EXHIBIT D

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UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

IN RE: CENTURYLINK SALES MDL No. 17-2795 (MJD/KMM)

PRACTICES AND SECURITIES

LITIGATION

This Document Relates to MEMORANDUM OF LAW & ORDER

Civil File Nos. 17-2832, 17-4613, 

17-4614, 17-4615, 17-4616, 17-4617, 

17-4618, 17-4619, 17-4622, 17-4943, 

17-4944, 17-4945, 17-4947, 17-5046, 

18-1562, 18-1565, 18-1572, 18-1573, 

Carolyn G. Anderson, Brian C. Gudmundson, Hart L. Robinovitch, and Michael 

J. Laird, Zimmerman Reed LLP, Plaintiffs’ Interim Co- Lead and Liaison 

Counsel; Mark M. O’Mara, Alyssa J. Flood, and Caitlin Reese, O’Mara Law 

Group, and Mark J. Geragos and Benjamin J. Meiselas, Geragos & Geragos, APC, 

Plaintiffs’ Interim Co-Lead Counsel; Daniel C. Hedlund and Michelle J. Looby, 

Gustafson Gluek PLLC, Plaintiffs’ Executive Committee Chair; Richard M. 

Hagstrom and Anne T. Regan, Hellmuth & Johnson, PLLC, Roxanne Barton 

Conlin, Roxanne Conlin & Associates, PC, and Francois M. Blaudeau, W. Lewis 

Garrison, Jr., Christopher B. Hood, and James F. McDonough, III, Heninger 

Garrison Davis, LLC, Plaintiffs’ Executive Committee; and T. Ryan Langley, 

Hodge & Langley Law Firm, P.C., Michael Fuller, Olsen Daines PC, Brandon C. 

Fernald, Fernald Law Group LLP, Bonner C. Walsh, Walsh PLLC, Alfred M. 

Sanchez, and Orin Kurtz, Gardy & Notis, LLP, Counsel for Plaintiffs and the 

Proposed Class. 

Douglas P. Lobel, David A. Vogel, and Jeffrey M. Gutkin, Cooley LLP; Carolyn J. 

Fairless, Michael T. Williams, Andrew Unthank, and Theresa Wardon Benz, 

Wheeler Trigg O’Donnell LLP; and William A. McNab and David M. Aafedt, 

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Winthrop & Weinstine, P.A., and Jerry W. Blackwell, Blackwell Burke P.A., 

Counsel for Defendant CenturyLink, Inc. and the Proposed Intervenors. 

Warren D. Postman and Ashley C. Keller, Keller Lenkner LLC; and Robert J. 

Gilbertson, Samuel J. Clark, Faris Rashid, and Virginia R. McCalmont, Greene 

Espel PLLP; Counsel for Proposed Intervenors Keisha Covington, Daniel Sokey, 

Tiffany Van Riper, James Watkins, Jaclyn Finafrock, and Kelly Johnson. 

I. INTRODUCTION

This matter is before the Court on the Proposed Intervenors and Movants’

Motion to Intervene, Compel Arbitration, and Stay Proceedings. [Docket No. 

596] The Court heard oral argument on June 23, 2020, and the parties provided

further information on the status of the parties during the November 19, 2020 

final approval hearing. 

II. BACKGROUND

A. Movants

Movants Keisha Covington, Daniel Sokey, Tiffany Van Riper, James 

Watkins, Jaclyn Finafrock, and Kelly Johnson (“Movants”) are current or former

CenturyLink, Inc. (“CenturyLink”) customers who wish to resolve their 

consumer contract disputes with CenturyLink through individual arbitration. 

(Covington Decl. ¶¶ 3-5; Sokey Decl. ¶¶ 3-5; Van Riper Decl. ¶¶ 3-5; Watkins 

Decl. ¶¶ 3-5; Finafrock Decl. ¶¶ 3-5; Johnson ¶¶ 3-5.) Movants aver that they 

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have a right to individually arbitrate their claims against CenturyLink under 

their contract with CenturyLink. (Covington Decl. ¶ 4; Sokey Decl. ¶ 4; Van 

Riper Decl. ¶ 4; Watkins Decl. ¶ 4; Finafrock Decl. ¶ 4; Johnson ¶ 4.) All Movants 

are represented by the law firm of Keller Lenkner LLC (“Keller”). 

B. Keller’s Interactions with CenturyLink and Settlement of the 

Consumer MDL

The relevant background regarding Keller’s interactions with CenturyLink 

and the settlement of this consumer portion of the MDL is set forth in detail in 

the Court’s Order denying CenturyLink’s motion to disqualify Keller. See In re 

CenturyLink Sales Practices & Sec. Litig., No. CV 17-2832, 2020 WL 3513547, at 

*1-5 (D. Minn. June 29, 2020). 

In December 2019, Keller submitted 1,000 simultaneous arbitration 

demands against CenturyLink to the AAA on behalf of a subset of its 

CenturyLink claimant clients. (Postman Decl. ¶¶ 26, 59; Unthank Decl., Ex. R.) 

Movants Covington, Sokey, Van Riper, and Watkins were among those 

claimants. (Belka Decl. ¶ 24; Keller Decl., Ex. 3.) Movants Jaclyn Finafrock and 

Kelly Johnson were not listed. 

On January 9, CenturyLink informed Keller that it was exercising its 

contractual right to terminate and revoke the arbitration contracts. (Unthank 

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Decl. ¶ 72; Unthank Decl., Ex. Y.) CenturyLink stated that Movants had 

“breach[ed]” the arbitration clause in their contracts with CenturyLink and that 

CenturyLink “is revoking and terminating your Arbitration Agreement effective 

immediately.” (Unthank Decl., Ex. Y.) The letter further stated that the 

remainder of the contracts between CenturyLink and the consumers, apart from 

the arbitration clause in Paragraph 17, remained in place. (Id. (“If you are a 

current CenturyLink customer, your services and subscriber agreements (apart 

from your Arbitration Agreement) will remain in effect. CenturyLink reserves 

all rights and remedies under your applicable contracts.”).) 

C. Arbitration Contract

Movants seek to compel arbitration under the arbitration provision in 

Section 17 of the CenturyLink® High-Speed Internet Subscriber Agreement, 

V52.091819 (“Internet Agreement”), entitled the “Dispute Resolution and 

Arbitration” provision (the “Arbitration Contract”). (Keller Decl., Ex. 1 § 17.) 

According to Keller, each Movant accepted a CenturyLink service 

agreement containing the following arbitration clause: 

(a) Arbitration Terms. You agree that any dispute or claim arising 

out of or relating in any way to the Services, Equipment, Software or 

this Agreement (whether based in contract, tort, statute, fraud, 

misrepresentation or any other legal theory), will be resolved by 

binding arbitration. This means that the arbitrator, and not any 

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court, shall have exclusive authority to resolve any dispute or claim 

arising under or relating to (among other subjects) the 

interpretation, applicability, enforceability or formation of this 

Agreement, including but not limited to any dispute or claim that all 

of this Agreement, or any part of this Agreement other than this 

arbitration provision, is void, voidable, lacking in consideration, 

illusory, invalid, unconscionable, or for any reason unenforceable. 

The sole exceptions to arbitration are that either party may pursue 

claims: (1) in small claims court that are within the scope of its 

jurisdiction, provided the matter remains in such court and 

advances only individual (non-class, non-representative, nonconsolidated) claims; and (2) in court if they relate solely to the 

collection of any debts you owe to CenturyLink. This section shall 

survive the termination of this Agreement to the greatest extent 

allowed by law. . . .

(i) Arbitration Procedures. Before commencing arbitration you 

must first present any claim or dispute to CenturyLink in 

writing to allow CenturyLink the opportunity to resolve the 

dispute. If the claim or dispute is not resolved within 60 days, 

you may request arbitration. The arbitration shall be 

conducted by the American Arbitration Association (“AAA”). 

. . . .

(ii) Costs of Arbitration. The party requesting arbitration must 

pay the applicable AAA filing fee, except that if you are an 

individual using the Services for household or personal use 

and you initiate arbitration against CenturyLink: (1) you must 

pay one-half the arbitrator’s fees up to a maximum of $125 if 

your claim does not exceed $10,000 . . . . . . . . If any party files 

a judicial or administrative action asserting a claim that is 

subject to arbitration and another party successfully stays 

such action or compels arbitration, the party filing that action 

must pay the other party’s costs and expenses incurred in 

seeking such stay or compelling arbitration, including 

reasonable attorneys’ fees.

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. . .

(b) Waiver of Jury and Class Action. By this Agreement, both you 

and CenturyLink are waiving rights to litigate claims or disputes in 

court (except small claims court as set forth in paragraph (a) above). 

Both you and CenturyLink also waive the right to a jury trial on 

your respective claims, and waive any right to pursue any claims on 

a class or consolidated basis or in a representative capacity.

(Keller Decl. ¶ 4; Arbitration Contract ¶ 17.) 

The contract between Movants and CenturyLink also provides that it will 

be governed by Colorado law. (Arbitration Contract ¶ 17(a)(i).) 

CenturyLink considers the pre-filing presentation of claim requirement an 

important provision of the Arbitration Contract because it provides CenturyLink 

the opportunity to evaluate and resolve claims before incurring the costs of legal 

proceedings. (Belka Decl. ¶ 6.) CenturyLink avers that the pre-filing dispute 

resolution procedures resolve most customers’ issues. (Belka Decl. ¶¶ 10-12.) 

D. Movants’ Current Status 

During the November 19, 2020 final approval hearing, Keller informed the 

Court that Movants Covington, Sokey, Watkins, Finafrock, and Johnson had 

opted out of the Settlement Class to continue to pursue their arbitration claims. 

Movant Van Riper stopped responding to Keller and did not submit a valid optout request. As Keller previously admitted, many clients who initially wanted 

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Keller to arbitrate their claims against CenturyLink later changed their mind and 

decided to join in the class settlement. ([Docket No. 715] Postman Decl. ¶ 42.)

III. MOTION TO INTERVENE

The Court grants Movants’ motion to intervene to allow limited 

intervention solely for the purpose of litigating their motion to compel 

arbitration. CenturyLink agrees to this limited intervention.

A. Consideration of Movants’ Motion

The Court concludes that it may properly consider Movants’ motion to 

intervene. First, the Court concludes that Movants’ motion to intervene is timely. 

Movants filed their motion less than two months after the Court entered the 

Preliminary Approval Order enjoining Movants from arbitrating their claims 

against CenturyLink.

Second, the Court rejects Plaintiffs’ argument that the temporary 

injunction in the Court’s Preliminary Approval Order prohibits Movants from 

intervening. The Preliminary Approval Order issued by the Court in this action 

temporarily enjoined putative Settlement Class Members from “filing, 

commencing, prosecuting, maintain, intervening in, participating in (as class 

members or otherwise), or receiving any benefits from any class action or other 

lawsuit, arbitration, or administrative, regulatory, or other proceeding in any 

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jurisdiction based on or relating to the Released Claims.” (Preliminary Approval 

Order ¶ 10.) Logic dictates that the phrase “any class action” does not include 

this federal class action. Otherwise, every absent class member violated the 

Court’s Order by “participating in” this case “as class members,” because the 

Order grants “provisional” certification of the proposed class, making the 

relevant customers “class members.” 

B. Full Intervention

The Court denies Movants’ request for a full intervention as of right or 

permissive intervention, because Movants cannot show that they are not already 

adequately represented in this case by Class Counsel. Both intervention as of 

right and permissive intervention require that the proposed intervenor is not 

adequately represented by the existing parties. Swinton v. SquareTrade, Inc., 960 

F.3d 1001, 1004–05 (8th Cir. 2020); S. Dakota ex rel. Barnett v. U.S. Dept. of 

Interior, 317 F.3d 783, 787 (8th Cir. 2003). “There is a presumption of adequate 

representation when the persons attempting to intervene are members of a class 

already involved in the litigation or are intervening only to protect the interests 

of class members.” Swinton, at 1005 (citation omitted). In this case, Plaintiffs 

have protected Movants’ right to arbitrate. Plaintiffs specifically protected the 

rights of persons like Movants who have decided that they do not want to accept 

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the Settlement and want to pursue their claims individually. The Preliminary 

Approval Order allows Movants to opt out of the Settlement and temporary 

injunction. (Preliminary Approval Order ¶ 6.) Moreover, the preliminary 

injunction only applies against “Releasing Parties.” (Id. ¶ 10.) Individuals who 

opt out of the Settlement Class are not Releasing Parties. ([Docket No. 469-1] 

Settlement Agreement ¶¶ 1.35, 1.39, 1.41.) At this time, the preliminary 

injunction issue is moot. And five of the six Movants have taken advantage of 

the option to opt out. Any alleged prejudice to Movant Van Riper inflicted by 

the Settlement is a result of her own inaction and refusal to opt out, as the other 

five Movants did, not any failure by Plaintiffs and Class Counsel to protect her 

rights.

The fact that Movants wish that Class Counsel had pursued a different 

legal strategy regarding arbitration for the Class does not demonstrate 

inadequate representation: “[a] difference of opinion concerning litigation 

strategy or individual aspects of a remedy does not overcome the presumption of 

adequate representation.” Swinton, at 1005 (citation omitted).

C. Limited Intervention

Although the Court concludes that full intervention is inappropriate, 

Movants have demonstrated an interest in the transaction that is the subject of 

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this action and have demonstrated that they may have that interest impaired by a 

class action settlement to which they object, despite their option to opt out. See

Swinton, at 1004. Thus, the Court concludes, as CenturyLink concedes, that 

permitting limited intervention to allow Movants to argue their motion to 

compel arbitration is appropriate in this case. See, e.g., Flynt v. Lombardi, 782 

F.3d 963, 966-67 (8th Cir. 2015) (holding limited intervention under Rule 24(b) 

was appropriate); In re Baycol Prods. Litig., 214 F.R.D. 542, 544 (D. Minn. 2003) 

(granting motion to intervene for limited purpose).

The Court now turns to Movants’ arguments regarding their motion to 

compel arbitration. 

IV. MOTION TO COMPEL ARBITRATION

A. Federal Arbitration Act

The Federal Arbitration Act (“FAA”) provides: “A party aggrieved by the 

alleged failure, neglect, or refusal of another to arbitrate under a written 

agreement for arbitration may petition any United States district court . . . for an 

order directing that such arbitration proceed in the manner provided for in such 

agreement.” 9 U.S.C. § 4. Arbitration provisions in written contracts “shall be 

valid, irrevocable, and enforceable, save upon such grounds as exist at law or in 

equity for the revocation of any contract.” 9 U.S.C. § 2.

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“[A]ny doubts concerning the scope of arbitrable issues should be resolved 

in favor of arbitration, whether the problem at hand is the construction of the 

contract language itself or an allegation of waiver, delay, or a like defense to 

arbitrability.” Moses H. Cone Mem’l Hosp. v. Mercury Const. Corp., 460 U.S. 1, 

24-25 (1983) (footnote omitted). “[A]n order to arbitrate the particular grievance 

should not be denied unless it may be said with positive assurance that the 

arbitration clause is not susceptible of an interpretation that covers the asserted 

dispute.” AT & T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 650 

(1986) (citations omitted). “[A] district court [must] send a claim to arbitration 

when presented with a broad arbitration clause . . . as long as the underlying 

factual allegations simply touch matters covered by the arbitration provision.” 

3M Co. v. Amtex Sec., Inc., 542 F.3d 1193, 1199 (8th Cir. 2008) (citations omitted). 

In order to determine if a claim is arbitrable, the Court must first 

determine whether a valid agreement to arbitrate exists between the parties. 

Gannon v. Circuit City Stores, Inc., 262 F.3d 677, 680 (8th Cir. 2001). Next, the 

Court must decide whether the existing dispute falls under the coverage of the 

agreement. Id. 

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When the parties submit evidence outside the pleadings, the Court 

considers a motion to compel arbitration under the summary judgment standard. 

City of Benkelman, Neb. v. Baseline Eng’g Corp., 867 F.3d 875, 881–82 (8th Cir. 

2017). 

B. Whether Movants’ Factual Allegations Touch on Matters Covered 

by the Arbitration Contract 

Movants assert that each of them is party to a valid agreement with 

CenturyLink that requires the parties to arbitrate “any dispute or claim arising 

out of or relating in any way to the Services, Equipment, Software or this 

Agreement (whether based in contract, tort, statute, fraud, misrepresentation or 

any other legal theory).” (Arbitration Contract § 17(a).) Each has been a 

CenturyLink customer at a time when, according to CenturyLink, becoming a 

customer required acceptance of a service agreement containing the 

aforementioned arbitration clause. (Keller Decl. ¶ 4; [Docket No. 125] Beard 

Decl. ¶¶ 6, 18-25; Movants’ Decl. ¶ 3.) 

The Arbitration Contract cited by Movants is not the specific Arbitration 

Contract that applies to Movants Sokey, Van Riper, Watkins, Finafrock, and 

Johnson. Although they represent that they have an agreement to arbitrate with 

CenturyLink as set forth in the September 18, 2019 CenturyLink Internet 

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Agreement, filed as Exhibit 1 to the Keller Declaration, these five Movants 

terminated service with CenturyLink before the date that this Internet 

Agreement came into existence. However, CenturyLink has represented that all 

internet customers at the time Movants were CenturyLink internet customers 

were parties to a substantially similar Arbitration Contract, and it does not allege 

that the arbitration clauses in its other consumer contracts are materially 

different. The Court concludes that Movants have sufficiently shown that their 

factual allegations touch on matters covered by the Arbitration Contract. 

C. Whether the Court or Arbitrator Decides Whether Movants Can 

Enforce the Arbitration Contracts

CenturyLink argues that Movants have no right to arbitrate because they 

materially breached their Arbitration Contracts and, in response, CenturyLink 

exercised its contractual right to terminate the Arbitration Contracts. 

[C]ourts presume that the parties intend courts, not arbitrators, to 

decide what we have called disputes about ‘arbitrability.’ These 

include questions such as ‘whether the parties are bound by a given 

arbitration clause,’ or ‘whether an arbitration clause in a concededly 

binding contract applies to a particular type of controversy.’ 

BG Grp., PLC v. Republic of Argentina, 572 U.S. 25, 34 (2014) (citations omitted).

This presumption can be overcome only by “‘clear and unmistakable’ evidence” 

that the parties agreed to arbitrate the threshold question of enforceability of the 

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arbitration contract. Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 

524, 530 (2019) (citation omitted).

CenturyLink argues that the Arbitration Contract expressly reserves 

interpretation of the enforceability of the arbitration provision to the Court: 

[T]he arbitrator, and not any court, shall have exclusive authority to 

resolve any dispute or claim arising under or relating to (among 

other subjects) the interpretation, applicability, enforceability or 

formation of this [Internet] Agreement, including but not limited to 

any dispute or claim that all of this [Internet] Agreement, or any part 

of this [Internet] Agreement other than this arbitration[] provision, 

is void, voidable, lacking in consideration, illusory, invalid, 

unconscionable, or for any reason unenforceable.

(Arbitration Contract ¶ 17(a) (emphasis added).) CenturyLink asserts that the 

emphasized language, which it dubs the “Delegation Carve Out,” demonstrates 

that the parties specifically agreed not to arbitrate the threshold question of the 

enforceability of the Arbitration Contract. On the other hand, Movants interpret 

the Delegation Carve Out to provide that questions regarding the 

“enforceability” of the contract are for the arbitrator to resolve, including 

questions regarding the enforceability of the arbitration clause. They further 

assert that the Arbitration Contract incorporates the AAA rules, which grant the 

arbitrator the power to determine threshold questions of arbitrability. 

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Although the Eighth Circuit has held that incorporation of the AAA rules 

is sufficient to delegate arbitrability to the arbitrator, see, e.g., Green v. 

SuperShuttle Int’l, Inc., 653 F.3d 766, 769 (8th Cir. 2011), those cases did not 

involve express language regarding the delegation of arbitrability. The AAA 

expressly allows parties to change any AAA rule in writing, which is what the 

Delegation Carve Out language purportedly does. (See AAA Consumer Rule R1(c), available at https://adr.org/sites/default/files/Consumer_Rules_Web_1.pdf

(last visited Dec. 1, 2020).) See also Enderlin v. XM Satellite Radio Holdings, 

Inc., 483 F.3d 559, 560–61 (8th Cir. 2007) (finding “meritless” an argument that, 

because contract incorporated AAA rules and the AAA rules required arbitration 

of enforceability question, only the arbitrator could decide claim that arbitration 

clause is unenforceable where the agreement excepted from arbitration any 

challenges to the enforceability of the arbitration clause); NASDAQ OMX Grp., 

Inc. v. UBS Secs., LLC, 770 F.3d 1010, 1032 (2d Cir. 2014) (holding that provision 

that “carves out certain issues from arbitration . . . delays application of AAA 

rules until a decision is made as to whether a question does or does not fall 

within the intended scope of arbitration, in short, until arbitrability is decided”).

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The Delegation Carve Out language in the Arbitration Agreement is not a 

model of clarity. It states that the arbitrator has “exclusive authority to resolve

any dispute or claim arising under or relating to . . . the interpretation, 

applicability, enforceability . . . of this [Internet] Agreement.” It then states that 

this power is “including but not limited to any dispute or claim that all of this 

[Internet] Agreement, or any part of this [Internet] Agreement other than this 

arbitration[] provision, is void, voidable, lacking in consideration, illusory, 

invalid, unconscionable, or for any reason unenforceable.” (emphasis added). 

Movants note that, generally, the phrase “including but not limited to” enlarges a 

previous clause; it does not restrict it. Thus, there is no clear language stating 

that the arbitrator shall not determine arbitrability. However, the most 

reasonable plain reading of the Delegation Carve Out language is that the “other 

than this arbitration[] provision” clause excepts allegations that “this 

arbitration[] provision” is “for any reason unenforceable” from the arbitrator’s 

power. Otherwise, the inclusion of the phrase “other than this arbitration[] 

provision” has no meaning and is superfluous. A court should not interpret a 

contract so as to render contract language meaningless. Copper Mountain, Inc. 

v. Indus. Sys., Inc., 208 P.3d 692, 699 (Colo. 2009). 

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This interpretation is further bolstered by the Supreme Court’s holding 

that “courts presume that the parties intend courts, not arbitrators, to decide 

what we have called disputes about ‘arbitrability.’” BG Grp., PLC, 572 U.S. at 34. 

At best, the language in the Delegation Carve Out provision is ambiguous 

regarding whether the arbitrator decides arbitrability. It is certainly not “‘clear 

and unmistakable’ evidence” that the parties agreed to arbitrate the threshold 

question of enforceability of the arbitration contract. Henry Schein, Inc., 139 S. 

Ct. at 530 (citation omitted). See also NASDAQ OMX Grp., Inc., 770 F.3d at 1031 

(“[W]here a broad arbitration clause is subject to a qualifying provision that at 

least arguably covers the present dispute” there is “ambiguity as to the parties’ 

intent to have questions of arbitrability—which would include whether a dispute 

falls within or outside the scope of the qualifier—decided by an arbitrator.”). 

Thus, the Court will address the question of whether the Arbitration Contract is 

unenforceable due to material breach leading to revocation. 

D. Whether Movants Can Enforce the Arbitration Agreements

1. Whether a Material Breach Renders an Arbitration 

Agreement Unenforceable

CenturyLink argues that Movants have materially breached the 

Arbitration Contract, which permitted CenturyLink to revoke and terminate the 

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Arbitration Contract. Under the FAA, arbitration agreements are unenforceable 

“upon such grounds as exist at law or in equity for the revocation of any 

contract.” 9 U.S.C. § 2. “[C]ourts must place arbitration agreements on an equal 

footing with other contracts.” AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 

339 (2011). Arbitration agreements can “be invalidated by generally applicable 

contract defenses.” Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 68 (2010)

(citation omitted). A contract defense is “generally applicable” if it does not 

“apply only to arbitration or [] derive [its] meaning from the fact that an 

agreement to arbitrate is at issue.” Concepcion, 563 U.S. at 339. Applicable 

defenses include those relating to “performance of the agreement to arbitrate.” 

Prima Paint, 388 U.S. at 404. Because the contracts invoked by Movants are 

governed by Colorado state law, the Arbitration Contract is susceptible to any 

“generally applicable” contract defense that exists under Colorado law. See First 

Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995). 

If Movants have materially breached the Arbitration Contract, they cannot 

force CenturyLink to arbitrate under the Arbitration Contract. Under Colorado 

law, a material breach renders a contract unenforceable by the breaching party. 

See, e.g., Coors v. Sec. Life of Denver Ins. Co., 112 P.3d 59, 64 (Colo. 2005). This 

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principle applies to the material breach of arbitration agreements. See Rodriguez 

v. Wet Ink, LLC, No. 08-CV-00857-MSKCBS, 2011 WL 1059541, at *4 (D. Colo. 

Mar. 22, 2011) (holding that, under Colorado law, material breach of arbitration 

agreement prevents breaching party from compelling arbitration). See also

Brown v. Dillard’s, Inc., 430 F.3d 1004, 1009-10 (9th Cir. 2005). Contrary to 

Movants’ argument, these cases do not look to whether the party seeking to 

compel has materially breached the entire contract, but rather, look to whether 

they have specifically breached the agreement to arbitrate. If a material breach 

occurred, the entire contract is not rescinded. Rather, the breaching party is 

simply unable to compel arbitration. See, e.g., Coors, 112 P.3d at 64 (noting that 

“material breach deprives party of right to demand performance by other”). 

2. Whether Movants Materially Breached the Arbitration 

Contract

A breach is material when the breach goes to the “root of the matter or 

essence of the contract.” Coors, 112 P.3d at 64. Arbitration agreements are 

materially breached when their fundamental purpose is thwarted, such as by 

conduct that defeats the efficiency and fairness of arbitration or appears designed 

to prevent fair resolution of disputes on the merits. See, e.g., Hooters of Am., Inc. 

v. Phillips, 173 F.3d 933, 939-40 (4th Cir. 1999) (holding arbitration agreement 

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unenforceable because one party to agreement employed unfair rules that 

“creat[ed] a sham,” depriving the other party of “a system whereby disputes are 

fairly resolved by an impartial third party”); Roach v. BM Motoring, LLC, 155 

A.3d 985, 995 (N.J. 2017) (“[W]e hold that defendants’ knowing refusal to 

cooperate with plaintiffs’ arbitration demands [by failing to pay the AAA fees or 

respond to the plaintiffs’ arbitration demands], filed in reasonable compliance 

with the parties’ agreement, amounts to a material breach of the [arbitration 

agreement] and, as such, bars the breaching party from later compelling 

arbitration.”).

CenturyLink argues that Movants’ and Keller’s conduct constitutes a 

material breach because it destroyed the fundamental purpose and value of the 

Arbitration Contract. 

a) Simultaneous Filing of Numerous Claims 

The Court holds that Movants did not materially breach the Arbitration 

Contract by breaching the class action waiver (Arbitration Contract at ¶ 17(b))

and simultaneously filing a large number of individual demands for arbitration. 

Keller attempted to leverage a mass settlement on behalf of all of its clients and 

refused to individually negotiate each claimant’s claim. However, Keller filed 

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individual arbitration claims for each claimant. None of its claimants assert that 

they represent anyone else or seek recovery beyond the damages which they 

claim that they are individually owed. Moreover, there is no allegation that any 

claimant who has filed an arbitration claim waited too long to do so, so the fact 

that Keller “stockpiled” claims and then filed 1,000 timely claims at one time 

does not to violate any provision of the Arbitration Contract. CenturyLink wrote 

the Arbitration Contract; if its system is overwhelmed by 1,000 individual claims 

being filed simultaneously, it can alter its system or the filing requirements in the 

Arbitration Contract. 

b) Engagement in Pre-Arbitration Dispute Resolution 

The Arbitration Contract provides: 

Before commencing arbitration you must first present any claim or 

dispute to CenturyLink in writing to allow CenturyLink the 

opportunity to resolve the dispute. If the claim or dispute is not 

resolved within 60 days, you may request arbitration. 

(Arbitration Contract ¶ 17(a)(i).) CenturyLink asserts that Movants gave it no 

opportunity to understand, evaluate, or resolve their claims on the facts and 

merits, because they refused to provide basic information about their claims

before filing their arbitration demands. Thus, they defeated the purpose of the 

Arbitration Contract by undermining the opportunity for pre-arbitration 

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individualized resolution and by seeking to impose arbitration fees and costs on 

CenturyLink that the Arbitration Contract is intended to avoid. 

Keller’s pre-arbitration demand consisted of a generic complaint alleging 

overcharging and fraud and a list of 9,000 clients with their names, phone 

numbers, emails, and addresses. (Unthank Decl., Ex. H.) There was no 

statement of each claimant’s individual damages, what they claim they were 

quoted, what they claimed they were charged, when this overcharging occurred, 

or any other specific information that CenturyLink desired in order to attempt to 

address their claims. In order for CenturyLink to have “the opportunity to 

resolve the dispute,” it appears logical that the claimant must inform 

CenturyLink what the dispute is. Keller’s refusal to provide any information 

other than the Movants’ contact information was compounded by Keller’s refusal 

to discuss any individual client’s claims with CenturyLink pre-arbitration. Thus, 

CenturyLink has a colorable argument that Movants breached the Arbitration 

Contract by failing to “present any claim or dispute to CenturyLink in writing to 

allow CenturyLink the opportunity to resolve the dispute.” However, the Court 

will not decide whether such a breach occurred because, assuming it did, the 

Court holds that this was not the type of material breach that goes to the “root of 

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the matter or essence of the contract” and, thus, “deprives [Movants] of [the] 

right to demand performance by [CenturyLink].” Coors, 112 P.3d at 64. Unlike 

in cases cited by CenturyLink in which courts held arbitration agreements 

unenforceable for material breach, Movants have not refused to pay a filing fee,

refused to participate in an arbitration, or designed an arbitration process that 

was so biased and one-sided as to be a sham. Cf., e.g., Hooters of Am., Inc., 173 

F.3d at 939-40; Roach, 155 A.3d at 995. At most, Movants’ breach deprived 

CenturyLink of the benefit of its pre-arbitration resolution requirement, but not 

of the Arbitration Contract in general. CenturyLink still had the ability to and 

economic means to engage in timely arbitration with each of the claimants who 

filed a claim through a process following standard AAA rules before AAA 

arbitrators. Thus, Movants’ actions did not constitute a material breach. And 

because Movants did not materially breach the Arbitration Contract, 

CenturyLink’s purported revocation and termination of Movants’ arbitration 

contracts was ineffective. 

Although the Court concludes that the breach is not material, CenturyLink 

may still raise the issue of Movants’ inadequate pre-filing claim presentation

before the arbitrator because the arbitrator decides questions of procedural 

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arbitrability. The question of whether Movants properly fulfilled the procedural 

prerequisites for filing an arbitration claim, rather than the question of whether 

they committed material breach, is one for the arbitrator. See, e.g., Int’l. Ass’n of 

Bridge, Structural, Ornamental, & Reinforcing Ironworkers, Local 493 v. EFCO 

Corp. & Constr. Prods., Inc., 359 F.3d 954, 957 (8th Cir. 2004) (“[T]he question of 

whether the procedural prerequisites have been complied with or . . . waived . . . 

is a matter for the arbitrator and not for the court.”). “[Q]uestions of whether 

waiver occurred and whether demand was sufficient and timely under the 

agreement, involve issues of procedural arbitrability, matters presumptively for 

the arbitrator, not for the judge.” Pro Tech Indus., Inc. v. URS Corp., 377 F.3d 

868, 872 (8th Cir. 2004) (citations omitted).

V. MOTION TO STAY

The Court denies Movants’ motion to stay the entire consumer MDL 

proceeding until Movants have completed their arbitrations against 

CenturyLink. Five of the Movants have opted out of and been excluded from the 

Class, while, as represented by Keller, Movant Van Riper has abandoned her 

pursuit of arbitration and apparently made the decision to not opt out and, thus,

remains in the Class and is voluntarily bound by the Settlement Agreement. As 

to all six Movants, their motion is now moot. Once Movants’ request to opt out 

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of this lawsuit was granted, then they are no longer part of the lawsuit and there 

is no basis to stay the MDL while they are arbitrating their claims against 

CenturyLink. See In re Piper Funds, Inc., Institutional Gov’t Income Portfolio 

Litig., 71 F.3d 298, 304 (8th Cir. 1995)

Moreover, once the five Movants who sought to opt out are removed from 

the class, between CenturyLink and the remaining 17.2 million class members, 

no party any longer seeks arbitration. “[A]rbitration under the [Federal 

Arbitration] Act is a matter of consent, not coercion.” AgGrow Oils, L.L.C. v. 

Nat’l Union Fire Ins. Co. of Pittsburgh, 242 F.3d 777, 782 (8th Cir. 2001) (citation 

omitted). If all parties seek to resolve their claims in this Court and not through 

arbitration, there is no basis to require their claims be arbitrated. And the 

decision to stay litigation among the non-arbitrating parties “is one left to the 

district court . . . as a matter of its discretion to control its docket.” Moses H. 

Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 21 n.23 (1983). In this 

case, staying litigation among the 17.2 million non-arbitrating class members and 

CenturyLink when the Settlement has been approved and the claims have 

already been submitted is nonsensical and will prejudice class members by 

delaying their recovery from a defendant that seeks to pay them. There is no risk 

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of inconsistent rulings because the arbitrations are individual arbitrations, with 

no class claims, and the class claims are being resolved through a settlement 

agreement with no Court ruling on liability and that excludes any class member 

who opts out. 

Accordingly, based upon the files, records, and proceedings herein, IT IS 

HEREBY ORDERED:

Proposed Intervenors and Movants’ Motion to Intervene, Compel 

Arbitration, and Stay Proceedings [Docket No. 596] is GRANTED 

IN PART and DENIED IN PART as follows: 

1. Movant’s motion to intervene is granted insofar as they 

are permitted limited intervention for the purpose of 

litigating their motion to compel arbitration only.

2. Movants Keisha Covington, Daniel Sokey, James 

Watkins, Jaclyn Finafrock, and Kelly Johnson’s motion 

to compel arbitration against CenturyLink, Inc. is 

GRANTED; and Movant Tiffany Van Riper’s motion to 

compel arbitration is DENIED AS MOOT. 

3. Movants’ motion to stay is DENIED. 

LET JUDGMENT BE ENTERED ACCORDINGLY. 

Dated: December 4, 2020 s/ Michael J. Davis

Michael J. Davis 

United States District Court 

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