Summary
holding that a violation of common law can support a § 17200 claim, provided that the conduct is also unlawful, unfair, or fraudulent
Summary of this case from Shroyer v. New Cingular Wireless ServicesOpinion
CV 99-5666 LGB (CWx), CV 99-8672 LGB (CWx).
December 10, 2003
ORDER DENYING PEGASUS' MOTION FOR CLARIFICATION AND RECONSIDERATION, OR, IN THE ALTERNATIVE, A STAY PENDING APPEAL
I. INTRODUCTION
The Court is in receipt of Pegasus' Motion for Clarification and Contingent Motion for Reconsideration or, In the Alternative, a Stay Pending Appeal lodged with the Court on December 4, 2003. The Court is also in receipt of DIRECTV's Opposition filed on December 9, 2003, NRTC's Opposition filed on December 9, 2003, and the Declaration of Raymond Kim filed on behalf of the Class on December 9, 2003. Based on the following analysis, Pegasus'Motion for Clarification and Contingent Motion for Reconsideration or, In the Alternative, a Stay Pending Appeal is DENIED.
II. FACTUAL AND PROCEDURAL HISTORY
Non-parties Pegasus Satellite Television, Inc. And Golden Sky System, Inc. (together, "Pegasus") moved to intervene in Case Nos. 99-5666 99-8672 (the "NRTC Actions") for the limited purpose of objecting to the settlement of those actions. November 13, 2003 Order ("Order"), at 1. Pegasus alleged that the basis for its motion to intervene was that the parties to the NRTC Actions, namely, DIRECTV, Inc. and Hughes Communications Galaxy, Inc. (jointly "DIRECTV") and the National Rural Telecommunications Cooperative ("NRTC") had executed a proposed settlement agreement which allegedly affects Pegasus' interests without its consent. Order, at 1.
This Court's Order held that Pegasus did not have a right to intervene in the NRTC Actions between NRTC and DIRECTV because it does not have a "significant protectable interest relating to the property or transaction that is the subject of the action." Order, at 22. The subject of the NRTC Actions is the DBS Distribution Agreement between NRTC and DIRECTV. Order, at 4. The DBS Agreement provides that NRTC has exclusive and non-exclusive rights to distribute programming and services offered by DIRECTV in NRTC's area of service. The DBS Agreement also states that DIRECTV and NRTC can modify their agreement any time in writing. Order, at 4. Pegasus is not a party to the DBS Agreement. Order, at 4.
The Court also found that Pegasus, in its Member Agreement with NRTC (the "Member Agreement'), acknowledged that it was not a third party beneficiary of the DBS Agreement. See Order, at 4 n. 1.
Pegasus is a party to a separate agreement between Pegasus and NRTC ("Pegasus' Member Agreement'). Order, at 5. Pegasus' Member Agreement is related to the DBS Agreement in that Pegasus' rights under the Member Agreement arise from NRTC's rights under the DBS Agreement. Order, at 5. DIRECTV is not a party to the Member Agreement but is a third-party beneficiary to the Member Agreement. Order, at 5.
Pegasus sought to intervene in the NRTC Actions for the sole purpose of objecting to the proposed settlement agreement between NRTC and DIRECTV. The NRTC Actions were filed by NRTC against DIRECTV to clarify and enforce NRTC's rights against DIRECTV under the DBS Agreement. Order, at 5-6. Pegasus argued that its rights under its Member Agreement with NRTC entitled it to intervene in the NRTC Actions because its rights would be affected by the proposed settlement. The Court rejected Pegasus' argument that its Member Agreement with NRTC gave it a right to intervene in these actions. The Court found that:
The linchpin of [the motion to intervene] is that the DBS Agreement is separate and apart from Pegasus' Member Agreement. Pegasus does not have any rights under the DBS Agreement which is the subject of the proposed settlement. Pegasus' rights are limited to Pegasus' Member Agreement between NRTC and Pegasus which is not affected by the proposed settlement.
Order, at 11. The Court held that Pegasus had not met the first requirement under the Ninth Circuit's test for a motion to intervene. "An applicant seeking intervention as a matter of right must show that (1) it has a `significant protectable interest relating to the property or transaction that is the subject of the action; (2) the disposition of the action may, as a practical matter, impair or impede the applicant's ability to protect its interest; (3) the application is timely; and (4) the existing parties may not adequately represent the applicant's interest." Donnelly v. Glickman, 159 F.3d 405, 409 (9th Cir. 1998). The Court denied Pegasus' motion to intervene because it held that Pegasus had not shown that it had a significant protectable interest in the NRTC Actions.
III. THE MOTION FOR RECONSIDERATION
Now, Pegasus seeks a clarification of this Court's November 13, 2003 Order. If the Court denies its motion for clarification, Pegasus seeks reconsideration of the November 13, 2003 Order. If the Court denies its motion for reconsideration, Pegasus seeks a stay pending Pegasus' appeal of this Court's Order to the Ninth Circuit. The Court will address each of these issues in turn.
A. Motion for Clarification
Pegasus seeks a clarification of this Court's November 13, 2003 Order which states that Pegasus' rights under Pegasus' Member Agreement will not be affected by NRTC's settlement with DIRECTV, Inc. and Hughes Communications Galaxy, Inc. ("DIRECTV") in the NRTC Actions. Pegasus argues that the Court should clarify whether this statement entitles Pegasus to (1) compel NRTC to obtain from DIRECTV, and to provide to Pegasus, all DBS Services and Launch Fees for the full duration of the Member Agreement, and (2) compel DIRECTV, as a necessary party, to take any actions required to ensure NRTC's full performance of its obligations to Pegasus under the Member Agreement. Pegasus is, therefore, seeking a clarification of its legal rights under the Member Agreement vis-a-vis NRTC and DIRECTV. This "clarification" is in reality a request for declaratory relief regarding Pegasus' rights against NRTC and DIRECTV. Pegasus' contractual rights against NRTC and DIRECTV are not at issue in the NRTC Actions and are not part of the case or controversy before this Court. The Court shall not provide an advisory opinion to clarify or declare legal rights between parties which have not been raised or addressed in the NRTC Actions. United States Nat'l Bank v. Independent Ins. Agents of Am., 508 U.S. 439, 446 (1993). "`The exercise of judicial power under Art. III of the Constitution depends on the existence of a case or controversy,' and `a federal court [lacks] the power to render advisory opinions.'"Id. Pegasus is not a party to the NRTC actions in which it seeks to intervene. Therefore, Pegasus's rights under its Member Agreement vis-a-vis NRTC and DIRECTV shall not be clarified by this Court.
Therefore, Pegasus' motion for clarification is DENIED.
B. Motion for Reconsideration
In the alternative, Pegasus seeks a reconsideration of our November 13, 2003 Order. Pegasus argues that if the "Court believes that the settlement will or could limit NRTC's ability to discharge all of its obligations to Pegasus, and thereby will or could effectively limit the services and benefits Pegasus can obtain under its Member Agreement, then Pegasus respectfully requests that the Court reconsider its decision denying Pegasus' motion to intervene." Mot., at 12. Pegasus argues that the "`emergence' of such belief `after the time of such decision' is plainly a `new material fact,' and such a belief reflects a `failure to consider material facts presented to the Court before such decision.'" Mot., at 12.
Local Rule 7-18(b) (c) reads in relevant part:
A motion for reconsideration of the decision on any motion may be made only on the grounds of . . . (b) the emergence of new material fats or a change of law occurring after the time of such decision, or (c) a manifest showing of a failure to consider material facts presented to the Court before such decision. No motion for reconsideration shall in any manner repeat any oral or written argument made in support of or in opposition to the original motion.
Local Rule 7-18(b) (c) (2003).
Pegasus' argument that the Court's "beliefs" regarding Pegasus' rights vis-a-vis NRTC and DIRECTV constitute a "new material fact" is disingenuous. As stated earlier, a clarification of rights between Pegasus and NRTC or DIRECTV under Pegasus' Member Agreement is not an issue properly before this Court. The Court has not expressed a "belief" or finding regarding this issue. Therefore, Pegasus has not provided a new material fact or change of law to justify its motion for reconsideration.
Furthermore, Pegasus has not made a "manifest showing of a failure to consider material facts presented to the Court." Pegasus has not cited any evidence which the Court did not duly consider in issuing its November 13, 2003 Order.
Since Pegasus has not made the requisite showing under Local Rule 7-18 in its motion for reconsideration of the November 13, 2003 Order, Pegasus' motion for reconsideration is DENIED.
C. Motion for Stay Pending Appeal
Pegasus also seeks a stay of the NRTC Actions pending Pegasus' appeal to the Ninth Circuit. A stay is determined by the following factors: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. See United States v. Hilton, 481 U.S. 770, 776 (1987). In addition, it must show that the public interest supports issuance of a stay." See United States v. Oakland Cannabis Buyers' Coop., 190 F.3d 1109, 1114 (9th Cir. 1999).
The Court held, in its November 13, 2003 Order, that Pegasus did not show that it had a significant protectable interest in the NRTC Actions. The Court based its opinion on its finding that Pegasus did not have any rights under the DBS Agreement between NRTC and DIRECTV which was the sole subject of the NRTC Actions. The Court also found that Pegasus was neither a party nor a third-party beneficiary to the DBS Agreement. Under these facts, the Court finds that Pegasus has not shown a probability of success on the merits of its appeal of the Court's November 13, 2003 Order denying its motion to intervene.
Furthermore, the Court finds that the issuance of a stay may substantially injure NRTC and DIRECTV who have been involved in this litigation since 1999 and are entitled to an expeditious resolution of the NRTC Actions. Both NRTC and DIRECTV argue that their contingent settlement will be adversely affected by a stay. The Court also finds that a stay may have an injurious impact on the related Class Action lawsuit's settlement. The Class Action lawsuit's final fairness hearing for the proposed settlement is set for January 5, 2004 and any delay in the resolution of the NRTC Actions may have an adverse effect on the settlement of the Class Action lawsuit. "[T]here is a compelling public interest and policy in upholding and enforcing settlement agreements voluntarily entered into." Bianchi v. Perry, 140 F.3d 1294, 1297 (9th Cir. 1998). The public interest in this case would be better served by an expedient resolution of the NRTC Actions and the Class Action lawsuit.
Pegasus has not made the requisite showing for a stay of the NRTC Actions pending Pegasus' appeal to the Ninth Circuit. Based on the foregoing, Pegasus' motion for a stay pending appeal is DENIED.