Opinion
BCD-CV-2020-00020
07-30-2022
BRETT DEANE, HENRY LAVENDER, JOLEEN MITCHELL, PAULINE NELSON, and KAREN GEORGE, Plaintiffs, v. CENTRAL MAINE POWER COMPANY, Defendant.
ORDER DENYING PLAINTIFFS' MOTION FOR CLASS CERTIFICATION
INTRODUCTION
The named Plaintiffs claim Defendant Central Maine Power Company ("CMP") improperly threatened to disconnect electric power from its customers during the winter months. They seek to press a claim of intentional infliction of emotional distress on the basis of CMP's conduct. Plaintiffs have moved to certify a class, under Rule 23 of the Maine Rules of Civil Procedure, proposing they be designated as class representatives for a class of Maine residents described as follows:
All CMP residential electricity customers to whom CMP sent or delivered written or oral communications that threatened actual or potential disconnection of the respective customers' electricity ("disconnection communications") between November 15 of each year and April 15 of the following year, beginning on January 28, 2014 and ending with the date of trial in this case. .(Pls.' Mot. Class Cert. 1.) Plaintiffs also seek to certify three subclasses under M.R. Civ. P. 23(c)(4)(B), described as follows: 1
General Disconnection Notice Subclass: All CMP residential electricity customers to whom CMP sent or delivered disconnection communications regarding disconnection of electric service between November 15 of each year and April 15 of the following year, beginning in January 2014 through the present, (1) that threatened disconnection of a customer's electric service on or after a given date and (2) that also did not disclose that (A) disconnection can only occur if CMP first requests and obtains the permission from the Consumer Assistance and Safety Division ("CASD") of the Public Utilities Commission, and (B) the customer would receive a copy of CMP's request and be afforded an opportunity to apprise the CASD of their unique circumstances.
PUC Language Disconnection Notice Subclass: All CMP residential electricity customers to whom CMP sent or delivered disconnection communications regarding disconnection of electric service between November 15 of each year and April 15 of the following year, beginning in January 2014 through the present that stated or represented that CMP could disconnect the customer's electricity service ''without the approval" of the Public Utilities Commission.
"With Permission" Disconnection Notice Subclass: All CMP residential electricity customers to whom CMP sent or delivered disconnection communications regarding disconnection of electric service between November 15 of each year and April 15 of the following year, beginning in November 2020 through the present, that stated or represented that CMP could disconnect the respective customers' service "[w]ith permission from the [PUC]" on a certain date or within 20 business days of that date.(Pls.' Mot. Class Cert. 1-2.) All named Plaintiffs seek to represent the General Disconnection Notice Subclass; Plaintiffs Deane, Lavender, Mitchell, and Nelson seek to represent the PUC Language Subclass; and Plaintiff George seeks to represent the "With Permission" Subclass.
The Court heard oral arguments on January 20, 2022 in which both parties appeared through counsel. For the reasons discussed below, the Court DENIES Plaintiffs' motion. 2
ALLEGED FACTS
Plaintiffs Deane, Lavender, Mitchell, Nelson, and George are residential customers of CMP residing in various parts of the State. Each received one or more notices ("Disconnection Notice") from CMP in either 2019 or early 2020 threatening disconnection of electric power if payment was not made. Plaintiffs assert that receiving these notices under the perceived threat of losing their power in the winter months caused extreme distress to each of them.
CMP transmits and delivers electricity to more than 624,000 customers in an 11,000-square-mile area in Maine. It bills its residential customers for transmission and distribution services and for the electric power purchased by the customers, either under its "Standard Offer" or pursuant to contracts with the electric power producers whose electricity it transmits and distributes. CMP retains the right to disconnect its service and stop providing electricity to customers who fail to timely pay bills from CMP for its services rendered and electric power supplied, if allowable under State regulations. As a public utility subject to regulation by the Maine Public Utilities Commission ("PUC"), it is required to abide by rules promulgated by the PUC in many aspects of its business, including its disconnection practices. These rules are collected at Chapter 815, Section 10 of the Maine Code of Administrative Regulations.
Since 2008 the PUC has had in effect special rules restricting and governing the right of CMP to disconnect customers during the "Winter Disconnection Period" which extends from November 15 to April 15 each year. See 65 C.M.R. ch. 815, § 2(GG). 3 These rules, set forth in Section 10(M) of Chapter 815, protect vulnerable consumers from potentially severe hardship resulting from the loss of electricity during the winter months. In short, during the Winter Disconnection period, a utility cannot disconnect residential electricity service without having obtained affirmative permission from the Customer Assistance and Safety Division ("CAD") to do so. § 10(M)(4). It must also disclose to the customer certain rights and information about the disconnection process and has a duty to ensure that the customer with whom it is in contact is not disconnected if at all possible by offering different payment arrangements which take into account that customer's unique circumstances. §§ 10(M)(2), 9(F)(5). This includes providing the customer with notice that CMP has requested permission from the CAD to disconnect and providing a copy of that request. The notice sent to the customer must also disclose what the customer must do to avoid disconnection; if the customer contacts CMP but CMP and the customer are unable to come to terms on a payment arrangement, CMP must refer the matter to the CAD. § 9(F)(1).
CMP must attempt to make personal contact with the customer either by an in-person visit to the premises or by telephone. § 10(M)(1). If the customer responds within five business days, CMP must comply with Section 9(F)(5)'s mandate of . working to arrange a payment plan. § 10(M)(2). Should the customer not respond, CMP may seek permission from the CAD to disconnect or, if CMP is uncertain the premises are occupied, may "cycle disconnect" during daylight hours and weekdays. § 10(M)(3). If CMP is aware the premises are occupied, it may not disconnect in any 4 way without CAD permission. The CAD has discretion to set the timing and nature of disconnection during the Winter Disconnection Period, such as by limiting it to a cycle disconnection or postponing it until the spring.
Under CMP's winter disconnection processes, it first issues a general winter disconnection notice, relevant to the General Disconnection Notice Subclass. The form notice used in the winter from 2014 through 2020 is the same form used in nonwinter months and does not indicate that the customer possesses additional protections during the winter. It does not state CMP needs CAD approval prior to disconnection but rather presents two options to the customer to avoid disconnection; making a payment online or calling CMP to arrange a payment plan. It also states, "[u]nless you take action, your electric service is scheduled for disconnection on [the relevant disconnection date] or within 20 business days of that date." It does not mention that the customer has two additional options, namely appealing to the CAD to establish a payment plan to which CMP must adhere or rejecting any payment plan proposed by CMP, forcing it to seek permission from CAD to proceed with the disconnection.
CMP has also used two other disconnection notices since at least January 28, 2015, which CMP refers to as its "premises visit" notice and "Letter 180," relevant to the PUC Language Subclass. These notices state substantially the following: "Failure to contact us may result in disconnection of your electric service. Approval of the Consumer Assistance Division of the Maine Public Utilities Commission is not required." In 2015, the Deputy Director of the CAD warned CMP that this statement 5 was contrary to Chapter 815 regulations. Also in 2015, CMP sought a waiver allowing it to use a modified version of the standard winter disconnection notice language as provided in Appendix A to Chapter 815 which would have included the language above and lacked reference to special payment arrangements. The CAD denied this request and subsequently granted a revised request which eliminated this language. CMP took the problematic language out of its notices but kept it in other communications, such as Letter 180. The Director of the CAD in 2018 again notified CMP that this type of language was inconsistent with Chapter 815 and instructed CMP to cease using it. A PUC investigation in 2020 into these communications resulted in a $500,000 penalty assessed against CMP for its willful and serial violation of Chapter 815 under 35-A M.R.S. § 1508-A(1)(A).
Central Maine Power Company, Investigation of Improper Notices by Central Maine Power Company (35-A M.R.S. § 1303), No. 2020-017, Order (Me. P.U.C. Aug. 5,2020).
After the PUC administrative proceedings on the premises visit notices and Letter 180, CMP modified the language in its general winter disconnection notice, used beginning when the PUC disconnection moratorium ended in November 2020. These notices, relevant to the "With Permission" Subclass, inform the recipient that "[w]ith permission from the [PUC], your service could be disconnected on [the relevant disconnection date] or within 20 business days of that date." They do not state that this permission has not yet been granted nor that the PUC provides avenues for avoiding disconnection other than immediate payment or privately arranging a payment plan with CMP. 6
DISCUSSION
Class actions are governed by M.R. Civ. P. 23. A putative class must meet all Rule 23(a) requirements and at least one Rule 23(b) requirement. The Maine rule is virtually identical to its federal counterpart, and Maine courts "value constructions and comments on the federal rule as aids in constructing our parallel provision." Bean v. Cummings, 2008 ME 18, ¶ 11, 939 A.2d 676, 680 (citations omitted). In determining whether a class should be certified, "the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met." Eisen u. Carlisle &Jacquelin, 417 U.S. 156, 178 (1974) (citations omitted). However, certification "generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiffs cause of action." Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 (1978).
The substantive law at issue is a claim of intentional infliction of emotional distress, which comprises four elements: (i) the defendant intentionally or recklessly inflected severe emotional distress or was certain or substantially certain that such distress would result from the defendant's conduct; (ii) the conduct was so extreme and outrageous as to exceed all possible bounds of decency and must be regarded as atrocious, and utterly intolerable in a civilized community; (iii) the actions of the defendant caused the plaintiffs emotional distress; and (iv) the emotional distress suffered by the plaintiff was so severe that no reasonable person could be expected to endure it. Lyman v. Huber, 2010 ME 139, ¶ 16, 10 A.3d 707. The severity of the emotional distress is measured against an objective standard, meaning the plaintiff 7 must show evidence of objective symptoms such as shock, illness, or other bodily harm, which typically requires expert medical or psychological testimony that the emotional injury has resulted in a recognized defect. Id. ¶ 21.
Plaintiffs allege that the Disconnection Notices and similar communications to customers about disconnection of service during the Winter Disconnection Period subject to Chapter 815, Subsection 10(M) deceptively fail to inform the customers to whom the communication is directed that the threatened disconnection cannot take place without the consent of the CAD, and thereby give the misleading impression that the customers are subject to summary disconnection without recourse at CMP's sole discretion. Plaintiffs further allege that these notices purposely deprive the customer of information the customer is entitled to as part of a strategy to inflict emotional distress and force the customer to make a payment as soon as possible, regardless of what the Chapter 815 regulations require. Plaintiffs contend CMP's intent is evinced through, inter alia, (i) CMP's prior efforts to obtain PUC approval for the use of certain language in its winter Disconnection Notices and its actions in response thereto; (ii) the express language used in CMP's notices and letters, and (iii) the language CMP is required to use but which it omits.
A. Rule 23(a) Under the Maine Rules of Civil Procedure, a class may be certified where:
(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.8 M.R. Civ. P. 23(a). Plaintiffs bear the burden of proof under Rule 23(a) and must affiT demonstrate their compliance with each element. See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011).
Plaintiffs allege more than 1.4 million disconnection notices were sent and estimate at least several hundred recipients have actionable claims for this class action, making joinder impracticable; that questions of CMP's intent in sending the notices, the meaning and fair construction of the notice language, the intimidating and frightening effect of the notices, the appropriateness of punitive damages, and the size of punitive damages awards are common to all class members; that the claims of the named Plaintiffs are typical to the class because they received identical or
I substantially similar printed, electronic, or verbal threats of disconnection; and that the named Plaintiffs will fairly and adequately represent and protect the interest of the class. CMP primarily challenges the commonality and typicality requirements of Rule 23(a). To the extent CMP challenges the numerosity and adequacy requirements, this Court finds the class sufficiently numerous and the named Plaintiffs adequate.
1. Commonality
There must exist a question or questions of law or fact common to all members of the class, but these questions need not be identical nor does every question need to be common to every member of the class. Karofsky v. Abbott Labs., No. CV-95-1009, 1997 Me. Super. LEXIS 316, at *22 (Oct. 15, 1997). Rather, the focus is on the commonality of the defendant's liability to all class members. Id. In other words, the 9 court must be able to "generate common answers apt to drive the resolution of the litigation." Wal-Mart Stores, 564 U.S. at 349. Plaintiffs cite Karofsky, which found common questions of law and fact in connection with allegations of an illegal prices fixing scheme conspiracy, to support their contention that questions of the existence, scope, and efficacy of CMP's Disconnection Notices are sufficient to meet Rule 23(a)(2)'s commonality requirement. 1997 Me. Super. LEXIS 316, at *23.
Plaintiffs point to CMP's intentional use of exaggerated or misleading winter Disconnection Notices to allegedly inflict severe emotional distress, describing this tactic as extreme and outrageous, as the source of CMP's common liability to all class members. But regardless of what this Court finds as to the first two elements, to establish injury and causation under this claim such that CMP could face common liability to the class for intentionally causing emotional distress, the Court would have to take evidence from each individual class member about whether that member (i) received and read the Disconnection Notice; (ii) suffered emotional distress as a result; and (iii) such distress was so severe no reasonable person could endure it. See Lyman, 2010 ME 139, ¶ 16, 10 A.3d 707. This is an individualized inquiry because the answers would naturally vary amongst the class members. Unlike Karofsky, where the common questions of law and fact pertained to the conspiratorial conduct of the defendants, the questions in the instant action relate to the impact of CMP's conduct on the putative class. Some members may have received the Disconnection Notice but not read it. Those that read it may not have suffered any emotional distress for one reason or another, such as because they had forgotten to pay their bill but had 10 the money to do so or they simply did not take it as a serious threat. Even those that did suffer some emotional distress would have suffered it to different extents and manifested different, if any, symptoms. Though Plaintiffs propose bringing expert testimony as to why CMP's conduct could likely cause severe emotional distress, such evidence approaches the issue from the wrong side. The fourth element specifically requires that the emotional distress suffered by the plaintiff be sufficiently severe. Id. Any individual can and must bring evidence as to the severity of his or her emotional distress to press such a claim, but the requirement of individualized showings forecloses a finding of commonality such that the named Plaintiffs represent emotional distress claims on behalf of of hundreds of class members. See id. ¶ 21.
2. Typicality
For claims raised by putative class representatives to be "typical," they must "reasonably be expected to be raised by members of the proposed class.. . . Typicality does not mean that the claims of class members must be identical." Karofsky, 1997 Me. Super. LEXIS 316, at *24 (citations omitted). Typicality exists where "the claims of all class members arise out of the same events and require the same legal arguments to establish liability." Everest v. Leviton Mfg. Co., No. CV-04-612, 2007 Me. Super. LEXIS 111, at *5 (June 5, 2007). This requirement is "intended to assess whether the action can be efficiently maintained as a class and whether the named plaintiffs have incentives that align with those of absent class members so as to assure that the absentees' interests will be fairly represented." Millett u. Atlantic Richfield Co., No. CV-98-555, 2000 Me. Super. LEXIS 39, at *24 (Mar. 2, 2000) 11 (quoting Baby Neal ex rel Kanter v. Casey, 43 F.3d 48, 57 (3rd Cir. 1994)). Moreover, "a difference in damages arising from a disparity in injuries among the plaintiff class does not preclude typicality." Karofsky, 1997 Me. Super. LEXIS 316, at *24.
Plaintiffs argue that their claims are typical of the class because they, like the putative class, received disconnection notices sent by CMP with what they allege was the intent to cause emotional distress. Their claims thus arise out of the same conduct as those of the putative class members. See Everest, 2007 Me. Super. LEXIS 111, at *6. CMP objects to both the characterization of the Disconnection Notices and this application of the "typicality" requirement, contending claims for emotional distress damages as a rule cannot be "typical." Richman v. Possibilities Counseling Servs., No. BCD-CV-10-53, 2011 Me. Bus. &Consumer LEXIS 16, at *5 (July 12, 2011) (holding in its typicality analysis that "[emotional damages] claims are unique. . . and are not suitable for certification within the class action."). This Court agrees with its previous assessment. The named Plaintiffs cannot make "the same legal arguments" as the other class members because, as stated in the commonality analysis, a crucial element of their claim is evincing objectively severe emotional distress on the part of each plaintiff, a question which is unique to each individual. Everest, 2007 Me. Super. LEXIS 111, at *5; accord Lyman, 2010 ME 139, ¶ 16, 10 A.3d 707.
B. Rule 23(b)
Under Rule 23(b), in addition to the requirements of Rule 23(a), class actions are maintainable only if 12
(1) the prosecution of separate actions by or against individual members of the class would create a risk of
(A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or
(B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests, or
(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
(3) 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. The matters pertinent to the findings include:
(A) the interest of members of the class in individually controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum;
(D) the difficulties likely to be encountered in the management of a class action.
Plaintiffs assert the third criterion, that common questions of law or fact predominate over those unique to individual members and that a class action is the superior method of adjudication. This rule largely overlaps with the commonality analysis under Rule 23(a)(2). Karofsky, 1997 Me. Super. LEXIS 316, at *6. The 13 difference is that commonality under Rule 23(a)(2) simply requires that a question f" • common to all members exist, whereas Rule 23(b)(3) requires that the plaintiff show such question or questions predominate. Wal-Mart Stores, 564 U.S. at 359. The aim of the predominance inquiry "is to test whether any dissimilarity among the claims of class members can be dealt with in a manner that is not 'inefficient or unfair.'" In re Asacol Antitr. Litig., 907 F.3d 42, 51 (1st Cir. 2018) (quoting Amgen, Inc. v. Connecticut Ret. Plans &Tr. Funds, 568 U.S. 455, 469, 133 S.Ct. 1184 (2013)). Analyzing inefficiency means considering the pragmatic reality of taking and weighing evidence issues individual to each class member, and analyzing unfairness means considering the extent to which eliminating inefficiency via a class action would interfere with a party's rights to raise plausible individual challenges to each of those issues. Id. at 51-52. Any method of adjudication must be both administratively feasible and protective of defendants' Seventh Amendment and due process rights. Id. at 52.
Plaintiffs emphasize that the Court must look to CMP's conduct, not whether each class member has a colorable claim. They say the question for the Court at this stage is whether they have provided sufficient evidence of issues and questions common to the class, not whether the action will ultimately be successful on the merits. See Karofsky, 1997 Me. Super. LEXIS 316, at *12. However, this Court finds the questions of law and fact at issue not to be common to the class, negating any predominance argument. 14
Even if there were common questions, Plaintiffs' cited caselaw is unconvincing. They propose that claims for emotional damages can be efficiently heard in a class action and rely on federal cases from Connecticut for support. In Collins v. Olin Corp., the court held that in an intentional infliction of emotional distress claim, proximate cause inquiry can be done in conjunction with inquiry into each plaintiffs actual damages and that the remaining elements, such as the defendant's intent, whether the defendant's conduct was likely to cause distress, and whether that conduct was extreme and outrageous, can be analyzed on a class-wide basis. 248 F.R.D. 95, 104 (D. Conn. 2008). This only partially solves the question of inefficiency, as that court would still have been forced to hear testimony on the actual damages of each of hundreds of individuals had the case not ultimately settled. Id. at 101. Moreover, Collins involved additional claims for damages alongside intentional infliction of emotional distress, such as negligence, creation of a nuisance, abnormally dangerous activity, and willful and reckless conduct, bringing into question whether it actually stands for a court's capacity to certify a class on IIED claims alone. Id. at 100.
Plaintiffs' citation to Macedonia Church v. Lancaster Hotel, Ltd. P'ship is also not helpful, because while that court held issues susceptible to generalized proof can predominate even while inherently individualized issues exist, the "key consideration" in that action was that "there was one instance of [racial] discrimination that affected the putative class members at the same time. . . as opposed to numerous instances of discrimination over time." 270 F.R.D. 107, 120-21 (D. Conn. 2010). Plaintiffs in the instant case do allege numerous instances of 15 intentional infliction of emotional distress over time. Additionally, that court also had to take individualized evidence from each class member, numbering more than a hundred plaintiffs. The number of class members in the instant action remains unclear but is likely to far exceed that number. Regardless, CMP correctly notes that both of those cases were decided prior to Wal-Mart Stores, which raised the bar for showing predominance at class certification, and Plaintiffs have not shown how a common question in the context of intentional infliction of emotional distress can predominate over individual ones. See 564 U.S. at 359. . '
Rule 23(b)(3)(D) also requires this Court to consider the "difficulties likely to be encountered in the management of a class action." Plaintiffs propose several methods of administering the adjudication, including bifurcating proceedings into liability and damage trials, appointing a magistrate to preside over individual damages proceedings, decertifying the class after a liability trial and allowing the class members to pursue damages on their own, creating further subclasses, or otherwise altering the class. They also hope the initial, merits trial will spur an agreement with CMP on compensation, rendering questions of case management moot. First, Plaintiffs' suggestions do not effectively overcome the difficulties inherent in this action. The expert testimony offered by Plaintiffs, taken as true, demonstrates only that emotional distress may reasonably be expected on the part of low-income CMP customers who receive notices threatening immediate disconnection, not that such emotional distress did in fact occur. But CMP has the right to require each plaintiff, whose numbers are amorphous at best, to prove actual 16 injury; the elements of intentional infliction of emotional distress cannot be f bifurcated because CMP is only liable if all four factors have been proven. A trial only on the first two elements, i.e. CMP's intent in sending the disconnection notices and the outrageousness of said notices, could not result in an enforceable judgment and would require the Court to call each of the several hundred or class members to individually testify on questions of causation and the severity of his or her distress. Such a "liability trial/' as Plaintiffs term it, could at most result in a finding of "potential liability." Second, this Court will not certify an unmanageable class action on the assumption, well-founded or not, that the suit will not proceed to a merits trial.
CONCLUSION
Based on the foregoing, the entry will be: Plaintiffs' motion for class certification is DENIED.
SO ORDERED.
The Clerk is requested to enter this Order on the Docket, incorporating it by reference pursuant to M.R. Civ. P. 79(a). . 17