In Ortiz v. Eversource Energy, a putative class action, plaintiffs brought suit against Eversource Energy alleging that Eversource knowingly marketed natural gas and related services as clean and safe for residential consumers and the environment despite knowing this was not true. Allegedly, Eversource knowingly issued communications that were purposefully misleading and inconsistent with scientific studies. Plaintiffs further allege that had they known the truth about the health and environmental risks associated with the natural gas, they would not have purchased the gas. 

Plaintiffs sought (1) a declaration that defendant’s promotional and advertising of its natural gas contained unlawfully false, misleading, and/or deceptive statements; (2) an order enjoining defendant from promoting and marketing its natural gas using such unlawfully false, misleading, and/or deceptive statements; and (3) an order that defendant be required to make reasonable and regular corrective disclosures to plaintiffs and the putative class members that accurately describe the potential health and safety risks. Plaintiffs also sought monetary damages under Chapter 93A. 

Defendant moved to dismiss the complaint for failure to state a claim. Paying for a product whose price was artificially inflated by deceptive advertising is a recognized economic injury cognizable under Chapter 93A; however, a plaintiff may not base the claim on speculative harm or risk of economic damages. Here, plaintiff did not allege that the natural gas they purchased from Eversource was functionally deficient or that they suffered any adverse health effects from the natural gas they purchased. To the contrary, plaintiffs claimed they were harmed when they had been misled regarding the environmental and health risks of the gas. In other words, plaintiffs paid too much for the gas they received. However, the Massachusetts Superior Court noted that pursuant to the current regulatory regime in Massachusetts, the Department of Public Utilities has the exclusive power to regulate operations, service, and rates. Thus, as the rates Eversource charged were not entirely within its control, the connection between the purported false statements and the costs plaintiff incurred was too attenuated to serve as a cognizable injury. Plaintiff was unable to establish that they would have paid a lower price for natural gas had it been honestly advertised.