Free Notice (Other) - District Court of Colorado - Colorado

Case 1:02-cv-01977-RPM

Document 96-3

Filed 05/23/2006

Page 1 of 2

Thomas P. McMahon

A

P R O }r r s ~ o I\ L

C O K P O I ~ ~ ~ ~ I O Y

[email protected]

May 3,2006

By Facsimile and Mail B. Lawrence Theis Musgrave & Theis, LLP 370 17th St., #4450 Denver, CO 80202
Dear Lany: I am writing on behalf of plaintiffs regarding the definition of the proposed class. In the Amended Class Action Complaint plaintiffs alleged a class of consumers who subscribed to local service in the geographic areas of 14 states where w e s t was the incumbent local exchange carrier at any time since October 16,1998. In the joint scheduling order, Qwest urged that the class so defined was too broad. At the Court's June 24, 2005 conference, plaintiffs agreed to narrow and refine the class definition. The result was the October 11, 2005 statement of class definition that excluded six of the states, proposed subclasses in each of the eight remaining states, began upon effectiveness of the McLeod agreement and ended when the FCC lifted "pick and choose" requirements. Thus, plaintiffs narrowed the earlier definition. They certainly did not intend to broaden it by eliminating the condition that class members be confined to geographic areas where Qwest was the ILEC. The condition that Qwest be the ILEC was implicit in the class definition given to defendants on October 11, 2005. Indeed, it would be nonsensical to allege that Qwest's secret interconnection agreements caused harm in areas where other telephone companies serve as the ILEC and therefore charge for interconnection. Furthermore, the Sherman Act Section 1 claim in this action is asserted only by Qwest customers and the Federal Communications Act Section 202 claim is asserted only by CLEC customers. These points are occasioned by comments made by Dr. Dorman during his deposition last week. He did acknowledge that plaintiffs' class certification expert, Dr. Hayes, described a class confined to areas where Qwest is the ILEC. Nevertheless, Dr. Dorman adverted to a broader class that ostensibly would include consumers in areas where Qwest is not involved at all in providing telephone service. Similarly, his report and deposition testimony indicate that defendants may understand plaintiffs to be asserting the antitrust claim on behalf of CLEC customers. In fact, neither is the case.

I trust that these clarifications will be welcomed by Qwest, which consistently has advocated a narrower and more specific class. Nevertheless, if need be, plaintiffs stand willing to amend the complaint andfor modify the written class definition.

&omas P. McMahon cc: Randall Berger Peter Linden
WORLD TRADE CENTER 1625 BROADWAY, T FLOOR DENVER, 1~ H COLORADO 802 PHONE: 573 1600 'Fax: 303 573 8 133. www.joneskeller.com 303

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Case 1:02-cv-01977-RPM

Document 96-3

Filed 05/23/2006

Page 2 of 2

JONES & KELLER, P.C.
Attorneys at Law 1625 Broadway, Suite 1600 Denver, Colorado 80202 Telephone: (303) 573-1600 Facsimile: (303)573-8133

FACSIMILE TRANSMISSION COVER SHEET
For assistance regarding this transmission can (303) 573-1600

TOTAL NUMBER OF PAGES INCLUDING THIS PAGE: 2 DATE: May 3,2006

RECIPIENT(S) Larry Theis

FAX NUMBER 303-485-4725

PHONE NUMBER

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Randy Berger

1 Peter Linden
RE:

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Definition of the proposed class.

FROM: Thomas P. McMahon

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