Mirkin v. Xoom Energy, LLC, 18-3138
| Decision Date | 26 July 2019 |
| Docket Number | August Term 2018,No. 18-3138,18-3138 |
| Citation | 931 F.3d 173 |
| Parties | Susanna MIRKIN, Individually and on Behalf of All Others Similarly Situated and Boris Mirkin, Individually and on Behalf of All Others Similarly Situated, Plaintiffs-Appellants, v. XOOM ENERGY, LLC and XOOM Energy New York, LLC, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
J. Burkett Mcinturff (Steven L. Wittels & Tiasha Palikovic, on the brief), Wittels Law, P.C., Armonk, NY, for Plaintiffs-Appellants.
David R. Kott (Christopher A. Rojao, on the brief), McCarter & English, LLP, Newark, NJ, for Defendants-Appellees.
Before: NEWMAN, POOLER, and PARKER, Circuit Judges.
Susanna and Boris Mirkin (the "Mirkins") sued XOOM Energy, LLC and XOOM Energy New York, LLC (collectively, "XOOM") in New York state court for breach of contract, breach of the implied covenant of good faith and fair dealing, and unjust enrichment.1 XOOM then removed the action to federal court. The United States District Court for the Eastern District of New York (Ross, J. ) dismissed the Mirkins’ complaint (the "Complaint") under Federal Rule of Civil Procedure 12(b)(6) and denied the Mirkins’ post-judgment request, made pursuant to Rules 59(e) and 60(b), for leave to amend. Because we conclude that the Mirkins should have been allowed to amend their Complaint, and their Complaint and proposed amended complaint (the "PAC") stated plausible claims for breach of contract, we reverse the judgment of the District Court in part and remand for further proceedings consistent with this opinion.
The Complaint alleges a number of facts related to the New York energy market. Specifically, in 1996, the market was deregulated, and in the wake of the deregulation, third-party energy services companies ("ESCOs") began competing with traditional utilities. These ESCOs operate as commodity brokers or middlemen. They do not generate or deliver electricity; they simply buy electricity from utility companies that generate it and resell it to consumers. Utility companies then ultimately deliver the electricity to consumers. The Mirkins allege that the business practices of ESCOs have come under intense scrutiny from regulators as a consequence of questionable business practices. According to the Complaint, in December 2016, following a flood of consumer complaints and negative media reports, the New York State Public Service Commission ("PSC") permanently prohibited ESCOs from serving low-income customers. Compl. ¶ 36.
The Complaint cites to the PSC’s March 2018 conclusions that "ESCO customers have become the victims of a failed market structure that results in customers being fooled by advertising and marketing tricks into paying substantially more for commodity service than [if] they had remained full utility customers, yet thinking they are getting a better deal." Id. ¶ 37. The PSC explained that the primary problem with ESCOs is "the overcharging of customers for [a] commodity due to the lack of transparency ... on ESCO prices and products," which "allows ESCOs to charge customers practically whatever they want." Id. The PSC also concluded that "ESCOs take advantage of the mass market customers’ lack of knowledge and understanding of, among other issues, the electric and gas commodity markets, commodity pricing, ... contract terms ... and in particular, the ESCOs’ use of teaser rates and ‘market based rate’ mechanisms that customers are charged after the teaser rate expires." Id.
The parties do not dispute that XOOM, which supplies residential electricity to thousands of New York households, operates like a typical ESCO and markets itself as such. Oral Arg. R. at 13:59–14:10 (conceding that XOOM operates essentially as a commodity broker or middleman); see also PAC ¶¶ 48–49 ). The Mirkins allege that, like other ESCOs, XOOM attracts customers with low introductory rates. Upon the expiration of these rates, customers are then charged variable rates.
In March 2013, the Mirkins entered into a customer agreement (the "Agreement") with XOOM. The Agreement set forth the basis upon which rates would be determined as follows:
Your rate for energy purchases will be a variable rate, per kWh, that may change on a monthly basis, plus taxes and fees, if applicable. Your monthly variable rate is based on XOOM’s actual and estimated supply costs which may include but not be limited to prior period adjustments, inventory and balancing costs.
App’x at 29 (emphasis added). The Mirkins remained customers of XOOM for six months before discontinuing the arrangement because of their dissatisfaction with the rates they were charged after the expiration of the teaser rate.
The Mirkins sued XOOM for breaching the Agreement, alleging that XOOM did not base its rates on its supply costs. With the help of an energy expert, the Mirkins calculated the market cost for supplying wholesale energy (the "Market Supply Cost") based on publicly available data provided by the New York Independent System Operator ("NYISO"), accounting for ancillary services costs, capacity costs, renewable portfolio standard costs, and various charges related to the NYISO. The Mirkins’ calculations, set forth in their Complaint, are as follows:
Period XOOM Rate Market Supply Cost Difference in %
5/10/2013-6/11/2013 9.39 (teaser) 11.03 -14.87%
6/11/2013-7/11/2013 12.50 11.89 5.13%
7/11/2013-8/9/2013 15.05 12.36 21.76%
8/9/2013-9/10/2013 15.55 10.1 53.96%
9/10/2013-10/8/2013 14.79 10.12 46.15%
10/8/2013-11/7/2013 15.57 9.82 58.55%
Compl. ¶ 47. The Mirkins allege that, according to their calculations, XOOM’s rates substantially exceeded the Market Supply Cost and continued to rise even when the Market Supply Cost went down.
XOOM moved to dismiss the Complaint for failure to state a claim under Rule 12(b)(6). The District Court granted the motion, reasoning that the Agreement’s reference to actual or estimated supply costs "makes XOOM’s rate-setting decisions an internal activity." Mirkin v. XOOM Energy, LLC , 342 F. Supp. 3d 320, 328 (E.D.N.Y. 2018). In other words, according to the District Court, the Agreement allows XOOM to set rates at its discretion because "[c]ustomers—at least those without any background in the electricity market or the numerous factors that may determine the costs of an individual electricity provider—would have no basis for predicting XOOM’s actual or estimated costs." Id. This conclusion disregarded plausible allegations in the Complaint.
Additionally, the Mirkins submitted the PAC, adding a number of allegations aimed at remedying the District Court’s concerns about the Complaint. The Mirkins sought leave to file the PAC, which was attached to a postjudgment motion pursuant to Rules 59(e) and 60(b). The District Court denied them leave to amend, reasoning, inter alia , that the amendment would be futile for the same reasons it had initially dismissed the Complaint. App’x at 113. We also disagree with this conclusion concerning the PAC.
This Court "review[s] de novo the grant of a motion to dismiss under Rule 12(b)(6), accepting as true the factual allegations in the complaint and drawing all inferences in the plaintiff’s favor." Scutti Enters., LLC v. Park Place Entm’t Corp. , 322 F.3d 211, 214 (2d Cir. 2003). To survive a motion to dismiss, a plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ; see also Erickson v. Pardus , 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) .
The District Court dismissed the Complaint because it concluded that the Agreement did "not incorporate any references to external rates or market prices" and therefore "provides customers with no clear formula for the calculation of its costs." XOOM , 342 F. Supp. 3d at 328. Thus, according to the District Court, there is no way the Mirkins could successfully state a claim without detailed information on the internal costs and rate-setting processes to which only XOOM is privy.
In holding the Complaint insufficient and the motion to file the PAC futile, the District Court failed to accept as true plausible allegations in the Complaint and the PAC. As an initial matter, XOOM concedes that it operates as a commodity broker or middleman and does not generate or deliver electricity. Oral Arg. R. at 13:59–14:10. Rather, it purchases energy "from wholesale markets" and resells that energy to its customers. PAC ¶ 48 (quoting XOOM Website). Consistent with this concession, the Mirkins plausibly allege that "[t]he cost of wholesale energy is the primary component of the non-overhead costs XOOM incurs." Compl. ¶ 51. We must therefore draw the reasonable inference from the Complaint and the PAC that XOOM’s actual or estimated supply costs should track the Market Supply Cost.
The Mirkins have alleged, with the support of the expert calculations included in the Complaint and the PAC, that XOOM’s rates showed significant upward...
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