Bellermann v. Fitchburg Gas & Electric Co. , 470 Mass. 43 ( 2014 )

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SJC-11492
MARCIA D. BELLERMANN & others1 vs. FITCHBURG GAS AND ELECTRIC
LIGHT COMPANY.
Worcester. March 4, 2014. - October 30, 2014.
Present: Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.
Electric Company. Public Utilities, Electric company.
Practice, Civil, Class action, Consumer protection case,
Judicial discretion. Consumer Protection Act, Class
action, Unfair or deceptive act. Administrative Law,
Preclusive effect of decision. Collateral Estoppel.
Estoppel.
Civil action commenced in the Superior Court Department on
January 7, 2009.
Motions for class certification and for summary judgment
were heard by Douglas H. Wilkins, J., and a decision denying
class certification was reported by him to the Appeals Court.
A proceeding for interlocutory review was heard in the
Appeals court by Cynthia J. Cohen, J., and after consolidation
of the appeals, the Supreme Judicial Court granted an
application for direct appellate review.
1
Paul O'Connell, doing business as Lunenburg Exxon, also
known as Lunenburg Gulf; Dee Anne Aylott; Gary H. Asher; Daisy
Bacener; Beverly Christenson; 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
Barry M. Altman & C. Deborah Phillips (James L. O'Connor,
Jr., Edwin H. Howard, & James M. Galliher with them) for the
plaintiffs.
Gavin J. Rooney, of New Jersey (Natalie J. Kraner, of New
Jersey, with him) for the defendant.
Robin L. Main for Massachusetts Electric Company & others,
amici curiae, submitted a brief.
DUFFLY, J. This case arises out of a major ice storm that
struck areas of the northeastern United States in December, 2008
(Winter Storm 2008). The defendant, Fitchburg Gas and Electric
Light Company (FG&E), is a public utility that provides electric
service to customers in the municipalities of Fitchburg,
Lunenburg, Townsend, and Ashby, which were among those affected
by the storm. FG&E is one of the utilities owned by Unitil
Corporation (Unitil). The plaintiffs are twelve residential and
business customers of FG&E who lost power during Winter Storm
2008. They filed a suit in the Superior Court on behalf of
themselves and those similarly situated, asserting claims of
gross negligence and violation of G. L. c. 93A. Pursuant to
G. L. c. 93A, §§ 9 (2) and 11,2 and Mass. R. Civ. P. 23, as
2
General Laws c. 93A, § 9 (2), provides that "[a]ny persons
entitled to bring [an] action [under § 9 (1) 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 and if the court finds
in a preliminary hearing that he adequately and fairly
represents such other persons, 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.
3
amended, 452 Mass. 1401 (2008) (rule 23),3 the plaintiffs moved
to certify a class consisting of FG&E's residential and business
customers; their dependents, tenants, and employees; and other
users of electricity who sustained damages as a result of FG&E's
inadequate preparation for and response to Winter Storm 2008.
The parties also filed cross-motions for partial summary
judgment on the plaintiffs' G. L. c. 93A claims. In their
motion for partial summary judgment, the plaintiffs sought issue
preclusive effect of certain findings made by the Department of
Public Utilities (DPU) in two prior administrative adjudications
related to FG&E's conduct during Winter Storm 2008. See D.P.U.
11-01 (2011); D.P.U. 09-01-A (2009).
After a combined hearing on these motions, the judge issued
3
Mass. R. Civ. P. 23, as amended, 452 Mass. 1401 (2008),
provides, in relevant part:
"(a) Prerequisites to Class Action. One or more
members of a class may sue or be sued as representative
parties on behalf of all only if (1) the class is so
numerous that joinder of all members is impracticable,
(2) there are questions of law or fact common to the class,
(3) the claims or defenses of the representative parties
are typical of the claims or defenses of the class, and
(4) the representative parties will fairly and adequately
protect the interests of the class.
"(b) Class Actions Maintainable. An action may be
maintained as a class action if the prerequisites of
subdivision (a) are satisfied, and the court finds that the
questions of law or fact common to the members of the class
predominate over any questions affecting only individual
members, and that a class action is superior to other
available methods for the fair and efficient adjudication
of the controversy."
4
two decisions. He denied the plaintiffs' motion for class
certification, and, while determining that the application of
offensive issue preclusion was appropriate, he also denied the
motions for summary judgment as to all but two claims that are
not at issue here. The judge then reported his decision denying
class certification to the Appeals Court pursuant to Mass. R.
Civ. P. 64 (a), as amended, 423 Mass. 1403 (1996), and FG&E
sought interlocutory review, pursuant to G. L. c. 231, § 118, of
the judge's decision as to issue preclusion. A single justice
of the Appeals Court allowed the petition for interlocutory
review, and the two appeals were consolidated in the Appeals
Court. We allowed the plaintiffs' application for direct
appellate review. We conclude that the judge did not abuse his
discretion in declining to certify a class and in applying issue
preclusion to facts found after evidentiary hearings at the DPU.4
Background. We summarize the facts set forth in the
judge's decisions, supplemented by other undisputed facts in the
record.
FG&E receives all of its electric power from four
transmission supply lines owned by National Grid USA Service
Company, Inc. (National Grid). Each of these lines ties into a
4
We acknowledge the amicus brief submitted by Massachusetts
Electric Company, doing business as National Grid; Nantucket
Electric Company, doing business as National Grid; and Northeast
Utilities.
5
substation in southwest Fitchburg. From this substation, FG&E's
network consists of sixty miles of subtransmission lines that
feed into 680 miles of distribution lines. At the time of
Winter Storm 2008, FG&E had approximately 28,500 customers.
1. Winter Storm 2008. Winter Storm 2008 was an ice storm
that struck the northeastern United States, including FG&E's
service territory, on December 11 and 12, 2008. As a result of
that storm, ice accumulated on utility poles and tree limbs in
FG&E's territory, causing limbs and whole trees to fall onto
FG&E utility poles, electrical lines, and other electrical
infrastructure. The storm also damaged the National Grid
transmission lines that supply FG&E's system with power. In
total, Winter Storm 2008 resulted in power outages for over one
million customers in New England, New York, and Pennsylvania,
including one hundred per cent of FG&E's customers.
2. FG&E's preparedness and restoration efforts. In 1992,
sixteen years before Winter Storm 2008, the DPU had directed
FG&E and several other utilities to "implement or to maintain a
system for reviewing emergency plans on an annual basis," and
had advised them that "it would be beneficial for each company
to examine the other [c]ompanies' plans in order to consider the
incorporation of useful changes." D.P.U. 91-228, at 4 (1992).
In 2002, the DPU further advised FG&E to "consider the use of
extreme weather condition forecasts with outages or
6
contingencies simulated in the power flow model for plan[n]ing
and designing [transmission and distribution] facilities."
In 2006 and 2007, FG&E sent newsletters to its customers
extolling its ability to respond to outages and asserting that
"safety and service reliability are our first priorities." FG&E
also filed annual emergency restoration plans (ERPs) with the
DPU; these plans set forth an overview of FG&E's service
restoration processes and priorities, defined organizational and
functional responsibilities, identified communications
protocols, and described the framework required to restore power
in the event of a major storm or other emergency. Other severe
ice storms occurred in Unitil's service area, but contrary to
the recommendation in the DPU's 1992 order, FG&E did not study
the storm preparation and response practices of other
Massachusetts utilities. FG&E's ERP in effect at the time of
Winter Storm 2008 did not address a storm as severe and
widespread as that storm.
At the time of Winter Storm 2008, FG&E also had in effect a
vegetation management policy providing tree-trimming cycles for
each of the circuits in its system. By the end of 2006,
however, FG&E's vegetation management program had become
underfunded, and FG&E had fallen behind on its tree-trimming
schedule. Rather than increasing its vegetation management
budget, FG&E responded by adjusting downward its clearance
7
standards and vegetation management cycles.
After Winter Storm 2008 struck, FG&E began restoring power
to its customers on a rolling basis. The process started early
on December 12, once National Grid had repaired its transmission
supply lines, when FG&E restored power to about five hundred
customers in downtown Fitchburg whose underground network system
was largely insulated from the weather. To complete full
restoration, however, FG&E had to repair 244 utility poles,
192,729 feet of wire conductor, and 170 transformers. FG&E did
not employ a sufficient number of its own restoration crews to
respond to Winter Storm 2008, and had only limited success in
obtaining additional crews from other utilities. By December
20, more than 4,000 FG&E customers remained without power, and
at the Commonwealth's request, National Grid stepped in to
complete the necessary restoration work. The last customers did
not have power until December 25.
The plaintiffs experienced outages beginning on either
December 10, 11, or 12, and persisting for periods ranging from
four to twelve days. Although all were attributable to the
storm, the immediate reasons for their loss of power differed.
For example, some plaintiffs lost power due to damage to FG&E's
subtransmission lines, whereas others lost power when trees in
their yards, for which FG&E does not bear responsibility, fell
on their individual service lines. The plaintiffs' affidavits
8
set forth various damages caused by the outages, including lost
income and business profits, burst pipes, dead plants and pet
fish, spoiled food, and other expenses incurred as a consequence
of and in response to the outages.
3. FG&E's public communications. FG&E's ERP at the time
of Winter Storm 2008 provided that one of its primary
responsibilities during an emergency was "[t]o keep the public
informed of the status of the restoration in a timely manner
through direct contact with town and city officials and the news
media." According to FG&E, its principal method for
communicating with the public during Winter Storm 2008 was
through public service announcements (PSAs). FG&E issued
between one and five PSAs daily from December 11 through
December 24.
As of the morning of December 11, FG&E knew that the
weather forecast was for "anywhere from 1/4 inch to more than 1
inch of ice," that "the current thinking is that FG&E is in the
worst position" of the Unitil subsidiaries, and that "1/4 inch
of ice and a little wind would be problematic, so having a
forecast of over 1 inch would likely result in an extended
restoration period that could easily exceed one week."
Nevertheless, FG&E issued the following PSA later that day:
"Most electrical outages are expected to be for relatively short
periods of time, only. However, severe weather conditions can
9
create substantial damage to the electrical system, and
restoration can take an extended period of time."
Within the first few hours of Winter Storm 2008, FG&E had
information that its system had suffered extensive damage that
affected more than just its subtransmission and distribution
facilities. Accordingly, when it energized its subtransmission
lines on December 14, it knew that this would not restore power
to a large majority of its customers. During this time, FG&E
also learned that it would not have access to repair crews that
it previously had believed would be available. Nonetheless,
from December 12 through December 15, FG&E's PSAs stated that it
would "take days" or "several days" to restore power. On
December 16, FG&E's PSAs began referring to "restoration of all
primary circuits" by the end of the week, without explaining
that this did not mean that all customers would have their power
restored by that time. FG&E had information about the need for
"extensive rebuilding of circuits," but it did not communicate
this fact until December 19.
FG&E's PSAs also served as the source of information for
its customer service representatives. From December 11 through
December 25, FG&E's call center received 164,136 calls, of which
only 32,327 reached a customer service representative. Some
customers who did speak with representatives, including two of
the plaintiffs, received false predictions as to when they could
10
expect their power to be restored. Others who attempted to call
did not speak to representatives but were connected to automated
recordings that provided no information about restoration times.
4. DPU proceedings. On January 7, 2009, the DPU, pursuant
to its regulatory authority under G. L. c. 164, §§ 1E and 76,
opened an investigation into FG&E's preparation for and response
to Winter Storm 2008. The purpose of the investigation was to
determine whether FG&E had satisfied its public service
obligation to provide safe and reliable service.5 See D.P.U. 09-
01-A, at 6-8, and authorities cited.
The DPU began its investigation by holding two public
hearings and requesting written comments. The DPU accepted both
sworn and unsworn statements, although it informed the public
that it would not rely on unsworn statements in its decision-
making process. See 220 Code Mass. Regs. § 1.10(1) (2008) ("The
[DPU] shall follow the rules of evidence observed by courts when
practicable . . . . All unsworn statements appearing in the
record shall not be considered as evidence on which a decision
5
The order opening the investigation by the Department of
Public Utilities (DPU) announced that it would focus on
Fitchburg Gas and Electric Light Company's (FG&E's)
(1) emergency restoration plan (ERP); (2) preparation for Winter
Storm 2008 and management of restoration efforts;
(3) cooperation with other utilities in sharing restoration
resources; (4) procurement and allocation of out-of-State
"mutual aid" crews; (5) communications with State and local
public officials; (6) internal communications; (7) dissemination
of information to the public; (8) transmission maintenance and
outage scheduling; and (9) practices requiring improvement.
11
may be based"). As summarized in its final decision, the DPU
received a total of two hundred forty-three oral comments and
eighty written comments, describing a variety of problems
regarding FG&E that customers experienced during the storm. See
D.P.U. 09-01-A, at 9-17.
The DPU next conducted an adjudicatory proceeding pursuant
to 220 Code Mass. Regs. §§ 1.01-1.15 (2008). The Attorney
General intervened in the proceeding as authorized by G. L.
c. 12, § 11E (a). On March 25, 2009, FG&E, represented by
counsel, provided the DPU with prefiled testimony of various
Unitil officials. It also submitted a self-assessment report
that included twenty-eight recommendations on how to improve its
preparedness for and response to emergency events. The DPU held
evidentiary hearings from May 11 to May 15, at which both the
Attorney General and FG&E presented witness testimony. Both
parties then filed initial briefs and reply briefs.
The Attorney General proposed a number of remedies to
address FG&E's alleged failures related to Winter Storm 2008.
It urged the DPU to (1) require FG&E to adopt the twenty-eight
improvements recommended in FG&E's self-assessment report, (2)
fine FG&E $4.6 million, (3) deny FG&E recovery of storm-related
costs, and (4) reduce FG&E's return on equity.
In a 215-page decision, the DPU found "numerous and
systematic" deficiencies in how FG&E prepared for and responded
12
to Winter Storm 2008. D.P.U. 09-01-A, at xiii. These
deficiencies included inadequate planning and training for
significant emergency events; inadequate preparation for Winter
Storm 2008; unsatisfactory damage assessment after the storm;
insufficient acquisition of external repair crews; various
problems that prevented FG&E from restoring service in a timely
manner; and a failure to provide the public with useful and
accurate information, which "resulted in the inability of
customers to plan appropriately for an extended outage." See
id. at 47, 60, 69, 83, 102, 121, 125. The 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. The DPU also found that FG&E had
engaged in deficient tree-trimming practices, which likely
contributed to outages experienced during the storm. See id. at
xiii, 160.
To remedy these failures, the DPU ordered FG&E to undertake
a comprehensive independent management audit at its own expense;
to implement, with some modifications, the twenty-eight
improvements in its self-assessment report; and to provide
progress reports regarding the implementation of these
improvements. See id. at 193-194, 208-214. While acknowledging
that FG&E's conduct might warrant monetary penalties, the DPU
concluded that it lacked authority to impose the requested $4.6
13
million fine. See id. at ix, 185, 189.6 The DPU decided to
defer the questions of FG&E's storm-related cost recovery and
return on equity until its next rate-setting proceeding. See
id. at 196, 198-199. FG&E was notified properly of its right to
appeal under G. L. c. 25, § 25, see 220 Code Mass. Regs. § 1.13,
but did not file an appeal.
The DPU addressed FG&E's cost recovery and return on equity
in its next rate-setting decision, at which time FG&E sought to
recover storm-related costs totaling $22,120,286. See D.P.U.
11-01, at 13-15. The DPU adopted the findings in its
investigatory decision, including those pertaining to specific
failures by FG&E. See id. at 16, 59, 66.7 Relying on these
6
Partly in response to FG&E's deficient performance during
Winter Storm 2008, the Legislature enacted G. L. c. 164, § 1J,
directing the DPU to establish standards for how electric
utilities should prepare for and respond to emergency events,
and authorizing the DPU to impose fines, totaling no more than
$20 million, for violations of these standards. See St. 2009,
c. 133, § 4. See also G. L. c. 164, § 85B (imposing
requirements for utilities' emergency response plans); 220 Code
Mass. Regs. §§ 19.01-19.06 (2010) (setting forth DPU's emergency
performance standards). In 2012, the Legislature adopted G. L.
c. 164, § 1K, requiring the DPU to credit any penalties levied
back to the utility's customers. See St. 2012, c. 216, § 3.
7
The DPU summarized the findings of its investigatory
decision as follows:
"[T]he [DPU] found that [FG&E's] lack of planning and
training for a significant storm event left it unprepared
to respond to the magnitude of system damage that it
experienced during Winter Storm 2008. D.P.U. 09-01-A at 47
[(2009)]. The [DPU] determined that [FG&E's] lack of
planning led to: (1) its inability to restore service to
its customers in a timely manner; (2) its failure to
14
findings, the DPU allowed recovery of costs that FG&E could not
have avoided given the magnitude of Winter Storm 2008, but
denied FG&E's request with respect to $6,954,492 in costs
incurred because of FG&E's failures leading up to and during the
storm. See id. at 13-14. The DPU also reduced FG&E's return on
equity in part to reflect its deficient performance. See id. at
14. FG&E again did not appeal from the DPU's decision.
Discussion. 1. Class certification. With respect to both
rule 23 and G. L. c. 93A, we review a grant or denial of class
certification for an abuse of discretion. See Salvas v. Wal-
Mart Stores, Inc., 452 Mass. 337, 361 (2008); Moelis v.
Berkshire Life Ins. Co., 451 Mass. 483, 486 (2008). Under both
sets of certification requirements, the plaintiffs "do not bear
the burden of producing evidence sufficient to prove that the
requirements [of class certification] have been met," but need
only provide "information sufficient to enable the motion judge
to form a reasonable judgment" that the class meets the relevant
communicate accurate and useful information to the public;
and (3) its failure to coordinate its restoration efforts
with local public safety officials. [Id.] Further, the
[DPU] identified failures in: (1) [FG&E's] pre-storm
preparation; (2) external resource acquisition; (3) damage
assessment; (4) communication efforts with the public,
municipal officials, local safety officials, and life
support customers; and (5) adherence to its tree trimming
schedule. [Id.] at 60, 71-72, 83-84, 121, 125, 127-128,
135, 158-159."
D.P.U. 11-01, at 16 (2011).
15
requirements.8 Weld v. Glaxo Wellcome Inc., 434 Mass. 81, 87
(2001). See Aspinall v. Philip Morris Cos., 442 Mass. 381, 391-
392 (2004); Kwaak v. Pfizer, Inc., 71 Mass. App. Ct. 293, 297
(2008). General Laws c. 93A, however, affords a judge less
discretion to deny class certification than does rule 23. See
Salvas v. Wal-Mart Stores, Inc., supra at 370 n.66, citing
Aspinall v. Philip Morris Cos., supra.
To support class certification under rule 23, plaintiffs
must satisfy the four elements of rule 23 (a) and the two
additional elements of rule 23 (b). Rule 23 (a) requires the
plaintiffs to show that "(1) the class is sufficiently numerous
to make joinder of all parties impracticable, (2) there are
common questions of law and fact, (3) the claim of the named
plaintiff representative is typical of the claims of the class,
and (4) the named plaintiff will fairly and adequately represent
the interests of the class." Weld v. Glaxo Wellcome Inc., supra
at 86. In addition, rule 23 (b) requires them to show "that
common questions of law and fact predominate over individualized
8
The source of such information depends on the stage of the
proceeding at which the plaintiffs seek class certification.
Early in the proceedings, plaintiffs may rely on the allegations
in their complaint. See Baldassari v. Public Fin. Trust, 369
Mass. 33, 39-40 (1975). Where, as here, the parties have
undertaken discovery and proceeded to the summary judgment
stage, the information should rest on the more developed record.
See, e.g., Weld v. Glaxo Wellcome Inc., 434 Mass. 81, 85-86
(2001) (motion judge properly considered "the pleadings,
affidavits, briefs, and the earlier memorandum on summary
judgment").
16
questions, and that the class action is superior to other
available methods for fair and efficient adjudication of the
controversy." Weld v. Glaxo Wellcome Inc., supra.
Plaintiffs may bring a class action under G. L. c. 93A if
they can show that they may seek relief for an unfair or
deceptive act or practice under G. L. c. 93A, §§ 9 (2) or 11,
that the act or practice "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. Where appropriate, "the public policy of
the Commonwealth strongly favors G. L. c. 93A class actions."
Feeney v. Dell Inc., 454 Mass. 192, 200 (2009). In considering
certification under G. L. c. 93A, a judge must bear in mind the
"'pressing need for an effective private remedy' . . . and that
'traditional technicalities are not to be read into the statute
in such a way as to impede the accomplishment of substantial
justice.'" Aspinall v. Philip Morris Cos., 442 Mass. at 391-
392, quoting Fletcher v. Cape Cod Gas Co., 394 Mass. 595, 605-
606 (1985).
Although the requirements of rule 23 (a) provide a "useful
framework" for considering class certification under G. L.
c. 93A, the similarity requirements of the rule do not equate
with the requirement of G. L. c. 93A that the plaintiffs be
"similarly situated" and have suffered a "similar injury" as
17
members of the class they seek to represent. See Aspinall v.
Philip Morris Cos., 442 Mass. at 391, quoting Fletcher v. Cape
Cod Gas Co., 394 Mass. at 605. The class action provisions of
G. L. c. 93A also have "a more mandatory tone" than does rule 23
in that they omit the predominance and superiority elements of
rule 23 (b), see Fletcher v. Cape Cod Gas Co., supra at 605,
quoting Baldassari v. Public Fin. Trust, 369 Mass. 33, 40
(1975), but a judge retains some discretion to consider these
factors in determining whether putative class members are
"similarly situated" and have suffered a "similar injury." See
Moelis v. Berkshire Life Ins. Co., 451 Mass. at 489-490;
Fletcher v. Cape Cod Gas Co., supra at 605-606.
a. Chapter 93A. The Superior Court judge determined that
the individual plaintiffs had proffered sufficient information
to show unfair and deceptive conduct by FG&E against all its
customers, but denied their motion for class certification based
on his conclusion that they had not shown that such conduct
caused "similar injury" to the putative class members. The
judge did not abuse his discretion.
To pursue a class action under G. L. c. 93A, plaintiffs
must show that the putative class members suffered "similar,"
although not necessarily identical, injuries as a result of the
defendant's unfair or deceptive conduct.9 G. L. c. 93A,
9
Business plaintiffs under G. L. c. 93A, § 11, must have
18
§§ 9 (2), 11. See Salvas v. Wal-Mart Stores, Inc., 452 Mass. at
364, quoting Spear v. H.V. Greene Co., 246 Mass. 259, 266
(1923). As with G. L. c. 93A claims generally, a causal
connection must exist between the unfair or deceptive conduct
and the injury, see Hershenow v. Enterprise Rent-A-Car Co. of
Boston, 445 Mass. 790, 797-800 (2006), and the injury must be a
"separate, identifiable harm" that is "distinct" from the unfair
or deceptive conduct itself. Tyler v. Michaels Stores, Inc.,
464 Mass. 492, 503 (2013). General Laws c. 93A does not permit
class certification for the purpose of addressing limited common
issues short of class-wide liability. See Fletcher v. Cape Cod
Gas Co., 394 Mass. at 602. Accordingly, plaintiffs must show
that they can establish causation of such similar injury on a
class-wide basis. See Aspinall v. Philip Morris Cos., 442 Mass.
at 397 n.19; Fletcher v. Cape Cod Gas Co., supra at 603-604.
The plaintiffs concede that Winter Storm 2008 would have
caused widespread power outages without regard to any failures
by FG&E, and they do not seek to certify a class on the basis of
such loss of power. They press two other theories of injury
instead: (1) prolonged power outages caused by FG&E's failure
to restore power more expeditiously, and (2) an inability to
suffered a loss of "money or property." Those seeking relief
under G. L. c. 93A, § 9, by contrast, may recover for both
economic and personal losses. See Klairmont v. Gainsboro
Restaurant, Inc., 465 Mass. 165, 175 (2013), and cases cited.
19
plan for the widespread and extended outages due to FG&E's
unfair and deceptive communications system.10 We address these
theories of injury in turn and conclude that neither one
required the judge to certify a class.
i. Delay in restoration of power. The plaintiffs argue
that regardless of the cause of any initial loss of power,
FG&E's numerous and systemic failures in planning for and
responding to Winter Storm 2008 injured the putative class
members by delaying restoration. This theory of injury requires
the plaintiffs to prove that the class members suffered longer
outages than they would have but for FG&E's failures. As the
judge concluded, this theory of similar injury fails for the
10
In their brief, the plaintiffs indicate a third possible
theory of injury: that they paid for a level of emergency
preparedness, efficient restoration, and accurate information
that FG&E unfairly and deceptively failed to provide. Where a
defendant's unfair or deceptive conduct causes customers to
receive a product or service worth less than the one for which
the customers paid, the customers may pursue a class action
under G. L. c. 93A to recover the amount by which they overpaid.
See Iannacchino v. Ford Motor Co., 451 Mass. 623, 630-631 (2008)
(purchasers of motor vehicles could potentially certify class to
recover overpayment for vehicles that unfairly or deceptively
did not meet regulatory safety standards); Aspinall v. Philip
Morris Cos., 442 Mass. 381, 397-399 (2004) (purchasers of light
cigarettes could pursue class to recover difference between
market price of cigarettes as sold and true market value of such
cigarettes had they not been deceptively advertised). In their
motion for class certification, however, the plaintiffs did not
seek to recover the amount by which they purportedly overpaid,
focusing instead on their alleged damages associated with the
power outages. Cf. Aspinall v. Philip Morris Cos., supra at 397
& n.19 (distinguishing class seeking to recover for personal
injuries caused by defendant's deception, which would not have
supported class treatment).
20
same reason that the plaintiffs cannot pursue a class action
based on the initial loss of power: causation would have to be
resolved "on an individual (or small group) basis."
As reflected by the differing lengths of time that outages
were experienced, FG&E customers lost electric power for various
reasons, and distinct obstacles impeded restoration of their
power. The plaintiffs have not indicated how long outages would
have lasted in the absence of FG&E's failures. Their expert
testified that he made no attempt to estimate what a reasonable
restoration period would have been, and the plaintiffs have not
otherwise identified a model or method for determining how long
outages would have lasted but for FG&E's failures.
Even granting that FG&E's alleged systemic failures may
have had a general tendency to delay restoration efforts,
relying on such a general tendency to prove causation with
respect to each individual class member would involve
impermissible speculation or generalization. See Salvas v. Wal-
Mart Stores, Inc., 452 Mass. at 361, quoting Weld v. Glaxo
Wellcome Inc., 434 Mass. at 85. Many customers, especially
those who experienced shorter outages, may not have suffered
prolonged outages due to FG&E's conduct. If the plaintiffs were
to prove FG&E's systemic failures, it would still remain for
each class member to show that those failures caused a prolonged
outage on an individual basis. The nominal class action would
21
"degenerate in practice into multiple law-suits separately
tried." Fletcher v. Cape Cod Gas Co., 394 Mass. at 604 n.8,
quoting Advisory Committee Notes to 1966 Revision, Fed. R. Civ.
P. 23(b)(3), 28 U.S.C. (1982).
The plaintiffs suggest that this inquiry would involve
merely a question of damages. However, if customers did not
suffer a longer outage than otherwise would have occurred, their
claims must fail for lack of causation. See Hershenow v.
Enterprise Rent-A-Car Co. of Boston, Inc., 445 Mass. at 800-801
(rejecting G. L. c. 93A claim where plaintiffs failed to
establish that statutorily noncompliant contract terms made them
worse off than they would have been had contract complied with
statute); Lord v. Commercial Union Ins. Co., 60 Mass. App. Ct.
309, 317-318, 322-323 (2004) (defendant entitled to judgment on
G. L. c. 93A claim where its unfair or deceptive act did not
cause plaintiff's injury). The judge did not abuse his
discretion in denying class certification with respect to this
theory of injury.
ii. Inability to plan. The plaintiffs' second theory of
injury does not depend on what caused either the initial loss of
power or the length of a particular outage. They argue that
FG&E's communications leading up to and during Winter Storm 2008
consisted of deceptions and omissions that failed to provide
them with accurate and useful information regarding the expected
22
scope and duration of outages. They contend that this failure
caused all members of the putative class to suffer the similar
injury of an inability to plan for the outages. The plaintiffs'
affidavits aver that had FG&E properly informed them, they would
have prepared for the outages in various ways, including
arranging alternate living accommodations for themselves, their
relatives, and their pets; purchasing generators; draining water
from pipes to keep them from bursting; obtaining firewood; and
stocking less perishable food or storing food elsewhere. The
plaintiffs also allege, pointing to statements made at the DPU
public hearings, that the other putative class members likewise
suffered damages due to their inability to plan. The judge did
not abuse his discretion in denying class certification on this
theory of injury.
Both in the Superior Court and in this appeal, the
plaintiffs' arguments have not been clear about whether their
claim rests on an alleged system of actively false and
misleading statements by FG&E, or whether it rests instead on
FG&E's alleged violation of an affirmative duty to provide its
customers with useful information. These claims are distinct.
To the extent the plaintiffs assert the former claim, we agree
with the motion judge that, although the named plaintiffs may
prove that FG&E made deceptive statements as to them, they
cannot establish causation on a class-wide basis because not all
23
class members were exposed to the same deceptive statements and
because the announced time frames for restoration may have been
accurate as to many class members. See Kwaak v. Pfizer, Inc.,
71 Mass. App. Ct. at 300-301 (rejecting class certification of
those seeking relief for deceptive advertising campaign, where
not all class members encountered advertisements and variations
existed in advertisements that proposed class members did
encounter).
To the extent the plaintiffs assert the second claim, they
fare only slightly better. The plaintiffs may be able to show
that FG&E engaged in unfair or deceptive conduct with respect to
all putative class members by violating an affirmative duty to
provide useful information regarding the scope and duration of
expected outages. FG&E's ERP stated that one of its primary
responsibilities during an emergency was "[t]o keep the public
informed of the status of the restoration in a timely manner,"
and the DPU concluded that FG&E's public service obligation
encompassed a duty to provide the public with "accurate and
useful information" during an emergency event, designed to
enable customers to plan accordingly. See D.P.U. 09-01-A, at
122, 125. Cf. 940 Code Mass. Regs. § 19.05(1) (1998) ("It is an
unfair or deceptive act or practice for a retail seller of
electricity to fail to disclose material information about its
products, services, or business, where such failure has the
24
capacity or tendency to deceive or mislead a reasonable
consumer, or has the effect of deceiving or misleading such a
consumer, in any material respect"); Evans v. Lorillard Tobacco
Co., 465 Mass. 411, 465 (2013) (suggesting that breach of
voluntarily-assumed duty to provide information may constitute
violation of G. L. c. 93A). The DPU found that FG&E did not
"provide accurate and useful information to the public regarding
restoration times" and noted that this "failure in communicating
the extent of damage resulted in the inability of customers to
plan appropriately for an extended outage." D.P.U. 09-01-A at
xi-xii, 125. As the plaintiffs argue, and the judge agreed for
purposes of FG&E's motion for summary judgment, although some of
FG&E's PSAs did predict that restoration would take "days" or
"several days," which arguably turned out to be accurate as to
many customers, a fact finder could determine that these
communications were too vague and general to satisfy a duty to
inform. Cf. Aspinall v. Philip Morris Cos., 442 Mass. at 394
("advertising need not be totally false in order to be deemed
deceptive in the context of G. L. c. 93A").
The judge was not required, however, to certify a class
based on FG&E's alleged violation of this affirmative duty,
especially where the plaintiffs did not proffer a method for
proving on a class-wide basis that FG&E's failure to provide
useful information actually interfered with the ability of the
25
different putative class members to plan for the outages.11
As reflected by the variety of ways that the plaintiffs
contend they would have responded to better information, this
theory of injury would necessitate individualized inquiry
regarding the counterfactual mental processes of each class
member. Indeed, many class members -- such as, perhaps, the
approximately five hundred customers in downtown Fitchburg who
lost power for only a few hours or those customers who already
possessed power generators -- may not have planned any
differently and therefore suffered no injury under this theory.
Although individualized inquiries regarding affirmative defenses
and, especially, calculation of damages do not preclude class
certification on the question of liability, see Salvas v. Wal-
Mart Stores, Inc., 452 Mass. at 367-368; Aspinall v. Philip
11
The plaintiffs appear to assume that causation can be
established on a class-wide basis on the theory that FG&E
violated an affirmative duty to provide useful information,
asserting that only the question of damages would require
individualized inquiry. The plaintiffs do not argue, and we
therefore do not decide, whether, if the plaintiffs were to
establish that FG&E violated an affirmative duty to warn, such
proof, as in other contexts, would warrant a presumption that
the warning would have been received and heeded. See, e.g.,
Evans v. Lorillard Tobacco Co., 465 Mass. 411, 442 (2013);
Harlow v. Chin, 405 Mass. 697, 702-703 (1989). Even assuming
that FG&E would bear the burden of showing that any failure to
provide useful information did not impede the ability of
particular class members to plan for the outages, the judge
still had discretion to deny class certification. See Moelis v.
Berkshire Life Ins. Co., 451 Mass. 483, 490-491 (2008) (judge
could deny class certification where affirmative defenses would
require highly fact-specific, individualized inquiry).
26
Morris Cos., 442 Mass. at 402, a judge retains discretion to
deny certification based on such considerations. See Moelis v.
Berkshire Life Ins. Co., 451 Mass. at 490; Fletcher v. Cape Cod
Gas Co., 394 Mass. at 603-604, 606-607. Of course, the judge
remains free to alter his decision as the litigation proceeds.
See Moelis v. Berkshire Life Ins. Co., supra at 491-492;
Aspinall v. Philip Morris Cos., supra at 398 n.22, quoting
School Comm. of Brockton v. Massachusetts Comm'n Against
Discrimination, 423 Mass. 7, 14 n.12 (1996) ("decision as to
class certification is not immutable").
iii. Alternative classes and subclasses. The plaintiffs
propose three alternative classes and subclasses that they
contend the judge should have certified: (1) a subclass of
approximately 17,000 FG&E customers who lost power for four days
or more, (2) a class seeking only injunctive or declaratory
relief, and (3) a subclass of approximately 4,000 customers who
received estimated bills for December, 2008, that made no
adjustment for the loss of power during that period. Where a
natural alternative class or set of subclasses would address a
judge's concerns about certifying a class as initially proposed,
the judge should redefine the original class or certify
subclasses as appropriate. See Kwaak v. Pfizer, Inc., 71 Mass.
App. Ct. at 302 n.8, quoting Richardson v. Byrd, 709 F.2d 1016,
1019 (5th Cir.), cert. denied sub nom. Dallas County Comm'rs
27
Court v. Richardson, 464 U.S. 1009 (1983). Furthermore, a judge
may certify a subclass represented by only some named
plaintiffs, with other named plaintiffs asserting different
claims, if it makes sense to litigate these various claims in a
single proceeding. See, e.g., McGonagle v. Home Depot U.S.A.,
Inc., 75 Mass. App. Ct. 593, 597 (2009) (judge certified two
subclasses each represented by only one named plaintiff).
Nonetheless, the judge did not abuse his discretion in declining
to certify any alternative classes or subclasses here.
As to the first proposed alternative, narrowing the class
to those who suffered outages of at least four days would not
address the judge's concerns because it would not eliminate the
need for individual inquiries regarding whether the extended
outage resulted from FG&E's unfair or deceptive conduct and how
the customers would have planned differently had they received
better information. As to the second alternative, the judge
noted that the responses of the Legislature and the DPU to
FG&E's conduct during Winter Storm 2008, see note 6, supra, may
already have remedied the allegedly unfair or deceptive
practices for which the plaintiffs seek equitable relief. The
judge permitted the plaintiffs' request for equitable relief to
proceed on a nonclass basis, and if the plaintiffs succeed in
proving the need for such relief, the judge may revisit his
class certification decision at that time. See Moelis v.
28
Berkshire Life Ins. Co., 451 Mass. at 491-492. Cf. Brantley v.
Hampden Div. of the Probate & Family Court Dep't, 457 Mass. 172,
184 n.15 (2010) (class certification properly denied where
equitable remedies requested by named plaintiff would afford
relief to those similarly situated notwithstanding absence of
class). Finally, as to the third alternative, the judge
acknowledged that an estimated-billing class might warrant
certification but did not so certify because not all named
plaintiffs had received estimated bills and the plaintiffs had
requested such a class as just one of sixteen alternatives,
without explaining how this class claim would fit together with
the other claims brought by the named plaintiffs. Because the
estimated-billing claim rests on conduct distinct from that
underlying the claims that FG&E failed to restore power and
failed to provide useful information, the judge properly could
demand additional information regarding such a class and how it
would comport with the larger litigation. See Kwaak v. Pfizer,
Inc., 71 Mass. App. Ct. at 302 n.8.
b. Rule 23. The plaintiffs also seek to certify a class
under rule 23 on a claim of gross negligence. This claim rests
on FG&E's asserted "deficient emergency preparedness, service
restoration and communications system." We understand the
plaintiffs' gross negligence claim to assert theories of injury
analogous to those pressed under G. L. c. 93A, and therefore
29
affirm the judge's denial of such a class for the same reasons.
See Kwaak v. Pfizer, Inc., 71 Mass. App. Ct. at 298 ("a
certification that fails under c. 93A would fail under the
requirements of rule 23 as well").
2. Issue preclusion. In its cross appeal, FG&E challenges
the judge's application of offensive issue preclusion, also
known as offensive collateral estoppel, to factual findings made
by the DPU. "The offensive use of collateral estoppel 'occurs
when a plaintiff seeks to prevent a defendant from litigating
issues which the defendant has previously litigated
unsuccessfully in an action against another party.'" Evans v.
Lorillard Tobacco Co., 465 Mass. at 466, quoting Matter of
Cohen, 435 Mass. 7, 15 (2001). Offensive issue preclusion "does
not require mutuality of parties, so long as there is an
identity of issues, a finding adverse to the party against whom
it is being asserted, and a judgment by a court or tribunal of
competent jurisdiction." Pierce v. Morrison Mahoney LLP, 452
Mass. 718, 730 (2008), quoting Miles v. Aetna Cas. & Sur. Co.,
412 Mass. 424, 427 (1992). Additionally, "the determination of
the issues for which preclusion is sought must have been
essential to the underlying judgment." Matter of Brauer, 452
Mass. 56, 67 (2008).
Once a plaintiff establishes these initial requirements,
the "central inquiry" becomes whether the defendant had a "full
30
and fair opportunity to litigate the issue in the first action."
Pierce v. Morrison Mahoney LLP, 452 Mass. at 730, quoting Matter
of Goldstone, 445 Mass. 551, 559 (2005). Offensive issue
preclusion may apply to the findings of an administrative agency
"so long as the tribunal rendering judgment ha[d] the legal
authority to adjudicate the dispute." Alba v. Raytheon Co., 441
Mass. 836, 841 (2004). See, e.g., Stowe v. Bologna, 415 Mass.
20, 22 (1993); Haran v. Board of Registration in Med., 398 Mass.
571, 578-579 (1986); Commonwealth v. Two Parcels of Land, 48
Mass. App. Ct. 693, 698 (2000). A judge has wide discretion in
deciding whether the doctrine should apply in a particular case.
Matter of Brauer, 452 Mass. at 67.
a. Identity and essentiality of issues. FG&E argues that
the judge failed to identify the particular issues to be
precluded and therefore did not determine whether they were
essential to the DPU's judgment and identical to issues
presented here. FG&E points to the judge's statement that "[i]f
this case goes to trial, the trial judge will continue to have
discretion to make the final decision as to what issues are
already determined and what issues remain for trial."
Contrary to FG&E's assertion, however, the judge identified
a number of DPU findings subject to issue preclusion. He quoted
the summary of the DPU's investigatory findings contained in its
rate-setting decision, see note 7, supra, among them that FG&E
31
did not plan or train sufficiently for emergency weather events,
that it did not prepare adequately for Winter Storm 2008, and
that it did not communicate accurate and useful information to
the public. The judge then treated these findings as settled in
determining whether the plaintiffs could establish G. L. c. 93A
violations as a matter of law.
These factual findings were essential to the DPU's decision
that FG&E's various failures in preparing for and responding to
Winter Storm 2008 constituted independent violations of its duty
to provide safe and reliable service. See D.P.U. 09-01-A, at
52, 59, 71-72, 83-84, 121, 125. The DPU also imposed numerous
requirements on FG&E designed to remedy each of its noted
failures. See id. at 210-214. Accordingly, the DPU's factual
findings "b[ore] on the outcome of the case" and were essential
to its judgment. See Jarosz v. Palmer, 436 Mass. 526, 533
(2002).
Likewise, the DPU's factual findings are identical to
issues here because the plaintiffs' various G. L. c. 93A and
gross negligence claims rest on the same conduct that the DPU
found deficient. We reject FG&E's contention that the two
adjudications do not present identical issues because the
plaintiffs assert claims under G. L. c. 93A that the DPU does
not have authority to address. See D.P.U. 09-01-A, at 189.
Issue preclusion may apply where the two adjudications involve
32
the same subsidiary findings, even if they involve different
ultimate claims. See Alba v. Raytheon Co., 441 Mass. at 843.
The DPU's 215-page decision contains numerous subsidiary
findings, and the plaintiffs asserted multiple theories of
liability resting on different alleged failures by FG&E. We
therefore understand the motion judge's statement, that a trial
judge has continued discretion as to issue preclusion, to be
merely an acknowledgment of the inefficiency of conducting a
full analysis of the preclusive effect of each subsidiary
finding before it becomes clear what facts matter to the
particular theories of liability that the plaintiffs assert at
trial. The motion judge committed no error in deciding that the
trial judge should retain discretion to make final decisions
regarding which issues are precluded and which ones remain.
b. Fairness. FG&E also argues that, under the
circumstances, application of issue preclusion would be unfair.
"[F]airness is the 'decisive consideration' in determining
whether to apply offensive issue preclusion." Pierce v.
Morrison Mahoney LLP, 452 Mass. at 730, quoting Matter of
Goldstone, 445 Mass. at 559. In making this determination,
"courts generally ask whether (1) the party in whose favor the
estoppel would operate could have joined the original action,
(2) the party against whom it would operate had an adequate
incentive to defend the original action vigorously, (3) 'the
33
judgment relied upon as a basis for the estoppel is itself
inconsistent with one or more previous judgments in favor of the
defendant,' and (4) 'the second action affords the defendant
procedural opportunities unavailable in the first action that
could readily cause a different result.'" Matter of Brauer, 452
Mass. at 70, quoting Haran v. Board of Registration in Med., 398
Mass. at 577-578. See Bar Counsel v. Board of Bar Overseers,
420 Mass. 6, 11-12 (1995), quoting Restatement (Second) of
Judgments § 29 (1982) (listing eight circumstances for judge to
consider when determining propriety of applying offensive issue
preclusion). The judge enjoys "'wide discretion in determining
whether' applying offensive collateral estoppel 'would be fair
to the defendant.'" Pierce v. Morrison Mahoney LLP, supra at
731, quoting Bar Counsel v. Board of Bar Overseers, supra at 11.
The party facing preclusion bears the burden of proof on the
question of fairness. See Bailey v. Metropolitan Prop. & Liab.
Ins. Co., 24 Mass. App. Ct. 34, 37 (1987). FG&E does not
contest the first and third factors; its appeal focuses on the
second and fourth factors.
i. Incentive to litigate. FG&E argues that it did not
have an adequate incentive to dispute its purported failures
before the DPU. It points out that the remedies imposed by the
DPU in its investigatory decision consisted largely of
improvements that FG&E already had volunteered to undertake in
34
its self-assessment report. FG&E argues also that affording
preclusive effect to the DPU findings would undermine its
cooperative relationship with the DPU and frustrate the public
utility regulatory scheme by discouraging utilities from
offering such voluntary submissions. See Bar Counsel v. Board
of Bar Overseers, 420 Mass. at 11, quoting Restatement (Second)
of Judgments § 29(1), (5) (in determining whether to apply issue
preclusion, judge should consider whether "[t]reating the issue
as conclusively determined would be incompatible with an
applicable scheme of administering the remedies in the actions
involved" and whether "[t]he prior determination may have been
affected by relationships among the parties to the first action
that are not present in the subsequent action"). These
arguments are unavailing.
First, FG&E understates its incentive to litigate before
the DPU. During the investigatory proceeding, the Attorney
General urged the DPU to deny FG&E recovery of storm-related
costs, to reduce FG&E's return on equity, and to impose a $4.6
million fine as a result of FG&E's failures during Winter Storm
2008. Relying largely on the various failures found in its
investigatory decision, the DPU in its rate-setting decision
denied FG&E recovery of nearly $7 million dollars in storm-
related costs, and reduced FG&E's return on equity. See D.P.U.
11-01, at 14, 23, 72-73, 374-375, 425-427. Furthermore,
35
although the DPU ultimately concluded that it lacked authority
to impose a fine, FG&E faced the possibility that the DPU would
reach a different conclusion. Given the large financial stakes
involved, FG&E had adequate incentive to litigate vigorously the
facts found in the DPU decision. See Matter of Goldstone, 445
Mass. at 559-560.
Second, applying issue preclusion would not undermine the
public utility regulatory scheme because the large financial
stakes involved here already provided a significant incentive
for FG&E to litigate the DPU action "to the hilt." See
Commissioner of the Dep't of Employment & Training v. Dugan, 428
Mass. 138, 145 (1998). Moreover, partly in response to FG&E's
failures during Winter Storm 2008, the Legislature authorized
the DPU to impose fines of up to $20 million for violations of a
utility's emergency preparation and service restoration duties,
an action the Legislature would not have taken had it believed
that potential liability of this magnitude would undermine the
regulatory scheme. See G. L. c. 164, § 1J.
ii. Different procedural opportunities. As to the fourth
fairness consideration, FG&E identifies three procedural
distinctions between the two actions that, it contends, render
issue preclusion inappropriate here: (1) the DPU considered
evidence not admissible in the Superior Court proceeding, (2)
different parties bore the burden of proof in the two actions,
36
and (3) the DPU proceedings involved a more limited right of
appeal. A party seeking to avoid issue preclusion must show
that the procedural distinctions "could likely result in the
issue being differently determined." Matter of Goldstone, 445
Mass. at 561 n.7, quoting Restatement (Second) of Judgments
§ 29(2). We conclude that FG&E has not demonstrated that these
distinctions affected the DPU findings at issue.
First, FG&E emphasizes that the DPU considered extensive
public comments from individuals not subject to cross-
examination. See D.P.U. 09-01-A, at 9-17. After reviewing the
record, the judge concluded that the DPU did not rely on the
public comments in making any findings that might have
preclusive effect in this case. The DPU did reference certain
public comments in discussing deficiencies in FG&E's management
of restoration crews and the performance of its call center.
See id. at 101, 103, 106, 120. However, the DPU also relied on
other evidence in finding these failures, and FG&E conceded that
its crew logistics needed improvement and that its call center
was overwhelmed during Winter Storm 2008. See id. at 101-102,
104-106, 112, 120-121. Accordingly, the public comments likely
did not affect the DPU's findings and therefore do not undermine
the judge's application of issue preclusion. See Commonwealth
v. Two Parcels of Land, 48 Mass. App. Ct. at 699-700 (issue
preclusion warranted notwithstanding agency's consideration of
37
hearsay evidence in first proceeding).
Second, FG&E points out that the burden of proof has
shifted from FG&E in the DPU proceedings to the plaintiffs in
this case. Compare Fitchburg Gas & Elec. Light Co. v.
Department of Pub. Utils., 375 Mass. 571, 578-579 (1978) (once
DPU challenges company's decisions, company faces burden of
proving that those decisions comply with valid DPU policies),
with Cleary v. Cleary, 427 Mass. 286, 297 (1998) (plaintiff has
burden of proving violation of G. L. c. 93A). Although a
determination in a prior proceeding ordinarily has "no
preclusive effect" where the burden has shifted away from the
party facing preclusion, Jarosz v. Palmer, 436 Mass. at 532, a
judge has discretion to grant preclusive effect to an issue if
the burden of proof did not affect the outcome of the prior
determination. See Matter of Goldstone, 445 Mass. at 563-564.
Cf. Bar Counsel v. Board of Bar Overseers, 420 Mass. at 12
(noting that burden shifted between two proceedings but
remanding for decision whether to apply issue preclusion).
The DPU did not recite the burden of proof in its
investigatory decision, and the decision contains no language
suggesting that the DPU's factual findings rested on FG&E's
failure to carry its burden. See D.P.U. 09-01-A, at 58-60, 68-
72, 81-84, 97-102, 119-128, 132-136, 143-147, 158-160.
Furthermore, as reflected by the twenty-eight recommended
38
improvements in its self-assessment report, FG&E largely did not
dispute the DPU's findings pertaining to FG&E's deficient storm-
related conduct. See id. at 199-204. Thus, the shift in the
burden of proof did not foreclose the judge from applying issue
preclusion. See Matter of Goldstone, 445 Mass. at 563-564
(notwithstanding shift in burden of proof, issue preclusion
warranted because facts were not disputed in first
adjudication).
Third, FG&E contends that it could not appeal the DPU's
factual findings because G. L. c. 25, § 5, limited its right of
appeal to "matters of law." To the contrary, however, FG&E
could have challenged the DPU's findings as "[u]nsupported by
substantial evidence." See G. L. c. 30A, § 14 (7) (e);
Fitchburg Gas & Elec. Light Co. v. Department of Pub. Utils.,
460 Mass. 800, 811 (2011). This limited right of appeal has not
prevented us from affording preclusive effect to administrative
findings. See, e.g., Stowe v. Bologna, 415 Mass. at 22; Brunson
v. Wall, 405 Mass. 446, 451 (1989). Nor does FG&E's decision
not to appeal from the DPU's adjudications render the
application of issue preclusion improper. See Stowe v. Bologna,
supra; Brunson v. Wall, supra; Conservation Comm'n of Falmouth
v. Pacheco, 49 Mass. App. Ct. 737, 741-742 & n.5 (2000), and
authorities cited.
The DPU conducted a five-day adjudicatory hearing at which
39
FG&E was represented by competent counsel, and FG&E had a right
to proffer evidence, subpoena witnesses, cross-examine witnesses
under oath, present oral and written arguments, and appeal an
adverse decision. See 220 Code Mass. Regs. §§ 1.06(6)(f),
1.10(9), 1.13. See also Martin v. Ring, 401 Mass. 59, 63-64
(1987) (emphasizing that precluded party "had ample opportunity
in the prior adjudication to present evidence and to cross-
examine witnesses" and that he could have appealed from adverse
administrative decision); Haran v. Board of Registration in
Med., 398 Mass. at 578 (emphasizing that precluded party was
represented by counsel at four-day administrative hearing). The
judge's application of issue preclusion was within the scope of
his broad discretion.
Conclusion. We affirm the orders denying the plaintiffs'
motion for class certification, denying the plaintiffs' motion
for partial summary judgment, and denying in part FG&E's motion
for partial summary judgment.
So ordered.