Submitted: April 14, 2016
from United States District Court for the Western District of
Missouri - Jefferson City.
LOKEN, BEAM, and SMITH, Circuit Judges.
Network, L.L.C. ("DISH"), is a Colorado corporation
that sells satellite television access packages nationwide.
DISH's "carriage" agreement with Turner Network
Sales, Inc., expired on October 21, 2014, and was not renewed
until November 20, 2014. DISH's carriage agreement with
FOX News Network L.L.C. expired on December 21, 2014, and was
not renewed until January 15, 2015. DISH subscribers who had
selected programming packages that included popular Turner
and FOX News channels did not have access to those channels
during these interruptions. Though DISH continued to provide
hundreds of other channels, it did not provide complaining
subscribers any form of monetary relief for the Turner and
FOX News interruptions.
Stokes and Craig Felzien, DISH subscribers since 2008 and
2000, respectively, commenced this action on behalf of
themselves and a putative nationwide class of DISH
subscribers (collectively, "Plaintiffs") seeking
monetary relief for the Turner and FOX News services
interruptions. Applying Colorado law, as the DISH
Subscription Agreements expressly provide, the district court
denied DISH's motion to dismiss Plaintiffs' claims
for breach of contract and breach of the covenant of good
faith and fair dealing. The court certified two questions for
immediate interlocutory appeal under 28 U.S.C. §
1292(b). We granted a timely request to appeal the
certified questions and now review de novo the
district court's interpretation of the Subscription
Agreements under Colorado law, Matrix Grp. Ltd. v.
Rawlings Sporting Goods Co., 477 F.3d 583, 590 (8th Cir.
2007), and the court's denial of DISH's motion to
dismiss these claims for failure to state a claim upon which
relief can be granted, Prescott v. Little Six, Inc.,
387 F.3d 753, 756 (8th Cir. 2004), cert. denied, 544
U.S. 1032 (2005). We answer each certified question in the
negative, reverse the district court's order denying
DISH's motion to dismiss, and remand for further
proceedings not inconsistent with this opinion.
Relevant Contract Terms.
subscribed to specific DISH access packages, paying in
advance. They received Subscription Agreements after DISH
installed satellite equipment in their homes, comprised of a
Digital Home Advantage Plan Agreement ("Plan
Agreement") and a Residential Customer Agreement
("RCA"). The certified questions on appeal turn on
the following contract provisions. The Plan Agreement
provides in relevant part:
BY SIGNING BELOW YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE
RECEIVED, READ, UNDERSTAND, AND AGREE TO BE BOUND BY ALL OF
THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING . . .
THE RESIDENTIAL CUSTOMER AGREEMENT . . . AND THAT THE
FOLLOWING TERMS WERE DISCLOSED TO YOU PRIOR TO LEASE: . . .
WE RESERVE THE RIGHT TO CHANGE PRICES, PACKAGES, AND
PROGRAMMING AT ANY TIME, INCLUDING WITHOUT LIMITATION, DURING
ANY TERM AGREEMENT PERIOD TO WHICH YOU HAVE AGREED.
provides in relevant part:
THE DISH NETWORK SERVICE
. . .
I. Changes in Services ...