# Opposition Brief — Fox v. Fox > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_0979%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1999 - **Citation:** 525 U.S. 1143 ## Text N°. 98-947 In The ~— Supreme Court of The United States October Term 1998 a AT&T WIRELESS SERVICES and McCAW CELLULAR COMMUNICATIONS, INC.., Petitioners, v. CORYELL TENORE, CHARLES F. PETERSON and KAREN M. COLE, on behalf of themselves and all others similarly situated, Respondents. ¢ Petition For A Writ Of Certiorari To The Washington Supreme Court ¢ BRIEF OF RESPONDENT IN OPPOSITION 5 STEVE W. BERMAN* Erin K. Flory Sean R. Matt Hagens Berman, P.S. 1301 Fifth Avenue Suite 2900 Seattle, WA 98101 (206) 623-7292 Attorneys for Respondents *Counsel of Record APPELLATE ADVANTAGE POST OFFICE BOX 7506@KANSAS CITY, MO 64116816-453-2424 QUESTIONS PRESENTED ¥ Whether 47 U.S.C. § 332(c)(3)(A), which prohibits regulation by the States of “the entry of or the rates charged” by cellular telephone service providers, preempts state law claims for injunctive relief and damages based on deceptive business practices, when Congress specifically provided that § 332 “shall not prohibit a State from regulating the other terms and conditions of commercial mobile services.” 2. Whether, in light of the language of 47 U.S.C. § 414 which preserves all “remedies now existing at common law,” 47 U.S.C. § 332(a)(3)(A) gives AT&T immunity to deceive consumers and abrogate its contractual promises in violation of state laws. RULE 29.6 STATEMENT Pursuant to Sup. Ct. Rule 29.6, respondents hereby state that they are individuals and thus have no corporate parents or subsidiaries. TABLE OF CONTENTS Page QUESTIONS PRESENTED ...........---0--ee eee: i ATES ES EE PRE EERE ns cis dcccssvoevesvensere il TABLE OF AUTHORITIES . 2.0... cc ccc ccc cscevens Vv CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED . 2. ee ccc eee nerses l STATEMENT OF THE CASE ....... cece csccenes | A. AT 8 Pere tO DISCIOOS ... 5 a eee cease | B. Proceedings Below .........0.-cecceeeeeeees 3 REASON FOR DENYING THE PETITION .......... 6 I. THERE IS NO CONFLICT AMONG THE HIGHEST COURTS OF THE STATES OR BETWEEN A HIGH STATE COURT AND A COURT OF APPEALS THAT WARRANTS REVIEW .............. 8 A. There is No Conflict Among the State High Courts that Deception Claims Are Not Preemipted ........2 sce eeeeeee 9 B. AT&T’s Review of Intermediate Court Decisions Do Not Present a Conflict of Sufficient Magnitude to Warrant Review 11 ill be If a Conflict Exists it is at Such a Nascent Stage that Review is Premature . 15 II. THE WASHINGTON SUPREME COURT OPINION IS HARMONIOUS WITH PRIOR OPINIONS OF THIS COURT, AND OTHERS, THAT AN AWARD OF DAMAGES DOES NOT EQUAL IMPERMISSIBLE RATE REGULATION ....17 A. The Washington Supreme Court Decision Is Harmonious With Supreme Court Precedent ............ 17 B. The Washington Supreme Court Holding Is In Accord With Numerous Other Holdings that Damages Are Not fe Pp ey rey 23 . The Washington Supreme Court Opinion Follows The Proper Standards Governing Preemption ............:.:; 24 CATING AE bev aes tank aes VEN seo ae wes ee 28 TABLE OF AUTHORITIES CASES AT&T Co. v. Central Office Tel. Inc., 5G Oe re oo a ie She 14, 19 American Airlines v. Wolens, SE Ae OP ies bin 98 a eRe ers 26 American Inmate Phone Sys.., Inc. v. U.S. Sprint Comms. Co., 787 F. Supp. 852 TSR SO) es Ciai ee eevea tanks = c0 ee Arkansas Louisiana Gas Co. v. Hall, BESTS CST CAPO) eke en tk seen ees 14 Ball v. GTE Mobilnet of California, Ltd., No. 98AS03811 (Cal. Super. Ct. (Sacramento Cty.) Nov. 17,1998) ........... 12 Bennett v. Alltel Mobile Comm. Of Alabama, Inc., Civil Action No. 96-D-232-N, slip op. (M.D. Ala. May 14, 1996) ........... 10, 21, 22 Carroll v. Cellco Partnership, Docket Nos. AM-001316-96T3 and AM-001303-96T3 (N.J. Super. Ct., App. Ey. Dae 25. Pere a dos wie eas we eos 13 Cipollone vy. Liggett Group, ETT RTE sos chalk Nene eee 25 In re Comcast Cellular Telecomms., — —— a court to assess the reasonableness of the defendant’s underlying billing practice. /d. Likewise, in Kellerman v. MCI Telecomms. Corp., 493 N.E.2d 1045, 1051-52 (Ill.), cert. denied, 479 U.S. 949 (1986), the court ruled that an award of damages would not interfere with MCI’s rates nor any other aspect of the FCA’s regulatory scheme. /d. at 1051. Hence, the court rejected the premise that awarding damages was an act of rate regulation. The courts in Bennett v. Alltel Mobile Comm. Of Alabama, Inc., Civil Action No. 96-D-232-N, slip op. at 9 (M.D. Ala. May 14, 1996) (Res. App. A-1) and Moultan y. Alltel Mobile Comm. Of Alabama, Inc., CA No. 96-D-89-N, slip op. (M.D. Ala. Aug. 16, 1996) (Res. App. B- 18) also rejected AT&T’s argument and ruled that plaintiffs’ claims for damages were immaterial to the issue of preemption: “The court finds that the relief sought in the form of a refund in the difference between the amounts charged and the amount consumers allegedly though they were being charged . . . does not relate to the rates charged or services provided ....” Bennett, slip op at 6, Res. App. A-7. Finally, in American Inmate Phone Sys., Inc. v. U.S. Sprint Comms. Co., 787 F. Supp. 852 (N.D. Ill. 1992), the court concluded that the request for breach of contract damages “neither conflicts with the provisions of the Communications Act nor interfere with the regulatory scheme of the Act.” Jd. at 856. In short, AT&T’s predicate is false: Legal damages are not rates, and courts can award damages without regulating rates or otherwise interfering with a federal regulatory regime. An award of damages against AT&T for deceiving customers will leave AT&T’s rates untouched, i.e., it will not impose obligations on AT&T that are inconsistent with any prior decisions of this Court.’ AT&T asserts that the Washington Supreme Court holding “conflicts with decisions by other courts, which have concluded that similar claims for damages constitute state rate regulation” and cites to Simons and Powers to support this proposition. Pet. 22. However, this proposition is simply false. Not only did Simons and Powers not even address the issue of damages but Powers suggests that had the allegations in the complaint focused on “[djefendant’s alleged failure to disclose the ‘teardown time’ charge, [rather than] the legality or reasonableness of such charges” the claims would have been allowed to proceed. Pet. App. 69a. B. The Washington Supreme Court Holding Is In Accord With Numerous Other Holdings that Damages Are Not Per Se Regulation To further support its claim of conflict, AT&T cites to San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236 (1959), in conjunction with Black’s Law Dictionary, to press upon this Court that “damage awards unquestionably can constitute a form of state rate regulation.” Pet. 21 (emphasis original). Based on this, AT&T contends that the Washington Supreme Court opinion is in conflict with Supreme Court authority. Pet. 22. However, as set forth below, the Washington Supreme Court holding on this issue is not adverse to Supreme Court authority. The Garmon Court stated that “[rjegardless of the mode adopted, to allow the States to control conduct which is the subject of national regulation would create potential frustration of national purpose.” /d. at 244. However, here, respondents are attempting to punish AT&T for engaging in a deceptive practice — something which is not the subject of national regulation. Hence, there is no fear of “frustration of the national purpose,” because Section 322 explicitly allows States to enforce consumer protection laws. Hence, Garmon is distinguishable from the case before this Court. In fact, dispositive on this issue, and in accord with the Washington Supreme Court’s finding, 1s Silkwood v. Kerr-McGee Corp., fe, 464 U.S. 238 (1984). Like AT&T, the petitioners in Silkwood were unable to point to any legislative history or anything in the regulation that indicates that damages for violation of state laws are prohibited. See id. at 255. And, although allowance of damages may cause tension, the Supreme Court noted that such tension does not equate to a wholesale bar of damage awards: It may be that the award of damages based on the state law of negligence or strict liability is regulatory in the sense that a nuclear plant will be threatened with damages liability if it so does not conform to state standards, but that regulatory consequence was something that Congress was quite willing to accept. Id. at 256. By including the “terms and conditions” clause in Section 332 and by not delineating how states were to deal with violations of laws in areas which Congress has preserved their nght to regulate, Congress made clear that an award of damages here resulting from a violation of consumer protection laws does not equal impermissible rate regulation. As a result, there is no conflict and no “compelling reason” to grant review. _ The Washington Supreme Court Opinion Follows The Proper Standards Governing Preemption There is a strong presumption against preemption in areas of traditional state regulation. See New York State Conf. 24 of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655 (1995);"° see also Cipollone v. Liggett Group, 505 U.S. 504, 516 (1992).'"* The area of consumer protection is that traditionally regulated by the State. It is for this reason that consumer protection laws are often listed as part of the “terms and conditions” that are exempt from Section 332. In light of the strong state interest in protecting the welfare of its citizens and in enforcing its state consumer protection laws, it is hard to believe that AT&T would question the standards applied by the Washington Supreme Court. AT&T contends that “nowhere in its decision below does the court mention . . . the critical role played by the statutory language.” Pet. 23. This statement is wholly false. | The Court in Travelers stated: “[W]e have never assumed lightly that Congress has derogated state regulation, but instead have addressed claims of pre-emption with the starting presumption that Congress does not intend to supplant state law. Indeed, in cases like this one, where federal law is said to bar state action in fields of traditional state regulation . . . we have worked on the ‘assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.’” Jd. at 654-55 (citations omitted) " The Cipollone Court held that the federal law regulating cigarette warnings and labeling would not preempt state law claims based upon express warranty, intentional fraud and misrepresentation, or conspiracy. Jd. at 530-31. The Court determined that whether federal law is preemptive depends upon Congress’ intent. /d. at 516. Accord, Freightliner Corp. v. Myrick, 514 U.S. 280 (1995) (Federal Motor Vehicle Safety standards did not preempt state-law product-liability cases alleging wi ral design for failure to require anti-lock brakes on tractor- trailers). 25 a A ea Ee ia DIS OO ae TD The court below focused on the critical role of the “terms and conditions” language which preserves state law causes of action for deceptive advertising.’ Based on this statutory language, the court determined that Congress did not intend to remove states entirely from the wireless telephone industry. Had Congress intended to completely preempt state law causes of action, it most assuredly would not have included a clause which explicitly provides for state regulation. Additionally, if the intent was to preempt all state law causes of action, Congress would not have included a savings clause.'® Indeed, the Supreme Court has consistently found that savings clauses are further support against preemption. See e.g., American Airlines v. Wolens, 513 U.S. 219, 232 (1995). In Wolens, the Court was presented with a claim for violation of the consumer protection act as well as a claim for breach of contract. American Airlines contended that the claims were preempted by the Airline Deregulation Act, 49 U.S.C. § 41713, which prohibits state regulation of a price, route, or service offered by an air carrier. As stated by the Court, it was not “plausible that Congress meant to channel into federal courts the business of resolving, pursuant to See supra, n.2. - See 47 U.S.C. § 414 (1994) (“Nothing in this chapter . . . shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies.”’). 26 ———— a judicially fashioned federal common law, the range of contract claims relating to airline rates, routes, or service.” /d. In addition, “the conclusion that the ADA permits state-law- based court adjudication of routine breach-of-contract claims also makes sense of Congress’ retention of the FAA’s savings clause.” Jd. Hence, the ADA’s preemption clause “read together with the FAA savings clause, stops States from imposing their own substantive standards with respect to rates, routes, or services, but not from affording relief to a party who claims and proves” that an airline has acted negligently with respect to other areas. See generally id. As the Washington Supreme Court found, the same holds true here. The FCA’s preemption provision read together with the savings clause, stops states from imposing standards on “the entry of or rates charged by any commercial mobile service” but does not prohibit regulation of the “other terms and conditions of commercial mobile services” such as deceptive advertising. See generally Pet. App. 3la. This reasoning of the Washington Supreme Court is harmonious with Supreme Court precedent and numerous other courts which have addressed this issue. There is no conflict and, therefore, no reason to grant review. 27 CONCLUSION For the reasons set forth above, the petition for a writ of certiorari should be denied. Respectfully submitted, Steve W. Berman* Erin K. Flory Sean R. Matt HAGENS BERMAN 1301 Fifth Avenue Suite 2900 Seattle, WA 98101 (206) 623-7292 Attorneys for Respondent * Counsel of Record APPENDIX A JNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DISTRICT PEE LIAS > PU AA BIOL Ce N R ee Tos 0S rr en ra Re Aan tee nae ~ < are a s ES - Ree Xb yates Zt. tel Pin doe - IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DISTRICT FILED MAY 14 1996 CLERK U.S. DISTRICT COURT MIDDLE DIST. OF ALA. ROBBYN VAN BENNETT, etc., _) Plaintiff, ) v. } CIVIL ACTION NO. ALLTELL MOBILE ) 96-D-232-N COMMUNICATIONS OF ) ALABAMA, INC., Defendant. ) ) MEMORANDUM OPINION AND ORDER Before the court is the plaintiffs motion, filed February 28, 1996, to remand this action to the Circuit of Lowndes County, Alabama, whence it was removed. The defendant responded in opposition on March 19, 1996. In the three-count complaint, the plaintiff avers that in connection with the billing for cellular phone service, defendant Alltel, through its agents and employees, misrepresented and failed to disclose its practice of charging for a full minute of cellular phone air time even if a subscriber Apdx A - 1 is connected for only a few seconds. The plaintiff also contends that Alltel has breached its contract with the plaintiff because Alltel's contract fails to notify the user of the phone service of its practice of rounding up the amount of air time used to the next full minute. Subsequently, the defendant removed this action, asserting federal-question jurisdiction pursuant. to 28 U.S.C. §§ 1331 and 1441.' The defendant contends that the plaintiffs claim for relief involves the application of the communications Act, 47 U.S.C. §§ 151 et seq., and the Omnibus Budget Reconciliation Act of 1993 (“OBRA”), which amended the Communications Act to expressly preempt any action by a state to regulate the rates charged by cellular service providers. In essence, the defendant contends that while the plaintiff has not pleaded a violation of the Communications Act or the OBRA, these Acts still control in this action. The plaintiff asserts, however, that he is seeking relief only under state law, thus, precluding removal based upon federal-question jurisdiction. Because removal jurisdiction raises significant ‘Section 1441 states in part that“... any civil action brought in a State court of which district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending. . .” 28 U.S.C. § 1441(a). Pursuant to 28 U.S.C. § 1331, a district court has original jurisdiction over all cases “arising under the Constitution, laws or treaties of the United States.” Apdx A - 2 federalism concerns, the removal statutes must be strictly construed. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100 (1941). All doubts must be resolved in favor of a remand to state court. Stone v. Williams, 792 F. Supp. 749 (M.D. Ala. 1992); Lambert v. Mail Handlers Benefit Plan, 886 F. Supp. 830, 833 (M.D. Ala. 1995) (Albritton, J.) (remand of a removed case is favored where federal jurisdiction is not absolutely clear) (citing Burns v, Windsor Ins. 31 F.3d 1092, 1095 (11th Cir. 1994)); see also Horn v. Rural Community Insurance Servs., 903 F. Supp. 1502, 1504 (M.D. Ala. 1995) (Albritton, J.); Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100 (1941). Moreover, “the existence of a federal question cannot be left to mere speculation.” Bryant v. Blue Cross & Blue Shield of Alabama, 751 F. Supp. 968, 969 (N.D. Ala. 1990) (citations omitted). As such, the defendant, as the party removing this action to federal court, has the burden of establishing federal jurisdiction. Sullivan v. First Affiliated Secs., 813 F.2d 1368 (9th Cir.), cert. denied, 484 U.S. 850 (1987). The foregoing is consistent with the basic principle that federal courts are courts of limited jurisdiction and have the power to hear only those cases which congress or the Constitution authorizes them to hear. Lambert, 886 F. Supp. at 832 (citations omitted); Horn, 903 F. Supp. at 1504 (citing Gulf Offshore, 453 U.S. at 477-78). Accordingly, “a presumption (exists) that state courts have concurrent jurisdiction over claims that involve federal law.” Id. Apdx A - 3 Whether the complaint states a federal question must be determined by examining the face of the complaint. Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 9-11 (1983). As stated by the Supreme Court of the United States: [o}|nly state-court actions that orginally could have been filed in federal court may be removed to federal court by the defendant. Absent diversity of citizenship, federal- question jurisdiction is required. The presence or absence of federal-question jurisdiction is governed by the “well-pleaded complaint rule,” which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint. See Gully v. First National Bank, 299 U.S. 109, 112-13 . . . (1936). The rule makes the plaintiff the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law. Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987) (internal footnotes omitted); Great Northern R.R. Co. v. Alexander 246 U.S. 276, 282 (1918) (“[T]he plaintiff may by the allegations of his [or her] complaint determine the status with respect to the removability of a case.”); The Fair v. Kohler Die & Specialty Co. 228 U.S. 22, 25 (1913) (The Apdx A -4 plaintiff is “master to decide what law he [or she] will rely upon.”); Burke v. Humana Ins.. Co., No. 95-T-299-N, No. 95- T-300-N, slip op. at 4 (M.D. Ala. May 11, 1995) (A plaintiff “has the prerogative to rely on state law alone although both state and federal law may give him (or her] a cause of action.”). In other words, “lower federal courts [have] jurisdiction to hear, originally or by removal from a state court, only those cases in which a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's nght to relief necessarily depends on resolution of a substantial question of federal law.”’ Franchise Tax Bd., 463 U.S. at 27-28. The Supreme Court has narrowly construed the test to restrict removal by holding that simply because a claim implicates a federal issue, or involves construction of federal law does not necessarily give rise to a federal question and confer removal jurisdiction on a federal court. Mernll Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804 (1986). Here, the orginal complaint neither mentions the Communications Act, as amended, nor invokes any other federal statute. Moreover, it does not mention a constitutional provision or a treaty. Hence, the complaint does not refer to any matter which allows access to a federal court under § 1331. In making this determination, the court rejects the defendant's argument that the plaintiff's complaint necessarily implicates the filed rate doctrine which raises a federal Apdx A - 5 question. See Def.’s Opp. to Remand at 18-20. Specifically , the court finds that the defendant's reliance on T&G Express, Inc. v. Webster Indus., 93-D-1127-N, slip op. at 3 (Jan. 12, 1994) (DeMent, J.) (attach. as Ex. G), is misplaced. In T&G Express, this court did state that “[w]hen the tariff of a common carrier is challenged or recovery is predicated on the existence of a valid tariff, the case involves a federal question under 28 U.S.C. § 1331, which may be removed to federal court from a state court upon a filing of a notice of removal pursuant to § 1446 by the defendant.” T&G Express, slip op. at 3. However, T&G Express is distinguishable from the instant case because the T&G Express plaintiff asserted a tariff claim, in addition to contract claims, which was the basis for removal. Thus, in T&G Express, the face of the complaint set forth a federal claim. The court interprets T&G Express as merely holding that when recovery is specifically predicated on the existence of a valid tariff as a specific count in the plaintiff's complaint, then the issue is one of federal law. In this case, on the other hand, the plaintiff predicates recovery solely on common law contract grounds. The tariff issue is raised as a defense by the defendant. Consequently, because the plaintiff is the master of his or her complaint, the court finds that T&G Express does not support the existence of removal jurisdiction in the instant case. In addition, the court does not believe that the plaintiff's nght to relief necessarily depends on a resolution of a substantial question of federal law, in that federal law is a Apdx A - 6 necessary element of one of the well-pleaded claims. The court finds that the relief sought in the form of a refund in the difference between the amounts charged and amount consumers allegedly thought they were being charged does not confer the court with federal-question jurisdiction in that it does not relate to the rates charged or services provided, particularly when a commonsense reading of the complaint reflects the pleading of state law claims. The causes of action are, supported by alternative theories of state law, and the Communications Act, as amended, is not essential to any of those theories. The alternative theories of state law include breach of contract, fraud, misrepresentation, suppression of material facts, and engaging in deceptive practices. These are state law claims the determination of which must be left to the state court system. Moreover, retaining jurisdiction over this action would interfere with a state court's right to decide and interpret its own law as applied to the federal acts of this case. Accordingly, the court finds that the causes of action do not arise under federal law.’ The court recognizes that the preemptive force of some federal statutes can provide a legal basis for removal of a case from state to federal court even if a plaintiff has framed the complaint to allege violations of only state law. *The court notes that it is not persuaded by the defendant's “artful pleading” argument. Here, the plaintiff has not merely failed to plead federal questions, but rather, the substance of the plaintiff's complaint involves state law. Apdx A - 7 Metropolitan Life Ins.. Co. v. Taylor, 481 U.S. 58, 65 (1987). For example, the Supreme Court of the United States has determined that issues involving the Labor Management Relations Act, 29 U.S.C. § 1001, et seg., and the Employment Retirement Income Security Act, 29 U.S.C. § 185, et seq., transform state-law claims into ones arising under federal law for purposes of the well-pleaded complaint rule. Caterpillar, Inc., 482 U.S. at 393-94. In determining whether complete preemption exists, the court focuses on congressional intent. Lambert, 886 F. Supp. at 836. The court is highly persuaded by Justice Brennan's concurrence in Metropolitan Life, wherein he stated: “In future cases involving other statutes, the prudent course for a federal court that does not find a clear congressional intent to create removal jurisdiction will be to remand the case to state court.” Metropolitan Life, 481 U.S. at 68 (Brennan, J., concurring) (quoted in Lambert, 886 F. Supp. at 837). Thus, as stated in Horn v. Rural Community Ins.. Servs., 903 F. Supp. 1502 (M.D. Ala. 1995) (Albritton, J.), “[a]bsent a finding of clear Congressional intent to preempt the state courts from hearing the actions, the court must presume that complete preemption does not apply. Id. at 1504. The defendant first relies on 47 U.S.C. § 332(c)(3) (A), as amended by OBRA, to support a finding of complete preemption under the Communications Act, as amended. Section 332 (c) (3) (A) _ states in pertinent part: Apdx A-8 “Notwithstanding sections 152(b) and 221(b) of this title, no State or local government shall have any authority to regulate the entry of or the rate charged by any commercial mobile service. ... 47 U.S.C. § 332(c)(3)(A). In comparison with the language of ERISA, the court finds that § 332(c)(3)(A) is not as broad in scope. See Lambert, 886 F. Supp. at 836 (similar finding involving the Federal Employees Health Benefits Act). As set forth above, the Communications Act, as amended, expressly provides for preemption only where state law regulates “the entry of or the rates charged by... . commercial mobile service” providers, such as Alltel. 47 U.S.C. § 332(c) (3) (A). On the other hand, “ERISA's preemption clause states that the law ‘shall supersede any and all state laws insofar as they may now or hereafter relate to an employee benefit plan.’ Lambert, 886 F. Supp. at 836 (discussing ERISA's jurisdictional and preemption clause) (emphasis added). Clearly, Congress could have completely preempted state law by stating that § 332 (c) (3) (A) would preempt any state law that related to the rates charged by commercial mobile service providers, if it so desired. However, Congress chose to only prohibit the regulation of those rates by the states. In fact, § 332 (c) (3) (A) does not seek to vindicate the same interests upon which the plaintiff's state cause of action seeks relief. See Bryant, 751 F. Supp. at 972 (citing Allstate Ins.. v. 65 Security Plan, 879 F.2d 90, 93 (3d Cir. 1989)) (stating requirement for complete preemption includes Apdx A -9 vindication of same interests). Here, the plaintiff is not contesting the rate charged, but rather is challenging Alltel's failure to disclose in its contract with consumers its practice of “rounding up” charges for air time. Hence, this action will not affect the rates charged; instead, it may, depending on the outcome, affect the disclosure of the rates charged. In other words, there is not a federal remedy directed to the matter of disclosing the basis behind the rate charged. Given that jurisdiction is not directly conferred by a cause of action concerning cellular services, the court finds that the preemptive force in § 332 (c) (3) (A) is not so powerful as to displace entirely any state cause of action within the ambit of the federal cause of action. The defendant also points the court to §§ 47 U.S.C. 201(b) and 207 to suggest that the complete preemption doctrine applies to the Communications Act, as amended, thereby rendering any claim federal in nature.* Section 201(b) provides that any “charge, practice, classification or regulation that 1s unjust or unreasonable is declared to be unlawful. . . .” 47 U.S.C. § 201(b). Section 207 vests exclusive jurisdiction over claims arising under § 201(b) in either the federal courts or the Federal Communications Commission: Any person claiming to be damaged by any common carrier subject to the provisions of -OBRA did not amend either § 201(b) or § 207. Apdx A - 10 this chapter may either make complaint to the Commission . . . or may bring suit for the recovery of the damages in any district court of the United States. . . . 47 U.S.C. § 207. In In_re Long Distance _Telecommunications Litigation, 831 F.2d 627 (6th Cir. 1987), the Sixth Circuit remanded a case similar to the instant case. Therein. the plaintiffs' fraud claims were based on the defendants' failure to disclose their practice of charging long distance customers for unconpleted calls, ring time and holding time. The Sixth Circuit held that the plaintiffs’ state law claims for fraud and deceit, based on the defendants' alleged failure to notify customers of the practice of charging for uncompleted calls, were not preempted: We believe the district court erred in holding that the state law claims for fraud and deceit, based on the defendants’ failure to notify customers of the practice of charging for uncompleted calls, were pre-empted by the Communications Act. These claims, unlike those based on Section 201 of the Act, do not require agency expertise for their treatment and are “within the conventional experience of judges.” 831 F.2d at 633-34 (citing Far East Conference v. United States, 342 U.S. 570, 574 (1952)) (emphasis added). Apdx A - 11 In In re Long Distance Telecommunication ions Litigation, the court also distinguished Ivy Broadcasting Co. v. American Telephone & Telegraph Co., 391 F.2d 486 (2d Cir. 1968), relied on by the defendant in this case. The Sixth Circuit distinguished Ivy Broadcasting as follows: [In Ivy Broadcasting,]. . . the complaint charged negligence and breach of contract in the rendition of interstate telephone service. The Ivy court held that the claims were preempted by federal common law even though they did not charge violations of specific provisions of the Communications Act. However, the alleged torts involved the level of service provided by the defendants, not a failure to notify customers of a practice [as in this case]. Id, at 634. The court finds, contrary to the defendant's assertion and consistent with the court's discussion of § 332(c) (3) (A), that § 332 (c) (3) (A) does not alter the analysis or holding in Ivy Broadcasting. Moreover, as discussed supra, the court finds, similar to the Ivy Broadcasting court, that a commonsense reading of the complaint in this case suggests that the state law claims relate to the failure to disclose rather than rates or service. More importantly, though, §§ 201(b) and 207 must be read in conjunction with the savings clause in § 414, which Apdx A - 12 States in pertinent part: [nJothing in this chapter contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies. 47 U.S.C. § 414 (emphasis added). The court finds that it logically follows from this savings clause that the Communications Act, as amended, did not preempt the entire field of commercial mobile services. See Hudson Ins.. Company v. American Electric Corp., 748 F. Supp. 837, 844 (M.D. Fla. 1990) (similar finding concerning the comprehensive Environmental Response Compensation and Liability Act of 1980), affd, 957 F.2d 826, cert. denied, 506 U.S. 955 (1992). In other words, the court finds that the savings Clause indicates a lack of intent by Congress to extend the Communications Act, as amended, to all matters somehow related to those known to be preempted. Based on the foregoing, the court concludes that nothing in the Communications Act, as amended, gives the explicit suggestion necessary to infer that Congress intended to rely on a body of federal common law to interpret all actions involving commercial mobile services.* Cf. Hudson Ins.. Co. “In making this determination, the court rejects the defendant's argument that Sprint Corp. v. Evans, 818 F. Supp. 1447 (M.D. Ala. 1993) (Albritton, J.) lends support to the proposition that the Communications Act completely preempts the entire field Apdx A - 13 v. American Electric Corp., 748 F. Supp. 837, 843 n.5 (M.D. Fla. 1990) (reaching same conclusion regarding the Comprehensive Environmental Response Compensation and Liability Act of 1980); National Audubon Soc. v. Department of Water, 869 F.2d 11964 1201-03 (9th Cir. 1988) (reaching same conclusion regarding Clean Water Act). If the court were to find otherwise, it would be allowing federal common law to implement precisely that which Congress determined was not necessary. Moreover, this case does not involve unique federal interests; rather, allowing a state court to hear this contract and fraud dispute between private parties will not frustrate federal policy. In fact, given that Congress enacted the savings clause, it obviously thought state courts could adequately handle matters in this area. As such, the court emphasizes that it “will not broaden the language of [any federal] statute without some clear indication from Congress that this was [its] intent.” Horn, 903 F. Supp. at 1505 (citing Hyzer v. Cigna Property & Cas. Ins., Co., 884 F. Supp. 1146, 1151 (E.D. Mich. 1995)). of mobile commercial services. The court'reads Sprint as completely preempting the field of interstate message transmissions. Here, though, the plaintiff is not attempting to regulate interstate message transmissions; rather, he is merely questioning a mobile service provider's disclosure policy to consumers. While the causes of action in this case may very well be preempted by a federal statute, the whole field is not preempted to constitute complete preemption. Apdx A - 14 The court finds that absent “complete preemption” of State causes of action, the defendant cannot establish that a federal court has original jurisdiction by arguing preemption as a defense: Ordinarily, federal pre-emption is raised as a defense to the allegations in a plaintiff's complaint. Before 1887, a federal defense such as pre-emption could provide a basis for removal, but, in that year, Congress amended the removal statute. We interpret that amendment to authorize removal only where original federal jurisdiction exists. Thus, it is now settled law that a case may not be removed to federal court on the basis, of a federal defense, including the defense of pre- emption, even if the de. se is anticipated in the plaintiffs complaint, and even if both parties concede that the federal defense is the only question truly at issue. Caterpillar Inc., 482 U.S. at 393-94 (internal citations omitted) (emphasis in original). The court notes that its ruling on “complete preemption has no preclusive effect on the state court's consideration of the substantive preemption defense.” Bryant, 751 F. Supp. at 973 (quoting Whiteman v. Raley's, Inc. 886 F.2d 1177, 1180-81 (9th Cir. 1989)) (internal quotations omitted). In fact, the court has no jurisdiction to rule on the substantive preemption defense Apdx A - 15 because complete preemption is lacking. Id. “Th{e] court has no doubt that the Alabama state courts are perfectly capable of correctly applying the preemption defense. . . . Horn, 903 F. Supp. at 1506. CONCLUSION Because the plaintiff's complaint only involves state law claims and does not involve a substantial question of federal law, because the complete preemption doctrine does not convert the plaintiffs’ state claims into claims under the Communications Act, as amended, and because a defendant may not remove a case based upon a federal preemption defense, the court finds that the defendants have failed to establish that at the complaint pleads a federal question. Thus, the court does not have original jurisdiction over this action. Accordingly, it is CONSIDERED and ORDERED that the plaintiff's motion to remand be and the same is hereby GRANTED and this cause be and the same is hereby REMANDED to the Circuit Court of Lowndes County, Alabama. The clerk is DIRECTED to take all steps necessary to effect said remand. DONE this /s/ ]4th day of May, 1996. /s/ Jan DeMent UNITED STATES DISTRICT JUDGE Apdx A - 16 APPENDIX B UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DISTRICT BS A 8 Nel ee ar Le ON SS ae Me SR PR Ee a, IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION FILED AUG 16 1996 CLERK U.S. DISTRICT COURT MIDDLE DIST OF ALABAMA ROBERT MOULTON, III __ ) on behalf himself and all ) others similarly situated ) Plaintiff, ) V. ) CIVIL ACTION NO. ALLTELL MOBILE ) 96-D-89-N COMMUNICATIONS OF __) ALABAMA, INC., ) Defendant. ) ORDER Before the court is defendant's request for a ruling on the plaintiffs motion to remand filed August 12, 1996, which the court construes as to include a motion to reconsider the decision of the clerk to close this case based on the plaintiff's notice of dismissal filed on June 20, 1996. For good cause shown, it is CONSIDERED and ORDERED: (1) That the defendant's motion for reconsideration be and the same is hereby GRANTED because pursuant to Rule Apdx B - 17 23 (e) of the Federal Rules of Civil Procedure a plaintiff must obtain the court's approval of a dismissal of any potential class action as well as provide notice to all class members of such a dismissal. (2) That this action be and the same is hereby REINSTATED. (3) That pursuant to the authority of_Robbyn Van Bennett, et al. v. Alltel Mobile Communications of Alabama, Inc., Civil Action No. 96-D-232-N (M.D. Ala. May 14, 1996) (DeMent, J.) (A copy of the order is attached hereto.) and 28 U.S.C. §1447(c), the plaintiff's motion to remand be and the same is hereby GRANTED and that this cause be and the same is hereby REMANDED to the Circuit Court of Montgomery County, Alabama. The clerk 1s DIRECTED to take all steps necessary to effectuate paid remand. DONE this /s/ / 6th day of August, 1996. /s/ Jan DeMent UNITED STATES DISTRICT JUDGE APPENDIX C SUPERIOR COURT OF THE STATE OF WASHINGTON FOR KING COUNTY 4 SUPERIOR COURT OF THE STATE OF WASHINGTON FOR KING COUNTY MICHAEL LAIR and DAVE MANWEILER, individually and on behalf of NO. 95-2-26309-7-SEA all others similarly situated, Plaintiffs, VS. U.S. WEST NEW VECTOR GROUP d/b/a U. S. WEST CELLULAR Defendant. This Notice May Affect Your Rights. Please Read It Carefully. : TO: ALL SUBSCRIBERS OF U. S. WEST NEWVECTOR WHO PARTICIPATED ON A PAYING BASIS IN A FULL-MINUTE CELLULAR CALLING PLAN AT ANY TIME DURING THE PERIOD JULY 1, 1994 THROUGH MAY 1, 1996, EXCEPT FOR (A) SUBSCRIBERS WITH TALKALONGS™ CALLING PLANS OR CALLING PLANS OFFERED TO CALIFORNIA SUBSCRIBERS, OR (B) SUBSCRIBERS WHOSE BR eh i ear ta te ee Apdx C - 19 ACCOUNTS WERE TERMINATED BY NEWVECTOR FOR NON-PAYMENT INTRODUCTION l. lhis Notice is given pursuant to an order of the Superior Court of Washington for King County. The purpose of this Notice is to inform you of the pendency of a class action and the proposed settlement of a class action that is pending on your behalf against U.S. WEST NewVector Group d/b/a U.S. West Cellular (““NewVector’’), and to inform you how this lawsuit and the settlement may affect your nghts and what steps you may take in relation to it. This Notice is not an expression of any opinion by the Court as to the merits of the claims or defenses by any of the parties to this class action. DESCRIPTION OF THE CASE es Michael Lair and Dave Manweiler are the persons bringing this lawsuit (the “Plaintiffs”). Plaintiffs’ claim relates to NewVector’s method of billing cellular air time. For certain subscribers, NewVector rounds air time for billing purposes, to the next highest minute. This is also called “rounding up” or full-minute billing. For example, a call that lasts one minute and five seconds is rounded up to two minutes for billing and air time calculation purposes. This case is about whether this method of billing was adequately disclosed and was otherwise appropriate. Apdx C -20 PLAINTIFFS' CONTENTIONS oy 3. The complaint alleges that NewVector offers customers a range of billing plans in each of its service areas. These plans offer a fixed-charge per month for a specified period of air time, (e.g., thirty, sixty, seventy-five or two hundred minutes). For any air time beyond the fixed-charge time allotted under each plan, the subscriber is charged at various rates “per minute,” depending on the plan and whether the call is made during peak or off-peak hours. 4. Plaintiffs allege that the plain import of the language describing these plans is that a customer receives a set amount of air time. 5. Once a customer has selected the billing plan, lewVector requires that each customer sign a Service rreement which identifies the plan selected. Plaintifis contend that these Service Agreements contain all of the terms and conditions of the customers' agreement with NewVector. Plaintiffs contend that missing from the billing terms is the fact that NewVector rounds up air time to the next highest full minute. 6. Plaintiffs contend that © NewVector's “rounding” practice is not fully disclosed or referenced in NewVector's point of sale documents, /.e., brochures and rate plans. 7. Plaintiffs contend that rounding up air time damages Settlement Class Members by preventing customers from receiving the specified fixed-charge air time under their plans. For example, if a plan provides thirty minutes of air time, a customer may actually be on the air for less than thirty minutes but might begin paying on a per-minute basis due to rounding up. 8. In their complaint Plaintiffs allege that NewVector's method of billing constitutes a violation of the Washington State Consumer Protection Act (and/or other consumer protection statutes in other states), negligent misrepresentation, common law fraud and a breach of contract. Plaintiffs seek monetary damages for the injury caused to class members, treble damages under the Washington Consumer Protection Act, and costs of the suit including attorneys’ fees. DEFENDANT'S CONTENTIONS 9. NewVector denies all allegations of wrongdoing and liability. As explained more fully herein, NewVector contends that full-minute billing was fully disclosed in NewVector's advertising brochures, bills, service agreements and by information available to consumers in the marketplace and was legally permissible and appropmiate. NewVector also contends that its advertising and sale of cellular service were not the cause of damages to consumers, since NewVector changed its billing plans in response to consumer feedback and lowered rates to provide additional savings to subscribers. Further, even if subscribers were Apdx C - 22 unaware of NewVector's advertising brochures and the standard industry method of full-minute billing, the method of billing would have been fully disclosed by the first bill, representing one of numerous ways in which potential damages would be limited. CLASS CERTIFICATION 10. For the purposes of Settlement, NewVector has stipulated to a Settlement Class. A “class” is a legal mechanism whereby one or more individuals can represent all those who are similarly situated with respect to defendant's alleged conduct. 11. The Settlement Class consists of the following members: All subscribers of U. S. WEST NewVector who participated on a paying basis in a full-minute cellular calling plan at any time during the period July 1, 1994 through May 1, 1996 (the “Settlement Class Period”), except for (a) subscribers with TalkAlong™ calling plans or calling plans offered to California subscribers, or (b) subscribers whose accounts were terminated by NewVector for non-payment (an “involuntary deactivation’). Your receipt of this notice, therefore, does not necessarily mean that you are a class member. You are a class member only if you fit within the class definition set out above. LRN GIA IRE ALG LE TOE EE IO NLP GOI LOE LEGS SALI TS rs TE CN AOR SATIRE RA ISTE ALERTS RT RID GM TNE LON is TERMS OF THE SETTLEMENT 12. Class Counsel have thoroughly investigated the facts and applicable law regarding the claims of the persons on whose behalf they are acting and potential defenses thereto. Based on this, Plaintiffs and Class Counsel believe that the proposed settlement set forth below is fair, reasonable and adequate, and in the best interests of the Settlement Class. Class Counsel also conducted extensive negotiations with counsel for NewVector prior to arriving at this settlement, taking into account the relevant facts and law. The following description of the proposed settlement is only a summary, and reference is made to the text of the Stipulation of Settlement, on file with the Court, for a full statement of its provisions: (a) NewVector will fully and _ fairly disclose “rounding up” or full-minute billing in contracts, service agreements and all point-of-sale collateral documents, when it is occurring. (b) NewVector acknowledges that in response to this litigation, it has already changed some or all of its disclosures regarding full-minute billing. (c) NewVector will compensate members of the Settlement Class according to 1) a member's average monthly cellular usage during the Settlement Class Period (measured in terms of minutes of usage or “MOUs’”) and ii) whether the member is an active NewVector subscriber. or Apdx C - 24 whether the member's cellular service was terminated voluntarily by the member, or involuntarily by New Vector: SETTLEMENT AWARDS Customer Usage Groupings Highest ‘250 MOU/Month High 150-250 MOU/Month Medium 60-150 MOU/Month Low <60 MOU/Month Settlement Awards -- ACTIVE SUBSCRIBERS (z2.e., current customers) Bill Credit (Highest Usage) $26 Bill Credit (High Usage) $18 Bill Credit (Medium Usage) $ 9 Bill Credit (Low Usage) Settlement Awards -- VOLUNTARY DEACTIVATION (meaning you elected to terminate your services, i.e., you are a former customer). Bill Credit or cash (Highest Usage) $26 Bill Credit or cash (High Usage) $18 Bill Credit or cash (Medium Usage) oe Bill Credit or cash (Low Usage) $ 3 (d) Former subscribers whose cellular Apdx C - 25 service was terminated by NewVector for nonpayment (1.e., involuntary deactivations) are not included within the Settlement Class. (e) Each Settlement Class Member 1s entitled only to one settlement award. The average monthly ‘llular usage and resulting settlement award for Settlement Class Members with more than one qualifying cellular line of service will be calculated using an average of the applicable MOvws for all qualifying lines of service. Active Settlement Class Members who also have one or more separate voluntarily deactivated lines of service will receive their settlement award as an Active Subscriber. Settlement Class Members with more than one voluntarily deactivated line of service, and no active line of service, will be eligible to reactivate one cellular line of service. (f) The value of the consideration set forth above is estimated to be approximately $8.4 million. NewVector's total obligation may vary with the final accounting, but the value for each class member remains the same. (g) NewVector will pay all notice and administration costs, including but not limited to the costs of printed and published notice, publication of summary notice, identification of class members, and calculation and payment of claims. (h) [f a Settlement Class Member within the voluntary deactivation category reactivates with Apdx C - 26 NewVector and elects the bill credit option, that class member i) has the right to waiver of the activation fee, and 11) can opt for a month-to-month contract if reactivation is with his or her own phone. If NewVector supplies the cellular phone, then a standard twelve-month service agreement is required. (1) In exchange, if the Settlement is approved, the Court will enter a final judgment dismissing this action with prejudice, and dismissing with prejudice all claims, demands, and causes of action against NewVector, its subsidiaries, affiliates, agents, predecessors, successors and assigns, as their respective representatives, that were or could have been asserted by Plaintiffs and the Settlement Class Members who do not elect to exclude themselves from the class and its benefits arising out of the facts and circumstances alleged in this action. If the proposed settlement is approved, all members of the Settlement Class who do not elect to exclude themselves from the class and its benefits will be personally barred and enjoined from instituting or prosecuting, indirectly or directly any and all actions or proceedings that they had or have, known or unknown, arising out of or based upon the facts set forth in the Complaint. All members of the Settlement Class who do not elect to exclude themselves from the class, whether or not they file a claim form, will be bound by the terms of the settlement and releases of claims and any order of the Court dismissing the litigation 16. Plaintiffs took into account all of the foregoing bead Apdx C-2 factors in agreeing to the proposed settlement. Although Plaintiffs believe they would have overcome these defenses, there 1s no certainty that this, in fact, would occur. HOW CLAIMS WILL BE PROCESSED 1? Accompanying this Notice 1s a Proof of Claim and Release (“Proot of Claim”) which must be filled out in order to take part in the settlement. Settlement Class Members must indicate a) whether they are active or former subscribers as of the date they mail the Proof of Claim, and b) if they are former subscribers, whether they elect to reactivate or receive a cash award. The Proof of Claim must be mailed on or before October 20, 1997 to: NewVector Claims Administration, P.O. Box 4068; Portland, OR 97208-4068. All claims will be administered within 120 days of the final approval of the Settlement by the Court. ELECTION BY CLASS MEMBERS Ls If you are a member of the class, you have a right to elect whether or not to exercise your nght to exclude yourself from the class. Your choice will have certain consequences that you should understand before making this decision. [IF YOU WISH TO REMAIN IN THE CLASS, YOU NEED NOT RESPOND TO THIS NOTICE IN ORDER TO DO SO BUT YOU SHOULD FILL OUT A CLAIM FORM. IF YOU DO NOT WISH TO REMAIN IN THE CLASS, 4 OU MUST RESPOND TO THIS NOTICE. CONSEQUENCES OF EXCLUSION FROM THE CLASS 19. If you do not wish to remain a member of the class, you must request to be excluded. If you request exclusion, you will not be entitled to share 1n the settlement. However, if excluded, you may present any claims you have against NewVector by filing your own lawsuit. 20. If you do not wish to remain a member of the class, you must mail a written request for exclusion, postmarked no later than August 18, 1997, to: Steve W. Berman, Hagens & Berman, 1301 Fifth Avenue, Suite 2929, Seattle, WA 98101 and Barry Kaplan, Perkins Coie, 1201 Third Avenue, 40th Floor, Seattle, WA 98101. 21. Requests for exclusion must refer to Lair v. U.S. West NewVector, No. 95-2-26309-7 SEA and must provide your name and address. For the sake of convenience, please also provide your current or former NewVector cellular account numbers. All requests for exclusion must be signed Apdx C - 29 and expressly state that you wish exclusion from the class. THE HEARING 22. A hearing (the “Settlement Hearing’’) will be held before the Honorable R. Joseph Wesley at 8:30 a.m. on August 25, 1997, in Room W905 of the Superior Court of the State of Washington for King County, at 516 Third Avenue, Seattle, WA, for the purpose of determining whether the proposed Settlement is fair, reasonable and adequate and whether it should be approved by the Court; whether judgment should be entered dismissing the actions on the merits and with prejudice as against Defendant. The Settlement Hearing may be continued or adjourned from time to time by the Court at the Settlement Hearing or any continued or adjourned session thereof without further notice. Bo. Settlement Class Counsel will apply to the Court at the conclusion of the Settlement Hearing for an award of attomeys' fees and costs of $1,686,000, which represents approximately 20% of the monetary value of the iF) ettlement. This amount will be paid by NewVector in addition to the previously described amounts being offered to the Settlement Class. Plaintiffs will also seek approval of payments to the two plaintiffs of $10,000 each, as payment for the time and expense in prosecuting this case on behalf of the Settlement Class. Apdx C - 30 24. Any member of the Settlement Class who has not requested exclusion may appear at the Settlement Hearing to show cause why the proposed Settlement should not be approved, the Class Action should not be dismissed on the merits with prejudice as against the Defendant, and to present any opposition to the application of Settlement Class Counsel for attorneys’ fees, costs and expenses, or to the application for an award to the plaintiffs, provided, however, that no such person shall be heard, unless his or her objection or opposition is made in writing and is filed, together with copies of all other papers and briefs to be submitted by him or her to the Court at the Settlement Hearing, with the Court no later than ten days prior to the hearing, and showing due proof of service on: Settlement Class Counsel: Steve W. Berman Hagens & Berman 1301 Fifth Avenue, Suite 2929 Seattle, WA 98101 and Counsel for Defendant: Barry Kaplan Perkins Coie 1201 Third Avenue, 40th Floor Seattle, WA 98101-3099 Unless otherwise ordered by the Court, any member of the Settlement Class who does not make his or her objection or Apdx C - 31 opposition in the manner provided shall be deemed to have waived all objections and opposition to the fairness, reasonableness and adequacy of the proposed settlement, or to the request of Settlement Class Counsel for attorneys’ fees, costs and expenses, ADDITIONAL INFORMATION 25. This notice is not all-inclusive. Any questions you have concerning the matters contained in this notice (and any corrections or changes of name or address) should not be made to the Court but should be directed in wniting to Settlement Class Counsel at the address listed below. 26. If you wish to communicate with Settlement Class Counsel as your attorney in this litigation, you may do so by writing to Steve W. Berman at the firm of Hagens & Berman, P.S., 1301 Fifth Avenue., Suite 2929, Seattle, WA 98101. Please do not contact the court for further information at this time. DATED: July 8,1997. Apdx C - 32 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_0979%3A3. Public record. Not legal advice.