Judge hears arguments to dismiss class-action lawsuit against CMP

A protracted attempt by a group of five Central Maine Power customers to file a class-action lawsuit against the utility and its parent companies should be dismissed, lawyers for CMP argued Tuesday in U.S. District Court, because a process to dispute inaccurate bills already is in place at the Maine Public Utilities Commission.

That process, however, hasn’t gotten at the root causes of why each of the customers had higher-than-expected electric bills, lawyers for the customers told Chief Judge Jon D. Levy, which is why the lawsuit should go forward.

For most Mainers, the saga of CMP billing problems ended last January, when the PUC voted to penalize CMP by cutting its earnings by nearly $10 million over 18 months, citing the company’s longstanding customer service failings and mismanagement of its new metering and billing system.

The $9.9 million earnings reduction was the largest single financial penalty ordered for a utility and its shareholders by the PUC in recent history.

Since then, CMP has been filing monthly reports at the PUC on any customer-related problems it finds with its SmartCare billing system and the fixes done to resolve them.

But the PUC’s responses fall short of what plaintiffs in the case say is required to remedy their complaints.

In an interview last year with the Portland Press Herald, attorney Sumner Lipman estimated that a total of 300,000 customers may have been overcharged as much as $200 million. Asked if he has evidence to support that claim, Lipman said he was basing it on the number of people contacting his office and their average bills, as well as the CMP Ratepayers Unite customer advocacy group.

“I don’t think we can prove 300,000 cases individually,” he said at the time. “But I think we have enough evidence that a jury would find that this was the general practice. People have a right to a jury trial.”

Since then, the case was moved from Maine Superior Court to federal court.

CMP’s parent company, Iberdrola of Spain, is seeking to have the case thrown out or at least have the court issue a stay until the customers pursue remedies offered by the PUC. In a reply filing, CMP’s representatives note that the PUC looked into the allegations underlying the lawsuit and “found that no systemic defects exist causing erroneous bills.”

They went on to say, “It appears that plaintiffs are dissatisfied with the PUC’s conclusion that the core factual premise of Plaintiffs’ entire case – that CMP charged for electricity that plaintiffs did not use – is just wrong, and they would thus like to create the specter of a class action in this court, instead of proving the facts of their individual claims in front of the regulatory experts.”

Lawyers for the customers, however, point to the limitations of the PUC process, which they say is now irrelevant to the court case. They say the PUC will not evaluate individual customer claims based on the premise of a systemic problem and a cover-up to conceal it, “which is the essence of this court case.”

The customers’ claim, the plaintiffs’ lawyers say, “is that there was, in fact, a pervasive and systematic failure in CMP’s meters and SmartCare that resulted in erroneous metering and billing, and that defendants, through CMP, misled customers about it.”

Those arguments formed the basis for Tuesday’s court proceeding, which was held remotely via Zoom.

Gavin McCarthy, the attorney representing Iberdrola, CMP and its domestic parent, Avangrid, noted that an independent auditor process ramping up at the PUC can get to the bottom of remaining customers’ complaints of high bills.

“We will know if any of these five Maine plaintiffs has actually been billed for electricity they didn’t use,” McCarthy told the court.

But those high bills occurred there years ago, Levy noted. How could audits help now?

Either way, McCarthy said, the plaintiffs can bring their own evidence and experts to the PUC and if not satisfied, could appeal to the state’s Supreme Judicial Court.

But Jeff Russell, an attorney for the plaintiffs, said the audit process was of no value to his clients, who may not even be eligible for the reviews. The PUC already had found no systemic error, blaming the high bills on extreme cold and an ill-timed rate increase. But his clients have evidence that meter defects could be the cause, despite the PUC’s conclusions.

“We believe the (PUC’s) investigation was inadequate,” he said.

In his questioning, Levy tried to assess how long it would take for the plaintiffs to find resolution via the two different paths. Russell noted that this case was filed more than two years ago, and that another two years or more could pass before it is resolved.

Sensitive to the passage of time, Levy said he’d consider the arguments and release a written decision promptly.