Altice USA, Inc., D/B/A Suddenlink Communications v. City of Gurdon, Arkansas

Cite as 2024 Ark. App. 228
ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-22-808

ALTICE USA, INC., D/B/A Opinion Delivered April 3, 2024

SUDDENLINK COMMUNICATIONS
APPEAL FROM THE CLARK COUNTY
APPELLANT
CIRCUIT COURT
[NO. 10CV-21-19]
V.
HONORABLE BLAKE BATSON,
CITY OF GURDON, ARKANSAS JUDGE
APPELLEE
AFFIRMED

CINDY GRACE THYER, Judge

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

orders of the Clark County Circuit Court denying its motion to compel individual

arbitration and granting the motion of appellee, City of Gurdon, Arkansas (“Gurdon”), for

certification of its complaint as a class action. We affirm.

I. Factual and Procedural Background

Suddenlink provides cable television, internet, and telephone services to customers

throughout Arkansas. In 1977, Gurdon promulgated Ordinance No. 273, which granted

Suddenlink’s predecessor, Gurdon Cable TV, Inc., the right to establish a distribution

system, including the right to erect and use equipment in Gurdon’s public rights-of-way, for

the purpose of providing cable television to the citizens of Gurdon. To compensate Gurdon

for the operation of the distribution system and in lieu of other taxes and fees, Gurdon Cable
TV, Inc., agreed to pay Gurdon an annual franchise fee equal to 2 percent of gross annual

service revenue received by the company. In 2004, through Ordinance No. 04-007,

Ordinance No. 273 was extended for an additional twenty-five years, the franchise was

assigned to TCA Cable Partners d/b/a Cox Communications, and Gurdon was given the

right to increase the franchise fee on gross subscription receipts up to the maximum

permitted by law at any time during the term of the agreement. At that time, the franchise

fee was set at 4.25 percent. In 2006, those franchise rights were assigned via Resolution No.

06-001 to Cebridge Acquisition, L.P., which is now an affiliate of Suddenlink. Additionally,

Gurdon is a customer of Suddenlink, using the provider for its television, internet, and

phone services.

On February 21, 2021, Gurdon filed a class-action complaint against Suddenlink

alleging that Suddenlink had failed to properly pay franchise fees to Gurdon and to other

cities similarly situated. In addition, Gurdon claimed that Suddenlink had failed to maintain

minimum standards of conduct for the benefit of its customers in Gurdon and customers in

other cities. Specifically, the complaint noted that Suddenlink’s customers had been

experiencing problems with Suddenlink’s services, such as excessive pricing, poor

communication, poor customer service, excessive wait times for customers who attempt to

contact the company, a lack of local offices, and other customer-relations issues. Gurdon

thus sought judgment for itself and the other putative class members for all unpaid amounts

for the use of public rights-of-way for the past five years; in addition, Gurdon sought an order

2
requiring Suddenlink to maintain the minimum customer-service standards “required by

law.” Gurdon formally moved for class certification on April 19, 2022.

In May 2022, Suddenlink moved to compel individual non-class arbitration.1 In a

supporting brief, Suddenlink argued that Gurdon itself had phone, internet, and television

services with Suddenlink and that by paying its monthly service bills, Gurdon had repeatedly

agreed to Suddenlink’s commercial services agreement. Each of Suddenlink’s billing

statements contains a provision noting, “Bill payment confirms your acceptance of the

Business Services Agreement.” That service agreement, in turn, contained a notice that

provides as follows:

THIS AGREEMENT CONTAINS A BINDING ARBITRATION AGREEMENT
THAT AFFECTS CUSTOMER’S RIGHTS, INCLUDING THE WAIVER OF
CLASS ACTIONS AND JURY TRIALS. THE AGREEMENT ALSO CONTAINS
PROVISIONS FOR OPTING OUT OF ARBITRATION. PLEASE READ IT
CAREFULLY.

The arbitration agreement itself provides that

[a]ny and all disputes arising between You and Suddenlink, including its respective
parents, subsidiaries, affiliates, officers, directors, employees, agents, predecessors,
and successors, shall be resolved by binding arbitration on an individual basis in
accordance with this arbitration provision. This agreement to arbitrate is intended to
be broadly interpreted. It includes, but is not limited to:

Claims arising out of or relating to any aspect of the relationship between us,
whether based in contract, tort, statute, fraud, misrepresentation or any other legal
theory;

1
Before filing its motion to compel arbitration, Suddenlink sought to remove the case
to federal court. The federal court remanded the matter to the circuit court because the
amount in controversy did not meet the jurisdictional minimum required for diversity
jurisdiction.

3
Claims that arose before this or any prior Agreement;

Claims that may arise after the termination of this Agreement.

The arbitration agreement further stated, “You agree to arbitrate your dispute and to do so

on an individual basis; class, representative, and private attorney general arbitrations are not

permitted.” Because of the broad nature of the arbitration agreement contained in the

commercial services agreement, Suddenlink argued that Gurdon was bound to arbitration. 2

Suddenlink also filed a memorandum in opposition to Gurdon’s motion for class

certification, arguing that Gurdon had not met the requirements of Arkansas Rule of Civil

Procedure 23. Specifically, Suddenlink challenged Gurdon’s satisfaction of the requirements

of commonality, predominance, typicality, adequacy, or superiority. Gurdon responded to

Suddenlink’s motion, denying its allegations and requesting a hearing.

The circuit court held a hearing on the arbitration and class-certification motions on

August 29, 2022. Following the hearing, the court entered separate orders on September 21

denying Suddenlink’s motion to compel individual non-class arbitration and granting

Gurdon’s motion for class certification. Regarding Suddenlink’s motion to compel

arbitration, the court found that Gurdon’s franchise-fee claims did not involve the customer-

service agreement by which Suddenlink provided services to the city; rather, the claims

involved Suddenlink’s obligations under the franchise agreement and under the Arkansas

2
In the alternative, Suddenlink filed a motion to dismiss Gurdon’s complaint
pursuant to Arkansas Rule of Civil Procedure 12(b)(6) and (b)(1).

4
Video Service Act. The court further found that Suddenlink had not satisfied its burden of

showing that the parties formed a valid agreement to arbitrate. 3 As to Gurdon’s motion for

class certification, the court found that Gurdon had satisfied the requirements of Rule 23.

It therefore certified a class of “all Arkansas cities which are entitled to receive franchise

payments from Suddenlink and which are entitled to enforce basic customer protections

[for] their citizens.” Suddenlink filed a timely notice of appeal.

II. Arbitration

In its first argument on appeal, Suddenlink asserts that the circuit court erred in

denying its motion to compel arbitration “because Gurdon and Suddenlink agreed to

arbitrate all disputes arising from their relationship.” An order denying a motion to compel

arbitration is immediately appealable pursuant to Arkansas Rule of Appellate Procedure–

Civil 2(a)(12) (2018). We review a circuit court’s denial of a motion to compel arbitration de

novo on the record. Robinson Nursing & Rehab. Ctr., LLC v. Phillips, 2019 Ark. 305, at 4, 586

S.W.3d 624, 628–29.

When a court is asked to compel arbitration, it is limited to deciding two threshold

questions: (1) whether there is a valid agreement to arbitrate between the parties, and (2) if

such an agreement exists, whether the dispute falls within its scope. Asset Acceptance, LLC v.

Newby, 2014 Ark. 280, 437 S.W.3d 119. The threshold issue is whether there was a valid

3
The court also denied Suddenlink’s Rule 12(b)(6) motion to dismiss; however,
Suddenlink does not challenge this aspect of the court’s ruling on appeal.

5
arbitration agreement. Hot Springs Nursing & Rehab. - A Waters Cmty., LLC v. Hooker, 2024

Ark. App. 80, ___ S.W.3d ___.

Even though an arbitration agreement may be subject to the Federal Arbitration Act

(“FAA”), this court looks to state contract law to determine if the parties’ agreement is valid.

GGNSC Holdings, LLC v. Chappel, 2014 Ark. 545, 453 S.W.3d 645. In determining the

threshold inquiry of whether a valid agreement to arbitrate exists, we have held that, as with

other types of contracts, the essential elements for an enforceable arbitration agreement are

(1) competent parties, (2) subject matter, (3) legal consideration, (4) mutual agreement, and

(5) mutual obligation. Crawford Operations, LLC v. Davis, 2023 Ark. App. 277, 668 S.W.3d

527. Suddenlink, as the proponent of the arbitration agreement, has the burden of proving

these essential elements. See LNH One, LLC v. Gaspar, 2024 Ark. App. 93, ___ S.W.3d ___.

Because arbitration is a matter of contract between the parties, it is a way to resolve those

disputes—but only those disputes—that the parties have agreed to submit to arbitration. Erwin-

Keith, Inc. v. Stewart, 2018 Ark. App. 147, 546 S.W.3d 508.

Suddenlink argues that the circuit court erred in finding that it failed to satisfy its

burden of showing the parties formed a valid agreement to arbitrate and in finding that the

contract lacked mutuality of agreement. In order to have a valid agreement to arbitrate, there

must be mutual agreement with notice as to the terms and subsequent assent. Crawford

Operations, supra. In support of its argument, Suddenlink points to the commercial services

agreement, which contained the arbitration agreement. Suddenlink contends that Gurdon

6
was on notice of the terms of the arbitration agreement because, by paying its bills, Gurdon

accepted the terms of service.

In a series of recent cases involving Suddenlink, this court held that individual

customers had entered into a valid agreement to arbitrate because the customers’ payment

of their monthly invoices and acceptance of Suddenlink’s services manifested their

agreement to the arbitration provision contained in their respective residential services

agreements. See Altice USA, Inc. v. Peterson, 2023 Ark. App. 116, 661 S.W.3d 699; Altice USA,

Inc. v. Francis, 2023 Ark. App. 117; Altice USA, Inc. v. Johnson, 2023 Ark. App. 120, 661

S.W.3d 707; Altice USA, Inc. v. Campbell, 2023 Ark. App. 123, 661 S.W.3d 720; Altice USA,

Inc. v. Runyan, 2023 Ark. App. 124, 662 S.W.3d 247.

Although similar, we find those cases to be distinguishable. In each of those cases,

the individual customers brought complaints about aspects of their residential cable,

internet, or telephone service. For example, in Peterson, the plaintiff alleged that she was

overbilled and that her bills contained multiple unexplained charges; in Johnson, the plaintiff

complained of service interruptions and unexplained charges. The other three cases involved

similar claims arising from Suddenlink’s provision of services. As noted above, we found

those claims to be governed by the arbitration clause in the residential services agreements.

While it is true that there is similarity between the agreements in the cases above and

the agreement to arbitrate contained within the commercial services agreement between

Gurdon and Suddenlink for the services Suddenlink provides to Gurdon as a customer, the

similarity ends there. Gurdon’s claims in this case do not arise from the commercial services

7
agreement but rather, as the circuit court found, Gurdon’s entitlement “to receive franchise

payments from Suddenlink.” In other words, the relationship between these parties is not as

customer and provider but rather as franchising authority and franchisee. Any disputes

regarding the franchise fee would thus be governed by the ordinances and resolutions

establishing and continuing the franchise, which make no mention of an intention or

agreement to arbitrate. See Asbury Auto. Grp., Inc. v. McCain, 2013 Ark. App. 338, at 5 (noting

that the FAA requires an arbitration agreement to be written).

We find this case to be analogous to Crain v. Byrd, 2019 Ark. App. 316, 577 S.W.3d

765. In Crain, Christopher Byrd was employed by Crain Automotive until October 26, 2017.

Shortly thereafter, Byrd and Crain entered into an “Employee/Employer Mutual Release

Agreement” (MRA) that contained certain terms associated with the cessation of Byrd’s

employment. In February 2018, Byrd sued Crain for fraud and breach of contract based on

the MRA. Crain subsequently moved to compel arbitration, asserting that Byrd’s claims

arose from Crain’s operating agreements, which contained arbitration clauses. The circuit

court denied Crain’s request for arbitration, finding that the MRA did not reference or

incorporate the operating agreements nor did the MRA itself contain an arbitration

provision. Crain, 2019 Ark. App. 316, at 2–3, 577 S.W.3d at 766–67. On appeal, this court

affirmed:

Whether a dispute should be submitted to arbitration is a matter of contract
construction, and we look to the language of the contract that contains the agreement
to arbitrate and apply state-law principles. We have further held that the same rules
of construction and interpretation apply to arbitration agreements as apply to

8
agreements generally; thus, we will seek to give effect to the intent of the parties as
evidenced by the arbitration agreement itself.

Here, there is an arbitration provision, but it is in the operating agreements,
which are earlier, separate documents from the Mutual Release Agreement. There is no
arbitration provision in the actual contract that appellee is suing on nor is there a reference
to the operating agreements in the Mutual Release Agreement.

Id. at 4, 577 S.W.3d at 767–78 (emphasis added) (internal citations omitted).

Similarly, here, there is an arbitration provision, but it is in the commercial services

agreement, which is a separate document from the franchise agreement. The franchise

agreement, which forms the basis for Gurdon’s suit against Suddenlink, contains no

arbitration provision nor does it reference, incorporate, or merge into the commercial

services agreement (and concomitantly, the commercial services agreement does not

reference, incorporate, or merge into the franchise agreement). The two agreements are

separate contracts between Gurdon and Suddenlink, entered into decades apart. Gurdon

sued Suddenlink over its alleged breach of the terms of the older agreement––which contains

no arbitration provision.

Suddenlink nonetheless argues that the language in the arbitration agreement is

exceptionally broad––it purports to apply to “any and all disputes arising between [Gurdon]

and Suddenlink,” including “claims arising out of or relating to any aspect of the relationship

between us, whether based in contract, tort, statute, fraud, misrepresentation or any other

legal theory.” (Emphasis added.) In support of its argument, Suddenlink cites Unison Co.,

Ltd. v. Juhl Energy Development, Inc., 789 F.3d 816, 818 (8th Cir. 2015), for its statement that

when an arbitration provision is broadly written, arbitration should be enforced “as long as

9
the underlying factual allegations simply touch matters covered by the arbitration

provision.”4

We disagree, however, that the franchise-fee allegations of Gurdon’s complaint

“touch matters covered by the arbitration provision.” Indeed, the plain language of the

commercial services agreement makes it clear that the “binding arbitration agreement”

“AFFECTS CUSTOMER’S RIGHTS.” (Emphasis added.) Simply stated, Gurdon is not

suing as a “customer” in this case. It is suing as the grantor of Suddenlink’s franchise. The

purportedly broad language of the commercial services agreement does not sweep so widely

as to encompass the nature of Gurdon’s claim. As noted above, arbitration is a way to resolve

those disputes—but only those disputes—that the parties have agreed to submit to arbitration.

Erwin-Keith, Inc., supra.

Additionally, we find our conclusion bolstered by language from one of our

previously cited Suddenlink cases. In Altice USA, Inc. v. Johnson, one of Johnson’s arguments

in opposition to arbitration was that we should affirm “because Suddenlink has failed to

establish that its franchise agreement with the city of Arkadelphia would allow it to force

Arkadelphia citizens into arbitration.” 2023 Ark. App. 120, at 16, 661 S.W.3d at 719. We

rejected Johnson’s argument, explaining that

4
The other cases on which Suddenlink relies in support of its “broad arbitration
language” argument are a case from the Fourth Circuit (Cara’s Notions, Inc. v. Hallmark Cards,
Inc., 140 F.3d 566 (4th Cir. 1998)), and an unpublished federal district court opinion (Cash
Converters USA, Inc. v. Burns, No. 99 C 146, 1999 WL 98345 (N.D. Ill. Feb. 19, 1999)),
neither of which is binding on this court.

10
[t]he relevance of the franchise agreement is not readily apparent because Suddenlink
sought arbitration pursuant to its [residential services agreement] with Johnson rather than
the franchise agreement that it had with the city. Johnson does little to explain how the
franchise agreement applies here or how . . . [it] is relevant to Suddenlink’s ability to
enforce the arbitration provision in the RSA. Consequently, we cannot agree that the
franchise agreement provides a basis to affirm the order denying Suddenlink’s motion
to compel arbitration.

Id. at 17, 661 S.W.3d at 720 (emphasis added). Clearly, in Johnson, we considered the

franchise agreement with the city and the residential services agreement with Suddenlink’s

customers to be entirely separate agreements. We see no reason to reach a different

conclusion in the instant appeal.

In short, there is no valid agreement to arbitrate, which is the first threshold question

to be answered when a court is asked to compel arbitration. See Asset Acceptance, supra.

Because there is no valid agreement to arbitrate in the franchise agreement, we therefore

affirm the circuit court’s denial of Suddenlink’s motion to compel arbitration.

III. Class Certification

Suddenlink next argues that the circuit court erred in certifying a class action for

Gurdon’s claims. An interlocutory appeal may be taken from an order certifying a case as a

class action in accordance with Arkansas Rule of Civil Procedure 23. Ark. R. Civ. P. 23.

Circuit courts are given broad discretion in matters regarding class certification; we will not

reverse a circuit court’s decision to grant or deny class certification absent an abuse of

discretion. Funding Metrics, LLC v. Letha’s Pies, LLC, 2022 Ark. 73, at 4; ChartOne, Inc. v.

Raglon, 373 Ark. 275, 283 S.W.3d 576 (2008).

11
When reviewing a circuit court’s class-certification order, this court reviews the

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

Am. Servicing of Ark., Inc. v. McGinnis, 2009 Ark. 151, at 4–5, 300 S.W.3d 487, 491. This

court does not delve into the merits of the underlying claims at this stage because the issue

of whether to certify a class is not determined by whether the plaintiff has stated a cause of

action for the proposed class that will prevail. See Am. Abstract & Title Co. v. Rice, 358 Ark. 1,

186 S.W.3d 705 (2004). When reviewing findings of fact by a circuit court, this court uses a

clearly erroneous standard. See Ark. R. Civ. P. 52(a) (2008). Thus, findings by the circuit

court will not be set aside unless they are clearly against the preponderance of the evidence.

See McGinnis, supra.

Rule 23 of the Arkansas Rules of Civil Procedure provides in relevant part:

(a) Prerequisites to Class Action. One or more members of a class may sue or be
sued as representative parties on behalf of all only if (1) the class is so numerous that
joinder of all members is impracticable, (2) there are questions of law or fact common
to the class, (3) the claims or defenses of the representative parties are typical of the
claims or defenses of the class, and (4) the representative parties and their counsel
will fairly and adequately protect the interests of the class.

(b) Class Actions Maintainable. An action may be maintained as a class action if
the prerequisites of subdivision (a) are satisfied, and the court finds that the questions
of law or fact common to the members of the class predominate over any questions
affecting only individual members, and that a class action is superior to other available
methods for the fair and efficient adjudication of the controversy. At an early
practicable time after the commencement of an action brought as a class action, the
court shall determine by order whether it is to be maintained. For purposes of this
subdivision, “practicable” means reasonably capable of being accomplished. An order
under this section may be altered or amended at any time before the court enters final
judgment. An order certifying a class action must define the class and the class claims,
issues, or defenses.

12
Rule 23 thus provides six requirements for class certification: (1) numerosity; (2)

commonality; (3) typicality; (4) adequacy; (5) predominance; and (6) superiority. In this

appeal, Suddenlink challenges only four of the six requirements: commonality,

predominance, typicality, and superiority. It also breaks its arguments down into the two

separate causes of action the circuit court identified: (1) its failure to pay franchise fees, and

(2) its failure to meet certain customer-service standards.

A. Franchise Fees

1. Commonality

Under Rule 23(a)(2), the circuit court must determine whether there are “questions

of law or fact common to the class.” The supreme court has held that this requirement is

case specific. See Johnson’s Sales Co., Inc. v. Harris, 370 Ark. 387, 260 S.W.3d 273 (2007). Rule

23(a)(2) does not require that all questions of law or fact raised in the litigation be common.

The test or standard for meeting the commonality requirement is that there need only be a

single issue common to all members of the class. Simpson Housing Sols., LLC v. Hernandez,

2009 Ark. 480, 347 S.W.3d 1. When the party opposing the class has engaged in some course

of conduct that affects a group of persons and gives rise to a cause of action, one or more of

the elements of that cause of action will be common to all of the persons affected. Id. The

circuit court must determine which elements in a cause of action are common questions for

the purpose of certifying a class. Id. Commonality is satisfied when the defendant’s acts,

independent of any action by the class members, establishes a common question relating to

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

13
The proper starting point in analyzing commonality is whether there is at least one

single issue common to all members of the class. Id. The mere fact that individual issues and

defenses may be raised regarding the recovery of individual members cannot defeat class

certification if there are common questions concerning the defendant’s alleged wrongdoing

that must be resolved for all class members. Nat’l Cash, Inc. v. Loveless, 361 Ark. 112, 205

S.W.3d 127 (2005). Moreover, an attempt to raise defenses at this stage is an attempt to delve

into the merits of the case. Id.

Here, the circuit court found that there was an issue common to all members of the

class: whether Suddenlink made the required franchise-fee payments to the class members.

On appeal, Suddenlink argues that Gurdon did not identify a cause of action in its complaint

but instead only vaguely contended that Suddenlink failed to pay it and the other class

members a quarterly franchise fee, without identifying the contract under which fees were

owed. Suddenlink further complains that resolving whether it paid “each city” an

“appropriate” amount of franchise fees necessarily requires answering questions concerning

its liability to each city. It contends that the court cannot resolve whether it made proper

payments with “one set of operative facts that establishes liability.”

Suddenlink’s arguments, however, appear to go to the merits of the underlying claims,

which is inappropriate at this juncture in a class action. See Baptist Health v. Hutson, 2011

Ark. 210, at 4, 382 S.W.3d 662, 666 (“Neither the trial court nor this court shall delve into

the merits of the underlying claims when deciding whether the Rule 23 requirements have

been met.”). The common question is simply whether Suddenlink paid the franchise fee or

14
whether it did not. This is an “issue common to all members of the class.” Rosenow, 2010

Ark. 26, at 6, 358 S.W.3d at 885. The question of what percentage Suddenlink owed to any

given city or what the ultimate damages might be is a question on the merits of the underlying

claim. We therefore cannot say that the circuit court erred in finding that the commonality

requirement of Rule 23 was satisfied.

2. Predominance

Rule 23(b) requires that “the questions of law or fact common to the members of the

class predominate over any questions affecting only individual members[.]” In Georgia-Pacific

Corp. v. Carter, 371 Ark. 295, 265 S.W.3d 107 (2007), the supreme court noted that the

starting point in examining the predominance issue is whether a common wrong has been

alleged against the defendant. If a case involves preliminary, common issues of liability and

wrongdoing that affect all class members, the predominance requirement of Rule 23 is

satisfied even if the circuit court must subsequently determine individual damages issues in

bifurcated proceedings. See Johnson’s Sales Co., Inc., supra. In addition, the supreme court has

said that

[t]he predominance element can be satisfied if the preliminary, common issues may
be resolved before any individual issues. In making this determination, we do not
merely compare the number of individual versus common claims. Instead, we must
decide if the issues common to all plaintiffs “predominate over” the individual issues,
which can be resolved during the decertified stage of bifurcated proceedings.

Carter, 371 Ark. at 301, 265 S.W.3d at 107. If, however, the preliminary issues are

individualized, then the predominance requirement is not satisfied. ChartOne, Inc., 373 Ark.

275, 283 S.W.3d 576.

15
As with the commonality requirement, the alleged wrongdoing is common to each of

the class members. Even though the dollar figure or the percentage of the franchise fee may

be unique to each city in the class, Suddenlink either did or did not pay the franchise fee.

Thus, the existence of one common claim among the class clearly predominates, and the

circuit court did not abuse its discretion in so finding.

3. Typicality

The typicality requirement of Rule 23 is satisfied when the event or practice or course

of conduct that gives rise to the claim of other class members is the same event or practice

or course of conduct that gives rise to the plaintiff’s injury and where the claim is based on

the same legal theory. Van Buren Sch. Dist. v. Jones, 365 Ark. 610, 619, 232 S.W.3d 444, 451

(2006). The class representative’s claim must only be typical, not identical. Asbury Auto. Grp.,

Inc. v. Palasack, 366 Ark. 601, 609, 237 S.W.3d 462, 468 (2006). When the complaint alleges

that the defendant’s unlawful conduct affected both the plaintiff and the putative class, the

typicality requirement is usually met irrespective of varying fact patterns that may underlie

individual claims. Ark. Media, LLC v. Bobbitt, 2010 Ark. 76, at 8, 360 S.W.3d 129, 135. The

essence of the typicality requirement is the conduct of the defendant and not the varying fact

patterns and degree of injury or damages to individual class members. Teris, LLC v. Chandler,

375 Ark. 70, 80, 289 S.W.3d 63, 70 (2008).

Here, the claims of the class representative and the claims of the class allege the same

unlawful conduct on the part of the defendant: that Suddenlink failed to pay to the putative

class members the franchise fees it was obligated to pay. Because the claims arise from the

16
same general course of conduct on Suddenlink’s part, we cannot conclude that the circuit

court abused its discretion in finding that Gurdon satisfied the typicality requirement.

4. Superiority

The superiority requirement is satisfied if class certification is the more efficient way

to handle the case, and it is fair to both sides. See Indus. Welding Supplies of Hattiesburg, LLC

v. Pinson, 2019 Ark. 325, at 12, 587 S.W.3d 540, 549. Real efficiency can be had if common,

predominating questions of law or fact are first decided, with cases then splintering for the

trial of individual issues, if necessary. Id. In determining whether class-action status is the

superior method for adjudication of a matter, it may be necessary for the circuit court to

evaluate the manageability of the class. Id. Whether common questions predominate and

whether a class action is a superior method of deciding the case are, to a degree, necessarily

subjective questions and very much related to the broad discretion conferred on a circuit

court faced with them. See Summons v. Mo. Pac. R.R., 306 Ark. 116, 122, 813 S.W.2d 240,

243 (1991).

Here, the circuit court found that it would not be cost effective for each putative class

member to file a separate lawsuit. In addition, the court found that class certification would

benefit Suddenlink because it would only have to pay to litigate the issues presented by this

matter one time, as opposed to potentially being required to appear and defend in dozens of

courtrooms across Arkansas. The supreme court found that the superiority element was

satisfied in light of on similar reasoning in Altice USA, Inc. v. City of Gurdon, 2022 Ark. 199,

17
at 8–9, 654 S.W.3d 641, 647–48. We can find no abuse of discretion in the circuit court’s

finding that Rule 23’s superiority requirement was satisfied.

B. Customer-Service Standards

The circuit court also certified a class of “[a]ll Arkansas cities . . . which are entitled

to enforce basic customer protections from [sic] their citizens” over violations of the Arkansas

Video Service Act, Ark. Code Ann. § 23-19-206 (Repl. 2015). Suddenlink argues that

Gurdon’s allegation that it failed to meet specific customer-service standards cannot support

class certification.

The crux of Suddenlink’s argument5 is that Gurdon failed to offer any admissible

evidence to support the court’s commonality finding on this issue. In other words, it

complains that Gurdon offered “no admissible evidence showing that the court can resolve

Suddenlink’s alleged failure to meet customer service standards in each municipality with

classwide proof.” In making this argument, Suddenlink concedes that “the parties conducted

no discovery before Gurdon moved for class certification.”

In support of its argument, Suddenlink cites Convent Corporation v. City of North Little

Rock, 2016 Ark. 212, 492 S.W.3d 498, as holding that admissible evidence is required to

support or oppose class certification. In that case, the supreme court reversed the circuit

5
Suddenlink also argues that the circuit court’s class definition is too indefinite. It
cites the above language in the class definition that says “cities . . . which are entitled to
enforce basic customer protections from their citizens.” It contends that using the word
“from” means that the class “consists of Arkansas cities whose citizens owe the cities basic
customer protections.” The use of the word “from” instead of “for” is clearly a scrivener’s
error, and the meaning and intent of the class definition is readily apparent from the context.

18
court’s denial of class certification where the court found that the party seeking class

certification did not present any evidence at the hearing on the motion to certify. The supreme

court held that the circuit court “should have considered the evidence in the record, which

would have included any admissible evidence submitted as exhibits by the parties in support

of their contentions that the motion for class certification should have been granted or

denied.” Convent Corp., 2016 Ark. 212, at 8, 492 S.W.3d at 503 (emphasis added).

Suddenlink’s argument on appeal seems to suggest that the circuit court was required

to have considered a specific quantum of evidence demonstrating Suddenlink’s failures

regarding its customer-service obligations before it could certify a class. That, however, would

have put the circuit court in the position of considering the merits of Gurdon’s claims, which

is inappropriate at the class-certification stage of the proceedings.

In any event, however, Gurdon presented proof supporting its motion for class

certification in the form of an affidavit from the mayor of Gurdon; an affidavit from the city

clerk of Pocahontas (noting that “many residents of Pocahontas have complained about

Suddenlink services); a copy of a complaint filed by the City of Pocahontas outlining

customer-service problems that city had had with Suddenlink; a letter from the mayor of

Jonesboro to the Arkansas Attorney General’s office detailing multiple problems that

Jonesboro had experienced with Suddenlink’s customer service; and a newspaper article

19
describing connectivity and customer-relations problems experienced by customers in

Batesville.6

Suddenlink does not argue that these exhibits were per se “inadmissible.” Nor does

it argue that Gurdon should have presented affidavits or other evidence from every proposed

class member. Rather, its argument is the affidavits “left unspecified which services

[residents] complained about,” suggesting that the affidavits were too generic to support the

circuit court’s commonality decision. Such an argument, however, is directed at the

underlying merits of the lawsuit, not the court’s procedural class-certification decision. We

therefore find no merit to Suddenlink’s argument on this point.

Affirmed.

HARRISON, C.J., and GLADWIN, J., agree.

Husch Blackwell, LLP, by: Laura C. Robinson; and McMillan, McCorkle & Curry, LLP, by:

F. Thomas Curry, for appellant.

Thrash Law Firm, P.A., by: Thomas P. Thrash and Will T. Crowder; and Turner & Turner,

P.A., by: Todd Turner, for appellee.

6
Gurdon attached numerous other articles to its motion for class certification, but
they pertained to cities, states, and entities outside Arkansas.

20