WEST VIRGINIA RECORD

CHARLESTON – Jim Strawn admits he's a penny pincher.

So when someone mentioned that Cingular was charging some customers $2.99 a month for a roadside assistance plan, he pulled out his cell phone statements.

"Someone alerted me to it, and I keep all of my bills in my office," said Strawn, who is director of marketing and community education for Highland Hospital in Charleston. "So I started grab my last statement, and it's there. Then I go to the previous one, and it's there.

"I was so perturbed because I'm so frugal. I never said, 'Give me that roadside assistance.'"

So he contacted attorneys at Bell & Bands.

"I said, 'Heck yeah, let's go after them so they'll stop doing it.'"

That, according to attorney Harry Bell, is the genesis of a class action recently filed in Kanawha Circuit Court against the wireless giant.

"A number of people starting noticing it and started fussing about it," Bell said. "Out of those people, you had two (Strawn and Jim Staton) who wanted to step up and go after them because it wasn't right."

Bell said both Strawn and Staton wrote letters to Cingular complaining about the unauthorized charge. Those letters received no response.

"We then wrote them a letter as counsel to try to resolve it," Bell said. "Their in-house attorney called, and he wanted more time to investigate it. He was going on vacation. He said he'd get back with me.

"Well, after more than a month with no response, these two guys said to go ahead and file the lawsuit.

"We gave them every opportunity to provide refunds. And we gave their in-house attorney ample time to respond."

The lawsuit is aimed to "enjoin and redress the unlawful, unfair and/or deceptive acts or practices employed by Cingular, which involve the fraudulent imposition of a $2.99 monthly charge for a purportedly 'optional' roadside assistance service that plaintiffs never requested or enrolled for."

The benefits of the disputed fee, the suit says, include a towing service, battery service, flat tire assistance, fuel delivery service, lockout assistance and key replacement.

"However, Plaintiffs and Class members were not given an option," the complaint continues. "Instead, the roadside assistance was part of a bundled transaction, whereby the plaintiff and class members had to catch the roadside assistance charge and opt out of it.

"Otherwise, if Plaintiff and Class members failed to catch the charge, Cingular automatically enrolled them for the roadside assistance service and imposed a $2.99 monthly charge."

Attorney Tim Yianne of Bell & Bands included a stipulation of limited damages on the case, saying no plaintiff requests more than $75,000, attorneys fees included.

The complaint says Cingular, of Atlanta, is the largest wireless company in the United States, with 54 million subscribers. It charges the company with violating the West Virginia Credit and Consumer Protection Act. Yianne also put a limit on the total amount of damages that can be received of $5 million.

"Bell and Bands will not accept an aggregate award for attorneys fees and costs exceeding $5 million, inclusive of any other damages awarded to each named plaintiff and class member," the suit says.

He also passed on making any claims for punitive damages.

Bell thinks the discovery phase of the case could be interesting.

"I think we'll get some insight into what their policies are," he said. "We'll see if it's a local thing or if it's more of a corporate push on this charge."

Strawn says the charge eventually was taken off his bill. He said he doesn't pin his hopes on a big financial windfall from the suit.

"If I get back my $2.99 for the 12 months that they did it to me, I'll be fine," he said. "If there is more money, I'm on 14 nonprofit boards. I'm not doing this for the money. I'm going to invest in some charities I'm close to."

Judge James Stucky has been assigned the case.

Kanawha Circuit Court case number: 06-C-1893