Nwabueze v. AT&T Inc. et al

Filing 161

ORDER, 160 STIPULATION WITH PROPOSED ORDER re 156 Errata,, Stipulation and [Proposed] Order Regarding Modification of Settlement in Response to FTC and DOJ Comments filed by AT&T Services, Inc., Pacific Bell Telephone Company, AT&T Operations, Inc.. Signed by Judge Susan Illston on 4/1/13. (tfS, COURT STAFF) (Filed on 4/1/2013)

1
2
3
4
5
6
7
8
9

KELLER GROVER, LLP
JEFFREY F. KELLER #148005
[e-mail]
1965 Market Street
San Francisco, CA 94103
Telephone:
[phone]
Facsimile:
[phone]

PILLSBURY WINTHROP SHAW
PITTMAN LLP
ROXANE A. POLIDORA #135972
[e-mail]
Four Embarcadero Center, 22nd Floor
Post Office Box 2824 (zip 94126)
San Francisco, CA 94111
Telephone: [phone]
Facsimile: [phone]

JACOBS KOLTON, CHTD.
JOHN G. JACOBS (Pro Hac Vice)
BRYAN G. KOLTON (Pro Hac Vice)
[e-mail]
[e-mail]
55 West Monroe Street, Suite 2970
Chicago, IL 60603
Telephone:
[phone]
Facsimile:
[phone]

10

Class Counsel

11

PILLSBURY WINTHROP SHAW
PITTMAN LLP
DOUGLAS R. TRIBBLE #116868
CONNIE J. WOLFE #207661
[e-mail]
[e-mail]
501 West Broadway, Suite 1100
San Diego, CA 92126-3575
Telephone: [phone]
Facsimile: [phone]

[Additional Counsel on Signature Page]
Attorneys for Defendants
PACIFIC BELL TELEPHONE
COMPANY,
AT&T SERVICES, INC. and
AT&T OPERATIONS, INC.

12
13
14
15

UNITED STATES DISTRICT COURT

16

NORTHERN DISTRICT OF CALIFORNIA

17
)
)
)
)
)
Plaintiff,
)
)
vs.
)
)
PACIFIC BELL TELEPHONE COMPANY )
d/b/a AT&T CALIFORNIA, a California
)
corporation; AT&T SERVICES, INC., a
)
Delaware corporation; AT&T
)
OPERATIONS, INC., a Delaware
)
corporation; and DOES 1 through 21,
)
)
Defendants.
)

18 JOY NWABUEZE, individually and on
behalf of a class of similarly situated
19 individuals,
20
21
22
23
24
25

Case No. CV 09-01529 SI
STIPULATION AND [Proposed]
ORDER REGARDING
MODIFICATION OF SETTLEMENT IN
RESPONSE TO FTC AND DOJ
COMMENTS
Judge:

Hon. Susan Illston

26
27
28
601907290

-1-

STIPULATION AND [Proposed] ORDER REGARDING MODIFICATION OF
SETTLEMENT IN RESPONSE TO FTC AND DOJ COMMENTS

Case No. CV 09-01529 SI

WHEREAS, on December 28, 2012, the Parties1 entered into a Settlement Stipulation

1

2 and Agreement, as corrected by the Notice of Errata Re: Stipulation and Settlement
3 Agreement (Doc#156), filed on January 11, 2013 (the “Settlement Agreement”).
4

WHEREAS, the Federal Trade Commission (“FTC”) and United States Department of

5 Justice (“DOJ”) have contacted the Parties regarding certain components of the settlement;
6

WHEREAS, the FTC, the DOJ and the Parties have had several discussions regarding

7 the issues raised by the FTC and DOJ, and while it is the position of the Parties that the
8 Settlement Agreement, without further change, is appropriate, and that the FTC and DOJ lack
9 Article III and Rule 23 standing to appear and/or file objections in this case, the Parties have
10 agreed to amend the Settlement Agreement as set forth in this Stipulation in response to a
11 number of the agencies’ comments and to submit a revised proposed Final Order reflecting
12 and implementing these amendments which are in favor of the Settlement Class;
13

WHEREAS, by agreeing to amend the Settlement Agreement as set forth in this

14 Stipulation, the Parties do not suggest that these amendments will obviate the concerns of the
15 FTC and DOJ; rather, the Parties presently understand that the FTC and DOJ may nonetheless
16 decide to object to this settlement and, if that occurs, the Parties intend to oppose any such
17 objections;
18

NOW THEREFORE, IT IS HEREBY STIPULATED AS FOLLOWS:

19

1. The Parties have agreed to augment the Informational Bulletin provided to Current

20 AT&T ILEC Customers to alert them to the Notice of Settlement. Therefore, Section VII.B.
21 Bill Notice to Current AT&T ILEC Customers is voided and replaced by the following
22 provision (redlined for ease of reference):
23

Beginning no later than thirty (30) days after the Notice
Commencement Date for two consecutive months AT&T shall (1) print on
each billing envelope that is sent to an AT&T ILEC Customer (“billing
envelope”) the words “Important Notice regarding Third-Party Charges,
including how to seek a refund if unauthorized” .25 to .50 inches above the
address window on the front of the envelope in blue or orange lettering with a
13 pt. Clearview font; and (2) for customers who are sent bills in electronic

24
25
26
27
28

1

Capitalized terms used in this Stipulation, unless otherwise defined, shall have the meanings
set forth in the Settlement Agreement.

601907290

-2-

STIPULATION AND [Proposed] ORDER REGARDING MODIFICATION
OF SETTLEMENT IN RESPONSE TO FTC AND DOJ COMMENTS

Case No. CV 09-01529 SI

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16

format AT&T shall provide this same statement on the first page of each
electronic bill (“ebill”) that is transmitted. AT&T shall include enclosures in
these billing envelopes and a link on these ebills as follows:
All Current Customers will receive an Informational Bulletin about
Third-Party billing which shall include a statement of AT&T end-user rights
in the form and substance as then applicable for Third-Party billing provided
to current customers.
In addition, the May 2013 and June 2013 billing statements of Current
Customers will contain the following Notice:
NOTICE OF SETTLEMENT
If your postal mailed bill envelope contains a yellow Class Action
Settlement Notice, or if your e-bill contains an insert entitled “Third-Party
Billing Class Action - Notice & Forms”, that means that AT&T’s records
indicate that in the past you were charged for Third Party Charges that are the
subject of a Class Action Settlement. You should read the Notice carefully to
find out about obtaining a settlement payment if you did not authorize the
charges. If you have any questions about the Settlement, go to
www.ATTthirdpartybillingsettlement.com, email
[e-mail], or call 1.866.242.0603.
In addition to the Informational Bulletininformation described above,
all Settlement Class Members who can be identified through the Settlement
Class Member List Process, and who are Current Customers, will receive a
Notice of Settlement, a Billing Summary Request Form and a Claim Form for
each separately billed BTN as to which the Class Member is receiving notice
as a Current Customer. Such Notice of Settlement shall be on paper of a
different color from any other paper in the envelope and shall be in the form
and substance of Exhibit 8 hereto.
2. The Parties have further agreed to change and simplify the Claim Form Review

17 process for submitting and challenging claims so that Settlement Class Members are not
18 required to provide two separate submissions to successfully rebut a challenge that is based
19 solely on a form proof of authorization or third party verification. Instead, the Settlement
20 Class Member will now verify the Claim Form under penalty of perjury to the best of his or
21 her knowledge and belief in the first instance and challenges based solely upon a letter of
22 authorization or third party verification will not be allowed. Further, all challenges must be
23 supported under the same penalty of perjury verification as required for the Claim and all
24 records regarding the specific charges at issue must be provided to both the Claimant and
25 Class Counsel. The Parties have agreed to make it clearer that Class Counsel will assist in any
26 challenge unless the Settlement Class Member refuses such assistance.
27

3. Accordingly, Section VIII.C. Claim Form Completion and Submission

28
601907290

-3-

STIPULATION AND [Proposed] ORDER REGARDING MODIFICATION
OF SETTLEMENT IN RESPONSE TO FTC AND DOJ COMMENTS

Case No. CV 09-01529 SI

1 Requirements is voided and replaced by the following provision (redlined for ease of
2 reference):
3

14

The Claim Form shall provide the Settlement Class Member with the
ability to apply for a credit or refund of all Net TPCs paid by identifying from
the Billing Summary, or through other documentation provided by the
Claimant, the charges that are claimed to have been unauthorized.
To obtain a refund or credit under this Agreement, a Claim Form must
be timely submitted and signed by the Settlement Class Member certifying
thatverifying under penalty of perjury that, to the best of the Settlement Class
Member’s knowledge and belief the Settlement Class Member paid for a TPC
that appeared on the customer’s AT&T ILEC bill between January 1, 2005
and the date of Preliminary Approval and that: (1) the TPC was placed on the
bill without authorization; or (2) the authorization for the charge was obtained
through deceptive or misleading practices. Settlement Class Members must
also certifyverify under penalty of perjury that, to theirthe best of the
Settlement Class Member’s knowledge and belief, they: (1) have not been
previously reimbursed for such charge(s); and (2) have not otherwise legally
resolved any dispute regarding such charge(s). Each Settlement Class
Member completing the Claim Form shall set forth the Settlement Class
Member’s current legal name, the name the Settlement Class member used for
the AT&T billing account at issue (if different), the Settlement Class
Member’s current mailing address; the 10-digit telephone number(s) on which
the charges(s) subject to their Claim appeared and for Current Customers
(and, if known, for Former Customers) the Settlement Class Member’s Billing
Telephone Account Number.

15

4. Likewise, the second and third paragraphs in Section VIII.D.1., Settlement

4
5
6
7
8
9
10
11
12
13

16 Administrator Review, are voided and replaced by the following provision (redlined for ease
17 of reference):
18
19
20
21
22
23
24
25
26
27
28

All challenges must be made within one hundred twenty (120) days
after the Claim Forms have been provided by the Settlement Administrator to
AT&T and the relevant Clearinghouse(s). If no challenge is made within one
hundred and twenty (120) days, the claim will be deemed valid. Timely
challenges must include the evidence relied upon (e.g., service agreement,
Letter of Authorization, Third-Party Verification, proof of use of service,
payment and/or adjustment records, etc.). All challenges must be
accompanied by a statement under penalty of perjury that, after good faith
investigation, to the best of the challenger’s knowledge and belief, there was a
true and affirmative authorization of the claimed charges by the Claimant and
that all records related to the charges at issue, including but not limited to any
communications with the Claimant, have been submitted with the challenge.
If the challenge is timely made, the Settlement Administrator will
within five (5) days of receipt of the challenge, forward a copy of the challenge
and all supporting evidence to the Settlement Class Member and to Class
Counsel, informing the Settlement Class Member of the right to respond to the
challenge. (The Parties shall agree on the form for such notice of a challenge
and shall agree on the form to be used by the Settlement Class Member for a
response to such challenge prior to the Notice Commencement Date. Any
impasse over the notice and/or form to be used shall be submitted to the Hon.
Wayne D. Brazil (Ret.) for final ruling.) The Settlement Class Member will be
STIPULATION AND [Proposed] ORDER REGARDING MODIFICATION
601907290
-4OF SETTLEMENT IN RESPONSE TO FTC AND DOJ COMMENTS
Case No. CV 09-01529 SI

1
2
3
4
5
6
7
8
9

informed that the response to the challenge (including any evidence the
Settlement Class Member would like to submit) must be made under penalty of
perjury. (The Parties shall agree on the form to be used by the Settlement
Class Member for a response to the challenge prior to the Notice
Commencement Date. Any impasse over the form to be used shall be
submitted to the Hon. Wayne D. Brazil (Ret.) for final ruling.) If requested by
the Class Member, Class Counsel shall assist the Class Member in responding
to any ChallengeClaimants may rebut challenges with evidence and/or further
sworn testimony relating to the basis of any challenge, including by showing
that the Third Party Charges at issue were not knowingly authorized and, if
challenged on the basis of usage, that such usage was not intentional. Class
Counsel will represent Claimants in the challenge and rebuttal process, unless
such Claimants affirmatively refuse such representation or fail to cooperate
with Class Counsel after verifiable good faith efforts by Class Counsel to
represent them. If no response from the Settlement Class Member Claimant is
received by the Settlement Administrator within sixty (60) days after the
challenge was mailed to the Settlement Class Member and Class Counsel, the
claim will be denied.

10
In addition, Section VIII.D.1.b. is voided and replaced by the following provision:
11
No challenge may be asserted based solely upon evidence of an LOA or
12

a TPV.

13

5. The Parties have agreed to provide Settlement Class Members with a more detailed

14 description of the parties being released on the Settlement Website. Thus, the following
15 paragraph is added to the end of existing Section VII.F., Settlement Website:
16
17
18

The Final Settlement Website shall also provide a section describing the
Release and Released Parties which shall reference the applicable sections of
the Settlement Agreement and shall also contain lists of Clearinghouses and
Third-Parties included in the Release, as well as the list of entities and/or
individuals that are specifically excluded from the definition of Released
Parties and who shall not be protected by the Release.

19
20

6. The Parties have agreed to modify the various notices and Claim Form to reflect the

21 above-referenced changes as well as to address a few additional requests, such as to place
22 more emphasis on the impact on future rights by not opting out, and removing AT&T from the
23 same line as the Court when informing the class member not to contact the Court (all changes
24 are redlined for ease of reference in the attached exhibits but will not be redlined when
25 distributed) as follows:
26

(1) The Claim Form shall be amended as reflected in Exhibit 1 hereto;

27

(2) The Publication Notice shall be amended as reflected in Exhibit 2 hereto, with

28
601907290

-5-

STIPULATION AND [Proposed] ORDER REGARDING MODIFICATION
OF SETTLEMENT IN RESPONSE TO FTC AND DOJ COMMENTS

Case No. CV 09-01529 SI

1

the exception of the first publication in the Parade Magazine regional

2

publication in the states of Indiana, Ohio, Michigan Wisconsin, and Illinois on

3

April 7, 2013, as the changes were not agreed upon in sufficient time for

4

inclusion in that publication, thus the original notice shall be used for the April

5

7, 2013 Parade Magazine publication only;

6

(3) The Notice of Settlement (Notice to Current AT&T ILEC Customers) shall be

7

amended as reflected in Exhibit 3 hereto;

8

(4) The Postcard Notice (Notice to Former AT&T ILEC Customers) shall be

9

amended as reflected in Exhibit 4 hereto. The postcard has been modified

10

substantially to make it simpler and clearer. The revised postcard was not

11

redlined as the number of text rearrangements made the redline difficult to

12

read;

13
14

(5) The Email Notice shall be amended as reflected in Exhibit 5 hereto;
7. The Final Website Notice and website content has not been included here, as the

15 Parties are still working to finalize changes consistent with those made to all the other forms
16 of notice, and such changes will be incorporated before the website launch on Monday,
17 April 1, 2013.
18

8. The Parties shall file a revised proposed Final Order with the Court reflecting and

19 implementing the above amendments to the Settlement Agreement in advance of the Final
20 Approval Hearing set for November 1, 2013, and request that the Court enter that order at the
21 Final Approval Hearing.
22 Dated: March 29, 2013

PILLSBURY WINTHROP SHAW PITTMAN LLP
ROXANE A. POLIDORA

23
DOUGLAS R. TRIBBLE
CONNIE J. WOLFE

24
25

By /s/ Roxane A. Polidora
Roxane A. Polidora
Attorneys for Defendants
PACIFIC BELL TELEPHONE COMPANY, AT&T
SERVICES, INC., and AT&T OPERATIONS, INC.

26
27
28
601907290

-6-

STIPULATION AND [Proposed] ORDER REGARDING MODIFICATION
OF SETTLEMENT IN RESPONSE TO FTC AND DOJ COMMENTS

Case No. CV 09-01529 SI

1 Dated: March 29, 2013
2

KELLER GROVER, LLP
JEFFREY F. KELLER

3
JACOBS KOLTON, CHTD.
JOHN G. JACOBS
BRYAN G. KOLTON

4
5
6

By /s/ John G. Jacobs
John G. Jacobs
Class Counsel

7
8

LAW OFFICES OF DAVID SCHACHMAN, PC
DAVID SCHACHMAN (Pro Hac Vice)
[e-mail]
55 West Monroe Street, Suite 2970
Chicago, IL 60603
Telephone: [phone]
Facsimile: [phone]

9
10
11
12

Class Counsel
13
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
MICHAEL W. SOBOL
JAHAN C. SAGAFI
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]

14
15
16
17
18

CADDELL & CHAPMAN
MICHAEL A. CADDELL
CYNTHIA B. CHAPMAN
CRAIG C. MARCHIANDO (Pro Hac Vice)
1331 Lamar Street, Suite 1070
Houston, TX 77010
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]

19
20
21
22
23
24

Class Counsel
25
26
27
28
601907290

-7-

STIPULATION AND [Proposed] ORDER REGARDING MODIFICATION
OF SETTLEMENT IN RESPONSE TO FTC AND DOJ COMMENTS

Case No. CV 09-01529 SI

1

ATTESTATION OF SIGNATURE

2

(N.D. Cal. General Order 45)

3

I, Roxane A. Polidora, hereby attest that concurrence in the filing of this document

4 entitled STIPULATION AND [Proposed] ORDER REGARDING MODIFICATION OF
5 SETTLEMENT IN RESPONSE TO FTC AND DOJ COMMENTS has been obtained from
6 all of the signatories.
7
8 Dated: March 29, 2013

By /s/ Roxane A. Polidora
Roxane A. Polidora

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
601907290

-8-

STIPULATION AND [Proposed] ORDER REGARDING MODIFICATION
OF SETTLEMENT IN RESPONSE TO FTC AND DOJ COMMENTS

Case No. CV 09-01529 SI

1

[PROPOSED] ORDER

2
PURSUANT TO STIPULATION AND FOR GOOD CAUSE SHOWN, IT IS SO
3
ORDERED. The Settlement Stipulation and Agreement, dated December 29, 2013, as
4
corrected by the Notice of Errata Re: Stipulation and Settlement Agreement (Doc#156), filed
5
on January 11, 2013, shall be further amended as set forth in the Stipulation above. Parties
6
shall file a revised proposed Final Order reflecting the modifications at least fourteen (14)
7
days prior to the Final Approval Hearing, which is currently scheduled for November 1, 2013.
8
9
10 Date:

4/1/13
The Honorable Susan Illston
United States District Judge

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
601907290

-9-

STIPULATION AND [Proposed] ORDER REGARDING MODIFICATION
OF SETTLEMENT IN RESPONSE TO FTC AND DOJ COMMENTS

Case No. CV 09-01529 SI