Cox Response (Uhl vs. Cox)

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

In re MDL 2048 COX ENTERPRISES, INC. SET-TOP CABLE TELEVISION BOX ANTITRUST LITIGATION

) ) )

Case No. ML-12-2048-C

ANSWER

Defendant Cox Communications, Inc. (Cox), by and through undersigned

counsel, hereby answers Plaintiffs Class Action Complaint (Complaint) and states as

follows. Any allegation not expressly admitted by Cox in this Answer is hereby denied.

INTRODUCTION

1. Cox denies that this case is appropriate for adjudication on a class-wide

basis. Cox states that Paragraph 1 contains legal conclusions as to substantial

economic power which do not require a response. Notwithstanding, Cox denies each

and every allegation in Paragraph 1, including Plaintiffs characterization of Premium

Cable and Premium Cable subscribers.

2. Cox states that Paragraph 2 states legal conclusions to which no response is

required. Notwithstanding, Cox denies each and every allegation in Paragraph 2.

3. Cox states that Paragraph 3 states a legal conclusion that Cox has tied the

distribution of set-top boxes to the provision of Premium Cable to which no response is

required. Paragraph 3 also states a legal conclusion that Cox has unreasonably restrained

trade in violation of Section 1 of the Sherman Act, 15 U.S.C. 1, to which no response is

required. Notwithstanding, Cox denies each and every allegation in Paragraph 3,

including Plaintiffs' characterization of the term Premium Cable.

Case 5:12-ml-02048-C Document 8 Filed 01/23/13 Page 1 of 25

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THE PARTIES

4. Cox denies that at all material times Richard Healy subscribed to Premium

Cable provided by Cox.

5. Cox admits that Cox Communications, Inc. is a Delaware corporation with

its principal place of business in Atlanta, Georgia.

6. Cox admits that it provides multi-channel video programming distribution

through a cable network and leases set-top boxes.

JURISDICTION AND VENUE

7. Cox states that Paragraph 7 states legal conclusions to which no response is

required. Notwithstanding, Cox denies that Plaintiffs' claims properly arise under an act

of Congress sufficient to confer jurisdiction under 28 U.S.C. 1331 or 1337.

8. Cox admits that it engages in business in Oklahoma through its subsidiary

CoxCom Inc. d/b/a Cox Communications Oklahoma. The remainder of Paragraph 8

states legal conclusions to which no response is required.

FACTUAL ALLEGATIONS

9. Cox admits that it provides cable multi-channel video programming

distribution ("MVPD") in the United States. Cox is without sufficient information to

admit or deny the truth of the remaining allegations in Paragraph 9.

10. Cox denies that MVPD providers do not compete with one another or face

competition from MVPD providers who use other formats than cable. The remainder of

Paragraph 10 states legal conclusions regarding "economic power" and tying violations

to which no response is required. Notwithstanding, Cox denies each and every


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remaining allegation in Paragraph 10, including Plaintiffs' characterization of the term

"economic power."

11. Cox denies that it compels consumers to rent or pay for set-top boxes.

Cox denies that a set-top box is a "separate product that it distributes." Cox denies that

a set-top box is essentially an extension of a television set, which consumers must use

to access the full range of "Premium Cable" services that they have purchased. Cox

admits that it, in some instances, charges a monthly rental fee for set-top boxes when

consumers choose to rent them. Cox admits that it purchases set-top boxes from

manufacturers. Cox denies that it forces consumers to pay a monthly rental fee for set-

top boxes, or that the fee it charges for set-top boxes "quickly adds up" to more than

the cost Cox pays to purchase the set-top-boxes from manufacturers. The remainder of

Paragraph 11 states legal conclusions regarding what constitutes a "separate product" to

which no response is required. Notwithstanding, Cox denies each and every remaining

allegation in Paragraph 11, including Plaintiffs' characterization of the terms "classic

tying violation," "separate product," and "Premium Cable services."

The Tying Product: Premium Cable

12. Cox denies that it offers two cable products, "Basic Cable" and

"Premium Cable." Cox is without sufficient information to admit or deny the truth of

the allegations in Paragraph 12 that pertain to third parties. Cox denies each and every

remaining allegation in Paragraph 12, including Plaintiffs' characterization of "Basic

Cable" and "Premium Cable."


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13. Cox denies each and every allegation in Paragraph 13, including Plaintiffs'

characterization of "Basic Cable."


characterization of "Premium Cable."

15. Cox denies that approximately two-thirds of Cox's Oklahoma City video

customers subscribe to "Premium Cable." Cox denies each and every remaining

allegation in Paragraph 15, including Plaintiffs' characterization of "Premium Cable."

16. Cox admits that subscribers may in some (but not all) circumstances be

charged a fee for utilizing a pay-per-view service. Cox denies each and every remaining

allegation in Paragraph 16, including Plaintiffs' characterization of "Premium Cable" and

"Basic Cable."

17. Cox states that Paragraph 17 refers to a publicly available government

document and respectfully directs the Court to the full report for the complete and

accurate statistics, language, and context. Cox denies each and every remaining allegation

in Paragraph 17, including Plaintiffs' characterization of "Premium Cable" and any

suggestion that the FCC has recognized or adopted Plaintiffs' definition of "Premium

Cable."



accurate statistics, language, and context. Cox denies each and every remaining allegation

in Paragraph 18, including Plaintiffs' characterization of "Premium Cable" and any


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suggestion that the FCC has recognized or adopted Plaintiffs' definition of "Premium

Cable."


characterization of "Premium Cable," "Premium Cable subscribers," "Basic Cable,"

"Basic Cable subscribers," and "cable-ready."


characterization of "Premium Cable services."



22. Cox states that Paragraph 22 states a legal conclusion that "Premium Cable"

is the tying product, to which no response is required. Notwithstanding, Cox denies each

and every allegation made in Paragraph 22, including Plaintiffs' characterization of

"Premium Cable" as a tying product.

The Tied Product: Set-Top Boxes



24. Cox denies Plaintiffs' characterization of the terms "cable-ready,"

"premium channels," and "Premium Cable." Cox is without sufficient information to

admit or deny the truth of the remaining allegations in Paragraph 24.


characterization of "Cable-ready" and "Premium Cable."


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characterization of the terms "Premium Cable services" and "Premium Cable

subscribers."

27. Cox is without sufficient information to admit or deny the truth of the

allegations in Paragraph 27 that pertain to third parties. Notwithstanding, Cox admits that

Motorola and Scientific Atlantic manufacture set-top boxes.

28. Cox denies that consumers have demonstrated a demand for acquiring set-

top boxes apart from Premium Cable, including Plaintiffs characterization of the term

Premium Cable. Cox is without sufficient information to admit or deny the truth of the

allegations in Paragraph 28 that pertain to third parties.


characterization of "Premium Cable" and "Premium Cable services."

30. Cox denies that it has engaged in a practice that forecloses competition. Cox

states that the remainder of Paragraph 30 states legal conclusions as to "tying,"

foreclosure of competition, and "the market for set-top boxes," to which no response is

required. Notwithstanding, Cox denies each and every remaining allegation in Paragraph

30, including Plaintiffs' characterization of "Premium Cable" and "the market for set-top

boxes."

31. Cox states that Paragraph 31 states a legal conclusion that set-top boxes are

the tied product, to which no response is required. Notwithstanding, Cox denies each and

every allegation in Paragraph 31.


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Consumers Who Purchase Premium Cable From Cox Are Also Forced to Rent Set-Top Boxes from Cox

32. Cox denies each and every allegation made in Paragraph 32, including

Plaintiffs' characterization of "Premium Cable service."

33. Cox states that Paragraph 33 states a legal conclusion regarding "the tying

requirement," to which no response is required. Notwithstanding, Cox denies that it has

posted a "tying" requirement on its website. Cox denies that the Plaintiffs have accurately

and completely quoted from "its website." Cox states that Paragraph 33 refers to a

publicly available website, and respectfully directs the Court to the website for the

complete and accurate language and context. Cox denies each and every remaining

allegation in Paragraph 33.


characterization of "Premium Cable subscribers."

35. Cox states that Paragraph 35 states a legal conclusion "[t]hat set-top boxes

obtained from a source other than Cox will not function on Cox's cable MVPD system

is another means of requiring consumers to submit to its illegal tie," to which no

response is required. Notwithstanding, Cox denies that it has engaged in an illegal tie.

Cox denies each and every remaining allegation in Paragraph 35.

36. Cox denies that any fee it may charge for set-top-boxes "quickly adds up"

to more than the cost Cox pays to purchase the set-top-boxes. Cox denies each and every

remaining allegation in Paragraph 36.


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37. Cox states that Paragraph 37 refers to a Federal statute and respectfully

directs the Court to the full text of the statute for the complete and accurate language and

context. Cox denies Plaintiffs' characterizations of the expectations, indications, or

interpretations of Congress and the FCC.

38. Cox admits that, in some circumstances, it encrypts or scrambles some

data as a security measure to prevent signal theft. Cox denies each and every remaining

allegation as they pertain to Cox, including Plaintiffs' characterization of "cable-ready,"

"Premium Cable services," and "Basic Cable." Cox is without sufficient information to

admit or deny the truth of those allegations in Paragraph 38 that pertain to the actions of

third parties.

39. Cox denies that there is a product called "Premium Cable" the descrambling

or un-encrypting of which requires a device.

40. Cox denies each and every allegation as they pertain to Cox. Cox is without

sufficient information to admit or deny the truth of those allegations in Paragraph 40 that

pertain to the actions of third parties.

41. Cox states that the FCC's rules and its actions in its publicly reported

decisions speak for themselves. Cox otherwise denies each and every allegation in

Paragraph 41 in its entirety.

42. Cox admits that it offers consumers a CableCARD. Cox denies each and

every remaining allegation in Paragraph 42, including Plaintiffs' characterization of the

terms "integration ban," "cable-ready," and "non-integrated set-top boxes."


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43. Cox states that Paragraph 43 refers to and purports to quote a publicly

available website, and respectfully directs the Court to the full quoted website for the


allegation in Paragraph 43, including Plaintiffs' characterization of the terms "Premium

Cable subscribers" and "Premium cable services."

44. Cox denies that it has taken measures to limit the availability and

"attractiveness" of CableCARDS. Cox states that the FCC's rules and its actions in its

publicly reported decisions speak for themselves. Cox denies each and every remaining


45. Cox denies that it requires "Premium Cable subscribers" to rent the

Cab1eCARDS that it distributes and charges them an installation fee. Cox denies that it

charges any "particularly egregious" fee. Cox denies each and every remaining allegation

in Paragraph 45, including Plaintiffs' characterization of the term "Premium Cable

subscribers" and "cable-ready."

46. Cox denies that it has distributed a "strikingly small" number of

CableCARDS. Cox states that Paragraph 46 purports to refer to a document filed in a

Federal agency proceeding, and respectfully directs the Court to the full referenced filing

for the complete and accurate statistics, language, and context.

47. Cox denies each and every allegation to the extent they pertain to Cox. Cox

is without sufficient information to admit or deny the truth of the remaining allegations in

Paragraph 47 that pertain to the actions and motivations of third parties.


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48. Cox states that Paragraph 48 states legal conclusions that Cox has engaged

in an illegal tie of "Premium Cable" to set-top boxes, to which no response is required.

Notwithstanding, Cox denies each and every allegation in Paragraph 48, including the

allegation that it has "done everything in its power" to "protect" an illegal tie, and

Plaintiffs' characterization of "Premium Cable."

Cox Possesses Economic Power in The Tying Market

49. Cox states that Paragraph 49 contains legal conclusions regarding "requisite

economic power" and "illegal tying practice" which do not require a response.

Notwithstanding, Cox denies each and every allegation in Paragraph 49, including that it

has economic power or that it has forced consumers to submit to an illegal tying practice.

50. Cox denies that it has consistently raised prices for "Premium Cable." Cox

states that Paragraph 50 contains legal conclusions regarding "substantial market share"

which do not require a response. Notwithstanding, Cox denies each and every

remaining allegation in Paragraph 50, including that it has a substantial market share or

has forced consumers to submit to an illegal tying practice.

Cox Regularly Increases The Price of Premium Cable Without Losing Customers

51. Cox denies that it has repeatedly raised the price of "Premium Cable" over

the last ten years. Cox denies each and every remaining allegation in Paragraph 51.


characterization of the term "Premium Cable subscribers."

53. Cox states that Paragraph 53 states legal conclusions regarding "sufficient

economic power to unlawfully tie set-top boxes to Premium Cable," which do not


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require a response. Cox denies each and every remaining allegation in Paragraph 53,

including Plaintiffs' characterization of the term "Premium Cable."

Cox Has A Substantial Share of the Relevant Market

54. Cox states that Paragraph 54 states a legal conclusion that the relevant

product is the provision of "Premium Cable MVPD," to which no response is required.

Notwithstanding, Cox denies that the relevant product is the provision of Premium Cable

MVPD.

55. Cox states that Paragraph 55 purports to refer to a publicly available

government document and respectfully directs the Court to the full report for the

complete and accurate language and context. Cox denies the Plaintiffs' characterization of

"Premium Cable" in the context of the government document referred to in Paragraph 55.

56. Cox denies each and every remaining allegation in Paragraph 56, including

Plaintiffs' characterization of the term "Premium Cable subscribers".


characterization of the term "Premium Cable".

58. Cox denies that "cable MVPD" consists of "Premium Cable" and "Basic

Cable." Cox is without sufficient information to admit or deny the truth of the allegations

of Paragraph 58, which Plaintiffs base on an unidentified "2007 Congressional research

report." Cox denies each and every remaining allegation in Paragraph 58, including

Plaintiffs' characterization of "Premium Cable" and "Basic Cable."


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allegations of Paragraph 59, which are based on an unidentified "studies." Cox denies

each and every remaining allegation in Paragraph 59.

60. Denied.

61. Denied.

62. Cox states that Paragraph 62 states legal conclusions regarding "switching

costs," which do not require a response. Cox denies each and every remaining allegation

in Paragraph 62.

63. Cox states that Paragraph 63 states legal conclusions regarding reasonable

interchangeability which do not require a response. Cox states that Paragraph 63 refers to

a publicly available website and respectfully directs the Court to the cited website for the





complete and accurate language and context. Cox is without sufficient information to

admit or deny the truth of the remaining allegations in Paragraph 64 that pertain to third

parties. Cox denies each and every remaining allegation in Paragraph 64.



accurate language and context. Cox denies each and every remaining allegation in

Paragraph 65.


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Paragraph 66.



68. Cox states the Paragraph 68 states legal conclusions regarding alleged

barriers to entry which do not require a response. Notwithstanding, Cox denies that cable

MVPDs or other MVPDs face "significant barriers to entry." Cox states that Paragraph 68

purports to refer to a publicly available government document and respectfully directs the

Court to the full report for the complete and accurate language and context. Cox denies

each and every remaining allegation in Paragraph 68.

69. Cox states the Paragraph 69 states legal conclusions regarding alleged

barriers to entry which do not require a response. Cox states that Paragraph 69 purports to

refer to a publicly available government document and respectfully directs the Court to

the full report for the complete and accurate language and context. Cox denies each and

every remaining allegation in Paragraph 69, including Plaintiffs' characterization of

"Premium Cable."

70. Denied.

71. Denied.


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72. Cox denies the allegations in Paragraph 72 to the extent they pertain to

Cox. Cox is without sufficient information to admit or deny the truth of the remaining


73. Cox denies that the franchising process is a barrier to entry. Cox is without

sufficient information to admit or deny the truth of the allegations of Paragraph 73 that

are based on unspecified FCC findings.

74. Cox states that Paragraph 74 states legal conclusions regarding alleged

"entry barriers" that do not require a response. Cox denies each and every allegation in

Paragraph 74 to the extent they pertain to Cox. Cox is without sufficient information to

admit or deny the truth of the allegations in Paragraph 74 that pertain to third parties.

75. Cox states that Paragraph 75 states legal conclusions regarding alleged

"entry barriers" that do not require a response. Cox denies each and every allegation in

Paragraph 75 to the extent they pertain to Cox. Cox is without sufficient information to

admit or deny the truth of the remaining allegations in Paragraph 75 that pertain to third

parties.

76. Cox states that Paragraph 76 states legal conclusions, including conclusions

regarding "substantial entry barriers," "substitutes," and "market shares" that do not

require a response. Cox denies each and every allegation in Paragraph 76 to the extent

they pertain to Cox. Cox is without sufficient information to admit or deny the truth of

the remaining allegations in Paragraph 76 that pertain to third parties.




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79. Cox states that Paragraph 79 purports to refer to a publicly available public

filing and respectfully directs the Court to the full cited filing for the complete and


Paragraph 79.




Paragraph 80.

81. Cox states that Paragraph 81 states legal conclusions regarding reasonable

interchangeability, market share, and economic power that do not require a response.

Notwithstanding, Cox denies each and every allegation in Paragraph 81.

82. Cox states that the allegations in Paragraph 82 purport to rely on publicly

available filings, and respectfully directs the Court to the cited filings for the complete

and accurate facts, language, and context. Cox denies each and every remaining



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83. Cox states that Paragraph 83 states legal conclusions regarding "sufficient

economic power" and "illegal" tying which do not require a response. Notwithstanding,

Cox denies that it has "sufficient economic power" in all of the areas in which it

operates. Cox denies that it has engaged in actions that constitutes an "illegal tie." Cox

denies each and every remaining allegation in Paragraph 83.

84. Cox states that Paragraph 84 states legal conclusions regarding relevant

markets, "sufficient economic power," and "illegal" tying which do not require a

response. Notwithstanding, Cox denies that it has a "staggering share" of the potential

subscribers in the areas in which it operates even if satellite MVPD was considered part

of the "relevant market." Cox denies that it has engaged in activity that constitutes an

illegal tie. Cox denies each and every remaining allegation in Paragraph 84.

85. Cox states that Paragraph 85 states legal conclusions regarding "economic

power" which do not require a response. Notwithstanding, Cox denies that it has

"economic power" over the provision of "cable MVPD." Cox denies that it has power

over both "Basic Cable" and "Premium Cable." Cox denies each and every remaining

allegation in Paragraph 85, including Plaintiffs' characterization of "Basic Cable" and

"Premium Cable."

86. Cox states that Paragraph 86 states a legal conclusion that the relevant

geographic market is the areas in which Cox provides "Premium Cable" in its Oklahoma

City Market which does not require a response. Notwithstanding, Cox denies each and

every allegation in Paragraph 86, including Plaintiffs' characterization of "Premium

Cable."


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87. Cox states that Paragraph 87 states a legal conclusion regarding sufficient

market power to impose an unlawful tie that does not require a response.

Notwithstanding, Cox denies each and every allegation in Paragraph 87.




Paragraph 88.

89. Cox states that Paragraph 89 states legal conclusions regarding "economic

power to impose a tie" and geographic market that do not require a response.

Notwithstanding, Cox denies that it has economic power. Cox denies that it has engaged

in activity that constitutes a tie. Cox denies that "all of the areas in which it operates" is a

relevant geographic market. Cox denies each and every remaining allegation in Paragraph

89.

Coxs Illegal Tie Affects a Not Insubstantial Amount of Commerce In The Market For Set-Top Boxes


characterization of "Premium Cable subscribers."

91. Denied.

92. Cox states that Paragraph 92 states a legal conclusion that Cox has

engaged in an illegal tie that does not require a response. Notwithstanding, Cox denies

that it has engaged in activity that constitutes an illegal tie, including taking efforts to

control the provision of set-top boxes. Cox denies each and every remaining allegation


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in Paragraph 92 to the extent that they pertain to Cox. Cox is without sufficient

information to admit or deny the truth of the remaining allegations in Paragraph 92 that

pertain to the actions and motivations of third parties.

93. Denied.

94. Denied.

95. Cox states that Paragraph 95 states legal conclusions regarding "illegal

tying practices" that do not require a response. Notwithstanding, Cox denies that it has

engaged in activity that constitutes illegal tying. Cox denies each and every remaining

allegation to the extent they pertain to Cox. Cox is without sufficient information to

admit or deny the truth of the remaining allegations in Paragraph 95 that pertain to the

actions of third parties.

Coxs Illegal Tie Affects A Not Insubstantial Amount of Interstate Commerce

96. Cox admits that it provides cable service to customers in the United States.

Cox denies each and every remaining allegation in Paragraph 96.

97. Cox denies that customers subscribe to "Cox's Premium Cable services."

Cox denies each and every remaining allegation in Paragraph 97, including Plaintiffs'

characterization of "Premium Cable services."

98. Denied.

CLASS ACTION ALLEGATIONS

99. Denied.

100. Cox denies the existence of a class or the appropriateness of certification of

a class.


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101. Cox states that Paragraph 101 states a legal conclusion regarding

numerosity which does not require a response. Notwithstanding, Cox denies each and

every allegation in Paragraph 101.

102. Cox states that Paragraph 102 states legal conclusions regarding

commonality and predominance that do not require a response. Notwithstanding, Cox

denies each and every allegation in Paragraph 102.

103. Cox states that Paragraph 103 states legal conclusions regarding typicality

that do not require a response. Notwithstanding, Cox denies each and every allegation in

Paragraph 103.

104. Cox states that Paragraph 104 states legal conclusions regarding adequacy


Paragraph 104.

105. Cox states that Paragraph 105 states legal conclusions regarding superiority


Paragraph 105.

106. Cox admits that the Federal Courts have experience with class actions. Cox

denies each and every remaining allegation in Paragraph 106.

COUNT I

(Violation of Section 1 of the Sherman Act for Unlawful Tying)

107. Cox repeats and incorporates by reference its responses to Paragraphs 1

through 106.


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108. Cox states that Paragraph 108 purports to refer to Federal statutes and

respectfully directs the Court to the full text of the cited statutes for the complete and

accurate language and context.

109. Cox states that the Plaintiffs' claims speak for themselves, but denies that

there is any basis for relief or that there is a class. Cox denies that it engaged in any

actions that violated the Sherman Act.

110. Denied.

111. Denied.

112. Denied.

113. Denied.

114. Denied.

115. Denied.

116. Denied.

117. Denied.

118. Denied.

COUNT II (Violation of Oklahoma Antitrust Reform Act)


through 118.

120. Denied.

121. Denied.


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COUNT III (Unjust Enrichment)


through 121.

123. Denied.

124. Denied.

125. Denied. Affirmative Defenses

By asserting the defenses set forth below, Cox does not allege or admit that it has

the burden of proof and/or the burden of persuasion with respect to any of these matters

or that Plaintiffs are relieved of their burden to prove each and every element of its

claims and damages, if any, to which it is entitled. As and for its affirmative defenses,

Cox states as follows:

First Affirmative Defense

The Complaint fails to state a claim upon which relief may be granted.

Second Affirmative Defense

Plaintiffs lack standing to bring claims for antitrust violations because, among

other reasons, they have failed to plead facts showing a direct causal connection between

the challenged conduct and their alleged injury, and because Plaintiffs have not suffered

antitrust injury.

Third Affirmative Defense

Plaintiffs lack standing to bring this case on behalf of persons other than

themselves.


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Fourth Affirmative Defense

Plaintiffs' claims are barred, in whole or in part, because such claims are not

cognizable under the Sherman Act, Federal law, or the law of any state.

Fifth Affirmative Defense

Plaintiffs' claims are barred, in whole or in part, because the complained-of

conduct is required by, regulated by, or approved by Federal Law and/or the rules and

policies of the Federal Communications Commission and state cable franchising

authorities.

Sixth Affirmative Defense

Plaintiffs claims are barred by the filed rate doctrine.

Seventh Affirmative Defense

Plaintiffs' claims are barred, in whole or in part, because Plaintiffs have suffered

no injury to a legally protected or cognizable interest and no damages as a result of the

matters alleged in the Complaint.

Eighth Affirmative Defense

Plaintiffs' claims are barred, in whole or in part, because the conduct complained

of was lawful, justified, constitutes bona fide business competition, is pro-competitive,

and was carried out in furtherance of legitimate business interests.

Ninth Affirmative Defense

Plaintiffs' claims are barred, in whole or in part, because there has been no injury

to competition either in fact or as alleged in the Complaint.


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Tenth Affirmative Defense

Plaintiffs' claims are barred, in whole or in part, because Plaintiffs have failed to

define a proper geographic and/or product market for their claims.

Eleventh Affirmative Defense

Plaintiffs fail to allege facts sufficient to support certification of a Class under

Fed. R. Civ. P. 23.

Twelfth Affirmative Defense

Any damages recovered by Plaintiffs from Cox must be limited by the applicable

statutory ceilings on recoverable damages.

Thirteenth Affirmative Defense

Plaintiffs' claims are barred, in whole or in part, by the relevant statutes of

limitations, statutes of repose, and/or laches.

Fourteenth Affirmative Defense

Plaintiffs' claims are barred, in whole or in part, by waiver or estoppel.

Fifteenth Affirmative Defense

Any damages suffered by Plaintiffs as alleged in the Complaint are solely and

proximately caused by the operation of external economic factors and/or forces in the

marketplace over which Cox had no control, and not by any act or omission attributable

to Cox.

Sixteenth Affirmative Defense

Plaintiffs' claims are barred, in whole or in part, because Plaintiffs failed to take

appropriate and necessary steps to mitigate damages.


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Seventeenth Affirmative Defense

Plaintiffs' claims for damages are barred, in whole or in part, because their

alleged damages are speculative, cannot be ascertained with reasonable certainty, and

are incapable of proof.

Eighteenth Affirmative Defense At all times relevant, Cox acted in good faith and without knowledge of any

wrongful acts or intents.

Cox reserves the right to raise such other and further defenses as may become

applicable as the result of discovery in this matter, or the presentation of testimony at

trial.

Respectfully Submitted,

s/ D. Kent Meyers________________________ D. Kent Meyers, OBA #6168 Elizabeth Barnett LaBauve, OBA #21102 CROWE & DUNLEVY, P.C. 20 North Broadway Ave., Suite 1800 Oklahoma City, OK 73102 Telephone: (405) 235-7729 Facsimile: (405) 272-5245 E-mail: [email protected] [email protected]

Bruce D. Sokler (pro hac vice) Robert G. Kidwell (pro hac vice) Helen Gerostathos Guyton (pro hac vice) MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C. 701 Pennsylvania Ave. NW, Suite 900 Washington, DC 20004 Telephone: (202) 434-7303 Facsimile: (202) 434-7400 E-mail: [email protected] [email protected] [email protected]

Counsel for Defendant Cox Communications, Inc.


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CERTIFICATE OF SERVICE

I hereby certify that on this 23rd day of January, 2013, I electronically transmitted the attached document to the Court Clerk using the ECF System for filing. Based on the records currently on file, the Clerk of Court will transmit a Notice of Electronic Filing to the following ECF registrants:

Cynthia G. St. Amant A. Daniel Woska Allen Kanner Jason H. Kim Joe R. Whatley Jr. Michael J. Blaschke Rachel Lawrence Mor S. Randall Sullivan Todd M. Schneider Joseph C. Peiffer Garrett W. Wotkyns

Wilfred K. Wright Jr. Drew T. Legando Jack Landskroner Michael C. McKay Adam Wolf Alan McQuarrie Mansfield Benjamin D. Reichard Gregory Pius DiLeo Jeffrey P. Berniard

s/ D. Kent Meyers________________________ D. Kent Meyers


Documents

Cox Response (Uhl vs. Cox)