Breiding et al v. Eversource Energy et al
Judge Denise J. Casper: ORDER entered. The Court ALLOWS Defendants' motions to dismiss, D. 41 ; D. 42 . (McKillop, Matthew)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
SCOTT BREIDING, AMY POLLUTRO
MIKAELA ORSTEIN-OTERO, BENJAMIN
ROSE, MARGARET LEWIS AND RICHARD )
LEWIS, ERIC LONG, PETER STEERS, ERIK )
ALLEN, BRADFORD KEITH, JOHN ODUM, )
DAVID LEIGHTON, DONNA CORDEIRO,
JANICE ANGELILLO, ANNA MARIA
FORNINO, MICHELE CASETTA,
JUDY CENNAMI, JANICE BRADY,
OPAL ASH, MARK LEJEUNE, AND
ROBERTO PRATS, on behalf of
themselves and others similarly situated,
Civil Action No. 17-12274
and AVANGRID, INC.,
MEMORANDUM AND ORDER
September 11, 2018
A putative class of retail electricity consumers residing in New England (collectively,
“Plaintiffs”) have filed this lawsuit against Eversource Energy (“Eversource”) and Avangrid, Inc.
(“Avangrid”) (collectively, “Defendants”), alleging violations of the Sherman Act, 15 U.S.C. § 2,
and various state consumer protection and antitrust laws. D. 33. Plaintiffs assert that Defendants
restricted New England’s supply of natural gas, a key component in the generation of over half the
electricity in New England, and, as a result, caused New Englanders to pay nearly $3.6 billion
dollars more for retail electricity. D. 33 ¶¶ 1-2. Plaintiffs seek damages and injunctive relief,
including under the Clayton Act, 15 U.S.C. § 26. Defendants have moved to dismiss the amended
complaint. D. 41; D. 42. For the reasons set forth below, the Court ALLOWS Defendants’
motions to dismiss.
Standard of Review
In considering a motion to dismiss for failure to state a claim upon which relief can be
granted pursuant to Fed. R. Civ. P. 12(b)(6), the Court will dismiss a pleading that fails to allege
plausible claims. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). “This standard is ‘not akin to a probability requirement, but it asks for more than a
sheer possibility that a defendant has acted unlawfully.’” Saldivar v. Racine, 818 F.3d 14, 18 (1st
Cir. 2016) (quoting Iqbal, 556 U.S. at 678). A claim must contain sufficient factual matter that,
accepted as true, would allow the Court “to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).
There is no special pleading requirement for motions to dismiss in the context of an
antitrust action. In re Carbon Black Antitrust Litig., No. CIV.A.03-10191-DPW, 2005 WL
102966, at *5 (D. Mass. Jan. 18, 2005). Nevertheless, “it is not enough merely to allege a[n]
[antitrust] violation in conclusory terms.” E. Food Servs., Inc. v. Pontifical Catholic Univ. Servs.
Ass’n, Inc., 357 F.3d 1, 9 (1st Cir. 2004). Instead, the “complaint must make out the rudiments of
a valid claim.” Id. Therefore, “[w]hen the requisite elements are lacking, the costs of modern
federal antitrust litigation and the increasing caseload of the federal courts counsel against sending
the parties into discovery when there is no reasonable likelihood that the plaintiffs can construct a
claim from the events related in the complaint.” In re Carbon Black Antitrust Litig., 2005 WL
102966, at *5 (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984)).
“With that said, a complaint should be dismissed only if it appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would entitle him to relief.” Id. (internal
quotation marks and citations omitted).
Unless otherwise noted, the following facts are drawn from the amended complaint, D. 33,
and are accepted as true for the consideration of the Defendants’ motions to dismiss.
Regulatory Framework for the Interstate Transmission and Sale of Natural
Gas and Electricity
FERC’s Authority to Regulate the Transmission and Price of Natural Gas
Between the 1950s through the 1970s, the Federal Power Commission (“FPC”) strictly
regulated both the wellhead price1 of natural gas and the interstate transmission of natural gas
pursuant to the Natural Gas Act. D. 33 ¶ 72; see E. & J. Gallo Winery v. EnCana Corp., 503 F.3d
1027, 1036 (9th Cir. 2007) (“Gallo II”). Beginning in 1978, however, Congress enacted legislation
to reduce regulatory oversight of the price of natural gas. Id. ¶ 74. Congress further deregulated
the price of natural gas through the enactment of the Natural Gas Wellhead Decontrol Act of 1989,
which prohibited FPC’s successor, the Federal Energy Regulatory Commission (“FERC”), from
imposing any price regulations on “first sales” of natural gas at the wellhead. Id. ¶¶ 74-75. “First
sales” include sales by a natural gas producer to a pipeline or a direct purchaser. Id. ¶ 75. In 1992,
The “wellhead” price is simply the price that gas producers charge for natural gas at the wellhead.
Id. ¶ 72. Previously, the FPC imposed a “cost-plus” ratemaking system that allowed gas producers
to factor the cost of natural gas production and a “fair” profit into the wellhead price. Id. The FPC
determined what was considered “fair.” Id.
FERC issued Order No. 636, which permanently severed the sale of natural gas as a commodity
from the sale of natural gas transmission as a service. Id. ¶ 76. Following Order 636, FERC
allowed “natural-gas companies subject to [its] jurisdiction to charge rates for gas determined by
market demand.” Gallo II, 503 F.3d at 1038. In short, FERC replaced regulated rates for natural
gas with market-based rates. Id. at 1039.
FERC still retained authority to oversee rates charged for the transmission of natural gas.
Id. ¶¶ 77, 80, 85. Because natural gas transmission is often a “natural monopoly,” (i.e., where a
single pipeline infrastructure is the only source of natural gas transportation in a given area), FERC
is charged with ensuring that the transmission monopoly is not abused and that prices are “just and
reasonable.” Id. ¶¶ 80, 85. FERC does not regulate the local, retail sale of natural gas after it
leaves interstate pipelines. See id. ¶ 54.
FERC’s Authority to Regulate the Transmission and Price of Electricity
The Federal Power Act (“FPA”), 16 U.S.C. § 791a et seq., authorizes FERC to regulate the
“transmission of electric energy in interstate commerce” and the “sale of electric energy at
wholesale in interstate commerce.” Id. ¶ 49 (quoting 16 U.S.C. § 824(b)(1)). In particular, the
FPA obligates FERC to “oversee all prices for those interstate transactions and all rules and
practices affecting such prices.” F.E.R.C. v. Elec. Power Supply Ass’n, __U.S.__, 136 S. Ct. 760,
782 (2016). However, FPA places beyond FERC’s power, leaving to the states alone, the
regulation of any other electricity sale, including the retail sale of electricity. D. 33 ¶ 49 (citing
Elec. Power Supply Ass’n., 136 S. Ct. at 768).
Natural Gas and Electricity Markets
Plaintiffs allege that Defendants’ anticompetitive conduct in the natural gas transmission
market artificially inflated the commodity market price of natural gas and the wholesale price of
electricity, resulting in higher retail electricity prices for New Englanders. See, e.g., D. 33 ¶ 165.
Defendants’ conduct in the upstream natural gas transmission market allegedly impacted
downstream retail electricity prices due to the relationship and connection between the markets at
issue in this litigation. For example, Plaintiffs assert that the price of natural gas is the most
significant factor in determining the price of wholesale electricity because natural gas-fired power
plants are the primary generators of electricity in New England. Id. ¶ 68. An increase in the price
of natural gas due to a shortage in natural gas supply, therefore, will directly impact the price of
wholesale electricity. Id. ¶ 121. In that same vein, artificially inflated wholesale electricity prices
result in artificially inflated retail electricity prices. Id. ¶ 63. Accordingly, where, as alleged here,
Defendants restricted the natural gas supply to New England, Defendants allegedly caused the
market price of natural gas to increase, resulting in an increase in wholesale and retail electricity
With the regulatory framework and Plaintiffs’ allegations in mind, the Court now turns to
the New England energy markets at issue in this litigation: (1) the commodity market for natural
gas, (2) the natural gas transmission market, (3) the wholesale electricity market and (4) the retail
Natural Gas Commodity Market
The natural gas market encompasses two transactions: (1) the purchase of natural gas; and
(2) the transmission of natural gas from seller to purchaser. Id. ¶ 76. With respect to sales of the
commodity itself, natural gas is sold to consumers either directly from gas producers via contracts
called “gas futures” or through the “spot market.” Id. ¶ 86. Futures contracts allow gas producers
to sell a specific quantify of gas at some predetermined future time. Id. ¶ 87. Purchasers with a
steady natural gas demand, such as load distribution companies (“LDCs”), which distribute gas to
retail customers, typically utilize futures contracts. Id. ¶¶ 84, 87. By contrast, entities with variable
or less predictable natural gas demand, including natural gas-fired electricity generators, purchase
gas on the “spot” market. Id. ¶ 88. The spot market allows LDCs and other direct purchasers to
resell excess amounts of natural gas to which they hold title. Id. ¶ 89. According to Plaintiffs, the
spot market price of natural gas is not regulated by FERC and is, instead, determined by supply
and demand. Id. ¶ 90. Accordingly, the spot market price of natural gas increases when the amount
of available natural gas decreases. Id.
Natural Gas Transmission Market
In addition to purchasing natural gas directly from gas producers or indirectly via the spot
market, gas purchasers must also pay for the transmission (or transportation) of natural gas to its
final destination. Id. ¶ 78. In New England, a network of pipelines facilitates the transmission of
natural gas from the wellhead to the purchaser (or a destination determined by the purchaser). Id.
As mentioned, as compared to the price of the commodity itself, which is determined by contract
or by the market, FERC oversees the rates charged for transmission capacity. Id. ¶ 79.
The process for reserving pipeline transmission capacity in New England differs depending
on the purchaser. See id. ¶ 99. LDCs have the option to enter “no-notice” contracts, which give
them the power to reserve transmission capacity on a pipeline for a given day and time, and to
adjust that reservation “upward or downward” at any time without penalty. Id. By contrast, other
purchasers may be penalized if they do not use the full capacity reserved on a given day or if they
have to reserve additional transmission capacity. Id.
Transmission capacity reservations play an important role in determining the supply of
natural gas available to gas purchasers in New England because there is a fixed amount of pipeline
capacity on any given day. Id. ¶ 107. In other words, the transmission capacity reserved by one
purchaser limits how much capacity is available for other purchasers’ natural gas needs. Id. Even
when LDCs adjust their capacity reservations downward or cancel a reservation, that capacity is
not automatically released for others to use. Id. ¶ 108. For example, assume an LDC called Firm
X reserved enough capacity on a pipeline to move a total of 2400 cubic feet of natural gas through
a pipeline at a steady rate over the course of a 24-hour period (i.e., 100 cubic feet per hour). Id. ¶
109. If Firm X cancelled 20 hours of that reservation and did not affirmatively release the excess
capacity it reserved, then the pipeline would, for 20 hours out of the day, flow at 100 cubic feet
per hour under capacity. Id. In that example, other purchasers would not be able to take advantage
of the excess units of natural gas capacity caused by Firm X’s downward adjustment of its capacity
Wholesale Electricity Market
Wholesale electricity is typically sold by electricity generators or power plants to load
serving entities (“LSEs”), which then deliver electricity to retail consumers. Id. ¶ 52. Some
wholesale electricity is purchased via contracts pursuant to which LSEs agree to purchase a certain
amount of electricity at a certain rate over a certain period of time. Id. ¶ 53. These fixed-rate,
bilateral contracts are regulated by FERC, which may review the agreed-upon rate for
reasonableness. Id. More often, however, wholesale electricity is purchased through auctions
between electricity generators and LSEs. Id. ¶ 54. The auctions are administered and overseen by
intermediaries called Independent System Operators (“ISOs”) or Regional Transmission
Organizations (“RTOs”), which are independent non-profit organizations that FERC has charged
with facilitating an efficient market for wholesale electricity while also ensuring reliability for
electricity consumers. Id. As part of their auction-related responsibilities, ISOs and RTOs must
file with FERC a tariff that describes in detail the procedures for a given auction. Id. FERC may
review or approve the auction procedures. Id. In New England, auctions are conducted in
accordance with the ISO New England Inc. Transmission, Markets, and Services Tariff (“ISO-NE
Tariff”), which was approved by FERC and describes the rules that govern ISO-NE’s facilitation
of auctions for wholesale electricity in the region. Id. ¶ 61 (citing ISO-NE, Day-Ahead and RealTime Energy Markets, https://www.iso-ne.com/marketsoperations/markets/da-rt-energy-markets
(last visited Sept. 10, 2018)).
There are two types of auctions: (1) “same-day” auctions for immediate delivery of
wholesale electricity to LSEs experiencing a spike in demand for retail electricity, and (2) “nextday” auctions to satisfy expected demand the following day. Id. ¶ 54. In both instances, the
auction process is as follows. First, an ISO (or RTO) obtains orders from LSEs indicating how
much electric energy is needed over a given period of time. Id. ¶ 55. Second, the ISO obtains bids
from electricity generators specifying how much electricity can be produced during the relevant
time period and how much they propose to charge for it. Id. Finally, the ISO accepts the
generators’ bids in order of price (from lowest to highest) until the total LSE demand is satisfied.
Id. The price of the last unit of electricity purchased is then paid to all generators whose bids were
accepted, even if their offer was lower. Id.
For example, suppose that LSEs inform their ISO that they require 275 units of electricity
for the day. Id. ¶ 56. Also assume the ISO receives the following bids from electricity generators:
Generator A offers 100 units of electricity for $10/unit; Generator B offers 100 units of electricity
for $20/unit; Generator C offers 100 units of electricity for $30/unit; and Generator D offers 100
units of electricity for $40/unit. Id. The ISO will accept Generator A’s $10/unit bid (and all 100
units offered); then Generator B’s $20/unit bid (and all 100 units offered); and then Generator C’s
$30/unit bid (but only the first 75 units offered). Id. Given that the wholesale demand from the
LSEs was satisfied after the ISO accepted part of Generator C’s bid, Generators A, B, and C will
all be paid at a rate of $30/unit. Id. The total cost of the 275 units of electricity will be split
proportionally amongst the LSEs, according to the units of electricity ordered by each. Id.
Retail Electricity Market
The wholesale electricity prices paid by LSEs are passed on to retail customers. Id. ¶ 63.
Accordingly, the price of wholesale electricity influences the cost of retail electricity. Id. ¶ 60.
Alleged Anticompetitive Conduct
Defendants’ Alleged Market Power
Plaintiffs allege a monopolization scheme in which Eversource and Avangrid each
allegedly abused their power over the retail electricity market in New England through
anticompetitive conduct in the upstream natural gas transmission market. Id. ¶¶ 5-8; D. 48 at 39.
Plaintiffs contend that Defendants possess the power to raise the price of electricity in New
England because they can restrict the amount of natural gas flowing into the region and, therefore,
the amount of natural gas available to fuel natural-gas-fired electricity generators. D. 33 ¶ 94.
Plaintiffs point to several aspects of Defendants’ energy businesses to suggest that Defendants
controlled New England’s natural gas supply and, therefore, the price of retail electricity. For
example, New England’s principal natural gas pipeline, the Algonquin Gas Transmission Pipeline,
is owned, in part, by Defendant Eversource. Id. ¶ 95. Both Eversource and Avangrid also own
and operate, through their subsidiaries, substantial “natural gas utilities” known as LDCs—which
purchase natural gas directly from gas producers and, in turn, distribute natural gas to retail
consumers. Id. ¶ 97. Of the eight largest LDCs in New England, half are owned by Eversource
or Avangrid.2 Id. As a result of their LDC operations, Eversource and Avangrid possess a large
number of “no-notice” contracts for natural gas transmission capacity along the Algonquin
Pipeline.3 Id. ¶ 99. As mentioned, no-notice contracts allow LDCs to adjust their transmission
capacity reservations upward or downward at any time and without penalty. Id.
In addition to their natural gas businesses, Defendants Eversource and Avangrid, through
their respective subsidiaries, operate retail electric utilities or LSEs, which provide electricity to
millions of residential, commercial and industrial customers in New England. Id. ¶ 101. The price
of electricity sold by Defendants’ retail utilities is driven, in large part, by the market-wide
wholesale price of electricity established within the ISO-NE market. Id. ¶ 104. When the price of
wholesale electricity established within the ISO-NE market increases the price of electricity sold
by Eversource and Avangrid to their respective retail customers similarly increases. Id.
Eversource and Avangrid also own and operate renewable electricity resources such as
hydroelectric, wind and solar generating facilities. Id. ¶ 105. Plaintiffs allege that these facilities
have low variable operating costs and, as a result, are more competitive than natural gas-fired
electricity generators when the price of natural gas increases. Id.
Defendants’ Alleged Monopolization Scheme
As previously explained, the New England electricity market sets a single price for
wholesale electricity sold in a given auction. Id. ¶ 165. That price is determined by the highest
accepted bid in the auction. Id. Plaintiffs allege that Defendants, by artificially restricting natural
Eversource owns NSTAR Gas Co. and Yankee Gas Co. and Avangrid owns Connecticut Natural
Gas Co. and Southern Connecticut Gas Co. Id. ¶ 97.
As previously explained, the sale of natural gas is separate from the sale of transmission capacity.
Id. ¶ 77. Transmission capacity is necessary to transport natural gas from seller to purchaser via a
gas supply, raised wholesale natural gas prices on the spot market, which (in turn) raised the bids
in electricity auctions, including the highest accepted bid. Id. Higher overall accepted bids
resulted in an increase in the cost of wholesale electricity. And, finally, since increases in
wholesale electricity prices are passed on to retail electricity consumers, Defendants’ conduct
caused the retail price of electricity to increase throughout New England. Id.
Defendants’ purported systematic abuse of no-notice contracts for natural gas transmission
capacity provided the catalyst for the alleged scheme. See, e.g., id. ¶ 107. No-notice contracts
allow LDCs to reserve natural gas transmission capacity on the Algonquin Pipeline and to adjust
such reservations at any time without penalty. Id. ¶ 99. Because there is a fixed amount of pipeline
capacity on a given day, the volume reserved by LDCs, including those owned by Defendants,
affects the transmission capacity available to meet the needs of other consumers, including natural
gas-fired electricity generators. Id. ¶ 107. Moreover, to the extent Defendants adjust their capacity
reservations downward “at the last minute,” that capacity is not automatically released for use by
other actors in the natural gas market. Id. ¶ 108. Accordingly, the nature and timing of Defendants’
adjustments to their capacity reservations may prevent their previously reserved supply of natural
gas from being released and used by others to satisfy demand in the natural gas market. Id. ¶ 110.
Plaintiffs assert that Defendants’ conduct was unique. Id. ¶¶ 122-126. For example,
industry research shows that, as compared to the utility company with the next highest “lastminute” cancellations, Eversource and Avangrid cancelled their natural gas capacity on
approximately 40 and 184 more occasions, respectively. Id. ¶ 122. In addition, Defendants’ “clear
pattern of large downward adjustments at the very end of the gas day . . . is very different than the
pattern” of their top competitors. Id. ¶ 125. Defendants also failed to take advantage of the
“capacity release” mechanism authorized by FERC. Id. ¶ 128. The “capacity release” mechanism
allows holders of no-notice contracts to release excess capacity directly to the relevant pipeline,
which then sells that capacity. Id. ¶ 145. Capacity release can occur on a seasonal, monthly and
even intra-day basis. Id. ¶ 141. Accordingly, Defendants could have—but did not—release their
excess capacity to be sold to other actors in the market. Id. ¶ 147.
Market Advantages Stemming from Defendants’ Alleged Anticompetitive
Plaintiffs allege that Defendants benefitted from artificially inflating natural gas and
electricity prices in at least two ways. First, by increasing the spot market price for natural gas
and/or restricting available natural gas supplies, Defendants artificially increased demand for value
attributed to and prices paid to non-natural gas-fired power plants, including power plants owned
by Defendants. Id. ¶¶ 152, 156-60. Second, as a result of the artificially depressed natural gas
supply and inflated electricity prices caused by Defendants, Defendants were able to advocate for
the construction of “other multi-billion-dollar energy infrastructure.” Id. ¶¶ 161-63.
Plaintiffs’ Alleged Injury
Plaintiffs allege that Eversource and Avangrid consistently cancelled substantial volumes
of transmission capacity in the last three hours of the day every day during the class period. 4 Id. ¶
119. In so doing, they reduced the Algonquin Pipeline’s daily effective capacity by 14% on
average. Id. ¶ 118. The reduced gas supply caused by Defendants resulted in natural gas prices
on the spot market that were, on average, 38% higher than they would otherwise have been. Id. ¶
120. The increase in spot market natural gas prices impacted the wholesale price of electricity
and, in turn, increased retail electricity prices by 20%. Id. ¶ 121. Plaintiffs estimate that over the
The class period began no later than August 1, 2013, continued through at least July 31, 2016
and ended or will end on the date the effects of the Defendants’ anticompetitive conduct end. Id.
course of at least three years, Defendants allegedly caused New Englanders to overpay for retail
electricity by at least $3.6 billion. Id. ¶ 121.
Plaintiffs assert state and federal law claims on behalf of themselves and similarly situated
classes of persons pursuant to Fed. R. Civ. P. 23. Id. ¶ 194.
Eversource Unified State Law Class
Plaintiffs assert claims for damages and other relief under Massachusetts law against
Eversource, on behalf of themselves and a class of similarly situated electricity consumers
throughout New England (the “Unified State Law Class”). Id. ¶ 195. The Unified State Law Class
is defined as “all consumers who purchased electricity during the class period, for their own use
and not for resale, in the six-state ISO-NE market territory of Connecticut, Maine, Massachusetts,
New Hampshire, Rhode Island and Vermont.” Id. ¶¶ 195, 197-203.
Eversource Separate State Law Classes
To the extent the Court does not apply Massachusetts law to the state law claims of all
members of the Unified State Law Class, regardless of where they reside, Plaintiffs alternatively
bring state law claims against Eversource on behalf of themselves and state-specific subclasses,
under the relevant laws of Connecticut, Maine, Massachusetts, New Hampshire and Vermont
(“Eversource Separate State Law Classes”). Id. ¶¶ 196-203.
Avangrid State Law Classes
Plaintiffs bring claims for damages and other relief against Avangrid, on behalf of
themselves and state-specific subclasses, under the relevant laws of Connecticut, Maine,
Massachusetts, New Hampshire, and Vermont (“Avangrid Separate State Law Classes”). Id. ¶¶
Eversource and Avangrid Federal Law Classes
Eversource Plaintiffs and Avangrid Plaintiffs separately bring claims for damages and
other relief under federal antitrust law against Eversource and Avangrid, respectively, on behalf
of themselves and a class of similarly situated electricity consumers in New England (“Eversource
Federal Law Class” and “Avangrid Federal Law Class,” respectively). Id. ¶¶ 212-27.
The Eversource Federal Law Class is defined as “all consumers who purchased electricity
in the ISO-NE market territory from Eversource and/or its subsidiaries or affiliates, during the
class period, for their own use and not for resale.” Id. ¶ 212.
The Avangrid Federal Law Class is defined as “all consumers who purchased electricity in
the ISO-NE market territory from Avangrid and/or its subsidiaries or affiliates, during the class
period, for their own use and not for resale.” Id. ¶ 220.
Federal Law Injunctive Relief Class
Plaintiffs bring claims for injunctive relief under federal antitrust law against defendants,
on behalf of themselves and a class of all electricity consumers in New England (“Federal Law
Injunctive Class”). The Federal Law Injunctive Class is defined as “all consumers who purchased
electricity in the ISO-NE market territory of New England, during the class period, for their own
use and not for resale.” Id. ¶ 228.
On November 16, 2017, named Plaintiffs instituted this action against Defendants. D. 1.
Shortly thereafter, a related class action complaint was filed against Defendants on February 6,
2018 and assigned to this Court. D. 32 at 2. On February 21, 2018, the Court consolidated the
actions. D. 32 at 3. Plaintiffs subsequently filed a consolidated amended complaint. D. 33.
Defendants have now moved to dismiss. D. 41; D. 42. The Court heard the parties on the pending
motions on August 1, 2018 and took these matters under advisement. D. 57.
The Filed Rate Doctrine Bars Plaintiffs Here from Seeking Damages for
Purported Violations of Federal and State Law
Defendants contend that Plaintiffs’ federal and state law claims are foreclosed by the filed
rate doctrine. The filed rate doctrine “revolve[s] around the notion that under statutes like the
Federal Power Act, utility filings with [a federal agency] prevail over . . . other claims seeking
different rates or terms than those reflected in the filings with the agency.” Town of Norwood,
Mass. v. F.E.R.C., 217 F.3d 24, 28 (1st Cir. 2000). It “has its origins in [Supreme Court cases]
interpreting the Interstate Commerce Act . . . and has been extended across the spectrum of
regulated utilities.” Ark. La. Gas Co. v. Hall, 453 U.S. 571, 577 (1981) (“Arkla”) (internal
citations omitted). The filed rate doctrine is a “form of deference and preemption, which precludes
interference with the rate setting authority of an administrative agency.” Wah Chang v. Duke
Energy Trading & Mktg., LLC, 507 F.3d 1222, 1225 (9th Cir. 2007). Accordingly, “strict
application of the rule is necessary to promote the congressional policy of preventing unjust
discrimination in rates.” Town of Norwood v. New England Power Co., 23 F. Supp. 2d 109, 11516 (D. Mass. 1998), aff’d in part, remanded in part sub nom., Town of Norwood, Mass. v. New
England Power Co., 202 F.3d 408 (1st Cir. 2000) (internal quotation marks and citation omitted).
Under the filed rate doctrine, where FERC determines that a rate is “just and reasonable,”
courts cannot approve a departure from that rate. See id. at 116 (indicating that “FERC’s authority
to determine whether wholesale rates filed by utilities are just and reasonable is exclusive”)
(internal quotation marks omitted); see also Arkla, 453 U.S. at 577-78 (stating that “[n]o court may
substitute its own judgment on reasonableness for the judgment of [FERC]” nor can courts
“impose a different rate than the one approved by [FERC]”). Moreover, the filed rate doctrine
applies even where, as here, FERC determines that certain wholesale rates are to be set by market
forces. Town of Norwood, 202 F.3d at 419 (holding that the filed rate doctrine barred antitrust
claims challenging wholesale electricity rates and rejecting the argument that the “filed rate
doctrine should not apply where the ‘regulated’ rates have been left to the free market”).
Accordingly, courts are not the forum to adjudicate claims based on the propriety of regulated
rates. See, e.g., Arkla, 453 U.S. at 584 (explaining that “[p]ermitting the state court to award what
amounts to a retroactive right to collect a rate in excess of the filed rate ‘only accentuates the
danger of conflict’”). Due to the preclusive effect of the filed rate doctrine, federal and state
antitrust claims, as well as state tort actions, that require courts to set aside or second guess rates
approved by FERC must fail as a matter of law. Wah Chang, 507 F.3d at 1225 (citation omitted);
Town of Norwood, 202 F.3d at 418. “The question, then, is whether [Plaintiffs] can establish a
pertinent limitation on or exception to the filed rate doctrine.” Town of Norwood, 202 F.3d at 418.
The Filed Rate Doctrine Prohibits the Court from Determining the
Reasonableness of Rates or Tariffs Approved by FERC
Plaintiffs first argue that the filed rate doctrine does not apply to their claims because they
do not seek to alter the terms of tariffs or rates approved by FERC. D. 48 at 25-32. Instead,
Plaintiffs allegedly seek relief in accord with FERC’s tariffs and only challenge Defendants’
purported manipulation of retail natural gas and electricity rates outside of FERC’s jurisdiction.
Id. Defendants, on the other hand, assert that the filed rate doctrine applies because Plaintiffs
cannot escape the fact that their claims challenge the propriety of wholesale electricity rates
approved by FERC and that Plaintiffs’ requested relief requires the Court to set such rates aside.
D. 43 at 19; D. 52 at 7; D. 55 at 6. Thus, the threshold question before this Court is whether
Plaintiffs’ claims depend upon the Court’s determination that tariffs or rates approved by FERC
are unjust or unreasonable. See Arkla, 453 U.S. at 477-78.
Here, Plaintiffs allege that Defendants restricted New England’s natural gas supply and
artificially inflated wholesale natural gas prices, which increased the price of wholesale and retail
electricity in New England. See, e.g., D. 33 ¶ 165. Although the parties disagree as to whether
FERC regulates sales of natural gas on the spot market, there is no dispute that (pursuant to the
ISO-NE Tariff) FERC exclusively regulates the region’s wholesale electricity market, including
ISO-NE’s wholesale electricity auctions and the resulting prices. 5 Id. ¶¶ 49-51, 54; see D. 43 at
10; D. 52 at 3; D. 55 at 1. The parties also agree that the “price of natural gas is the single most
significant factor in determining wholesale electricity prices,” D. 33 ¶ 68 and, in turn, the price of
wholesale electricity is the “largest factor in determining the overall electricity price paid by
consumers throughout the ISO-NE regional electricity market,” id. ¶ 66. Given the relationship
between the markets at issue in this case, the Court cannot determine Defendants’ liability for
alleged retail electricity market manipulation without first deciding the reasonableness of
wholesale electricity rates approved by FERC as part of the ISO-NE Tariff and auction process. 6
In Town of Norwood, the First Circuit held that the filed rate doctrine applied with equal force
to market-based wholesale electricity rates. Town of Norwood, 202 F.3d at 419 (explaining that
“FERC is still responsible for ensuring ‘just and reasonable’ rates and, to that end, wholesale power
rates continue to be filed and subject to agency review, 16 U.S.C. § 824d”). As a result, the Court
does not distinguish between market-based rates and rates formally filed with FERC for the
purpose of determining whether the filed rate doctrine bars Plaintiffs’ claims.
In support of the argument that Plaintiffs only challenge conduct outside of FERC’s jurisdiction,
Plaintiffs rely on cases that are inapposite here, including F.E.R.C. v. Elec. Power Supply Ass’n,
__U.S.__, 136 S. Ct. 760 (2016), as revised (Jan. 28, 2016) (“E.P.S.A.”). See, e.g., D. 48 at 28.
In E.P.S.A., the Supreme Court did not consider whether the filed rate doctrine bars claims
challenging retail rates that would require courts to determine the reasonableness of wholesale
rates filed with FERC. Rather, the court held that that FERC may regulate “what takes place on
In cases spawned by the California energy crisis between 2000 and 2001, the Ninth Circuit
dismissed claims requiring the court to evaluate the reasonableness of rates squarely within
FERC’s jurisdiction. See, e.g., Pub. Util. Dist. No. 1 of Snohomish Cnty. v. Dynegy Power Mktg.,
Inc., 384 F.3d 756, 761 (9th Cir. 2004) (“Snohomish”). In Snohomish, for example, the Ninth
Circuit considered whether the filed rate doctrine barred state antitrust and consumer protection
claims alleging that actors in the wholesale electricity market “manipulated the market and
restricted electricity supplies in order to cause artificially high prices.” Id. at 758.
Plaintiffs here, Snohomish alleged that “the defendants withheld supply, waited until . . . prices
rose, and then offered their supply at the higher prices.” Id. at 759. The plaintiff there also argued
that the defendants’ anticompetitive conduct in the wholesale electricity market “caused [the
plaintiff] to pay prices for electricity in excess of rates that would have been achieved in a
competitive market.” Id. (internal quotation marks omitted). According to the Ninth Circuit, the
plaintiff’s requested relief would require the court to determine a “fair price” for wholesale
electricity absent the defendants’ conduct. Id. at 761. The Ninth Circuit, therefore, held that the
filed rate doctrine barred Snohomish’s claims to the extent they would require the court to
“interfere with FERC’s exclusive jurisdiction to set wholesale rates.” Id. A few years later, in
Gallo II, the Ninth Circuit applied similar reasoning in dismissing claims challenging the propriety
of wholesale natural gas rates approved by FERC. Gallo II, 503 F.3d at 1039 n.11. In that case,
the Ninth Circuit determined that the filed rate doctrine prohibits courts from considering whether
“FERC-authorized rates are just and reasonable.” Id. “Rather, under the principles of the [f]iled
[r]ate [d]octrine, they are just and reasonable as a matter of law,” even where the rates at issue are
the wholesale market,” even if such regulations influence retail rates. E.P.S.A., __U.S.__, 136 S.
Ct. at 776.
“market-based.” Id. Most recently, the Ninth Circuit considered whether the filed rate doctrine
barred a retail electricity consumer’s antitrust claims alleging that local electricity utilities
“artificially increased” the price of wholesale electricity “through their anticompetitive and
fraudulent manipulation of the wholesale markets.” Wah Chang, 507 F.3d at 1224. There, the
Ninth Circuit held that the filed rate doctrine barred any claims that require “the courts [to]
determine what rates [utility companies] should have charged instead of the rates they did charge.”
Id. at 1226. As was the case in the aforementioned disputes, Plaintiffs’ theory of liability requires
the Court to determine the reasonableness of wholesale electricity prices exclusively regulated by
Moreover, to award monetary relief to retail electricity consumers, the Court would be
required to determine the difference between wholesale electricity rates during the class period
and hypothetical rates that would have been charged but for Defendants’ purported anticompetitive
conduct. This is exactly the analysis the filed rate doctrine prohibits. See Wah Chang, 507 F.3d
at 1226 (holding that the filed rate doctrine “turns away attempts [like plaintiff’s] . . . which
necessarily hinge on a claim that the FERC approved rate was too high and would, therefore,
undermine FERC’s tariff authority through the medium of direct court actions”); see also
Transmission Agency of N. Cal. v. Sierra Pac. Power Co., 295 F.3d 918, 930 (9th Cir. 2002)
Plaintiffs rely on Verizon Del., Inc. v. Covad Commc’ns Co., 377 F.3d 1081 (9th Cir. 2004) for
the proposition that the filed rate doctrine does not bar claims that “seek repayment in accord
with the criteria in the filed rate” doctrine. Verizon, 377 F.3d at 1090; see D. 48 at 25. That case
is inapplicable. There, the court determined that the plaintiff was entitled to recoup funds the
defendant would have owed the plaintiff pursuant to filed rates but for defendant’s alleged
anticompetitive scheme to reduce its service costs. See Verizon, 377 F.3d at 1090 (stating that the
plaintiff may “recoup overpayments . . . to enforce the filed rates”). Where, as here, the plaintiff
also sought damages in excess of filed rates, the Ninth Circuit concluded that the filed rate doctrine
bars such recovery. Id. (explaining that the plaintiff may not, however collect overpayments that
“would be in addition to the filed rate”).
(noting that courts may not “assum[e] a hypothetical rate different from that actually set by
FERC”); Cnty. of Stanislaus v. Pac. Gas & Elec. Co., 114 F.3d 858, 863 (9th Cir. 1997) (quoting
Cost Mgmt. Servs. V. Wash. Natural Gas Co., 99 F.3d 937, 944 (9th Cir. 1996) (explaining that
an antitrust “claim for damages based on a filed rate would be too speculative, because it: ‘would
require a showing that a hypothetical lower rate should and would have been adopted by [FERC],’”
which is a question “best left to the agency itself, rather than the courts”)).
The Supreme Court has recognized a limited exception to the filed rate doctrine for
injunctive relief. See State of Georgia v. Pa. Ry. Co., 324 U.S. 439, 454-62 (1945) (holding that
plaintiff could bring antitrust action to enjoin alleged “coercive and collusive influences” in ratemarking); Square D Co. v. Niagara Frontier Tariff Bureau, Inc., 476 U.S. 409, 422 n. 28 (1922)
(explaining that the filed rate doctrine does not preclude injunctive antitrust actions). In Town of
Norwood, for example, the First Circuit considered whether Georgia and Square D Co. required
the court to allow the plaintiff’s claims seeking injunctive relief where the court had dismissed
similar claims for damages. Town of Norwood, 202 F.3d at 419-20. In affirming the district
court’s dismissal of the antitrust claims at issue, the First Circuit cautioned that the filed rate
doctrine prohibits an injunction where “any meaningful relief . . . would require the alteration of
tariffs.” Town of Norwood, 202 F.3d at 420 (emphasis in the original). 8 Although the amended
complaint in the instant dispute does not specify what exactly Plaintiffs seek to enjoin Defendants
from doing, the Court concludes that any meaningful relief would, at a minimum, require the Court
to enjoin conduct authorized by the tariff governing Defendants’ no-notice contracts. Specifically,
By contrast to the relief sought in Town of Norwood, “Georgia and Square D Co. . . . concerned
. . . possible price-fixing conspiracies that conceivably could have been enjoined without
tampering with the tariffed rates themselves.” Town of Norwood, 202 F.3d at 419-20.
Plaintiffs assert that Defendants’ anticompetitive conduct began in the upstream natural gas
transmission market pursuant to which Defendants allegedly manipulated or abused provisions of
no-notice contracts that allow their subsidiaries to adjust natural gas capacity reservations along
the Algonquin Pipeline at any time without penalty. D. 33 ¶ 8. Plaintiffs concede that FERC
maintains authority to regulate the interstate transmission of natural gas, id. ¶ 77, and approved the
no-notice contracts at issue. D. 48 at 34. In addition, Plaintiffs cannot dispute that the filed rate
doctrine protects not only agency authority over tariffed rates but also “ancillary conditions and
terms included in the tariff,” including, for example, no-notice contracts and relevant provisions
allowing LDCs to cancel capacity reservations at any time without penalty. Town Norwood, 202
F.3d at 416; see D. 48 at 16 (acknowledging that FERC granted LDCs authority to enter no-notice
contracts and adjust capacity reservations pursuant to a tariff governing interstate transportation of
natural gas along the Algonquin Pipeline). Accordingly, to the extent Plaintiffs seek to enjoin
Defendants from exercising rights pursuant to contracts subject to a filed tariff, Plaintiffs ask the
Court do exactly what the First Circuit has declared it cannot, i.e., to alter the terms of tariffs
approved by FERC. See Town of Norwood, 202 F.3d at 420.
Plaintiffs Have Not Established an Applicable Exception to the Filed Rate
Alternatively, Plaintiffs argue that, “even if the filed rate doctrine could be assumed to
apply here as a general matter, courts have consistently carved out an exception to the filed rate
doctrine where plaintiffs challenge conduct not required by the regulations.” D. 48 at 32. Plaintiffs
contend that such an exception is appropriate here because Plaintiffs are not challenging tariffs or
rates filed with FERC; rather, they are only challenging Defendants’ “business choices” with
respect to no-notice contracts. Id. Even if this argument was not rendered moot by the Court’s
conclusion that Plaintiffs’ requested damages and injunctive relief run afoul of the filed rate
doctrine, the Court nonetheless concludes that any such exception is inapplicable here.
Plaintiffs claim that Defendants’ artificial restriction of natural gas through the alleged
abuse of no-notice contracts constitutes an improper business decision that “will not be
‘immunized from antitrust liability.’” Id. at 35 (quoting City of Mishawaka, Ind. v. Ind. & Mich.
Elec. Co., 560 F.2d 1314, 1320 (7th Cir. 1977)). For support, Plaintiffs primarily rely upon Otter
Tail Power Co. v. United States, 410 U.S. 366 (1973), Brown v. Ticor Title Ins. Co., 982 F.2d 386
(9th Cir. 1992) and Composite Co., Inc. v. Am. Int’l Grp., Inc., 988 F. Supp. 2d 61 (D. Mass.
2013). Having reviewed these cases, the Court concludes that they are readily distinguishable
from the instant case.
First, Otter Tail neither concerns the filed rate doctrine’s preclusive effect on antitrust
challenges to tariffed rates or ancillary matters exclusively governed by a federal regulatory agency
nor supports the purported exception to the filed rate doctrine that Plaintiffs suggest is applicable
in this case. See Otter Tail, 410 U.S. at 373-77. Otter Tail involved an electric company’s refusal
to wheel electric power over its transmissions lines to municipal consumers as part of an alleged
monopolization scheme. Id. at 373. In Otter Tail, the government brought an action to enjoin the
electric company’s anticompetitive conduct, and the Supreme Court concluded that Congress did
not displace the applicability of federal antitrust law to the conduct at issue so there was no conflict
between antitrust law and the FPC’s “limited authority” to order interconnection of transmission
lines. Otter Tail, 410 U.S. at 373-77. As other courts have recognized, however, there is a critical
distinction between Otter Tail and cases concerning anticompetitive conduct in markets that
Congress entrusted exclusively to FERC. See In re Enron Corp., 326 B.R. 257, 264 (Bankr.
S.D.N.Y. 2005) (distinguishing Otter Tail in holding that the filed rate doctrine precluded federal
and state antitrust claims alleging that wholesale energy suppliers manipulated energy markets and
overcharged for energy through anticompetitive acts during California’s energy crisis); see also
California ex rel. Lockyer v. Dynegy, Inc., 375 F. 3d 831, 852 (9th Cir. 2004) (noting FERC’s
exclusive authority “both to enforce and to seek remedy” regarding violation of tariff provisions);
AEP Tex. N. Co. v. Tex. Indus. Energy Consumers, 473 F.3d 581, 585 (5th Cir. 2006) (FERC “is
the appropriate arbiter of any disputes involving a tariff's interpretation”); Town of Norwood, 202
F.3d at 420 (explaining that “the rationale for the filed rate doctrine is to protect the exclusive
authority of the agency to accept or challenge [its] tariffs”) (citing Arkla, 453 U.S. at 571, 57778).
Second, Brown is an outlier case that various courts, including the First Circuit, have
declined to extend to cases concerning the filed rate doctrine’s protection of rates and tariffs
approved by federal agencies. See, e.g., McCray v. Fid. Nat'l Title Ins. Co., 636 F. Supp. 2d 322,
329 (D. Del. 2009) (explaining that “[o]ther than the Ninth Circuit in Brown, no other court has
taken such a narrow view of the applicability of the filed rate doctrine”). In Brown, the Ninth
Circuit held that the filed rate doctrine did not apply to title insurance rates submitted to state
insurance agencies that were not subjected to “meaningful review by the state.” Brown, 982 F.2d
at 394. However, the Supreme Court “has never indicated that the filed rate doctrine requires a
certain type of agency approval or level of regulatory review” to preclude challenges to filed rates
or tariffs. McCray v. Fid. Nat. Title Ins. Co., 682 F.3d 229, 238 (3d Cir. 2012). In Square D Co.,
the Supreme Court held that the filed rate doctrine applied to rates that were filed with but never
“investigated and approved by the ICC.” Square D. Co., 476 U.S. at 417 n.19. The First Circuit
has similarly rejected the notion that rates or tariffs approved by FERC must receive a “meaningful
review” before the filed rate doctrine can apply. See Town of Norwood, 202 F. 3d at 419 (holding
that “[i]t is the filing of the tariffs, and not any affirmative approval or scrutiny by the agency, that
triggers the filed rate doctrine”) (emphasis in the original). Moreover, even the Ninth Circuit has
acknowledged that Brown does not make “meaningful review a sine qua non for the applicability
of the filed rate doctrine.” Carlin v. DairyAmerica, Inc., 705 F.3d 856, 871-72 (9th Cir. 2013)
(noting the filed rate doctrine applies to FERC-approved rates); see Wah Chang, 507 F.3d at 1227
(stating that although “Wah Chang ululates about FERC’s lax oversight . . . laxness does not
indicate, much less establish, that Wah Chang can turn directly to the courts for rate relief”).
Finally, Plaintiffs’ reliance on Composite Co. to carve out an exception to the filed rate
doctrine is also inapposite because, as the court makes clear, that decision did not concern a filed
rate. Composite Co., 988 F. Supp. 2d at 77 (holding that the filed rate doctrine did not apply
because “the experience-modifier at issue in this case is not a filed rate”). The court explained that
the “focus for determining whether the filed rate doctrine applies is the impact the court’s decision
will have on agency procedures and rate determines.” Id. at 78 (quoting H.J., Inc. v. Northwestern
Bell Tel. Co., 954 F.2d 485, 489 (8th Cir. 1992)) (internal quotation marks omitted). Pursuant to
this reasoning, the court in Composite Co. held that the filed rate doctrine did not bar plaintiff’s
claims because a “decision in favor of plaintiff would not discredit any decision of an
administrative agency.” Id. The same cannot be said for Plaintiffs’ requested relief which, even
when packaged as a request to enjoin or award damages for anticompetitive business choices,
requires the Court to determine the reasonableness of rates and tariffs approved by FERC. 9
Plaintiffs’ reliance on City of Kirkwood v. Union Elec. Co., 671 F.2d 1173 (8th Cir. 1982) and
Mishawaka v. Ind. & Mich. Elec. Co., 560 F.2d 1314 (7th Cir. 1977) to carve out an exception to
the filed rate doctrine is similarly unpersuasive. See, e.g., D. 48 at 30. The holdings of these cases
turn on the analysis of price squeeze claims that are irrelevant here. Moreover, in the context of
price squeeze claims, the First Circuit has declined to follow the reasoning in these cases. See
Town of Concord, Mass. v. Boston Edison Co., 915 F.2d 17, 28-29 (1st Cir. 1990).
In sum, the cases Plaintiffs cite in support of the purported exception to the filed rate
doctrine for alleged anticompetitive business decisions are inapplicable here. In lieu of an
applicable exception, Plaintiffs cannot escape the fact that FERC authorized the business choices
that allegedly caused Plaintiffs’ injury. See D. 33 ¶ 99 (explaining that “no-notice contracts, which
are only available to LDCs, give them power to reserve space, or transmission capacity on the
pipeline for a given day and time, then adjust that reservation upward or downward at the last
minute without penalty”); see id. ¶ 110 (noting that “capacity cancellations under no-notice
contracts do not allow the pipeline to release that capacity to other buyers and sellers wishing to
fulfill demand in the market”). Because Plaintiffs’ requested relief would require the Court to
determine the reasonableness of rates and tariffs approved by FERC and because Plaintiffs have
failed to “establish a pertinent limitation on or exception to the filed rate doctrine,” the Court holds
that the doctrine bars the federal and state law claims in the amended complaint. 10
Plaintiffs Have Not Stated a Cognizable Antitrust Claim
Even if the filed rate doctrine did not bar Plaintiffs’ antitrust claims, those claims would
not survive Defendants’ motions to dismiss because Plaintiffs lack standing to bring their claims
Plaintiffs also allege that if they cannot pursue their claims in this Court, they lack an adequate
remedy. D. 59 at 50-51. Although it is true that retail consumers do not have standing to file
complaints with FERC, id., courts have consistently held that lack of a remedy does not create an
exception to the filed rate doctrine. D. 44 at 26 (citing Maislin Indus., U.S., Inc. v. Primary Steel,
Inc., 497 U.S. 116, 128 (1990) (explaining that “[d]espite the harsh effects of the filed rate doctrine,
we have consistently adhered to it”)); see Wah Chang, 507 F.3d at 1226-27 (observing that Plaintiff
“will not have a separate right of action for damages if it does not have this one, but lack of a
damage remedy is not determinative”); Marcus v. AT&T Corp., 138 F.3d 46, 58 (2d Cir. 1998)
(concluding that “[a]pplication of the filed rate doctrine in any particular case is not determined
by . . . the possibility of inequitable results”)). Nonetheless, even if Plaintiffs’ claims were not
barred by the filed rate doctrine, they would still fail for the reasons mentioned herein.
and for the additional reason that Plaintiffs have failed to state a cognizable antitrust
Plaintiffs Lack Antitrust Standing
As an initial matter, Defendants contend that Plaintiffs do not have standing to bring their
antitrust claims. D. 43 at 27; D. 44 at 28. Federal courts are constitutionally limited to deciding
cases or controversies. Merrimon v. Unum Life Ins. Co. of Am., 758 F.3d 46, 52 (1st Cir. 2014).
Accordingly, a plaintiff must establish that it has standing in federal court by demonstrating that
her complaint alleges a case or controversy recognized under Article III of the Constitution. See
Katz v. Pershing, LLC, 672 F.3d 64, 71 (1st Cir. 2012). To do so, “a plaintiff must establish . . .
injury, causation, and redressability.” Id. (citing Lujan v. Defenders of Wildlife, 504 U.S. 555,
560-61 (1992)). At the pleading stage, “[a]n antitrust plaintiff must show both constitutional
standing and antitrust standing.” In re Aluminum Warehousing Antitrust Litig., 833 F.3d 151, 157
(2d Cir. 2016). To determine whether a plaintiff has standing to bring an antitrust cause of action,
the Court conducts “an analysis of prudential considerations aimed at preserving the effective
enforcement of the antitrust laws.” RSA Media, Inc. v. AK Media Grp., Inc., 260 F.3d 10, 13 (1st
Cir. 2001) (quoting Serpa Corp. v. McWane, Inc., 199 F.3d 6, 9-10 (1st Cir. 1999)) (internal
quotation marks omitted). The Court considers:
(1) the causal connection between the alleged antitrust violation and harm to the
plaintiff; (2) an improper motive; (3) the nature of the plaintiff’s alleged injury and
whether the injury was of a type that Congress sought to redress with the antitrust
laws . . . ; (4) the directness with which the alleged market restraint caused the
asserted injury; (5) the speculative nature of the damages; and (6) the risk of
duplicative recovery or complex apportionment of damages.
Id. at 14 (citation omitted). Although courts weigh each of the six factors, lack of injury, in
particular, will generally defeat standing. See Sterling Merch., Inc. v. Nestlé, S.A., 656 F.3d 112,
121 (1st Cir. 2011). The Court will, therefore, address Defendants’ arguments with respect to
antitrust injury first.
“The Supreme Court has defined ‘antitrust injury’ as an ‘injury of the type the antitrust
laws were intended to prevent and that flows from that which makes defendants’ acts unlawful.’”
Serpa Corp.,199 F.3d at10 (quoting Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477,
489 (1977)). To establish antitrust injury, a “proper plaintiff ‘must prove more than injury causally
linked to an illegal presence in the market.’” Serpa, 199 F.3d at 10 (quoting Zenith Radio Corp.
v. Hazeltine Research, 395 U.S. 100, 125 (1969).
The First Circuit has explained that
“[c]ompetitors and consumers in the market where trade is allegedly restrained are presumptively
the proper plaintiffs to allege antitrust injury.” Serpa, 199 F.3d at 10-11.
Defendants assert that Plaintiffs, who are retail electricity consumers, cannot establish
“antitrust injury” because they are not competitors or customers in the natural gas transmission
market allegedly restrained by Defendants’ anticompetitive conduct. D. 43 at 28-20; D. 44 at 2830. Specifically, Defendants argue that Plaintiffs have alleged that market manipulation occurred
in the natural gas transmission market through Defendants’ alleged suppression of New England’s
natural gas supply, while Plaintiffs’ alleged injury occurred in the retail electricity market.
According to Defendants, it is not enough that Plaintiffs participated in the retail electricity market,
which was indirectly affected by Defendants’ antitrust conduct; rather, Plaintiffs must have
directly participated in the market in which Defendants’ alleged anticompetitive conduct occurred
to have standing. D. 44 at 29. Defendants cite Aluminum Warehousing for the proposition that a
“putative plaintiff must be a participant in the very market that is directly restrained” to suffer
antitrust injury. Aluminum Warehousing, 833 F.3d at 161. In Aluminum Warehousing, aluminum
purchasers alleged that futures traders and aluminum warehouse owners conspired to artificially
inflate the price of storing aluminum in London Metal Exchange (“LME”) Warehouses. Id. at
155. The plaintiffs in that case were not participants in any of the markets in which the defendants
operated, however, they alleged that they suffered antitrust injury because their role in the physical
aluminum market was “inextricably intertwined” with the defendants’ alleged anticompetitive
scheme in the aluminum storage market. Id. at 162. The plaintiffs in Aluminum Warehousing
asserted that the increase in storage costs caused by the defendants’ anticompetitive conduct also
increased the price the plaintiffs’ paid for aluminum. Id. at 156. The Second Circuit nevertheless
held there was no cognizable antitrust injury because “the injury [the plaintiffs] claim was suffered
down the distribution chain of a separate market, and was a purely incidental byproduct of the
alleged scheme.” Id. at 162. Consistent with the Second Circuit’s decision in Aluminum
Warehousing, Defendants here urge the Court to dismiss Plaintiffs’ claims because they similarly
do not participate in the market in which Defendants’ alleged unlawful conduct occurred. D. 44
By contrast to the plaintiffs in Aluminum Warehousing, Plaintiffs do not affirmatively
allege that they are “proper” plaintiffs for the purpose of establishing antitrust injury. D. 48 at 4244. Instead, Plaintiffs argue that standing is appropriate where, as here, there is “no one else ‘with
the incentive or ability to sue.’” D. 48 at 42 (quoting SAS of P.R., Inc. v. P.R. Tel. Co., 48 F.3d
39, 45 (1st Cir. 1995)). In SAS, the First Circuit explained that “[t]he most obvious reason for
conferring standing on a second-best plaintiff is that, in some general category of cases, there may
be no first best with the incentive or ability to sue.” SAS, 48 F.3d at 45 (denying standing where
actors directly threatened by the market had “ample incentive and ability” to challenge antitrust
violations); cf. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459
U.S. 519, 542 (1983) (concluding that the “existence of an identifiable class of persons whose self28
interest would normally motivate them to vindicate the public interest in antitrust enforcement
diminishes the justification for allowing a more remote party” to exercise standing). In the instant
litigation, Plaintiffs assert that actors in the natural gas transmission market, including Defendants’
subsidiaries and competitors, are unlikely to bring suit given that they benefited from Defendants’
anticompetitive conduct in the form of inflated prices for natural gas on the spot market. However,
Plaintiffs’ pleadings undermine the persuasiveness of their argument. The amended complaint
alleges that Defendants, through their manipulation of no-notice contracts, did not release their
excess natural gas capacity so that other actors in the market could use that capacity. D. 33 ¶ 147.
If Defendants had released excess capacity, other companies—such as generators looking to jump
into the real-time auction at the last minute—could have purchased it. Id. Surely, at least one gas
seller or purchaser that was consistently deprived the benefits of excess natural gas transmission
capacity due to Defendants’ alleged anticompetitive conduct possessed the requisite incentive or
ability to sue Defendants for direct injury in the natural gas transmission market. 11
Plaintiffs also attempt to invoke the Supreme Court’s decision in Blue Shield of Va. v.
McCready, 457 U.S. 465 (1982), which allowed antitrust claims to proceed where the plaintiff’s
injury was “inextricably intertwined” with the injury the defendant’s conduct sought to inflict upon
the relevant market or participants. D. 44 at 21. In McCready, the Supreme Court considered
whether a plaintiff, who received health care coverage under a Blue Shield of Virginia (“Blue
Plaintiffs’ argument that Defendants’ competitors in the natural gas transmission market have
no incentive to sue Defendants does not require the Court to reach a different result. D. 48 at 42.
Plaintiffs rely on a paragraph of their amended complaint regarding the wholesale and retail
electricity markets in New England. D. 33 ¶ 164. In addition, Plaintiffs have not alleged that
every competitor and customer in the natural gas transmission market benefited from Defendants’
alleged anticompetitive conduct such that there is not a direct market actor with the incentive or
capacity to sue Defendants, as required to satisfy the exceptional circumstances under which courts
confer standing on a “second-best plaintiff.” See SAS, 48 F.3d at 45.
Shield”) health plan, could sue under antitrust laws for an alleged conspiracy between Blue Shield
and Virginia psychiatrists to exclude psychologists from the market by refusing to reimburse health
plan subscribers like the plaintiff for their services. McCready, 457 U.S. at 467-68. Although the
plaintiff in McCready was not a psychologist (and therefore not the immediate target of the alleged
conspiracy), the Supreme Court allowed the plaintiff’s claims to proceed because her injury “was
inextricably intertwined with the injury the conspirators sought to inflict on psychologists and the
psychotherapy market.” Id. at 484. The court explained further that McCready’s injury was a
“necessary step in effecting the ends of the alleged illegal conspiracy” and “the very means by
which it is alleged that [the defendants] sought to achieve its illegal ends.” Id. at 479. The First
Circuit has explained that McCready “may be an instance in which standing was extended to a
plaintiff who was only derivatively injured” or it “can also be read as a case in which the plaintiff
was a purchaser in the very market directly distorted by the antitrust violation.” SAS, 48 F.3d at
45-46. The First Circuit also cast doubt on whether “this [inextricably intertwined] language—if
taken as physical image—was ever intended as a legal test of standing.” Id. at 46. Accordingly,
employing a narrow reading of McCready based on the facts at issue in that case, the Court
concludes that Plaintiffs have not established antitrust standing. See Winters v. Ocean Spray
Cranberries, Inc., 296 F. Supp. 3d 311, 320 (D. Mass. 2017), reconsideration denied, motion to
certify appeal granted, No. CV 12-12016-RWZ, 2018 WL 1627442 (D. Mass. Jan. 2, 2018)
(applying McCready to antitrust claims in view of the First Circuit’s analysis in SAS). The
objective of the alleged anticompetitive scheme in McCready was to exclude psychologists from
Virginia’s market for psychotherapy, and the mechanism by which that scheme was accomplished
required plaintiff and others similarly situated to pay out of pocket for psychologists’ services,
which were not reimbursable under the Blue Shield plan at issue. McCready, 457 U.S. at 467-68.
As such, the plaintiff’s injury was integral to the injury the conspirators sought to inflict upon
psychologists. Id. at 484. Plaintiffs here allege that Defendants sought to increase the profits of
their natural-gas generated electricity plants and the value of their non-natural gas electricity
generating assets by suppressing natural gas supply and, in turn, artificially inflating the wholesale
price of electricity paid to power generators in New England. D. 33 ¶¶ 150-163. By contrast to
the plaintiffs in McCready, the increased cost of retail electricity borne by Plaintiffs here was
merely incidental even to Defendants’ scheme, as alleged by Plaintiffs. That is, Plaintiffs’ injury
was not the “very means” by which Defendants sought to achieve their “illegal ends.” McCready,
457 U.S. at 479. The Court, therefore, concludes that Plaintiffs have not suffered an antitrust
injury. See SAS, 48 F.3d at 43 (explaining that “even where a violation exists and a plaintiff has
been damaged by it, the courts—for reasons of prudence—have sought to limit the right of private
parties to sue for damages or injunctions”).
Assuming arguendo that Plaintiffs did in fact suffer an antitrust injury, the Court would
still have to determine whether Plaintiffs’ injury is sufficiently connected to Defendants’ alleged
anticompetitive conduct. See Winters, 296 F. Supp. 3d at 322. This task is guided by the first and
fourth factors of the standing analysis, which require examination of the “causal connection
between the alleged antitrust violation and harm to the plaintiff” and “the directness with which
the alleged market restraint caused the asserted injury.” RSA, 260 F.3d at 14 (citation omitted).
The causal connection between Defendants’ alleged suppression of the supply of natural gas and
Plaintiffs’ injury as retail electricity consumers is attenuated at best. Plaintiffs’ injury allegedly
stems from Defendants’ anticompetitive conduct in the natural gas transmission market, which is
at least three markets removed from the retail electricity market. See, e.g., D. 33 ¶ 8. Accordingly,
for Plaintiffs to suffer any injury, the anticompetitive effect of Defendants’ conduct must pass
through the natural gas supply transmission market, to the spot market for consumers with
“variable and less predictable” natural gas needs, id. ¶ 88, to the wholesale electricity auction,
which involves a complicated bidding process designed to discourage competitors from offering
prices well above the competition, id. ¶ 57, and finally to retail electricity consumers. In addition,
the lack of directness between the alleged restraint and injury counsels in favor of dismissal
because Plaintiffs’ injury was merely an offshoot of the injuries suffered by buyers in the spot
market for natural gas and the wholesale electricity market. See Associated Gen., 459 U.S. at 54041 (concluding that the plaintiff lacked antitrust standing where “the chain of causation between
[the plaintiff’s] injury and the alleged restraint . . . contains several somewhat vaguely defined
links” and where “[i]t is obvious that any such injuries were only an indirect result of whatever
harm may have been suffered” by more immediate victims); see also Sullivan v. Tagliabue, 828
F. Supp. 114, 118 (D. Mass. 1993), aff’d, 25 F.3d 43 (1st Cir. 1994) (dismissing one plaintiff’s
antitrust claims for lack of standing where “[i]t is obvious that any injury suffered . . . was only an
indirect result of the alleged injury inflicted” upon another plaintiff). For similar reasons, a district
court in this Circuit dismissed antitrust claims involving an alleged restraint in one market that
impacted prices in a second market. Winters, 296 F. Supp. 3d at 322 (dismissing antitrust claims
where “the harm [plaintiffs’] allege is indirect” given that defendant Ocean Spray “first influences
independent handlers, who in turn, lower the prices they pay independent growers”). The Court
concludes that Plaintiffs’ injury is indirect and only remotely connected to Defendants’ alleged
Further, even as alleged, the nature of any damages is attenuated and the risk of duplicative
recovery is real. As Defendant Eversource indicates, determining damages in this case would
require speculation. D. 43 at 29. For example, for each day during the class period, the factfinder
would first be required to determine whether Defendants adjusted their natural gas capacity
Then, the factfinder would have to distinguish between the anticompetitive
suppression of natural gas supply and Defendants’ legitimate need to adjust reservation capacity
for the benefit of natural gas customers. Subsequently, the factfinder would need to determine
whether Defendants’ alleged suppression of New England’s natural gas supply impacted the
market price of natural gas in the spot market that day, whether the clearing price for wholesale
electricity was artificially inflated because of the price of natural gas that same day and, finally,
the extent to which the resulting artificial inflation of wholesale electricity prices was passed on to
retail electricity consumers.
In other words, to determine Plaintiffs’ damages based upon
Plaintiffs’ allegations, the factfinder would be required to engage in an analysis of how multiple
markets functioned on a given day, including evaluation of the inputs and outputs for each market,
factors that influenced prices offered and accepted by actors in each market and the effectiveness
of an auction process regulated by FERC. There is a risk that resulting damages calculations (if
they could be fairly determined) would be speculative and would present significant concerns
regarding apportionment of damages and the risk of duplicative recovery. Any damages award
would need to be correctly apportioned amongst hundreds of thousands of retail electricity
customers of Avangrid and Eversource’s subsidiaries. In addition, allowing the Plaintiffs, as retail
electricity consumers, to move forward with their claims, opens the door for duplicative recovery
in contravention of well settled antitrust law since Plaintiffs’ injuries are the indirect result of harm
allegedly suffered by actors in the spot market for natural gas or the wholesale electricity market.
See Associated Gen., 459 U.S. at 545 (reversing lower court’s holding in favor of antitrust
plaintiffs where “the [d]istrict [c]ourt would face problems of identifying damages and
apportioning them among directly victimized . . . and indirectly affected . . . entities”); Ill. Brick
Co. v. State of Illinois, 431 U.S. 720, 737 (1977) (stating that “[p]ermitting the use of pass-on
theories . . . would transform treble-damages actions into massive efforts to apportion the recovery
among all potential plaintiffs that could have absorbed part of the overcharge from direct
purchasers to middlemen to ultimate consumers”).
Although Plaintiffs allege that Defendants maintained an improper motive for artificially
restricting New England’s natural gas supply, the Court concludes that Plaintiffs’ allegations are
insufficient as a matter of law. The remaining factors for antitrust standing—including the nature
of Plaintiffs’ injury, the tenuous and speculative character of the relationship between the alleged
antitrust violation and Plaintiffs’ injury and the potential for duplicative recovery or complex
apportionment of damages—weigh heavily against judicial enforcement of Plaintiffs’ antitrust
Plaintiffs Have Not Sufficiently Alleged Monopoly Power
Even if Plaintiffs’ federal antitrust claims were not barred by the filed rate doctrine or
foreclosed by Plaintiffs’ lack of antitrust standing, the Court would conclude that they do not state
plausible antitrust claims. Section 2 of the Sherman Act makes it illegal to “monopolize, or attempt
to monopolize . . . any part of the trade or commerce” among several states. Díaz Aviation Corp.
v. Airport Aviation Servs., Inc., 716 F.3d 256, 265 (1st Cir. 2013) (quoting 15 U.S.C. § 2) (internal
quotation marks omitted). “To prove a violation of this statute, a plaintiff must demonstrate (1)
that the defendant possesses ‘monopoly power in the relevant market’ and (2) that the defendant
has acquired or maintained that power by improper means.” Town of Concord, Mass. v. Bos.
Edison Co., 915 F.2d 17, 21 (1st Cir. 1990) (quoting United States v. Grinnell Corp., 384 U.S.
563, 570-71 (1966)). To prove attempted monopolization, a plaintiff must demonstrate “(1) that
the defendant has engaged in predatory or anticompetitive conduct with (2) a specific intent to
monopolize and (3) a dangerous probability of achieving monopoly power.” Spectrum Sports,
Inc. v. McQuillan, 506 U.S. 447, 456 (1993).
The thrust of Defendants’ arguments on the plausibility of Plaintiffs’ claims concern the
first prong of the monopolization analysis, i.e., whether Defendants possess monopoly power in
the relevant market. As an initial matter, Defendant Avangrid contends that Plaintiffs have failed
to allege a relevant geographic market. See Coastal Fuels of P.R., Inc. v. Caribbean Petroleum
Corp., 79 F.3d 182, 197 (1st Cir. 1996) (explaining that “[b]efore determining market share,
however, the relevant geographic market must be defined”). “The plaintiff carries the burden of
describing a well-defined relevant market, both geographically and by product, which the
defendants monopolized.” Id. (quoting H.J., Inc. v. Int’l Tel. & Tel. Corp., 867 F.2d 1531, 1537
(8th Cir. 1989)). Although the question of market definition is usually one of fact for the jury, “a
plaintiff must present sufficient evidence from which a reasonable jury could find the existence of
the proposed relevant market.” Coastal Fuels, 79 F.3d at 197. Defendant Avangrid alleges that
“New England” is not a plausible relevant geographic market because Plaintiffs have not “pled
facts to support the notion that a residential retail electricity consumer in one town, county, city or
state in New England can turn to supplies in any other town, county, city or state.” D. 44 at 33.
This is not the test for determining whether a relevant geographic market has been defined. To the
contrary, the First Circuit has determined that the relevant geographic market consists of “the
geographic area in which the defendant faces competition and to which consumers can practically
turn for alternative sources of the product.” Coastal Fuels, 79 F.3d at 196. Plaintiffs have
sufficiently alleged that the six states that constitute New England are organized into a single
electricity market in which Defendants participate, D. 33 ¶¶ 59, 102-3, and alternatives to
Defendants’ retail electricity companies exist in that geographic market.
Defendants also contend that the amended complaint fails to establish either through direct
or circumstantial evidence that their respective shares of the retail electricity market are substantial
enough to infer market power for a monopolization claim. Courts define “[m]onopoly power . . .
as ‘the power to raise prices and exclude competition.’” Hewlett-Packard Co. v. Bos. Sci. Corp.,
77 F. Supp. 2d 189, 195 (D. Mass. 1999) (quoting United States v. E.I. du Pont de Nemours &
Co., 351 U.S. 377, 391 (1956)). “Market power can be shown through two types of proof,” either
through “direct evidence of market power,” such as “actual supracompetitive prices and restricted
output,” or “circumstantial evidence of market power.” Coastal Fuels, 79 F.3d at 196-97. The
amended complaint asserts that Eversource, through subsidiaries that provide retail electricity to
residents in Massachusetts, Connecticut and New Hampshire, services more than 3.1 million
electricity customers in 500 New England communities. D. 33 ¶ 102. Avangrid also owns
subsidiaries that provide retail electricity to more than 950,000 electricity customers located in
Connecticut and Maine. D. 33 ¶ 103. The amended complaint does not, however, provide details
regarding Eversource’s or Avangrid’s alleged share of the retail electricity market. Defendants
claim this omission is fatal to Plaintiffs’ complaint. See D. 43 at 31 n.19. Moreover, Defendant
Avangrid argues that even assuming that only Eversource and Avangrid provide retail electricity
in New England, Plaintiffs’ allegations indicate that Avangrid has 23% share of the market, which
is insufficient to support a monopolization claim. D. 44 at 31-32. By comparison, courts in the
First Circuit determined that “[f]or pleading purposes, an allegation of market share of 70 percent
has been held to be an adequate basis for an inference of power in a relevant market.” Cal. Ass’n
of Realtors, Inc. v. PDFfiller, Inc., No. CV 16-11021-IT, 2018 WL 1403330, at *10 (D. Mass.
Mar. 2, 2018), report and recommendation adopted, No. 16-CV-11021-IT, 2018 WL 1399296 (D.
Mass. Mar. 19, 2018) (quoting Hewlett-Packard, 77 F.2d at 195-96).
In response, Plaintiffs contend that they have sufficiently alleged direct evidence of
monopoly power by pointing to Defendants’ collective control over other markets, other than the
retail electricity market, that allegedly determine retail electricity prices. See, e.g., D. 33 ¶ 94, 99,
113, 118; see also D. 48 at 39. Specifically, Plaintiffs allege that Defendant Eversource partially
owns New England’s principal natural gas pipeline. D. 33 ¶ 95. Both Eversource and Avangrid
own and operate multiple LDCs. Id. ¶ 97. Of the eight largest LDCs in New England, half are
owned by Eversource or Avangrid. Id. As a result of their LDC operations, Eversource and
Avangrid possess a large number of “no-notice” contracts for natural gas transmission capacity,
which allow Defendants’ LDCs to reserve large quantities of natural gas transmission capacity.
Id. ¶ 127. In addition, LDCs can adjust their transmission capacity reservations upward or
downward at any time and without penalty and, as a result, LDCs control the supply of natural gas
transmitted to New England. Id. ¶ 99. Finally, Defendants’ combined ability to suppress natural
gas supply grants them control over the price of wholesale electricity, which, in turn, impacts the
price of retail electricity for the reasons previously explained. Nonetheless, as Defendants
correctly note, Plaintiffs have failed to allege any facts indicating that Avangrid and Eversource
each separately have the power to control or raise prices of any product in any market. At bottom,
a claim for monopolization requires that Plaintiffs allege facts sufficient to establish that
Defendants separately possessed monopoly power in the relevant market. Accordingly, courts in
the First Circuit and elsewhere have rejected monopolization claims based on a “shared monopoly”
theory of liability. See PSW, Inc. v. VISA U.S.A., Inc., No. C.A. 04-347T, 2006 WL 519670, at
*11 (D.R.I. Feb. 28, 2006) (explaining that “to state any claim under Section Two’s actual or
attempted monopoly clauses, a claimant is required to assert that the individual market power of a
defendant is sufficient to constitute a monopoly, in this analysis, the combined monopoly power
of competitors is irrelevant and insufficient”) (emphasis in the original); see also RxUSA
Wholesale, Inc. v. Alcon Labs., Inc., 661 F. Supp. 2d 218, 235 (E.D.N.Y. 2009), aff’d sub nom.
RxUSA Wholesale Inc. v. Alcon Labs., 391 F. App’x 59 (2d Cir. 2010) (explaining that courts in
the Second Circuit “have uniformly held or approved the view that allegations of a ‘shared
monopoly’ do not state a claim under section 2 of the Sherman Act”) (internal citations and
quotation marks omitted); Sun Dun, Inc. of Wash. v. Coca-Cola Co., 740 F. Supp. 381, 391 (D.
Md. 1990) (dismissing monopolization and attempted monopolization claims alleging a shared
monopoly theory of liability). Where the allegations here do not allege Defendants’ individual
capacity to control the retail electricity market, the Plaintiffs have not met their burden under the
elements of either monopolization or attempted monopolization. Accordingly, the Plaintiffs have
not stated cognizable antitrust claims.12
State Law Claims
Plaintiffs bring claims for damages and injunctive relief under various state antitrust,
consumer protection and unfair trade statutes. Although the filed rate doctrine applies with equal
force to Plaintiffs’ state law claims, see Snohomish, 384 F.3d at 761 (explaining that the filed rate
doctrine preempted antitrust and unfair competition claims grounded in state law where such
claims required the court to determine rates that “would have been achieved in a competitive
market”) (internal quotation marks omitted), the Court concludes that Plaintiffs’ state law claims
also fail for the reasons stated below.
Because Plaintiffs have not stated cognizable antitrust claims for monopolization, the Court does
not reach Defendant Avangrid’s argument that Plaintiffs’ antitrust claims are grounded in a
“refusal to deal” theory of antitrust liability that runs afoul of well-settled Supreme Court
precedent. D. 43 at 25 (citing Pac. Bell Tel. Co. v. Linkline Commc’ns, Inc., 555 U.S. 438 (2009)
and Verizon Commc’ns v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398 (2004)).
First, Plaintiffs’ inability to demonstrate antirust standing, as discussed above, forecloses
Plaintiffs’ state antitrust claims under Maine’s antitrust laws, 10 Me. Rev. Stat. Ann. §§ 1101 et
seq. See Knowles v. Visa U.S.A. Inc., No. CIV.A. CV-03-707, 2004 WL 2475284, at *3-9 (Me.
Super. Oct. 20, 2004) (applying the factors for determining federal antitrust standing in evaluating
claims brought under Maine’s antitrust statute). Second, Plaintiffs fail to state a claim under state
consumer protection and unfair competition statutes, which each require allegations regarding (1)
an unfair or deceptive act or practice on the part of the defendant; (2) an injury or loss suffered by
the consumer; and (3) a causal connection between the wrongful conduct and the consumer’s
injury. See Shaulis v. Nordstrom, Inc., 865 F.3d 1, 6 (1st Cir. 2017) (explaining that “[t]o state a
viable claim [under the Massachusetts Consumer Protection Act], the plaintiff must allege that she
has suffered an ‘identifiable harm’ caused by the unfair or deceptive act that is separate from the
violation itself”) (quoting Tyler v. Michaels Stores, Inc., 464 Mass. 492, 503 (2013)); Edwards v.
N. Am. Power & Gas, LLC, 120 F. Supp. 3d 132, 141 (D. Conn. 2015) (outlining requirements
for violation of Conn. Gen. Stat. § 42-110 et seq.); McKinnon v. Honeywell Int’l, Inc., 977 A.2d
420, 427 (Me. 2009) (explaining that establishing a violation of Maine’s Unfair Trade Practices
Act requires, at a minimum, that plaintiff show a loss of money or property and substantial injury
caused by the alleged deceptive or unfair practice); State v. Moran, 151 N.H. 450, 452 (2004)
(explaining that courts should consider whether defendant’s conduct caused “substantial injury to
consumers” in determining whether such conduct constitutes a violation of the New Hampshire
Consumer Protection Act); Carter v. Gugliuzzi, 716 A.2d 17, 21 (Vt. 1998) (explaining that the
Vermont Consumer Fraud Act “provides a remedy for any consumer who contracts for goods or
services and, in reliance upon false or fraudulent representations or promises, sustains damages or
injury” caused by the defendant).
For the reasons previously stated, supra at 31-32, the Court concludes that Plaintiffs’ injury
is too remote to satisfy the causation prongs of the various state law claims. See, e.g., Empire
Today, LLC v. Nat'l Floors Direct, Inc., 788 F. Supp. 2d 7, 30 (D. Mass. 2011) (explaining that
the relationship between defendant’s allegedly unlawful conduct and plaintiff’s injury “only
proves a correlation, not a causation”); In re Hannaford Bros. Co. Customer Data Sec. Breach
Litig., 660 F. Supp. 2d 94, 100 (D. Me. 2009) (explaining that under Maine law it is well settled
that “a plaintiff may not recover damages if the causal relation between a defendant’s tortious act
. . . and the harm suffered is ‘too attenuated’”) (quoting Stubbs v. Bartlett, 478 A.2d 690, 693 (Me.
1984)); Vacco v. Microsoft Corp., 793 A.2d 1048, 1050 (Conn. 2002) (concluding that “plaintiff’s
claimed injuries are too indirect and remote with respect to the defendant’s allegedly
anticompetitive conduct for the plaintiff to recover under CUTPA”). Nevertheless, the Court, for
the reasons previously mentioned, has dismissed all of Plaintiffs’ federal claims and declines to
exercise jurisdiction over the remaining state law claims. See United Mine Workers of Am. v.
Gibbs, 383 U.S. 715, 726–27 (1966) (explaining that if the “federal claims are dismissed before
trial . . . the state claims should be dismissed as well” and “if it appears that the state issues
substantially predominate . . . the state claims may be dismissed . . . and left for resolution to state
For the foregoing reasons, the Court ALLOWS Defendants’ motions to dismiss, D. 41; D.
/s/ Denise J. Casper
United States District Judge
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