Antitrust Law Daily Wrap Up, ADVERTISING—D. Mass.: Massachusetts energy supplier must respond to false advertising claims, (Sep 11, 2025)

By Brian Craig, J.D.

The consumer plausibly alleges that he reasonably expected the energy supplied to his home would come from renewable sources based on advertisements.

The federal district court in Boston, Massachusetts has held that a consumer can move forward with a proposed class-action lawsuit against CleanChoice Energy, Inc., an independent energy service company and supplier in Massachusetts, over claims that the energy supplier engaged in deceptive business practices with supplying clean energy. In denying the energy supplier’s motion to dismiss, the court concluded that the advertisements for electricity in consumers’ homes would be “replenished by clean, renewable wind and solar sources” may have misled customers to support claims for deceptive business practice and unjust enrichment under Massachusetts state law. The court concluded, however, that the breach of contract claims over variable rates fail because the contract terms granted the energy supplier discretion with respect to the factors it considered when setting its variable rates (Sommer v. CleanChoice Energy, Inc., No. 1:24-cv-11844-NMG (D. Mass. Sept. 9, 2025)).

CleanChoice Energy, Inc. is an independent energy service company in Massachusetts that serves as a broker on the energy market. A consumer signed up for the energy service company’s services in 2019 after receiving an advertising in the mail. The consumer alleges that the energy brokerage consistently overcharged customers by billing at rates substantially above its supply costs. The consumer also alleged that the energy supplier took advantage of the deregulated retail electricity market in Mass by misrepresenting the source of its electricity and its methods for calculating monthly billing rates. The consumer filed a proposed class-action lawsuit on behalf of all consumers asserting claims for breach of contract, deceptive business practices, and unjust enrichment under Massachusetts state law in the federal district court in Boston. The energy service company moved to dismiss the complaint.

Breach of contract. The court first concluded that the claims for breach of contract and breach of the implied covenant of good faith fail. The contract terms granted the energy broker discretion with respect to the factors it considered when setting its variable rates. A reasonable consumer would not make the assumptions that the consumer claims in this case. Furthermore, the consumer needed to allege unfair leveraging of the contract terms to secure indue economic advantage for a breach of the implied covenant of good faith and fair dealing. The consumer failed to sufficiently allege that the energy supplier charged commercially unreasonable rates. Only an unreasonable exercise of that discretion would violate the covenant of good faith and fair dealing. Thus, the court dismissed the breach of contract claims.

Deceptive business practices. The court concluded that the deceptive business practice claim under Massachusetts law can proceed over advertising with clean energy. To prevail on a Chapter 93 claim under Massachusetts state law, a plaintiff must show: (1) a deceptive act or practice on the part of the defendant; (2) an injury or loss; and (3) a causal connection between the defendant’s deceptive act or practice and the plaintiff's injury. In this case, the court found that advertising the “clean” quality of its energy and that electricity in consumers’ homes would be “replenished by clean, renewable wind and solar sources” may have misled customers. But the court found that the complaint fails alleged deceptive business practice with the variable rates set by the energy supplier.

Unjust enrichment. Likewise, the court found that unjust enrichment claims over clean energy can also move forward. As with the deceptive business practices claim, advertisements for electricity in consumers’ homes would be “replenished by clean, renewable wind and solar sources” may have misled customers to support the unjust enrichment claim under Massachusetts. The consumer reasonably expected that the energy supplied to his home would come from clean and renewal sources. The consumer allegedly switched his energy supplier and paid bills for more than three years. But the unjust enrichment claim over variable rate setting fails for the same reasons that the breach of contract claims fails.

Therefore, the court dismissed the breach of contract claims over variable rates but permitted the deceptive business practices and unjust enrichment claims over clean energy to proceed.

The Case is No. 1:24-cv-11844-NMG.

Judge: Gorton, N.

Attorneys: Daniel J. Martin (Frei-Pearson & Garber, LLP) for Mark Sommer. Diane S. Wizig (McDowell Hetherington LLP) for CleanChoice Energy, Inc.

Companies: CleanChoice Energy, Inc.

Cases: Advertising StateUnfairTradePractices MassachusettsNews