F ile Nam e: 11a0281n.06 NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION

Nos. 09-1668, 09-1669, 09- 1745 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT In re: A.P . LIQUIDATING CO., f/k/ a AP EX GLOBAL INF ORMATION SERVICES , INC., Debtor . THE O F F ICIAL COMMITTEE OF UNSECURED CREDITORS and THE LIQUIDATING AG ENT of A.P . LIQUIDATING CO., P laintif fs/ Appellan ts/CrossAppellees,

v. QWES T COMMUN ICATIONS CORP ORATION, Defendan t/Appellee/CrossAppellan t. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ON AP P EAL FR OM THE UNITED STAT ES DIS TRICT COURT F OR THE E ASTERN DISTRICT OF MICHIG AN

Before: M OORE, GIBBONS, an d McK EAGU E, Circuit Judges. JULIA SMITH GIBBONS, Circuit Judge. The Offic ial Commi ttee of Unsec ured Creditors of Apex Global I nformation Service s, I nc. (“the committee”) and McTevia & Associates, I nc., the liquidating ag ent of A.P. L iquidating Co., for m er l y known as Apex Global I nformation Service s, I nc., (tog ether , “the plaintiffs”) appea l the dismiss al of their action for contra ct brea ch under Fe dera l Rule of Ba

nkruptcy Procedur e 7052. Qwest Communi cations Corporation (“Q west”)

- 1 -A.P. Liquidati ng Co. v. Qwest Commc’ ns Corp. Nos. 09-1668, 09-1669, 09-1745

cross-a ppeals the district court’s ear lier order vacating the bankruptc y court’s dismiss al of the same action as ba

rre d by res judicata . For

the following rea sons, we af firm. I

. Apex Global I nformation Service s, I nc. (“A GI S”) was a Neva da corpor ation formed in 1994
to provide internet acc ess and other data communications service s to national and reg ional internet service providers, telecommunica tions car riers, and businesses. Started by Phill ip J

. L awlor, AGI S

was cre ated in r esponse to the impending dere g ulation of the interne t. AGI S, along w ith six other companies, ag ree d to be the initial parti c ip a n ts in this commerc ialization of the internet; AGI S would

serve as Tier I internet a cce ss provider, helping form what is c ommonly known as the “bac kbone” of the interne t. As part of its business plan, AGI S sought to ac quire g reater c apability to transport interne t traff ic. To do so, it turned to Qwest, a reg ional telephone and telecommunica tions provider that was at the time completing a national fiber optic cable network. AGI S soug ht to purcha se an indefe asible rig ht of use (“I RU”) on this network, which—in lay man’s terms—would g ive AGI S the rig ht to use

some of the space on Qwest’s new network in order to transport its clients’ elec tronic information. The plaintiffs claim that this new netwo rk wo u l d have essentially repla ced AGI S’s old data communications network, thus enhanc ing its g rowth as a Tier I internet platform and enabling it to become a low-c ost, facilities-base d provider of internet a cce ss and servic es. I n J uly 1997, AGI S and Qwest commence d neg otiations, which culminated with an I RU purcha se ag ree ment executed on J anuar y 5, 1998, with an eff

ective date of Marc h 26, 1998. Under the ag ree ment, the network’ s targ eted date of completion wa s t wo y ear s afte r the eff ective date.

- 2 -A.P. Liquidati ng Co. v. Qwest Commc’ ns Corp. Nos. 09-1668, 09-1669, 09-1745

AGI S, in turn, was re quired to make a ca sh pay ment of approx imately $310 milli on roug hly three y ear s afte r the eff

ective date. Qwest also was issued share s of common stock in AGI S eq u al to 19.99% of the total c ommon stock, and Qwe st rece ived a se at on AGI S’s board of dir ector s. The I RU ag ree ment contained a provision known as a “m o s t favor ed customer” clause (“MF C clause” ), which pr ovided: For a period beg inning on the Ex ecution Date and continuing for five y ear s, the Cash Pay ment made by AGI S will be adjusted downwar d (and, afte r all payments due

. . . have been made, Qwest will pay rebates to AGI S) to the extent nece ssary to assure that the rate extended to AGI S for the Capac ity I RU under this Ag ree ment will be not g reater than Qwest’s best preva iling rate on a Comparable Sale of capa city on the Qwest owned network d u ri n g such period. A “Compara ble Sale” will mean a sale of simil ar capa city or l es s on the Qwest Sy stem at the level at which AGI S is purcha sing dedica

ted Ba ndwidth for a term of 20 y ear s or less on Route Miles equal to or less than the Route Miles of the AGI S Networ k, and Qwest will not otherwise eng ag e in any transac tion in a manner d es i gn ed or intended to circ umvent the fore g oing limitations. The primar

y dispute in this case ce nters on this provision. On Fe brua

r y 25, 2000—one month befor e Qwest’s targ et date for delivery of the network and more than a

y ear befor e AGI S’s e arliest re quired pa y ment date—AG I S filed for ba nkruptcy under Chapter 11 of the United States Ba nk ruptcy Code. The United States Trustee appointed the

unsecur ed cre ditors committee on Marc h 17, 2000. The initial co m mittee members wer e I TC De l taCom Communi cations, AT& T Corp., Foc al Communi cations Corp., and MCI WorldC o m . Be g inning in Ma

y 2000, howeve r, proce eds from the approve d sale of A GI S’s assets wer e used to satisfy these c reditors’ c laims. Bec ause the se debts we re pa id, all of the orig inal cre ditors serving

on the committee eventua lly resig ned. AT& T, the last orig inal committee member, resig ned on J uly 31, 2007. Prior to its resig nation, howeve r, AT& T approve d the appointment of three addit i onal

- 3 -A.P. Liquidati ng Co. v. Qwest Commc’ ns Corp. Nos. 09-1668, 09-1669, 09-1745

Commi ttee members—Ar go Partners, L y nn Bateman, and Binde r & Malter L L P—in acc ordanc e with the rele vant proc edure s under the D ebtor’s Plan. AGI S filed its Combined Plan for Reorg anization on J une 26, 2000. The reor g anization plan

n amed J ames V. McTevia & Associates, I nc., as AGI S’s liquidating ag ent and appointed it t o conduct the liquidation of the AGI S estate’ s rema inin g as s ets , to consummate the Plan, and otherwise administer the bankruptc y case post-confirma tion on behalf of all cre ditors. The plan also called for AGI S to chang e its corpor ate name to “A.P. L iquidating Company .” On Aug ust 9, 2000, the bankr uptcy court e ntere d an orde r conf irming the plan. Be fore the plan was confirme d by the bankruptc y court, howeve r, Qwest fi l ed a proof of claim ag ainst AGI S for $310 milli on, claiming brea ch of the I RU ag ree ment. After the Commi ttee filed an objection to Qwest’s proof of cla im in May

2001, howeve r, Qwe st moved to withdraw its claim, which the ba

nkruptcy court g rante d on November 2, 2001. On Marc h 29, 2002, the committee and liquidating ag ent commence d an adver sary proce eding on behalf of A.P. L iquidating ag ainst Qwest in the bankruptc y court, claiming Qwest was in fac t the party who brea ched the I RU ag ree ment. The plaintiffs claimed that other Qwest sales during the rele vant period should have trig g ere d the MFC clause , but that Qwest intentionally failed
to disclose these sales to AGI S, in ord er to avoid conseque ntial downwar d adjustment of the
contra ct’s price t erms. As a result, acc ording to the pl aintiffs, AGI S h ad b ec o m e h amper ed in its competition with other internet acc ess providers and had been unable to raise working capital;

moreove r, AGI S’s a ssets had been sold dur ing bankruptc y proce eding s at a much lower price than they would have othe rwise.

- 4 -A.P. Liquidati ng Co. v. Qwest Commc’ ns Corp. Nos. 09-1668, 09-1669, 09-1745 Qw est first responde d to the pl aintiffs’ claims by filing a motion to dismiss under Fe d er al Rules of Ba

nkruptcy Procedur e 7012(b)( 6) and 7009(b) on the g rounds of res judicata and judicial estoppel. Qwest arg ued that, under the prec edent of this c ircuit, a confirme d bankruptc y plan bars subsequent potential claims, unless they are specific ally

disclosed and r eser

ved in the plan, which AGI S had not done. I n October 2002, the bankruptc y court g rante d Qwest’s motion to dismiss

. I n J une 2003, the district co u rt re v er s ed the bankruptc y court and rema nded the case for further proce eding s. Fi n d ing the bankruptc y court’s confirma tion order “spec ifically rese rved [AGI S’s] rig ht to explore any Objection ag ainst Qwest’s Proof of Claim,” the district court conclude d that this

rese rvation wa s enoug h to defe at res judicata

. After t h e district court rema nded the case to the bankruptc y court, extensive discovery

commence d. I n Aug ust 2007, Qwest moved f or dismissal on standing g rounds. Given pay ments 1 of committee members’ outstanding debts prior to this lawsuit’s filing, Qwest arg ued that there was

no p ro p erly constituted committee in exis tence when this lawsuit was commence d. As a result, Qwest claimed that no plaintiff had Article I I I standin g b ef o re t h e court. The bankruptc y court

2 issued a bench ruling reje cting this arg ument and finding that it had subject matter jurisdiction in the

case . The district court aff irmed the bankruptc y cour t’s finding of subject matter jurisdiction in April 2009.

I n April 2005, Qwest filed a motion to strike the plaintiffs’ jury demand on the g rounds that

1 the plaintiffs’ claims wer e subject to the bankruptc y court’s equitable jurisdiction. I n J uly 2005, the bankruptc y court g rante d Qwe s t ’s m o t i o n to strike the jury demand, finding the plaintiffs had no rig ht to a jury trial. The plainti ffs appeal thi s decision; howeve r, because w e dec ide this case a s a matter of la

w (for the re asons discussed be low), the jury issue is moot. Be cause the liquidating ag ent is merely an ag ent of the c ommitt ee, Q west ar g ued that the 2 liquidating ag ent had no standing if the Committ ee w as improper ly constituted. - 5 -A.P. Liquidati ng Co. v. Qwest Commc’ ns Corp. Nos. 09-1668, 09-1669, 09-1745

A bench trial beg an in late J uly 2007. At the close of the plaintiffs’ prese ntation of evidenc e, Qwest moved pursuant to Fe dera l Rule of Ba nkruptcy Procedur e 7052 for judgme nt based on partial finding s. After oral arg uments, the bankruptc y court g rante d Qwest’s motion. T h e district court aff irmed the bankruptc y court’s interpre tation of the MFC clause and its judgme nt for Qwest. Both the bankruptc y court and the district court fo u n d t hat the MFC clause was unambig uous, and the “Compara

ble Sale” definition was restric ted such that only sales “at the OC-48 level” wer e deeme d compar able. Be cause Qwest had undisputedly made no other sales at the OC-48 l evel during the rele vant per iod, there w ere no compar able sa les and the MF C clause wa s theref ore not trig g ere d. The plainti ffs appeal the denial of a jury trial and the judgme nt for Qwest on the m erits of the contra ct dispute. Qwe st cross-a ppeals the subjec t matter jurisdiction and res judicata issues.

I I

. AGI S filed its Voluntary Petition for relief under Chapter 11 of the United States Ba nkruptcy Code. 11 U.S.C. § 1101 et seq. Plaintiffs are authorized to bring and prosec ute an action on behalf of the cre ditors of AGI S’s bankruptc y pursuant to Parag raphs 6.3(a) throug h (c) of the reor g anization plan approve d by the bankruptc y court in Aug ust 2000. The bankruptc y court has jurisdiction over the curr ent proce eding pursuant to the court’s limit ed jurisdiction over non-cor e proce eding s under 28 U.S.C. §§ 157(a) , 157(c) (1), a nd 1334. The dist rict court possesses original jurisdi ction over the case pursuant to 28 U.S.C. § 1334. This court possesses appellate j u ri sdiction pursuant to 28 U.S.C. § 1291. I I I

.

- 6 -A.P. Liquidati ng Co. v. Qwest Commc’ ns Corp. Nos. 09-1668, 09-1669, 09-1745

This court must first addre ss Qwest’s claim that the plaintiffs lack Article I I I standing , since

s t anding is a prer equisite to our jurisdiction. “Ar ticle I I I ’s standing require ments ap p l y t o proce eding s in ba

nkruptcy courts just a s they do to pr ocee dings in district c ourts.” In re Re source Tech. Corp. , 624 F.3d 376, 382 (7th Cir. 2010 ). J urisdictional challeng es based on standing are revie wed de novo b y t h i s co u rt

. Miller v. C ity of Cincinnati , 622 F.3d 524, 531 (6th Cir. 2010). Qwest’s arg ument about the membership of the unsecur ed cre ditors committee does not raise

a true issue of standing

. I nstead, Qwest has challeng ed cer tain committee members’ respe ctive fitnesses to serve on the committee of unse cure d cre ditors. Such a cha lleng e does not addre ss the court’s subject matter jurisdiction. Rather, the issue with reg ard to the composition of the committee rela tes to whether cre ditors are adequately repr esente d. Qwest could have petitioned the bankruptc y court to “orde r t he United S t ates trustee to chang e the membership of [t he creditors’] committee” and persua ded the court that “ th e c hang e is nece ssary to ensure adequate repr esenta tion of cre ditors.” 11 U.S.C. § 1102(a) (4). Be cause Qwest has not do n e t h i s , we h av e no occa sion to examine the composition of the unsecur ed cr editors committee at the time litigation was commenc ed. As to the g ener al issue of standing , this circ uit has rec og nized that cre ditors committees can be g rante d “der ivative standing ” to pursue a varie ty of actions on behalf of the debtor or estate. In

re Trail er Source, Inc. , 555 F.3d 231, 241 n.6 (6th Cir. 2009). Although this circ uit has not held so expli citly , other circ uits have found that the scope of “der ivative standing ” is broad enoug h to allow the committee to initiate adver sary proce eding s in bankruptcy court in place of the debtor-in- possession or trustee. Official Comm. of Unsec ured Creditors of Cybergenics Corp. v. Chinery , 330 F.3d 548, 566 (3d Cir. 2003) (en banc) (“[T]he most natura l rea din g o f the

- 7 -A.P. Liquidati ng Co. v. Qwest Commc’ ns Corp. Nos. 09-1668, 09-1669, 09-1745 [Bankruptc y ] C ode is that Congr ess re cog nized and approve d of derivative standing for c reditors’ committees.”); Un s ecure d Creditors Comm. of Debtor STN Enters., Inc. v. Noyes ( In re STN Enters.) , 779 F.2d 901, 904 (2d Cir. 1985) (“Most bankruptc y courts that have considere d the question have found an implied, but qualified, rig ht for cr editors’ c ommitt ees to initiate a dversa ry proce eding s in the name of the debtor in possession.”). The longstan d ing and widely acc epted doctrine of deriva tive standing in case s such as these sug g ests that the constitutional require ment is satisfied, and Qwest has not put forwa rd any rea son for us to deviate from t he established jurisprudenc e. I V. We next turn to the plaintiffs’ appea l of the dismiss al of the plaintiffs’ action for brea ch of
contra ct under Fe dera l Ru l e o f Ba nkruptcy Procedur e 7052. “When revie wing an order of a bankruptc y court on appea l from a decision of a district court, this Court ‘re view[s] the bankruptc y court’s or der dire ctly

and g ive[s] no defe renc e to the district cour t’s decision.’” LPP Mortg., Ltd.

v. Brinley , 547 F.3d 643, 647 (6th Cir. 2008) (quoting In re Lee , 530 F.3d 458, 463 (6th Cir. 2008)) (alterations in orig inal). “The bankruptc y court’s finding s of fac t are revie wed for clea r err or. Conclusions of law made by the bankruptc y court are revie wed de novo. Equitable deter minations made by bankruptc y courts are revie wed for an abuse of discretion.” Id. (interna l citations omitted). The bankruptc y court’s g rant of Qwest’s Rule 7052 motion is based on interpre tation of the
contra ct. The I RU Ag ree ment provides, and the parties agre e, t h at the contra ct is g overne d by Delaw are law. Under Delaw are law, “[t] he p roper construction of any contra ct

. . . is purely a question of law.” Sassano v. CIBC W orld Marke ts Corp. , 948 A.2d 453, 462 (De l. Ch. 2008)

- 8 -A.P. Liquidati ng Co. v. Qwest Commc’ ns Corp. Nos. 09-1668, 09-1669, 09-1745 (quoting Rhone-P oulenc Basic Chems., C o. v. Am. Motorists Ins. C o. , 616 A.2d 1192, 1195 (De l. 19 9 2 )) (interna l quotation marks omitted; alterations in orig inal). “Howe ver, insofar as the court below relied upon parol evidence to aid in its i nterpre tation of [a contrac t] , its factual f indings a re entitled to g reater defe renc e.” Judge v. Rago , 570 A.2d 253, 255 (D el

. 1 9 9 0) (citing Levitt v. Bouvier , 287 A.2d 671 (De l. 1972)). This acc ords with the fede ral rule that an appea ls court “re view[s] the bankruptc y court’s fin d i n gs o f fa ct for clea r err or and any conclusions of law de

novo .” In re J

ohn Richards Home

s Bldg. Co., L .L.C. , 439 F.3d 248, 254 ( 6th Cir. 2006). The first question is whether the rele vant contra ctual term—the “compa rable sale” definition found within the MFC clause —is unambig uous as it rela tes to this dispute. Under Delaw are law this
court must revie w this question de novo . See Hifn, Inc. v. Intel Corp. , No. 1835-VCS, 2007 WL 2801393, at *9 (De l. Ch. May 2, 2007) (unpublished ) (“ A deter mination of whether a contra ct is ambig uous is a question for the court to resolve as a matter of law.”)

. The compar able sale provision explains t hat: A “Compara

ble Sale” will mean a sale of simil ar capac i t y or less on the Qwest Sy stem at the level at which AGI S is purcha sing dedica ted Ba ndwidth for a term of 20 y ear s or less on Route Miles eq u al t o or less than the Route Miles of the AGI S Network, and Qwest will not otherwise eng ag e in any transac tion in a man n er desig ned or intende d to circumve nt the fore g oing limitations. A natura l rea ding of the provision, there fore , identifies four conditions that must be satisfied befor e a Qwe st sale is deeme d compar able to the AGI S sale: (1) the s ale must be for “similar ca

pacity or less,” (2) the sale must be “at the le vel at which AGI S is purcha sing bandwidth”; (3) the sale must b e fo r “a term of 20 y ear s or l ess”; and (4) the sale must be “on Route Miles equal to or l es s t h an Route Miles of the AGI S Networ k.” The two parties ag ree on the definiti o n s of the last two

- 9 -A.P. Liquidati ng Co. v. Qwest Commc’ ns Corp. Nos. 09-1668, 09-1669, 09-1745 conditions, and these are irrele vant to the curr ent dispute. The centr al disag ree ment is over the first two conditions within t he provision, and spe cifica lly the def initions of “c apac ity ” and “ level.” Qwest arg ues t hat “leve l” rela tes to the bandwidth being purcha sed, as in “leve l of bandwidth.” L evel, it arg ues, indicates the rate of transmission, or how much data is convey ed per second. This me tric essentially deter mines how much data is c onvey ed from point A to point B at

one time. Capac ity , in contra st, is comprised of two components: (1) the rate ( i

. e. , t h e bits per second) of transmission the network could provide and (2) the distance over which it would be provided. Ac cording to Qwest, there fore , level is only one compone nt of ca

pacity

. The plaintiffs, in contra st, arg ue that “ca

pacity ” and “leve l” are sy

nony mous terms, and both ref er to the rate of transmission. The plaintiffs there fore arg ue that t h er e ar e re ally only three 3 conditions that have to be satisfied befor e a condition is deeme d a “compa rable sale,” not four as the plain lang uag e of the provision would sug g est. Thus, in the plaintiffs’ view, any Qwest contra ct for network capa city at a rate lower than OC-48 over a distance equal to or less than the Qwest network for a period of twe nty

y ear s or less would have trig g ere d the MFC cla use. The plaintiffs’ offe red interpre tation, howeve r, runs a f o u l o f the doctrine under Delaw are law that “[a]s a g ener al matter,

. . . courts attempt to interpre t eac h word or phrase in a contra ct to have

an independe nt meaning so as to avoid rende ring contra ctual lang uag e mere surplusag e .” Majkowski

Plaintiffs support their claim of sy nony mity by pointing to what they claim are the industry 3 terms of “ca

pacity ” and “bandw idth.” Whil e § 17.3(b) of the I RU Ag ree ment provides that “wor ds having well known technica l or trade meaning s will be so construed,” under contra ct law this ty pe of evidenc e is considere d parol evidenc e and cannot be used to introduce ambig uity into a contra ct. Eagle Indus. v. DeVilbiss Health Care, Inc. , 7 0 2 A. 2 d 1228, 1232 (De l. 1997) (“I f a contra ct is unamb i gu o u s , ex trinsic evidenc e may not be used to interpre t the i ntent of t he parties, to vary the terms of the c ontrac t or to cre ate a n ambig uity .”).

- 10 -A.P. Liquidati ng Co. v. Qwest Commc’ ns Corp. Nos. 09-1668, 09-1669, 09-1745

v. Am. Imaging Mgmt. Servs., LLC , 913 A.2d 572, 588 (De l. Ch. 2006). The logic behin d t h is doctrinal rule is simple: “[o] rdinarily , one presumes that draf ters who choose differ ent words have intended to implement differ ent concepts.” Argyle Soluti on s , In c. v. Prof’l Sys. C orp. , No. 4382- VCN, 2009 WL 1204351, at *2 (De l. Ch. May 04, 2009); see also Conwell’s Lessee v. Conwell , 1 Def

. Cas. 72, 72 (De l. 1795) (“H aving used differ ent words, he must have had differ ent meaning s.”). Be cause the draf

ters used “leve l” and “ca

pacity ” in the same provision, Delaw are law presumes the two terms to have se para

te meaning s. Unfortuna tely , Qwest’s proff ere d interpre tation of the compar able sales doctrine seems to have its own, albeit lesser, surplusag e-c rea ting conseque nce. Since Qwest arg ues that capa city is comprised of

(a) distance a

nd (b) r ate of

transmission, then there is re dundancy in the compar able sales definition; if the rate of transmission is alway s fix ed—in other words, alway s OC-48—then the capa city of a second Qwest-pr ovided network will be less than that of the AGI S network only if the network’s distance is less than or equal to that of the AGI S network. Going back to the four conditions outlined above, there is no scena rio wher e condition (1) could be satisfied and condition (2) not, or vic e ver sa. This inhere nt equivalenc y of terms, it seems, a mounts to surplusage

. The admitted redunda

ncy in Qwest’s definition, howeve r, does not nece ssarily mean that its

m ea n i n g i s not corr ect or that the contra ct itself is ambig uous; indeed, this may simply be the exception to the ge nera l r ule about surplusag e. Cf. Lamie v. United States Tr. , 540 U.S. 526, 536 4

I n contra st, the plaintiffs conce de that their proff ere d interpre tation cannot be supported as 4 a re ad i n g of an unambig uous statute. The plaintiffs claim the confusion over the definition of “ca pacity ” and “leve l” is due to “an oversig ht on the part of the draf ters.” Specifica lly , the plaintiffs arg ue that, as a result of neg otiations, the parties intended to chang e the prepositional phrase “ at the level” to “ than the level” in the fi n al version of the I RU ag ree ment, such that a compar able sale would have been one with “similar capa city or less on the Qwest Sy stem at the level at which AGI S - 11 -A.P. Liquidati ng Co. v. Qwest Commc’ ns Corp. Nos. 09-1668, 09-1669, 09-1745 (2004) (“Surplusag e does not alway s produce ambig uity and our pref ere nce for avoiding surplusag e constructions is not absolute.”) I n this case , the surplusag e of Q west’s prof fer ed def inition s eems explainable; it is included to emphasize that only OC-48 networks are considere d compar able to the AGI S network. This emphasis has an obvious purpose in the telecommunica tions industry : beca use the t echnolog ies behind di ffe rent network l ines vary and are rapidly evolving , there is an inherent need to limit what ty

pes of technolog ies are “compa rable

. ” I n this case , the pl ain l ang uag e of the MFC clause limit s that scope by restric ting compar able sales to those using the same technolog y as the AGI S network. Moreove r, Qwest’s interpre tation of “leve l” as connoting “OC- 4 8 le vel” finds support within other portions of the I RU Ag ree ment. I n § 2.1, the ag ree ment define s “Capa city ” (with a capital “C,” in contra st to the lower- case d “ca pacity ” used in the MFC clause ) as “optical transmission capa city
at an OC-48 level.” I n this provision, “leve l” quite clea rly is used to identify the OC-48 bandwidth, and the term “capa city ” and “leve l” are not used sy nony mo usly

. The clear context in which level is used in § 2.1, then, clarifies som e of the uncertainty within the “compara ble s ales” provision in § 9.2(c)

. Cf. Ratzlaf v. United States , 510 U.S. 135, 143 (1994) (“A term appea ring in sever al place s . . . is ge nera lly

rea d the same w ay

eac h time it appear s.”). Finally , rea ding the “compa rable sales” provision to be limit ed to networks with OC-48 lines finds support in the g ener al economic purpose of an MFC clause

. A most-favore d customer clause is included to eliminate a co n s u m er ’s worry that should she wait until tomorrow to purcha se a seller’ s product, she would g et a be tter price . An MFC cla use there fore operates as insurance , but

is purchasing .” - 12 -A.P. Liquidati ng Co. v. Qwest Commc’ ns Corp. Nos. 09-1668, 09-1669, 09-1745

it is intended to insure ag ainst a very narr ow set of risks—tho se that aff ect the price of the very product a consumer i n t en d s t o buy , not those that aff ect the price of substitut able products. The construction offe red by the plaintiffs, in contra st, eff ecti v el y m akes the MFC clause a protec tion ag ainst price fluctuations in all substitut able telecommunica tions technolog ies—a much bro ad er form of insurance

. I t s ee m s u n likely that the parties intended for Qwest to provide such broad

assura nces w ithin an MFC clause

. I n sum, the plain lang uag e and g rammatica l structure of the M FC p ro v ision, the use of “leve l” and “ca

pacity ” non-sy

nony mously in other parts of the I RU Ag ree ment, and the underlying rationale of a most-favore d customer clause all establish unambig uously that only sales at the OC-48 bandwidth wer e intended to be compar able sa les that trig g ere d the MFC provision. 5 V. For t h e foreg oing rea sons, we aff irm the bankruptc y court’s g rant of judgme nt to Qwest based on pa

rtial finding s and its denial of Qw est’s motion to dism iss based on lac k of standing

.

Be cause we find for the defe ndants on the merits of the case , Qwest’s motion for summary 5 judgme nt based on res judicata is moot. - 13 -