Morgenstein v. AT&T Mobility, LLC

Filing 79

STIPULATION AND ORDER OF DISMISSAL WITH PREJUDICE. Signed by Judge ARMSTRONG on 3/31/10. (lrc, COURT STAFF) (Filed on 4/1/2010)

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MAYER BROWN LLP DONALD M. FALK (SBN 150256) [e-mail] RENA CHNG (SBN 209665) [e-mail] J. JOANN LIAO (SBN 227329) [e-mail] Two Palo Alto Square, Suite 300 3000 El Camino Real Palo Alto, CA 94306-2112 Telephone: [phone] Facsimile: [phone] JOHN NADOLENCO (SBN 181128) [e-mail] 350 South Grand Avenue, 25th Floor Los Angeles, CA 90071-1503 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant AT&T Mobility LLC UNITED STATES DISTRICT COURT NORTHERN DISTRICT OAKLAND DIVISION DAVID MORGENSTEIN, individually and on behalf of all others similarly situated, Plaintiff, v. AT&T MOBILITY LLC, a Delaware corporation, and DOES 1-50, inclusive, Defendants. Case No. 09-cv-03173 SBA STIPULATION AND ORDER OF DISMISSAL WITH PREJUDICE

STIPULATION AND [PROPOSED] ORDER OF DISMISSAL WITH PREJUDICE CASE NO. 09-CV-03173 SBA

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Plaintiff David Morgenstein ("Morgenstein") and Defendant AT&T Mobility LLC ("ATTM"), by and through their counsel of record, hereby stipulate that: 1. June 11, 2009; 2. Morgenstein alleges that, on March 20, 2009, he purchased online from Amazon Morgenstein filed the above-captioned putative class-action against ATTM on

new ATTM wireless service bundled with a new ATTM-compatible Blackberry, and further alleges that, although he did not receive his Blackberry until March 27, 2009, ATTM began charging him for service on March 23, 2009; 3. Morgenstein alleges that ATTM did not adequately disclose that it could or would

charge customers who ordered new ATTM wireless service bundled with new ATTMcompatible devices online for service before they received their devices, which Plaintiff defines as "en-route charges"; 4. On behalf of himself and a putative class of California customers who purchased

new ATTM wireless service bundled with new ATTM-compatible devices and paid en-route charges, Morgenstein brought claims for breach of contract, violations of Public Utilities Code section 2890 and Consumer Legal Remedies Act (Civ. Code section 1750 et seq.), unfair competition (Bus. & Prof. Code section 17200 et seq.), false advertising (Bus. & Prof. Code section 17500 et seq.), unjust enrichment, and declaratory judgment; 5. ATTM maintains that its disclosures make clear that service charges begin upon

activation, disputes that it did not adequately disclose the possibility that customers could or would be charged en-route charges, and disputes that it has any liability to Morgenstein or any putative class member in connection with the matters alleged in the Complaint; 6. 7. The parties agree to settle the above-captioned action on an individual basis; The parties agree that the insertion of the following provision, or language that

has the effect of the following provision, in the Terms of Service in ATTM's Customer Service Agreements with customers who purchase new ATTM wireless service bundled with new ATTM-compatible devices constitutes an adequate disclosure to customers regarding en-route -2STIPULATION AND [PROPOSED] ORDER OF DISMISSAL WITH PREJUDICE CASE NO. 09-CV-03173 SBA

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charges: "Depending upon a number of factors (including your chosen method of shipment and the timing of shipment), you may be charged for service before you receive your new device;" 8. Pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii), Morgenstein

dismisses his individual claims against ATTM with prejudice; and 9. Each party shall bear its own costs and fees

IT IS SO STIPULATED. Dated: March 30, 2010 Nassiri & Jung LLP By: /s/ Kassra Nassiri Kassra Nassiri

Attorneys for Plaintiff David Morgenstein Dated: March 30, 2010 Mayer Brown LLP By: /s/ John Nadolenco John Nadolenco

Attorneys for Defendant AT&T Mobility LLC Filer's Attestation: Pursuant to General Order No. 45, I, Rena Chng, attest that I obtained concurrence in the filing of this document from the signatories.

-3STIPULATION AND [PROPOSED] ORDER OF DISMISSAL WITH PREJUDICE CASE NO. 09-CV-03173 SBA

1 2 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 Dated: 3/31/10 IT IS SO ORDERED.

[PROPOSED] ORDER Plaintiff claims, inter alia, that ATTM failed to properly disclose that customers who purchased ATTM service and devices online might be subject to "en-route charges," as defined above. ATTM maintains that its disclosures are adequate. The parties agree that the following provision added to ATTM's Terms of Service in its Customer Service Agreements, or language that has the effect of the following provision, constitutes an adequate disclosure about the potential for en-route charges: "Depending upon a number of factors (including chosen method of shipment and shipment timing), you may be charged for service before you receive your new device." ATTM is ordered to make this change to its Customer Service Agreements within 180 days of entry of this order. Pursuant to stipulation and for good cause shown, Morgenstein's individual claims against ATTM are dismissed with prejudice.

________________________________________ The Honorable Saundra B. Armstrong United States District Judge

-4STIPULATION AND [PROPOSED] ORDER OF DISMISSAL WITH PREJUDICE CASE NO. 09-CV-03173 SBA