Kristian v. Comcast Corp.

469 F. Supp. 2d 1 (2006)

Martha KRISTIAN and James D. Masterman, Plaintiffs
v.
COMCAST CORPORATION, Comcast Holdings Corporation, Comcast Cable Communications, Inc., Comcast Cable Communications Holdings, Inc., Comcast Cable Holdings, LLC, and Comcast Mo Group, Inc., Defendants.
Jack Rogers and Paul Pinella, Plaintiffs
v.
Comcast Corporation and AT & T Broadband, Defendants.

Nos. Civ.A. 03-12466-EFH, Civ.A. 04-10142-EFH.

United States District Court, D. Massachusetts.

Filed December 8, 2003. May 18, 2006.

Alan I. Gilbert, Heins, Mills & Olson, PC, Minneapolis, MN, Barry C. Barnett, Susman Godfrey LLP, Dallas, TX, David R. Woodward, Heins Mills & Olson, P.L.C., Minneapolis, MN, John W. Turner, Susman, Godfrey LLP, Dallas, TX, John P. Zavez, Noah N. Rosmarin, Adkins, Kelston and Zavez, P.C., Boston, MA, Ryan L. Nelson, Susman, Godfrey LLP, Dallas, TX, Samuel D. Heins, Heins Mills & Olson, P.L.C., Minneapolis, MN, for Plaintiffs.

Christopher M. Curran, George Paul, White & Case LLP, Washington, DC, Jaime A. Bianchi, White & Case LLP, Miami, FL, Joseph L. Sulman, Dechert LLP, Boston, MA, Timothy C. Blank, Dechert LLP, Boston, MA, Christopher F. Robertson, Seyfarth Shaw, LLP, Boston, MA, for Defendants.

AGREED ORDER^[*]

HARRINGTON, Senior District Judge.

Pursuant to Defendants' request to withdraw their Motions to Compel Arbitration in the above cases, and the Plaintiffs' agreement to such withdrawals based on the terms and conditions referenced herein which terms and conditions have been agreed to, by Defendants, it is HEREBY ORDERED:

1. Defendants' Motions to Compel Arbitration, dated March 12, 2004, Docket No. 17 and Docket No. 9 in the above-captioned matters, respectively, are WITHDRAWN. All claims asserted in the above matters by Plaintiffs Kristian, Masterman, Rogers and Pinella and all other putative members of a class comprised of cable television customers who subscribe or subscribed to video programming services (other than solely to basic cable services) from Defendants or their affiliates or the predecessors of Defendants or their affiliates (hereinafter collectively "Defendants") in and around Boston, Massachusetts, that is or may be proposed to be certified in the above matters shall be resolved in court in this action and not through arbitration;

2. Additionally, Defendants shall not for any purpose in these actions, including class certification, (i) allege that an arbitration agreement, or any provision of an arbitration agreement, applies to Plaintiffs Kristian, Masterman, Rogers, or Pinella, or any other putative member of a class that is or may be proposed to be certified in the above matters or (ii) file a motion to compel arbitration with respect to any such persons. Defendants also shall not allege that a subscriber agreement or a similar document or agreement, or any provision of a subscriber agreement or similar document or agreement, precludes the recovery of treble damages, or attorney's fees and costs, by Plaintiffs Kristian, Masterman, Rogers or Pinella, or any other putative member of a class comprised of cable television customers who subscribe or subscribed to video programming services (other than solely to basic cable services). from Defendants in and around Boston, Massachusetts, that is or may be proposed to be certified in the above matters;

3. Upon the Court's execution of this Order, Defendants waive any right that they may have to seek rehearing or other review or appeal of the decision of the United States Court of Appeals for the First Circuit, dated April 20, 2006, in the above cases (the "Decision"). If the Court executes this Order after Defendants have sought review or appeal of the Decision, Defendants shall withdraw or dismiss such review or appeal within three days after execution of this Order.

SO ORDERED.

NOTES

[*] Editor's Note: In Kristian v. Comcast Corp., 446 F.3d 25 (1st Cir.2006), the First Circuit reversed the district court's ruling and held that cable television subscribers could be compelled to arbitrate their antitrust claims. In the agreed order below, the defendants withdrew their motions to compel arbitration and waived their rights to compel arbitration, thus allowing the district court, instead of an arbitrator, to resolve legal issues.