PUCO Litigation Involving Broker Contract Comes To An End But Only After Motion To Dismiss Denied

February 16, 2021

A pending complaint action before The Public Utilities Commission of Ohio (“PUCO”) involving a commercial customer, H.P. Technologies, Inc. (“HP”) and its contracted sales representative, Ryan E. Boucher (“Broker”) has come to an end.  On February 12, 2021, HP and Broker filed a Joint Notice of Dismissal asking PUCO to dismiss the complaint with prejudice.  No details were provided as to any agreements that may have been reached between HP and Broker leading to the joint request to dismiss. 

HP’s complaint (as amended) alleged that upon entering into a contract with Broker, Broker began to directly solicit HP’s then-existing customers and instructed them to work directly with Broker regarding their energy services.  HP also alleged that Broker was not certificated by PUCO during the period of time it was engaging in regulated activities.  HP further alleged that Broker provided misleading information to PUCO at the time it was: (1) seeking initial certification, (2) attempting to abandon initial certifications; and, (3) seeking certification for a new entity.  HP sought an order: (1) directing Broker to cease and desist marketing and soliciting customers; (2) to rescind all contracts Broker entered into with customers; (3) requiring restitution and/or damages; (4) assessing a civil forfeiture; (5) rescinding all PUCO certifications; and, (6) permanently barring Broker from providing regulated services in the future.

Broker’s answer to complaint claimed that it was not providing services which required certification by PUCO, that PUCO lacked jurisdiction to award damages, and that HP was using the complaint as a way to prevent Broker from conducting business.

While the matter was amicably resolved prior to PUCO review, the Attorney Examiner’s ruling on Broker’s motion to dismiss is insightful.  Apart from concluding that issues of fact were presented requiring an evidentiary hearing, the Attorney Examiner also found that the matters presented were within PUCO’s “expertise and the normal practice of the regulated utility.”  Moreover, the Attorney Examiner judged Broker’s defenses as “incapable of adjudication outside the realm of an evidentiary hearing” because they involved: (1) assertions of agency authority; and, (2) fact determinations as to whether and when Broker acted in a regulated capacity.  

While procedural motions like this may be a cost-effective path forward, experience and knowledge with the regulatory agency is advised to help identify the best course of action based on the particular case presented. 

This Eckert Seamans Energy Supplier Litigation Blog is intended to keep readers current on matters affecting businesses and is not intended to be legal advice.  If you have any questions regarding the above, please contact Deanne O’Dell (dodell@eckertseamans.com) at 717.255-3744, or any other attorney at Eckert Seamans with whom you have been working.

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