Stokes v. Dish Network, Llc.

838 F.3d 948 (8th Cir. 2016)

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Nature of the Case

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Facts

DISH Network (D) sells satellite television access packages. D's agreement with Turner Network Sales, Inc., expired on October 21, 2014, and was not renewed until November 20, 2014. D's agreement with FOX News Network expired on December 21, 2014, and was not renewed until January 15, 2015. D subscribers who had selected programming packages that included popular Turner and FOX News channels did not have access to those channels during these interruptions. D refused any complaining subscribers any form of monetary relief from the interruptions. Stokes (Ps) commended this action on behalf of themselves and a putative nationwide class of D subscribers seeking monetary relief. P's subscribed to specific access packages, paying in advance. The certified questions on appeal turn on the following contract provisions. The Plan Agreement provides: 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. Under the Residential agreement it provided that D may add, delete, rearrange and/or change any and all programming, programming packages, and other Services, as well as the prices and fees related to such programming, programming packages, and Services, at any time, including . . . during any term commitment period to which you have agreed. D had no obligation to replace or supplement such programming, programming packages or other Services. It also stated that Ps not entitled to any refund because of deletion, rearrangement or change of any programming, programming packages or other Services. The agreement also stated that D will not BE LIABLE FOR ANY INTERRUPTION IN ANY SERVICE OR FOR ANY DELAY OR FAILURE TO PERFORM, INCLUDING WITHOUT LIMITATION: IF SUCH INTERRUPTION, DELAY OR FAILURE TO PERFORM ARISES IN CONNECTION WITH THE TERMINATION OR SUSPENSION OF DISH NETWORK'S ACCESS TO ALL OR ANY PORTION OF SERVICES. The district court concluded that, if the Subscription Agreements provided 'that DISH cannot be held liable for any interruption or delay of any or all programs for any period of time . . . such an interpretation would, of course, render the contract illusory.' The district court denied D's motion to dismiss Ps' 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). The appeals court granted a timely request to appeal the certified questions and review de novo the district court's interpretation of the Subscription Agreements under Colorado law. The first certified question asked if the Subscription Agreement is illusory? The second question: Under Colorado Law, if the Subscription Agreement between Stokes and DISH, which is comprised of both a Digital Home Advantage Plan Agreement and a Residential Customer Agreement, is not illusory, may, in light of the express terms of the Subscription Agreement, the duty of good faith and fair dealing be applied to require DISH to provide any monetary relief when it deletes or changes programming for which subscribers have already paid?