`Case 2:21-cv-15303-SRC-MAH Document 1 Filed 08/13/21 Page 1 of 18 PageID: 1
`
`James E. Cecchi
`Kevin G. Cooper
`CARELLA, BYRNE, CECCHI,
`OLSTEIN, BRODY & AGNELLO, P.C.
`5 Becker Farm Road
`Roseland, NJ 07068
`Telephone: (973) 994-1700
`Fax: (973) 994-1744
`jcecchi@carellabyrne.com
`kcooper@carellabyrne.com
`
`
`UNITED STATES DISTRICT COURT
`DISTRICT OF NEW JERSEY
`
`
`
`
`
`
`
` Case No. __________________
`
` CLASS ACTION COMPLAINT
`
` JURY TRIAL DEMANDED
`
`
`BOROUGH OF LONGPORT and
`TOWNSHIP OF IRVINGTON,
`individually and on behalf of all others
`similarly situated,
`
` Plaintiffs,
`
`
`
`
`v.
`
`NETFLIX, INC. and HULU, LLC,
`
` Defendants.
`
`
`Plaintiffs Borough of Longport and Township of Irvington, individually and
`
`on behalf of all others similarly situated (the “Class,” as more fully defined below),
`
`file this Class Action Complaint against Defendants Netflix, Inc. and Hulu, LLC
`
`(collectively “Defendants”), alleging violations of New Jersey’s Cable Television
`
`Act, N.J. Rev. Stat. § 48:5A-1, et seq., as follows:
`
`
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`1
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`I.
`
`INTRODUCTION
`
`1.
`
`Defendants provide online streaming services, using wireline facilities
`
`(i.e., broadband wireline facilities) located at least in part in public rights-of-way.
`
`Defendants’ services, which offer subscribers a catalog of television shows, movies
`
`and other programming, are comparable to that provided by traditional cable
`
`companies and television-broadcast stations and are available to customers
`
`throughout the state of New Jersey.
`
`2.
`
`New Jersey’s Cable Television Act, N.J. Rev. Stat. § 48:5A-1, et seq.
`
`(the “CTA”) governs entities that provide “video programming” and “cable
`
`television service” to subscribers and the CTA imposes certain franchise and fee
`
`obligations on these entities.
`
`3.
`
`Under
`
`the CTA, Defendants qualify as providers of “video
`
`programming” and “cable television service” and are thus required to pay New
`
`Jersey municipalities franchise fees equivalent to a percentage of their gross revenue,
`
`derived in each municipality.
`
`4.
`
`Defendants, however, have failed to pay the required fee, necessitating
`
`this lawsuit, and entitling Plaintiffs and the putative class to the relief requested
`
`herein.
`
`II.
`
`PARTIES
`
`5.
`
`Plaintiff Borough of Longport is a lawfully existing New Jersey
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`
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`2
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`municipality located in Atlantic County, New Jersey.
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`6.
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`Plaintiff Township of Irvington is a lawfully existing New Jersey
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`municipality located in Essex County, New Jersey.
`
`7.
`
`Defendant Netflix, Inc. (“Netflix”) is a Delaware corporation,
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`headquartered in Los Gatos, California. Netflix owns and operates the video
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`streaming service of the same name. Netflix does business in Longport, New Jersey
`
`and Irvington, New Jersey and has done so at all times relevant to this action.
`
`8.
`
`Defendant Hulu, LLC (“Hulu”) is a Delaware limited liability
`
`company, headquartered in Santa Monica, California. Hulu owns and operates the
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`video streaming service of the same name. Hulu is currently owned jointly by The
`
`Walt Disney Company and Comcast Corporation. Hulu does business in Longport,
`
`New Jersey and Irvington, New Jersey and has done so at all times relevant to this
`
`action.
`
`III. JURISDICTION AND VENUE
`
`9.
`
`This Court has original jurisdiction over this action under the Class
`
`Action Fairness Act of 2005 (“CAFA”), 28 U.S.C. § 1332(d). Defendants are citizens
`
`of a state different from that of Plaintiffs, the putative class size is greater than 100,
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`and the aggregate amount in controversy for the proposed Class exceeds
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`$5,000,000.00, exclusive of interest and costs.
`
`10. Venue is proper in this District, and this Court has personal jurisdiction
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`
`
`3
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`over Defendants, pursuant to 18 U.S.C. § 1965(a) and 28 U.S.C. § 1391(b), because
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`a substantial part of the events giving rise to the claims occurred in this District, and
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`because Defendants “transact affairs” in this District; each Defendant continuously
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`and systematically engaged in and continues to engage in business in this District.
`
`IV. FACTUAL ALLEGATIONS
`
`A. Defendants’ Video Streaming Businesses
`
`11. Netflix is the world’s leading subscription entertainment service,
`
`offering paid streaming memberships around the world to view “TV series,
`
`documentaries and feature films across a wide variety of genres and languages.”
`
`Netflix’s streaming service allows “[m]embers [to] watch as much as they want,
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`anytime, anywhere, on any internet-connected screen. Members can play, pause and
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`resume watching, all without commercials.”1
`
`12. Netflix describes itself as “a pioneer in the delivery of streaming
`
`entertainment, launching our streaming service in 2007. Since this launch, we have
`
`developed an ecosystem for internet-connected screens and have added increasing
`
`amounts of content that enable consumers to enjoy entertainment directly on their
`
`internet-connected screens. As a result of these efforts, we have experienced
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`growing consumer acceptance of, and interest in, the delivery of streaming
`
`
`1 Netflix, Inc., 2019 Annual Report, at 1 (2020).
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`
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`4
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`entertainment.”2
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`13. Netflix’s streaming memberships exceed 200 million in number
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`worldwide.3
`
`14.
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`“Hulu aggregates acquired and original
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`television and
`
`film
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`entertainment content for distribution to internet-connected devices. Hulu offers a
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`subscription-based service with
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`limited commercial announcements and a
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`subscription-based service with no commercial announcements. In addition, Hulu
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`operates a digital OTT MVPD service, which offers linear streams of broadcast and
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`cable channels, including the major broadcast networks.”4 Hulu has subscribers in
`
`excess of 39 million.5
`
`B. New Jersey’s Cable Television Act
`
`15. New Jersey’s Cable Television Act, N.J. Rev. Stat. § 48:5A-1, et seq.
`
`(the “CTA”), governs the providers of “cable television service” or “CATV” which
`
`are defined as:
`
`(1) the one-way transmission to subscribers of (a) video programming, or
`(b) other programming service; and (2) subscriber interaction, if any, which
`is required for the selection or use of such video programming or other
`programming service, regardless of the technology utilized by a cable
`
`2 Id.
`3 Netflix, Inc., 2020 Earnings Call Transcript, at 7 (Tuesday, January 19, 2021).
`4 The Walt Disney Company, 2019 Annual Report, at 16 (2020).
`5 The Walt Disney Company, 2021 First Quarter Earnings Report, at 5 (February
`11, 2021).
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`5
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`television company to enable such selection or use.6
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`16.
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`“Video programming” is further defined in the CTA as “programming
`
`provided by, or generally considered comparable to programming provided by, a
`
`television broadcast station.”7
`
`17.
`
`The CTA further notes that “cable television service” includes “video
`
`programming, without regard to the technology used to deliver such video
`
`programming, including Internet protocol technology …”8
`
`18.
`
`19.
`
`Two primary requirements under the CTA are at issue here.
`
`First, the CTA requires that “[a]ny entity that seeks to provide cable
`
`service in this State [] may apply for either individual certificates9 of approval [with
`
`municipal consents] or a system-wide franchise” 10 with the New Jersey Board of
`
`
`6 N.J. Stat. Ann. § 48:5A-3.
`7 Id.
`8 “’Cable television system’, ‘CATV system’ or ‘cable system’ means a facility,
`consisting of a set of closed transmission paths and associated signal generation,
`reception, and control equipment, that is designed to provide cable television service
`which includes video programming, without regard to the technology used to deliver
`such video programming, including Internet protocol technology or any successor
`technology, and which is provided to multiple subscribers within a community, but
`such term does not include: (1) a facility that serves only to retransmit the television
`signals of one or more television broadcast stations; (2) a facility that serves
`subscribers without using any public right-of-way …” Id.
`9 N.J. Stat. Ann. § 48:5A-3 (“’Certificate’ means a certificate of approval issued by
`the [Board of Public Utilities]”).
`10 See id. (“’Franchise’ means an initial authorization, or renewal thereof, issued by
`a franchising authority … which authorizes the construction or operation of a cable
`
`
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`6
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`Public Utilities.11
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`20.
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`Second, the CTA imposes an obligation to pay fees to municipalities
`
`based on a percentage of their subscription fees:
`
`
`
`a. … in consideration of a municipal consent … the CATV
`company to which the municipal consent is issued shall annually
`pay to each municipality served by the CATV company … a sum
`equal to two percent of the gross revenues from all recurring
`charges in the nature of subscription fees paid by subscribers to
`its cable television reception service in such municipality.
`
`d. In consideration of a system-wide franchise … such CATV
`company shall pay … (1) to such municipality served by the
`CATV company … a sum equal to three and one half percent of
`the gross revenues … that the company derives during the
`calendar year from cable television service charges or fees paid
`by subscribers in the municipality to the company12
`
`
`C. Defendants’ Video Streaming Services Fall within New Jersey’s
`Cable Television Act
`21. Defendants provide “video programming” and “cable television
`
`service” to their subscribers to view television shows, movies, and other
`programming.13 In doing so, Defendants compete with other providers offering
`
`video programming such as that provided by traditional cable companies and
`
`television-broadcast stations.
`
`
`television system.”).
`11 N.J. Stat. Ann. § 48:5A-16.
`12 N.J. Stat. Ann. § 48:5A-30.
`13 N.J. Stat. Ann. § 48:5A-3.
`
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`7
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`22. Customers view Defendants’ video programming—such as television
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`shows and movies—using an Internet-connected device. Internet-connected devices
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`are electronic devices that have software enabling them to stream Defendants’ video
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`programming, including smart televisions, streaming media players like Roku or
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`Apple TV, smartphones, tablets, video game consoles, set-top boxes from cable and
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`satellite providers, Blu-ray players, and personal computers.
`
`23. When a subscriber wants to watch Netflix or Hulu, that subscriber uses
`
`an Internet-connected device to send a request to the Internet-service provider. The
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`Internet-service provider then forwards that request to Defendants’ dedicated
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`Internet servers, which, in turn, provide a response. This response is then relayed
`
`back to the subscriber’s device, and Defendants’ deliver the video programming via
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`Internet protocol technology (i.e., broadband wireline facilities located at least in
`
`part in public rights-of-way).
`
`24. Netflix uses a content delivery network called Netflix Open Connect to
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`deliver its video programming to subscribers:
`
`The goal of the Netflix Open Connect program is to provide our
`millions of Netflix subscribers the highest-quality viewing
`experience possible. We achieve this goal by partnering with
`Internet Service Providers (ISPs) to deliver our content more
`efficiently. We partner with over a thousand ISPs to localize
`substantial amounts of traffic with Open Connect Appliance
`embedded deployments, and we have an open peering policy at
`our interconnection locations.14
`
`14 https://openconnect.netflix.com/en/#what-is-open-connect
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`
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`8
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`25.
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`Thus, when a subscriber wants to view Netflix’s video programming,
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`the subscriber’s Internet Service Provider will connect the subscriber to the closest
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`Netflix Open Connect server offering the fastest speeds and best video quality. That
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`means that most of its subscribers receive Netflix’s video programming from servers
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`either inside of, or directly connected to, the subscriber’s Internet Service Provider’s
`
`network within their local region.
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`26. Netflix also provides hardware in the form of Open Connect Appliances
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`(OCAs) to ISP partners “to help ISPs most efficiently deliver high-quality Netflix
`
`traffic with a focus on localization.”15
`
`27.
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`Similar to Netflix, when a subscriber of Hulu wants to view their video
`
`programming, the subscriber’s Internet Service Provider will connect the subscriber
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`to the Hulu server. Hulu receives the directive and checks the subscriber’s
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`entitlement, the location, and the content availability. It then delivers the program
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`through the Internet to the subscriber’s Internet-connected device.
`
`28. Defendants’ subscribers typically use a broadband Internet connection,
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`such as DSL or fiber optic cable to receive Defendants’ programming. In the Borough
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`of Longport and Township of Irvington, common providers include Comcast of South
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`Jersey, Comcast of New Jersey and Verizon of New Jersey. These broadband
`
`
`15 https://openconnect.netflix.com/en/appliances/#overview
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`
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`9
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`Internet connections rely upon wireline facilities located in whole or in part in the
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`public right(s)-of-way to deliver Internet service to subscribers. That means that
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`Defendants operate and provide their video programming to Defendants’ subscribers
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`through wireline facilities located at least in part in the public right-of-way.
`
`29. As providers of video programming and cable television service,
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`Defendants were required to file an application for “individual certificates of
`
`approval or a system-wide franchise[.]” See N.J. Stat. Ann. § 48:5A-16.
`
`30. Defendants failed to apply for and obtain certificates of approval and
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`municipal consents and/or a system-wide franchise. Defendants therefore are
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`providing cable television service throughout New Jersey without authorization, and
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`in contravention of the CTA.
`
`31.
`
`Such certificates of approval and/or franchise would have authorized
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`Defendants to use public rights-of-way to provide their cable television service and
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`video programming, provided that Defendants make payments to each municipality
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`in which it provides service. The required payment is equal to a percentage of the
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`gross revenues derived from subscription fees paid by subscribers in each
`
`municipality. See N.J. Stat. Ann. § 48:5A-30.
`
`32. Defendants were required to obtain certificates of approval and
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`municipal consents and/or a system-wide franchise before providing cable television
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`service and video programming in the Borough of Longport and Township of Irvington,
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`
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`10
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`and the other New Jersey municipalities.
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`33. Defendants’ failure to obtain such approval and/or franchise, however,
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`did not relieve Defendants of the obligation to pay fees based on a percentage of
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`their gross revenues,16 derived from subscription fees paid by subscribers in each
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`municipality. See N.J. Stat. Ann. § 48:5A-30.
`
`34. Defendants have failed to comply with N.J. Stat. Ann. § 48:5A-30
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`because they have failed to pay Plaintiffs and the other Class members the required
`
`fees.
`
`35.
`
`Plaintiffs Borough of Longport and Township of Irvington,
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`individually and on behalf of other New Jersey municipalities, seek to require
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`Defendants to abide by the CTA, and pay what they owe to these municipalities.
`
`V. CLASS ACTION ALLEGATIONS
`36.
`Plaintiffs bring this action as a class action pursuant to Rules 23(a) and
`
`23(b)(2) and (b)(3) of the Federal Rules of Civil Procedure, on behalf of a class
`
`defined as:
`
`
`16 N.J. Stat. Ann. § 48:5A-3 (“’Gross revenues’ means all revenues actually received
`by the holder of a system-wide franchise or certificate of approval derived during
`the calendar year from all the charges or fees paid by subscribers in the municipality
`to the CATV company for providing basic cable service, cable programming service,
`as that term is defined in 47 C.F.R. s.76.901, and premier tier programming service,
`for pay-per-view events, seasonal or sporting events of limited duration, and for all
`similar programming or channels …”).
`
`
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`11
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`All New Jersey municipalities in which one or more of the
`Defendants has provided video service (the “Class”).
`Excluded from the Class are Defendants, their officers and directors,
`
`37.
`
`management, employees, subsidiaries, or affiliates. The Class also excludes
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`governmental entities and judicial officers who have any role in adjudicating this
`
`matter.
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`38.
`
`The Class is so numerous that joinder of the individual members of the
`
`proposed Classes is impracticable. Plaintiffs believe that the Class includes hundreds
`
`of municipalities in New Jersey.
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`39.
`
`Plaintiffs’ claims are typical of the other Class members’ claims
`
`because Plaintiffs and each of the other Class members are entitled to franchise fee
`
`payments from Defendants pursuant to N.J. Stat. Ann. § 48:5A-30, and Defendants
`
`have failed to pay Plaintiffs and each of the other Class members those franchise
`
`fees. Plaintiffs are asserting the same claims and legal theories individually and on
`
`behalf of the other Class members.
`
`40.
`
`Plaintiffs will fairly and adequately protect the interests of the members
`
`of the Class. Plaintiffs are adequate representatives of the Class and have no interests
`
`that are adverse to the interests of absent members of the Class.
`
`41.
`
`Plaintiffs’ interests are co-extensive with and are not antagonistic to
`
`those of absent class member. Plaintiffs will undertake to represent and protect the
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`interests of absent members within the Class and will vigorously prosecute this
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`
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`12
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`action.
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`42.
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`Plaintiffs have engaged the services of the undersigned counsel.
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`Counsel is experienced in complex litigation, will adequately prosecute this action,
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`and will assert and protect the rights of, and otherwise represent, Plaintiffs and absent
`
`members of the Class.
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`43. Common questions of law or fact exist as to Plaintiffs and all members
`
`of the Class, and these common questions predominate over any questions affecting
`
`only individual members of the Class. These predominant questions of law and/or
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`fact common to the Class include, without limitation:
`
`a. Whether Defendants provide “cable television service” and “video
`programming,” as defined by N.J. Stat. Ann. § 48:5A-3, within
`Plaintiff’s and the other Class members’ geographic areas;
`b. Whether Defendants were required to apply for an “individual
`certificates of approval” or “system-wide franchise,” pursuant to
`N.J. Stat. Ann. § 48:5A-16;
`c. Whether Defendants were required to pay fees pursuant to N.J.
`Stat. Ann. § 48:5A-30;
`d. Whether Defendants have failed to pay the requisite fees
`pursuant to N.J. Stat. Ann. § 48:5A-30;
`The appropriate measure of damages to award Plaintiffs and the
`other Class members; and
`The appropriate declaratory relief to which Plaintiffs and the
`other Class members are entitled.
`44. A class action is superior to other methods for the fair and efficient
`
`e.
`
`f.
`
`adjudication of this controversy because joinder of all members of the Class is
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`
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`13
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`impracticable. Treatment as a class action will permit a “large number” of similarly
`
`situated municipalities to adjudicate their common claims in a single forum
`
`simultaneously, efficiently, and without the duplication of effort and expense that
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`numerous individual actions would engender. The prosecution of separate actions
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`by individual members of the Classes would create a risk of inconsistent or varying
`
`adjudications, establishing incompatible standards of conduct for the Defendants.
`
`The cost to the court system of adjudication of such individualized litigation would
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`be substantial.
`
`45. Class action status is warranted under Rule 23(b)(2) because
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`Defendants have acted on grounds generally applicable to the Class, thereby making
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`it appropriate to award final injunctive relief or corresponding declaratory relief with
`
`respect to the Class.
`
`46.
`
`The Class may also be certified under Rule 23(b)(3) because questions
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`of law or fact common to the members of the Class predominate over any questions
`
`affecting only individual members, and a class action is superior to other available
`
`methods for the fair and efficient adjudication of this controversy.
`
`47.
`
`The interest of members within the Class in individually controlling the
`
`prosecution of separate actions is theoretical and not practical. The Class have a high
`
`degree of similarity and are cohesive, and Plaintiffs anticipate no difficulty in the
`
`management of this matter as a class action.
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`14
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`48.
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`The nature of notice to the proposed Class is contemplated to be by
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`direct mail upon certification of the Class, or if such notice is not practicable, by the
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`best notice practicable under the circumstance including, inter alia, email,
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`publication in major newspapers and/or the internet.
`
`VI. LEGAL CLAIMS
`
`COUNT I
`VIOLATION OF THE NEW JERSEY
`CABLE TELEVISION ACT § 48.5A-1, et seq.
`Plaintiffs re-allege and incorporate by reference the preceding
`
`49.
`
`paragraphs, as if fully set forth herein.
`
`50. Defendants provide video programming, and are providers of cable
`
`television service, in Longport, New Jersey and Irvington, New Jersey and each
`
`municipality comprising the Class. Defendants derive gross revenues from
`
`providing these services. See N.J. Stat. Ann. § 48:5A-3.
`
`51. Defendants are thus required, by statute, to pay each municipality in
`
`which they provide video programming and cable television service, a franchise fee
`
`based on a percentage of their gross revenues derived from their operations in that
`
`municipality. See N.J. Stat. Ann. § 48:5A-30.
`
`52. Defendants’ failure to obtain the required approval and/or franchise
`
`authority does not excuse their obligation to make these payments.
`
`53. Defendants have failed to comply with N.J. Stat. Ann. § 48:5A-30
`
`
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`15
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`because they have failed to pay Plaintiffs and the other Class members the required
`
`percentage of gross revenues.
`
`54.
`
`Plaintiffs and the other Class members are, therefore, entitled to
`
`damages as a result of Defendants’ violations of N.J. Stat. Ann. § 48:5A-30, along
`
`with pre- and post-judgment interest, in an amount to be determined at trial.
`
`COUNT II
`DECLARATORY JUDGMENT ACT
`Plaintiffs re-allege and incorporate by reference the preceding
`
`55.
`
`paragraphs, as if fully set forth herein.
`
`56.
`
`This case involves an actual controversy of sufficient immediacy,
`
`which is substantial and concrete, touches upon the legal relations of parties with
`
`adverse interests, and is subject to specific relief through a decree of conclusive
`
`character.
`
`57.
`
`Pursuant to 28 U.S.C. §§ 2201-2202, Plaintiffs seek a declaration, and
`
`resulting order, from the Court that:
`
`a.
`
`b.
`
`c.
`
`Each Defendant provides “cable television service” and “video
`programming,” as defined by N.J. Stat. Ann. § 48:5A-3;
`Each Defendant provides “cable television service” and “video
`programming” in Longport, New Jersey and Irvington, New
`Jersey and each municipality in the Class. See N.J. Stat. Ann. §
`48:5A-3;
`Defendants were required to apply for “individual certificates of
`approval” or a “system-wide franchise,” pursuant to N.J. Stat.
`Ann. § 48:5A-16;
`
`
`
`16
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`d.
`
`Defendants are required to pay Plaintiffs and each of the other
`Class members a fee based on a percentage of their gross revenues
`derived from subscription fees received from subscribers in each
`municipality, pursuant to N.J. Stat. Ann. § 48:5A-30; and
`Defendants have failed to comply with N.J. Stat. Ann. § 48:5A-
`30, because they have each failed to pay to Plaintiffs and each of
`the other Class members the percentage of gross revenues.
`VII. REQUEST FOR RELIEF
`
`e.
`
`WHEREFORE, Plaintiffs, individually and on behalf of the other Class
`
`members, respectfully request that the Court enter judgment in their favor and
`
`against Defendant as follows:
`
`a.
`
`b.
`
`c.
`
`d.
`e.
`
`f.
`
`the above-defined Class and
`Enter an Order certifying
`designating Plaintiffs as Class Representatives, and Plaintiffs’
`counsel as Class Counsel;
`Award all monetary relief to which Plaintiffs and the other Class
`members are entitled, including as set forth in Count I above;
`Grant declaratory relief as set forth in Count II above, including
`ordering Defendants to cure their noncompliance with N.J. Stat.
`Ann. § 48:5A-16 and N.J. Stat. Ann. § 48:5A-30;
`Award pre- and post-judgment interest;
`Award reasonable attorneys’ fees and costs to Plaintiffs’ counsel;
`and
`Grant such further and other relief as this Court deems
`appropriate.
`Dated: August 13, 2021
`
`_/s/James E. Cecchi____
`James E. Cecchi
`Kevin G. Cooper
`CARELLA, BYRNE, CECCHI,
`OLSTEIN, BRODY & AGNELLO,
`
`
`
`17
`
`
`
`
`Case 2:21-cv-15303-SRC-MAH Document 1 Filed 08/13/21 Page 18 of 18 PageID: 18
`
`P.C.
`5 Becker Farm Road
`Roseland, NJ 07068
`Telephone: (973) 994-1700
`Fax: (973) 994-1744
`jcecchi@carellabyrne.com
`kcooper@carellabyrne.com
`
`Joseph H. Meltzer
`Darren Check
`Melissa Troutner
`Ethan J. Barlieb
`Lauren M. McGinley
`KESSLER TOPAZ
`MELTZER & CHECK, LLP
`280 King of Prussia Road
` Radnor, PA 19087
`Telephone: (610) 667-7706
`jmeltzer@ktmc.com
`dcheck@ktmc.com
`mtroutner@ktmc.com
`ebarlieb@ktmc.com
`lmcginley@ktmc.com
`
`18
`
`
`
`
`
`
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