States Mull Independent Suits Against Frontier
States are considering whether to sue Frontier Communications after their claims were dismissed last week about DSL-speeds advertising. U.S. Central District of California Judge Gary Klausner suggested, in dismissing claims from Arizona, Michigan, North Carolina, Wisconsin and Indiana, that “judicial economy” and “the interest of comity” would favor trying their claims in courts more familiar with applicable laws (see 2110040066).
“This was only one approach of potentially other ways to find relief,” the Indiana attorney general's office emailed Tuesday. “We are reviewing and will determine our course of action.” Arizona is “disappointed with the federal court’s decision not to adjudicate state claims other than California’s causes of action,” said a spokesperson for AG Mark Brnovich (R) Friday. “We are evaluating our options regarding next steps.” A Michigan AG spokesperson said Friday that office is “weighing options.” A North Carolina AG spokesperson didn’t add to the office’s initial comment that it's reviewing the court’s order. Wisconsin’s AG office didn’t comment now.
Frontier is “pleased” the court “dismissed the majority of the case against us,” emailed a spokesperson. The telco “will continue to vigorously defend ourselves” and said its DSL speeds “have been clearly and accurately described in our marketing materials and disclosures.” The FTC declined to comment.
Whether a federal court has jurisdiction over matters spanning several states is a “procedural matter,” emailed Penn State University telecom and law professor Rob Frieden. There “has to be a close link between the harms alleged by the plaintiff” and proof the defendant conducted business in the state where the plaintiff resides, Frieden said. Federal courts are “reluctant to create multi-state classes unless the nature of the harm is the same for all parties in the class,” he said, but it's a “harder case to make” for the non-California states given the “bias against class-action lawsuits.”
The court exercised pendent jurisdiction and “appears to have decided that since each state’s claim involved a different state law, that it would not save anyone any time to combine all the claims into one proceeding,” emailed Public Knowledge Legal Director John Bergmayer: “I would bet that the states each re-file ... though it’s possible that some of them are under-resourced and cannot.”
Some questioned the judge’s recommendation to try the claims independently. “It would be inconvenient and a waste of party and judicial resources for plaintiffs to have to sue in multiple jurisdictions when one jurisdiction could suffice,” emailed Brooklyn Law School professor Jonathan Askin. The plaintiffs may be able to appeal and argue judicial economy would require trying the claims together, Askin said.
How Klausner applied personal jurisdiction “definitely raises an eyebrow,” emailed Cornell Law School professor Maggie Gardner. States could appeal his assertion that the claims weren't part of the same “case or controversy” because the relevant facts don't need to be identical if the “essence of the claims relates to the same allegedly egregious conduct by Frontier,” Gardner said: “It’s also not at all unusual for federal courts ... to apply the law of other states.”
Even if states file claims independently, it may end up before a single federal court through multi-district litigation, Gardner said, which “could well be in California.” Had the states preferred to take this path, she said, “they would have sued locally to begin with.”
The Utility Reform Network is “following this litigation closely and support[s] further investigation and discussion of the issues brought by the FTC and prosecutors in California,” emailed Managing Attorney-San Diego Christine Mailloux. Los Angeles and Riverside counties filed for California. Mailloux said that it's “important that all communications carriers are on alert that they must deliver on their promises.”