United States: District Of Massachusetts Reaffirms Broad Defense Of Filed Rate Doctrine

Last Updated: July 9 2019
Article by John Shope and Kevin Chen

An important legal doctrine for companies that buy and sell in regulated markets is the "filed rate" doctrine, which limits legal challenges to rates determined by regulators such as the Federal Energy Regulatory Commission or the Federal Communications Commission. A recent decision by the District of Massachusetts illustrates the potential breadth of the doctrine.

By way of background, two class action lawsuits filed in the District of Massachusetts alleged that Eversource and Avangrid systematically abused their influence in the natural gas transmission market in violation of federal and state antitrust laws. According to the plaintiffs, Eversource and Avangrid subsidiaries regularly reserved more natural gas transmission capacity than they needed and refused to release excess capacity in the secondary market or did so without enough time for the pipeline space to be resold to others. The plaintiffs alleged that this practice unnecessarily limited the gas supply, artificially increased the commodity market price for natural gas, and inflated wholesale electricity prices in New England.

The first case, a class action filed on behalf of New England retail electricity consumers, was dismissed in September 2018 by U.S. District Judge Denise Casper of the District of Massachusetts. Breiding v. Eversource Energy, 44 F. Supp. 3d 433 (D. Mass. 2018). In her decision in that case, Judge Casper focused in part on the retail consumers' lack of antitrust standing, asserting that they were "not competitors or customers in the natural gas transmission market allegedly restrained by [Eversource and Avangrid's] anticompetitive conduct." Id. at 452. However, Judge Casper suggested that wholesale electricity purchasers might be proper plaintiffs to bring a suit of this kind. See id. at 455–56.

Yet just this month, Judge Casper dismissed a separate class action brought by wholesale electricity purchasers for essentially the same alleged conduct. PNE Energy Supply LLC v. Eversource Energy, No. 18-11690, 2019 U.S. Dist. LEXIS 95764 (D. Mass. June 7, 2019). As in Breiding, the court held that the plaintiffs failed to meet antitrust standing requirements. Indeed, Judge Casper apparently disavowed the notion that wholesale purchasers were proper plaintiffs to sue Eversource and Avangrid, finding that such purchasers are not customers or competitors in the excess gas transportation capacity market—the market in which the alleged misconduct actually occurred. Id. at *30–31.

As in Breiding, Judge Casper also held that PNE's claims were barred by the filed rate doctrine, which requires that "utility filings with the regulatory agency prevail over . . . other claims seeking different rates or terms than those reflected in the filings with the agency," Town of Norwood, Mass. v. FERC, 217 F.3d 24, 28 (1st Cir. 2000). According to court, whether or not FERC's regulatory authority necessarily extends to the excess gas transportation capacity release market, that secondary gas transportation capacity market is "bookended" by the primary gas transportation capacity and wholesale electricity markets, both of which are regulated by FERC. 2019 U.S. Dist. LEXIS 95764, at *20. Moreover, the court stated that it cannot "second guess" or "set aside" wholesale electric rates approved by FERC through the ISO-New England auction process, since the filed rate doctrine "prohibits" a court from analyzing "the difference between wholesale electric rates during the class period and hypothetical rates that would have been charged but for Defendants' conduct." Id. at *25–27 (citing Wah Chang v. Duke Energy Trading & Mktg., LLC, 507 F.3d 1222, 1226 (9th Cir. 2007)).

PNE may be subject to challenge. The district court's "bookend[ing]" theory of the filed rate doctrine is arguably consistent with analogous Ninth Circuit cases. See, e.g., Woolsey v. J.P. Morgan Ventures Energy Corp., 691 Fed. Appx. 308 (9th Cir. 2017); Public Util. Dist. No. 1 of Snohomish Cty. v. Dynegy Power Mktg., Inc., 384 F.3d 756 (9th Cir. 2004). But this understanding is not inevitable. Although the defendants' alleged misconduct occurred within a FERC-approved framework, FERC has not affirmatively approved the alleged conduct such that the ultimate resulting rates should obviously be considered "filed." Moreover, this broad conception of the filed rate doctrine effectively immunizes utility companies from antitrust claims in the courts, even when the alleged misconduct occurred outside of FERC's explicit jurisdiction—a far-from-uncontroversial result.

The First Circuit has hinted that it shares a broad reading of the doctrine. See Town of Norwood v. New England Power Co., 202 F.3d 408, 416 (1st Cir. 2000) ("While the termination charge is not a traditional 'rate' for continuing service, the filed rate doctrine sweeps more broadly and governs ancillary conditions and terms included in the tariff."). However, the court has not directly addressed the issue—yet. Judge Casper's earlier Breiding decision is currently on appeal, and its outcome surely will influence any future appeal by PNE. If the First Circuit decides to affirm Breiding, it will join the Ninth Circuit in providing sweeping protections for utility companies against antitrust challenges in the courts.

That is not to say that a broad filed rate doctrine gives utility companies free rein to engage in anticompetitive practices. Within the energy sector, FERC has authority to investigate unlawful conduct pursuant to complaint or by its own motion. See 16 U.S.C. §§ 825e–825f (2012). For example, following the California energy crisis of the early 2000s, FERC investigations led to billions of dollars in settlements with Western energy companies. See Addressing the 2000–2001 Western Energy Crisis, Federal Energy Regulatory Commission (Mar. 15, 2012). With respect to the allegations against Eversource and Avangrid, however, FERC issued a press release in February 2018 stating that a "staff inquiry . . . revealed no evidence of anticompetitive withholding of natural gas pipeline capacity," so the Commission would "take no further action on the matter." News Release, FERC Staff Inquiry Finds No Withholding of Pipeline Capacity in New England Markets, Federal Energy Regulatory Commission (Feb. 27, 2018). A broad filed rate doctrine therefore relies entirely on FERC to hold bad actors accountable, leaving injured parties without recourse when the Commission declines to exercise its enforcement discretion.

To view Foley Hoag's Energy & Cleantech Counsel blog please click here

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions