N.Y. AG, ISP Plaintiffs Agree State Didn't Relinquish ABA Appeal Rights

The stipulated final judgment that New York reached with ISP plaintiffs in July 2021 over the state’s Affordable Broadband Act “did not effectuate a waiver” of the state’s right to appeal the ABA’s permanent injunction, the Office of New York Attorney General Letitia James (D) told the 2nd U.S. Circuit Court of Appeals in a supplemental brief Monday (docket 21-1975). If the ISP plaintiffs’ “understanding is correct,” the New York AG “did not relinquish the arguments presented on appeal and has standing to pursue them,” they said in their supplemental brief. But if the 2nd Circuit disagrees, the New York AG “would have relinquished those arguments and lacks standing to pursue this appeal,” they said. The 2nd Circuit ordered the supplemental briefs Jan. 20 on whether the court has appellate jurisdiction over the lower court’s final judgment that the parties negotiated (see 2301230040). New York “retains a concrete and redressable stake in this litigation,” said James’ brief. The district court’s injunction against enforcement of the ABA “is causing an ongoing injury to New York and specifically to low-income New Yorkers,” it said. “This injury would be redressed by a favorable ruling from this Court rejecting plaintiffs’ federal-preemption theories and reversing the final judgment and injunction contingent on those theories.” The stipulated judgment at issue “bears some similarity to a conditional plea agreement, whereby a criminal defendant may plead guilty while expressly preserving for appellate review an interlocutory ruling” that's effectively, even if not always technically, dispositive of the case, it said. When the ISP associations agreed to the New York AG’s proposal to convert the preliminary injunction ruling in the associations’ favor into a stipulated final judgment imposing a permanent injunction, the associations understood that the New York AG “was not relinquishing her right to appeal that permanent injunction,” said the ISP plaintiffs. They urged the 2nd Circuit to affirm the district court’s final judgment “permanently enjoining” the ABA and declaring it preempted by federal law.