ComEd is telling a judge he should pull the plug on multimillion-dollar class action suits, which allege ComEd bribed state Democratic boss Michael Madigan to jack up electric rates.
ComEd says those rates were authorized by the Illinois Commerce Commission, which undermines the lawsuits' legal claims.
Since July, suits have been lodged in Chicago federal court against ComEd by a collection of ComEd commercial customers, as well as by Downers Grove man Lawrence Gress. They were joined in more recent weeks by the Citizens Utility Board, which is a consumer watchdog group.
The suits followed the federal indictment of several ComEd officials on charges they tried to arrange company jobs and contracts from 2011 to 2019 for allies of Michael Madigan, who was Illinois House Speaker during those years. Several associates of Madigan have also been indicted.
In return, prosecutors said Madigan allegedly helped secure legislation that let ComEd raise rates, which brought in hundreds of millions, if not billions, of dollars more than the utility would have otherwise been permitted. The suits demand ComEd pay back the amount of the rate hikes, plus plaintiffs' attorney fees.
Madigan has not been charged, but in January in connection with the ComEd situation, his fellow Democrats voted to remove him as Speaker. Madigan was replaced by his political ally, Democrat Emanuel "Chris" Welch, of suburban Hillside. The 78-year-old Madigan remains state representative for the 22nd District, Democratic committeeman for Chicago's 13th Ward and chairman of the Illinois Democratic Party.
On Feb. 4, ComEd filed arguments that asked Judge Jorge Alonso to trash the suits.
"The Illinois Commerce Commission reviewed and authorized every charge ComEd billed to customers. Calculating damages would require the Court to determine what rates should have been — in other words, to engage in rate-setting — something this Court cannot do," ComEd said.
ComEd added that plaintiffs did not claim the rate legislation was invalid or unconstitutional, but nevertheless claim the rates set under the legislation, which remains in force, were improper.
"Entertaining such an action offends foundational and centuries-old separation-of-powers and federalism principles that do not allow a federal court to treat a state law as a nullity because of allegations concerning the legislative process that led to its enactment," ComEd said.
ComEd further argued there is no direct line from the alleged attempts to influence Madigan to the higher rates, saying there would have been "numerous causal steps" between any alleged bribery and passage of the rates. ComEd pointed out the legislation had to pass the House of Representatives and then the Senate, with enough majorities to override a gubernatorial veto.
In addition, ComEd noted the rate hikes paid for improvements to electric service, including reducing reliance on electric generation that produces pollution. According to ComEd, the Citizens Utility Board lobbied for some of the legislation plaintiffs claim caused their injuries.
"Perhaps Plaintiffs and some class members would have preferred a less reliable and dirtier [power] system," ComEd said.
ComEd summed up its arguments: "This Court should not take upon itself the role of deciding what Illinois energy policy should have been and what rates were reasonable to support that policy, in order to award damages stemming from compliance with a law whose validity and continued force Plaintiffs have not challenged."
ComEd is represented by Jenner & Block.
CUB is represented by Edelson P.C.
The commercial customer plaintiffs are represented by Hughes Socol, Piers Resnick & Dym, and Gress is represented by LeonardMeyer LLP.
All the firms are of Chicago.
Other similar putative class actions were lodged last year in Cook County Circuit Court against ComEd.
As part of the criminal proceedings, ComEd agreed to pay $200 million and cooperate with federal prosecutors as they investigate the alleged bribery scheme.