Great Lakes Commc'n Corp. v. AT&T Corp.
| Decision Date | 21 August 2015 |
| Docket Number | No. C 13–4117–MWB,C 13–4117–MWB |
| Parties | Great Lakes Communication Corporation, Plaintiff, v. AT&T Corporation, Defendant. |
| Court | U.S. District Court — Northern District of Iowa |
Anthony Lee Osborn, Jeana L. Goosmann, Marie H. Ruettgers, Goosmann Law Firm, Sioux City, IA, George David Carter, Jr., Joseph Paul Bowser, Innovista Law, PLLC, Ross Allen Buntrock, Arent Fox, LLP, Washington, DC, for Plaintiff.
Richard W. Lozier, Jr., Belin McCormick, P.C., Des Moines, IA, Benjamin Richard Brunner, Brian A. McAleenan, Sidley Austin, LLP, Chicago, IL, James Franklin Bendernagel, Jr., Michael Joseph Hunseder, Sidley Austin, LLP, Washington, DC, John C. Gray, Heidman Law Firm, LLP, Sioux City, IA, Letty S.D. Friesen, AT & T Services, Inc., Denver, CO, for Defendant.
TABLE OF CONTENTS
As I have previously explained, this case is, primarily, a billing dispute between two telecommunications companies, plaintiff Great Lakes Communications Corporation (GLCC), a "competitive local exchange carrier" or CLEC, and AT & T Corporation (AT & T), an "interexchange carrier" or IXC. The billing dispute is over charges to AT & T by GLCC for routing telephone calls to GLCC's purported "end users," who are "Free Calling Parties" or FCPs, resulting from what AT & T contends is "access stimulation." After Judge Donald E. O'Brien, to whom the case was previously assigned, entered his Order On Motions For Summary Judgment (docket no. 149), on June 8, 2015, only two claims remain at issue. The first is GLCC's claim, in part of Count II of its Complaint, for payments under its revised tariff that were not covered by a previous settlement agreement. The second remaining claim is AT & T's claim, in Count IV of AT & T's Counterclaim, for a refund of payments mistakenly made under GLCC's revised tariff. In his Order On Motions For Summary Judgment, Judge O'Brien deferred AT & T's request for referral of this action to the Federal Communications Commission (FCC), on the basis of that agency's "primary jurisdiction" over pertinent issues, and set a deadline of June 18, 2015, for further briefing of that issue. He then transferred the case to me, prior to a jury trial set to begin on July 13, 2015.
The parties subsequently filed briefs on the referral issue, in which AT & T requested that I refer four questions to the FCC, see AT & T's June 16, 2015, Brief In Support Of Referral To FCC Under Primary Jurisdiction Doctrine (docket no. 154), and GLCC opposed referring any of AT & T's questions to the FCC, see GLCC's June 18, 2015, Brief In Opposition To Primary Jurisdiction Referral (docket no. 162). If I did refer any of AT & T's proposed questions, however, GLCC requested that I also refer two other questions. Id. Because I was aware that the parties were involved in trial preparations, on Friday, June 26, 2015, I directed one of my law clerks to e-mail counsel for the parties that I would be filing a ruling on the referral issue the following Monday, but, for clerical reasons, I could not do so that day. My law clerk's e-mail to the parties (Referral E–Mail), sent at 3:58 p.m. (CDT) that day, informed the parties of the issues that I was referring to the FCC, that I would be staying the case, and that I would be continuing the jury trial indefinitely. My Memorandum Opinion And Order Regarding Referral To The FCC Under The Primary Jurisdiction Doctrine (Referral Order) (docket no. 183) was, in fact, filed June 29, 2015. On June 29, 2015, I entered another Order (docket no. 184) denying all pending motions without prejudice to reassertion if this matter eventually proceeds to trial in this court.
Although I had not anticipated further proceedings in this court so soon, GLCC filed a Motion To Enforce Settlement Agreement (docket no. 188), on July 9, 2015, seeking enforcement of a settlement agreement that GLCC contends the parties entered into on June 26, 2015. By Order (docket no. 191), filed July 14, 2015, I set an evidentiary hearing on GLCC's Motion for August 14, 2015. On July 27, 2015, AT & T filed its Opposition To [GLCC's] Motion To Enforce Settlement Agreement (docket no. 194), and, on August 4, 2015, GLCC filed its Reply (docket no. 198).
At the evidentiary hearing on August 14, 2015, GLCC presented the testimony of two of its attorneys, Mr. Carter and Mr. Bowser, who had been involved in the settlement negotiations. AT & T presented the testimony of one of its attorneys, Mr. Hunseder, who had been involved in the settlement negotiations. The parties submitted joint exhibits, including declarations of Mr. Carter, Mr. Bowser, and Mr. Hunseder, and various settlement offers and e-mails that the parties had exchanged during their settlement negotiations prior to and shortly after the Referral E-mail.
At the conclusion of the evidentiary hearing, I invited the parties to submit letter briefs on the question of the effect of a recipient's subjective belief that he received a counteroffer and stated that I would permit the parties to submit letter briefs on the applicability of RESTATEMENT (SECOND) OF CONTRACTS § 27, cmt. a or cmt. b. On August 18, 2015, AT & T submitted a letter brief, by e-mail, on the question of whether the standard for determining whether GLCC made a counteroffer to AT & T is an objective or subjective one. That same day, GLCC submitted a letter brief, by both e-mail and filing, see docket no. 203, concerning both the question of whether the standard for determining whether an offer was made is objective or subjective and concerning whether this case falls under comment a or comment b of RESTATEMENT (SECOND) OF CONTRACTS § 27. In response to what AT & T considered GLCC's "supplemental brief," in the form of its letter brief, AT & T then submitted, by e-mail, another letter brief addressing three additional matters not addressed in its first letter brief.
Having reviewed the parties' submissions before and during the evidentiary hearing, and their letter briefs submitted after the evidentiary hearing, I now enter my ruling on GLCC's Motion To Enforce Settlement Agreement.
GLCC and AT & T exchanged a series of settlement offers, both before and after the commencement of this litigation. Those settlement offers included written offers or counteroffers in 2014. See Joint Exhibits 3(a)-(h). After a hiatus, settlement discussions resumed in mid-June of 2015, after Judge O'Brien's Order On Motions For Summary Judgment. See Joint Exhibits 4, 5, and 8. At no time in the course of any of their negotiations, however, did any party "bid against itself"—that is, make consecutive offers without an intervening counteroffer from the other party. In a settlement offer dated May 8, 2014, see Joint Exhibit 3(c), GLCC first inserted the following language: "A settlement and release of claims will be contingent upon finalizing a formal written agreement executed by both parties." AT & T adopted identical language in its next offer, on May 19, 2014, see Joint Exhibit 3(d), and identical or nearly identical language appeared in every offer or counteroffer from both parties thereafter. See Joint Exhibits 3(e)-(h), 4, 5, and 8.
Focusing on the most recent round of settlement negotiations, I find that the parties' settlement negotiations resumed after Judge O'Brien's Order On Motions For Summary Judgment with AT & T's offer on June 18, 2015, see Joint Exhibit 4, and GLCC's counteroffer on June 19, 2015, see Joint Exhibit 5. In an e-mail from Mr. Hunseder, dated June 22, 2015, AT & T informed GLCC's attorneys that "AT & T believes the parties are making progress," and that "AT & T intends to make a counteroffer," but, for a number of reasons, that counteroffer would not be forthcoming until the following day. See Joint Exhibit 6.1
On June 25, 2015, before AT & T made any further offer, Mr. Carter sent Mr. Hunseder and Mr. Bendernagel, another of AT & T's attorneys, an e-mail, identified as a Confidential Settlement Communication, about both parties' "concerns about ensuring that settlement doesn't create undesirable incentives on either side." Joint Exhibit 7. In that e-mail, Mr. Carter set out "an example framework to see if it might help move the discussions forward," which included, in an attachment, certain specific terms as an example. Id. Mr. Carter's e-mail included the following disclaimer:
Please note that GLCC is not proposing the specific rates in our attachment and this does not constitute a formal settlement offer from GLCC to AT & T. Rather, it should be an [sic] understood as an example framework that might help to progress the discussions.
Joint Exhibit 7.
It was not until June 26, 2015, at approximately 2:46 p.m. (CDT), that Mr. Hunseder sent AT & T's new offer (June 26, 2015, Offer) to GLCC, as an attachment to an e-mail. Joint Exhibit 8. Mr. Hunseder prefaced AT & T's statement of the terms of its June 26, 2015, Offer, as follows:
I am writing to present a counter-offer settlement proposal that would resolve the above-captioned matter. As before, AT & T is prepared to move forward with trial in this matter. However, to avoid the expense associated with trial, AT & T is willing to enter into...
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