Bellermann v. Fitchburg Gas and Electric Light Co.

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
SJC-11979
MARCIA D. BELLERMANN & others1 vs. FITCHBURG GAS
AND ELECTRIC LIGHT COMPANY.
Worcester. March 10, 2016. - July 29, 2016.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
& Hines, JJ.2
Electric Company. Public Utilities, Electric company.
Practice, Civil, Class action, Consumer protection case.
Consumer Protection Act, Class action, Unfair or deceptive
act.
Civil action commenced in the Superior Court Department on
January 7, 2009.
Following review by this court, 470 Mass. 43 (2014), a
renewed motion for class certification was heard by Richard T.
Tucker, J., and a decision allowing class certification was
reported by him to the Appeals Court.
1
Paul O'Connell, doing business as Lunenberg Exxon, also
known as Lunenberg Gulf; Dee Anne Aylott; Gary H. Asher; Daisy
Bacener; Beverly Christensen; Catherine J. Clark; Carl E.
Fandreyer; Jacquelyn Poisson; Karen Thibeault; Genghis, Inc.;
and Evans on the Common, on behalf of themselves and all others
similarly situated.
2
Justice Duffly participated in the deliberation on this
case and authored this opinion prior to her retirement.
2
The Supreme Judicial Court granted an application for
direct appellate review.
Gavin J. Rooney, of New Jersey (Anne W. Chisholm & Eric R.
Passeggio with him) for the defendant.
C. Deborah Phillips (Barry M. Altman & Edwin H. Howard with
her) for the plaintiffs.
Robin L. Main, for Massachusetts Electric Company & others,
amici curiae, submitted a brief.
DUFFLY, J. In Bellermann v. Fitchburg Gas & Elec. Light
Co., 470 Mass. 43 (2014) (Bellermann I), we affirmed a Superior
Court judge's denial of a motion for class certification of
residential and business customers of the defendant, Fitchburg
Gas and Electric Light Company (FG&E).3 In that case, the
plaintiffs, who lost electric power during a major winter ice
storm in 2008 that struck significant portions of the northeast
(Winter Storm 2008), sought class certification under G. L.
c. 93A, §§ 9 (2) and 11, for themselves and other users of
electricity who were injured by FG&E's assertedly inadequate
preparation for and response to Winter Storm 2008. See
Bellermann I, supra at 44-46. The plaintiffs' efforts to obtain
class certification in that case were premised on FG&E's
asserted failure properly to prepare and plan for Winter Storm
2008, which prolonged the power outages the plaintiffs
3
Fitchburg Gas and Electric Light Company (FG&E) is a
public utility company owned by Unitil Corporation. It provides
electricity to customers in the municipalities of Fitchburg,
Lunenburg, Townsend, and Ashby.
3
experienced, and on FG&E's deceptive communications made before
and during the storm that resulted in the plaintiffs' inability
to plan for the extended outages.4 See id. at 45, 54. We
concluded that there was no abuse of discretion in the judge's
determination that the record did not support class
certification on these theories, because the asserted injuries
suffered by class members were too dissimilar. See id. at 53-
57.
We also observed, however, that the plaintiffs had proposed
an alternative theory of injury under G. L. c. 93A, §§ 9 (1)
and 11, maintaining that they had "paid for a level of emergency
preparedness, efficient restoration, and accurate information,"
prior to and during Winter Storm 2008, which FG&E unfairly and
deceptively had failed to provide, and therefore that the
services they received were worth less than what they had paid
for those services. See id. at 54 n.10. Because the plaintiffs
had not asserted this theory as a basis for recovery in their
motion for class certification, we did not address it. See
Leardi v. Brown, 394 Mass. 151, 155 (1985).
Following our decision affirming the denial of the first
4
The plaintiffs conceded in their first appeal "that Winter
Storm 2008 would have caused widespread power outages without
the asserted failures by FG&E, and they [thus did] not seek to
certify a class on the basis of such loss of power" alone.
Bellermann v. Fitchburg Gas & Elec. Light Co., 470 Mass. 43, 54
(2014) (Bellermann I).
4
motion for class certification, the plaintiffs filed a renewed
motion in the Superior Court for class certification, pursuant
to G. L. c. 93A, §§ 9 (2) and 11, based on the same record, and
premised on this alternate theory of injury. In their second
motion for class certification, the plaintiffs contended that,
beginning in 1992, and extending for a period of some sixteen
years, FG&E failed to comply with Department of Public Utilities
(DPU) regulations regarding emergency storm preparedness.5 They
maintain that they suffered economic injury by overpaying for a
level of emergency preparedness required by DPU's regulations,
which FG&E unfairly and deceptively failed to provide, although
the rates charged were based on FG&E's assumed compliance with
those regulations.6 The plaintiffs do not assert that members of
5
Some of these regulations were issued or in effect between
1997 and 2007, when the Department of Public Utilities (DPU) was
known as the Department of Telecommunications and Energy. See
St. 1997, c. 164, § 186; St. 2007, c. 19, § 21.
6
As a public utility, the rates FG&E charges its customers
are set by DPU. See G. L. c. 164. The rate structure is
determined through a "cost of service/rate of return" analysis,
which permits a public utility company to earn a "fair return on
investment," but disallows costs DPU deems unreasonable due to
mismanagement, including regulatory noncompliance. See
Fitchburg Gas & Elec. Light Co. v. Department of Telecomm. &
Energy, 440 Mass. 625, 627 (2004); D.P.U. 11-01, 11-02 (2011).
Where at least twenty customers file a complaint with DPU with
regard to the quality or price of electricity, DPU must conduct
a public hearing on the issue, and may order a prospective (but
not retrospective) reduction in rates. See G. L. c. 164, § 93;
Fitchburg Gas & Elec. Light Co. v. Department of Telecomm. &
Energy, supra at 637. Here, as permitted under G. L. c. 164,
§ 93, after Winter Storm 2008, DPU sua sponte undertook to
5
the putative class suffered any loss of power or interruption of
service, as a class, during this period.
Following a hearing, a different Superior Court judge
certified two classes of FG&E business and residential customers
who paid rates for electric service at any point between January
7, 2005, and January 7, 2009.7 The judge then reported the class
certification order to the Appeals Court, pursuant to Mass. R.
Civ. P. 64 (a), as amended, 423 Mass. 1403 (1996), on FG&E's
motion, and we allowed FG&E's application for direct appellate
review.8
We conclude that, in these circumstances, the plaintiffs'
assertion of overpayment for FG&E's services does not set forth
a cognizable injury under G. L. c. 93A, §§ 9 (1) and 11, and
investigate the quality of FG&E's response to the storm, and
issued an order critical of FG&E's response in many respects.
See D.P.U. 09-01-A, at 1 (2009), and discussion, infra. Shortly
after that hearing, upon FG&E's request for an increase in its
base rates pursuant to G. L. c. 164, § 94, DPU instead issued an
order reducing the rates that FG&E would be permitted to charge
for electricity in the future. See D.P.U. 11-01, 11-02, at 13-
15. As DPU explained, the reduction in rates was in part due to
FG&E's performance during Winter Storm 2008. See D.P.U. 11-01,
11-02, at 14, 50.
7
Although the plaintiffs contend that FG&E was not in
compliance with DPU's regulations for a period of sixteen years,
the Superior Court judge certified the class for the period of
four years immediately prior to the filing of the complaint in
January, 2009, due to the applicable statute of limitations,
G. L. c. 93, § 13.
8
The parties also filed cross motions for summary judgment,
which were denied. Those claims are not part of this appeal.
6
thus does not support class certification pursuant to that
statute. We therefore vacate the order certifying the class.9
1. Background. The facts underlying the plaintiffs'
request for class certification are set forth in some detail in
Bellermann I. We briefly summarize those background facts that
bear on the issues raised by the plaintiffs' renewed motion for
class certification. See Weld v. Glaxo Wellcome Inc., 434 Mass.
81, 85-86 (2001).
The plaintiffs' allegation that FG&E was unprepared for
major storms throughout the class period is based on the results
of an investigation into FG&E's preparation for and response to
Winter Storm 2008, that was conducted by DPU pursuant to its
regulatory authority. See G. L. c. 164, §§ 1E, 76. In a 215-
page decision, DPU found that there had been "numerous and
systematic" deficiencies in the way in which FG&E prepared for
and responded to Winter Storm 2008. D.P.U. 09-01-A, at xiii.
DPU concluded that each of these deficiencies constituted a
violation of FG&E's obligation to provide safe and reliable
service. See id. at 52, 60, 72, 83-84, 102, 121, 125. As
relevant here, DPU also found that some of the deficiencies
stemmed from apparent disregard for certain of its prior
9
We acknowledge the amicus brief of the Massachusetts
Electric Company, doing business as National Grid; the Nantucket
Electric Company, doing business as National Grid; and
Eversource Energy.
7
directives and orders concerning the manner in which electric
companies in Massachusetts were to plan and prepare for major
storms and other emergencies, that were in effect during the
class period. For example, in 1992, also following a major
storm, DPU ordered Massachusetts electric companies to assess
their emergency response plans in relation to those of other
electric companies, and to consider the impact of extreme
weather in their planning activities. FG&E, however, did not
undertake such an assessment, and according to the judge's
report, at no point during the class period would FG&E's
emergency response plan have been adequate to respond to a storm
as extreme and widespread as Winter Storm 2008. As FG&E
conceded during hearings before DPU, rather than preparing for a
storm of that magnitude, it believed that it could "ramp up" its
emergency operations to respond to such a severe storm.
In support of their renewed motion for class certification,
the plaintiffs argued in essence that DPU's determination as to
FG&E's regulatory noncompliance had been found as fact by the
Superior Court judge who ruled on the first motion for class
certification, that this finding established FG&E's regulatory
noncompliance, and that the noncompliance was alone sufficient
to support the plaintiffs' claim of economic injury. The
plaintiffs contend that, in seeking class certification under
G. L. c. 93A, §§ 9 (2) and 11, they were not required to show
8
that they suffered actual injury, such as an interruption in
electrical service.
The crux of FG&E's argument in the Superior Court was that
the plaintiffs' overpayment theory fails as a matter of law
because it is premised on an incorrect assumption implicit in
the plaintiffs' claim that they suffered an injury merely by
paying a particular utility rate.10 The motion judge concluded,
to the contrary, that the plaintiffs' overpayment theory of
injury was viable, based on the plaintiffs' assertion "that they
have paid for more in terms of quality and reliability of
service than they received." The judge certified two classes,
one consisting of FG&E's residential customers and one of its
business customers.
2. Class certification. a. Standard of review. Review
of a decision on class certification is undertaken with due
consideration of the broad discretion afforded in allowing or
denying class certification. Nonetheless, pursuant to G. L.
10
FG&E also argues that the plaintiffs could not
appropriately file their claim of economic injury in the
Superior Court, because under G. L. c. 25, § 5, and G. L.
c. 164, § 94, exclusive jurisdiction to review electricity rates
rests with DPU and this court. The plaintiffs contend that
their claim was properly filed in the Superior Court because it
involves unfair business practices relative to FG&E's lack of
emergency preparedness, and is not related to FG&E's imposition
of DPU's established rates. See G. L. c. 93A, § 3 (exempting
from treatment as "unfair business practice" transactions
permitted by regulatory board of Commonwealth). Because of the
result we reach, we need not address this issue.
9
c. 93A, discretion to deny class certification is tempered by
the "public policy of the Commonwealth [which] strongly favors
G. L. c. 93A class actions." Feeney v. Dell Inc., 454 Mass.
192, 200 (2009). See Aspinall v. Philip Morris Cos., 442 Mass.
381, 391-392 (2004) (Aspinall). Although our "review asks only
whether that discretion has been abused," an error of law in
ordering a class certification renders that decision an abuse of
discretion. Salvas v. Wal-Mart Stores, Inc., 452 Mass. 337, 361
(2008), citing Weld v. Glaxo Wellcome Inc., 434 Mass. at 84-85.
To succeed in their motion for class certification under
G. L. c. 93A, § 9 (2) or 11,11 the plaintiffs must show that they
are entitled to seek relief under G. L. c. 93A, § 9 (1) or 11,
for injuries resulting from the defendant's unfair or deceptive
act or practice.12 The plaintiffs also must show that the
11
As described in Bellermann I, 470 Mass. at 52, plaintiffs
seeking class certification pursuant to Mass. R. Civ. P. 23 (a),
as amended, 452 Mass. 1401 (2008), must meet additional
requirements that are not necessary for class certification
under G. L. c. 93A, § 9 (2) or 11. Thus, while "the
requirements of rule 23 (a) provide a 'useful framework' for
considering class certification under G. L. c. 93A," they do not
equate with the requirements of class certification under G. L.
c. 93A, § 9 (2) or 11. Bellermann I, supra at 53.
12
General Laws c. 93A, § 2, prohibits "[u]nfair methods of
competition and unfair or deceptive acts or practices in the
conduct of any trade of commerce." General Laws c. 93A,
§ 9 (1), permits a consumer "injured by another person's use or
employment of any method, act or practice declared to be
unlawful by" § 2 to bring an action for damages in the Superior
Court. General Laws c. 93A, § 9 (2), further provides that
10
assertedly unfair or deceptive act or practice that caused their
injuries "caused similar injury to numerous other persons
similarly situated," and that they would "adequately and fairly
represent[] such other persons." G. L. c. 93A, §§ 9 (2), 11.
See Bellermann I, 470 Mass. at 52. The requirement of showing
that a plaintiff suffered an injury may be met by showing either
an economic or a noneconomic injury. See Hershenow v.
Enterprise Rent-A-Car Co. of Boston, 445 Mass. 790, 802 (2006).
A party seeking class certification "need only provide
'information sufficient to enable the motion judge to form a
reasonable judgment' that certification requirements are met."
Aspinall, supra at 392, quoting Weld v. Glaxo Wellcome Inc.,
supra at 87.
With these standards in mind, we turn to consideration
whether the plaintiffs have provided "information sufficient
to . . . form a reasonable judgment" that they suffered an
economic injury. See id.
b. Class certification claim under G. L. c. 93A, § 9. The
"[a]ny persons entitled to bring [an] action [under G. L.
c. 93A, § 9, for an unfair or deceptive act or practice]
may, if the use or employment of the unfair or deceptive
act or practice has caused similar injury to numerous other
persons similarly situated . . . bring the action on behalf
of himself and such other similarly injured and situated
persons."
General Laws c. 93A, § 11, contains a similar provision
applicable to business plaintiffs.
11
plaintiffs argue that FG&E's regulatory noncompliance caused all
of the putative class members to sustain similar economic injury
by overpaying for a level of electric service that did not meet
the standards that were "legally required and enforced by the
government." See Iannacchino v. Ford Motor Co., 451 Mass. 623,
633 (2008) (Iannacchino). The argument that regulatory
noncompliance alone is sufficient to establish an economic
injury, however, misconstrues our decisions in Iannacchino and
Aspinall. In those cases we recognized that, under some
circumstances, a consumer may suffer an economic injury by
purchasing a product or service that does not comply with
applicable regulations. We stated clearly, however, that to
meet the injury requirement under G. L. c. 93A, § 9 (1) or 11, a
plaintiff must have suffered a "separate, identifiable harm
arising from the [regulatory] violation" that is distinct "from
the claimed unfair or deceptive conduct itself." Tyler v.
Michaels Stores, Inc., 464 Mass 492, 503 (2013). See
Iannacchino, supra at 630; Aspinall, supra at 397-398. By
contrast, adoption of the plaintiffs' theory of economic injury
would permit class certification under G. L. c. 93A, §§ 9 (2)
and 11, whenever a product (or service) fails to conform to a
regulatory requirement and the consumer alleges an economic
injury based on overpayment for the product. Cf. American Tel.
& Tel. Co. v. Central Office Tel., Inc., 524 U.S. 214, 223
12
(1998) ("Any claim for excessive rates can be couched as a claim
for inadequate services and vice versa").
The plaintiffs in Iannacchino, supra at 624, for instance,
brought an action as putative class representatives of all
Massachusetts owners of certain vehicles manufactured by the
defendant, asserting that the vehicles' outside door handles did
not comply with applicable Federal safety regulations. The
plaintiffs did not argue that they had sustained any personal
injury or property damage as a result of the nonconforming door
handles. Rather, they asserted that the defendant automobile
manufacturer had engaged in unfair or deceptive conduct which
injured them economically when the defendant knowingly sold, and
refused to recall, vehicles that did not comply with Federal
safety regulations. Id. We deemed the plaintiffs' assertion of
regulatory noncompliance to be conclusory and therefore not
sufficient to state a viable claim under the then-applicable
pleading standard. We concluded that, in order to assert a
viable claim based on regulatory noncompliance, the plaintiffs
were required to "include allegations that would connect the
vehicles' failure on [certain] tests to a legal requirement,"
id. at 633, and remanded the matter to afford the plaintiffs the
opportunity to do so under our clarified pleading standard. Id.
at 635-636.
One distinction in Iannacchino that is relevant to the
13
present circumstances is the fact that the putative class
members in that case, all of whom had purchased the defendant's
vehicles, "continue[d] to own the allegedly noncompliant
vehicles" when the action was filed. See id. at 630. To meet
the injury requirement of G. L. c. 93A, § 9 (1), we concluded
that the putative class members were required to show "a causal
connection between the deception and the loss and that the loss
was foreseeable as a result of the deception" (citation
omitted). Id. at 630 n.12. Observing that "vehicles are
inherently dangerous in operation, and safety standards play a
highly significant role in relation to them," id. at 630, we
explained,
"the purchase price paid by the plaintiffs for their
vehicles would entitle them to receive vehicles that
complied with . . . safety standards or that would be
recalled if they did not comply. If [the defendant]
knowingly sold noncompliant (and therefore potentially
unsafe) vehicles or if [the defendant], after learning of
noncompliance, failed to initiate a recall and to pay for
the condition to be remedied, the plaintiffs would have
paid for more (viz., safety regulation-compliant vehicles)
than they received. Such an overpayment would represent an
economic loss -- measurable by the cost to bring the
vehicles into compliance -- for which the plaintiffs could
seek redress under G. L. c. 93A."
Id. at 630-631. Had the regulatory noncompliance alleged in
Iannacchino been established, it would have been adequate to
support a claim of economic injury, because each class member
owned a vehicle that did not provide the advertised safety
features. A noncompliant vehicle thus would be worth less to
14
its owner than a compliant one. The owner of a noncompliant
vehicle either would have to sell it for a lower price than
would be obtainable for a compliant vehicle, reflecting the
defect, or would have to incur additional expense to remedy the
defect before selling the vehicle.
Similarly, in Aspinall, supra at 396-398, we held that
putative class members who were consumers of a particular brand
of cigarettes could bring a class action against the
manufacturer for its knowingly false labeling conveying that the
cigarettes delivered health benefits they did not in fact
deliver.13 The manufacturer labeled the cigarettes as "light,"
in purported compliance with Federal regulations under which
"light" cigarettes were those that delivered a lesser amount of
toxins as compared to regular cigarettes. Id. at 385-386. The
defendant's "light" cigarettes, however, delivered more toxins
than were permitted under the regulation pertaining to "light"
cigarettes. Id. We concluded that the putative class members
"were injured when they purchased a product that, when used as
directed, exposed them to substantial and inherent health risks
that were not . . . minimized by their choice of the defendant's
'light' cigarettes." Id. at 397. Thus, because each putative
13
The plaintiffs alleged in that case that, "as a result of
the defendants' deceptive advertising, all consumers of Marlboro
Lights in Massachusetts paid more for the cigarettes than they
would have otherwise paid." Aspinall v. Philip Morris Cos., 442
Mass. 381, 398B399 (2004) (Aspinall).
15
class member had purchased and smoked cigarettes that did not
deliver the advertised health benefits, no class member received
the advertised reduction in toxins for which each had paid. Id.
at 397, 398 n.20. See Kwaak v. Pfizer, Inc., 71 Mass. App. Ct.
293, 300 (2008) (consumers "were paying for cigarettes that were
marketed as light, lowered tar and nicotine cigarettes, but were
not").
In sum, the putative class members in these cases suffered
an economic injury because, during their usage or ownership, the
defendants' products did not deliver the full anticipated and
advertised benefits, and therefore were worth less, as used or
owned, than what the plaintiffs had paid.14 See, e.g., Ferreira
v. Sterling Jewelers, Inc., 130 F. Supp. 3d 471, 479 (D. Mass.
2015) (consumer may establish economic injury under G. L.
c. 93A, § 9 [1], if consumer "continues to have possession of"
purchased item that does not deliver "the benefit of the
bargain" of purchase).
The plaintiffs' theory of injury, here, however, is unlike
the injuries recognized in Iannacchino and Aspinall. The
plaintiffs do not claim that, as a result of FG&E's asserted
regulatory noncompliance, they did not receive the electricity
14
One measure of damages under G. L. c. 93A, § 9 (1), for
this form of economic injury may be the difference in market
value between the amount that the class members paid and the
value of the nonconforming product received. See Iannacchino,
supra at 631; Aspinall, supra at 399 n.23.
16
for which they paid during the class period. Rather, they
maintain that the noncompliance caused them to pay for emergency
preparedness that they would not have received if an emergency
had materialized during that time. This claim of economic
injury based on a potential inadequacy in emergency protection
does not support class certification under G. L. c. 93A,
§§ 9 (2) and 11, because the plaintiffs received all the
electric service for which they paid during the class period,
and there is no longer any risk of injury for emergencies that
did not occur. See, e.g., Shaulis v. Nordstrom Inc., 120 F.
Supp. 3d 40, 52 (D. Mass. 2015) (concluding that there was no
economic injury under G. L. c. 93A, where plaintiff's use of
product had "become final without any harm having materialized,"
and plaintiff no longer owned noncompliant product, because "the
risk of injury had disappeared, and the plaintiff[s] had
received the full benefit of the purchase").
The plaintiffs' claims here are similar to those in
Hershenow v. Enterprise Rent-A-Car Co. of Boston, 445 Mass. 790,
802 (2006), where putative class members who had rented
automobiles from the defendant rental company sought class
certification on the basis of the defendant's regulatory
noncompliance in the terms of its optional damage waiver clause.
The clause permitted waiver, for an additional fee, of the
rental company's potential claims against the renter should the
17
rented vehicle be damaged during the rental period. Id. at 792.
The damage waiver provision also contained several restrictions
that purported to limit its application, for example if the
vehicle were stolen, or left unlocked, or if the renter failed
to report any damage to the proper authorities. Id. at 792-793
& n.8. These restrictions, however, did not comply with a
Massachusetts statute which permitted invalidation of damage
waiver clauses only under the narrow circumstances set forth in
G. L. c. 90, § 32E 1/2. Id. at 792-793. Although the damage
waiver provision did not comply with applicable regulations,
none of the putative class members had been in an accident that
triggered application of the damage waiver. Since each of the
putative class members had returned the rented vehicles
undamaged, and the rental company had not attempted to enforce
the invalid waiver provision against any of them, we concluded
that no plaintiff had suffered the necessary, distinct injury
that "is an essential predicate for recovery under" G. L.
c. 93A, § 9 (1). See Hershenow v. Enterprise Rent-A-Car Co. of
Boston, supra at 791, 800-801 (each putative class member was no
"worse off during the rental period than he or she would have
been had the [damage waiver provision] complied in full"). Nor,
once they returned the vehicles, were the plaintiffs any worse
off because they had paid for a damage waiver that no longer
exposed them to the risk of economic harm from an uninsured
18
collision.
Similarly, here, the plaintiffs would have suffered
economic injury as a result of FG&E's asserted failure to
prepare for a severe storm only if a major storm had occurred
during the class period, and the plaintiffs subsequently had
lost electric power as a result of FG&E's failure to respond
adequately to the extreme weather conditions. Since no severe
storm occurred, and no plaintiff lost electric power during the
class certification period as a result of FG&E's asserted lack
of planning and preparedness for a nonexistent storm, none of
the plaintiffs has demonstrated an economic injury. See Roberts
v. Enterprise Rent-A-Car Co. of Boston, 445 Mass. 811, 813-814
(2006) (no injury under G. L. c. 93A, § 9 [1], for defective
product offered in rental contract when consumer did not
purchase or use product). Contrast Casavant v. Norwegian Cruise
Line Ltd., 460 Mass. 500, 503-504 (2011) (viable economic injury
claim under G. L. c. 93A, § 9 [1], where cruise line's policy
did not comply with refund policy regulations and plaintiff
sought, but did not receive, timely refund).
The plaintiffs here would have paid the same amount for
compliant electric service as they did pay, and, although FG&E's
regulatory noncompliance might have exposed them to the risk of
receiving less electricity during an emergency than what they
had paid for, none of the plaintiffs asserts a loss of electric
19
power during the class period, or that FG&E failed to provide
any putative class member the electricity for which the
plaintiff had paid. The plaintiffs contend only that they
suffered economic injury by purchasing a service that might have
failed to provide them with emergency response services,15 in
circumstances that never happened. See Rule v. Fort Dodge
Animal Health, Inc., 604 F. Supp. 2d 288, 305 (D. Mass. 2009),
aff'd, 607 F.3d 250 (1st Cir. 2010) (failure to warn of safety
risks in dog heartworm medication did not give rise to claim of
economic injury under G. L. c. 93A, § 9 [1], against medication
manufacturer, where risks did not materialize and plaintiff no
longer owned product).
In sum, because the plaintiffs have not met the threshold
requirement of demonstrating an injury caused by "the use or
employment of the unfair or deceptive act or practice," their
claim that FG&E engaged in unfair or deceptive practices within
the meaning of G. L. c. 93A, § 9 (2), by failing to comply with
15
We emphasize, again, that not all regulatory
noncompliance, even that violating "a regulation 'meant for the
protection of the public's health, safety, or welfare,'"
constitutes an unfair or deceptive act under G. L. c. 93A, § 2.
Klairmont v. Gainsboro Restaurant, Inc., 465 Mass. 165, 173,
176-177 (2013), and cases cited. Whether a regulatory violation
amounts to an actionable unfair or deceptive act is a question
of law to be "discerned from the circumstances of each case"
(quotation omitted). Id. DPU also has expressed some doubt
whether its orders and directives are properly classified as
"regulations." D.P.U. 09-01-A, at 183-184. Because of the
result we reach, we do not address this issue.
20
departmental regulations, G. L. c. 93A, § 9 (1), cannot succeed.
Accordingly, the motion judge erred in certifying the two
classes pursuant to G. L. c. 93A, §§ 9 (2) and 11.
Conclusion. The order allowing the plaintiffs' motion for
class certification, and certifying two classes, is reversed.
The matter is remanded to the Superior Court for further
proceedings consistent with this opinion.
So ordered.