Free Response to Motion - District Court of California - California

Case 3:07-cv-02231-RJB

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1 JAMES J. MITTERMILLER, Cal. Bar No. 85177 [email protected] 2 FRANK J. POLEK, Cal. Bar No. 167852 [email protected] 3 JOHN C. DINEEN, Cal. Bar No. 222095 [email protected] 4 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP A Limited Liability Partnership Including Professional Corporations 5 501 West Broadway, 19th Floor 6 San Diego, California 92101-3598 Telephone: 619-338-6500 7 Facsimile: 619-234-3815 8 Attorneys for Defendants SPRINT SOLUTIONS, INC. and SPRINT9 SPECTRUM L.P. 10 11 12 13 14 UTILITY CONSUMERS' ACTION NETWORK and ERIC TAYLOR, on 15 behalf of themselves, their members and/or all others similarly situated, as 16 applicable, 17 18 v. Plaintiffs, Case No. 07 CV 2231 W (LSP) DECLARATION OF FRANK J. POLEK IN OPPOSITION TO PLAINTIFFS' EX PARTE APPLICATION FOR ORDER PERMITTING EXPEDITED DISCOVERY UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

19 SPRINT SOLUTIONS, INC.; SPRINT SPECTRUM L.P.; SPRINT-NEXTEL 20 CORPORATION, 21 22 23 24 25 26 27 28
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Defendants.

Judge: Courtroom: Date: Time:

Hon. Leo S. Papas G N/A N/A

DECL OF F. POLEK IN SUPPORT OF DEFENDANTS' OPP. TO PLAINTIFFS' EX PARTE APPLICATION FOR EXPEDITED DISCOVERY

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I, Frank J. Polek, declare as follows:

1.

I am an attorney at law duly licensed to practice law in the state

4 of California and in this Court. I am Special Counsel to Sheppard, Mullin, Richter 5 & Hampton, LLP, counsel to Defendants Sprint Solutions, Inc. and Sprint Spectrum, 6 Inc. (collectively, "Sprint") in the above-captioned proceeding. I have personal 7 knowledge of the matters set forth below and if called to testify, I could and would 8 testify competently thereto. 9 10 2. I have reviewed the Declaration of Art Neill filed in support of

11 Plaintiffs' Ex Parte Application For Order Permitting Expedited Discovery. I have 12 also reviewed the website maintained by Plaintiff UCAN (www.ucan.org), including 13 the press release regarding this lawsuit and the apparent postings by various Sprint 14 customers. 15 16 3. Although Sprint objects to Mr. Neill's declaration as irrelevant

17 and inadmissible hearsay, to the extent this Court considers this evidence, the Court 18 should consider the evidence in its entirety, rather than just the out-of-context 19 snippets quoted by Mr. Neill. 20 21 4. The UCAN website presently has on it two press releases

22 regarding Sprint. One is dated November 29, 2009, and pertains to the instant data 23 card lawsuit. As of February 10, 2008, only 5 individuals have posted comments 24 under this press release. None of the postings is quoted in Mr. Neill's declaration. 25 In fact, each of the postings under this press release is clear that the customers are 26 confused--the customers apparently believe that the instant lawsuit pertains to 27 internet access on cell phones, as opposed to data cards, which allow computers to 28
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DECL OF F. POLEK IN SUPPORT OF DEFENDANTS' OPP. TO PLAINTIFFS' EX PARTE APPLICATION FOR EXPEDITED DISCOVERY

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1 connect to the Internet via Sprint's wireless network. All of the postings beneath 2 this press release (as of February 10, 2008) are excerpted below: 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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On February 8th, 2008 Anonymous (not verified) says:

. . . I would recommend simply having internet blocked by Sprint. . . . A few programs that came readily on the phone also did this kind of connection. Again, with no way to disable the connectivity option.

On February 8th, 2008 Anonymous (not verified) says:

Well I to [sic] am being charged for data charges that I never used and also a ringtone that I never downloaded and is not on my phone. . . . I had them block internet on the phone and for another week following (I was on vacation phone was off) more charges where applied to the phone. On December 12th, 2007 Lester Stroughn (not verified) says:

I am a sprint customer also who has been charge [sic] for using the internet, which I have not.

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On December 12th, 2007 Nicholas Sinnott (not verified) says:

. . . Also charging me for each individual text message while I was paying for unlimited test messaging services. On December 2nd, 2007 Delise (not verified) says:

I complained to sprints [sic] customer service that I have not used the internet on the cell phone. The postings quoted in Mr. Neill's declaration come from a web

5.

page with an entirely different press release, dated January 2, 2008, entitled "Cancel Your Sprint/Nextel Contract Without An Early Termination Fee." In this press release, UCAN appears to be actively soliciting and inciting disgruntled cell phone customers to cancel their contracts, and to use the change in charges as the pretext. Charges on cell phones are not at issue in Plaintiffs' First Amended Complaint. The cell phone press release reads:

UCAN News

UPDATE Avoid the 20 minute hold and the Customer Dis-service Rep. entirely. Call 888 567-5528 and talk directly to the Cancellation Dept. For anyone who was denied, don't give up. Call 888 567-5528.

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For original NEXTEL subscribers, the direct number to ACCOUNT SERVICES is 866-235-1185 and these ARE the people that you need to speak with. Check back for further updates.

For all you frustrated Sprint/Nextel customers, The new $0.75 Administrative Charge and the $0.20 Regulatory Charge can be your ticket to cancelling your contract without paying a $200.00 a phone Early Termination Fee. Make sure you state that you are cancelling because of these material changes.

For you lucky procrastinators, you actually have 30 days from when the charge first appears on your bill. So if your BILLING date is Jan 23, you have until Feb. 22 to assert your right to cancel. Keep the comments coming.

Also check out our guide: How to Cancel Your Cell Phone Contract to learn more, and even get a sample script here!

21 In its rush to incite Sprint customers to cancel, UCAN did not mention that charges 22 for Nextel customers went down as a result of the change in charges. This appears 23 to have caused a lot of confusion in the postings. 24 25 26 27 28
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DECL OF F. POLEK IN SUPPORT OF DEFENDANTS' OPP. TO PLAINTIFFS' EX PARTE APPLICATION FOR EXPEDITED DISCOVERY

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6.

As of February 12, 2008, there were 127 postings under this

2 press release. Sprint's Terms and Conditions are clear that a customer may cancel a 3 contract without an early termination fee only if the customer is canceling because 4 of an adverse material change in the contract terms ("...advise us that you wish to 5 cancel Services because of a material change ..."). However, the postings under 6 UCAN's later press release demonstrate that many customers are canceling, or 7 attempting to cancel, using the change in terms as merely a pretext when they are 8 really canceling for other reasons. In other words, they are seeking to terminate 9 without an early termination fee--even when their charges went down--with the 10 assistance and encouragement of UCAN. The following postings are representative 11 of a large portion of the postings following UCAN's press release: 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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On February 4th, 2008 Ash (not verified) says: . . . but I'm ready to use my iPhone! On January 30th, 2008 mary (not verified) says:

i cancelled my nextel service on 3 nextel phones for which i repeatedly complained about service for [sic]

On January 21st, 2008 bitemenextel (not verified) says:

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DECL OF F. POLEK IN SUPPORT OF DEFENDANTS' OPP. TO PLAINTIFFS' EX PARTE APPLICATION FOR EXPEDITED DISCOVERY

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Again forgive me for sounding like an idiot here but if it is actually costing me less, what is the adverse effect? If you should not mention the fees or charges what put or the terms is [sic] giving me the adverse effect? I can sit on the phone and say that there [sic] service has gone down and all of that (which is what I am most displeased by)

Several postings also demonstrate that some customers are using

10 UCAN's advice not to cancel their contracts, but rather to negotiate special deals, 11 such as receiving a credit to their bills, obtaining a free or discounted phone, etc.: 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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On February 7th, 2008 Anonymous (not verified) says:

The woman was extremely nice and hooked me up with a great deal on a PDA and a great deal on unlimited data. So, maybe call and tell them that your idea of their customer support is tarnished and that you are upset enough to cancel and maybe they will extend some sort of offer to keep you. Worth a shot! Good Luck!

On February 6th, 2008 anonymous (not verified) says:

. . . he was not going to give me an upgrade in my plan just b/c I threatened to cancel my contract.

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DECL OF F. POLEK IN SUPPORT OF DEFENDANTS' OPP. TO PLAINTIFFS' EX PARTE APPLICATION FOR EXPEDITED DISCOVERY

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On February 2nd, 2008 Anonymous (not verified) says:

I agreed [to a new plan] and my HTC Mogul [a newer model phone] should be here by Wednesday. Finally, Mr. Neill's declaration pays scant attention to the many

8.

7 postings by customers who had little or no trouble in canceling their contracts. 8 Many postings give testament to how easy it was for the customers to cancel. This 10 reported being permitted to cancel within 20 minutes or less." (See Neill decl. at 11 ¶¶ 5 & 11.) For example: 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Finally decided to just email Sprint e care. I carefully worded the email to include language that focused on adverse affects to me- they violated T and C etc. I promptly received a response that stated I would be able to cancel and to call a number they gave me- and there will be no ETF!! Yipeeeee! So I called - and a woman answered on the first ring-- I
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9 is in sharp contrast to Mr. Neill's statement that "Only a couple customers have

On February 6th, 2008 Danny (not verified) says:

But she said she would honor the agreement and promptly let me out of my contract. Total call time: 6.5 minutes!

On February 1st, 2008 Anonymous (not verified) says:

am not kidding! First ring- a real person. She tired -7-

DECL OF F. POLEK IN SUPPORT OF DEFENDANTS' OPP. TO PLAINTIFFS' EX PARTE APPLICATION FOR EXPEDITED DISCOVERY

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to first offer me discount - I said "Thanks-- but NO thanks!" The cancel call took just 3 minutes! She was very nice (first time that has happened) And it is done.

On January 30th, 2008 Duke83 (not verified) says:

I have just successfully canceled 9 phones in less than an hour. This is very effective. On January 29th, 2008 Sam (not verified) says:

after 6 years i finally have gotten off of sprint. all you gotta say is you saw the charges on your bill and your want your contract canceled because of it stating its a material change. I transfered threw [sic] 2 people but finally got it done in under 10 minutes!

On January 29th, 2008 Dave (not verified) says:

Called back today just like the rep on Jan 21st told me to. Used the direct line (tyvm) and had my account cancelled with no ETF in less than 5 min. On January 28th, 2008 Anonymous (not verified) says:

I just did it. Took 10 minutes.

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DECL OF F. POLEK IN SUPPORT OF DEFENDANTS' OPP. TO PLAINTIFFS' EX PARTE APPLICATION FOR EXPEDITED DISCOVERY

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On January 25th, 2008 Anonymous (not verified) says:

. . . IT WAS A MATTER OF MINUTES BEFORE EVERYTHING WAS DONE!!!!

On January 22nd, 2008 Anonymous (not verified) says:

Guess what? It worked. Not to mention, the young lady that I dealt with was very pleasant and understanding.

I declare under penalty of perjury under the laws of the state of

13 California that the foregoing is true and correct. Executed this 12th day of February, 14 2008 at San Diego, California. 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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s/Frank J. Polek Attorneys for Defendants SPRINT SOLUTIONS, INC. and SPRINT-SPECTRUM L.P. E-mail: [email protected]

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DECL OF F. POLEK IN SUPPORT OF DEFENDANTS' OPP. TO PLAINTIFFS' EX PARTE APPLICATION FOR EXPEDITED DISCOVERY