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300 West End Ave. Assoc. Corp. v. Engie Power & Gas LLC

Plaintiffs Sufficiently Plead Claim Over Determination of Variable Energy Rate

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MEMORANDUM AND ORDER 300 West End Ave Associates Corp. (“300 West End”), General Theological Seminary of the Protestant Episcopal Church in the United States (“GTS”), and 293-299 Knickerbocker LLC (“Knickerbocker” and together with 300 West End and GTS, “Plaintiffs”), on behalf of themselves and others similarly situated, bring the instant action against Engie Power & Gas, LLC f/k/a Plymouth Rock Energy, LLC (“Defendant”), asserting claims for breach of contract, breach of implied covenant of good faith and fair dealing, violations of New York General Business Law (“GBL”) §349, and unjust enrichment. Defendant moves, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss the complaint in its entirety. BACKGROUND1 An energy service company (“ESCO”) is essentially a broker. (Second Am. Compl. (“Am. Compl.”) 20, ECF No. 27.) They neither produce nor deliver gas but buy energy from producers and re-sell it to customers. (Id.) ESCOs differ from traditional utility providers because they do not have to file or seek approval from state utility regulators for energy rates they charge consumers. (Id. 21.) According to Plaintiffs, ESCOs attract customers with a “fixed supply charge that is comparable to, or below, the traditional local utility rate,” but after the specified term ends, they charge a variable rate that is higher than the initial rate offering. (Id.

23-24.) Moreover, according to the complaint, ESCOs provides vague details, if any, concerning how the variable rate is calculated, leaving customers, like Plaintiffs, to pay “outrageously high energy rates detached from market conditions that no reasonable customer would ever agree to.” (Id.

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