first one which is whether or not the illinois commerce commission or the i c c enjoys exclusive jurisdiction over plaintiffs claims i would start with the unassailable point of illinois law which is illinois courts have original jurisdiction over all justiciable matters but if the legislature wants to make an exception to that it must do so explicitly and employers mutual company versus skilling is directly on point there the illinois supreme court addressed the question of whether the industrial commission had exclusive jurisdiction over all issues regarding the application to workers compensation law that statute provide that all that was different contexts counsel and the supreme court of illinois seems to have made an exception to that general rule about speaking with clarity for purposes of i c c jurisdiction over electricity rate issues entirely consistent because in sheff where the question was whether or not the i c c had exclusive jurisdiction over claims for rape reparations against a utility against a public utility now the public utility act does contain an explicit grant of exclusive jurisdiction for public utilities to hear the claims of the reparations but that is a separate context from independent energy companies or as the legislature for  yes scheffler was only about public utilities and that case didn't address whether or not an areas was in fact separate and if we look at both the public utility act and the rate relief law i would suggest that the legislature made clear that areas were not to be treated as public utilities scheffler involved a claim against but didn't areas section sixteen of one zero to define electric utility as  public utility yes your honor but an aries but the relief law also defines an aries as not being an electric utility and more significantly when the rate relief law was passed in  seven the legislature amended the public utility act definitions to specify that a aeris is not a public utility so by explicit definition when they have sent the legislature set out to remove areas from the broad reach of the i c c s authority over public utilities and we can see that simply by the different difference their excessive rates or rates above filed rate or the tariff then the i c c has exclusive jurisdiction and that language is plain on the other hand the rate relief law contains no such clear statement that the i c c has authority that's exactly my point where well then if there isn't a current who has primary jurisdiction then well you know who should have your honor the i c c does not have primary jurisdiction and the reason being that this is the question of whether or not a rate provided by a private entity in a private contract is above or below the rate was actually provided this is standard fare for courts and in this case all that the court would have to do is compare the rate that north america power actually charge vs the rate that they did charge or start the rate they should have charge vs the rate they did charge or more simply they can simply compare the rate that north american power charge versus the rate that the public utilities charge because ms is on a ledge she would not have switched from the public utility but to north american power but for north america power is deceptive misrepresentations and so it's just a simple matter of comparing  from a damages perspective what the chill of year eight is vs what north american power treat is and courts do this all the time they determine what charges should have been under contract and what charges are actually charged and they figure out the difference on the other hand the the illinois commerce commission does not have the expertise to determine what a market rate should have been and that was the reason why the legislature passed the  hand the cost of the utility incurs for providing electricity vs the cost that the least economically advantage illinois citizen can afford and that's a public policy decision but in one thousand nine hundred seven the only commerce commission determined that a much better way to set utility rates would be do allow the market to set those rates and essentially determining that the i c c did not have the competence or authority to determine what those market rates were and that's why under the rape relief law where in th it's that state that they take the public interest and disadvantage consumers into account in setting rates according to its statutory mandate doesn't mean it has no expertise and has expertise in determining market recovery in determining electricity rates for the public benefit and that's not just a question of figuring out what market rate should be bright but that the commission clearly takes the electricity market into account in incur and to the extent that the market is comprised of economically disadvantaged citizens then that is something that they consider but the rate relief law explicitly removed from the  is authority the ability to set the rates they they don't have to utilities aries don't have to file their rates with the commission those rates don't have to be approved and the reason being that the legislature wanted competitive forces to determine those rates were council doesn't sixteen one fifteen b of the rate relief law specifically state the i c c has jurisdiction over areas with regards to consumer complaint and if it fails to provide service in accordance with the terms of the contract and if so how does your client's claim fall outside that provision your honor again that goes back to the point of there being concurrent jurisdiction our plaintiff could have brought a claim what one fifteen b subsection a because your honour's of course right that the illinois commerce commission can entertain and dispose of complaints and that does include the claim that the aries is not complying profits but the i c c couldn't order reparations it could only make north american power change its contract simply subsection b to provides that the i c c can provide financial penalties but financial penalties under subsection five slash four two zero three d of puppy gelati act are not something that goes to the plaintiff they're not reparations they're financial penalties that go to the treasury and subsection b three only provides c or reparations for excess of rates against public utilities it did so in clear and expressive language and that's subsection nine desh two fifty two but the rate relief law only provides that certain sections of the public utility act apply and subsection nine is not part of that when the legislature provided the authority of the i c c to hear and dispose of claims it did not use the simple language it jurisdiction to hear this claimant and we're not contending that plaintive couldn't have brought a claim also before the i c c but the i c c could never provide her with the relief that she asked for and she could going to prizes we don't see the i c awarding affirmative when i write because it was in the final order that that was an interim notion to dismiss as i understand the procedure contexts and the commission rejected the jurisdictional argument and i don't know how the merits came out that i don't the implicit in the decision is that the commission thinks it has the authority to deal with contract disputes and provide a remedy well you're  c felt like it could address that issue later it's unclear from that decision but what is clear from the she could decision is that it does not explicitly state that the i c c can provide reparations remedy and  it does not provide that that it's exclusive jurisdiction not neither one of those cases are addressed and she could and in fact the question of whether or not exclusive jurisdiction wise isn't it just because there heard the claim but that's not the law in illinois that's hasn't been from one nine hundred ninety two when the illinois supreme court passed and no industries to again skilling in a couple years later where the court couldn't have been more clear that there has to be an explicit grant of exclusive jurisdiction and i perceive your honour's point that scheffler may indicate otherwise but but again i would suggest that scheffler is limited to public utilities in the public utility act which does provide for explicit jurisdiction that's in again section nine desh two fifty two and and also in ny and actually one where the legislature limited the court's authority in relation to claims against public utilities to  civil damages as opposed to reparations right but the legislature in in creating this new category of electricity providers seem to indicate an intent to treat them as public utilities for many purposes but just not for rate setting right i mean is that a fair construction of the purpose of the reform it's not fully deregulatory as you're it's a standard principle and canon of interpretation that when court say one thing and not another and statutes that are part of the same act that they mean something different if the legislature had wanted the illinois commerce commission to have exclusive public utility after that do and don't apply for example they point to section sections in ada one which concerned things like not cutting off what tricity in the winter to disadvantaged people there are parts that they said do apply the parts of they didn't say apply therefore don't in order to find that the i c c has the authority to order reparations here the court will have to pick and choose between parts of the great suggest that would be appropriate i do think we've made our case that the law is clear but this is a question of first impression for under illinois law and i would suggest would be entirely appropriate for the illinois supreme court to hear this and that we would be dismiss on both the twelve b one and twelve the six grounds must be affirmed here since this is a dispute alleging excessive electricity rates between alternative retail electric supplier and its customer the only commerce commission has exclusive jurisdiction here for two reasons one there are several specific statutory provisions calling for such jurisdiction and to the i c c has an interest in regulating both asses and public utilities alike based on the public utilities and should be affirmed here because two specific sections of the public utilities act mandate i c c jurisdiction and those are section nine dash two five two and sixteen dash one fifteen b design cannot escape that section sixteen desh one fifteen b governs this dispute especially as to whether or not and they are yes adequately disclosed its prices in terms of service in its contracts which is exactly what john is complaining of here today counsel you believe there is concurrent jurisdiction or just exclusive jurisdiction both your honor we believe that section sixteen gets one fifteen b n ninety s to five to give exclusive jurisdiction even if there was concurrent jurisdiction primary jurisdiction would rest with the i c c because the c has expertise in governing over issues concerning the reason illness of rates as well as the categories outlined section sixteen deaths one fifteen b as a your position at the applies and that all the articles of the public only article the rate really fact specifically section sixteen deaths want to one has inclusionary language that allows all other provisions of the public utilities act that apply to a public utility to also to apply to an area asked when dealing with tariff services well why does the legislature did was add specific sections for example in the telecommunication cases that john cites in the brief those sections in article thirteen state inclusionary language but only list certain sections that will apply here and that is exactly what any p g was doing here for mr john and other illinois customers when looking at whether or not the customer chooses an over a public utility they are provided one bill based on the rate really factors a single billing options and can add in this case handles that procedure as part of the accounting billing service as a combat performs it charges back to the best overhead for those accounting and billing services as well as use of the delivery of the electricity across its infrastructure to the area s so the a r a s has to contemplate part of that filed tariff rate from com ed for those overhead services and you should do a delivery lines back to the customer deaths one fifteen through one fifteen eight sets forth a laundry list of requirements that and areas must comply with before it is allowed to use to service an illinois customer and those include adequately disclosing prices and terms of service this contract the marking materials which is exactly what john is complaining of here today right but that section doesn't explicitly incorporate the remedies provision into fifty two it does not but under section sixteen guess one fifteen be allowing the commission and stating that the commission shall have jurisdiction to entertain and dispose of complaints between areas and its customer the use of the word shall by the legislature has been held by the supreme court to be one of mandatory w jurisdiction in the agency as well as the circuit courts exclusionary that we would submit to this court is existing is in looking at such and sixteen dash one fifteen b where it states that the commission shall have jurisdiction in accordance with article ten looking at article ten article ten sets forth the procedure of the i c c to first and foremost hear these cases and dispose of them and determining whether or not a customer is entitled to great relief article ash to a one a it's not invalidated well no it has not so ten dash two a one states that the commission shall have jurisdiction and states the procedure and even states that it can and has the ability  and looking at that in conjunction with that sixteen gets one fifteen b gives your stiction again though even looking at section nine states that section six hundred s one fifteen b shall have commission jurisdiction in accordance with article ten so it's still in section sixteen dash one fifteen be referring all to the provisions of article ten the entire procedure of article ten not dealing with tariff services what's what's most notably important here is that the cheek you case specifically determined that and a r a s is an electric public utility one is providing the exact same services and one the i who states that in a are yes engaging utility services is by definition a public utility which is what john is contending does not apply here and does not give rate relief under section one desk two five two so either way section sixteen guess one services that a public utility would provide such a ninety s to five to should apply based on the language of sixteen desh want to want most importantly this is not really a case of first impression here since the s r t enterprise's vs direct energy ruled on this issue consistently with our position here today in that case the district court in the northern district of illinois ruled that n a r e s belonged to the i c c exclusively when the dispute was as to whether or not there's a cl for operations instead of peeling directly to this court the plaintiff there chose to go back to state court lost the trial court level and then appeal to the illinois public court there the only public court made the exact same as the northern district of illinois did in stating that the section sixteen guess one fifteen b applies to give exclusive jurisdiction to a dispute involving a r e s one it is a claim for reparations well but that's the holding in s r t enterprises by stating itself that the i c c after reviewing all the statutory schemes here in the legislative intent has exclusive jurisdiction to hear  jurisdiction it was implied that it was going to be set forth for determination as to whether or not a customer would be entitled to rate relief what what happened after that decision after that there's there's no other record of it the i c c technically has two different ways they hear complaints one is an informal complaint process where customers lodge a complaint at that point the i c c can reach out to an area as a public utility to see if they can negotiate a resolution if a resolution can't be reached a formal complaint can be filed and at that point the i c c can make a ruling or again try to bullshit a resolution right but there must be some record of the disposition of complaints we don't we don't know if the issue was resolved or what the case could have been how can that be it's a public that there's nothing secret there's nothing after that so i don't know if it was resolved or not your honor but i think i'm sorry it's still pending i do not believe if you want we can look and double check to make sure it isn't submitted twenty  letter if needed on that issue just curiosity but the i c c does have the ability unlike what john contends to issue orders granted denying relief my client who is here today actually has to appear before the i c c tomorrow ironically for customer who and because of these interpretations within this court's purview it stands to reason that the i c c would want to regulate this entire process of change by way of background a little bit and a r a s is nothing more than working in tandem with the public utility since a public utility has the long infrastructure of lines that are used to deliver the electricity wants to purchase from a r a s or any other provider so therefore and they are yes and public utility work in tand to reason the i c c would want to regulate this entire process and not have to regulate one entity over the other just because the i c c regulates these entities differently does not mean one is less regulated than the other and as your honor mentioned deregulation simply refers to the ackman of the great relief act allowing more choice and competition for illinois customers to choose their own electricity service provider instead of relying on the local monopoly well thought it is deregulatory in the sense that this sector is no longer subject to the rate making authority of the commission so rate setting is independent when i got the regulatory authority as i understand it is that in force meant of contractual rates is up to the i c c exclusively with appeal to the circuit courts correct because section sixteen gets one fifteen b list the requirements that it files its tariffed rate it doesn't have oversight by the i c c they file the rate as they see fit and they do it for a long portion of time it's at that point that the i c c says ok that's the rate that's going to be a binding contract between it and the customer commission they have that they have the ability to they can accept it or send it back right true but come out is the one who comes up with that rate and that's it but section one gets to five two or darla's applies here if someone is claiming that they were charged too much because ninety s two five two applies within inclusionary language of the right relief act and as we've said before the tariff services here is the same thing whether it's provided by any p g or an that context as well as the inclusionary rate of sixteen dash want to one that allows the section to apply when dealing with tariff services and that is nothing more than what john was asking for was for electricity service no matter who was providing it whether it was any p g or com that it would have been the exact same service the skilling and warner cough case that zohn cites the skilling case is very limited in narrow in a narrow ruling here skilling case of dealing with a completely different statutory scheme and that was a worker's compensation issue and the court didn't didn't hold that the i c c did not have exclusive jurisdiction at all it just simply stated that the i c c did not have jurisdiction when dealing with matters of law in that context the plaintiff was challenging uncertain surance coverage of spew on a worker's compensation issue because it was an insurance coverage dispute the court held that the i c c did not have jurisdiction because it was a matter of law and matters of fact as to whether or not someone was entitled to workers compensation benefits which still along with the i c c exclusively the cases cited by zhan regarding telecommunication industry were civil damages because they are the plaintiffs who are alleging that some of the wrongful conduct occurred not that the charges were unreasonable the heart of the matter is john believes you charge too much for the tricity service provided and one is a claim for reparations the jurisdiction belongs with the i c c and that is what has been held by the case law within the court's purview as well as the i c c holding in chico even looking beyond jurisdictional issue the district court went above and beyond in stating that the twelve b six motion to dismiss was granted because no cause of action could survive regardless of how design tries to classify or claim whether it's in a little consumer products claim breach of contract on just enrichment the heart of the matter is that she believes you charge too much the district court aptly noted  contract language was clear on its face and when the contract language is clear and contradicts with the allegations the language of the contract controls the variable rate set forth factors some of which were not market dependent as on alleges even assuming argue one though that zohn was correct and that this should have been a variable rate according to the market would sonas trying to do now is state that the rate was in direct contradiction to the local utility but that's not what  alleging you're alleging that this should have been consistent with the market and the graph that's attached to the complaint and relied upon by the district court shows that the intercontinental exchange market which is the market directly flowed in some correlation rates and there was no guarantee in the contract that there would be a one to one basis here and most importantly the district court noted that there was no oppressive scheme because i could cancel the contract that any time there was no cancellation fee no terminations fee nothing that would have prevented zhan from stopping her service and going to a local utility or to another a r a s therefore the district court noted that no breach of contract no one just rich mclean could survive in conclusion as the legislative intent of the public utilities act this a court did not air and should be affirmed here for these reasons along with the clear language of the contract proving that zohn has no right to relief thank you identical contract under other states virtually identical consumer protection laws and under contract law and they all found that plaintiff stated a claim that was edwards regarding connecticut for its regard in new jersey and clergy regarding new york since then a fourth court has weighed in against north american powers motion to dismiss that was totally versus north american power that's judge as you can that was issued after we completed our briefing i have a copy of that case for the court if it finds appropriate in any event if the court finds that  the district court properly ruled on the two of the six and we would suggest they did not then appropriate the decision would be to remand the case to the gesture court to give us an opportunity to amend the complaint of the court never address that that issue because it dismissed it on jurisdictional grounds and under rule fifteen and innumerable cases leave to men should be freely granted i guess i would also just like to point out that the complaint does explicitly allege that there are there is a significant disconnect between the intercontinental rate the wholesale rate and north america power's rate for example and we see this on pages twenty five twenty six of our initial brief there's a three month period in the end of two thousand and twelve to begin year two thousand and thirteen where utility rates drop well north american power's rates raisins are the same and even more egregious really there's a five month period in two thousand and thirteen where wholesale rates dropped seventeen percent while north american power's rates rose seven percent so i would suggest that the that the complaint is more than adequate on in pleading that there's a plausible claim for relief and in addition north american power promised that first month rate would be point zero four nine percent cents and they charge point zero five nine cents that's a that's an explicit deception that goes to the heart of what her rates are and that renders possible her claim that she was deceived as to what her rate was i'd like to defend it seems back on jurisdictional question defend it seems to can concede that the only place to find exclusive jurisdiction for rate relief would be in section nine dash two fifty two but nine dash to fifty two only applies to public utilities in both  and the public utilities act after the rate relief law was adapted adopted the legislature explicitly provided that a aeris is not a public utility there could not be a more clear expression of legislative intent then nine dash two fifty two does not apply and it bears noting that the legislature did identify other parts of the public utility act that did apply they failed to do so here and the court would be required to apply that i see that amount of time unless the court has