CALDERWOOD & HARKNESS LLP Attorneys at Law
PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT
April 10, 2023
INTERNAL MEMORANDUM
FROM: Aaron Liu, Lead Associate, Antitrust & Competition Practice Group, Calderwood & Harkness LLP
REVIEWED BY: Elaine Forsythe, Responsible Partner, Antitrust & Competition Practice Group, Calderwood & Harkness LLP
TO: Litigation Team — Howard Bellamy (Billing Partner), Monica Reyes (Working Associate)
CC: File (Engagement Reference No. C&H-2022-ATR-00419)
RE: Dormancy Management Protocols — Ridgepoint Communications Inc. v. Northgate Networks America Inc. et al., Case No. 1:22-cv-01487-CMW (E.D. Va.); FCC Docket No. WC-23-0042
CONFIDENTIALITY NOTICE: This memorandum constitutes attorney work product prepared in anticipation of litigation and is protected by the attorney-client privilege and the work product doctrine. Distribution is limited to members of the Calderwood & Harkness LLP engagement team and authorized representatives of Northgate Telecommunications PLC and Northgate Networks America Inc. This memorandum may not be disclosed, copied, or distributed to any person or entity outside of the authorized distribution list without the prior written consent of Elaine Forsythe. If you have received this memorandum in error, please notify Aaron Liu immediately and destroy all copies.
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I. PURPOSE AND BACKGROUND
A. Purpose of the Memorandum
This memorandum sets forth the internal protocols and procedures that will govern the management of the Ridgepoint Communications Inc. v. Northgate Networks America Inc. et al. matter during the period of dormancy created by the court-ordered stay entered by the Honorable Claudia M. Wentworth on March 14, 2023. While the district court litigation is presently stayed, the obligations attendant to this engagement have not ceased, and the team must remain vigilant in several critical areas throughout the dormancy period.
The primary objectives of this memorandum are threefold. First, it ensures that Northgate's preservation obligations under the litigation hold are continuously met, rigorously monitored, and properly documented, notwithstanding the fact that active discovery has not yet commenced. Second, it establishes a framework for tracking milestones in the parallel FCC proceeding (Docket No. WC-23-0042), which is the predicate event for the stay and the resolution of which will determine the timing and manner of reactivation of the district court case. Third, it provides protocols for maintaining regular client reporting, managing the engagement budget during a period of reduced activity, coordinating with outside experts and consultants, and ensuring that the litigation team remains prepared for rapid reactivation of the district court litigation when circumstances warrant.
In essence, this memorandum serves as the team's operating manual during the stay period. All team members should familiarize themselves with the protocols described herein and adhere to the schedules, deadlines, and escalation procedures set forth below. This is a living document and will be updated as circumstances evolve; revisions will be tracked and distributed to the engagement team.
B. Procedural Posture Giving Rise to Dormancy
A brief recitation of the procedural history is necessary to contextualize the current posture of the case and the reasons for the dormancy protocols established herein.
On September 19, 2022, Ridgepoint Communications Inc. ("Ridgepoint") filed its Complaint in the United States District Court for the Eastern District of Virginia, Alexandria Division, before the Honorable Claudia M. Wentworth. The Complaint alleges monopolization under Section 2 of the Sherman Act, 15 U.S.C. § 2, claiming that Northgate Networks America Inc. ("Northgate America") and its parent company, Northgate Telecommunications PLC ("Northgate Group" or "Northgate PLC"), engaged in an anticompetitive refusal to deal by denying Ridgepoint access to colocation and interconnection services at fourteen facilities in the Philadelphia–Baltimore–Washington, D.C. corridor on commercially reasonable terms, and by imposing allegedly exclusionary conditions through the Wholesale Access Policy ("WAP") adopted in January 2020. Ridgepoint seeks treble damages under 15 U.S.C. § 15 in the amount of $381 million (i.e., $127 million pre-trebling) plus injunctive relief.
Calderwood & Harkness LLP entered its appearance on behalf of both Northgate Telecommunications PLC and Northgate Networks America Inc. on October 3, 2022. The firm was engaged pursuant to the existing outside counsel framework agreement with Northgate Group, and this matter is maintained under Engagement Reference No. C&H-2022-ATR-00419.
On November 14, 2022, Northgate filed a Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing, among other things, that Ridgepoint's refusal-to-deal claim failed to satisfy the exacting requirements of Harborview Holdings Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398 (2004), and Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585 (1985), and that the Complaint failed to allege a plausible relevant market. The Court heard oral argument on the Motion to Dismiss on February 22, 2023.
In a parallel development, on February 7, 2023, Ridgepoint filed a complaint with the Federal Communications Commission (Docket No. WC-23-0042), alleging that Northgate America violated its interconnection obligations under Sections 251 and 252 of the Communications Act of 1934, as amended by the Telecommunications Act of 1996, 47 U.S.C. §§ 251, 252. The FCC complaint was assigned to Administrative Law Judge Robert Fenwick. The regulatory claims in the FCC proceeding overlap substantially with the factual predicate of the district court antitrust action, although the legal theories and applicable standards differ.
In light of the FCC filing, Northgate filed a Motion to Stay the district court proceedings on March 6, 2023, invoking the primary jurisdiction doctrine. The motion argued that the FCC possesses specialized expertise in the technical and regulatory issues underlying Ridgepoint's interconnection claims, that the FCC proceeding would likely resolve factual questions relevant to the antitrust action, and that a stay would promote judicial economy and avoid the risk of inconsistent determinations.
On March 14, 2023, Judge Wentworth entered an Order granting the stay of all proceedings in Case No. 1:22-cv-01487-CMW pending resolution of FCC Docket No. WC-23-0042. Notably, the Court denied Northgate's Motion to Dismiss without prejudice, expressly preserving Northgate's right to renew the motion after the stay is lifted. The stay order requires the parties to file joint status reports with the Court every ninety (90) days, informing the Court of the progress of the FCC proceeding and whether any party seeks to modify or lift the stay.
As of the date of this memorandum, the district court case is dormant by operation of the stay order. The FCC proceeding, however, is ongoing and has progressed through its own procedural schedule, as detailed in Section IV below. The dormancy of the district court case does not relieve the parties or counsel of their ongoing obligations, and this memorandum is designed to ensure that those obligations are faithfully discharged.
C. Key Client Contacts
The following individuals have been designated as the key client contacts for this engagement. All team members should be familiar with the appropriate contact for each category of matter:
Catherine Ng U.S. Deputy General Counsel Northgate Networks America Inc. 8200 Dulles Corner Boulevard, Suite 1100 Tysons Corner, VA 22182
Ms. Ng serves as the primary day-to-day client contact for all aspects of the engagement, including litigation strategy, document preservation coordination, and operational matters related to the U.S. subsidiary. All routine communications and monthly informal updates should be directed to Ms. Ng in the first instance.
James Whitford Group General Counsel Northgate Telecommunications PLC 14 Broadwall Lane London SE1 9PQ, United Kingdom
Mr. Whitford is the principal contact for board-level and strategic matters, including quarterly reporting, settlement authority, and decisions with cross-border implications for the Northgate Group. Mr. Whitford's involvement should be reserved for matters of strategic significance, as distinct from day-to-day case management.
Patrick Salazar Chief Regulatory Officer Northgate Telecommunications PLC
Mr. Salazar is the designated contact for all matters related to the FCC proceeding, including regulatory strategy, coordination with the Torrence Policy Group, and any FCC policy developments that may affect Northgate's competitive positioning.
Diane Okoro U.S. President Northgate Networks America Inc.
Ms. Okoro is to be included on ad hoc reporting in connection with any reactivation trigger events and on matters that may affect Northgate America's business operations, including any changes at the fourteen disputed facilities.
II. LITIGATION HOLD COMPLIANCE AND DOCUMENT PRESERVATION
The preservation of documents and electronically stored information ("ESI") is among the most critical obligations during the dormancy period. The existence of a stay does not suspend the parties' duty to preserve relevant evidence, and any failure to maintain the integrity of the litigation hold could expose Northgate to sanctions, adverse inference instructions, or other prejudicial consequences upon reactivation. The protocols set forth in this section are designed to ensure continuous, auditable compliance with Northgate's preservation obligations.
A. Scope of the Existing Litigation Hold
The litigation hold in this matter was originally implemented on September 21, 2022, two days after Ridgepoint filed its Complaint. The hold was implemented through written hold notices issued to all identified custodians, accompanied by instructions regarding their obligations to preserve all potentially relevant documents and ESI.
As of the date of this memorandum, twenty-three (23) custodians have been identified across Northgate Networks America Inc. and Northgate Telecommunications PLC (Group). These custodians were selected based on their roles and responsibilities in connection with the subject matter of the litigation, including individuals with knowledge of or involvement in the following topic areas:
• Ridgepoint's interconnection and colocation requests at the fourteen disputed facilities;
• The Wholesale Access Policy ("WAP"), adopted in January 2020, including the development, approval, and implementation of that policy and its terms, including the $5 million per year minimum revenue commitment threshold;
• The fourteen disputed facilities in the Philadelphia–Baltimore–Washington, D.C. corridor (listed in full in Section II.C below);
• Communications with Ridgepoint Communications Inc. and its representatives, including any negotiations, requests for proposals, complaints, or operational correspondence;
• The prior Master Interconnection Agreement between Northgate and Ridgepoint, dated June 15, 2015, which expired on June 14, 2020 by its own terms;
• The month-to-month holdover arrangement currently in effect at the three northern Virginia facilities (Ashburn and Reston locations);
• Capacity utilization data, colocation availability assessments, and capital expenditure planning for the fourteen disputed facilities;
• Any internal analyses of competitive carrier access policies, including benchmarking studies, competitive intelligence reports, or strategic planning documents relating to wholesale access.
Document collection was managed by Candela discovery Solutions Inc. ("Candela"), the engagement's e-discovery vendor. The Candela project manager assigned to this matter is Kenji Takahashi, who is located at Candela's New York office at 200 Park Avenue South, 14th Floor, New York, NY 10003. Under Candela's supervision, approximately 1.2 million documents have been collected and processed from the twenty-three custodians' email accounts, shared drives, local devices, and relevant enterprise systems. Of the collected universe, approximately 87,000 documents have been identified as potentially responsive to anticipated discovery based on keyword culling, date filtering, and preliminary categorization. These documents reside on the Concordia Review™ platform maintained by Candela and are available for review upon reactivation.
B. Ongoing Hold Compliance Monitoring
The following protocols govern the ongoing monitoring and enforcement of the litigation hold during the dormancy period:
Quarterly Hold Reminders. Monica Reyes is responsible for issuing quarterly reminder notices to all twenty-three (23) identified custodians, reaffirming their preservation obligations under the litigation hold. Each reminder notice shall be sent via email with read-receipt confirmation enabled, and shall include a brief summary of the custodian's obligations, a reminder of the categories of documents and ESI subject to the hold, and instructions for contacting the litigation team with any questions or concerns. Copies of each reminder notice, together with records of read-receipt confirmations, shall be filed in the matter management system under the "Litigation Hold — Compliance" subfolder. In the event that a custodian fails to acknowledge receipt of a reminder notice within seven (7) business days, Monica Reyes shall escalate the matter to Aaron Liu, who will coordinate with Catherine Ng to ensure compliance.
Custodian Departures and Role Changes. Catherine Ng has agreed to promptly notify Calderwood & Harkness LLP of any custodian departures from the Northgate organization, transfers to positions unrelated to the subject matter of the hold, or material changes in job function that could affect the custodian's access to or control over relevant documents and ESI. Upon receiving notification of any such event, Aaron Liu shall coordinate with Kenji Takahashi at Candela to arrange for the imaging of the departing or transferring custodian's devices (including laptops, mobile devices, and any locally stored files) and to ensure that all ESI within the custodian's control is preserved before the custodian's user accounts are deactivated or equipment is reallocated. This is a time-sensitive obligation, and all reasonable efforts shall be made to complete the preservation process before the custodian's departure date. Written confirmation of the completion of preservation steps shall be obtained from Candela and filed in the matter management system.
New Custodian Identification. The litigation team has an ongoing obligation to assess whether any new Northgate personnel have assumed responsibilities relevant to the subject matter of the litigation hold. This assessment should be conducted in connection with each quarterly hold reminder cycle and in response to any organizational changes reported by Catherine Ng. If a new custodian is identified, the litigation hold shall be extended to that individual through the issuance of a written hold notice, and the new custodian's identity and role shall be documented in the custodian list maintained in the matter file. Where appropriate, Candela shall be engaged to collect the new custodian's ESI.
Periodic Compliance Audits. A formal compliance audit of the litigation hold shall be conducted no less frequently than every six (6) months. The purpose of each audit is to verify the continued integrity of the preservation program and to identify and remediate any compliance gaps before they result in spoliation or other adverse consequences. Each audit should verify the following:
(i) All identified custodians have acknowledged receipt of the most recent hold reminder notice;
(ii) No auto-deletion policies, records management purges, or other document destruction activities have been applied to documents or ESI within the scope of the hold;
(iii) Any system migrations undertaken by Northgate during the relevant period — including, without limitation, email platform changes, server upgrades, cloud migrations, and changes to document management systems — have preserved the integrity of held data and have not resulted in the loss or alteration of any documents or ESI subject to the hold;
(iv) Backup tapes, archived data, and any other legacy storage media identified during the initial hold implementation remain intact and accessible.
The most recent compliance audit was conducted in August 2023, and the results were documented in a separate Litigation Hold Compliance Audit Memorandum maintained in the matter file. The next audit is scheduled for approximately February 2024. Aaron Liu and Monica Reyes are jointly responsible for conducting each audit, with support from Candela as needed for verification of ESI integrity and platform status.
Candela Coordination. Kenji Takahashi at Candela discovery Solutions is responsible for maintaining the existing document collection on the Concordia Review™ platform throughout the dormancy period. No new document collections are anticipated during dormancy absent the occurrence of a triggering event (such as a custodian departure, a material change in the scope of the hold, or reactivation of the litigation). Monthly hosting and maintenance fees for the Concordia Review™ platform are tracked under the engagement budget and are reported as part of the periodic billing summaries provided to the client. As of the date of this memorandum, total fees paid to Candela discovery Solutions Inc. amount to $294,000. The team should monitor these ongoing hosting costs and assess periodically whether any cost-saving measures are available without compromising the integrity of the preserved data.
Remediation Protocol. If any compliance gap is identified during an audit or at any other time, Aaron Liu shall immediately notify Elaine Forsythe and Catherine Ng. The nature and extent of the gap shall be assessed, and remediation steps shall be determined and implemented as promptly as practicable. All remediation steps shall be documented in writing and retained in the matter file. In the event of a significant compliance failure — such as the inadvertent destruction of documents or ESI subject to the hold — the team shall consider whether supplemental disclosures to opposing counsel or the Court are required, in consultation with Elaine Forsythe.
C. The 14 Disputed Facilities — Special Preservation Considerations
The fourteen facilities at issue in this litigation are central to Ridgepoint's claims and to Northgate's defenses. All fourteen facilities are located within the Philadelphia–Baltimore–Washington, D.C. corridor and are the sites at which Ridgepoint alleges it was denied interconnection and colocation access on commercially reasonable terms. The facilities are as follows:
1. 401 N. Broad Street, Philadelphia, PA 19108
2. 1500 Spring Garden Street, Philadelphia, PA 19130
3. 100 Delancey Place, Cherry Hill, NJ 08034
4. 220 S. Warren Street, Trenton, NJ 08608
5. 700 E. Pratt Street, Baltimore, MD 21202
6. 1 W. Fayette Street, Baltimore, MD 21201
7. 33 S. Gay Street, Baltimore, MD 21202
8. 9221 Corporate Boulevard, Rockville, MD 20850
9. 1200 New Hampshire Avenue NW, Washington, D.C. 20036
10. 600 New Jersey Avenue NW, Washington, D.C. 20001
11. 44755 Prentice Drive, Ashburn, VA 20147
12. 21571 Beaumeade Circle, Ashburn, VA 20147
13. 1807 Michael Faraday Court, Reston, VA 20190
14. 8100 Boone Boulevard, Tysons Corner, VA 22182
Special attention must be given to the preservation of the following categories of records relating to these fourteen facilities during the dormancy period:
• Capacity utilization records, including monthly and quarterly reports reflecting the percentage of available colocation space, power capacity, and cross-connect capacity utilized at each facility;
• Colocation availability logs, including records of colocation requests received from third-party carriers, the disposition of those requests, and any waitlists maintained;
• Capital expenditure documents, including budgets, proposals, and approvals relating to expansions, upgrades, or modifications at any of the fourteen facilities.
These categories of records are particularly significant because Northgate's defense relies in part on the assertion that the fourteen disputed facilities operate at or above 85% capacity utilization, rendering it commercially unreasonable to accommodate Ridgepoint's colocation demands without displacing existing customers or undertaking capital expenditures that exceed the economic benefit of the requested arrangement. Any erosion in the evidentiary record supporting this defense position could have material adverse consequences for Northgate's case.
Additionally, any facility modifications, expansions, decommissioning, or capacity changes during the dormancy period must be documented and promptly reported to the litigation team. Changes of this nature could be relevant to the refusal-to-deal defense, the commercial reasonableness of the WAP, and the question of whether Northgate's conduct reflected a legitimate business justification. If, for example, a facility that Northgate claimed was at capacity subsequently undergoes expansion or experiences a significant decline in utilization, Ridgepoint could seize on that development to undermine Northgate's defense narrative. The litigation team must be positioned to address any such developments proactively rather than reactively.
Similarly, any changes to the Wholesale Access Policy itself — including modifications to the $5 million per year minimum revenue commitment threshold, the addition or removal of eligible services, changes in pricing methodology, or any waivers or exceptions granted to other carriers — must be preserved and promptly reported to the litigation team. Catherine Ng and Patrick Salazar should be reminded of this obligation in connection with the quarterly hold reminder process.
D. Holdover Arrangement — Ongoing Documentation
Ridgepoint continues to occupy three (3) colocation spaces at Northgate facilities in northern Virginia under a month-to-month holdover arrangement. The holdover arrangement arose upon the expiration of the prior Master Interconnection Agreement ("MIA") between Northgate and Ridgepoint, which was dated June 15, 2015 and expired by its own terms on June 14, 2020. The parties did not negotiate a renewal of the MIA, and Ridgepoint's continued occupancy of the three northern Virginia facilities has been governed by the holdover provisions since that time.
The financial terms of the holdover arrangement are as follows:
• Current monthly rate per facility: $14,400
• Prior contractual rate under the expired MIA: $12,000 per month per facility
• Holdover premium per facility: $2,400 per month (reflecting a 120% premium over the expired contractual rate)
• Aggregate holdover premium (three facilities): $7,200 per month, or $86,400 per year
• Aggregate monthly holdover payments (three facilities): $43,200
The holdover arrangement is a recurring source of factual relevance to the litigation, as Ridgepoint has characterized the holdover premium as evidence of Northgate's exploitative conduct, while Northgate contends that the premium is commercially standard and reflects the increased risk and administrative burden associated with a month-to-month arrangement in the absence of a long-term contractual commitment.
During the dormancy period, any changes in the holdover arrangement should be immediately flagged to the litigation team. Examples of reportable events include, without limitation: Ridgepoint providing notice of its intent to vacate any of the three facilities; disputes arising from rate adjustments or billing; new requests by Ridgepoint for additional colocation space or services; and any communications between Northgate operations personnel and Ridgepoint regarding the holdover terms. Catherine Ng has been advised of this reporting requirement.
III. CLIENT REPORTING OBLIGATIONS
Maintaining clear, consistent, and well-documented communications with the client is essential during the dormancy period. Although the pace of the district court litigation has slowed, the client's need for visibility into the status of the matter, the FCC proceeding, and the engagement budget remains undiminished. The following reporting protocols shall apply.
A. Periodic Status Reports to Northgate
Quarterly Reports to Group General Counsel. Elaine Forsythe is responsible for preparing and sending a quarterly client report and board update letter to James Whitford, Group General Counsel, Northgate Telecommunications PLC, in London. These quarterly reports serve a dual purpose: they provide the Northgate Group board with the information necessary to discharge its oversight responsibilities, and they create a documented record of counsel's reporting and advice. Each quarterly report shall include the following components:
• A summary of the status of the district court proceedings, confirming that the case remains dormant under the March 14, 2023 stay order and describing the content and outcome of any joint status reports filed during the reporting period;
• A report on the status and any material developments in FCC Docket No. WC-23-0042 before Administrative Law Judge Robert Fenwick, including the procedural posture, any substantive rulings, and the anticipated timeline for resolution;
• A comprehensive budget status report summarizing total fees and expenses incurred across all vendors through the end of the reporting period, including a breakdown by vendor and by pre-stay versus dormancy-period expenditures. As of the date of this memorandum, total fees and expenses are as follows:
• A strategic outlook and risk assessment, including an evaluation of the likely outcomes and timing of the FCC proceeding, the potential implications for the district court case, and any changes in the risk profile of the matter;
• A description of anticipated next steps and the projected timeline for key events.
Monthly Informal Updates to Catherine Ng. Aaron Liu is responsible for providing informal monthly updates to Catherine Ng, U.S. Deputy General Counsel, on any material developments in the matter. These updates may be provided by email or telephone call, depending on the nature and volume of developments in a given month. In months where no material developments have occurred, a brief email confirming the status quo is sufficient. Written summaries of any telephone calls with Ms. Ng regarding this matter shall be prepared by Aaron Liu and placed in the matter file within two (2) business days of the call.
Ad Hoc Reporting. In addition to the scheduled periodic reports, immediate reporting to Catherine Ng, James Whitford, and Diane Okoro is required upon the occurrence of any reactivation trigger event, as defined in Section V below. The ad hoc reporting protocol is designed to ensure that the client's senior leadership is informed without delay of any development that could materially affect the posture of the litigation or require strategic decision-making.
B. Joint Status Reports to the Court
Judge Wentworth's stay order of March 14, 2023 requires the parties to file joint status reports with the Court every ninety (90) days. Compliance with this filing obligation is mandatory, and failure to file a timely joint status report could result in the Court's modification or lifting of the stay, or other adverse consequences.
Aaron Liu is the primary Calderwood & Harkness attorney responsible for coordinating the preparation and filing of each joint status report. Coordination with opposing counsel is necessary, as the reports are to be filed jointly. Aaron Liu shall work with Daniel Stoyanov, the senior associate at Hargrove, Winslow & Burke LLP (900 17th Street NW, Suite 600, Washington, D.C. 20006), on the preparation of each report. Mr. Stoyanov has been Aaron Liu's counterpart for routine case administration matters.
Each joint status report shall describe the current procedural posture of FCC Docket No. WC-23-0042, including any significant developments or milestones since the last status report, and shall state whether either party seeks to modify or lift the stay. As a matter of strategy, Northgate should generally take the position in the joint status reports that the stay remains appropriate and should be maintained, absent a change in circumstances warranting a different posture. Any deviation from this position must be approved by Elaine Forsythe in consultation with Catherine Ng.
Monica Reyes is responsible for maintaining a calendar of joint status report filing deadlines. The ninety-day intervals are calculated from the date of the stay order (March 14, 2023). Automated calendar reminders shall be set for fourteen (14) days and seven (7) days before each filing deadline to provide adequate lead time for coordination with opposing counsel and internal review.
IV. FCC PROCEEDING MILESTONE TRACKING
The FCC proceeding in Docket No. WC-23-0042 is the linchpin of the dormancy period. The resolution of the FCC proceeding will, in all likelihood, determine the timing and circumstances under which the district court stay is lifted and the antitrust litigation resumes. Accordingly, close monitoring of the FCC proceeding is essential, and the team must maintain a thorough understanding of its procedural posture, substantive developments, and strategic implications at all times.
A. Current Status of FCC Docket WC-23-0042
The following is a summary of the procedural history of the FCC proceeding as of the date of this memorandum:
• February 7, 2023: Ridgepoint Communications Inc. filed its formal complaint with the Federal Communications Commission, alleging that Northgate Networks America Inc. violated its interconnection obligations under Sections 251 and 252 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 251, 252. The complaint alleges that Northgate failed to provide interconnection and colocation services at just, reasonable, and nondiscriminatory rates, terms, and conditions, and that the Wholesale Access Policy constitutes an unreasonable barrier to interconnection.
• Approximately March 2023: Northgate filed its Answer and Affirmative Defenses, denying Ridgepoint's allegations and asserting, among other things, that the WAP is commercially reasonable, that the fourteen facilities lack sufficient capacity to accommodate Ridgepoint's requests, and that Northgate has no obligation under Section 251 to provide colocation on terms dictated by Ridgepoint.
• June 12, 2023: Administrative Law Judge Robert Fenwick issued a Scheduling Order governing the procedural timeline for the proceeding, including deadlines for discovery, expert submissions, and the evidentiary hearing.
• August 28, 2023: ALJ Fenwick issued an order postponing the evidentiary hearing from its original September 2023 date to January 2024, citing FCC staffing constraints.
• January 22–24, 2024: The evidentiary hearing was held over three (3) days before ALJ Fenwick. Witnesses presented testimony on the capacity utilization of the fourteen facilities, the development and implementation of the WAP, the commercial reasonableness of the $5 million minimum revenue commitment threshold, and the competitive dynamics of the wholesale access market in the Philadelphia–Baltimore–Washington, D.C. corridor.
• March 15, 2024: Post-hearing briefs were filed by both parties.
• April 12, 2024: Reply briefs were filed by both parties.
• As of the current date: ALJ Fenwick's initial decision remains pending. No target date for the issuance of the initial decision has been communicated by the ALJ's office.
B. Key FCC Milestones to Track
The litigation team must monitor the FCC proceeding for the following key milestones, each of which has the potential to trigger reactivation of the district court litigation or to require strategic assessment and action:
Issuance of ALJ Fenwick's Initial Decision. This is the single most important milestone in the FCC proceeding from the perspective of the district court case management. The ALJ's initial decision will set forth findings of fact and conclusions of law on Ridgepoint's Section 251/252 complaint, and those findings could have significant preclusive or persuasive effect in the subsequent district court antitrust action. Upon issuance of the initial decision, the team will need to conduct an immediate assessment of the decision's implications, as described in Section V below. Whether the decision is favorable or unfavorable to Northgate, it will likely trigger consideration of whether to file a motion to lift the stay in the district court.
Any FCC Staff or Bureau-Level Action. The team should monitor for any action by the FCC's Wireline Competition Bureau — including informal guidance, staff letters, or Bureau-level orders — that may intervene in, modify, or otherwise affect the proceeding. While such actions are uncommon in the context of a formal complaint proceeding before an ALJ, they are not unprecedented, and any such development could alter the strategic calculus.
Exceptions and Appeal to the Full Commission. After ALJ Fenwick issues his initial decision, either party may file exceptions with the full Federal Communications Commission. The filing of exceptions would extend the FCC proceeding and could delay the lifting of the district court stay. The team must track the deadline for filing exceptions (typically thirty (30) days after the issuance of the initial decision, subject to extension by the Commission), monitor whether Ridgepoint files exceptions, and assess whether Northgate should file exceptions of its own. Any Commission-level action — including the grant or denial of review, the issuance of a supplemental order, or the modification of the ALJ's findings — must be tracked and analyzed.
FCC Final Order. The issuance of a final order by the full Commission, or the ALJ's initial decision becoming final by operation of time (i.e., if no exceptions are filed within the prescribed period), will likely constitute the definitive event triggering the end of the district court stay. The team should be prepared to act promptly upon the issuance of a final order, as the court may expect the parties to address the continued need for the stay shortly thereafter.
Settlement Discussions. The team should maintain awareness of any overtures from Ridgepoint or its affiliates regarding settlement of the FCC proceeding, the district court case, or both. Ridgepoint's lead outside counsel in the district court action is Victoria Hargrove of Hargrove, Winslow & Burke LLP. Ridgepoint's majority owner is Caravel Capital Partners LP, a private equity firm managed by Richard Cavanaugh. Settlement overtures may come through any of these channels, and the team should be alert to the possibility that Caravel Capital Partners may have its own strategic and financial motivations that could influence Ridgepoint's litigation posture. Any settlement communications shall be immediately escalated to Elaine Forsythe.
C. Coordination with Regulatory Advisors
Dr. Anton Berger at Torrence Policy Group LLC serves as Northgate's regulatory expert and strategic advisor on the FCC proceeding. Dr. Berger's firm is located at 7925 Jones Branch Drive, Suite 510, McLean, VA 22102, and his fees to date total $187,500.
Aaron Liu and Monica Reyes shall maintain regular coordination calls with Dr. Berger to monitor developments in the FCC proceeding and to ensure alignment between the regulatory and litigation strategies. During active phases of the FCC proceeding — such as periods when filings are due, hearings are scheduled, or substantive rulings are anticipated — the coordination calls shall occur on a biweekly basis. During quiescent periods — such as the current period while the team awaits ALJ Fenwick's initial decision — the frequency may be reduced to monthly calls.
Dr. Berger has an independent obligation to monitor the FCC's Electronic Comment Filing System ("ECFS") and other public dockets for developments relevant to this proceeding, but the team should not rely exclusively on Dr. Berger for docket monitoring. Monica Reyes shall also conduct independent weekly monitoring of the FCC ECFS for any filings, orders, or notices in Docket No. WC-23-0042, as described in the task calendar in Section X below.
Dr. Berger shall immediately notify the Calderwood & Harkness team of any ex parte filings by Ridgepoint or its counsel, any informal contacts with FCC Staff relating to the proceeding, or any policy developments — including rulemakings, notices of proposed rulemaking, or policy statements — that could affect the legal or regulatory framework applicable to the proceeding.
D. Coordination with Economic Expert
Dr. Priya Narasimhan at Ellsworth Economic Consulting LLC has been retained as Northgate's economic expert for purposes of both the FCC proceeding and the district court antitrust litigation. Dr. Narasimhan's firm is located at 1455 Pennsylvania Avenue NW, Suite 850, Washington, D.C. 20004, and her fees to date total $412,000.
During the dormancy period, Dr. Narasimhan's substantive analytical work is on hold. However, it is important that she be kept apprised of developments in the FCC proceeding that may affect her market definition analysis, competitive effects assessment, or damages rebuttal in the district court case. In particular, any findings or conclusions in the ALJ's initial decision regarding the relevant product or geographic market, the competitive significance of Northgate's wholesale access facilities, or the quantification of harm to Ridgepoint could have a direct bearing on Dr. Narasimhan's expert opinions.
On the damages side, there is a significant gap between the parties' respective assessments of harm. Ridgepoint's expert has estimated damages of $127 million pre-trebling, which, under the mandatory trebling provision of 15 U.S.C. § 15, yields a total damages claim of $381 million. Dr. Narasimhan's preliminary analysis indicates that a properly defined market and a rigorous application of the but-for methodology would yield damages in the range of $18 million to $24 million pre-trebling — a fraction of Ridgepoint's claim. Narrowing the damages gap through robust expert testimony will be central to Northgate's defense strategy upon reactivation.
Upon reactivation of the district court litigation, Dr. Narasimhan will need approximately sixty (60) to ninety (90) days to finalize her expert report. The dormancy period should not substantially impair her readiness, provided that she receives periodic updates on data developments (e.g., updated capacity utilization figures, changes to the WAP, new competitive entry in the relevant geographic market) and has the opportunity to review any relevant FCC findings. Aaron Liu shall coordinate periodic data updates to Dr. Narasimhan as warranted.
V. REACTIVATION TRIGGERS AND RESPONSE PROTOCOLS
The transition from dormancy to active litigation management may occur rapidly and with little advance warning. The team must be prepared to mobilize swiftly in response to any event that signals the end of the stay or the need for immediate strategic decision-making. This section identifies the events that would trigger a reactivation assessment and establishes the response protocols to be followed.
A. Identified Triggers for Reactivation
The following events have been identified as reactivation triggers — that is, events that would require an immediate assessment of whether to seek to lift the stay and reactivate the district court litigation, or that would require immediate defensive action:
1. Issuance of ALJ Fenwick's Initial Decision in FCC Docket WC-23-0042
The issuance of the ALJ's initial decision is the most likely near-term trigger for reactivation. Whether the decision is favorable or unfavorable to Northgate, it will require careful analysis for its potential preclusive or persuasive effect in the district court action.
If favorable to Northgate: The team should consider promptly filing a motion to lift the stay in the district court, accompanied by a renewed Motion to Dismiss under Rule 12(b)(6) — incorporating any favorable factual or legal findings from the ALJ's decision — or, if the record supports it, a motion for summary judgment. A favorable FCC decision would bolster Northgate's position that its conduct was consistent with its regulatory obligations and that Ridgepoint's antitrust claim lacks merit.
If unfavorable to Northgate: The team should assess whether to seek exceptions at the full Commission level, which would extend the FCC proceeding and potentially delay the lifting of the stay. The team should also evaluate the likelihood that Ridgepoint will move to lift the stay, and prepare accordingly. An unfavorable FCC decision does not necessarily doom Northgate's antitrust defense — the Section 2 legal standards are distinct from the Section 251/252 standards — but it would complicate the defense narrative and could be used by Ridgepoint to support a motion for partial summary judgment.
2. FCC Final Order (Full Commission)
A final order by the full Commission resolving the Section 251/252 complaint — whether issued upon review of exceptions, upon the Commission's own motion, or by operation of time following the expiration of the exceptions period — will almost certainly warrant the lifting of the district court stay. The primary jurisdiction rationale for the stay will have been fully satisfied at that point, and continued dormancy would serve no further purpose. Regardless of the outcome of the final order, the district court Section 2 claim remains a separate cause of action with distinct elements, though the FCC's factual and legal findings could be influential — and potentially preclusive on certain issues — in the antitrust proceeding.
3. Motion by Ridgepoint (or the Court Sua Sponte) to Lift the Stay
The team should continuously monitor for any motion by Hargrove, Winslow & Burke LLP to lift the stay on grounds of undue delay, changed circumstances, or the argument that the FCC proceeding has become excessively prolonged. Such a motion could also come from the Court sua sponte, particularly if the joint status reports reflect a lack of progress in the FCC proceeding. A pre-drafted template response brief has been prepared and is maintained in the matter file (see Section VI below), and should be updated periodically to reflect current circumstances.
4. Material Change in Circumstances
Any significant change in the competitive landscape or the factual predicate of the litigation could trigger the need for strategic reassessment. Examples include, without limitation:
• Ridgepoint securing alternative infrastructure access (e.g., colocation agreements with competing facility providers in the Philadelphia–Baltimore–Washington, D.C. corridor), which could moot or diminish its damages claim;
• Regulatory changes, including new FCC rules or policy statements governing interconnection obligations, that could alter the legal framework applicable to the dispute;
• Material changes in Northgate's capacity utilization at the fourteen disputed facilities, whether through expansion, decommissioning, or fluctuations in demand, that could affect the viability of the capacity defense;
• Changes to the Wholesale Access Policy, including any modification of the $5 million minimum revenue commitment threshold;
• Any settlement overture from Ridgepoint, Victoria Hargrove, or Caravel Capital Partners LP (managed by Richard Cavanaugh), whether formal or informal;
• Changes in applicable law, including new precedent from the Supreme Court of the United States or the United States Court of Appeals for the Fourth Circuit regarding the refusal-to-deal doctrine under Section 2 of the Sherman Act, or new FCC regulations or orders governing interconnection under Sections 251 and 252.
5. Expiration of a Reasonable Time Without FCC Resolution
If the FCC proceeding becomes excessively prolonged — for example, if more than twelve (12) months elapse after the filing of post-hearing reply briefs without the issuance of an initial decision — the Court may grow impatient with the continued stay and may consider lifting it on its own motion. The joint status reports should proactively address the timeline for FCC resolution and should explain any delays, in order to forestall an adverse sua sponte order. The team should also assess at regular intervals whether the duration of the stay has become unreasonable under applicable precedent and whether Northgate's interests are better served by maintaining the stay or by seeking to lift it.
B. Immediate Response Protocol
Upon the occurrence of any trigger event identified above, the following response protocol shall be immediately activated:
1. Aaron Liu shall immediately notify Elaine Forsythe and Howard Bellamy of the trigger event, providing a brief description of the event and its potential implications.
2. Elaine Forsythe shall contact Catherine Ng and James Whitford within twenty-four (24) hours to inform them of the trigger event and to obtain any preliminary guidance regarding the client's strategic preferences.
3. The full litigation team (Elaine Forsythe, Howard Bellamy, Aaron Liu, and Monica Reyes) shall convene a strategy call within forty-eight (48) hours of the trigger event to assess the implications of the event, evaluate the available strategic options, and determine the appropriate next steps.
4. If court filings are required in response to the trigger event (e.g., a motion to lift the stay, a renewed motion to dismiss, or a response to a motion filed by Ridgepoint), the team shall target a fourteen (14)-day turnaround for the preparation and filing of substantive briefing, leveraging the pre-drafted materials described in Section VI below.
5. Dr. Berger and Dr. Narasimhan shall be contacted promptly and advised of the trigger event and its implications for their respective workstreams.
6. Vantage Strategic Communications LLC shall be alerted if the trigger event is likely to generate media attention or public interest.
VI. REACTIVATION READINESS AND PRE-DRAFTED MATERIALS
A stay can be lifted with relatively little advance notice, and the team must be prepared to transition from dormancy to active litigation management without undue delay. This section describes the steps being taken during the dormancy period to ensure reactivation readiness, including the maintenance and periodic updating of draft pleadings, the status of expert report preparation, and the state of discovery readiness.
A. Draft Pleadings and Motions Maintained in Ready State
The following draft documents have been prepared and are maintained in the matter file in a ready or near-ready state. These materials should be reviewed, updated, and refined on a semiannual basis (or more frequently in the event of a trigger event) to ensure that they reflect current law, current facts, and the latest developments in the FCC proceeding:
Renewed Motion to Dismiss. A draft renewed Motion to Dismiss under Rule 12(b)(6) has been prepared, incorporating the arguments advanced in Northgate's original November 14, 2022 motion and January 30, 2023 reply brief. The renewed motion should be updated to incorporate any favorable findings from the ALJ's initial decision or the FCC's final order, as applicable. The motion will argue, consistent with the original filing, that Ridgepoint's refusal-to-deal claim fails to satisfy the Trinko and Aspen Skiing standards and that the Complaint does not allege a plausible relevant market.
Motion for Summary Judgment (Shell). A preliminary structure for a motion for summary judgment has been drafted in the event that the FCC produces findings favorable to Northgate on the interconnection issues. This shell includes an outline of the argument, placeholder sections for incorporation of FCC findings, and citations to the anticipated evidentiary record. The motion will be developed more fully as the factual record is established through the FCC proceeding and, upon reactivation, through district court discovery.
Response to Plaintiff's Motion to Lift Stay. A template opposition brief has been prepared in the event that Ridgepoint files a motion to lift the stay prematurely. The template sets forth the legal standard for maintaining a stay under the primary jurisdiction doctrine, the continued pendency of the FCC proceeding, and the absence of prejudice to Ridgepoint from the maintenance of the stay. This template should be updated to reflect the current procedural posture of the FCC proceeding each time a joint status report is filed.
Proposed discovery Plan and Scheduling Order. A draft proposed discovery plan and scheduling order has been prepared for submission to the Court upon reactivation. The draft contemplates timelines for the following phases of discovery and motion practice:
• Document production, including ESI production protocols and the exchange of privilege logs;
• Interrogatories and requests for admission;
• Fact depositions, including anticipated depositions of the following witnesses: Gregory Trent, Samira Hashemi, Diane Okoro, Patrick Salazar, and Dr. Leonard Kuo;
• Expert disclosures and reports, including the reports of Dr. Priya Narasimhan and Dr. Anton Berger on behalf of Northgate;
• Rebuttal expert reports;
• Dispositive motions, including any motion for summary judgment.
This draft should be updated when reactivation approaches to reflect the most current timeline expectations and the scope of discovery that may be narrowed or informed by the FCC proceedings.
B. Expert Report Preparation
Dr. Priya Narasimhan's preliminary expert report outline has been prepared and addresses the following substantive topics:
• Market definition: Dr. Narasimhan will opine that the relevant product market should be defined more broadly than Ridgepoint's proposed market of "colocation and interconnection services at incumbent carrier facilities," and should instead include cable, fixed wireless, and wholesale ethernet services as economic substitutes. Dr. Narasimhan's preliminary analysis indicates that the corrected market share for Northgate under the broader market definition is approximately 31%, as compared to Ridgepoint's alleged share of 68% under its narrower market definition.
• Competitive effects: Dr. Narasimhan will opine on the competitive dynamics of the wholesale access market in the Philadelphia–Baltimore–Washington, D.C. corridor, including the availability of alternative providers and the absence of barriers to entry.
• Damages rebuttal: Dr. Narasimhan will rebut Ridgepoint's damages model, which estimates $127 million in pre-trebling damages. Dr. Narasimhan's preliminary estimate of properly calculated damages is in the range of $18 million to $24 million pre-trebling, reflecting a corrected market definition, a more rigorous but-for analysis, and the exclusion of speculative harm.
Upon reactivation, Dr. Narasimhan will need approximately sixty (60) to ninety (90) days to finalize her expert report. The dormancy period should not substantially impair her readiness, provided that the periodic data updates described in Section IV.D above are maintained. The team should begin coordinating with Dr. Narasimhan to update her analysis as soon as a trigger event is identified, in order to maximize the available time for report preparation.
Dr. Berger's testimony may also be required in the district court case, depending on the relevance of the FCC regulatory analysis to the Section 2 antitrust claim. If the defense strategy requires testimony regarding the regulatory framework governing interconnection, the commercial reasonableness of the WAP under FCC standards, or the significance of the FCC's factual findings, Dr. Berger would be qualified to provide such testimony. The scope of Dr. Berger's engagement in the district court case should be assessed upon reactivation.
C. Discovery Readiness
As noted in Section II above, Candela discovery Solutions maintains the 1.2 million collected documents on the Concordia Review™ platform. Of these, approximately 87,000 documents have been tagged as potentially responsive to anticipated discovery requests based on keyword searches, date range filtering, and preliminary categorization. However, a full substantive document review has not commenced due to the stay. The 87,000-document corpus has been preserved in its current state and is available for review upon reactivation.
Upon reactivation, the team should be prepared to escalate review staffing rapidly. Depending on the pace of the discovery schedule set by the Court, the team may need to engage contract review attorneys or leverage Candela's managed review capabilities to process the review corpus within the available timeframe. Monica Reyes is responsible for maintaining familiarity with the e-discovery protocol and vendor management memorandum (maintained separately in the matter file) to ensure a swift ramp-up of review operations. The team should also be prepared to issue supplemental collection requests to Candela in the event that the scope of discovery upon reactivation extends beyond the matters covered by the initial collection.
VII. BUDGET MANAGEMENT DURING DORMANCY
A. Fee Arrangement Parameters
The fee arrangement for this engagement is governed by the terms of the outside counsel guidelines and the engagement letter executed at the inception of the matter. The key parameters are as follows:
• Blended rate cap: $925 per hour across all Calderwood & Harkness LLP timekeepers assigned to the matter. Actual billing rates for individual timekeepers may exceed the blended rate cap, but the aggregate blended rate across all timekeepers for any given billing period shall not exceed $925 per hour.
• Monthly fee cap: $275,000 in total Calderwood & Harkness LLP fees per calendar month, absent prior written approval from Catherine Ng. This cap applies to fees only and does not include reimbursable expenses or fees incurred by other vendors.