Hendricks v. AT&T Mobility LLC

Filing 51

MOTION for Leave to File Supplemental Brief Addressing Judicial Estoppel filed by Patrick Hendricks. (Attachments: # 1 Exhibit Plaintiff's Supplemental Brief Addressing Judicial Estoppel, # 2 Exhibit Request for Judicial Notice)(Fisher, Lawrence) (Filed on 10/14/2011)

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BURSOR & FISHER, P.A.
Scott A. Bursor (State Bar No. 276006)
369 Lexington Avenue, 10th Floor
New York, NY 10017
Telephone: [phone]
Facsimile: [phone]
E-Mail: [e-mail]
BURSOR & FISHER, P.A.
L. Timothy Fisher (State Bar No. 191626)
Sarah N. Westcot (State Bar No. 264916)
1990 North California Blvd., Suite 940
Walnut Creek, CA 94596
Telephone: [phone]
Facsimile: [phone]
E-Mail: [e-mail]
[e-mail]

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THORNTON, DAVIS & FEIN, P.A.
Barry L. Davis (pro hac vice)
Daniel R. Lever (pro hac vice)
Aaron P. Davis (pro hac vice)
80 SW Eighth Street, 29th Floor
Miami, Florida 33130
Tel: [phone]
Fax: [phone]
Email: [e-mail]
[e-mail]
[e-mail]

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Attorneys for Plaintiff

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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PATRICK HENDRICKS, on behalf of himself
and all others similarly situated,

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Plaintiff,

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PLAINTIFF’S SUPPLEMENTAL BRIEF
ADDRESSING JUDICIAL ESTOPPEL
Date: October 21, 2011
Time: 10:00 a.m.
Courtroom 8

v.
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Case No. C11-00409 CRB

Hon. Charles R. Breyer

AT&T MOBILITY LLC,

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Defendant.

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PLAINTIFF’S SUPPLEMENTAL BRIEF ADDRESSING JUDICIAL ESTOPPEL
CASE NO. C11-00409 CRB

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In AT&T Mobility LLC v. Gonnello, Case No. 11 Civ. 5636 (S.D.N.Y.) (filed August 12,

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2008, order denying motion to compel arbitration October 7, 2011), AT&T Mobility LLC (“AT&T”)

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contradicted the fundamental premise of its motion to compel arbitration of Mr. Hendricks’ claims.

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AT&T persuaded the Gonnello court that claims seeking broad injunctive remedies are outside the

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scope of the agreement to arbitrate. AT&T should now be judicially estopped from asserting the

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opposite argument: that Mr. Hendricks’ claims seeking broad injunctive relief are within the scope

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of an agreement to arbitrate. See, e.g., Hendricks Complaint ¶¶ 46(b), 53(b), 58(b) and 70 (seeking

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broad injunctive relief requiring AT&T to “cease the improper billing of data usage”) (Dkt. 34).

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AT&T’s motion to compel arbitration should be denied on that ground, and the Court need not reach

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the question of the enforceability of the agreement to arbitrate.
“Judicial estoppel is an equitable doctrine that precludes a party from gaining an advantage

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by asserting one position, and then later seeking an advantage by taking a clearly inconsistent

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position.” Hamilton v. State Farm Fire & Casualty Co., 270 F.3d 778, 782 (9th Cir. 2001). Courts

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invoke judicial estoppel “not only to prevent a party from gaining an advantage by taking

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inconsistent positions, but also because of general consideration[s] of the orderly administration of

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justice and regard for the dignity of judicial proceedings, and to protect against a litigant playing fast

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and loose with the courts.” Id. (internal quotation marks omitted). In determining whether to apply

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judicial estoppel, courts typically consider three factors: (1) whether a party’s later position is

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“clearly inconsistent” with its original position; (2) whether the party has successfully persuaded the

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court of the earlier position; and (3) whether allowing the inconsistent position would allow the party

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to derive an unfair advantage or impose an unfair detriment on the opposing party. Id. at 782-83,

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quoting New Hampshire v. Maine, 532 U.S. 742, 121 S. Ct. 1808, 1815, 149 L. Ed.2d 968 (2001).

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Here, all three criteria are met and AT&T should be judicially estopped from asserting that

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Mr. Hendricks’ claims are within the scope of an agreement to arbitrate.

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PLAINTIFF’S SUPPLEMENTAL BRIEF ADDRESSING JUDICIAL ESTOPPEL
CASE NO. C11-00409 CRB

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AT&T’s Argument That Mr. Hendricks’ Claims Are Within The Scope Of The

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Arbitration Agreement Is “Clearly Inconsistent” With AT&T’s Arguments In

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Gonnello

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AT&T asserted two arguments in Gonnello that are fundamentally and clearly inconsistent
with its arguments in support of this motion:

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AT&T’s Arguments In Hendricks
“Full remedies available: The arbitrator
may award the consumer any form of
individual relief (including punitive
damages, statutory damages, attorneys’
fees, and injunctions) that a court could
award.” (Dkt. 35, AT&T Motion to
Compel Arbitration at 4:21-23) (bold in
original)

“Defendants argue that an individual could bring
a claim in court seeking to enjoin the merger and
that the same claim therefore may be asserted
under the arbitration agreement. But that
argument fundamentally misunderstands the
restrictions set forth in the arbitration agreement.
To begin with, Section 2.2(6) prohibits an
arbitrator from ‘presid[ing] over any form of a
representative or class proceeding.’ Compl. Ex.
A § 2.2(6) A demand seeking to institute any
form of a representative … proceeding’ is barred,
even though, in the absence of the agreement, an
individual could bring such a proceeding in court.
The agreement is even more specific with regard
to injunctive relief, stating that an arbitrator may
not award injunctive relief that is ‘in favor of’
more people than the ‘individual party’ alone or
that is greater than ‘necessary to provide relief
warranted by the[e] party’s individual claim.’ Id.
Because that language prohibits an arbitrator
from enjoining [ATTM] from continuing [a]
violative practice as to other[s], it necessarily
limits a remedy available to consumers in court.”
(Gonnello Dkt. 9, AT&T Preliminary Injunction
Mem. at 26) (Internal quotation marks omitted)
(RJN Exh. 1).

“Moreover, there can be no denying that
Hendricks’ claims fall within the broad
scope of his agreement to arbitrate ‘all
disputes and claims between’ himself and
ATTM. … The plain language of
ATTM’s arbitration provision is allencompassing and ‘intended to be broadly
interpreted.’” (Dkt. 35, AT&T Motion to
Compel Arbitration at 7:14-17)

“Defendants’ demands are precluded by Section
2.2(6), and therefore fall outside the scope of
their arbitration agreements ….” (Gonello Dkt. 9,
AT&T Preliminary Injunction Mem. at 16) (RJN
Exh. 1).

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AT&T’s Clearly Inconsistent Arguments In
Gonnello

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PLAINTIFF’S SUPPLEMENTAL BRIEF ADDRESSING JUDICIAL ESTOPPEL
CASE NO. C11-00409 CRB

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2. AT&T Successfully Persuaded The Gonnello Court To Restrict The Scope Of The
Arbitration Agreement

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AT&T successfully persuaded the Gonnello court that “full remedies” are not available in

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arbitration, and that the scope of the arbitration clause is not all-encompassing because it excludes

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claims that seek remedies AT&T contends are prohibited by Section 2.2(6). See Gonnello October 7,

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2011 Order at 7 (“As the only relief sought by the individual defendants is relief that is foreclosed by

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the language of the arbitration provision, the demand for arbitration is beyond the scope of disputes

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that the parties have contractually agreed to arbitrate.”) (RJN Exh. 2).

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3. Accepting AT&T’s Inconsistent Arguments Would Allow AT&T To Derive An
Unfair Advantage Against, And Impose An Unfair Detriment Upon, Mr. Hendricks

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“A prime objective of an agreement to arbitrate is to achieve ‘streamlined proceedings and

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expeditious results.’” Preston v. Ferrer, 552 U.S. 346, 357-58 (2008), quoting Mitsubishi Motors

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Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 633 (1985). That might be possible with an

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arbitration agreement that is “all-encompassing” and makes “full remedies available.” But allowing

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AT&T to assert inconsistent positions on the scope of the agreement to arbitrate gives AT&T an

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unfair advantage because it can choose its forum. To stifle Mr. Hendricks’ case in court, AT&T

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contends the arbitration agreement is “all-encompassing.” To stifle Mr. Hendricks’ case in

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arbitration, AT&T can assert the contradictory arguments from Gonnello, that remedies are restricted

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and Mr. Hendricks’ claims thus fall “far outside the scope” of the agreement to arbitrate.

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The ability to assert these inconsistent arguments would allow AT&T to straddle the line

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between court and arbitration to prevent claims from being asserted in either venue. AT&T could

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drag Mr. Hendricks back and forth between court and arbitration in a potentially endless circle that

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will not promote efficient dispute resolution. Accepting AT&T’s contradictory arguments would

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fundamentally deprive Mr. Hendricks of the benefits – streamlined and efficient dispute resolution –

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that are supposed to flow from an agreement to arbitrate, and leave him with no potential remedy in

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either forum.

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For the foregoing reasons, AT&T should be judicially estopped from asserting that Mr.
Hendricks’ claims are within the scope of an agreement to arbitrate. AT&T’s motion to compel
PLAINTIFF’S SUPPLEMENTAL BRIEF ADDRESSING JUDICIAL ESTOPPEL
CASE NO. C11-00409 CRB

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arbitration should be denied on that ground, and the Court need not reach the question of the

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enforceability of the agreement to arbitrate.

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Dated: October 14, 2011

Respectfully submitted,
BURSOR & FISHER, P.A.
Scott A. Bursor (State Bar No. 276006)
369 Lexington Avenue, 10th Floor
New York, NY 10017
Telephone: [phone]
Facsimile: [phone]
E-Mail: [e-mail]

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By

/s/
Scott A. Bursor

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L. Timothy Fisher (State Bar No. 191626)
Sarah N. Westcot (State Bar No. 264916)
1990 North California Blvd., Suite 940
Walnut Creek, CA 94596
Telephone: [phone]
Facsimile: [phone]
E-Mail: [e-mail]
[e-mail]

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THORNTON, DAVIS & FEIN, P.A.
Barry L. Davis (pro hac vice)
Daniel R. Lever (pro hac vice)
Aaron P. Davis (pro hac vice)
80 SW Eighth Street, 29th Floor
Miami, Florida 33130
Tel: [phone]
Fax: [phone]
Email: [e-mail]
[e-mail]
[e-mail]

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Attorneys for Plaintiff

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PLAINTIFF’S SUPPLEMENTAL BRIEF ADDRESSING JUDICIAL ESTOPPEL
CASE NO. C11-00409 CRB

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