Case 3:21-cv-00561-MAB Document 206 Filed 09/23/22 Page 1 of 28 Page ID #1235
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF ILLINOIS
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`CITY OF EAST ST. LOUIS,
`Individually and on behalf of all others
`similarly situated,
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`Plaintiff,
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`vs.
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`NETFLIX, INC.,
`DISNEY PLATFORM DISTRIBUTION,
`INC., APPLE, INC., HULU, INC.,
`WARNERMEDIA DIRECT, LLC,
`AMAZON.COM SERVICES, LLC,
`CBS INTERACTIVE, INC.,
`YOUTUBE, LLC,
`CURIOSITYSTREAM, INC.,
`PEACOCK TV, LLC,
`DIRECTV, LLC, and
`DISH NETWORK, LLC,
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`
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`Defendants.
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`Case No. 3:21-CV-561-MAB1
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`MEMORANDUM AND ORDER
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`BEATTY, Magistrate Judge:
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`This matter is currently before the Court on the Motions to Dismiss filed by each
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`of the Defendants (Docs. 172, 173, 174, 176, 178). Plaintiff filed an omnibus response in
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`opposition to the motions to dismiss (Doc. 184), and each Defendant filed a reply brief
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`(Docs. 187, 188, 189, 190, 191). Defendants also requested leave to file supplemental
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`authority in support of their motions to dismiss (Docs. 197, 200), which the Court granted
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` 1
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` This case was assigned to the undersigned for final disposition upon consent of the parties pursuant to
`28 U.S.C. §636(c) (see Doc.150).
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`1
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`Case 3:21-cv-00561-MAB Document 206 Filed 09/23/22 Page 2 of 28 Page ID #1236
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`over Plaintiff’s opposition (Doc. 205; see also Doc. 199, 204).
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`Although Defendants requested oral argument on the motions to dismiss, the
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`Court has reviewed the papers submitted and determined that oral argument is not
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`necessary. For the reasons that follow, Defendants’ motions to dismiss are granted.
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`BACKGROUND
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`In Illinois, all persons or entities “seeking to provide cable service or video service”
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`are required to obtain authorization from the government to provide their services. E.g.,
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`220 ILL. COMP. STAT. 5/21-301(a). Such authorization is commonly referred to as a
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`“franchise.” In the past, providers had to obtain authorization from each individual
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`municipality. See Illinois Senate Bill 678, Bill for an Act Concerning Telecommunications,
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`95th General Assembly, House Proceedings, May 31, 2007, at 234 (statement of Rep.
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`Brosnahan).2 But since 2007, when Illinois enacted the Cable and Video Competition Law
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`(220 ILL. COMP. STAT. 5/21-100, et. seq) (the “CVCL”), providers can now obtain a single
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`state-wide authorization from the Illinois Commerce Commission. 220 ILL. COMP. STAT.
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`5/21-301(a).3
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`The CVCL defines “video service” to include “video programming . . . that is
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`provided through wireline facilities located at least in part in the public rights-of-way
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` 2
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` Available on Westlaw at IL H.R. Tran. 2007 Reg. Sess. No. 65.
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` 3
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` Providers also still have the option of obtaining a cable television franchise from each individual
`municipality and/or county. E.g., 220 ILL. COMP. STAT. 5/21-301(a) (citing Illinois Municipal Code, 65 ILL.
`COMP. STAT. 5/11-42-11, and Counties Code, 55 ILL. COMP. STAT. 5/5-1095). See also 220 ILL. COMP. STAT.
`5/21-401(a)(2) (“Nothing in this Section shall prohibit a local unit of government from granting a permit to
`a person or entity for the use of the public rights-of-way to install or construct facilities to provide cable
`service or video service, at its sole discretion.”).
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`2
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`Case 3:21-cv-00561-MAB Document 206 Filed 09/23/22 Page 3 of 28 Page ID #1237
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`without regard to delivery technology, including internet protocol technology. 220 ILL.
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`COMP. STAT. 5/21-201(v). But it expressly excludes from the “video service” definition
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`“video programming provided by a commercial mobile service provider . . . or any video
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`programming provided solely as part of, and via, service that enables users to access
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`content, information, electronic mail, or other services offered over the public internet.”
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`Id. If an entity’s services fall within the definition, it must obtain a State-issued
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`authorization from the Illinois Commerce Commission before it can “use the public
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`rights-of-way for the installation or construction of facilities for the provision of cable
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`service or video service or offer cable service or video service . . . .” Id. at 401(a), (b).
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`The CVCL imposes numerous requirements on “holders,” that is entities who are
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`granted state-wide authorizations to offer or provide cable or video service. See 220 ILL.
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`COMP. STAT. 5/21-601, 701, 801, 901, 1001, 1101. See also id. at 201(k) (defining “holder).
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`Most notably, holders are required to pay a service provider fee to all local units of
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`government within whose boundaries the holders offer cable or video service. Id. at
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`801(b).4 To that end, before offering cable service or video service within the jurisdiction
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`of a local unit of government, a holder is required to notify the local unit of
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`government. Id. at 801(a). The local unit of government is then required to adopt an
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`ordinance imposing the service provider fee. Id. at 801(b).
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`The instant case involves the CVCL’s application to the twelve Defendants, who
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`are all “over the top” video service providers that charge subscribers a fee to access and
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` 4
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` A “local unit of government” is defined by the CVCL as “a city, village, incorporated town, or county.”
`220 ILL. COMP. STAT. 5/21-201(o).
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`3
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`Case 3:21-cv-00561-MAB Document 206 Filed 09/23/22 Page 4 of 28 Page ID #1238
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`stream their programming over the Internet (Doc. 167, ¶¶5–17, 30, 33; Doc. 184, p. 16 n.1).
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`To watch Defendants’ video content, subscribers use their own internet-connected device
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`(such as smart televisions, streaming media players like Roku or Apple TV, tablets,
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`smartphones, personal computers, etc.) (Doc. 167, ¶37). And subscribers connect to the
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`internet through the internet service provider (“ISP”) of their choice (Id. at ¶52).
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`Defendants’ subscribers typically use a broadband internet connection, such as DSL or
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`fiber optic cable, to view Defendants’ video content (Id. at ¶48). A broadband connection
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`relies on the ISPs’ wireline facilities located in whole or in part in the public right(s)-of-
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`way (Id. at ¶¶36, 50). In other words, Defendants’ video content is delivered from their
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`servers to subscribers’ devices through third-party ISPs’ wireline facilities located in the
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`public rights-of-way. Defendants do not provide internet access, nor do they own,
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`control, or operate wireline facilities in any Illinois public right-of-way (Id. at ¶¶52, 60).
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`The City of East St. Louis, Illinois (“Plaintiff”) brought this putative class action
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`against Defendants on behalf of all Illinois cities, villages, incorporated towns, and
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`counties in which one or more of the Defendants provide video service (Doc. 1, Doc. 167).
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`Plaintiff alleges that Defendants have all engaged in ongoing violations of the Illinois
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`CVCL by providing video service using the public rights-of-way without first obtaining
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`authorization from the Illinois Commerce Commission and without paying the requisite
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`fees to municipalities (Counts 1 and 2). Plaintiff also asserts claims for trespass (Count 3),
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`4
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`Case 3:21-cv-00561-MAB Document 206 Filed 09/23/22 Page 5 of 28 Page ID #1239
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`unjust enrichment (Count 4), and violation of East St. Louis Municipal Ordinance §82-19
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`(Count 5) (Doc. 167).5
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`LEGAL STANDARD
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`A motion to dismiss under Rule 12(b)(6) addresses the legal sufficiency of the
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`plaintiff’s claim for relief, not the merits of the case or whether the plaintiff will ultimately
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`prevail. Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 736 (7th Cir. 2014); Gibson v.
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`City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). To survive a motion to dismiss, a
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`complaint must contain sufficient factual matter to plausibly suggest that the plaintiff has
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`a right to relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v.
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`Twombly, 550 U.S. 544, 570 (2007)). A complaint need not allege specific facts, but it may
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`not rest entirely on conclusory statements or empty recitations of the elements of the
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`cause of action. Iqbal, 556 U.S. at 678. See also Dix v. Edelman Fin. Servs., LLC, 978 F.3d 507,
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`512–13 (7th Cir. 2020) (“[L]egal conclusions and conclusory allegations . . . are not entitled
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` 5
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` This Court also presided over a substantially similar putative class action filed by the Village of Shiloh,
`Illinois. See Village of Shiloh v. Netflix, Inc., et. al., SDIL Case No. 21-cv-807-MAB. That case was removed
`here from the Circuit Court of St. Clair County, Illinois; it was originally filed five days after East St. Louis
`filed the instant case. The Village of Shiloh timely moved to remand its case, claiming that under comity
`principles, the case should be decided by an Illinois state court. See id. at Docs. 45, 46; City of Fishers, Indiana
`v. DIRECTV, 5 F.4th 750, 752–53 (7th Cir. 2021). In other words, the Village of Shiloh contended a state
`court, not a federal court, needed to answer the same questions that East St. Louis chose to submit to a
`federal forum. Ultimately, the Court chose to rule on the comity issue in Village of Shiloh rather than consider
`options for managing duplicative cases (e.g., consolidation, stay, or dismissal) because comity abstention
`was the only issue formally before the Court—neither side had filed a motion regarding the management
`of the two cases nor provided any authority indicating that case management decisions should trump
`comity abstention principles—and the case was remanded. SDIL Case No 21-cv-807-MAB, Doc. 68, pp. 12–
`15. The Court recognized, however, the remand created an unusual and non-ideal situation in which
`duplicative lawsuits were proceeding in state and federal court and thus suggested any party could ask for
`a stay in either case. Id. No party asked the Court to stay the instant case, but they did ask for and were
`granted a stay in state court in Village of Shiloh, thus volleying the issues back to federal court. See SDIL
`Case No. 21-cv-807-MAB, Doc. 77. Accordingly, the undersigned is now tasked with determining whether
`Plaintiff has stated a claim for relief under Illinois law.
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`Case 3:21-cv-00561-MAB Document 206 Filed 09/23/22 Page 6 of 28 Page ID #1240
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`to this presumption of truth.”) (citation omitted). In deciding whether the complaint
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`sufficiently states a claim, courts take well-pleaded allegations in the complaint as true
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`and draw all permissible inferences in favor of the plaintiff. E.g., Dix, 978 F.3d at 512–13.
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`Determining whether a complaint states a plausible claim for relief is a “context-specific
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`task that requires the reviewing court to draw on its judicial experience and common
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`sense.” Iqbal, 556 U.S. at 679 (citation omitted).
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`DISCUSSION
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`A. COUNTS 1 & 2 FOR VIOLATIONS OF THE ILLINOIS CVCL
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`Plaintiff alleges that Defendants violated the CVCL by failing to obtain a State-
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`issued authorization for their video service, failing to provide notice to municipalities
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`prior to providing video service, and failing to pay municipalities the required video
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`service provider fees (Doc. 167, ¶¶80–97).
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`Defendants offer a myriad of independent reasons as to why Counts 1 and 2
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`should be dismissed. For example, Defendants argue the CVCL does not apply to them
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`because they are not facilities-based providers and do not have any physical
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`infrastructure (e.g., poles, wires and cables buried underground, utility boxes, etc.) in the
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`public rights-of-way. They argue they are excluded from the CVCL under the public
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`internet exemption. They argue the CVCL is preempted by various statutes, conflicts with
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`Orders from the Federal Communications Commission, and that its application would
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`violate the Internet Tax Freedom Act, the United States Constitution, the Illinois
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`Constitution. The Court, however, need not reach any of those arguments because it finds
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`another threshold argument is dispositive: the CVCL does not provide Plaintiff with a
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`Case 3:21-cv-00561-MAB Document 206 Filed 09/23/22 Page 7 of 28 Page ID #1241
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`right of action (Doc. 173, pp. 4–12; Doc. 179, pp. 39–43).
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`Under Illinois law, a party can file suit for violation of a statute only if the statute
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`provides a right of action. See Medicos Pain & Surgical Specialists, S.C. v. Travelers Indem.
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`Co. of Am., 103 N.E.3d 965, 972 (Ill. App. Ct. 2018); Midwest Med. Recs. Ass'n, Inc. v. Brown,
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`97 N.E.3d 125, 136 (Ill. App. Ct. 2018) (citing Gassman v. Clerk of the Cir. Ct. of Cook Cnty.,
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`71 N.E.3d 783, 790 (Ill. App. Ct. 2017). “A statute may provide for an express right of
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`action to redress a violation of its provisions.” 1541 N. Bosworth Condo. Ass'n v. Hanna
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`Architects, Inc., ---N.E.3d---, 2021 WL 6135459, *5 (Ill. App. Ct. 2021), appeal denied, 187
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`N.E.3d 704 (Ill. 2022). When a statute does not expressly provide for a private right of
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`action, a court can consider whether an implied right of action exists. Id.
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`Determining whether the CVCL provides a right of action is an issue of first
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`impression, which means the Court must interpret the statute as it thinks the Illinois
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`Supreme Court would interpret it. Frye v. Auto-Owners Ins. Co., 845 F.3d 782, 786 (7th Cir.
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`2017); ADT Sec. Servs., Inc. v. Lisle-Woodridge Fire Prot. Dist., 672 F.3d 492, 498 (7th Cir.
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`2012). As a federal court interpreting Illinois law, the Court must apply Illinois’ rules of
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`statutory construction. In re Hernandez, 918 F.3d 563, 569 (7th Cir. 2019) (citation omitted).
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`“The primary rule of statutory construction is to ascertain and give effect to the intent of
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`the legislature[.]” In re Hernandez, 918 F.3d at 569 (citing People v. Donoho, 788 N.E.2d 707,
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`715 (Ill. 2003)). “The best evidence of legislative intent is the statutory language,” which
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`must be given its plain and ordinary meaning. Donoho, 788 N.E.2d at 715; Haage v. Zavala,
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`183 N.E.3d 830, 842 (Ill. 2021). When construing statutory language, the statute must be
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`viewed in its entirety; words and phrases must be interpreted in light of other relevant
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`provisions of the statute and must not be construed in isolation. Eighner v. Tiernan, 184
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`N.E.3d 194, 199 (Ill. 2021); Hubble v. Bi-State Dev. Agency of Illinois-Missouri Metro. Dist.,
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`938 N.E.2d 483, 489 (Ill. 2010). In addition to the language of the statute, the court, in
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`determining legislative intent, may also consider the reason for the law, the problems
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`sought to be remedied, the purposes to be achieved, and the consequences of construing
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`the statute one way or another. Hubble, 938 N.E.2d at 489. In construing a statute, courts
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`presume that the General Assembly did not intend absurdity, inconvenience, or
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`injustice. Michigan Ave. Nat’l Bank v. Cnty. of Cook, 732 N.E.2d 528, 535 (Ill. 2000).
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`1. Express Right of Action
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`Defendants argue the CVCL does not provide an express cause of action (e.g., Doc.
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`173, pp. 4–12; Doc. 179, pp. 39–41), while Plaintiff contends that it does (Doc. 184, pp. 39–
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`40). The dispute centers on the language of §1301 of the CVCL (see Doc. 167, ¶29; Doc.
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`184, p. 39). This section is titled “Enforcement; penalties,” and it initially provides that,
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`“The Attorney General is responsible for administering and ensuring holders' compliance
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`with [the CVCL], provided that nothing in [the CVCL] shall deprive local units of
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`government of the right to enforce applicable rights and obligations.” 220 ILL. COMP. STAT.
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`5/21-1301(a). Section 1301 then goes on to delineate the authority the Attorney General
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`has and the actions the Attorney General can take in enforcing the CVCL, including
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`“conduct[ing] an investigation regarding possible violations by holders” of the CVCL;
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`“bring[ing] an action in a court of competent jurisdiction in the name of the People of the
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`State” if a violation of the CVCL is identified; and seeking monetary penalties in an action
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`against a holder. 220 ILL. COMP. STAT. 5/21-1301(b), (c), (d), and (e).
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`Section 1301 clearly provides an express right of action to the Attorney General by
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`explicitly stating that the Attorney General may institute a lawsuit against holders for
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`violations of the CVCL. 220 ILL. COMP. STAT. 5/21-1301(c). Notably, §1301 does not state
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`that local units of government may do the same. See id. In fact, §1301 does not
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`affirmatively delegate any sort of power or authority to local units of government when
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`it comes to enforcing the CVCL. See id. It merely says that the CVCL does not “deprive
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`local units of government of the right to enforce applicable rights and obligations.” Id. at
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`1301(a). This is the language that Plaintiff gloms on to. Plaintiff says this language means
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`that it can bring a lawsuit to enforce “the rights and obligations [that] are spelled out in
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`the CVCL” (Doc. 184, p. 40; see also id. at p. 17). But Plaintiff’s argument is refuted by
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`reading section §1301 in its entirety and in the context of the CVCL as a whole.
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`To begin with, when the General Assembly intends to create a right of action, it
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`certainly knows how to do so. This concept is illustrated by another section of the CVCL,
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`specifically §401, which provides in part that, “[a] local unit of government or the
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`Attorney General may seek to bar a transfer of ownership by filing suit in a court of
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`competent jurisdiction . . . .” 220 ILL. COMP. STAT. 5/21-401(f). In other words, §401
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`provides local units of government with a limited right of action to challenge certain
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`transfers of state-wide authorizations. Similarly, a portion of the Cable and Video
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`Customer Protection Law—which was enacted at the same time as the CVCL and works
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`in tandem with the CVCL6—provides that “[t]he Attorney General and the local unit of
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` 6
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` In June 2007, the General Assembly enacted Public Act 95-9, which, amongst other things, amended the
`Public Utilities Act by adding the Cable and Video Competition Law (“the CVCL”) (codified at 220 ILL.
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`Case 3:21-cv-00561-MAB Document 206 Filed 09/23/22 Page 10 of 28 Page ID #1244
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`government may enforce all of the customer service and privacy protection standards of
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`this Section with respect to complaints received from residents within the local unit of
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`government's jurisdiction . . . .” 220 ILL. COMP. STAT. 5/22-501(r). These two statutes
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`demonstrate that when the legislature intended to create a right of action for local units
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`of government, it knew how to do so unequivocally and unmistakably. See Conaghan v.
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`City of Harvard, 60 N.E.3d 987, 1002 (Ill. App. Ct. 2016) (“When the legislature intended
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`to create a new cause of action, it knew how to do so without leaving any doubt as to its
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`purpose.”).
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`In contrast, §1301 does not contain any language expressly authorizing a local
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`government to bring suits like the instant action for purported violations of the CVCL.
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`Rather, §1301 makes clear that enforcement is to be left to the Attorney General. “The
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`familiar maxim expressio unius est exclusio alterius is an aid of statutory interpretation
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`meaning ‘the expression of one thing is the exclusion of another.’” Metzger v. DaRosa, 805
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`N.E.2d 1165, 1172 (Ill. 2004) (citing Black's Law Dictionary 581 (6th ed. 1990)). “It
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`expresses the learning of common experience that when people say one thing they do not
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`mean something else.” Metzger, 805 N.E2d at 1172. The fact that §1301 gives the Attorney
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`General an express right of action does not imply that local governments can also bring
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`suit under that section. Similarly, just because local governments are authorized to bring
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`suit under §401 of the CVCL does not imply they can bring suit to enforce other sections
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`COMP. STAT. 5/21-100, et seq.(2007)), and the Cable and Video Customer Protection Law (codified at 220
`ILL. COMP. STAT. 13-507.1, et seq. (2007) (current version at 220 ILL. COMP. STAT. 5/22-501, et seq.))). S.B. 678,
`95th Gen. Assemb., Reg. Sess. (Ill. 2007); Ill. P.A. 95-9, art. 15, §§ 15-5, 15-25 (2007).
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`of the CVCL. See Metzger, 805 N.E2d at 1172 (“Where, as here, the legislature has
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`expressly provided a private right of action in a specific section of the statute, we believe
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`the legislature did not intend to imply private rights of action to enforce other sections of
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`the same statute.”). If the legislature intended as much, it would have explicitly said so
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`in clear and unambiguous terms. Rosenbach v. Six Flags Ent. Corp., 129 N.E.3d 1197, 1204
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`(Ill. 2019) (“When the statutory language is plain and unambiguous, we may not depart
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`from the law's terms by reading into it exceptions, limitations, or conditions the
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`legislature did not express, nor may we add provisions not found in the law.”).
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`As Defendants point out, the language of §1301 regarding the right of local
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`governments “to enforce applicable rights and obligations” is best understood as
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`preserving the existing rights a local government may have (such as contract rights under
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`a preexisting authorization) and the rights expressly provided for in the CVCL (such as
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`the right to bring suit to contest certain transfers of ownership under §401(f)) (Doc. 173,
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`p. 6; Doc. 179, p. 40). Simply put, there is no language in §1301 (or anywhere else in the
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`CVCL) that expressly authorizes a local government to bring suits like the instant action
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`for purported violations of the CVCL.
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`It also bears mentioning that §1301 only authorizes suits against “holders,” see 220
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`ILL. COMP. STAT. 5/21-1301, meaning persons or entities that have “received authorization
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`to offer or provide cable or video service from the Commission pursuant to Section 21-
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`401 of [the CVCL].” Id. at § 201(k). As the complaint makes clear, Defendants in this action
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`are not holders (e.g., Doc. 167, ¶83). No provision of the CVCL expressly authorizes
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`anyone—not the Attorney General nor a local government—to bring suit against a “non-
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`holder” (Doc. 179, p. 28–30). The statute did not contemplate suits such as the instant case
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`to compel video service providers who are non-holders to apply for a state-wide
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`authorization under the CVCL or to comply with the CVCL’s requirements.
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`In sum, the CVCL does not provide an express right of action to Plaintiff to bring
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`this lawsuit.
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`2. Home Rule Authority
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`Plaintiff also makes a perfunctory, undeveloped argument that it has the right to
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`bring suit because, as a home rule municipality, it may “concurrently exercise those same
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`powers as the State, provided that the State has not specifically declared the State’s exercise
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`to be exclusive,” and in this instance, the CVCL does not explicitly declare that the State’s
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`ability to enforce compliance of the CVCL is exclusive (Doc. 184, p. 40). Plaintiff does not
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`develop its argument any further or provide any supporting authority (see id.), which is
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`enough in and of itself to reject Plaintiff’s contention.7
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`Plaintiff’s position also seems to involve a misapplication of the home rule
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`concept. Home rule authority allows local governments “to legislate on a broad range of
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`social and economic policies without prior state legislative approval.” Paul A. Diller, The
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` 7
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` E.g., Bank of Am., N.A. v. Veluchamy, 643 F.3d 185, 190 (7th Cir. 2011) (“It is not enough merely to mention
`a possible argument in the most skeletal way, leaving the court to do counsel's work, create the ossature
`for the argument, and put flesh on its bones.”) (citation omitted); United States v. Courtright, 632 F.3d 363,
`370 (7th Cir. 2011) (“[Courts] are not in the business of formulating arguments for the parties.”); Mahaffey
`v. Ramos, 588 F.3d 1142, 1146 (7th Cir. 2009) (“Perfunctory, undeveloped arguments without discussion or
`citation to pertinent legal authority are waived.”); White Eagle Coop. Ass'n v. Conner, 553 F.3d 467, 476 n. 6
`(7th Cir.2009) (“[I]t is not the province of the courts to complete litigants' thoughts for them . . . . ”); Tyler v.
`Runyon, 70 F.3d 458, 465 (7th Cir.1995) (“[I]f an appellant fails to make a minimally complete and
`comprehensible argument for each of his claims, he [or she] loses regardless of the merits of those claims
`as they might have appeared on a fuller presentation.”).
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`City and the Private Right of Action, 64 STAN. L. REV. 1109, 1100 (2012). See also City of
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`Chicago v. Roman, 705 N.E.2d 81, 88 (Ill. 1998) (“The grant of home rule
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`powers contemplates that different communities which perceive a problem differently
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`may adopt different measures to address the problem, provided that the legislature has
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`taken no affirmative steps to circumscribe the measures that may be taken and that the
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`measures taken are reasonable.”) (citation omitted). The Illinois Constitution authorizes
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`home rule units to “exercise any power and perform any function pertaining to its
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`government and affairs including, but not limited to, the power to regulate for the
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`protection of the public health, safety, morals and welfare; to license; to tax; and to incur
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`debt.” Ill. Const. art. VII, § 6(a).8 It further permits home rule units to “exercise and
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`perform concurrently with the State any power or function of a home-rule unit to the
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`extent that the General Assembly by law does not specifically limit the concurrent
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`exercise or specifically declare the State's exercise to be exclusive.” Id. at § 6(i).
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`As these Constitutional provisions imply, a local government typically exercises
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`its home rule authority by regulating, meaning enacting ordinances related to its own local
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`affairs. Sarah Swan, Home Rules, 64 DUKE L.J. 823 (2015). In this instance, as Defendants
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`pointed out, there is no ordinance or other apparent exercise of home rule authority (Doc.
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`187, p. 3). Rather, the CVCL authorized the Attorney General to bring suit and Plaintiff is
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`claiming that home rule authority allows it to step into the Attorney General’s shoes and
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` 8
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` See also Jim Webb, Does This Home Rule the Courts? Carbondale's Tort Reform Ordinance, 30 S. ILL. U. L.J. 123,
`125 (2005).
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`Case 3:21-cv-00561-MAB Document 206 Filed 09/23/22 Page 14 of 28 Page ID #1248
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`file the lawsuit. In other words, a municipality can take over a specific duty statutorily
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`delegated to a state-level official in instances where the state-level official has not yet
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`acted or has declined to act. However, Plaintiff has not pointed the Court to any authority
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`or illustrative examples demonstrating that home rule authority works in the manner it
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`is claiming (see Doc. 184).
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`Plaintiff’s reliance on home rule authority also appears to have other fatal flaws
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`that were not brought up by Defendants. First, home rule authority relates only to local
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`affairs and not those of the state,9 but the CVCL explicitly states that “[t]he provision of
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`competitive cable services and video services is a matter of statewide concern that
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`extends beyond the boundaries of individual local units of government.”) 220 ILL. COMP.
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`STAT. 5/21-101(e). The CVCL also appears to limit the ability of local governments to act
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`because it explicitly states that “[t]he provision of [the CVCL] are a limitation of home
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`rule powers under subsection (i) of Section 6 of Article VII of the Illinois Constitution.”
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`220 ILL. COMP. STAT. 5/21-1401.
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`For these reasons, Plaintiff has failed to establish that it has a right of action to
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`bring this lawsuit based on home rule authority.
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`3. Implied Right of Action
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`The lack of explicit statutory language granting local units of government the right
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` 9
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` People ex rel. Bernardi v. City of Highland Park520 N.E.2d 316, 321 (Ill. 1988) (“The limited grant of power to
`home rule units in section 6(a) legitimizes only those assertions of authority that address problems faced
`by the regulating home rule unit, not those faced by the State or Federal governments.”); Wilson v. City of
`Chicago, 900 F. Supp. 1015, 1024 (N.D. Ill. 1995), aff'd, 120 F.3d 681 (7th Cir. 1997) (citing Ampersand Inc. v.
`Finley, 338 N.E.2d 15, 18 (Ill. 1975)) (“Powers of a home rule unit relate only to its own affairs, not those of
`the state.”).
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`Case 3:21-cv-00561-MAB Document 206 Filed 09/23/22 Page 15 of 28 Page ID #1249
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`to bring suit to enforce the CVCL is not necessarily dispositive because a court may
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`determine that a private right of action is implied in a statute. Fisher v. Lexington Health
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`Care, Inc., 722 N.E.2d 1115, 1117 (Ill. 1999). Under Illinois law, courts will recognize
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`an implied right of action only if all four of the following criteria are met: (1) the plaintiff
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`is a member of the class for whose benefit the statute was enacted; (2) the plaintiff’s injury
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`is one the statute was designed to prevent; (3) a private right of action is consistent with
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`the underlying purpose of the statute; and (4) implying a private right of action is
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`necessary to provide an adequate remedy for statutory violations. Horist v. Sudler & Co.,
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`941 F.3d 274, 278 (7th Cir. 2019) (citing Fisher, 722 N.E.2d at 117).
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`Here, the Court opts to move directly to the third and fourth consideration, which
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`it finds are not satisfied and thus dispositive of the issue. Implying a private right of
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`action for local governments is not necessary to provide an adequate remedy for statutory
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`violations. The Illinois Supreme Court has “implied a private right of action under a
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`statute only in cases where the statute would be ineffective, as a practical matter, unless
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`such an action were implied.” Fisher v. Lexington Health Care, Inc., 722 N.E.2d 1115, 1119–
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`20 (Ill. 1999) (citing Abbasi v. Paraskevoulakos, 718 N.E.2d 181 (Ill. 1999)). See also Bd. of Educ.
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`of City of Chicago v. A, C & S, Inc., 546 N.E.2d 580, 600 (Ill. 1989) (Illinois courts will “imply
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`a private remedy where there exists a clear need to effectuate the purpose of an act.”)
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`(emphasis in original) (citation omitted). But that is not the case here because the CVCL
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`already provides a framework for enforcement—the Attorney General was granted the
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`authority to investigate, penalize, and remedy violations of the CVCL. See 220 ILL. COMP.
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`STAT. 5/21-1301. The penalties include significant monetary fines and suspension or
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`revocation of the holder’s State-issued authorization. Id. at 1301(e).
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`Plaintiff, however, takes issue with local governments being left “entirely reliant
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`upon a third-party, the State, to bring an action to enforce their rights” (Doc. 184, p. 42).
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`Plaintiff argues that “if the State fails to bring such an action (as is the case here), there is
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`no available remedy to local governments to address violations of the statute” (Id.). In
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`other words, Plaintiff says the statutory remedies are inadequate because the Attorney
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`General has not pursued those remedies in this instance. But Plaintiff’s argument is
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`misguided. First, it relies on an assumption that Defendants are, in fact, subject to the
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`CVCL and have violated it. But Defendants vigorously contest that they are subject to the
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`CVCL and the issue is by no means resolved in this Order. Second, the simple fact that
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`the Attorney General has not pursued a lawsuit against video streaming platforms for
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`purported violations of the CVCL does not somehow mean the statutory enforcement
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`framework is an inadequate remedy. “[T]he applicable question . . . is whether the statute
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`provides for a sufficient remedy, not whether a particular person or entity has, in fact,
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`been sanctioned under the statute.” Carmichael v. Pro. Transportation, Inc., --- N.E.3d ---,
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`2021 WL 3925613, at *7) (Ill. App. Ct. 2021), appeal denied, 183 N.E.3d 890 (Ill. 2021).
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`Plaintiff’s argument implies that if the Attorney General had brought suit against video
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`streaming platforms, then Plaintiff would have no quarrel with the statute’s enforcement
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`mechanism. But a local government’s disagreement with the State’s Attorney as to when
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`i