IN RE A2P SMS ANTITRUST LITIGATION
| Club Texting, Inc., iSpeedbuy LLC and Textpower, Inc. |
| Cellco Partnership, AT&T Mobility LLC, Sprint Nextel Corporation, T-Mobile USA, Inc., U.S. Cellular Corporation, CTIA-The Wireless Association, Ericsson IPX, MBLOX Incorporated, SYBASE, Inc., Soundbite Communications, Inc., Syniverse Technologies, Inc., UPOC Networks, Inc., Vibes Media, 3Cinteractive, L.L.C., WMC Global, Inc., Ericsson Inc and Air2Web Inc. |
| Open Market Inc. |
| 1:2012cv02656 |
| April 5, 2012 |
| US District Court for the Southern District of New York |
| Foley Square Office |
| XX Out of State |
| Alison J. Nathan |
| Antitrust |
| 15 U.S.C. ยง 1 |
| Plaintiff |
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Filing
297
ORDER granting (287) Motion for Leave to Appeal in case 1:12-cv-02656-AJN. After the Second Circuit dismissed the Moving Defendants' appeal pursuant to the Federal Arbitration Act ("FAA"), 9 U.S.C. § 16(a)(1)(B), for lack of j urisdiction, the Moving Defendants have returned to this Court seeking certification of an interlocutory appeal pursuant to 28 U.S.C. § 1292(b). For the reasons stated herein, the Moving Defendants' request is GRANTED. The current po sture of the proceedings and the consequential question presented on appeal provide the exceptional circumstances necessary to certify an interlocutory appeal. The Court's May 2014 Order held that the arbitrator must decide in the first inst ance whether class arbitration is available. That decision was made against a backdrop of inconclusive Supreme Court authority, non-existent Second Circuit authority, and divided lower court authority across the country. Since that decision was han ded down, the Third Circuit joined the Sixth Circuit in reaching a conclusion that is directly contrary to this Court's holding. There is thus substantial ground for difference of opinion on the question presented for interlocutory appeal. It is also a clean question of law that can be decided without reference to or development of the factual record. Finally, although a reversal of this Court's order will not terminate the action, it will have a substantial effect on the course o f this litigation. A reversal will require vacating any arbitration proceedings to date and will also require the Court to make a determination that will greatly affect the conduct and length of the litigation. As noted, if the Second Circuit agree s to hear the appeal, it "may address any issue fairly included within the certified order." Yamaha Motor Corp., USA, 516 U.S. at 205. But the Second Circuit has also instructed district courts that "it is helpful for [them] to fram e the controlling questions of law that the order involves." United States v. Banco Cafetero Panama,797 F.2d 1154, 1157 (2d Cir. 1986). Therefore, the Court hereby certifies its May 29, 2014 Order, Dkt. No. 251, for interlocutory appeal and fr ames the following question of law that the order involves: who decides-the court or the arbitrator-whether an arbitration agreement permits class arbitration? This resolves Dkt. No. 287. (Signed by Judge Alison J. Nathan on 3/2/2015) Filed In Associated Cases: 1:12-cv-02656-AJN, 1:12-cv-02729-AJN, 1:12-cv-03731-AJN (kgo)
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Filing
280
MEMORANDUM AND ORDER denying (270) Motion to Stay in case 1:12-cv-02656-AJN. The Court agrees that there are serious questions going to the merits of Defendants' appeal, but it is unclear whether the appeal is procedurally proper, the balance o f hardships does not tip decidedly in Defendants' favor, and a stay will only modestly serve the public interest. Therefore, Defendants' motion to stay this Court's Opinion and Order dated May 29, 2014 is DENIED. This resolves Dkt. No. 270. SO ORDERED. (Signed by Judge Alison J. Nathan on 8/27/2014) Filed In Associated Cases: 1:12-cv-02656-AJN, 1:12-cv-02729-AJN, 1:12-cv-03731-AJN (ama)
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Filing
251
OPINION: Defendants' request that the Court order individual arbitration in this matter is denied, as the matter is for the arbitrator to resolve. Plaintiffs' cross-motion is granted to the extent that the Court finds that the availability of class arbitration proceedings is an issue to be resolved by the arbitrator. The Court does not reach the parties' other arguments as to whether class arbitration is available or whether Plaintiffs' have waived or conceded the merits of this issue. These are matters for the arbitrator to decide. This resolves docket numbers 236 and 243. SO ORDERED. (Signed by Judge Alison J. Nathan on 5/29/2014) (ajs)
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Filing
225
MEMORANDUM AND OPINION: For the reasons discussed above, Defendants' motions to compel and stay proceedings, pending arbitration Docket Numbers 149, 151, 162, 165, and 171, are GRANTED insofar as previously indicated. The action is hereby stayed as to all Defendants pending arbitration. In light of this, the pending motions to dismiss, Docket Numbers 144, 146, 154, 156, and 168 are administratively denied, without prejudice to refilling. Finally, Plaintiffs' procedurally flawed motion to file a sur reply, Docket Number 194, is DENIED and Defendants' motion to strike that sur reply, Docket Number 195 is GRANTED: Plaintiffs motion is substantially non-compliant with the Court's Individual Practices, it does not respond to "new issues which are material to the disposition of the question before the [C]ourt," Us. v. Int'[ Bus. Mach., 66 F.R.D. 383 (S.D.N.Y. 1975), and Plaintiffs had ample opportunity at oral argument to respond to Defendants' positions. This Order resolves Docket Numbers 144, 146, 149, 151, 154, 156, 162, 165, 168, 171, 194, and 195. (Signed by Judge Alison J. Nathan on 9/16/2013) Filed In Associated Cases: 1:12-cv-02656-AJN, 1:12-cv-02729-AJN, 1:12-cv-03731-AJN(mt)
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