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SJC-11492

 MARCIA D. BELLERMANN & others1 vs. FITCHBURG GAS AND ELECTRIC
                         LIGHT COMPANY.



        Worcester.     March 4, 2014. - October 30, 2014.

  Present:   Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.


Electric Company. Public Utilities, Electric company.
     Practice, Civil, Class action, Consumer protection case,
     Judicial discretion. Consumer Protection Act, Class
     action, Unfair or deceptive act. Administrative Law,
     Preclusive effect of decision. Collateral Estoppel.
     Estoppel.



     Civil action commenced in the Superior Court Department on
January 7, 2009.

     Motions for class certification and for summary judgment
were heard by Douglas H. Wilkins, J., and a decision denying
class certification was reported by him to the Appeals Court.

     A proceeding for interlocutory review was heard in the
Appeals court by Cynthia J. Cohen, J., and after consolidation
of the appeals, the Supreme Judicial Court granted an
application for direct appellate review.
    1
       Paul O'Connell, doing business as Lunenburg Exxon, also
known as Lunenburg Gulf; Dee Anne Aylott; Gary H. Asher; Daisy
Bacener; Beverly Christenson; Catherine J. Clark; Carl E.
Fandreyer; Jacquelyn Poisson; Karen Thibeault; Genghis, Inc.;
and Evans on the Common, on behalf of themselves and all others
similarly situated.
                                                                      2


     Barry M. Altman & C. Deborah Phillips (James L. O'Connor,
Jr., Edwin H. Howard, & James M. Galliher with them) for the
plaintiffs.
     Gavin J. Rooney, of New Jersey (Natalie J. Kraner, of New
Jersey, with him) for the defendant.
     Robin L. Main for Massachusetts Electric Company & others,
amici curiae, submitted a brief.


     DUFFLY, J.    This case arises out of a major ice storm that

struck areas of the northeastern United States in December, 2008

(Winter Storm 2008).     The defendant, Fitchburg Gas and Electric

Light Company (FG&E), is a public utility that provides electric

service to customers in the municipalities of Fitchburg,

Lunenburg, Townsend, and Ashby, which were among those affected

by the storm.     FG&E is one of the utilities owned by Unitil

Corporation (Unitil).     The plaintiffs are twelve residential and

business customers of FG&E who lost power during Winter Storm

2008.    They filed a suit in the Superior Court on behalf of

themselves and those similarly situated, asserting claims of

gross negligence and violation of G. L. c. 93A.     Pursuant to

G. L. c. 93A, §§ 9 (2) and 11,2 and Mass. R. Civ. P. 23, as

     2
       General Laws c. 93A, § 9 (2), provides that "[a]ny persons
entitled to bring [an] action [under § 9 (1) for an unfair or
deceptive act or practice] may, if the use or employment of the
unfair or deceptive act or practice has caused similar injury to
numerous other persons similarly situated and if the court finds
in a preliminary hearing that he adequately and fairly
represents such other persons, bring the action on behalf of
himself and such other similarly injured and situated persons."
General Laws c. 93A, § 11, contains a similar provision
applicable to business plaintiffs.
                                                                   3
amended, 452 Mass. 1401 (2008) (rule 23),3 the plaintiffs moved

to certify a class consisting of FG&E's residential and business

customers; their dependents, tenants, and employees; and other

users of electricity who sustained damages as a result of FG&E's

inadequate preparation for and response to Winter Storm 2008.

The parties also filed cross-motions for partial summary

judgment on the plaintiffs' G. L. c. 93A claims.   In their

motion for partial summary judgment, the plaintiffs sought issue

preclusive effect of certain findings made by the Department of

Public Utilities (DPU) in two prior administrative adjudications

related to FG&E's conduct during Winter Storm 2008.   See D.P.U.

11-01 (2011); D.P.U. 09-01-A (2009).

     After a combined hearing on these motions, the judge issued
     3
       Mass. R. Civ. P. 23, as amended, 452 Mass. 1401 (2008),
provides, in relevant part:

          "(a) Prerequisites to Class Action. One or more
     members of a class may sue or be sued as representative
     parties on behalf of all only if (1) the class is so
     numerous that joinder of all members is impracticable,
     (2) there are questions of law or fact common to the class,
     (3) the claims or defenses of the representative parties
     are typical of the claims or defenses of the class, and
     (4) the representative parties will fairly and adequately
     protect the interests of the class.

          "(b) Class Actions Maintainable. An action may be
     maintained as a class action if the prerequisites of
     subdivision (a) are satisfied, and the court finds that the
     questions of law or fact common to the members of the class
     predominate over any questions affecting only individual
     members, and that a class action is superior to other
     available methods for the fair and efficient adjudication
     of the controversy."
                                                                      4
two decisions.     He denied the plaintiffs' motion for class

certification, and, while determining that the application of

offensive issue preclusion was appropriate, he also denied the

motions for summary judgment as to all but two claims that are

not at issue here.     The judge then reported his decision denying

class certification to the Appeals Court pursuant to Mass. R.

Civ. P. 64 (a), as amended, 423 Mass. 1403 (1996), and FG&E

sought interlocutory review, pursuant to G. L. c. 231, § 118, of

the judge's decision as to issue preclusion.     A single justice

of the Appeals Court allowed the petition for interlocutory

review, and the two appeals were consolidated in the Appeals

Court.    We allowed the plaintiffs' application for direct

appellate review.     We conclude that the judge did not abuse his

discretion in declining to certify a class and in applying issue

preclusion to facts found after evidentiary hearings at the DPU.4

     Background.    We summarize the facts set forth in the

judge's decisions, supplemented by other undisputed facts in the

record.

     FG&E receives all of its electric power from four

transmission supply lines owned by National Grid USA Service

Company, Inc. (National Grid).     Each of these lines ties into a


     4
       We acknowledge the amicus brief submitted by Massachusetts
Electric Company, doing business as National Grid; Nantucket
Electric Company, doing business as National Grid; and Northeast
Utilities.
                                                                    5
substation in southwest Fitchburg.   From this substation, FG&E's

network consists of sixty miles of subtransmission lines that

feed into 680 miles of distribution lines.   At the time of

Winter Storm 2008, FG&E had approximately 28,500 customers.

    1.   Winter Storm 2008.   Winter Storm 2008 was an ice storm

that struck the northeastern United States, including FG&E's

service territory, on December 11 and 12, 2008.   As a result of

that storm, ice accumulated on utility poles and tree limbs in

FG&E's territory, causing limbs and whole trees to fall onto

FG&E utility poles, electrical lines, and other electrical

infrastructure.   The storm also damaged the National Grid

transmission lines that supply FG&E's system with power.     In

total, Winter Storm 2008 resulted in power outages for over one

million customers in New England, New York, and Pennsylvania,

including one hundred per cent of FG&E's customers.

    2.   FG&E's preparedness and restoration efforts.    In 1992,

sixteen years before Winter Storm 2008, the DPU had directed

FG&E and several other utilities to "implement or to maintain a

system for reviewing emergency plans on an annual basis," and

had advised them that "it would be beneficial for each company

to examine the other [c]ompanies' plans in order to consider the

incorporation of useful changes."    D.P.U. 91-228, at 4 (1992).

In 2002, the DPU further advised FG&E to "consider the use of

extreme weather condition forecasts with outages or
                                                                      6
contingencies simulated in the power flow model for plan[n]ing

and designing [transmission and distribution] facilities."

    In 2006 and 2007, FG&E sent newsletters to its customers

extolling its ability to respond to outages and asserting that

"safety and service reliability are our first priorities."     FG&E

also filed annual emergency restoration plans (ERPs) with the

DPU; these plans set forth an overview of FG&E's service

restoration processes and priorities, defined organizational and

functional responsibilities, identified communications

protocols, and described the framework required to restore power

in the event of a major storm or other emergency.    Other severe

ice storms occurred in Unitil's service area, but contrary to

the recommendation in the DPU's 1992 order, FG&E did not study

the storm preparation and response practices of other

Massachusetts utilities.    FG&E's ERP in effect at the time of

Winter Storm 2008 did not address a storm as severe and

widespread as that storm.

    At the time of Winter Storm 2008, FG&E also had in effect a

vegetation management policy providing tree-trimming cycles for

each of the circuits in its system.    By the end of 2006,

however, FG&E's vegetation management program had become

underfunded, and FG&E had fallen behind on its tree-trimming

schedule.   Rather than increasing its vegetation management

budget, FG&E responded by adjusting downward its clearance
                                                                     7
standards and vegetation management cycles.

    After Winter Storm 2008 struck, FG&E began restoring power

to its customers on a rolling basis.   The process started early

on December 12, once National Grid had repaired its transmission

supply lines, when FG&E restored power to about five hundred

customers in downtown Fitchburg whose underground network system

was largely insulated from the weather.    To complete full

restoration, however, FG&E had to repair 244 utility poles,

192,729 feet of wire conductor, and 170 transformers.    FG&E did

not employ a sufficient number of its own restoration crews to

respond to Winter Storm 2008, and had only limited success in

obtaining additional crews from other utilities.    By December

20, more than 4,000 FG&E customers remained without power, and

at the Commonwealth's request, National Grid stepped in to

complete the necessary restoration work.    The last customers did

not have power until December 25.

    The plaintiffs experienced outages beginning on either

December 10, 11, or 12, and persisting for periods ranging from

four to twelve days.   Although all were attributable to the

storm, the immediate reasons for their loss of power differed.

For example, some plaintiffs lost power due to damage to FG&E's

subtransmission lines, whereas others lost power when trees in

their yards, for which FG&E does not bear responsibility, fell

on their individual service lines.   The plaintiffs' affidavits
                                                                   8
set forth various damages caused by the outages, including lost

income and business profits, burst pipes, dead plants and pet

fish, spoiled food, and other expenses incurred as a consequence

of and in response to the outages.

    3.    FG&E's public communications.   FG&E's ERP at the time

of Winter Storm 2008 provided that one of its primary

responsibilities during an emergency was "[t]o keep the public

informed of the status of the restoration in a timely manner

through direct contact with town and city officials and the news

media."   According to FG&E, its principal method for

communicating with the public during Winter Storm 2008 was

through public service announcements (PSAs).   FG&E issued

between one and five PSAs daily from December 11 through

December 24.

    As of the morning of December 11, FG&E knew that the

weather forecast was for "anywhere from 1/4 inch to more than 1

inch of ice," that "the current thinking is that FG&E is in the

worst position" of the Unitil subsidiaries, and that "1/4 inch

of ice and a little wind would be problematic, so having a

forecast of over 1 inch would likely result in an extended

restoration period that could easily exceed one week."

Nevertheless, FG&E issued the following PSA later that day:

"Most electrical outages are expected to be for relatively short

periods of time, only.   However, severe weather conditions can
                                                                   9
create substantial damage to the electrical system, and

restoration can take an extended period of time."

    Within the first few hours of Winter Storm 2008, FG&E had

information that its system had suffered extensive damage that

affected more than just its subtransmission and distribution

facilities.   Accordingly, when it energized its subtransmission

lines on December 14, it knew that this would not restore power

to a large majority of its customers.   During this time, FG&E

also learned that it would not have access to repair crews that

it previously had believed would be available.   Nonetheless,

from December 12 through December 15, FG&E's PSAs stated that it

would "take days" or "several days" to restore power.     On

December 16, FG&E's PSAs began referring to "restoration of all

primary circuits" by the end of the week, without explaining

that this did not mean that all customers would have their power

restored by that time.   FG&E had information about the need for

"extensive rebuilding of circuits," but it did not communicate

this fact until December 19.

    FG&E's PSAs also served as the source of information for

its customer service representatives.   From December 11 through

December 25, FG&E's call center received 164,136 calls, of which

only 32,327 reached a customer service representative.    Some

customers who did speak with representatives, including two of

the plaintiffs, received false predictions as to when they could
                                                                   10
expect their power to be restored.     Others who attempted to call

did not speak to representatives but were connected to automated

recordings that provided no information about restoration times.

     4.   DPU proceedings.    On January 7, 2009, the DPU, pursuant

to its regulatory authority under G. L. c. 164, §§ 1E and 76,

opened an investigation into FG&E's preparation for and response

to Winter Storm 2008.    The purpose of the investigation was to

determine whether FG&E had satisfied its public service

obligation to provide safe and reliable service.5    See D.P.U. 09-

01-A, at 6-8, and authorities cited.

     The DPU began its investigation by holding two public

hearings and requesting written comments.    The DPU accepted both

sworn and unsworn statements, although it informed the public

that it would not rely on unsworn statements in its decision-

making process.   See 220 Code Mass. Regs. § 1.10(1) (2008) ("The

[DPU] shall follow the rules of evidence observed by courts when

practicable . . . .     All unsworn statements appearing in the

record shall not be considered as evidence on which a decision
     5
       The order opening the investigation by the Department of
Public Utilities (DPU) announced that it would focus on
Fitchburg Gas and Electric Light Company's (FG&E's)
(1) emergency restoration plan (ERP); (2) preparation for Winter
Storm 2008 and management of restoration efforts;
(3) cooperation with other utilities in sharing restoration
resources; (4) procurement and allocation of out-of-State
"mutual aid" crews; (5) communications with State and local
public officials; (6) internal communications; (7) dissemination
of information to the public; (8) transmission maintenance and
outage scheduling; and (9) practices requiring improvement.
                                                                     11
may be based").     As summarized in its final decision, the DPU

received a total of two hundred forty-three oral comments and

eighty written comments, describing a variety of problems

regarding FG&E that customers experienced during the storm.        See

D.P.U. 09-01-A, at 9-17.

    The DPU next conducted an adjudicatory proceeding pursuant

to 220 Code Mass. Regs. §§ 1.01-1.15 (2008).     The Attorney

General intervened in the proceeding as authorized by G. L.

c. 12, § 11E (a).    On March 25, 2009, FG&E, represented by

counsel, provided the DPU with prefiled testimony of various

Unitil officials.     It also submitted a self-assessment report

that included twenty-eight recommendations on how to improve its

preparedness for and response to emergency events.     The DPU held

evidentiary hearings from May 11 to May 15, at which both the

Attorney General and FG&E presented witness testimony.     Both

parties then filed initial briefs and reply briefs.

    The Attorney General proposed a number of remedies to

address FG&E's alleged failures related to Winter Storm 2008.

It urged the DPU to (1) require FG&E to adopt the twenty-eight

improvements recommended in FG&E's self-assessment report, (2)

fine FG&E $4.6 million, (3) deny FG&E recovery of storm-related

costs, and (4) reduce FG&E's return on equity.

    In a 215-page decision, the DPU found "numerous and

systematic" deficiencies in how FG&E prepared for and responded
                                                                   12
to Winter Storm 2008.   D.P.U. 09-01-A, at xiii.   These

deficiencies included inadequate planning and training for

significant emergency events; inadequate preparation for Winter

Storm 2008; unsatisfactory damage assessment after the storm;

insufficient acquisition of external repair crews; various

problems that prevented FG&E from restoring service in a timely

manner; and a failure to provide the public with useful and

accurate information, which "resulted in the inability of

customers to plan appropriately for an extended outage."    See

id. at 47, 60, 69, 83, 102, 121, 125.   The DPU concluded that

each of these deficiencies constituted a violation of FG&E's

obligation to provide safe and reliable service.   See id. at 52,

60, 72, 83-84, 102, 121, 125.   The DPU also found that FG&E had

engaged in deficient tree-trimming practices, which likely

contributed to outages experienced during the storm.   See id. at

xiii, 160.

    To remedy these failures, the DPU ordered FG&E to undertake

a comprehensive independent management audit at its own expense;

to implement, with some modifications, the twenty-eight

improvements in its self-assessment report; and to provide

progress reports regarding the implementation of these

improvements.   See id. at 193-194, 208-214.   While acknowledging

that FG&E's conduct might warrant monetary penalties, the DPU

concluded that it lacked authority to impose the requested $4.6
                                                                   13
million fine.   See id. at ix, 185, 189.6   The DPU decided to

defer the questions of FG&E's storm-related cost recovery and

return on equity until its next rate-setting proceeding.     See

id. at 196, 198-199.    FG&E was notified properly of its right to

appeal under G. L. c. 25, § 25, see 220 Code Mass. Regs. § 1.13,

but did not file an appeal.

     The DPU addressed FG&E's cost recovery and return on equity

in its next rate-setting decision, at which time FG&E sought to

recover storm-related costs totaling $22,120,286.     See D.P.U.

11-01, at 13-15.    The DPU adopted the findings in its

investigatory decision, including those pertaining to specific

failures by FG&E.    See id. at 16, 59, 66.7   Relying on these


     6
       Partly in response to FG&E's deficient performance during
Winter Storm 2008, the Legislature enacted G. L. c. 164, § 1J,
directing the DPU to establish standards for how electric
utilities should prepare for and respond to emergency events,
and authorizing the DPU to impose fines, totaling no more than
$20 million, for violations of these standards. See St. 2009,
c. 133, § 4. See also G. L. c. 164, § 85B (imposing
requirements for utilities' emergency response plans); 220 Code
Mass. Regs. §§ 19.01-19.06 (2010) (setting forth DPU's emergency
performance standards). In 2012, the Legislature adopted G. L.
c. 164, § 1K, requiring the DPU to credit any penalties levied
back to the utility's customers. See St. 2012, c. 216, § 3.
     7
       The DPU summarized the findings of its investigatory
decision as follows:

          "[T]he [DPU] found that [FG&E's] lack of planning and
     training for a significant storm event left it unprepared
     to respond to the magnitude of system damage that it
     experienced during Winter Storm 2008. D.P.U. 09-01-A at 47
     [(2009)]. The [DPU] determined that [FG&E's] lack of
     planning led to: (1) its inability to restore service to
     its customers in a timely manner; (2) its failure to
                                                                      14
findings, the DPU allowed recovery of costs that FG&E could not

have avoided given the magnitude of Winter Storm 2008, but

denied FG&E's request with respect to $6,954,492 in costs

incurred because of FG&E's failures leading up to and during the

storm.   See id. at 13-14.    The DPU also reduced FG&E's return on

equity in part to reflect its deficient performance.      See id. at

14.   FG&E again did not appeal from the DPU's decision.

      Discussion.   1.   Class certification.    With respect to both

rule 23 and G. L. c. 93A, we review a grant or denial of class

certification for an abuse of discretion.       See Salvas v. Wal-

Mart Stores, Inc., 452 Mass. 337, 361 (2008); Moelis v.

Berkshire Life Ins. Co., 451 Mass. 483, 486 (2008).      Under both

sets of certification requirements, the plaintiffs "do not bear

the burden of producing evidence sufficient to prove that the

requirements [of class certification] have been met," but need

only provide "information sufficient to enable the motion judge

to form a reasonable judgment" that the class meets the relevant


      communicate accurate and useful information to the public;
      and (3) its failure to coordinate its restoration efforts
      with local public safety officials. [Id.] Further, the
      [DPU] identified failures in: (1) [FG&E's] pre-storm
      preparation; (2) external resource acquisition; (3) damage
      assessment; (4) communication efforts with the public,
      municipal officials, local safety officials, and life
      support customers; and (5) adherence to its tree trimming
      schedule. [Id.] at 60, 71-72, 83-84, 121, 125, 127-128,
      135, 158-159."

D.P.U. 11-01, at 16 (2011).
                                                                   15
requirements.8   Weld v. Glaxo Wellcome Inc., 434 Mass. 81, 87

(2001).   See Aspinall v. Philip Morris Cos., 442 Mass. 381, 391-

392 (2004); Kwaak v. Pfizer, Inc., 71 Mass. App. Ct. 293, 297

(2008).   General Laws c. 93A, however, affords a judge less

discretion to deny class certification than does rule 23.    See

Salvas v. Wal-Mart Stores, Inc., supra at 370 n.66, citing

Aspinall v. Philip Morris Cos., supra.

     To support class certification under rule 23, plaintiffs

must satisfy the four elements of rule 23 (a) and the two

additional elements of rule 23 (b).    Rule 23 (a) requires the

plaintiffs to show that "(1) the class is sufficiently numerous

to make joinder of all parties impracticable, (2) there are

common questions of law and fact, (3) the claim of the named

plaintiff representative is typical of the claims of the class,

and (4) the named plaintiff will fairly and adequately represent

the interests of the class."    Weld v. Glaxo Wellcome Inc., supra

at 86.    In addition, rule 23 (b) requires them to show "that

common questions of law and fact predominate over individualized
     8
       The source of such information depends on the stage of the
proceeding at which the plaintiffs seek class certification.
Early in the proceedings, plaintiffs may rely on the allegations
in their complaint. See Baldassari v. Public Fin. Trust, 369
Mass. 33, 39-40 (1975). Where, as here, the parties have
undertaken discovery and proceeded to the summary judgment
stage, the information should rest on the more developed record.
See, e.g., Weld v. Glaxo Wellcome Inc., 434 Mass. 81, 85-86
(2001) (motion judge properly considered "the pleadings,
affidavits, briefs, and the earlier memorandum on summary
judgment").
                                                                   16
questions, and that the class action is superior to other

available methods for fair and efficient adjudication of the

controversy."   Weld v. Glaxo Wellcome Inc., supra.

    Plaintiffs may bring a class action under G. L. c. 93A if

they can show that they may seek relief for an unfair or

deceptive act or practice under G. L. c. 93A, §§ 9 (2) or 11,

that the act or practice "caused similar injury to numerous

other persons similarly situated," and that they would

"adequately and fairly represent[] such other persons."    G. L.

c. 93A, §§ 9 (2), 11.   Where appropriate, "the public policy of

the Commonwealth strongly favors G. L. c. 93A class actions."

Feeney v. Dell Inc., 454 Mass. 192, 200 (2009).   In considering

certification under G. L. c. 93A, a judge must bear in mind the

"'pressing need for an effective private remedy' . . . and that

'traditional technicalities are not to be read into the statute

in such a way as to impede the accomplishment of substantial

justice.'"    Aspinall v. Philip Morris Cos., 442 Mass. at 391-

392, quoting Fletcher v. Cape Cod Gas Co., 394 Mass. 595, 605-

606 (1985).

    Although the requirements of rule 23 (a) provide a "useful

framework" for considering class certification under G. L.

c. 93A, the similarity requirements of the rule do not equate

with the requirement of G. L. c. 93A that the plaintiffs be

"similarly situated" and have suffered a "similar injury" as
                                                                         17
members of the class they seek to represent.     See Aspinall v.

Philip Morris Cos., 442 Mass. at 391, quoting Fletcher v. Cape

Cod Gas Co., 394 Mass. at 605.    The class action provisions of

G. L. c. 93A also have "a more mandatory tone" than does rule 23

in that they omit the predominance and superiority elements of

rule 23 (b), see Fletcher v. Cape Cod Gas Co., supra at 605,

quoting Baldassari v. Public Fin. Trust, 369 Mass. 33, 40

(1975), but a judge retains some discretion to consider these

factors in determining whether putative class members are

"similarly situated" and have suffered a "similar injury."         See

Moelis v. Berkshire Life Ins. Co., 451 Mass. at 489-490;

Fletcher v. Cape Cod Gas Co., supra at 605-606.

     a.    Chapter 93A.   The Superior Court judge determined that

the individual plaintiffs had proffered sufficient information

to show unfair and deceptive conduct by FG&E against all its

customers, but denied their motion for class certification based

on his conclusion that they had not shown that such conduct

caused "similar injury" to the putative class members.       The

judge did not abuse his discretion.

     To pursue a class action under G. L. c. 93A, plaintiffs

must show that the putative class members suffered "similar,"

although not necessarily identical, injuries as a result of the

defendant's unfair or deceptive conduct.9    G. L. c. 93A,

     9
         Business plaintiffs under G. L. c. 93A, § 11, must have
                                                                   18
§§ 9 (2), 11.   See Salvas v. Wal-Mart Stores, Inc., 452 Mass. at

364, quoting Spear v. H.V. Greene Co., 246 Mass. 259, 266

(1923).    As with G. L. c. 93A claims generally, a causal

connection must exist between the unfair or deceptive conduct

and the injury, see Hershenow v. Enterprise Rent-A-Car Co. of

Boston, 445 Mass. 790, 797-800 (2006), and the injury must be a

"separate, identifiable harm" that is "distinct" from the unfair

or deceptive conduct itself.    Tyler v. Michaels Stores, Inc.,

464 Mass. 492, 503 (2013).   General Laws c. 93A does not permit

class certification for the purpose of addressing limited common

issues short of class-wide liability.    See Fletcher v. Cape Cod

Gas Co., 394 Mass. at 602.   Accordingly, plaintiffs must show

that they can establish causation of such similar injury on a

class-wide basis.   See Aspinall v. Philip Morris Cos., 442 Mass.

at 397 n.19; Fletcher v. Cape Cod Gas Co., supra at 603-604.

    The plaintiffs concede that Winter Storm 2008 would have

caused widespread power outages without regard to any failures

by FG&E, and they do not seek to certify a class on the basis of

such loss of power.   They press two other theories of injury

instead:   (1) prolonged power outages caused by FG&E's failure

to restore power more expeditiously, and (2) an inability to


suffered a loss of "money or property." Those seeking relief
under G. L. c. 93A, § 9, by contrast, may recover for both
economic and personal losses. See Klairmont v. Gainsboro
Restaurant, Inc., 465 Mass. 165, 175 (2013), and cases cited.
                                                                   19
plan for the widespread and extended outages due to FG&E's

unfair and deceptive communications system.10   We address these

theories of injury in turn and conclude that neither one

required the judge to certify a class.

     i.   Delay in restoration of power.   The plaintiffs argue

that regardless of the cause of any initial loss of power,

FG&E's numerous and systemic failures in planning for and

responding to Winter Storm 2008 injured the putative class

members by delaying restoration.   This theory of injury requires

the plaintiffs to prove that the class members suffered longer

outages than they would have but for FG&E's failures.   As the

judge concluded, this theory of similar injury fails for the
     10
       In their brief, the plaintiffs indicate a third possible
theory of injury: that they paid for a level of emergency
preparedness, efficient restoration, and accurate information
that FG&E unfairly and deceptively failed to provide. Where a
defendant's unfair or deceptive conduct causes customers to
receive a product or service worth less than the one for which
the customers paid, the customers may pursue a class action
under G. L. c. 93A to recover the amount by which they overpaid.
See Iannacchino v. Ford Motor Co., 451 Mass. 623, 630-631 (2008)
(purchasers of motor vehicles could potentially certify class to
recover overpayment for vehicles that unfairly or deceptively
did not meet regulatory safety standards); Aspinall v. Philip
Morris Cos., 442 Mass. 381, 397-399 (2004) (purchasers of light
cigarettes could pursue class to recover difference between
market price of cigarettes as sold and true market value of such
cigarettes had they not been deceptively advertised). In their
motion for class certification, however, the plaintiffs did not
seek to recover the amount by which they purportedly overpaid,
focusing instead on their alleged damages associated with the
power outages. Cf. Aspinall v. Philip Morris Cos., supra at 397
& n.19 (distinguishing class seeking to recover for personal
injuries caused by defendant's deception, which would not have
supported class treatment).
                                                                    20
same reason that the plaintiffs cannot pursue a class action

based on the initial loss of power:    causation would have to be

resolved "on an individual (or small group) basis."

    As reflected by the differing lengths of time that outages

were experienced, FG&E customers lost electric power for various

reasons, and distinct obstacles impeded restoration of their

power.   The plaintiffs have not indicated how long outages would

have lasted in the absence of FG&E's failures.    Their expert

testified that he made no attempt to estimate what a reasonable

restoration period would have been, and the plaintiffs have not

otherwise identified a model or method for determining how long

outages would have lasted but for FG&E's failures.

    Even granting that FG&E's alleged systemic failures may

have had a general tendency to delay restoration efforts,

relying on such a general tendency to prove causation with

respect to each individual class member would involve

impermissible speculation or generalization.    See Salvas v. Wal-

Mart Stores, Inc., 452 Mass. at 361, quoting Weld v. Glaxo

Wellcome Inc., 434 Mass. at 85.   Many customers, especially

those who experienced shorter outages, may not have suffered

prolonged outages due to FG&E's conduct.    If the plaintiffs were

to prove FG&E's systemic failures, it would still remain for

each class member to show that those failures caused a prolonged

outage on an individual basis.    The nominal class action would
                                                                    21
"degenerate in practice into multiple law-suits separately

tried."   Fletcher v. Cape Cod Gas Co., 394 Mass. at 604 n.8,

quoting Advisory Committee Notes to 1966 Revision, Fed. R. Civ.

P. 23(b)(3), 28 U.S.C. (1982).

    The plaintiffs suggest that this inquiry would involve

merely a question of damages.    However, if customers did not

suffer a longer outage than otherwise would have occurred, their

claims must fail for lack of causation.    See Hershenow v.

Enterprise Rent-A-Car Co. of Boston, Inc., 445 Mass. at 800-801

(rejecting G. L. c. 93A claim where plaintiffs failed to

establish that statutorily noncompliant contract terms made them

worse off than they would have been had contract complied with

statute); Lord v. Commercial Union Ins. Co., 60 Mass. App. Ct.

309, 317-318, 322-323 (2004) (defendant entitled to judgment on

G. L. c. 93A claim where its unfair or deceptive act did not

cause plaintiff's injury).   The judge did not abuse his

discretion in denying class certification with respect to this

theory of injury.

    ii.   Inability to plan.     The plaintiffs' second theory of

injury does not depend on what caused either the initial loss of

power or the length of a particular outage.    They argue that

FG&E's communications leading up to and during Winter Storm 2008

consisted of deceptions and omissions that failed to provide

them with accurate and useful information regarding the expected
                                                                   22
scope and duration of outages.   They contend that this failure

caused all members of the putative class to suffer the similar

injury of an inability to plan for the outages.    The plaintiffs'

affidavits aver that had FG&E properly informed them, they would

have prepared for the outages in various ways, including

arranging alternate living accommodations for themselves, their

relatives, and their pets; purchasing generators; draining water

from pipes to keep them from bursting; obtaining firewood; and

stocking less perishable food or storing food elsewhere.   The

plaintiffs also allege, pointing to statements made at the DPU

public hearings, that the other putative class members likewise

suffered damages due to their inability to plan.   The judge did

not abuse his discretion in denying class certification on this

theory of injury.

    Both in the Superior Court and in this appeal, the

plaintiffs' arguments have not been clear about whether their

claim rests on an alleged system of actively false and

misleading statements by FG&E, or whether it rests instead on

FG&E's alleged violation of an affirmative duty to provide its

customers with useful information.   These claims are distinct.

To the extent the plaintiffs assert the former claim, we agree

with the motion judge that, although the named plaintiffs may

prove that FG&E made deceptive statements as to them, they

cannot establish causation on a class-wide basis because not all
                                                                  23
class members were exposed to the same deceptive statements and

because the announced time frames for restoration may have been

accurate as to many class members.   See Kwaak v. Pfizer, Inc.,

71 Mass. App. Ct. at 300-301 (rejecting class certification of

those seeking relief for deceptive advertising campaign, where

not all class members encountered advertisements and variations

existed in advertisements that proposed class members did

encounter).

    To the extent the plaintiffs assert the second claim, they

fare only slightly better.   The plaintiffs may be able to show

that FG&E engaged in unfair or deceptive conduct with respect to

all putative class members by violating an affirmative duty to

provide useful information regarding the scope and duration of

expected outages.   FG&E's ERP stated that one of its primary

responsibilities during an emergency was "[t]o keep the public

informed of the status of the restoration in a timely manner,"

and the DPU concluded that FG&E's public service obligation

encompassed a duty to provide the public with "accurate and

useful information" during an emergency event, designed to

enable customers to plan accordingly.   See D.P.U. 09-01-A, at

122, 125.   Cf. 940 Code Mass. Regs. § 19.05(1) (1998) ("It is an

unfair or deceptive act or practice for a retail seller of

electricity to fail to disclose material information about its

products, services, or business, where such failure has the
                                                                   24
capacity or tendency to deceive or mislead a reasonable

consumer, or has the effect of deceiving or misleading such a

consumer, in any material respect"); Evans v. Lorillard Tobacco

Co., 465 Mass. 411, 465 (2013) (suggesting that breach of

voluntarily-assumed duty to provide information may constitute

violation of G. L. c. 93A).   The DPU found that FG&E did not

"provide accurate and useful information to the public regarding

restoration times" and noted that this "failure in communicating

the extent of damage resulted in the inability of customers to

plan appropriately for an extended outage."   D.P.U. 09-01-A at

xi-xii, 125.   As the plaintiffs argue, and the judge agreed for

purposes of FG&E's motion for summary judgment, although some of

FG&E's PSAs did predict that restoration would take "days" or

"several days," which arguably turned out to be accurate as to

many customers, a fact finder could determine that these

communications were too vague and general to satisfy a duty to

inform.   Cf. Aspinall v. Philip Morris Cos., 442 Mass. at 394

("advertising need not be totally false in order to be deemed

deceptive in the context of G. L. c. 93A").

    The judge was not required, however, to certify a class

based on FG&E's alleged violation of this affirmative duty,

especially where the plaintiffs did not proffer a method for

proving on a class-wide basis that FG&E's failure to provide

useful information actually interfered with the ability of the
                                                                  25
different putative class members to plan for the outages.11

     As reflected by the variety of ways that the plaintiffs

contend they would have responded to better information, this

theory of injury would necessitate individualized inquiry

regarding the counterfactual mental processes of each class

member.   Indeed, many class members -- such as, perhaps, the

approximately five hundred customers in downtown Fitchburg who

lost power for only a few hours or those customers who already

possessed power generators -- may not have planned any

differently and therefore suffered no injury under this theory.

Although individualized inquiries regarding affirmative defenses

and, especially, calculation of damages do not preclude class

certification on the question of liability, see Salvas v. Wal-

Mart Stores, Inc., 452 Mass. at 367-368; Aspinall v. Philip


     11
       The plaintiffs appear to assume that causation can be
established on a class-wide basis on the theory that FG&E
violated an affirmative duty to provide useful information,
asserting that only the question of damages would require
individualized inquiry. The plaintiffs do not argue, and we
therefore do not decide, whether, if the plaintiffs were to
establish that FG&E violated an affirmative duty to warn, such
proof, as in other contexts, would warrant a presumption that
the warning would have been received and heeded. See, e.g.,
Evans v. Lorillard Tobacco Co., 465 Mass. 411, 442 (2013);
Harlow v. Chin, 405 Mass. 697, 702-703 (1989). Even assuming
that FG&E would bear the burden of showing that any failure to
provide useful information did not impede the ability of
particular class members to plan for the outages, the judge
still had discretion to deny class certification. See Moelis v.
Berkshire Life Ins. Co., 451 Mass. 483, 490-491 (2008) (judge
could deny class certification where affirmative defenses would
require highly fact-specific, individualized inquiry).
                                                                    26
Morris Cos., 442 Mass. at 402, a judge retains discretion to

deny certification based on such considerations.    See Moelis v.

Berkshire Life Ins. Co., 451 Mass. at 490; Fletcher v. Cape Cod

Gas Co., 394 Mass. at 603-604, 606-607.    Of course, the judge

remains free to alter his decision as the litigation proceeds.

See Moelis v. Berkshire Life Ins. Co., supra at 491-492;

Aspinall v. Philip Morris Cos., supra at 398 n.22, quoting

School Comm. of Brockton v. Massachusetts Comm'n Against

Discrimination, 423 Mass. 7, 14 n.12 (1996) ("decision as to

class certification is not immutable").

    iii.   Alternative classes and subclasses.     The plaintiffs

propose three alternative classes and subclasses that they

contend the judge should have certified:   (1) a subclass of

approximately 17,000 FG&E customers who lost power for four days

or more, (2) a class seeking only injunctive or declaratory

relief, and (3) a subclass of approximately 4,000 customers who

received estimated bills for December, 2008, that made no

adjustment for the loss of power during that period.    Where a

natural alternative class or set of subclasses would address a

judge's concerns about certifying a class as initially proposed,

the judge should redefine the original class or certify

subclasses as appropriate.   See Kwaak v. Pfizer, Inc., 71 Mass.

App. Ct. at 302 n.8, quoting Richardson v. Byrd, 709 F.2d 1016,

1019 (5th Cir.), cert. denied sub nom. Dallas County Comm'rs
                                                                    27
Court v. Richardson, 464 U.S. 1009 (1983).   Furthermore, a judge

may certify a subclass represented by only some named

plaintiffs, with other named plaintiffs asserting different

claims, if it makes sense to litigate these various claims in a

single proceeding.    See, e.g., McGonagle v. Home Depot U.S.A.,

Inc., 75 Mass. App. Ct. 593, 597 (2009) (judge certified two

subclasses each represented by only one named plaintiff).

Nonetheless, the judge did not abuse his discretion in declining

to certify any alternative classes or subclasses here.

    As to the first proposed alternative, narrowing the class

to those who suffered outages of at least four days would not

address the judge's concerns because it would not eliminate the

need for individual inquiries regarding whether the extended

outage resulted from FG&E's unfair or deceptive conduct and how

the customers would have planned differently had they received

better information.   As to the second alternative, the judge

noted that the responses of the Legislature and the DPU to

FG&E's conduct during Winter Storm 2008, see note 6, supra, may

already have remedied the allegedly unfair or deceptive

practices for which the plaintiffs seek equitable relief.     The

judge permitted the plaintiffs' request for equitable relief to

proceed on a nonclass basis, and if the plaintiffs succeed in

proving the need for such relief, the judge may revisit his

class certification decision at that time.   See Moelis v.
                                                                    28
Berkshire Life Ins. Co., 451 Mass. at 491-492.    Cf. Brantley v.

Hampden Div. of the Probate & Family Court Dep't, 457 Mass. 172,

184 n.15 (2010) (class certification properly denied where

equitable remedies requested by named plaintiff would afford

relief to those similarly situated notwithstanding absence of

class).   Finally, as to the third alternative, the judge

acknowledged that an estimated-billing class might warrant

certification but did not so certify because not all named

plaintiffs had received estimated bills and the plaintiffs had

requested such a class as just one of sixteen alternatives,

without explaining how this class claim would fit together with

the other claims brought by the named plaintiffs.   Because the

estimated-billing claim rests on conduct distinct from that

underlying the claims that FG&E failed to restore power and

failed to provide useful information, the judge properly could

demand additional information regarding such a class and how it

would comport with the larger litigation.   See Kwaak v. Pfizer,

Inc., 71 Mass. App. Ct. at 302 n.8.

    b.    Rule 23.   The plaintiffs also seek to certify a class

under rule 23 on a claim of gross negligence.    This claim rests

on FG&E's asserted "deficient emergency preparedness, service

restoration and communications system."   We understand the

plaintiffs' gross negligence claim to assert theories of injury

analogous to those pressed under G. L. c. 93A, and therefore
                                                                    29
affirm the judge's denial of such a class for the same reasons.

See Kwaak v. Pfizer, Inc., 71 Mass. App. Ct. at 298 ("a

certification that fails under c. 93A would fail under the

requirements of rule 23 as well").

    2.   Issue preclusion.    In its cross appeal, FG&E challenges

the judge's application of offensive issue preclusion, also

known as offensive collateral estoppel, to factual findings made

by the DPU.   "The offensive use of collateral estoppel 'occurs

when a plaintiff seeks to prevent a defendant from litigating

issues which the defendant has previously litigated

unsuccessfully in an action against another party.'"    Evans v.

Lorillard Tobacco Co., 465 Mass. at 466, quoting Matter of

Cohen, 435 Mass. 7, 15 (2001).    Offensive issue preclusion "does

not require mutuality of parties, so long as there is an

identity of issues, a finding adverse to the party against whom

it is being asserted, and a judgment by a court or tribunal of

competent jurisdiction."     Pierce v. Morrison Mahoney LLP, 452

Mass. 718, 730 (2008), quoting Miles v. Aetna Cas. & Sur. Co.,

412 Mass. 424, 427 (1992).    Additionally, "the determination of

the issues for which preclusion is sought must have been

essential to the underlying judgment."     Matter of Brauer, 452

Mass. 56, 67 (2008).

    Once a plaintiff establishes these initial requirements,

the "central inquiry" becomes whether the defendant had a "full
                                                                   30
and fair opportunity to litigate the issue in the first action."

Pierce v. Morrison Mahoney LLP, 452 Mass. at 730, quoting Matter

of Goldstone, 445 Mass. 551, 559 (2005).   Offensive issue

preclusion may apply to the findings of an administrative agency

"so long as the tribunal rendering judgment ha[d] the legal

authority to adjudicate the dispute."   Alba v. Raytheon Co., 441

Mass. 836, 841 (2004).   See, e.g., Stowe v. Bologna, 415 Mass.

20, 22 (1993); Haran v. Board of Registration in Med., 398 Mass.

571, 578-579 (1986); Commonwealth v. Two Parcels of Land, 48

Mass. App. Ct. 693, 698 (2000).   A judge has wide discretion in

deciding whether the doctrine should apply in a particular case.

Matter of Brauer, 452 Mass. at 67.

    a.   Identity and essentiality of issues.   FG&E argues that

the judge failed to identify the particular issues to be

precluded and therefore did not determine whether they were

essential to the DPU's judgment and identical to issues

presented here.   FG&E points to the judge's statement that "[i]f

this case goes to trial, the trial judge will continue to have

discretion to make the final decision as to what issues are

already determined and what issues remain for trial."

    Contrary to FG&E's assertion, however, the judge identified

a number of DPU findings subject to issue preclusion.   He quoted

the summary of the DPU's investigatory findings contained in its

rate-setting decision, see note 7, supra, among them that FG&E
                                                                   31
did not plan or train sufficiently for emergency weather events,

that it did not prepare adequately for Winter Storm 2008, and

that it did not communicate accurate and useful information to

the public.   The judge then treated these findings as settled in

determining whether the plaintiffs could establish G. L. c. 93A

violations as a matter of law.

    These factual findings were essential to the DPU's decision

that FG&E's various failures in preparing for and responding to

Winter Storm 2008 constituted independent violations of its duty

to provide safe and reliable service.   See D.P.U. 09-01-A, at

52, 59, 71-72, 83-84, 121, 125.    The DPU also imposed numerous

requirements on FG&E designed to remedy each of its noted

failures.   See id. at 210-214.   Accordingly, the DPU's factual

findings "b[ore] on the outcome of the case" and were essential

to its judgment.   See Jarosz v. Palmer, 436 Mass. 526, 533

(2002).

    Likewise, the DPU's factual findings are identical to

issues here because the plaintiffs' various G. L. c. 93A and

gross negligence claims rest on the same conduct that the DPU

found deficient.   We reject FG&E's contention that the two

adjudications do not present identical issues because the

plaintiffs assert claims under G. L. c. 93A that the DPU does

not have authority to address.    See D.P.U. 09-01-A, at 189.

Issue preclusion may apply where the two adjudications involve
                                                                   32
the same subsidiary findings, even if they involve different

ultimate claims.     See Alba v. Raytheon Co., 441 Mass. at 843.

    The DPU's 215-page decision contains numerous subsidiary

findings, and the plaintiffs asserted multiple theories of

liability resting on different alleged failures by FG&E.      We

therefore understand the motion judge's statement, that a trial

judge has continued discretion as to issue preclusion, to be

merely an acknowledgment of the inefficiency of conducting a

full analysis of the preclusive effect of each subsidiary

finding before it becomes clear what facts matter to the

particular theories of liability that the plaintiffs assert at

trial.   The motion judge committed no error in deciding that the

trial judge should retain discretion to make final decisions

regarding which issues are precluded and which ones remain.

    b.   Fairness.    FG&E also argues that, under the

circumstances, application of issue preclusion would be unfair.

"[F]airness is the 'decisive consideration' in determining

whether to apply offensive issue preclusion."     Pierce v.

Morrison Mahoney LLP, 452 Mass. at 730, quoting Matter of

Goldstone, 445 Mass. at 559.    In making this determination,

"courts generally ask whether (1) the party in whose favor the

estoppel would operate could have joined the original action,

(2) the party against whom it would operate had an adequate

incentive to defend the original action vigorously, (3) 'the
                                                                     33
judgment relied upon as a basis for the estoppel is itself

inconsistent with one or more previous judgments in favor of the

defendant,' and (4) 'the second action affords the defendant

procedural opportunities unavailable in the first action that

could readily cause a different result.'"     Matter of Brauer, 452

Mass. at 70, quoting Haran v. Board of Registration in Med., 398

Mass. at 577-578.    See Bar Counsel v. Board of Bar Overseers,

420 Mass. 6, 11-12 (1995), quoting Restatement (Second) of

Judgments § 29 (1982) (listing eight circumstances for judge to

consider when determining propriety of applying offensive issue

preclusion).   The judge enjoys "'wide discretion in determining

whether' applying offensive collateral estoppel 'would be fair

to the defendant.'"     Pierce v. Morrison Mahoney LLP, supra at

731, quoting Bar Counsel v. Board of Bar Overseers, supra at 11.

The party facing preclusion bears the burden of proof on the

question of fairness.    See Bailey v. Metropolitan Prop. & Liab.

Ins. Co., 24 Mass. App. Ct. 34, 37 (1987).    FG&E does not

contest the first and third factors; its appeal focuses on the

second and fourth factors.

    i.   Incentive to litigate.     FG&E argues that it did not

have an adequate incentive to dispute its purported failures

before the DPU.     It points out that the remedies imposed by the

DPU in its investigatory decision consisted largely of

improvements that FG&E already had volunteered to undertake in
                                                                   34
its self-assessment report.   FG&E argues also that affording

preclusive effect to the DPU findings would undermine its

cooperative relationship with the DPU and frustrate the public

utility regulatory scheme by discouraging utilities from

offering such voluntary submissions.   See Bar Counsel v. Board

of Bar Overseers, 420 Mass. at 11, quoting Restatement (Second)

of Judgments § 29(1), (5) (in determining whether to apply issue

preclusion, judge should consider whether "[t]reating the issue

as conclusively determined would be incompatible with an

applicable scheme of administering the remedies in the actions

involved" and whether "[t]he prior determination may have been

affected by relationships among the parties to the first action

that are not present in the subsequent action").   These

arguments are unavailing.

    First, FG&E understates its incentive to litigate before

the DPU.   During the investigatory proceeding, the Attorney

General urged the DPU to deny FG&E recovery of storm-related

costs, to reduce FG&E's return on equity, and to impose a $4.6

million fine as a result of FG&E's failures during Winter Storm

2008.   Relying largely on the various failures found in its

investigatory decision, the DPU in its rate-setting decision

denied FG&E recovery of nearly $7 million dollars in storm-

related costs, and reduced FG&E's return on equity.   See D.P.U.

11-01, at 14, 23, 72-73, 374-375, 425-427.   Furthermore,
                                                                   35
although the DPU ultimately concluded that it lacked authority

to impose a fine, FG&E faced the possibility that the DPU would

reach a different conclusion.   Given the large financial stakes

involved, FG&E had adequate incentive to litigate vigorously the

facts found in the DPU decision.   See Matter of Goldstone, 445

Mass. at 559-560.

    Second, applying issue preclusion would not undermine the

public utility regulatory scheme because the large financial

stakes involved here already provided a significant incentive

for FG&E to litigate the DPU action "to the hilt."   See

Commissioner of the Dep't of Employment & Training v. Dugan, 428

Mass. 138, 145 (1998).   Moreover, partly in response to FG&E's

failures during Winter Storm 2008, the Legislature authorized

the DPU to impose fines of up to $20 million for violations of a

utility's emergency preparation and service restoration duties,

an action the Legislature would not have taken had it believed

that potential liability of this magnitude would undermine the

regulatory scheme.   See G. L. c. 164, § 1J.

    ii.   Different procedural opportunities.   As to the fourth

fairness consideration, FG&E identifies three procedural

distinctions between the two actions that, it contends, render

issue preclusion inappropriate here:   (1) the DPU considered

evidence not admissible in the Superior Court proceeding, (2)

different parties bore the burden of proof in the two actions,
                                                                      36
and (3) the DPU proceedings involved a more limited right of

appeal.    A party seeking to avoid issue preclusion must show

that the procedural distinctions "could likely result in the

issue being differently determined."    Matter of Goldstone, 445

Mass. at 561 n.7, quoting Restatement (Second) of Judgments

§ 29(2).    We conclude that FG&E has not demonstrated that these

distinctions affected the DPU findings at issue.

    First, FG&E emphasizes that the DPU considered extensive

public comments from individuals not subject to cross-

examination.    See D.P.U. 09-01-A, at 9-17.    After reviewing the

record, the judge concluded that the DPU did not rely on the

public comments in making any findings that might have

preclusive effect in this case.    The DPU did reference certain

public comments in discussing deficiencies in FG&E's management

of restoration crews and the performance of its call center.

See id. at 101, 103, 106, 120.    However, the DPU also relied on

other evidence in finding these failures, and FG&E conceded that

its crew logistics needed improvement and that its call center

was overwhelmed during Winter Storm 2008.      See id. at 101-102,

104-106, 112, 120-121.    Accordingly, the public comments likely

did not affect the DPU's findings and therefore do not undermine

the judge's application of issue preclusion.     See Commonwealth

v. Two Parcels of Land, 48 Mass. App. Ct. at 699-700 (issue

preclusion warranted notwithstanding agency's consideration of
                                                                  37
hearsay evidence in first proceeding).

    Second, FG&E points out that the burden of proof has

shifted from FG&E in the DPU proceedings to the plaintiffs in

this case.   Compare Fitchburg Gas & Elec. Light Co. v.

Department of Pub. Utils., 375 Mass. 571, 578-579 (1978) (once

DPU challenges company's decisions, company faces burden of

proving that those decisions comply with valid DPU policies),

with Cleary v. Cleary, 427 Mass. 286, 297 (1998) (plaintiff has

burden of proving violation of G. L. c. 93A).   Although a

determination in a prior proceeding ordinarily has "no

preclusive effect" where the burden has shifted away from the

party facing preclusion, Jarosz v. Palmer, 436 Mass. at 532, a

judge has discretion to grant preclusive effect to an issue if

the burden of proof did not affect the outcome of the prior

determination.   See Matter of Goldstone, 445 Mass. at 563-564.

Cf. Bar Counsel v. Board of Bar Overseers, 420 Mass. at 12

(noting that burden shifted between two proceedings but

remanding for decision whether to apply issue preclusion).

    The DPU did not recite the burden of proof in its

investigatory decision, and the decision contains no language

suggesting that the DPU's factual findings rested on FG&E's

failure to carry its burden.   See D.P.U. 09-01-A, at 58-60, 68-

72, 81-84, 97-102, 119-128, 132-136, 143-147, 158-160.

Furthermore, as reflected by the twenty-eight recommended
                                                                  38
improvements in its self-assessment report, FG&E largely did not

dispute the DPU's findings pertaining to FG&E's deficient storm-

related conduct.   See id. at 199-204.   Thus, the shift in the

burden of proof did not foreclose the judge from applying issue

preclusion.   See Matter of Goldstone, 445 Mass. at 563-564

(notwithstanding shift in burden of proof, issue preclusion

warranted because facts were not disputed in first

adjudication).

    Third, FG&E contends that it could not appeal the DPU's

factual findings because G. L. c. 25, § 5, limited its right of

appeal to "matters of law."   To the contrary, however, FG&E

could have challenged the DPU's findings as "[u]nsupported by

substantial evidence."   See G. L. c. 30A, § 14 (7) (e);

Fitchburg Gas & Elec. Light Co. v. Department of Pub. Utils.,

460 Mass. 800, 811 (2011).    This limited right of appeal has not

prevented us from affording preclusive effect to administrative

findings.   See, e.g., Stowe v. Bologna, 415 Mass. at 22; Brunson

v. Wall, 405 Mass. 446, 451 (1989).   Nor does FG&E's decision

not to appeal from the DPU's adjudications render the

application of issue preclusion improper.   See Stowe v. Bologna,

supra; Brunson v. Wall, supra; Conservation Comm'n of Falmouth

v. Pacheco, 49 Mass. App. Ct. 737, 741-742 & n.5 (2000), and

authorities cited.

    The DPU conducted a five-day adjudicatory hearing at which
                                                                   39
FG&E was represented by competent counsel, and FG&E had a right

to proffer evidence, subpoena witnesses, cross-examine witnesses

under oath, present oral and written arguments, and appeal an

adverse decision.   See 220 Code Mass. Regs. §§ 1.06(6)(f),

1.10(9), 1.13.    See also Martin v. Ring, 401 Mass. 59, 63-64

(1987) (emphasizing that precluded party "had ample opportunity

in the prior adjudication to present evidence and to cross-

examine witnesses" and that he could have appealed from adverse

administrative decision); Haran v. Board of Registration in

Med., 398 Mass. at 578 (emphasizing that precluded party was

represented by counsel at four-day administrative hearing).      The

judge's application of issue preclusion was within the scope of

his broad discretion.

    Conclusion.     We affirm the orders denying the plaintiffs'

motion for class certification, denying the plaintiffs' motion

for partial summary judgment, and denying in part FG&E's motion

for partial summary judgment.

                                     So ordered.
