In Re: Apple iPhone 3G and 3GS MMS Marketing and Sales Practices Litigation

Filing 259

Memorandum by Defendant AT&T Mobility LLC re 245 MOTION to Compel Arbitration as to Kyle Irving, 241 MOTION to Compel Arbitration as to Carson Fernandez, 236 MOTION to Compel Arbitration as to Joey Aleman, 257 MOTION to Compel Arbitration as to William F. West, 253 MOTION to Compel Arbitration as to Gerard Padden, 237 MOTION to Compel Arbitration as to Ryan Baxter, 246 MOTION to Compel Arbitration as to Larry Ishmael, 248 MOTION to Compel Arbitration as to Tim Meeker, 239 MOTION to Compel Arbitration as to Deborah Carr, 250 MOTION to Compel Arbitration as to Arturo Molina, 240 MOTION to Compel Arbitration as to Bartley Raulston, 238 MOTION to Compel Arbitration as to Ryan Casey, 251 MOTION to Compel Arbitration as to Francis P. Monticelli, 247 MOTION to Compel Arbitration as to Janice Jackson, 244 MOTION to Compel Arbitration Sabrina Storner and Paige Lierman, 252 MOTION to Compel Arbitration as to Janine R. Novick, 249 MOTION to Compel Arbitration as to Jonathan Mejia, 243 MOTION to Compel Arbitration as to Henri Friloux, 258 MOTION to Compel Arbitration as to Melvin D. Wortman and Marie C. Wortman, 254 MOTION to Compel Arbitration as to Philip Sterker, Tim Williams, Laurie Guenther, and Aida Kamarian, 255 MOTION to Compel Arbitration as to Matthew Sullivan, 242 MOTION to Compel Arbitration as to Clyde Bernard Franklin, 256 MOTION to Compel Arbitration as to Kevin Khoi Duy Tran Memorandum in Support of Motions to Compel Arbitration (Attachments: # 1 Exhibit A, # 2 Affidavit Declaration of Steven Bethel, # 3 Affidavit Declaration of Roger Dicke, # 4 Affidavit Declaration of Stacie Dobbs, # 5 Affidavit Second Declaration of Richard Pianka, # 6 Affidavit Second Declaration of Scott Williamson)(Reference: all cases)(Parasharami, Archis) Modified on 10/24/2011 (gec, ).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
IN RE: APPLE iPHONE 3G AND 3GS MMS MDL NO. 2116
MARKETING AND SALES PRACTICES
2:09-md-2116
LITIGATION
THIS DOCUMENT RELATES TO:

SECTION: J

Aleman v. Apple Inc.,
No. 10-cv-00502
(No. 10-cv-00011 (S.D. Tex.))
Baxter v. Apple Inc.,
No. 10-cv-00019
(No. 09-cv-13938 (E.D. Mich.))
Carbine v. Apple Inc.,
No. 09-cv-05470
Carr v. Apple Inc.,
No. 09-cv-07612
(No. 09-cv-01996 (N.D. Ohio))
Davis v. Apple Inc.,
No. 10-cv-00497
(No. 09-cv-01133 (M.D. Ala.))
Fernandez v. Apple, Inc.,
No. 10-cv-03236
Franklin v. Apple Inc.,
No. 10-cv-00018
(No. 09-cv-00704 (S.D. Ala.))
Friloux v. Apple Inc.,
No. 10-cv-00501

JUDGE BARBIER

(No. 09-cv-00618 (E.D. Tex.))

MAGISTRATE JUDGE WILKINSON

Goette v. Apple Inc.,
No. 09-cv-07609
(No. 09-cv-01480 (E.D. Mo.))
Irving v. Apple Inc.,
No. 09-cv-07608
(No. 09-cv-02613 (D. Minn.))
Ishmael v. Apple, Inc.,
No. 11-cv-00590
Jackson v. Apple Inc.,
No. 10-cv-00500
(No. 10-cv-00003 (S.D. Miss.))
Meeker v. Apple Inc.,
No. 09-cv-07607
(No. 09-cv-00607 (S.D. Ill.))
Mejia v. Apple Inc.,
No. 10-cv-00499
(No. 09-cv-02582 (M.D. Fla.))
Molina v. Apple Inc.,
No. 09-cv-07606
(No. 09-cv-2032 (S.D. Cal.))
Monticelli v. Apple Inc.,
No. 10-cv-00020
(No. 09-cv-09505 (S.D.N.Y.))
Novick v. Apple Inc.,
No. 10-cv-00498
(No. 10-cv-00002 (M.D. Fla.))
Pineda v. Apple Inc.,
No. 10-cv-00821
(No. 10-cv-00128 (E.D.N.Y.))
Sterker v. Apple Inc.,
No. 09-cv-07604
(No. 09-cv-04242 (N.D. Cal.))
Sullivan v. Apple Inc.,
No. 09-cv-07611
(No. 09-cv-01993 (N.D. Ohio))

Tran v. Apple Inc.,
No. 09-cv-07605
(No. 09-cv-04048 (N.D. Cal.))
West v. Apple, Inc.,
No. 10-cv-01739
(No. 10-cv-01370 (D.N.J.))
Wortman v. Apple, Inc.,
No. 10-cv-04109
MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF DEFENDANT AT&T MOBILITY LLC’S MOTIONS
TO COMPEL ARBITRATION PURSUANT TO THE FEDERAL ARBITRATION ACT
JONES, WALKER, WAECHTER, POITEVENT,
CARRER, DENEGRE LLP
Gary J. Russo
600 Jefferson Street, Suite 1600
Lafayette, Louisiana 70501
MAYER BROWN LLP
Evan M. Tager
Archis A. Parasharami
1999 K Street NW
Washington, DC 20006
CROWELL & MORING LLP
Kathleen Taylor Sooy
Tracy A. Roman
1001 Pennsylvania Avenue NW
Washington, DC 20004
Attorneys for Defendant AT&T Mobility LLC

TABLE OF CONTENTS
Page

TABLE OF AUTHORITIES..................................................................................................... ii
INTRODUCTION .....................................................................................................................1
BACKGROUND .......................................................................................................................1
A.
The Plaintiffs Agreed To Arbitrate Their Disputes With ATTM..........................1
B.
The Consumer-Friendly Features Of ATTM’s Arbitration Provision. ..................3
C.
Plaintiffs Filed Their Lawsuits Against ATTM Notwithstanding Their
Agreements To Arbitrate.....................................................................................5
ARGUMENT.............................................................................................................................6
I.
THE FAA MANDATES ENFORCEMENT OF THE PLAINTIFFS’
ARBITRATION AGREEMENTS. .................................................................................6
II.
IN LIGHT OF CONCEPCION, PLAINTIFFS CANNOT AVOID THEIR
ARBITRATION AGREEMENTS. .................................................................................7
III.
IN LIGHT OF CONCEPCION, THERE IS NO NEED FOR ARBITRATIONRELATED DISCOVERY. ...........................................................................................11
A.
Plaintiffs Cannot Pursue Discovery In A Futile Attempt To Show That
ATTM’s Arbitration Agreement Is Substantively Unconscionable. ...................12
B.
Discovery Is Irrelevant To The Question Whether Plaintiffs Agreed To
Arbitrate Their Disputes With ATTM. ..............................................................16
CONCLUSION........................................................................................................................18

i

TABLE OF AUTHORITIES
Page(s)
CASES
Adams v. AT&T Mobility LLC,
__ F. Supp. 2d. __, 2011 WL 4720194 (W.D. Wash. Sept. 20, 2011).....................................8
Alfeche v. Cash Am. Int’l, Inc., 2011 WL 3565078 (E.D. Pa. Aug. 12, 2011).............................10
Alford v. Dean Witter Reynolds, Inc., 975 F.2d 1161 (5th Cir. 1992) ...........................................7
In re Apple & AT&T iPad Unlimited Data Plan Litig.,
2011 WL 2886407 (N.D. Cal. July 19, 2011)................................................................... 9, 15
Arellano v. T-Mobile USA, Inc., 2011 WL 1842712 (N.D. Cal. May 16, 2011)..........................10
AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011)............................................... passim
Bank One, N.A. v. Coates, 125 F. Supp. 2d 819 (S.D. Miss. 2001).............................................17
Bellows v. Midland Credit Mgmt., Inc., 2011 WL 1691323 (S.D. Cal. May 4, 2011) .................10
Bernal v. Burnett, 2011 WL 2182903 (D. Colo. June 6, 2011)...................................................10
Black v. JP Morgan Chase & Co., 2011 WL 3940236 (W.D. Pa. Aug. 25, 2011) ......................15
Boyer v. AT&T Mobility Servs., LLC, 2011 WL 3047666 (S.D. Cal. July 25, 2011).....................9
In re Cal. Title Ins. Antitrust Litig., 2011 WL 2559633 (N.D. Cal. June 27, 2011).....................10
Carney v. Verizon Wireless Telecom, Inc., 2011 WL 3475368 (S.D. Cal. Aug. 9, 2011)............10
Carrell v. L & S Plumbing P’ship, Ltd., 2011 WL 3300067 (S.D. Tex. Aug. 1, 2011) ...............10
Clerk v. Cash Am. Net of Nev., LLC, 2011 WL 3740579 (E.D. Pa. Aug. 25, 2011) ....................10
Clerk v. Cash Cent. of Utah, LLC, 2011 WL 3739549 (E.D. Pa. Aug. 25, 2011)........................10
Coneff v. AT&T Corp., 620 F. Supp. 2d 1248 (W.D. Wash. 2009) .............................................14
Cruz v. Cingular Wireless, LLC, 648 F.3d 1205 (11th Cir. 2011) ....................................... passim
Cruz v. Cingular Wireless, LLC, 2008 WL 4279690 (M.D. Fla. Sept. 15, 2008)........................15
D’Antuono v. Serv. Rd. Corp., 2011 WL 2175932 (D. Conn. May 25, 2011) .............................10
Day v. Persels & Assocs., 2011 WL 1770300 (M.D. Fla. May 9, 2011).....................................10
Discover Bank v. Super. Ct., 113 P.3d 1100 (Cal. 2005)................................................ 7, 8, 9, 14
ii

TABLE OF AUTHORITIES
(continued)
Page
Estrella v. Freedom Fin., 2011 WL 2633643 (N.D. Cal. July 5, 2011) ......................................10
Fensterstock v. Educ. Fin. Partners, 426 F. App’x 14 (2d Cir. 2011) ........................................11
In re Gateway LX6810 Computer Prods. Litig.,
2011 WL 3099862 (C.D. Cal. July 21, 2011).......................................................................10
Giles v. GE Money Bank, 2011 WL 4501099 (D. Nev. Sept. 27, 2011)......................................13
Green v. SuperShuttle Int’l, Inc., 653 F.3d 766 (8th Cir. 2011) ....................................................9
Honig v. Comcast of Ga. I, LLC, 537 F. Supp. 2d 1277 (N.D. Ga. 2008) ...................................18
Hopkins v. World Acceptance Corp.,
__ F. Supp. 2d __, 2011 WL 2837595 (N.D. Ga. June 29, 2011)..........................................10
Kaltwasser v. AT&T Mobility LLC,
__ F. Supp. 2d. __, 2011 WL 4381748 (N.D. Cal. Sept. 20, 2011) ............................... 8, 9, 14
Kaplan v. AT&T Mobility, LLC, No. 10-3594-CAS(Ex) (C.D. Cal. Aug. 9, 2011) .....................15
King v. Advance Am., Cash Advance, Ctrs., Inc.,
2011 WL 3861898 (E.D. Pa. Aug. 31, 2011) ................................................................. 10, 15
Laster v. AT&T Mobility LLC, 584 F.3d 849 (9th Cir. 2009) .....................................................13
Litman v. Cellco P’ship, __ F.3d __, 2011 WL 3689015 (3d Cir. Aug. 24, 2011) .................. 9, 15
Meyer v. T-Mobile USA Inc., 2011 WL 4434810 (N.D. Cal. Sept. 23, 2011) ................. 10, 16, 17
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985)................. 11, 12
Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983) ..................... 6, 11, 12
Murphy v. DirectTV, Inc., 2011 WL 3319574 (C.D. Cal. Aug. 2, 2011).....................................10
Nelson v. AT&T Mobility LLC, 2011 WL 3651153 (N.D. Cal. Aug. 18, 2011).............................8
Pleasants v. Am. Express Co., 541 F.3d 853 (8th Cir. 2008) ......................................................17
Preston v. Ferrer, 552 U.S. 346 (2008) .....................................................................................11
Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395 (1967)......................................11
Swift v. Zynga Game Network, Inc., 2011 WL 3419499 (N.D. Cal. Aug. 4, 2011) .....................10
Tory v. First Premier Bank, 2011 WL 4478437 (N.D. Ill. Sept. 26, 2011) .................................10
iii

TABLE OF AUTHORITIES
(continued)
Page
United States v. Marek, 238 F.3d 310 (5th Cir. 2001) ..................................................................7
Villegas v. US Bancorp, 2011 WL 2679610 (N.D. Cal. June 20, 2011)......................................10
Wallace v. Ganley Auto Group, 2011 WL 2434093 (Ohio Ct. App. June 16, 2011) ...................11
Wolf v. Nissan Motor Acceptance Corp., 2011 WL 2490939 (D.N.J. June 22, 2011) .................10
Zarandi v. Alliance Data Sys. Corp., 2011 WL 1827228 (C.D. Cal. May 9, 2011).....................10
STATUTES
9 U.S.C. §§ 1-16 .........................................................................................................................1
9 U.S.C. § 2 ................................................................................................................................6
9 U.S.C. § 3 ............................................................................................................................6, 7
9 U.S.C. § 4 ................................................................................................................................6
OTHER AUTHORITIES
Federal Rule of Civil Procedure 11(b) .........................................................................................3
SUSPECTS
AAA Consumer-Related Disputes Supplementary Procedures §§ C-5, C-6.................................4
AAA Consumer-Related Disputes Supplementary Procedures § C-8...........................................3

iv

INTRODUCTION
Defendant AT&T Mobility LLC (“ATTM”) respectfully moves this Court to (i) compel
the plaintiffs in these cases to arbitrate their claims against ATTM and (ii) dismiss those claims.
When the plaintiffs obtained wireless service from ATTM, they agreed to resolve their disputes
in arbitration. The Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16, requires them to honor
those agreements.
The plaintiffs have indicated that they will argue that their arbitration agreements are
unconscionable or otherwise unenforceable because—in their view—the requirement that
arbitration take place on an individual basis prevents them from vindicating their rights. That
argument is foreclosed by the Supreme Court’s decision in AT&T Mobility LLC v. Concepcion,
131 S. Ct. 1740 (2011), and subsequent cases interpreting it.
In Concepcion, the Supreme Court held that courts may not refuse to enforce AT&T
Mobility LLC’s (“ATTM’s”) arbitration agreement on the ground that it precludes customers
from pursuing a class action or class arbitration. As the Eleventh Circuit recently explained,
“faithful adherence to Concepcion requires the rejection” of arguments that ATTM’s arbitration
agreement is unenforceable because “the class action waiver will be exculpatory.” Cruz v.
Cingular Wireless, LLC, 648 F.3d 1205, 1214 (11th Cir. 2011). That is because the Supreme
Court “examined this very arbitration agreement and concluded that it did not produce such a
result.” Id. at 1215 (emphasis in original). In light of Concepcion, therefore, plaintiffs’ attack on
ATTM’s arbitration provision is foreclosed as a matter of law.
BACKGROUND
A.

The Plaintiffs Agreed To Arbitrate Their Disputes With ATTM.

ATTM provides wireless service to its customers pursuant to wireless service
agreements. Under the terms of those agreements, ATTM and its customers have agreed to

1

resolve their disputes by arbitration on an individual basis. According to ATTM’s and Apple’s
records, most of the plaintiffs in this MDL accepted ATTM’s Terms and Conditions when they
became ATTM customers or entered into a new contract with the purchase of new equipment.1
Other plaintiffs receive their service through the account of another person (likely a family
member) who agreed to those Terms and Conditions. 2
The arbitration provision in ATTM’s standard terms of service used between July 2008
and early 2009 is identical to the arbitration provision at issue in Concepcion.

Compare

Concepcion, 131 S. Ct. at 1744 with Rives Decl. Ex. 1 at 14-17. ATTM’s arbitration provision
was revised in early 2009 to make it even more favorable to customers; the Supreme Court
discussed the 2009 provision in Concepcion as well. 131 S. Ct. at 1744 n.3. Pursuant to the
change-in-terms provisions of its contracts, ATTM provided its existing direct paper-billed
customers with a copy of the revised provision in the envelopes containing their March 2009
bills. Decl. of Larry B. White (Dkt. No. 118) ¶ 3 & Ex. 1. ATTM provided further notice of the
revised arbitration provision by including a message on the March, April, and May 2009
statements of direct-billed customers and inviting them to view information about arbitration on
ATTM’s web site (at http://www.att.com/disputeresolution). See, e.g., Mahone-Gonzalez Decl.
Exs. 3-5. The 2009 provision, like earlier ones, requires both ATTM and the plaintiffs “to
arbitrate all disputes and claims between” them. Rives Decl. Ex. 1 at 14; White Decl. Ex. 1 at 2.
1

See Decl. of Caroline Mahone-Gonzalez (Dkt. No. 113) ¶¶ 4-5, 9, 11, 20, 26, 34, 37, 41,
50 & Exs. 1-2, 9-11, 15-17, 33-35, 42-44, 57-59, 62-64, 71, 83-85; Decl. of Darcy Pantano (Dkt.
No. 115) ¶¶ 4-5, 7, 9, 11-12 & Exs. 2-3, 5, 7, 9-10; Decl. of Ramon L. Menendez (Dkt. No. 114)
¶¶ 3-4; Decl. of Harry Bennett (Dkt. No. 112) ¶¶ 7-8 & Exs. 5-6; Decl. of Scott Williamson (Dkt.
No. 119) ¶ 3; Second Decl. of Scott Williamson ¶ 3; Decl. of Stacie Dobbs ¶¶ 3-4; Decl. of
Steven Bethel ¶¶ 4, 6, 8 & Exs. 1-3, 7-11; Decl. of Roger Dicke ¶ 4 & Exs. 1-2; Second Decl. of
Richard Pianka Exs. 1-2.
2

See Mahone-Gonzalez Decl. ¶¶ 13-14, 17-18, 22, 28-29, 31-32, 43, 46-47 & Exs. 21-23,
27-29, 48-50, 78-80; Pantano Decl. ¶¶ 6, 8, 10 & Exs. 4, 6, 8; see also Decl. of Richard J. Rives
(Dkt. No. 117) Ex. 4 at 15 (ATTM’s arbitration provision extends to “all authorized or
unauthorized users or beneficiaries of services or Devices under this or prior Agreements”).
2

Based on ATTM’s and Apple’s records, every plaintiff either directly or indirectly through the
accountholder under whose account he or she receives service agreed to either the 2006 or 2009
arbitration provision, and all plaintiffs who agreed to the former provision either directly or
indirectly would have received notice of the later provision. See pages 1-2 and notes 1-2, supra.3
B.

The Consumer-Friendly Features Of ATTM’s Arbitration Provision.

As the Supreme Court recognized in Concepcion, both the 2006 version of ATTM’s
arbitration provision (the one governing the Concepcions) and the subsequent 2009 version
include several features that ensure that ATTM’s customers have “sufficient * * * incentive for
the individual prosecution of meritorious claims that are not immediately settled” and
“essentially guarantee[]” that aggrieved customers will “be made whole.” Concepcion, 131 S.
Ct. at 1753 (internal quotation marks omitted). The features of the 2009 provision include:
 Cost-free arbitration: For consumer claims of $75,000 or less, “[ATTM] will pay all
[American Arbitration Association (“AAA”)] filing, administration, and arbitrator fees”
unless the arbitrator determines that the claim is “frivolous or brought for an improper
purpose (as measured by the standards set forth in Federal Rule of Civil Procedure
11(b))”;4
 $10,000 minimum award if arbitral award exceeds ATTM’s last settlement offer: If
the arbitrator awards a customer more than ATTM’s “last written settlement offer made
before an arbitrator was selected,” ATTM must pay the customer $10,000 in lieu of any
smaller arbitral award;
 Double attorneys’ fees available: If the arbitrator awards the customer more than
ATTM’s last settlement offer, “[ATTM] will * * * pay [the customer’s] attorney, if any,
twice the amount of attorneys’ fees, and reimburse any expenses (including expert fees

3

Although ATTM has been unable to locate the records of plaintiff Kevin Khoi Duy Tran,
he alleges in his complaint that he “purchased an iPhone 3G-S from Defendant Apple and as an
iPhone customer pays Defendant AT&T monthly service charges.” Compl. ¶ 24, No. 09-cv04048 (N.D. Cal.). In order to activate that iPhone, Tran, like the other plaintiffs, would have
had to accept ATTM’s Terms and Conditions.
4

Even if an arbitrator concludes that a customer’s claim is frivolous, if the claim is for less
than $10,000, the AAA’s consumer arbitration rules would cap the amount of costs the customer
would have to pay at $125. See Decl. of Richard Pianka (Dkt. No. 116) Ex. 1 (AAA, ConsumerRelated Disputes Supplementary Procedures § C-8).
3

and costs) that [the] attorney reasonably accrues for investigating, preparing, and
pursuing [the] claim in arbitration”;5
 ATTM disclaims right to seek attorneys’ fees: “Although under some laws [ATTM]
may have a right to an award of attorneys’ fees and expenses if it prevails in arbitration,
[ATTM] agrees that it will not seek such an award [from the customer]”;
 Small claims court option: Either party may bring a claim in small claims court;
 No confidentiality requirement: The customer and his or her attorney need not keep the
arbitration confidential;
 Full individual remedies available: The arbitrator may award the customer any form of
relief on an individualized basis (including punitive damages, statutory damages,
attorneys’ fees, and injunctions affecting the claimant alone) that a court could award;
 Flexible consumer procedures: Arbitration will be conducted under the AAA’s
Commercial Dispute Resolution Procedures and the Supplementary Procedures for
Consumer-Related Disputes, which the AAA designed with consumers in mind;
 Conveniently located hearing: Arbitration will take place “in the county * * * of [the
customer’s] billing address”;
 Choice of in-person, telephonic, or no hearing: For claims of $10,000 or less,
customers have the exclusive right to choose whether the arbitrator will conduct an inperson hearing, a hearing by telephone, or a “desk” arbitration in which “the arbitration
will be conducted solely on the basis of documents submitted to the arbitrator”;6 and
 Right to a written decision: “Regardless of the manner in which the arbitration is
conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the
essential findings and conclusions on which the award is based.”
Rives Decl. Ex. 4 at 14-19.

5

The provision for double attorneys’ fees “supplements any right to attorneys’ fees and
expenses [that the customer] may have under applicable law.” Rives Decl. Ex. 4 at 18. Thus,
even if an arbitrator were to award a customer less than ATTM’s last settlement offer, the
customer would be entitled to an attorneys’ fee award to the same extent as if the claim had been
brought in court.
6

Under the AAA rules that would otherwise apply, either party may insist on a hearing in
cases involving claims of $10,000 or less. See Pianka Decl. Ex. 1 (AAA, Consumer-Related
Disputes Supplementary Procedures §§ C-5, C-6). For claims exceeding $10,000, a hearing
would be held unless both parties agree to forgo it. Id. § C-6.
4

C.

Plaintiffs Filed Their Lawsuits Against ATTM Notwithstanding Their
Agreements To Arbitrate.

This multidistrict litigation comprises 23 putative class actions brought by plaintiffs in 16
different states against Apple Inc. (“Apple”) and ATTM, alleging that ATTM and Apple
misrepresented the ability of the iPhone 3G and 3GS to support Multimedia Messaging Service
on ATTM’s network. The plaintiffs bring claims under state consumer protection statutes and
common law, and seek to represent nationwide and statewide classes of iPhone 3G and 3GS
purchasers.
In August 2010, ATTM moved to compel arbitration of the disputes of each named
plaintiffs who had filed an amended complaint.7 Dkt. Nos. 95-110. In response, plaintiffs
sought what they characterized as arbitration-related discovery. ATTM responded in part to the
discovery requests and identified its objections. After several weeks of meeting and conferring
over the discovery requests—including seeking this Court’s intervention—plaintiffs and ATTM
agreed in early November 2010 to stay plaintiffs’ claims against ATTM because Concepcion
7

After the actions were consolidated into this MDL proceeding by the Judicial Panel on
Multidistrict Litigation, plaintiffs from 12 states filed amended complaints in 16 of the actions on
June 4, 2010, pursuant to this Court’s order of May 28, 2010. Dkt. Nos. 66-82. An amended
complaint in West v. Apple Inc., No. 11-cv-01370 (D.N.J.), was filed on August 20, 2010. Dkt.
No. 158. Amended complaints have not been filed in six actions: Carr v. Apple Inc., No. 09-cv1996 (N.D. Ohio); Tran v. Apple Inc., No. 09-4048 (N.D. Cal.); Molina v. Apple Inc., No. 09-cv2032 (S.D. Cal.); and “tag-along actions” that were filed after the Court’s May 28, 2010 order,
Fernandez v. Apple Inc., No. 10-cv-03236 (E.D. La.); Ishmael v. Apple Inc., No. 11-cv-00590
(E.D. La.); and Wortman v. Apple Inc., No. 10-cv-04109 (E.D. La.).
Plaintiffs in four of the original underlying actions voluntarily dismissed their complaints
on June 18, 2010. Dkt. Nos. 86-89. In addition, a number of individuals who were named
plaintiffs in the original complaints have been omitted from the amended complaints, although
they have not formally filed dismissals of their claims: Greg L. Davis (original Davis
complaint); Christopher Carbine and Lisa Maurer (original Carbine complaint); Allison Friloux
(original Friloux complaint); Meredith Goette and Raymond Bolourtchi (original Goette
complaint); Mark E. Clark and William T. Joyner (original Jackson complaint); and Rick Pineda
(original Pineda complaint). Accordingly, it is ATTM’s understanding that these individuals are
no longer parties to any of the actions consolidated before this Court. Even if they were to
remain as parties, these motions to compel arbitration would apply with equal force to those
parties’ arbitration agreements with ATTM.
5

was pending before the United States Supreme Court. Dkt. No. 193. And on November 17,
2010, this Court stayed all proceedings in this case pending the resolution of Concepcion. Dkt.
No. 206. The Supreme Court ruled in favor of ATTM in Concepcion on April 27, 2011.
This Court ordered the parties to submit position papers on Concepcion’s effect, and at a
status conference on September 22, 2011, set a new briefing schedule.
ARGUMENT
I.

THE FAA MANDATES ENFORCEMENT
ARBITRATION AGREEMENTS.

OF

THE

PLAINTIFFS’

The FAA requires that plaintiffs’ arbitration agreements be enforced. It is “beyond
dispute that the FAA was designed to promote arbitration.” Concepcion, 131 S. Ct. at 1749. The
centerpiece of the FAA is Section 2, which mandates that written agreements to arbitrate
disputes “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or
in equity for the revocation of any contract.” 9 U.S.C. § 2. Sections 3 and 4 also emphasize the
duty of courts to compel arbitration “in accordance with the terms of the [arbitration]
agreement.” Id. §§ 3-4. As the Supreme Court has explained, “[t]he overarching purpose of the
FAA, evident in the text of §§ 2, 3, and 4, is to ensure the enforcement of arbitration agreements
according to their terms so as to facilitate streamlined proceedings.” Concepcion, 131 S. Ct. at
1748. And this “liberal federal policy favoring arbitration agreements” applies “notwithstanding
any state substantive or procedural policies to the contrary.” Id. at 1749 (internal quotation
marks omitted). Accordingly, “questions of arbitrability must be addressed with a healthy regard
for the federal policy favoring arbitration.” Moses H. Cone Mem’l Hosp. v. Mercury Constr.
Corp., 460 U.S. 1, 24 (1983).
In view of these principles, the FAA requires enforcement of plaintiffs’ arbitration
agreements with ATTM. The FAA applies if the arbitration agreement is “written” and in a
contract “evidencing a transaction involving commerce.” 9 U.S.C. § 2. Both criteria are met
6

here: (i) ATTM’s arbitration provision is in writing (see pages 3-4, supra); and (ii) contracts for
wireless service involve interstate commerce, because wireless devices, even “during intrastate
use,” are “[i]nterstate commerce facilities.” United States v. Marek, 238 F.3d 310, 318 (5th Cir.
2001).

Indeed, the arbitration provision itself specifies that the ATTM service agreement

“evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the
interpretation and enforcement of this provision.” Rives Decl. Ex. 4 at 15. Moreover, plaintiffs’
claims unquestionably are covered by their agreements to arbitrate “all disputes and claims
between” them and ATTM. Id.
When, as here, the FAA governs arbitration provisions that cover a plaintiff’s claims, the
Court should compel arbitration and dismiss those claims. See 9 U.S.C. § 3; see also, e.g.,
Alford v. Dean Witter Reynolds, Inc., 975 F.2d 1161, 1164 (5th Cir. 1992) (“The weight of
authority clearly supports dismissal of the case when all of the issues raised in the district court
must be submitted to arbitration.”) (emphasis omitted).
II.

IN LIGHT OF CONCEPCION, PLAINTIFFS CANNOT AVOID THEIR
ARBITRATION AGREEMENTS.
Plaintiffs have indicated that they will attempt to challenge the enforceability of their

arbitration agreements by arguing that, because the agreements require arbitration on an
individual basis, they may be unable to vindicate their state-law claims. But those efforts are
destined to fail, because in Concepcion the Supreme Court made it crystal clear that the FAA
requires enforcing ATTM’s provision as a matter of federal law.
At issue in Concepcion was whether the FAA preempted a state-law rule “classifying
most collective-arbitration waivers in consumer contracts as unconscionable,” which the
Supreme Court referred to as “the Discover Bank rule.” Concepcion, 131 S. Ct. at 1746 (citing
Discover Bank v. Super. Ct., 113 P.3d 1100 (Cal. 2005)). Answering that question in the
affirmative, the Court explained that state laws “[r]equiring the availability of classwide
7

arbitration interfere[] with fundamental attributes of arbitration and thus create[] a scheme
inconsistent with the FAA.”

Id. at 1748.

“Because it stands as an obstacle to the

accomplishment and execution of the full purposes and objectives of Congress,” the Court held,
the “Discover Bank rule is preempted by the FAA.” Id. at 1753 (internal quotation marks and
citation omitted).
The Supreme Court also held that the policy concerns underlying the Discover Bank
rule—that without class actions, some small claims might not be vindicated—are beside the
point, because “States cannot require a procedure that is inconsistent with the FAA, even if it is
desirable for unrelated reasons.” Concepcion, 131 S. Ct. at 1753. Moreover, the Court endorsed
the observations of the district court and Ninth Circuit in Concepcion that “aggrieved customers
who filed claims would be ‘essentially guarantee[d]’ to be made whole” under ATTM’s
arbitration provision and that plaintiffs are “better off under their arbitration agreement with
[ATTM] than they would have been as participants in a class action.” Id. (emphasis and first
alteration in original).
Here, each plaintiff is bound by an ATTM arbitration provision that is materially
equivalent to the one held enforceable in Concepcion. See page 2, supra. Accordingly, under
Concepcion, the FAA requires that the provision be enforced, and plaintiffs’ state-law challenges
to the provision would be preempted.
Post-Concepcion authority powerfully confirms that conclusion. In the six months since
Concepcion was decided, six federal courts—including the Eleventh Circuit—have held that
ATTM’s arbitration agreement is fully enforceable as a matter of law under the FAA. See Cruz,
648 F.3d 1205; Kaltwasser v. AT&T Mobility LLC, __ F. Supp. 2d. __, 2011 WL 4381748 (N.D.
Cal. Sept. 20, 2011); Adams v. AT&T Mobility, LLC, __ F. Supp. 2d. __, 2011 WL 4720194
(W.D. Wash. Sept. 20, 2011); Nelson v. AT&T Mobility LLC, 2011 WL 3651153 (N.D. Cal. Aug.

8

18, 2011); In re Apple & AT&T iPad Unlimited Data Plan Litig., 2011 WL 2886407 (N.D. Cal.
July 19, 2011); Boyer v. AT&T Mobility Servs., LLC, 2011 WL 3047666 (S.D. Cal. July 25,
2011).
As the Eleventh Circuit put it in Cruz:
[W]e now hold that, in light of Concepcion, the class action waiver
in the Plaintiffs’ arbitration agreements is enforceable under the
FAA. Insofar as Florida law would invalidate these agreements as
contrary to public policy (a question we need not decide), such a
state law would “stand[ ] as an obstacle to the accomplishment and
execution” of the FAA, and thus be preempted.
***
Thus, in light of Concepcion, state rules mandating the availability
of class arbitration based on generalizable characteristics of
consumer protection claims—including that the claims
“predictably involve small amounts of damages,” that the
company’s deceptive practices may be replicated across “large
numbers of consumers,” and that many potential claims may go
unprosecuted unless they may be brought as a class—are
preempted by the FAA, even if they may be “desirable[.]”
648 F.3d at 1207, 1212 (citations omitted). Another court recently agreed that “Concepcion not
only rejected the Discover Bank rule but also upheld the 2006 agreement at issue in that case.”
Kaltwasser, 2011 WL 4381748, at *6 (emphasis added).
In fact, the U.S. Court of Appeals for the Third Circuit recently upheld an arbitration
provision that is less favorable to customers than ATTM’s provision, explaining that “the
holding of Concepcion [is] both broad and clear: a state law that seeks to impose class arbitration
despite a contractual agreement for individualized arbitration is inconsistent with, and therefore
preempted by, the FAA, irrespective of whether class arbitration ‘is desirable for unrelated
reasons.’” Litman v. Cellco P’ship, __ F.3d __, 2011 WL 3689015, at *5 (3d Cir. Aug. 24,
2011) (quoting Concepcion, 131 S. Ct. at 1753); see also Green v. SuperShuttle Int’l, Inc., 653
F.3d 766, 769 (8th Cir. 2011) (“Our reading of Concepcion convinces us the state-law-based

9

challenge involved here suffers from the same flaw as the state-law-based challenge in
Concepcion—it is preempted by the FAA. Consequently, Concepcion forecloses [plaintiff’s]
claim that the district court erred in concluding the class action waivers were enforceable.”).
For similar reasons, many other courts have relied on Concepcion in enforcing
agreements to arbitrate on an individual basis that are not as favorable to customers or employees
as ATTM’s provision. See, e.g., Tory v. First Premier Bank, 2011 WL 4478437 (N.D. Ill. Sept.
26, 2011); Meyer v. T-Mobile USA Inc., 2011 WL 4434810 (N.D. Cal. Sept. 23, 2011); King v.
Advance Am., Cash Advance, Ctrs., Inc., 2011 WL 3861898 (E.D. Pa. Aug. 31, 2011); Clerk v.
Cash Am. Net of Nev., LLC, 2011 WL 3740579 (E.D. Pa. Aug. 25, 2011); Clerk v. Cash Cent. of
Utah, LLC, 2011 WL 3739549 (E.D. Pa. Aug. 25, 2011); Alfeche v. Cash Am. Int’l, Inc., 2011
WL 3565078 (E.D. Pa. Aug. 12, 2011); Carney v. Verizon Wireless Telecom, Inc., 2011 WL
3475368 (S.D. Cal. Aug. 9, 2011); Swift v. Zynga Game Network, Inc., 2011 WL 3419499 (N.D.
Cal. Aug. 4, 2011); Murphy v. DirectTV, Inc., 2011 WL 3319574 (C.D. Cal. Aug. 2, 2011);
Carrell v. L & S Plumbing P’ship, Ltd., 2011 WL 3300067 (S.D. Tex. Aug. 1, 2011); In re
Gateway LX6810 Computer Prods. Litig., 2011 WL 3099862 (C.D. Cal. July 21, 2011); Estrella
v. Freedom Fin., 2011 WL 2633643 (N.D. Cal. July 5, 2011); Hopkins v. World Acceptance
Corp., __ F. Supp. 2d __, 2011 WL 2837595 (N.D. Ga. June 29, 2011); In re Cal. Title Ins.
Antitrust Litig., 2011 WL 2559633 (N.D. Cal. June 27, 2011); Wolf v. Nissan Motor Acceptance
Corp., 2011 WL 2490939 (D.N.J. June 22, 2011); Villegas v. US Bancorp, 2011 WL 2679610
(N.D. Cal. June 20, 2011); Bernal v. Burnett, 2011 WL 2182903 (D. Colo. June 6, 2011);
D’Antuono v. Serv. Rd. Corp., 2011 WL 2175932 (D. Conn. May 25, 2011); Arellano v. TMobile USA, Inc., 2011 WL 1842712 (N.D. Cal. May 16, 2011); Zarandi v. Alliance Data Sys.
Corp., 2011 WL 1827228 (C.D. Cal. May 9, 2011); Day v. Persels & Assocs., 2011 WL
1770300 (M.D. Fla. May 9, 2011); Bellows v. Midland Credit Mgmt., Inc., 2011 WL 1691323

10

(S.D. Cal. May 4, 2011); Wallace v. Ganley Auto Group, 2011 WL 2434093 (Ohio Ct. App. June
16, 2011); see also Fensterstock v. Educ. Fin. Partners, 426 F. App’x 14 (2d Cir. 2011)
(concluding that Concepcion was dispositive of plaintiff’s argument that the requirement that he
arbitrate on an individual basis is unconscionable under California law and remanding for
consideration of other issues).
In short, the FAA and Concepcion foreclose any argument plaintiffs might make that
their arbitration agreements should not be enforced because those agreements require arbitration
on an individual rather than class-wide basis. 8
III.

IN LIGHT OF CONCEPCION, THERE IS NO NEED FOR ARBITRATIONRELATED DISCOVERY.
As the Supreme Court has explained, “Congress’s clear intent, in the [FAA], [was] to

move the parties to an arbitrable dispute out of court and into arbitration as quickly and easily as
possible.” Moses H. Cone, 460 U.S. at 22; see also Prima Paint Corp. v. Flood & Conklin Mfg.
Co., 388 U.S. 395, 404 (1967) (“[T]he unmistakably clear congressional purpose” of the FAA
was “that the arbitration procedure, when selected by the parties to a contract, be speedy and not
subject to delay and obstruction in the courts.”); Preston v. Ferrer, 552 U.S. 346, 357-58 (2008)
(“A prime objective of an agreement to arbitrate is to achieve ‘streamlined proceedings and
expeditious results.’”) (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473
U.S. 614, 633 (1985)). Thus, when a motion to compel arbitration has been filed, the FAA

8

For the reasons we explained in our prior motions to compel arbitration, even without
Concepcion, ATTM’s arbitration agreement would be enforceable as a matter of state law in
virtually all of the states in which the named plaintiffs reside. See Dkt. No. 111 at 11-63
(addressing law of states of then-current named plaintiffs). But in light of Concepcion, which
requires enforcement of ATTM’s provision as a matter of federal law, there is no need to address
the question whether that provision is enforceable under the laws of the plaintiffs’ home states.
See Cruz, 648 F.3d at 1207 (explaining that whether the law of a particular state would invalidate
ATTM’s provision is “a question we need not decide” because “such a state law would ‘stand[ ]
as an obstacle to the accomplishment and execution’ of the FAA, * * * and thus be preempted”)
(quoting Concepcion, 131 S. Ct. at 1753).
11

“call[s] for an expeditious and summary hearing, with only restricted inquiry into factual
issues.” Moses H. Cone, 460 U.S. at 22 (emphasis added). Otherwise, the expense of litigating
the enforceability of the arbitration agreement threatens to eliminate the “simplicity, informality,
and expedition” of arbitration (Mitsubishi, 473 U.S. at 628) and thereby undermine the point of
agreeing to arbitrate in the first place. Plaintiffs’ insistence on extensive discovery threatens to
do just that. As this Court observed at the September 22, 2011, status conference, if plaintiffs
were permitted to take arbitration-related discovery, “you all are going to spend a lot of money
and time, * * * and it may be all for naught anyway.” Tr. of Sept. 22, 2011, Status Conf. (Dkt.
No. 232) at 14:21-23.
Plaintiffs have suggested that they need discovery for two reasons. First, they claim to
need discovery to attempt to show that ATTM’s arbitration agreement is “either substantively
unconscionable or generally unenforceable” under the laws of some states because it “prevents a
party from being able to vindicate statutory rights or * * * effectively exculpates a defendant
from liability.” Pls.’ Position Paper (Dkt. No. 225) at 9. Second, they claim to need discovery to
“show that a contract was never formed.” Id. at 8. But, as explained above, Concepcion
squarely forecloses plaintiffs’ substantive unconscionability argument as a matter of federal law.
And plaintiffs do not need discovery regarding whether they themselves entered into arbitration
agreements with ATTM, as that information is within their own knowledge.
A.

Plaintiffs Cannot Pursue Discovery In A Futile Attempt To Show That
ATTM’s Arbitration Agreement Is Substantively Unconscionable.

Well before Concepcion, this Court recognized that there was no need for the kind of
wide-ranging discovery plaintiffs seek, because the enforceability of their arbitration agreements
is a question of law:
What I’m saying, one way or another, you’re signing up for some
agreement. It’s in the agreement. Whatever it is, it is. I just don’t

12

understand what kind of discovery you’re going to need on that. It
seems to me they could tee that up as a legal issue.
Tr. of Jan. 15, 2010 Status Conf. (Dkt. No. 21) at 22; see also id. at 21 (noting that whether an
arbitration agreement is unconscionable is a legal, not factual, issue); id. at 25 (noting that
arbitrability is a legal issue). See also Giles v. GE Money Bank, 2011 WL 4501099, at *2 (D.
Nev. Sept. 27, 2011) (rejecting discovery requests because “[w]hether the arbitration agreement
is enforceable against [plaintiff], is a straightforward matter of contract law,” and “[t]he court
can glean from the face of the document whether it is unconscionable”).
Concepcion confirms that whether ATTM’s arbitration provision is enforceable is a
question of law, and answers that question by holding that the FAA mandates enforcing the
provision. As the Supreme Court explained, the terms of ATTM’s arbitration provision are
“sufficient to provide incentive for the individual prosecution of meritorious claims that are not
immediately settled,” and “aggrieved customers who filed claims would be ‘essentially
guarantee[d]’ to be made whole.” Concepcion, 131 S. Ct. at 1753 (quoting Laster v. AT&T
Mobility LLC, 584 F.3d 849, 856 n.9 (9th Cir. 2009)). In fact, the Court recognized that the
plaintiffs in that case were “better off under their arbitration agreement with [ATTM] than they
would have been as participants in a class action.” Id. (emphasis in original). No amount of
discovery can justify disregarding those conclusions.
For these reasons, the Eleventh Circuit recently rejected—as a matter of law—a
challenge to ATTM’s arbitration provision that relied on purported “evidentiary proof regarding
whether parties could vindicate their statutory rights in arbitration.” Cruz, 648 F.3d at 1213.
The plaintiffs in Cruz argued that “evidence” they had amassed proved that they could not
vindicate their rights because “it would not be cost-effective for them to pursue” their “legally
complex but small-value claims” individually. Id. at 1212, 1214. But the Eleventh Circuit
concluded that such “evidence goes only to substantiating the very public policy arguments that
13

were expressly rejected by the Supreme Court in Concepcion—namely, that the class action
waiver will be exculpatory, because most of these small-value claims will go undetected and
unprosecuted.”

Id. at 1214.

Thus, “such an argument is foreclosed here, because the

Concepcion Court examined this very arbitration agreement and concluded that it did not
produce such a result.” Id. at 1215 (emphasis in original).
Similarly, as another court recently observed, “the notion that arbitration must never
prevent a plaintiff from vindicating a claim is inconsistent with Concepcion. In striking down
the Discover Bank rule, the Supreme Court recognized the possibility that ‘small-dollar claims ...
might ... slip through the system’ because of the cost of proving a claim.” Kaltwasser, 2011 WL
4381748, at *5 (quoting Concepcion, 131 S.Ct. at 1753) (alterations in Kaltwasser).

The

Kaltwasser court concluded that Concepcion does not “allow for the plaintiffs to avoid classaction waivers by offering evidence about particular costs of proof they would face—essentially
applying the underlying rationale of Discover Bank without relying on Discover Bank as a
‘rule.’” Id. Thus, any challenge to the fairness of ATTM’s provision “must be confined to
circumstances in which a plaintiff argues that costs specific to the arbitration process, such as
filing fees and arbitrator’s fees, prevent [them] from vindicating [their] claims.
(emphasis added).

Id. at *6

Anything else would be “unworkable as a practical matter of judicial

administration,” and “[i]t is highly doubtful that in striking down the Discover Bank rule, the
Supreme Court intended to open the door to” the kind of case-by-case, fact-specific inquiries
plaintiffs seek “as a means for plaintiffs to avoid arbitration agreements.” Id.9

9

Moreover, the Supreme Court in Concepcion was itself presented with the kind of
evidence plaintiffs here claim the need to gather. In an amicus brief submitted in support of the
Concepcion plaintiffs, counsel for plaintiffs in another putative class action against ATTM—
Coneff v. AT&T Corp., 620 F. Supp. 2d 1248 (W.D. Wash. 2009)—offered the same arguments,
along with the record they and other plaintiffs had compiled in district court proceedings. See
Br. of Amici Curiae Marygrace Coneff et al., Concepcion, 2011 WL 3973886. There, the amici
14

Here, the costs of arbitration can be determined from the face of the agreement and the
relevant AAA rules. In other words, in light of Concepcion, plaintiffs here have no need for
discovery that, they suggest, might somehow “show that the agreement is substantively
unsconscionable.” Pls.’ Position Paper at 9. Indeed, since Concepcion was decided, each federal
court to consider the question has refused to permit discovery concerning ATTM’s provision.
As one federal court put it, “[t]he argument that plaintiffs seek to support through arbitration
related discovery has already been addressed and rejected by the Supreme Court.” In re iPad,
2011 WL 2886407, at *6. Another federal court summarily denied a plaintiff’s request for
arbitration-related discovery, finding it “neither necessary nor proper.” Order at 2, Kaplan v.
AT&T Mobility, LLC, No. 10-3594-CAS(Ex) (C.D. Cal. Aug. 9, 2011) (attached as Exhibit A).
Courts have reached the same conclusion even in cases involving arbitration provisions
that are less consumer-friendly than ATTM’s—and which were not expressly approved by the
Supreme Court. As one federal court put it, a plaintiffs’ request for discovery “directed at
whether the class-waiver clause itself is unlawful”—because it was, in plaintiffs’ view,
exculpatory and unconscionable—“falls outside this Court’s role * * * in light of Concepcion
and Litman.” King, 2011 WL 3861898, at *8. Another court observed that “discovery as to the
potential damages [plaintiff] can recover individually” was “simply irrelevant to the substantive
unconscionability inquiry” in light of Concepcion, which rejected the “argument that class
actions are necessary to bring small-dollar claims that might otherwise slip through the legal
system.” Black v. JP Morgan Chase & Co., 2011 WL 3940236, at *21 (W.D. Pa. Aug. 25,

argued that they had “successfully proven that AT&T’s class action ban would as a factual
matter exculpate AT&T from liability” and thus that ATTM’s arbitration provision does not
“provide[] customers with an effective means of redress.” Id. at *2. That argument relied
entirely on what the amici called “[t]he rich factual record developed in Coneff, along with that
of another putative class action against AT&T, Cruz v. Cingular Wireless, LLC, * * * 2008 WL
4279690 (M.D. Fla. Sept. 15, 2008).” Id. at *7-8. Needless to say, it did not persuade the
Supreme Court.
15

2011). See also Meyer, 2011 WL 4434810, at *9-*10 (“Plaintiff’s proposed discovery requests
are beyond the scope allowed by the FAA”).10
B.

Discovery Is Irrelevant To The Question Whether Plaintiffs Agreed To
Arbitrate Their Disputes With ATTM.

Equally irrelevant is plaintiffs’ contention that they need discovery to determine whether
they agreed to arbitrate, or whether the circumstances under which they did so were procedurally
unconscionable. At the recent status conference, plaintiffs argued that Concepcion “carved out
contract formation as a fertile ground to figure out whether these arbitration clauses are being
procedurally imposed correctly on consumers.” Tr. of Sept. 22, 2011, Status Conf. at 12:21-23.
But as the Court suggested, these are straightforward questions that do not require discovery to
answer: “[Y]ou either agree to [the terms of service], you either accept the service with this
provision or you don’t.” Id. at 14:16-17. And plaintiffs themselves have conceded that a
“customer could not sign up for a service plan [with ATTM] without acquiescing to the
agreement.” Pls.’ Position Paper at 8.
ATTM has provided evidence showing that plaintiffs, or the users on whose accounts
they receive service, agreed to ATTM’s terms of service—including the arbitration agreement—
as a condition of receiving wireless service. Plaintiffs have not offered any reason to suppose
that discovery could shed any light on the question whether they in fact did so. Nor could they:
Whether they agreed to ATTM’s terms of service is a fact within their own knowledge. Thus, as
a federal district court in Mississippi has observed—in a decision affirmed by the Fifth Circuit—
“there is no apparent need for discovery as to [a party’s] knowledge of” the circumstances under
which that party agreed to arbitrate, because they “are matters only [they themselves] could

10

Plaintiffs likely will point to a handful of cases in which courts have authorized
arbitration-related discovery even after Concepcion. In addition to being inconsistent with the
FAA and Concepcion, these cases also are irrelevant, because, unlike here, they did not involve
arbitration provisions that the Supreme Court already has considered and approved.
16

know.” Bank One, N.A. v. Coates, 125 F. Supp. 2d 819, 828 (S.D. Miss. 2001), aff’d, 34 F.
App’x 964 (5th Cir. 2002).
It is clear that plaintiffs seek discovery not to determine whether they agreed to
arbitrate—a question that can be answered without discovery—but rather to investigate the
circumstances under which other ATTM customers agreed to arbitrate. Thus, they seek, for
example, information on “[n]egotiations between AT&T and customers regarding the terms and
conditions of any arbitration clauses” and “[m]ethods by which customers are provided copies
of” the wireless service agreement. Pls.’ Position Paper at 9. But the only question before the
court is whether these plaintiffs entered into valid, enforceable agreements to arbitrate. The
experience of any other ATTM customers is wholly irrelevant, and thus not the proper subject of
discovery. As the Eighth Circuit has explained, “whether other consumers have elected to
arbitrate claims under other contracts is not material to the determination of” the plaintiff’s
unconscionability challenge in that case. Pleasants v. Am. Express Co., 541 F.3d 853, 859 (8th
Cir. 2008).
Courts thus regularly reject requests for discovery relating to the arbitration agreements
of non-parties to the litigation. For example, in Meyer, the court rejected similar discovery
requests because “[m]ost of Plaintiff’s discovery requests do not relate to the validity of
Plaintiff’s arbitration agreement with [defendant].

Instead, they concern all agreements,

disputes, arbitrations and lawsuits relating to T–Mobile customers in California other than
Plaintiff.” 2011 WL 4434810, at *10 (emphasis in original). And in another case, the court
rejected a request for discovery “as to whether Plaintiff and the members of the proposed
[nationwide] Class agreed to arbitrate their claims,” because it was undisputed that the plaintiff
had signed the agreement containing the arbitration provision, and because “allowing such
discovery would contravene the policy of the FAA that issues of arbitrability should be

17

determined promptly.” Honig v. Comcast of Ga. I, LLC, 537 F. Supp. 2d 1277, 1284 n.3 (N.D.
Ga. 2008) (internal quotation marks omitted).
*******
In short, plaintiffs do not need discovery to support an argument that their arbitration
agreements prevent them from vindicating their claims, because those arguments are foreclosed
by Concepcion. And they do not need discovery to support challenges to the manner in which
they formed their contracts because that information is already in their possession. The Court
should not allow plaintiffs to further put off the inevitable by permitting them to expose ATTM
to the delay and expense of discovery in a futile attempt to resist their arbitration agreements.
CONCLUSION
The Court should compel the plaintiffs to arbitrate their claims on an individual basis in
accordance with their arbitration agreements, and should dismiss their claims against ATTM.
Respectfully submitted,
MAYER BROWN LLP
October 20, 2011

BY:

/s/ Archis A. Parasharami
Archis A. Parasharami
[e-mail]
Evan M. Tager
[e-mail]
1999 K Street NW
Washington, DC 20006-1101
Telephone: [phone]
Facsimile: [phone]
Kathleen Taylor Sooy
[e-mail]
Tracy A. Roman
[e-mail]
CROWELL & MORING LLP
1001 Pennsylvania Avenue, N.W.
Washington, DC 20004-2595
Telephone: [phone]
Facsimile: [phone]

18

Gary J. Russo
[e-mail]
JONES, WALKER, WAECHTER,
POITEVENT, CARRER,
DENEGRE LLP
600 Jefferson Street, Suite 1600
Lafayette, Louisiana 70501
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant AT&T Mobility LLC

19

CERTIFICATE OF SERVICE
I hereby certify that on the 20th day of October, 2011, I served the foregoing by causing
it to be filed with the Clerk of the Court by using the CM/ECF system, which will send a notice
of electronic filing to case participants.

/s/ Archis A. Parasharami
Archis A. Parasharami

20