Contract analysis

From: Elaine Forsythe <eforsythe@calderwoodharkness.com> To: Catherine Ng <catherine.ng@northgatenetworks.com> Cc: James Whitford <james.whitford@northgatetelecom.co.uk> Date: Tue, 14 Mar 2023 04:47:00 -0000 Subject: Ridgepoint Communications Inc. v. Northgate Networks America Inc. et al., Case No. 1:22-cv-01487-CMW (E.D. Va.) — Court Grants Motion to Stay

I am pleased to report that Judge Claudia M. Wentworth of the U.S. District Court for the Eastern District of Virginia, Alexandria Division, this afternoon issued an order granting Northgate's Motion to Stay in the above-captioned matter. All proceedings in the district court action are stayed pending resolution of the parallel FCC proceeding, Docket No. WC-23-0042, In the Matter of Northgate Networks America Inc. —

The Court invoked the primary jurisdiction doctrine, finding that the FCC possesses specialized expertise over interconnection disputes arising under Sections 251 and 252 of the Communications Act. Key terms of the order are as follows:

- The stay remains in effect until the FCC proceeding is resolved — that is, until issuance of a final FCC order or further order of the Court. - The parties are required to file joint status reports every 90 days updating the Court on the progress of the FCC proceeding. - All district court activity is effectively paused: no discovery, no further briefing, and no scheduling conference while the stay is in place.

**Motion to Dismiss — Denied Without Prejudice**

The Court denied Northgate's Motion to Dismiss (filed November 14, 2022) without prejudice. Importantly, this is not an adverse ruling on the substance of our arguments. The Court simply elected not to reach the merits of the Rule 12(b)(6) motion while staying the case, notwithstanding that oral argument was held on February 22 and the motion had been taken under advisement. Northgate may renew the Motion to Dismiss

The practical effect is that the district court litigation is now dormant and the focus of the defense shifts to the FCC proceeding before ALJ Robert Fenwick (Docket WC-23-0042). That proceeding is in its early stages, and we expect ALJ Fenwick to issue a scheduling order in the coming months. Coordination between the FCC defense and the district court strategy will be important, as both proceedings involve substanti

A few housekeeping and coordination items:

1. **Internal Notifications.** I would recommend that Patrick Salazar (Chief Regulatory Officer) and Diane Okoro (U.S. President) be informed of today's development at your earliest convenience. We are happy to assist with any internal briefing materials you may need.

2. **Dormancy Management and Litigation Hold.** We will prepare and circulate an internal dormancy management protocol to ensure continued litigation hold compliance across all 23 custodians and preservation of the approximately 1.2 million documents collected to date by Candela discovery Solutions Inc. The stay does not relieve any party of its preservation obligations, and we want to make certain there is no lapse.

3. **Joint Status Reports.** The first joint status report will be due in approximately 90 days. Aaron Liu will coordinate with opposing counsel, Daniel Stoyanov at Hargrove, Winslow & Burke LLP, on the preparation and filing of that report.

4. **Monitoring.** We are mindful that Ridgepoint and its lead counsel, Victoria Hargrove, may seek to accelerate proceedings before the FCC or, in the alternative, move to vacate the stay if they perceive an opportunity to do so. We will monitor closely for any such developments.

Please find attached a copy of the Court's signed order granting the stay (Order Granting Stay — 1-22-cv-01487-CMW.pdf).

This is a positive procedural development. The stay buys Northgate meaningful time and positions the defense favorably by channeling the interconnection issues to the FCC's specialized forum before the district court takes up the antitrust claims. There is significant work ahead on the FCC proceeding, but we are in a stronger posture today than we were yesterday.

I would welcome the opportunity to schedule a call with you — and with James, if his schedule permits given the time difference — to discuss strategy for the FCC proceeding and any questions about the Court's order. Please let me know what times work over the next day or two.

**Elaine Forsythe** Partner, Antitrust & Competition Calderwood & Harkness LLP 1200 K Street NW, Suite 900 Washington, D.C. 20005 Tel: (202) 555-4180 Email: eforsythe@calderwoodharkness.com

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