McKinney v. Google, Inc. et al

Filing 78

Transcript of Proceedings held on 11/01/2010, before Judge Ware. Court Reporter/Transcriber Irene L. Rodriguez, Telephone number [phone]. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Redaction Request due 1/26/2011. Redacted Transcript Deadline set for 2/7/2011. Release of Transcript Restriction set for 4/5/2011. (Rodriguez, Irene) (Filed on 1/5/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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MARY MCKINNEY, ET AL.,

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PLAINTIFFS,

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V.

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GOOGLE, INC., ET AL.,

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DEFENDANTS.
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C-10-1177-JW
NOVEMBER 1, 2010

PAGES 1 - 35

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THE PROCEEDINGS WERE HELD BEFORE

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THE HONORABLE UNITED STATES DISTRICT

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JUDGE JAMES WARE

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A P P E A R A N C E S:

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FOR THE PLAINTIFFS: WHATLEY, DRAKE & KALLAS
BY: ADAM PLANT
HOWARD ROBINSTEIN
2100 PARK PLACE NORTH
SUITE 1000
BIRMINGHAM, ALABAMA 35203

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FOR THE DEFENDANTS: DECHERT
BY: STEVEN WEISBURD
300 W. 6TH STREET
SUITE 2010
AUSTIN, TEXAS 78701

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(APPEARANCES CONTINUED ON THE NEXT PAGE.)
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OFFICIAL COURT REPORTER: IRENE RODRIGUEZ, CSR, CRR
CERTIFICATE NUMBER 8074
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U.S. COURT REPORTERS

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A P P E A R A N C E S:

(CONT'D)

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FOR THE DEFENDANTS:

MUNGER, TOLLES & OLSON
BY: ROSEMARIE T. RING
560 MISSION STREET
27TH FLOOR
SAN FRANCISCO, CALIFORNIA
94105

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DAVIS, WRIGHT & TREMAINE
BY: JAMES C. GRANT
1201 THIRD AVENUE
SUITE 2200
SEATTLE, WASHINGTON 98101

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U.S. COURT REPORTERS

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SAN JOSE, CALIFORNIA

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NOVEMBER 1, 2010

P R O C E E D I N G S
(WHEREUPON, COURT CONVENED AND THE
FOLLOWING PROCEEDINGS WERE HELD:)
THE CLERK:
MCKINNEY V. GOOGLE.
THE COURT:

CALLING CASE NUMBER 10-1177,
ON FOR DEFENDANT'S -COUNSEL, YOU MAY WISH TO HAVE

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YOUR ORIGINAL DOCUMENT BACK JUST IN CASE THERE ARE

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FURTHER PROCEEDINGS ON THIS.

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THE CLERK:

ON FOR DEFENDANT T-MOBILE'S

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MOTION TO COMPEL AND ARBITRATION MOTION TO DISMISS

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AND DEFENDANT HTC AND GOOGLE'S MOTION TO DISMISS.

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FIFTEEN MINUTES EACH SIDE.

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COUNSEL, COME FORWARD AND STATE YOUR

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APPEARANCES.
MR. ROBINSTEIN:

MY NAME IS HOWARD

ROBINSTEIN FOR THE PLAINTIFF MS. MCKINNEY.
MR. PLANT:

YOUR HONOR, ADAM PLANT FROM

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BIRMINGHAM, ALABAMA FOR MCKINNEY.

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MR. WEISBURD:

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GOOD MORNING, YOUR HONOR.

STEVEN WEISBURD FOR DEFENDANT GOOGLE.
MS. RING:

ROSEMARIE RING FOR DEFENDANT

HTC CORPORATION.
MR. GRANT:

AND GOOD MORNING, YOUR HONOR.

JIM GRANT ON BEHALF OF T-MOBILE U.S.A.
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U.S. COURT REPORTERS

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THE COURT:

DID YOU BRING MR. PLANT IN

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BECAUSE I'M FROM ALABAMA?

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MR. ROBINSTEIN:

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THE COURT:

NO.

THERE ARE A BUNCH OF MOTIONS,

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MOTION TO COMPEL ARBITRATION, MOTION TO DISMISS,

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HTC'S MOTION TO COMPEL AND STAY, AND GOOGLE AND

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HTC'S MOTION TO DISMISS.

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SO WHO WANTS TO GO FIRST?

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MR. WEISBURD:

YOUR HONOR, IF I MAY, WE

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HAD PROPOSED TO ARGUE FIRST THE GOOGLE AND HTC

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MOTION TO DISMISS FOLLOWED BY MR. GRANT, T-MOBILE'S

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COUNSEL, TO ARGUE T-MOBILE'S MOTION TO DISMISS AND

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T-MOBILE'S MOTION TO ARBITRATE.

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THE COURT:

ALL RIGHT.

GO AHEAD.

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MR. WEISBURD:

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YOUR HONOR, THE CLAIMS IN THE FIRST

THANK YOU, YOUR HONOR.

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AMENDED COMPLAINT WHICH GOOGLE AND HTC'S MOTION TO

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DISMISS ARE A CLAIM UNDER THE FEDERAL

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COMMUNICATIONS ACT, A CALIFORNIA STATE LAW EXPRESS

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WARRANTY AND IMPLIED WARRANTY OF MERCHANTABILITY

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CLAIM, AND A FEDERAL MOSS MAGNUSON WARRANTY ACT

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CLAIM.

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PARDON ME.
ALL OF THE CLAIMS RELATE TO THE NEXUS ONE

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ADVANCED MOBILE DEVICE.

THE NEXUS ONE IS DESIGNED

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TO OPERATE AND DOES OPERATE ON BOTH 2G OR 3G
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U.S. COURT REPORTERS

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NETWORKS AND THAT'S UNDISPUTED AND ALLEGED IN THE

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COMPLAINT.

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YET ALL OF THE CLAIMS ARE PREMISED ON A

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SUPPOSED PROMISE OR AFFIRMATION OF FACT OR ALLEGED

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MISREPRESENTATION THAT THE GOOGLE PHONE, AS

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PLAINTIFFS CALL IT, THE NEXUS ONE DEVICE, WAS

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GUARANTEED TO PROVIDE CONSISTENT 3G CONNECTIVITY

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AND THAT'S A PROMISE THAT AS OUR MOTION TO DISMISS

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MAKES CLEAR, WAS NOT MADE.

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AND THE FIRST ISSUE IN OUR MOTION TO

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DISMISS THE FEDERAL COMMUNICATIONS ACT CLAIM, IS

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THE FACT THAT THAT CLAIM SOUNDS AS PLED FALSE

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ADVERTISING OR MISREPRESENTATION AND YET IT ISN'T

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PLED CONSISTENT WITH RULE 9(B)'S SPECIFICITY

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REQUIREMENT.

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THE PLAINTIFFS TRY TO ARGUE THAT RULE

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9(B), THAT DOES NOT APPLY TO A FEDERAL

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COMMUNICATION ACT CLAIM, BUT IT DOESN'T MATTER

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WHETHER THERE'S AN ESSENTIAL ELEMENT OF THE F.C.A.

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CLAIM FOR MISREPRESENTATION BECAUSE UNDER THE NINTH

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CIRCUIT'S KEARNS AND VESS DECISIONS WHAT MATTERS IS

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HOW THE PLAINTIFFS HAVE PLED THEIR THEORY AND THIS

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THEORY IS A FALSE ADVERTISING THEORY SOUNDING IN

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MISREPRESENTATION.

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SO WE LOOK THROUGH THE COMPLAINT TO FIND
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U.S. COURT REPORTERS

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ANY INSTANCE WHERE ANY OF THE DEFENDANTS PROMISED

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THIS CONSISTENT 3G CONNECTIVITY WITH THE NEXUS ONE

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DEVICE, AND IT'S TOTALLY LACKING.

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THE ONLY PARTICULARLY PLED ALLEGED

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MISSTATEMENT BY GOOGLE IS THEIR STATEMENT ON THEIR

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WEB SITE, QUOTE, "EXPERIENCE THE NEXUS ONE, THE NEW

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ANDROID PHONE FROM GOOGLE."

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WELL, THAT'S NOT A MISREPRESENTATION.
IT'S REALLY NOT EVEN A STATEMENT OF FACT.

AND IT

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CERTAINLY DOESN'T MAKE THE KIND OF PROMISE OF 3G

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CONNECTIVITY THAT THE PLAINTIFFS' CLAIMS ARE

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FOUNDED IN.

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HTC IS NOT EVEN ALLEGED TO MAKE ANY

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STATEMENT.

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CLAIM SOUNDING IN FRAUD WITH A PARTICULAR

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REQUIREMENT BY RULE 9(B).

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SO THE F.T.C. MAKES A MISREPRESENTATION

THERE ARE MULTIPLE OTHER REASONS THAT THE
FEDERAL COMMUNICATION ACT CLAIM FAILS THOUGH.

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FIRST, GOOGLE AND HTC ARE NOT EVEN

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ALLEGED TO BE COMMON CARRIERS AND THE FEDERAL

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COMMUNICATION ACT CAN ONLY BE ASSERTED AGAINST

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COMMON CARRIERS UNDER THE NINTH CIRCUIT'S HOWARD

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DECISION.

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IN ADDITION, THE NINTH CIRCUIT REQUIRES
IN THE NORTH COUNTY CASE THE PLAINTIFFS TO PLEAD A
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U.S. COURT REPORTERS

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PRIOR F.C.C. DETERMINATION THAT THE DEFENDANT'S

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PARTICULAR CHALLENGED CONDUCT VIOLATE SECTION 201

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OF THE FEDERAL COMMUNICATIONS ACT.

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PLAINTIFFS DON'T PLEAD SUCH AN F.C.C.
DETERMINATION HERE.

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SO THERE'S MULTIPLE REASONS THAT THE

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FEDERAL COMMUNICATION ACT FAILS.

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THAT WE TALKED ABOUT, THE FAILURE TO PLEAD ANY

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MISSTATEMENT OR FALSE PROMISE OF 3G CONNECTIVITY

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CARRIES RIGHT OVER TO THE EXPRESS WARRANTY CLAIM,

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THE SECOND CLAIM, BECAUSE PLAINTIFFS DON'T ALLEGE

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THAT GOOGLE OR HTC MADE ANY AFFIRMATION OF FACT OR

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PROMISE ABOUT THE NEXUS ONE PHONE THAT COULD GIVE

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RISE TO AN EXPRESS WARRANTY CLAIM PROFOUNDED ON A

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CONSISTENT 3G CONNECTIVITY, CONSISTENT CONNECTIVITY

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TO T-MOBILE'S 3G NETWORK.

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THAT FIRST REASON

IN ADDITION, AS WE EXPLAINED IN OUR

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BRIEFS, BOTH HTC AND GOOGLE DISCLAIM THE SORT OF

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EXPRESS WARRANTY THAT PLAINTIFFS' CLAIM IS FOUNDED

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UPON.

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AND UNDER YOUR HONOR'S OWN DECISION IN

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LONG, THE KIND OF DISCLAIMER THAT GOOGLE HAS MADE

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HERE IN ITS TERMS OF USE THAT ARE PROPERLY BEFORE

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THE COURT UNDER ITS LONG DECISION PROVIDES ANOTHER

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REASON WHY THE EXPRESS WARRANTY FAILS, APART FROM
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U.S. COURT REPORTERS

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THE FACT THAT PLAINTIFFS DON'T ALLEGE TO HAVE

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REASONABLY RELIED ON ANY STATEMENT THAT, FRANKLY,

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GOOGLE AND HTC NEVER MADE AND AREN'T PARTICULARLY

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PLED TO HAVE MADE TO BEGIN WITH.

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ON THE IMPLIED WARRANTY OF

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MERCHANTABILITY CLAIM, YOUR HONOR, WE HAVE MULTIPLE

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GROUNDS FOR CHALLENGING THAT CLAIM AND THE

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PLAINTIFFS DIDN'T EVEN RESPOND TO IT IN THEIR

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OPPOSITION BRIEF BECAUSE THE CLAIM IS LEGALLY

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WITHOUT MERIT, APART FROM THE FACT THAT GOOGLE

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AGAIN EXPRESSLY DISCLAIMS, CONSPICUOUSLY AND IN ALL

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BOLD CAPS, ANY IMPLIED WARRANTY OF MERCHANTABILITY.

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WE RAISE THAT AND THEY DON'T RESPOND.

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FINALLY IN OUR MOTION TO DISMISS, THE

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MOSS MAGNUSON FEDERAL WARRANTY CLAIM, JUST AS IN

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THE I-PHONE LITIGATION, THE COURT DISMISSED THAT

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CLAIM BECAUSE IT DEPENDED UPON A VIABLE STATE LAW

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CLAIM.

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CLAIM THAT CAN SURVIVE THE MOTION TO DISMISS.

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THAT CLAIM FAILS AS WELL.

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HERE PLAINTIFFS HAVE NO VIABLE STATE LAW
SO

WE ALSO RAISED PREEMPTION AT THE END.

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POINTING TO YOUR HONOR'S I-PHONE CASE, THE

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PLAINTIFFS' OPPOSITION DIDN'T RESPOND TO THE

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MULTIPLE GROUNDS OF PREEMPTING.

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CIRCUIT SHROYER AND IN OUR MOTION TO DISMISS AND

WE CITED THE NINTH

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U.S. COURT REPORTERS

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DISTINGUISHED SHROYER IN OUR CASE AND EVEN FROM THE

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I-PHONE CASE.

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REMEMBER IN THE I-PHONE CASE 3G IS PART

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OF THE PRODUCT'S NAME.

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3G AS PART OF THE PROVIDER'S NAME.

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THE NEXUS ONE DOES NOT HAVE

NEITHER HTC NOR GOOGLE NOR T-MOBILE FOR

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THAT MATTER HAVE MADE ANY PROMISE OF CONSISTENT 3G

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CONNECTIVITY.

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LACKS ANY BASIS IN THE LAW AND ALL OF THE CLAIMS

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SO THE WHOLE ESSENCE OF THIS CASE

FAIL.
IF I COULD RESERVE THE REMAINDER OF MY
TIME, YOUR HONOR.

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THE COURT:

VERY WELL.

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MR. GRANT:

YOUR HONOR, JIM GRANT ON

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BEHALF OF T-MOBILE.

AND I HAVE TWO MOTIONS TO

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ADDRESS HERE AND I KNOW WE HAVE LIMITED TIME AND

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SOME OF IT NECESSARILY WILL BE SOMEWHAT SUMMARY.

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UNLESS THE COURT HAS A DIFFERENT PREFERENCE, I'M

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GOING TO DO THE MOTION TO DISMISS AND THEN MOTION

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TO COMPEL ARBITRATION.

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THE COURT:

VERY WELL.

AND --

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MR. GRANT:

PRIMARILY TO EMPHASIZE ALL OF

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THE GROUNDS THAT GOOGLE AND HTC HAVE MOVED TO

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DISMISS THE CLAIMS TO DISMISS ALSO APPLIED TO

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T-MOBILE AND WE HAVE MORE GROUNDS AND MORE BASES TO
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U.S. COURT REPORTERS

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DISMISS THE CLAIMS.

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IN FACT, THERE'S A NUMBER OF REASONS WHY

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T-MOBILE SHOULD NOT BE IN THIS CASE AND SHOULDN'T

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BE BEFORE THIS COURT AND IT'S PRETTY SIMPLE.

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T-MOBILE DIDN'T SELL THE PHONE TO MS. MCKINNEY AND

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NEVER SOLD IT TO ANYONE, NEVER MARKETED THE PHONE,

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DID NOT MANUFACTURE THE PHONE, NEVER SAID ANYTHING

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ABOUT THE PHONE AT ALL.

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SO IT'S A SITUATION WHERE YOU HAVE A

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PLAINTIFF WHO IS BRINGING A CLAIM AGAINST A COMPANY

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THAT DIDN'T SELL HER ANYTHING.

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SERVICE IN CONNECTION WITH THIS PHONE, SHE DIDN'T

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BUY -- EXTEND HER SERVICE WITH T-MOBILE, BUT SHE'S

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BRINGING THAT CLAIM AGAINST T-MOBILE SIMPLY BECAUSE

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SHE COULD USE THE NEXUS ONE PHONE ON HER T-MOBILE

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SERVICE AND SHE CHOSE TO DO THAT.

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SHE DIDN'T BUY

SHE ALSO COULD HAVE USED THE NEXUS ONE

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PHONE ON AT & T SERVICE OR ANY OTHER GSM CARRIER IN

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THE UNITED STATES AND SHE CHOSE TO USE IT ON HER

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EXISTING T-MOBILE SERVICE.

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BEAR IN MIND SHE WAS A SUBSCRIBER OF

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T-MOBILE FOR EIGHT YEARS BEFORE THE TIME THAT SHE

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BOUGHT THE GOOGLE PHONE FROM GOOGLE AND AT THAT

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TIME SHE EXTENDED HER SERVICE WITH T-MOBILE 68

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TIMES.

SO THIS IS NOT A TRANSACTION THAT HAD TO DO
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U.S. COURT REPORTERS

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WITH T-MOBILE.

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ON THAT BASIS WE HAVE GIVEN YOU THREE

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GROUNDS TO DISMISS THEM ALTOGETHER.

FIRST UNDER

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12(B)(1) SHE HAS NO STANDING TO SUE T-MOBILE FOR

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ANYTHING.

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CONCERNING THIS PHONE, T-MOBILE DIDN'T SAY ANYTHING

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ABOUT THE PHONE, AND T-MOBILE DIDN'T MANUFACTURE

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THE PHONE.

AGAIN, SHE DIDN'T HAVE A TRANSACTION

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SECONDLY, SHE CAN'T BRING A CLAIM FOR

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BREACH OF WARRANTY WHEN T-MOBILE CLEARLY DIDN'T

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WANT IT, AND, IN FACT, THE TERMS AND CONDITIONS

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WITH MS. MCKINNEY DISCLAIM ALL WARRANTIES.

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SO A WARRANTY DOESN'T APPLY TO T-MOBILE

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AND BEYOND THAT EVEN IF HER CLAIM WAS SHE DIDN'T

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LIKE T-MOBILE SERVICE AND SHE DIDN'T THINK IT WAS

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ADEQUATE SERVICE, THAT'S A CLAIM ABOUT A SERVICE,

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THAT'S NOT A CLAIM ABOUT A PRODUCT AND THERE ISN'T

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A WARRANTY CLAIM HERE BASED ON A SERVICE BUT NOT A

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PRODUCT.

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WHICH THEN GOES TO ANY OTHER STATE LAW

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CLAIMS THAT, THAT MS. MCKINNEY WOULD LIKE TO BRING

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BECAUSE UNDER SECTION 3332 UNDER THE FEDERAL

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COMMUNICATIONS ACT, CLAIMS TO WIRELESS CARRIERS

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THAT ATTACK MARKET ENTRY OR RATES OF SERVICE ARE

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PRECLUDED UNDER THAT ACT.
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U.S. COURT REPORTERS

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THAT'S THE I-PHONE CASE THAT THE COURT

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HAS ALREADY RULED ON.

THE CLAIMS THAT MS. MCKINNEY

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WOULD HAVE AGAINST T-MOBILE WOULD HAVE NOTHING TO

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DO EXCEPT WITH HER SERVICE BECAUSE THAT'S ALL SHE

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EVER BOUGHT FROM T-MOBILE, SEPARATE AND APART FROM

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THE GOOGLE PHONE.

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AND AS MR. WEISBURD POINTED OUT, THE

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FOURTH GROUND FOR OUR MOTION TO DISMISS IS THE

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NORTH COUNTY COMMUNICATIONS DECISION.

THERE HAS

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NEVER BEEN A DETERMINATION BY THE F.C.C. THAT

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ANYTHING THAT T-MOBILE HAS EVER SAID ABOUT ITS

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NETWORK OR ITS NETWORK IN ITSELF IS INADEQUATE OR

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MISLEADING OR DECEPTIVE.

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THAT'S THE BASIS FOR THE MOTION TO

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DISMISS.

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WOULD LIKE TO BRIEFLY TOUCH ON THE MOTION TO COMPEL

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ARBITRATION.

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UNLESS YOU HAVE FURTHER QUESTIONS, I

THE COURT:

YOU MAY STAY IN THE CASE WITH

ALL OF THAT ARGUMENT THOUGH.

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MR. GRANT:

OR YOU CAN DISMISS THE CASE

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ALTOGETHER AND WE DON'T HAVE TO TALK ABOUT

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ARBITRATION.

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EITHER WAY.

THE COURT:

I'M NOT SURE I CAN GO BOTH

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WAYS.

IN OTHER WORDS, DON'T I HAVE TO CONSIDER THE

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MOTION TO COMPEL ARBITRATION, AND IF I DECIDE IT IS
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U.S. COURT REPORTERS

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ARBITRATABLE, GET RID OF IT WITHOUT REACHING THE

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MOTION TO DISMISS?

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MR. GRANT:

IN LOGIC, I THINK YOU'RE

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RIGHT.

THE LOGICAL PREDICATE IS YOU WOULD ADDRESS

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THE QUESTION TO THE COURT'S JURISDICTION BASICALLY

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FIRST AND TO THE EXTENT THAT ARBITRABILITY IS YOU

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MAKE THE DECISION WHETHER OR NOT THIS CASE GOES TO

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ARBITRATION.

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CLAIM WHATSOEVER AND DISMISS T-MOBILE FROM THE CASE

YOU COULD SAY THERE'S NO BASIS FOR A

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REGARDLESS BECAUSE IF THERE'S NO CLAIM IN

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LITIGATION, THERE'S NO CLAIM IN ARBITRATION EITHER.

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BUT I UNDERSTAND THE LOGICAL PREMISE.

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THE COURT IS FAMILIAR WITH THE

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ARBITRATION ACT AND IS IN STRONG FAVOR OF

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ARBITRATION.

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DIFFERENT TIMES AND ACCEPTED THEM IN THE TERMS AND

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CONDITIONS 68 DIFFERENT TIMES.

AND WE ALREADY SAID SHE SIGNED UP 68

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PLAINTIFFS' ARGUMENT AGAINST ARBITRATION

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IS SOMEHOW THIS COURT SHOULD APPLY CALIFORNIA LAW.

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WE HAVE GONE THROUGH THIS AT SOME LENGTH IN THE

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PAPERS, BUT THERE'S NO BASIS WHATSOEVER HERE OF AN

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OUT OF STATE PLAINTIFF BRINGING A CLAIM AGAINST AN

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OUT OF STATE, AND THEN COMING INTO THE STATE OF

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CALIFORNIA AND SAYING JUST BECAUSE I LIKE THE

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PUBLIC POLICY OF THE STATE OF CALIFORNIA, I GET TO
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U.S. COURT REPORTERS

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INVOKE THAT AND WE DON'T APPLY THE CONTRACTUAL

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CHOICE OF LAW THAT IS IN MY CONTRACT, PENNSYLVANIA

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LAW.

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WE CITED TO THE COURT FOUR DIFFERENT

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CASES INCLUDING DETWHILER (PHONETIC) FROM THE NINTH

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CIRCUIT; AND JANSTER (PHONETIC) CASE FROM THE

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SOUTHERN CIRCUIT; AND IN THIS CASE AND THE MCMELLON

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(PHONETIC) CASE FROM THIS COURT.

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TWO OF THOSE BOTH ENFORCED T-MOBILE'S

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TERMS AND CONDITIONS AND HELD THAT PLAINTIFFS FROM

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OUT OF STATE AND MARYLAND AND ILLINOIS AND OTHER

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STATES HAD TO WORK TO COMPEL TO ARBITRATE BECAUSE

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OF THE STATE LAWS OF THOSE STATES.

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AS TO PENNSYLVANIA LAW IT'S PRETTY CLEAR

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WHY PLAINTIFFS DON'T LIKE IT.

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EIGHT CASES, ALL OF WHICH OPPOSE CLASS ACTION

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WAIVERS WHERE A PLAINTIFF HAS A RIGHT TO GET ANY

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REMEDIES OR RECOVERY SHE COULD GET ON HER

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INDIVIDUAL CLAIMS AS SHE MIGHT GET IN A COURT OF

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LAW AND CAN RECOVER ATTORNEYS' FEES, AND CAN

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RECOVER COSTS, AND AS IN THIS CASE CAN OPT OUT OF

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ARBITRATION ALTOGETHER.

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THAT'S CLEARLY NOT UNCONSCIONABLE.

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WE CITED THE COURT

UNDER ARBITRATION LAW

I DID THAT ALL RATHER SUMMARILY BUT IF
YOU HAVE ANY QUESTIONS, I'M HAPPY TO ADDRESS THEM.
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U.S. COURT REPORTERS

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THE COURT:

THERE'S BOTH SUBSTANTIVE AND

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PROCEDURAL AND UNCONSCIONABILITY.

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PASS BOTH?

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MR. GRANT:

DO YOU THINK YOU

I THINK THERE'S NEITHER.

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UNDER PROCEDURAL UNCONSCIONABILITY AND THE

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PENNSYLVANIA CASES MS. MCKINNEY CANNOT SHOW EITHER

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BECAUSE SHE COULD OPT OUT OF ARBITRATION, THEY HAD

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A RIGHT, SEVERAL RIGHTS NUMEROUS TIMES.

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HAVE SAID I DON'T WANT TO HAVE THE ARBITRATION

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CLAUSE APPLIED TO ME.

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ACCEPT AN AGREEMENT SO THERE CAN'T BE

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SHE COULD

UNCONSCIONABILITY.

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SO SHE CAN'T BE FORCED TO

ALSO UNDER THE LINSTIN (PHONETIC) CASE IN

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PENNSYLVANIA, IF THE PLAINTIFF HAS THE CHOICE TO

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GET THE SERVICE FROM SOME OTHER PROVIDER,

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MS. MCKINNEY COULD BUY FROM AT & T AND VERIZON,

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THERE COULD NOT BE UNCONSCIONABILITY.

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ON SUBSTANTIAL UNCONSCIONABILITY, THERE

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IS NO PER SE RULE THAT JUST BECAUSE YOU WAIVE

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REMEDIES IT'S SUBSTANTIALLY UNCONSCIONABILITY.

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THAT MAY BE THE LAW OF CALIFORNIA UNTIL THE SUPREME

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COURT RULES, WHICH IS A PENDING ISSUE IN THE

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EPSEPSIAN (PHONETIC) CASE.

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BUT IS THERE A RIGHT TO RECOVER THE SAME
KINDS OF REMEDIES YOU COULD IN A COURT?

AND IF YOU
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U.S. COURT REPORTERS

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COULD RECOVER ALL OF THOSE SAME REMEDIES AND YOU

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CAN RECOVER ATTORNEYS' FEES, AND YOU CAN RECOVER

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COSTS, UNDER THE KRONAN DECISION FROM THE THIRD

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CIRCUIT AND ACTUALLY SEVEN OTHER CASES WE CITED TO

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YOU, PENNSYLVANIA LAW IS THAT THAT'S NOT

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SUBSTANTIALLY UNCONSCIONABLE?

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THE COURT:

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MS. RING:

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GOOD MORNING, YOUR HONOR.

DO YOU WANT TO ADD TO THIS?
JUST A LITTLE BIT.
ROSEMARIE RING

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FOR HTC.

HTC IS MOVING TO COMPEL ARBITRATION AND

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MOVING TO DISMISS FOR FAILURE TO STATE A CLAIM.

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MR. WEISBURD HAS DONE THE HEAVY LIFTING

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WITH THE MOTION TO DISMISS AND MR. GRANT HAS DONE

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THAT ON THE MOTION TO COMPEL ARBITRATION, AND I'M

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JUST GOING TO ADDRESS THE ISSUE TO COMPEL

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ARBITRATION UNIQUE TO HTC SINCE HTC IS ENFORCING

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THAT AGREEMENT AS A THIRD PARTY BENEFICIARY.

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THAT'S A VERY SIMPLE ARGUMENT, YOUR HONOR.

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AND

THE PLAINTIFFS' ARBITRATION AGREEMENT

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WITH T-MOBILE PROVIDES FOR ARBITRATION WITH CLAIMS

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RELATED TO T-MOBILE SERVICE BROUGHT BY OTHER

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PARTIES SUCH AS, QUOTE, SUCH AS OUR SUPPLIERS AND

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RETAIL DEALERS WHEN THERE ARE CLAIMS BROUGHT

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AGAINST T-MOBILE IN THE SAME PROCEEDING.

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THE ARBITRATION AGREEMENT HERE IS
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U.S. COURT REPORTERS

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ENFORCEMENT FOR THE REASONS STATED IN T-MOBILE'S

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MOTION TO COMPEL WHICH HTC HAS JOINED AND

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PLAINTIFFS' CLAIMS AGAINST HTC ARE CLEARLY WITHIN

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THE SCOPE OF THAT PROVISION AND AS THEY RELATE

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AGAINST SERVICE AND THEY WERE BROUGHT AGAINST THIS

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AGAINST T-MOBILE.

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PLAINTIFFS HAVE RAISED A NUMBER OF

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ARGUMENTS IN OPPOSITION, ARGUING THAT HTC IS NOT A

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THIRD PARTY BENEFICIARY.

ALL OF THEIR ARGUMENTS

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ARE INCONSISTENT WITH THE EXPRESS TERMS OF THE

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AGREEMENT WHICH CLEARLY EXPRESS AN INTENT, AN

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INTENT TO ALLOW, TO ALLOW T-MOBILE, AND THIRD

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PARTIES WHO ARE LITIGATING CLAIMS RELATING TO

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T-MOBILE SERVICE IN THE SAME PROCEEDING, TO

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ARBITRATE THOSE CLAIMS TOGETHER.

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AND ON THE MOTION TO DISMISS, YOUR HONOR,

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I WOULD JUST SAY THAT THIS CASE IS A

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MISREPRESENTATION CASE WITH NO MISREPRESENTATION.

19

ALL OF THE PLAINTIFFS' CLAIMS ARE BASED

20

ON HER CONTENTION THAT SHE SHOULD HAVE RECEIVED

21

SOME HIGHER LEVEL OF 3G CONNECTIVITY THAN THEY

22

ALLEGEDLY DID, BUT WHICH NO DEFENDANT EVER

23

PROMISED, EVER WARRANTED, AND WHICH IS NOT REQUIRED

24

FOR THE, FOR THE NEXUS ONE TO FUNCTION IN ITS

25

ORDINARY PURPOSE WHICH IS AS A SMART PHONE THAT IS
17

U.S. COURT REPORTERS

1

DESIGNED TO PROVIDE PHONE AND DATA SERVICES ON

2

EITHER OF THE 2G OR 3G NETWORKS AND TO SWITCH

3

BETWEEN THOSE NETWORKS BASED ON NETWORK

4

AVAILABILITY.

5

THANK YOU, YOUR HONOR.

6

THE COURT:

7

COUNSEL.

WHO WILL ARGUE FOR

THE PLAINTIFF?

8

MR. PLANT:

I WILL, YOUR HONOR.

9

YOUR HONOR, ASIDE FROM BEING OUTNUMBERED,

10

I THINK I'M GOING TO TRY TO ADDRESS THESE ARGUMENTS

11

BACK TO FRONT AND SEE IF I CAN MAKE SENSE WITH

12

REGARD TO IT THAT WAY.

13

WITH REGARD TO THE MOTION TO COMPEL, AS

14

WE SAID IN OUR PAPERS, WE BELIEVE IT WAS A DEVICE

15

USED SOME TIME IN THE FUTURE WHEN THE ARBITRATION

16

PROVISION WAS ENTERED INTO.

17

HTC COULD BE A THIRD PARTY BENEFICIARY BECAUSE WE

18

THINK IT CREATES SOME SORT OF SITUATION WHERE THE

19

SUBSTANTIVE PROBLEM IS WITH THE NETWORK OR THE

20

PHONE OR BOTH THEN THAT WOULD PUT HTC AT

21

CROSS-PURPOSES FROM THE INTENT OF THE ARBITRATION

22

CLAUSE WHICH WOULD BE TO ARBITRATE AGAINST T-MOBILE

23

AND HTC BECAUSE IT'S THE MAKER OF THE PHONE COULD

24

HAVE CROSS-PURPOSES THERE.

25

WE DON'T BELIEVE THAT

WITH REGARD TO THE T-MOBILE MOTION TO
18

U.S. COURT REPORTERS

1

COMPEL, COUNSEL HAS CITED THEIR CASES AND OURS ARE

2

IN THE BRIEF AS WELL, INCLUDING TIBIDO.

3

WAS NOT IN THE BRIEF WAS CLARK VERSUS BANK AND

4

WHICH WAS A 2010 CASE WHICH WAS FROM THE EASTERN

5

DISTRICT OF PENNSYLVANIA.

6

YOUR HONOR, WITH REGARD TO CALIFORNIA CHOICE OF

7

LAW, THAT ARGUMENT IS A LITTLE THIN RIGHT NOW.

ONE THAT

AND MOST IMPORTANTLY,

8

HOWEVER, IF AMENDMENT --

9

THE COURT:

ON YOUR PART OR THEIR PART?

10

MR. PLANT:

ON OUR PART.

WITH REGARD TO

11

THE AMENDMENT OF THE COMPLAINT, IF IT'S ALLOWED, WE

12

WOULD INCLUDE, FOR EXAMPLE, U.C.L. CLAIMS WHICH

13

REQUIRE INJUNCTIVE RELIEF, WHICH CAN'T BE

14

ARBITRATED.

15

AND IF CALIFORNIA LAW IS APPLIED IN THAT

16

REGARD, AFTER WE AMEND THE COMPLAINT, IF IT'S

17

ALLOWED, WHICH IS SET FOR NOVEMBER THE 29TH, THEN

18

THAT WOULD CHANGE THE ANALYSIS.

19

I'M NOT SURE WE COULD REALLY REACH

20

RESOLUTION HERE THAT WOULD CARRY THROUGH TO THE NEW

21

CLAIMS THAT ARE BASED ON STATE LAW.

22
23
24
25

THE COURT:

WHAT IS CALIFORNIA'S

MR. PLANT:

CALIFORNIA'S INTEREST WOULD

INTEREST?

BE THE PUBLIC ATTORNEY GENERAL FUNCTION -- EXCUSE
19

U.S. COURT REPORTERS

1

ME -- THE PRIVATE ATTORNEY FUNCTION PROSECUTING

2

THIS CASE.

3
4

THE COURT:

WHAT DO YOU HAVE IN YOUR

CURRENT COMPLAINT?

5

MR. PLANT:

THERE IS NOT MUCH, YOUR

7

THE COURT:

WELL, WHAT IS LEFT THEN?

8

MR. PLANT:

WELL, WHAT IS LEFT IS THE

6

9

HONOR.

FEDERAL COMMUNICATIONS ACT CLAIM AGAINST -- WELL,

10

WITH REGARD TO THESE PAPERS SPECIFICALLY, HTC,

11

T-MOBILE, GOOGLE ARE UNDER SECTIONS 201 AND 207 OF

12

THE FEDERAL COMMUNICATIONS ACT.

13

AND THIS BLEEDS OVER A LITTLE BIT TO THE

14

MOTION TO DISMISS.

15

MISREPRESENTATIONS CASE.

16

THE MISREPRESENTATION OF THE 3G NATURE OF THE

17

DEVICE BUT ALSO THE CUSTOMER SERVICE FOLLOWING THE

18

SALE AND THE ABILITY TO USE THE PHONE WHEN IT

19

DOESN'T WORK, YOU KNOW, IF YOU SEND AN E-MAIL TO

20

GOOGLE AND YOU DON'T HEAR BACK FOR THREE DAYS, YOU

21

HAVE LOST THREE DAYS WORTH OF SERVICE.

22

THEM, THEN YOU LOST THAT TIME PERIOD OF SERVICE FOR

23

WHICH YOU HAVE PAID AND WHICH WE BELIEVE THE CLIENT

24

SHOULD BE GIVEN RESTITUTION FOR.

25

THIS IS NOT JUST A
IT'S A CASE THAT, YES,

IF YOU CALL

PLAINTIFF MCKINNEY HAS STANDING.

THEIR
20

U.S. COURT REPORTERS

1

ARGUMENT DEPENDS ON THE FACT THAT SHE, SHE DID NOT,

2

DID NOT HAVE AN AGREEMENT WITH T-MOBILE IN A SENSE

3

BECAUSE SHE ALREADY WAS UNDER CONTRACT.

4

THIS PHONE LATER.

5

NETWORK.

6

DID NOT, SHE BELIEVES, REFUSE THE BENEFIT OF HER

7

BARGAIN WITH T-MOBILE.

8
9

SHE BOUGHT

AND SHE USED IT ON THEIR

THEY WERE HER SERVICE PROVIDER AND SHE

SHE BELIEVES THAT IT WAS, IT WAS AN
UNJUST CHARGE TO PAY FOR PREMIUM SERVICE AND NOT

10

HAVE THAT PREMIUM SERVICE WITH REGARD TO THE GOOGLE

11

PHONE AND THE T-MOBILE NETWORK.

12

AND MORE IMPORTANTLY, WITH REGARD TO THE

13

T-MOBILE MOTION TO DISMISS AND TO SOME DEGREE THE

14

GOOGLE AND HTC MOTION TO DISMISS IS THE NORTH

15

COUNTY CASE.

16

PRIMARY JURISDICTION IS NO BAR, UNLIKE

17

NORTH COUNTY IN WHICH IT WAS ABSOLUTELY AN

18

INTRICATE TECHNICAL ISSUE INVOLVING CLICKS AND

19

ILECS.

20

THAT MANY ACRONYMS HAS SPECIALIZED KNOWLEDGE WHICH

21

I BELIEVE THIS CASE DOESN'T HAVE.

22

AND AS A GENERAL RULE ANYTHING THAT HAS

IT WOULD BE WHETHER UNDER SECTIONS 201

23

AND 207 OF THE FEDERAL COMMUNICATIONS ACT

24

MS. MCKINNEY RECEIVED THE SERVICE THAT SHE WAS

25

PROMISED, WHETHER HER -- UNDER THE PREVIOUS F.T.C.
21

U.S. COURT REPORTERS

1

AND F.C.C. DECISIONS REGARDING MISREPRESENTATIONS,

2

THEY LIVED UP TO THE SERVICE THEY PROMISED HER.

3
4

THE COURT:

WHAT WAS THE SERVICE THAT

THEY PROMISED?

5

MR. PLANT:

3G CONNECTIVITY ON A 3G

7

THE COURT:

WHERE WAS THAT PROMISED?

8

MR. PLANT:

SEVERAL ADS REGARDING WHERE

6

9
10
11
12
13
14
15
16
17
18
19
20
21

DEVICE.

-- WHAT THE PHONES CAPABILITIES WERE.

UPLOADING

SPEEDS AT 7.2 MEGS.
THE COURT:

AND SO WHAT I WAS HEARING

FROM YOUR OPPONENT IS THE WORD "CONSISTENT."
I TAKE IT YOU ACKNOWLEDGE THAT THE PHONE
IS CAPABLE OF SUPPORTING 3G CONNECTIVITY.
MR. PLANT:

IT IS UNDER CERTAIN

CIRCUMSTANCES.
THE COURT:

AND THAT THERE IS 3G

CONNECTIVITY PROVIDED BY T-MOBILE?
MR. PLANT:

THAT'S THE CONNECTIVITY

PROMISED BUT NOT ALWAYS PROVIDED.
THE COURT:

RIGHT.

BUT IT IS AVAILABLE.

22

SO IF YOU WERE LIVING IN A WORLD WHERE THERE WAS

23

ONLY ONE PHONE STANDING RIGHT NEXT TO A 3G TOWER,

24

NO PROBLEM.

25

MR. PLANT:

IF THE SOFTWARE AND FIRMWARE
22

U.S. COURT REPORTERS

1

WERE THEN I BELIEVE THAT WOULD BE ACCURATE.

2
3

THE COURT:

WELL, ASSUMING THAT IF IT IS

PROPERLY TURNED ON AND OPERATING.

4

THE COURT:

IS THERE SOME DEFECT THAT

5

WILL NOT ALLOW IT TO CONNECT TO 3G SIGNAL OR THAT

6

NETWORK?

7

MR. PLANT:

AT THIS POINT WE'RE NOT SURE

8

WHETHER THERE WAS A DISCONNECT IN THE PHONE OR IN

9

THE PHONE OR --

10

THE COURT:

WELL, ARE YOU ALLEGING THAT

11

THERE IS A DEFECT SOMEWHERE SO THAT THE PHONE IS

12

NOT ABLE TO CONNECT TO 3G?

13

MR. PLANT:

YES.

14

THE COURT:

WHERE DO YOU ALLEGE THAT?

15

MR. PLANT:

I BELIEVE WE HAVE ALLEGED

16

THAT IN OUR COMPLAINT.

17

THE COURT:

WHERE?

18

MR. PLANT:

I'M LOOKING THROUGH IT RIGHT

THE COURT:

I SEE CONSISTENT

19
20

SHOW ME THE LANGUAGE.

NOW.

21

CONNECTIVITIES, BUT I'M ASKING IS THERE A CLAIM OF

22

LACK OF CONNECTIVITY?

23
24
25

MR. PLANT:

YOU MEAN UNDER ANY

CIRCUMSTANCE?
THE COURT:

I DON'T QUALIFY A LACK OF
23

U.S. COURT REPORTERS

1

CONNECTIVITY.

2

OPERATE ON A 3G NETWORK.

3

IN OTHER WORDS, THE PHONE WILL NOT

MR. PLANT:

YOUR HONOR, IT'S NOT THE

4

PHONE WON'T OPERATE AT ALL.

5

VACILLATES BETWEEN 2G AND 3G.

6

THE COURT:

IT'S THAT THE PHONE

LET'S ASSUME THAT TO BE THE

7

CASE, THAT IT VACILLATES BETWEEN THE TWO.

WHERE IS

8

THE PROMISE THAT IT WOULD NOT VACILLATE AND REMAIN

9

3G?

IN FACT, THAT MIGHT BE A WEAKNESS IN THE PHONE

10

BECAUSE YOU WANT CONSISTENT CONNECTIVITY AT

11

WHATEVER SPEED, SOMETIMES YOU NEED 3G AND SOMETIMES

12

YOU DON'T AND YOU WOULDN'T WANT THE PHONE TO SAY,

13

OH, MY GOODNESS, YOU NEED 2G AND WE'RE ONLY GETTING

14

3G AND LET'S STOP.

15

PRESUME, BUT WHERE IS IT THAT IT'S ALLEGED THAT THE

16

REPRESENTATION IS THAT IT WOULD ALWAYS OPERATE ON

17

3G ALL OF THE TIME?

18
19

MR. PLANT:

YOU WANT IT TO OPERATE, I

YOUR HONOR, THAT HAS NOT BEEN

PLED SPECIFICALLY IN THIS COMPLAINT.

20

AS WE HAVE MENTIONED IN OUR BRIEFS --

21

THE COURT:

CAN YOU?

I MEAN, RULE 11

22

ALLOWS YOU, I'M WILLING TO GIVE YOU LEAVE IF YOU

23

WANT TO GO BACK AND SEE WHETHER OR NOT YOU CAN MEET

24

THE CHALLENGE THAT IS BEING OFFERED, NAMELY, TO

25

ALLEGE A MISREPRESENTATION BASED ON A
24

U.S. COURT REPORTERS

1

REPRESENTATION THAT IT WILL CONSISTENTLY FUNCTION

2

AT 3G ALL OF THE TIME.

3

MR. PLANT:

YOUR HONOR, I BELIEVE THAT IT

5

THE COURT:

WHAT IS THAT BASED ON?

6

MR. PLANT:

WELL, THAT'S BASED ON FURTHER

4

CAN.

7

INVESTIGATION REGARDING THE ADVERTISING MATERIALS

8

AND PROMOTIONAL MATERIALS THAT THE DEFENDANTS

9

PRODUCED.

10

THE COURT:

SO --

11

MR. PLANT:

IT WOULD BE BASED ON FURTHER

12
13

EXPLANATION OF MS. MCKINNEY'S OWN EXPERIENCE.
THE COURT:

WELL, I'LL TAKE THAT TO BE A

14

REQUEST THAT THE COURT LOOK TO SEE WHETHER OR NOT

15

LEAVE OUGHT TO BE GRANTED BUT IT ALSO SEEMS TO ME

16

ACKNOWLEDGEMENT THAT THE COMPLAINT AS IT'S

17

CURRENTLY WORDED SHOULD BE DISMISSED.

18

I DON'T KNOW WHAT TO MAKE ABOUT WHAT

19

COMES FIRST, THE ARBITRATION OR THE DISMISSAL.

20

SEEMS TO ME THAT ONCE I HAVE DECIDED THAT THERE IS

21

AN ARBITRATABLE ISSUE, I SHOULD STOP EVERYTHING

22

WITH RESPECT TO THAT AND SEND IT OUT FOR

23

ARBITRATION.

24
25

ARBITRATION CAN BE WAIVED.

IT

I DON'T HEAR

ANY WAIVER OF THAT SO I'LL LOOK AT THAT.
25

U.S. COURT REPORTERS

1

I'M NOT SURE I COULD JUSTIFY SAYING THAT

2

I'M GOING TO DISMISS THE CASE WITHOUT CONSIDERING

3

THE QUESTION OF ARBITRATION, BUT I'LL LOOK AT THAT.

4
5

MR. PLANT:

YOUR HONOR, THERE WAS ONE

FURTHER ISSUE THAT I WOULD LIKE TO MENTION.

6

THE COURT:

SURE.

7

MR. PLANT:

BASED ON THE CURRENT STATE OF

8

THE LAW, TWO THINGS.

9

CLAIM IS NOT REQUIRED TO MEET THE 9(B) STANDARDS.

10

ALL THAT'S REQUIRED IS THE 8(A) NOTICE PLEADINGS

11

STANDARD.

12
13
14

FIRST OF ALL, THE F.C.A.

NO PART OF THIS CASE SOUNDS IN FRAUD.
THE COURT:

SO YOU'RE NOT MAKING A CLAIM

THAT THERE WAS NOT ANY MISREPRESENTATION.
MR. PLANT:

THAT IS ONE ELEMENT.

THE

15

SECOND ELEMENT IS BECAUSE MS. MCKINNEY DID NOT

16

RECEIVE THE BARGAIN BECAUSE IF THE PHONE WASN'T

17

WORKING THEN SHE WOULD HAVE TO GO THROUGH THE

18

PROCESS AND SHE WAS LEFT WITHOUT PHONE SERVICE FOR

19

A COUPLE OF DAYS.

20
21
22

THE COURT:

SO THE CLAIM IS THAT IT DID

NOT -- THE INSTRUMENT DID NOT WORK?
MR. PLANT:

WELL, YOUR HONOR, I DO NOT

23

BELIEVE THAT I COULD SAY WITH ANY CERTAINTY WHETHER

24

OR NOT IT WAS THE PHONE OR THE NETWORK.

25

HAVE BEEN EITHER, IT COULD HAVE BEEN EITHER OR IT

IT COULD

26

U.S. COURT REPORTERS

1

COULD HAVE BEEN BOTH.

2

HERE TODAY.

3
4

THE COURT:
ISSUE?

I DON'T KNOW THAT STANDING

AND WHAT ABOUT THE F.C.A.

HAVE YOU EXHAUSTED?

5

MR. PLANT:

CAN I TAKE THIS CASE?

YES, SIR, YOU CAN TAKE THIS

6

CASE BECAUSE IT'S NOT THAT THERE IS AN EXHAUSTION

7

REQUIREMENT.

8

RESOLVED.

9

IT'S JUST THAT THE ISSUES HAVE BEEN

FOR EXAMPLE, WITH REGARD TO ADVERTISING,

10

THE F.C.C. DOESN'T EVEN HAVE A BODY OF

11

MISREPRESENTATION LAW THAT IT REGULARLY CHURNS OUT.

12

IT HAS ADOPTED F.T.C. POLICY STATEMENTS

13

AND THE JOINT STATEMENT ON ADVERTISING AND WE

14

BELIEVE THAT UNDER F.T.C. AND F.C.C.

15

REPRESENTATIONS, WITH REGARD TO THE

16

MISREPRESENTATIONS IN THE CASE, THOSE HAVE BEEN

17

RESOLVED.

18

THERE'S A BODY OF LAW OUT THERE THAT

19

WOULDN'T REALLY REQUIRE ANY SPECIALIZED KNOWLEDGE.

20

IN FACT, THIS COURT WOULD BE BETTER SUITED PROBABLY

21

THAN THE F.T.C. IS BECAUSE YOU DEAL WITH CONSUMER

22

CASES ON A REGULAR BASIS.

23

THE COURT:

ANYTHING FURTHER?

24

MR. GRANT:

YOUR HONOR --

25

MR. PLANT:

YOUR HONOR, NOTHING FURTHER.
27

U.S. COURT REPORTERS

1

THE COURT:

ANY RESPONSE?

2

MR. GRANT:

A FEW.

UNDER NORTH COUNTY

3

THE F.T.C. APPLIES IN THIS CASE.

4

CITED IN OUR BRIEFS WAS A DISTRICT COURT DECISION

5

IN WHICH THE PLAINTIFFS TRIED TO SAY THAT THE COURT

6

IS UNIQUELY SITUATED TO DETERMINE FRAUD.

7

YOU DON'T NEED AN F.C.C. DETERMINATION BECAUSE THE

8

COURT REJECTED IT BECAUSE THE F.C.C. IN NORTH

9

COUNTY MANDATES THAT ARGUMENT.

10

THE CARNEY CASE

AND SO

THE NOTION THAT THE ISSUES ARE SIMPLE

11

WHEN IT'S AN ALLEGED DECEPTIVE SPEECH CLAIM IS

12

CONTRARY TO THE SCHROEDER CASE WHERE THE SUPREME

13

COURT IN 1985, "A BIG COMMERCIAL SPEECH CASE SAYS

14

IT'S NOT TRUE THAT DISTINGUISHING NONDECEPTIVE

15

CLAIMS IN ADVERTISING INVOLVING PRODUCTS OR OTHER

16

LEGAL SERVICES IS A COMPARATIVELY SIMPLE AND

17

STRAIGHTFORWARD PROCESS."

18

WITH RESPECT TO THE MISREPRESENTATION

19

ALLEGATIONS, THAT'S THE GROUNDED CORE OF THIS

20

F.C.A.

21

DOESN'T MATTER THAT THE F.C.A. -- IT DOESN'T ALWAYS

22

REQUIRE CLAIMS TO BE PLED WITH FRAUDULENT CONDUCT.

23

THIS CLAIM IS PLEAD AS A MISREPRESENTATION CLAIM.

24
25

CLAIM AS PLEAD.

UNDER KEARNS, AND IT

THE NOTION THAT PLAINTIFFS CAN PLEAD A
MISSTATEMENT OF CONSISTENT CONNECTIVITY THAT, THAT
28

U.S. COURT REPORTERS

1

CONSISTENT WITH RULE 11 AND RULE 9(B) IS A DUBIOUS

2

ONE, YOUR HONOR, AND THE REASON I SUBMIT IT WOULD

3

BE FUTILE TO GRANT LEAVE TO AMEND IS THAT

4

PLAINTIFFS HAD MADE A PROFFER TO THE COURT OF WHAT

5

THEIR SECOND AMENDED COMPLAINT WOULD LOOK LIKE AND

6

WHAT I THINK IS AN IMPROPER MOTION FOR LEAVE TO

7

AMEND IN THE FACE OF THIS HEARING.

8

THE USUAL PROCEDURE IS THAT THEY WOULD

9

ADVANCE THEIR ARGUMENT ABOUT SHROYER OR ANY OTHER

10

ARGUMENTS THAT THEY WANT IN THEIR OPPOSITION BRIEF

11

AND ASK THE COURT FOR LEAVE TO AMEND, JUST LIKE

12

YOUR HONOR SEEMED TO BE SUGGESTING THAT THE COURT

13

WOULD ENTERTAIN.

14

WELL, NOW THE PLAINTIFFS HAVE MADE A

15

PROFFER, GO THROUGH THEIR COMPLAINT.

16

THAT ARE ADDED ARE ONES THAT THERE'S NO ARGUMENT

17

LIKE COMMON LAW FRAUD OR A FRAUDULENT COUNTERCLAIM

18

UNDER THE U.C.L. WHERE THE LAW IS CRYSTAL CLEAR

19

THAT THE MISSTATEMENTS MUST BE PLED WITH

20

PARTICULARITY.

21

THE CLAIMS

YOUR HONOR HAS RULED MULTIPLE TIMES OF

22

WHAT THAT MEANS UNDER GOVERNING NINTH CIRCUIT LAW.

23

RULE 11 SHOULD APPLY HERE BECAUSE FOR PLAINTIFFS'

24

COUNSEL TO SAY, OH, WE CAN DO SUBSEQUENT

25

INVESTIGATION ABOUT WHAT STATEMENTS AND ADVERTISING
29

U.S. COURT REPORTERS

1

MS. MCKINNEY SAW AND RELIED UPON, AND THEY HAVE

2

SUGGESTED THEY NEED DISCOVERY IN THEIR BRIEF TO

3

FIND OUT WHAT STATEMENTS MS. MCKINNEY SAW AND

4

RELIED UPON AND IT'S A DUBIOUS PROPOSITION, YOUR

5

HONOR.

6

IF YOUR HONOR IS GOING TO ENTERTAIN THE

7

POSSIBILITY OF LEAVE TO AMEND, I WOULD SUGGEST

8

LOOKING AT THE AMENDED COMPLAINT THAT THEY HAVE

9

SUBMITTED, WHICH DOESN'T PLEAD ANY MORE

10

PARTICULARITY, ANY MORE STATEMENTS OTHER THAN AS TO

11

GOOGLE, EXPERIENCE THE NEXUS ONE, THE NEW ANDROID

12

PHONE FROM GOOGLE, YOUR HONOR.

13

THE COURT:

WELL, IT IS SOMEWHAT OF A

14

CONCERN TO THE COURT TO HAVE SO MUCH OF WHAT I READ

15

IN THE PLAINTIFFS' COMPLAINT BASED UPON NEWS

16

ARTICLES AND THOSE KINDS OF COMMENTS ABOUT THE

17

PHONE AS OPPOSED TO STATEMENTS MADE BY THE

18

DEFENDANTS THEMSELVES.

19

AND I DON'T BELIEVE THAT IT'S PROPER TO

20

ATTRIBUTE WHAT MIGHT BE SAID IN THE PRESS ABOUT THE

21

FEATURES AND VALUES OF INSTRUMENTS AS OPPOSED TO

22

WHAT IS SAID BY THE VENDORS OF THOSE SERVICES AND

23

THOSE PRODUCTS.

24
25

AND I DO TAKE SERIOUSLY THE COURT'S
OBLIGATION TO MAKE SURE THAT THE F.C.A. CLAIM IS
30

U.S. COURT REPORTERS

1

PLACED ON THE PROPER FOOTING.

2

I'M NOT SURE WHERE ALL OF THIS WILL END

3

UP.

I AM ALWAYS DISPOSED TO GIVE A RULING AND

4

GRANT LEAVE TO AMEND BECAUSE THERE MAY BE MATTERS

5

THAT ARE NOT OBVIOUS TO THE COURT.

6

YOU TO THAT TENDERED COMPLAINT.

7

ME NOW, AND I WON'T CONSIDER THAT.

8

MY RULING ON YOUR EXISTING PAPERS AND SEE WHAT,

9

WHAT OCCURS FROM THAT.

10

MR. GRANT:

THAT'S NOT BEFORE
I'LL JUST MAKE

DID YOU WANT TO SPEAK?

11

I WON'T HOLD

I DID, YOUR HONOR.

I WANTED

12

TO RAISE ONE OTHER POINT.

13

MOTION THAT WE HAVE BROUGHT TO DISMISS IS NOT ONLY

14

A 12(B)(6) MOTION, IT'S NOT JUST ABOUT PLEADING

15

STANDARDS.

16

TO JURISDICTION AND STANDING BUT IT'S ALSO A

17

FACTUAL CHALLENGE, NOT JUST A FACIAL CHALLENGE AND

18

WE WENT THROUGH THAT IN THE BRIEFING.

19

BEAR IN MIND THAT THE

IT'S A 12(B)(1) MOTION.

SO THAT GOES

BUT WHAT THAT MEANS IS THE PLAINTIFFS'

20

OBLIGATION, THEIR BURDEN ON A FACTUAL OBLIGATION IS

21

TO COME BACK TO THE COURT WITH EVIDENCE, SOME

22

CLARIFICATION OR TANGIBLE EVIDENCE SAYING WE DIDN'T

23

SELL A PHONE AND SAY ANYTHING ABOUT THE PHONE AND

24

YOU DON'T HAVE ANY INJURY BASED ON T-MOBILE, AND,

25

THEREFORE, YOU CAN'T PURSUE A CLAIM AGAINST US.
31

U.S. COURT REPORTERS

1

SO WHERE THE RECORD STANDS ON THE 12(B)

2

MOTION IS THAT ABSOLUTELY NO EVIDENCE IN RESPONSE

3

TO OUR MOTION.

4
5
6

SO IT'S REALLY, IT'S UNREBUTTED AT THIS
POINT.
I DO HAVE TO ADD ONE WORD AS WELL THAT

7

THE PLAINTIFFS COULD AMEND THE COMPLAINT I SUPPOSE

8

HOWEVER THEY LIKE, IT DOESN'T CHANGE THE MOTION TO

9

COMPEL ARBITRATION AND IT DOESN'T CHANGE THE FACT

10

THAT MS. MCKINNEY CANNOT ESTABLISH STANDING AGAINST

11

T-MOBILE FOR SOMETHING SHE DIDN'T BUY, FOR A

12

PRODUCT SHE DIDN'T PURCHASE FROM US AND FOR

13

SERVICES SHE DID NOT EXTEND OR GET IN CONNECTION

14

WITH THAT PHONE.

15

THAT'S ALL VERY --

16

MR. PLANT:

THE LAST REBUTTAL ON THAT IS

17

THAT PRESUMES THE CASE IS SOLELY MISREPRESENTATIONS

18

AS OPPOSED TO CUSTOMER FEES AND FEES AND

19

MISREPRESENTATIONS.

20

MS. RING:

THAT'S ALL.
YOUR HONOR, IF I MAY, IT'S A

21

HOUSEKEEPING MATTER REALLY, BUT AS I'M SURE YOU'RE

22

AWARE THE PLAINTIFFS HAVE FILED A MOTION FOR LEAVE

23

TO AMEND AND WHICH IS SET FOR HEARING ON NOVEMBER

24

29TH AND WHICH WE ARE SUPPOSED TO BE FILING AN

25

OPPOSITION TO.
32

U.S. COURT REPORTERS

1

IT SOUNDS TO ME, BASED ON THE DISCUSSION

2

TODAY, THAT THAT MOTION IS MOOT AND THE COURT WILL

3

BE CONSIDERING THE MOTION OF LEAVE.

4

THE COURT:

YOU KNOW, I DIDN'T PAY MUCH

5

ATTENTION TO THAT.

6

PLAINTIFF HAS THE ABILITY TO AMEND ONCE AS A MATTER

7

OF COURSE EVEN WITH THE MOTION PENDING AND THEY

8

DON'T HAVE TO AMEND.

9

IT IS THE CASE THAT THE

NOW, THERE MUST HAVE BEEN A CIRCUMSTANCE

10

WHERE THERE'S A FIRST AMENDED PLEADING, AND I

11

HAVEN'T PAID ATTENTION TO THAT.

12

ALL OUT AND SEE.

13

BUT I'LL SORT THAT

I'M CONSIDERING THIS ON THE CURRENT

14

COMPLAINT IS WHAT I WAS TRYING TO COMMUNICATE, NOT

15

UNDER ANY PROPOSED AMENDED COMPLAINT.

16

MR. PLANT:

YOUR HONOR, WITH REGARD TO

17

THE LEAVE TO AMEND, WE DID THE AMENDMENT AS OF

18

RIGHT IN THE MCKINNEY CASE TO CONFORM THIS

19

COMPLAINT TO YOUR RULINGS IN THE I-PHONE CASE.

20

AND THERE'S STILL AN AMENDMENT AS OF

21

RIGHT WITH REGARD TO THE NEIGHBOR'S COMPLAINT,

22

WHICH IS RELATED BUT HAS NOT YET BEEN CONSOLIDATED.

23

THE COURT:

WELL, I'M STILL NOT SURE WHAT

24

TO MAKE OF ALL OF THAT.

IN OTHER WORDS, I'LL SORT

25

OUT PROCEDURALLY WHAT PLEADING I'M TO LOOK AT FOR
33

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PURPOSES OF THIS MOTION AND SINCE THE MOTIONS ARE

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MADE AND THE PLEADINGS WERE NOT DISMISSED

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VOLUNTARILY, I'LL GIVE YOU A RULING ON THAT AND

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WE'LL SEE WHERE YOU GO FROM THERE.

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MR. PLANT:

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MR. RING:

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(WHEREUPON, THE PROCEEDINGS IN THIS

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YES, YOUR HONOR.
YES, YOUR HONOR.

MATTER WERE CONCLUDED.)

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U.S. COURT REPORTERS

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CERTIFICATE OF REPORTER

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I, THE UNDERSIGNED OFFICIAL COURT
REPORTER OF THE UNITED STATES DISTRICT COURT FOR

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THE NORTHERN DISTRICT OF CALIFORNIA, 280 SOUTH

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FIRST STREET, SAN JOSE, CALIFORNIA, DO HEREBY

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CERTIFY:

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THAT THE FOREGOING TRANSCRIPT,

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CERTIFICATE INCLUSIVE, CONSTITUTES A TRUE, FULL AND

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CORRECT TRANSCRIPT OF MY SHORTHAND NOTES TAKEN AS

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SUCH OFFICIAL COURT REPORTER OF THE PROCEEDINGS

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HEREINBEFORE ENTITLED AND REDUCED BY COMPUTER-AIDED

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TRANSCRIPTION TO THE BEST OF MY ABILITY.

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/S/
_____________________________
IRENE RODRIGUEZ, CSR, CRR
CERTIFICATE NUMBER 8074

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DATED:

JANUARY 5, 2011

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