violation of the Company’s due process rights which should
be rejected outright by the Department."
CleanChoice in the motion also argued that the DPU lacks "common law" authority, and lacks authority to adjudicate any alleged violations of 940 CMR 19.00, which are rules developed by the state's Attorney General
In a response to CleanChoice's motion to dismiss, the Delegated Commissioner said that, "the Legislature gave the Department a clear
mandate and broad discretion to enact and enforce regulations governing the Commonwealth’s
competitive supply industry in order to protect consumers against misconduct that would harm
consumers and their confidence and participation in the competitive supply marketplace."
The Delegated Commissioner said that the AG's rules provide that a competitive supplier’s contract terms and
advertising material must be accurate and may not include misleading or deceptive material.
The Delegated Commissioner said, "The
Department [DPU}, in seeking to fulfill its statutory mandate to ensure the utmost consumer protections
in the competitive supply marketplace, opted to incorporate these [AG] requirements into
220 CMR 11.06(3) and (6)(a), such that violating the Attorney General’s regulations constitutes
a violation of the Department’s regulations. It is the Department regulations, over which the
Department has clear enforcement authority, that the Delegated Commissioner seeks to enforce
in the NOPV."
The Delegated Commissioner said, "the NOPV does not articulate new standards; it relies on the existing statutory and
regulatory framework, and it does not violate the Company’s due process rights."
The Delegated Commissioner said, "The NOPV seeks to enforce Department regulations regarding the Company’s obligations
to provide accurate information to (and thus not mislead) customers with respect to the prices
they are to be charged, not to regulate the prices themselves. The NOPV alleges that the
Company’s telemarketing agents’ misrepresentations regarding its introductory rate to variable
rate products precluded the customer from affirmatively choosing the Company’s product[.]"
The Delegated Commissioner said, "The NOPV asserts that the Company
mislead customers by promising price stability and savings that it did not deliver. These are not
new 'proposed disclosure standards.' They are consistent with the Department’s clear and
established requirement that competitive supply companies must not provide inaccurate, deceptive, misleading and/or incorrect information to customers."
Docket 25-138
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July 2, 2026
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Copyright 2026 EnergyChoiceMatters.com
Reporting by Paul Ring • ring@energychoicematters.com
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