Granting T-Mobile’s Interlocutory Appeal Would ‘Waste’ 7th Circuit’s Time, Say Plaintiffs

The seven plaintiffs seeking to vacate T-Mobile’s 2020 Sprint buy on antitrust grounds oppose T-Mobile’s motion to certify for 7th Circuit interlocutory appeal the court’s Nov. 2 order denying its motion to dismiss the case (see 2311290042), said their opposition Thursday (docket 1:22-cv-03189) in U.S. District Court for Northern Illinois in Chicago. T-Mobile hasn’t established the “required elements” for certification under Section 1292(b), it said.

The plaintiffs are AT&T and Verizon customers who contend the anticompetitive impact of the T-Mobile/Sprint transaction caused their own wireless rates to soar. CTIA, coming to T-Mobile’s defense, contended in a Dec. 11 amicus brief that competition among AT&T, Verizon and T-Mobile “has become stronger than ever” since the 2020 transaction (see 2312120052).

The plaintiffs contend that to qualify the Nov. 2 order for certification, T-Mobile must identify a controlling and contestable question of law, “the answering of which will accelerate this litigation’s resolution,” said their opposition. But T-Mobile’s motion “founders on the shoals of its own contradictions,” it said.

T-Mobile first argues that as a matter of law, AT&T and Verizon customers can never have standing because they didn’t suffer harm at the first step in the “causal chain” and therefore suffered only indirect injury, said the opposition. But U.S. District Judge Thomas Durkin’s order “rightly observed” that this question is not contestable in the 7th Circuit, where it runs “headlong” into the 2003 decision in U.S. Gypsum v. Indiana Gas, it said.

So to meet the contestable requirement, T-Mobile “pivots” to arguing that reasonable minds could disagree about whether the higher prices Verizon and AT&T customers supposedly paid were directly caused by the merger of T-Mobile and Sprint, said the opposition. But as Durkin’s order already noted, “this question depends on the facts,” it said. So T-Mobile “pivots again” to argue that the case turns on the “well-settled principles” of the U.S. Supreme Court's 2007 decision in Bell Atlantic v. Twombly, the opposition said.

But T-Mobile “fails to identify anything unclear, wrong, or even questionable” about how this court applied pleading standards with which this court is thoroughly familiar, said the opposition. It instead speculates that Gypsum might be inconsistent with modern pleading standards, “a point it has never before raised and for which it now offers no analysis,” it said.

Combining two non-contestable legal questions with a contested question of fact doesn’t amount “to a contestable question of law,” said the opposition. “Quite the reverse,” it said. “Nor can T-Mobile seek refuge in its out-of-circuit case law,” because the fact that other circuits have issued rulings contrary to the 7th Circuit’s holding in Gypsum doesn’t make this issue contestable, it said.

All of T-Mobile’s out-of-circuit authorities “are irrelevant” to its motion to certify, “which serves only to delay resolution of this litigation before an Illinois jury,” said the opposition. “This is a paramount concern in this antitrust case with ongoing effects on consumers," and the threatened delay "counsels against granting the motion,” it said. A “potentially years-long delay” in the 7th Circuit would only make the “structural injunctive relief” the plaintiffs seek more difficult for the court and the parties to address, it said.

For those kinds of reasons, interlocutory appeals are frowned upon in the federal judicial system, said the opposition. Where a motion fails to satisfy even a “single element” of Section 1292(b), a certification for interlocutory appeal serves only to waste the Circuit’s time and delay the litigation in the district court, it said.

That’s “the case here,” said the opposition. T-Mobile has failed “to articulate a single contestable question of pure law” from Durkin’s Nov. 2 order, said the opposition. Certification of an appeal therefore would be a “waste” of the 7th Circuit’s time and should be denied, it said.