Frank v. City of Pensacola (Natural Gas Franchise Fee Class Action Settlement)

The Court authorized this Class Notice because you have a right to know about the settlement, and all of your options. This Class Notice explains the nature of the action that is the subject of the settlement, the general terms of the settlement, and your legal rights and options.

The Honorable Jan Shackelford of the Circuit Court in and for Escambia County, Florida is overseeing this case captioned as Eric L. Frank v. City of Pensacola, Case No. 2015 CA 001298. The person who brought the lawsuit is called the Plaintiff. The company being sued, City of Pensacola, a Florida municipal corporation, is called Defendant.

The Lawsuit asserted that the City of Pensacola improperly charged franchise fees to its natural gas customers located inside the Pensacola city limits. There were two general grounds for the lawsuit. First, that City staff was not authorized to pass the Franchise Fees to, or require them to be paid by, the Customers. Rather, the Franchise Fees were to be charged to and collected from only the City’s gas utility department.  Second, that the Franchise Fees were not valid municipal user fees; rather, they are impermissible taxes charged in violation of the Tax Preemption Doctrine of the Florida Constitution. 

Further, the City levied a Utility Service Tax on the Franchise Fees and, because the Franchise Fee charges are improper, Customers’ payments of Utility Service Taxes on those Franchise Fees were also improper and must be returned to the Customers.

A Final Judgement was entered in the Lawsuit which (i) enjoined the City continuing to charge and collect Franchise Fees from the Customers, and (ii) approved a settlement which provides for return to the Customers of the Franchise Fees which the City billed them.

In a class action, one or more people called "Plaintiffs" or "Plaintiff" sue on behalf of all people who have similar claims. Together, all of these people are called a "Class", and the individuals are called "Class Members." One court resolves the issues for all Class Members, except for those who excluded themselves from the Class.

A Partial Summary Judgement had been entered in the Lawsuit which resolved certain pivotal issues.  Rather than continuing to litigate the remaining issues, both sides agreed to the settlement. The settlement avoids the cost and risk of a trial and related appeals, while providing benefits to Class Members. The Plaintiff appointed to represent the Class, and the attorneys for the Class, Plaintiff’s counsel, think the settlement is best for all Class Members.

You are affected by the settlement and potentially a Class Member if you are or were a natural gas Customer of the of the City of Pensacola (whose natural gas utility is or was also known as Pensacola Energy or Energy Service of Pensacola) at any time since August 6, 2011, and your service location was inside Pensacola city limits.

If you are not sure whether you are included in the settlement, you may call (833) 890-3973 with questions. You may also write with questions to:

Frank v. City of Pensacola 

c/o Kroll Settlement Administration LLC

P.O. Box 225391

New York, NY 10150-5391

The settlement provides for monetary compensation for Class Members. Those Class Members who are currently natural gas customers of the City will automatically be mailed checks for their entitlement amounts.  Those “current” customers will not need to do anything to receive their payments; rather, their checks should be mailed shortly. 

Those Class Members who are no longer natural gas customers of the City will have to submit a claim.  Valid claims from those “former” customers will be paid promptly once the Settlement Administrator has verified the claim.

Each Class Member is entitled to receive from the Settlement Fund an amount equal to that Customer’s “Total Claim Entitlement Amount.”  Each Class Member’s Total Claim Entitlement Amount is the sum of the Net Settlement Amount ($12,600,000.00) multiplied by a fraction, the numerator of which is the total amount of Franchise Fees billed to the you and the denominator of which is the Total Franchise Fees Billed to All Class Members since August 6, 2011 ($12,366,732.92).  Please refer to the Settlement Agreement for further explanation.

1. Payments to Existing Customers: The Administrator will pay the Total Claim Entitlement Amount to each Existing Customer through issuance of a check. You do not have to submit a Claim to receive this benefit. For those Existing Customers who fail to cash or deposit their checks for their Total Claim Entitlement Amount within ninety (90) days from the date the Administrator mails the checks, the Administrator shall:
   1. Stop payment on such uncashed or undeposited checks;
   2. Attempt to contact such Existing Customers through secondary notification efforts as contemplated in the Administration Agreement; and
   3. Pay the Total Claim Entitlement Amount to such Existing Customers who submit Claims through either issuance of a check or, if the Customer should choose, by electronic means as agreed upon by the Customer and the Administrator.
2. Payments to Former Customers: The Administrator will pay the Total Claim Entitlement Amount to each Former Customer through either issuance of a check or, if the Customer should choose, by electronic means as agreed upon by the Customer and the Administrator. You MUST submit a Claim to receive this benefit.

To receive a settlement benefit, you must complete and submit a Claim Form online at here, or by mail to Frank v. City of Pensacola, c/o Kroll Settlement Administration LLC, P.O. Box 225391, New York, NY 10150-5391. Read the Claim Form instructions carefully, fill out the Claim Form, provide the required documentation, and submit online or by mail one year from the Administrator’s completion of the Initial Notification Process.

TO RECEIVE AN ELECTRONIC OR ACH PAYMENT FOR YOUR VALID CLAIM, YOU MUST FILE A CLAIM FORM ONLINE.

The Final Judgement confirmed that in exchange for the settlement payments, the Class Members have released the City of Pensacola from further claims relating to the general subject matter of the Lawsuit. The release is described in Section 10 of the Settlement Agreement, which is available at here.

Existing Customers (with the exception of the City of Pensacola): If you do nothing, you will automatically receive payment.

Former Customers: If you do nothing, you will not receive any settlement benefits from this settlement.

You will not be able to start a lawsuit, continue with a lawsuit, or be part of any other lawsuit against Defendant or the other Released Persons based on any claim that could have been or that was brought relating to the Data Incident.

This Class Notice summarizes the settlement. More details are in the Settlement Agreement itself.  A copy of the Settlement Agreement is available at here. You may also call the Administrator with questions or to receive a Claim Form at (833) 890-3973.

It is your responsibility to inform the Administrator of your updated information. You may do so at the address below, calling toll-free (833) 890-3973 or at the Contact page of the Settlement Website:

Frank v. City of Pensacola

c/o Kroll Settlement Administration LLC

P.O. Box 225391

New York, NY 10150-5391

PLEASE DO NOT CONTACT THE COURT, CLERK OF THE COURT OR PLAINTIFF’S COUNSEL FOR INFORMATION ABOUT THE CLASS ACTION SETTLEMENT

Class Member ID’s can be found on the Notice. If you did not receive your Class Member ID, you can download the Claim Form here. You may also request your Class Member ID through the website here or by calling (833) 890-3973.