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Before
Thompson, Stahl, and Kayatta,
Circuit Judges.
KAYATTA,
Circuit
Judge.
In
the
aftermath
of
Entertainment
I,
LLC,
and
its
parent
company,
themselves
and
similarly situated.
putative
class
of
others
claimed
to
be
Background
-2-
The district court has not yet considered any motion for class
certification, so for now they are the only plaintiffs.
Beginning on October 29, 2011, Massachusetts experienced
a severe snow storm that damaged trees, made travel impossible on
many roads, and took down power and cable lines. During the storm,
the plaintiffs did not receive services from Charter, either
because they lost electrical power and therefore could not use
television or internet devices, or because Charter's own equipment
failed to provide service even where power was available, or due to
some combination of the two.
Cooper, Romito, and Baker filed the complaint in this
case in Massachusetts state court on November 22, 2011.
later,
having
not
yet
served
the
complaint
on
Two weeks
Charter,
the
fourth plaintiff after the demand letter was sent, the record
contains no information regarding when her service was interrupted,
-3-
that the claims of Cooper, Baker, and Romito were moot because they
had received credits covering the time they were without service.
The court also found that, as to the fourth plaintiff, Thompson,
the complaint failed to state a claim.
II.
This
questions:
case
whether
Legal Standard
presents
the
two
district
threshhold
court
had
jurisdictional
subject
matter
jurisdiction under the Class Action Fairness Act and whether the
plaintiffs' claims are moot.
See Amoche v. Guarantee Trust Life Ins. Co., 556 F.3d 41, 48 (1st
-4-
Cir. 2009); Anderson ex rel. Dowd v. City of Boston, 375 F.3d 71,
80 (1st Cir. 2004). However, where the district court's assessment
of a jurisdictional issue turns on findings of fact, we accept
those findings unless they are clearly erroneous. Amoche, 556 F.3d
at 48; Valentin v. Hosp. Bella Vista, 254 F.3d 358, 365 (1st Cir.
2001).
As to Charter's motion to dismiss for failure to state a
claim, we also review de novo.
250, 252 (1st Cir. 2014).
factual
allegations
and
drawing
all
reasonable
Analysis
-5-
of
the
proposed
class.
The
parties
also
agree
that
The
Mootness
Charter contends that the claims of Cooper, Baker, and
Romito became moot when, after this suit was filed, they accepted
credits proportional to the time they were without service.2
There
Importantly,
they also claim that Charter was obligated to provide those rebates
or credits to each affected customer without waiting to first
receive a request from that customer.
contentions.
the
existence
of
other
types
of
damages
they
might
have
9(3).3
Were the three original plaintiffs seeking only monetary
damages, and were Thompson not joined as a plaintiff, the foregoing
chronology
would
present
complicated
issues
of
standing
and
See, e.g.,
plaintiffs'
of
interpretation
Charter's
duties
under
either
Indeed,
Charter has made clear that it gave credits to the plaintiffs under
a policy it adopted "voluntarily," which was limited to this storm,
and which, according to Charter, "exceed[ed] requirements under the
law."
Charter
also
fails
to
argue
that
the
request
for
Nor would it
appear unlikely that the New England weather will produce another
severe winter storm, as evidenced by the fact that Massachusetts
passed a law to address the situation in the first place.
In these
-9-
recur" when it claims that its own voluntary conduct has made a
plaintiff's claim moot (internal quotation marks omitted)); Knox v.
Service Employees Int'l Union, Local 1000, 132 S. Ct. 2277, 2287
(2012) (finding no mootness where the defendant union had offered
a full refund of money the plaintiffs claimed was collected
unlawfully because "the union continue[d] to defend the legality"
of its action, making it "not clear why the union would necessarily
refrain from collecting similar fees in the future").4
All four plaintiffs therefore may pursue their unrequited
requests for declaratory relief regarding their present dispute
with Charter over the nature of its obligations to them.
And
-10-
has
indeed
included
such
language
in
its
Licensee
knew
or
should
have
known
of
the
service
interruption."
The
parties
dispute
how
to
interpret
the
statute's
requires
the
company
to
provide
credits
or
rebates
to
to
sufficient
any
subscriber
duration.
whose
Charter
service
is
nevertheless
interrupted
claims
that
for
the
-11-
cite any legal precedent, nor any grammatical rule, to support its
argument, and we find it illogical: the statute's language plainly
applies without limitation to all subscribers who lose service for
twenty-four hours or more, just as a rule prohibiting "any person"
less than thirty-five years old from becoming president applies to
all such people despite its use of the singular word "person." See
U.S. Const. art. II, 1, cl. 4.
Charter's claim that the legislature would have used the term
"automatic" if it intended cable providers to grant refunds to all
subscribers who lost service.
If Charter
-12-
On a review of
The question
Contract Claims
BJ's Wholesale Club, Inc., 455 Mass. 458, 466 (2009) (internal
quotation
marks,
contracts
by
alterations
their
very
omitted).
nature
tend
Because
to
benefit
government
the
public,
Massachusetts courts apply a presumption against finding thirdparty liability in assessing those contracts, overcome only where
the language and circumstances of the contract make it particularly
clear that the parties intended members of the public to possess
enforcement power.
486,
491
assessing
(1st
Cir.
attempts
2013)
by
(applying
third
parties
Massachusetts
to
enforce
law).
In
government
-14-
Service
is
interrupted
for
twenty-four
(24)
or
more
seems
intended
benefit
cable
customers
such
as
See
Pub. Serv. Co. of New Hampshire v. Hudson Light & Power Dep't, 938
F.2d 338, 342 (1st Cir. 1991).
to
any
construction."
person
who
may
be
injured
by
the
work
of
-15-
It
after
those
requirements
have
been
fulfilled
may
the
cannot
treat
the
plaintiffs'
attempt
to
circumvent
those
Rather, in situations in
consumers.
But
because
the
agreement
here
cannot
plaintiffs'
and/or
implied
complaint
contracts"
also
alleges
between
breach
the
of
individual
plaintiffs and Charter. It appears that they refer here not to any
express contract but instead to an implied contract that arose when
they made advance payment for Charter's services.
Finally, the
plaintiffs' claim for breach of the duty of good faith and fair
dealing fails because, for the reasons we have described above, the
plaintiff's
complaint
does
not
establish
any
contractual
493.
2. The Massachusetts Unfair and Deceptive Trade Practices
Statute
Although third-party beneficiary principles provide no
basis on which the plaintiffs can sue Charter for breach of its
promise to municipalities, Massachusetts' legislature has provided
an alternative path to a similar destination, without requiring any
inquiry
into
common
law
notions
of
intended
beneficiaries.
-17-
deceptive
commerce."
acts
or
practices
in
the
conduct
of
any
trade
or
Massachusetts
Eye & Ear Infirmary v. QLT Phototherapeutics, Inc., 412 F.3d 215,
243 (1st Cir. 2005) (quoting PMP Assocs., Inc. v. Globe Newspaper
Co., 366 Mass. 593, 596 (1975)) (internal alterations omitted).
For the practice to fall within the penumbra of a statute's concept
of
unfairness,
it
need
not
actually
violate
the
statute.
Cf. Kattar v.
Id. at 13
In general, the
-18-
Id.
provide
refund
in
Id.
accordance
with
these
regulations,
93A
factfinder.
that
it
reversed
contrary
conclusion
by
the
Id. at 504-05.
-19-
legislature
by
enacting
Chapter
93A
has
opted
to
let
-20-
3.
Exempted Ltd., 437 F.3d 118, 130 (1st Cir. 2006) ("Massachusetts
law does not allow litigants to override an express contract by
arguing
unjust
enrichment.").
Nevertheless,
it
is
generally
Conclusion
under
12(b)(6).
Federal
Rules
of
Civil
Procedure
12(b)(1)
and