KIWI ENERGY NY LLC, RICHMOND ROAD HOLDINGS LLC, and RRH ENERGY SERVICES LLC,

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS X DUANE and KERRY AUSTIN, individually and on behalf of all others similarly situated, - vs- Plaintiffs, KIWI ENERGY NY LLC, RICHMOND ROAD HOLDINGS LLC, and RRH ENERGY SERVICES LLC, VERIFIED CLASS ACTION COMPLAINT Index No.: JURY TRIAL DEMANDED Defendants. X Plaintiffs Duane and Kerry Austin ( Plaintiffs or the Austins ), by their attorneys, Kohn, Swift & Graf, P.C., Wittels Law, P.C., and Barbat, Mansour, & Suciu PLLC, as and for their class action complaint, allege, with personal knowledge as to their own actions, and upon information and belief as to those of others, as follows: NATURE OF THE ACTION 1. This action seeks to redress the deceptive pricing practices of Defendants Kiwi Energy NY LLC, Richmond Road Holdings LLC, and RRH Energy Services LLC (collectively Defendants or Kiwi Energy, unless otherwise specified) that have caused thousands of New York consumers to pay considerably more for their natural gas and/or electricity than they should otherwise have paid. 2. Kiwi Energy has taken advantage of the deregulation of the retail natural gas and electricity market in New York by luring consumers into switching energy suppliers with false promises that it offers market based variable rates for natural gas and electricity. Kiwi Energy lures consumers into switching by offering a teaser rate that is lower than local utilities rates for natural gas and electricity supply. When the teaser rate expires after a couple of months, { } 4 of 24

2 Defendant switches customers to a variable rate, which it represents reflects market-related factors. 3. Kiwi Energy s representations are deceptive. In fact, Kiwi Energy s variable rates are substantially higher than those otherwise available in the energy market, and are not reflective of the market factors on which Kiwi Energy purports to base its variable rates. Kiwi Energy s business model is simple: after the teaser rate expires, it charges exorbitant rates that are not based on market-related factors, namely the rates that other retailers and energy customers incumbent utility providers charge for natural gas and electricity and wholesale costs. As a result, New York consumers are being fleeced millions of dollars in exorbitant charges for natural gas and/or electricity. 4. This suit is brought pursuant to N.Y. G.B.L. 349 and N.Y. G.B.L. 349-d and the common law of New York on behalf of a class of consumers who purchased natural gas and/or electricity from Kiwi Energy from August 8, 2011 to the present. It seeks, inter alia, injunctive relief, actual damages and refunds, treble damages, attorneys fees, and the costs of this suit. JURISDICTION AND VENUE 5. This Court has personal jurisdiction over Defendants Kiwi Energy NY LLC, Richmond Road Holdings LLC, and RRH Energy Services LLC, New York limited liability companies doing business within the State of New York and the County of Kings, pursuant to New York Civil Practice Law and Rules (CPLR) 301. Defendants conduct business throughout the United States, including in New York, County of Kings. Defendant Kiwi Energy is organized under the laws of New York. Upon information and belief, Defendants maintain their principal place of business in Kings County, New York. { } 2 5 of 24

3 6. Venue is proper in the Supreme Court of the State of New York, Kings County, pursuant to CPLR 503 because Defendant Kiwi Energy is a citizen of Kings County, New York. PARTIES 7. Plaintiffs Duane and Kerry Austin are married citizens of New York residing in Rochester, New York. The Austins were customers of Kiwi Energy from approximately September 2015 through November 2016, and as a result of Defendants deceptive conduct, they incurred excessive charges for natural gas and electricity. 8. Defendant Kiwi Energy NY LLC is a New York limited liability company with its principal place of business located at 144 North 7th Street, Suite 417, Brooklyn, New York Defendant Richmond Road Holdings LLC is, upon information and belief, a New York limited liability company with its principal place of business located at 415 Wythe Avenue, Brooklyn, New York Defendant Richmond Road Holdings LLC is a privately held New York-based company operating energy retail businesses across several states. Its businesses include Defendant Kiwi Energy in New York and Spring Power and Gas in New Jersey and Maryland. Upon information and belief, Defendant Richmond Road Holdings owns, operates and controls all of the operations of Defendant Kiwi Energy, and is responsible for Kiwi s marketing, pricing and energy supply functions. 11. Defendant RRH Energy Services LLC is, upon information and belief, a New York limited liability company with its principal place of business located at 415 Wythe Avenue, Brooklyn, New York { } 3 6 of 24

4 12. Defendant RR Energy Services LLC is a privately held New York-based energy services management company overseeing retail energy businesses across several states. Defendant RR Energy Services oversees the energy business of Defendant Kiwi Energy in New York and Spring Power and Gas in New Jersey and Maryland. Upon information and belief, Defendant RR Energy Services manages the core operations of Defendant Kiwi Energy including but not limited to Financial Forecasting and Budgeting, Business Development and Planning, Procurement, Risk Management, Market Entry, Sales Strategy and Growth, Operations and Database Solutions, and Marketing and Public Relations Strategy. STATEMENT OF FACTS 13. In 1996, New York deregulated the market for retail natural gas and electricity supply, a major break with past policy. Prior to deregulation, gas and electricity were supplied and distributed solely by local utility companies. Over the last several years, a number of states, including New York, have begun to change the regulations in the energy industry purportedly to enhance competition between energy providers. The notion is that competition would result in independent energy service companies ( ESCOs ) being more aggressive than the utility in reducing wholesale purchasing costs and thereby lower retail residential rates. 14. As part of the deregulation plan, ESCOs (like Kiwi Energy) do not have to file the natural gas and electricity rates it charges with the New York State Public Service Commission ( NYPSC ) or the method by which it set its rates. 15. If a customer switches to an ESCO, the customer will have his or her energy supplied by the ESCO, but still delivered by their existing utility. The customer s existing utility continues to bill the customer for both the energy supply and delivery costs. The only difference to the customer is which company sets the price for the customer s energy supply. { } 4 7 of 24

5 16. After a customer switches to an ESCO, the customer s energy supply charge based either on a customer s kilowatt hour (for electricity) or therm or ccf (for gas) usage is calculated using the supply rate charged by the ESCO and not the regulated rate charged by customer s former utility. The supply rate charged is itemized on the customer s bill as the number of kilowatt hours ( kwh ) or therms (or ccf) multiplied by the rate. For example, if a customer uses 300 kwh at a rate of 11.0 per kwh, the customer will be billed $33.00 (300 x $.11) for his or her energy supply. 17. Kiwi Energy takes advantage of the deregulation and the lack of regulatory oversight in the energy market to deceptively charge New York consumers exorbitant rates for natural gas and electricity. In theory, energy deregulation allows consumers to shop around for the best energy rates, and it allows consumers to take advantage of market-based rates that decline when wholesale costs decline. However, Kiwi Energy exploits deregulated markets with false promises that it offers market based variable rates in order to deceive consumers into purchasing energy from it. In fact, Kiwi Energy s rates are substantially higher than other ESCOs or local utilities and they are not reflective of changes in wholesale rates. 18. Kiwi Energy lures consumers to switch from their local utility companies or other energy suppliers, promising that it will offer market based variable rates for natural gas and electricity. Kiwi Energy s scheme falsely promises energy rates based on market-related factors. However, in reality, after switching to Kiwi Energy as a supplier, consumers energy bills increase dramatically. 19. The NYPSC has taken note of the deceptive acts and practices among ESCOs in New York. In 2016, the NYPSC stated that after considerable experience with energy service to mass market customers by ESCOs, it determined that the retail markets serving mass-market customers are not providing sufficient competition or innovation to properly serve consumers. { } 5 8 of 24

6 As a result, the NYPSC is opening an evidentiary hearing to examine measures that must be taken to ensure that these customers can pay just and reasonable rates for commodity and other services from ESCOs. 1 Kiwi Energy Charges Improperly High Natural Gas and Electricity Rates 20. Defendant Kiwi Energy engages in a classic bait and switch deception scheme. Kiwi Energy lures consumers into switching to its natural gas and/or electricity supply service by offering teaser rates that are much lower than its regular rates. 21. In or around September 2015, a Kiwi Energy representative named Sherry Bennett came to the Austins residence to solicit them to switch from their utility company, Rochester Gas and Electric, to Kiwi Energy with promises that they would save money if they switched to Kiwi Energy. 22. In or around September 2015, Plaintiffs made the switch to Kiwi Energy for natural gas and electricity, and they and Kiwi Energy s contractual agreement is memorialized in Defendant s Terms And Conditions in a document titled Natural Gas/Electricity Sales Agreement. (attached as Exhibit A ). In consideration for natural gas and electricity supply, Plaintiffs agreed to pay a variable rate based on market-related factors. Thereafter, they paid the rate they were charged. 23. Plaintiffs were initially placed on an introductory fixed rate plan for natural gas and electricity, but they were subsequently switched to a variable rate plan. 24. The representation that Kiwi Energy s variable rate would be based on marketrelated factors was reinforced by Kiwi Energy s standard Terms & Conditions, which was provided to Plaintiffs by the Kiwi Energy representative. The Terms & Conditions represent that 1 See B3D691BA%7D&ext=pdf (last accessed on July 7, 2017). { } 6 9 of 24

7 the variable rate for natural gas shall be a variable price which shall reflect the cost of natural gas obtained from all sources (including energy, capacity, settlement, ancillaries), related transmission and distribution charges and other market-related factors, plus all applicable taxes, fees, charges, or other assessments and Kiwi Energy s costs, expenses and margins. (emphasis added). 25. The Terms & Conditions further represent that the variable rate for electricity shall be a variable price which shall reflect the cost of electricity obtained from all sources (including energy, capacity, settlement, ancillaries), related transmission and distribution charges and other market-related factors, plus all applicable taxes, fees, charges, or other assessments and Kiwi Energy s costs, expenses and margins. (emphasis added). 26. Any reasonable consumer would understand that based on these representations that Kiwi Energy s rates would be based on market-related factors and would expect that the rates would be commensurate with the rates offered by the local utility and other ESCOs. The Austins reasonably expected that Kiwi Energy s variable rates for natural gas and electricity would be based on market-related factors, i.e., reflective of the price of natural gas and electricity on the market and the rates offered by the Austins former utility and other competitors in the market. 27. A reasonable consumer would also understand and expect that a variable rate based on market-related factors would be reflective of changes in the wholesale market price for natural gas and electricity. After all, that is the point of deregulation, to allow consumers to take advantage of the efficiencies of the market and to enjoy lower retail process when the wholesale market drops. 28. But the rates Kiwi Energy charged Plaintiffs were not commensurate with rates otherwise available in the market or with changes in wholesale rates. { } 7 10 of 24

8 29. Plaintiffs paid Kiwi Energy s variable rate until approximately November Plaintiffs cancelled their service with Kiwi Energy at that time. The following table is a representative sampling which identifies the billing periods during this time, the variable rates Kiwi Energy charged Plaintiffs, and the corresponding rates Rochester Gas and Electric ( RG&E ) would have charged for natural gas and electricity (which is a reasonable representation of the available market rates): Natural Gas Billing Period Kiwi Energy Rate RG&E Rate 4/2016-5/ /therm /therm 8/2016-9/ /therm /therm 9/ / therm /therm Electricity Billing Period Kiwi Energy Rate RG&E Rate 4/2016-5/ /kwh /kwh 8/2016-9/ /kwh.05553/kwh 9/ / /kwh.04755/kwh 30. Specifically, in the electricity market, the rates New York utilities like RG&E charge is an accurate reflection of rates that are based on market conditions. In fact, New York utilities purchase electricity for their customers on the spot or daily market at the same market price per kilowatt hour other electricity retailers, including Kiwi Energy, can purchase electricity for their customers. { } 8 11 of 24

9 31. For utility customers in New York who do not get their electricity supply from an ESCO, the utilities buy electricity from the New York wholesale electricity markets. The New York Independent Service Operator ( NYISO ) administers the short-term markets that utilities (and ESCOs) purchase electricity at the wholesale level for resale to their customers. The utilities monthly rate is based upon the daily purchases by the utilities. Thus, the purchases made by the utilities from the NYISO that are aggregated to a monthly cost for their customers reflect actual short-term, monthly market costs. 32. The rates utilities like RG&E charge are an accurate reflection of rates that are based on market factors. In other words, the electricity and natural gas rates that utilities charge are an accurate measure of what market based rates should be. 33. That Kiwi Energy s rate was substantially higher than the local utility s rate therefore demonstrates that Kiwi Energy s rate is not in fact based on market-related factors. In fact, at multiple points, Kiwi Energy charged Plaintiffs a rate that was nearly double the rate charged by RG&E. If Kiwi Energy s rate was based on wholesale costs (as any reasonable consumer would expect of a variable rate based on market-related factors), then its rate would have also declined during this period (because RG&E s rate is reflective of changes in the wholesale market cost of natural gas and electricity). 34. A reasonable consumer would understand that the price the local utility or other ESCO charges is part of market conditions and that a priced based on market-related factors would be consistent with the price charged by the local utility or other ESCO. However, Kiwi Energy s prices are substantially higher than local utilities rates, as well as the rates other ESCOs charge. 35. Thus, Kiwi Energy s statements with respect to the natural gas and electricity rates it will charge are materially misleading because consumers do not receive a price based on { } 9 12 of 24

10 market-related factors. Instead, consumers are charged rates that are substantially higher. Kiwi Energy fails to disclose this material fact to its customers. 36. Defendant Kiwi Energy s statements regarding its natural gas and electricity rates are materially misleading, as the most important consideration for any reasonable consumer when choosing an energy supplier is price. No reasonable consumer who knows the truth about Kiwi Energy s exorbitant rates would choose Kiwi Energy as a natural gas and/or electricity supplier. 37. In fact, all that Kiwi Energy offers customers is natural gas and/or electricity delivered by local utilities, commodities that have the exact same qualities as natural gas and electricity supplied by other ESCOs or local utilities. There is nothing to differentiate Kiwi Energy from other ESCOs or local utilities, and the potential for a price based on market-related factors is the only reason any reasonable consumer would enter into a contract for natural gas and/or electricity with Kiwi Energy. 38. Kiwi Energy knows full well that it charges a rate that is unconscionably high, and the misrepresentations it makes with regard to the rate being market based were made for the sole purpose of inducing consumers to sign up for Kiwi Energy s natural gas and/or electricity supply so that it can reap outrageous profits to the direct detriment of New York consumers without regard to the consequences high utility bills cause such consumers. As such, Kiwi Energy s actions were actuated by actual malice or accompanied by wanton and willful disregard for consumers well-being. 39. Kiwi Energy s misstatements and omissions caused injury to Plaintiffs because they believed that their rate would be based on market-related factors when switching from RG&E to Kiwi Energy s natural gas and electricity plans. Plaintiffs would not have enrolled in Kiwi Energy s plans but for its false misrepresentations. Had Plaintiffs known that the rates they { } of 24

11 would be charged by Kiwi Energy would be substantially higher than their local utility provider (and not based on market-related factors), they would not have made the decision to switch. 40. Had Kiwi Energy charged Plaintiffs a rate that was actually based on marketrelated factors, Plaintiffs would have been charged a substantially lower rate, and they were injured accordingly when they paid their bill. 41. Defendant s violations of N.Y. G.B.L 349 and N.Y. G.B.L 349-d and the common law are applicable to all members of the Class, and Plaintiffs are entitled to have Defendant enjoined from engaging in illegal and deceptive conduct in the future. CLASS ALLEGATIONS 42. Plaintiffs bring this action pursuant to CPLR 901 on behalf of themselves and all similarly situated Kiwi Energy New York state customers who were charged a variable rate from August 8, 2011 to the present. 43. Subject to additional information obtained through further investigation and discovery, the foregoing definition of the Class may be expanded or narrowed by amendment or complaint. 44. Excluded from the Class are Defendants; any parent, subsidiary, or affiliate of Defendants; any entity in which any Defendant has or had a controlling interest, or which Defendant otherwise control or controlled; and any officer, director, legal representative, predecessor, successor, or assignee of a Defendant. 45. This action is properly maintainable as a class action. As provided in CPLR 901(a)(1), the proposed Class is so numerous that joinder of all members, whether otherwise required or permitted, is impracticable. As provided in CPLR 901(a)(2), there are questions of law or fact common to all Class Members that predominated over any questions affecting only individual members. Specifically, the common questions of fact and law include: { } of 24

12 349-d; i. whether Defendants violated N.Y. G.B.L 349 and N.Y. G.B.L ii. whether Defendants breached Kiwi Energy s contract with New York consumers by charging variable rates not based on market-related factors; iii. whether Defendants breached the covenant of good faith and fair dealing by exercising unilateral price-setting discretion in bad faith, i.e., to price gouge; iv. whether Plaintiffs and the Class have sustained damages and, if so, the proper measure thereof; and v. whether Defendants should be enjoined from continuing to charge variable rates not based on market-related factors. 46. As provided in CPLR 901(a)(3), the proposed lead Plaintiffs claims, one or any one of them, are typical of those of the proposed class because the proposed lead Plaintiffs claims are based upon the same facts and circumstances (practice or course of conduct) that gives rise to the claims of the other class members and based upon the same predominate legal theories. 47. As provided by CPLR 901(a)(a), the representative Plaintiffs can adequately and fairly represent the class. No conflict of interest exists between the representative Plaintiffs and the Class Members because Defendants alleged conduct affected them similarly. 48. Moreover, pursuant to CPLR 901(a)(4), the Plaintiffs and their chosen attorneys are familiar with the subject matter of the lawsuit and have full knowledge of the allegations contained in this complaint so as to be able to assist in its prosecution. In addition, the Plaintiffs attorneys are competent in the areas of law relevant to this Complaint and have sufficient experience and resources to vigorously represent the Class Members and prosecute this action. { } of 24

13 49. As provided by CPLR 901(a)(5), a class action is superior to any other available method for adjudicating this controversy. The proposed class is (i) the surest way to fairly and expeditiously compensate so large a number of injured persons that constitute the Class, (ii) to keep the courts from being inundated by hundreds or thousands of repetitive cases, and (iii) to reduce transactions costs so that the injured class members can obtain the most compensation possible. Accordingly, class treatment presents a superior mechanism for fairly resolving similar issues and claims without repetitious wasteful litigation relevant to this action. CLAIMS FOR RELIEF COUNT I (Violation of N.Y. General Business Law 349) 50. Plaintiffs incorporate by reference the allegations in Paragraphs 1 through 49 as if fully set forth herein, and further allege: 51. The New York General Business Law 349 provides, inter alia: Deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state are hereby declared unlawful. N.Y. Gen. Bus. Law 349(a). 52. The misrepresentations and false, deceptive, and misleading statements of Defendants Kiwi Energy NY LLC, Richmond Road Holdings LLC, and RRH Energy Services LLC with respect to the rates Kiwi Energy charges for natural gas and electricity, as described above, constitute deceptive acts and practices in the conduct of business, trade, or commerce in violation of the New York General Business Law. 53. Defendants failed to inform customers that Kiwi Energy s rates are substantially higher than those based on the market price and rates of natural gas and/or electricity. That { } of 24

14 information would have been material to any consumer deciding whether to purchase natural gas and/or electricity from Defendants. 54. Plaintiffs and the other members of the Class entered into agreements to purchase natural gas and/or electricity from Kiwi Energy for personal, family or household use and suffered ascertainable loss as a direct and proximate result of Kiwi Energy s actions in violation of the New York General Business Law. 55. As a consequence of the wrongful actions of Defendants Kiwi Energy NY LLC, Richmond Road Holdings LLC, and RRH Energy Services LLC, Plaintiffs and the other members of the Class suffered an ascertainable loss of monies based on the difference in the rates they were charged versus the rates they would have been charged had Kiwi Energy charged rates based on the market price and rate of natural gas and/or electricity or had they not switched to Kiwi Energy from their previous utility provider. 56. Plaintiffs and the other members of the Class suffered an ascertainable loss caused by Kiwi Energy s misrepresentations and omissions because they would not have entered into agreements to purchase natural gas and/or electricity from Kiwi Energy if the true facts concerning their rates had been known. 57. By reason of the foregoing, Defendants are liable to Plaintiffs and the other members of the Class for actual damages or $50.00 for each violation, whichever is greater; punitive damages; injunctive relief, attorneys fees, and the costs of this suit. 58. The misconduct of Defendants Kiwi Energy, Richmond Road Holdings LLC, and RRH Energy Services LLC was intentional, wanton, willful, malicious, and in blatant disregard of, or grossly negligent and reckless with respect to, the life, health, safety, and well-being of Plaintiffs and the other members of the Class. Defendants are therefore additionally liable for punitive damages, in an amount to be determined at trial. { } of 24

15 COUNT II (Violation of N.Y. General Business Law 349-d) 59. Plaintiffs incorporate by reference the allegations in Paragraphs 1 through 49 as if fully set forth herein, and further allege: 60. N.Y. G.B.L. 349-d(3) provides that [n]o person who sells or offers for sale any energy services for, or on behalf of, an ESCO shall engage in any deceptive acts or practices in the marketing of energy services. 61. N.Y. G.B.L. 349-d(l0) provides that any person who has been injured by reason of any violation of this section may bring an action in his or her own name to enjoin such unlawful act or practice, an action to recover his or her actual damages or five hundred dollars, whichever is greater, or both such actions. The court may, in its discretion, increase the award of damages to an amount not to exceed three times the actual damages up to ten thousand dollars, if the court finds the defendant willfully or knowingly violated this section. The court may award reasonable attorney's fees to a prevailing plaintiff. 62. Defendants Kiwi Energy NY LLC, Richmond Road Holdings LLC, and RRH Energy Services LLC knowingly and willfully misrepresented to Plaintiffs and the Class that Kiwi s rates are based on market-related factors and reflective of wholesale natural gas and/or electricity costs in the market when their rates are not, in fact, based on market-related factors. Defendants knowingly and willfully fails to inform consumers of the material fact that Kiwi s rates are substantially higher than those otherwise available in the market. 63. Through the conduct described above, Defendants Kiwi Energy, Richmond Road Holdings LLC, and RRH Energy Services LLC have engaged in deceptive acts and practices that resulted in injury to Plaintiffs and the other members of the Class. { } of 24

16 64. By reason of the foregoing, Defendants have violated N.Y. Gen. Bus. Law 349- d, and should be enjoined from continuing to fail to disclose that Kiwi s rates are substantially higher than those otherwise available in the market and misrepresenting that its rates are based on market-related factors. Defendants are also liable to Plaintiffs and the other members of the Class for the damages that they have suffered as a result of Defendants actions, the amount of such damages to be determined at trial but not less than $ for each violation, such damages to be trebled, plus attorneys fees and costs. COUNT III (Breach of Contract) 65. Plaintiffs incorporate by reference the allegations in Paragraphs 1 through 49 as if fully set forth herein, and further allege: 66. Plaintiffs and the Class entered into a valid contract with Defendant Kiwi Energy for the provision of natural gas and/or electricity. 67. Pursuant to the Agreement, Defendants Kiwi Energy NY LLC, Richmond Road Holdings LLC, and RRH Energy Services LLC agreed to charge a variable rate for natural gas and electricity purportedly based on market-related factors. 68. Pursuant to the Agreement, Plaintiffs and the Class paid the variable rates charged by Defendants for natural gas and/or electricity. 69. However, Defendants failed to perform their obligations under the Agreement because Kiwi Energy charged variable rates for natural gas and electricity that were not based on market-related factors. 70. Plaintiffs and the Class were damaged as a result because they were billed, and they paid, a charge for natural gas and/or electricity that was substantially higher than they would have been had Defendants based Kiwi Energy s rates on market-related factors. { } of 24

17 71. By reason of the foregoing, Defendants Kiwi Energy NY LLC, Richmond Road Holdings LLC, and RRH Energy Services LLC are liable to Plaintiffs and the other members of the Class for the damages that they have suffered as a result of Defendants actions, the amount of such damages to be determined at trial, plus attorneys fees. COUNT IV (Breach of Implied Covenant of Good Faith & Fair Dealing) 72. Plaintiffs incorporate by reference the allegations in Paragraphs 1 through 49 as if fully set forth herein, and further allege: 73. Every contract in New York contains an implied covenant of good faith and fair dealing in the performance and enforcement of the contract. The implied covenant is an independent duty and may be breached even if there is no breach of a contract s express terms. 74. Under the contract, Defendants Kiwi Energy NY LLC, Richmond Road Holdings LLC, and RRH Energy Services LLC had unilateral discretion to set the variable rates for natural gas and electricity based on market conditions. 75. Plaintiffs reasonably expected that the variable rates for natural gas and electricity would reflect the market prices for natural gas and electricity and that Defendants would refrain from price gouging. Without these reasonable expectations, Plaintiffs and other Class members would not have agreed to buy natural gas and/or electricity from Defendant Kiwi Energy. 76. Defendants breached the implied covenant of good faith and fair dealing by arbitrarily and unreasonably exercising its unilateral rate-setting discretion to price gouge and frustrate Plaintiffs and other Class members reasonable expectations that the variable rates for natural gas and/or electricity would be based on market-related factors. 77. Defendants acted in bad faith when Kiwi Energy made contractual promises to base its rates on market-related factors knowing full well that its rates were substantially higher { } of 24

18 than rates that are actually based on market-related factors, including rates charged by competitors and customers incumbent utilities. 78. As a result of Defendants breach, Defendants Kiwi Energy NY LLC, Richmond Road Holdings LLC, and RRH Energy Services LLC are liable to Plaintiffs and other Class members for actual damages in an amount to be determined at trial and attorney s fees. COUNT V (Unjust Enrichment) 79. Plaintiffs incorporate by reference the allegations in Paragraphs 1 through 49 as if fully set forth herein, and further allege: 80. By engaging in the conduct described above, Defendants Kiwi Energy NY LLC, Richmond Road Holdings LLC, and RRH Energy Services LLC have unjustly enriched themselves and received a benefit beyond what was contemplated in the contract, at the expense of Plaintiffs and the other members of the Class. 81. It would be unjust and inequitable for Defendants to retain the payments Plaintiffs and the Class made for excessive natural gas and/or electricity charges. 82. By reason of the foregoing, Defendants Kiwi Energy NY LLC, Richmond Road Holdings LLC, and RRH Energy Services LLC are liable to Plaintiffs and the other members of the Class for the damages that they have suffered as a result of Defendants actions, the amount of which shall be determined at trial, plus attorneys fees. { } of 24

19 PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that the Court: (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) Issue an order certifying the Class defined above, appointing the Plaintiffs as Class representatives, and designating their Attorneys as Class Counsel; Find that Defendants Kiwi Energy NY LLC, Richmond Road Holdings LLC, and RRH Energy Services LLC have committed the violations of law alleged herein; Enter an order granting monetary relief and treble damages on behalf of the Class in an amount at least $100,000,000; Determine that Defendants have been unjustly enriched as a result of their wrongful conduct, and enter an appropriate order awarding restitution and monetary damages to the Class; Determine that Defendants breached the contract with the Class and enter an appropriate order awarding monetary and injunctive relief; Enter an order granting all appropriate relief on behalf of the Class under the applicable state laws; Render an award of compensatory damages, the amount of which is to be determined at trial; Render an award of punitive damages; Enter judgment including interest, costs, reasonable attorneys fees, costs, and expenses; and Grant all such other relief as the Court deems appropriate. JURY TRIAL DEMAND Plaintiffs hereby demand a jury trial on all issues so triable. { } of 24

20 Dated: August 8, 2017 Respectfully Submitted: By: /s/ Jonathan Shub Jonathan Shub Kevin Laukaitis* Harper Segui* KOHN, SWIFT & GRAF, P.C. One South Broad Street, Suite 2100 Philadelphia, Pennsylvania Tel: (215) Fax: (215) Steven L. Wittels J. Burkett McInturff Tiasha Palikovic WITTELS LAW, P.C. 18 Half Mile Road Armonk, New York Telephone: (914) Facsimile: (914) Nick Suciu III* BARBAT, MANSOUR & SUCIU PLLC 1644 Bracken Road Bloomfield Hills, Michigan Tel: (313) * Pro Hac Vice Forthcoming Attorneys for Plaintiffs and the Class { } of 24

21 VERIFICATION Steven L. Wittels, an attorney duly admitted to practice before the Courts of this State affirms under penalty of perjury and pursuant to CPLR 2106 that the following facts are true I am counsel for Plaintiffs Duane and Kerry Austin in the above-entitled action. I have read the foregoing Complaint and know the contents thereof. The same are true to my knowledge, except as to matters therein stated to be alleged on information and belief and as to those matter, I believe them to be true. The grounds for my belief as to all matters not stated upon my own knowledge are as follows: these matters were made known to the undersigned from the Plaintiffs and from documents reviewed. The reason this verification is made by the undersigned and not the Plaintiffs is that Plaintiffs reside outside the County where counsel maintains our office. Dated: August 8, 2017 Armonk, New York By: /s/ Steven L. Wittels Steven L. Wittels { } of 24