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Sanborn v. Viridian Energy, Inc.

United States District Court, D. Connecticut

February 16, 2018

LORI SANBORN, BDK ALLIANCE LLC, IRON MAN LLC, STEPHANIE SILVER, DAVID STEKETEE, SUSANNA MIRKIN, BORIS MIRKIN, ELIZABETH HEMBLING, PATRICIA KULESA, STEWART CONNARD and STEVEN LANDAU, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
VIRIDIAN ENERGY, INC., VIRIDIAN ENERGY PA LLC, Viridian Energy NY LLC, and Viridian Energy LLC, Defendants.

          ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT, CLASS CERTIFICATION FOR SETTLEMENT PURPOSES ONLY AND APPROVAL OF NOTICE TO CLASS AND RELATED MATTERS

          STEFAN R. UNDERHILL UNITED STATES DISTRICT JUDGE

         On December 7, 2017, Plaintiffs Lori Sanborn, BDK Alliance LLC, Iron Man, LLC, Stephanie Silver, David Steketee, Susanna and Boris Mirkin, Elizabeth Hembling, Stewart Connard, Patricia Kulesa, and Steven Landau, acting individually and on behalf of the proposed Settlement Classes, as defined below (collectively, “Plaintiffs” or, individually, a “Plaintiff”) and Defendants Viridian Energy, Inc., Viridian Energy PA LLC, Viridian Energy NY, LLC, and Viridian Energy, LLC (collectively, “Viridian”) entered into a Class Action Settlement Agreement (“Agreement”). Pursuant to the Agreement, Plaintiffs have moved for entry of an order certifying the classes pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(3) for settlement purposes only, granting preliminary approval to the settlement set forth in the Agreement (“Settlement”), and approving Notice to the Class and other related matters. All defined terms in this Order (i.e., all capitalized words or phrases) shall have the same definitions and meanings as those set forth in the Agreement.

         Having reviewed the Agreement and considered the Plaintiffs' submissions in support of class certification for settlement purposes and preliminary approval of the Agreement, the Court now FINDS, CONCLUDES, AND ORDERS as follows:

         I. CERTIFICATION OF THE SETTLEMENT CLASSES

         The Agreement provides for a nationwide class settlement of the Released Claims, as defined below, of two proposed classes concerning certain practices with respect to Viridian variable rate electricity and/or gas plans. Viridian has at all times disputed, and continues to dispute, Plaintiffs' allegations in the Litigation, denies any liability for any of the claims that have or could have been alleged by Plaintiffs or other members of the Settlement Classes, and denies any wrongdoing. However, as a part of the Agreement, Viridian is not objecting to the certification of the two settlement classes defined below for settlement purposes only. The Agreement settles all Released Claims that have been or could have been brought in the proposed class-action Litigation.

         A. The Court has considered (1) allegations, information, arguments, and authorities provided by the parties in connection with pleadings and motions previously filed by each of them in this case; (2) information, arguments, and authorities provided in the memoranda submitted in support of Plaintiffs' preliminary approval motion; (3) Viridian's decision to not object to certification of the settlement classes specified in the Agreement; (4) the terms of the Agreement including, but not limited to, the definition of the settlement classes and the benefits to be provided to each settlement class, respectively; and (5) the Agreement's elimination of any potential manageability issues, ascertainability issues, and individualized issues of fact and law that could have had a bearing on the certification of these nationwide classes for trial. Based on those considerations, the Court reviewed the required factors for class certification under Fed.R.Civ.P. 23(a) and 23(b)(3) and makes the following findings.

         1. Each Settlement Class is ascertainable. Each Settlement Class is defined solely with reference to objective criteria. It is administratively feasible to determine class membership in each Settlement Class during the Class Period from July 1, 2009 through December 31, 2016.

         2. From July 1, 2009 through December 31, 2016, thousands of customers entered into variable rate contracts with Viridian for electricity and/or natural gas supply services. These numbers readily satisfy the numerosity requirement of Rule 23(a).

         3. There are questions of law and fact common to all members of each Settlement Class, respectively, based on Viridian's sale of the variable rate plans within and among each respective Settlement Class. Such questions include, but are not limited to, the following:

a. Whether Viridian made misrepresentations about the variable rate plans being related to wholesale gas or electricity rates; and
b. Whether the variable rate plans were based on wholesale market rates.

         4. The claims of the Class Representatives for each Settlement Class are typical of their respective Settlement Class. The Class Representatives of each Settlement Class are members of their respective Settlement Class and allege that they have been damaged by the same conduct of Viridian that they allege has damaged other members of their respective Settlement Class. Class Representatives' claims are not in conflict with or antagonistic to the claims of the Settlement Class as a whole. The claims of Class Representatives and other members of that respective Settlement Class are based upon corresponding theories.

         5. Class Representatives can fairly, fully, and adequately protect the interests of the Settlement Class. Lead Class Counsel are experienced in prosecuting complex class-action litigation, and Class Representatives and Class Counsel have no interest that conflicts with, or is adverse to, the interests of either or both of the Settlement Classes.

         6. Questions of law and fact common to all members of each of the Settlement Classes predominate over any questions affecting only individual members of that respective Settlement Class for settlement purposes.

         7. A nationwide class action for settlement purposes is superior to other available methods for the fair and efficient adjudication of this controversy.

         B. Thus, the Court certifies the following two Settlement Classes pursuant to Fed.R.Civ.P. 23(a) and 23(b)(3) for settlement purposes only:

Average Usage Class: All persons in the United States who, during the Class Period, were enrolled (either initially or through “rolling over” from a fixed rate plan) in a Viridian variable rate electricity and/or gas plan with an average annual utilization rate of 25, 000 or less kilowatt hours or 2, 500 or less therms.
Above Average Usage Class: All persons in the United States who, during the Class Period, were enrolled (either initially or through “rolling over” from a fixed rate plan) in a Viridian variable rate electricity and/or gas plan with an average annual utilization rate of more than ...

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