Emilio v. Sprint Spectrum L.P.

Filing 351

OPINION AND ORDER: re: 253 MOTION for Summary Judgment Notice of Motion for Defendant's Motion for Summary Judgment filed by Sprint Spectrum L.P., 264 MOTION to Certify Class and for Appointment of Class Counsel filed by Vincent Emi lio, 309 MOTION to Strike Document No. 303 Notice of Motion for Defendant's Motion to Exclude the Damages and Class Opinions of Michael Levine filed by Sprint Spectrum L.P., 334 LETTER MOTION for Local Rule 37.2 Conference addressed to Magistrate Judge Kevin Nathaniel Fox from Damon W. Suden dated February 3, 2017 filed by Sprint Spectrum L.P., 287 MOTION for Sanctions Plaintiff Vincent Emilio's Motion for Sanctions Based on Sprint's Failure to Preserve Evidence filed by Vincent Emilio, 327 MOTION to Strike Sprint's Expert Rebuttal Report filed by Vincent Emilio. For the foregoing reasons, Sprint's motion for summary judgment is DENIED, and Emilio's motion for class certification is DENIED. As t o the other pending motions in this case discussed above, the motion for adverse inference sanctions against Sprint is DENIED. The motion to strike the expert report of Michael Levine is DENIED. The motion to strike Sprint's rebuttal report by J oseph P. Dooley is also DENIED. The letter motion for a pre-motion conference is DENIED as moot. The Clerk of Court is directed to close the motions at Docket Numbers 253, 264, 287, 309, 327, and 334. SO ORDERED. (Signed by Judge J. Paul Oetken on 7/27/2017) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
VINCENT EMILIO, individually and on behalf :
:
of all others similarly situated,
:
:
Plaintiff,
-v:
:
SPRINT SPECTRUM L.P., d/b/a SPRINT PCS, :
:
Defendant. :
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11-CV-3041 (JPO)
OPINION AND ORDER

J. PAUL OETKEN, District Judge:
Plaintiff Vincent Emilio initiated this action on May 4, 2011. (Dkt. No. 1.) In the
operative amended class action complaint, Emilio alleges that Defendant Sprint Spectrum L.P.
(“Sprint”) violated the Kansas Unfair Trade and Consumer Protection Act (“KCPA”), Kan. Stat.
Ann. § 50-623 et seq., primarily by misrepresenting a discretionary charge as a mandatory tax
imposed on customers by New York state. (Dkt. No. 141.) Specifically, Emilio cites provisions
of the KCPA that bar companies from misrepresenting or willfully omitting material facts from
consumers, Kan. State. Ann. § 50-626(b)(2)-(3), or engaging in unconscionable acts, id. § 50627(a), as the basis for his class claims, id. § 50-634(d). (Dkt. No. 141 ¶¶ 33-45.)
Currently pending before the Court are Sprint’s motion for summary judgment (Dkt. No.
253), Emilio’s motion for class certification (Dkt. No. 264), and certain other related motions.
For the reasons that follow, the motions for summary judgment and for class certification are
denied.

1

I.

Factual Background
The Court assumes familiarity with the complex background and procedural history of

this case. 1 The following facts are, unless otherwise noted, undisputed and taken from the
parties’ Rule 56.1 statements and responses. (Dkt. No. 283.)
This case focuses on Sprint’s billing for a New York state excise tax that, during the
relevant period, imposed a 2.5% tax on gross receipts, including ancillary charges, from the sale
of mobile telecommunications services to a customer who primarily used those services in New
York. N.Y. Tax §§ 186-e, 1111(l)(1). It is undisputed that, since 1997, Sprint has passed the
excise tax through to its customers by including a surcharge on their regular invoices. (Dkt. No.
283 ¶¶ 78-79.)
The claims at the heart of this action focus not on the fact of Sprint’s passing through the
excise tax (a claim which arose during the initial arbitration but was effectively dropped (see
Dkt. No. 306-4 at 2-3)), but instead take issue with the way the company represented the excise
tax on customer invoices. Specifically, during the putative class period, Sprint included the
excise tax on customer bills under the “Surcharges and Fees” section (or the “Other Surcharges
and Fees” section) (Dkt. No. 283 ¶¶ 50, 80), rather than the “Taxes and Regulatory Related
Charges” part of the bill (id. ¶¶ 45-46). It is undisputed that, in April and July 2003, Sprint listed
the excise tax under two separate sections, including the part of the bill enumerating the “taxes.”
(Id. ¶¶ 53-54.)
With the invoices, Sprint included disclosures explaining various charges. From January
2002 to January 2003, the relevant disclosure read:

1

The Court has described the full procedural history of this action in previous
opinions, including its 2014 decision denying Sprint’s motion to dismiss. See Emilio v. Sprint
Spectrum L.P., 68 F. Supp. 3d 509, 511-14 (S.D.N.Y. 2014).
2

Taxes, Surcharges and Other Regulatory Related Charges – These include
applicable federal, state, city and county taxes. Other fees and charges are also
invoiced here, including the Regulatory Obligations & Fees surcharge . . . .
(Id. ¶¶ 46-47.) From February 2003 to November 2004, the disclosure separated out “Surcharges
and Fees” from its explanation of taxes. That disclosure read:
Surcharges and Fees – The surcharges in this section generally recover the costs
incurred by Sprint in complying with various federal and state mandates. Charges
that appear in this section of your invoice . . . are neither taxes nor governmentimposed assessments. Neither federal nor state law requires a carrier to impose
these charges but carriers are permitted to recover their costs of complying with
these federal and state mandates.
(Id. ¶¶ 48-49.) From December 2004 to June 2007, Sprint referred to the tax as a “New York
State Excise Tax Surcharge”; the charge remained in the “Surcharges and Fees,” subsection of
the bill, and the relevant disclosure read:
Surcharges and Fees – The surcharges in this section include certain charges
assessed on Sprint that we pass through to our customers, as well as those that
recover the costs by Sprint complying with various federal and state mandates.
Charges that appear in this section of your invoice . . . are neither taxes nor
government-mandated assessments. . . .
(Id. ¶¶ 50-52.)
Sprint represents that its invoices placed the excise tax in the section of the bill reserved
for surcharges and other fees, rather than the section designated for taxes, but Emilio disputes
whether these sections of the bill were truly “distinct,” whether Sprint’s disclosures as to the
nature of the tax were actually readable or were “uninvitingly small,” and whether some of the
disclosures sufficiently explained the nature of the excise tax. (Id. ¶¶ 45-49, 52.)
Sprint’s present motion for summary judgment and its opposition to Emilio’s motion for
class certification depend largely on answers given by Emilio during a 2009 deposition. Sprint
argues that Emilio’s statements doom his claims regarding his knowledge of, degree of care with

3

regard to, and injury as a result of Sprint’s billing practices and fundamentally compromise his
efforts to certify a class.
In his deposition, Emilio testified that, at bottom, he does not take issue with how Sprint
described the New York State excise tax—whether it was listed as a “tax” or a “surcharge.”
Instead, he was bothered by the fact that Sprint passed through the tax to individual customers.
(Dkt. No. 256-4 (“Emilio Tr.”) at 88:4-89:17.) To that end, he testified that he would have paid
the New York State excise tax regardless of how it was described or where it appeared on the
bill. (Id. at 98:19-99:20) (Emilio contends, however, that this is evidence of unequal bargaining
power vis-à-vis his wireless bill. (Dkt. No. 283 ¶¶ 42-43.))
Even though Emilio maintains that he did not understand the nature of the excise tax
(except that it was some sort of tax) (id. ¶ 29), he did not contact Sprint for clarification, except
in connection with this action (id. ¶¶ 30-31), and he does not have knowledge of other wireless
providers’ billing practices with respect to the excise tax (id. ¶ 33). Sprint also cites excerpts
from the deposition suggesting that Emilio was not concerned by the excise tax—specifically,
that it is possible that Emilio did not suffer any “loss” because of the labeling of the charge.
(Emilio Tr. at 94:15-95:22.) While Sprint points to the fact that Emilio represented that he found
“nothing” about Sprint’s description of the excise tax on the bill to be misleading, Emilio
counters that he meant that he found no description whatsoever on the bill. (Dkt. No. 283 ¶ 37.)
Emilio also indicated that he continued to pay his bills and renew his service with Sprint
despite the issues he had identified with the company’s billing practices. Specifically, Sprint
points out that Emilio set up his payments to Sprint to be made automatically through his credit
card. (Id. ¶ 21.) Emilio, however, points to records indicating that bank account debits were
occasionally used. (Id.) Sprint cites testimony that Emilio had seen, or at least “look[ed]

4

casually across” the items on his bill since he became a Sprint customer, including the excise tax
in question, and nevertheless continued to pay his bills. (Id. ¶ 25 (alteration in original).) Emilio
further gave testimony that he did not review the back of the first page of any Sprint invoice,
which provided a description and explanation of the taxes and surcharges on the bill (as detailed
above), before paying. (Id. ¶ 23.) But Emilio contends that his failure to review that information
was in part because the typeface was small and inconspicuous. (Id. ¶¶ 23, 34, 38.)
II.

Motion for Summary Judgment
A.

Legal Standard

Summary judgment is appropriate when “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56. A fact is
“material” if it “might affect the outcome of the suit under the governing law.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if, considering the record
as a whole, a rational jury could find in favor of the non-moving party. Ricci v. DeStefano, 557
U.S. 557, 586 (2009) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586-87 (1986)).
A movant bears the initial burden of providing evidence on each material element of its
claim or defense. Vt. Teddy Bear Co. v. 1–800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004).
The non-moving party must then respond with specific facts demonstrating that there are
remaining issues for trial. Ricci, 557 U.S. at 586 (quoting Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986)). The non-moving party gets the benefit of having all “inferences to be drawn
from the underlying facts contained in such materials . . . viewed in the light most favorable” to
it. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962).

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explanation provided (together with the placement of the explanation) were misleading or
deceptive to Emilio.
But the summary judgment standard saves Emilio’s claims at this stage. Emilio points to
other statements that demonstrate a genuinely contested and highly fact-intensive dispute about
how he actually thought about his bill, why he continued to renew his contract with Sprint, and
to what extent he found the line items, placement, and explanations on the bill to be, in fact,
problematic. For example, Emilio stated that at least part of why he did not review critical
information before renewing his bill was that the typeface was small and inconspicuous. (Id.
¶¶ 23, 34, 38.)
In light of this conflicting testimony and the need to draw reasonable inferences in the
plaintiff’s favor, Emilio has satisfied his burden at summary judgment. It is, indeed, possible
that Emilio did not suffer any injury or loss caused by the labeling of the charge and was not
injured in the manner described in the operative complaint—a finding against Emilio as a matter
of fact on any of these grounds would likely doom his claims, either for lack of standing or for
failure to meet the statutory requirements to prevail on a claim or class action under the KCPA. 2

2

The parties dispute the precise nature of the KCPA’s reliance requirement.
(Compare Dkt. No. 255 at 13-14, with Dkt. No. 284 at 13.) But Emilio’s argument that a
plaintiff can bring a claim or class action under the statute regardless of whether or not any
consumer has in fact been misled fails under both the statute and Article III, which, collectively,
impose both injury and causation requirements. See Kan. Stat. Ann. § 50-634(d) (authorizing a
“consumer who suffers loss as a result of a violation of [the KCPA to] bring a class action for the
damages caused by an act or practice” (emphasis added)); Millett v. TrueLink, Inc., 533 F. Supp.
2d 479, 487 (D. Del. 2008) (“[O]nly ‘a consumer aggrieved by an alleged violation of th[e
KCPA]’ may bring an action for damages. A consumer is only ‘aggrieved’ when suffering a loss
or injury resulting from a violation of the KCPA.” (citations omitted) (second alteration in
original) (quoting Kan. Stat. Ann. § 50-634(a))).
In disclaiming his obligation to demonstrate that he suffered a loss, Emilio points to an
earlier opinion by this Court, concluding that, based on the amended complaint, Emilio had
alleged “concrete” and “particularized” injury, as required under Spokeo, Inc. v. Robins, 136 S.
7

(Emilio Tr. at 94:15-95:22.) But it is a disputed question of fact that requires findings of fact,
based in large part on an assessment of credibility, that the Court cannot answer on summary
judgment.
Sprint further argues that the doctrine of voluntary payment provides an affirmative
defense on which it should be awarded summary judgment as a matter of law. (Emilio, in fact,
described himself as a “loyal” Sprint customer who continued to renew his service in large part
due to cell coverage, even after he was aware of potential issues with Sprint’s billing. (Dkt. No.
283 ¶¶ 23, 28, 35-40, 43.))
“Kansas’ voluntary payment doctrine applies when payment is voluntarily made with full
knowledge of all the facts and is not induced by any fraud or improper conduct.” Midland Pizza,
LLC v. Sw. Bell Tel. Co., No. 10 Civ. 2219, 2010 WL 4622191, at *3 (D. Kan. Nov. 5, 2010)
(citing MacGregor v. Millar, 203 P.2d 137, 139 (Kan. 1949)). “In other words, where a party
makes a payment ‘with their eyes open,’ they are estopped from maintaining an action to recover
that payment.” Id. (quoting Bradshaw v. Glasscock, 136 Pac. 933, 933 (Kan. 1913)). “Whether
a payment is voluntary depends on the facts of the particular case.” Id.
Here, Emilio argues that his continuing to pay his bills is evidence of unequal bargaining
power in the context of his wireless bill. (Dkt. No. 282 ¶¶ 42-43.) This, too, presents a dispute
of material fact that survives summary judgment, see Midland Pizza LLC, 2010 WL 4622191, at
*3-4, as it requires a determination of Emilio’s credibility and how he weighed various factors in
making choices to continue paying and renewing his Sprint service. Again, Sprint’s arguments

Ct. 1540 (2016). (Dkt. No. 284 at 15 (citing Emilio v. Sprint Spectrum L.P., No. 11 Civ. 3041,
2016 WL 3748482, at *2 (S.D.N.Y. July 7, 2016)).) But in order to bring a claim in federal court
and to prosecute a claim under the KCPA, Emilio must show that, as a matter of fact, he did
suffer some injury, and was, in fact, aggrieved.
8

billing methods might cause customer confusion (id. ¶¶ 62, 68, 73), together with the structure of
the billing and its persistence, which provide support for the theory of the case that this Court has
previously held could state a claim, see Emilio, 2016 WL 3748482, at *4. And this record
establishes, for the reasons explained above, a dispute of material fact with respect to how
Emilio’s view of the unfairness of the New York State excise tax related to—or failed to relate
to—a specific billing practice. And the related question of whether Sprint’s disclosures or
omissions were “material,” within the meaning of the KCPA, is an open dispute.
Similarly, as to Emilio’s claim under KCPA § 50-627, “the determination of
unconscionability involves not only a review of the written documents but also consideration of
the witness testimony as to actions surrounding the transaction”; this is a question of fact. State
ex rel. Stovall v. ConfiMed.com, L.L.C., 38 P.3d 707, 713 (Kan. 2002).
As this Court explained in denying Sprint’s motion to dismiss the operative complaint,
the “list of ‘unconscionable’ acts in the KCPA includes taking ‘advantage of the inability of the
consumer reasonably to protect [his] interests because of [his] . . . inability to understand the
language of an agreement.’” Emilio, 2016 WL 3748482, at *4 (alterations in original) (quoting
Kan. Stat. Ann. § 50-627(b)(1)). Now, based on the record, Emilio has put forward testimony
muddying the waters as to his own understanding of and the reasonableness of his degree of care
with respect to the disclosures and descriptions of the excise tax on Sprint’s bills (including his
deposition answer that could be read to suggest that Emilio could not find anything on the bill
explaining the charge). (Dkt. No. 283 ¶ 37.)
For these reasons, Emilio’s claim survives, as his credibility in resolving conflicting
aspects of his testimony is likely to be important in resolving whether Sprint’s billing practices

10

obviating the need to resolve this question of Kansas law that primarily implicates Rule
23(b)(3)’s predominance requirement and could further provide a complete legal bar to Emilio’s
claim.
B.

Discussion

Plaintiffs bear the burden of demonstrating that they have “in fact” proven, by a
preponderance of the evidence, all of the prerequisites of Rule 23. Comcast Corp., 133 S. Ct. at
1432-33. This putative class, however, stumbles at Rule 23(a)’s commonality and typicality
requirements, and also fails to satisfy Rule 23(b)’s predominance requirement. In fact, some of
the very arguments advanced by Emilio to avoid summary judgment on his individual claim
demonstrate why his claims are ill-suited to class-wide resolution.
The fact that this Court commented at a 2015 conference that this appeared to be a
“classic consumer case” is not dispositive of whether Emilio has satisfied each prerequisite of
Rule 23. (Dkt. No. 85 at 15:4-6.) The Court’s comment was merely a general reference to the
alleged number of putative class members—over three million, 4 according to Emilio’s expert,
Michael Levine 5 (Dkt. No. 265 at 15; Dkt. No. 266 ¶¶ 25-43)—and the uniform nature of the
disclosures mailed by Sprint.
4

Though Sprint disputes this number (Dkt. No. 305 at 16), the Court need not
resolve the issue of numerosity, as it concludes that the class fails due to lack of commonality
and typicality. Accordingly, the Court also need not address the issue of adequacy under Rule
23(a)(4). However, the Court does note that the apparent divergence between the crux of
Sprint’s wrongdoing as alleged in the operative class action complaint (based on the
representation of the excise tax on Sprint’s bills) and the issue as described by Emilio (based on
the bare fact of the tax) calls into question whether Emilio or his attorney is in control of this
suit, which in turn raises adequacy concerns. See Beck v. Status Game Corp., No. 89 Civ. 2923,
1995 WL 422067, at *4 (S.D.N.Y. July 14, 1995) (“Rule 23(a)(4) requires that ‘the party is not
simply lending his name to a suit controlled entirely by the class attorney.’” (quoting 7A Charles
A. Wright, Fed. Prac. and Proc. § 1766 (2d Ed.1986))).
5

Sprint moved to exclude the opinions of Michael Levine. (Dkt. No. 309.) The
Court takes seriously its role as gatekeeper of expert testimony “to exclude only testimony that is
14

added). While the “factual background” of each named plaintiff need not be “identical to that of
all class members,” In re J.P. Morgan Chase Cash Balance Litig., 242 F.R.D. 265, 273
(S.D.N.Y. 2007) (quoting Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 293 (2d Cir.
1999)), the court must be particularly mindful of legal arguments or other “unique defenses” to
which the representative may be subject and that “threaten to become the focus of the litigation,”
In re Currency Conversion Fee Antitrust Litig., 230 F.R.D. 303, 308 (S.D.N.Y. 2004) (quoting
Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 59 (2d Cir. 2000)).
As already mentioned, one feature of this case—that identical bills and disclosures went
out to Emilio and to all the putative class members—counsels for commonality and typicality on
its face. But other aspects, lying below the surface, undercut this superficial impression.
To the extent Emilio argues that he has established a “causal connection” between the
allegedly offending representations and his loss, he relies chiefly upon the allegation that
“Sprint’s practice of describing a discretionary charge as a tax” amounted to a misrepresentation
of the price of its services. (Dkt. No. 322 at 5.) On that score, Emilio argues that he, “like all
class members, alleges that Sprint deceptively effectuated a hidden price increase by stating or
implying that one of the line items in Sprint’s bill was a tax each class member was required to
pay.” (Dkt. No. 265 at 16.) But, as the factual complications of Emilio’s case (considered in the
context of the summary judgment ruling) make clear, “[i]t is hard to flush out . . . whether
[Emilio] suffered an ‘injury or loss,’” stemming from the allegations as explained in the
complaint and set forth in the putative class definition, Johnson v. MKA Enterprises, Inc., 353
P.3d 470, 2015 WL 4487037, at *5 (Kan. Ct. App. 2015), and thus whether he actually is, as he
contends, “like all other class members.”

16

“It is often said of typicality in class actions that ‘as goes the claim of the named plaintiff,
so go the claims of the class.’” Rapcinsky v. Skinnygirl Cocktails, L.L.C., No. 11 Civ. 6546,
2013 WL 93636, at *6 (S.D.N.Y. Jan. 9, 2013) (quoting Deiter v. Microsoft Corp., 436 F.3d 461,
466 (4th Cir. 2006)). Thus, where a named plaintiff’s claims are not typical of those of the class,
“th[e] Court would do a disservice to the putative class by certifying it with . . . the named
plaintiff” as its representative. Id. (citing Deiter, 436 F.3d at 466).
Considering the importance of selecting a class representative whose claims and defenses
will fairly represent the class, the fact-specific questions of Emilio’s injury or loss, discussed
above, counsel strongly against a finding of typicality. See In re Currency Conversion Fee
Antitrust Litig., 230 F.R.D. at 308. This is especially so given the further fact-intensive inquiry,
also discussed above, regarding Emilio’s decision to continually renew his Sprint coverage and
continue to pay his bill (Dkt. No. 283 ¶¶ 8, 12), which may expose Emilio to the fact-intensive
and potentially unique-to-him defense of voluntary payment, Midland Pizza, LLC, 2010 WL
4622191, at *3-4. 6 See Rapcinsky, 2013 WL 93636, at *9 (“[A]typical issues and defenses
plague [the plaintiff’s] claims requiring reliance or causation. [Plaintiff] stated that he would
have purchased the [product at issue] whatever the price . . . . Thus, his injury—namely

6

“It is not the law that any time a voluntary payment doctrine issue is raised that
certification must be denied.” Whitton v. Deffenbaugh Disposal, Inc., No. 12 Civ. 2247, 2014
WL 11485715, at *7 (D. Kan. Oct. 28, 2014) (emphasis added) (quoting Dupler v. Costco
Wholesale Corp., 249 F.R.D. 29, 45 (E.D.N.Y. 2008)). However, for Emilio, the voluntary
payment defense is one that presents a unique challenge to his claim, in contrast to claims of
generic putative class members. For example, Emilio considered himself to be a “loyal” Sprint
customer (Dkt. No. 283 ¶¶ 12, 16), and his continuing to renew his contract, perhaps even after
becoming aware of issues that formed the basis of his legal action (id. ¶¶ 35-40, 43), raises
particular questions about whether he, as compared to other class members, made payments
“‘with [his] eyes open,’” such that he may be particularly subject to the voluntary payment
defense and may be uniquely “estopped from maintaining an action to recover that payment.”
Midland Pizza, LLC, 2010 WL 4622191, at *4 (quoting Bradshaw, 136 Pac. at 933).
17

members predominate over any questions affecting only individual members’; and (2)
superiority—‘that a class action is superior to other available methods for fairly and efficiently
adjudicating the controversy.’” 8 Johnson, 780 F.3d at 137 (quoting Fed. R. Civ. P. 23(b)(3)).
The considerations described above that doom this class as to commonality and typicality
also cause it to fail with respect to predominance—irrespective of whether a showing of
individual reliance is required (see Dkt. No. 305 at 4-8)—because of fundamental, fact-specific
and heterogeneous issues surrounding causation that overwhelm the common questions of law
and fact. See, e.g., In re Currency Conversion Fee Antitrust Litig., 230 F.R.D. at 309-11.
Moreover, beyond the potentially plaintiff-specific legal defense of voluntary payment,
Emilio’s continuing to pay his bill where other putative class members did not (Dkt. No. 306
¶ 11), may introduce individualized damages calculations that could predominate over the
common damages claims (based on the amount charged by Sprint). See Roach v. T.L. Cannon
Corp., 778 F.3d 401, 408 (2d Cir. 2015). 9 (Though “individual damages determinations alone
cannot preclude certification,” id. at 409, the heterogeneity of damages calculation across the
class is nonetheless an important factor to consider when determining whether common
questions of law and fact predominate, id. at 408.)

8

The Court does not reach the implied ascertainability requirement, Brecher, 806
F.3d at 24, though Sprint also challenges the putative class on this ground. (Dkt. No. 305 at 2125.)
9

Emilio counters by arguing first that this Court should not consider any unpaid
bills, second that individualized damages “appear[]” susceptible to “computerized
determination,” and third that “only half” of the class has unpaid bills. (Dkt. No. 322 at 8.)
None of these arguments overcomes the apparent fracturing of class members’ damages claims
for predominance purposes—especially when coupled with Emilio’s atypical continued
payments.
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C.

Conclusion

Because Emilio has failed to carry his burden with respect at least to commonality and
typicality under Federal Rule of Civil Procedure 23(a) and predominance under Rule 23(b)(3),
his motion for class certification and appointment of class counsel is denied.
IV.

Other Motions
The Court has reviewed Emilio’s motion for adverse inference sanctions against Sprint

based on an alleged failure to preserve evidence. Emilio has not demonstrated the required
showing under Rule 37(e), by even a preponderance standard, let alone the arguably applicable
“clear and convincing evidence” standard. See CAT3, LLC v. Black Lineage, Inc., 164 F. Supp.
3d 488, 498 (S.D.N.Y. 2016). In fact, the evidence before the Court suggests that Sprint
preserved documents even where Emilio appeared to have abandoned certain avenues of
discovery. (See Dkt. No. 299 at 8-10.) Accordingly, that motion is denied.
Furthermore, as discussed above, the Court has also reviewed the parties’ submissions on
the admissibility of Emilio’s expert report by Michael Levine and Sprint’s rebuttal, by Joseph
Dooley. (See Dkt. No. 309; Dkt. No. 327.) For the reasons already discussed, both motions are
denied.
Finally, the Court has reviewed the parties’ submissions (see Dkt. No. 337; Dkt. No. 339)
on the motion at Docket Number 334, styled as a motion for a conference. This letter motion is
denied as moot. (The motion, which relates to Sprint’s expert report by Mr. Levine and its
theory of damages for the putative class, has been rendered moot by the denial of class
certification in this case.)

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V.

Conclusion
For the foregoing reasons, Sprint’s motion for summary judgment is DENIED, and

Emilio’s motion for class certification is DENIED.
As to the other pending motions in this case discussed above, the motion for adverse
inference sanctions against Sprint is DENIED. The motion to strike the expert report of Michael
Levine is DENIED. The motion to strike Sprint’s rebuttal report by Joseph P. Dooley is also
DENIED. The letter motion for a pre-motion conference is DENIED as moot.
The Clerk of Court is directed to close the motions at Docket Numbers 253, 264, 287,
309, 327, and 334.
SO ORDERED.
Dated: July 27, 2017
New York, New York
____________________________________
J. PAUL OETKEN
United States District Judge

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