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Q&A With McDowell Hetherington: An Experienced Retail Energy Law Firm

Retail energy suppliers know that navigating today’s legal and regulatory environment can be complex, and having the right legal partner makes all the difference. McDowell Hetherington (MH), a REAL business partner, has built a reputation as a go-to litigation firm for the energy sector, representing clients in high-stakes cases nationwide. 

REAL spent time with Matt Matthews, a partner at Houston-based McDowell Hetherington, asking questions to learn more about the firm and gather insights on evolving issues and the latest legal trends that suppliers should be aware of to protect their operations.

Q: Who are McDowell Hetherington?

A: McDowell Hetherington is an elite litigation firm that represents clients in complex commercial disputes across the country. MH has sixty lawyers (licensed in twenty-two states) based in offices in Texas, California, and Florida. We are hard-working, creative, client-focused, and results-oriented. Since the firm’s founding in 2009, we have been lead counsel in the trial courts of every state and have successfully argued appeals before the United States Courts of Appeals for eleven federal circuits and numerous states’ appellate courts.

Q: How does MH support clients in the energy sector, particularly in retail energy?

A: For more than fifteen years, MH has represented retail suppliers—including many REAL members—in hundreds of matters in more than thirty-five states. This experience includes commercial disputes (plaintiff-side and defense-side), a variety of contract and tort cases, and dozens of class actions (including variable-pricing, sales, contract-disclosure, and TCPA cases).

No law firm has had more experience or more success defending retail suppliers in class actions about variable-rate pricing and disclosures. Since 2014, we have represented retailers in more than fifteen such cases. Our wins at the dismissal and summary judgment stages—and our success in the Second and Seventh Circuits affirming those decisions—have helped shaped this area of the law in a way that has given the industry a roadmap to potential victory.

Q: What sets MH apart from other litigation firms?

A: The depth of our experience in retail energy litigation and our understanding of the industry set us apart. In fact, when it comes to retail energy litigation, our experience is unmatched. For years, we’ve communicated with our retail energy clients about their cases on a daily basis. We have also seconded attorneys to our retail energy clients on five occasions. As a result of all this experience, we know our retail energy clients’ businesses, the litigation challenges they face, and the best ways to tackle those challenges. The strength of our connections and depth of our institutional knowledge enable us to handle our retail energy clients’ cases efficiently and effectively.

Q: Are there legal trends within the energy sector that you are noticing?

A: After a few quieter years, variable-rate pricing and disclosure class action filings are back on the rise. There are a few consumer class action firms with significant experience in these cases that are adjusting older arguments and/or pursuing new ones. As an example of a new argument, we’ve seen variable-rate cases that now also include claims alleging that representations about the renewable qualities of electricity were misleading (i.e., allegations that marketing electricity matched with RECs as “renewable” or “green” is inaccurate). Those same firms are also broadening their claims to include nationwide customers, regardless of the product they purchased—whether power or gas, residential or commercial, green or standard.

Q: What is a recent notable case MH litigated that is important for retail suppliers to be aware of?

A: In 2022, MH won the first two summary judgments ever granted under a New York statute about variable-rate disclosures in consumer electricity and natural gas contracts. We then argued the appeals, both of which were summarily affirmed by the Second Circuit in 2023, ending two putative class actions after six years of litigation. While these cases were decided under New York law, their conclusions about what constitutes a “clear and conspicuous” disclosure have broader application for retail suppliers.

MH also recently acted as lead counsel for the retail electric provider defendants’ group in the Texas Winter Storm Uri MDL. We drafted and successfully argued the retailers’ bellwether motion to dismiss, one of only two industry-group dismissal motions that was fully granted (and was not appealed).

Q: How does MH stay ahead of regulatory and industry changes?

A: As mentioned, we’re in daily communication with our leading retail energy clients, who are the most knowledgeable and reliable source of information about regulatory and industry changes. But we of course also monitor industry news sources to identify legal and regulatory developments that could impact our clients. In addition, when it comes to litigation, for the last decade, we have closely tracked all variable-rate class actions across the country to identify trends, key court decisions, and settlement structures in those cases—a practice that helps us use winning arguments, avoid losing ones, and proactively manage our clients’ risks.

Q: What should a prospective client expect when working with MH?

A: Any prospective client can expect high-quality legal analysis, writing, and oral advocacy from MH. They can also expect responsiveness, dedication, and an intense focus on client service. A prospective retail energy client can also expect that we’ll know your industry—you won’t have to teach us. We know how deregulated energy markets are structured, how electricity and natural gas are traded, how energy supply portfolios are hedged, and how consumer and large commercial and industrial contracts work. We’ll hit the ground running and won’t need any handholding.

Looking to learn more about McDowell Hetherington? Connect with Matt Matthews and Diane Wizig.

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Energy News

After August 1 Massachusetts Utility Rate Increases, Retail Supply Rates Could Save Consumers Up to 23% on Electric Bills

BOSTON –– Most residential electric customers in Massachusetts saw their utility supply rates increase on August 1, as Eversource and National Grid’s basic service rates increased. But residents can save significant money by shopping with a competitive electric supplier.

According to a new August rate summary analysis by My Energy Choice, retail electric suppliers have 132 fixed-rate offers available this month that are less than utility company rates for Massachusetts customers to enroll in. The lowest retail offers available in the state’s seven utility service territories range from .2¢ – 3.39¢ per kiloWatt hour (kWh) cheaper than the utility rate in each service territory. The statewide average savings customers could receive is ~16%.

Eversource customers in the BECO, CAMB and COMM service territories can save up to 23% on the supply portion of their bill, while National Grid customers in the WMECO territory can save up to 22%. Those saving percentages would equate to about $40 a month for a customer that uses 1,000 kWh per month.

Customers who prioritize green energy can also find offers for less than utility rates. The statewide average price for green offers (exceeding the state’s minimum clean energy requirement) in August was still 2¢ less than the statewide average utility rate.

A total of 241 competitive electric supply offers were available on August 13. Customers had 110 100% renewable energy offers to choose from.

This monthly rate summary analysis can be found here. Massachusetts residents can review offers from competitive energy suppliers using the state shopping website EnergySwitchMA.gov. View a guide to shopping here.

Data for this analysis is sourced from Massachusetts’ state-managed energy shopping website, EnergySwitchMA.gov.

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Energy News

Missourians Are Heating Up Over Electric Bills, Demanding Change

Missouri residents continue to speak out about the rising costs they are experiencing in their home electric bills. Within the past year, Missouri utility companies have averaged a four percent increase in the cost of the electricity they supply. Additionally, from 2020 to 2023, they experienced a collective rate increase of 20%. Consumers are noticing –– and they’re not happy. 

In three weeks, an online petition that was launched in late July secured 3,000 signatures from Missouri residents who want to stop “excessive” rate increases by Ameren, the state’s largest utility. 

One petitioner named Marissa wrote:

She isn’t wrong. Missouri’s energy structure is vertically integrated, monopolized by the ratepayer-funded utility companies. This means the utility company controls the generation of electricity, the sale of the electric supply and the delivery of that product to your house. Without competition, it’s understandable to have the feeling of unfairness when you aren’t afforded any other options.

Missourians have also been expressing their frustration through the My Energy Choice campaign, a consumer advocacy campaign full of customers demanding state lawmakers take action to break up the utility monopoly. Melissa from Saint Joseph wrote:

This topic of utility monopolies was the focus of a recent article from KBIA, an NPR affiliate in Missouri. The authors of the article posed the question, Why are utility companies monopolies? The article includes perspectives from academics that riff on the idea that the mechanics of just one company monopolizing the power for a community is best to prevent various sets of poles and wires from attempting to deliver electricity. Another academic spoke to economies of scale and how utilities could produce cheaper electricity that would not occur if there was competition.

Unfortunately, this article or these experts did not address all the research or evaluate states with competitive markets, as there are 23 states that allow some or full electric competition.

In a competitive market, utility companies still have an integral role in delivering electricity. There are not multiple sets of wires and poles for every supplier selling electricity. All power runs through the electric lines of the utility company, preventing energized spiderwebs on every street. A quick explainer can be found here.

When it comes to price, like any product that has ever been sold, competition applies pressure to any seller with a compatible product to keep prices down. The same goes for electricity. The academics from the article mentioned above used Pennsylvania as an example of where competition has not worked for consumers, but a recent analysis of electric rates and retail supply offers conducted by a former Pennsylvania public utilities commissioner suggests otherwise.

Pennsylvania was once like Missouri: a state with growing demand and not enough supply, high electric rates, power generation inefficiencies, a push to spend a lot of money on nuclear energy, plus occasional blackouts. This was the energy market in the early 1990s for the then-utility-monopolized Pennsylvania. 

Knowing that a change needed to happen to protect consumers and ensure lights stayed on, state lawmakers passed legislation in 1996 that restructured Pennsylvania’s energy market, opening the doors for competition to generate and sell electricity. Nearly 30 years later, John Hanger, a Pennsylvania utility commissioner who was an architect for the Commonwealth’s market restructure, analyzed data to determine if the restructuring continues to be beneficial for consumers. The results speak for themselves.

Hanger recently compared the Pennsylvania utility electric rates in 1996 from seven different service territories to the utility rates and retail supply offers from 2024 in those same territories. What he found is that customers could have enrolled with retail suppliers in 2024 at electricity prices that were cheaper than utility rates in 1996 –– direct comparisons, no adjustments. When inflation adjustments were added to the 1996 rates to conservatively estimate what they would equate to in 2024, Hanger discovered that the 2024 utility rates were cheaper than what they would have been projected to be based on the 1996 rates. 

This demonstrates that price pressure from competition works. 

Because Pennsylvania has competition, anyone selling electricity has to compete for the business of consumers. If prices don’t fall in line with other electricity products on the market, it’s less likely the consumer will purchase the product, opting for another product.

Pennsylvanians have robust options in the type of electricity they can purchase and in the length of their contracts. If a customer wants to purchase a premium product, such as 100% solar energy, they can do that. If they want to lock in a rate for 36 months without the worry of price volatility, they can do that too.

In Missouri, there are no alternatives and energy users are stuck with the prices that are set by the utility and Public Service Commission. The Consumers’ Council of Missouri reported that electric rates increased 20% from 2020 to 2023. That’s an annual cost increase of $327 for the average household. Data also shows that in 2023, Missouri ranked 4th in the country for the biggest jump in electricity, starting in 2008.

One of the biggest factors coming out of the restructuring is that Pennsylvania has built more baseload power plants and new power generation than Missouri and other nearby monopoly states –– and it happened without customers paying for it. 

As a result of restructuring, competitive states have more power and better reliability than states that protected their utility monopolies. The new power generation projects in Pennsylvania are paid for by private investors with experience in producing energy from natural gas, wind, solar, hydro, nuclear, etc.  

Unfortunately, in Missouri, all power generation is paid for by the ratepayers (customers). In fact, legislation (Senate Bill 4) was recently signed into law, allowing utility companies to bill for “construction work in progress” or CWIP, meaning before any energy is even produced –– let alone a shovel breaking ground –– the utility company can start billing ratepayers. And if priority projects are nuclear facilities, Missouri could find itself even closer to Pennsylvania’s position pre-1996.

This is a concern for Missourians who have voiced their displeasure, including a video of a petitioner on the Change.org campaign. A guy named Dewayne in a video message said:

Missourians want to see change. They want to have a choice. And the state can help by putting the power in the hands of consumers to have some control over their electric bills.

The 2025 legislative session included legislation introduced by Sen. Nick Schroer and Rep. Don Mayhew to give electric customers energy choice. The companion bills, Senate Bill 487 and House Bill 417, were designed to create a competitive market, make suppliers earn the business of consumers, and invite privately invested power generation into the state to better support demand without forcing the ratepayers to fund those financially risky projects. Unfortunately for Missourians, those bills were heavily opposed by –– you guessed it –– the utility companies.

Consumers are sounding alarms as utility companies maintain total control. As petitions for change continue to swirl, perhaps Missourians will see energy choice legislation reintroduced in 2026.