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Stokes v. DISH Network, L.L.C.

United States Court of Appeals, Eighth Circuit

October 4, 2016

Neil Stokes; Craig Felzien Plaintiffs - Appellees
v.
DISH Network, L.L.C. Defendant-Appellant

          Submitted: April 14, 2016

         Appeal from United States District Court for the Western District of Missouri - Jefferson City.

          Before LOKEN, BEAM, and SMITH, Circuit Judges.

          LOKEN, Circuit Judge.

         DISH 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.

         Neil 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).[1] 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.

         I. Relevant Contract Terms.

         Plaintiffs 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.

         The RCA provides in relevant part:

         1. THE DISH NETWORK SERVICE

. . .
I. Changes in Services ...

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