United States District Court, W.D. Arkansas, Fayetteville Division
OPINION AND ORDER
TIMOTHY L. BROOKS, UNITED STATES DISTRICT JUDGE
before the Court are:
• Plaintiffs Susan Mojica's and Thomas Mojica's
Motion for Partial Summary Judgment (Doc. 237), Memorandum of
Law in Support (Doc. 238), and Statement of Facts (Doc. 239);
Defendant Securus Technologies, Inc.'s
(“Securus”) Memorandum of Law in Opposition (Doc.
319) and Response to Plaintiffs' Statement of Facts (Doc.
320); and Plaintiffs' Reply (Doc. 336);
• Securus's Motion for Summary Judgment (Doc. 232),
Memorandum of Law in Support (Doc. 233), and Statement of
Facts (Doc. 234); Plaintiffs' Memorandum of Law in
Opposition (Doc. 324) and Response to Securus's Statement
of Facts (Doc. 318); and Securus's Reply (Doc. 330);
• Securus's Motion for Class Decertification (Doc.
224), Memorandum in Support (Doc. 225), and Request for
Judicial Notice (Doc. 226); Plaintiffs' Responses in
Opposition to Securus's Motion for Class Decertification
(Doc. 322) and to Securus's Request for Judicial Notice
(Doc. 323); and Securus's Replies in Support of its
Motion for Class Decertification (Doc. 331) and of its
Request for Judicial Notice (Doc. 332); and
• Securus's Motion for Primary Jurisdiction Referral
(Doc. 200) and Memorandum in Support (Doc. 200-1);
Plaintiffs' Response in Opposition (Doc. 201);
Securus's Reply (Doc. 205); Plaintiffs' Sur-Reply
(Doc. 207); and Securus's Supplemental Memorandum of Law
in Support (Doc. 329).
reasons given below, the Court will DEFER RULING on these and
all other pending Motions in this case, and will
ADMINISTRATIVELY STAY ALL PROCEEDINGS in this case until the
resolution of any petition for rehearing en banc
that may be filed in the case of Global Tel*Link v.
FCC, 859 F.3d 39 (D.C. Cir. 2017).
provides inmate telephone calling services
(“ICS”) at correctional facilities throughout the
United States. Plaintiffs have brought this class action
against Securus, alleging that Securus charged them unjust
and unreasonable rates for interstate ICS calls in violation
of the Federal Communications Act (“FCA”) at 47
U.S.C. § 201 et seq. and the common law of
unjust enrichment. See Doc. 171. On February 3,
2017, this Court certified a nationwide class for
Plaintiffs' FCA claims, along with two subclasses for
their unjust enrichment claims. See Doc. 187.
Discovery in this case has concluded, and trial is set to
occur during the two-week term beginning on July 24, 2017.
See Doc. 189, pp. 1, 3.
original complaint in this lawsuit was filed on August 14,
2014. See Doc. 1. On October 20 of that year,
Securus filed a motion asking this Court to refer this case
to the Federal Communications Commission (“FCC”),
or in the alternative to stay these proceedings, see
Doc. 10, pending the resolution of an appeal in the D.C.
Circuit from a September 26, 2013 Report and Order and
Further Notice of Proposed Rulemaking (“Interim Rate
Order”) by the FCC which set interim caps on rates for
interstate ICS, see D.C. Cir. Case No. 13-1280, Doc.
1470703. But then on December 10 of that year, the FCC asked
the D.C. Circuit to hold that case in abeyance “pending
the issuance of final rules” regarding ICS “which
could moot or significantly alter the scope of” the
challenges that had been brought against the Interim Rate
Order in that case. See D.C. Cir. Case No. 13-1280,
Doc. 1526582, p. 1. Less than a week later, the D.C. Circuit
granted that request, see D.C. Cir. Case No.
13-1280, Doc. 1527663. This Court believed the FCC had
already provided sufficient guidance to aid this Court's
adjudication of the instant case, and was rather skeptical of
the notion that the related proceedings before the FCC and
the D.C. Circuit would be resolved any time soon.
See Doc. 36, pp. 5-7. Accordingly, on January 29,
2015, this Court entered an Order denying Securus's
request to stay the instant lawsuit. See id.
November 5, 2015, the FCC issued a Second Report and Order
and Third Further Notice of Proposed Rulemaking
(“Second Rate Order”) on ICS-the aforementioned
“final rules” foreshadowed in the FCC's
December 10, 2014 motion in the D.C. Circuit-which prompted
another appeal to the D.C. Circuit. See D.C. Cir.
Case No. 15-1461, Doc. 1595333. The Second Rate Order turned
out not to be so “final” after all, as on August
9, 2016 the FCC released an Order on Reconsideration
(“Third Rate Order”), see D.C. Cir. Case
No. 15-1461, Doc. 1629773, pp. 10-45, which predictably
spawned yet another appeal to the D.C. Circuit, see
D.C. Cir. Case No. 16-1321, which is also being held in
abeyance pending that Court's disposition of the appeal
from the Second Rate Order, see D.C. Cir. Case No.
16-1321, Doc. 1644302.
that appeal from the Second Rate Order-on June 13, 2017, a
little less than one month ago, the D.C. Circuit issued its
Judgment in that case, vacating certain provisions in the
Second Rate Order and remanding to the FCC for further
proceedings with respect to certain matters. See
D.C. Cir. Case No. 15-1461, Doc. 1679362. All four of the
instant Motions were filed before the D.C. Circuit issued its
June 2017 decision, and subsequent briefing on all four
Motions discusses the extent to which that decision impacts
their resolution. The parties agree that to whatever extent
that decision concerns the instant case, it is binding on
this Court in the same manner it would be if the Eighth
Circuit had issued it. See 28 U.S.C. § 2342(1)
(vesting “exclusive jurisdiction” in “[t]he
court of appeals (other than the United States Court of
Appeals for the Federal Circuit)” to “enjoin, set
aside, suspend (in whole or in part), or to determine the
validity of . . . all final orders of the [FCC]”); 28
U.S.C. § 2112 (requiring the multidistrict litigation
panel to consolidate into one circuit such appeals of FCC
orders that are lodged in multiple circuits); Peck v.
Cingular Wireless, LLC, 535 F.3d 1053, 1057 (9th Cir.
2008) (the appellate panel reviewing challenged FCC
regulations “remains the sole forum for addressing the
validity of the FCC's rules, ” and its analysis is
binding on all district courts around the country (internal
quotation marks and alterations omitted)). But
unsurprisingly, the parties have widely divergent views on
the extent to which the D.C. Circuit's decision last
month concerns the instant case in the first place.
different matters were discussed in the D.C. Circuit's
majority opinion in that case, but three issues of direct
relevance to the instant case are: (1) its holding that the
FCC's “categorical exclusion of site commissions
from the calculus used to set ICS rate caps” in the
Second Rate Order was arbitrary and capricious “because
site commissions obviously are costs of doing business
incurred by ICS providers, ” Global Tel*Link,
859 F.3d at 55-57 (D.C. Cir. 2017); (2) its holding that the
FCC's use of industry-wide average costs in setting rate
caps “was not the product of reasoned decisionmaking,
” see Id. at 57-58; and (3) its holding that
although the FCC has authority to cap ancillary fees for
interstate calls but not for intrastate calls, the Court
could not “discern from the record whether ancillary
fees can be segregated between interstate and intrastate
calls” because the FCC had unlawfully capped ancillary
fees for all calls without distinguishing between
inter- and intrastate calls, see Id. at 58. The
classes this Court certified in the instant case are defined
with reference to deposit fees that class members paid to
fund prepaid accounts, and also with reference to site
commissions that Securus paid correctional facilities.
See Doc. 187, pp. 20-21.
Court discussed with the parties during a pretrial conference
that was held on July 7, 2017, this Court's initial
impression is that the majority opinion's reasoning in
the June 2017 D.C. Circuit case would appear to cast serious
doubt onto the viability of the theory of liability as to
site commissions that Plaintiffs advanced in support of class
certification earlier this year. Plaintiffs disagree with
that interpretation of the D.C. Circuit's decision, but
even Plaintiffs would surely agree that, at a minimum, that
decision has dramatically altered the legal landscape on the
eve of trial in this matter. By the Court's arithmetic,
the deadline to file a petition for rehearing en
banc from that decision is Friday, July 28, 2017-the
fifth day of the trial in the instant matter. See
Fed. R. App. P. 35(c); 40(a)(1)(B). The Court has no way of
knowing now whether a petition for rehearing en banc
will actually be filed or granted, and much less of knowing
whether an en banc rehearing would result in a
reversal of the June 2017 decision; but given that a
definitive resolution to the first of this chain of
contingencies will likely occur before our instant trial is
presently set to conclude, it appears to this Court that the
most prudent course at this point is to stay all proceedings
in this case. Otherwise, this Court runs the risk of issuing
dispositive or semi-dispositive rulings and conducting a
2-week trial in reliance on legal authority whose binding
effect is called into significant doubt before the trial is
even concluded, potentially opening the door for burdensome
motion practice on reconsideration of prior orders and even
for a new trial. This would not be an efficient use of
judicial resources for the Court or for the parties, and it
would expose all parties to an unnecessary risk of harm.
See United Fire ...