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In re CenturyLink Sales Practices and Securities Litigation

United States District Court, D. Minnesota

June 7, 2018

IN RE CENTURYLINK SALES PRACTICES AND SECURITIES LITIGATION This document relates to 017-cv-02832, 017-cv-04613, 017-cv-04614, 017-cv-04615, 017-cv-04616, 017-cv-04617, 017-cv-04618, 017-cv-04619, 017-cv-04622, 017-cv-04943, 017-cv-04944, 017-cv-04945, 017-cv-04947, 017-cv-05001, 017-cv-05046

          ORDER REGARDING PLAINTIFFS' MOTION TO COMPEL PRODUCTION OF DOCUMENTS

          Katherine Menendez United States Magistrate Judge

         This matter is before the Court on the Plaintiffs' Motion to Compel Production of Documents. [Pls.' Mot. to Compel, ECF No. 158.] Defendant CenturyLink, Inc. (“CenturyLink”), and the Proposed Intervenors[1] (also referred to here as “the Operating Companies”) filed lengthy written arguments in opposition to the motion. [CenturyLink Opp'n, ECF No. 165; Proposed Intervenor Opp'n, ECF No. 168.] The Court held a hearing on the Plaintiffs' motion on June 4, 2018, and, after hearing from counsel, ruled from the bench. This Order captures that ruling.

         A legations in the Complaint

         The Plaintiffs in this multi-district litigation claim that CenturyLink employed wide-spread deceptive and unlawful sales and billing practices in connection with its telecommunications services. [Consolidated Class Action Compl. (“Compl.”), ECF No. 38.] CenturyLink's alleged wrongful conduct included: quoting certain prices but failing to disclose the true amount that would later be billed; promoting or incentivizing representatives to overbill customer accounts with unauthorized charges; and dismissing or denying customer complaints. [See id.]

         CenturyLink maintains at the outset that it is the wrong defendant for the Plaintiffs to sue because it is only a parent holding company that has no employees and offers no services. Instead, both CenturyLink and its subsidiaries argue that the subsidiaries are the parties who sold and provided the services at issue, and they handled the billing.

         Plaintiffs allege that both the corporate reality and CenturyLink's public conduct suggest that it belongs in the case. [See Compl. ¶¶ 12-19.] For example, Plaintiffs assert that CenturyLink's involvement with the issues raised in this litigation is proven by a December 7, 2017 press release concerning an internal investigation into certain sales and billing practices. That press release indicates that CenturyLink has: “(1) policies, procedures, and practices relating to customer sales, service, and billing; (2) outside directors; (3) employees and former employees; (4) customers; (5) management; and (6) products, pricing and promotions.” [Id. ¶ 17.]

         In addition, the Plaintiffs assert that CenturyLink is responsible because the Plaintiffs only communicated and did business with entities identifying themselves as CenturyLink. [Id. ¶¶ 13-14.] They also assert that CenturyLink's subsidiaries operate under the CenturyLink name to reassure customers. [Id. ¶ 18.] For these reasons, the “Plaintiffs and the Class reasonably believed they received representations, promises, and services from CenturyLink and no one else. And that was the Company's intention.” [Id. ¶ 19.]

         The Defense Motions

         CenturyLink and the Operating Companies have filed three significant motions that give rise to the present discovery dispute. Each motions presents some variation on the assertion that CenturyLink is the wrong defendant for this litigation. First, the Operating Companies filed a Motion to Intervene. [Mot. to Intervene, ECF No. 80.] They assert that they are subsidiaries of CenturyLink and should be allowed to intervene pursuant to Fed.R.Civ.P. 24. The Operating Companies argue that they have arbitration agreements with the Plaintiffs and need to be parties in this lawsuit in order to enforce those arbitration clauses. [See Mem. in Supp. of Mot. to Intervene, ECF No. 82.]

         Second, the Operating Companies and CenturyLink have jointly filed a Motion to Compel Arbitration and Enforce Class-Action Waivers. [Mot. to Compel Arbitration, ECF No. 122.] They argue that 37 of the 38 Plaintiffs agreed to arbitrate their claims on an individual basis when they formed contracts with the Operating Companies, and the claims leveled at CenturyLink fall within the scope of those arbitration agreements. [Mem. in Supp. of Moti to Compel Arbitration, ECF No. 124.]

         Finally, CenturyLink filed a Motion to Dismiss Under Rules 12(b)(2) and 12(b)(6). [Mot. to Dismiss, ECF No. 132.] CenturyLink argues that it is an improper defendant and should be dismissed from the litigation for lack of personal jurisdiction because: (1) it is neither located in this forum or any transferor forum, nor taken actions directed to any such forum; and (2) Plaintiffs have failed allege a basis for piercing the corporate veil between CenturyLink and its subsidiaries. [Mem. in Supp. of Mot. to Dismiss, ECF No. 134.] The Plaintiffs' responses to all three motions are due on July 26, 2018. [Pretrial Order No. 4: Scheduling Order (May 15, 2018), ECF No. 155.]

         Judge Davis's Partial Stay Order

         After CenturyLink and the Proposed Intervenors filed the motions described above, the parties disagreed about the proper next steps in the litigation. Plaintiffs generally advocated for broad class-wide and merits-focused discovery beginning immediately. CenturyLink and the Proposed Intervenors suggest that they should be required to provide little or no information to the Plaintiffs at this stage, since arbitration is likely. [See Order on Mot. to Stay (May 8, 2018) at 2-3, ECF No. 145.] The District Court found that the proper management of the litigation lies somewhere between these extremes.

         On May 8, 2018, the District Court granted CenturyLink's “Motion to Temporarily Stay Discovery Pending Resolution of Forthcoming Motion to Compel Arbitration and Enforce Class-Action Waivers.” [Stay Order at 7 ¶ 1; Def.'s ...


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