In re: CenturyLink Sales Practices v. CenturyLink, Inc.

United States Court of Appeals
For the Eighth Circuit
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No. 20-1294
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In re: CenturyLink Sales Practices and Securities Litigation
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Victor Romero; Pamela Romero, on behalf of themselves and all others similarly
situated
Plaintiffs - Appellees
Edwin Miller; Vonita Taylor; Patrick West
Movants - Appellants
v.
CenturyLink, Inc., et al.
Defendants - Appellees
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Appeal from United States District Court
for the District of Minnesota
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Submitted: December 21, 2020
Filed: February 2, 2021
[Unpublished]
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Before GRUENDER, ERICKSON, and KOBES, Circuit Judges.
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PER CURIAM.
Various plaintiffs filed lawsuits against CenturyLink, Inc. that later were
centralized in a multidistrict litigation in the District of Minnesota. Plaintiffs moved
the district court1 for provisional class certification and preliminary approval of the
class settlement. The district court entered an order (the “Preliminary Approval
Order”) that provisionally certified the class, preliminarily approved the class
settlement, and temporarily enjoined certain persons from filing or maintaining an
action in arbitration against CenturyLink relating to the claims brought in the
multidistrict litigation. Shortly after the district court issued the Preliminary
Approval Order, counsel for Edwin Miller, Vonita Taylor, and Patrick West
(“Movants”) entered an appearance and appealed the Preliminary Approval Order
and preliminary injunction. On appeal, Movants argue solely that the preliminary
injunction violated (1) the Federal Arbitration Act, 9 U.S.C. § 1 et seq., and (2) their
due process rights by enjoining them from commencing an arbitration action against
CenturyLink. Since appealing, Movants have opted out of the class, and the district
court granted Plaintiffs’ motion for final approval of the settlement and entered final
judgment. CenturyLink then moved to dismiss this appeal, arguing it is moot
because the preliminary injunction has since expired. We agree, so we grant the
motion to dismiss.
Our jurisdiction is limited “by Article III to render opinions only with respect
to live cases and controversies.” Perficient, Inc. v. Munley, 973 F.3d 914, 916 (8th
Cir. 2020) (internal quotation marks omitted). This means “that if an event occurs
while a case is pending on appeal that makes it impossible for the court to grant any
effectual relief whatever to a prevailing party, we must dismiss the case” as moot
“rather than issue an advisory opinion.” Id. (internal quotation marks omitted).
“[W]hen an injunction expires by its own terms there is nothing to review,” and
1 The Honorable Michael J. Davis, United States District Judge for the District
of Minnesota.

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therefore the case is moot. FIMCO, Inc. v. Funk, 748 F. App’x 716, 717 (8th Cir.
2019) (per curiam).
At this point, the challenged preliminary injunction in the Preliminary
Approval Order has expired. The Preliminary Approval Order stated that the
“Releasing Parties are hereby enjoined from filing . . . [or] maintaining . . . [an]
arbitration” “[p]ending the Final Approval Hearing and issuance of the Final
Approval Order and Final Judgment.” On November 19, 2020, the district court
held a final approval hearing. On December 4, 2020, the district court entered the
final approval order. And on December 14, 2020, the district court entered a final
judgment. Therefore, the appealed injunction has expired by its own terms, and there
is no longer a live controversy on appeal.
Despite conceding that the preliminary injunction has expired, Movants claim
that there still is a live controversy because the district court’s Preliminary Approval
Order will, through issue preclusion, bar them from pursuing a breach-of-contract
claim against CenturyLink. Even assuming, without deciding, that issue preclusion
would create a live controversy, Movants have not shown they would be precluded
from bringing such a suit because the Preliminary Approval Order was not a final
judgment. See B&B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138, 148 (2015)
(requiring a “valid and final judgment” for issue preclusion to apply). Neither the
Preliminary Approval Order (by its own terms) nor the preliminary injunction within
it were “final judgments.” See Medtronic, Inc. v. Gibbons, 684 F.2d 565, 569 (8th
Cir. 1982) (“[T]he granting or denial of a preliminary injunction . . . is not a final
judgment for the purposes of collateral estoppel.”).
Movants also claim that an exception to the mootness doctrine applies here,
which would permit us to hear this case because: “(1) the challenged action is in its
duration too short to be fully litigated prior to cessation or expiration, and (2) there
is a reasonable expectation that the same complaining party will be subject to the
same action again.” Kingdomware Techs., Inc. v. United States, 579 U.S. ---, 136 S.
Ct. 1969, 1976 (2016) (internal quotation marks and brackets omitted). This

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argument fails, as Movants have not shown a reasonable expectation that they will
be subject to such an injunction again. Movants proffer but one reason in support of
their argument: class members who objected to the settlement could appeal the
settlement, and if the settlement is overturned on appeal, the whole process of
entering a preliminary approval order with an injunction could begin again. Movants
offer no argument as to why they believe there is a reasonable expectation that the
settlement will be overturned on appeal. Therefore, we decline to apply this
exception to the mootness doctrine.
In the alternative, if we find the appeal moot, Movants urge this Court to
vacate the district court’s Preliminary Approval Order. When a civil suit becomes
moot pending appeal, we normally only vacate “judgment[s]” between “parties.”
See Camreta v. Greene, 563 U.S. 692, 712-13 (2011) (holding that, when “a civil
suit becomes moot pending appeal,” we may “vacate the judgment below” so “no
party is harmed by what we have called a preliminary adjudication”). Here, the
Preliminary Approval Order is not a judgment. See Black’s Law Dictionary (11th
ed. 2019) (defining “judgment” as “[a] court’s final determination of the rights and
obligations of the parties in a case”). Nor are Movants “parties,” because they opted
out of the settlement. See In re Brand Name Prescription Drugs Antitrust Litig., 115
F.3d 456, 457 (7th Cir. 1997) (“Having opted out of the class action, they were no
longer members of the class and so in no sense were parties.”).
Furthermore, even assuming that Camreta applies to a non-judgment and non-
parties, “vacatur is an equitable remedy, not an automatic right.” Moore v. Thurston,
928 F.3d 753, 758 (8th Cir. 2019). Generally, before we may vacate a district court’s
order, the party seeking vacatur must show both that they are not at fault for the
mootness and that vacatur is in the public interest. U.S. Bancorp Mortg. Co. v.
Bonner Mall P’ship, 513 U.S. 18, 26 (1994); Moore, 928 F.3d at 758. Here, vacatur
is improper because Movants have not shown that vacatur is in the public interest.
“In considering the public interest, we recognize that judicial precedents are
presumptively correct and valuable to the legal community as a whole and generally
should be permitted to stand.” Moore, 928 F.3d at 758 (internal quotation marks

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omitted). Movants provide no reason why the public interest would be served by
vacatur.
Even taking into account other traditional equitable factors, such as harm to
the movant and harm to other interested parties, cf. Gen. Motors Corp. v. Harry
Brown’s, LLC, 563 F.3d 312, 316 (8th Cir. 2009), vacatur would be inappropriate.
Movants are no longer affected by the preliminary injunction because it expired. As
we have explained, Movants’ only alleged legal consequence, issue preclusion, is
inapplicable. Finally, vacating the Preliminary Approval Order could vacate
portions of the order necessary to the class-action lawsuit, including but not limited
to the section governing timely opt-outs from the proposed settlement, none of which
Movants challenge. Accordingly, we decline to vacate the Preliminary Approval
Order.
For the foregoing reasons, CenturyLink’s motion to dismiss the appeal is
granted.
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