Phone Recovery Servs., LLC v. Qwest Corp.
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Phone Recovery Servs., LLC v. Qwest Corp.
Dissenting Opinion
I dissent because I believe that the court's interpretation of the Minnesota False Claims Act's ("MFCA") tax bar is substantially broader than the Legislature intended. Minnesota Statutes § 15C.03 (2016) is modeled on the federal False Claims Act's ("FCA") tax bar,
*326I.
The court concludes that Minn. Stat. § 15C.03 is unambiguous. I disagree. Although I agree with the definition of "taxation" adopted by the court, I believe that the phrase "relating to" has another reasonable meaning which better serves the intent behind the MFCA's tax bar.
It is true that we have previously defined "relating to" as "to stand in some relation; to have bearing or concern; to pertain; refer; to bring into association with or connection with." 500, LLC v. City of Minneapolis ,
The court asserts that there is no substantive difference between my proposed definition and the definition offered by 500, LLC . I disagree. By describing the plain meaning of "relating to" as "about," which is defined as "with regard to," "concerning," or "on the subject of," the statute would retain a narrow focus. See Webster's Third New International Dictionary 5 (3d ed. 2002). By contrast, the court today holds that "relating to" means "[to] pertain, refer, or stand in some relation to." Supra at pg. 8. "Standing in some relation to" or "referring to" a statutory topic is expansive, and requires a lesser degree of logical relation to that topic than being "about" that topic.
For example,
My interpretation is also more consistent with the plain meaning of the word "relate," which means "to establish a logical or causal connection" between two things. Webster's Third New International Dictionary 1916 (3d ed. 2002). My definition is a reasonable one, though it is narrower than the court's. I therefore conclude *327that the tax-bar clause in Minn. Stat. § 15C.03 is ambiguous.
II.
Because the MFCA's tax bar is ambiguous, our duty is "to determine what meaning the Legislature intended to ascribe" to the phrase "portions of Minnesota Statutes relating to taxation." Nordling v. Ford Motor Co. ,
The MFCA prohibits "knowingly mak[ing] or us[ing] ... a false record or statement material to an obligation to pay or transmit money or property to the state" or "knowingly conceal[ing] or knowingly and improperly avoid[ing] or decreas[ing] an obligation to pay or transmit money to the state." Minn. Stat. § 15C.02(a)(7) (2016). "Obligation" is statutorily defined as "an established duty, whether or not fixed, arising from an express or implied contractual, grantor-grantee, or licensor-licensee relationship from a fee-based or similar relationship, from statute or regulation, or from the retention of any overpayment." Minn. Stat. § 15C.01, subd. 3b. This definition was added in 2013, see Act of Apr. 22, 2013, ch. 16, § 1,
Additionally, the purpose behind the federal FCA's tax bar supports my limited reading. We have previously considered persuasive federal case law when construing analogous state statutes. See, e.g. , LaMont v. Indep. Sch. Dist. No. 728 ,
Because the MFCA was modeled on the FCA, we can reasonably presume that the Legislature similarly intended to prevent private litigants from interfering with the Department of Revenue's effort to enforce the State's tax laws as well. See Minn. Stat. § 270C.03, subd. 1(1) (2016) (granting the Commissioner of Revenue the power to "administer and enforce the assessment and collection of taxes"). Therefore, I read "portions of Minnesota Statutes relating to taxation" to mean the statutes that make up Minnesota's counterpart to the Internal Revenue Code.
Minnesota's counterpart to the Internal Revenue Code is best described by
None of the fees that Phone Recovery Services claims respondents underreported are collected by, paid to, or administered by the Commissioner of Revenue; rather, they are paid to the Commissioner of Public Safety, as required by
Moreover, the FCA is a remedial statute. See, e.g. , Hudson v. United States ,
Construing "relating to" to mean "about" instead of "having a connection with" narrows the application of the tax bar, which better reflects the intent of the Legislature. I would therefore resolve the tax bar's ambiguity in favor of my proposed interpretation.
III.
Having concluded that "portions of Minnesota Statutes relating to taxation" means "portions of Minnesota Statutes that are about taxation," I next consider whether the statutes at issue in this case are about taxation.
The phrase "statutes relating to taxation" is not defined in our jurisprudence, and we have used this precise phrase only three times. See State v. Nw. Airlines ,
To resolve whether or not a statute is "about" taxation, we should look to the preamble of the session law creating that statute. See Berg v. Berg ,
In the case before us today, not one of the session laws that initially created the statutes at issue was about taxation or concerned taxation. Minnesota Statutes § 403.11 was part of "[a]n act relating to public safety; telephone companies; providing for local emergency telephone service; appropriating money." Act of May 27, 1977, ch. 311, § 11,
The court rejects my analysis, arguing that we can only look to preambles when a statute is ambiguous, and that we cannot use the preambles of session laws that created other statutes to resolve the ambiguity in Minn. Stat. § 15C.03. Both contentions misapprehend my point. First, as discussed, Minn. Stat. § 15C.03 is facially ambiguous. Second, when a statute is ambiguous, we may consider other laws "upon the same or similar subjects."
The holding I propose has two components: (1) Minn. Stat. § 15C.03 is facially ambiguous, and (2) this ambiguity should be resolved in favor of the narrower definition, "about." Under the court's holding, any statute that makes even a passing reference to a "tax" or functions like a tax, as defined by
The court cites Haghighi v. Russian-American Broadcasting Co. ,
IV.
In their motion to dismiss and arguments on appeal, respondents present two alternate theories for dismissal: the MFCA's public-disclosure bar, and the requirement to plead fraud with particularity under Minn. R. Civ. P. 9.02. Because these arguments were preserved and fully briefed, I would reach and reject them.
A.
The MFCA's public-disclosure bar requires the dismissal of complaints "if substantially the same allegations or transactions as alleged in the action or claim were publicly disclosed ... by the news media." Minn. Stat. § 15C.05(f)(3) (2016). We have not previously interpreted this provision, which is nearly identical to the FCA's public-disclosure bar. Compare Minn. Stat. § 15C.05(f), with
Like the MFCA, the FCA bars actions where "substantially the same allegations or transactions as alleged in the action or claim were publicly disclosed ... from the news media."
Here, respondents rely on various news articles, spanning from 2005 to 2012 that assert other telecommunications providers around the country engaged in similar schemes. The articles are from Tennessee, Missouri, Alabama, Indiana, and West Virginia. Every article deals exclusively with local 911 fees, and makes no mention of TAM or TAP fees, or analogous fees assessed by any other states. Of all the articles, only respondent AT&T is named, in a single 2012 article from Tennessee. This single reference to one respondent out of the dozens of telephone companies Phone Recovery Services has named in this lawsuit does not satisfy CSL Behring 's requirement that the public disclosures "must set the government squarely on the trail of a specific and identifiable defendant's participation in the fraud."
B.
The Minnesota Rules of Civil Procedure require that, "[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally." Minn. R. Civ. P. 9.02. Pleading "with particularity" requires a plaintiff "to plead the ultimate facts or the facts constituting fraud." Hardin Cty. Sav. Bank v. Hous. & Redevelopment Auth. of City of Brainerd ,
A fraud claim has five elements:
(1) a false representation by [the defendant] of a past or existing material fact susceptible of knowledge; (2) made with knowledge of the falsity of the representation or made without knowing whether it was true or false; (3) with the intention to induce [the plaintiff] to act in reliance thereon; (4) that the representation caused [the plaintiff] to act in reliance thereon; and (5) that [the plaintiff] suffered pecuniary damages as a result of the reliance.
Valspar Refinish, Inc. v. Gaylord's, Inc. ,
Although Phone Recovery Services did not specifically allege that respondents intended to induce the State to act in reliance on their fee remittance forms, it can be reasonably inferred from the complaint that respondents intended to under-collect and underpay the 911, TAM, and TAP fees and to have the State rely on their artificially reduced number of reported telephone lines. And, as the non-moving party, Phone Recovery Services is entitled to all reasonable inferences in its favor. Radke v. County of Freeborn ,
V.
For the foregoing reasons, I respectfully dissent.
I join in the dissent of Justice McKeig.
As the court notes, neither party has argued that the tax bar is ambiguous. But when both parties advance reasonable but conflicting interpretations of a statute, as they have here, that statute must necessarily contain some ambiguity. See, e.g. , Zurich Am. Ins. Co. v. Bjelland ,
Opinion of the Court
THISSEN, J., not having been a member of this court at the time of submission, took no part in the consideration or decision of this case.
OPINION
ANDERSON, Justice.
Appellant Phone Recovery Services, LLC initiated a qui tam action under the Minnesota False Claims Act, Minn. Stat. § 15C.02 (2016) (MFCA), alleging that respondents have intentionally failed to pay fees and surcharges due to the State and imposed by statute for 911 services, the Telecommunications Access Minnesota (TAM) program, and the Telephone Assistance Plan (TAP) program. Because the MFCA does not allow qui tam actions based on "claims, records, or statements made under portions of Minnesota Statutes relating to taxation," Minn. Stat. § 15C.03 (2016), respondents jointly moved for dismissal, asserting that the 911, TAM, and TAP charges are all taxes and therefore appellant failed to state a *318claim as a matter of law. The district court granted respondents' motion and the court of appeals affirmed. Phone Recovery Servs., LLC ex rel. State v. Qwest Corp. ,
FACTS
The fees and surcharges that are the subject of this litigation under the MFCA are all creatures of statute. Minnesota Statutes § 403.11 (2016) establishes a "fee" for the State's 911 emergency system. This fee is set, within statutory limits, by the Commissioner of Public Safety.
Phone Recovery Services, a New Jersey corporation, brought an action in May 2014, alleging that respondents had violated the reverse-false-claims provisions of the MFCA. The reverse-false-claims provisions impose liability for (1) "[having] possession, custody, or control of property or money used, or to be used, by the state or a political subdivision and knowingly deliver[ing] or caus[ing] to be delivered less than all of that money or property," (2) "knowingly mak[ing] or us[ing], or caus[ing] to be made or used, a false record or statement material to an obligation to pay or transmit money or property to the state or a political subdivision," or (3) "knowingly conceal[ing] or knowingly and improperly avoid[ing] or decreas[ing] an obligation to pay or transmit money or property to the state or a political subdivision."
Phone Recovery Services filed a complaint, under seal, in Ramsey County District Court. After the Attorney General declined to intervene, the district court unsealed the complaint and ordered Phone *319Recovery Services to pursue the litigation on behalf of the State.
The court of appeals agreed that the 911, TAM, and TAP surcharges are taxes by statutory definition and ultimately concluded that the claim brought by Phone Recovery Services was prohibited by the tax bar provided in the MFCA. Phone Recovery Servs. ,
ANALYSIS
We are presented with a question of statutory interpretation; specifically, does the tax bar set out in Minn. Stat. § 15C.03 as part of the MFCA apply to surcharges collected by telecommunications carriers and remitted to the State? We review the interpretation of statutes de novo. Cocchiarella v. Driggs ,
I.
We begin our analysis with the MFCA. This Act permits, under certain circumstances, a plaintiff to bring a private cause of action to collect funds due to the State. See Minn. Stat. § 15C.05 (2016). If these claims are successfully prosecuted, the plaintiff is allowed to retain some of the proceeds of the litigation and the balance of the recovery is remitted to the State. See Minn. Stat. § 15C.13 (2016). A false claims action can be a direct claim in which the allegation is that a defendant wrongfully secured monies from the State. Alternatively, as here, in a "reverse" MFCA complaint, the plaintiff alleges that the defendant did not turn over all monies due to the State. See Minn. Stat. § 15C.02(a)(4), (7).
But not all private causes of action under the MCFA are permitted. The MFCA "tax bar" precludes actions if the defendant's allegedly false claim stems from "portions of Minnesota Statutes relating to taxation." Minn. Stat. § 15C.03. The MFCA does not define the phrase "relating to taxation." See Minn. Stat. §§ 15C.01, 15C.03. When a statute does not define a term or phrase, we first consider the plain meaning of that language. See 500, LLC v. City of Minneapolis ,
*320We have previously defined "relating to" as "to stand in some relation; to have bearing or concern; to pertain; refer; to bring into association with or connection with." Id . at 291 (quoting Morales v. Trans World Airlines, Inc. ,
Phone Recovery Services contends that the court of appeals erred in its interpretation of the statute in at least three ways. First, Phone Recovery Services argues that the court of appeals' interpretation fails to give effect to the Legislature's distinction between statutory fees, which includes "obligation[s] to pay ... money" to the State and for which a claim can be asserted under the MFCA, and taxes, for which such a claim cannot be asserted. We disagree. Nothing in the plain language of section 15C.03 refers to an "obligation" to "pay money." We must focus on the plain language that excludes claims based on "portions" of statutes "relating to taxation."
Second, Phone Recovery Services argues that the broad structure of the MFCA and its remedial purpose favor a limiting construction of Minn. Stat. § 15C.03 to avoid sweeping "the overwhelming majority of payments made to the State" into the exception. The remedial purpose of section 15C.02 does not change the plain language of section 15C.03, and the plain language of section 15C.03 captures the Legislature's intent, which ends the process of interpretation. See City of Brainerd v. Brainerd Invs. P'ship ,
Third, Phone Recovery Services asserts that the Legislature intended to include within Minn. Stat. § 15C.03 only statutes enacted under the State's taxing power, specifically Minn. Stat. ch. 270-299 (2016).
The dissent takes a different approach, asserting that the plain meaning of "relating to taxation" is facially ambiguous.
Second, Minn. Stat. § 15C.03 encompasses "portions of Minnesota Statutes relating to taxation." A "portion" is "a part of a whole," see Webster's Third New International Dictionary 1768 (3d ed. 2002), "a section or quantity in a larger thing," see The American Heritage Dictionary of the English Language 1373 (5th ed. 2011), or "an amount, section, or piece of something," see The New Oxford American Dictionary 1330 (2001). Under the plain meaning of the word "portion," a single statute, or even a single subdivision of a statute, can relate to taxation, even if the remainder of the statute or chapter of statutes does not. For example,
Third, even assuming that we adopt the dissent's approach and interpret "relating to" to mean "about," it would not produce a different result here. Minnesota Statutes §§ 237.52, subd. 2, .70, subd. 6, and 403.11, subd. 1, each impose a surcharge. See
The dissent also argues that the phrase "portions of Minnesota Statutes relating to taxation" has a special meaning to the Legislature. For a phrase to have a special meaning, however, " 'courts [must] have ascribed a well-established and long-accepted meaning to [it].' " Cox v. Mid-Minn. Mut. Ins. Co. ,
Rather, the dissent asks us to draw a special meaning from the preambles to other statutes created by legislative acts relating to taxation. We have previously recognized that the preamble to a statute is not part of the statute. Twin City Candy & Tobacco Co. v. A. Weisman Co. ,
We have held that facial ambiguity arises only if the plain language of the statute is "susceptible to more than one reasonable interpretation." 500, LLC ,
II.
We next address whether
Minnesota Statutes § 645.44 (2016), provides various definitions for common terms "used in Minnesota Statutes or any legislative act." These definitions "shall" apply across all other Minnesota Statutes, "unless another intention clearly appears."
(a) "Tax" means any fee, charge, exaction, or assessment imposed by a governmental entity on an individual, person, entity, transaction, good, service, or other thing. It excludes a price that an individual or entity chooses voluntarily to pay in return for receipt of goods or services provided by the governmental entity. A government good or service does not include access to or the authority to engage in private market transactions with a nongovernmental party, such as licenses to engage in a trade, profession, or business or to improve private property.
(b) For purposes of applying the laws of this state, a "fee," "charge," or other similar term that satisfies the functional requirements of paragraph (a) must be treated as a tax for all purposes, regardless of whether the statute or law names or describes it as a tax. The provisions of this subdivision do not exempt a person, corporation, organization, or entity from payment of a validly imposed fee, charge, exaction, or assessment, nor preempt or supersede limitations under law that apply to fees, charges, or assessments.
The amount of the statutorily created 911 "fee" is set by the Commissioner of Public Safety.
Further, nothing in these statutorily imposed surcharges allows consumers, service providers, or the State to tie the amount of the fee to a consumer's level (or lack) of use of the statewide 911 system, TAM services, or TAP services. Each customer pays the same amount per access line, even if the customer never uses any of these three services during the life of the phone service contract. Cf.
Phone Recovery Services argues that using the definition of a "tax" in
First, we are required to apply the definitions provided by the Legislature in
Second, subdivision 19 does not define all fees and charges to be taxes. The definition is narrower, focusing on those legislative enactments that are imposed by a governmental entity, other than a price voluntarily paid in return for goods and services provided by the governmental entity. As explained above, the surcharges at issue here do not fall within this exception, and thus they are taxes.
The dissent also contends that the MFCA is a remedial statute and that the tax bar in section 15C.03 should therefore be construed narrowly, rather than turning to the definitions in section 645.44. Our canon of liberally construing remedial statutes does not apply in cases in which, as here, the statute is facially unambiguous. Larson v. State ,
CONCLUSION
For the foregoing reasons, we affirm the decision of the court of appeals.
DISSENT
The TAM program provides telecommunications devices to eligible persons with communication disabilities and requires the Commissioner of Commerce to contract for telecommunications relay services to serve persons with communication disabilities.
In this opinion, we refer to the costs for the 911, TAM, and TAP programs using the terms provided in the statutes. See
The MFCA defines "obligation" as "an established duty, whether or not fixed, arising from an express or implied contractual, grantor-grantee, or licensor-licensee relationship from a fee-based or similar relationship, from statute or regulation, or from the retention of any overpayment." Minn. Stat. § 15C.01, subd. 3b (2016).
The MFCA requires a private party initiating a qui tam action on behalf of the State to first provide the complaint to the Attorney General. See Minn. Stat. § 15C.05(e) (2016) ; see also Minn. Stat. § 15C.01, subd. 7(1) (2016) (defining "prosecuting attorney," for purposes of the Act, as the Attorney General where the claim "involves money, property, or services provided by the state."). If the Attorney General declines to intervene, the private party who initiated the action "has the same rights in conducting the action" as the Attorney General would have. Minn. Stat. § 15C.08(a) (2016).
In support of this argument, Phone Recovery Services cites to
We note that neither Phone Recovery Services nor respondents have asserted that Minn. Stat. § 15C.03 is ambiguous, and having determined that the Legislature's intent is apparent from the plain and unambiguous language, our process of construction is at an end. Kremer v. Kremer ,
Because we conclude that the surcharges are taxes for purposes of the exclusion provided by Minn. Stat. § 15C.03, we need not address the parties' arguments regarding common law factors for identifying a tax as opposed to a fee. Moreover, our holding today is consistent with our precedent that generally defines a "tax." See In re Petition of S.R.A., Inc. ,
The dissent argues that we should look to
Because we affirm the court of appeals on the grounds that Minn. Stat. § 15C.03 is unambiguous and the 911, TAM, and TAP surcharges are taxes within the statutory definition of
Reference
- Full Case Name
- PHONE RECOVERY SERVICES, LLC, for itself and on behalf of the State of Minnesota v. QWEST CORPORATION, a Colorado company, Citizens Telecommunications Company of Minnesota, LLC, a Delaware company, Telephone and Data Systems, Inc., Pine Island Telephone Company, Level 3 Communications, LLC, a Delaware company, Onvoy, LLC, Bandwidth.com CLEC, LLC, a Delaware company, MCC Telephony of Minnesota, LLC, a Delaware company, Jaguar Communications, Inc., Windstream Holdings, Inc., XO Communications, LLC, AT&T Corporation
- Cited By
- 7 cases
- Status
- Published