Streaming Platforms Oppose Remand in Illinois Municipality’s Franchise Fee Case

On Monday, defendants DISH Network Corporation, DISH Network L.L.C., Netflix Inc., Hulu LLC, Disney DTC LLC, and DIRECTV LLC submitted a joint opposition to the Village of Shiloh, Ill.’s motion to remand the case. The lawsuit asserts that the defendants deliver streaming video content using public rights-of-way, and under state law, are required to pay franchise fees to Illinois municipalities. 

The filing came in response to the plaintiff’s motion and after the court ordered the parties to fully brief the issue following a recent Seventh Circuit decision granting remand in a similar suit. Law Street Media’s previous coverage reported that in City of Fishers, Indiana v. DIRECTV, the appellate panel affirmed the trial court’s decision to send the case back to state court. The tribunal reasoned that under the comity doctrine set forth in Levin v. Commerce Energy Inc., the lower court did not abuse its discretion in declining to exercise jurisdiction over the state law dispute.

In this week’s 24-page brief, the defendants argued that present circumstances materially differ from those in the lawsuit the Seventh Circuit returned to state court. They first contended that their case is “copycat litigation,” borne from an earlier-filed suit brought in federal court. The copycat suit “asserts the same claims under the same statute on behalf of the same putative class seeking the same relief against a group of entities that includes all five of the Defendants named in this action,” the filing explained.

As such, the streaming platforms argued, the court must satisfy its duty to avoid redundancies in the form of overlapping class actions. The Class Action Fairness Act imbues the court with the power to conduct joint oversight or consolidate the suits, as it should do with this case and the federally filed class action, the opposition contended.

The defendants relatedly asserted that City of Fishers does not require remand. “The Seventh Circuit did not hold that Levin comity requires deference to copycat litigation, nor did it speak to the outcome of the fact-intensive comity inquiry under the different circumstances of this case,” the streaming platforms said. 

In addition, the filing claimed that comity does not warrant remand because “this ordinary action for money damages offers no reason for deference to the State Court.” The issues at hand, they said, are capable of resolution by a federal court.

The plaintiff is represented by Despres, Schwartz & Geoghegan, Ltd.

DISH Networks is represented by Steptoe & Johnson LLP, Cross Castle PLLC, and Armstrong Teasdale LLP, Netflix by Latham & Watkins, Hulu and Disney by Bryan Cave Leighton Paisner LLP, Wilson Sonsini Goodrich & Rosati, and DIRECTV by Sandberg Phoenix & Von Gontard P.C. and Kilpatrick Townsend & Stockton LLP.