Bowers v. Windstream Kentucky East, LLC

278 F.R.D. 170, 80 Fed. R. Serv. 3d 1234, 2011 U.S. Dist. LEXIS 117687, 2011 WL 4832564
CourtDistrict Court, W.D. Kentucky
DecidedOctober 12, 2011
DocketCivil Action No. 3:09CV-440-H
StatusPublished

This text of 278 F.R.D. 170 (Bowers v. Windstream Kentucky East, LLC) is published on Counsel Stack Legal Research, covering District Court, W.D. Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bowers v. Windstream Kentucky East, LLC, 278 F.R.D. 170, 80 Fed. R. Serv. 3d 1234, 2011 U.S. Dist. LEXIS 117687, 2011 WL 4832564 (W.D. Ky. 2011).

Opinion

MEMORANDUM OPINION AND ORDER

JOHN G. HEYBURN II, District Judge.

This matter is before the Court on Plaintiffs’ Motion for Class Certification pursuant to the Federal Rules of Civil Procedure 23(a) and 23(b)(1), (2), and (3). Plaintiffs Dana Bowers and Sunrise Children’s Services, Inc. (“Sunrise”) brought an action against Wind-stream Kentucky East, LLC (“Windstream East”) and Windstream Kentucky West, LLC (“Windstream West”) alleging violations of state and federal telecommunications laws.

Windstream provides telephone, cable, and internet services to customers all across Kentucky, including Plaintiffs. Dana Bowers is a Kentucky residential customer who receives telecommunications services from Wind-stream East. Sunrise is a Kentucky nonprofit corporation and receives telecommunications services from both Windstream East [173]*173and Windstream West. This action arises from Defendants’ flow-through to customers of the “Kentucky Gross Revenue Tax” (“GRT”) in the form of the “Kentucky Gross Receipts Surcharge” (“GRS”). The GRT is a tax imposed on telecommunications carriers and Defendants sought to recover their payments of the tax through the GRS.

Plaintiffs now seek class certification of all Windstream customers (“Proposed Class”) and appointment of Bowers as the class representative for Windstream East customers and Sunrise as the class representative for Windstream West customers. Plaintiffs also seek appointment of Stoll Keenon Ogden PLLC as class counsel. The Court is well familiar with the legal issues in this case due to its efforts to resolve prior motions. Having reviewed the parties’ supporting memo-randa and for the reasons stated below, the Court will sustain Plaintiffs’ motion for class certification pursuant to Rules 23(b)(1) and (b)(3), but deny the motion as to Rule 23(b)(2) certification. The Court will also sustain Plaintiffs’ motion to appoint Stoll Keenon Ogden PLLC as class counsel.

I.

A district court has broad discretion to certify a class. Mayer v. Mylod, 988 F.2d 635, 640 (6th Cir.1993). Nonetheless, a rigorous analysis is required to decide whether Rule 23(a) is satisfied. Burkhead v. Louisville Gas & Electric. Co., 250 F.R.D. 287, 290 (W.D.Ky.2008). To meet the requirements of Rule 23(a): (1) a class must be so numerous that joinder of all members is impracticable; (2) there must be questions of law or fact common to the class; (3) the claims or defenses of the representative parties must be typical of the claims or defenses of the class; and (4) the representative parties must fairly and adequately protect the interests of the class. Olden v. LaFarge Corp., 383 F.3d 495, 507 (6th Cir.2004) (citing Fed. R.Civ.P. 23(a)). The Court will address each requirement in turn.

A.

Rule 23(a)(1) requires that a class be so numerous that joinder of its members is impracticable. ‘While this requirement is commonly referred to as a ‘numerosity’ requirement, the real issue is whether the plaintiff seeking class certification has demonstrated impracticability of joinder.” Tur-nage v. Norfolk, So. Corp., 307 Fed.Appx. 918, 921 (6th Cir.2009) (citation omitted). Often times, large numbers may “indicate impracticability of joinder,” but “numbers are not a perfect predictor.” Id. Rather, the Court remains focused on practicability, considering for example, the ease of identifying and providing service on all members if joined. Id.

Here, the Proposed Class consists of thousands of Kentucky Windstream customers on whom the GRS has been imposed. Although the specific number of customers affected is unknown at this time, Plaintiffs assert that the figure clearly would be “greater than sufficient” to justify certification. Defendants counter that mere speculation of numerosity is insufficient and Plaintiffs’ claims encompass only a fraction of Windstream’s customer base, as many accounts are governed by agreements not subject to federal tariffing.

Defendants’ argument assumes that the GRS itself is not subject to federal tariffing. As this Court has already ruled on this issue and concluded otherwise, Defendants’ argument must fail. Furthermore, the Court agrees with Plaintiffs that the number of eligible class members is “greater than sufficient” to warrant certification. After all, Defendants acknowledge that the GRS is assessed on thousands, if not all, of its customers on a regular basis. For these reasons, Plaintiffs meet the numerosity requirement.

B

Rule 23(a)(2) requires class members to share common questions of law or fact. The requirement seeks only identification of “a common issue the resolution of which will advance the litigation.” Sprague v. Gen. Motors Corp., 133 F.3d 388, 397 (6th Cir.1998). Essentially, commonality requires demonstrating that class members “have suffered the same injury,” which does not mean merely that they have all suffered a violation of the same provision of law. Wal-Mart Stores, Inc. v. Dukes, — U.S.-, 131 S.Ct. 2541, [174]*1742551, 180 L.Ed.2d 374 (2011) (citation omitted).

Plaintiffs contend that all customers who were charged the GRS share common questions of law and fact centered upon what services and at what rates the GRS was imposed. According to Defendants, establishing that any customer paid the GRS does little to advance Plaintiffs’ claims as the lawfulness of assessing the GRS is specific to each individual customer, based upon the types of services they receive.

The central and common issue here is whether and to what extent Defendants improperly charged and collected the GRS. To answer this question, the legal issues shared by all class members will be (1) which services are rightfully subject to the GRS; (2) of the services upon which the GRS is collected, whether they must then be filed in Defendants’ tariffs; (3) whether, and upon which services, Defendants collected the GRS prior to filing it within their tariffs; (4) whether, and to what extent, Defendants overcharged the GRS once it was tariffed; (5) and whether Defendants misrepresented the GRS to their customers. Although customers subscribe to varying services offered by Defendants, and the resolution of these issues may thus reveal a disparity in class members’ entitled relief, common issues will nonetheless resolve and advance the entire class litigation. Although the Court acknowledges that varying services or customer contracts may be analyzed differently for purposes of tariffing, the Proposed Class meets the commonality requirement.

C.

Rule 23(a)(3) requires Plaintiffs to show that their claims are “typical” of those comprising the Class. A plaintiff’s claim may be considered typical “if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if his or her claims are based on the same legal theory.” In re Am. Med. Sys., 75 F.3d 1069, 1082 (6th Cir.1996).

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278 F.R.D. 170, 80 Fed. R. Serv. 3d 1234, 2011 U.S. Dist. LEXIS 117687, 2011 WL 4832564, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bowers-v-windstream-kentucky-east-llc-kywd-2011.