Fourth Circuit judges say Copenhaver erred in remanding AT&T case

By Steve Korris | Jul 18, 2008


RICHMOND, Va. – U.S. appellate judges at the Fourth Circuit in Richmond agree that U.S. District Judge John Copenhaver of Charleston made a mistake when he remanded a class action against AT&T Mobility to Kanawha Circuit Court.

The case belongs in federal court because the amount in controversy exceeds $5 million, the Fourth Circuit decided June 30.

Jim Strawn of Charleston and James Staton of Meadow Bridge sued AT&T Mobility predecessor Cingular Wireless in 2006, in Kanawha County.

Attorneys Harry Bell and William Bands of Charleston claimed Cingular charged $2.99 a month for roadside assistance services that Strawn and Staton didn't request.

"Plaintiffs and class members were not given an option," they wrote. "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."

Cingular automatically enrolled anyone who didn't catch it, they alleged.

For Cingular, Jeffrey Wakefield of Charleston removed the suit to federal court. He argued that the national Class Action Fairness Act required federal jurisdiction.

The act limits class actions filed in state courts after its effective date to $5 million.

Wakefield calculated the dispute at $11,760,000, figuring that 58,800 customers qualified for $200 each in damages.

Bell and Bands moved for remand to Kanawha County, claiming Wakefield inflated the class by counting customers who wanted roadside assistance.

Wakefield responded that he couldn't track a hypothetical subset of customers who didn't want it.

Copenhaver decided that if Wakefield couldn't count the class, he couldn't carry his burden of proof. Copenhaver remanded the case last September.

Wakefield appealed, and he succeeded because the arguments of Bell, Bands and associate Tim Yianne didn't match their complaint.

Fourth Circuit Judge Paul Niemeyer wrote that in their papers they proposed a class of unwilling customers, excluding all who retained the service after paying the fee.

He blasted this as "post hoc characterization of the pattern and practice that they are challenging in the complaint as illegal."

The complaint clearly challenged the bundling of roadside service fees with new phone service, he wrote.

"The class is not defined as those willing or unwilling to retain the program, but rather as those who 'were not given an option,'" he wrote.

The complaint made no distinction between willing and unwilling customers, he wrote.

"Rather," he wrote, "the wrong from the allegedly deceptive practice is described as having occurred at the time of the automatic enrollment."

He wrote that Bell and Bands offered nothing to suggest that 58,800 wasn't an accurate number for the class.

Chief Judge Karen Williams joined Niemeyer's opinion. So did U.S. District Judge Alexander Williams of Maryland, acting as designated judge of the Fourth District.

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