Judge backtracks on FirstEnergy class action certification, for now

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The Davis-Beese nuclear power station is seen near Oak Harbor, Ohio. REUTERS/Aaron Josefczyk

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  • FirstEnergy says judge OK'd ratepayer class without hearing opposition
  • Energy company says "very much opposed" to class
  • Judge blames FirstEnergy, but vacates order

NEW YORK (Reuters) - A federal judge on Friday canceled his decision to allow Ohio ratepayers to sue electric utility FirstEnergy Corp as a class over claims they were wrongly charged on their electricity bills to bail out failing nuclear power plants in the state.

U.S. District Judge Edmund Sargus in Columbus vacated his Nov. 9 decision certifying a class of Ohio residents who were charged a monthly surcharge for electricity under a state law, House Bill 6, designed to raise about $1 billion to subsidize plants owned by a former FirstEnergy subsidiary.

The unusual move followed FirstEnergy lawyers arguing that a scheduling mishap had stripped them of a chance to oppose the plaintiffs' motion for class certification.

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Sargus' certification order described Ohio resident Jacob Smith's and his co-plaintiffs' motion for class certification as "unopposed." But FirstEnergy said in court papers after the ruling that "the motion is very much opposed."

"The Court issued [the certification order] before Defendants' response to the motion was due," FirstEnergy's lawyers wrote.

Sargus wrote that the confusion stemmed from FirstEnergy and its co-defendants violating an earlier scheduling order by failing to depose the plaintiffs in time.

"Nevertheless, this Court endeavors, whenever possible, to decide issues on the merits," the judge wrote as he vacated the class certification.

Attorneys for the plaintiffs did not immediately respond to a request for comment.

Jennifer Young, a FirstEnergy spokesperson, said the company is "unable to comment on pending litigation."

The cases are Smith v. FirstEnergy Corp. et al; Hudock et al v. FirstEnergy Corp. et al; James Buldas v. FirstEnergy Corp., et al; U.S. District Court for the Southern District of Ohio, Nos. 2:20-cv-3755; 2:20-cv-3954; 2:20-cv-3987.

For Smith: Margaret Murray, William Bartle and Dennis Murray of Murray & Murray

For Hudock et al: Dennis Murray and Margaret Murray of Murray & Murray; and Richard Kerger of The Kerger Law Firm

For James Buldas: Dennis Murray of Murray & Murray; and Richard Kerger of The Kerger Law Firm

For First FirstEnergy Corp.: Michael Gladman of Jones Day

For Charles Jones: Carole Rendon of Baker & Hostetler

Read more:

Judge certifies ratepayer class action suit against FirstEnergy

Ratepayer files class action suit against FirstEnergy amid nuclear plant bailout scandal

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Reporting by Sebastien Malo @sebastienmalo

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New York-based correspondent covering environmental, climate and energy litigation.