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United States District Court for the District of Maryland, Southern Division
August 18, 2020, Decided; August 18, 2020, Filed
Case No.: GJH-15-154
Plaintiffs Michael Todd, Jerome Bonicos, and Elizabeth Donnellon bring this statutory and common law consumer fraud action against Defendants XOOM Energy, LLC ("XOOM Energy" or "XOOM"), an [*2] electricity and natural gas supplier, and ACN, Inc. ("ACN"), a marketing company that promotes XOOM's services to consumers. ECF No. 59. On March 31, 2020, the Court granted in part and denied in part Defendants' Motion for Summary Judgment. ECF No. 175. Now pending before the Court is Plaintiffs' Amended Motion for Class Certification and Appointment of Class Counsel. ECF No. 161. No hearing is necessary. See Loc. R. 105.6 (D. Md.). For the following reasons, Plaintiffs' Motion will be denied.
The Court summarized the facts of this case in its Memorandum Opinion addressing Defendants' Motion for Summary Judgment, ECF No. 175 at 1-5, and now restates the relevant facts as presented in the parties' exhibits concerning class certification, as well as in materials from the summary judgment record to which the parties cite or allude.
Defendant XOOM Energy is "the parent company of 20 subsidiary companies" that "supply electricity and/or natural gas in 19 states and the District of Columbia." ECF No. 167-6 ¶¶ 4, 6. The subsidiaries have no employees and are managed by XOOM Energy. ECF No. 162-2 at 5-6.1 XOOM operates in states that have deregulated their energy markets, which allows consumers [*3] to purchase energy from entities other than their local utility, although the utility operates and maintains the physical infrastructure that transports that energy to the consumer's location. See ECF No. 122-4 at 21. Each XOOM subsidiary supplies energy in only one state, although many states have multiple "energy markets" that are "served by one or more utilities." ECF No. 167-6 ¶¶ 7-8. The area in which a utility provides energy is that utility's "service area," and XOOM subsidiaries within a given state may provide energy in multiple utilities' service areas within the state. Id. ¶¶ 8-9. XOOM subsidiaries offer both fixed rate plans, the monthly rates for which remain constant during the term of the plan, and variable rate energy plans, in which rates may vary each month. ECF No. 122-4 ¶¶ 6-8. XOOM variable rate plans are branded as "Simpleflex" plans. See ECF No. 122-4 at 47, 56, 66.
XOOM works with several companies that promote its energy services to potential customers, including Defendant ACN. ECF No. 122-4 ¶ 31; ECF No. 167-5 ¶ 7. ACN, which is a trade name of the entity LKN Communications, Inc. ("LKN"), maintains a subsidiary called ACN Opportunity, LLC ("ACN Opportunity") [*4] which "administers a program through which independent contractors known as Independent Business Owners ('IBOs') may promote or refer customers to various products and services." ECF No. 122-5 ¶¶ 2, 5. This includes the energy plans offered by XOOM Energy subsidiaries. Id. ¶ 10, 20-21. IBOs are not employees of XOOM Energy or any of its subsidiaries, nor of LKN or any ACN entity. Id. ¶ 6; ECF No. 122-4 ¶ 33. However, IBOs can "earn commissions and bonuses in connection with certain products and services" that they successfully promote, including XOOM Energy's. Id. ¶ 8. ACN Opportunity pays these commissions and bonuses with funds provided by XOOM. ECF No. 122-4 ¶ 58.
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2020 U.S. Dist. LEXIS 149022 *; 2020 WL 4784767
MICHAEL TODD, et al., Plaintiffs, v. XOOM ENERGY MARYLAND, LLC, et al., Defendants.
Prior History: Todd v. XOOM Energy Md., LLC, 2016 U.S. Dist. LEXIS 22211 (D. Md., Feb. 22, 2016)
XOOM, Plaintiffs', energy, customers, savings, certification, promises, class member, predominance, class certification, Defendants', damages, misrepresentations, class action, subclasses, switching, bills, proposed class, subsidiaries, cases, negligent misrepresentation claim, commonality, questions, district court, variable rate, individualized, class-wide, class representative, representations, pricing