STEFAN R. UNDERHILL, 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
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.
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:
C. The Court appoints Plaintiffs Lori Sanborn, Iron Man, LLC, Stephanie Silver, David Steketee, Susanna and Boris Mirkin, Elizabeth Hembling, Stewart Connard, Patricia Kulesa, and Steven Landau as the Class Representatives of the Average Usage Class.
D. The Court appoints Plaintiff BDK Alliance LLC as the Class Representative of the Above Average Usage Class.
E. The Court appoints IZARD, KINDALL & RAABE, LLP; WITTELS LAW, P.C.; HYMOWITZ LAW GROUP, PLLC; KOHN SWIFT & GARF PC; MARCUS & MACK, P.C.; GREENFIELD & GOODMAN LLC; and CUNEO, GILBERT & LADUCA, LLP as Class Counsel for the Settlement Classes.
F. The Court also appoints IZARD, KINDALL & RAABE, LLP and WITTELS LAW, P.C. Lead Class Counsel for the Settlement Classes.
G. If for any reason the Settlement Agreement ultimately does not become effective, Viridian's conditional decision to not object to the certification of the Settlement Classes shall be null and void in its entirety; this Order certifying a nationwide class shall be vacated; and Viridian and Plaintiffs shall return without prejudice to their respective positions in the Litigation as those positions existed immediately before the execution of the Settlement Agreement.
A. The Settlement requires Viridian to pay (i) Administration and notice expenses, (ii) valid claims for cash benefits to members of the Settlement Classes, and (iii) an award to Class Counsel for attorneys' fees and costs and service awards to Class Representatives, with the aggregate amounts of (i), (ii), and (iii) limited to a maximum of Eighteen Million Five Hundred Thousand Dollars ($18,500,000.00) ("Settlement Amount") as more particularly described in the Settlement Agreement.
B. Average Usage Class Members have a cash benefit option of the greater of $5.00 or 65% of the Calculated Amount, which takes into account the difference between what the Average Usage Class Member paid pursuant to a Viridian variable rate electricity or gas plan during the Claim Period versus what the Average Usage Class Member would have paid the local public utility during the same period. The Average Usage cash benefit cannot exceed $425.00 per valid claim. For Average Usage Class Members who: (i) are current customers of Viridian at the time a claim under this Settlement is made or (ii) former customer Average Usage Class Members who wish to re-enroll with Viridian and who have a Calculated Amount above zero dollars ($0.00), there also is a billing credit option, in lieu of a cash benefit, that is worth $102.00 over twelve months to be credited at the end of the Settlement Class Member's service period (or twelve (12) months, whichever date comes first).
C. Above Average Usage Class Members have a cash benefit option of the greater of $10.00 or 65% of the Calculated Amount, which takes into account the difference between what the Above Average Usage Class Member paid pursuant to a Viridian variable rate electricity or gas plan during the Claim Period versus what the Above Average Usage Class Member would have paid the local public utility during the same period. The Above Average Usage cash benefit cannot exceed $500.00 per valid claim. For Above Average Usage Class Members who: (i) are current customers of Viridian at the time a claim under this Settlement is made or (ii) former customer Above Average Usage Class Members who wish to re-enroll with Viridian, and who have a Calculated Amount above zero dollars ($0.00), there also is the billing credit option, in lieu of a cash benefit, that is worth $102.00 over twelve months, net of any early termination fees, to be credited at the end of the Settlement Class Member's service period (or twelve (12) months, whichever date comes first).
D. The monetary value of Billing Credit Options elected by Settlement Class Members will not count against the Settlement Amount.
E. Further, Viridian shall provide its current Independent Viridian Associates ("IVAs") who are involved in the solicitation of potential Viridian customers with written notice of the IVAs' contractual requirement to abide by Viridian's policies regarding advertising and marketing claims including, but not limited to, refraining from making unsubstantiated claims regarding cost savings or how Viridian's variable rates are determined, and advising IVAs that Viridian will penalize IVAs for any failure to comply with Viridian's policies, including, where appropriate, by terminating the IVA's relationship with Viridian.
F. On a preliminary basis, therefore, taking into account (1) the defenses asserted by Viridian, (2) the risks to the members of the Settlement Classes that Viridian would successfully defend against claims arising out of the facts and legal theories pled and asserted in the Litigation, whether litigated by members of the Settlement Classes themselves or on their behalf as a class action, and (3) the length of time that would be required for members of the Settlement Classes, or any group of members of the Settlement Class, to obtain a final judgment through one or more additional trials and appeals, the Court finds that the proposed settlement, which includes the benefits described above in exchange for, inter alia, dismissal of the Litigation with prejudice and the release of certain claims filed or that could have been filed against Defendants by Plaintiffs and Class Members, as set forth in the Settlement Agreement, is within the range of approvable settlements. Moreover, the Parties have reached the Settlement after extensive litigation, discovery, and engaging in arms-length settlement negotiations over the course of over a year. See Menkes v. Stolt-Nielsen S.A., 270 F.R.D. 80, 101 (D. Conn. 2010) ("Preliminary approval of a class action settlement, in contrast to final approval, is at most a determination that there is what might be termed `probable cause' to submit the proposal to class members and hold a full-scale hearing as to its fairness . . . . As such, it is appropriate where it is the result of serious, informed, and non-collusive negotiations, where there are no grounds to doubt its fairness and no other obvious deficiencies, and where the settlement appears to fall within the range of possible approval.") (internal citation and quotation omitted). For all these reasons, the Settlement before the Court falls within the appropriate range of possible approval and does not appear in any way to be the product of collusion.
G. Accordingly, it is ORDERED and ADJUDGED that the Settlement Agreement is preliminarily approved and the Settlement Class should be provided notice of it.
A. The Parties have submitted the following proposed notices, modified from the versions originally appended as Exhibits B, C, D and E to the Settlement Agreement, that incorporate revisions requested by the Court and agreed to by the Parties: (i) a Long Form Notice for the Average Usage Class (Exhibit A hereto), (ii) a Long Form Notice for the Above Average Usage Class (Exhibit B hereto), (iii) a Short Form Notice to the Average Usage Class (Exhibit C hereto), and (iv) a proposed Short Form Notice for the Above Average Usage Class (Exhibit D hereto). A proposed Claim Form also has been submitted to the Court, which is attached as Exhibit A to the Settlement Agreement.
B. The notice plan provides that no later than thirty (30) days after the Court grants Preliminary Approval, the Settlement Administrator shall disseminate the Short Form Notices with a unique Class Member identifier by either (1) email to the email address of Class Members if an e-mail address was provided by the Class Member, or (2) mail to the last known postal address to those Class Members who did not provide an email address. The Settlement Agreement sets forth adequate provisions for the handling of any returned mail or emails.
C. Prior to mailing any Short Form Notices the Settlement Administrator shall compare the information provided by Viridian for each Class Member with a national change of address database and update Class Member addresses as required.
D. Not later than thirty (30) days after entry of this Order, the Settlement Administrator will create and maintain a website applicable to each Settlement Class to provide, among other things, copies of the applicable Long-Form Notices, the Settlement Agreement, the Settlement Administrator's and Class Counsel's contact information, certain selected pleadings and Court orders from this Action, a method for the electronic submission of Claim Forms, a method for requesting the Claim Form(s) by mail, and a list of frequently asked questions likely to be made by Settlement Class Members and answers thereto.
E. Not later than (30) days after the entry of this Order, the Settlement Administrator shall set up and operate a case-specific toll-free number with an automated system providing information about the Settlement with the ability to request copies of the Notice, the Settlement Agreement, and Claim Form and the ability to communicate orally with a Settlement Administrator employee.
F. The standard for the adequacy of a settlement notice in a class action is measured by reasonableness. See Fed. R. Civ. P. 23(e). In this Circuit, Rule 23 requires that a "settlement notice must fairly apprise the prospective members of the class of the terms of the proposed settlement and of the options that are open to them in connection with the proceedings." Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 114 (2d Cir. 2005) (quotation marks omitted). See also McReynolds v. Richards-Cantave, 588 F.3d 790, 797 (2d Cir. 2009) (finding notice sufficient where it is the "the best notice practicable").
G. As required, the Class Notices and Settlement Websites will fairly, accurately, and reasonably inform members of each respective Settlement Class of (1) appropriate information about the nature of this litigation and the essential terms of the Settlement Agreement; (2) appropriate information about how to obtain additional information regarding this matter and the Settlement Agreement; (3) appropriate information about, and means for obtaining, a Claim Form; (4) appropriate information about, and means for submitting, a Claim Form for compensation under the Settlement; and (5) appropriate information about how to challenge, or exclude themselves from, the Settlement, if they wish to do so. The Class Notices and Settlement Websites also will fairly and adequately inform members of the Settlement Classes that failure to complete and submit a Claim Form in the manner and time specified in the Class Notices, Settlement Website, and Claim Form shall constitute a waiver of any right to obtain any compensation or benefit under the Settlement. The Class Notices and Settlement Websites also will fairly and adequately inform members of each Settlement Class that if they do not comply with the specified procedures and the deadline for objections, they will lose any opportunity to have any objection considered at the Fairness Hearing or otherwise to contest certification of the Settlement Class or approval of the Settlement or to appeal from any order or judgment entered by the Court in connection with the Settlement. Thus, the proposed Notices satisfy the notice requirements of Fed. R. Civ. P. 23(e) and all applicable federal law.
H. The proposed plan for distributing the Class Notices by mail or email directly to members of the proposed Settlement Classes and establishing the Settlement Websites appear reasonably likely to notify members of the Settlement Classes of the Settlement. Thus, the proposed notice plan satisfies the notice requirements of due process, Fed. R. Civ. P. 23(e) and all applicable federal law.
I. Heffler Claims Group is appointed the Settlement Administrator. The Settlement Administrator shall, subject to the supervision of the Court, administer the relief provided by the Agreement by processing Claim Forms in a rational, responsive, cost effective, and timely manner. The Settlement Administrator shall maintain reasonably detailed records of its activities under the Agreement. The Settlement Administrator shall maintain all records that are required by applicable law in accordance with its normal business practices, and such records will be made available to Class Counsel, Viridian's counsel, the Parties, and their representatives promptly upon request.
J. The Settlement Administrator shall be responsible for, among other things, providing the Class Notices, processing Claim Forms, and administering the Settlement Websites, Objection process, Opt-Out process, and Settlement claims process described herein. The Settlement Administrator will use adequate and customary procedures and standards to prevent the payment of fraudulent claims including but not limited to: validating Claims against Viridian's records, determining the Calculated Benefit based solely upon Viridian's business records and reports, requiring manual entry of a unique Class Member identifier to access the Claim Form via the Settlement Website, matching the Class Member identifier on the Claim Form to the notice list, and screening for multiple or fraudulent claims. Any individuals who lost their Class Member identifier, may obtain a copy from the Settlement Administrator by providing appropriate proof that they are a Class Member. The Settlement Administrator shall have the right to audit claims, and the Settlement Administrator may request additional information from Class Members submitting claims. If any fraud is detected or reasonably suspected, the Settlement Administrator may request further information from the Settlement Class Member and deny such claims, subject to the ultimate oversight by the Court. The Settlement Administrator shall approve or deny all claims, and its decision, in conjunction with Class Counsel, shall be final and binding.
K. The Court, having reviewed the proposed Class Notices, the proposed Claim Form, and the proposed plan for distributing and disseminating each of them, finds and concludes that the proposed plan for distributing and disseminating each of them will provide the best notice practicable under the circumstances and satisfies all requirements of federal and state laws and due process. Accordingly, the Court ORDERS as follows:
The Court will hold a Final Approval Hearing (also known as a "Fairness Hearing") at 10:00 a.m. on June 25, 2018, in Courtroom One of the United States District Court for the District of Connecticut, 915 Lafayette Boulevard, Bridgeport, Connecticut 06604. At the Final Approval Hearing, the Court will consider the certification of each of the Settlement Classes, the appointments of the Class Representatives of each Settlement Class, the appointment of Class Counsel, the Settlement Agreement, and whether the Settlement should receive final approval. At that time, the Court also will consider any request that may be made by Class Counsel for an award of attorneys' fees and costs to Class Counsel and for service awards to each Plaintiff, all to be paid out of the Settlement Amount in accordance with the terms of the Agreement. The Parties shall file their motions for final approval of the Settlement, attorneys' fees, costs and expenses, and service awards to the named Plaintiffs and any briefs in support of such motions on or before June 4, 2018. Those motions and supporting papers will be posted on the Settlement Websites within one day of their being filed. Objections to those motions must be made in accordance with the Long Form Notice and this Order on or before the Objection Deadline.
Members of the Settlement Classes who wish to be excluded from their respective Settlement Class must mail their written and signed requests for exclusion to the Settlement Administrator in the form required in the Long Form Notice by first-class or priority United States Mail, postmarked by the United States Postal Service, no later than sixty (60) days after the Notice Commencement Date ("Opt-Out Deadline").
All objections by Class Members to the final approval of the Settlement or any provision of the Settlement Agreement shall be made in writing in accordance with the terms of this Order and the Settlement Agreement and Long Form Notice, no later than sixty (60) days after the Notice Commencement Date ("Objection Deadline"), mailed to the Settlement Administrator, who shall provide copies to Class Counsel and Viridian's counsel Any papers not submitted in the manner and time as prescribed by this Order and the Settlement Agreement and Long Form Notices will not be considered at the Fairness Hearing, and all objections not made in the prescribed manner and time shall be deemed waived.
All persons wishing to appear at the Fairness Hearing, either in person or by counsel, for the purpose of objecting to any aspect of the matters to be addressed at the Fairness Hearing, must include a written notice of their intention to appear at the Fairness Hearing, including identifying any counsel who will appear on their behalf, with their objections mailed to the Settlement Administrator, on or before the Objection Deadline.
Class members will have 90 days from the Notice Commencement Date to submit a Claim Form for any of the benefits available under the Settlement.
The Parties entered into the Settlement Agreement solely for the purpose of compromising and settling disputed claims. Viridian has at all times denied, and continues to deny, any wrongful act or omission alleged by Plaintiffs in the Litigation and any liability of any sort to Plaintiffs or any member of the Settlement Classes. Nothing contained in the Settlement Agreement, in the documents relating to the Settlement Agreement, or in this Order shall be construed, deemed, or offered as an admission or waiver by any of the Parties, or by any member of the Settlement Class, for any purpose in any judicial or administrative action or proceeding, whether in law or in equity.
So ordered.
Read this Notice carefully, as your legal rights may be affected whether or not you respond.
• These rights and options — and the deadlines to exercise them — are explained in this Notice.
• Payments will be made if the Court approves the settlement and it becomes final. Please be patient.
This Notice describes the benefits available from a proposed settlement of a class action lawsuit, and your options. The company's records show that sometime between July 1, 2009 and December 31, 2016 you may have purchased your electricity or gas from Viridian Energy, Inc. or one of its related companies, Viridian Energy PA LLC, Viridian Energy NY, LLC, and Viridian Energy, LLC (referred to collectively in this Notice as "Viridian" or "Defendants").
If the Court approves the settlement and it becomes final, an administrator appointed by the Court will make the payments that the settlement provides.
This package explains the lawsuit, the settlement, your legal rights, what benefits are available, who is eligible for them, and how to get them.
The class action lawsuit was brought on behalf of Viridian's energy customers and alleges that the company charged an excessive variable rate for gas and electricity regardless of fluctuations in the underlying wholesale market price. Separate class action lawsuits were filed both in Connecticut and Pennsylvania and allege that Viridian breached its contracts with customers and its duty of good faith and fair dealing, and also violated various consumer protection laws. Viridian denies any wrongdoing, and contends that its variable rates were adequately disclosed, consistent with its representations, and properly calculated based on the relevant market factors for electric and gas service.
In a class action, one or more people called "Class Representatives" sue for all people who have similar claims. Together, these people are called a "Settlement Class" or "Class Members." One court resolves the legal issues for all Class Members, except for those who exclude themselves from the Settlement Class.
After several years of litigation and more than a year of negotiations, the parties have agreed to a settlement in order to make monetary or other benefits available to Viridian's current and former energy customers. A settlement avoids the uncertainty, risks, and delay of litigation. Both the Class Representatives and their attorneys believe that the settlement is fair and in the best interests of the Class.
Class Members entitled to receive a monetary payment or credit benefit under the settlement include all current and former Viridian customers enrolled in a variable rate plan between July 1, 2009 and December 31, 2016.
This section describes the benefits available to each Class Member who submits a valid claim form for each gas and/or electric account with Viridian. Eligible claimants fall in one of two classes: "Average Usage Class Members" (customers with an average annual utilization rate of 25,000 or less kilowatt hours or 2,500 or less therms) and "Above-Average Usage Class Members" (customers with an average annual utilization rate of more than 25,000 kilowatt hours or more than 2,500 therms). Viridian's records show that you were enrolled in a variable rate plan and are an Average Usage Class Member. If you timely submit a valid claim form or forms, your payment under the settlement depends on whether you are a gas or electric customer (or both), the amount of your energy usage, how long you were a Viridian customer, and whether you elect to receive a cash payment by check, or a credit on your future bills if you are a current Viridian customer or sign up again for energy service from Viridian.
The total aggregate value of the settlement from which cash settlement payments will be made is $18,500,000. This amount will be used to pay Class Members' "Cash Benefit Option" (described below), administration costs of the class action settlement, and attorneys' fees and expenses. Should the total Calculated Loss of the valid claims filed by Average Usage Class Members and Above-Average Usage Class Members exceed the $18.5 million settlement fund minus Court-approved fees and expenses, each claimant's award will be reduced pro rata.
If you choose to receive a check (as opposed to a credit on your future bills), your cash benefit payment will be the following for each gas and/or electric account for which you submit a valid Claim Form:
Class Members who are current customers at the time a Claim is made or former customers (who wish to re-enroll with Viridian) who have a Calculated Amount above zero dollars ($0.00), shall be entitled in lieu of seeking a Cash Benefit, to a benefit of a credit of eight dollars and fifty cents ($8.50) per month on their future Viridian energy bills for a maximum of twelve (12) months (i.e., a maximum value of one hundred and two dollars ($102.00)), to be credited at the end of the Settlement Class Member's service period (or twelve (12) months, whichever comes first). Former Customers who elect this option must re-enroll within one-hundred-eighty (180) days from the end of the Claim Period. If you choose this option, but your Calculated Amount is zero dollars ($0.00) or less, you will be provided the cash benefit option described above. To find out more about both options, please visit www.xxxxxxxxxx.com or call (XXX) XXX-XXXX.
To qualify for payment, you must timely submit the Claim Form using the Class Member Identifier contained on the front of the post card you received. You can mail the Claim Form. You can also submit an online Claim Form at www.xxxx.com. If you want to download a claim form and mail it, you can download the Claim Form at www.xxxx.com or receive one by calling 1-888-XXX-XXXX. If you cannot find the postcard mailed to you call 1-888-XXX-XXXX.
You must submit your Claim Form online or by mail before [INSERT END OF NOTICE PERIOD].
Incomplete or untimely Claim Forms will render you ineligible to receive any payment under the settlement. Payments will only be made if the Court approves the settlement and it becomes final.
By submitting a Claim Form, you are agreeing to release all Defendants from any potential claims you might have regarding your energy purchases from these companies.
If you don't send in a Claim Form and don't exclude yourself from the settlement as described in the next section below, you will still be bound by all the terms of the settlement, including releasing any applicable federal and state law claims, and will not receive any payment from the settlement fund.
If you don't want a payment or credits from the settlement, then you may exclude yourself (i.e. opt-out) from the settlement. To exclude yourself from the settlement, you must submit a statement to the Claims Administrator with your name, address, and phone number stating ""I/We request to be excluded from the Settlement Class and Settlement in the
If you choose to opt out of the settlement: (1) you will not get any settlement payment; and (2) you cannot object to the settlement. By opting out, you will not be legally bound by the settlement, and may still pursue your own claims against Viridian at your own expense if they are still timely under the applicable statute of limitations.
If you fall within the definition of a Class Member set forth above, you may object to the settlement. You may not object to the Settlement if you exclude yourself from the lawsuit by opting out. To object, you must mail a written objection to the Settlement Administrator at
Your objection must be mailed so that it is received no later than [INSERT END OF NOTICE PERIOD]. You have the right to retain a lawyer at your own expense to file your objection. If your lawyer intends to appear at the Fairness Hearing, your lawyer must mail his/her notice of intention to appear before the Court to the Settlement Administrator at the address above. Do not file your intention to appear with the Court.
Members of the Settlement Class who do not timely make their objections in this manner will be deemed to have waived all objections and shall not be entitled to be heard at the Final Fairness Hearing.
The Court has appointed the following lawyers as Class Counsel to represent you and the class of customers:
Class Counsel have worked for more than three years without pay or any guarantee of obtaining a recovery for Viridian's current and former customers as described in this settlement notice. In a class action, it is customary for the attorneys representing the class to request a legal fee and reimbursement of expenses. Thus, Class Counsel will ask the Court for reimbursement of reasonable litigation costs and service awards for the class representatives in an amount up to 24% ($4,500,000). The award of fees and expenses will be applied against and reduce the $18,500,000 settlement amount. Class Counsel will ask the Court to authorize service awards of $5,000 to each of the named Class Representatives for their significant contributions in bringing this action and providing important information used to achieve the settlement. The service awards are also in recognition of the risks these individuals took in coming forward publicly. The service awards will be paid from any award of Class Counsels' attorneys' fees and expenses.
The Court will hold a final Fairness Hearing on the fairness and adequacy of the proposed settlement and its terms, on ________, 2018 at __:___ [a.m./p.m.] before the Honorable Stefan R. Underhill of the United States District Court for the District of Connecticut, 915 Lafayette Boulevard, Bridgeport, Connecticut 06604. You do
You can contact the Settlement Administrator at (800)-xxx-xxxx; or you may visit the website at www. where you will find the Claim Form, important pleadings (such as the complaint), the full Settlement Agreement, and answers to frequently asked questions about the settlement.
You may also contact Lead Class Counsel with any questions. Lead Class Counsel may be contacted as follows:
You can also review the full court file for Sanborn, et al. v. Viridian Energy, Inc., Civil Action No. 3:14-cv-01731, during regular business hours in the Clerk's Office at 915 Lafayette Boulevard, Bridgeport, Connecticut 06604.
Read this Notice carefully, as your legal rights may be affected whether or not you respond.
• These rights and options &mdash and the deadlines to exercise them — are explained in this Notice.
• Payments will be made if the Court approves the settlement and it becomes final. Please be patient.
This Notice describes the benefits available from a proposed settlement of a class action lawsuit, and your options. The company's records show that sometime between July 1, 2009 and December 31, 2016 you may have purchased your electricity or gas from Viridian Energy, Inc. or one of its related companies, Viridian Energy PA LLC, Viridian Energy NY, LLC, and Viridian Energy, LLC (referred to collectively in this Notice as "Viridian" or "Defendants").
If the Court approves the settlement and it becomes final, an administrator appointed by the Court will make the payments that the settlement provides.
This package explains the lawsuit, the settlement, your legal rights, what benefits are available, who is eligible for them, and how to get them.
The class action lawsuit was brought on behalf of Viridian's energy customers and alleges that the company charged an excessive variable rate for gas and electricity regardless of fluctuations in the underlying wholesale market price. Separate class action lawsuits were filed both in Connecticut and Pennsylvania and allege that Viridian breached its contracts with customers and its duty of good faith and fair dealing, and also violated various consumer protection laws. Viridian denies any wrongdoing, and contends that its variable rates were adequately disclosed, consistent with its representations, and properly calculated based on the relevant market factors for electric and gas service.
In a class action, one or more people called "Class Representatives" sue for all people who have similar claims. Together, these people are called a "Settlement Class" or "Class Members." One court resolves the legal issues for all Class Members, except for those who exclude themselves from the Settlement Class.
After several years of litigation and more than a year of negotiations, the parties have agreed to a settlement in order to make monetary or other benefits available to Viridian's current and former energy customers. A settlement avoids the uncertainty, risks, and delay of litigation. Both the Class Representatives and their attorneys believe that the settlement is fair and in the best interests of the Class.
Class Members entitled to receive a monetary payment or credit benefit under the settlement include all current and former Viridian customers enrolled in a variable rate plan between July 1, 2009 and December 31, 2016.
This section describes the benefits available to each Class Member who submits a valid claim form for each gas and/or electric account with Viridian. Eligible claimants fall in one of two classes: "Average Usage Class Members" (customers with an average annual utilization rate of 25,000 or less kilowatt hours or 2,500 or less therms) and "Above-Average Usage Class Members" (customers with an average annual utilization rate of more than 25,000 kilowatt hours or more than 2,500 therms). Viridian's records show that you were enrolled in a variable rate plan and are an Above Average Usage Class Member. If you timely submit a valid claim form or forms, your payment under the settlement depends on whether you are a gas or electric customer (or both), the amount of your energy usage, how long you were a Viridian customer, and whether you elect to receive a cash payment by check, or a credit on your future bills if you are a current Viridian customer or sign up again for energy service from Viridian.
The total aggregate value of the settlement from which cash settlement payments will be made is $18,500,000. This amount will be used to pay Class Members' "Cash Benefit Option" (described below), administration costs of the class action settlement, and attorneys' fees and expenses. Should the total Calculated Loss of the valid claims filed by Average Usage Class Members and Above-Average Usage Class Members exceed the $18.5 million settlement fund minus Court-approved fees and expenses, each claimant's award will be reduced pro rata.
If you choose to receive a check (as opposed to a credit on your future bills), your cash benefit payment will be the following for each gas and/or electric account for which you submit a valid Claim Form:
Class Members who are current customers at the time a Claim is made or former customers (who wish to re-enroll with Viridian) who have a Calculated Amount above zero dollars ($0.00), shall be entitled in lieu of seeking a Cash Benefit, to a benefit of a credit of eight dollars and fifty cents ($8.50) per month on their future Viridian energy bills for a maximum of twelve (12) months (i.e., a maximum value of one hundred and two dollars ($102.00)), to be credited at the end of the Settlement Class Member's service period (or twelve (12) months, whichever comes first). Former Customers who elect this option must re-enroll within one-hundred-eighty (180) days from the end of the Claim Period. If you choose this option, but your Calculated Amount is zero dollars ($0.00) or less, you will be provided the cash benefit option described above. To find out more about both options, please visit www.xxxxxxxxxx.com or call (XXX) XXX-XXXX.
To qualify for payment, you must timely submit the Claim Form using the Class Member Identifier contained on the front of the post card you received. You can mail the Claim Form. You can also submit an online Claim Form at www.xxxx.com. If you want to download a claim form and mail it, you can download the Claim Form at www.xxxx.com or receive one by calling 1-888-XXX-XXXX. If you cannot find the postcard mailed to you call 1-888-XXX-XXXX.
You must submit your Claim Form online or by mail before [INSERT END OF NOTICE PERIOD].
Incomplete or untimely Claim Forms will render you ineligible to receive any payment under the settlement. Payments will only be made if the Court approves the settlement and it becomes final.
By submitting a Claim Form, you are agreeing to release all Defendants from any potential claims you might have regarding your energy purchases from these companies.
If you don't send in a Claim Form and don't exclude yourself from the settlement as described in the next section below, you will still be bound by all the terms of the settlement, including releasing any applicable federal and state law claims, and will not receive any payment from the settlement fund.
If you don't want a payment or credits from the settlement, then you may exclude yourself (i.e. opt-out) from the settlement. To exclude yourself from the settlement, you must submit a statement to the Claims Administrator with your name, address, and phone number stating ""I/We request to be excluded from the Settlement Class and Settlement in the
If you choose to opt out of the settlement: (1) you will not get any settlement payment; and (2) you cannot object to the settlement. By opting out, you will not be legally bound by the settlement, and may still pursue your own claims against Viridian at your own expense if they are still timely under the applicable statute of limitations.
If you fall within the definition of a Class Member set forth above, you may object to the settlement. You may not object to the Settlement if you exclude yourself from the lawsuit by opting out. To object, you must mail a written objection to the Settlement Administrator at
Your objection must include (a) the name of the case, Sanborn, et al. v. Viridian Energy, Inc., Civil Action No. 3:14-cv-01731; (b) your name, address, email, telephone number, and signature; (c) a statement of the nature of the objection, and the reasons and grounds for the objection; (d) copies of any papers you intend to present to the Court in support of the objection at the Fairness Hearing; (e) a statement of whether the objector intends to appear at the Final Approval Hearing, and, if the objector intends to appear at the Final Approval Hearing through hired counsel, then the identity of all attorneys representing the objector who will appear at the Final Approval Hearing; (f) a list of all persons who will be called to testify in support of the objection, if any; (g) a statement of the objector's membership in the Settlement Class, including all the information required by the Claim Form; and (h) a detailed list of any other objections that the objector or his, her, or its counsel have submitted in any state or federal court during the previous five (5) years. If the objector or his, her, or its counsel have not objected to any other class action during the previous five (5) years, then the objector shall affirmatively state so in his, her, or its objection.
Your objection must be mailed so that it is received no later than [INSERT END OF NOTICE PERIOD]. You have the right to retain a lawyer at your own expense to file your objection. If your lawyer intends to appear at the Fairness Hearing, your lawyer must mail his/her notice of intention to appear before the Court to the Settlement Administrator at the address above. Do not file your intention to appear with the Court.
Members of the Settlement Class who do not timely make their objections in this manner will be deemed to have waived all objections and shall not be entitled to be heard at the Final Fairness Hearing.
The Court has appointed the following lawyers as Class Counsel to represent you and the class of customers:
Class Counsel have worked for more than three years without pay or any guarantee of obtaining a recovery for Viridian's current and former customers as described in this settlement notice. In a class action, it is customary for the attorneys representing the class to request a legal fee and reimbursement of expenses. Thus, Class Counsel will ask the Court for reimbursement of reasonable litigation costs and service awards for the class representatives in an amount up to 24% ($4,500,000). The award of fees and expenses will be applied against and reduce the $18,500,000 settlement amount. Class Counsel will ask the Court to authorize service awards of $5,000 to each of the named Class Representatives for their significant contributions in bringing this action and providing important information used to achieve the settlement. The service awards are also in recognition of the risks these individuals took in coming forward publicly. The service awards will be paid from any award of Class Counsels' attorneys' fees and expenses.
The Court will hold a final Fairness Hearing on the fairness and adequacy of the proposed settlement and its terms, on ________, 2018 at __:___ [a.m./p.m.] before the Honorable Stefan R. Underhill of the United States District Court for the District of Connecticut, 915 Lafayette Boulevard, Bridgeport, Connecticut 06604. You do not have to appear at this Fairness Hearing.
You can contact the Settlement Administrator at (800)-xxx-xxxx; or you may visit the website at www. where you will find the Claim Form, important pleadings (such as the complaint), the full Settlement Agreement, and answers to frequently asked questions about the settlement.
You may also contact Lead Class Counsel listed above with any questions. Lead Class Counsel may be contacted as follows:
You can also review the full court file for Sanborn, et al. v. Viridian Energy, Inc., Civil Action No. 3:14-cv-01731, during regular business hours in the Clerk's Office at 915 Lafayette Boulevard, Bridgeport, Connecticut 06604.
THE COURT AUTHORIZED THIS NOTICE. THIS IS NOT A SOLICITATION FROM A LAWYER.
[FIRST1] [LAST1]
[BUSINESSNAME] [ADDR1] [ADDR2]
THE COURT AUTHORIZED THIS NOTICE. THIS IS NOT A SOLICITATION FROM A LAWYER.
[FIRST1] [LAST1]
[BUSINESSNAME] [ADDR1] [ADDR2]
