United States District Court, D. Colorado
JAMES AMEDEE, On Behalf of Himself and All Others Similarly Situated, Plaintiff,
LEVEL 3 COMMUNICATIONS, INC., JEFF K. STOREY, JAMES O. ELLIS, JR., KEVIN P. CHILTON, STEVEN T. CLONTZ, IRENE M. ESTEVES, T. MICHAEL GLENN, SPENCER B. HAYS, MICHAEL J. MAHONEY, KEVIN W. MOONEY, PETER SEAH LIM HUAT, and PETER VAN OPPEN, Defendants.
ORDER DISMISSING CASE AS MOOT
Raymond P. Moore, United States District Judge.
matter is before the Court on Plaintiff's response (ECF
No. 42) to the Court's order to show cause why this
action should not be dismissed as moot. The response attempts
to reassure the Court this case is not moot, but the Court is
Is Plaintiff's complaint only partially mooted?
nutshell, Plaintiff alleges the Supplemental Disclosures -
which Plaintiff found sufficient and approved before and
after they were issued - were in fact insufficient as there
were allegedly matters raised in the Complaint which should
have been disclosed but were not disclosed prior to the
merger. This is so, Plaintiff asserts, even after
“extensive negotiations” and ample
discovery “by counsel with extensive
experience and expertise in shareholder class action
litigation” who was aided by a financial expert. (ECF
No. 31, pp. 8, 19; No. 31-2, p. 4.) This is so, Plaintiff
asserts, even though Plaintiff represented to the Court
“Plaintiff and his counsel have concluded that the
Supplemental Disclosures provided Level 3 shareholders with
information sufficient to make a fully informed decision
on the Merger.” (ECF No. 31, p. 8 (emphasis
added).) But, lest Plaintiff forget, his complaint
was based on allegations that “[t]he Proxy
misrepresents and/or omits material information that is
necessary for the Company's stockholders to make an
informed voting decision on the Proposed
Transaction.” (ECF No. 1, p. 12 (emphasis added);
see also, e.g., p. 29 (Alleging that, absent
disclosures, “shareholders will be unable to make a
fully-informed voting decision on the Proposed
Transaction”).) A matter which Plaintiff has
affirmatively represented to the Court has been completed and
satisfied. (ECF No. 31, e.g., p. 13 (The
Supplemental Disclosures “provided shareholders with
significant material information that enhanced each
shareholder's ability to make a fully-informed
decision with respect to their Level 3 shares.”
(emphasis added)).) Thus, the case is moot. City Ctr. W.,
LP v. Am. Modern Home Ins. Co., 749 F.3d 912, 913 (10th
Cir. 2014) (“A case that was justiciable when
litigation commenced can become moot if the underlying
controversy ‘ceases to exist.'” (quoting
Jordan v. Sosa, 654 F.3d 1012, 1023 (10th Cir.
Even if moot, dismissal is not warranted? No.
argues that even if the complaint is now moot, this case
should not be dismissed. Plaintiff contends class action
lawsuits are different and this action is not moot merely
because the relief sought has been obtained; instead, he
asserts, a “flexible approach” to mootness is
required. Plaintiff relies primarily on Clark v. State
Farm Mut. Auto. Ins. Co., 590 F.3d 1134 (10th Cir.
2009). Such reliance is misplaced.
Clark, the district court determined that because
Clark no longer had any claim against State Farm, and no
class had yet been certified, the entire case was moot. The
Tenth Circuit affirmed. Such is the situation here for
Plaintiff in this case. The “flexible character”
of the mootness doctrine discussed in Clark confirms
rather than disproves the same result should be reached here.
Clark, “as a general rule, a suit brought as a
class action must be dismissed for mootness when the personal
claims of the named plaintiffs are satisfied and no class has
been properly certified.” Clark, 590 F.3d at
1138 (quotation marks, citation, and brackets omitted).
“[T]he mooting of a named plaintiff's claims
after class certification[, however, ] does not moot
the claims of the class.” Id. (emphasis in
original). Further, “if the named plaintiff's claim
becomes moot during the pendency of an appeal challenging the
district court's denial of class certification, the
appellate court is not divested of jurisdiction.”
Id. at 1138. Such facts, however, do not exist here.
other situations may allow a class to be certified despite
the mooting of Plaintiff's claim prior to a certification
decision: (1) “when the plaintiff's claim is
capable of repetition, yet evading review”; (2)
“when the plaintiff's claim is inherently
transitory such that the trial court will not have even
enough time to rule on a motion for class certification
before the proposed representative's individual interest
expires”; and (3) “when the defendant makes a
full offer of judgement-thereby mooting the named
plaintiff's claims-at so early a point in the litigation
that the named plaintiff could not have been expected to file
a class certification motion.” Id. at 1139
(quotation marks, citations, and brackets omitted). Of
course, even assuming such situations may nonetheless allow
for class certification,  such are not the facts and
also cites to a number of decisions within and without this
District, none of which are controlling. To the extent the
holding of any of these decisions would be that, under the
facts and circumstances here, this case is not moot, the
Court respectfully disagrees. Further, it is unclear these
cases all support Plaintiff's position. For example,
Plaintiff cites to Yost v. GeoResources, Inc., No.
12-cv-01307-MSK-KMT (D. Colo. Oct. 25, 2013) [Dkt. 70], but
that order fails to provide sufficient information to
remotely lend support to Plaintiff's position; the Court
will not search the record in that case to see if such an
argument may be made. See Roska ex rel. Roska v.
Peterson, 328 F.3d 1230, 1246 n.13 (10th Cir. 2003)
(declining to search record for support for plaintiffs'
contention). Similarly, Finkel v. American Oil & Gas,
Inc., No. 10-cv-01808-CMA-MEH, 2012 WL 171038 (D. Colo.
Jan. 20, 2012), did involve a nonmonetary, disclosure-only
settlement, but there is no indication that mootness was
raised or addressed, or whether, under the facts of that
case, mootness was an issue. As for Aron v. Crestwood
Midstream Partners LP, No. 4:15-cv-01367 (S.D. Tex. July
17, 2017) [Dkt. 69], it is also unavailing. There, Aron
sought a preliminary injunction and temporary restraining
order to stop the shareholder vote until material disclosures
took place. The Texas Court found that “[b]y quickly
consenting to these disclosures, Defendants mooted
Plaintiff's claims.” Id. at 11. Thus, it
appears Crestwood may fall within the third
situation discussed by the Tenth Circuit in
Clark. But, assuming this exception applies, this
Court has made no such findings here. Therefore,
Crestwood also does not save this case.
Should this case be dismissed? Yes.
not a case where just the personal claims of the named
plaintiff are satisfied, and no class has been properly
certified. Instead, in light of claims made and the
Supplemental Disclosures, the claims of all putative class
members whom Plaintiff seeks to represent here are also
on the foregoing, it is ORDERED
(1) That the order to show cause (ECF No. 41) is made