Bellermann v. Fitchburg Gas and Electric Light Co.

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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.