Friday, October 7, 2011

Don’t Text Us. We’ll Text You


Porter v. AT&T Mobility, LLC, 2011 VT 112 (mem.).

In these times of protest against corporations, what better case could be made than an individual's triumph over the forces of organized business?  Let us say Hurrah for common man (or woman) who sticks to his (her) guns and beats back an action by large, multi-national company.  Moreover, let us fete such triumph when it comes on the incorporated entity's home turf: a lawsuit involving complex consumer contracts.  Or better yet, chalk today’s case up to corporate overreach and a simple twist of evidence that let the underdog prevail.


But enough of the hype, let’s get to the facts.  Plaintiff had a cell phone contract with Unicel.  In 2007, Unicel merged with Verizon.  As part of the deal struck with regulators, AT&T, a competitor, was given the right to purchase up to 150,000 of Unicel’s cell contracts.  AT&T began in early 2009 through e-mails and texts to notify Unicel subscribers that their Unicel service would be end in December and that if they wanted to continue they needed to sign up with AT&T. 

Plaintiff began receiving these unsolicited e-mails and texts from AT&T and complained.  He was on the do not call list and these messages violated the regulations.  The Attorney General’s office agreed and sent AT&T a letter stating as much.  Still, AT&T continued sending Plaintiff the unsolicited messages.  In November, Plaintiff did two things.  He signed a new contract with AT&T for 2010 and filed a lawsuit against the company for violations of the Do Not Call Registry in the amount of $476,000. 

In what it, no doubt, considered to be a clever maneuver, AT&T filed a motion to dismiss pointing out that both Plaintiff’s AT&T contract and his Unicel contract required the parties to go to arbitration instead of court.  Here is the first problem.  Plaintiff did not become a client of AT&T until November 2009, well after the offending text messages had been sent.  Here is the second problem.  Prior to that AT&T cannot prove that Plaintiff was a customer of AT&T through Unicel. 

The second problem here is an evidentiary one.  AT&T could only put forward proof of two facts:

1.         Plaintiff was a customer of Unicel prior to November 2009; and

2.         AT&T purchased 100,000 to 150,000 contracts from Unicel in December 2008. 

If you remember your logic courses (and we all should), you should realize there is an undistributed middle in these two statements, and AT&T’s attempt to link the two is a logical fallacy.  In plainer terms, there is nothing to link Plaintiff’s Unicel contract to AT&T’s purchase and control other than innuendo and hope—neither of which are sufficient to meet AT&T’s legal burden of proof on the motion to dismiss.  AT&T did not and apparently cannot produce a single document showing the Plaintiff’s contract was assigned to AT&T prior to November 2009.  Without proof that it owned the Unicel contract, AT&T cannot step into Unicel’s shoes and cannot claim the contractual provisions that it seeks to enforce as a defense against Plaintiff’s consumer claims.  This document may or may not exist.  It may be lost, or it may not have been generated during the course of the in the deal.  In either case, AT&T loses.

AT&T makes one last ditch argument to save its case by arguing that whatever paperwork does or does not exist from the time of the sale, it has since taken over this account and may step into Unicel’s shoes and seek arbitration for this action under the term “prior dealings.”  

Like most Hail Maries thrown outside of Hollywood and Boston College, this one fall flat.  The SCOV rejects this creative use of the term “prior dealings” and notes that the term was intended to cover prior business transactions between Plaintiff and Unicel—and not as a catchall for future parties to reach back into the contract.  In other words, Unicel, at the time of the contract, meant the terms “prior dealings” to address any past business it had done with Plaintiff.  It did not mean to cover any of its then current dealings, which were covered under the then-current terms of the agreement. 



The SCOV affirms the trial court, but because this was an “interlocutory appeal,” it goes back to the trial court for the parties to square off over the $400,000 damages.

End Score: Little Guy 1; AT&T 0.  

1 comment:

  1. Adding to the David/Goliath story, I argued this case pro se after unsuccessfully finding a lawyer willing to take it on. We evenutally settled out of court for an amount the confidentiality agreement does not allow me to disclose, but which, I think, will make AT&T think twice about marketing with text messages in the future.

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