Hogan Lovells Fends Off Wide-Ranging Telecommunications Class Action

WASHINGTON, D.C., 15 August 2011 – On 12 August 2011 a San Francisco judge refused to certify an expansive class action against California power, telecommunications, and cable companies, handing a victory to Hogan Lovells client, the California Cable and Telecommunications Association (CCTA).

The plaintiffs had sought to certify a statewide class of landowners who have Pacific Gas & Electric Company power easements running across their private property. The plaintiffs argued that PG&E installed fiber optic cable on the easements, in addition to power lines, and that PG&E has been leasing the fiber to telecommunications providers without the landowners' permission. They argued that the resulting telecommunications use – using the fiber to provide voice, video, and Internet service – exceeds the scope of the easements. As a result, they argued, PG&E and the communications companies were trespassers and were required to pay each of the thousands of landowners in the class thousands of dollars in rent, plus other damages. The plaintiffs also sought injunctive relief that would have prevented cable operators from using the easements in the future.

The Superior Court for the County of San Francisco on Friday denied the plaintiffs' motion to certify the class. The court found that the lawsuit could not proceed as a class because each easement would have to be interpreted individually. It also found that other individual issues – including damages, the statute of limitations, and issues of consent – made the suit inappropriate for class treatment.

Hogan Lovells represented CCTA, which successfully intervened as a defendant on behalf of its member cable and communications companies because of the potential impact in California and elsewhere on the cable industry if the class action was successful. Hogan Lovells Washington, D.C. partner Gardner Gillespie and associate Paul Werner oversaw the representation. Washington, D.C. associate Dominic Perella argued the certification motion for CCTA, and associate Aaron George assisted on the briefing. Silicon Valley partner Robert Hawk and counsel Christopher Mitchell participated in the intervention briefing.

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