8th Circuit Reverses Lower Court on Dish Motion to Deny

A lower court was wrong when it denied Dish Network's motion to dismiss a lawsuit brought by Dish subscribers seeking damages for the days in late 2014 and early 2015 when Turner and Fox channels were blacked out during stalled carriage negotiations between the companies, the 8th Circuit U.S. Court of Appeals said in a ruling (in Pacer) Tuesday. The plan agreement signed by subscribers includes language indicating Dish can change packages and programming at any time, but the U.S. District Court in Jefferson City, Missouri, denied Dish's motion, calling the contract illusory. But the 8th Circuit said illusory contracts are unenforceable from inception, while the contracts in Stokes, Felzien v. Dish had been in effect for years when the Turner and Fox service interruptions happened. The judges said they agreed with Dish that it didn't breach the covenant of good faith and fair dealing because the subscription agreement expressly says customers aren't entitled to monetary relief for interruptions due to the loss of Dish access to programming. Saying the plaintiffs' claims for monetary relief fail to state a claim on which relief can be granted, the 8th Circuit remanded the case for further proceedings. Counsel for the plaintiffs didn't comment Tuesday. Deciding the case were judges James Loken, Arlen Beam and Lavenski Smith, with Loken writing the opinion.