District Judge Frederick J. Scullin, Jr.


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Defendant moved to dismiss plaintiff’s claims for unfair and deceptive business practices under the Energy Service Company Bill of Rights, and for unjust enrichment. Defendant, an energy service company, set the price for the energy supply for its customers, although traditional utilities like National Grid continued to deliver energy to the consumer. Plaintiff alleged that defendant’s advertising and customer agreement failed to adequately inform consumers that defendant’s variable rates could be significantly higher than a fixed rate charged by a traditional utility, and that in his case, defendant failed to send him a renewal notice identifying all variable charges as required by law. Plaintiff asserted that, due to defendant’s conduct, he was injured by paying more than he would have with National Grid. Although the court found that the marketing materials cited by plaintiff were directed to the public, and not specifically to prospective purchasers as required to bring it within the statutory ambit, it ruled that plaintiff had sufficiently alleged that defendant’s terms and conditions failed to make the variable rate disclosure conspicuous, as it was only mentioned once and not formatted to highlight the disclosure.