The consumers are represented by Michael W. Sobol and Roger N. Heller of Lieff Cabraser Heimann & Bernstein LLP, Daniel M. Hattis of Hattis Law, John A. Yanchunis and Jean Martin of Morgan & Morgan, D. Anthony Mastando and Eric J. Artrip of Mastando & Artrip LLC and Alexander H. Schmidt.
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By Julia Arciga
Law360 (June 5, 2020, 6:43 PM EDT) — Consumers in a class action accusing AT&T of misrepresenting unlimited cellphone data plans have shot back at the telecom’s efforts to have the court recognize as fact hundreds of documents that the company says show consumers who bought those plans knew data speeds could be throttled.
In a Thursday filing in California federal court, consumers took issue with AT&T’s motion asking for judicial notice of media reports — which the telecom company allegedly used to argue that customers should have known about the company’s data throttling by late 2011 or early 2012. The consumers, on the other hand, claimed they were not made aware of AT&T’s throttling until mid-2015.
“Plaintiffs’ knowledge is plainly a disputed fact, and neither their knowledge, nor the introduction of materials that are presented, dubiously, to try to incorrectly imply that plaintiffs knew earlier, are appropriate for resolution on a motion to dismiss, and not appropriate for judicial notice or a request for incorporation by reference,” the response said.
Consumers also took issue with a request for judicial notice of two monthly invoices and 41 text messages allegedly sent to them by AT&T, after their complaint used one bill statement and three texts to accuse the company of not properly disclosing its data reduction practices to customers.
AT&T is urging the court to accept the documents as part of its effort to convince U.S. District Judge Edward Milton Chen to dismiss the long-running case.
While AT&T said the consumers’ complaint “extensively” relied on these materials and wanted them considered in its motion to dismiss, the consumers claimed the invoices and messages up for judicial notice range “far beyond” the documents referenced in the complaint and contain disputed facts.
The response said one of the text messages received by a consumer, which allegedly referenced AT&T’s “secret data usage caps,” was “confusing to him.” According to the consumers, the court does not have the discretion to take judicial notice on materials where the document is “subject to varying interpretations.” Instead, the consumers said the parties should engage in discovery to sort through the questions.
The consumers initially filed their class action lawsuit in 2015, claiming the company promoted “unlimited” mobile data plans without properly disclosing restrictions. Just one month before the suit was filed, the Federal Communications Commissionproposed a record $100 million fine after finding that the telecom drastically reduced download speeds for customers who used a certain amount of data in a month, a process known as throttling.
The district court originally sent the claims to arbitration in 2016.The Ninth Circuit affirmed that choice the next year, and the U.S. Supreme Court refused to hear consumers’ appeal on the arbitration question. However, a 2017 California Supreme Court decision in a separate case altered the landscape by holding that an agreement like AT&T’s waiving public injunctive relief in any forum is contrary to California law and unenforceable.
The consumers again tried to escape arbitration by asserting that the California high court ruling provided the district court with a new basis to deny forced arbitration and the district court agreed it was no longer appropriate to compel arbitration.
AT&T challenged that finding in the Ninth Circuit, but the appeals court said the lower court now was right to keep the dispute out of arbitration.
Last month, AT&T asked the district court to toss the case.
Counsel and representatives for AT&T, along with counsel for the consumers, did not immediately respond to requests for comment Friday.
The consumers are represented by Michael W. Sobol and Roger N. Heller of Lieff Cabraser Heimann & Bernstein LLP, Daniel M. Hattis of Hattis Law, John A. Yanchunis and Jean Martin of Morgan & Morgan, D. Anthony Mastando and Eric J. Artrip of Mastando & Artrip LLC and Alexander H. Schmidt.
AT&T is represented by Andrew J. Pincus, Archis Parasharami and Kevin Ranlett of Mayer Brown LLP and Pete Marketos, Tyler Bexley, Brett Rosenthal and Sean Gallagher of Reese Marketos LLP.
The case is Roberts et al. v. AT&T Mobility LLC, case number 3:15-cv-03418, in the U.S. District Court for the Northern District of California.
