Martinez v. Agway Energy Services, LLC

“For being an Agway electricity customer,”

Agway also promised “automatically” to “include the peace of mind and added value

of” EnergyGuard.

Id. at 766

Gonzales claims that Agway’s monthly variable rate violated the terms of the

Agreement. Although she acknowledges that the Agreement allowed Agway to use its

discretion to set the monthly variable rate, she argues that Agway’s discretion was

limited by its representations that it would charge rates that were “competitive” and

“based on market costs,” and that it failed to do so. Appellant’s Br. at 33. Second, she

argues that Agway breached the Agreement by charging customers for the

EnergyGuard service after leading them to believe the service was included at no cost.

7Gonzales does not argue that the exchange recorded on the enrollment call was part of the Agreement.

On review, we conclude that the plain meaning of the Agreement’s terms regarding

how Agway would set the post-promotion variable monthly rate leaves no triable issue

of fact as to whether Agway was in breach under either theory: it was not.

A. Agway was entitled to consider more than its procurement costs when using its discretion to set monthly variable rates.

As with other types of breach of contract claims, courts in this Circuit evaluate

claims arising from energy services agreements on a case-by-case basis. The dispositive

questions are whether an agreement entitled the energy services provider to use

discretion in setting its rates and, if so, how the agreement cabined that discretion.

See, e.g., Congregation Yetev Lev D'Satmar, Inc. v. Engie Power & Gas, LLC, No. 1:22-cv-

04844-NRM-RER,

2023 WL 4674273

, at *3 (E.D.N.Y. July 21, 2023) (“Subsequent cases in

this Circuit with alleged breaches of ESCO contracts have turned on how—if at all—a

contract describes how an ESCO will determine its variable rate.”).

In Richards v. Direct Energy Services, LLC,

915 F.3d 88, 96

(2d Cir. 2019), for

example, we affirmed the district court’s grant of summary judgment to an ESCO after

the plaintiff sued for breach of contract and related claims. The plaintiff, Richards, had

signed an electricity supply agreement with Direct Energy that guaranteed him a fixed

rate of $0.0745 per kWh for one year, after which Direct Energy would begin charging a

rate that would “be variable each month at Direct Energy’s discretion.”

Id. at 94

. The

relevant agreement provided that this variable rate “may be higher or lower each

month based upon business and market conditions.”

Richards chose to continue his agreement with Direct Energy past the one-year

promotional period, and for three months thereafter he paid its variable rate.

Id. at 95

During those three months, Direct Energy’s rate was consistently $0.0236 per kWh

12 higher than the “Standard Service Rate” set by Connecticut’s Public Utilities Regulatory

Authority for the state’s two regulated-rate electricity distribution systems.

Id. at 95

. 8

In affirming the grant of summary judgment to Direct Energy, we concluded that

the contract unambiguously entitled Direct Energy to consider the objectives reflected

in the record—"achiev[ing] a target profit margin, match[ing] competitors’ prices, and

reduc[ing] customer losses”—and that although Direct Energy was bound to “exercise

[its] discretion in good faith,” Richards had not offered any evidence that it failed to do

so.

at 98–99 (internal quotation marks omitted). Accordingly, we held that “Direct

Energy did not evade the spirit of the contract or frustrate Richards’s justified

expectations” when it exercised its contractually provided “discretion to set the variable

rate based upon business and market conditions.”

Id. at 98

(internal quotation marks

omitted).

In Mirkin v. XOOM Energy, LLC,

931 F.3d 173

(2d Cir. 2019), on the other hand,

we reversed a district court’s dismissal of breach of contract and other claims against

another New-York-operating ESCO: XOOM Energy, LLC (“XOOM”). There, the

relevant agreement did not describe the monthly variable rate as being set according to

8Richards arose in the context of Connecticut’s electricity market, rather than New York’s, see Richards,

915 F.3d at 93

, but the regulatory schemes in both states resemble each other closely enough that our reasoning there appropriately bears upon our result here. Connecticut’s electricity market was deregulated in 2000, meaning that while local utilities still “maintain[ed] monopoly control over electricity distribution systems,” private retail electricity suppliers (such as defendant Direct Energy) could “piggyback on [local] electricity distribution systems” and “sell to consumers at market-based, unregulated rates.”

Much like ESCOs in New York, private suppliers in Connecticut were allowed to offer variable prices, promotional rates, or renewably sourced electricity to entice new customers. See

But the Public Utilities Regulatory Authority (“PURA”)—Connecticut’s analogue to New York’s Commission—still maintained supervisory authority over these suppliers. See

PURA licensed them, periodically reviewed their licenses, and policed how consumer contracts were worded.

The private suppliers’ rates, however, were not regulated.

13 the ESCO’s discretion. Rather, it stated that the plaintiffs would pay a monthly variable

rate “based on XOOM’s actual and estimated supply costs which may include but not

be limited to prior period adjustments, inventory and balancing costs.”

Id. at 175

. We

concluded that the plaintiffs had plausibly alleged a breach because both their

originally filed complaint and their proposed amended complaint alleged that XOOM’s

rates over time “showed significant upward deviations from the Market Supply Cost

and continued to rise even when that cost fell,” despite XOOM’s promise to base its

rates on “actual and estimated supply costs.”

Id. at 177, 175

The difference between the contractual language in Mirkin and that in Richards

was “critical[]” to our decision to reverse in Mirkin.

at 178 n.3. While the Mirkins’

contract “required XOOM to base its variable rates on its supply costs . . . the contract in

Richards, by its plain terms, imposed no such requirement; the relevant provision there

made no mention of procurement costs.”

Here, Gonzales argues that her agreement with Agway is more like the

agreement in Mirkin than the one at issue in Richards. 9 More specifically, she argues that

9Gonzales also contends that Richards does not apply here, reasoning that “Richards rejected a plaintiff’s assertion that, to satisfy its implied duty of good faith and fair dealing, an ESCO must charge a rate equal to, or lower than, a utility’s rate,” something Gonzales does not assert here. Appellant’s Br. at 39, 44. In Gonzales’s view, Richards’s applicability is limited to claims that ESCOs’ rates are capped by incumbent utility rates. We do not read Richards so narrowly.

Richards’s allegations resembled those at issue here, and in large part relied on evidence that “the variable rate stayed constant while procurement costs fluctuated from the winter of 2013– 2014 through August 2015.” Richards,

915 F.3d at 97

. Richards’s argument was thus much broader than Gonzales suggests: Richards’s claim for breach of the implied covenant of good faith and fair dealing rested on his assertion that “a reasonable consumer would understand [Direct Energy’s] contract language to mean that the variable rate would fluctuate with Direct Energy’s procurement costs.”

(cleaned up). Accordingly, our decision turned on our view that the contract allowed Direct Energy to consider various “business and market conditions,” including its own profit margins, when setting its rates, and that these factors would not necessarily fluctuate in parallel with market costs. See

at 97–98. The same is true here.

14 because “[default] utility rates serve as a reasonable proxy for market costs,” and

because there were “significant discrepancies between Defendant’s rates and [default]

utility rates, as well as instances where Defendant’s rates d[id] not rise or fall as market

costs r[o]se and f[e]ll,” Agway must have breached its promise to base its variable rates

on “its procurement costs or other market-related factors.” Appellant’s Br. at 35–36. We

disagree.

First, Gonzales’s agreement with Agway did not promise that its price-setting

discretion would be limited to its procurement costs. To be sure, Gonzales’s agreement

with Agway referenced procurement costs when it stated that the variable rate “shall

each month reflect the cost of electricity acquired by Agway from all sources.” App’x at

767. But procurement costs were only one among several named factors, including

unspecified “market-related factors” that the Agreement gave Agway “discretion” to

consider when setting its monthly variable rate. Id.; see also Brown v. Agway Energy

Servs., LLC, 822 Fed. App’x 100, 103 (3d Cir. 2020) (affirming district court’s dismissal of

breach of contract claims based on substantially similar language in Agway’s contract).

Unlike in Mirkin, language promising that the monthly variable rate would be based

solely “on [the energy service provider’s] actual and estimated supply costs,” is

nowhere to be found in Gonzales’s agreement with Agway. Cf. Mirkin,

931 F.3d at 175

Second, it is not clear to us that the term “market-related factors” in the

Agreement is synonymous with and limited to market costs such as the cost of

procuring energy. In Richards, for example, we appeared to interpret the similar term

“business and market conditions” to embrace considerations like reducing customer

losses, achieving target profit margins, and matching competitors’ rates.

915 F.3d at 98

But Gonzales’s breach of contract claim would fail even if we were to agree that

Agway’s discretion to consider “market-related factors” allowed it only to consider

15 “market costs,” because the Agreement also expressly permitted Agway to consider its

“costs, expenses and margins” when setting prices. App’x at 767.

Gonzales does not argue that Agway considered factors other than its

procurement costs, market-related factors, and its costs, expenses, and margins when

setting its variable rates. Unlike the defendant in Mirkin, Agway has pointed to several

factors expressly listed in the Agreement that can explain the differences between

Agway’s rates and the cost of obtaining electricity from the default utility during the

relevant period. Compare Appellee’s Br. at 5, and App’x 775–78, with Mirkin,

931 F.3d at 177

(explaining that XOOM “failed, in its briefs and at oral argument, to cast doubt on

the plausibility of [the Mirkins’] allegations” by explaining the “substantial deviations”

between its rates and the Market Supply Cost).

In sum, the plain language of the Agreement permitted Agway to consider

factors beyond its procurement costs when setting its monthly variable rates.

Accordingly, no genuine dispute of material fact remains as to whether Agway

breached its obligations to Gonzales when it set its rates based on factors like its costs,

expenses, and margins.

B. The Agreement entitled Agway to include the cost of EnergyGuard in its monthly variable rate.

As explained above, Agway was entitled to consider its "costs, expenses and

margins,” when setting rates, as long as it considered those factors in good faith. App’x

at 767; Richards,

. Accordingly, it was entitled to include the cost of

providing its EnergyGuard program in its monthly variable rate.

Gonzales argues otherwise, contending that the Agreement bars any charge for

the EnergyGuard service, whether disaggregated or rolled into the final electricity

charge, because the Agreement implies that EnergyGuard will be provided for free.

Appellant’s Br. at 48–51. In urging this approach, she relies principally on the Cover

16 Letter, which states, “For being an Agway electricity customer, we also include the

peace of mind and added value of Agway Energy Services EnergyGuard Repair

Program.” 10 App’x at 766. Gonzales also stresses Agway’s representation that

EnergyGuard would be included “automatically” and the fact that EnergyGuard is not

included by name in the list of factors that Agway is entitled to consider when setting

its variable rate. Appellant’s Br. at 49–50.

We read the Agreement differently. The plain terms of the Cover Letter say only

that EnergyGuard is included with Agway’s services. The attached EnergyGuard

brochure, too, says only that Agway customers “automatically receive all the benefits

of” EnergyGuard. App’x at 769. Nothing in the Agreement promised that Agway

would absorb the cost of EnergyGuard, or that the cost of EnergyGuard was not among

the “costs, expenses and margins” that Agway explicitly stated it would consider in

setting the variable monthly rate. See id. at 767; see also Brown, 822 Fed. App’x at 103

(“Further, the provision makes clear that Agway can consider its own ‘costs, expenses,

and margins’ in setting prices. One obvious cost is Agway’s EnergyGuard service.”).

Gonzales urges that, even if Agway was permitted to charge in some way for

EnergyGuard, Agway’s “variable rate could only include an amount reflective of

EnergyGuard’s actual costs.” Appellant’s Br. at 50–51. Again, Gonzales points to

nothing in the Agreement or our precedent that supports this contention. For the

reasons already stated, Agway’s “discretion” to set its variable monthly rate based on,

among other factors, its “costs, expenses and margins,” allowed it to charge some

10Gonzales urges that her interpretation is further supported by a proposed script for customer service representatives (produced by Agway in response to document requests during the Commission’s proceedings). She does not suggest, however, that this proposed script was part of the contract she had with Agway, nor that any Agway representative ever read this script to her. We therefore have no reason to consider it.

17 amount beyond its actual costs to operate EnergyGuard, so long as it exercised that

discretion in good faith. App’x at 767; see Richards,

C. Gonzales has not raised a triable issue of fact as to whether Agway exercised its discretion in bad faith.

While Gonzales appears to argue that Agway acted in bad faith when it included

in its rates what she terms “an exorbitant charge for EnergyGuard, unrelated to its

actual costs,” Appellant’s Br. at 51, she has failed to raise a triable issue of fact that it

acted in bad faith.

In support of her argument, Gonzales points to the proffered testimony of an

expert witness, Dr. Frank Felder.

In his expert report, Dr. Felder calculated the

“value” of EnergyGuard to customers and compared it with the cost of EnergyGuard

according to one of Agway’s experts. App’x at 510–11. Dr. Felder then subtracted

EnergyGuard’s purported value from his previous “overcharge calculations,” which

were based on comparisons between the cost of electricity from Agway and the cost of

electricity from default utilities. Id. at 511. But Dr. Felder calculated these

“overcharge[s]” based on his subjective and unsupported view of what a “reasonable

margin” would have been. See id. at 347; 512.

The district court concluded that Dr. Felder’s report was inadmissible under

Federal Rule of Evidence 702, because his conclusions about the overcharges were

based on “unreliable methodology and insufficient data”—namely, his subjective views

on the reasonableness of margins and the unsupported contention “that the proper

comparison for [Agway's] variable rate is solely the rates of the incumbent utilities.”

Martinez,

2022 WL 306437

, at *14.

It was not “manifestly erroneous” for the district court to exclude Dr. Felder’s

report. Amorgianos v. Nat’l R.R. Passenger Corp.,

303 F.3d 256, 265

(2d Cir. 2002) (internal

quotation marks omitted). As explained above and below, the proffered comparisons

18 between Agway’s prices and those of the default utilities are legally insufficient—

without more, and in light of the Agreement’s express terms—to raise a triable issue of

fact as to Gonzales’s breach of contract and GBL claims. And contrary to Gonzales’s

argument that the EnergyGuard-related portions of Dr. Felder’s report should not have

been excluded because they “ha[d] nothing to do with [default] utility rates,”

Appellant’s Br. at 54, Dr. Felder calculated the “value” of EnergyGuard for the specific

purpose of subtracting that number from his legally insufficient overcharge

calculations. App’x at 511. It was not an abuse of discretion for the district court to

exclude his EnergyGuard-related calculations with the rest of the report.

Gonzales does not point to any other evidence that would raise a triable issue of

fact as to whether Agway exercised its discretion in bad faith. The same was true in

Richards, where we concluded that the plaintiff had not raised a triable issue of fact as to

bad faith because he merely argued that prices were “too high” without providing

any evidence that they were any higher than competing ESCOs’ rates.

. 11

Indeed, the language of the Agreement between Gonzales and Agway makes this case

clearer than Richards. The contract at issue in Richards did not define “business and

market conditions,” leading Judge Pooler to express the view, in her partial dissent, that

11Richards interpreted and applied the analogous implied covenant of good faith and fair dealing that arises under Connecticut law. Much as it does under New York law, Connecticut’s implied covenant of good faith and fair dealing attaches to every contract and “requires that neither party do anything that will injure the right of the other to receive the benefits of the agreement.” Richards,

915 F.3d at 97

(internal quotation marks and alterations omitted) (quoting Renaissance Mgmt. Co. v. Conn. Hous. Fin. Auth.,

281 Conn. 227, 240

(2007)). To prevail on a claim for breach under Connecticut law, the plaintiff must show that the defendant’s “allegedly wrongful acts were ‘taken in bad faith.’”

(quoting De La Concha of Hartford, Inc. v. Aetna Life Ins. Co.,

269 Conn. 424, 433

(2004). This “in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one’s rights or duties, but by some interested or sinister motive.”

(internal quotation marks omitted).

19 a reasonable customer could interpret the term to include only “those conditions that

affect Direct Energy’s costs of providing electricity,” such as “fixed costs of labor,

facilities, legal representation . . . and the more variable cost of purchasing electricity

and electricity derivatives. Id. at 111 (Pooler, J., dissenting in part). Based on evidence

that Direct Energy “raised variable-rate prices to recoup anticipated losses among fixed-

rate customers, and . . . smoothed variable-rate prices so that customers would not

notice how high they were getting,” Judge Pooler saw a triable issue of fact as to

“whether Direct Energy’s reasons [for setting its variable rate] amounted to bad faith or

a breach of the contract given the letter and spirit of the contract.” Id. at 112.

Here, on the other hand, Agway’s contract with Gonzales expressly stated that

Agway could consider its “costs, expenses and margins” when setting its rates. App’x at

767. Further, Agway specified that “[s]avings are NOT guaranteed” and made no

representations that its prices would always be lower than those of the incumbent

utilities, for example. Id. Agway (like Direct Energy) provided “exactly what [Gonzales]

bargained for: after paying a fixed rate below the [default utility rate] for a fixed time,

[Gonzales] would pay a variable rate set at [Agway’s] discretion.” See Richards,

. In doing so, it did not breach its contract.

D. Agway’s representation that its rate would be “competitive” does not alter our analysis.

Gonzales also argues that Agway breached the Agreement by failing to honor a

promise to provide “competitive” rates. Appellant’s Br. at 35. In support, she relies on

the same information discussed above: price comparisons that show “sharp

discrepancies between Defendant’s rates and rates charged by [default] utilities” during

Gonzales’s two-year enrollment period.

She contends that the incumbent utilities are

Agway’s main competitors, and accordingly suggests that consistently unfavorable

comparison of Agway’s unregulated rates with incumbent utility rates suffices to

20 establish that Agway breached the Agreement by setting rates that were not

“competitive.”

at 35–36.

We are not persuaded. First, “competitive” is a broad and general term that is

not defined in the Agreement. See App’x at 766–70. The portions of the Agreement

listing factors that Agway may consider when exercising its rate-setting discretion, on

the other hand, are significantly more specific. Under “fundamental rule[s] of contract

construction . . . specific words will limit the meaning of general words if it appears

from the whole agreement that the parties’ purpose was directed solely toward the

matter to which the specific words or clause relate.” Global Reinsurance Corp. of Am. v.

Century Indemnity Co.,

22 F.4th 83

, 97 n.7 (2d Cir. 2021) (internal quotation marks

omitted); see also Lockheed Martin Corp.,

639 F.3d at 69

(“If the document as a whole

makes clear the parties’ over-all intention, courts examining isolated provisions should

then choose that construction which will carry out the plain purpose and object of the

agreement.”) (internal quotation marks omitted and alteration adopted).

Here, the whole agreement between Agway and Gonzales makes it apparent that

the parties intended to contract for energy services on financial terms governed by the

more specific language giving Agway discretion to set prices based on listed factors. See

App’x at 767. Indeed, Gonzales has not explained what she understands “competitive”

to mean. Without a satisfactory definition of “competitive,” any contractual promise to

charge a competitive rate lacks the definiteness that New York law requires to make it

enforceable. Cf. Gutkowski v. Steinbrenner,

680 F. Supp. 2d 602

, 611–12 (S.D.N.Y. 2010)

(collecting cases holding that vague and generalized promises like those for “fair

compensation,” “substantial income,” or “market rate” are insufficiently definite).

Second, even if we agreed with Gonzales that the Agreement promised a

“competitive” rate, it is not obvious to us which energy services companies Agway was

promising to compete against when setting its rates. Gonzales argues that the

21 incumbent utilities provide the proper comparators. Appellant’s Br. at 35. Agway

argues that it should be understood as competing against the other ESCOs—

particularly because ESCOs are regulated differently than incumbent utilities.

Appellee’s Br. at 5–7. The plausibility of each interpretation serves only to underscore

the vagueness of the reference to “competitive” rates.

Third, Agway presented expert evidence comparing its variable rates to rates

offered by other ESCOs in territories where Agway operated, for each quarter from

2014 to 2019. This comparison showed that in ninety-eight percent of the surveyed

periods, Agway’s variable rate was lower than the median variable rate offered by other

ESCOs for electricity alone (without any additional energy-related product like

EnergyGuard). Accordingly, Gonzales cannot argue that Agway failed to set rates that

were competitive with other ESCOs. Instead, her counsel emphasized at oral argument

that Agway’s rates were “sixty percent higher” than those of the incumbent utility. Oral

Arg. Audio at 50:41–45. According to Gonzales’s complaint, however, Agway’s rate was

not consistently sixty percent higher than Central Hudson’s during the Agreement

period; rather, it varied between 0.3145% and 134.6939% higher than Central Hudson’s

rate during that time.

Taking the above points together, we conclude that Gonzales failed to raise a

triable issue of fact as to whether Agway made an enforceable promise as to the

competitiveness of its rate levels.

We do not suggest, however, that energy services companies have carte blanche

to charge their customers any rate they wish, so long as they reserve rate-setting

discretion in their contracts. As discussed above, and as we have held before, energy

services companies must exercise their rate-setting discretion in “good faith.” Richards,

22 Energy services companies also remain accountable to the Commission. Notably,

around the same time that Gonzales was contracting with Agway for energy services,

the Commission acknowledged that the New York retail energy market was “not

providing sufficient competition or innovation to properly serve consumers,” and that

[c]ommodity price differentiation has not worked.” Notice of Evidentiary and Collaborative

Tracks and Deadline for Initial Testimony and Exhibits, at 3, State of N.Y. Pub. Serv.

Comm’n, Case 15-M-0127, et al. (issued December 2, 2016). It initiated a multi-year

process to re-evaluate the market, after which the Commission issued an order that

prohibited ESCOs from “offering variable-rate, commodity-only service except where

the offering includes guaranteed savings” over incumbent utilities on a year-over-year

basis. App’x at 1036, 1072–75 (Commission’s Dec. 2019 Order). The 2019 Order included

a few exceptions, including one that provided Agway, by name, a “limited

opportunity” to continue offering variable-rate service without guaranteed savings, in

light of “the specific, credible evidence Agway submitted regarding the energy-related

value of [EnergyGuard].” Id. at 1056. 12

* * *

In summary, the Agreement’s language leaves no doubt that Agway’s pricing

decisions were permissible. Gonzales has not established a breach of contract by

showing that Agway considered its costs, margins, and expenses—including the costs

of (and profits from) EnergyGuard—in setting its monthly variable rate, nor by showing

12Gonzales argues that the Commission’s 2019 Order bears on her claims because it reflects a public policy judgment that ESCOs like Agway must compete against—and guarantee savings over—default utilities. Appellant’s Br. at 16–17, 46–47. This argument fails for two simple reasons. First, such a public policy did not prevail until the Commission announced its new ESCO rules in 2019—more than three years after Gonzales contracted with Agway. Second, any public policy that the 2019 Order might have communicated did not extend to Agway, which was expressly exempted from the new guaranteed savings requirement. App’x at 1056.

23 that Agway failed to charge rates comparable to those charged by the incumbent local

utilities, rather than other ESCOs. As a matter of law, the Agreement’s language dooms

these theories. The district court therefore correctly granted summary judgment to

Agway. See Topps,

526 F.3d at 68

(summary judgment is appropriate if contractual

language is “wholly unambiguous”). Indeed, a contrary result would risk turning

courts into rate-setting agencies treading on the Commission’s mandate, an untenable

outcome.

II. GBL claims

Section 349 of New York’s GBL outlaws “[d]eceptive acts or practices in the

conduct of any business, trade or commerce or in the furnishing of any service in this

state.”

N.Y. Gen. Bus. L. § 349

(a). Section 349-d specifies that “[n]o person who sells or

offers for sale any energy services for, or on behalf of, an ESCO shall engage in any

deceptive acts or practices in the marketing of energy services.”

Id.

§ 349-d(3). “To state

a claim for a § 349 violation, ‘a plaintiff must allege that a defendant has engaged in

(1) consumer-oriented conduct that is (2) materially misleading and that (3) plaintiff

suffered injury as a result of the allegedly deceptive act or practice.’” Nick’s Garage, Inc.

v. Progressive Cas. Ins. Co.,

875 F.3d 107, 124

(2d Cir. 2017) (quoting City of New York v.

Smokes-Spirits.com, Inc.,

12 N.Y.3d 616, 621

(2009)). “‘Whether a representation or an

omission, the deceptive practice must be likely to mislead a reasonable consumer acting

reasonably under the circumstances.’”

(quoting Stutman v. Chem. Bank,

95 N.Y.2d 24, 29

(2000)).

Gonzales argues that issues of fact remain as to whether Agway engaged in

deceptive practices, asserting that (1) Agway falsely represented that its variable rate

would be competitive and based on market costs, and (2) Agway charged for

EnergyGuard even though statements in the Cover Letter and enrollment call, along

24 with the absence of EnergyGuard from the definition of Agway’s variable rate, can all

be construed to mean that EnergyGuard would be provided free of charge.

But having ruled above that the Agreement unambiguously permitted Agway to

exercise its discretion to incorporate its costs, expenses, and margins into its monthly

variable rate, we also find no triable issue of fact as to whether the Agreement’s

language would “be likely to mislead a reasonable consumer” on these two issues. See