Case 2:14-cv ER Document 81 Filed 10/17/17 Page 1 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

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1 Case 2:14-cv ER Document 81 Filed 10/17/17 Page 1 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA AMY SILVIS, on behalf of herself and all others similarly situated, Plaintiff, No. 2:14-CV ER CLASS ACTION vs. AMBIT NORTHEAST, LLC Defendant. PLAINTIFF S UNOPPOSED AMENDED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT Pursuant to Rule 23 of the Federal Rules of Civil Procedure, Plaintiff Amy Silvis now moves the Court to enter an order preliminarily approving the Class Action Settlement reached by the parties to resolve the claims of Plaintiff and the proposed Settlement Class. In support of this motion, Plaintiff relies upon the accompanying Memorandum of Law in Support of Unopposed Motion for Preliminary Approval of Class Action Settlement and the Declaration of Jonathan Shub in Support of Plaintiff s Unopposed Motion for Preliminary Approval of Class Action Settlement which presents the Class Action Settlement with all supporting documentation. Plaintiff respectfully requests that the Court enter an order: 1. finding that the proposed settlement is sufficiently fair, reasonable and adequate to allow dissemination of notice of the settlement to the proposed Settlement Class;

2 Case 2:14-cv ER Document 81 Filed 10/17/17 Page 2 of 3 2. appointing Class Counsel for the Settlement Class; 3. establishing dates for a hearing on final approval of the proposed settlement and Class Counsel s request for expenses; 4. approving the form of class notice; 5. approving the notice plan and directing that notice be made available and published; 6. establishing a deadline for filing papers in support of final approval of the proposed settlement and a request for expenses; 7. establishing a deadline for the filing of objections by Settlement Class members; and 8. establishing a deadline for Settlement Class members to exclude themselves from the proposed Settlement Class with respect to the settlement. Respectfully submitted this 17th day of October, Date: October 17, 2017 Respectfully Submitted By: KOHN SWIFT & GRAF, P.C. /s/ Jonathan Shub Jonathan Shub Kevin Laukaitis One South Broad Street, Suite 2100 Philadelphia, PA Phone: (215) Fax: (215) jshub@kohnswift.com klaukaitis@kohnswift.com and Troy M. Frederick, Esquire Marcus & Mack, P.C. 57 South Sixth Street Indiana, PA Phone: (724) Fax: (724) Tfrederick@marcusandmack.com Attorneys for Plaintiff and The Class

3 Case 2:14-cv ER Document 81 Filed 10/17/17 Page 3 of 3 CERTIFICATE OF SERVICE I HEREBY CERTIFY that the forgoing PLAINTIFF S UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT was served via the Court s ECF system upon all counsel of record on October 17, /s/ Jonathan Shub JONATHAN SHUB

4 Case 2:14-cv ER Document 81-1 Filed 10/17/17 Page 1 of 24 BIN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA AMY SILVIS, on behalf of herself and all others similarly situated, No. 2:14-CV ER vs. Plaintiff, CLASS ACTION AMBIT NORTHEAST, LLC, Defendant. AMENDED MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF S UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT { }

5 Case 2:14-cv ER Document 81-1 Filed 10/17/17 Page 2 of 24 TABLE OF CONTENTS I. Introduction and Background... 1 II. Settlement Terms... 3 III. Proposed Timetable... 5 IV. Conditional Certification of the Settlement Class for Purposes of Disseminating Notice is Appropriate... 5 V. The Settlement Should be Preliminarily Approved A. The Settlement Should Be Preliminarily Approved B. The Proposed Notice Program Satisfies Rule 23 and Due Process and Should Be Approved The Proposed Notice Program is Adequate The Form and Content of the Class Notice is Adequate The Proposed Claim Form is Adequate VI. Plaintiff s Counsel Should Be Appointed As Class Counsel VII. Conclusion i

6 Case 2:14-cv ER Document 81-1 Filed 10/17/17 Page 3 of 24 TABLE OF AUTHORITIES CASES PAGE(S) Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997)...5, 6, 11 Baby Neal, et al. v. Robert P. Casey, et al., 43 F.3d (3rd Cir. 1994)...8, 10 Carlough v. Amchem Products, Inc., 158 F.R.D. 314 (E.D. Pa. 1993)...15 Cumberland Farms, Inc. v. Browning Ferris Ind., 120 F.R.D. 642 (E.D. Pa. 1988)...7, 8 Curiale v. Lenox Grp., Inc., 2008 WL (E.D. Pa. Nov. 14, 2008)...13 Fisher v. Virginia Elec. and Power Co., 217 F.R.D. 201 (E.D. Va. 2003)...10 Gates v. Rohm and Haas Co., 248 F.R.D 434 (E.D. Pa. 2008)...6, 12, 13, 14 Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147 (1982)...6 Georgine v. Amchem Prods., Inc., 83 F.3d 610 (3d Cir. 1996)...12 In re Auto. Refinishing Paint Antitrust Litig., MDL No. 1426, 2004 WL (E.D. Pa. May 11, 2004)...13 In re Automotive Refinishing Paint Antitrust Litig., 2003 WL (E.D. Pa. Sept. 5, 2003)...14 In re Certainteed Corp. Roofing Shingle Prods. Liab. Litig., 269 F.R.D. 468 (E.D. Pa. 2010)...6 In re Community Bank of Northern Virginia, 418 F.3d 277 (3d Cir. 2005)...12 In re Ehrheart v. Verizon Wireless, 609 F.3d 590 (3d Cir. 2010)...13 { } ii

7 Case 2:14-cv ER Document 81-1 Filed 10/17/17 Page 4 of 24 In re Flat Glass Antitrust Litig., 191 F.R.D. 472 (W.D. Pa. 1999)...7, 8 In re General Motors Corp. Pick-up Fuel Tank Litig., 55 F.3d 768 (3d Cir. 1995)...5, 12 In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305 (3d Cir. 2008)...6 In re Linerboard Antitrust Litig., 292 F. Supp. 2d 631 (E.D. Pa. 2003)...14 In re Mercedes-Benz Antitrust Litig., 213 F.R.D. 180 (D.N.J. 2003)...11 In re National Football League Players Concussion Injury Litig., 301 F.R.D. 191 (E.D. Pa. 2014)...12 In re Prudential Ins. Co. American Sales Litigation, 148 F.3d 283 (3d Cir. 1998)...9, 10 In re Prudential Insurance Co. of America Sales Practices Litig., 177 F.R.D. 216 (D.N.J. 1997)...15 In re School Asbestos LItig., 104 F.R.D. 422 (E.D. Pa. 1984) aff d in part and rev d in part sub nom. In re School Asbestos Litig, 789 F.2d 996 (3d Cir. 1986)...8 In re Warfarin Sodium Antitrust Litig., 212 F.R.D. 231 (D. Del. 2002)...12 In re Warfarin Sodium Antitrust Litig., 391 F.3d 516 (3d Cir. 2004)...10 Jones v. Commerce Bancorp, Inc., 2007 WL (D.N.J. July 16, 2007)...14 Klingensmith v. BP Products North America, Inc., 2008 WL (W.D. Pa. Sept. 24, 2008)...12 Lake v. First Nationwide Bank, 156 F.R.D. 615 (E.D. Pa. 1994)...14 Mehling v. New York Life Ins. Co., 246 F.R.D. 467 (E.D. Pa. 2007)...14 Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306 (1950)...15 { } iii

8 Case 2:14-cv ER Document 81-1 Filed 10/17/17 Page 5 of 24 O Keefe v. Mercedes Benz USA, LLC, 214 F.R.D. 266 (E.D. Pa. 2003)...10 Petruzzi s, Inc. v. Darling-Delaware Co., 880 F. Supp. 292 (M.D. Pa. 1995)...14 Philadelphia Elec. Co. v. Anaconda Am. Brass Co., 43 F.R.D. 452 (E.D. Pa. 1968)...7 Rodriguez v. McKinney, 156 F.R.D. 118 (E.D. Pa. 1994)...10 Sala v. National Railroad Passenger Corp., 120 F.R.D. 494 (E.D. Pa. 1988)...10 Seidman v. American Mobile Sys., Inc., 157 F.R.D. 354 (E.D. Pa. 1994)...7, 8, 9 Stewart v. Abraham, 275 F.3d 220 (3d Cir. 2001)...7 Wal Mart Stores, Inc. v. Dukes, 131 S.Ct (2011)...6, 7 Wolgin v. Magic Marker Corp., 82 F.R.D. 168,171 (E.D. Pa. 1979)...7 RULES Fed. R. Civ. P. 23 et. seq... passim { } iv

9 Case 2:14-cv ER Document 81-1 Filed 10/17/17 Page 6 of 24 This brief is submitted in support of preliminary approval of a class action settlement between Plaintiff Amy Silvis ( Plaintiff ) and Defendant Ambit Northeast, LLC ( Defendant ), on behalf of herself and a proposed Settlement Class. As detailed below, this settlement satisfies Fed. R. Civ. P. 23 and is fair, reasonable, and adequate. Consequently, Plaintiff respectfully requests that preliminary approval be granted. I. Introduction and Background This putative class action lawsuit arises from allegations that the electric energy supply activities of the Defendant constitutes breach of contract. Defendant denies these allegations. Plaintiff, Amy Silvis, on behalf of herself and the Settlement Class has entered into a Settlement Agreement with Defendant. Plaintiff and Defendant executed a Settlement Agreement on October 4, 2017 after months of negotiations conducted by Plaintiff s counsel and Defendant s counsel and over two years of active litigation. A copy of the Settlement Agreement (and all supporting exhibits) is attached hereto as Exhibit A-1. The negotiations, conducted by experienced and able counsel, were lengthy, vigorous, and at all times conducted at arms-length. As of the execution date of the Settlement Agreement, Plaintiff has conducted substantial discovery. Therefore, she has sufficient information to be able to weigh the strengths and weaknesses of her case and to conclude that a settlement on the terms set forth below is in the best interests of the proposed Settlement Class Members. The Settlement Agreement resolves all the claims asserted in this case and confers substantial benefits on the Settlement Class, defined as: All persons in the Commonwealth of { } 1

10 Case 2:14-cv ER Document 81-1 Filed 10/17/17 Page 7 of 24 Pennsylvania who were enrolled as a customer of Defendant and were on Defendant s Select Variable Plan at any time during the Class Period. 1 Plaintiff now moves the Court to enter a Preliminary Approval Order that will: (1) preliminarily approve the Class Action Settlement and finding that its terms are sufficiently fair, reasonable, and adequate for notice to be issued to the Settlement Class as defined in the Settlement Agreement and pursuant to Federal Rule of Civil Procedure 23(e); (2) conditionally certify the proposed class described in the Settlement Agreement (the Settlement Class ) for purposes of the settlement only pursuant to Federal Rule of Civil Procedure 23(c); (3) conditionally appoint Plaintiff and her counsel, Jonathan Shub of Kohn, Swift & Graf, P.C. and Troy M. Frederick of Marcus & Mack, P.C., as Representative of the Settlement Class and Class Counsel for the Settlement Class, respectively, and authorize each to represent the Settlement Class; (4) approve and direct the form and content and manner of service of the Settlement Notice to be sent to the Settlement Class and published pursuant to the terms of the proposed notice plan; (5) find that such notice constitutes the best notice practicable under the circumstances; (6) approve Angeion Group as Settlement Administrator; (7) schedule dates by which the parties and Settlement Class members are to comply with their requirements and obligations as more fully described in the proposed Order filed concurrently herewith; and (8) set a hearing date for the final approval of the proposed settlement no later than one hundred twenty 1 See Settlement Agreement at Section II.A.20. Class Period is defined as January 1, 2011 through the Preliminary Approval Date. Id. at Section II.A.5. Excluded from the Settlement Class are: Defendant, any entities in which they have a controlling interest, any of their parents, subsidiaries, affiliates, officers, directors, employees and members of such person s immediate family and the presiding judge(s) in this case and their immediate family, and any person who has previously released claims against the Defendant including, but not limited to persons who released claims against the Defendant pursuant to the settlement of any PUC Action or complaint. Class Period means any time up to and including the date of execution of the Settlement Agreement. { } 2

11 Case 2:14-cv ER Document 81-1 Filed 10/17/17 Page 8 of 24 (120) days after granting this motion, at which the award of attorneys fees and costs also may be considered. Plaintiff submits that the proposed settlement satisfies the required standards for preliminary approval, and respectfully requests that the Court preliminary approve the settlement, conditionally certify the Settlement Class, and authorize dissemination of notice pursuant to Rule 23(e) of the Federal Rules of Civil Procedure. II. Settlement Terms Defendant has agreed to a settlement structure which provides the following benefits to Settlement Class Members who submit valid and timely Claim Forms and who have not previously released claims against Defendant including, but not limited to, persons who released claims against Defendant pursuant to any settlement of a PUC Action or complaint: 1. Each Class Members with a date of enrollment as Defendant s Customer from January 1, 2011, through January 12, 2014, and who was on Defendant s Select Variable Plan at any time, will receive a check in the amount of 15% of all amounts paid to Defendant by the Class Member only for the Time Periods during which such Settling Class Members were on the Select Variable Plan. 2. Each Class Member with a date of enrollment as Defendant s Customer from January 13, 2014, through the date of Preliminary Approval, and who was on Defendant s Select Variable Plan at any time, will receive a check in the amount of 2% of all amounts paid to Defendant by the Class Member only for the Time Periods during which such Class Member was on the Select Variable Plan. 2 2 A limited number of members of the Settlement Class with dates of enrollment as Defendant s customer from January 13, 2014, through the Preliminary Approval Date did not receive an updated Disclosure Statement from Defendant prior to becoming enrolled on Defendant s Select Variable Plan. These members of the Settlement Class, if they are Eligible Class Members, will be treated as if they had { } 3

12 Case 2:14-cv ER Document 81-1 Filed 10/17/17 Page 9 of 24 Defendant has also agreed that, subject to the Court s final approval, Plaintiff may seek a service award in recognition of the amount of time and effort expended in acting as Representative of the Settlement Class. Defendant agreed not to oppose the payment of an amount not to exceed five thousand dollars ($5,000) to Plaintiff. Defendant also agreed that, subject to the court s final approval, Class Counsel will be entitled to seek an award of attorneys fees and costs of up to one million four hundred and fifty thousand dollars ($1,450,000.00). The award will be paid by Defendant and is separate from and in addition to the payment of the Settlement amounts available to the eligible members of the Settlement Class. Additionally, separate and apart from paying the sums described above, Defendant has agreed to pay the costs of notice to the Settlement Class and the cost of settlement and claims administration. The Settlement also provides that there will be a general and broad release of all claims by Settlement Class members against Defendant and all of its current and former parents, subsidiaries, affiliates, predecessors, successors, and assigns, and each of their respective, current, and former officers, directors, partners, owners, employees, agents, attorneys, and insurers. The Released Claims are further described in Sections II.A.15, II.A.16, and II.J of the Settlement Agreement. enrolled as Defendant s customer on or before January 12, 2014, for purposes of determining the amount of the check they will receive in the Settlement. Defendant will provide a list of these members of the Settlement Class, identified by customer number, to Plaintiff s counsel and to the Settlement Administrator within thirty (30) days of the Preliminary Approval Date. { } 4

13 Case 2:14-cv ER Document 81-1 Filed 10/17/17 Page 10 of 24 III. Proposed Timetable The Settlement Agreement and the proposed Preliminary Approval Order set forth an orderly procedure and timetable for disseminating notice to the Settlement Class and for final approval: (1) Settlement Notice shall be disseminated by first-class mail and also by , where an address is available, within twenty-one (21) days after the Preliminary Approval Date. (2) Summary Notice to be published within ten (10) days after the Preliminary Approval Date; (3) No later than twenty-one (21) days prior to the Final Approval Hearing, the Settlement Administrator and Defendant shall certify to the Court compliance with the notice provisions pursuant to the Settlement Agreement; (4) Any requests for exclusion from the Settlement Class must be postmarked no later than seventy-five (75) days after the Preliminary Approval Date; (5) Plaintiff s motion for final approval of the settlement to be filed no later twentyone (21) days prior to the Final Approval Hearing; (6) Plaintiff s motion for attorneys fees, expenses, and service awards to be filed within sixty (60) days after the entry of the Preliminary Approval Order; (7) Any objections to the settlement or to the request for expenses must be filed with the Court and served on Class Counsel and counsel for Defendant no later than seventy-five (75) days after the entry of the Preliminary Approval Order; and (8) The parties to the proposed settlement respectfully request that the final fairness hearing be scheduled on or after one hundred twenty (120) days from the entry of the Preliminary Approval Order. IV. Conditional Certification of the Settlement Class for Purposes of Disseminating Notice is Appropriate At this juncture, Plaintiff is only seeking preliminary approval of the settlement, conditional certification of the Settlement Class, and authorization from the Court to send notice of the Settlement to the Settlement Class members. Plaintiff will later seek final approval of the settlement and the Settlement Class after notice and the opportunity for the members of the { } 5

14 Case 2:14-cv ER Document 81-1 Filed 10/17/17 Page 11 of 24 Settlement Class to opt-out or present their views of the Settlement. As with the preliminary approval of the settlement, Plaintiff will address the factors for final certification of the Settlement Class for purposes of the settlement with the Defendant in her final approval papers. As a general matter, an action may be certified for class treatment for settlement purposes only. See, e.g., Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997); In re General Motors Corp. Pick-up Fuel Tank Litig., 55 F.3d 768, (3d Cir. 1995). The Court first approves preliminary certification of the class. In re Certainteed Corp. Roofing Shingle Prods. Liab. Litig., 269 F.R.D. 468, 476 (E.D. Pa. 2010); Gates v. Rohm and Haas Co., 248 F.R.D 434, 439 (E.D. Pa. 2008). Final certification of the settlement class is determined by the court at the same time as the court rules on final approval of the settlement class. In re Certainteed, 269 F.R.D. at 476; Gates, 248 F.R.D. at 439. A proposed settlement class must satisfy the requirements of Federal Rule of Civil Procedure 23(a), that is, that (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a), see also Amchem, 521 U.S. at 620 (requiring proponents of class certification to demonstrate that all of the Rule 23(a) requirements are met). Additionally, the proposed class must satisfy at least one of the three requirements listed in Rule 23(b). Wal Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2548 (2011). Under Rule 23(b)(3), a class action may be maintained if the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. Fed R. Civ. P. 23(b)(3). A { } 6

15 Case 2:14-cv ER Document 81-1 Filed 10/17/17 Page 12 of 24 party seeking class certification must affirmatively demonstrate his compliance with Rule 23. Dukes, 131 S.Ct. at Class certification is proper only if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23 are met. In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 309 (3d Cir. 2008) (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982)). The first requirement for maintaining a class action under Rule 23(a) is that the proposed class be so numerous that joinder of all members is impracticable. Fed. R. Civ. P. 23(a)(1). This requirement does not necessitate a showing that joinder is impossible, but only that joining all class members would be impracticable, i.e., difficult or inconvenient. See In re Flat Glass Antitrust Litig., 191 F.R.D. 472, 477 (W.D. Pa. 1999)( Flat Glass ). [T]here is no magic minimum number necessary to satisfy the... numerosity requirement. Seidman v. American Mobile Sys., Inc., 157 F.R.D. 354, 359 (E.D. Pa. 1994). When considering the number of class members necessary to satisfy the numerosity requirement, this court has recognized that classes as small as 25 may prove sufficient. Philadelphia Elec. Co. v. Anaconda Am. Brass Co., 43 F.R.D. 452, 463 (E.D. Pa. 1968); see also Stewart v. Abraham, 275 F.3d 220, 266 (3d Cir. 2001) (a class with more than 40 will satisfy the numerosity requirement). In addition, when considering the numerosity of the class, [i]t is proper for the court to accept common sense assumptions in order to support a finding of numerosity. Cumberland Farms, Inc. v. Browning Ferris Ind., 120 F.R.D. 642, 645 (E.D. Pa. 1988) (quoting Wolgin v. Magic Marker Corp., 82 F.R.D. 168,171 (E.D. Pa. 1979)). As the Settlement Class includes Defendant s current and former customers, which Defendant s records indicate could be in excess of 70,000 accounts, it is estimated to far exceed 40 members, rendering joinder impracticable. Thus, the numerosity requirement is satisfied. { } 7

16 Case 2:14-cv ER Document 81-1 Filed 10/17/17 Page 13 of 24 The second requirement of Rule 23(a), commonality focuses on whether there exists questions of law or fact common to the class. Questions are common to the class if class members claims depend upon a common contention that is of such a nature that it is capable of class wide resolution which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. Dukes, 131 S. Ct. at The Third Circuit has a very low threshold for commonality. See e.g., Flat Glass, 191 F.R.D. at 478; In re School Asbestos LItig., 104 F.R.D. 422, 429 (E.D. Pa. 1984) aff d in part and rev d in part sub nom. In re School Asbestos Litig, 789 F.2d 996 (3d Cir. 1986). A common question is one that arises from a common nucleus of operative facts regardless of whether the underlying facts fluctuate over the class period and vary as to individual claimants. Id. In particular, the commonality requirement may be satisfied by a single common issue. Baby Neal, et al. v. Robert P. Casey, et al., 43 F.3d, 48, 56 (3rd Cir. 1994). The threshold of commonality is not high. School Asbestos Litig., 789 F.2d at Here, there are many common issues of fact and law, to wit, whether Defendant breached the price terms in its agreements with Plaintiff and the Settlement Class by utilizing factors not contained in said agreements to set its prices. As a result of Defendant s alleged inability or unwillingness to provide Plaintiff with the savings it contracted/promised to provide, Plaintiff and the Settlement Class members all allegedly incurred significant overcharges for electricity. Rule 23(a)(3) requires that the Representative Plaintiff s claims or defenses be typical of the claims or defenses of the class. Rule 23(a)(3) requires that the claims of the representative parties be typical of the claims of the class. The typicality requirement is a safeguard against interclass conflicts, ensuring that the named Plaintiff s interests are more or less coextensive with those of the class. Cumberland Farms, 120 F.R.D. at 646 (E.D. Pa. 1988). The threshold for { } 8

17 Case 2:14-cv ER Document 81-1 Filed 10/17/17 Page 14 of 24 establishing typicality is low, and Rule 23(a)(3) will be satisfied as long as the factual or legal position of the named Plaintiff is not markedly different from that of the other members of the class. Seidman, 157 F.R.D. at 360 (internal quotations and citations omitted). Typicality is not identical, and atypical elements of a claim may be adequately treated by using subclasses. Id. (citations omitted). In fact, even relatively pronounced factual differences will generally not preclude a finding of typicality where there is a strong similarity of legal theories or where the claim arises from the same practice or course of conduct. In re Prudential Ins. Co. American Sales Litigation, 148 F.3d 283, 311 (3d Cir. 1998). Here, the claims of the Plaintiff and the members of the Settlement Class arise from the same conduct. Defendant s Disclosure Statement provides specific factors that Defendant is required to rely upon in setting its rates. Dkt. 16 at 18, First Amended Complaint ( FAC ). Plaintiff alleged that Defendant s rates (after the initial teaser rate) are not competitive with other suppliers and are not based on the factors outlined in the Disclosure Statement. Id. 18 & 20. There are no unique facts or circumstances that would render Plaintiff as atypical. This same alleged conduct caused the same alleged injury to members of the Settlement Class. The final requirement, adequacy, requires that a representative party must fairly and adequately protect the interests of the class. Adequate representation depends on two factors: (a) the Plaintiff s attorneys must be qualified, experienced and generally able to conduct the proposed litigation; and (b) the Plaintiff must not have interests antagonistic to those of the class. Seidman, 157 F.R.D. at 365. As to the first factor, Plaintiff is represented by counsel that is highly experienced and skilled in matters relevant to this litigation. Mr. Jonathan Shub and his firm, Kohn, Swift & Graf, P.C. possess substantial experience in class actions and other complex litigation, including { } 9

18 Case 2:14-cv ER Document 81-1 Filed 10/17/17 Page 15 of 24 consumer fraud and consumer protection class actions, such as this. Mr. Troy M. Frederick of Marcus & Mack, P.C. is an experienced attorney who regularly represents consumers, including those with claims against energy providers, like Defendant. Mr. Frederick has participated in multiple class actions and other complex litigation, including consumer fraud and consumer protection class actions, such as this. As to the second factor, Plaintiff and each member of the Settlement Class have similar interests in seeing liability established and damages levied against Defendant. No conflicts of interest exist. Having satisfied the four prerequisites of Rule 23(a), Plaintiff need only show that the requirements of one subsection of Rule 23(b) have been met for the claims to be certified for class-wide treatment. See Baby Neal, 43 F.3d at 55. Plaintiff seeks certification under Rule 23(b)(3), which requires a showing of predominance and superiority. Sala v. National Railroad Passenger Corp., 120 F.R.D. 494, 498 (E.D. Pa. 1988). This rule requires only a predominance of common questions, not a unanimity of them. Rodriguez v. McKinney, 156 F.R.D. 118, 119 (E.D. Pa. 1994). As long as the claims of the class members are not in conflict with each other, class members need not be identically situated and may have individualized issues. See O Keefe v. Mercedes Benz USA, LLC, 214 F.R.D. 266, 290 (E.D. Pa. 2003). The question is whether the class cohesive enough to warranty adjudication by representation. Fisher v. Virginia Elec. and Power Co., 217 F.R.D. 201, 203 (E.D. Va. 2003). Here, Defendant s liability turns on whether Defendant breached the price term in its agreement with its customers by failing to abide by the factors set forth therein when setting its rates. Moreover, determining whether Settlement Class members were injured will turn on common { } 10

19 Case 2:14-cv ER Document 81-1 Filed 10/17/17 Page 16 of 24 proof regarding the extent to which Defendant s rates are higher than competitive rates otherwise available in the market. The superiority requirement asks the court to balance, in terms of fairness and efficiency, the merits of the class action against those of alternative available methods of adjudication. Prudential, 148 F.3d at 316; In re Warfarin Sodium Antitrust Litig., 391 F.3d 516 (3d Cir. 2004). Rule 23(b)(3) lists the following factors to guide the superiority inquiry: the class members interests in individually controlling the prosecution or defense of separate actions; the extent and nature of any litigation concerning the controversy already begun by or against class members; the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and the likely difficulties in managing a class action. Fed R. Civ. P. 23(b)(3). With respect to both requirements, the Court need not inquire whether the case, if tried, would present intractable management problems, for the proposal is that there be no trial. Amchem Prods., Inc., 521 U.S. at 620 (citation omitted). Plaintiff addresses each of the other factors in turn. The interest of individual class members in controlling the litigation. It is in the interest of individual class members to proceed with this litigation as a class action. Individual prosecution of these claims is impractical the cost of litigating a single case would exceed the potential return. Indeed, the size of each claimant's alleged loss is undoubtedly too small to be economically litigated at all outside of a class action. In re Mercedes-Benz Antitrust Litig., 213 F.R.D. 180, 191 (D.N.J. 2003). The extent and nature of litigation already commenced by the class. Plaintiff is not aware of other pending litigation in Pennsylvania seeking relief for the same wrongdoing as is asserted in this proposed class action. { } 11

20 Case 2:14-cv ER Document 81-1 Filed 10/17/17 Page 17 of 24 The desirability of concentrating the litigation in a given forum. This factor supports certification. Concentrating the litigation in a single forum will allow the litigation to proceed in an efficient manner without the risk of inconsistent outcomes. The case is manageable as a class action. Given the overwhelming predominance of the core issues in this case, the major features are easily managed. Class treatment is far superior to any alternative available method of adjudication. Ultimately, the superiority requirement asks a district court to balance, in terms of fairness and efficiency, the merits of a class action against those of alternative available methods' of adjudication. In re Community Bank of Northern Virginia, 418 F.3d 277, 309 (3d Cir. 2005) (quoting Georgine v. Amchem Prods., Inc., 83 F.3d 610, 632 (3d Cir. 1996)). Class treatment is clearly superior to the only available alternative here, an absence of justice for the class members who simply believed they would be charged less than they actually were for Defendant s energy service. V. The Settlement Should be Preliminarily Approved Review of a proposed class action settlement is a two-step process. The first step involves preliminary approval of the settlement and the successive procedural steps, such as notice, the claim form, and the schedule for a final fairness hearing. See Manual For Complex Litigation (Fourth) (2004); see also Klingensmith v. BP Products North America, Inc., 2008 WL , at *5 (W.D. Pa. Sept. 24, 2008); In re Warfarin Sodium Antitrust Litig., 212 F.R.D. 231, 254 (D. Del. 2002). At the preliminary approval stage, a settlement is presumed to be fair when the negotiations were at arm s length, there was sufficient discovery, and the proponents of the settlement are experienced in similar litigation. See In re GMC Pick Up Truck Fuel Tank Prods. Liability Litig., 55 F.3d 768, 785 (3d Cir. 1995); Gates, 248 F.R.D. at 444. At step two, after notice to the class and an opportunity for class members to object to the proposed { } 12

21 Case 2:14-cv ER Document 81-1 Filed 10/17/17 Page 18 of 24 settlement or otherwise be heard, the Court determines whether the settlement is fair, reasonable and adequate and whether the settlement should be finally approved under Federal Rule of Civil Procedure 23(e). In re National Football League Players Concussion Injury Litig., 301 F.R.D. 191, 197 (E.D. Pa. 2014). A. The Settlement Should Be Preliminarily Approved The Court should be mindful of the strong presumption in favor of voluntary settlement agreements, which lighten the increasing load of litigation faced by the federal courts and allow the parties to gain significantly from avoiding the costs and risks of a lengthy and complex trial. In re Ehrheart v. Verizon Wireless, 609 F.3d 590, (3d Cir. 2010). This presumption is especially strong in class actions and other complex cases where substantial judicial resources can be conserved by avoiding formal litigation. Id. at 595 (internal citation omitted). Preliminary approval analysis often focuses on whether the settlement is the product of arms-length negotiations. Curiale v. Lenox Grp., Inc., 2008 WL , at *4 (E.D. Pa. Nov. 14, 2008) (citation omitted); see also In re Auto. Refinishing Paint Antitrust Litig., MDL No. 1426, 2004 WL , at *2 (E.D. Pa. May 11, 2004) (granting preliminary approval of settlement reached after extensive arms-length negotiation between very experienced and competent counsel ); Gates, 248 F.R.D. at 444 (preliminarily approving settlement where there was nothing to indicate that the proposed settlement... [was] not the result of good faith, armslength negotiations between adversaries ). Here, the parties engaged in ample discovery, including the production and review of tens of thousands of pages, before engaging in strongly contested, arms-length negotiations. On July 19, 2017, the Parties participated in a full day mediation at JAMS in Philadelphia, PA conducted by the Honorable Diane Welsh (Ret.) where the Parties ultimately reached an agreement on the settlement of the claims of the Named { } 13

22 Case 2:14-cv ER Document 81-1 Filed 10/17/17 Page 19 of 24 Plaintiff and the putative class. See Wal-Mart Stores, 396 F.3d at 116 (quoting Manual for Complex Litigation (Third) (1995)) ( A presumption of fairness, adequacy, and reasonableness may attach to a class settlement reached in arm s-length negotiations between experienced, capable counsel after meaningful discovery. ) (internal quotations marks omitted). Such value to the class reflects the extensive litigation, including comprehensive discovery, which preceded the settlement and informed the parties settlement. The attorneys representing the Settlement Class are experienced litigators in class actions, and they believe that this settlement provides significant benefits to the Settlement Class, avoids the risk and delays associated with continued litigation, and is in the best interest of the Settlement Class. At the preliminary approval stage, the Court is required to determine only whether the proposed settlement discloses grounds to doubt its fairness or other obvious deficiencies such as unduly preferential treatment of class representatives or segments of the class, or excessive compensation of attorneys, and whether it appears to fall within the range of possible approval. Mehling v. New York Life Ins. Co., 246 F.R.D. 467, 472 (E.D. Pa. 2007). Preliminary approval is granted unless a proposed settlement is obviously deficient. Jones v. Commerce Bancorp, Inc., 2007 WL , at *2 (D.N.J. July 16, 2007); accord Gates, at 438. Here, there are neither grounds to doubt the fairness of the settlement, nor any obvious deficiencies. Settlements proposed by experienced counsel and which result from arms-length negotiations are entitled to deference from the court. See In re Automotive Refinishing Paint Antitrust Litig., 2003 WL , at *6 (E.D. Pa. Sept. 5, 2003); see also In re Linerboard Antitrust Litig., 292 F. Supp. 2d 631, 640 (E.D. Pa. 2003) ( A presumption of correctness is said to attach to a class settlement reached in arms-length negotiations between experienced, capable counsel after meaningful discovery. ); Petruzzi s, Inc. v. Darling-Delaware Co., 880 F. Supp. { } 14

23 Case 2:14-cv ER Document 81-1 Filed 10/17/17 Page 20 of , 301 (M.D. Pa. 1995) ( [t]he opinions and recommendation of such experienced counsel are indeed entitled to considerable weight. ); Lake v. First Nationwide Bank, 156 F.R.D. 615, 628 (E.D. Pa. 1994) (giving due regard to the recommendations of the experienced counsel in this case, who have negotiated this settlement at arms-length and in good faith. ). The initial presumption in favor of such settlements reflects courts understanding that vigorous negotiations between seasoned counsel protects against collusion and advances the fairness concerns of Rule 23(e). This settlement falls within the range of reasonableness, and there is a conceivable basis for presuming that the standard applied for final approval fairness, adequacy, and reasonableness will be satisfied. B. The Proposed Notice Program Satisfies Rule 23 and Due Process and Should Be Approved 1. The Proposed Notice Program is Adequate As the Supreme Court explained in Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306 (1950): An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections... The notice must be of such nature as reasonably to convey the required information, and it must afford a reasonable time for those interested to make their appearance. Id. at 314. The notice provisions in the Settlement Agreement ( Notice Program ) in this case, described below, meet this standard. Under Rule 23(c)(2)(B), the court must direct to class members the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. What constitutes reasonable effort as well as what { } 15

24 Case 2:14-cv ER Document 81-1 Filed 10/17/17 Page 21 of 24 constitutes the best notice practicable under the circumstances depends upon the individual facts in the case. See In re Prudential Insurance Co. of America Sales Practices Litig., 177 F.R.D. 216, 232 (D.N.J. 1997) (quoting Carlough v. Amchem Products, Inc., 158 F.R.D. 314, 325 (E.D. Pa. 1993) ( In all cases the Court should strike an appropriate balance between protecting class members and making Rule 23 workable ). The Settlement Administrator, Angeion Group, will be responsible for the notice and claims process and bring to the task well-established experts and credentials. See Affidavit of Steven Weisbrot, attached hereto as Exhibit A-4. Here, Defendant has class members names, last known addresses, and (in some instances) addresses, and Defendant has agreed to provide that information to the Settlement Administrator, who will send direct written notice (the Long Form Notice ) to each class member, attached hereto as Exhibit A-2. The Long Form Notice will be sent by first-claim mail and also by , where an address is available. The Long Form Notice also directs class members to an internet website where they can find further information. The Long Form Notice also includes a phone number for class members for further information. Additional notice will be provided by publishing a summary notice of the Settlement and the Fairness Hearing to be published once in each of the following publications: Philadelphia Inquirer, Pittsburgh Post-Gazette, Harrisburg Patriot News, Allentown Morning Call, and Erie Times-News. That notice is attached hereto as Exhibit A The Form and Content of the Class Notice is Adequate The form of the class notice is governed by Rule 23(c)(2), which provides that [t]he notice must clearly and concisely state in plain, easily understood language: (i) the nature of the action; { } 16

25 Case 2:14-cv ER Document 81-1 Filed 10/17/17 Page 22 of 24 (ii) (iii) (iv) (v) (vi) (vii) the definition of the class certified; the class claims, issues, or defenses; That a class member may enter an appearance through an attorney if the member so desires; that the court will exclude from the class any member who requests exclusion; the time and manner for requesting exclusion; and the binding effect of a class judgment on members under Rule 23(c)(3). Fed. R. Civ. P. 23(c)(2)(B). The proposed Short Form Notice and Long Form Notice in this case meet all of these requirements. 3. The Proposed Claim Form is Adequate To submit a claim, a Class member need only print their name and other requested information, sign, date and place the claim form in the mail or submit the claim form electronically via the Internet Website. The Claim Form clearly informs the Settlement Class Members of the process they must follow. Plaintiff believes that the Claim Form is adequate and that the stark simplicity of the process will increase participation from Settlement Class members. VI. Plaintiff s Counsel Should Be Appointed As Class Counsel Jonathan Shub of Kohn, Swift & Graf, P.C. and Troy M. Frederick of Marcus & Mack, P.C. should be appointed as Class Counsel. Rule 23(g) enumerates four factors for evaluating the adequacy of proposed counsel: (1) the work counsel has done in identifying or investigating potential claims in the action; (2) counsel s experience in handling class actions, other complex litigation, and types of claims of the type asserted in the action; (3) counsel s knowledge of the applicable law; and (4) the resources counsel will commit to representing the class. { } 17

26 Case 2:14-cv ER Document 81-1 Filed 10/17/17 Page 23 of 24 Fed. R. Civ. P. 23(g)(1)(C)(i). All of these factors militate in favor of appointing Mr. Shub and Mr. Frederick as Class Counsel. Counsel has spent a significant amount of time identifying and investigating Plaintiff s claims before filing this case. See Declaration of Jonathan Shub Dec. Exhibit A, 3. Mr. Shub and Kohn, Swift & Graf, P.C. have extensive experience in class actions, particularly those involving alleged consumer frauds, as demonstrated by the numerous times the firm and its attorneys have been appointed Class Counsel. See Kohn, Swift & Graf, P.C. Firm Resume, attached hereto as Exhibit B. Kohn, Swift & Graf, P.C. is an established law firm that currently litigates dozens of cases in state and federal courts throughout the nation, and they have more than sufficient resources to represent the Class. Shub Dec. at 22. In addition, Troy M. Frederick is an attorney who regularly represents consumers, including those with claims against energy providers. Mr. Frederick and his firm have participated in multiple class actions and other complex litigation, including consumer fraud and consumer protection class actions, such as this. See Marcus & Mack, P.C. Firm Resume, attached hereto as Exhibit C. VII. Conclusion Plaintiff believes that the settlement is in the best interests of the Settlement Class and meets the requirements for preliminary approval. Therefore, for the reasons set forth above, she respectfully requests that the Court preliminarily approve the settlement and the Settlement Class for the purpose of sending notice of the settlement to the Settlement Class. { } 18

27 Case 2:14-cv ER Document 81-1 Filed 10/17/17 Page 24 of 24 Dated: October 17, 2017 Respectfully submitted, /s/ Jonathan Shub Jonathan Shub Kevin Laukaitis KOHN SWIFT & GRAF, P.C. One South Broad Street, Suite 2100 Philadelphia, PA (215) Telephone (215) Facsimile and Troy M. Frederick, Esquire Marcus & Mack, P.C. 57 South Sixth Street Indiana, PA Phone: (724) Fax: (724) Counsel for Plaintiff and the Class { } 19

28 Case 2:14-cv ER Document 81-2 Filed 10/17/17 Page 1 of 7 Exhibit A

29 Case 2:14-cv ER Document 81-2 Filed 10/17/17 Page 2 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA AMY SILVIS, on behalf of herself and all others similarly situated, Plaintiff, vs. No. 2:14-CV ER CLASS ACTION AMBIT NORTHEAST, LLC Defendant. AMENDED DECLARATION OF JONATHAN SHUB IN SUPPORT OF PLAINTIFF S UNOPPOSED AMENDED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT I, Jonathan Shub, hereby submit this Declaration in Support of Plaintiff s Unopposed Motion for Preliminary Approval of Class Action Settlement filed by Plaintiff in this action and state: 1. I am a shareholder with Kohn, Swift & Graf, P.C. ( KSG ), counsel for Plaintiff Thomas Sobiech and the proposed Settlement class in this action and am competent to make this declaration in support of Plaintiff s Unopposed Motion for Preliminary approval of class action settlement. 2. KSG, along with my co-counsel Mr. Troy M. Frederick of Marcus & Mack, P.C. was retained by Plaintiff Amy Silvis ( Plaintiff ) to prosecute her claims against Defendant Ambit Northeast, LLC. These claims arise from allegations that Defendants electric energy supply activities constitute breach of contract and breach of the covenant of good faith and fair dealing and warrant declaratory relief and damages.

30 Case 2:14-cv ER Document 81-2 Filed 10/17/17 Page 3 of 7 Background Of The Litigation And Settlement Discussions 3. Before bringing the instant action, KSG exhaustively investigated Plaintiff s claims and independently obtained copies of the relevant contractual terms and conditions, as well as samples of Ambit s marketing materials. It also identified the relevant energy markets and the rates available from local utilities and other independent energy suppliers or ESCOs. A. Plaintiff Amy Silvis filed a Class Action Complaint against Defendants on August 27, 2014, styled Silvis v. Ambit Energy, L.P. et. al., Civil Action 2:12-CV ER ( Litigation ), in the United States District Court for the Eastern District of Pennsylvania ( Court ). 4. On November 10, 2014, Defendants Ambit Energy, L.P.; Ambit Texas, LLC; Ambit Northeast, LLC; Ambit Holdings, LLC; and Ambit Energy Holdings, LLC (collectively, Defendants ) filed a motion to dismiss the Class Action Complaint, and, in response, Plaintiff filed a First Amended Class Action Complaint. Plaintiff alleged that Defendants acts and omissions in connection with their electric energy supply activities constituted breach of contract and a breach of the covenant of good faith and fair dealing and warranted declaratory relief and damages 5. On December 23, 2014, Defendants filed a Motion to Dismiss the First Amended Class Action Complaint, and on January 6, 2015, Defendants filed a Motion to Transfer Venue. 6. On January 20, 2015, Plaintiff filed Oppositions to the Motions. 7. On March 13, 2015, Defendants Motion to Transfer Venue was denied, and their Motion to Dismiss was Granted in Part and Denied in Part. All Defendants, except Defendant Ambit Northeast, LLC, were dismissed. 8. On April 2, 2015, Defendant filed an Answer to the First Amended Class Action Complaint, denying any wrongdoing and asserting several defenses. 2

31 Case 2:14-cv ER Document 81-2 Filed 10/17/17 Page 4 of 7 9. On April 21, 2015, Defendant filed a Motion for Summary Judgment. 10. Discovery ensued, during which the Parties propounded and responded to written discovery, and documents were produced by Defendant and reviewed by Plaintiff. Deposition testimony was taken by Plaintiff of Defendant s key personnel. 11. The Court granted the Motion for Summary Judgment on March 21, On January 19, 2017, the Third Circuit vacated the grant of summary judgment and remanded the case to the Court. 12. The Parties engaged in arm s-length settlement negotiations, including a full-day mediation at JAMS in Philadelphia, PA on July 19, 2017, conducted by the Honorable Diane Welsh (Ret.). At mediation and as a result of these settlement negotiations, the Parties reached an agreement in principle on the settlement of the claims of the Named Plaintiff and the Settlement Class. 13. On July 26, 2017, the Parties executed a Memorandum of Understanding 14. On October 4, 2017, the parties entered into the Settlement Agreement, attached as Exhibit A-1, to the Memorandum of Law in Support of Preliminary Approval, subject of the accompanying unopposed Motion for Preliminary Approval of Class Cction Settlement. 15. KSG believes the Settlement Agreement is fair, reasonable and adequate. In exchange for releasing all claims in this case, it confers substantial benefits on the Settlement Class. It was reached only after investigation and substantial discovery informing the respective views of experienced counsel during arm s length negotiations over a period of several months. These views entailed a weighing of the risks and benefits of litigating the 3

32 Case 2:14-cv ER Document 81-2 Filed 10/17/17 Page 5 of 7 claims through trial and appeal, versus promptly resolving the claims through the Settlement Agreement. 16. KSG further believes that, for purposes of settlement, there is sound basis to certify the Settlement Class as defined in the Settlement Agreement. The class is sufficiently numerous as it includes both former and current Ambit customers in Pennsylvania. The identities of these former and current customers are readily ascertainable from Defendant s own records. Common questions of fact and law predominate over any issues affecting only individual class members; indeed, the main issue underlying all claims is whether Defendant breached the price term in its agreement with their customers by neglecting market factors to set a price in the competitive electricity marketplace Pennsylvania had established for customers like Plaintiff. 17. Plaintiff has no interests antagonistic to the Settlement Class. To the contrary, she has been actively engaged in the prosecution of the case from the outset. She has reviewed the complaint and responses to Ambit s discovery requests, provided substantial documents on her claims, consistently conferred with counsel and consulted them regarding the propriety of the settlement. KSG Has Experienced Consumer Class Action Attorneys 18. KSG will fairly and adequately represent the interests of all class members. KSG has a proven track record of zealously and successfully advancing the interests of class members in consumer class actions. 19. KSG has more than sufficient resources to represent the class. KSG s attorneys are highly qualified and have extensive experience in complex civil litigation and consumer class actions. We understand the duties imposed upon class counsel in consumer 4

33 Case 2:14-cv ER Document 81-2 Filed 10/17/17 Page 6 of 7 class actions, and have proven adept at all phases of litigation, from discovery and motion practice to trial and appeal or settlement. 20. KSG attorneys have successfully litigated complex class actions in federal and state courts across the country, and have obtained successful results for clients against some of the world s largest corporations. A sampling of the Firm s more significant past and present cases can be found in the Firm s Resume attached as Exhibit B to the Memorandum of Law in Support of Preliminary Approval. 21. KSG has been appointed class counsel numerous times. 22. KSG attorneys have the requisite knowledge of the substantive and procedural law to prosecute this class action. KSG has committed its resources to the vigorous litigation of this case, has identified appropriate claims, and has aggressively pursued discovery to establish the evidence necessary to obtain class certification and to prevail on the merits. 23. In addition, my co-counsel Mr. Troy M. Frederick of Marcus & Mack, P.C. is an experienced attorney who regularly represents consumers, including those with claims against Energy Providers, like Defendants. Mr. Frederick has participated in multiple class actions and other complex litigation, including consumer fraud and consumer protection class actions, such as this. A sampling of his Firm s more significant past and present cases can be found in the Firm s Resume attached as Exhibit C to the Memorandum of law in Support of Preliminary Approval. I declare under penalty of perjury that the foregoing is true and correct. Executed on October 8, 2017 in Philadelphia, Pennsylvania. Date: October 17, 2017 KOHN, SWIFT & GRAF, P.C. 5 /s/ Jonathan Shub

34 Case 2:14-cv ER Document 81-2 Filed 10/17/17 Page 7 of 7 Jonathan Shub One South Broad Street, Suite 2100 Philadelphia, PA Phone: (215) Fax: (215) jshub@kohnswift.com and Troy M. Frederick Marcus & Mack, P.C. 57 South Sixth Street Indiana, PA Phone: (724) Fax: (724) TFrederick@marcusandmack.com Attorneys for Plaintiff and the Class 6

35 Case 2:14-cv ER Document 81-3 Filed 10/17/17 Page 1 of 25 Exhibit A1

36 Case 2:14-cv ER Document 81-3 Filed 10/17/17 Page 2 of 25 EXECUTION COPY IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA AMY SILVIS, on behalf of herself and all others similarly situated, Plaintiff, No. 2:14-CV ER CLASS ACTION vs. AMBIT NORTHEAST, LLC Defendant. SETTLEMENT AGREEMENT Subject to the approval of the Court, Plaintiff Amy Silvis ( Plaintiff or Named Plaintiff ), acting individually and on behalf of the Settlement Class as defined herein, and Defendant Ambit Northeast, LLC ( Defendant ), enter into this Settlement Agreement ( Settlement Agreement or Agreement ) as of this 29th day of September Plaintiff and Defendant are referred to herein as the Parties and each as a Party. I. RECITALS A. Plaintiff Amy Silvis filed a Class Action Complaint against Defendants on August 27, 2014, styled Silvis v. Ambit Energy, L.P. et. al., Civil Action 2:12-CV ER ( Litigation ), in the United States District Court for the Eastern District of Pennsylvania ( Court ). B. On November 10, 2014, Defendants Ambit Energy, L.P.; Ambit Texas, LLC; Ambit Northeast, LLC; Ambit Holdings, LLC; and Ambit Energy Holdings, LLC (collectively, Defendants ) filed a motion to dismiss the Class Action Complaint, and, in response, Plaintiff filed a First Amended Class Action Complaint. Plaintiff alleged that Defendants acts and omissions in connection with their electric energy supply activities constituted breach of contract and a breach of the covenant of good faith and fair dealing and warranted declaratory relief and damages. SETTLEMENT AGREEMENT Page 1 of 23

37 Case 2:14-cv ER Document 81-3 Filed 10/17/17 Page 3 of 25 C. On December 23, 2014, Defendants filed a Motion to Dismiss the First Amended Class Action Complaint, and on January 6, 2015, Defendants filed a Motion to Transfer Venue. D. On January 20, 2015, Plaintiff filed Oppositions to the Motions. E. On March 13, 2015, Defendants Motion to Transfer Venue was denied, and their Motion to Dismiss was Granted in Part and Denied in Part. All Defendants, except Defendant Ambit Northeast, LLC, were dismissed. F. On April 2, 2015, Defendant filed an Answer to the First Amended Class Action Complaint, denying any wrongdoing and asserting several defenses. G. On April 21, 2015, Defendant filed a Motion for Summary Judgment. H. Discovery ensued, during which the Parties propounded and responded to written discovery, and documents were produced by Defendant and reviewed by Plaintiff. Deposition testimony was taken by Plaintiff of Defendant s key personnel. I. The Court granted the Motion for Summary Judgment on March 21, On January 19, 2017, the Third Circuit vacated the grant of summary judgment and remanded the case to the Court. J. The Parties engaged in arm s-length settlement negotiations, including a full-day mediation at JAMS in Philadelphia, PA on July 19, 2017, conducted by the Honorable Diane Welsh (Ret.). At mediation and as a result of these settlement negotiations, the Parties reached an agreement in principle on the settlement of the claims of the Named Plaintiff and the Settlement Class. K. On July 26, 2017, the Parties executed a Memorandum of Understanding. L. The Parties recognize and acknowledge the benefits of settling this Litigation. Plaintiff believes that the claims asserted in the Litigation have merit and that the evidence developed to date supports her claims. Plaintiff s counsel has conducted an investigation into the facts and the law regarding the claims in the Litigation. Despite her belief in the strengths of her case, Plaintiff is SETTLEMENT AGREEMENT Page 2 of 23

38 Case 2:14-cv ER Document 81-3 Filed 10/17/17 Page 4 of 25 mindful of the problems of proof for, and possible defenses to, the claims in this matter. Plaintiff further recognizes and acknowledges the expense and length of time that proceedings necessary to prosecute this matter against the Defendant through trial, post-trial proceedings, and appeals would take. Counsel for Plaintiff has taken into account the uncertain outcome and risks of the Litigation, as well as the difficulties and delays inherent in the Litigation and the likelihood of protracted appeals. Among other things, Plaintiff has considered: (i) the risks posed by a possible supplemental motion for summary judgment by Defendant on the substantive claims and damages asserted by Plaintiff in this Litigation; and (ii) the difficulties faced by Plaintiff in certifying a class for claims such as those asserted by Plaintiff in this Litigation. Plaintiff believes that the terms and conditions set forth in this Settlement Agreement confer substantial benefits upon the Settlement Class. Based on their evaluation, Plaintiff and Plaintiff s counsel have determined that a settlement of the Litigation based on the terms and conditions set forth in this Settlement Agreement is fair, reasonable, and adequate, and in the best interests of Plaintiff and each member of the Settlement Class. M. Defendant maintains that no law has been violated, it has done nothing wrong, and it has several meritorious defenses to the claims asserted in these actions. Nevertheless, Defendant recognizes the risks and uncertainties inherent in litigation, the significant expense associated with defending a putative class action, the costs of any appeals, and the disruption to its business operations arising out of burdensome and protracted litigation. Accordingly, Defendant believes that the Settlement set forth in the Agreement is likewise in its best interests. N. Defendant expressly denies any and all liability and/or wrongdoing with respect to any and all of the claims alleged in the Litigation and any similar proceedings and enters into this Settlement solely to compromise a disputed claim. Accordingly, any references to the alleged business practices of Defendant in this Settlement, this Agreement, or the related Court hearings and processes SETTLEMENT AGREEMENT Page 3 of 23

39 Case 2:14-cv ER Document 81-3 Filed 10/17/17 Page 5 of 25 shall raise no inference respecting the propriety of those business practices or any other business practices of Defendant. NOW, THEREFORE, in consideration of the agreements and releases set forth herein and other good and valuable consideration, and intending to be legally bound, the Parties agree that the Litigation be settled, compromised, and dismissed on the merits and with prejudice, without costs to the Parties except as provided herein, subject to the approval of the Court, on the following terms and conditions: II. SETTLEMENT TERMS A. Definitions 1. Claim Deadline means the last date on which a Claim Form may be submitted. The Claim Deadline will be one hundred and eighty (180) days after the Preliminary Approval Date; however, if the applicable date falls on a weekend or federal holiday, then the Claim Deadline shall be the next day that is not a weekend or federal holiday. 2. Claim Form means the form that will be completed by Class Members and submitted to the Settlement Administrator in order to receive settlement benefits. 3. Class Counsel means Jonathan Shub, Esq., of Kohn, Swift & Graf P.C. and Troy M. Frederick, Esq., of Marcus & Mack P.C. 4. Class Member means a member of the Settlement Class who does not properly and timely elect to be excluded from the Settlement Class. 5. Class Period means January 1, 2011 through the Preliminary Approval Date. 6. Complaint means the First Amended Class Action Complaint filed on November 24, Court means the United States District Court for the Eastern District of Pennsylvania. SETTLEMENT AGREEMENT Page 4 of 23

40 Case 2:14-cv ER Document 81-3 Filed 10/17/17 Page 6 of Effective Date means the date on which all of the following conditions are satisfied: a. Execution of this Agreement by the Named Plaintiff and Defendant; b. No Party has availed itself of any right to withdraw from, rescind, or terminate the Agreement pursuant to Section III.B.1 or III.C herein; c. Entry of the Final Approval Order by the Court approving the Settlement embodied in this Agreement; d. Entry of a judgment dismissing the Litigation with prejudice and against Plaintiff and as to all Class Members and without costs; and e. The passage of the earliest date on which: (i) the time for taking an appeal from the Final Approval Order and judgment has expired, with no appeal being filed; or (ii) if an appeal is taken, the highest court to which such appeal may be taken affirms the Final Approval Order and judgment or dismisses the appeal without, in either case, any material modification of the Final Approval Order that is unsatisfactory to the Parties; provided, however, a modification or reversal on appeal of any amount of fees or expenses awarded by the Court to Class Counsel or of the Named Plaintiff Enhancement Award is not material and shall not prevent this Agreement from becoming final and effective if all other aspects of the Final Approval Order and judgment have been affirmed. Neither the provisions of Rule 60 of the Federal Rules of Civil Procedure nor the All Writs Act, 28 U.S.C. 1651, shall be taken into account in determining the above-stated times. 9. Eligible Class Member means a Class Member who has submitted a timely and proper Claim Form in accordance with the requirements set forth in this Agreement. 10. Fairness Hearing or Final Approval Hearing means the hearing to be held by the Court, on notice to the Settlement Class, to consider final approval of the Settlement. Class Counsel also may raise at this hearing their motion for approval of attorneys fees and reimbursement of costs SETTLEMENT AGREEMENT Page 5 of 23

41 Case 2:14-cv ER Document 81-3 Filed 10/17/17 Page 7 of 25 and expenses and the Named Plaintiff Enhancement Award; however, any order relating to Class Counsel s motion for approval of attorneys fees and reimbursement of costs and expenses and the Named Plaintiff Enhancement Award shall be separate and apart from the Final Approval Order. The Parties will ask the Court to schedule the Fairness Hearing not more than one hundred twenty (120) days from the Preliminary Approval Date. 11. Final Approval Order means the Order granting final approval to the Settlement. The Final Approval Order should not be entered sooner than ninety (90) days after the appropriate officials have been served with notice of the Settlement in accordance with the Class Action Fairness Act of 2005, as codified at 28 U.S.C. 1715(b). 12. Named Plaintiff Enhancement Award means the monetary amount awarded by the Court to Named Plaintiff in recognition of the assistance provided by the Named Plaintiff in the prosecution of the Litigation, for which Class Counsel shall ask for an amount not to exceed Five Thousand Dollars ($5,000.00). 13. Preliminary Approval Date means the date on which the Court enters the Preliminary Approval Order. 14. Preliminary Approval Order means the Order granting preliminary approval of the Settlement, conditionally certifying the Settlement Class for the purposes set forth in this Agreement, and approving the form and manner of service of the Settlement Notice. 15. Released Claims means and includes any and all manner of actions, causes of action, suits, accounts, claims, demands, controversies, judgments, obligations, injuries, damages and liabilities of any nature whatsoever, whenever or however incurred, including claims for costs, fees, expenses, penalties, and attorney s fees, whether class or individual, known or unknown, suspected or claimed, that Plaintiff, the Class Members, or any Class Member ever had, now has, or hereafter can, shall, or may have, directly, representatively, derivatively, or in any other capacity against any of the SETTLEMENT AGREEMENT Page 6 of 23

42 Case 2:14-cv ER Document 81-3 Filed 10/17/17 Page 8 of 25 Released Persons, whether in law or equity or otherwise, arising out of or relating to any conduct, act, or omission of any of the Released Persons concerning any of the conduct or similar conduct alleged or that could have been alleged in the Litigation, wherever it may have occurred, or that relates to or arises out of the rates charged to customers in connection with the Select Variable Plan. 16. Released Persons means Defendant and all of its current and former parents, subsidiaries, affiliates, predecessors, successors, and assigns, and each of their respective, current, and former officers, directors, partners, owners, employees, agents, attorneys, and insurers. 17. Select Variable Plan means the electricity rate plan known as the Select Variable Plan that was offered by Defendant to residential customers in Pennsylvania. Agreement. 18. Settlement means the settlement of the Litigation embodied in this 19. Settlement Administrator means Angeion Group, the entity jointly selected by the Parties to administer the Settlement. 20. Settlement Class means for purposes of the Settlement and this Agreement: All persons in the Commonwealth of Pennsylvania who were enrolled as a customer of Defendant and were on Defendant s Select Variable Plan at any time during the Class Period. Excluded from the Settlement Class are: Defendant, any entities in which Defendant has a controlling interest, and any of their parents, subsidiaries, affiliates, officers, directors, and employees and members of each such person s immediate family; the presiding judge(s) in this case and his(their) immediate family; and any person who has previously released claims against Defendant, including but not limited to persons who released claims against Defendant pursuant to the settlement of a complaint submitted to the Pennsylvania Utility Commission (PUC). 21. Settlement Notice is the notice to the Settlement Class that describes the Settlement and the Agreement and for which form and manner of service is approved by the Court. SETTLEMENT AGREEMENT Page 7 of 23

43 Case 2:14-cv ER Document 81-3 Filed 10/17/17 Page 9 of Time Periods means each of the months an Eligible Class Member was enrolled as a customer of Defendant and was on the Select Variable Plan. For purposes of this definition, an Eligible Class Member shall be considered to have been enrolled as a customer of Defendant and on the Select Variable Plan for a particular month if the Eligible Class Member was enrolled as a customer of Defendant and on the Select Variable Plan for at least one day of that month. B. Stipulation to Class Certification The Parties stipulate that the requirements are satisfied and that the Settlement Class may be conditionally certified as a class pursuant to Fed. R. Civ. P. 23(a) and (b)(3) subject to Court approval and for settlement purposes only in accordance with the terms of this Agreement and without prejudice to Defendant s right to contest class certification in the event that this Agreement fails to become effective or is not fully implemented in accordance with its terms. If the Effective Date does not occur or this Agreement fails to be fully implemented, Defendant reserves all rights to object to any subsequent motion to certify any class in this Litigation, and no representation, concession, or stipulation made in connection with the Settlement or this Agreement shall be considered law of the case or an admission by Defendant or to have any kind of preclusive effect against Defendant or to give rise to any form of estoppel or waiver by Defendant in this Litigation. Defendant reserves all rights to object to any motion to certify any class in any other proceeding, and no representation, concession, or stipulation made in connection with the Settlement or this Agreement shall be considered an admission by Defendant or to have any kind of preclusive effect against Defendant or to give rise to any form of estoppel or waiver by Defendant in any other proceeding. C. Class Counsel The Parties agree, subject to Court approval, that Jonathan Shub of Kohn Swift & Graf, P.C. and Troy Frederick of Marcus & Mack P.C. shall be appointed Class Counsel, for settlement purposes only SETTLEMENT AGREEMENT Page 8 of 23

44 Case 2:14-cv ER Document 81-3 Filed 10/17/17 Page 10 of 25 in accordance with the terms of this Agreement and without prejudice to Defendant s right to contest the appointment in the event that this Agreement fails to become effective or is not fully implemented in accordance with its terms. If the Effective Date does not occur or this Agreement fails to be fully implemented, Defendant reserves all rights to object to any subsequent motion to appoint class counsel in this Litigation. Defendant reserves all rights to object to any motion to appoint class counsel in any other proceeding against Defendant, and no representation, concession, or stipulation made in connection with the Settlement or this Agreement shall be considered an admission by Defendant or to have any kind of preclusive effect against Defendant or to give rise to any form of estoppel or waiver by Defendant in any other proceeding. D. Settlement Administration Subject to oversight and regular reporting to Class Counsel, the Settlement Administrator will be responsible for notice to the Settlement Class and administration of claims of the Class Members, including: (a) creating and maintaining a database of names and addresses of the Settlement Class and Class Members; (b) comparing that database with a national change of address database; (c) ing or printing and mailing notices as approved or directed by the Court, including the Settlement Notice, each with an assigned unique claim number; (d) compiling and mailing address information for and re-sending any notices returned as undeliverable; (e) developing and maintaining the website described in Section II.F; (f) the maintenance of a toll-free telephone number dedicated to the Settlement; (g) providing a blank Claim Form by mail or to any Class Members who request one; (h) compiling a list of Eligible Class Members who submit timely and properly completed Claim Forms, either by mail or via the website, and verifying the accuracy and completeness of the Claim Forms; (i) communicating and coordinating with Defendant regarding Claim Forms submitted by Eligible Class Members, the Claims Information, and the Claims Payment Information. Defendant will pay all SETTLEMENT AGREEMENT Page 9 of 23

45 Case 2:14-cv ER Document 81-3 Filed 10/17/17 Page 11 of 25 reasonable and necessary costs from the Settlement Administrator to perform the duties set forth in this Section II.D. E. Notice The Parties agree to cooperate in drafting the Settlement Notice, ensuring that the Settlement Notice complies with the requirements of Fed. R. Civ. P. 23 and due process, and obtaining Court approval of the Settlement Notice. Copies of the proposed Settlement Notice shall be filed with the motion for preliminary approval, which shall request Court approval of the form of the Settlement Notice and manner of service by first-class mail and also by , where an e- mail address is available, within twenty-one (21) days after the Preliminary Approval Date. In addition, counsel for Defendant shall cause: (1) a summary notice of the Settlement and the Fairness Hearing to be published once in each of the following publications, as ordered by the Court: Philadelphia Inquirer, Pittsburgh Post-Gazette, Harrisburg Patriot News, Allengtown Morning Call, and Erie Times-News; and (2) a notice of the Settlement to be sent to the appropriate official(s) pursuant to the Class Action Fairness Act of 2005, 28 U.S.C. 1715, each no later than ten (10) days after the Preliminary Approval Date, with the costs of such notice to be paid by Defendant. No later than twenty-one (21) days prior to the Final Approval Hearing, the Settlement Administrator and Defendant shall certify to the Court compliance with the notice provisions of this Section II.E for which each was responsible. F. Website The Settlement Administrator will create and maintain a website that provides: (1) a copy of this Agreement, the Settlement Notice, and certain selected pleadings and Court Orders from the Litigation; (2) the Settlement Administrator s contact information for claims administration SETTLEMENT AGREEMENT Page 10 of 23

46 Case 2:14-cv ER Document 81-3 Filed 10/17/17 Page 12 of 25 purposes; (3) Class Counsel s contact information; (4) a method and form for the electronic submission of the Claim Form(s); and (5) a method for requesting the Claim Form(s) by mail or e- mail. The content on the website, including the method and form for the electronic submission of the Claim Form(s), shall be available to the public no later than twenty-one (21) days after the Preliminary Approval Date. G. Settlement Amounts Eligible Class Members shall be entitled to payment as follows: 1. Each Eligible Class Member with a date of enrollment as Defendant s customer from January 1, 2011, through January 12, 2014, and who was on Defendant s Select Variable Plan at any time, will receive a check in the amount of 15% of all amounts paid to Defendant by such Eligible Class Member only for Time Periods during which such Eligible Class Member was on the Select Variable Plan. 2. Each Eligible Class Member with a date of enrollment as Defendant s customer from January 13, 2014, through the Preliminary Approval Date, and who was on Defendant s Select Variable Plan at any time, will receive a check in the amount of 2% of all amounts paid to Defendant by such Eligible Class Member only for the Time Periods during which such Eligible Class Member was on the Select Variable Plan. 1 Not later than ten (10) days following the Effective Date, the Settlement Administrator shall provide to Defendant a list of Eligible Class Members that is current as of the Effective Date. Thereafter, the Settlement Administrator shall provide to Defendant a list of additional Eligible Class 1 A limited number of members of the Settlement Class with dates of enrollment as Defendant s customer from January 13, 2014, through the Preliminary Approval Date did not receive an updated Disclosure Statement from Defendant prior to becoming enrolled on Defendant s Select Variable Plan. These members of the Settlement Class, if they are Eligible Class Members, will be treated as if they had enrolled as Defendant s customer on or before January 12, 2014, for purposes of determining the amount of the check they will receive in the Settlement. Defendant will provide a list of these members of the Settlement Class, identified by customer number, to Plaintiff s counsel and to the Settlement Administrator within thirty (30) days of the Preliminary Approval Date. SETTLEMENT AGREEMENT Page 11 of 23

47 Case 2:14-cv ER Document 81-3 Filed 10/17/17 Page 13 of 25 Members on a bi-weekly basis for the remainder of the Claim Period, and a final list of any additional Eligible Class Members not later than ten (10) days after the Claim Deadline. Not later than ten (10) business days after receiving each list of Eligible Class Members, Defendant shall provide to the Settlement Administrator for each Eligible Class Member on that list: (a) the date of enrollment of the Eligible Class Member as Defendant s customer; and (2) the aggregate amount of monies paid to Defendant only for the Time Periods for which the Eligible Class Member was on the Select Variable Plan (the Claims Information ). Not later than ten (10) days after receiving the Claims Information, the Settlement Administrator shall calculate and provide to the Defendant the amount, if any, owed to each Eligible Class Member included in that Claims Information pursuant to the terms of the Settlement (the Claims Payment Information ). Within thirty (30) days after receipt of the Claims Payments Information from the Settlement Administrator Defendant shall issue a check to each Eligible Class Member included in that Claims Payment Information for the amount set forth in the Claims Payment Information. The check will be delivered to each Eligible Class Member at the address listed on each Eligible Class Member s Claim Form by first-class mail. Each Eligible Class Member receiving a check shall have one hundred twenty (120) days from the date of mailing of the check within which to cash the check. Upon the expiration of one hundred twenty (120) days from the date of mailing of the check, the check will become void, and the Eligible Class Member shall not be entitled to any payment. The voiding of any such check by the passage of time as described in this Section II.G shall not invalidate any of the other provisions of this Agreement as to any Class Member, including the release in Section II.J. H. Other Payments by Defendant Defendant will not oppose or object to a request by Class Counsel for an award of attorneys fees and costs in an amount not to exceed $1,450,000. This request is subject to approval by the Court, and the final amount awarded to Class Counsel by the Court will be paid by Defendant up to SETTLEMENT AGREEMENT Page 12 of 23

48 Case 2:14-cv ER Document 81-3 Filed 10/17/17 Page 14 of 25 $1,450,000. The award of attorneys fees and costs to Class Counsel is separate and apart from any amounts paid to Eligible Class Members and the Named Plaintiff Enhancement Award. Defendant agrees to pay the amount awarded by the Court to Class Counsel up to $1,450,000 within ten (10) business days of the latest date of the following: (1) the Effective Date; (2) the date that the time for taking an appeal from the order awarding the fees has expired, with no appeal being filed; or (3) if an appeal is taken from the order awarding the fees, the highest court to which such appeal may be taken affirms the order awarding the fees. Notwithstanding anything contained in this Agreement that might be construed to the contrary, it is understood by the Parties and Class Counsel that attorneys fees, costs and expenses, in the amount awarded by the Court up to $1,450,000, are the only such fees, costs and expenses that Defendant will pay in connection with this Settlement. Defendant agrees to pay the amount awarded by the Court to Named Plaintiff Amy Silvis as the Named Plaintiff Enhancement Award up to $5,000 within ten (10) business days of the latest date of the following: (1) the Effective Date; (2) the date that the time for taking an appeal from the order awarding the Named Plaintiff Enhancement Award has expired, with no appeal being filed; or (3) if an appeal is taken from the order awarding the Named Plaintiff Enhancement Award, the highest court to which such appeal may be taken affirms the order awarding the Named Plaintiff Enhancement Award. The procedure for and the allowance or disallowance of any application for attorneys fees and expenses and the Named Plaintiff Enhancement Award are matters separate and apart from the approval of the Settlement and shall be requested to be considered by the Court separately from the Court s consideration of the fairness, reasonableness, and adequacy of the Settlement and set forth in an order separate from the Final Approval Order. Any order relating solely to an award of attorneys fees and expenses or the Named Plaintiff Enhancement Award, or any reversal or modification thereof, shall have no effect on the Settlement and shall not operate to, or be grounds to, terminate or cancel the Settlement or to effect or delay the finality of the Final Approval Order or the judgment. A reduction by the Court, on SETTLEMENT AGREEMENT Page 13 of 23

49 Case 2:14-cv ER Document 81-3 Filed 10/17/17 Page 15 of 25 appeal or otherwise, of the attorneys fees and costs requested by Class Counsel or the Named Plaintiff Enhancement Award requested is not considered material to this Agreement and shall not affect any other rights or obligations under this Agreement. I. Full and Final Settlement The Parties agree that this action is being voluntarily settled after consultation with experienced legal counsel and that the terms of the Settlement were negotiated at arm s length and in good faith. The Parties intend the Settlement to be a final and complete resolution of the Released Claims. In order to effectuate that purpose, the Parties agree to cooperate with one another and use their best efforts to finalize and effectuate this Agreement, including, but not limited to, seeking the Court s approval of procedures (including the giving of the Settlement Notice and scheduling the Fairness Hearing under Federal Rules of Civil Procedure 23(c) and (e)) to obtain Final Approval of the Settlement and the judgment of final dismissal with prejudice of the Litigation. The Parties further agree not to do anything to encourage any member of the Settlement Class to oppose or obstruct the Settlement or to opt out of the Settlement. J. Release Upon the Effective Date and without any further action by the Court or by any Party to this Agreement, Plaintiff and all of the Class Members and all of their administrators, executors, personal representatives, heirs, agents, attorneys, assigns, predecessors, and successors (collectively, the Releasors ), for good and sufficient consideration, the receipt and adequacy of which is acknowledged, shall be deemed to, and shall, in fact, have remised, released, and forever discharged any and all of the Released Claims, which they, or any of them, had or has, or may in the future have or claim to have against the Released Persons. After the Effective Date, the Releasors shall not seek, and are hereafter barred and enjoined from seeking, to recover from any Released Persons based, in whole or in part, upon any of the Released Claims or conduct at issue in the Released Claims. SETTLEMENT AGREEMENT Page 14 of 23

50 Case 2:14-cv ER Document 81-3 Filed 10/17/17 Page 16 of 25 Releasors also expressly waive and release upon the Effective Date any and all rights and benefits conferred by any provision, statute, regulation, rule, or principal of law or equity of any state or applicable jurisdiction that provides that a general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor. The Releasors acknowledge that they are aware that they may hereafter discover facts in addition to, or different from, those facts which they know or believe to be true with respect to the subject matter of this Agreement, but that it is their intention to release fully, finally, and forever all Released Claims, and in furtherance of such intention, this release shall be and remain in effect notwithstanding the discovery or existence of any such additional or different facts. III. PROCEDURES FOR EFFECTUATING SETTLEMENT A. Preliminary Approval Promptly after the execution of this Agreement, Plaintiff will move the Court for an order preliminarily approving the Settlement and requesting that the Court do the following: 1. Approve the form and content and manner of service of the Settlement Notice to be sent to the Settlement Class, substantially in the form of Exhibit B to this Agreement, as described in Section II.E above; 2. For purposes of this Settlement only, conditionally certify the Settlement Class pursuant to Federal Rule of Civil Procedure 23(a)(1)-(4) and (b)(3), appoint Plaintiff Amy Silvis as the class representative for the Settlement Class, and appoint Class Counsel as counsel for the Settlement Class; 3. Set the date of the Fairness Hearing, which shall be no later than one hundred twenty (120) days after the Preliminary Approval Date and shall be included in the Settlement Notice, and at which Plaintiff shall obtain entry of an order and final judgment as to Defendant: SETTLEMENT AGREEMENT Page 15 of 23

51 Case 2:14-cv ER Document 81-3 Filed 10/17/17 Page 17 of 25 a. approving the Settlement as fair, reasonable, and adequate within the meaning of Federal Rule of Civil Procedure 23(e) and directing the consummation of the Settlement according to its terms; b. directing that the Litigation be dismissed with prejudice and, except as provided herein, without costs; c. reserving exclusive and continuing jurisdiction over the Settlement, including the administration and consummation of the Settlement, to the Court; and d. approving the release of the Released Claims as specified herein as binding and effective as to all Class Members and permanently barring and enjoining such Class Members from asserting any Released Claims. B. Treatment of Potential Opt Outs and Objectors Subject to an Order of the Court so providing, the Parties agree that: 1. Opt Outs Any member of the Settlement Class, other than the Named Plaintiff, may elect to be excluded from this Settlement and from the Settlement Class by timely and properly opting out of the Settlement Class. Any member of the Settlement Class who desires to be excluded from the Settlement Class must give to the Settlement Administrator on or before the date specified in the Settlement Notice written notice of his election to be excluded, including the requestor s full name and current address and signed by the requestor. The last date to opt out of the Settlement Class will be seventy-five (75) days after the Preliminary Approval Date, subject to Court approval and inclusion in the Settlement Notice ( Opt-Out Deadline ). Any member of the Settlement Class who timely and properly opts out of the Settlement Class pursuant to the terms of this Agreement will not be bound by the terms of this Agreement, including any releases contained herein. SETTLEMENT AGREEMENT Page 16 of 23

52 Case 2:14-cv ER Document 81-3 Filed 10/17/17 Page 18 of 25 Named Plaintiff agrees not to opt out of this Settlement, but rather affirmatively to support entry of the Final Approval Order. None of the Named Plaintiff, Class Counsel, Defendant, or Defendant s counsel shall in any way encourage any member of the Settlement Class to opt out or discourage any member of the Settlement Class from participating in this Settlement. No later than fourteen (14) days after the Opt-Out Deadline, the Settlement Administrator shall provide Class Counsel and Defendant s Counsel with the percentage of the Settlement Class that has opted out of this Agreement (the Opt-Out Percentage ). If fifteen (15) percent or more of the Settlement Class exercise the right to opt out of the Settlement Class, Defendant shall, in its sole discretion, have the right to rescind this Settlement Agreement by written notice to Class Counsel within ten (10) business days after receiving the Opt-Out Percentage from the Settlement Administrator. 2. Objections Any Class Member who wishes to object to the Settlement must file a written objection and/or a notice of intention to appear before the Court at the Fairness Hearing, and serve copies of the same on Class Counsel and counsel for Defendant, as set forth in the Settlement Notice. Any objection must set forth in writing a brief statement of the nature of the objection, the reasons for the objection, and copies of any papers that the objector intends to present to the Court in support of the objection at the Fairness Hearing. The last day for Class Members to object to the Settlement will be seventy-five (75) days after the Preliminary Approval Date. Named Plaintiff agrees not to object to entry of the Final Approval Order of this Settlement, but rather affirmatively to support entry of the Final Approval Order. None of the Named Plaintiff, Class Counsel, Defendant, or Defendant s counsel shall in any way encourage any Class Member to object to this Settlement. C. Final Approval of the Court SETTLEMENT AGREEMENT Page 17 of 23

53 Case 2:14-cv ER Document 81-3 Filed 10/17/17 Page 19 of 25 Plaintiff shall file all motions and other filings in support of the request for a Final Approval Order no later than twenty-one (21) days prior to the date set for the Final Approval Hearing. Plaintiff shall file all motions and other filings in support of the motion for approval of attorneys fees and reimbursement of costs and expenses for Class Counsel and the Named Plaintiff Enhancement Award no later than sixty (60) days after the Preliminary Approval Date. This Agreement and the Settlement embodied herein are subject to final approval by the Court. If the Settlement is finally approved, the Court will enter a judgment dismissing all claims against Defendant with prejudice. Named Plaintiff waives any right to appeal or collaterally attack a Final Approval Order entered by the Court. If this Agreement is not approved or if it is materially modified by the Court or upon appeal or remand, any Party may rescind this Agreement in its entirety by written notice to the Court and to counsel for the other Parties filed and served within ten (10) business days of the event triggering the right to rescind. If no Party timely elects to rescind, then the Parties shall remain bound to the Settlement as so modified. For purposes of this paragraph, a material modification is one that significantly affects the rights or obligations of one or more of the Parties. Without limiting the foregoing and by way of illustration only, (a) any change to the scope of the Release set forth in this Agreement; (b) any change to the Final Approval Order, or (c) any increase in the cost of the Settlement to be borne by Defendant shall be deemed to be a material modification. No order or action of the Court pertaining to attorneys fees or expenses shall be considered to constitute a material modification so long as such order, action, or modification does not increase the cost of Settlement to be borne by Defendant and does not require that Defendant do anything not specifically set forth herein. Similarly, no order or action of the Court pertaining to the Named Plaintiff Enhancement Award shall be considered to constitute a material modification so long as such order, action, or modification does not increase the cost of Settlement to be borne by Defendant and does not require that Defendant do anything not specifically set forth herein. SETTLEMENT AGREEMENT Page 18 of 23

54 Case 2:14-cv ER Document 81-3 Filed 10/17/17 Page 20 of 25 Any dispute as to the materiality of any modification or proposed modification of this Agreement shall be resolved by the Court. D. Termination of Agreement This Agreement shall terminate: (a) automatically if the Court fails to approve the Agreement; (b) at the timely election of any Party, in the event of any proposed material modification of this Agreement as a condition to approval of the Settlement; (c) at the timely election of Defendant, in the event of fifteen (15) percent or more of the Settlement Class opting out of the Settlement Class; or (d) prior to approval of this Agreement by the Court, upon the mutual agreement of the Parties by and through their respective counsel. E. Effect of Termination of Agreement If this Agreement is terminated, each Party shall return to his, her, or its respective status as of the date of execution of this Agreement, and the Parties shall proceed in all respects as if this Agreement had not been executed and any related orders had not been entered, preserving all of their respective claims and defenses. IV. MISCELLANEOUS PROVISIONS A. Costs Except as otherwise provided in this Agreement, each Party shall bear its own costs and expenses. B. Entire Agreement This Agreement, together with the Exhibits hereto, constitutes the entire agreement between the Parties with respect to the subject matter of the Settlement and supersedes all prior negotiations, communications, memoranda, and agreements between the Parties. Neither Named Plaintiff nor Defendant are entering into this Agreement in reliance upon any representations, warranties, or inducements other than those contained in this Agreement. SETTLEMENT AGREEMENT Page 19 of 23

55 Case 2:14-cv ER Document 81-3 Filed 10/17/17 Page 21 of 25 C. Amendments This Agreement may be modified or amended only by (a) an order of the Court, or (b) a writing signed by (i) Class Counsel, and (ii) counsel for Defendant. D. Extensions of Time The Parties may jointly request that the Court allow reasonable extensions of time to carry out any of the provisions of the Agreement without formally amending this Agreement. E. Plaintiff s Authority Class Counsel represent and warrant that they are authorized to take all appropriate actions required or permitted to be taken by or on behalf of the Named Plaintiff and, subsequent to an appropriate Court Order, the Settlement Class or Class Members in order to effectuate the terms of this Agreement and are also authorized to enter into appropriate modifications or amendments to this Agreement on behalf of the Named Plaintiff and, subsequent to an appropriate Court Order, the Settlement Class or Class Members. F. Counterparts This Agreement may be executed in one or more counterparts, all of which together shall be deemed to be one and the same instrument. The Parties agree that a copy of the executed counterparts may be filed with the Court in connection with the motion to approve the Settlement, either in portable document format or some other suitable electronic form, as an exhibit to Plaintiff s Motion for Preliminary Approval without the need to collate and file a copy with original signatures. G. Binding Nature This Agreement shall be binding upon the heirs, executors, administrators, successors, and assigns of the Plaintiff, Class Members, and Defendant. SETTLEMENT AGREEMENT Page 20 of 23

56 Case 2:14-cv ER Document 81-3 Filed 10/17/17 Page 22 of 25 H. Construing the Agreement This Agreement shall not be construed more strictly against one Party than another merely by virtue of the fact that it may have been initially drafted by counsel for only one of the Parties. It is recognized that this Agreement is the result of arm s-length negotiations between the Parties, and it is acknowledged that all Parties have contributed substantially to the preparation of this Agreement; accordingly, the doctrine of contra proferenturn shall not apply in construing this Agreement, nor shall any other such similar doctrine apply. Each Party acknowledges that it has been and is being fully advised by competent legal counsel of the Party s own choice and fully understands the terms and conditions of this Agreement, and the meaning and import thereof, and that such Party s execution of this Agreement is with the advice of such Party s counsel and of such Party s own free will. Each Party represents and warrants that it has sufficient information regarding the Litigation, the Settlement, and the other Parties to reach an informed decision and has, independently and without relying on other Parties, and based on such information as it has deemed appropriate, made its own decision to enter into this Agreement and was not fraudulently or otherwise wrongfully induced to enter into this Agreement. I. Taxes The Plaintiff, Eligible Class Members, and Class Counsel receiving funds pursuant to this Agreement shall be solely responsible for filing all information and other tax returns necessary or making any tax payments related to funds received pursuant to this Settlement Agreement. Defendant makes no representations regarding, and shall not be responsible for, the tax consequences of any payments made pursuant to this Agreement. J. Public Statements SETTLEMENT AGREEMENT Page 21 of 23

57 Case 2:14-cv ER Document 81-3 Filed 10/17/17 Page 23 of 25 Any press release or other public statement published or authorized by Plaintiff or her representatives, including Class Counsel, shall be sent to Defendant s counsel for their input and approval, which consent shall not be unreasonably withheld or unduly delayed. K. Choice of Law This Agreement shall be governed by and interpreted in accordance with the substantive common law of the Commonwealth of Pennsylvania, exclusive of choice of law principles. L. Jurisdiction The Parties submit to the exclusive jurisdiction of the United States District Court for the Eastern District of Pennsylvania for the purpose of enforcing this Agreement or implementing any part of the Settlement embodied in this Agreement. M. No Admissions Neither this Agreement nor any proceedings connected with it shall be deemed or construed to be an admission by any Party or any Released Person of any wrongdoing or liability or evidence of any violation by Defendant of any federal or state statute or law either in the Litigation or in any other proceeding, and evidence thereof shall not be discoverable or used, directly or indirectly, in any way, except in a proceeding to interpret or enforce this Agreement. This Agreement represents the settlement of disputed claims and does not constitute, nor shall it be construed as, an admission of the correctness of any position asserted by any Party, or an admission of liability or of any wrongdoing by any Party, or as an admission of any strengths or weaknesses of the Plaintiff s or putative class s claims or Defendant s defenses. Defendant specifically denies any wrongdoing or liability by any of the Released Persons. N. Headings The captions and headings employed in this Agreement are for convenience only, are not a part of the Agreement, and shall not be used in construing or interpreting the Agreement. SETTLEMENT AGREEMENT Page 22 of 23

58 Case 2:14-cv ER Document 81-3 Filed 10/17/17 Page 24 of 25

59 Case 2:14-cv ER Document 81-3 Filed 10/17/17 Page 25 of 25 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement, as of the date and year first above written. Dated: Dated: Dated: /t)- tf,./7 Amy Silvis Individually and on behalf of the Settlement Class Jonathan Shub Kohn Swift & GrafP.C. One South Broad Street, Suite 2100 Philadelphia, P A ~ Marcus & Mack P.C. Dated: /() 1'1/t 7 Am It Northeast, LL By /lilt. PfO,.,..,_;, ~. T le: C.tf SE1TLEMENT AGREE\IIENT Page 23 of23

60 Case 2:14-cv ER Document 81-4 Filed 10/17/17 Page 1 of 8 Exhibit A2

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67 Case 2:14-cv ER Document 81-4 Filed 10/17/17 Page 8 of 8

68 Case 2:14-cv ER Document 82 Filed 10/18/17 Page 1 of 2 Exhibit A3

69 LEGAL NOTICE If You Were Enrolled in the Select Variable Plan for Electricity with Ambit Northeast, LLC in the Commonwealth Pennsylvania Between January 1, 2011, and [PAD], you could be affected by a class action settlement. This class action lawsuit is pending in the United States District Court for the Eastern District of Pennsylvania and alleges that Defendant Ambit Northeast, LLC distributed a Disclosure Statement to Pennsylvania electricity consumers on its Select Variable Plan that limited Defendant s right to vary its electricity rates, and that Defendant breached its contract with those Pennsylvania consumers by varying its electricity rates in additional ways. Defendant denies the claims in the lawsuit. Who is included in the Settlement Class? The proposed Settlement Class is defined as All persons in the Commonwealth of Pennsylvania who were enrolled as a customer of Defendant and were on Defendant s Select Variable Plan at any time from January 1, 2011 through [PAD]. What does the Settlement provide? Case 2:14-cv ER Document 82 Filed 10/18/17 Page 2 of 2 Under the Settlement, Defendant has agreed to pay Eligible Class Members as follows: 1. Each Eligible Class Member with a date of enrollment as Defendant s customer from January 1, 2011, through January 12, 2014, and who was on Defendant s Select Variable Plan at any time, will receive a check in the amount of 15% of all amounts paid to Defendant by such Eligible Class Member only for Time Periods during which such Eligible Class Member was on the Select Variable Plan. 2. Each Eligible Class Member with a date of enrollment as Defendant s customer from January 13, 2014 through [PAD], and who was on Defendant s Select Variable Plan at any time, will receive a check in the amount of 2% of all amounts paid to Defendant by such Eligible Class Member only for the Time Periods during which such Eligible Class Member was on the Select Variable Plan. The Settlement also provides that there will be a general and broad release of all claims by Settlement Class members against Ambit Northeast, LLC, and related entities and persons. If you are a Settlement Class member and do not exclude yourself from the Settlement, you will be bound by the release. The Released Claims are further describe in the Settlement Agreement (see Want More Information? ) How do I receive Settlement benefits? You must submit a timely Claim Form to the Settlement Administrator. The deadline for submitting a Claim Form is [180 after the PAD]. You can download a Claim Form at request it from the Settlement Administrator, and submit it via the website or by mailing it to the Settlement Administrator at: Ambit PA Energy Settlement Settlement Administrator 1801 Market Street, Suite 660 Philadelphia, PA Who represents me? The Court appointed Kohn Swift & Graf, P.C., and Marcus & Mack, P.C. as Class Counsel to represent the Settlement Class. You do not have to pay Class Counsel. You may hire your own lawyer at your own expense. Your options. If you are included in the Settlement Class and do not submit a Claim Form, your rights will be affected and you will not receive any benefits from this Settlement. If you do not want to be legally bound by the Settlement, you must exclude yourself by [75 days after PAD], following the instructions in the Notice of Class Action Settlement available at or you won t be able to sue, or continue to sue, Defendant about the legal claims in this case. If you do not exclude yourself, you may object to the Settlement by submitting a written objection [75 days after PAD], following the instructions in the Notice of Class Action Settlement available at The Final Approval Hearing. The Court will hold a hearing on, 2018 to consider whether to approve the Settlement, award Class Counsel attorneys fees up to $1,450, and award the Class Representative up to $5, for her service. If approved, these amounts, as well as the costs of administering the Settlement, will be paid separately by Defendant and will not reduce the benefits available to Settlement Class Members. Want More Information? Call 1-xxx-xxx-xxxx, go to or write to Silvis v Ambit., Settlement Administrator, 1801 Market Street, Suite 660, Philadelphia, PA or Questions@XXXXXt.com.

70 Case 2:14-cv ER Document 81-6 Filed 10/17/17 Page 1 of 5 Exhibit A4

71 Case 2:14-cv ER Document 81-6 Filed 10/17/17 Page 2 of 5 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA AMY SILVIS, on behalf of themselves and all others similarly situated, Plaintiffs, Case: 2:14-CV (ER) v. AMBIT NORTHEAST, LLC Defendant. DECLARATION OF STEVEN WEISBROT, ESQ. I, STEVEN WEISBROT, ESQ., of full age, pursuant to section 1746 of title 28 of the United States Code, hereby declare under penalty of perjury as follows: 1. I am a partner at the class action notice and Settlement Administration firm, Angeion Group, LLC ( Angeion ). I am fully familiar with the facts contained herein based upon my personal knowledge. 2. I have been responsible in whole or in part for the design and implementation of more than one hundred class action notice and settlement administration plans and have taught numerous Accredited Continuing Legal Education courses on the Ethics of Legal Notification in Class Action Settlements, using Digital Media in Class Action Notice Programs, as well as Class Action Claims Administration, generally. Additionally, I am the author of frequent articles on Class Action Notice, Class Action Claims Administration and Notice Design in publications such as Bloomberg, BNA Class Action Litigation Report, Law360, the ABA Class Action and Derivative Section Newsletter and numerous private law firm publications.

72 Case 2:14-cv ER Document 81-6 Filed 10/17/17 Page 3 of 5 3. Prior to joining Angeion s executive team, I was employed as Director of Class Action services at Kurtzman Carson Consultants, a nationally recognized class action notice and settlement administrator. Prior to my notice and claims administration experience, I was employed in private law practice and I am currently an attorney in good standing in the State of New Jersey and the Commonwealth of Pennsylvania. 4. My notice work comprises a wide range of class actions that includes product defect, false advertising, employment, antitrust, tobacco, banking, firearm, insurance, and bankruptcy cases. Likewise, I have been instrumental in infusing digital and social media, as well as big data and advanced targeting into class action notice programs. For example, the Honorable Sarah Vance stated in her December 31, 2014 Order in In Re: Pool Products Distribution Market Antitrust Litigation MDL No. 2328: To make up for the lack of individual notice to the remainder of the class, the parties propose a print and web-based plan for publicizing notice. The Court welcomes the inclusion of web-based forms of communication in the plan. The Court finds that the proposed method of notice satisfies the requirements of Rule 23(c)(2)(B) and due process. The direct ing of notice to those potential class members for whom Hayward and Zodiac have a valid address, along with publication of notice in print and on the web, is reasonably calculated to apprise class members of the settlement. As detailed below, courts have repeatedly recognized my work in the design of class action notice programs: (a) For example, on February 24, 2017, The Honorable Ronald B. Rubin in James Roy et al. v. Titeflex Corporation et al., V (Md. Cir. Ct. 2013), noted when granting preliminary approval to the settlement: What is impressive to me about this settlement is in addition to all the usual recitation of road racing litanies is that there is going to be a) public notice of a real nature and b) about a matter concerning not just money but public safety and then folks will have the knowledge to decide for themselves whether to take steps to protect themselves or not. And that s probably the best thing a government can do is to arm their citizens with knowledge and then the citizens can make decision. 2

73 Case 2:14-cv ER Document 81-6 Filed 10/17/17 Page 4 of 5 To me that is a key piece of this deal. I think the notice provisions are exquisite. (emphasis added). (b) Likewise, on May 12, 2016 in his Order granting preliminary approval of the settlement in In Re Whirlpool Corp. Front Loading Washer Products Liability Litigation (MDL No. 2001), The Honorable Christopher A. Boyko ruled: The Court, having reviewed the proposed Summary Notices, the proposed FAQ, the proposed Publication Notice, 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. (c) In In Re LG Front Loading Washing Machine Class Action Litigation- Civil Action No. 08-Sl (MCA)(LDW), the Honorable Madeline Cox Arleo ruled: This Court further approves the proposed methods for giving notice of the Settlement to the Members of the Settlement Class, as reflected in the Settlement Agreement and the joint motion for preliminary approval. The Court has reviewed the notices attached as exhibits to the Settlement, the plan for distributing the Summary Notices to the Settlement Class, and the plan for the Publication Notice's publication in print periodicals and on the internet, and finds that the Members of the Settlement Class will receive the best notice practicable under the circumstances. The Court specifically approves the Parties' proposal to use reasonable diligence to identify potential class members and an associated mailing and/or address in the Company's records, and their proposal to direct the ICA to use this information to send absent class members notice both via first class mail and . The Court further approves the plan for the Publication Notice's publication in two national print magazines and on the internet. The Court also approves payment of notice costs as provided in the Settlement. The Court finds that these procedures, carried out with reasonable diligence, will constitute the best notice practicable under the circumstances and will satisfy due process. 5. Angeion Group is a leading class action notice and claims administration company formed by a team of executives that have had extensive tenures at five other nationally recognized claims administration companies. Collectively, the management team at Angeion has overseen more than 2,000 class action settlements and distributed over $10 billion to class members. The executive profiles as well as the company overview are available at 3

74 Case 2:14-cv ER Document 81-6 Filed 10/17/17 Page 5 of 5 6. Angeion has administrated class action settlements involving millions of class members. A representative list of the settlements administered by Angeion is attached hereto as exhibit B and can also be located at Through the administration of the settlements above referenced, Angeion has received, processed and secured data from defendants and other sources. Angeion has analyzed settlement class member data including performing deduplication, National Change of Address Searches (NCOA) and skip traces. Further, Angeion has of analyzed and reported on class member submitted data obtained through claim forms, correspondence, objections, exclusion requests and other means. Angeion is experienced in the application of complex claim calculations and where applicable tax withholding and reporting, as required by settlement agreements and court orders. Angeion is fully capable to administer the instant matter and has administered similar matters in the past. I hereby declare under penalty of perjury that the foregoing is true and correct. Dated: October 6, 2017 STEVEN WEISBROT 4