Altice USA, Inc., D/B/A Suddenlink Communications v. City of Gurdon, Arkansas Ex Rel. Honorable Sherry Kelley, Mayor, Individually and on Behalf of a Class of Similarly Situated Cities

Cite as 2022 Ark. 199

SUPREME COURT OF ARKANSAS

No. CV-22-32

Opinion Delivered: November 10, 2022

ALTICE USA, INC., D/B/A

SUDDENLINK COMMUNICATIONS APPEAL FROM THE CLARK

APPELLANT COUNTY CIRCUIT COURT

[NO. 10CV-21-29]

V.

HONORABLE BLAKE BATSON,

CITY OF GURDON, ARKANSAS EX JUDGE

REL. HONORABLE SHERRY KELLEY,

MAYOR, INDIVIDUALLY AND ON AFFIRMED IN PART AND

BEHALF OF A CLASS OF SIMILARLY DISMISSED IN PART.

SITUATED CITIES

APPELLEE

SHAWN A. WOMACK, Associate Justice

Altice USA, Inc., d/b/a/ Suddenlink Communications (Suddenlink), appeals the

circuit court’s certification of the city of Gurdon’s class-action lawsuit, which alleges that

Suddenlink unlawfully charged Gurdon and other Arkansas cities three fees for the cities’

use of Suddenlink’s services. Suddenlink also appeals the circuit court’s refusal to first address

Suddenlink’s pending motion to compel arbitration before certifying the class. We affirm

in part and dismiss in part.

I. Background

Suddenlink provides telephone, internet, and cable services to the city of Gurdon.

As part of providing these services, Suddenlink assesses a 911 fee, an Arkansas High-Cost

Fund Fee, and a franchise fee. Gurdon filed a class-action lawsuit against Suddenlink and

alleged the imposition of these three fees against the city was unlawful. Seven weeks later,

Gurdon filed a motion for class certification

In response to Gurdon’s complaint, Suddenlink filed two motions: (1) a motion to

compel individual, non-class arbitration and to dismiss, or stay, pending completion of

arbitration proceedings; and (2) an alternative motion to dismiss for failure to state a claim

or for a more definite statement. Without ruling on either of Suddenlink’s motions, the

circuit court granted Gurdon’s motion for class certification. The circuit court ordered that

the “class should be certified for the causes of action for breach of contract and unjust

enrichment” and defined the class as:

Arkansas Cities which have been charged or have paid Defendant’s fees

identified as 911 fee, Arkansas High Cost Fund fee or franchise fee or related

fees or charges from the five years immediately prior to the filing of this

lawsuit up through the date of the entry of judgment in this case.[1]

Suddenlink timely appealed the class certification, which is immediately appealable. Ark.

R. App. P.–Civ. 2(a)(9).

II. Discussion

A. Motion to Compel Arbitration

Suddenlink first argues that the circuit court abused its discretion by not considering

Suddenlink’s motion to compel arbitration before certifying the class. When a party files a

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Gurdon did not specifically plead unjust enrichment or breach-of-contract claims.

However, Gurdon’s prayer for “necessary and proper further relief for the refund of fees

which Defendant has improperly collected,” is sufficiently broad to encompass both breach

of contract and unjust enrichment and is authorized by statute. See Ark. Code Ann. § 16-

111-108 (Repl. 2016) (“Further relief based on a declaratory judgment or decree may be

granted whenever necessary or proper.”).

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motion to compel arbitration, the circuit court “shall stay any judicial proceeding that

involves a claim alleged to be subject to the arbitration until the court renders a final decision

. . . .” Ark. Code. Ann. § 16-108-207(f). Despite this requirement, the circuit court certified

the class before ruling on Suddenlink’s motion to compel arbitration. This issue, however,

is not currently appealable.

Only certain issues concerning arbitration are eligible for interlocutory appeal,

namely orders denying motions to compel arbitration. Ark. R. App. P.–Civ. 2(a)(12). Here,

the circuit court has not entered an order denying Suddenlink’s motion to compel

arbitration, and the absence of an order forecloses Suddenlink’s ability to appeal the matter.

See id. Unlike certain motions, see, e.g., Ark. R. Civ. P. 59(b), motions to compel arbitration

are not deemed denied after the passage of time. Ark. Code Ann. § 16-108-207; see also

Ark. R. App. P.–Civ. 4(b)(1). Furthermore, Suddenlink failed to seek an extraordinary writ

to force the circuit court to comply with section 16-108-207. Accordingly, we do not

presently have jurisdiction over this claim and dismiss this portion of the appeal. See

Hotels.com, L.P. v. Pine Bluff Advert. & Promotion Comm’n, 2021 Ark. 196, at 6, 632 S.W.3d

742, 746.

B. Class Certification

When reviewing an order granting class certification, we will reverse only if the

appellant can demonstrate the circuit court abused its discretion. Rivera-Ceren v. Presidential

Limousine & Auto Sales, Inc., 2021 Ark. 219, at 6, 635 S.W.3d 304, 308. We only consider

the evidence in the record to determine whether it supports the circuit court’s decision. Id.

It is immaterial whether the claims will succeed on the merits. Id.

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There are six requirements for class-action certification: (1) numerosity, (2)

commonality, (3) typicality, (4) adequacy, (5) predominance, and (6) superiority. Ark. R.

Civ. P. 23(a), (b). If a plaintiff fails to satisfy any of the six factors, certification is

inappropriate. Valley v. Nat’l Zinc Processors, Inc., 364 Ark. 184, 189, 217 S.W.3d 832, 836

(2005). Although Suddenlink does not challenge the circuit court’s finding that the class is

sufficiently numerous, Suddenlink does contest the circuit court’s findings on the other five

requirements.

1. Commonality

Suddenlink first argues that the circuit court abused its discretion by finding that

Gurdon satisfied the commonality requirement. To maintain a class-action, a plaintiff must

establish there are questions of law or fact common to the class. Ark. R. Civ. P. 23(a)(2).

This only requires a single issue common to all members of the class. Faigin v. Diamante,

2012 Ark. 8, at 5, 386 S.W.3d 372, 376. Commonality is satisfied when the defendant’s

acts—independent of any action by the class members—establish a common question

relating to the entire class. Rosenow v. Alltel Corp., 2010 Ark. 26, at 6, 358 S.W.3d 879,

885.

In support of its contention that Gurdon failed to satisfy the commonality

requirement, Suddenlink argues that Gurdon did not identify a cause of action. But Gurdon

plainly identifies a cause of action in its complaint: “final declaratory relief, and necessary

and proper relief under Ark. Code Ann. § 16-111-108 for the refund of fees which

[Suddenlink] improperly collected.” In Hotels.com, L.P. v. Pine Bluff Advertising & Promotion

Commission, we held that a group of Arkansas advertising and promotion commissions had

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a common claim when they sought a declaratory judgment that several online travel

companies failed to remit certain taxes. 2013 Ark. 392, at 14, 430 S.W.3d 56, 64. Gurdon’s

claim is no less sufficient to establish commonality. See id.

Gurdon seeks a declaratory judgment that:

(a) Gurdon and the Class are not subject to 911 fees under the provisions of

the Arkansas Public Safety Communications Act, Ark. Code Ann. § 12-

10-300, et seq.[;]

(b) Suddenlink has no basis to collect fees from Gurdon and the Class to apply

toward Defendant’s payment of any franchise fee[;]

(c) Suddenlink has no basis to collect fees from Gurdon to apply toward

Defendant’s obligation to make payments to the Arkansas High Cost

Fund;

(d) Gurdon and the Class may not use public funds to pay the fees described

in Paragraph 25 herein; and

(e) Gurdon and the Class are entitled to a refund of all such fees which have

been unlawfully exacted from them.

Gurdon also seeks relief under Arkansas Code Annotated section 16-111-108, which allows

a circuit court to award “[f]urther relief based on a declaratory judgment or decree . . .

whenever necessary or proper.” To satisfy the commonality requirement, Gurdon must

only establish that there are questions of law or fact common to the class, which it has done.

Ark. R. Civ. P. 23(a)(2). Therefore, the circuit court did not abuse its discretion in finding

that Gurdon satisfied the commonality requirement.

2. Predominance

Because the predominance requirement is closely related to the commonality

requirement, we generally address the two in tandem. Class certification is appropriate only

if “questions of law or fact common to the members of the class predominate over any

questions affecting only individual members.” Ark. R. Civ. P. 23(b). This requirement is

more stringent than the commonality requirement, and the plaintiff can satisfy the

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predominance requirement “if the preliminary, common issues may be resolved before any

individual issues.” Philip Morris Cos., Inc. v. Miner, 2015 Ark. 73, at 6, 462 S.W.3d 313,

317.

Suddenlink argues that Gurdon’s failure to identify a cause of action means Gurdon

cannot satisfy the predominance requirement. However, as discussed above, Gurdon has

identified a cause of action common to the class. Once a court finds there are common

questions of law and fact, it must then determine whether the common question

predominates over any individual ones. Id.

Here, no individual issues exist. Gurdon and the putative class contend Suddenlink

unlawfully assessed three identical fees as part of its service charges. Even though the value

of the charges may vary between cities, Suddenlink systematically assesses these fees on its

monthly bills. Thus, the existence of one common claim among the class clearly

predominates, and the circuit court did not abuse its discretion in making this finding. See

Miner, 2015 Ark. 73, at 6, 462 S.W.3d at 317.

3. Typicality

Suddenlink next challenges the circuit court’s finding that Gurdon satisfied the

typicality requirement. The claims of the representative party must be typical of the claims

of the class. Ark. R. Civ. P. 23(a)(3). A plaintiff’s claim is typical if it arises from the same

course of conduct that gives rise to the claims of other class members and is based on the

same legal theory. Ark. Media, LLC v. Bobbitt, 2010 Ark. 76, at 8, 360 S.W.3d 129, 135.

When the complaint alleges that the defendant’s unlawful conduct affected both the plaintiff

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and the putative class, the typicality requirement is usually met irrespective of varying fact

patterns that may underlie individual claims. Id.

Here, there is no variation between the class representative’s claims and the claims of

the rest of the class. Both the class representative and the putative class allege that Suddenlink

unlawfully collected three identical fees when charging the cities for its services. Because

the claims arise from the same course of conduct and are based on the same legal theory,

the circuit court did not abuse its discretion when it found Gurdon satisfies the typicality

requirement. See Bobbitt, 2010 Ark. 76, at 8, 360 S.W.3d at 135.

4. Adequacy

Before certifying a class, the circuit court must find that the class representative and

its counsel fairly and adequately protect the interests of the class. Ark. R. Civ. P. 23(a)(4).

We have interpreted the adequacy requirement to mean

(1) the representative counsel must be qualified, experienced, and generally

able to conduct the litigation; (2) there must be no evidence of collusion or

conflicting interest between the representative and the class; and (3) the

representative must display some minimal level of interest in the action,

familiarity with the practices challenged, and ability to assist in decision-

making as to the conduct of the litigation.

Infinity Healthcare Mgmt. of Ark., LLC v. Boyd, 2019 Ark. 346, at 11–12, 588 S.W.3d 22, 30.

The circuit court found that Gurdon would fairly and adequately represent the class, but

Suddenlink contends this was an abuse of discretion because there is insufficient evidence

to make this determination. Specifically, Suddenlink argues that the circuit court made no

findings and simply recited the adequacy factors to support the finding.

The record reveals that Gurdon’s attorneys are qualified and able to lead the class-

action because of their extensive experience in this practice area. Furthermore, the circuit

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court found there was no evidence of collusion or conflicting interests between the class

representative and the class, and Suddenlink does not contend otherwise. Finding that the

class representative displayed some minimal level of interest, familiarity, and ability, the

circuit court noted that the mayor of Gurdon attended the class-certification hearing. The

record also reveals that Gurdon’s mayor is familiar with the class’s claims, as her office is

responsible for paying the city’s Suddenlink bill, and she is the mayor of a city whose

exclusive telephone, internet, and cable provider is Suddenlink. This establishes that the

class representative has more than a minimum level of interest in the litigation, and the

circuit court did not abuse its discretion when it concluded the class representative

adequately represented the interests of the class.

5. Superiority

Finally, Suddenlink argues that a class action is not the superior method to adjudicate

the class’s claims. To maintain a class action, it must be “superior to other available methods

for the fair and efficient adjudication of the controversy.” Ark. R. Civ. P. 23(b). As noted,

a common question predominates: does Suddenlink unlawfully charge Arkansas cities 911

fees, franchise fees, and Arkansas High-Cost Fund fees? If the court should answer this

question no, then Suddenlink is simultaneously relieved of liability to every single class

member. See Farmers Ins. Co. v. Snowden, 366 Ark. 138, 150, 233 S.W.3d 664, 672 (2006).

This is the quintessential example of efficiency. Indus. Welding Supplies of Hattiesburg, LLC

v. Pinson, 2019 Ark. 325, at 9, 587 S.W.3d 540, 547 (holding that “[c]onducting a trial on

the common issue in a representative fashion can achieve judicial efficiency”).

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Moreover, the cities that make up the putative class are from across the state.

Resolving the claims in one action as opposed to multiple, widely dispersed trials is fair to

all parties. See Int’l Union of Elec., Radio & Mach. Workers v. Hudson, 295 Ark. 107, 117–18,

747 S.W.2d 81, 86–87 (1988) (noting that a single case, as opposed to splintered cases, is

fair to both the class and the defendant when determining liability). Considering this, the

circuit court did not abuse its discretion by concluding that a class action is the superior

method for adjudicating the cities’ claims against Suddenlink.

III. Conclusion

To recap, the arbitration issue is not appealable on an interlocutory basis because the

circuit court never entered an order denying Suddenlink’s motion to compel arbitration.

Therefore, we dismiss that portion of the appeal. In considering whether the circuit court

abused its discretion by certifying the class, we conclude it did not and affirm class

certification.

Affirmed in part and dismissed in part.

KEMP, C.J., and WOOD, J., concur.

RHONDA K. WOOD, Justice, concurring. I write separately because the

majority’s references to the lack of an order and Rule 2(a)(12) misstate why we should

dismiss the argument that the circuit court erred by certifying the class before ruling on the

motion to compel arbitration.

The appellant’s notice of appeal identifies Arkansas Rule of Appellate Procedure–

Civil 2(a)(9) as the basis for our jurisdiction. This is reaffirmed in the brief’s jurisdictional

statement. Rule 2(a)(9) allows a limited, interlocutory appeal from an order granting or

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denying a motion to certify a class action. In reviewing these narrow appeals, we consider

only whether the requirements of Rule 23 have been met. 2 Other arguments fall outside

our review, such as appellant’s argument that the circuit court should have ruled first on the

motion to compel arbitration as required by Ark. Code Ann. § 16-108-207(f) (Repl. 2016).3

The majority implies the issue preventing our review is the absence of an order

denying arbitration under Rule 2(a)(12). But that’s wrong. And even so, such an order

would bring up a different issue and argument—namely, the merits of the arbitration

agreement. The argument on appeal falls outside our Rule 2(a)(9) review because it rests on

a statute that doesn’t relate to Rule 23 class certification. We should dismiss for that reason.

KEMP, C.J., joins.

Husch Blackwell LLP, by: Ginger Gooch; and McMillan, McCorkle & Curry, LLP, by: F.

Thomas Curry, for appellant.

Turner & Turner, PA, by: Todd Turner and Dan Turner; and Thrash Law Firm, P.A.,

by: Tom Thrash and Will Crowder, for appellee.

2

Philip Morris Cos., Inc. v. Miner, 2015 Ark. 73, at 3, 462 S.W.3d 313, 316.

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See, e.g., SEECO, Inc. v. Stewmon, 2016 Ark. 435, at 8, 506 S.W.3d 828, 834;

Lenders Title Co. v. Chandler, 353 Ark. 339, 351, 107 S.W.3d 157, 164 (2003); Worth v. City

of Rogers, 351 Ark. 183, 195, 89 S.W.3d 875, 882 (2002); Ark. State Bd. of Educ. v. Magnolia

Sch. Dist. No. 14 of Columbia Cnty., 298 Ark. 603, 605, 769 S.W.2d 419, 420 (1989).

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