Bowers v. Windstream Kentucky East, LLC et al

Filing 88

MEMORANDUM OPINION AND ORDER by Judge John G. Heyburn, II on 1/23/2012 denying in part 82 Motion for Reconsideration filed by Windstream Kentucky East, LLC, Windstream Kentucky West, LLC. The Court will consider the remainder of Defendants' objections and the precise definition of any class to be certified only after receiving further briefing. cc: Counsel (CDF)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
CIVIL ACTION NO. 3:09CV-440-H
DANA BOWERS, et al.

PLAINTIFF(S)

V.
WINDSTREAM KENTUCKY EAST, LLC, et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This lawsuit concerns the billing practices of Defendants, Windstream Kentucky East and
Windstream Kentucky West (collectively “Windstream”), which are telecommunications
companies providing telephone, cable, and internet services to thousands of Kentucky residents.
Plaintiffs, customers of Windstream, allege that Defendants improperly charged rates in violation
of their federal tariffs. In its October 3, 2011 Order (“Summary Judgment Order”), the Court
partially granted Plaintiffs’ Motion for Summary Judgment as to Counts 1 and 2 of the
Complaint, on the question of liability, and reserved judgment on an amount certain of damages.
The Court’s subsequent Order, dated October 12, 2011 (“Class Certification Order”), granted
Plaintiffs’ Motion for Class Certification1, concluding that Plaintiffs satisfied requirements
pursuant to both Federal Rules of Civil Procedure 23(b)(1) and (b)(3).
Defendants now request clarification and reconsideration as to six main issues: (1) the
defined class and the claims and defenses to be resolved class-wide; (2) whether the propriety of
the GRS can be determined class-wide; (3) the Court’s partial ruling on summary judgment prior

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The parties have expressed some disagreement as to the scope of class certification in the Court’s previous
Order. To clarify any confusion, the Court’s Class Certification Order pertained only to Counts 1 and 2 of the
Complaint and did not encompass claims that are currently stayed, pending decisions by the Kentucky Public
Service Commission.

to class certification; (4) the certification of the proposed class under both Federal Rules of Civil
Procedure 23(b)(1) and (b)(3); (5) Windstream’s affirmative defenses; and (6) the superiority of
a class action as means of litigating this case.
The Court held a conference to discuss all aspects of the case. The Court can resolve
some of Defendants’ objections without further briefing.
I.
Defendants’ first two arguments are related. First, they argue that the Court’s Class
Certification Order violates Federal Rule of Civil Procedure 23(c)(1) by failing to define the
scope of the class, as well as the claims, defenses, and issues to be resolved class-wide. In
seeking clarification, Defendants urge the Court to exclude from the class: (1) any customers
who have settled their GRS claims with Windstream; and (2) customers who purchase services
pursuant to negotiated contracts.
Second, Defendants argue that Plaintiffs failed to prove that their individual claims are
the same claims for every other proposed class member. According to Defendants, “the myriad
arrangements and agreements by which Windstream provides service to its customers,” and
determination of whether the GRS was improperly charged and collected as to Plaintiffs cannot
be extrapolated to all other Windstream customers.
At a conference, the Court discussed at considerable length these two issues and issues
related to them. The Court determined that it needed additional advice from counsel as to a more
specific class definition and the extent to which the various interests of the class are adequately
represented. The Court will issue a separate order as to that briefing.
II.

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Third, Defendants urge that the principle of “one-way intervention” has been violated by
entering partial summary judgment in favor of Plaintiffs prior to ruling on the issue of class
certification. The Court finds no basis supporting this argument. The Sixth Circuit has
“consistently held that a district court is not required to rule on a motion for class certification
before ruling on the merits of [a] case.” Miami Univ. Wrestling Club v. Miami Univ., 302 F.3d
608, 616 (6th Cir. 2002) (citing Sprague v. Gen. Motors Corp., 133 F.3d 388, 397 (6th Cir.
1998); Jibson v. Mich. Educ. Ass’n-NEA, 30 F.3d 723, 734 (6th Cir. 1994)). Federal Rule of
Civil Procedure 23 simply does not obligate district courts to proceed in such a manner. Id.
Accordingly, Defendants’ argument fails.
III.
Fourth, Defendants question the Court’s decisions to certify a class under both Rule
23(b)(1) and 23(b)(3), in light of the recent Supreme Court opinion from Wal-Mart Stores, Inc.
v. Dukes, 131 S. Ct. 2541 (2011). In its Class Certification Order, the Court indicated that
Plaintiffs established their qualification as a class under both provisions. Because district courts
may amend or alter class certification orders at any time prior to final judgment, it is not
uncommon that the bases for certification are redefined after an initial order has been issued.
Here, however, the Court can conclude that between the two grounds for proceeding as a class
action, Plaintiffs more aptly qualify under Rule 23(b)(3). Thus, this action will proceed forward
as a Rule 23(b)(3) class action.
IV.
Fifth, Defendants contend that the Court failed to address its affirmative defenses,
constituting a violation of Defendants’ substantive due process rights. In its Summary Judgment

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Order, the Court considered and flatly rejected Defendants’ affirmative defenses as to Counts 1
and 2, explaining that the Filed Rate Doctrine overrides equitable defenses. (“Windstream’s
defenses here cannot supercede the Filed Rate Doctrine.”). To suggest that Defendants were
somehow denied their constitutional due process rights is puzzling. Of course, Windstream may
still assert defenses as to the amount of damages for Counts 1 and 2, as well as defenses to the
remaining Counts.
V.
Finally, Defendants argue that, in light of the complexities presented by this case, a class
action is not superior. Defendants urge the Court to refer this matter to the Federal
Communications Commission. As the Court explained in its Summary Judgment Order, an
agency’s statutory interpretation should be regarded where Congress fails to directly address an
issue and “the agency’s answer is based on permissible construction of the statute.” Jewish
Hosp., Inc. v. Sec’y of Health and Human Servs., 19 F.3d 270, 273 (6th Cir. 1994) (quoting
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984)).
However, class certification does not implicate interpretation of the Communications Act and the
Court fails to see why the FCC should be charged with this unrelated task. Class certification is
a task within the Court’s jurisdiction and the Court declines to defer to the FCC in this regard.

The Court being otherwise sufficiently advised,
IT IS HEREBY ORDERED that Defendants’ Motion for Reconsideration is DENIED IN
PART.

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The Court will consider the remainder of Defendants’ objections and the precise
definition of any class to be certified only after receiving further briefing.

Date:

cc:

January 23, 2012

Counsel of Record

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