Exelon Nuclear Subsidy Bill Takes Aim At Alleged Retail Supplier Misrepresentations To Illinois Commerce Commission Staff

Apparently addressing a dispute concerning whether alleged misrepresentations by a retail supplier to informal inquires from Illinois Commerce Commission Staff violated statute, the enrolled version of the Exelon nuclear subsidy bill (SB2814) provides that any response to the ICC, including Staff, from an entity subject to the ICC's regulation is subject to applicable fines for misrepresentation.

In a case involving an investigation of a retail supplier's marketing (see story here), the Illinois Attorney General alleged that a ruling from an ALJ essentially found that, "lying to the Staff of the Commission as they conduct investigations of any kind on behalf of the Commission is not prohibited by law." The ALJ had found that civil penalties applicable to misrepresentation before the ICC only apply to a "proceeding" before the ICC, and that certain of the alleged responses in the case occurred outside of a proceeding, in response to informal inquiries (the ICC granted an interlocutory review of the ALJ's order and granted Staff leave to replead allegations related to misrepresentation before the ICC). We stress here that ICC Staff alleged misrepresentations by the supplier and the supplier rebutted such allegations, and there has been no final disposition of the allegations as of yet.

The enrolled SB2814 addresses the AG's concerns in providing that, "any person or corporation, as defined in Sections 3-113 and 3-114 of this Act, who knowingly misrepresents facts to the Commission in response to any Commission contact, inquiry or discussion or knowingly aids another in doing so in response to any Commission contact, inquiry or discussion or knowingly permits another to misrepresent facts through testimony or the offering or withholding of material information in any proceeding shall be subject to a civil penalty," with the text, "in response to any Commission contact, inquiry or discussion," representing new text added to existing statute, apparently meant to encompass informal responses to Staff

The enrolled SB2814 also provides, "For purposes of this Section, 'Commission,' as defined in Section 3-102, refers to any Commissioner, agent, or employee of the Illinois Commerce commission, and also refers to any other person engaged to represent the Commission in carrying out its regulatory or law enforcement obligations."