Does the Illinois Commerce Commission have exclusive jurisdiction over a claim by a residential consumer against an alternative retail electric supplier for restitution of rate overpayments? Last month, the Illinois Supreme Court answered a certified question from the Seventh Circuit in Zahn v. North American Power & Gas, LLC, holding that the answer was “no.”

The plaintiff in Zahn is a residential consumer of electric power. The defendant is an alternative retail electric supplier (“ARES”) within the meaning of the Electric Service Customer Choice and Rate Relief Law of 1997. Pursuant to the Act, in an effort to foster competition within the Illinois electric industry, consumers are entitled to buy power from the local public utility, a different public utility, or an ARES. In August 2012, the plaintiff decided to purchase her electricity from the defendant, based upon an alleged letter promising a “New Customer Rate” of $0.0499 per hour. Plaintiff maintained that she never received the promised rate in the nearly two years after she signed with the company.

The plaintiff filed a putative class action complaint against the defendant. The defendant moved to dismiss for lack of subject matter jurisdiction, arguing that the Commerce Commission had exclusive jurisdiction over the complaint. The district court granted the motion to dismiss, and the plaintiff appealed to the Seventh Circuit. The Seventh Circuit certified the dispositive question to the Supreme Court.

Citing Sheffler v. Commonwealth Edison Co., the Supreme Court noted that a claim for “reparations” rather than civil damages was within the exclusive jurisdiction of the Commerce Commission. But Sheffler involved a claim for “reparations” against a public utility, not an ARES. So Sheffler didn’t settle the matter. The only reason it was even a substantial question was the line of authorities holding that the General Assembly may take original jurisdiction from the courts and bestow it on an administrative agency when it enacts a comprehensive statutory scheme that creates rights and duties with no counterpart in common law or equity.

True, the Commerce Commission had exclusive jurisdiction over claims that a public utility had overcharged for its product or service, but the defendant in Zahn wasn’t a public utility: the Act expressly excluded ARES from that term. To nevertheless find exclusive jurisdiction over the claim would require the Court to disregard the clear language of the statute. Even though the Commission’s technical expertise is required to determine whether a proposed utility rate is just and reasonable, the prices ARES are permitted to charge are not determined by the Commission through conventional rate-making. Therefore, the technical expertise of the Commission was irrelevant.

Since the plaintiff’s claims did not fall within the exclusive jurisdiction of the Commerce Commission, it followed that the lawsuit was within the jurisdiction of the courts. Having answered the certified question, the Court remanded the matter back to the Seventh Circuit.