Hendricks v. AT&T Mobility LLC

Filing 53

MOTION for Leave to File Response to Objections to Declaration of Jan Mendel filed by AT&T Mobility LLC. (Attachments: # 1 Proposed Order, # 2 Supplement Response to Objections to Declaration of Jan Mendel, # 3 Declaration of Jan Mendel (Supplemental), # 4 Declaration of Kevin S. Ranlett)(Ranlett, Kevin) (Filed on 10/19/2011)

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1 2 3 4 5 6 7 8 9 10 Donald M. Falk (CA Bar No. 150256) dfalk@mayerbrown.com MAYER BROWN LLP Two Palo Alto Square, Suite 300 3000 El Camino Real Palo Alto, CA 94306-2112 Telephone: (650) 331-2000 Facsimile: (650) 331-2060 John Nadolenco (CA Bar No. 181128) jnadolenco@mayerbrown.com MAYER BROWN LLP 350 South Grand Avenue, 25th Floor Los Angeles, CA 90071-1503 Telephone: (213) 229-9500 Facsimile: (213) 625-0248 Attorneys for Defendant AT&T Mobility LLC 11 UNITED STATES DISTRICT COURT 12 NORTHERN DISTRICT OF CALIFORNIA 13 SAN FRANCISCO DIVISION 14 15 16 17 Case No. CV 11-00409-CRB PATRICK HENDRICKS, on behalf of himself and all others similarly situated, Plaintiff, 18 19 20 21 vs. AT&T MOBILITY, LLC, Defendant. SUPPLEMENTAL DECLARATION OF JAN MENDEL IN SUPPORT OF DEFENDANT AT&T MOBILITY LLC’S MOTION TO COMPEL ARBITRATION AND STAY CASE Date: October 21, 2011 Time: 10:00 a.m. Courtroom 8 Honorable Charles R. Breyer 22 23 24 25 26 27 28 SUPPLEMENTAL DECLARATION OF JAN MENDEL IN SUPPORT OF DEFENDANT ATTM’S MOTION TO COMPEL ARBITRATION AND STAY CASE; CASE NO. CV 11-00409-CRB 1 2 3 4 I, Jan Mendel, hereby declare as follows: 1. The following facts are of my own personal knowledge, and if called as a witness I could and would testify competently as to their truth. 2. I submitted a declaration in this case to respond to plaintiff Patrick Hendricks’s 5 contention that AT&T Mobility LLC (“ATTM”) routinely prevents consumers from pursuing 6 arbitration by refusing to pay the American Arbitration Association (“AAA”) for a consumer’s 7 filing fee or other arbitration costs when required to do so by the arbitration provision in the 8 consumer’s wireless service agreement. 9 3. In my earlier declaration, I explained that I am the Lead Discovery Manager with 10 the AT&T Mobility LLC (“ATTM”) Legal Department and am involved with the resolution of 11 customer disputes under ATTM’s arbitration provision. I also explained that, since ATTM 12 committed itself to paying its customers’ share of arbitration costs in qualifying cases in mid- 13 2003, ATTM had never prevented a customer from obtaining relief via the arbitration process by 14 refusing to pay those costs, with the sole exception of the arbitration demands recently submitted 15 by the law firm of Bursor & Fisher, P.A. seeking to enjoin the proposed AT&T/T-Mobile 16 merger. 17 4. I have read Mr. Hendricks’s objection to my declaration, which asserts that I have 18 not sufficiently explained how it is that I have personal knowledge of the facts in my declaration. 19 I am submitting this supplemental declaration to respond to that objection. 20 5. To begin with, I have personal knowledge of ATTM’s arbitrations with 21 consumers because, since I joined the Litigation Group in the summer of 2004, after having been 22 hired by the Legal Department in August 2003, I have been tracking every such arbitration. 23 Although my title has changed over time, I have been involved with the ATTM consumer 24 arbitration program since joining the Litigation Group. 25 6. ATTM was previously known as Cingular Wireless LLC (“Cingular”). One of 26 my first tasks when I joined the Litigation Group of the Legal Department was to track the then- 27 pending consumer arbitrations brought under the then-current Cingular arbitration provision 28 (which had been implemented in July 2003). And I have continued to track those arbitrations. SUPPLEMENTAL DECLARATION OF JAN MENDEL IN SUPPORT OF DEFENDANT ATTM’S MOTION TO COMPEL ARBITRATION AND STAY CASE; CASE NO. CV 11-00409-CRB 1 Since late 2006, I have also been the designated person at ATTM to receive service of consumer 2 demands for arbitration and to handle communications with the AAA about the arbitration 3 program, including communications about billings for ATTM consumer arbitrations. 4 7. In addition, I maintain or have access to records of ATTM’s arbitrations with 5 consumers from mid-2003 to the present, including records of payments to the AAA and 6 invoices from the AAA. According to those records, every invoice from the AAA during the 7 relevant time period, with no exception of which I am aware or that I could find, was paid. 8 8. Given my role in ATTM’s consumer arbitration program, I would have been 9 aware of any attempt by ATTM since I joined the Litigation Group to prevent an arbitration from 10 being administered by the AAA by deliberately refusing to pay the costs of that arbitration. For 11 example, I would be aware if the AAA had terminated ATTM’s consumer arbitration program; I 12 have been informed by the AAA that if a business were to fail to pay arbitration costs that the 13 AAA concludes that the business owes, the AAA will refuse to administer any arbitrations for 14 that business. 15 9. In addition, it is my understanding that the AAA agrees that—with the sole 16 exception of the recent arbitrations challenging the AT&T/T-Mobile merger filed by the Bursor 17 & Fisher, P.A. law firm—ATTM consistently pays the costs of consumer arbitration. Attached 18 as Exhibit 1 is a true and correct copy of a letter, which I retrieved from ATTM’s files, from Eric 19 Tuchmann, the AAA’s General Counsel, to a lawyer representing an ATTM customer who had 20 brought an arbitration under ATTM’s consumer arbitration provision. 21 Tuchmann explained that the AAA had selected ATTM (among other companies) for a pilot 22 program under which consumer cases would be accepted for administration even before the 23 business had paid the fees because those companies had “historically complied” with their 24 obligation under the AAA’s Consumer Due Process Protocol to pay those fees. 25 10. In the letter, Mr. Finally, in my earlier declaration, I had noted that ATTM had paid the costs of 26 arbitration even when the consumer had breached the arbitration provision by first filing a 27 lawsuit in a court before initiating arbitration. I have personal knowledge of that fact because I 28 also track consumer lawsuits against ATTM, including at least one that led to a consumer SUPPLEMENTAL DECLARATION OF JAN MENDEL IN SUPPORT OF DEFENDANT ATTM’S MOTION TO COMPEL ARBITRATION AND STAY CASE; CASE NO. CV 11-00409-CRB

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