1. What is the Lawsuit and Proposed Settlement about?
2. What are the Key Terms of the Settlement?
3. What are the reasons for the Settlement?
4. What is the Class Action Determination?
5. When is the Final Fairness Hearing?
6. What are my options?
7. Where can I get more information?
The Municipal Plaintiffs each contracted with Columbia Utilities Power, LLC on or around April 30, 2021 to receive renewable electricity supplied through the CCA Program for which Columbia Utilities Power, LLC served as the Energy Service Company, thereby providing the option for individual residents and small businesses located within those municipalities to participate in the CCA Program.
On June 3, 2022, the Municipal Plaintiffs, along with Individual Plaintiffs and Joule Assets, Inc. (“Joule”) (together with the Municipal and Plaintiffs, “Plaintiffs”), filed a Verified Complaint (the “Complaint”) against Columbia Utilities Power, LLC and an affiliated entity (collectively, “Columbia” or “Defendants”) in New York State Supreme Court, captioned Town of Saugerties et al., v. Columbia Utilities Power, LLC et al., Index No. EF2022-1113 (N.Y. Sup. Ct., Ulster Co.) (the “Action”), seeking injunctive relief and damages in connection with the CCA Program and Columbia’s purported intention to terminate its contracts with the Plaintiff Municipalities and transfer all of its CCA Program customers back to the local utility, Central Hudson Gas & Electric Corp. (“Central Hudson”). Among other things, the Complaint included claims and causes of action asserted against Columbia by the Individual Plaintiffs on their own behalf and as representatives of the Settlement Class.
In conjunction with their Complaint, Plaintiffs also filed a proposed Order to Show Cause on June 3, 2022, seeking to preliminarily enjoin and restrain Columbia from, among other things, transferring all of its CCA Program customers (including all Settlement Class Members) back to Central Hudson, which the Court so-ordered and entered on June 7, 2022 (the “Order to Show Cause”), including the temporary restraining order Plaintiffs requested (the “TRO”).
On June 6, 2022, the New York State Public Service Commission, on its own behalf and on behalf of the People of the State of New York (the “PSC”) (together with Plaintiffs, the “Plaintiff Parties”), filed a Proposed Intervenor’s Complaint for Injunctive Relief and Penalties against Columbia in the Action (the “PSC Complaint”), based on the same or related facts and allegations and seeking similar relief as the Complaint filed by the Plaintiffs in the Action, pursuant to the PSC’s accompanying motion to intervene, which the Court granted on August 12, 2024 by Stipulation of the Parties to the Action.
On July 18, 2021, while the TRO was in effect, the New York State Independent Operator (“NYISO”) terminated Columbia’s rights to participate in NYISO-administered market in New York State, resulting in the unilateral transfer of all of Columbia’s CCA Program customers (including all Settlement Class Members) back to Central Hudson as the local utility, as a result of Columbia’s failure to post approximately $3.5 million in collateral by July 12, 2022 as required to comply with NYISO’s creditworthiness requirements.
On August 12, 2022, in addition to granting the PSC’s Motion to Intervene, the Court in the Action adjourned the deadlines in the Order to Show Cause to allow the Parties to conduct discovery regarding NYISO’s collateral demand and whether Columbia was in fact unable to meet it.
Columbia denies the material allegations in the Complaint and the PSC’s Complaint, denies that it engaged in in any wrongdoing whatsoever—including, without limitation, in connection with the collateral demand and the transfer of Columbia’s CCA Program customers (including all Settlement Class Members) as a result of Columbia’s termination from the NYISO-administered market—and denies that any of the Plaintiff Parties are or were entitled to the injunctive relief, damages, and any other remedies they seek or have sought by and through the Action; and
The Parties have completed document discovery into the collateral demand and Columbia’s ability to comply with the TRO, including the production of documents and information by Columbia in connection with Plaintiffs’ and the PSC’s allegations against Columbia, as well as third-party discovery from Central Hudson, and have engaged in settlement discussions, culminating in a mediation on April 3, 2024. As a result of the mediation, the Plaintiff Parties have concluded that settlement of all of the claims and causes of brought by or that could have been brought by the Plaintiff Parties against Columbia in the Action, including, without limitation, the claims and causes of action asserted on behalf of the Settlement Class by the Individual Plaintiffs, is fair, reasonable, adequate and in the best interests of all Settlement Class Members.
On July 18, 2024, the Parties entered into the Settlement Agreement, and, on July 18, 2024, filed a proposed Scheduling Order for Approval of Settlement of Class Action (the “Fairness Hearing Order”). On July 29, 2024, the Court entered and so-ordered the Fairness Hearing Order to consider, among other things, whether to approve the terms of the Settlement as set forth in the Settlement Agreement.
Back To Top
If the Settlement is approved by the Court, the claims and causes of action asserted against Columbia by the Plaintiff Parties, including those brought on behalf of the Settlement Class, will be DISMISSED WITH PREJUDICE pursuant to an Order and Final Judgment to be entered by the Court, and Columbia will receive releases from the Plaintiff Parties, including all Settlement Class Members who do not Opt Out of the Settlement, for any and all claims that have or could be asserted against Columbia in connection with the Action. In exchange, Columbia will pay a total of $1,500,000.00 into a Settlement Fund that, after the deduction of expenses, will be used for the benefit of the Settlement Class Members, and provide corresponding releases to the Plaintiff Parties, including all Settlement Class Members who do not Opt Out of the Settlement. These terms are discussed in further detail below.
Settlement Fund
In exchange for the dismissal of the Action and the releases it will receive (discussed further below), Columbia will pay a total of $1,500,000.00 into a settlement fund (the “Settlement Fund”) by June 1, 2025 as follows: (a) payment of $1,000,000.00 by August 1, 2024 ; and (b) payment of the remaining $500,000.00 by June 1, 2025 through monthly installment payments of $50,000 per month beginning on September 1, 2024. Columbia may elect to pay more than the minimum amount for any monthly installment payment, in which case any additional amount paid over the minimum monthly payment amount will be credited to future monthly installment payments, with the understanding that Columbia remains obligated to pay a total of $1,000,000.00 to the Settlement Fund by August 1, 2024 and to pay the remaining $500,000.00 to the Settlement Fund by June 1, 2025, for an aggregate amount of $1,500,000.00 by June 1, 2025.
The Settlement Fund will be paid into and held in an interest-bearing Escrow Account administered by Simpluris as the Escrow Agent and Settlement Administrator in accordance with the terms of the Settlement and as provided in the Settlement Agreement. Specifically, the Settlement Fund will be used to disburse refunds in equal amounts to the members of the Settlement Class who have not opted out. In addition, all expenses, fees, taxes, and other costs associated with providing notice and administering the Settlement Fund, as well as reasonable actual attorneys’ fees and costs not to exceed twenty percent of the Settlement Funds, shall be paid out of the Settlement Fund (together with any interest accrued thereon). Once Columbia has satisfied its payment obligations with respect to the Settlement Fund, Columbia shall not have any liability or responsibility whatsoever with respect to the Settlement Fund, including with respect to any costs, fees, expenses, taxes incurred or imposed thereon, or the actions of the Escrow Agent/Settlement Administrator in the administration, management, allocation, and/or disbursement of the Settlement Fund.
Releases
The Plaintiff Parties, including all Settlement Class Members who do not Opt Out of the Settlement (the “Releasing Parties”), in exchange for Columbia’s payment of the Settlement Fund, will release Columbia Utilities Power, LLC and Columbia Utilities, LLC and any of their former, present, and future assigns, predecessors, successors, affiliates, parent companies, subsidiaries, controller companies, employees, officers, directors, principals, and agents (collectively, the “Released Parties”) from any and all claims, including any and all claims, rights, and liabilities of any nature, including, but not limited to, actions, claims, demands, causes of action, obligations, damages, debts, charges, attorneys’ fees, costs, arbitrations, forfeitures, judgments, indebtedness, liens and losses of any kind, source or character whether arising out of federal or state law, whether known, suspected to exist or unknown, whether asserted or unasserted, whether asserted by any Releasing Party either on its own behalf or on behalf of any other Person, whether in contract, express or implied, tort, at law or in equity or arising under or by virtue of any statute or regulation, by reason of, arising out of, that are related to any of the facts, acts, events, transactions, occurrences, courses of conduct, business practice or relationship, representations, omissions, circumstances or other matters related in any way to the Action, addressed in this Agreement, and/or that could have been brought in the Action against any of the Released Parties, including any claims related to the Released Parties’ conduct in connection with the CCA Program (the “Released Claims”), excluding only claims the Releasing Parties could assert to enforce the Settlement under the Settlement Agreement.
The PSC will also agree and acknowledge that (i) the Settlement resolves all investigative and other regulatory enforcement actions related to Columbia’s participating in and conduct relating to the CCA Program; and (ii) upon satisfying its payment obligations with respect to the Settlement Fund, nothing related to this Action shall prohibit Columbia from being eligible to supply electricity and/or natural gas to customers using the transmission or distribution system of a utility as an ESCO in New York State. The PSC will further agree and acknowledge that the PSC will not challenge Columbia’s ability to re-enter the NYISO-administered market as an ESCO based on any conduct or allegations relating to the Action.
In addition to the releases they will receive, the Releasing Parties (as defined above), will fully, finally, and forever release, relinquish, and discharge any and all claims against the Releasing Parties and any of their former, present, and future assigns, predecessors, successors, affiliates, parent companies, subsidiaries, controller companies, employees, officers, directors, principals, and agents, from any and all claims arising out of or relating to their filing, prosecution, and settlement of the Action and the Released Claims, again, similarly excluding only claims the Releasing Parties could assert to enforce the Settlement under the Settlement Agreement.
Back To Top
The Plaintiff Parties contend that they brought the Action against Defendants in good faith and that the claims asserted against Defendants in the Action have legal merit, but nevertheless acknowledge that Defendants would continue to assert legal and factual defenses to such claims. With the informed understanding—based on representations from Columbia—and recognition that further litigation in the Action would only deplete any potential recovery for the Plaintiff Parties, and thereby reduce the amount of funds that could be used for the benefit of the Settlement Class, and considering that the Settlement would eliminate the burden, expense, and risk of further litigation, the Plaintiff Parties believe that the terms of the Settlement are fair, reasonable, adequate and in the best interest of the Settlement Class.
Defendants have denied, and continue to deny, that they committed any violation of law or of their contractual obligations or engaged in any of the wrongful acts alleged against them in the Action. Defendants are entering into this Agreement solely because the proposed Settlement would eliminate the burden, expense and risk of further litigation.
Back To Top
Pursuant to CPLR 901 et. seq., and for purposes of the Settlement only, the Court has conditionally certified the Action as a class action on behalf of the Settlement Class, defined as follows:
The putative class of all Persons or businesses who, as of July 18, 2022, still participated in the Hudson Valley Power Community Choice Aggregation Program administered by Joule and through which Columbia Utilities, Power, LLC contracted to supply renewable energy (the “CCA Program”), as a resident or small business located within a municipality participating in the CCA Program, as represented by the Individual Plaintiffs in the Action. Excluded from the Settlement Class are (1) those Persons who timely and validly Opt Out of the Settlement pursuant to the Settlement Notice; (2) the judicial officers to whom this case is assigned and any members of their staffs and immediate families; and (3) any heirs, assigns, or successors of any of the Persons or entities described in parts (1) and (2) of this paragraph.
SETTLEMENT CLASS MEMBERS SHALL HAVE THE RIGHT TO SEEK EXCLUSION (“OPT OUT”) FROM THE SETTLEMENT ONLY AS TO THE RELEASED CLAIMS FOR MONETARY DAMAGES arising out of the causes of action asserted against Defendants, as provided further below.
Back To Top
The Court has scheduled a Fairness Hearing to be held on December 4, 2024 at 10:00 a.m. at the Special Term of this Court, the Supreme Court of the State of New York, Ulster County, located at 285 Wall Street, Kingston, New York 12401, Room 2F, to:
The Court has reserved the right to adjourn the Fairness Hearing or modify any of the dates or deadlines set forth herein without further notice to the Settlement Class.
The Court has reserved the right to approve the Settlement at or after the Fairness Hearing with such modifications as may be consented to by the Parties to the Action and without further notice to the Settlement Class.
Back To Top
Any Settlement Class Member may appear and show cause at the Fairness Hearing if he, she or it has any reason why the proposed Settlement of the Action should not be approved as fair, reasonable, adequate and in the best interest of the Settlement Class. However, in order to have their objections heard, any member of the Settlement Class who seeks to object to the Settlement must file with the Court and deliver to the following counsel for Parties to these proceedings a written notice of objection, signed as authorized by the objecting shareholder and setting ground(s) for the objection, by no later than thirty (30) days before the Fairness Hearing. Counsel to whom such objections must be sent are as follows:
Counsel for Plaintiffs | Counsel for Plaintiff-Intervenor | Counsel for Defendants |
Only those Settlement Class Members who have filed and delivered such valid and timely written notice of objections will be entitled to be heard at the Fairness Hearing unless the Court orders otherwise.
Any Settlement Class Member who seeks to Opt Out from the Settlement as to the Released Claims for monetary damages must submit a request to do so, in writing to the Settlement Administrator as follows:
Columbia Utilities Power Settlement
c/o Settlement Administrator
P.O. Box 25226
Santa Ana, CA 92799
Notice of any request to Opt Out of the Settlement must be provided no later than thirty (30) days from the Fairness Hearing, and must be postmarked no later than such deadline (the “Opt Out Deadline”) and include: the name, address, telephone number; email address and signature of the Settlement Class Member seeking to Opt Out of the Settlement.
Only those members of the Settlement Class who have filed and delivered a valid and timely request to Opt Out by the Opt Out Deadline will be excluded from the Settlement Class, unless the Court orders otherwise.
Back To Top
PLEASE DO NOT WRITE OR CALL THE COURT WITH INQUIRIES ABOUT THIS SETTLEMENT NOTICE. INQUIRIES OR COMMENTS ABOUT THE SETTLEMENT MAY DIRECTED TO THE SETTLEMENT ADMINISTRATOR:
Columbia Utilities Power Settlement
c/o Settlement Administrator
P.O. Box 25226
Santa Ana, CA 92799
Toll Free: (844) 804-4105
Further information is also available in the Important Documents section of this website.
Back To Top