Mr. Michael A. Scott v. Tim Bond
Court Docket Sheet

4th Circuit Court of Appeals

2017-02288 (ca4)

Amended DISCLOSURE OF CORPORATE AFFILIATIONS (Local Rule 26.1) by Appellee Cricket Communications, LLC. Was any question on Disclosure Form answered yes? Yes [1000202937] [17-2288] Archis Parasharami [Entered: 12/04/2017 05:09 PM]

Appeal: 17-2288 Doc: 20 Filed: 12/04/2017 Pg: 1 of 2 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER INTERESTS Disclosures must be filed on behalf of all parties to a civil, agency, bankruptcy or mandamus case, except that a disclosure statement is not required from the United States, from an indigent party, or from a state or local government in a pro se case. In mandamus cases arising from a civil or bankruptcy action, all parties to the action in the district court are considered parties to the mandamus case. Corporate defendants in a criminal or post-conviction case and corporate amici curiae are required to file disclosure statements. If counsel is not a registered ECF filer and does not intend to file documents other than the required disclosure statement, counsel may file the disclosure statement in paper rather than electronic form. Counsel has a continuing duty to update this information. 17-2288 No. __________ Scott v. Bond Caption: __________________________________________________ Pursuant to FRAP 26.1 and Local Rule 26.1, ______________________________________________________________________________ Cricket Communications, LLC (name of party/amicus) ______________________________________________________________________________ who is _______________________, appellee makes the following disclosure: (appellant/appellee/petitioner/respondent/amicus/intervenor) 1. Is party/amicus a publicly held corporation or other publicly held entity? YES ✔ NO 2. Does party/amicus have any parent corporations? ✔ YES NO If yes, identify all parent corporations, including all generations of parent corporations: Appellee Cricket Communiciations, LLC has merged with Cricket Wireless LLC under the name "Cricket Wireless LLC." Cricket Wireless LLC is an indirect, wholly-owned subsidiary of AT&T Inc. 3. Is 10% or more of the stock of a party/amicus owned by a publicly held corporation or other publicly held entity? ✔ YES NO If yes, identify all such owners: Appellee Cricket Communications, LLC, now "Cricket Wireless LLC," is indirectly owned by AT&T Inc., a publicly held corporation. 09/29/2016 SCC-1-Appeal: 17-2288 Doc: 20 Filed: 12/04/2017 Pg: 2 of 2 4. Is there any other publicly held corporation or other publicly held entity that has a direct financial interest in the outcome of the litigation (Local Rule 26.1(a)(2)(B))? YES ✔ NO If yes, identify entity and nature of interest: 5. Is party a trade association? (amici curiae do not complete this question) YES ✔ NO If yes, identify any publicly held member whose stock or equity value could be affected substantially by the outcome of the proceeding or whose claims the trade association is pursuing in a representative capacity, or state that there is no such member: 6. Does this case arise out of a bankruptcy proceeding? YES ✔ NO If yes, identify any trustee and the members of any creditors’ committee:/s/Archis A. Parasharami Signature: ____________________________________ Date: ___________________ 12/4/2017 Cricket Communications, LLC Counsel for: __________________________________ CERTIFICATE OF SERVICE ************************** 12/4/2017 I certify that on _________________ the foregoing document was served on all parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by serving a true and correct copy at the addresses listed below:/s/Archis A. Parasharami _______________________________ 12/4/2017 ________________________ (signature) (date)-2-

ORDER filed [1000203588] granting Motion to expedite decision [{{9}}], scheduling oral argument. Argument Date or Session: March 2018 Session. Copies to all parties. [17-2288] AB [Entered: 12/05/2017 01:06 PM]

Appeal: 17-2288 Doc: 21 Filed: 12/05/2017 Pg: 1 of 2 FILED: December 5, 2017 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT ___________________ No. 17-2288 (1:15-cv-00923-MJG) ___________________ MR. MICHAEL A. SCOTT, Intervenor/Plaintiff Potential Intervenor-Appellant v. TIM BOND, on his own behalf and on behalf of all others similarly situated Plaintiff-Appellee and CRICKET COMMUNICATIONS, LLC Defendant-Appellee and AT&T INC Defendant ___________________ ORDER ___________________ Upon consideration of submissions relative to the motion to expedite, which the court construes as a motion to accelerate case processing, the court grants the Appeal: 17-2288 Doc: 21 Filed: 12/05/2017 Pg: 2 of 2 motion. The court tentatively schedules oral argument in this case during the March 20-23, 2018 session. For the Court--By Direction/s/Patricia S. Connor, Clerk

FULL ELECTRONIC APPENDIX and full paper appendix by Appellant Michael A. Scott. Method of Filing Paper Copies: courier. Date paper copies mailed dispatched or delivered to court: 12/12/2017. [1000207499] [17-2288] Martin Wolf [Entered: 12/12/2017 04:16 PM]

Appeal: 17-2288 Doc: 22-1 Filed: 12/12/2017 Pg: 1 of 40 Total Pages:(1 of 466) No. 17-2288 UNITED STATES COURT OF APPEALS For the Fourth Circuit _______________ MICHAEL A. SCOTT, Potential Intervenor-Appellant, v. TIM BOND, on his own behalf and on behalf of all others similarly situated, Plaintiff-Appellee, and CRICKET COMMUNICATIONS, LLC, Defendant-Appellee, and AT&T INC., Defendant. _______________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND (The Honorable Marvin J. Garbis) _______________ BRIEF OF POTENTIAL INTERVENOR-APPELLANT _______________ Benjamin H. Carney Martin E. Wolf GORDON, WOLF & CARNEY, CHTD. 100 W. Pennsylvania Avenue, Suite 100 Towson, Maryland 21204 Tel. 410-825-2300 Fax. 410-825-0066 Counsel for Potential Intervenor-Appellant Appeal: 17-2288 Doc: 22-1 Filed: 12/12/2017 Pg: 2 of 40 Total Pages:(2 of 466) TABLE OF CONTENTS Page(s) I. JURISDICTIONAL STATEMENT .................................................... 1 II. STATEMENT OF ISSUE PRESENTED FOR REVIEW .................. 2 III. STATEMENT OF THE CASE ............................................................ 2 A. Facts .............................................................................................. 3 B. Procedural History ........................................................................ 4 1. The City Class Action - Removal, Remand, Appeal ................................................ 4 2. The City Class Action - Arbitration, Class Certification .......................................... 6 3. The Bond Class Action - Arbitration and the Second Amended Complaint ............. 8 IV. SUMMARY OF ARGUMENT ............................................................ 12 V. ARGUMENT ......................................................................................... 14 A. Standard of Review ...................................................................... 14 B. Mr. Scott Satisfies the Requirements of Rule 24(a)(2) ................. 14 1. The motion to intervene is timely. ..................................... 16 2. Mr. Scott also satisfies the other Rule 24(a) factors. ........... 21 (a) Mr. Scott has an interest in the case........................ 21 (b) Mr. Scott's interest will be impaired by resolving the Bond Class Action. ........................ 22 i Appeal: 17-2288 Doc: 22-1 Filed: 12/12/2017 Pg: 3 of 40 Total Pages:(3 of 466) (c) Mr. Bond and Cricket have not adequately represented Mr. Scott and the Certified Class ........ 23 VI. CONCLUSION ..................................................................................... 29 ii Appeal: 17-2288 Doc: 22-1 Filed: 12/12/2017 Pg: 4 of 40 Total Pages:(4 of 466) TABLE OF AUTHORITIES Cases Page(s) Alt v. EPA, 758 F.3d 588 (4th Cir. 2014)............................................................... 16 American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974) ........................................................................... 17 ATSI Commc'ns v. Shaar Fund, Ltd., 547 F.3d 109 (2d Cir. 2008) 28 Aurora Loan Serv., Inc. v. Craddieth, 442 F.3d 1018 (7th Cir. 2006)............................................................. 21 Bridges v. Dept. of Maryland State Police, 441 F.3d 197 (4th Cir. 2006)............................................................... 1 Brotherhood of R.R. Trainmen v. Baltimore & O.R. Co., 331 U.S. 519 (1947) ........................................................................... 1 Buchet v. ITT Consumer Fin. Corp., 845 F.Supp. 684 (D. Minn. 1994) ...................................................... 23 Buckner v. Schaefer, 14 F.3d 593, 1993 WL 542143 (4th Cir. Dec. 22, 1993) .................... 1 City of Chicago v. Fed. Emer. Mgmt. Agency, 660 F.3d 980 (7th Cir. 2011)............................................................... 22 City of Houston v. Amer. Traffic Solutions, Inc., 668 F.3d 291 (5th Cir. 2012)............................................................... 14 Crawford v. Equifax Payment Servs., Inc., 201 F.3d 877 (7th Cir. 2000)............................................................... 20 Gould v. Alleco, Inc., 883 F.2d 281 (4th Cir. 1989)............................................................... 15, 21 iii Appeal: 17-2288 Doc: 22-1 Filed: 12/12/2017 Pg: 5 of 40 Total Pages:(5 of 466) Hill v. W. Elec. Co., 672 F.2d 381 (4th Cir. 1982)............................................................... 19 In re Benny, 791 F.2d 712 (9th Cir. 1986) ................................................................ 14 In re Cmty. Bank of N. Virginia, 418 F.3d 277 (3rd Cir. 2005) .............................................................. 19 In re Tamoxifen Citrate Antitrust Litig., 466 F.3d 187 (2d Cir. 2006)............................................................... 28 League of United Latin Amer. Citizens v. Wilson, 131 F.3d 1297 (9th Cir. 1997)............................................................. 14 Lewis v. Select Portfolio Servs., Inc., 2006 WL 1896176 (D. Md. July 10, 2006) ........................................ 19 McBroom v. Western Elec. Co., 1974 WL 156, 18 Fed.R.Serv.2d 1200 (1966) ................................... 16, 21 McKowan Lowe & Co. v. Jasmine, Ltd., 295 F.3d 380 (3rd. Cir. 2002) ............................................................. 18 Missouri-Kansas Pipe Line Co. v. United States, 312 U.S. 502 (1941) ........................................................................... 1 Redeemer Comm. Of Highland Credit Strategies Funds v. Highland Capital Mgmt., L.P., 253 F.Supp.3d 722 (S.D.N.Y. 2017) .................................................. 28 Salvors, Inc. v. Unidentified Wrecked & Abandoned Vessel, 861 F.3d 1278 (11th Cir. 2017)........................................................... 14 Scott v. Cricket Communications, LLC, 865 F.3d 189 (4th Cir. 2017).............................................................. 6 S.E.C. v. Homa, 17 Fed.Appx. 441, 445 (7th Cir. 2001), 2001 WL 939080 (August 17, 2001) .................................................. 14 iv Appeal: 17-2288 Doc: 22-1 Filed: 12/12/2017 Pg: 6 of 40 Total Pages:(6 of 466) Sierra Club v. Espy, 18 F.3d 1202 (5th Cir. 1994)............................................................... 22 Sierra Club v. Robertson, 960 F.2d 83 (8th Cir. 1992)................................................................. 23 Standard Fire Ins. Co. v. Knowles, 568 U.S. 588 (2013) ........................................................................... 1 Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370 (1987) ........................................................................... 1 Teague v. Bakker, 931 F.2d 259 (4th Cir. 1991)............................................................... 15, 21 Technology Training Assoc., Inc. v. Buccaneers Ltd. Partn., 874 F.3d 692 (11th Cir.).................................................................. 1 Trbovch v. United Mine Workers of America, 404 U.S. 528 (1972) ........................................................................... 22, 23 United Airlines, Inc. v. MacDonald, 432 U.S. 385 (1977) ........................................................................... 19 U.S. Bancorp Mortg. Co. v. Bonner Mall P'ship, 513 U.S. 18 (1994) ............................................................................. 28 U.S. v. City of Los Angeles, 288 F.3d 391 (9th Cir. 2002)............................................................... 15, 22 U.S. v. Union Elec. Co., 64 F.3d 1152 (8th Cir. 1995) ............................................................. 14 Wallach v. Eaton Corp., 837 F.3d 356 (3rd. Cir. 2016) ............................................................. 17, 18 Statutes 28 U.S.C. § 1331 .......................................................................................... 1 v Appeal: 17-2288 Doc: 22-1 Filed: 12/12/2017 Pg: 7 of 40 Total Pages:(7 of 466) 28 U.S.C. § 1447 .......................................................................................... 5 28 U.S.C. § 1453(c)(1) .................................................................................. 5 28 U.S.C. § 1453(c)(2) .................................................................................. 6 28 U.S.C. § 1453(c)(3) .................................................................................. 6 Magnuson Moss Warranty Act 15 U.S.C. § 2301 et seq. ...................................................................... 3, 8 Rules and Regulations Federal Rules of Appellate Procedure 4(a)(1)(A) ............................................................................................. 2 Federal Rules of Civil Procedure 23(b)(2) ............................................................................................... 20 23(b)(3) ............................................................................................... 20 23(d) ................................................................................................... 15 24(a) ................................................................................................... 2, 14, 15 Miscellaneous A. Conte & H. Newberg, 5 Newberg on Class Actions § 16:7 (4th ed. 2002) ............................................................................ 1, 2 A. Conte & H. Newberg, 3 Newberg on Class Actions § 9:31 (5th ed. 2002)........................................................................... 16, 17 Advisory Committee's Note on Rule 23(b)(2), 39 F.R.D. 69 (1966) ........................................................................... 16 Graham C. Lilly, Modeling Class Actions: The Representative Suit As an Analytical Tool, 81 Neb.L.Rev.1008 (2003) ................................ 18 vi Appeal: 17-2288 Doc: 22-1 Filed: 12/12/2017 Pg: 8 of 40 Total Pages:(8 of 466) I. JURISDICTIONAL STATEMENT The district court has subject-matter jurisdiction in this case pursuant to the Class Action Fairness Act of 2005 ("CAFA") because the Second Amended Complaint alleges that: (1) Plaintiff Tim Bond and Defendant Cricket Communications, LLC ("Cricket") are diverse; and (2) the amount in controversy exceeds $5 million. 28 U.S.C. § 1332(d)(2); JA150-151, ¶¶ 13 and 16). This Court has jurisdiction to entertain this appeal under the final judgment rule. 28 U.S.C. § 1331; Bridges v. Dept. of Maryland State Police, 441 F. 3d 197, 207 (4th Cir. 2006("[T]he denial of their motion [to intervene] would be treated as a final judgment that is appealable."); Brotherhood of R.R. Trainmen v. Baltimore & O. R. Co., 331 U.S. 519, 525 (1947)(denial of intervention as of right is sufficiently final to support immediate appeal) citing, Missouri-Kansas Pipe Line Co. v. United States, 312 U.S. 502, 508 (1941); Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 377 (1987)(same); Buckner v. Schaefer, 14 F.3d 593 (Table), 1993 WL 542143 at *1 (4th Cir. December 22, 1993)(same); see also, Technology Training Assoc., Inc. v. Buccaneers Ltd. Partn., 874 F.3d 692, 694 n. 1 (provisional jurisdiction to review denial of intervention as of right). "[M]embers of a class have a right to intervene if their interests are not adequately represented by existing parties …." Standard Fire Ins. Co. v. Knowles, 568 U.S. 588, 594 (2013) quoting A. Conte & H. Newberg, 5 Newberg on Class Actions § Appeal: 17-2288 Doc: 22-1 Filed: 12/12/2017 Pg: 9 of 40 Total Pages:(9 of 466) 16:7, p. 154 (4th ed. 2002). Michael Scott is a member of the putative class in the present case, and therefore has the right to intervene. JA 23, Memorandum and Order Re: Intervene (identifying Mr. Scott as a member of the putative class in the present case). The District Court denied Mr. Scott's motion to intervene as of right pursuant to Fed.R.Civ.P. 24(a) on October 26, 2017. JA 6. Mr. Scott filed his Notice of Appeal on November 1, 2017, within the period for filing. JA 7; Fed.R.App.P 4(a)(1)(A). II. STATEMENT OF ISSUE PRESENTED FOR REVIEW Did the District Court err in denying as untimely Mr. Scott's motion to intervene as of right as a member of the putative class, when the motion was filed: (1) before the period to opt-out of the putative class had expired, and (2) within two weeks of receiving notice that there was a purported settlement in principal on behalf of a nationwide class that would subsume the claims of the Certified Class Mr. Scott represents? Proposed Answer: Yes III. STATEMENT OF THE CASE In order to analyze the District Court's decision on appeal, and the precarious position into which Mr. Scott and the Certified Class he represents have been placed, it is necessary to recite the underlying facts and procedural posture of (1) the present case, Bond v. Cricket Communications, LLC (the "Bond Class Action"), and (2) Scott v. 2 Appeal: 17-2288 Doc: 22-1 Filed: 12/12/2017 Pg: 10 of 40 Total Pages:(10 of 466) Cricket Communications, LLC, currently pending in the U.S. District Court for the District of Maryland (the "City Class Action").1 A. Facts Mr. Scott, a former Cricket customer and a Maryland citizen, filed a class action complaint in the Circuit Court for Baltimore City in the City Class Action in September, 2015, asserting a single claim for violation of the Magnuson Moss Warranty Act ("MMWA"). Apx 13-30. The lawsuit arose from Mr. Scott's purchase of two Samsung Galaxy S4 mobile telephones from Cricket, each of which was locked so it could be used only on Cricket's "CDMA" network, each of which cost Mr. Scott hundreds of dollars, and each of which included an express statement that the telephones included "unsurpassed nationwide coverage." Apx 17. However, unknown to Mr. Scott at that time, but known to Cricket, the cellphones were defective at the time of sale. These cellphones were not fit for the ordinary or particular purpose for which they were sold – making telephone calls and other 1 As explained in further detail below, the City Class Action was originally filed in the Circuit Court for Baltimore City, removed to the U.S. District Court, remanded to Baltimore City, and the remand order was reversed by this Court. During the pendency of the appeal, the Circuit Court certified a class of Maryland citizens (the "Certified Class"), and appointed Mr. Scott and his attorneys to represent the Certified Class. At the time of drafting this brief, this remains the only class that has been certified. Currently, a second remand motion is pending in the District Court. Mr. Scott has filed under separate cover a brief Appendix that includes the docket entries and selected documents from Mr. Scott's case in both the Circuit Court for Baltimore City and before Judge Russell in the District Court. 3 Appeal: 17-2288 Doc: 22-1 Filed: 12/12/2017 Pg: 11 of 40 Total Pages:(11 of 466) mobile communications. Apx 18. In fact, at the time of sale, Cricket planned and intended to entirely cease providing the CDMA service required to operate those telephones, and yet it sold those telephones to Mr. Scott and other Class members and "locked" those telephones so that they would be guaranteed to never work following the shut-down of the CDMA service. Apx 18. B. Procedural History 1. The City Class Action - Removal, Remand, Appeal After Mr. Scott filed the City Class Action, Cricket immediately noticed its removal to federal court under CAFA. However, Cricket's notice of removal based its allegations of federal jurisdiction under CAFA on Cricket's re-definition of the Class to include all phones which were "activated" or "shipped" to Maryland, without taking account of the limitation in Mr. Scott's class definition to: (1) only Maryland citizens; and (2) only those persons whose phones were locked to Cricket's CDMA network. Cricket also submitted an affidavit in support of removal which did not identify any number of Class members. Apx 45. Instead, the affidavit addressed the number of "handsets" which were "shipped to and activated in Maryland" – but without information about how many people those "handsets" were either purchased by, or shipped to. Apx 45. Mr. Scott filed a motion to remand the case to state court on November 23, 4 Appeal: 17-2288 Doc: 22-1 Filed: 12/12/2017 Pg: 12 of 40 Total Pages:(12 of 466) 2015. In response to Mr. Scott's remand motion, Cricket filed yet another affidavit which again failed to provide any information about anyone's Maryland citizenship, and again failed to identify any number of Class members. Apx 47. Once again, the affidavit only mentioned a number of "handsets" which were purchased - this time claiming that thousands fewer "handsets" than were identified in the previous affidavit were "purchased" by "customers who listed addresses located in Maryland on their Cricket accounts during" the period "between July 12, 2013 and March 13, 2014" – more than a year before filing or removal - but still failing to identify how many customers, as opposed to "handsets," were at issue. Apx 47. The District Court (Judge Russell), in an opinion dated August 19, 2016, determined that Cricket failed to carry its evidentiary burden to present sufficient facts to prove federal jurisdiction by a preponderance of the evidence: the Class includes only Maryland citizens, but Cricket's evidence pertains to all consumers who provided Maryland addresses. Residency is not tantamount to citizenship. See Johnson, 549 F.3d at 937 n.2. (4th Cir. 2008) … As a result, the Court would have to speculate to determine the number of class members that purchased CDMA cellphones and the amount in controversy. The Court concludes, therefore, that Cricket fails to prove federal jurisdiction by a preponderance of the evidence … In sum, Cricket fails to prove federal jurisdiction by a preponderance of the evidence because Cricket does not tailor its evidence to Scott's narrowly defined Class. Apx 65-66. On August 29, 2016, Cricket filed a petition for permission to appeal in this Court, docketed as case number 16-3051. Although remand orders are generally 5 Appeal: 17-2288 Doc: 22-1 Filed: 12/12/2017 Pg: 13 of 40 Total Pages:(13 of 466) not subject to appeal (28 U.S.C. § 1453(c)(1); § 1447), there is a limited exception in CAFA cases with one qualification, the entire appeal, including a final decision, must be completed within 60 days (with possible extension to 70) from the date the case is accepted for appeal. 28 U.S.C. § 1453(c)(2) & (3). On November 8, 2016, this Court entered an Order which, among other things, directed the filing of briefs on "the merits of the appeal" (under a different docket number: No. 16-2300) from the petition for permission to appeal. The briefing order directed: (1) Cricket to file its opening brief and appendix by December 19, 2016; and (2) Mr. Scott to respond to Cricket's brief by January 20, 2017. On May 11, 2017, this Court heard oral argument on the appeal, and issued its opinion on July 28, 2017, vacating the remand and directing the district court to reconsider consistent with the opinion. See, Scott v. Cricket Communications, LLC, 865 F.3d 189, 197 (4th Cir. 2017). 2. The City Class Action - Arbitration, Class Certification While the removal/remand issue was winding through this Court, the underlying case continued in the Circuit Court for Baltimore City. On March 31, 2017, Mr. Scott filed the motion for class certification. After full briefing and argument, the motion was granted on June 9, 2017, and the Circuit Court certified the following class (Apx 31): [A]ll Maryland citizens who, between July 12, 2013 and March 13, 2014, purchased a Code Division Multiple 6 Appeal: 17-2288 Doc: 22-1 Filed: 12/12/2017 Pg: 14 of 40 Total Pages:(14 of 466) Access ("CDMA") mobile telephone from Cricket Communications, LLC ("Cricket"), which was locked for use only on Cricket's CDMA network; After this Court's opinion was issued on July 28, 2017, Mr. Scott amended the complaint in Baltimore City to include both the Certified Class of Maryland citizens, and a putative nationwide class defined as: All persons within the United States who, between July 12, 2013 and March 13, 2014, purchased a CDMA mobile telephone from Cricket, which was locked for use only on Cricket's CDMA network. Apx 12; JA 210. Shortly after filing the amended complaint, on August 11, 2017, Cricket filed in the District Court (Judge Russell) a "Renewed Notice of Removal of Action by Defendant Cricket Communications, LLC." Cricket also filed motions to vacate: (1) the class certification order, and (2) the order denying Cricket's motion to compel arbitration. Apx 41-42. Cricket also filed a notice of related case to the Bond Class Action along with a motion to stay proceedings in part, which as Cricket explained in a letter to Judge Russell, there was a nationwide settlement in principle in the Bond Class Action, which presumably would do away with the City Class Case. Apx 41-42; 71. That presumption was confirmed when Cricket filed its Response to the Motion for Entry of Administrative Order No. 1, which states unequivocally that the purported nationwide settlement "would subsume the claims in Scott's lawsuit." Apx 73. Mr. Scott has opposed Cricket's motions and has filed a second motion to remand, all of which are fully briefed and awaiting decision. 7 Appeal: 17-2288 Doc: 22-1 Filed: 12/12/2017 Pg: 15 of 40 Total Pages:(15 of 466) 3. The Bond Class Action - Arbitration and the Second Amended Complaint The initial complaint in the Bond Class Action was filed on March 31, 2015.2 JA 3. The factual predicate in the Bond Class Action complaint generally recounts similar facts regarding the purchase of phones from Cricket, and shutting down the CDMA network, but there are two important distinctions for purposes of the present motion. JA 28-36. First, the Bond Class Action alleged a nationwide class (JA 33); not a limited class such as Maryland citizens. Second, the counts in the Bond Class Action complaint did not at that time include a claim under the Magnuson Moss Warranty Act. Instead, the Bond Class Action complaint set forth six counts for: (1) Breach of the Implied Warranty of Merchantability; (2) Fraudulent Concealment; (3) Money Had and Received/Unjust Enrichment; (4) Negligent Misrepresentation; (5) Maryland Consumer Protection Act; and (6) Fraud. JA 37-45. The first responsive filing by Cricket was a Motion to Compel Arbitration on July 13, 2015. JA 4; #15. In his response, Mr. Bond failed to raise significant arguments in opposition to the motion to compel arbitration: (1) the existence of an arbitration agreement; (2) the single document rule; or (3) the validity of any purported arbitration agreement (by way of example). JA 4; #16. On January 12, 2The initial complaint identified the defendant at AT&T Inc. ("AT&T"), Cricket's parent company. Mr. Bond filed a First Amended Complaint on May 8, 2015, swapping in Cricket for AT&T. JA 47. 8 Appeal: 17-2288 Doc: 22-1 Filed: 12/12/2017 Pg: 16 of 40 Total Pages:(16 of 466) 2016, the District Court granted Cricket's motion and compelled arbitration. JA 4; #18. The case then lay dormant for more than a year until February 10, 2017, when Mr. Bond filed a Motion for Leave to File Second Amended Complaint. JA 5. Coincidentally, this motion was filed just 3 days after the Baltimore City Circuit Court lifted the stay in the State Class Action. Apx 5. This coincidence is most curious because Cricket, who had already compelled the entire Bond dispute to arbitration, did not oppose amending the Bond complaint. Instead, Cricket reached stipulations with Mr. Bond that by all appearances are designed specifically to extinguish the State Class Action. Specifically, Cricket and Mr. Bond stipulated: 7. Counsel for the parties have met and conferred concerning the Motion. 8. In this stipulation, Plaintiff represents that: a. Plaintiff seeks leave to file his Second Amended Complaint solely to pursue a new claim under the federal Magnuson Moss Warranty Act (MMWA). Dkt. No. 21 at 2 n. 1. (emphasis in original) b. Plaintiff agrees that the prior Order compelling arbitration is law of the case and binds him to arbitrate all of the claims contained in the First Amended Complaint (subject to appellate review), which correspond to all the claims listed in the proposed Second Amended Complaint apart from the new MMWA claim. 9 Appeal: 17-2288 Doc: 22-1 Filed: 12/12/2017 Pg: 17 of 40 Total Pages:(17 of 466) c. Plaintiff recognizes that, if the Court grants leave to file the proposed Second Amended Complaint, Cricket intends to compel arbitration of all claims, and represents that the grounds on which Plaintiff intends to respond to the arbitration motion are that the MMWA does not permit Plaintiff's claims to be arbitrated. * * * 10. The parties agree that Cricket may respond to the Second Amended Class Action Complaint by moving to compel arbitration, and that Plaintiff's arguments in response will be limited to those identified in the representations contained in Paragraph 8, above. 11. The parties further agree that Plaintiff will not re- litigate any facts or introduce any new evidence related to arbitration or other subjects, and will not seek to reopen counts I-VI or any other claim previously litigated and compelled by this Court to arbitration. JA 139-142. The Court approved the stipulation (JA 143) and granted leave to file the Second Amended Complaint on March 8, 2017 (JA 147). Cricket filed a motion to compel arbitration on May 2, 2017. JA 6; 196. Mr. Bond filed his response on June 9, 2017, in which he copied almost verbatim the portion of Mr. Scott's opposition that was filed in the City Class Action. Of course, in compliance with the stipulation, Mr. Bond did not raise all the other significant arguments in opposition to compelled arbitration that Mr. Scott raised in the City Class Action. After Cricket filed its reply on July 14, 2017 (JA 6), there was no further action until August 11, 2017 (the same date Cricket filed the renewed notice of 10 Appeal: 17-2288 Doc: 22-1 Filed: 12/12/2017 Pg: 18 of 40 Total Pages:(18 of 466) removal of the City Class Action) when Cricket notified the District Court in a letter that the parties had reached a settlement in principle, and that the settlement would dispose of "all of the claims" at issue in the City Class Action. JA 199. Mr. Scott filed the Motion to Intervene on August 24, 2017, just 13 days after the first notice that Mr. Bond and Cricket had settled in principal the claims of Mr. Scott and the certified class of Maryland citizens that he represents. JA 6. Mr. Bond and Cricket both objected (JA 6, #s 43 and 44). On October 26, 2017, the District Court denied intervention as untimely because he did not move to intervene when Mr. Bond filed the Second Amended Complaint: Therefore, as of February 10, 2017, Scott knew, or should have known, that Bond's case included an MMWA cause of action, and as of February 24, 2017, Scott knew or should have known, of the stipulation to lift the stay in Bond's case in order to litigate the MMWA claim. Scott could have intervened in February 2017, but chose to pursue his own case in state court. * * * Under the circumstances of this case, Scott could have, and should have, acted sooner. Upon review of the timeliness factors, the Court finds that Scott's intervention motion was untimely and shall exercise its discretion to deny the motion. JA 21; 23. 11 Appeal: 17-2288 Doc: 22-1 Filed: 12/12/2017 Pg: 19 of 40 Total Pages:(19 of 466) IV. SUMMARY OF ARGUMENT Mr. Bond and Mr. Scott both were Cricket customers who were sold telephones by Cricket when Cricket had already decided to shutdown the network on which the phones operated, rendering them useless. Both Mr. Bond and Mr. Scott decided to vindicate their rights and the rights of others in the same situation, and filed class action lawsuits against Cricket. Mr. Bond did not fare well in his case. His case was forced into arbitration and lay dormant for over a year; no arbitration, no litigation. Cricket essentially won. It successfully eliminated virtually Mr. Bond's entire case, as it had set out to do by its motion to compel arbitration. Mr. Scott, on the other hand, chose a different strategy. He filed on behalf of a Maryland class (not nationwide) in state court. Cricket's attempts to force arbitration failed, and the class was certified. It was only when Mr. Scott began to succeed that Mr. Bond and Cricket jointly resurrected Mr. Bond's lifeless claim. But the resurrection was only on Cricket's terms, which ensured that Mr. Bond's prior loss would remain intact. The complaint was amended to add a new claim that perfectly mirrored Mr. Scott's claim. Once in place, they negotiated a settlement at arms-length; Cricket with the arm of Hercules, and Mr. Bond with both arms tied behind his back. And that settlement, in the words of Cricket, would include Mr. Scott's case. The putative nationwide settlement class, 12 Appeal: 17-2288 Doc: 22-1 Filed: 12/12/2017 Pg: 20 of 40 Total Pages:(20 of 466) which would purportedly include the Certified Class, would become part of a settlement negotiated out of weakness, and Cricket would avoid negotiating with Mr. Scott (or litigating against him and a certified class), an adversary on a more level playing field. As expected, the settlement is virtually worthless from the class' perspective, although I'm sure Cricket finds it very valuable. Mr. Scott and his counsel have been appointed by the Circuit Court for Baltimore City to represent the interests of the Certified Class. Mr. Bond's lawyers represent Mr. Bond; neither of them have been appointed by any court to speak on behalf of anyone else, and certainly not on behalf of the Certified Class. Yet, Mr. Bond and his lawyers, and Cricket and its lawyers, without having even litigated the claims, resurrected a dead case, modified it to mimic Mr. Scott's case, and attempted to negotiate a settlement that would extinguish the claims of Mr. Scott and the Certified Class - without the involvement of Mr. Scott or his lawyers, who have been appointed by the Circuit Court for Baltimore City to represent their interests. Mr. Scott tried to intervene in Mr. Bond's case to protect his claims and the Certified Class' claims from the type of settlement that now has come to fruition. Mr. Scott's attempt to intervene was denied by the District Court because it was untimely, and this appeal attempts to correct that error. Because this case is a class action, and Mr. Scott is a member of the putative nationwide class, there is a presumption that (1) he has no obligation to intervene until he is given notice of class 13 Appeal: 17-2288 Doc: 22-1 Filed: 12/12/2017 Pg: 21 of 40 Total Pages:(21 of 466) certification, and (2) his attempt to intervene is presumed timely as long as it is filed before the period to opt-out of the class has expired. Moreover, the record demonstrates that Mr. Scott satisfies all other factors for intervention under Fed.R.Civ.P. 24(a)(2). Therefore, the District Court's denial of the motion to intervene must be reversed. V. ARGUMENT A. Standard of Review Whether a person is entitled to intervene as a matter of right under Rule 24(a), is a question of law and is reviewed de novo; the timeliness of the motion to intervene is reviewed for abuse of discretion. Salvors, Inc. v. Unidentified Wrecked & Abandoned Vessel, 861 F.3d 1278, 1294 (11th Cir. 2017); City of Houston v. Amer. Traffic Solutions, Inc., 668 F.3d 291, 293 (5th Cir. 2012); S.E.C. v. Homa, 17 Fed.Appx. 441, 445 (7th Cir. 2001), 2001 WL 939080 at *4 (August 17, 2001); U.S. v. Union Elec. Co., 64 F.3d 1152, 1158 (8th Cir. 1995); see also, In re Benny, 791 F.2d 712, 721 (9th Cir. 1986) and League of United Latin Amer. Citizens v. Wilson, 131 F.3d 1297, 1302 (9th Cir. 1997). B. Mr. Scott Satisfies the Requirements of Rule 24(a)(2) The foregoing recitation of the facts and procedural meanderings of these cases makes it abundantly clear that Mr. Scott satisfies the four factors for intervention under Fed.R.Civ.P. 24(a)(2): (1) he and the Certified Class have an 14 Appeal: 17-2288 Doc: 22-1 Filed: 12/12/2017 Pg: 22 of 40 Total Pages:(22 of 466) interest in the transaction that is the subject of the Bond Class Action; (2) there is a substantial risk that the litigation (including the proffered settlement) in the Bond Class Action will impair their interests; (3) the existing parties do not adequately protect their interests; and (4) the motion to intervene is timely. Rule 24(a) sets forth the procedure for a person to intervene as party in an existing case as a matter of right: (a) Intervention of Right. On timely motion, the court must permit anyone to intervene who: * * * (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest. Thus, in addition to timeliness, intervention of right is dependent on the moving party's fulfillment of the three requirements set forth in (a)(2), interest, impairment of interest, and inadequate representation. Gould v. Alleco, Inc., 883 F.2d 281, 284 (4th Cir. 1989); Teague v. Bakker, 931 F.2d 259, 260-61 (4th Cir. 1991). Courts generally construe the requirements of Rule 24 broadly in favor of intervention. U.S. v. City of Los Angeles, 288 F.3d 391, 397-98 (9th Cir. 2002)("A liberal policy in favor of intervention serves both efficient resolution of issues and broadened access to the courts."). Moreover, in cases such as the Bond Class Action, Rule 23(d) (the class 15 Appeal: 17-2288 Doc: 22-1 Filed: 12/12/2017 Pg: 23 of 40 Total Pages:(23 of 466) action rule) expressly contemplates intervention, particularly by putative class members (as is true in the Bond Class Action), as a means of further protecting the rights of class members. McBroom v. Western Elec. Co., 1974 WL 156, 18 Fed.R.Serv.2d 1200, *3 (M.D.N.C. 1974), citing Advisory Committee's Note on Rule 23(b)(2), 39 F.R.D. 69, 102 (1966). The record in this case clearly shows that Mr. Scott satisfies the four factors. 1. The motion to intervene is timely. The District Court denied Mr. Scott's motion to intervene on the basis that it was untimely. JA 23. The District Court held that Mr. Scott should have intervened, if at all, as soon as he knew of the existence of the Bond case (or at least the filing of the Second Amended Complaint), and that the classes overlapped. That analysis is simply wrong, conflicts with the whole purpose the class action procedure, and has been roundly rejected. Generally, courts look at three factors in determining the timeliness of a motion to intervene: (1) progress already made in the case; (2) prejudice that delay caused by intervention may impose on other parties; and (3) reason for delay in moving to intervene. Alt v. EPA, 758 F.3d 588, 591 (4th Cir. 2014). In class actions, however, timeliness is presumed if sought prior to the expiration of the class opt- out period. As the leading treatise on class actions explains, in part V of Chapter 9, titled "Intervention by Absent Class Members": 16 Appeal: 17-2288 Doc: 22-1 Filed: 12/12/2017 Pg: 24 of 40 Total Pages:(24 of 466) Legally, class certification signals the point at which the matter officially becomes a representative action. Given this, courts often begin their analysis of the multifactor timeliness test by assessing where the intervention falls relative to the motion for class certification although courts rarely rely on that factor alone. Thus, courts have considered motions to intervene in 23(b)(3) class suits timely if the application for intervention occurs prior to the expiration of the opt-out period as a putative class member has no duty to act prior to that point. A. Conte, H. Newberg, 3 Newberg on Class Actions § 9:31 (5th ed.)(emphasis added). Indeed, this presumption of timeliness is mandated by controlling precedent from the U.S. Supreme Court, as the Third Circuit recently recognized: American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), … established the rule that statutes of limitations toll while class certification motions are pending so that putative class members may await resolution of such motions and retain their ability to intervene in the event such motions for class certification are denied after the limitations period would have run on their individual claims. See Am. Pipe & Constr. Co., 414 U.S. at 545–53, 94 S.Ct. 756. In crafting this rule, the Supreme Court sought to relieve putative class members of the need "to file earlier individual motions to join or intervene as parties," because such "multiplicity of activity" would run contrary to two key goals of the class action device: efficiency and judicial economy. Id. at 551, 94 S.Ct. 756. … without the presumption of timeliness, "class members would be compelled to intervene in every class action to protect their interests in the event the proposed class representatives are ultimately deemed inadequate"— giving rise to inefficiencies "[t]he class action device was designed to avoid ... both before and after class 17 Appeal: 17-2288 Doc: 22-1 Filed: 12/12/2017 Pg: 25 of 40 Total Pages:(25 of 466) certification." Reply Br. 16. Denying the presumption to putative class members also could result in great inefficiencies and reductions in judicial economy in cases like the one before us, which would be dismissed after years of motion practice and discovery, only to be filed anew by plaintiffs who were unable to simply intervene and carry the motion for class certification through to its conclusion. Further, if the presumption of timeliness applied only to certified classes, then motions to intervene brought prior to class certification might be deemed untimely, even though those same motions would be timely if brought years later, after a class was certified. The illogic of such result and the goals of efficiency and judicial economy emphasized by the Supreme Court in American Pipe militate that we extend the presumption of timeliness … to the pre- certification context. Wallach v. Eaton Corp., 837 F.3d 356, 374 (3d Cir. 2016) (emphasis added). Accordingly, the timeliness clock does not expire until, at the earliest, the expiration of the opt-out period: The time frame in which a class member may file a motion to intervene challenging the adequacy of class representation must be at least as long as the time in which s/he may opt-out of the class. We recognized in McKowan Lowe & Co. v. Jasmine, Ltd., 295 F.3d 380 (3d Cir.2002), that: Not until the existence and limits of the class have been established and notice of membership has been sent does a class member have any duty to take note of the suit or to exercise any responsibility with respect to it in order to profit from the eventual outcome of the case. 18 Appeal: 17-2288 Doc: 22-1 Filed: 12/12/2017 Pg: 26 of 40 Total Pages:(26 of 466) 295 F.3d at 384 (internal citation and quotations omitted); cf. Graham C. Lilly, Modeling Class Actions: The Representative Suit as an Analytic Tool, 81 Neb. L.Rev. 1008, 1035 (2003). In re Cmty. Bank of N. Virginia, 418 F.3d 277, 314 (3d Cir. 2005). Fourth Circuit decisions are in accord. See Hill v. W. Elec. Co., 672 F.2d 381, 386 (4th Cir 1982) (in a class action the important issue with respect to timeliness is whether the proposed intervenor moved to intervene "as soon as it became clear that interests of the unnamed class members would no longer be protected by the named class representatives") quoting United Airlines, Inc. v. MacDonald, 432 U.S. 385 (1977). See also Lewis v. Select Portfolio Servs., Inc., No. CIV A. RDB-06-232, 2006 WL 1896176, at *3 (D. Md. July 10, 2006) (citing In re Cmty. Bank and noting "the collusive dangers inherent in a settlement-only class action. * * * Such danger can exist in consolidated national class actions because: 'the settlement agreement is the product of a "reverse auction,"' the practice whereby the defendant in a series of class actions picks the most ineffectual class lawyers to negotiate a settlement with the hope that the district court will approve a weak settlement that will preclude other claims against the defendant."). Because the authorities agree that a motion to intervene is timely when filed before the opt-out period has expired and as soon as it became clear that class members would no longer be protected by the named plaintiff, the District Court's holding must be reversed. Mr. Scott filed well before the opt-out period expired; 19 Appeal: 17-2288 Doc: 22-1 Filed: 12/12/2017 Pg: 27 of 40 Total Pages:(27 of 466) indeed before a preliminary approval motion was even filed. Even as of the drafting of this brief, the opt-out period has not expired. Moreover, the District Court's holding that Mr. Scott should have sought intervention earlier because he knew his interest and the interests of the Certified Class were at risk by the filing of the second amended complaint in the Bond Class Action is equally flawed. In Crawford v. Equifax Payment Serv., Inc., 201 F.3d 877, 880 (7th Cir. 2000), Judge Easterbrook rejected this very argument when faced with a similar settlement attempt: Although the parties debate when counsel first learned that the Crawford class could be a superset of the Blair and Wilbon classes, we need not address that issue. Let us assume that Blair and Wilbon knew from the get-go about the relation among the classes. Why should that have prompted intervention? The class device is designed to avoid the need for class members to become parties. * * * Only when the class members suspect that the representative is not acting in their best interests is there a need to intervene. This means the delay must be measured from the time the would-be intervenors learned (or should have known) of the representative's shortcomings. [citation omitted]3 3 The Court went on to address the fact that the settling class and defendant made a late switch from a 23(b)(3) class to a 23(b)(2), which meant the objectors never received notice and had no right to opt-out in any event. Ultimately, the Court reversed the orders denying intervention and approving the settlement. 201 F.3d at 881-882. 20 Appeal: 17-2288 Doc: 22-1 Filed: 12/12/2017 Pg: 28 of 40 Total Pages:(28 of 466) Here, Mr. Scott first learned that his interests and those of the Certified Class were not adequately protected by Mr. Bond and his counsel (the purported representatives of the putative national class) on August 11, 2017, when Cricket sent a letter to Judge Russell informing him of the purported settlement in principle, and that it would extinguish Mr. Scott's case. Apx 71. The motion to intervene was filed on August 24, 2017, just 13 days later. JA 6; #42. 2. Mr. Scott also satisfies the other Rule 24(a) factors. Although the District Court based its decision solely on the timeliness factor, it is clear from the record in this case that Mr. Scott satisfies the other factors as well: (1) an interest in the case, (2) that will be impaired by disposing of the case, and (3) that is inadequately represented by the parties in the case. Gould, 883 F.2d at 284; Teague, 931 F.2d at, 260-61. (a) Mr. Scott has an interest in the case. An interest that could be the basis for a separate suit in federal court satisfies the "interest" requirement for intervention. Aurora Loan Serv., Inc. v. Craddieth, 442 F.3d 1018, 1022 (7th Cir. 2006). It is axiomatic that Mr. Scott, as a member of the putative class pleaded in the Bond Class Action, has an interest in the transactions that are the subject of the case. See McBroom, 18 Fed.R.Serv.2d at *3. Comparing the class definition of the Certified Class that Mr. Scott represents (Apx 31), with the definition pleaded in paragraph 42 of the Second Amended Complaint in the Bond Class 21 Appeal: 17-2288 Doc: 22-1 Filed: 12/12/2017 Pg: 29 of 40 Total Pages:(29 of 466) Action (JA 99) makes it clear that the Certified Class (including Mr. Scott) is a subset of the putative Bond class. Cricket's letter to the Court, however, places it beyond dispute. In that letter, Cricket acknowledges that resolution of Bond "will cover all of the claims in Scott …." JA 199. There can be no doubt that Mr. Scott has satisfied the interest factor. (b) Mr. Scott's interest will be impaired by resolving the Bond Class Action. Potential legal impairments to an intervenor's interest are sufficient to satisfy this second prong for intervention. See, Sierra Club v. Espy, 18 F.3d 1202, 1207 (5th Cir. 1994)(stare decisis effect of decision is sufficient potential impairment); City of Los Angeles, 288 F.3d at 401. In the present case, Cricket admits that Mr. Scott and the Certified Class' interests will be legally impaired by resolving the Bond Class Action. In fact, in the August 11th letter to the Court (JA 199), Cricket states that their interests will be disposed of. Even if Cricket overstates the impact of resolving the Bond Class Action on the City Class Action, the potential for such impact is enough. See, Los Angeles, 288 F.3d at 401 (potential impairment is sufficient for intervention); City of Chicago v. Fed. Emer. Mgmt. Agency, 660 F.3d 980, 985 (7th Cir. 2011)(ability of intervenor to litigate claim in the future would not be an automatic bar to intervention). 22 Appeal: 17-2288 Doc: 22-1 Filed: 12/12/2017 Pg: 30 of 40 Total Pages:(30 of 466) (c) Mr. Bond and Cricket have not Adequately Represented Mr. Scott and the Certified Class. The burden of establishing that representation by parties to the action is inadequate is minimal. See Trbovch v. United Mine Workers of America, 404 U.S. 528, 538 n. 10 (1972)("The requirement of the Rule is satisfied if the applicant shows that representation of his interest 'may be' inadequate; and the burden of making that showing should be treated as minimal."); Sierra Club v. Robertson, 960 F.2d 83, 85-86 (8th Cir. 1992)("The burden for making this showing should be treated as minimal."); Buchet v. ITT Consumer Fin. Corp., 845 F.Supp. 684, 689 (D. Minn. 1994)(same). Mr. Scott has made more than just a minimal showing of inadequacy; he has demonstrated inadequacy beyond reasonable doubt. At the time the motion to intervene was filed, Mr. Scott did not know the terms of the purported settlement. Given the circumstances that gave rise to the settlement, and the disparity in negotiating leverage, it seemed almost certain that the terms would prove to be a bad settlement for Mr. Scott and the Certified Class he represents. For example, the filing of the second amended complaint is suspect, given that the case had been compelled to arbitration for more than a year. The timing of events leads one to wonder if the whole reopening of the case, and stipulation to allow an amended complaint that just happens to raise the single issue that Cricket is losing in the City Class Action, isn't just a collusion to get rid of the City Class Action, perhaps at a discount. Why would Cricket, having already 23 Appeal: 17-2288 Doc: 22-1 Filed: 12/12/2017 Pg: 31 of 40 Total Pages:(31 of 466) successfully forced the entire Bond Class Action into arbitration, agree to reopen to allow an amendment for the purpose of compelling the amended claim into arbitration? Mr. Bond, on the other hand, had every reason to cooperate. Before the second amended complaint and the purported settlement, all he had was a single forced arbitration, which he did not even pursue although more than a year elapsed after he was ordered to arbitrate. Why wouldn't he cooperate in exchange for a nationwide class settlement? And all of this just 3 days after the Baltimore City Circuit Court lifted the stay in the City Class Action to continue litigation. Moreover, Mr. Bond knew of several arguments that could have been raised in opposing compelled arbitration, that should have been made, and were in fact made by Mr. Scott in the City Class Action. Yet, with knowledge of these successful arguments, Mr. Bond stipulated that he would not raise them in opposition to Cricket's second motion to compel arbitration. It is from this weak position that he negotiated the settlement that is now before the District Court. Now that the settlement has been filed in the District Court, it is far worse than imagined. The proposed settlement would place the proposed class members in a worse position than they would be in with no settlement at all. The settlement provides a choice of three options, from which class members must choose one, in exchange for providing a general release: 24 Appeal: 17-2288 Doc: 22-1 Filed: 12/12/2017 Pg: 32 of 40 Total Pages:(32 of 466) "Unlock Benefit" – under this first option, "Cricket would unlock any Qualifying Cricket CDMA Phone of the Settlement Class Member." But Cricket is already required to unlock those phones – with or without a settlement. That is because AT&T – of which Cricket is a part – is a signatory to the Consumer Code for Wireless Service, including its "Mobile Wireless Device Unlocking Voluntary Commitment." JA 402-405. Under this "Consumer Code," AT&T has promised to "upon request…unlock prepaid mobile wireless devices no later than one year after initial activation" – JA 410-411 – but under the proposed settlement, putative class members would be required to complete a detailed claim form and give a general release in exchange for what they could get "upon request" and without a release in the absence of the settlement. "Data Benefit" – this second option includes two purported benefits: 1) no "activation fee" for a new line, and (2) one "free" gigabyte of data if the line is maintained for a month. Both of these "benefits" again provide less than a putative class member could get without the settlement. First, the purported benefit of "no activation fee" is available to all Cricket customers. JA 412 (stating "$0" for online "Activation Fee"). The only activation fee Cricket charges is "In Store," see id., and "In Store" activation is not an option for putative settlement class members. See JA 378 (requiring activation "through a website or toll-free number specifically designated by Cricket.") 25 Appeal: 17-2288 Doc: 22-1 Filed: 12/12/2017 Pg: 33 of 40 Total Pages:(33 of 466) Second, the "free" gigabyte of data would be only available to putative class members who signed up for Cricket's 2 GB or 5 GB per month plans – "additional" data is not available for the "talk and text" plan (which has no high speed data to begin with), and "additional" data is, of course, not available on Cricket's "Unlimited" data plans. JA 417. And even for the limited group that can use "additional" data, an additional 1 GB of data is worth no more than $3.33. That is because a 2 GB plan costs $40, and three GB more (a 5 GB plan) costs only $10 more (the plans can be changed from month to month) – so each additional gigabyte costs no more than an additional $3.33.4 But – if a customer simply signed up with Cricket, absent the settlement, they would get a $5.00 per month discount for using Auto Pay, and that Auto Pay discount does not appear to be available to class members. See JA 419, ¶ III.6 (stating that it "may not be combined with any other offer or rate plan discount.") So, all things considered, the Data "Benefit" actually would cost class members almost $2.00 – it would provide no "benefit" at all. "Four Month Data Benefit" – this "benefit" is even worse. The difference between the "Four Month Data Benefit" and the "Data Benefit" is that the "Four Month Data Benefit" has four months of the 1 GB "additional" data, but does not include the "no activation fee" provision, indicating that it requires an 4 Cricket's "Unlimited" plans start at $15 more than the 5GB plan - so the difference cost of one additional GB for a 5GB plan holder is worth something even less than $3.33. 26 Appeal: 17-2288 Doc: 22-1 Filed: 12/12/2017 Pg: 34 of 40 Total Pages:(34 of 466) activation fee. As noted above, however, activation fees are not required for the general public unless they activate in-store (and Class members are not allowed to activate in-store) – so class members, by being required to pay an activation fee for a non-"In Store" activation, would be worse off than the general public. In addition, they would get four months of the same losses that are caused by the "Data Benefit" as described above. In short, the proposed class would be worse off than with no settlement, and, in addition, would be deemed to have released Cricket from all causes of action. Although Class members would receive not a dime, Mr. Bond would get thousands of dollars, and Mr. Bond's counsel would get hundreds of thousands of dollars. JA 381-382. Moreover, it appears that the settlement is not even valid. According to the preliminary approval motion, the settlement is contingent upon the District Court vacating the class certification decision rendered in the City Class Case. JA 315. The plain implication is that the District Court should vacate the City Class Case class certification in order to allow the presently proposed settlement to proceed. But a settlement contingent on vacating an order is not valid – because the party seeking vacatur is seeking to "voluntarily forfeit[]his legal remedy by the ordinary processes of appeal or certiorari, thereby surrendering his claim to the equitable remedy of vacatur. The judgment is not unreviewable, but simply unreviewed by his own 27 Appeal: 17-2288 Doc: 22-1 Filed: 12/12/2017 Pg: 35 of 40 Total Pages:(35 of 466) choice." U.S. Bancorp Mortg. Co. v. Bonner Mall P'ship, 513 U.S. 18, 25 (1994). As a result, "A '[s]ettlement [a]greement which [is] contingent on the vacatur of [a prior] district court judgment' is 'held to be invalid in nearly all circumstances by the Supreme Court [in U.S. Bancorp].'" ATSI Commc'ns, Inc. v. Shaar Fund, Ltd, 547 F.3d 109, 114 (2d Cir. 2008) (quoting In re Tamoxifen Citrate Antitrust Litig., 466 F.3d 187, 194 (2d Cir.2006) (emphasis omitted), cert. denied, 551 U.S. 1144 (2007)). The U.S. Bancorp rule is not susceptible to evasion by creative lawyering: what matters is the remedy sought, not how the parties seek it. The Second Circuit has rejected the notion that the parties can avoid the U.S. Bancorp rule through creative lawyering, see ATSI Comm'cns, 547 F.3d at 113 ("The parties cannot change that result by sleight of the draftsman's hand—making the settlement contingent upon, rather than in contemplation of, vacatur.") Redeemer Comm. of Highland Credit Strategies Funds v. Highland Capital Mgmt., L.P., 253 F. Supp. 3d 722, 724 (S.D.N.Y. 2017)(emphasis supplied). Accordingly, the creative attempt by Mr. Bond and Cricket to make their settlement contingent on the vacatur of a decision which Cricket is seeking to have reviewed in another case (i.e, the "City Class Case") cannot evade the U.S. Bancorp rule. The settlement is not only inadequate, it is invalid. 28 Appeal: 17-2288 Doc: 22-1 Filed: 12/12/2017 Pg: 36 of 40 Total Pages:(36 of 466) VI. CONCLUSION For the reasons stated, the Order of the District Court denying Mr. Scott's motion to intervene must be REVERSED. Respectfully submitted, /s/Martin E. Wolf Benjamin H. Carney BCarney@GWCfirm.com Martin E. Wolf MWolf@GWCfirm.com GORDON, WOLF & CARNEY, CHTD. 100 W. Pennsylvania Ave., Suite 100 Towson, Maryland 21204 410-825-2300 410-825-0066 fax Attorneys for Michael Scott and the Certified Class 29 Appeal: 17-2288 Doc: 22-1 Filed: 12/12/2017 Pg: 37 of 40 Total Pages:(37 of 466) CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 12th day of December, 2017, copies of the foregoing Brief of Potential Intervenor-Appellant and the Joint Appendix were served by ECF on counsel for the Parties as set forth below: Cory L. Zajdel Archis A. Parasharami Z Law LLC Matthew A. Waring 2345 York Road, Suite B-13 Mayer Brown LLP Timonium, Maryland 21093 1999 K St. NW Washington, DC 20006 Attorneys for Plaintiff-Appellee Attorneys for Defendant-Appellee Tim Bond Cricket Communications, LLC /s/Martin E. Wolf Martin E. Wolf 30 Appeal: 17-2288 Doc: 22-1 Filed: 12/12/2017 Pg: 38 of 40 Total Pages:(38 of 466) UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT Effective 12/01/2016 17-2288 No. ____________ Michael A. Scott v. Tim Bond, et al. Caption: __________________________________________________ CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT Type-Volume Limit, Typeface Requirements, and Type-Style Requirements Type-Volume Limit for Briefs: Appellant's Opening Brief, Appellee's Response Brief, and Appellant's Response/Reply Brief may not exceed 13,000 words or 1,300 lines. Appellee's Opening/Response Brief may not exceed 15,300 words or 1,500 lines. A Reply or Amicus Brief may not exceed 6,500 words or 650 lines. Amicus Brief in support of an Opening/Response Brief may not exceed 7,650 words. Amicus Brief filed during consideration of petition for rehearing may not exceed 2,600 words. Counsel may rely on the word or line count of the word processing program used to prepare the document. The word-processing program must be set to include headings, footnotes, and quotes in the count. Line count is used only with monospaced type. See Fed. R. App. P. 28.1(e), 29(a)(5), 32(a)(7)(B) & 32(f). Type-Volume Limit for Other Documents if Produced Using a Computer: Petition for permission to appeal and a motion or response thereto may not exceed 5,200 words. Reply to a motion may not exceed 2,600 words. Petition for writ of mandamus or prohibition or other extraordinary writ may not exceed 7,800 words. Petition for rehearing or rehearing en banc may not exceed 3,900 words. Fed. R. App. P. 5(c)(1), 21(d), 27(d)(2), 35(b)(2) & 40(b)(1). Typeface and Type Style Requirements: A proportionally spaced typeface (such as Times New Roman) must include serifs and must be 14-point or larger. A monospaced typeface (such as Courier New) must be 12-point or larger (at least 10½ characters per inch). Fed. R. App. P. 32(a)(5), 32(a)(6). This brief or other document complies with type-volume limits because, excluding the parts of the document exempted by Fed. R. App. R. 32(f) (cover page, disclosure statement, table of contents, table of citations, statement regarding oral argument, signature block, certificates of counsel, addendum, attachments): [✔] this brief or other document contains 7,210 [state number of] words [ ] this brief uses monospaced type and contains [state number of] lines This brief or other document complies with the typeface and type style requirements because: [✔] this brief or other document has been prepared in a proportionally spaced typeface using Word for Mac 15.24 [identify word processing program] in Baskerville 14 pt. [identify font size and type style]; or [ ] this brief or other document has been prepared in a monospaced typeface using [identify word processing program] in [identify font size and type style]. (s) Martin E. Wolf Party Name Michael A. Scott Dated: 12/12/2017 Print Save Reset Form 11/14/2016 SCC Appeal: 17-2288 Doc: 22-1 Filed: 12/12/2017 Pg: 39 of 40 Total Pages:(39 of 466) STATUTORY ADDENDUM Appeal: 17-2288 Doc: 22-1 Filed: 12/12/2017 Pg: 40 of 40 Total Pages:(40 of 466) FEDERAL RULE OF CIVIL PROCEDURE 24(a)(2) (a) Intervention of Right. On timely motion, the court must permit anyone to intervene who: * * * (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest. Stat.Add. 1 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 1 of 426 Total Pages:(41 of 466) No. 17-2288 UNITED STATES COURT OF APPEALS For the Fourth Circuit _______________ MICHAEL A. SCOTT, Potential Intervenor-Appellant, v. TIM BOND, on his own behalf and on behalf of all others similarly situated, Plaintiff-Appellee, and CRICKET COMMUNICATIONS, LLC, Defendant-Appellee, and AT&T INC., Defendant. _______________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND (The Honorable Marvin J. Garbis) _______________ JOINT APPENDIX _______________ Benjamin H. Carney Cory Lev Zajdel Archis A. Parasharami Martin E. Wolf Z LAW, LLC Matthew A. Waring GORDON, WOLF & CARNEY, CHTD. Suite B-13 MAYER BROWN, LLP 100 W. Pennsylvania Avenue, Suite 100 2345 York Road 1999 K Street, NW Towson, Maryland 21204 Timonium, MD 21093 Washington, DC 20006 Tel. 410-825-2300 Tel. 443-213-1977 Tel. 202-263-3000 Fax. 410-825-0066 Fax. 202-263-3300 Counsel for Potential Intervenor-Appellant Counsel for Plaintiff-Appellee Counsel for Defendant-Appellee Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 2 of 426 Total Pages:(42 of 466) TABLE OF CONTENTS Page Docket Sheet ............................................................................................................ 1 Memorandum and Order Denying Motion to Intervene........................................ 8 Complaint .............................................................................................................. 25 First Amended Class Action Complaint ................................................................ 47 Motion to Compel Arbitration .............................................................................. 69 Memorandum Opinion granting Motion to Compel Arbitration ......................... 72 Order granting Motion to Compel Arbitration .................................................... 82 Motion Requesting Leave to File Second Amended Complaint ........................... 83 Declaration of Cory L. Zajdel .................................................................... 87 Second Amended Class Action Complaint................................................ 91 Redlined First Amended Class Action Complaint................................... 115 Stipulation Concerning Motion for Leave to File Second Amended Complaint ............................................................................... 139 Marginal Order granting Stipulation re Motion for Leave to File Second Amended Complaint .............................................................................. 143 Order Granting Motion for Leave to File Second Amended Complaint ............ 147 Second Amended Class Action Complaint.......................................................... 148 Redlined First Amended Class Action Complaint............................................... 172 Motion to Compel Arbitration ............................................................................ 196 August 11, 2017 Correspondence ........................................................................ 199 Motion to Intervene ............................................................................................. 200 i Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 3 of 426 Total Pages:(43 of 466) Proposed Intervention Complaint ....................................................................... 203 Attachments to Opposition to Motion to Intervene by Tim Bond: Declaration of Cory L. Zajdel .............................................................................. 215 Judge Legg Letter ................................................................................................. 217 Declaration of Martin E. Wolf ............................................................................. 218 Attachments to Opposition to Motion to Intervene by Cricket Communications, LLC: Transcript of Official Proceedings in Scott Case ................................................. 231 Order Granting Class Certification in Scott Case ............................................... 297 Order Denying Cricket's Motion to Compel Arbitration in Scott Case ....................................................................... 305 Notice of Appeal .................................................................................................. 308 Joint Status Report ............................................................................................... 310 Motion for Stay Pending Appeal ......................................................................... 312 Motion for Preliminary Approval ........................................................................ 314 Memorandum in Support of Motion for Preliminary Approval ......................... 317 Proposed Order Preliminarily Approving Settlement ......................................... 333 Proposed Notices.................................................................................................. 341 Stipulation and Agreement of Settlement ............................................................ 368 Exhibits to the Reply in Support of Motion for Stay Pending Appeal: Mobile Wireless Device Unlocking Voluntary Commitment Letter ............................................................................ 402 CTIA Consumer Code for Wireless Service........................................................ 406 Cricket Charges and Fees .................................................................................... 412 Cricket Add-On Features..................................................................................... 415 Cricket Auto Pay Service Credit Program Terms and Conditions .......................................................................... 418 ii Appeal: 17-2288 Doc: 22-2 District of Maryland (CM/ECF Live 6.1) Filed: 12/12/2017 Pg: 4 of 426 Total Pages:(44 of 466) 11/14/17, 2(30 PM APPEAL U.S. District Court District of Maryland (Baltimore) CIVIL DOCKET FOR CASE #: 1:15-cv-00923-MJG Bond v. Cricket Communications, LLC Date Filed: 03/31/2015 Assigned to: Judge Marvin J. Garbis Jury Demand: Plaintiff Case in other court: Fourth Circuit Court of Appeals, 17-02288 Nature of Suit: 190 Contract: Other Cause: 28:1332 Diversity-Other Contract Jurisdiction: Diversity Plaintiff Tim Bond represented by Cory L Zajdel on his own behalf and on behalf of all Z Law LLC others similarly situated 2345 York Road, Suite B-13 Timonium, MD 21093 14432131977 Email: clz@zlawmaryland.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Catherine Anderson Giskan Solotaroff Anderson and Stewart LLP 11 Broadway Ste 2150 New York, NY 1004 2128478315 Email: canderson@gslawny.com TERMINATED: 10/15/2016 PRO HAC VICE ATTORNEY TO BE NOTICED Oren S. Giskan Giskan Solotaroff Anderson and Stewart LLP 11 Broadway Ste 2150 New York, NY 10004 2128478315 Email: ogiskan@gslawny.com TERMINATED: 10/15/2016 PRO HAC VICE ATTORNEY TO BE NOTICED https://ecf.mdd.uscourts.gov/cgi-bin/DktRpt.pl?713353178015434-L_1_0-1 Page 1 of 7 JA 1 Appeal: 17-2288 Doc: 22-2 District of Maryland (CM/ECF Live 6.1) Filed: 12/12/2017 Pg: 5 of 426 Total Pages:(45 of 466) 11/14/17, 2(30 PM Plaintiff Mr. Michael A Scott represented by Martin Eugene Wolf Intervenor/Plaintiff Gordon, Wolf & Carney, Chtd 100 W Pennsylvania Ave Ste 100 Towson, MD 21204 14108252300 Fax: 14108250066 Email: mwolf@GWCfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Benjamin Howard Carney Gordon, Wolf & Carney, Chtd 100 W Pennsylvania Ave Ste 100 Towson, MD 21204 14108252300 Fax: 14108250066 Email: bcarney@GWCfirm.com ATTORNEY TO BE NOTICED V. Defendant AT&T Inc TERMINATED: 05/08/2015 Defendant Cricket Communications, LLC represented by John Edward McCann, Jr Miles and Stockbridge PC 100 Light St Baltimore, MD 21202 14103853586 Fax: 14103853700 Email: jmccann@milesstockbridge.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Ann Marie Duffy Mayer Brown 1999 K St NW Washington, DC 20006 2022633418 Fax: 2022635318 Email: aduffy@mayerbrown.com ATTORNEY TO BE NOTICED https://ecf.mdd.uscourts.gov/cgi-bin/DktRpt.pl?713353178015434-L_1_0-1 Page 2 of 7 JA 2 Appeal: 17-2288 Doc: 22-2 District of Maryland (CM/ECF Live 6.1) Filed: 12/12/2017 Pg: 6 of 426 Total Pages:(46 of 466) 11/14/17, 2(30 PM Archis A. Parasharami Mayer Brown LLP 1999 K Street NW Washington, DC 20006 202-263-3328 Fax: 202-263-5328 Email: aparasharami@mayerbrown.com ATTORNEY TO BE NOTICED Daniel R Lanier Miles and Stockbridge PC 100 Light St Baltimore, MD 21202 14103853651 Fax: 14103853700 Email: dlanier@milesstockbridge.com ATTORNEY TO BE NOTICED Lynn C Schlie Miles and Stockbridge PC 100 Light St Baltimore, MD 21202 4103853865 Fax: 14107739156 Email: lschlie@milesstockbridge.com ATTORNEY TO BE NOTICED Date Filed # Docket Text 03/31/2015 1 COMPLAINT against AT&T Inc (Filing fee $ 400 receipt number 0416-5301338.), filed by Tim Bond. (Attachments: # 1 Civil Cover Sheet, # 2 Summons)(Zajdel, Cory) (Entered: 03/31/2015) 03/31/2015 2 Summons Issued 21 days as to AT&T Inc. (jnls, Deputy Clerk) (Entered: 03/31/2015) 05/08/2015 3 AMENDED COMPLAINT against Cricket Communications, LLC, filed by Tim Bond. (Attachments: # 1 Amended Complaint with Tracked Changes, # 2 Summons for Cricket Communications, LLC)(Zajdel, Cory) (Entered: 05/08/2015) 05/11/2015 4 Summons Issued 21 days as to Cricket Communications, LLC. (jnls, Deputy Clerk) (Entered: 05/11/2015) 06/05/2015 5 FILED IN ERROR - AFFIDAVIT of Service for Summons, Civil Cover Sheet and First Amended Class Action Complaint served on Archis A. Parasharami, Esq. on June 5, 2015, filed by Tim Bond. (Zajdel, Cory) Modified on 6/5/2015 (jnls, Deputy Clerk). (Entered: 06/05/2015) 06/05/2015 6 QC NOTICE: 5 Affidavit of Service filed by Tim Bond was filed incorrectly. ***Please https://ecf.mdd.uscourts.gov/cgi-bin/DktRpt.pl?713353178015434-L_1_0-1 Page 3 of 7 JA 3 Appeal: 17-2288 Doc: 22-2 District of Maryland (CM/ECF Live 6.1) Filed: 12/12/2017 Pg: 7 of 426 Total Pages:(47 of 466) 11/14/17, 2(30 PM re-file documents by selecting Service of Process > Summons Returned Executed. It has been noted as FILED IN ERROR, and the document link has been disabled. (jnls, Deputy Clerk) (Entered: 06/05/2015) 06/05/2015 7 SUMMONS Returned Executed by Tim Bond. Cricket Communications, LLC served on 6/5/2015, answer due 6/26/2015. (Zajdel, Cory) (Entered: 06/05/2015) 06/15/2015 8 NOTICE of Appearance by Ann Marie Duffy on behalf of Cricket Communications, LLC (Duffy, Ann) (Entered: 06/15/2015) 06/16/2015 9 STIPULATION to Extend Time to Respond to First Amended Class Action Complaint by Tim Bond. (Zajdel, Cory) (Entered: 06/16/2015) 06/16/2015 10 MOTION to Appear Pro Hac Vice for Catherine Anderson (Filing fee $ 50, receipt number 0416-5442358.) by Tim Bond (Zajdel, Cory) (Entered: 06/16/2015) 06/16/2015 11 MOTION to Appear Pro Hac Vice for Oren Giskan (Filing fee $ 50, receipt number 0416-5442416.) by Tim Bond (Zajdel, Cory) (Entered: 06/16/2015) 06/16/2015 12 PAPERLESS ORDER granting 10 Motion to Appear Pro Hac Vice on behalf of Catherine Anderson. Directing attorney Catherine Anderson to register online for CM/ECF at https://www.mdd.uscourts.gov/attyregB/inputProHac.asp. Signed by Clerk on 6/16/2015. (bu, Deputy Clerk) (Entered: 06/16/2015) 06/16/2015 13 PAPERLESS ORDER granting 11 Motion to Appear Pro Hac Vice on behalf of Oren S. Giskan. Directing attorney Oren S. Giskan to register online for CM/ECF at https://www.mdd.uscourts.gov/attyregB/inputProHac.asp. Signed by Clerk on 6/16/2015. (bu, Deputy Clerk) (Entered: 06/16/2015) 06/17/2015 14 MARGINAL ORDER approving 9 Stipulation to extend time to respond to first amended complaint filed by Tim Bond. Signed by Judge William D Quarles, Jr on 6/17/2015. (jnls, Deputy Clerk) (Entered: 06/17/2015) 07/13/2015 15 MOTION to Compel Arbitration, MOTION to Stay Proceedings Pending Outcome of Arbitration by Cricket Communications, LLC Responses due by 7/30/2015 (Attachments: # 1 Memorandum in Support, # 2 Basham Declaration, # 3 Index of Exhibits to Basham Declaration, # 4 Exhibit 1, # 5 Exhibit 2, # 6 Exhibit 3, # 7 Exhibit 4, # 8 Exhibit 5, # 9 Exhibit 6, # 10 Webb Declaration, # 11 Exhibit 1)(Duffy, Ann) (Entered: 07/13/2015) 08/14/2015 16 RESPONSE in Opposition re 15 MOTION to Compel Arbitration MOTION to Stay Proceedings Pending Outcome of Arbitration filed by Tim Bond. Replies due by 8/31/2015. (Attachments: # 1 Declaration of Tim Bond)(Zajdel, Cory) (Entered: 08/14/2015) 09/04/2015 17 REPLY to Response to Motion re 15 MOTION to Compel Arbitration MOTION to Stay Proceedings Pending Outcome of Arbitration filed by Cricket Communications, LLC. (Duffy, Ann) (Entered: 09/04/2015) 01/12/2016 18 MEMORANDUM OPINION. Signed by Judge William D Quarles, Jr on 1/12/2016. (jnls, Deputy Clerk) (Entered: 01/12/2016) 01/12/2016 https://ecf.mdd.uscourts.gov/cgi-bin/DktRpt.pl?713353178015434-L_1_0-1 Page 4 of 7 JA 4 Appeal: 17-2288 Doc: 22-2 District of Maryland (CM/ECF Live 6.1) Filed: 12/12/2017 Pg: 8 of 426 Total Pages:(48 of 466) 11/14/17, 2(30 PM 01/12/2016 19 ORDER granting 15 Motion of defendant to Compel Arbitration and to stay proceedings pending the outcome of arbitration; Administratively closing this case. Signed by Judge William D Quarles, Jr on 1/12/2016. (jnls, Deputy Clerk) (Entered: 01/12/2016) 06/28/2016 20 NOTICE of Change of Address by Cory L Zajdel (Zajdel, Cory) (Entered: 06/28/2016) 02/10/2017 21 MOTION for Leave to File Second Amended Class Action Complaint by Tim Bond (Attachments: # 1 Affidavit of Cory L. Zajdel, # 2 Second Amended Complaint - Cleaned, # 3 Second Amended Complaint - Redlined)(Zajdel, Cory) (Entered: 02/10/2017) 02/15/2017 22 NOTICE of Appearance by John Edward McCann, Jr on behalf of Cricket Communications, LLC (McCann, John) (Entered: 02/15/2017) 02/15/2017 23 NOTICE of Appearance by Daniel R Lanier on behalf of Cricket Communications, LLC (Lanier, Daniel) (Entered: 02/15/2017) 02/15/2017 Case reassigned to Judge Marvin J. Garbis. Judge William D Quarles, Jr no longer assigned to the case. (cags, Deputy Clerk) (Entered: 02/15/2017) 02/17/2017 24 NOTICE of Appearance by Lynn C Schlie on behalf of Cricket Communications, LLC (Schlie, Lynn) (Entered: 02/17/2017) 02/21/2017 25 NOTICE of Appearance by Archis A. Parasharami on behalf of Cricket Communications, LLC (Parasharami, Archis) (Entered: 02/21/2017) 02/24/2017 26 STIPULATION re 21 MOTION for Leave to File Second Amended Class Action Complaint by Cricket Communications, LLC(Parasharami, Archis) (Entered: 02/24/2017) 02/27/2017 27 MARGINAL ORDER Approving 26 Stipulation concerning 21 Motion for Leave to File Second Amended Complaint filed by Cricket Communications, LLC. Signed by Judge Marvin J. Garbis on 2/27/2017. (jnls, Deputy Clerk) (Entered: 02/27/2017) 03/08/2017 28 ORDER granting 21 Motion for Leave to File Second Amended Class Action Complaint by Tim Bond. Signed by Judge Marvin J. Garbis on 3/7/2017. (jnls, Deputy Clerk) (Entered: 03/08/2017) 03/08/2017 29 SECOND AMENDED COMPLAINT against Cricket Communications, LLC, filed by Tim Bond. (Attachments: # 1 Redline Amended Complaint)(jnls, Deputy Clerk) (Entered: 03/08/2017) 03/10/2017 30 STIPULATION Concerning Briefing Schedule by Cricket Communications, LLC(Parasharami, Archis) (Entered: 03/10/2017) 03/10/2017 31 MARGINAL ORDER Approving 30 Stipulation Concerning Briefing Schedule filed by Cricket Communications, LLC. Signed by Judge Marvin J. Garbis on 3/10/2017. (jnls, Deputy Clerk) (Entered: 03/13/2017) 04/26/2017 32 STIPULATION Concerning Briefing Schedule by Cricket Communications, LLC(Parasharami, Archis) (Entered: 04/26/2017) 04/26/2017 https://ecf.mdd.uscourts.gov/cgi-bin/DktRpt.pl?713353178015434-L_1_0-1 Page 5 of 7 JA 5 Appeal: 17-2288 Doc: 22-2 District of Maryland (CM/ECF Live 6.1) Filed: 12/12/2017 Pg: 9 of 426 Total Pages:(49 of 466) 11/14/17, 2(30 PM 04/26/2017 33 MARGINAL ORDER Approving 32 Stipulation Concerning Briefing Schedule by Cricket Communications, LLC. Signed by Judge Marvin J. Garbis on 4/26/2017. (jnls, Deputy Clerk) (Entered: 04/26/2017) 05/02/2017 34 MOTION to Compel Arbitration, MOTION to Stay Proceedings Pending Outcome of Arbitration by Cricket Communications, LLC (Attachments: # 1 Memorandum in Support)(Parasharami, Archis) (Entered: 05/02/2017) 05/25/2017 35 STIPULATION Concerning Briefing Schedule by Tim Bond(Zajdel, Cory) (Entered: 05/25/2017) 05/26/2017 36 Marginal ORDER APPROVING 35 Stipulation Concerning Briefing Schedule filed by Tim Bond. Signed by Judge Marvin J. Garbis on 5/25/2017. (hmls, Deputy Clerk) (Entered: 05/26/2017) 06/09/2017 37 RESPONSE in Opposition re 34 MOTION to Compel Arbitration MOTION to Stay Proceedings Pending Outcome of Arbitration filed by Tim Bond.(Zajdel, Cory) (Entered: 06/09/2017) 06/21/2017 38 Consent MOTION for Extension of Time to File Response/Reply as to 37 Response in Opposition to Motion by Cricket Communications, LLC(Parasharami, Archis) (Entered: 06/21/2017) 06/21/2017 39 MARGINAL ORDER granting 38 Consent Motion for Extension of Time. Signed by Judge Marvin J. Garbis on 6/21/2017. (jnls, Deputy Clerk) (Entered: 06/21/2017) 07/14/2017 40 REPLY to Response to Motion re 34 MOTION to Compel Arbitration MOTION to Stay Proceedings Pending Outcome of Arbitration filed by Cricket Communications, LLC.(Parasharami, Archis) (Entered: 07/14/2017) 08/11/2017 41 Correspondence re: Bond v. Cricket Communications, LLC (Parasharami, Archis) (Entered: 08/11/2017) 08/24/2017 42 MOTION to Intervene by Michael A Scott (Attachments: # 1 Memorandum in Support, # 2 Exhibit Intervention Complaint)(Carney, Benjamin) (Entered: 08/24/2017) 09/07/2017 43 RESPONSE in Opposition re 42 MOTION to Intervene filed by Tim Bond. (Attachments: # 1 Declaration of Cory L. Zajdel, # 2 Judge Legg Letter, # 3 Declaration of Martin E. Wolf)(Zajdel, Cory) (Entered: 09/07/2017) 09/07/2017 44 RESPONSE in Opposition re 42 MOTION to Intervene filed by Cricket Communications, LLC. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C) (Parasharami, Archis) (Entered: 09/07/2017) 09/21/2017 45 REPLY to Response to Motion re 42 MOTION to Intervene Movant/Intervenor's Reply Memorandum in Support of His Motion to Intervene filed by Michael A Scott.(Wolf, Martin) (Entered: 09/21/2017) 10/05/2017 46 Correspondence re: Supplemental Authority Supporting Mr. Scott's Motion to Intervene (Carney, Benjamin) (Entered: 10/05/2017) 10/26/2017 47 MEMORANDUM AND ORDER denying 42 Motion of Michael Scott to Intervene; the Court shall defer ruling on Cricket's 34 Motion to Compel Arbitration; Status Report https://ecf.mdd.uscourts.gov/cgi-bin/DktRpt.pl?713353178015434-L_1_0-1 Page 6 of 7 JA 6 Appeal: 17-2288 Doc: 22-2 District of Maryland (CM/ECF Live 6.1) Filed: 12/12/2017 Pg: 10 of 426 Total Pages:(50 of 466) 11/14/17, 2(30 PM due 11/2/2017. Signed by Judge Marvin J. Garbis on 10/26/2017. (jnls, Deputy Clerk) (Entered: 10/26/2017) 11/01/2017 48 NOTICE OF APPEAL as to 47 Memorandum and Order,, Order on Motion to Intervene, by Michael A Scott. Filing fee $ 505, receipt number 0416-6977013.(Wolf, Martin) (Entered: 11/01/2017) 11/02/2017 49 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 48 Notice of Appeal. IMPORTANT NOTICE: To access forms which you are required to file with the United States Court of Appeals for the Fourth Circuit please go to http://www.ca4.uscourts.gov and click on Forms & Notices.(slss, Deputy Clerk) (Entered: 11/02/2017) 11/02/2017 50 USCA Case Number 17-2288 for 48 Notice of Appeal filed by Michael A Scott. Case Manager - Ashley Brownlee (slss, Deputy Clerk) (Entered: 11/02/2017) 11/02/2017 51 STATUS REPORT (Joint) by Cricket Communications, LLC(Parasharami, Archis) (Entered: 11/02/2017) 11/03/2017 52 MOTION to Stay re 48 Notice of Appeal Motion to Stay Pending Appeal by Michael A Scott (Attachments: # 1 Memorandum of Law in Support)(Carney, Benjamin) (Entered: 11/03/2017) PACER Service Center Transaction Receipt 11/14/2017 14:29:32 PACER Client keckroad:5354193:3834897 Login: Code: Search 1:15-cv-00923- Description: Docket Report Criteria: MJG Billable 5 Cost: 0.50 Pages: https://ecf.mdd.uscourts.gov/cgi-bin/DktRpt.pl?713353178015434-L_1_0-1 Page 7 of 7 JA 7 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 11 of 426 Total Pages:(51 of 466) 7 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND TIM BOND, on his own behalf * and on behalf of all others similarly situated * Plaintiffs * vs. * CIVIL ACTION NO. MJG-15-923 CRICKET COMMUNICATIONS, LLC * Defendant * * * * * * * * * * MEMORANDUM AND ORDER RE: INTERVENE The Court has before it Michael Scott's Motion to Intervene [ECF No. 42] and the materials submitted relating thereto. The Court has considered the materials submitted by the parties and finds a hearing unnecessary. I. BACKGROUND Plaintiff, Tim Bond ("Bond") filed this putative class action against Defendant Cricket Communications, LLC ("Cricket")1 on May 8, 2015. On September 24, 2015, Michael A. Scott ("Scott") filed a putative class action against Cricket in the 1 Bond's initial Class Action Complaint [ECF No. 1] was filed on March 31, 2015 against AT&T Inc. ("AT&T"), but Bond substituted Cricket as Defendant in the First Amended Class Action Complaint [ECF No. 3] on May 8, 2015. AT&T announced its agreement to acquire Cricket Communications Inc. on July 12, 2013. After acquiring Cricket Communications Inc., AT&T formed Cricket Communications, LLC to carry on the business of the former company. 1 JA 8 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 12 of 426 Total Pages:(52 of 466) 7 Circuit Court for Baltimore City. Scott's lawsuit was removed to this Court, remanded back to state court, appealed, and then remanded back to federal court. Scott now seeks to intervene in Bond's lawsuit on his own behalf and on behalf of the certified class he represents. A more detailed discussion of the factual and procedural background for both cases will provide relevant context for the instant determination. A. Factual Background2 After its acquisition by AT&T in 2013, Cricket offered for sale and sold cellphones3 that operate exclusively on a 3G CDMA4 cellular network. However, AT&T and Cricket had decided to discontinue the CDMA network and require Cricket customers to use AT&T's GSM5 cellular network. The cellphones cost hundreds of dollars each and were marketed as including "unsurpassed nationwide coverage." Class Action Compl. ¶¶ 26-28, ECF No. 2, GLR-15-3330 ("Scott Compl."). But the cellphones sold by Cricket cannot be transferred from the CDMA network to the GSM network. The cellphones were also "locked" by Cricket so they 2 The "facts" herein are as alleged by Plaintiff and are not necessarily agreed upon by Defendants. 3 Both Bond and Scott refer specifically to Samsung Galaxy S4 mobile telephones. 4 CDMA refers to Code Division Multiple Access technology. 5 GSM refers to Global Systems for Mobile technology. 2 JA 9 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 13 of 426 Total Pages:(53 of 466) 7 cannot be used on another cellphone service provider's network. In other words, the cellphones became useless and worthless. B. Bond's Lawsuit Bond initially filed his lawsuit on March 31, 2015 against AT&T, but amended his complaint on May 8, 2015 to substitute Cricket as the Defendant. Class Action Compl., ECF No. 1, First Am. Class Action Compl. ("FAC"), ECF No. 3. Bond seeks to represent a class defined as "[a]ll persons nationwide during the period July 12, 2013 to the present who purchased a CDMA handset from Cricket or through its authorized agents." FAC ¶ 41. In the FAC, Bond alleged six causes of action:  Count I – Breach of Implied Warranty of Merchantability  Count II – Fraudulent Concealment  Count III – Money Had and Received/Unjust Enrichment  Count IV – Negligent Misrepresentation  Count V – Maryland Consumer Protection Act  Count VI – Fraud On July 13, 2015, Cricket moved to compel arbitration and stay proceedings pending the outcome of arbitration. Mot. Compel, ECF No. 15. Judge Quarles of this Court granted the motion on January 12, 2016 and stayed the case pending the 3 JA 10 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 14 of 426 Total Pages:(54 of 466) 7 outcome of arbitration. Mem. Opinion and Order, ECF Nos. 18, 19. Neither Bond nor Cricket initiated arbitration. Almost a year later, on December 9, 2016, Bond contacted Cricket's counsel to request consent for leave to amend the complaint. After receiving no response, Bond contacted Cricket's counsel again on January 12, 2017 and was notified that Cricket would not consent. On February 17, 2017, Bond filed a Motion Requesting Leave to File Second Amended Class Action Complaint [ECF No. 21], which added Count VII for Violations of the Magnusson-Moss Warranty Act ("MMWA"). Although Counts I through VI remained in the proposed Second Amended Class Action Complaint ("SAC"), Bond stated his understanding that those causes of action were subject to arbitration but that he could not be compelled to arbitrate the MMWA claim. Mot. Leave 2-3, ECF No. 21. After the parties met and conferred concerning Bond's motion, on February 24, 2017, Bond and Cricket filed the Stipulation Concerning Plaintiff's Motion for Leave to File Second Amended Complaint [ECF No. 26]. Therein, the parties agreed to the following:  Bond agreed to seek leave to file his SAC solely to pursue a new claim under the federal MMWA, 4 JA 11 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 15 of 426 Total Pages:(55 of 466) 7  Bond agreed that he was bound to arbitrate Counts I through VI and would not re-litigate any facts or introduce any new evidence related to arbitration or other subject and would not seek to reopen Counts I to VI,  Bond agreed that it would respond to Cricket's intended new motion to compel arbitration only on the grounds that the MMWA does not permit the claim to be arbitrated, and  Cricket agreed to not object to the stay being lifted for the sole purpose of allowing Bond to pursue the new MMWA claim. Id. The Court approved the Stipulation and granted Bond's request to file the SAC. See ECF Nos. 27, 28, 29. On May 2, 2017, Cricket filed a Motion to Compel Arbitration [ECF No. 34], and Bond responded accordingly. Bond and Cricket engaged Judge Benson Everett Legg (Ret.) to mediate a class-wide settlement. Negotiations were conducted at arms-length. Legg Ltr., ECF No. 43-2. The first mediation session was held on May 5, 2017, followed by a second session by telephone on August 2, 2017, and agreement in principle was ultimately achieved on August 5, 2017. Id. Thereafter, a letter was filed with this Court advising that a settlement agreement in principle had been reached, which would resolve the claims of a proposed nationwide class. Ltr., ECF No. 41. In the letter, Cricket advised the Court: Cricket will soon file a notice of related case in Scott v. Cricket Communications, LLC, No. 15-cv-3330 (D. Md.), identifying 5 JA 12 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 16 of 426 Total Pages:(56 of 466) 7 Scott as related to this case. Because the proposed nationwide class settlement in Bond will cover all of the claims at issue in Scott, Cricket intends to move for a partial stay of proceedings in Scott. Id. The parties also requested that the Court defer ruling on the pending motion to compel arbitration in Bond's lawsuit. Id. On August 24, Scott filed the instant motion seeking to intervene in this case "on behalf of himself and on behalf of the certified class of Maryland citizens he represents. . . ." Mot. 1, ECF No. 42. The Motion is now ripe for decision. C. Scott's Lawsuit Scott filed his lawsuit on September 24, 2015 in the Circuit Court for Baltimore City. Scott Compl. Scott defines the class as "[a]ll Maryland citizens who, between July 12, 2013 and March 13, 2014, purchased a CDMA mobile telephone from Cricket which was locked for use only on Cricket's CDMA network." Id. at ¶ 51. Scott raises a single claim for violation of the Magnusson-Moss Warranty Act, 15 U.S.C. §§ 2301 et seq., stemming from alleged breaches of express warranties and the implied warranties of merchantability and fitness for a particular purpose. Id. ¶¶ 60–66. On October 30, 2015, Cricket removed the case to federal court under the Class Action Fairness Act ("CAFA"), averring 6 JA 13 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 17 of 426 Total Pages:(57 of 466) 7 that "[r]ecords of Cricket's sales indicate that Cricket sold at least 50,000 CDMA mobile telephones that were shipped to and activated in Maryland between July 12, 2013 and March 13, 2014." Notice of Removal 3, ECF No. 1, GLR 15-1330. On November 20, 2015, Cricket notified the Court that the Bond lawsuit was a related case. Notice of Related Case, ECF No. 14, GLR-15-3330.6 On November 23, 2015, Scott filed a motion to remand the case back to the Circuit Court for Baltimore City. Motion to Remand, ECF No. 15, GLR-15-3330. Scott argued that removal was improper because Cricket had not used the proper class definition to allege CAFA jurisdiction, i.e., Scott had proposed a class limited to Maryland citizens only, but Cricket described a class of "persons whose phones were shipped to and activated in Maryland." Mem. 9, ECF No. 15-1, GLR-15-3330. On December 16, 2015, Cricket filed its Motion to Compel Arbitration [ECF No. 20, GLR-15-3330].7 6 Cricket followed up on December 2, 2015 with a Motion to Relate Case [ECF No. 16, GLR-15-3330]. Scott filed a response [ECF No. 17, GLR-15-3330] indicating that he had no objection to assigning both cases to the same Judge but otherwise disagreed that the cases were "related." 7 On November 10, 2015, Scott had filed a Complaint Petitioning to Stay Threatened Arbitration in the Circuit Court for Baltimore County, Maryland. ECF No. 2, GLR-15-3759. On December 9, 2015, Cricket removed that case to this Court and it was filed as a related case to GLR-15-3330. ECF No. 1, GLR-15- 3759. On December 2, 2015, Cricket moved to dismiss or stay the related case in GLR-15-3759, and on December 21, 2015, Scott filed a motion to remand the case back to state court. 7 JA 14 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 18 of 426 Total Pages:(58 of 466) 7 On August 19, 2016, Judge Russell of this Court granted Scott's motions to remand and denied Cricket's motions as moot. Judge Russell determined that Cricket had failed to carry its evidentiary burden to present sufficient facts to prove federal jurisdiction because the proposed class includes only Maryland citizens, but Cricket's evidence pertained only to Maryland residents. Mem. Opinion 18, ECF No. 33, GLR-15-3330. On August 29, 2016, Cricket filed a petition for permission to appeal to the Fourth Circuit Court of Appeals.8 On November 8, 2016, the Fourth Circuit Court of Appeals issued an Order that deferred ruling on the petition pending briefing and further consideration of the merits of the appeal. Order, ECF No. 38, GLR-15-3330.9 After briefing and oral argument, the Fourth Circuit issued its Judgment on July 28, 2017, vacating the District Court's judgment and remanding for further 8 Remand orders are generally not subject to appeal, but there is a limited exception in CAFA cases. Under CAFA, "a court of appeals may accept an appeal from an order of a district court granting or denying a motion to remand a class action to the State court from which it was removed if application is made to the court of appeals not more than 10 days after entry of the order." 28 U.S.C. § 1453(c)(1). If the appeal is accepted, the court of appeals must "complete all action on such appeal, including rendering judgment, not later than 60 days after the date on which such appeal was filed, unless an extension is granted" by agreement for any period of time or for up to 10 days for good cause shown. § 1453(c)(2)- (3). 9 A briefing schedule was issued in Appeal No. 16-2300, Scott v. Cricket Communications, LLC, and the petition, No. 16-3051, was placed in abeyance. 8 JA 15 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 19 of 426 Total Pages:(59 of 466) 7 proceedings. Judgment, ECF No. 39, GLR-15-3330.10 On the same day, the Fourth Circuit also granted the petition for permission to appeal. Order, ECF No. 40, GLR-15-3330. During the pendency of the appeal, Scott's underlying case moved forward in the Circuit Court for Baltimore City. Scott moved to lift the stay that had been imposed by agreement of the parties, and the motion was granted on February 3, 2017. Cricket filed a motion to compel arbitration in Baltimore City, and it was denied on May 11, 2017. Scott then filed the motion for class certification, which was granted on June 9, 2017 as follows: [A]ll Maryland citizens who, between July 12, 2013 and March 13, 2014, purchased a Code Division Multiple Access ("CDMA") mobile telephone from Cricket Communications, LLC ("Cricket"),which was locked for use only on Cricket's CDMA network. Mot. Mem 5, ECF No. 42-1. After the Fourth Circuit's opinion was issued, on July 28, 2017, Scott amended the complaint in Baltimore City to include both the certified class of Maryland citizens, and a putative nationwide class defined as: All persons within the United States who, between July 12, 2013 and March 13, 2014, purchased a CDMA mobile telephone from Cricket, which was locked for use only on Cricket's CDMA network. 10 In a published decision, Scott v. Cricket Communications, LLC, 865 F.3d 189 (4th Cir. 2017). 9 JA 16 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 20 of 426 Total Pages:(60 of 466) 7 Id. Scott's District Court lawsuit was reopened on August 9, 2017. On August 11, 2017, Cricket filed a renewed notice of removal in GLR-15-3330, a motion to vacate the state court class certification order, a motion to vacate the state court order denying Cricket's motion to compel arbitration, a motion to compel arbitration, a motion to stay proceedings in part, and a notice of Bond's related lawsuit and that a settlement in principle had been reached therein. Also on August 11, 2017, Scott petitioned the Fourth Circuit for a rehearing, which stayed the mandate pending decision, and Scott filed a motion for entry of Administrative Order Number 1, which would provide potential class members notice of the lawsuit. On August 25, 2017, the Fourth Circuit denied Scott's requested rehearing, and on September 5, 2017, the Fourth Circuit issued its mandate. On September 9, 2017, Scott filed a motion to remand his case back to state court and to strike the renewed notice of removal. The parties have briefed their motions, and all remain pending in GLR-15-3330. 10 JA 17 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 21 of 426 Total Pages:(61 of 466) 7 II. LEGAL STANDARD Rule11 24 creates two intervention alternatives, both subject to the filing of a "timely motion." Gould v. Alleco, Inc., 883 F.2d 281, 286 (4th Cir. 1989). The Rule distinguishes between "Intervention of Right" pursuant to Rule 24(a), and "Permissive Intervention" pursuant to Rule 24(b). In addition to being timely, the Fourth Circuit has explained that an intervenor must, under Rule 24(a)(2), satisfy three additional requirements: (1) it must demonstrate a sufficient interest in the subject matter of the underlying action; (2) it has to prove that the interest would be impaired if the intervention was not allowed; and (3) it must establish that the interest is inadequately represented by existing parties. Houston Gen. Ins. Co. v. Moore, 193 F.3d 838, 839 (4th Cir. 1999)(citations omitted). Permissive intervention under Rule 24(b)(2) gives the court discretion to grant intervention when an applicant "has a claim or defense that shares with the main action a common question of law or fact." Rule 24(b)(1)(B). "In exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties' rights." Id. at (b)(3). 11 All "Rule" references herein are to the Federal Rules of Civil Procedure. 11 JA 18 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 22 of 426 Total Pages:(62 of 466) 7 III. DISCUSSION Scott moves to intervene as of right, and alternately permissively. Under either alternative, the application for intervention must be timely, although "[w]here intervention is of right, 'the timeliness requirement of Rule 24 should not be as strictly enforced as in a case where intervention is only permissive.'" Scardelletti v. Debarr, 265 F.3d 195, 203 (4th Cir. 2001), rev'd on other grounds, Devlin v. Scardelletti, 536 U.S. 1 (2002)(quoting Brink v. DaLesio, 667 F.2d 420, 428 (4th Cir. 1981)). Both Bond and Cricket contend that Scott's motion for intervention is not timely. In order to determine whether a motion to intervene is sufficiently timely, a trial court in this Circuit assesses factors including "how far the suit has progressed, the prejudice that delay might cause other parties, and the reason for the tardiness in moving to intervene." Scardelletti, 265 F.3d at 203; Alt v. U.S. E.P.A., 758 F.3d 588, 591 (4th Cir. 2014). A district court has wide discretion in determining what is timely. Gould, 883 F.2d at 286. "In a class action the critical issue with respect to timeliness is whether the proposed intervenor moved to intervene 'as soon as it became clear. . . that the interests of the unnamed class members would no longer be protected by the named class 12 JA 19 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 23 of 426 Total Pages:(63 of 466) 7 representatives.'" Hill v. W. Elec. Co., 672 F.2d 381, 386 (4th Cir. 1982)(quoting United Airlines, Inc. v. McDonald, 432 U.S. 385, 394 (1977)). The instant case has progressed to a settlement in principle "that would resolve the claims of a proposed nationwide class." Ltr. Aug. 11, 2017, ECF No. 41. The parties asserted in the letter that the proposed nationwide class settlement would cover all of the claims at issue in Scott's lawsuit. Id. Scott asserts that the filing of the letter was the first time he became aware of an interest being at risk. Scott contends that because he filed his motion to intervene within 20 days of the letter, his motion is timely. Scott, however, knew about Bond's lawsuit no later than November 20, 2015 when Cricket filed the Notice of Related Case [ECF No. 14, GLR-15-3330] in Scott's case. Cricket's Notice stated that the allegations in the two complaints arise out of the same events, and both cases raise warranty claims although the causes of action are not identical. The Notice points out that the main difference is that Bond's alleged class is nationwide while Scott's alleged class is limited to Maryland customers. Scott made no response until Cricket's Motion to Relate Case [ECF No. 16, GLR-15-3330], which was filed on December 2, 2015. In his Response [ECF No. 17, GLR-15-3330], 13 JA 20 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 24 of 426 Total Pages:(64 of 466) 7 Scott stated that he had no objection to the case being assigned to the same Judge, but disagreed that his lawsuit arises from the same events as Bond's because Scott's complaint challenges the sale of worthless cell phones to Maryland citizens only, while the Bond lawsuit is a putative federal nationwide class action.12 Scott added that the causes of action were not duplicative since he alleged only an MMWA claim and Bond's lawsuit contained no MMWA claim. Regardless, Bond's case was compelled to arbitration in January 2016, and Scott pursued removing his case back to state court. Since that time, Bond amended his Complaint to add an MMWA claim. Therefore, as of February 10, 2017, Scott knew, or should have known, that Bond's case included an MMWA cause of action, and as of February 24, 2017, Scott knew, or should have known, of the stipulation to lift the stay in Bond's case in order to litigate the MMWA claim. Scott could have intervened in February 2017, but chose to pursue his own case in state court. Scott's case has since been removed again to federal court, and on July 28, 2017, Scott amended his own Complaint to add a proposed nationwide class. Scott now faces motions to vacate the state court class certification, to compel 12 The Court notes that having defined different classes does not equate with whether the two cases were both arising out of the same events. It is clear that both cases arise out of Cricket's sale of CDMA cellphones. 14 JA 21 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 25 of 426 Total Pages:(65 of 466) 7 arbitration and to stay proceedings. It was not until August 24, 2017, after notice of the proposed settlement in Bond's case, that Scott moved to intervene. Scott argues that Bond's case has barely been litigated even though it is the older of the two cases. But Bond's case has been through a formal arms-length settlement negotiation and the parties reached a settlement in principle. Bond's case, therefore, is near to final resolution, and there is no doubt that intervention at this time will cause delay and potential disruption of the negotiated settlement. Scott does not adequately explain how his interests have now become no longer protected. Scott expresses concern that Cricket is engaging in a reverse auction, which can produce an inferior settlement. However, Scott's stated objective of protecting his interests, as well as the certified Maryland class,13 can be satisfied by the opportunity to participate and object to the settlement in the fairness hearing14 if he does not opt-out of the nationwide class. Scott can also choose to opt- 13 There remains an open question of whether there will continue to be a Maryland certified class since there is a pending motion to vacate the state court decision that certified the class. 14 A class action cannot be settled without the approval of the Court after a hearing "and on finding that it is fair, reasonable, and adequate." Rule 23(e)(2). Scott will have the opportunity to raise his concerns regarding collusion and inadequacy of the settlement during the approval process. 15 JA 22 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 26 of 426 Total Pages:(66 of 466) 7 out of the settlement and continue to pursue his separate litigation against Cricket. Further, it is logical for Cricket to pursue settlement in the case with a nationwide class rather than the case limited to Maryland citizens, so its actions do not "smell" of targeting the most ineffectual attorneys or seeking easy resolution. Under the circumstances of this case, Scott could have, and should have, acted sooner. Upon review of the timeliness factors, the Court finds that Scott's intervention motion was untimely and shall exercise its discretion to deny the motion. Scott may, of course, file objections to the proposed settlement in the ordinary course if and when preliminary approval of the proposed settlement is granted. Cricket's and Bond's oppositions argue that even if the motion to intervene were considered timely, Scott has failed to establish the remaining elements for intervention under Rule 24. Because the Court determines that the motion is not timely, it need not address herein the remaining elements. The bottom line is that intervention is being denied but Scott, as a class member, may participate in further proceedings herein relating to the settlement reached by Bond and Cricket. 16 JA 23 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 27 of 426 Total Pages:(67 of 466) 7 IV. CONCLUSION For the foregoing reasons: 1. Michael Scott's Motion to Intervene [ECF No. 42] is DENIED. 2. The Court shall defer ruling on Cricket's pending Motion to Compel Arbitration [ECF No. 34] pending settlement. 3. Plaintiffs and Defendant shall proceed expeditiously regarding the settlement of the instant case and shall, by November 2, 2017, provide a status report stating the dates for further action regarding settlement approval procedures. SO ORDERED, on Thursday, October 26, 2017. /s/__________ Marvin J. Garbis United States District Judge 17 JA 24 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 28 of 426 Total Pages:(68 of 466) 2 IN THE UNITED STATES DISTRICT FOR THE DISTRICT OF MARYLAND (Baltimore Division) TIM BOND 150 WESTMINSTER PIKE REISTERSTOWN, MD 21136 JURY TRIAL DEMANDED on his own behalf and on behalf of all others similarly situated, Plaintiffs, v. AT & T INC. Case No. 1:15-cv-923 208 S. AKARD STREET DALLAS, TX 75202 SERVE ON: Department of Assessment and Taxation Corporate Charter Division 301 W. Preston Street Room 801 Baltimore, MD 21201 Defendant. CLASS ACTION COMPLAINT Plaintiff Tim Bond ("Plaintiff" or "Bond") b r i n g s this class action complaint individually and in a representative capacity on behalf all others similarly situated (the "Class") against defendant AT&T, Inc. ("AT&T") and its Cricket unit. I. Preliminary Statement 1. On July 12, 2013, AT&T announced its agreement to acquire Cricket Communications Inc. 1 JA 25 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 29 of 426 Total Pages:(69 of 466) 2 2. From July 12, 2013 to the present (the "Class Period"), Cricket, both directly and through its authorized agents, has offered for sale and sold to the consuming public CDMA handsets. 3. Prior to the Class Period, AT&T decided that on or after the acquisition of Cricket, AT&T would discontinue all CDMA service and require all Cricket customers to use AT&T's GSM cellular network. 4. Prior to the Class Period, Cricket knew or should have known that AT&T intended to discontinue the use of CDMA handsets in favor of AT&T's GSM service. 5. During the Class Period, Cricket knew, or reasonably should have known, that the CDMA handsets sold would be inoperable as a result of the acquisition by AT&T. 6. During the Class Period, Cricket affirmatively represented that all CDMA handsets sold were compatible with Cricket's cellular phone service. 7. During the Class Period, Cricket failed to disclose that these CDMA handsets had an artificially limited useful life and that the phones would not be supported for the expected life of the phone. 8. Included in the CDMA handsets which rendered inoperable by the AT&T acquisition is the Plaintiff's Samsung Galaxy S4, which he purchased from Cricket in or around December 2013. 9. Plaintiff asserts claims individually on behalf of the Class. 2 JA 26 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 30 of 426 Total Pages:(70 of 466) 2 II. The Parties 10. Plaintiff is a citizen of M a r y l a n d c u r r e n t l y r e s i d i n g a t 1 5 0 Westminster Pike, Reisterstown, MD 21136 (Baltimore County, MD). He is a natural person over the age of 21 and otherwise sui juris. 11. Defendant AT&T Inc. is incorporated in the State of Delaware and maintains its corporate headquarters in Dallas, Texas. On July 12, 2013, AT&T agreed to buy Leap Wireless International, Inc., for $1.2 billion. As part of the agreement, AT&T would acquire the Leap Wireless subsidiary, Cricket Communications Inc. ("Cricket"), which provided wireless products and services to approximately 4.6 million subscribers. On March 13, 2014, the Federal Communications Commission approved the merger between AT&T and Leap Wireless. Since that time, Cricket has functioned as a unit of AT&T. III. JURISDICTION AND VENUE 12. This Court has jurisdiction over this action pursuant to the Class Action Fairness Act of 2005 ("CAFA"), Pub. L. No. 109-2, 119 Stat. 4 (codified in various sections of 28 U.S.C.). 13. Plaintiff Tim Bond is a citizen of Maryland. Defendant is a citizen of Delaware and Texas but is registered to do business in Maryland and nationwide. The amount in controversy exceeds $5,000,000 and there are at least one hundred members of the putative class. 14. This Court has jurisdiction over Defendant because it either is a foreign corporation authorized to conduct business in Maryland, is doing business in Maryland and has registered with the Maryland Secretary of State, or do sufficient business in Maryland, have 3 JA 27 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 31 of 426 Total Pages:(71 of 466) 2 sufficient minimum contacts with Maryland, or otherwise intentionally avail themselves of the Maryland consumer market through the promotion, marketing and sale of wireless products and services in Maryland. This purposeful availment renders the exercise of jurisdiction by this Court over Defendant and its affiliated or related entities permissible under traditional notions of fair play and substantial justice. 15. In addition, this Court has subject-matter jurisdiction under CAFA because the amount in controversy exceeds $5 million and diversity exists between Plaintiff and the Defendants. 28 U.S.C. § 1332(d)(2). Further, in determining whether the $5 million amount in controversy requirement of 28 U.S.C. § 1332(d) (2) is met, the claims of the putative class members are aggregated. 28 U.S.C. § 1332(d)(6). 16. Venue is proper in this forum pursuant to 28 U.S.C. § 1391 because Defendant transacts business and may be found in this District and a substantial portion of the practices complained of herein occurred in the District of Maryland. 17. All conditions precedent to this action have occurred, been performed, or have been waived. IV. Factual Allegations 18. Two of the predominant cellular voice technologies are Global Systems for Mobile communications ("GSM") and Code Division Multiple Access ("CDMA"). 19. GSM was developed by the European Telecommunications Standards Institute to replace the analog networks. In the United States, GSM is the technology behind AT&T and T- Mobile USA. Current GSM devices use a Security Identity Module, or SIM, card. This card contains the International Mobile Subscriber Identity (IMSA) Number, carrier information, and 4 JA 28 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 32 of 426 Total Pages:(72 of 466) 2 consumer contact information. Assuming the phone is not locked by the carrier, the SIM card slot allows the consumer to migrate the phone between carriers. 20. CDMA was developed by Qualcomm and has been the technology preferred by Sprint and Verizon. Rather than having a SIM card for data storage, data is stored on the CDMA phone itself. This has made moving a CDMA phone between carriers difficult, if not impossible. 21. At all relevant times, Cricket has marketed, offered for sale, and sold handheld devices compatible with the CDMA network. 22. In July 2013, AT&T reached an agreement to purchase the assets and assume the liabilities of Leap Wireless, the parent of Cricket, for $1.2 Billion. AT & T retained Cricket's directors and management in addition to its 3,400 employees. The July 12, 2013 press release of AT&T and Leap Wireless provided, in relevant part, the following information about the acquisition: AT&T will acquire all of Leap's stock and wireless properties, including licenses, network assets, retail stores and approximately 5 million subscribers. . . . Leap's network covers approximately 96 million people in 35 U.S. states. Leap currently operates -- under the Cricket brand -- a 3G CDMA network, as well as a 4G LTE network covering 21 million people in these areas, and has 3,400 employees. AT&T will retain the Cricket brand name, provide Cricket customers with access to AT&T's award-winning 4G LTE mobile network, utilize Cricket's distribution channels, and expand Cricket's presence to additional U.S. cities. The result will be increased competition, better device choices, improved customer care and a significantly enhanced mobile Internet experience for consumers seeking low-cost prepaid wireless plans. . . . The acquisition includes spectrum in the PCS and AWS bands covering 137 million people and is largely complementary to AT&T's existing spectrum 5 JA 29 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 33 of 426 Total Pages:(73 of 466) 2 licenses. Immediately after approval of the transaction, AT&T plans to put Leap's unutilized spectrum – which covers 41 million people -- to use in furthering its 4G LTE deployment and providing additional capacity and enhanced network performance for customers' growing mobile Internet usage. Owners of approximately 29.8% of Leap's outstanding shares have entered into an agreement to vote in favor of the transaction. The transaction is subject to review by the Federal Communications Commission and the Department of Justice and to other customary closing conditions. AT&T expects the transaction to close in six to nine months. 23. Thus, according to the July 12, 2013 press release, AT&T intended to move customers from Cricket's CDMA network to AT&T's GSM network and Cricket/AT&T further intended not to support CDMA handsets that could not be migrated to the GSM network. 24. In fact, many CDMA handsets cannot be moved to a GSM network. 25. Cricket knew and failed to disclose this material information to customers. 26. Cricket, moreover, continued to offer for sale and sell to the consuming public CDMA handsets that are not compatible with and cannot be migrated to the GSM network. 27. Cricket thus knew, and failed to disclose, that many of the CDMA handsets it offered for sale and sold to the consuming public would be rendered inoperable as a result of the AT&T acquisition. 28. For instance, Plaintiff purchased a Samsung Galaxy 4S from an authorized agent of Cricket in or around December 2013, more than five months after AT&T acquired Cricket. 29. Thereafter, Plaintiff entered into a wireless service agreement with Cricket to use the Samsung Galaxy 4S on Cricket's CDMA compatible cellular network. 6 JA 30 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 34 of 426 Total Pages:(74 of 466) 2 30. Plaintiff received two different receipts, one for the purchase of the phone and one for the purchase of the wireless service agreement. 31. In January 2015, AT&T publicly announced that the legacy CDMA markets covered by its Cricket unit will be turned off this year, in a three-phase switch-off plan. See https://www.telegeography.com/products/commsupdate/articles/2015/01/09/att-confirms- september-shutdown-of-cricket-cdma-network/. 32. As per the AT&T public announcement in January 2015, the CDMA wireless service will be terminated on a rolling basis by bill cycle. Customers in the initial 'sunset markets' will have their service terminated by bill cycle beginning March 15, 2015 with the CDMA network in those markets being turned off completely on 15 April 2015. Initial (March/April) sunset markets include: Washington, DC; Little Rock, Fayetteville and Fort Smith (Arkansas); Wilmington (Delaware); Chicago and Northern Illinois (Illinois); South Bend (Indiana); Baltimore (Maryland); Atlantic City (New Jersey); Buffalo, Rochester and Syracuse (New York) and Philadelphia (Pennsylvania). 33. The second group of markets slated for shutdown in May/June 2015 consists of: Wichita (Kansas); Albuquerque and Las Cruces (New Mexico); Las Vegas (Nevada) and Oklahoma City and Tulsa (Oklahoma). 34. All remaining legacy CDMA markets will be turned off by mid-September 2015. 35. Cricket announced that its customers who purchased an iPhone with original CDMA (including the iPhone 4s, iPhone 5, iPhone 5s or iPhone 5c) will receive a free, replacement SIM card that enables the iPhone to operate on Cricket's new 4G and 4G LTE nationwide GSM network. However, persons who purchased any other type of cell phone from Cricket would be required to purchase a new handset. 7 JA 31 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 35 of 426 Total Pages:(75 of 466) 2 36. As Cricket explained on its website: "The new Cricket's nationwide 4G network uses GSM (Global System for Mobile Communications) technology that is the global standard for mobile service while the original Cricket uses CDMA network technology. That means that with the exception of original Cricket iPhone 4S, iPhone 5, iPhone 5S and iPhone 5C, your current CDMA phone will not work on the new Cricket network. 37. In or around February 2015, Plaintiff went into a Cricket store in Maryland to pay his bill for February service. When Plaintiff was in the Cricket store, Cricket turned his Samsung Galaxy S4 phone off. Plaintiff attempted to have his phone turned back on through AT&T and other service providers, including Sprint, Virgin Mobile and T-Mobile. But none was able to revive Plaintiff's phone. 38. Plaintiff's phone has no value or only a de minimis value due to its inoperability on any cellular network. 39. Plaintiff is not alone. Indeed, several consumers have made anonymous complaints on the web page forum: https://forums.att.com/t5/General-Account-Questions/AT- amp-T-Merger-with-Cricket-Sucks/td-p/4096500, concerning Cricket's failure to disclose that the CDMA handheld devices which it offered for sale and sold to the consuming public as of July 12, 2013, would be inoperable as a result of the AT&T acquisition, including the following: Blownaway Sep 26, 2014 8:26:33 AM This merger of AT&T and Cricket is horrible. First I just bought an expensive Samsung Galaxy S4 not even a year ago and I am being told that I have to buy a brand new phone when the merger is fully complete (March 2015). This is ridiculous - who is sitting around with an extra $400 a year to purchase a new phone. As large a company as AT&T they do not have the capability to switch my phone over. 8 JA 32 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 36 of 426 Total Pages:(76 of 466) 2 SteveJodylynn Oct 29, 2014 12:28:27 PM I agree. It is just a few months from when my expensive CDMA Cricket smartphone (less than a year old) becomes inoperable and I've heard nothing from AT&T or Cricket about the transition plan, other than I will be forced to shell out hundreds for a new phone that is compatible with AT&T's network. Chiefsfan Nov 29, 2014 5:43:14 PM. . . AT&T is screwing over thousands of Cricket customers and they DON'T CARE ONE BIT! Cricket shouldn't have been selling phones over the past 7-8 months, since the merger with AT&T, knowing that they won't work after March, but they continue to do just that. The point is that AT&T is gaining millions of unearned $ by forcing customers to buy new ridiculously expensive phones (oh, but they'll give you a free deal on their piece-o-crap phones (which are all of them other than the Galaxy & iphones) all under the guise of "providing better service". What a crock!! WE ALL NEED TO BOYCOTT AT&T ONCE THEY RENDER OUR PHONES USELESS!!! hatenewcricket Feb 11, 2015 9:16:13 PM I know what you mean I got my S4 just befor[e] they annou[n]ced the switch, I believe they knew what was going to happen and sold me an already worthless phone this whole thing has been a rip off and is unfair to cricked customers who are getting screwed V. CLASS ALLEGATIONS 40. Plaintiff brings this action against Defendant pursuant to Rule 23 of the Federal Rules of Civil Procedure on behalf of himself and all other persons similarly situated. Plaintiff seeks to represent the following classes: All persons nationwide during the period July 12, 2013 to the present, who purchased a CDMA handset from Cricket or through its authorized agents. Excluded from this class are Defendants, their affiliates, subsidiaries, agents, board members, directors, officers, and/or employees. 9 JA 33 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 37 of 426 Total Pages:(77 of 466) 2 41. Plaintiff reserves the right to modify or amend the definition of the proposed Class before the Court determines whether certification is appropriate. 42. Defendant subjected Plaintiff and the respective Class members to the same unfair, unlawful, and deceptive practices and harmed them in the same manner. 43. The Class, as defined above, is identifiable. 44. The Named Plaintiff is a member of the Class. 45. The proposed class is so numerous that joinder of all members would be impracticable. Cricket sold thousands of CDMA handsets during the Class Period in the State of Maryland and nationwide. 46. The individual class members are ascertainable, as the names and addresses of all class members can be identified in the business records maintained by Defendant. 47. While the precise number of class members can only be obtained through discovery, the numbers are clearly more than can be consolidated in one complaint such that it would be impractical for each member to bring suit individually. 48. There are questions of law and fact that are common to Plaintiff's and class members' claims. These common questions predominate over any questions that go particularly to any individual member of the Class. 49. Among such common questions of law and fact are the following: a. Whether Cricket offered for sale and sold to the consuming public CDMA handsets during the Class Period; b. Whether Cricket knew and failed to disclose that the CDMA handsets would be inoperable upon completion of the merger with AT&T; 10 JA 34 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 38 of 426 Total Pages:(78 of 466) 2 c. Whether Cricket breached the implied covenant of good faith and fair dealing by offering for sale and selling soon to be inoperable CDMA handsets; d. Whether Cricket made material misstatements of fact and/or knew and failed to disclose material information concerning the CDMA handsets which it sold to Plaintiff and other members of the class, including facts that the CDMA handsets would be inoperable as a result of the AT&T acquisition, that Cricket planned to convert to the GSM network and that as a result, the CDMA handsets had an artificially limited useful life; e. Whether Cricket breached the implied warranty of merchantability by selling Plaintiff and the other members of the Class CDMA handsets which it knew had an artificially limited useful life; and f. Whether Plaintiff and the Class Members are entitled to damages and/or injunctive relief as a result of Defendant's conduct. 50. Plaintiff's claims are typical of the claims of t he c la s s because of the similarity, uniformity, and common purpose of Defendant's unlawful conduct. Each class member has sustained, and will continue to sustain, damages in the same manner as Plaintiff as a result of Defendant's wrongful conduct. 51. Plaintiff is an adequate representative of the class he seeks to represent and will fairly and adequately protect the interests of that class. 52. Plaintiff is committed to the vigorous prosecution of this action and has retained competent counsel, experienced in litigation of this nature, to represent them. 53. There is no hostility between Plaintiff and the unnamed class members. 54. Plaintiff anticipates no difficulty in the management of this litigation as a class action. 11 JA 35 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 39 of 426 Total Pages:(79 of 466) 2 55. To prosecute this case, Plaintiff has chosen the undersigned law firms, which are experienced in class action litigation and have the financial and legal resources to meet the substantial costs and legal issues associated with this type of litigation. 56. The questions of law or fact common to Plaintiff's and each Class Member's claims predominate over any questions of law or fact affecting only individual members of the class. 57. All claims by Plaintiff and the unnamed class members are based Cricket's sale of CDMA handsets to the consuming public when it knew, or reasonably should have known and failed to disclose that these handsets would be inoperable upon completion of the AT&T merger. 58. Common issues predominate where, as here, liability can be determined on a class-wide basis, even when there will be some individualized damages determinations. 59. As a result, when determining whether common questions predominate, courts focus on the liability issue, and if the liability issue is common to the class as is the case at bar, common questions will be held to predominate over individual questions. 60. A class action is superior to individual actions in part because of the non- exhaustive factors listed below: (a) Joinder of all class members would create extreme hardship and inconvenience for the affected customers as they reside all across the states; (b) Individual claims by class members are impractical because the costs to pursue individual claims exceed the value of what any one class member has at stake. As a result, individual class members have no interest in prosecuting and controlling separate actions; 12 JA 36 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 40 of 426 Total Pages:(80 of 466) 2 (c) There are no known individual class members who are interested in individually controlling the prosecution of separate actions; (d) The interests of justice will be well served by resolving the common disputes of potential class members in one forum; (e) Individual suits would not be cost effective or economically maintainable as individual actions; and (f) The action is manageable as a class action. VI. CAUSES OF ACTION COUNT I BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY 61. Plaintiff incorporates by reference paragraphs 1 through 60 above, as if each and every allegation is set forth fully herein. 62. At all relevant times, Cricket was a merchant with respect to the CDMA handsets. 63. Plaintiff purchased his now inoperable CDMA handset from an authorized agent of Cricket. At the time of purchase, Cricket and it authorized agents were in the business of selling CDMA handsets and/or by course of business held itself out as having special knowledge or skill regarding those handsets. 64. A warranty that the CDMA handsets were in merchantable condition was implied by law in the sale of these handsets by Cricket and its agents. 13 JA 37 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 41 of 426 Total Pages:(81 of 466) 2 65. The CDMA handsets which Cricket and its authorized agents sold to Plaintiff and other members of the class were not in merchantable condition and are not fit for the ordinary purpose for which handsets are used and/or were not of the same quality of those generally acceptable in the trade. 66. In fact, the CDMA handsets sold by Cricket and its authorized agents, including the Samsung Galaxy 4S sold to Plaintiff, were unmerchantable. 67. Specifically, Cricket knew and failed to disclose that these CDMA handsets would be inoperable as a result of the AT&T acquisition and Cricket's plan to convert to the GSM network. As a result, the CDMA handsets had an artificially limited useful life. 68. Plaintiff and other members of the Class have had sufficient direct dealings with either Cricket or its authorized agents to establish vertical privity of contract between themselves and Defendant. Nevertheless, privity is not required in this case because Plaintiff and the other members of the Class are intended third- party beneficiaries of contract between Cricket and its authorized agents. Specifically, Plaintiff and the other members of the Class are the intended beneficiaries of Cricket's implied warranties. Cricket's authorized agents were not intended to be the ultimate consumers of the CDMA handsets. COUNT II FRAUDULENT CONCEALMENT 69. Plaintiff incorporates by reference paragraphs 1 through 60 above, as if each and every allegation is set forth fully herein. 14 JA 38 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 42 of 426 Total Pages:(82 of 466) 2 70. As set forth above, Cricket knew and failed to disclose and/ or suppressed and/or concealed material facts concerning the CDMA handsets, including the Samsung Galaxy 4S, which it sold to Plaintiff and other members of the class. 71. These concealed facts were material because they directly impacted the reliability and use of the handsets. 72. Cricket owed Plaintiff and the other members of the Class a duty to disclose that the CDMA handsets would be rendered inoperable by the AT&T acquisition and Cricket's plans to convert to the GSM network because it possessed exclusive and superior knowledge and access to these facts. 73. Cricket knew and failed to disclose that the CDMA handsets had an artificially limited useful life and that the CDMA handsets were not compatible with AT&T's GSM cellular network. 74. Cricket actively concealed and/or suppressed these material facts, in whole or in part, with the intent to induce Plaintiff and the other members of the Class to purchase the CDMA handsets from Cricket and its authorized agents and to pay more than they otherwise would have paid had these material facts that the CDMA handsets would be inoperable as a result of the AT&T acquisition and Cricket's plans to convert to the GSM network been disclosed. 75. Cricket's conduct was oppressive, fraudulent, malicious and in reckless disregard of the rights of Plaintiff and the Class. 15 JA 39 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 43 of 426 Total Pages:(83 of 466) 2 76. Plaintiff and the other members of the Class were not aware of the omitted material facts and would not have acted as they did if they had known of the concealed and/or suppressed facts. 77. As a result of Cricket's concealment and/or suppression of material facts concerning the CDMA handsets, Plaintiff and the Class have sustained damages. COUNT III MONEY HAD AND RECEIVED/UNJUST ENRICHMENT 78. Plaintiff incorporates herein by reference as though fully set forth the allegations in paragraphs 1 through 60 of this Complaint, as if each and every allegation is set forth fully herein. 79. As set forth above, Cricket charged and collected payments for CDMA handsets that would become inoperable in amounts that exceeded the value of these CDMA handsets, which conferred a substantial benefit on Cricket. 80. Cricket was aware of, and had knowledge of, this substantial benefit. 81. By doing so, Cricket has come into the possession of money in the form of payments that it had, and has no right to at law or in equity. 82. It would be inequitable for Cricket to retain any such monies that it had no legal right to charge. 83. As a consequence, Named Plaintiff and the members of the Class have been damaged. 16 JA 40 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 44 of 426 Total Pages:(84 of 466) 2 COUNT IV NEGLIGENT MISREPRESENTATION 84. Plaintiff incorporates herein by reference as though fully set forth the allegations in paragraphs 1 through 60 of this Complaint, as if each and every allegation is set forth fully herein. 85. Cricket and its agents or employees negligently made the false and misleading representations and omissions alleged herein, including but not limited to the representations that its CDMA handsets would pass without objection in the trade under the contract description and that the CDMA handsets sold were compatible with and would continue to be compatible with Cricket's CDMA's cellular service for the useful life of the handset. 86. Cricket's agents or employees negligently failed to disclose the material fact that its handsets would become inoperable during its useful lifespan. 87. Cricket's agents or employees negligently failed to disclose that the prices of the CDMA handsets did not accurately represent its value, intending that Plaintiff and the Class would reasonably rely upon the false and misleading representations and omissions to their detriment, which they did. 88. As a direct and proximate result of Cricket's negligent statements, representations, and omissions, Plaintiff and the Class were induced, ab initio, to purchase a CDMA handset from Cricket for a price significantly higher than they were worth. 89. Cricket, their agents or employees, owed a duty of care to Plaintiff and the Class. 17 JA 41 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 45 of 426 Total Pages:(85 of 466) 2 90. Cricket recklessly and negligently breached the duty of care they owed to Plaintiff and the Class by making negligent representations to Plaintiff and the Class and negligently concealing material facts from them, as set forth herein. 91. Cricket knew, or had reason to know, that Plaintiffs and the Class would reasonably rely on the representations and concealments which if erroneous, would cause loss, injury or damage. 92. Plaintiff and the Class justifiably and reasonably took actions to their detriment as alleged herein, by paying Cricket significantly more for their CDMA handsets than they were worth, in reliance on the negligent representations and concealments. COUNT V MARYLAND CONSUMER PROTECTION ACT 93. Plaintiff incorporates herein by reference as though fully set forth the allegations in paragraphs 1 through 60 of this Complaint, as if each and every allegation is set forth fully herein. 94. Cricket is a merchant within the meaning of the Maryland Consumer Protection Act ("MCPA"), MD. CODE ANN., COMM. LAW § 13-101(g), and is subject to all of the MCPA's provisions prohibiting unfair or deceptive trade practices including those in MD. CODE ANN., COMM. LAW §§ 13-303 and 13-301. 95. Cricket's failure to disclose and its concealment from Plaintiff and members of the Class of the material facts as set forth herein constitutes unfair and deceptive trade practices in violation of the MCPA, §§ 13-303 and 13-301(1), (2)(i) and (iv) and (3). If Plaintiff and 18 JA 42 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 46 of 426 Total Pages:(86 of 466) 2 members of the Class had known the material facts related to the CDMA handsets, they would not have purchased the handsets or would have required a significantly lower price. 96. On information and belief, Plaintiff avers that Cricket systematically sold CDMA handsets during the Class Period which were not compatible with AT&T's GSM cellular network and retailed these CDMA handsets to the public without disclosing the impending inoperability of the handsets to its customers, in violation of the MCPA, in order to illegally increase its profits. 97. Cricket's acts and omissions as aforesaid, including its failure to disclose and concealment of the material facts, and its affirmative misrepresentation to Named Plaintiff and the Class, tended to and did deceive Plaintiff and members of the Class and constitutes an unfair and deceptive trade practice, in violation of MCPA §§ 13-303(1) - (3) and 13-301(1), (2)(i) and (iv), and/or (3). 98. As a result of Cricket's unfair and deceptive trade practices, Named Plaintiff and the Class agreed to and did purchase their CDMA handsets, Plaintiff paid Cricket significantly more for their CDMA handsets than they were worth, and Named Plaintiff and the Class sustained the other damages and losses set forth above. COUNT VI FRAUD 99. Plaintiff incorporates herein by reference as though fully set forth the allegations in paragraphs 1 through 60 of this Complaint, as if each and every allegation is set forth fully herein. 19 JA 43 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 47 of 426 Total Pages:(87 of 466) 2 100. Cricket and its authorized agents falsely represented to Plaintiff and other members of the Class that the CDMA handsets would be supported by Cricket for the useful life of the product. But for this representation, which Cricket and its authorized agents knew, or should have known, was false, Plaintiff and the other members of the Class would not have bought the CDMA handsets from Cricket. Moreover, but for this false representation, Plaintiff and the other members of the Class would not have then made a separate purchase from Cricket for the CDMA wireless service plan. 101. Defendant failed to disclose material information that Cricket would not continue to support the CDMA handsets as a result of the AT&T acquisition and that the CDMA handsets were not compatible with AT&T's GSM cellular network. 102. Defendant made these false and misleading representations and omissions knowingly, recklessly, and/or without regard for their truth or falsity, and with the intent to induce Plaintiff and other members of the Class to rely upon them by purchasing a CDMA handset from Cricket. 103. Plaintiff and the other members of the Class justifiably relied upon the false representations and omissions made by Defendant by purchasing the CDMA handset from Cricket's authorized agent and then by purchasing a wireless service agreement from Cricket thereafter. 104. As a direct and proximate result of the reliance upon the false representations and omissions of Defendant, Plaintiff and the other members of the Class have suffered damages, including, but not limited to, the loss of the use of the CDMA handsets and the loss of their market value, well prior to the end of the useful life of these cell phones. 20 JA 44 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 48 of 426 Total Pages:(88 of 466) 2 105. Because of the willful and wanton conduct of Defendant, Plaintiff and the other members of the Class are entitled to punitive, as well as actual, damages. PRAYER FOR RELIEF WHEREFORE, Plaintiff, on behalf of himself and all similarly situated individuals, demands judgment against Defendant as follows: (1) Declaring this action to be a proper class action maintainable pursuant to Rule 23(a) and Rule 23(b)(3) of the Federal Rules of Civil Procedure and declaring Plaintiff and their counsel to be representatives of the Class; (2) Requiring Defendant to replace the CDMA handsets with comparable GSM handsets free of charge; (3) Awarding actual damages to Plaintiff and the Class; (4) Awarding punitive damages to Plaintiff and the Class under Counts II, IV and VI; (5) Awarding Plaintiff and the Class costs and disbursements and reasonable allowances for the fees of counsel and experts, and reimbursement of expenses; (6) Awarding pre-judgment and post-judgment interest on all sums awarded to Named Plaintiff and the Class; and (7) Awarding such other and further relief the Court deems just and equitable. 21 JA 45 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 49 of 426 Total Pages:(89 of 466) 2 Respectfully submitted, Z LAW, LLC Dated: March 31, 2015 ________/s/___28191__ _____________ Cory L. Zajdel (Fed. Bar No. 28191) 301 Main Street, Ste. 2-D Reisterstown, MD 21136 (443) 213-1977 clz@zlawmaryland.com Oren S. Giskan (pending pro hac vice) Catherine E. Anderson (pending pro hac vice) Giskan Solotaroff Anderson & Stewart, LLP 11 Broadway, Suite #2150 New York, NY 10004 (212) 847-8315 Attorneys for Plaintiff DEMAND FOR JURY TRIAL Plaintiff and the Class request a jury trial for any and all Counts for which a trial by jury is permitted by law. ________/s/___28191__ _____________ Cory L. Zajdel (Fed. Bar No. 28191) 22 JA 46 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 50 of 426 Total Pages:(90 of 466) 2 IN THE UNITED STATES DISTRICT FOR THE DISTRICT OF MARYLAND (Baltimore Division) TIM BOND 150 WESTMINSTER PIKE REISTERSTOWN, MD 21136 JURY TRIAL DEMANDED on his own behalf and on behalf of all others similarly situated, Plaintiffs, v. CRICKET COMMUNICATIONS, LLC Case No. 1:15-cv-923-WDQ 1209 ORANGE STREET WILMINGTON, DE 19801 SERVE ON: Archis A. Parasharami Mayer Brown LLP 1999 K Street, N.W. Washington, DC 20006 Defendant. FIRST AMENDED CLASS ACTION COMPLAINT Plaintiff Tim Bond ("Plaintiff" or "Bond") b r i n g s this class action complaint individually and in a representative capacity on behalf all others similarly situated (the "Class") against defendant Cricket Communications, LLC. I. Preliminary Statement 1. On July 12, 2013, AT&T announced its agreement to acquire Cricket Communications Inc. 2. After acquiring Cricket Communications Inc., AT & T formed Cricket Communications, LLC ("Cricket") to carry on the business of the former Cricket Communications, Inc. 1 JA 47 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 51 of 426 Total Pages:(91 of 466) 2 3. From July 12, 2013 to the present (the "Class Period"), Cricket, both directly and through its authorized agents, has offered for sale and sold to the consuming public CDMA handsets. 4. Prior to the Class Period, AT&T and Cricket decided that on or after the acquisition of Cricket, AT&T would discontinue all CDMA service and require all Cricket customers to use AT&T's GSM cellular network. 5. Prior to the Class Period, Cricket knew or should have known that AT&T intended to discontinue the use of CDMA handsets in favor of AT&T's GSM service. 6. During the Class Period, Cricket knew, or reasonably should have known, that the CDMA handsets sold would be inoperable as a result of the acquisition by AT&T. 7. During the Class Period, Cricket affirmatively represented that all CDMA handsets sold were compatible with Cricket's cellular phone service. 8. During the Class Period, Cricket failed to disclose that these CDMA handsets had an artificially limited useful life and that the phones would not be supported for the expected life of the phone. 9. Included in the CDMA handsets which rendered inoperable by the AT&T acquisition is the Plaintiff's Samsung Galaxy S4, which he purchased from Cricket in or around December 2013. 10. Plaintiff asserts claims individually on behalf of the Class. 2 JA 48 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 52 of 426 Total Pages:(92 of 466) 2 II. The Parties 11. Plaintiff is a citizen of M a r y l a n d c u r r e n t l y r e s i d i n g a t 1 5 0 Westminster Pike, Reisterstown, MD 21136 (Baltimore County, MD). He is a natural person over the age of 21 and otherwise sui juris. 12. Defendant Cricket Communications, LLC is a limited liability company formed in the State of Delaware and maintains its corporate headquarters in Wilmington, Delaware. On July 12, 2013, AT&T agreed to buy Leap Wireless International, Inc., for $1.2 billion. As part of the agreement, AT&T would acquire the Leap Wireless subsidiary, Cricket Communications Inc. ("Cricket"), which provided wireless products and services to approximately 4.6 million subscribers. On March 13, 2014, the Federal Communications Commission approved the merger between AT&T and Leap Wireless. Since that time, Cricket has functioned as a unit of AT&T as Cricket Communications, LLC. III. JURISDICTION AND VENUE 13. This Court has jurisdiction over this action pursuant to the Class Action Fairness Act of 2005 ("CAFA"), Pub. L. No. 109-2, 119 Stat. 4 (codified in various sections of 28 U.S.C.). 14. Plaintiff Tim Bond is a citizen of Maryland. Defendant is a citizen of Delaware and Texas but is registered to do business in Maryland and nationwide. The amount in controversy exceeds $5,000,000 and there are at least one hundred members of the putative class. 15. This Court has jurisdiction over Defendant because it either is a foreign corporation authorized to conduct business in Maryland, is doing business in Maryland and has 3 JA 49 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 53 of 426 Total Pages:(93 of 466) 2 registered with the Maryland Secretary of State, or do sufficient business in Maryland, have sufficient minimum contacts with Maryland, or otherwise intentionally avail themselves of the Maryland consumer market through the promotion, marketing and sale of wireless products and services in Maryland. This purposeful availment renders the exercise of jurisdiction by this Court over Defendant and its affiliated or related entities permissible under traditional notions of fair play and substantial justice. 16. In addition, this Court has subject-matter jurisdiction under CAFA because the amount in controversy exceeds $5 million and diversity exists between Plaintiff and the Defendants. 28 U.S.C. § 1332(d)(2). Further, in determining whether the $5 million amount in controversy requirement of 28 U.S.C. § 1332(d) (2) is met, the claims of the putative class members are aggregated. 28 U.S.C. § 1332(d)(6). 17. Venue is proper in this forum pursuant to 28 U.S.C. § 1391 because Defendant transacts business and may be found in this District and a substantial portion of the practices complained of herein occurred in the District of Maryland. 18. All conditions precedent to this action have occurred, been performed, or have been waived. IV. Factual Allegations 19. Two of the predominant cellular voice technologies in the United States are Global Systems for Mobile communications ("GSM") and Code Division Multiple Access ("CDMA"). 20. GSM was developed by the European Telecommunications Standards Institute to replace the analog networks. In the United States, GSM is the technology behind AT&T and T- 4 JA 50 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 54 of 426 Total Pages:(94 of 466) 2 Mobile USA. Current GSM devices use a Security Identity Module, or SIM, card. This card contains the International Mobile Subscriber Identity (IMSA) Number, carrier information, and consumer contact information. Assuming the phone is not locked by the carrier, the SIM card slot allows the consumer to migrate the phone between carriers. 21. CDMA was developed by Qualcomm and has been the technology preferred by Sprint and Verizon. Rather than having a SIM card for data storage, data is stored on the CDMA phone itself. This has made moving a CDMA phone between carriers difficult, if not impossible. 22. At all relevant times, Cricket has marketed, offered for sale, and sold handheld devices compatible with the CDMA network. 23. In July 2013, AT&T reached an agreement to purchase the assets and assume the liabilities of Leap Wireless, the parent of Cricket, for $1.2 Billion. AT & T retained Cricket's directors and management in addition to its 3,400 employees. The July 12, 2013 press release of AT&T and Leap Wireless provided, in relevant part, the following information about the acquisition: AT&T will acquire all of Leap's stock and wireless properties, including licenses, network assets, retail stores and approximately 5 million subscribers. . . . Leap's network covers approximately 96 million people in 35 U.S. states. Leap currently operates -- under the Cricket brand -- a 3G CDMA network, as well as a 4G LTE network covering 21 million people in these areas, and has 3,400 employees. AT&T will retain the Cricket brand name, provide Cricket customers with access to AT&T's award-winning 4G LTE mobile network, utilize Cricket's distribution channels, and expand Cricket's presence to additional U.S. cities. The result will be increased competition, better device choices, improved customer care and a significantly enhanced mobile Internet experience for consumers seeking low-cost prepaid wireless plans. . . . 5 JA 51 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 55 of 426 Total Pages:(95 of 466) 2 The acquisition includes spectrum in the PCS and AWS bands covering 137 million people and is largely complementary to AT&T's existing spectrum licenses. Immediately after approval of the transaction, AT&T plans to put Leap's unutilized spectrum – which covers 41 million people -- to use in furthering its 4G LTE deployment and providing additional capacity and enhanced network performance for customers' growing mobile Internet usage. Owners of approximately 29.8% of Leap's outstanding shares have entered into an agreement to vote in favor of the transaction. The transaction is subject to review by the Federal Communications Commission and the Department of Justice and to other customary closing conditions. AT&T expects the transaction to close in six to nine months. 24. Thus, according to the July 12, 2013 press release, AT&T intended to move customers from Cricket's CDMA network to AT&T's GSM network and Cricket/AT&T further intended not to support CDMA handsets that could not be migrated to the GSM network. 25. In fact, many CDMA handsets cannot be moved to a GSM network. 26. Cricket knew and failed to disclose this material information to customers. 27. Cricket, moreover, continued to offer for sale and sell to the consuming public CDMA handsets that are not compatible with and cannot be migrated to the GSM network. 28. Cricket thus knew, and failed to disclose, that many of the CDMA handsets it offered for sale and sold to the consuming public would be rendered inoperable as a result of the AT&T acquisition. 29. For instance, Plaintiff purchased a Samsung Galaxy 4S from an authorized agent of Cricket in or around December 2013, more than five months after AT&T acquired Cricket. 30. Thereafter, Plaintiff entered into a wireless service agreement with Cricket to use the Samsung Galaxy 4S on Cricket's CDMA compatible cellular network. 6 JA 52 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 56 of 426 Total Pages:(96 of 466) 2 31. Plaintiff received two different receipts, one for the purchase of the phone and one for the purchase of the wireless service agreement. 32. In January 2015, AT&T publicly announced that the legacy CDMA markets covered by its Cricket unit will be turned off this year, in a three-phase switch-off plan. See https://www.telegeography.com/products/commsupdate/articles/2015/01/09/att-confirms- september-shutdown-of-cricket-cdma-network/. 33. As per the AT&T public announcement in January 2015, the CDMA wireless service will be terminated on a rolling basis by bill cycle. Customers in the initial 'sunset markets' will have their service terminated by bill cycle beginning March 15, 2015 with the CDMA network in those markets being turned off completely on 15 April 2015. Initial (March/April) sunset markets include: Washington, DC; Little Rock, Fayetteville and Fort Smith (Arkansas); Wilmington (Delaware); Chicago and Northern Illinois (Illinois); South Bend (Indiana); Baltimore (Maryland); Atlantic City (New Jersey); Buffalo, Rochester and Syracuse (New York) and Philadelphia (Pennsylvania). 34. The second group of markets slated for shutdown in May/June 2015 consists of: Wichita (Kansas); Albuquerque and Las Cruces (New Mexico); Las Vegas (Nevada) and Oklahoma City and Tulsa (Oklahoma). 35. All remaining legacy CDMA markets will be turned off by mid-September 2015. 36. Cricket announced that its customers who purchased an iPhone with original CDMA (including the iPhone 4s, iPhone 5, iPhone 5s or iPhone 5c) will receive a free, replacement SIM card that enables the iPhone to operate on Cricket's new 4G and 4G LTE nationwide GSM network. However, persons who purchased any other type of cell phone from Cricket would be required to purchase a new handset. 7 JA 53 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 57 of 426 Total Pages:(97 of 466) 2 37. As Cricket explained on its website: "The new Cricket's nationwide 4G network uses GSM (Global System for Mobile Communications) technology that is the global standard for mobile service while the original Cricket uses CDMA network technology. That means that with the exception of original Cricket iPhone 4S, iPhone 5, iPhone 5S and iPhone 5C, your current CDMA phone will not work on the new Cricket network. 38. In or around February 2015, Plaintiff went into a Cricket store in Maryland to pay his bill for February service. When Plaintiff was in the Cricket store, Cricket turned his Samsung Galaxy S4 phone off. Plaintiff attempted to have his phone turned back on through AT&T and other service providers, including Sprint, Virgin Mobile and T-Mobile. But none was able to revive Plaintiff's phone. 39. Plaintiff's phone has no value or only a de minimis value due to its inoperability on any cellular network. 40. Plaintiff is not alone. Indeed, several consumers have made anonymous complaints on the web page forum: https://forums.att.com/t5/General-Account-Questions/AT- amp-T-Merger-with-Cricket-Sucks/td-p/4096500, concerning Cricket's failure to disclose that the CDMA handheld devices which it offered for sale and sold to the consuming public as of July 12, 2013, would be inoperable as a result of the AT&T acquisition, including the following: Blownaway Sep 26, 2014 8:26:33 AM This merger of AT&T and Cricket is horrible. First I just bought an expensive Samsung Galaxy S4 not even a year ago and I am being told that I have to buy a brand new phone when the merger is fully complete (March 2015). This is ridiculous - who is sitting around with an extra $400 a year to purchase a new phone. As large a company as AT&T they do not have the capability to switch my phone over. 8 JA 54 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 58 of 426 Total Pages:(98 of 466) 2 SteveJodylynn Oct 29, 2014 12:28:27 PM I agree. It is just a few months from when my expensive CDMA Cricket smartphone (less than a year old) becomes inoperable and I've heard nothing from AT&T or Cricket about the transition plan, other than I will be forced to shell out hundreds for a new phone that is compatible with AT&T's network. Chiefsfan Nov 29, 2014 5:43:14 PM. . . AT&T is screwing over thousands of Cricket customers and they DON'T CARE ONE BIT! Cricket shouldn't have been selling phones over the past 7-8 months, since the merger with AT&T, knowing that they won't work after March, but they continue to do just that. The point is that AT&T is gaining millions of unearned $ by forcing customers to buy new ridiculously expensive phones (oh, but they'll give you a free deal on their piece-o-crap phones (which are all of them other than the Galaxy & iphones) all under the guise of "providing better service". What a crock!! WE ALL NEED TO BOYCOTT AT&T ONCE THEY RENDER OUR PHONES USELESS!!! hatenewcricket Feb 11, 2015 9:16:13 PM I know what you mean I got my S4 just befor[e] they annou[n]ced the switch, I believe they knew what was going to happen and sold me an already worthless phone this whole thing has been a rip off and is unfair to cricked customers who are getting screwed V. CLASS ALLEGATIONS 41. Plaintiff brings this action against Defendant pursuant to Rule 23 of the Federal Rules of Civil Procedure on behalf of himself and all other persons similarly situated. Plaintiff seeks to represent the following classes: All persons nationwide during the period July 12, 2013 to the present, who purchased a CDMA handset from Cricket or through its authorized agents. Excluded from this class are Defendants, their affiliates, subsidiaries, agents, board members, directors, officers, and/or employees. 9 JA 55 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 59 of 426 Total Pages:(99 of 466) 2 42. Plaintiff reserves the right to modify or amend the definition of the proposed Class before the Court determines whether certification is appropriate. 43. Defendant subjected Plaintiff and the respective Class members to the same unfair, unlawful, and deceptive practices and harmed them in the same manner. 44. The Class, as defined above, is identifiable. 45. The Named Plaintiff is a member of the Class. 46. The proposed class is so numerous that joinder of all members would be impracticable. Cricket sold thousands of CDMA handsets during the Class Period in the State of Maryland and nationwide. 47. The individual class members are ascertainable, as the names and addresses of all class members can be identified in the business records maintained by Defendant. 48. While the precise number of class members can only be obtained through discovery, the numbers are clearly more than can be consolidated in one complaint such that it would be impractical for each member to bring suit individually. 49. There are questions of law and fact that are common to Plaintiff's and class members' claims. These common questions predominate over any questions that go particularly to any individual member of the Class. 50. Among such common questions of law and fact are the following: a. Whether Cricket offered for sale and sold to the consuming public CDMA handsets during the Class Period; b. Whether Cricket knew and failed to disclose that the CDMA handsets would be inoperable upon completion of the merger with AT&T; c. Whether Cricket breached the implied covenant of good faith and fair dealing by offering for sale and selling soon to be inoperable CDMA handsets; 10 JA 56 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 60 of 426 Total Pages:(100 of 466) 2 d. Whether Cricket made material misstatements of fact and/or knew and failed to disclose material information concerning the CDMA handsets which it sold to Plaintiff and other members of the class, including facts that the CDMA handsets would be inoperable as a result of the AT&T acquisition, that Cricket planned to convert to the GSM network and that as a result, the CDMA handsets had an artificially limited useful life; e. Whether Cricket breached the implied warranty of merchantability by selling Plaintiff and the other members of the Class CDMA handsets which it knew had an artificially limited useful life; and f. Whether Plaintiff and the Class Members are entitled to damages and/or injunctive relief as a result of Defendant's conduct. 51. Plaintiff's claims are typical of the claims of t he c la s s because of the similarity, uniformity, and common purpose of Defendant's unlawful conduct. Each class member has sustained, and will continue to sustain, damages in the same manner as Plaintiff as a result of Defendant's wrongful conduct. 52. Plaintiff is an adequate representative of the class he seeks to represent and will fairly and adequately protect the interests of that class. 53. Plaintiff is committed to the vigorous prosecution of this action and has retained competent counsel, experienced in litigation of this nature, to represent them. 54. There is no hostility between Plaintiff and the unnamed class members. 55. Plaintiff anticipates no difficulty in the management of this litigation as a class action. 56. To prosecute this case, Plaintiff has chosen the undersigned law firms, which are experienced in class action litigation and have the financial and legal resources to meet the substantial costs and legal issues associated with this type of litigation. 11 JA 57 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 61 of 426 Total Pages:(101 of 466) 2 57. The questions of law or fact common to Plaintiff's and each Class Member's claims predominate over any questions of law or fact affecting only individual members of the class. 58. All claims by Plaintiff and the unnamed class members are based on Cricket's sale of CDMA handsets to the consuming public when it knew, or reasonably should have known and failed to disclose that these handsets would be inoperable upon completion of the AT&T merger. 59. Common issues predominate where, as here, liability can be determined on a class-wide basis, even when there will be some individualized damages determinations. 60. As a result, when determining whether common questions predominate, courts focus on the liability issue, and if the liability issue is common to the class as is the case at bar, common questions will be held to predominate over individual questions. 61. A class action is superior to individual actions in part because of the non- exhaustive factors listed below: (a) Joinder of all class members would create extreme hardship and inconvenience for the affected customers as they reside all across the states; (b) Individual claims by class members are impractical because the costs to pursue individual claims exceed the value of what any one class member has at stake. As a result, individual class members have no interest in prosecuting and controlling separate actions; (c) There are no known individual class members who are interested in individually controlling the prosecution of separate actions; (d) The interests of justice will be well served by resolving the common disputes of potential class members in one forum; (e) Individual suits would not be cost effective or economically maintainable as individual actions; and 12 JA 58 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 62 of 426 Total Pages:(102 of 466) 2 (f) The action is manageable as a class action. VI. CAUSES OF ACTION COUNT I BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY 62. Plaintiff incorporates by reference paragraphs 1 through 61 above, as if each and every allegation is set forth fully herein. 63. At all relevant times, Cricket was a merchant with respect to the CDMA handsets. 64. Plaintiff purchased his now inoperable CDMA handset from an authorized agent of Cricket. At the time of purchase, Cricket and it authorized agents were in the business of selling CDMA handsets and/or by course of business held itself out as having special knowledge or skill regarding those handsets. 65. A warranty that the CDMA handsets were in merchantable condition was implied by law in the sale of these handsets by Cricket and its agents. 66. The CDMA handsets which Cricket and its authorized agents sold to Plaintiff and other members of the class were not in merchantable condition and are not fit for the ordinary purpose for which handsets are used and/or were not of the same quality of those generally acceptable in the trade. 67. In fact, the CDMA handsets sold by Cricket and its authorized agents, including the Samsung Galaxy 4S sold to Plaintiff, were unmerchantable. 68. Specifically, Cricket knew and failed to disclose that these CDMA handsets would be inoperable as a result of the AT&T acquisition and Cricket's plan to convert to the GSM network. As a result, the CDMA handsets had an artificially limited useful life. 13 JA 59 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 63 of 426 Total Pages:(103 of 466) 2 69. Plaintiff and other members of the Class have had sufficient direct dealings with either Cricket or its authorized agents to establish vertical privity of contract between themselves and Defendant. Nevertheless, privity is not required in this case because Plaintiff and the other members of the Class are intended third- party beneficiaries of contract between Cricket and its authorized agents. Specifically, Plaintiff and the other members of the Class are the intended beneficiaries of Cricket's implied warranties. Cricket's authorized agents were not intended to be the ultimate consumers of the CDMA handsets. COUNT II FRAUDULENT CONCEALMENT 70. Plaintiff incorporates by reference paragraphs 1 through 61 above, as if each and every allegation is set forth fully herein. 71. As set forth above, Cricket knew and failed to disclose and/ or suppressed and/or concealed material facts concerning the CDMA handsets, including the Samsung Galaxy 4S, which it sold to Plaintiff and other members of the class. 72. These concealed facts were material because they directly impacted the reliability and use of the handsets. 73. Cricket owed Plaintiff and the other members of the Class a duty to disclose that the CDMA handsets would be rendered inoperable by the AT&T acquisition and Cricket's plans to convert to the GSM network because it possessed exclusive and superior knowledge and access to these facts. 14 JA 60 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 64 of 426 Total Pages:(104 of 466) 2 74. Cricket knew and failed to disclose that the CDMA handsets had an artificially limited useful life and that the CDMA handsets were not compatible with AT&T's GSM cellular network. 75. Cricket actively concealed and/or suppressed these material facts, in whole or in part, with the intent to induce Plaintiff and the other members of the Class to purchase the CDMA handsets from Cricket and its authorized agents and to pay more than they otherwise would have paid had these material facts that the CDMA handsets would be inoperable as a result of the AT&T acquisition and Cricket's plans to convert to the GSM network been disclosed. 76. Cricket's conduct was oppressive, fraudulent, malicious and in reckless disregard of the rights of Plaintiff and the Class. 77. Plaintiff and the other members of the Class were not aware of the omitted material facts and would not have acted as they did if they had known of the concealed and/or suppressed facts. 78. As a result of Cricket's concealment and/or suppression of material facts concerning the CDMA handsets, Plaintiff and the Class have sustained damages. COUNT III MONEY HAD AND RECEIVED/UNJUST ENRICHMENT 79. Plaintiff incorporates herein by reference as though fully set forth the allegations in paragraphs 1 through 61 of this Complaint, as if each and every allegation is set forth fully herein. 15 JA 61 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 65 of 426 Total Pages:(105 of 466) 2 80. As set forth above, Cricket charged and collected payments for CDMA handsets that would become inoperable in amounts that exceeded the value of these CDMA handsets, which conferred a substantial benefit on Cricket. 81. Cricket was aware of, and had knowledge of, this substantial benefit. 82. By doing so, Cricket has come into the possession of money in the form of payments that it had, and has no right to at law or in equity. 83. It would be inequitable for Cricket to retain any such monies that it had no legal right to charge. 84. As a consequence, Named Plaintiff and the members of the Class have been damaged. COUNT IV NEGLIGENT MISREPRESENTATION 85. Plaintiff incorporates herein by reference as though fully set forth the allegations in paragraphs 1 through 61 of this Complaint, as if each and every allegation is set forth fully herein. 86. Cricket and its agents or employees negligently made the false and misleading representations and omissions alleged herein, including but not limited to the representations that its CDMA handsets would pass without objection in the trade under the contract description and that the CDMA handsets sold were compatible with and would continue to be compatible with Cricket's CDMA's cellular service for the useful life of the handset. 16 JA 62 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 66 of 426 Total Pages:(106 of 466) 2 87. Cricket's agents or employees negligently failed to disclose the material fact that its handsets would become inoperable during its useful lifespan. 88. Cricket's agents or employees negligently failed to disclose that the prices of the CDMA handsets did not accurately represent its value, intending that Plaintiff and the Class would reasonably rely upon the false and misleading representations and omissions to their detriment, which they did. 89. As a direct and proximate result of Cricket's negligent statements, representations, and omissions, Plaintiff and the Class were induced, ab initio, to purchase a CDMA handset from Cricket for a price significantly higher than they were worth. 90. Cricket, their agents or employees, owed a duty of care to Plaintiff and the Class. 91. Cricket recklessly and negligently breached the duty of care they owed to Plaintiff and the Class by making negligent representations to Plaintiff and the Class and negligently concealing material facts from them, as set forth herein. 92. Cricket knew, or had reason to know, that Plaintiffs and the Class would reasonably rely on the representations and concealments which if erroneous, would cause loss, injury or damage. 93. Plaintiff and the Class justifiably and reasonably took actions to their detriment as alleged herein, by paying Cricket significantly more for their CDMA handsets than they were worth, in reliance on the negligent representations and concealments. 17 JA 63 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 67 of 426 Total Pages:(107 of 466) 2 COUNT V MARYLAND CONSUMER PROTECTION ACT 94. Plaintiff incorporates herein by reference as though fully set forth the allegations in paragraphs 1 through 61 of this Complaint, as if each and every allegation is set forth fully herein. 95. Cricket is a merchant within the meaning of the Maryland Consumer Protection Act ("MCPA"), MD. CODE ANN., COMM. LAW § 13-101(g), and is subject to all of the MCPA's provisions prohibiting unfair or deceptive trade practices including those in MD. CODE ANN., COMM. LAW §§ 13-303 and 13-301. 96. Cricket's failure to disclose and its concealment from Plaintiff and members of the Class of the material facts as set forth herein constitutes unfair and deceptive trade practices in violation of the MCPA, §§ 13-303 and 13-301(1), (2)(i) and (iv) and (3). If Plaintiff and members of the Class had known the material facts related to the CDMA handsets, they would not have purchased the handsets or would have required a significantly lower price. 97. On information and belief, Plaintiff avers that Cricket systematically sold CDMA handsets during the Class Period which were not compatible with AT&T's GSM cellular network and retailed these CDMA handsets to the public without disclosing the impending inoperability of the handsets to its customers, in violation of the MCPA, in order to illegally increase its profits. 98. Cricket's acts and omissions as aforesaid, including its failure to disclose and concealment of the material facts, and its affirmative misrepresentation to Named Plaintiff and the Class, tended to and did deceive Plaintiff and members of the Class and constitutes an unfair 18 JA 64 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 68 of 426 Total Pages:(108 of 466) 2 and deceptive trade practice, in violation of MCPA §§ 13-303(1) - (3) and 13-301(1), (2)(i) and (iv), and/or (3). 99. As a result of Cricket's unfair and deceptive trade practices, Named Plaintiff and the Class agreed to and did purchase their CDMA handsets, Plaintiff paid Cricket significantly more for their CDMA handsets than they were worth, and Named Plaintiff and the Class sustained the other damages and losses set forth above. COUNT VI FRAUD 100. Plaintiff incorporates herein by reference as though fully set forth the allegations in paragraphs 1 through 61 of this Complaint, as if each and every allegation is set forth fully herein. 101. Cricket and its authorized agents falsely represented to Plaintiff and other members of the Class that the CDMA handsets would be supported by Cricket for the useful life of the product. But for this representation, which Cricket and its authorized agents knew, or should have known, was false, Plaintiff and the other members of the Class would not have bought the CDMA handsets from Cricket. Moreover, but for this false representation, Plaintiff and the other members of the Class would not have then made a separate purchase from Cricket for the CDMA wireless service plan. 102. Defendant failed to disclose material information that Cricket would not continue to support the CDMA handsets as a result of the AT&T acquisition and that the CDMA handsets were not compatible with AT&T's GSM cellular network. 19 JA 65 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 69 of 426 Total Pages:(109 of 466) 2 103. Defendant made these false and misleading representations and omissions knowingly, recklessly, and/or without regard for their truth or falsity, and with the intent to induce Plaintiff and other members of the Class to rely upon them by purchasing a CDMA handset from Cricket. 104. Plaintiff and the other members of the Class justifiably relied upon the false representations and omissions made by Defendant by purchasing the CDMA handset from Cricket's authorized agent and then by purchasing a wireless service agreement from Cricket thereafter. 105. As a direct and proximate result of the reliance upon the false representations and omissions of Defendant, Plaintiff and the other members of the Class have suffered damages, including, but not limited to, the loss of the use of the CDMA handsets and the loss of their market value, well prior to the end of the useful life of these cell phones. 106. Because of the willful and wanton conduct of Defendant, Plaintiff and the other members of the Class are entitled to punitive, as well as actual, damages. PRAYER FOR RELIEF WHEREFORE, Plaintiff, on behalf of himself and all similarly situated individuals, demands judgment against Defendant as follows: (1) Declaring this action to be a proper class action maintainable pursuant to Rule 23(a) and Rule 23(b)(3) of the Federal Rules of Civil Procedure and declaring Plaintiff and their counsel to be representatives of the Class; 20 JA 66 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 70 of 426 Total Pages:(110 of 466) 2 (2) Requiring Defendant to replace the CDMA handsets with comparable GSM handsets free of charge; (3) Awarding actual damages to Plaintiff and the Class; (4) Awarding punitive damages to Plaintiff and the Class under Counts II, IV and VI; (5) Awarding Plaintiff and the Class costs and disbursements and reasonable allowances for the fees of counsel and experts, and reimbursement of expenses; (6) Awarding pre-judgment and post-judgment interest on all sums awarded to Named Plaintiff and the Class; and (7) Awarding such other and further relief the Court deems just and equitable. Respectfully submitted, Z LAW, LLC Dated: May 8, 2015 ________/s/___28191__ _____________ Cory L. Zajdel (Fed. Bar No. 28191) 301 Main Street, Ste. 2-D Reisterstown, MD 21136 (443) 213-1977 clz@zlawmaryland.com Oren S. Giskan (pending pro hac vice) Catherine E. Anderson (pending pro hac vice) Giskan Solotaroff Anderson & Stewart, LLP 11 Broadway, Suite #2150 New York, NY 10004 (212) 847-8315 Attorneys for Plaintiff 21 JA 67 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 71 of 426 Total Pages:(111 of 466) 2 DEMAND FOR JURY TRIAL Plaintiff and the Class request a jury trial for any and all Counts for which a trial by jury is permitted by law. ________/s/___28191__ _____________ Cory L. Zajdel (Fed. Bar No. 28191) 22 JA 68 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 72 of 426 Total Pages:(112 of 466) UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND (Baltimore Division) TIM BOND, on his own behalf and on behalf of all others similarly situated, Plaintiffs, Civil Action No. 1:15-cv-923-WDQ v. CRICKET COMMUNICATIONS, LLC, Defendant. DEFENDANT CRICKET COMMUNICATIONS, LLC'S MOTION TO COMPEL ARBITRATION Archis A. Parasharami (application to D. Md. Bar pending) Ann Marie Duffy (D. Md. Bar No. 16634) E. Brantley Webb MAYER BROWN LLP 1999 K Street, NW Washington, DC 20006 Tel: (202) 263-3000 Fax: (202) 263-3300 aparasharami@mayerbrown.com aduffy@mayerbrown.com bwebb@mayerbrown.com Counsel for Defendant Cricket Communications, LLC JA 69 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 73 of 426 Total Pages:(113 of 466) Pursuant to the Federal Arbitration Act, 9 U.S.C. §§ 1-16, Defendant Cricket Communications, LLC ("Cricket") respectfully moves this Court to enter an order (1) compelling Plaintiff Tim Bond to arbitrate his claims against Cricket on an individual basis and (2) staying further proceedings regarding those claims pending the outcome of arbitration. In support of this Motion, Cricket incorporates by reference the attached Memorandum as well as the Declarations of Julie Basham and Brantley Webb along with their supporting exhibits, any reply memorandum that Cricket may file, and any oral argument the Court may allow at a hearing on this Motion. Dated: July 13, 2015 /s/ Ann Marie Duffy Archis A. Parasharami (application to D. Md. Bar pending) Ann Marie Duffy (D. Md. Bar No. 16634) E. Brantley Webb MAYER BROWN LLP 1999 K Street, NW Washington, DC 20006 Tel: (202) 263-3000 Fax: (202) 263-3300 aparasharami@mayerbrown.com aduffy@mayerbrown.com bwebb@mayerbrown.com Counsel for Defendant Cricket Communications, LLC 1 JA 70 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 74 of 426 Total Pages:(114 of 466) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing was served electronically this 13th day of July, 2015, upon: Cory L. Zajdel Z LAW, LLC 301 Main Street, Ste. 2-D Reisterstown, MD 21136 (443) 213-1977 clz@zlawmaryland.com Oren S. Giskan Catherine E. Anderson GISKAN SOLOTAROFF ANDERSON & STEWART, LLP 11 Broadway, Suite #2150 New York, NY 10004 (212) 847-8315 Attorneys for Plaintiff /s/ Ann Marie Duffy Ann Marie Duffy (D. Md. Bar No. 16634) 2 JA 71 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 75 of 426 Total Pages:(115 of 466) 0 JA 72 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 76 of 426 Total Pages:(116 of 466) 0 JA 73 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 77 of 426 Total Pages:(117 of 466) 0 JA 74 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 78 of 426 Total Pages:(118 of 466) 0 JA 75 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 79 of 426 Total Pages:(119 of 466) 0 JA 76 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 80 of 426 Total Pages:(120 of 466) 0 JA 77 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 81 of 426 Total Pages:(121 of 466) 0 JA 78 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 82 of 426 Total Pages:(122 of 466) 0 JA 79 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 83 of 426 Total Pages:(123 of 466) 0 JA 80 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 84 of 426 Total Pages:(124 of 466) 0 JA 81 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 85 of 426 Total Pages:(125 of 466) JA 82 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 86 of 426 Total Pages:(126 of 466) IN THE UNITED STATES DISTRICT FOR THE DISTRICT OF MARYLAND (Baltimore Division) TIM BOND JURY TRIAL DEMANDED on his own behalf and on behalf of all others similarly situated, Plaintiffs, v. CRICKET COMMUNICATIONS, LLC Case No. 1:15-cv-923-WDQ Defendant. MOTION REQUESTING LEAVE TO FILE SECOND AMENDED CLASS ACTION COMPLAINT Named Plaintiff Tim Bond ("Bond"), by and through his attorney hereby moves this Court to lift the stay entered in this case and to allow Bond leave to amend his complaint. Bond added Count VII for Violations of the Magnusson Moss Warranty Act, 15 U.S.C. § 2301 et seq. in the Second Amended Class Action Complaint. Pursuant of FED. R. CIV. P. 15(a)(2) and this Court's Local Rules, counsel for Bond attempted to contact counsel for Defendant Cricket on December 7, 2016 and did contact counsel for Defendant Cricket on December 9, 2016 requesting consent for leave to amend the complaint. Declaration of Cory L. Zajdel, Esq. at ¶¶ 2-3 (Exhibit A). Not receiving any response from the request, counsel for Bond contacted counsel for Defendant Cricket again on January 12, 2017. Id. at ¶ 3 (Exhibit A). On January 18, 2017, counsel for Cricket notified that it would not consent to leave to file an amended complaint. Id. at ¶ 4 (Exhibit A). In response to Named Plaintiff's First Amended Class Action Complaint, Defendant JA 83 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 87 of 426 Total Pages:(127 of 466) Cricket Communications, LLC ("Cricket") filed a Motion to Compel Arbitration. The Court granted the Motion to Compel Arbitration and entered a stay to this litigation "pending the outcome of arbitration[.]" ECF #19. The Order compelling arbitration and entering a stay of this litigation related to Counts I through VI of the First Amended Class Action Complaint.1 Count VII, added in the Second Amended Class Action Complaint was not part of the First Amended Class Action Complaint and the Court has not considered whether the claims alleged under this Count are controlled by the purported arbitration clause in the contract between Bond and Cricket. The Federal Rules of Civil Procedure direct the courts to liberally allow leave to amend a complaint prior to trial "when justice so requires." FED. R. CIV. P. 15(a)(2). In turn, the courts will allow amendment so long as the amendment avoids "prejudice, bad faith, [and] futility." Katyle v. Penn Nat. Gaming, Inc., 63 F.3d 462, 471 (4th Cir. 2011). Since Cricket did not provide consent to the filing of the Second Amended Class Action Complaint, Bond assumes that Cricket will argue that one of these factors applies. In short, Bond states that as of the date of this filing, Defendant Cricket has not filed an answer or a motion to dismiss and no discovery has been undertaken in this litigation. Moreover, neither party has initiated arbitration in this matter and to the best of Bond's knowledge no additional expenses have accrued to either party since the Court entered the Order compelling arbitration of the claims included in the First Amended Complaint. Declaration of Cory L. Zajdel, Esq. at ¶¶ 5-6. Accordingly, there would be no prejudice caused by the filing of the Second Amended Class Action Complaint. Bond will address these arguments in Reply after they are presented by Cricket. 1 Bond is not seeking review or attempting to revive Counts I through VI in his Second Amended Complaint. They remain in the Second Amended Class Action Complaint for the purposes of appellate review when that route becomes available to Bond. JA 84 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 88 of 426 Total Pages:(128 of 466) To the contrary, Bond does understand that Cricket will take the position that the Court has ruled that the contract between Bond and Cricket had an arbitration agreement in writing under the Federal Arbitration Act, 9 U.S.C. § 1 et seq. and therefore the parties must arbitrate all claims arising under the contract. This argument does not apply to the added Magnusson Moss Warranty Act Claim because the statute itself prohibits a court from compelling arbitration of claims brought under the statute and violates Magnusson Moss Warranty Act Claim's single document rule. 15 U.S.C. § 2302(a), § 2310(d)(1) and § 2310(a)(3); 16 C.F.R. § 703; Fed. Trade Comm'n, Final Action: Concerning Review of Interpretations of Magnuson-Moss Warranty Act; Rule Governing Disclosure of Written Consumer Product Warranty Terms and Conditions; Rule Governing Pre-Sale Availability of Written Warranty Terms; Rule Governing Informal Dispute Settlement Procedures; and Guides for the Advertising of Warranties and Guarantees (May 22, 2015), available at www.ftc.gov/policy/federal-register-notices/final-action-magnuson-moss- warranty-act-interpretations-rules; Koons Ford of Baltimore, Inc. v. Lobach, 398 Md. 38, 39, 919 A.2d 722, 723 (Md. 2007). For these reasons, Bond is not required to submit his Magnuson- Moss Warranty Act claim to arbitration. As required by the Local Rules, both a clean version and a redlined version of the Second Amended Class Action Complaint are attached hereto. For the reasons set forth herein, Plaintiff Bond respectfully requests that his Motion Requesting Leave to File Second Amended Class Action Complaint be GRANTED and that it be accepted for filing. JA 85 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 89 of 426 Total Pages:(129 of 466) Respectfully submitted, Z LAW, LLC Dated: February 10, 2017 ________/s/___28191__ _____________ Cory L. Zajdel (Fed. Bar No. 28191) 2345 York Road, Ste. B-13 Timonium, MD 21093 (443) 213-1977 clz@zlawmaryland.com Oren S. Giskan Catherine E. Anderson Giskan Solotaroff Anderson & Stewart, LLP 11 Broadway, Suite #2150 New York, NY 10004 (212) 847-8315 Attorneys for Plaintiff JA 86 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 90 of 426 Total Pages:(130 of 466) IN THE UNITED STATES DISTRICT FOR THE DISTRICT OF MARYLAND (Baltimore Division) TIM BOND on his own behalf and on behalf of all others similarly situated, Plaintiffs, v. CRICKET COMMUNICATIONS, LLC Case No. 1:15-cv-923-WDQ Defendant. DECLARATION OF CORY L. ZAJDEL CORY L. ZAJDEL, being duly sworn according to law, deposes and says: 1. I am the managing member of Z Law, LLC and counsel for Plaintiff Tim Bond in the above captioned matter. I submit this Declaration for the limited purpose of putting before the Court certain documents related to the Motion for Leave to File Second Amended Class Action Complaint. 2. On December 7, 2016, I placed a call and left a message for counsel for Defendant Cricket Communications, LLC attempting to discuss consent for leave to file the Second Amended Class Action Complaint. 3. Attached as Exhibit A are true and correct copies of electronic mail sent to counsel for Defendant Cricket Communications, LLC on December 9, 2017 and January 12, 2017 requesting consent for leave to file the Second Amended Class Action Complaint. JA 87 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 91 of 426 Total Pages:(131 of 466) 4. Also attached as Exhibit A is a true and correct copy of electronic mail I received from counsel for Defendant Cricket Communications, LLC on January 18, 2017 denying the request to consent for leave to file the Second Amended Class Action Complaint. 5. Neither Plaintiff or Defendant has initiated an arbitration related to this litigation. 6. The only communication between the parties after the order compelling arbitration was entered and before Plaintiff's request to consent to the filing of an amended complaint was a brief telephone call lasting only a couple of minutes. I DECLARE UNDER THE PENALTY OF PERJURY THAT THE CONTENTS OF THE FOREGOING ARE TRUE TO THE BEST OF MY KNOWLEDGE, INFORMATION AND BELIEF. Dated: February 10, 2017 By:________/s/_28191_______________ Cory L. Zajdel, Esq. 2345 York Road, Suite #B-13 Timonium, Maryland 21093 (443) 213-1977 clz@zlawmaryland.com Attorney for Plaintiff Tim Bond JA 88 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 92 of 426 Total Pages:(132 of 466) JA 89 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 93 of 426 Total Pages:(133 of 466) RE: Bond v. AT&T Parasharami, Archis A. <AParasharami@mayerbrown.com> Wed 1/18/2017 1:36 PM To:Cory Zajdel <clz@zlawmaryland.com>; Cory, Thanks for your patience and I hope you are having a happy New Year! I lost track of this over the holidays. I have checked with my client and as you suspected, my client cannot consent to your motion to lift the stay. Best, Archis From: Cory Zajdel [mailto:clz@zlawmaryland.com] Sent: Thursday, January 12, 2017 3:51 PM To: Parasharami, Archis A. Subject: Re: Bond v. AT&T Archis: It has been more than a month since I emailed you the proposed amended complaint and request for consent to lift the stay in the action in order to file the amended complaint. I have not heard from you since. Please let me know by next Friday Cricket's position. CLZ From: Cory Zajdel Sent: Friday, December 9, 2016 4:22:00 PM To: Parasharami, Archis A. Subject: Re: Bond v. AT&T Archis: Pursuant to our call earlier this week, please find attached an amended complaint that I propose to file in this matter adding one court to the complaint. In order to achieve this, I will file a motion to lift the stay in this action and for leave to file amended complaint as attached. The purpose of this email is to request consent from Cricket Wireless/AT&T to the relief sought. Please let me know if your client consents to the relief requested. If you would like to discuss this issue further, please feel free to contact me at your convenience. CLZ __________________________________________________________________________ This email and any files transmitted with it are intended solely for the use of the individual or entity to whom they are addressed. If you have received this email in error please notify the system manager. If you are not the named addressee you should not disseminate, distribute or copy this e-mail. JA 90 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 94 of 426 Total Pages:(134 of 466) 4 IN THE UNITED STATES DISTRICT FOR THE DISTRICT OF MARYLAND (Baltimore Division) TIM BOND JURY TRIAL DEMANDED on his own behalf and on behalf of all others similarly situated, Plaintiffs, v. CRICKET COMMUNICATIONS, LLC Case No. 1:15-cv-923-WDQ Defendant. SECOND AMENDED CLASS ACTION COMPLAINT Plaintiff Tim Bond ("Plaintiff" or "Bond") b r i n g s this class action complaint individually and in a representative capacity on behalf all others similarly situated (the "Class") against defendant Cricket Communications, LLC. I. Preliminary Statement 1. On July 12, 2013, AT&T announced its agreement to acquire Cricket Communications Inc. 2. After acquiring Cricket Communications Inc., AT & T formed Cricket Communications, LLC ("Cricket") to carry on the business of the former Cricket Communications, Inc. 3. From July 12, 2013 to the present (the "Class Period"), Cricket, both directly and through its authorized agents, has offered for sale and sold to the consuming public CDMA handsets. JA 91 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 95 of 426 Total Pages:(135 of 466) 4 4. Prior to the Class Period, AT&T and Cricket decided that on or after the acquisition of Cricket, AT&T would discontinue all CDMA service and require all Cricket customers to use AT&T's GSM cellular network. 5. Prior to the Class Period, Cricket knew or should have known that AT&T intended to discontinue the use of CDMA handsets in favor of AT&T's GSM service. 6. During the Class Period, Cricket knew, or reasonably should have known, that the CDMA handsets sold would be inoperable as a result of the acquisition by AT&T. 7. During the Class Period, Cricket affirmatively represented that all CDMA handsets sold were compatible with Cricket's cellular phone service. 8. During the Class Period, Cricket failed to disclose that these CDMA handsets had an artificially limited useful life and that the phones would not be supported for the expected life of the phone. 9. Included in the CDMA handsets which were rendered inoperable by the AT&T acquisition is the Plaintiff's Samsung Galaxy S4, which he purchased from Cricket in or around December 2013. 10. Plaintiff asserts claims individually on behalf of the Class. II. The Parties 11. Plaintiff is a citizen of M a r y l a n d c u r r e n t l y r e s i d i n g a t 1 5 0 Westminster Pike, Reisterstown, MD 21136 (Baltimore County, MD). He is a natural person over the age of 21 and otherwise sui juris. JA 92 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 96 of 426 Total Pages:(136 of 466) 4 12. Defendant Cricket Communications, LLC is a limited liability company formed in the State of Delaware and maintains its corporate headquarters in Wilmington, Delaware. On July 12, 2013, AT&T agreed to buy Leap Wireless International, Inc., for $1.2 billion. As part of the agreement, AT&T would acquire the Leap Wireless subsidiary, Cricket Communications Inc. ("Cricket"), which provided wireless products and services to approximately 4.6 million subscribers. On March 13, 2014, the Federal Communications Commission approved the merger between AT&T and Leap Wireless. Since that time, Cricket has functioned as a unit of AT&T as Cricket Communications, LLC. III. JURISDICTION AND VENUE 13. This Court has jurisdiction over this action pursuant to the Class Action Fairness Act of 2005 ("CAFA"), Pub. L. No. 109-2, 119 Stat. 4 (codified in various sections of 28 U.S.C.). 14. Plaintiff Tim Bond is a citizen of Maryland. Defendant is a citizen of Delaware and Texas but is registered to do business in Maryland and nationwide. The amount in controversy exceeds $5,000,000 and there are at least one hundred members of the putative class. 15. This Court has jurisdiction over Defendant because it either is a foreign corporation authorized to conduct business in Maryland, is doing business in Maryland and has registered with the Maryland Secretary of State, or do sufficient business in Maryland, have sufficient minimum contacts with Maryland, or otherwise intentionally avail themselves of the Maryland consumer market through the promotion, marketing and sale of wireless products and services in Maryland. This purposeful availment renders the exercise of jurisdiction by this JA 93 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 97 of 426 Total Pages:(137 of 466) 4 Court over Defendant and its affiliated or related entities permissible under traditional notions of fair play and substantial justice. 16. In addition, this Court has subject-matter jurisdiction under CAFA because the amount in controversy exceeds $5 million and diversity exists between Plaintiff and the Defendants. 28 U.S.C. § 1332(d)(2). Further, in determining whether the $5 million amount in controversy requirement of 28 U.S.C. § 1332(d) (2) is met, the claims of the putative class members are aggregated. 28 U.S.C. § 1332(d)(6). 17. Venue is proper in this forum pursuant to 28 U.S.C. § 1391 because Defendant transacts business and may be found in this District and a substantial portion of the practices complained of herein occurred in the District of Maryland. 18. All conditions precedent to this action have occurred, been performed, or have been waived. IV. Factual Allegations 19. Two of the predominant cellular voice technologies in the United States are Global Systems for Mobile communications ("GSM") and Code Division Multiple Access ("CDMA"). 20. GSM was developed by the European Telecommunications Standards Institute to replace the analog networks. In the United States, GSM is the technology behind AT&T and T- Mobile USA. Current GSM devices use a Security Identity Module, or SIM, card. This card contains the International Mobile Subscriber Identity (IMSA) Number, carrier information, and consumer contact information. Assuming the phone is not locked by the carrier, the SIM card slot allows the consumer to migrate the phone between carriers. JA 94 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 98 of 426 Total Pages:(138 of 466) 4 21. CDMA was developed by Qualcomm and has been the technology preferred by Sprint and Verizon. Rather than having a SIM card for data storage, data is stored on the CDMA phone itself. This has made moving a CDMA phone between carriers difficult, if not impossible. 22. At all relevant times, Cricket has marketed, offered for sale, and sold handheld devices compatible with the CDMA network. 23. Each of the CDMA handsets sold by Cricket included an express statement, constituting an express warranty, that the telephone included "Nationwide Coverage" and that "Cricket's network provides unsurpassed nationwide coverage." 24. In July 2013, AT&T reached an agreement to purchase the assets and assume the liabilities of Leap Wireless, the parent of Cricket, for $1.2 Billion. AT & T retained Cricket's directors and management in addition to its 3,400 employees. The July 12, 2013 press release of AT&T and Leap Wireless provided, in relevant part, the following information about the acquisition: AT&T will acquire all of Leap's stock and wireless properties, including licenses, network assets, retail stores and approximately 5 million subscribers. . . . Leap's network covers approximately 96 million people in 35 U.S. states. Leap currently operates -- under the Cricket brand -- a 3G CDMA network, as well as a 4G LTE network covering 21 million people in these areas, and has 3,400 employees. AT&T will retain the Cricket brand name, provide Cricket customers with access to AT&T's award-winning 4G LTE mobile network, utilize Cricket's distribution channels, and expand Cricket's presence to additional U.S. cities. The result will be increased competition, better device choices, improved customer care and a significantly enhanced mobile Internet experience for consumers seeking low-cost prepaid wireless plans. . . . The acquisition includes spectrum in the PCS and AWS bands covering 137 million people and is largely complementary to AT&T's existing spectrum JA 95 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 99 of 426 Total Pages:(139 of 466) 4 licenses. Immediately after approval of the transaction, AT&T plans to put Leap's unutilized spectrum – which covers 41 million people -- to use in furthering its 4G LTE deployment and providing additional capacity and enhanced network performance for customers' growing mobile Internet usage. Owners of approximately 29.8% of Leap's outstanding shares have entered into an agreement to vote in favor of the transaction. The transaction is subject to review by the Federal Communications Commission and the Department of Justice and to other customary closing conditions. AT&T expects the transaction to close in six to nine months. 25. Thus, according to the July 12, 2013 press release, AT&T intended to move customers from Cricket's CDMA network to AT&T's GSM network and Cricket/AT&T further intended not to support CDMA handsets that could not be migrated to the GSM network. 26. In fact, many CDMA handsets cannot be moved to a GSM network because Cricket locked the CDMA handsets it sold. 27. Cricket knew and failed to disclose this material information to customers. 28. Cricket, moreover, continued to offer for sale and sell to the consuming public CDMA handsets that are not compatible with and cannot be migrated to the GSM network. 29. Cricket thus knew, and failed to disclose, that many of the CDMA handsets it offered for sale and sold to the consuming public would be rendered inoperable as a result of the AT&T acquisition (i.e. not able to make telephone calls or other forms of mobile communications). 30. For instance, Plaintiff purchased a Samsung Galaxy 4S from an authorized agent of Cricket in or around December 2013, more than five months after AT&T acquired Cricket. JA 96 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 100 of 426 Total Pages:(140 of 466) 4 31. Thereafter, Plaintiff entered into a wireless service agreement with Cricket to use the Samsung Galaxy 4S on Cricket's CDMA compatible cellular network. 32. Plaintiff received two different receipts, one for the purchase of the phone and one for the purchase of the wireless service agreement. 33. In January 2015, AT&T publicly announced that the legacy CDMA markets covered by its Cricket unit will be turned off this year, in a three-phase switch-off plan. See https://www.telegeography.com/products/commsupdate/articles/2015/01/09/att-confirms- september-shutdown-of-cricket-cdma-network/. 34. As per the AT&T public announcement in January 2015, the CDMA wireless service will be terminated on a rolling basis by bill cycle. Customers in the initial 'sunset markets' will have their service terminated by bill cycle beginning March 15, 2015 with the CDMA network in those markets being turned off completely on 15 April 2015. Initial (March/April) sunset markets include: Washington, DC; Little Rock, Fayetteville and Fort Smith (Arkansas); Wilmington (Delaware); Chicago and Northern Illinois (Illinois); South Bend (Indiana); Baltimore (Maryland); Atlantic City (New Jersey); Buffalo, Rochester and Syracuse (New York) and Philadelphia (Pennsylvania). 35. The second group of markets slated for shutdown in May/June 2015 consists of: Wichita (Kansas); Albuquerque and Las Cruces (New Mexico); Las Vegas (Nevada) and Oklahoma City and Tulsa (Oklahoma). 36. All remaining legacy CDMA markets will be turned off by mid-September 2015. 37. Cricket announced that its customers who purchased an iPhone with original CDMA (including the iPhone 4s, iPhone 5, iPhone 5s or iPhone 5c) will receive a free, JA 97 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 101 of 426 Total Pages:(141 of 466) 4 replacement SIM card that enables the iPhone to operate on Cricket's new 4G and 4G LTE nationwide GSM network. However, persons who purchased any other type of cell phone from Cricket would be required to purchase a new handset. 38. As Cricket explained on its website: "The new Cricket's nationwide 4G network uses GSM (Global System for Mobile Communications) technology that is the global standard for mobile service while the original Cricket uses CDMA network technology. That means that with the exception of original Cricket iPhone 4S, iPhone 5, iPhone 5S and iPhone 5C, your current CDMA phone will not work on the new Cricket network. 39. In or around February 2015, Plaintiff went into a Cricket store in Maryland to pay his bill for February service. When Plaintiff was in the Cricket store, Cricket turned his Samsung Galaxy S4 phone off. Plaintiff attempted to have his phone turned back on through AT&T and other service providers, including Sprint, Virgin Mobile and T-Mobile. But none was able to revive Plaintiff's phone. 40. Plaintiff's phone has no value or only a de minimis value due to its inoperability on any cellular network. 41. Plaintiff is not alone. Indeed, several consumers have made anonymous complaints on the web page forum: https://forums.att.com/t5/General-Account-Questions/AT- amp-T-Merger-with-Cricket-Sucks/td-p/4096500, concerning Cricket's failure to disclose that the CDMA handheld devices which it offered for sale and sold to the consuming public as of July 12, 2013, would be inoperable as a result of the AT&T acquisition, including the following: Blownaway Sep 26, 2014 8:26:33 AM JA 98 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 102 of 426 Total Pages:(142 of 466) 4 This merger of AT&T and Cricket is horrible. First I just bought an expensive Samsung Galaxy S4 not even a year ago and I am being told that I have to buy a brand new phone when the merger is fully complete (March 2015). This is ridiculous - who is sitting around with an extra $400 a year to purchase a new phone. As large a company as AT&T they do not have the capability to switch my phone over. SteveJodylynn Oct 29, 2014 12:28:27 PM I agree. It is just a few months from when my expensive CDMA Cricket smartphone (less than a year old) becomes inoperable and I've heard nothing from AT&T or Cricket about the transition plan, other than I will be forced to shell out hundreds for a new phone that is compatible with AT&T's network. Chiefsfan Nov 29, 2014 5:43:14 PM. . . AT&T is screwing over thousands of Cricket customers and they DON'T CARE ONE BIT! Cricket shouldn't have been selling phones over the past 7-8 months, since the merger with AT&T, knowing that they won't work after March, but they continue to do just that. The point is that AT&T is gaining millions of unearned $ by forcing customers to buy new ridiculously expensive phones (oh, but they'll give you a free deal on their piece-o-crap phones (which are all of them other than the Galaxy & iphones) all under the guise of "providing better service". What a crock!! WE ALL NEED TO BOYCOTT AT&T ONCE THEY RENDER OUR PHONES USELESS!!! hatenewcricket Feb 11, 2015 9:16:13 PM I know what you mean I got my S4 just befor[e] they annou[n]ced the switch, I believe they knew what was going to happen and sold me an already worthless phone this whole thing has been a rip off and is unfair to cricked customers who are getting screwed V. CLASS ALLEGATIONS 42. Plaintiff brings this action against Defendant pursuant to Rule 23 of the Federal Rules of Civil Procedure on behalf of himself and all other persons similarly situated. Plaintiff seeks to represent the following classes: All persons nationwide during the period July 12, 2013 to the present, who purchased a CDMA handset from Cricket or through its authorized agents. JA 99 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 103 of 426 Total Pages:(143 of 466) 4 Excluded from this class are Defendants, their affiliates, subsidiaries, agents, board members, directors, officers, and/or employees. 43. Plaintiff reserves the right to modify or amend the definition of the proposed Class before the Court determines whether certification is appropriate. 44. Defendant subjected Plaintiff and the respective Class members to the same unfair, unlawful, and deceptive practices and harmed them in the same manner. 45. The Class, as defined above, is identifiable. 46. The Named Plaintiff is a member of the Class. 47. The proposed class is so numerous that joinder of all members would be impracticable. Cricket sold thousands of CDMA handsets during the Class Period in the State of Maryland and nationwide. 48. The individual class members are ascertainable, as the names and addresses of all class members can be identified in the business records maintained by Defendant. 49. While the precise number of class members can only be obtained through discovery, the numbers are clearly more than can be consolidated in one complaint such that it would be impractical for each member to bring suit individually. 50. There are questions of law and fact that are common to Plaintiff's and class members' claims. These common questions predominate over any questions that go particularly to any individual member of the Class. 51. Among such common questions of law and fact are the following: a. Whether Cricket offered for sale and sold to the consuming public CDMA handsets during the Class Period; JA 100 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 104 of 426 Total Pages:(144 of 466) 4 b. Whether Cricket knew and failed to disclose that the CDMA handsets would be inoperable upon completion of the merger with AT&T; c. Whether Cricket knew at the time of sale that Plaintiff and Class Members intended to use the mobile telephones it sold to them to make telephone calls and mobile communications; d. Whether Cricket breached written warranties in its sales of mobile telephones to Plaintiff and other Class Members; e. Whether Cricket breached the implied covenant of good faith and fair dealing by offering for sale and selling soon to be inoperable CDMA handsets; f. Whether Cricket breached the implied warranty of fitness for a particular purpose in its sales of mobile telephones to Plaintiff and other Class Members; g. Whether Cricket made material misstatements of fact and/or knew and failed to disclose material information concerning the CDMA handsets which it sold to Plaintiff and other members of the class, including facts that the CDMA handsets would be inoperable as a result of the AT&T acquisition, that Cricket planned to convert to the GSM network and that as a result, the CDMA handsets had an artificially limited useful life; h. Whether Cricket breached the implied warranty of merchantability by selling Plaintiff and the other members of the Class CDMA handsets which it knew had an artificially limited useful life; i. Whether Cricket violated the Magnuson-Moss Warranty Act in its transactions with Plaintiff and other Class Members; and j. Whether Plaintiff and the Class Members are entitled to damages and/or injunctive relief as a result of Defendant's conduct. 52. Plaintiff's claims are typical of the claims o f t he cl as s because of the similarity, uniformity, and common purpose of Defendant's unlawful conduct. Each class member has sustained, and will continue to sustain, damages in the same manner as Plaintiff as a result of Defendant's wrongful conduct. JA 101 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 105 of 426 Total Pages:(145 of 466) 4 53. Plaintiff is an adequate representative of the class he seeks to represent and will fairly and adequately protect the interests of that class. 54. Plaintiff is committed to the vigorous prosecution of this action and has retained competent counsel, experienced in litigation of this nature, to represent them. 55. There is no hostility between Plaintiff and the unnamed class members. 56. Plaintiff anticipates no difficulty in the management of this litigation as a class action. 57. To prosecute this case, Plaintiff has chosen the undersigned law firms, which are experienced in class action litigation and have the financial and legal resources to meet the substantial costs and legal issues associated with this type of litigation. 58. The questions of law or fact common to Plaintiff's and each Class Member's claims predominate over any questions of law or fact affecting only individual members of the class. 59. All claims by Plaintiff and the unnamed class members are based on Cricket's sale of CDMA handsets to the consuming public when it knew, or reasonably should have known and failed to disclose that these handsets would be inoperable upon completion of the AT&T merger. 60. Common issues predominate where, as here, liability can be determined on a class-wide basis, even when there will be some individualized damages determinations. 61. As a result, when determining whether common questions predominate, courts focus on the liability issue, and if the liability issue is common to the class as is the case at bar, common questions will be held to predominate over individual questions. JA 102 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 106 of 426 Total Pages:(146 of 466) 4 62. A class action is superior to individual actions in part because of the non- exhaustive factors listed below: (a) Joinder of all class members would create extreme hardship and inconvenience for the affected customers as they reside all across the states; (b) Individual claims by class members are impractical because the costs to pursue individual claims exceed the value of what any one class member has at stake. As a result, individual class members have no interest in prosecuting and controlling separate actions; (c) There are no known individual class members who are interested in individually controlling the prosecution of separate actions; (d) The interests of justice will be well served by resolving the common disputes of potential class members in one forum; (e) Individual suits would not be cost effective or economically maintainable as individual actions; and (f) The action is manageable as a class action. VI. CAUSES OF ACTION COUNT I BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY 63. Plaintiff incorporates by reference paragraphs 1 through 62 above, as if each and every allegation is set forth fully herein. 64. At all relevant times, Cricket was a merchant with respect to the CDMA handsets. 65. Plaintiff purchased his now inoperable CDMA handset from an authorized agent of Cricket. At the time of purchase, Cricket and it authorized agents were in the business of selling CDMA handsets and/or by course of business held itself out as having special knowledge or skill regarding those handsets. JA 103 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 107 of 426 Total Pages:(147 of 466) 4 66. A warranty that the CDMA handsets were in merchantable condition was implied by law in the sale of these handsets by Cricket and its agents. 67. The CDMA handsets which Cricket and its authorized agents sold to Plaintiff and other members of the class were not in merchantable condition and are not fit for the ordinary purpose for which handsets are used and/or were not of the same quality of those generally acceptable in the trade. 68. In fact, the CDMA handsets sold by Cricket and its authorized agents, including the Samsung Galaxy 4S sold to Plaintiff, were unmerchantable. 69. Specifically, Cricket knew and failed to disclose that these CDMA handsets would be inoperable as a result of the AT&T acquisition and Cricket's plan to convert to the GSM network. As a result, the CDMA handsets had an artificially limited useful life. 70. Plaintiff and other members of the Class have had sufficient direct dealings with either Cricket or its authorized agents to establish vertical privity of contract between themselves and Defendant. Nevertheless, privity is not required in this case because Plaintiff and the other members of the Class are intended third- party beneficiaries of contract between Cricket and its authorized agents. Specifically, Plaintiff and the other members of the Class are the intended beneficiaries of Cricket's implied warranties. Cricket's authorized agents were not intended to be the ultimate consumers of the CDMA handsets. COUNT II FRAUDULENT CONCEALMENT 71. Plaintiff incorporates by reference paragraphs 1 through 62 above, as if each and every allegation is set forth fully herein. JA 104 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 108 of 426 Total Pages:(148 of 466) 4 72. As set forth above, Cricket knew and failed to disclose and/ or suppressed and/or concealed material facts concerning the CDMA handsets, including the Samsung Galaxy 4S, which it sold to Plaintiff and other members of the class. 73. These concealed facts were material because they directly impacted the reliability and use of the handsets. 74. Cricket owed Plaintiff and the other members of the Class a duty to disclose that the CDMA handsets would be rendered inoperable by the AT&T acquisition and Cricket's plans to convert to the GSM network because it possessed exclusive and superior knowledge and access to these facts. 75. Cricket knew and failed to disclose that the CDMA handsets had an artificially limited useful life and that the CDMA handsets were not compatible with AT&T's GSM cellular network. 76. Cricket actively concealed and/or suppressed these material facts, in whole or in part, with the intent to induce Plaintiff and the other members of the Class to purchase the CDMA handsets from Cricket and its authorized agents and to pay more than they otherwise would have paid had these material facts that the CDMA handsets would be inoperable as a result of the AT&T acquisition and Cricket's plans to convert to the GSM network been disclosed. 77. Cricket's conduct was oppressive, fraudulent, malicious and in reckless disregard of the rights of Plaintiff and the Class. JA 105 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 109 of 426 Total Pages:(149 of 466) 4 78. Plaintiff and the other members of the Class were not aware of the omitted material facts and would not have acted as they did if they had known of the concealed and/or suppressed facts. 79. As a result of Cricket's concealment and/or suppression of material facts concerning the CDMA handsets, Plaintiff and the Class have sustained damages. COUNT III MONEY HAD AND RECEIVED/UNJUST ENRICHMENT 80. Plaintiff incorporates herein by reference as though fully set forth the allegations in paragraphs 1 through 62 of this Complaint, as if each and every allegation is set forth fully herein. 81. As set forth above, Cricket charged and collected payments for CDMA handsets that would become inoperable in amounts that exceeded the value of these CDMA handsets, which conferred a substantial benefit on Cricket. 82. Cricket was aware of, and had knowledge of, this substantial benefit. 83. By doing so, Cricket has come into the possession of money in the form of payments that it had, and has no right to at law or in equity. 84. It would be inequitable for Cricket to retain any such monies that it had no legal right to charge. 85. As a consequence, Named Plaintiff and the members of the Class have been damaged. JA 106 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 110 of 426 Total Pages:(150 of 466) 4 COUNT IV NEGLIGENT MISREPRESENTATION 86. Plaintiff incorporates herein by reference as though fully set forth the allegations in paragraphs 1 through 62 of this Complaint, as if each and every allegation is set forth fully herein. 87. Cricket and its agents or employees negligently made the false and misleading representations and omissions alleged herein, including but not limited to the representations that its CDMA handsets would pass without objection in the trade under the contract description and that the CDMA handsets sold were compatible with and would continue to be compatible with Cricket's CDMA's cellular service for the useful life of the handset. 88. Cricket's agents or employees negligently failed to disclose the material fact that its handsets would become inoperable during its useful lifespan. 89. Cricket's agents or employees negligently failed to disclose that the prices of the CDMA handsets did not accurately represent its value, intending that Plaintiff and the Class would reasonably rely upon the false and misleading representations and omissions to their detriment, which they did. 90. As a direct and proximate result of Cricket's negligent statements, representations, and omissions, Plaintiff and the Class were induced, ab initio, to purchase a CDMA handset from Cricket for a price significantly higher than they were worth. 91. Cricket, their agents or employees, owed a duty of care to Plaintiff and the Class. JA 107 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 111 of 426 Total Pages:(151 of 466) 4 92. Cricket recklessly and negligently breached the duty of care they owed to Plaintiff and the Class by making negligent representations to Plaintiff and the Class and negligently concealing material facts from them, as set forth herein. 93. Cricket knew, or had reason to know, that Plaintiffs and the Class would reasonably rely on the representations and concealments which if erroneous, would cause loss, injury or damage. 94. Plaintiff and the Class justifiably and reasonably took actions to their detriment as alleged herein, by paying Cricket significantly more for their CDMA handsets than they were worth, in reliance on the negligent representations and concealments. COUNT V MARYLAND CONSUMER PROTECTION ACT 95. Plaintiff incorporates herein by reference as though fully set forth the allegations in paragraphs 1 through 62 of this Complaint, as if each and every allegation is set forth fully herein. 96. Cricket is a merchant within the meaning of the Maryland Consumer Protection Act ("MCPA"), MD. CODE ANN., COMM. LAW § 13-101(g), and is subject to all of the MCPA's provisions prohibiting unfair or deceptive trade practices including those in MD. CODE ANN., COMM. LAW §§ 13-303 and 13-301. 97. Cricket's failure to disclose and its concealment from Plaintiff and members of the Class of the material facts as set forth herein constitutes unfair and deceptive trade practices in violation of the MCPA, §§ 13-303 and 13-301(1), (2)(i) and (iv) and (3). If Plaintiff and JA 108 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 112 of 426 Total Pages:(152 of 466) 4 members of the Class had known the material facts related to the CDMA handsets, they would not have purchased the handsets or would have required a significantly lower price. 98. On information and belief, Plaintiff avers that Cricket systematically sold CDMA handsets during the Class Period which were not compatible with AT&T's GSM cellular network and retailed these CDMA handsets to the public without disclosing the impending inoperability of the handsets to its customers, in violation of the MCPA, in order to illegally increase its profits. 99. Cricket's acts and omissions as aforesaid, including its failure to disclose and concealment of the material facts, and its affirmative misrepresentation to Named Plaintiff and the Class, tended to and did deceive Plaintiff and members of the Class and constitutes an unfair and deceptive trade practice, in violation of MCPA §§ 13-303(1) - (3) and 13-301(1), (2)(i) and (iv), and/or (3). 100. As a result of Cricket's unfair and deceptive trade practices, Named Plaintiff and the Class agreed to and did purchase their CDMA handsets, Plaintiff paid Cricket significantly more for their CDMA handsets than they were worth, and Named Plaintiff and the Class sustained the other damages and losses set forth above. COUNT VI FRAUD 101. Plaintiff incorporates herein by reference as though fully set forth the allegations in paragraphs 1 through 62 of this Complaint, as if each and every allegation is set forth fully herein. JA 109 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 113 of 426 Total Pages:(153 of 466) 4 102. Cricket and its authorized agents falsely represented to Plaintiff and other members of the Class that the CDMA handsets would be supported by Cricket for the useful life of the product. But for this representation, which Cricket and its authorized agents knew, or should have known, was false, Plaintiff and the other members of the Class would not have bought the CDMA handsets from Cricket. Moreover, but for this false representation, Plaintiff and the other members of the Class would not have then made a separate purchase from Cricket for the CDMA wireless service plan. 103. Defendant failed to disclose material information that Cricket would not continue to support the CDMA handsets as a result of the AT&T acquisition and that the CDMA handsets were not compatible with AT&T's GSM cellular network. 104. Defendant made these false and misleading representations and omissions knowingly, recklessly, and/or without regard for their truth or falsity, and with the intent to induce Plaintiff and other members of the Class to rely upon them by purchasing a CDMA handset from Cricket. 105. Plaintiff and the other members of the Class justifiably relied upon the false representations and omissions made by Defendant by purchasing the CDMA handset from Cricket's authorized agent and then by purchasing a wireless service agreement from Cricket thereafter. 106. As a direct and proximate result of the reliance upon the false representations and omissions of Defendant, Plaintiff and the other members of the Class have suffered damages, including, but not limited to, the loss of the use of the CDMA handsets and the loss of their market value, well prior to the end of the useful life of these cell phones. JA 110 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 114 of 426 Total Pages:(154 of 466) 4 107. Because of the willful and wanton conduct of Defendant, Plaintiff and the other members of the Class are entitled to punitive, as well as actual, damages. COUNT VII VIOLATION OF THE MAGNUSON-MOSS WARRANTY ACT 108. Named Plaintiff re-alleges and incorporates herein by reference the allegations in the foregoing paragraphs as if fully set forth below. 109. Congress enacted the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq. (the "Act") in 1975 in response to widespread complaints from consumers that many warranties were misleading and deceptive and were not being honored. To remedy this problem of deception and failure to honor warranties, the Act imposes civil liability on any "warrantor" for, inter alia, failing to comply with any obligation under a written warranty and/or implied warranty. 15 U.S.C. § 2310(d)(1). The Act further authorizes a "suit for damages and other legal and equitable relief." Id. The Act authorizes the award of attorneys' fees and expressly authorizes class actions. 15 U.S.C. § 2310(e). 110. Cricket is a "warrantor" within the meaning of Section 2301(5) of the Act. 111. Named Plaintiff and other members of the Class are "consumers" within the meaning of Section 2301(3) of the Act. 112. Cricket breached express warranties because the CDMA handsets sold did not conform to the description of the CDMA handsets. Cricket's affirmations of fact concerning the mobile telephones, and descriptions of the mobile telephones, which Cricket make to Plaintiff and the Class, relating to the mobile telephones and part of the basis of the bargain, created an JA 111 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 115 of 426 Total Pages:(155 of 466) 4 express warranty that the mobile telephones would operate on a nationwide network providing unsurpassed coverage. 113. Cricket breaches of the implied warranties of merchantability and fitness for a particular purpose as alleged herein, violate the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq., including 15 U.S.C. § 2310(d). 114. Cricket knew, at the time of sale, of the defects in the mobile telephones sold to Plaintiff and the Class Members which breached the express warranties and implied warranties of merchantability and fitness for a particular purpose. 115. Named Plaintiff contacted Cricket and asked Cricket to cure the defect in his mobile telephone by replacing it with a usable and comparable CDMA handset or by unlocking his handset so that he could use it on another CDMA wireless provider's network. Cricket refused to cure the defect or to replace or unlock Named Plaintiff's handset. 116. As a result of Cricket's violation of the Act, Named Plaintiff and the Class sustained the losses and damages described herein. PRAYER FOR RELIEF WHEREFORE, Plaintiff, on behalf of himself and all similarly situated individuals, demands judgment against Defendant as follows: (1) Declaring this action to be a proper class action maintainable pursuant to Rule 23(a) and Rule 23(b)(3) of the Federal Rules of Civil Procedure and declaring Plaintiff and their counsel to be representatives of the Class; JA 112 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 116 of 426 Total Pages:(156 of 466) 4 (2) Requiring Defendant to replace the CDMA handsets with comparable GSM handsets free of charge; (3) Awarding actual damages to Plaintiff and the Class; (4) Awarding punitive damages to Plaintiff and the Class under Counts II, IV and VI; (5) Awarding Plaintiff and the Class costs and disbursements and reasonable allowances for the fees of counsel and experts, and reimbursement of expenses; (6) Awarding pre-judgment and post-judgment interest on all sums awarded to Named Plaintiff and the Class; and (7) Awarding such other and further relief the Court deems just and equitable. Respectfully submitted, Z LAW, LLC Dated: February 10, 2017 ________/s/___28191__ _____________ Cory L. Zajdel (Fed. Bar No. 28191) 2345 York Road, Ste. B-13 Timonium, MD 21093 (443) 213-1977 clz@zlawmaryland.com Oren S. Giskan Catherine E. Anderson Giskan Solotaroff Anderson & Stewart, LLP 11 Broadway, Suite #2150 New York, NY 10004 (212) 847-8315 Attorneys for Plaintiff JA 113 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 117 of 426 Total Pages:(157 of 466) 4 DEMAND FOR JURY TRIAL Plaintiff and the Class request a jury trial for any and all Counts for which a trial by jury is permitted by law. ________/s/___28191__ _____________ Cory L. Zajdel (Fed. Bar No. 28191) JA 114 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 118 of 426 Total Pages:(158 of 466) 4 IN THE UNITED STATES DISTRICT FOR THE DISTRICT OF MARYLAND (Baltimore Division) TIM BOND 150 WESTMINSTER PIKE REISTERSTOWN, MD 21136 JURY TRIAL DEMANDED on his own behalf and on behalf of all others similarly situated, Plaintiffs, v. CRICKET COMMUNICATIONS, LLC Case No. 1:15-cv-923-WDQ 1209 ORANGE STREET WILMINGTON, DE 19801 SERVE ON: Archis A. Parasharami Mayer Brown LLP 1999 K Street, N.W. Washington, DC 20006 Defendant. FIRSECONDT AMENDED CLASS ACTION COMPLAINT Plaintiff Tim Bond ("Plaintiff" or "Bond") b r i n g s this class action complaint individually and in a representative capacity on behalf all others similarly situated (the "Class") against defendant Cricket Communications, LLC. I. Preliminary Statement 1. On July 12, 2013, AT&T announced its agreement to acquire Cricket Communications Inc. 2. After acquiring Cricket Communications Inc., AT & T formed Cricket Communications, LLC ("Cricket") to carry on the business of the former Cricket Communications, Inc. JA 115 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 119 of 426 Total Pages:(159 of 466) 4 3. From July 12, 2013 to the present (the "Class Period"), Cricket, both directly and through its authorized agents, has offered for sale and sold to the consuming public CDMA handsets. 4. Prior to the Class Period, AT&T and Cricket decided that on or after the acquisition of Cricket, AT&T would discontinue all CDMA service and require all Cricket customers to use AT&T's GSM cellular network. 5. Prior to the Class Period, Cricket knew or should have known that AT&T intended to discontinue the use of CDMA handsets in favor of AT&T's GSM service. 6. During the Class Period, Cricket knew, or reasonably should have known, that the CDMA handsets sold would be inoperable as a result of the acquisition by AT&T. 7. During the Class Period, Cricket affirmatively represented that all CDMA handsets sold were compatible with Cricket's cellular phone service. 8. During the Class Period, Cricket failed to disclose that these CDMA handsets had an artificially limited useful life and that the phones would not be supported for the expected life of the phone. 9. Included in the CDMA handsets which were rendered inoperable by the AT&T acquisition is the Plaintiff's Samsung Galaxy S4, which he purchased from Cricket in or around December 2013. 10. Plaintiff asserts claims individually on behalf of the Class. JA 116 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 120 of 426 Total Pages:(160 of 466) 4 II. The Parties 11. Plaintiff is a citizen of M a r y l a n d c u r r e n t l y r e s i d i n g a t 1 5 0 Westminster Pike, Reisterstown, MD 21136 (Baltimore County, MD). He is a natural person over the age of 21 and otherwise sui juris. 12. Defendant Cricket Communications, LLC is a limited liability company formed in the State of Delaware and maintains its corporate headquarters in Wilmington, Delaware. On July 12, 2013, AT&T agreed to buy Leap Wireless International, Inc., for $1.2 billion. As part of the agreement, AT&T would acquire the Leap Wireless subsidiary, Cricket Communications Inc. ("Cricket"), which provided wireless products and services to approximately 4.6 million subscribers. On March 13, 2014, the Federal Communications Commission approved the merger between AT&T and Leap Wireless. Since that time, Cricket has functioned as a unit of AT&T as Cricket Communications, LLC. III. JURISDICTION AND VENUE 13. This Court has jurisdiction over this action pursuant to the Class Action Fairness Act of 2005 ("CAFA"), Pub. L. No. 109-2, 119 Stat. 4 (codified in various sections of 28 U.S.C.). 14. Plaintiff Tim Bond is a citizen of Maryland. Defendant is a citizen of Delaware and Texas but is registered to do business in Maryland and nationwide. The amount in controversy exceeds $5,000,000 and there are at least one hundred members of the putative class. 15. This Court has jurisdiction over Defendant because it either is a foreign corporation authorized to conduct business in Maryland, is doing business in Maryland and has JA 117 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 121 of 426 Total Pages:(161 of 466) 4 registered with the Maryland Secretary of State, or do sufficient business in Maryland, have sufficient minimum contacts with Maryland, or otherwise intentionally avail themselves of the Maryland consumer market through the promotion, marketing and sale of wireless products and services in Maryland. This purposeful availment renders the exercise of jurisdiction by this Court over Defendant and its affiliated or related entities permissible under traditional notions of fair play and substantial justice. 16. In addition, this Court has subject-matter jurisdiction under CAFA because the amount in controversy exceeds $5 million and diversity exists between Plaintiff and the Defendants. 28 U.S.C. § 1332(d)(2). Further, in determining whether the $5 million amount in controversy requirement of 28 U.S.C. § 1332(d) (2) is met, the claims of the putative class members are aggregated. 28 U.S.C. § 1332(d)(6). 17. Venue is proper in this forum pursuant to 28 U.S.C. § 1391 because Defendant transacts business and may be found in this District and a substantial portion of the practices complained of herein occurred in the District of Maryland. 18. All conditions precedent to this action have occurred, been performed, or have been waived. IV. Factual Allegations 19. Two of the predominant cellular voice technologies in the United States are Global Systems for Mobile communications ("GSM") and Code Division Multiple Access ("CDMA"). 20. GSM was developed by the European Telecommunications Standards Institute to replace the analog networks. In the United States, GSM is the technology behind AT&T and T- JA 118 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 122 of 426 Total Pages:(162 of 466) 4 Mobile USA. Current GSM devices use a Security Identity Module, or SIM, card. This card contains the International Mobile Subscriber Identity (IMSA) Number, carrier information, and consumer contact information. Assuming the phone is not locked by the carrier, the SIM card slot allows the consumer to migrate the phone between carriers. 21. CDMA was developed by Qualcomm and has been the technology preferred by Sprint and Verizon. Rather than having a SIM card for data storage, data is stored on the CDMA phone itself. This has made moving a CDMA phone between carriers difficult, if not impossible. 22. At all relevant times, Cricket has marketed, offered for sale, and sold handheld devices compatible with the CDMA network. 23. Each of the CDMA handsets sold by Cricket included an express statement, constituting an express warranty, that the telephone included "Nationwide Coverage" and that "Cricket's network provides unsurpased nationwide coverage." 243. In July 2013, AT&T reached an agreement to purchase the assets and assume the liabilities of Leap Wireless, the parent of Cricket, for $1.2 Billion. AT & T retained Cricket's directors and management in addition to its 3,400 employees. The July 12, 2013 press release of AT&T and Leap Wireless provided, in relevant part, the following information about the acquisition: AT&T will acquire all of Leap's stock and wireless properties, including licenses, network assets, retail stores and approximately 5 million subscribers. . . . Leap's network covers approximately 96 million people in 35 U.S. states. Leap currently operates -- under the Cricket brand -- a 3G CDMA network, as well as a 4G LTE network covering 21 million people in these areas, and has 3,400 employees. JA 119 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 123 of 426 Total Pages:(163 of 466) 4 AT&T will retain the Cricket brand name, provide Cricket customers with access to AT&T's award-winning 4G LTE mobile network, utilize Cricket's distribution channels, and expand Cricket's presence to additional U.S. cities. The result will be increased competition, better device choices, improved customer care and a significantly enhanced mobile Internet experience for consumers seeking low-cost prepaid wireless plans. . . . The acquisition includes spectrum in the PCS and AWS bands covering 137 million people and is largely complementary to AT&T's existing spectrum licenses. Immediately after approval of the transaction, AT&T plans to put Leap's unutilized spectrum – which covers 41 million people -- to use in furthering its 4G LTE deployment and providing additional capacity and enhanced network performance for customers' growing mobile Internet usage. Owners of approximately 29.8% of Leap's outstanding shares have entered into an agreement to vote in favor of the transaction. The transaction is subject to review by the Federal Communications Commission and the Department of Justice and to other customary closing conditions. AT&T expects the transaction to close in six to nine months. 254. Thus, according to the July 12, 2013 press release, AT&T intended to move customers from Cricket's CDMA network to AT&T's GSM network and Cricket/AT&T further intended not to support CDMA handsets that could not be migrated to the GSM network. 265. In fact, many CDMA handsets cannot be moved to a GSM network because Cricket locked the CDMA handsets it sold. 276. Cricket knew and failed to disclose this material information to customers. 287. Cricket, moreover, continued to offer for sale and sell to the consuming public CDMA handsets that are not compatible with and cannot be migrated to the GSM network. 298. Cricket thus knew, and failed to disclose, that many of the CDMA handsets it offered for sale and sold to the consuming public would be rendered inoperable as a result of the AT&T acquisition (i.e. not able to make telephone calls or other forms of mobile communications). JA 120 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 124 of 426 Total Pages:(164 of 466) 4 3029. For instance, Plaintiff purchased a Samsung Galaxy 4S from an authorized agent of Cricket in or around December 2013, more than five months after AT&T acquired Cricket. 310. Thereafter, Plaintiff entered into a wireless service agreement with Cricket to use the Samsung Galaxy 4S on Cricket's CDMA compatible cellular network. 321. Plaintiff received two different receipts, one for the purchase of the phone and one for the purchase of the wireless service agreement. 332. In January 2015, AT&T publicly announced that the legacy CDMA markets covered by its Cricket unit will be turned off this year, in a three-phase switch-off plan. See https://www.telegeography.com/products/commsupdate/articles/2015/01/09/att-confirms- september-shutdown-of-cricket-cdma-network/. 343. As per the AT&T public announcement in January 2015, the CDMA wireless service will be terminated on a rolling basis by bill cycle. Customers in the initial 'sunset markets' will have their service terminated by bill cycle beginning March 15, 2015 with the CDMA network in those markets being turned off completely on 15 April 2015. Initial (March/April) sunset markets include: Washington, DC; Little Rock, Fayetteville and Fort Smith (Arkansas); Wilmington (Delaware); Chicago and Northern Illinois (Illinois); South Bend (Indiana); Baltimore (Maryland); Atlantic City (New Jersey); Buffalo, Rochester and Syracuse (New York) and Philadelphia (Pennsylvania). 354. The second group of markets slated for shutdown in May/June 2015 consists of: Wichita (Kansas); Albuquerque and Las Cruces (New Mexico); Las Vegas (Nevada) and Oklahoma City and Tulsa (Oklahoma). 365. All remaining legacy CDMA markets will be turned off by mid-September 2015. JA 121 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 125 of 426 Total Pages:(165 of 466) 4 376. Cricket announced that its customers who purchased an iPhone with original CDMA (including the iPhone 4s, iPhone 5, iPhone 5s or iPhone 5c) will receive a free, replacement SIM card that enables the iPhone to operate on Cricket's new 4G and 4G LTE nationwide GSM network. However, persons who purchased any other type of cell phone from Cricket would be required to purchase a new handset. 387. As Cricket explained on its website: "The new Cricket's nationwide 4G network uses GSM (Global System for Mobile Communications) technology that is the global standard for mobile service while the original Cricket uses CDMA network technology. That means that with the exception of original Cricket iPhone 4S, iPhone 5, iPhone 5S and iPhone 5C, your current CDMA phone will not work on the new Cricket network. 398. In or around February 2015, Plaintiff went into a Cricket store in Maryland to pay his bill for February service. When Plaintiff was in the Cricket store, Cricket turned his Samsung Galaxy S4 phone off. Plaintiff attempted to have his phone turned back on through AT&T and other service providers, including Sprint, Virgin Mobile and T-Mobile. But none was able to revive Plaintiff's phone. 4039. Plaintiff's phone has no value or only a de minimis value due to its inoperability on any cellular network. 410. Plaintiff is not alone. Indeed, several consumers have made anonymous complaints on the web page forum: https://forums.att.com/t5/General-Account-Questions/AT- amp-T-Merger-with-Cricket-Sucks/td-p/4096500, concerning Cricket's failure to disclose that the CDMA handheld devices which it offered for sale and sold to the consuming public as of July 12, 2013, would be inoperable as a result of the AT&T acquisition, including the following: JA 122 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 126 of 426 Total Pages:(166 of 466) 4 Blownaway Sep 26, 2014 8:26:33 AM This merger of AT&T and Cricket is horrible. First I just bought an expensive Samsung Galaxy S4 not even a year ago and I am being told that I have to buy a brand new phone when the merger is fully complete (March 2015). This is ridiculous - who is sitting around with an extra $400 a year to purchase a new phone. As large a company as AT&T they do not have the capability to switch my phone over. SteveJodylynn Oct 29, 2014 12:28:27 PM I agree. It is just a few months from when my expensive CDMA Cricket smartphone (less than a year old) becomes inoperable and I've heard nothing from AT&T or Cricket about the transition plan, other than I will be forced to shell out hundreds for a new phone that is compatible with AT&T's network. Chiefsfan Nov 29, 2014 5:43:14 PM. . . AT&T is screwing over thousands of Cricket customers and they DON'T CARE ONE BIT! Cricket shouldn't have been selling phones over the past 7-8 months, since the merger with AT&T, knowing that they won't work after March, but they continue to do just that. The point is that AT&T is gaining millions of unearned $ by forcing customers to buy new ridiculously expensive phones (oh, but they'll give you a free deal on their piece-o-crap phones (which are all of them other than the Galaxy & iphones) all under the guise of "providing better service". What a crock!! WE ALL NEED TO BOYCOTT AT&T ONCE THEY RENDER OUR PHONES USELESS!!! hatenewcricket Feb 11, 2015 9:16:13 PM I know what you mean I got my S4 just befor[e] they annou[n]ced the switch, I believe they knew what was going to happen and sold me an already worthless phone this whole thing has been a rip off and is unfair to cricked customers who are getting screwed V. CLASS ALLEGATIONS 421. Plaintiff brings this action against Defendant pursuant to Rule 23 of the Federal Rules of Civil Procedure on behalf of himself and all other persons similarly situated. Plaintiff seeks to represent the following classes: JA 123 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 127 of 426 Total Pages:(167 of 466) 4 All persons nationwide during the period July 12, 2013 to the present, who purchased a CDMA handset from Cricket or through its authorized agents. Excluded from this class are Defendants, their affiliates, subsidiaries, agents, board members, directors, officers, and/or employees. 432. Plaintiff reserves the right to modify or amend the definition of the proposed Class before the Court determines whether certification is appropriate. 443. Defendant subjected Plaintiff and the respective Class members to the same unfair, unlawful, and deceptive practices and harmed them in the same manner. 454. The Class, as defined above, is identifiable. 465. The Named Plaintiff is a member of the Class. 476. The proposed class is so numerous that joinder of all members would be impracticable. Cricket sold thousands of CDMA handsets during the Class Period in the State of Maryland and nationwide. 4 8 7. The individual class members are ascertainable, as the names and addresses of all class members can be identified in the business records maintained by Defendant. 498. While the precise number of class members can only be obtained through discovery, the numbers are clearly more than can be consolidated in one complaint such that it would be impractical for each member to bring suit individually. 5049. There are questions of law and fact that are common to Plaintiff's and class members' claims. These common questions predominate over any questions that go particularly to any individual member of the Class. 5 1 0. Among such common questions of law and fact are the following: JA 124 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 128 of 426 Total Pages:(168 of 466) 4 a. Whether Cricket offered for sale and sold to the consuming public CDMA handsets during the Class Period; b. Whether Cricket knew and failed to disclose that the CDMA handsets would be inoperable upon completion of the merger with AT&T; c. Whether Cricket knew at the time of sale that Plaintiff and Class Members intended to use the mobile telephones it sold to them to make telephone calls and mobile communications; d. Whether Cricket breached written warranties in its sales of mobile telephones to Plaintiff and other Class Members; e. Whether Cricket breached the implied covenant of good faith and fair dealing by offering for sale and selling soon to be inoperable CDMA handsets; f. Whether Cricket breached the implied warranty of fitness for a particular purpose in its sales of mobile telephones to Plaintiff and other Class Members; gd. Whether Cricket made material misstatements of fact and/or knew and failed to disclose material information concerning the CDMA handsets which it sold to Plaintiff and other members of the class, including facts that the CDMA handsets would be inoperable as a result of the AT&T acquisition, that Cricket planned to convert to the GSM network and that as a result, the CDMA handsets had an artificially limited useful life; he. Whether Cricket breached the implied warranty of merchantability by selling Plaintiff and the other members of the Class CDMA handsets which it knew had an artificially limited useful life; i. Whether Cricket violated the Magnuson-Moss Warranty Act in its transactions with Plaintif and other Class Members; and jf. Whether Plaintiff and the Class Members are entitled to damages and/or injunctive relief as a result of Defendant's conduct. 521. Plaintiff's claims are typical of the claims o f t he cl as s because of the similarity, uniformity, and common purpose of Defendant's unlawful conduct. Each class JA 125 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 129 of 426 Total Pages:(169 of 466) 4 member has sustained, and will continue to sustain, damages in the same manner as Plaintiff as a result of Defendant's wrongful conduct. 532. Plaintiff is an adequate representative of the class he seeks to represent and will fairly and adequately protect the interests of that class. 5 4 3. Plaintiff is committed to the vigorous prosecution of this action and has retained competent counsel, experienced in litigation of this nature, to represent them. 554. There is no hostility between Plaintiff and the unnamed class members. 565. Plaintiff anticipates no difficulty in the management of this litigation as a class action. 576. To prosecute this case, Plaintiff has chosen the undersigned law firms, which are experienced in class action litigation and have the financial and legal resources to meet the substantial costs and legal issues associated with this type of litigation. 587. The questions of law or fact common to Plaintiff's and each Class Member's claims predominate over any questions of law or fact affecting only individual members of the class. 598. All claims by Plaintiff and the unnamed class members are based on Cricket's sale of CDMA handsets to the consuming public when it knew, or reasonably should have known and failed to disclose that these handsets would be inoperable upon completion of the AT&T merger. 6059. Common issues predominate where, as here, liability can be determined on a class-wide basis, even when there will be some individualized damages determinations. JA 126 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 130 of 426 Total Pages:(170 of 466) 4 610. As a result, when determining whether common questions predominate, courts focus on the liability issue, and if the liability issue is common to the class as is the case at bar, common questions will be held to predominate over individual questions. 621. A class action is superior to individual actions in part because of the non- exhaustive factors listed below: (a) Joinder of all class members would create extreme hardship and inconvenience for the affected customers as they reside all across the states; (b) Individual claims by class members are impractical because the costs to pursue individual claims exceed the value of what any one class member has at stake. As a result, individual class members have no interest in prosecuting and controlling separate actions; (c) There are no known individual class members who are interested in individually controlling the prosecution of separate actions; (d) The interests of justice will be well served by resolving the common disputes of potential class members in one forum; (e) Individual suits would not be cost effective or economically maintainable as individual actions; and (f) The action is manageable as a class action. VI. CAUSES OF ACTION COUNT I BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY 632. Plaintiff incorporates by reference paragraphs 1 through 621 above, as if each and every allegation is set forth fully herein. 643. At all relevant times, Cricket was a merchant with respect to the CDMA handsets. 654. Plaintiff purchased his now inoperable CDMA handset from an authorized agent of Cricket. At the time of purchase, Cricket and it authorized agents were in the business of JA 127 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 131 of 426 Total Pages:(171 of 466) 4 selling CDMA handsets and/or by course of business held itself out as having special knowledge or skill regarding those handsets. 665. A warranty that the CDMA handsets were in merchantable condition was implied by law in the sale of these handsets by Cricket and its agents. 676. The CDMA handsets which Cricket and its authorized agents sold to Plaintiff and other members of the class were not in merchantable condition and are not fit for the ordinary purpose for which handsets are used and/or were not of the same quality of those generally acceptable in the trade. 687. In fact, the CDMA handsets sold by Cricket and its authorized agents, including the Samsung Galaxy 4S sold to Plaintiff, were unmerchantable. 698. Specifically, Cricket knew and failed to disclose that these CDMA handsets would be inoperable as a result of the AT&T acquisition and Cricket's plan to convert to the GSM network. As a result, the CDMA handsets had an artificially limited useful life. 7069. Plaintiff and other members of the Class have had sufficient direct dealings with either Cricket or its authorized agents to establish vertical privity of contract between themselves and Defendant. Nevertheless, privity is not required in this case because Plaintiff and the other members of the Class are intended third- party beneficiaries of contract between Cricket and its authorized agents. Specifically, Plaintiff and the other members of the Class are the intended beneficiaries of Cricket's implied warranties. Cricket's authorized agents were not intended to be the ultimate consumers of the CDMA handsets. COUNT II JA 128 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 132 of 426 Total Pages:(172 of 466) 4 FRAUDULENT CONCEALMENT 710. Plaintiff incorporates by reference paragraphs 1 through 621 above, as if each and every allegation is set forth fully herein. 721. As set forth above, Cricket knew and failed to disclose and/ or suppressed and/or concealed material facts concerning the CDMA handsets, including the Samsung Galaxy 4S, which it sold to Plaintiff and other members of the class. 732. These concealed facts were material because they directly impacted the reliability and use of the handsets. 743. Cricket owed Plaintiff and the other members of the Class a duty to disclose that the CDMA handsets would be rendered inoperable by the AT&T acquisition and Cricket's plans to convert to the GSM network because it possessed exclusive and superior knowledge and access to these facts. 754. Cricket knew and failed to disclose that the CDMA handsets had an artificially limited useful life and that the CDMA handsets were not compatible with AT&T's GSM cellular network. 765. Cricket actively concealed and/or suppressed these material facts, in whole or in part, with the intent to induce Plaintiff and the other members of the Class to purchase the CDMA handsets from Cricket and its authorized agents and to pay more than they otherwise would have paid had these material facts that the CDMA handsets would be inoperable as a result of the AT&T acquisition and Cricket's plans to convert to the GSM network been disclosed. JA 129 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 133 of 426 Total Pages:(173 of 466) 4 776. Cricket's conduct was oppressive, fraudulent, malicious and in reckless disregard of the rights of Plaintiff and the Class. 787. Plaintiff and the other members of the Class were not aware of the omitted material facts and would not have acted as they did if they had known of the concealed and/or suppressed facts. 798. As a result of Cricket's concealment and/or suppression of material facts concerning the CDMA handsets, Plaintiff and the Class have sustained damages. COUNT III MONEY HAD AND RECEIVED/UNJUST ENRICHMENT 8079. Plaintiff incorporates herein by reference as though fully set forth the allegations in paragraphs 1 through 621 of this Complaint, as if each and every allegation is set forth fully herein. 810. As set forth above, Cricket charged and collected payments for CDMA handsets that would become inoperable in amounts that exceeded the value of these CDMA handsets, which conferred a substantial benefit on Cricket. 821. Cricket was aware of, and had knowledge of, this substantial benefit. 832. By doing so, Cricket has come into the possession of money in the form of payments that it had, and has no right to at law or in equity. 843. It would be inequitable for Cricket to retain any such monies that it had no legal right to charge. JA 130 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 134 of 426 Total Pages:(174 of 466) 4 854. As a consequence, Named Plaintiff and the members of the Class have been damaged. COUNT IV NEGLIGENT MISREPRESENTATION 865. Plaintiff incorporates herein by reference as though fully set forth the allegations in paragraphs 1 through 621 of this Complaint, as if each and every allegation is set forth fully herein. 876. Cricket and its agents or employees negligently made the false and misleading representations and omissions alleged herein, including but not limited to the representations that its CDMA handsets would pass without objection in the trade under the contract description and that the CDMA handsets sold were compatible with and would continue to be compatible with Cricket's CDMA's cellular service for the useful life of the handset. 887. Cricket's agents or employees negligently failed to disclose the material fact that its handsets would become inoperable during its useful lifespan. 898. Cricket's agents or employees negligently failed to disclose that the prices of the CDMA handsets did not accurately represent its value, intending that Plaintiff and the Class would reasonably rely upon the false and misleading representations and omissions to their detriment, which they did. 890. As a direct and proximate result of Cricket's negligent statements, representations, and omissions, Plaintiff and the Class were induced, ab initio, to purchase a CDMA handset from Cricket for a price significantly higher than they were worth. JA 131 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 135 of 426 Total Pages:(175 of 466) 4 910. Cricket, their agents or employees, owed a duty of care to Plaintiff and the Class. 921. Cricket recklessly and negligently breached the duty of care they owed to Plaintiff and the Class by making negligent representations to Plaintiff and the Class and negligently concealing material facts from them, as set forth herein. 932. Cricket knew, or had reason to know, that Plaintiffs and the Class would reasonably rely on the representations and concealments which if erroneous, would cause loss, injury or damage. 943. Plaintiff and the Class justifiably and reasonably took actions to their detriment as alleged herein, by paying Cricket significantly more for their CDMA handsets than they were worth, in reliance on the negligent representations and concealments. COUNT V MARYLAND CONSUMER PROTECTION ACT 954. Plaintiff incorporates herein by reference as though fully set forth the allegations in paragraphs 1 through 621 of this Complaint, as if each and every allegation is set forth fully herein. 965. Cricket is a merchant within the meaning of the Maryland Consumer Protection Act ("MCPA"), MD. CODE ANN., COMM. LAW § 13-101(g), and is subject to all of the MCPA's provisions prohibiting unfair or deceptive trade practices including those in MD. CODE ANN., COMM. LAW §§ 13-303 and 13-301. 976. Cricket's failure to disclose and its concealment from Plaintiff and members of the Class of the material facts as set forth herein constitutes unfair and deceptive trade practices JA 132 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 136 of 426 Total Pages:(176 of 466) 4 in violation of the MCPA, §§ 13-303 and 13-301(1), (2)(i) and (iv) and (3). If Plaintiff and members of the Class had known the material facts related to the CDMA handsets, they would not have purchased the handsets or would have required a significantly lower price. 987. On information and belief, Plaintiff avers that Cricket systematically sold CDMA handsets during the Class Period which were not compatible with AT&T's GSM cellular network and retailed these CDMA handsets to the public without disclosing the impending inoperability of the handsets to its customers, in violation of the MCPA, in order to illegally increase its profits. 998. Cricket's acts and omissions as aforesaid, including its failure to disclose and concealment of the material facts, and its affirmative misrepresentation to Named Plaintiff and the Class, tended to and did deceive Plaintiff and members of the Class and constitutes an unfair and deceptive trade practice, in violation of MCPA §§ 13-303(1) - (3) and 13-301(1), (2)(i) and (iv), and/or (3). 10099. As a result of Cricket's unfair and deceptive trade practices, Named Plaintiff and the Class agreed to and did purchase their CDMA handsets, Plaintiff paid Cricket significantly more for their CDMA handsets than they were worth, and Named Plaintiff and the Class sustained the other damages and losses set forth above. COUNT VI FRAUD 1010. Plaintiff incorporates herein by reference as though fully set forth the allegations in paragraphs 1 through 621 of this Complaint, as if each and every allegation is set forth fully herein. JA 133 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 137 of 426 Total Pages:(177 of 466) 4 1021. Cricket and its authorized agents falsely represented to Plaintiff and other members of the Class that the CDMA handsets would be supported by Cricket for the useful life of the product. But for this representation, which Cricket and its authorized agents knew, or should have known, was false, Plaintiff and the other members of the Class would not have bought the CDMA handsets from Cricket. Moreover, but for this false representation, Plaintiff and the other members of the Class would not have then made a separate purchase from Cricket for the CDMA wireless service plan. 1032. Defendant failed to disclose material information that Cricket would not continue to support the CDMA handsets as a result of the AT&T acquisition and that the CDMA handsets were not compatible with AT&T's GSM cellular network. 1043. Defendant made these false and misleading representations and omissions knowingly, recklessly, and/or without regard for their truth or falsity, and with the intent to induce Plaintiff and other members of the Class to rely upon them by purchasing a CDMA handset from Cricket. 1054. Plaintiff and the other members of the Class justifiably relied upon the false representations and omissions made by Defendant by purchasing the CDMA handset from Cricket's authorized agent and then by purchasing a wireless service agreement from Cricket thereafter. 1065. As a direct and proximate result of the reliance upon the false representations and omissions of Defendant, Plaintiff and the other members of the Class have suffered damages, including, but not limited to, the loss of the use of the CDMA handsets and the loss of their market value, well prior to the end of the useful life of these cell phones. JA 134 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 138 of 426 Total Pages:(178 of 466) 4 1076. Because of the willful and wanton conduct of Defendant, Plaintiff and the other members of the Class are entitled to punitive, as well as actual, damages. COUNT VII VIOLATION OF THE MAGNUSON-MOSS WARRANTY ACT 108. Named Plaintiff re-alleges and incorporates herein by reference the allegations in the foregoing paragraphs as if fully set forth below. 109. Congress enacted the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq. (the "Act") in 1975 in response to widespread complaints from consumers that many warranties were misleading and deceptive and were not being honored. To remedy this problem of deception and failure to honor warranties, the Act imposes civil liability on any "warrantor" for, inter alia, failing to comply with any obligation under a written warranty and/or implied warranty. 15 U.S.C. § 2310(d)(1). The Act further authorizes a "suit for damages and other legal and equitable relief." Id. The Act authorizes the award of attorneys' fees and expressly authorizes class actions. 15 U.S.C. § 2310(e). 110. Cricket is a "warrantor" within the meaning of Section 2301(5) of the Act. 111. Named Plaintiff and other members of the Class are "consumers" within the meaning of Section 2301(3) of the Act. 112. Cricket breached express warranties because the CDMA handsets sold did not conform to the description of the CDMA handsets. Cricket's affirmations of fact concerning the mobile telephones, and descriptions of the mobile telephones, which Cricket make to Plaintiff and the Class, relating ot the mobile telephones and part of the basis of the bargain, created an JA 135 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 139 of 426 Total Pages:(179 of 466) 4 express warranty that the mobile telephones would operate on a nationwide network providing unsurpassed coverage. 113. Cricket breaches of the implied warranties of merchantability and fitness for a particular purpose as alleged herein, violate the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq., including 15 U.S.C. § 2310(d). 114. Cricket knew, at the time of sale, of the defects in the mobile telephones sold to Plaintiff and the Class Members which breached the express warranties and implied warranties of merchantability and fitness for a particular purpose. 115. Named Plaintiff contacted Cricket and asked Cricket to cure the defect in his mobile telephone by replacing it with a usable and comparable CDMA handset or by unlocking his handset so that he could use it on another CDMA wireless provider's network. Cricket refulsed to cure the defect or to replace or unlock Named Plaintiff's handset. 116. As a result of Cricket's violation of the Act, Named Plaintiff and the Class sustained the losses and damages described herein. PRAYER FOR RELIEF WHEREFORE, Plaintiff, on behalf of himself and all similarly situated individuals, demands judgment against Defendant as follows: (1) Declaring this action to be a proper class action maintainable pursuant to Rule 23(a) and Rule 23(b)(3) of the Federal Rules of Civil Procedure and declaring Plaintiff and their counsel to be representatives of the Class; JA 136 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 140 of 426 Total Pages:(180 of 466) 4 (2) Requiring Defendant to replace the CDMA handsets with comparable GSM handsets free of charge; (3) Awarding actual damages to Plaintiff and the Class; (4) Awarding punitive damages to Plaintiff and the Class under Counts II, IV and VI; (5) Awarding Plaintiff and the Class costs and disbursements and reasonable allowances for the fees of counsel and experts, and reimbursement of expenses; (6) Awarding pre-judgment and post-judgment interest on all sums awarded to Named Plaintiff and the Class; and (7) Awarding such other and further relief the Court deems just and equitable. Respectfully submitted, Z LAW, LLC Dated: February 10, 2017 ________/s/___28191__ _____________ Cory L. Zajdel (Fed. Bar No. 28191) 2345 York Road01 Main Street, Ste. B2- 13D TimoniumReisterstown, MD 21093136 (443) 213-1977 clz@zlawmaryland.com Oren S. Giskan (pending pro hac vice) Catherine E. Anderson (pending pro hac vice) Giskan Solotaroff Anderson & Stewart, LLP 11 Broadway, Suite #2150 New York, NY 10004 (212) 847-8315 JA 137 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 141 of 426 Total Pages:(181 of 466) 4 Attorneys for Plaintiff DEMAND FOR JURY TRIAL Plaintiff and the Class request a jury trial for any and all Counts for which a trial by jury is permitted by law. ________/s/___28191__ _____________ Cory L. Zajdel (Fed. Bar No. 28191) JA 138 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 142 of 426 Total Pages:(182 of 466) UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND (Baltimore Division) TIM BOND, on his own behalf and on behalf of all others similarly situated, Plaintiffs, Civil Action No. 1:15-cv-923-MJG v. CRICKET COMMUNICATIONS, LLC, Defendant. STIPULATION CONCERNING PLAINTIFF'S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT Plaintiff Tim Bond and Defendant Cricket Communications, LLC ("Cricket"), by and through their respective undersigned counsel, submit the following stipulation to consent to an Order (1) lifting the stay entered in this case to permit Plaintiff to seek leave to file a Second Amended Complaint and (2) granting leave to file a Second Amended Complaint, pursuant to the conditions outlined in this stipulation. In support, the parties state as follows: 1. On March 31, 2015, Plaintiff filed a putative Class Action Complaint seeking relief for himself and a proposed class of all consumers who purchased CDMA wireless devices from AT&T, Inc. between July 12, 2013 to the present. Dkt. No. 1. 2. On May 8, 2015, Plaintiff filed a First Amended Class Action Complaint and substituted the current Defendant Cricket in place of AT&T, Inc. Dkt. No. 3. The complaint raised six counts: breach of implied warranty of merchantability (count I); fraudulent concealment (count II); money had and received/unjust enrichment (count III); negligent misrepresentation (count IV); Maryland Consumer Protection Act (count V); and fraud (count VI). 1 JA 139 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 143 of 426 Total Pages:(183 of 466) 3. On July 13, 2015, pursuant to the Federal Arbitration Act, 9 U.S.C. §§ 1-16, Cricket filed a Motion to Compel Arbitration, in which it asked this Court to enter an order (1) compelling Plaintiff to arbitrate his claims against Cricket on an individual basis and (2) staying further proceedings regarding those claims pending the outcome of arbitration. Dkt. No. 15. 4. On January 12, 2016, this Court granted Cricket's Motion to Compel Arbitration as to all claims in Plaintiff's First Amended Complaint, stayed proceedings "pending the outcome of arbitration," and administratively closed this case. Dkt. No. 19 (Order); Dkt. No. 18 (Memorandum Opinion). 5. On February 10, 2017, Plaintiff filed a Motion Requesting Leave to File Second Amended Class Action Complaint. Dkt. No. 21. 6. In his Second Amended Complaint, Plaintiff has added an additional count for "Violations of the Magnusson Moss Warranty Act" (count VII). 7. Counsel for the parties have met and conferred concerning the Motion. 8. In this stipulation, Plaintiff represents that: a. Plaintiff seeks leave to file his Second Amended Complaint solely to pursue a new claim under the federal Magnusson Moss Warranty Act (MMWA). Dkt. No. 21 at 2 n.1. b. Plaintiff agrees that the prior Order compelling arbitration is law of the case and binds him to arbitrate all of the claims contained in the First Amended Complaint (subject to appellate review), which correspond to all of the claims listed in the proposed Second Amended Complaint apart from the new MMWA claim. c. Plaintiff recognizes that, if this Court grants leave to file the proposed Second Amended Complaint, Cricket intends to move to compel arbitration of all claims, and 2 JA 140 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 144 of 426 Total Pages:(184 of 466) represents that the grounds on which Plaintiff intends to respond to the arbitration motion are that the MMWA does not permit Plaintiff's claims to be arbitrated. 9. In light of these representations, Cricket will not object to lifting the stay in this case for the sole purpose of allowing Plaintiff to pursue his new MMWA claim. 10. The parties agree that Cricket may respond to the Second Amended Class Action Complaint by moving to compel arbitration, and that Plaintiff's arguments in response will be limited to those identified in the representations contained in Paragraph 8, above. 11. The parties further agree that Plaintiff will not re-litigate any facts or introduce any new evidence related to arbitration or other subjects, and will not seek to reopen counts I-VI or any other claim previously litigated and compelled by this Court to arbitration. Respectfully Submitted, Dated: February 24, 2017 /s/ Archis A. Parasharami Archis A. Parasharami MAYER BROWN LLP 1999 K Street, NW Washington, DC 20006 Tel: (202) 263-3000 Fax: (202) 263-3300 aparasharami@mayerbrown.com bwebb@mayerbrown.com Counsel for Defendant Cricket Communications, LLC /s/ Cory L. Zajdel (signed by Archis A. Parasharami with permission of Cory L. Zajdel) Cory L. Zajdel (Fed. Bar No. 28191) Z Law, LLC 2345 York Road, Ste. B-13 Timonium, MD 21093 (443) 213-1977 clz@zlawmaryland.com 3 JA 141 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 145 of 426 Total Pages:(185 of 466) Oren S. Giskan Catherine E. Anderson Giskan Solotaroff Anderson & Stewart, LLP 11 Broadway, Suite #2150 New York, NY 10004 Counsel for Plaintiff Tim Bond 4 JA 142 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 146 of 426 Total Pages:(186 of 466) JA 143 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 147 of 426 Total Pages:(187 of 466) JA 144 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 148 of 426 Total Pages:(188 of 466) JA 145 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 149 of 426 Total Pages:(189 of 466) JA 146 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 150 of 426 Total Pages:(190 of 466) IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND TIM BOND, on his own behalf * and on behalf of all others similarly situated * Plaintiffs * vs. * CIVIL ACTION NO. MJG-15-923 CRICKET COMMUNICATIONS, LLC * Defendant * * * * * * * * * * ORDER GRANTING UNOPPOSED MOTION Pursuant to, and subject to the conditions of, the parties' stipulation, [ECF No. 26], the Motion Requesting Leave to File Second Amended Class Action Complaint [ECF No. 21] is GRANTED. The Second Amended Class Action Complaint [ECF No. 21-2] is deemed filed this date. SO ORDERED, this Tuesday, March 07, 2017. /s/__________ Marvin J. Garbis United States District Judge JA 147 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 151 of 426 Total Pages:(191 of 466) 4 IN THE UNITED STATES DISTRICT FOR THE DISTRICT OF MARYLAND (Baltimore Division) TIM BOND JURY TRIAL DEMANDED on his own behalf and on behalf of all others similarly situated, Plaintiffs, v. CRICKET COMMUNICATIONS, LLC Case No. 1:15-cv-923-WDQ Defendant. SECOND AMENDED CLASS ACTION COMPLAINT Plaintiff Tim Bond ("Plaintiff" or "Bond") b r i n g s this class action complaint individually and in a representative capacity on behalf all others similarly situated (the "Class") against defendant Cricket Communications, LLC. I. Preliminary Statement 1. On July 12, 2013, AT&T announced its agreement to acquire Cricket Communications Inc. 2. After acquiring Cricket Communications Inc., AT & T formed Cricket Communications, LLC ("Cricket") to carry on the business of the former Cricket Communications, Inc. 3. From July 12, 2013 to the present (the "Class Period"), Cricket, both directly and through its authorized agents, has offered for sale and sold to the consuming public CDMA handsets. 1 JA 148 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 152 of 426 Total Pages:(192 of 466) 4 4. Prior to the Class Period, AT&T and Cricket decided that on or after the acquisition of Cricket, AT&T would discontinue all CDMA service and require all Cricket customers to use AT&T's GSM cellular network. 5. Prior to the Class Period, Cricket knew or should have known that AT&T intended to discontinue the use of CDMA handsets in favor of AT&T's GSM service. 6. During the Class Period, Cricket knew, or reasonably should have known, that the CDMA handsets sold would be inoperable as a result of the acquisition by AT&T. 7. During the Class Period, Cricket affirmatively represented that all CDMA handsets sold were compatible with Cricket's cellular phone service. 8. During the Class Period, Cricket failed to disclose that these CDMA handsets had an artificially limited useful life and that the phones would not be supported for the expected life of the phone. 9. Included in the CDMA handsets which were rendered inoperable by the AT&T acquisition is the Plaintiff's Samsung Galaxy S4, which he purchased from Cricket in or around December 2013. 10. Plaintiff asserts claims individually on behalf of the Class. II. The Parties 11. Plaintiff is a citizen of M a r y l a n d c u r r e n t l y r e s i d i n g a t 1 5 0 Westminster Pike, Reisterstown, MD 21136 (Baltimore County, MD). He is a natural person over the age of 21 and otherwise sui juris. 2 JA 149 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 153 of 426 Total Pages:(193 of 466) 4 12. Defendant Cricket Communications, LLC is a limited liability company formed in the State of Delaware and maintains its corporate headquarters in Wilmington, Delaware. On July 12, 2013, AT&T agreed to buy Leap Wireless International, Inc., for $1.2 billion. As part of the agreement, AT&T would acquire the Leap Wireless subsidiary, Cricket Communications Inc. ("Cricket"), which provided wireless products and services to approximately 4.6 million subscribers. On March 13, 2014, the Federal Communications Commission approved the merger between AT&T and Leap Wireless. Since that time, Cricket has functioned as a unit of AT&T as Cricket Communications, LLC. III. JURISDICTION AND VENUE 13. This Court has jurisdiction over this action pursuant to the Class Action Fairness Act of 2005 ("CAFA"), Pub. L. No. 109-2, 119 Stat. 4 (codified in various sections of 28 U.S.C.). 14. Plaintiff Tim Bond is a citizen of Maryland. Defendant is a citizen of Delaware and Texas but is registered to do business in Maryland and nationwide. The amount in controversy exceeds $5,000,000 and there are at least one hundred members of the putative class. 15. This Court has jurisdiction over Defendant because it either is a foreign corporation authorized to conduct business in Maryland, is doing business in Maryland and has registered with the Maryland Secretary of State, or do sufficient business in Maryland, have sufficient minimum contacts with Maryland, or otherwise intentionally avail themselves of the Maryland consumer market through the promotion, marketing and sale of wireless products and services in Maryland. This purposeful availment renders the exercise of jurisdiction by this 3 JA 150 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 154 of 426 Total Pages:(194 of 466) 4 Court over Defendant and its affiliated or related entities permissible under traditional notions of fair play and substantial justice. 16. In addition, this Court has subject-matter jurisdiction under CAFA because the amount in controversy exceeds $5 million and diversity exists between Plaintiff and the Defendants. 28 U.S.C. § 1332(d)(2). Further, in determining whether the $5 million amount in controversy requirement of 28 U.S.C. § 1332(d) (2) is met, the claims of the putative class members are aggregated. 28 U.S.C. § 1332(d)(6). 17. Venue is proper in this forum pursuant to 28 U.S.C. § 1391 because Defendant transacts business and may be found in this District and a substantial portion of the practices complained of herein occurred in the District of Maryland. 18. All conditions precedent to this action have occurred, been performed, or have been waived. IV. Factual Allegations 19. Two of the predominant cellular voice technologies in the United States are Global Systems for Mobile communications ("GSM") and Code Division Multiple Access ("CDMA"). 20. GSM was developed by the European Telecommunications Standards Institute to replace the analog networks. In the United States, GSM is the technology behind AT&T and T- Mobile USA. Current GSM devices use a Security Identity Module, or SIM, card. This card contains the International Mobile Subscriber Identity (IMSA) Number, carrier information, and consumer contact information. Assuming the phone is not locked by the carrier, the SIM card slot allows the consumer to migrate the phone between carriers. 4 JA 151 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 155 of 426 Total Pages:(195 of 466) 4 21. CDMA was developed by Qualcomm and has been the technology preferred by Sprint and Verizon. Rather than having a SIM card for data storage, data is stored on the CDMA phone itself. This has made moving a CDMA phone between carriers difficult, if not impossible. 22. At all relevant times, Cricket has marketed, offered for sale, and sold handheld devices compatible with the CDMA network. 23. Each of the CDMA handsets sold by Cricket included an express statement, constituting an express warranty, that the telephone included "Nationwide Coverage" and that "Cricket's network provides unsurpassed nationwide coverage." 24. In July 2013, AT&T reached an agreement to purchase the assets and assume the liabilities of Leap Wireless, the parent of Cricket, for $1.2 Billion. AT & T retained Cricket's directors and management in addition to its 3,400 employees. The July 12, 2013 press release of AT&T and Leap Wireless provided, in relevant part, the following information about the acquisition: AT&T will acquire all of Leap's stock and wireless properties, including licenses, network assets, retail stores and approximately 5 million subscribers. . . . Leap's network covers approximately 96 million people in 35 U.S. states. Leap currently operates -- under the Cricket brand -- a 3G CDMA network, as well as a 4G LTE network covering 21 million people in these areas, and has 3,400 employees. AT&T will retain the Cricket brand name, provide Cricket customers with access to AT&T's award-winning 4G LTE mobile network, utilize Cricket's distribution channels, and expand Cricket's presence to additional U.S. cities. The result will be increased competition, better device choices, improved customer care and a significantly enhanced mobile Internet experience for consumers seeking low-cost prepaid wireless plans. . . . The acquisition includes spectrum in the PCS and AWS bands covering 137 million people and is largely complementary to AT&T's existing spectrum 5 JA 152 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 156 of 426 Total Pages:(196 of 466) 4 licenses. Immediately after approval of the transaction, AT&T plans to put Leap's unutilized spectrum – which covers 41 million people -- to use in furthering its 4G LTE deployment and providing additional capacity and enhanced network performance for customers' growing mobile Internet usage. Owners of approximately 29.8% of Leap's outstanding shares have entered into an agreement to vote in favor of the transaction. The transaction is subject to review by the Federal Communications Commission and the Department of Justice and to other customary closing conditions. AT&T expects the transaction to close in six to nine months. 25. Thus, according to the July 12, 2013 press release, AT&T intended to move customers from Cricket's CDMA network to AT&T's GSM network and Cricket/AT&T further intended not to support CDMA handsets that could not be migrated to the GSM network. 26. In fact, many CDMA handsets cannot be moved to a GSM network because Cricket locked the CDMA handsets it sold. 27. Cricket knew and failed to disclose this material information to customers. 28. Cricket, moreover, continued to offer for sale and sell to the consuming public CDMA handsets that are not compatible with and cannot be migrated to the GSM network. 29. Cricket thus knew, and failed to disclose, that many of the CDMA handsets it offered for sale and sold to the consuming public would be rendered inoperable as a result of the AT&T acquisition (i.e. not able to make telephone calls or other forms of mobile communications). 30. For instance, Plaintiff purchased a Samsung Galaxy 4S from an authorized agent of Cricket in or around December 2013, more than five months after AT&T acquired Cricket. 6 JA 153 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 157 of 426 Total Pages:(197 of 466) 4 31. Thereafter, Plaintiff entered into a wireless service agreement with Cricket to use the Samsung Galaxy 4S on Cricket's CDMA compatible cellular network. 32. Plaintiff received two different receipts, one for the purchase of the phone and one for the purchase of the wireless service agreement. 33. In January 2015, AT&T publicly announced that the legacy CDMA markets covered by its Cricket unit will be turned off this year, in a three-phase switch-off plan. See https://www.telegeography.com/products/commsupdate/articles/2015/01/09/att-confirms- september-shutdown-of-cricket-cdma-network/. 34. As per the AT&T public announcement in January 2015, the CDMA wireless service will be terminated on a rolling basis by bill cycle. Customers in the initial 'sunset markets' will have their service terminated by bill cycle beginning March 15, 2015 with the CDMA network in those markets being turned off completely on 15 April 2015. Initial (March/April) sunset markets include: Washington, DC; Little Rock, Fayetteville and Fort Smith (Arkansas); Wilmington (Delaware); Chicago and Northern Illinois (Illinois); South Bend (Indiana); Baltimore (Maryland); Atlantic City (New Jersey); Buffalo, Rochester and Syracuse (New York) and Philadelphia (Pennsylvania). 35. The second group of markets slated for shutdown in May/June 2015 consists of: Wichita (Kansas); Albuquerque and Las Cruces (New Mexico); Las Vegas (Nevada) and Oklahoma City and Tulsa (Oklahoma). 36. All remaining legacy CDMA markets will be turned off by mid-September 2015. 37. Cricket announced that its customers who purchased an iPhone with original CDMA (including the iPhone 4s, iPhone 5, iPhone 5s or iPhone 5c) will receive a free, 7 JA 154 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 158 of 426 Total Pages:(198 of 466) 4 replacement SIM card that enables the iPhone to operate on Cricket's new 4G and 4G LTE nationwide GSM network. However, persons who purchased any other type of cell phone from Cricket would be required to purchase a new handset. 38. As Cricket explained on its website: "The new Cricket's nationwide 4G network uses GSM (Global System for Mobile Communications) technology that is the global standard for mobile service while the original Cricket uses CDMA network technology. That means that with the exception of original Cricket iPhone 4S, iPhone 5, iPhone 5S and iPhone 5C, your current CDMA phone will not work on the new Cricket network. 39. In or around February 2015, Plaintiff went into a Cricket store in Maryland to pay his bill for February service. When Plaintiff was in the Cricket store, Cricket turned his Samsung Galaxy S4 phone off. Plaintiff attempted to have his phone turned back on through AT&T and other service providers, including Sprint, Virgin Mobile and T-Mobile. But none was able to revive Plaintiff's phone. 40. Plaintiff's phone has no value or only a de minimis value due to its inoperability on any cellular network. 41. Plaintiff is not alone. Indeed, several consumers have made anonymous complaints on the web page forum: https://forums.att.com/t5/General-Account-Questions/AT- amp-T-Merger-with-Cricket-Sucks/td-p/4096500, concerning Cricket's failure to disclose that the CDMA handheld devices which it offered for sale and sold to the consuming public as of July 12, 2013, would be inoperable as a result of the AT&T acquisition, including the following: Blownaway Sep 26, 2014 8:26:33 AM 8 JA 155 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 159 of 426 Total Pages:(199 of 466) 4 This merger of AT&T and Cricket is horrible. First I just bought an expensive Samsung Galaxy S4 not even a year ago and I am being told that I have to buy a brand new phone when the merger is fully complete (March 2015). This is ridiculous - who is sitting around with an extra $400 a year to purchase a new phone. As large a company as AT&T they do not have the capability to switch my phone over. SteveJodylynn Oct 29, 2014 12:28:27 PM I agree. It is just a few months from when my expensive CDMA Cricket smartphone (less than a year old) becomes inoperable and I've heard nothing from AT&T or Cricket about the transition plan, other than I will be forced to shell out hundreds for a new phone that is compatible with AT&T's network. Chiefsfan Nov 29, 2014 5:43:14 PM. . . AT&T is screwing over thousands of Cricket customers and they DON'T CARE ONE BIT! Cricket shouldn't have been selling phones over the past 7-8 months, since the merger with AT&T, knowing that they won't work after March, but they continue to do just that. The point is that AT&T is gaining millions of unearned $ by forcing customers to buy new ridiculously expensive phones (oh, but they'll give you a free deal on their piece-o-crap phones (which are all of them other than the Galaxy & iphones) all under the guise of "providing better service". What a crock!! WE ALL NEED TO BOYCOTT AT&T ONCE THEY RENDER OUR PHONES USELESS!!! hatenewcricket Feb 11, 2015 9:16:13 PM I know what you mean I got my S4 just befor[e] they annou[n]ced the switch, I believe they knew what was going to happen and sold me an already worthless phone this whole thing has been a rip off and is unfair to cricked customers who are getting screwed V. CLASS ALLEGATIONS 42. Plaintiff brings this action against Defendant pursuant to Rule 23 of the Federal Rules of Civil Procedure on behalf of himself and all other persons similarly situated. Plaintiff seeks to represent the following classes: All persons nationwide during the period July 12, 2013 to the present, who purchased a CDMA handset from Cricket or through its authorized agents. 9 JA 156 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 160 of 426 Total Pages:(200 of 466) 4 Excluded from this class are Defendants, their affiliates, subsidiaries, agents, board members, directors, officers, and/or employees. 43. Plaintiff reserves the right to modify or amend the definition of the proposed Class before the Court determines whether certification is appropriate. 44. Defendant subjected Plaintiff and the respective Class members to the same unfair, unlawful, and deceptive practices and harmed them in the same manner. 45. The Class, as defined above, is identifiable. 46. The Named Plaintiff is a member of the Class. 47. The proposed class is so numerous that joinder of all members would be impracticable. Cricket sold thousands of CDMA handsets during the Class Period in the State of Maryland and nationwide. 48. The individual class members are ascertainable, as the names and addresses of all class members can be identified in the business records maintained by Defendant. 49. While the precise number of class members can only be obtained through discovery, the numbers are clearly more than can be consolidated in one complaint such that it would be impractical for each member to bring suit individually. 50. There are questions of law and fact that are common to Plaintiff's and class members' claims. These common questions predominate over any questions that go particularly to any individual member of the Class. 51. Among such common questions of law and fact are the following: a. Whether Cricket offered for sale and sold to the consuming public CDMA handsets during the Class Period; 10 JA 157 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 161 of 426 Total Pages:(201 of 466) 4 b. Whether Cricket knew and failed to disclose that the CDMA handsets would be inoperable upon completion of the merger with AT&T; c. Whether Cricket knew at the time of sale that Plaintiff and Class Members intended to use the mobile telephones it sold to them to make telephone calls and mobile communications; d. Whether Cricket breached written warranties in its sales of mobile telephones to Plaintiff and other Class Members; e. Whether Cricket breached the implied covenant of good faith and fair dealing by offering for sale and selling soon to be inoperable CDMA handsets; f. Whether Cricket breached the implied warranty of fitness for a particular purpose in its sales of mobile telephones to Plaintiff and other Class Members; g. Whether Cricket made material misstatements of fact and/or knew and failed to disclose material information concerning the CDMA handsets which it sold to Plaintiff and other members of the class, including facts that the CDMA handsets would be inoperable as a result of the AT&T acquisition, that Cricket planned to convert to the GSM network and that as a result, the CDMA handsets had an artificially limited useful life; h. Whether Cricket breached the implied warranty of merchantability by selling Plaintiff and the other members of the Class CDMA handsets which it knew had an artificially limited useful life; i. Whether Cricket violated the Magnuson-Moss Warranty Act in its transactions with Plaintiff and other Class Members; and j. Whether Plaintiff and the Class Members are entitled to damages and/or injunctive relief as a result of Defendant's conduct. 52. Plaintiff's claims are typical of the claims o f t h e cl as s because of the similarity, uniformity, and common purpose of Defendant's unlawful conduct. Each class member has sustained, and will continue to sustain, damages in the same manner as Plaintiff as a result of Defendant's wrongful conduct. 11 JA 158 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 162 of 426 Total Pages:(202 of 466) 4 53. Plaintiff is an adequate representative of the class he seeks to represent and will fairly and adequately protect the interests of that class. 54. Plaintiff is committed to the vigorous prosecution of this action and has retained competent counsel, experienced in litigation of this nature, to represent them. 55. There is no hostility between Plaintiff and the unnamed class members. 56. Plaintiff anticipates no difficulty in the management of this litigation as a class action. 57. To prosecute this case, Plaintiff has chosen the undersigned law firms, which are experienced in class action litigation and have the financial and legal resources to meet the substantial costs and legal issues associated with this type of litigation. 58. The questions of law or fact common to Plaintiff's and each Class Member's claims predominate over any questions of law or fact affecting only individual members of the class. 59. All claims by Plaintiff and the unnamed class members are based on Cricket's sale of CDMA handsets to the consuming public when it knew, or reasonably should have known and failed to disclose that these handsets would be inoperable upon completion of the AT&T merger. 60. Common issues predominate where, as here, liability can be determined on a class-wide basis, even when there will be some individualized damages determinations. 61. As a result, when determining whether common questions predominate, courts focus on the liability issue, and if the liability issue is common to the class as is the case at bar, common questions will be held to predominate over individual questions. 12 JA 159 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 163 of 426 Total Pages:(203 of 466) 4 62. A class action is superior to individual actions in part because of the non- exhaustive factors listed below: (a) Joinder of all class members would create extreme hardship and inconvenience for the affected customers as they reside all across the states; (b) Individual claims by class members are impractical because the costs to pursue individual claims exceed the value of what any one class member has at stake. As a result, individual class members have no interest in prosecuting and controlling separate actions; (c) There are no known individual class members who are interested in individually controlling the prosecution of separate actions; (d) The interests of justice will be well served by resolving the common disputes of potential class members in one forum; (e) Individual suits would not be cost effective or economically maintainable as individual actions; and (f) The action is manageable as a class action. VI. CAUSES OF ACTION COUNT I BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY 63. Plaintiff incorporates by reference paragraphs 1 through 62 above, as if each and every allegation is set forth fully herein. 64. At all relevant times, Cricket was a merchant with respect to the CDMA handsets. 65. Plaintiff purchased his now inoperable CDMA handset from an authorized agent of Cricket. At the time of purchase, Cricket and it authorized agents were in the business of selling CDMA handsets and/or by course of business held itself out as having special knowledge or skill regarding those handsets. 13 JA 160 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 164 of 426 Total Pages:(204 of 466) 4 66. A warranty that the CDMA handsets were in merchantable condition was implied by law in the sale of these handsets by Cricket and its agents. 67. The CDMA handsets which Cricket and its authorized agents sold to Plaintiff and other members of the class were not in merchantable condition and are not fit for the ordinary purpose for which handsets are used and/or were not of the same quality of those generally acceptable in the trade. 68. In fact, the CDMA handsets sold by Cricket and its authorized agents, including the Samsung Galaxy 4S sold to Plaintiff, were unmerchantable. 69. Specifically, Cricket knew and failed to disclose that these CDMA handsets would be inoperable as a result of the AT&T acquisition and Cricket's plan to convert to the GSM network. As a result, the CDMA handsets had an artificially limited useful life. 70. Plaintiff and other members of the Class have had sufficient direct dealings with either Cricket or its authorized agents to establish vertical privity of contract between themselves and Defendant. Nevertheless, privity is not required in this case because Plaintiff and the other members of the Class are intended third- party beneficiaries of contract between Cricket and its authorized agents. Specifically, Plaintiff and the other members of the Class are the intended beneficiaries of Cricket's implied warranties. Cricket's authorized agents were not intended to be the ultimate consumers of the CDMA handsets. COUNT II FRAUDULENT CONCEALMENT 71. Plaintiff incorporates by reference paragraphs 1 through 62 above, as if each and every allegation is set forth fully herein. 14 JA 161 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 165 of 426 Total Pages:(205 of 466) 4 72. As set forth above, Cricket knew and failed to disclose and/ or suppressed and/or concealed material facts concerning the CDMA handsets, including the Samsung Galaxy 4S, which it sold to Plaintiff and other members of the class. 73. These concealed facts were material because they directly impacted the reliability and use of the handsets. 74. Cricket owed Plaintiff and the other members of the Class a duty to disclose that the CDMA handsets would be rendered inoperable by the AT&T acquisition and Cricket's plans to convert to the GSM network because it possessed exclusive and superior knowledge and access to these facts. 75. Cricket knew and failed to disclose that the CDMA handsets had an artificially limited useful life and that the CDMA handsets were not compatible with AT&T's GSM cellular network. 76. Cricket actively concealed and/or suppressed these material facts, in whole or in part, with the intent to induce Plaintiff and the other members of the Class to purchase the CDMA handsets from Cricket and its authorized agents and to pay more than they otherwise would have paid had these material facts that the CDMA handsets would be inoperable as a result of the AT&T acquisition and Cricket's plans to convert to the GSM network been disclosed. 77. Cricket's conduct was oppressive, fraudulent, malicious and in reckless disregard of the rights of Plaintiff and the Class. 15 JA 162 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 166 of 426 Total Pages:(206 of 466) 4 78. Plaintiff and the other members of the Class were not aware of the omitted material facts and would not have acted as they did if they had known of the concealed and/or suppressed facts. 79. As a result of Cricket's concealment and/or suppression of material facts concerning the CDMA handsets, Plaintiff and the Class have sustained damages. COUNT III MONEY HAD AND RECEIVED/UNJUST ENRICHMENT 80. Plaintiff incorporates herein by reference as though fully set forth the allegations in paragraphs 1 through 62 of this Complaint, as if each and every allegation is set forth fully herein. 81. As set forth above, Cricket charged and collected payments for CDMA handsets that would become inoperable in amounts that exceeded the value of these CDMA handsets, which conferred a substantial benefit on Cricket. 82. Cricket was aware of, and had knowledge of, this substantial benefit. 83. By doing so, Cricket has come into the possession of money in the form of payments that it had, and has no right to at law or in equity. 84. It would be inequitable for Cricket to retain any such monies that it had no legal right to charge. 85. As a consequence, Named Plaintiff and the members of the Class have been damaged. 16 JA 163 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 167 of 426 Total Pages:(207 of 466) 4 COUNT IV NEGLIGENT MISREPRESENTATION 86. Plaintiff incorporates herein by reference as though fully set forth the allegations in paragraphs 1 through 62 of this Complaint, as if each and every allegation is set forth fully herein. 87. Cricket and its agents or employees negligently made the false and misleading representations and omissions alleged herein, including but not limited to the representations that its CDMA handsets would pass without objection in the trade under the contract description and that the CDMA handsets sold were compatible with and would continue to be compatible with Cricket's CDMA's cellular service for the useful life of the handset. 88. Cricket's agents or employees negligently failed to disclose the material fact that its handsets would become inoperable during its useful lifespan. 89. Cricket's agents or employees negligently failed to disclose that the prices of the CDMA handsets did not accurately represent its value, intending that Plaintiff and the Class would reasonably rely upon the false and misleading representations and omissions to their detriment, which they did. 90. As a direct and proximate result of Cricket's negligent statements, representations, and omissions, Plaintiff and the Class were induced, ab initio, to purchase a CDMA handset from Cricket for a price significantly higher than they were worth. 91. Cricket, their agents or employees, owed a duty of care to Plaintiff and the Class. 17 JA 164 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 168 of 426 Total Pages:(208 of 466) 4 92. Cricket recklessly and negligently breached the duty of care they owed to Plaintiff and the Class by making negligent representations to Plaintiff and the Class and negligently concealing material facts from them, as set forth herein. 93. Cricket knew, or had reason to know, that Plaintiffs and the Class would reasonably rely on the representations and concealments which if erroneous, would cause loss, injury or damage. 94. Plaintiff and the Class justifiably and reasonably took actions to their detriment as alleged herein, by paying Cricket significantly more for their CDMA handsets than they were worth, in reliance on the negligent representations and concealments. COUNT V MARYLAND CONSUMER PROTECTION ACT 95. Plaintiff incorporates herein by reference as though fully set forth the allegations in paragraphs 1 through 62 of this Complaint, as if each and every allegation is set forth fully herein. 96. Cricket is a merchant within the meaning of the Maryland Consumer Protection Act ("MCPA"), MD. CODE ANN., COMM. LAW § 13-101(g), and is subject to all of the MCPA's provisions prohibiting unfair or deceptive trade practices including those in MD. CODE ANN., COMM. LAW §§ 13-303 and 13-301. 97. Cricket's failure to disclose and its concealment from Plaintiff and members of the Class of the material facts as set forth herein constitutes unfair and deceptive trade practices in violation of the MCPA, §§ 13-303 and 13-301(1), (2)(i) and (iv) and (3). If Plaintiff and 18 JA 165 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 169 of 426 Total Pages:(209 of 466) 4 members of the Class had known the material facts related to the CDMA handsets, they would not have purchased the handsets or would have required a significantly lower price. 98. On information and belief, Plaintiff avers that Cricket systematically sold CDMA handsets during the Class Period which were not compatible with AT&T's GSM cellular network and retailed these CDMA handsets to the public without disclosing the impending inoperability of the handsets to its customers, in violation of the MCPA, in order to illegally increase its profits. 99. Cricket's acts and omissions as aforesaid, including its failure to disclose and concealment of the material facts, and its affirmative misrepresentation to Named Plaintiff and the Class, tended to and did deceive Plaintiff and members of the Class and constitutes an unfair and deceptive trade practice, in violation of MCPA §§ 13-303(1) - (3) and 13-301(1), (2)(i) and (iv), and/or (3). 100. As a result of Cricket's unfair and deceptive trade practices, Named Plaintiff and the Class agreed to and did purchase their CDMA handsets, Plaintiff paid Cricket significantly more for their CDMA handsets than they were worth, and Named Plaintiff and the Class sustained the other damages and losses set forth above. COUNT VI FRAUD 101. Plaintiff incorporates herein by reference as though fully set forth the allegations in paragraphs 1 through 62 of this Complaint, as if each and every allegation is set forth fully herein. 19 JA 166 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 170 of 426 Total Pages:(210 of 466) 4 102. Cricket and its authorized agents falsely represented to Plaintiff and other members of the Class that the CDMA handsets would be supported by Cricket for the useful life of the product. But for this representation, which Cricket and its authorized agents knew, or should have known, was false, Plaintiff and the other members of the Class would not have bought the CDMA handsets from Cricket. Moreover, but for this false representation, Plaintiff and the other members of the Class would not have then made a separate purchase from Cricket for the CDMA wireless service plan. 103. Defendant failed to disclose material information that Cricket would not continue to support the CDMA handsets as a result of the AT&T acquisition and that the CDMA handsets were not compatible with AT&T's GSM cellular network. 104. Defendant made these false and misleading representations and omissions knowingly, recklessly, and/or without regard for their truth or falsity, and with the intent to induce Plaintiff and other members of the Class to rely upon them by purchasing a CDMA handset from Cricket. 105. Plaintiff and the other members of the Class justifiably relied upon the false representations and omissions made by Defendant by purchasing the CDMA handset from Cricket's authorized agent and then by purchasing a wireless service agreement from Cricket thereafter. 106. As a direct and proximate result of the reliance upon the false representations and omissions of Defendant, Plaintiff and the other members of the Class have suffered damages, including, but not limited to, the loss of the use of the CDMA handsets and the loss of their market value, well prior to the end of the useful life of these cell phones. 20 JA 167 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 171 of 426 Total Pages:(211 of 466) 4 107. Because of the willful and wanton conduct of Defendant, Plaintiff and the other members of the Class are entitled to punitive, as well as actual, damages. COUNT VII VIOLATION OF THE MAGNUSON-MOSS WARRANTY ACT 108. Named Plaintiff re-alleges and incorporates herein by reference the allegations in the foregoing paragraphs as if fully set forth below. 109. Congress enacted the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq. (the "Act") in 1975 in response to widespread complaints from consumers that many warranties were misleading and deceptive and were not being honored. To remedy this problem of deception and failure to honor warranties, the Act imposes civil liability on any "warrantor" for, inter alia, failing to comply with any obligation under a written warranty and/or implied warranty. 15 U.S.C. § 2310(d)(1). The Act further authorizes a "suit for damages and other legal and equitable relief." Id. The Act authorizes the award of attorneys' fees and expressly authorizes class actions. 15 U.S.C. § 2310(e). 110. Cricket is a "warrantor" within the meaning of Section 2301(5) of the Act. 111. Named Plaintiff and other members of the Class are "consumers" within the meaning of Section 2301(3) of the Act. 112. Cricket breached express warranties because the CDMA handsets sold did not conform to the description of the CDMA handsets. Cricket's affirmations of fact concerning the mobile telephones, and descriptions of the mobile telephones, which Cricket make to Plaintiff and the Class, relating to the mobile telephones and part of the basis of the bargain, created an 21 JA 168 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 172 of 426 Total Pages:(212 of 466) 4 express warranty that the mobile telephones would operate on a nationwide network providing unsurpassed coverage. 113. Cricket breaches of the implied warranties of merchantability and fitness for a particular purpose as alleged herein, violate the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq., including 15 U.S.C. § 2310(d). 114. Cricket knew, at the time of sale, of the defects in the mobile telephones sold to Plaintiff and the Class Members which breached the express warranties and implied warranties of merchantability and fitness for a particular purpose. 115. Named Plaintiff contacted Cricket and asked Cricket to cure the defect in his mobile telephone by replacing it with a usable and comparable CDMA handset or by unlocking his handset so that he could use it on another CDMA wireless provider's network. Cricket refused to cure the defect or to replace or unlock Named Plaintiff's handset. 116. As a result of Cricket's violation of the Act, Named Plaintiff and the Class sustained the losses and damages described herein. PRAYER FOR RELIEF WHEREFORE, Plaintiff, on behalf of himself and all similarly situated individuals, demands judgment against Defendant as follows: (1) Declaring this action to be a proper class action maintainable pursuant to Rule 23(a) and Rule 23(b)(3) of the Federal Rules of Civil Procedure and declaring Plaintiff and their counsel to be representatives of the Class; 22 JA 169 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 173 of 426 Total Pages:(213 of 466) 4 (2) Requiring Defendant to replace the CDMA handsets with comparable GSM handsets free of charge; (3) Awarding actual damages to Plaintiff and the Class; (4) Awarding punitive damages to Plaintiff and the Class under Counts II, IV and VI; (5) Awarding Plaintiff and the Class costs and disbursements and reasonable allowances for the fees of counsel and experts, and reimbursement of expenses; (6) Awarding pre-judgment and post-judgment interest on all sums awarded to Named Plaintiff and the Class; and (7) Awarding such other and further relief the Court deems just and equitable. Respectfully submitted, Z LAW, LLC Dated: February 10, 2017 ________/s/___28191__ _____________ Cory L. Zajdel (Fed. Bar No. 28191) 2345 York Road, Ste. B-13 Timonium, MD 21093 (443) 213-1977 clz@zlawmaryland.com Oren S. Giskan Catherine E. Anderson Giskan Solotaroff Anderson & Stewart, LLP 11 Broadway, Suite #2150 New York, NY 10004 (212) 847-8315 Attorneys for Plaintiff 23 JA 170 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 174 of 426 Total Pages:(214 of 466) 4 DEMAND FOR JURY TRIAL Plaintiff and the Class request a jury trial for any and all Counts for which a trial by jury is permitted by law. ________/s/___28191__ _____________ Cory L. Zajdel (Fed. Bar No. 28191) 24 JA 171 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 175 of 426 Total Pages:(215 of 466) 4 IN THE UNITED STATES DISTRICT FOR THE DISTRICT OF MARYLAND (Baltimore Division) TIM BOND 150 WESTMINSTER PIKE REISTERSTOWN, MD 21136 JURY TRIAL DEMANDED on his own behalf and on behalf of all others similarly situated, Plaintiffs, v. CRICKET COMMUNICATIONS, LLC Case No. 1:15-cv-923-WDQ 1209 ORANGE STREET WILMINGTON, DE 19801 SERVE ON: Archis A. Parasharami Mayer Brown LLP 1999 K Street, N.W. Washington, DC 20006 Defendant. FIRSECONDT AMENDED CLASS ACTION COMPLAINT Plaintiff Tim Bond ("Plaintiff" or "Bond") b r i n g s this class action complaint individually and in a representative capacity on behalf all others similarly situated (the "Class") against defendant Cricket Communications, LLC. I. Preliminary Statement 1. On July 12, 2013, AT&T announced its agreement to acquire Cricket Communications Inc. 2. After acquiring Cricket Communications Inc., AT & T formed Cricket Communications, LLC ("Cricket") to carry on the business of the former Cricket Communications, Inc. 1 JA 172 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 176 of 426 Total Pages:(216 of 466) 4 3. From July 12, 2013 to the present (the "Class Period"), Cricket, both directly and through its authorized agents, has offered for sale and sold to the consuming public CDMA handsets. 4. Prior to the Class Period, AT&T and Cricket decided that on or after the acquisition of Cricket, AT&T would discontinue all CDMA service and require all Cricket customers to use AT&T's GSM cellular network. 5. Prior to the Class Period, Cricket knew or should have known that AT&T intended to discontinue the use of CDMA handsets in favor of AT&T's GSM service. 6. During the Class Period, Cricket knew, or reasonably should have known, that the CDMA handsets sold would be inoperable as a result of the acquisition by AT&T. 7. During the Class Period, Cricket affirmatively represented that all CDMA handsets sold were compatible with Cricket's cellular phone service. 8. During the Class Period, Cricket failed to disclose that these CDMA handsets had an artificially limited useful life and that the phones would not be supported for the expected life of the phone. 9. Included in the CDMA handsets which were rendered inoperable by the AT&T acquisition is the Plaintiff's Samsung Galaxy S4, which he purchased from Cricket in or around December 2013. 10. Plaintiff asserts claims individually on behalf of the Class. 2 JA 173 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 177 of 426 Total Pages:(217 of 466) 4 II. The Parties 11. Plaintiff is a citizen of M a r y l a n d c u r r e n t l y r e s i d i n g a t 1 5 0 Westminster Pike, Reisterstown, MD 21136 (Baltimore County, MD). He is a natural person over the age of 21 and otherwise sui juris. 12. Defendant Cricket Communications, LLC is a limited liability company formed in the State of Delaware and maintains its corporate headquarters in Wilmington, Delaware. On July 12, 2013, AT&T agreed to buy Leap Wireless International, Inc., for $1.2 billion. As part of the agreement, AT&T would acquire the Leap Wireless subsidiary, Cricket Communications Inc. ("Cricket"), which provided wireless products and services to approximately 4.6 million subscribers. On March 13, 2014, the Federal Communications Commission approved the merger between AT&T and Leap Wireless. Since that time, Cricket has functioned as a unit of AT&T as Cricket Communications, LLC. III. JURISDICTION AND VENUE 13. This Court has jurisdiction over this action pursuant to the Class Action Fairness Act of 2005 ("CAFA"), Pub. L. No. 109-2, 119 Stat. 4 (codified in various sections of 28 U.S.C.). 14. Plaintiff Tim Bond is a citizen of Maryland. Defendant is a citizen of Delaware and Texas but is registered to do business in Maryland and nationwide. The amount in controversy exceeds $5,000,000 and there are at least one hundred members of the putative class. 15. This Court has jurisdiction over Defendant because it either is a foreign corporation authorized to conduct business in Maryland, is doing business in Maryland and has 3 JA 174 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 178 of 426 Total Pages:(218 of 466) 4 registered with the Maryland Secretary of State, or do sufficient business in Maryland, have sufficient minimum contacts with Maryland, or otherwise intentionally avail themselves of the Maryland consumer market through the promotion, marketing and sale of wireless products and services in Maryland. This purposeful availment renders the exercise of jurisdiction by this Court over Defendant and its affiliated or related entities permissible under traditional notions of fair play and substantial justice. 16. In addition, this Court has subject-matter jurisdiction under CAFA because the amount in controversy exceeds $5 million and diversity exists between Plaintiff and the Defendants. 28 U.S.C. § 1332(d)(2). Further, in determining whether the $5 million amount in controversy requirement of 28 U.S.C. § 1332(d) (2) is met, the claims of the putative class members are aggregated. 28 U.S.C. § 1332(d)(6). 17. Venue is proper in this forum pursuant to 28 U.S.C. § 1391 because Defendant transacts business and may be found in this District and a substantial portion of the practices complained of herein occurred in the District of Maryland. 18. All conditions precedent to this action have occurred, been performed, or have been waived. IV. Factual Allegations 19. Two of the predominant cellular voice technologies in the United States are Global Systems for Mobile communications ("GSM") and Code Division Multiple Access ("CDMA"). 20. GSM was developed by the European Telecommunications Standards Institute to replace the analog networks. In the United States, GSM is the technology behind AT&T and T- 4 JA 175 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 179 of 426 Total Pages:(219 of 466) 4 Mobile USA. Current GSM devices use a Security Identity Module, or SIM, card. This card contains the International Mobile Subscriber Identity (IMSA) Number, carrier information, and consumer contact information. Assuming the phone is not locked by the carrier, the SIM card slot allows the consumer to migrate the phone between carriers. 21. CDMA was developed by Qualcomm and has been the technology preferred by Sprint and Verizon. Rather than having a SIM card for data storage, data is stored on the CDMA phone itself. This has made moving a CDMA phone between carriers difficult, if not impossible. 22. At all relevant times, Cricket has marketed, offered for sale, and sold handheld devices compatible with the CDMA network. 23. Each of the CDMA handsets sold by Cricket included an express statement, constituting an express warranty, that the telephone included "Nationwide Coverage" and that "Cricket's network provides unsurpased nationwide coverage." 243. In July 2013, AT&T reached an agreement to purchase the assets and assume the liabilities of Leap Wireless, the parent of Cricket, for $1.2 Billion. AT & T retained Cricket's directors and management in addition to its 3,400 employees. The July 12, 2013 press release of AT&T and Leap Wireless provided, in relevant part, the following information about the acquisition: AT&T will acquire all of Leap's stock and wireless properties, including licenses, network assets, retail stores and approximately 5 million subscribers. . . . Leap's network covers approximately 96 million people in 35 U.S. states. Leap currently operates -- under the Cricket brand -- a 3G CDMA network, as well as a 4G LTE network covering 21 million people in these areas, and has 3,400 employees. 5 JA 176 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 180 of 426 Total Pages:(220 of 466) 4 AT&T will retain the Cricket brand name, provide Cricket customers with access to AT&T's award-winning 4G LTE mobile network, utilize Cricket's distribution channels, and expand Cricket's presence to additional U.S. cities. The result will be increased competition, better device choices, improved customer care and a significantly enhanced mobile Internet experience for consumers seeking low-cost prepaid wireless plans. . . . The acquisition includes spectrum in the PCS and AWS bands covering 137 million people and is largely complementary to AT&T's existing spectrum licenses. Immediately after approval of the transaction, AT&T plans to put Leap's unutilized spectrum – which covers 41 million people -- to use in furthering its 4G LTE deployment and providing additional capacity and enhanced network performance for customers' growing mobile Internet usage. Owners of approximately 29.8% of Leap's outstanding shares have entered into an agreement to vote in favor of the transaction. The transaction is subject to review by the Federal Communications Commission and the Department of Justice and to other customary closing conditions. AT&T expects the transaction to close in six to nine months. 254. Thus, according to the July 12, 2013 press release, AT&T intended to move customers from Cricket's CDMA network to AT&T's GSM network and Cricket/AT&T further intended not to support CDMA handsets that could not be migrated to the GSM network. 265. In fact, many CDMA handsets cannot be moved to a GSM network because Cricket locked the CDMA handsets it sold. 276. Cricket knew and failed to disclose this material information to customers. 287. Cricket, moreover, continued to offer for sale and sell to the consuming public CDMA handsets that are not compatible with and cannot be migrated to the GSM network. 298. Cricket thus knew, and failed to disclose, that many of the CDMA handsets it offered for sale and sold to the consuming public would be rendered inoperable as a result of the AT&T acquisition (i.e. not able to make telephone calls or other forms of mobile communications). 6 JA 177 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 181 of 426 Total Pages:(221 of 466) 4 3029. For instance, Plaintiff purchased a Samsung Galaxy 4S from an authorized agent of Cricket in or around December 2013, more than five months after AT&T acquired Cricket. 310. Thereafter, Plaintiff entered into a wireless service agreement with Cricket to use the Samsung Galaxy 4S on Cricket's CDMA compatible cellular network. 321. Plaintiff received two different receipts, one for the purchase of the phone and one for the purchase of the wireless service agreement. 332. In January 2015, AT&T publicly announced that the legacy CDMA markets covered by its Cricket unit will be turned off this year, in a three-phase switch-off plan. See https://www.telegeography.com/products/commsupdate/articles/2015/01/09/att-confirms- september-shutdown-of-cricket-cdma-network/. 343. As per the AT&T public announcement in January 2015, the CDMA wireless service will be terminated on a rolling basis by bill cycle. Customers in the initial 'sunset markets' will have their service terminated by bill cycle beginning March 15, 2015 with the CDMA network in those markets being turned off completely on 15 April 2015. Initial (March/April) sunset markets include: Washington, DC; Little Rock, Fayetteville and Fort Smith (Arkansas); Wilmington (Delaware); Chicago and Northern Illinois (Illinois); South Bend (Indiana); Baltimore (Maryland); Atlantic City (New Jersey); Buffalo, Rochester and Syracuse (New York) and Philadelphia (Pennsylvania). 354. The second group of markets slated for shutdown in May/June 2015 consists of: Wichita (Kansas); Albuquerque and Las Cruces (New Mexico); Las Vegas (Nevada) and Oklahoma City and Tulsa (Oklahoma). 365. All remaining legacy CDMA markets will be turned off by mid-September 2015. 7 JA 178 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 182 of 426 Total Pages:(222 of 466) 4 376. Cricket announced that its customers who purchased an iPhone with original CDMA (including the iPhone 4s, iPhone 5, iPhone 5s or iPhone 5c) will receive a free, replacement SIM card that enables the iPhone to operate on Cricket's new 4G and 4G LTE nationwide GSM network. However, persons who purchased any other type of cell phone from Cricket would be required to purchase a new handset. 387. As Cricket explained on its website: "The new Cricket's nationwide 4G network uses GSM (Global System for Mobile Communications) technology that is the global standard for mobile service while the original Cricket uses CDMA network technology. That means that with the exception of original Cricket iPhone 4S, iPhone 5, iPhone 5S and iPhone 5C, your current CDMA phone will not work on the new Cricket network. 398. In or around February 2015, Plaintiff went into a Cricket store in Maryland to pay his bill for February service. When Plaintiff was in the Cricket store, Cricket turned his Samsung Galaxy S4 phone off. Plaintiff attempted to have his phone turned back on through AT&T and other service providers, including Sprint, Virgin Mobile and T-Mobile. But none was able to revive Plaintiff's phone. 4039. Plaintiff's phone has no value or only a de minimis value due to its inoperability on any cellular network. 410. Plaintiff is not alone. Indeed, several consumers have made anonymous complaints on the web page forum: https://forums.att.com/t5/General-Account-Questions/AT- amp-T-Merger-with-Cricket-Sucks/td-p/4096500, concerning Cricket's failure to disclose that the CDMA handheld devices which it offered for sale and sold to the consuming public as of July 12, 2013, would be inoperable as a result of the AT&T acquisition, including the following: 8 JA 179 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 183 of 426 Total Pages:(223 of 466) 4 Blownaway Sep 26, 2014 8:26:33 AM This merger of AT&T and Cricket is horrible. First I just bought an expensive Samsung Galaxy S4 not even a year ago and I am being told that I have to buy a brand new phone when the merger is fully complete (March 2015). This is ridiculous - who is sitting around with an extra $400 a year to purchase a new phone. As large a company as AT&T they do not have the capability to switch my phone over. SteveJodylynn Oct 29, 2014 12:28:27 PM I agree. It is just a few months from when my expensive CDMA Cricket smartphone (less than a year old) becomes inoperable and I've heard nothing from AT&T or Cricket about the transition plan, other than I will be forced to shell out hundreds for a new phone that is compatible with AT&T's network. Chiefsfan Nov 29, 2014 5:43:14 PM. . . AT&T is screwing over thousands of Cricket customers and they DON'T CARE ONE BIT! Cricket shouldn't have been selling phones over the past 7-8 months, since the merger with AT&T, knowing that they won't work after March, but they continue to do just that. The point is that AT&T is gaining millions of unearned $ by forcing customers to buy new ridiculously expensive phones (oh, but they'll give you a free deal on their piece-o-crap phones (which are all of them other than the Galaxy & iphones) all under the guise of "providing better service". What a crock!! WE ALL NEED TO BOYCOTT AT&T ONCE THEY RENDER OUR PHONES USELESS!!! hatenewcricket Feb 11, 2015 9:16:13 PM I know what you mean I got my S4 just befor[e] they annou[n]ced the switch, I believe they knew what was going to happen and sold me an already worthless phone this whole thing has been a rip off and is unfair to cricked customers who are getting screwed V. CLASS ALLEGATIONS 421. Plaintiff brings this action against Defendant pursuant to Rule 23 of the Federal Rules of Civil Procedure on behalf of himself and all other persons similarly situated. Plaintiff seeks to represent the following classes: 9 JA 180 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 184 of 426 Total Pages:(224 of 466) 4 All persons nationwide during the period July 12, 2013 to the present, who purchased a CDMA handset from Cricket or through its authorized agents. Excluded from this class are Defendants, their affiliates, subsidiaries, agents, board members, directors, officers, and/or employees. 432. Plaintiff reserves the right to modify or amend the definition of the proposed Class before the Court determines whether certification is appropriate. 443. Defendant subjected Plaintiff and the respective Class members to the same unfair, unlawful, and deceptive practices and harmed them in the same manner. 454. The Class, as defined above, is identifiable. 465. The Named Plaintiff is a member of the Class. 476. The proposed class is so numerous that joinder of all members would be impracticable. Cricket sold thousands of CDMA handsets during the Class Period in the State of Maryland and nationwide. 4 8 7. The individual class members are ascertainable, as the names and addresses of all class members can be identified in the business records maintained by Defendant. 498. While the precise number of class members can only be obtained through discovery, the numbers are clearly more than can be consolidated in one complaint such that it would be impractical for each member to bring suit individually. 5049. There are questions of law and fact that are common to Plaintiff's and class members' claims. These common questions predominate over any questions that go particularly to any individual member of the Class. 5 1 0. Among such common questions of law and fact are the following: 10 JA 181 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 185 of 426 Total Pages:(225 of 466) 4 a. Whether Cricket offered for sale and sold to the consuming public CDMA handsets during the Class Period; b. Whether Cricket knew and failed to disclose that the CDMA handsets would be inoperable upon completion of the merger with AT&T; c. Whether Cricket knew at the time of sale that Plaintiff and Class Members intended to use the mobile telephones it sold to them to make telephone calls and mobile communications; d. Whether Cricket breached written warranties in its sales of mobile telephones to Plaintiff and other Class Members; e. Whether Cricket breached the implied covenant of good faith and fair dealing by offering for sale and selling soon to be inoperable CDMA handsets; f. Whether Cricket breached the implied warranty of fitness for a particular purpose in its sales of mobile telephones to Plaintiff and other Class Members; gd. Whether Cricket made material misstatements of fact and/or knew and failed to disclose material information concerning the CDMA handsets which it sold to Plaintiff and other members of the class, including facts that the CDMA handsets would be inoperable as a result of the AT&T acquisition, that Cricket planned to convert to the GSM network and that as a result, the CDMA handsets had an artificially limited useful life; he. Whether Cricket breached the implied warranty of merchantability by selling Plaintiff and the other members of the Class CDMA handsets which it knew had an artificially limited useful life; i. Whether Cricket violated the Magnuson-Moss Warranty Act in its transactions with Plaintif and other Class Members; and jf. Whether Plaintiff and the Class Members are entitled to damages and/or injunctive relief as a result of Defendant's conduct. 521. Plaintiff's claims are typical of the claims o f t h e cl as s because of the similarity, uniformity, and common purpose of Defendant's unlawful conduct. Each class 11 JA 182 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 186 of 426 Total Pages:(226 of 466) 4 member has sustained, and will continue to sustain, damages in the same manner as Plaintiff as a result of Defendant's wrongful conduct. 532. Plaintiff is an adequate representative of the class he seeks to represent and will fairly and adequately protect the interests of that class. 5 4 3. Plaintiff is committed to the vigorous prosecution of this action and has retained competent counsel, experienced in litigation of this nature, to represent them. 554. There is no hostility between Plaintiff and the unnamed class members. 565. Plaintiff anticipates no difficulty in the management of this litigation as a class action. 576. To prosecute this case, Plaintiff has chosen the undersigned law firms, which are experienced in class action litigation and have the financial and legal resources to meet the substantial costs and legal issues associated with this type of litigation. 587. The questions of law or fact common to Plaintiff's and each Class Member's claims predominate over any questions of law or fact affecting only individual members of the class. 598. All claims by Plaintiff and the unnamed class members are based on Cricket's sale of CDMA handsets to the consuming public when it knew, or reasonably should have known and failed to disclose that these handsets would be inoperable upon completion of the AT&T merger. 6059. Common issues predominate where, as here, liability can be determined on a class-wide basis, even when there will be some individualized damages determinations. 12 JA 183 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 187 of 426 Total Pages:(227 of 466) 4 610. As a result, when determining whether common questions predominate, courts focus on the liability issue, and if the liability issue is common to the class as is the case at bar, common questions will be held to predominate over individual questions. 621. A class action is superior to individual actions in part because of the non- exhaustive factors listed below: (a) Joinder of all class members would create extreme hardship and inconvenience for the affected customers as they reside all across the states; (b) Individual claims by class members are impractical because the costs to pursue individual claims exceed the value of what any one class member has at stake. As a result, individual class members have no interest in prosecuting and controlling separate actions; (c) There are no known individual class members who are interested in individually controlling the prosecution of separate actions; (d) The interests of justice will be well served by resolving the common disputes of potential class members in one forum; (e) Individual suits would not be cost effective or economically maintainable as individual actions; and (f) The action is manageable as a class action. VI. CAUSES OF ACTION COUNT I BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY 632. Plaintiff incorporates by reference paragraphs 1 through 621 above, as if each and every allegation is set forth fully herein. 643. At all relevant times, Cricket was a merchant with respect to the CDMA handsets. 654. Plaintiff purchased his now inoperable CDMA handset from an authorized agent of Cricket. At the time of purchase, Cricket and it authorized agents were in the business of 13 JA 184 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 188 of 426 Total Pages:(228 of 466) 4 selling CDMA handsets and/or by course of business held itself out as having special knowledge or skill regarding those handsets. 665. A warranty that the CDMA handsets were in merchantable condition was implied by law in the sale of these handsets by Cricket and its agents. 676. The CDMA handsets which Cricket and its authorized agents sold to Plaintiff and other members of the class were not in merchantable condition and are not fit for the ordinary purpose for which handsets are used and/or were not of the same quality of those generally acceptable in the trade. 687. In fact, the CDMA handsets sold by Cricket and its authorized agents, including the Samsung Galaxy 4S sold to Plaintiff, were unmerchantable. 698. Specifically, Cricket knew and failed to disclose that these CDMA handsets would be inoperable as a result of the AT&T acquisition and Cricket's plan to convert to the GSM network. As a result, the CDMA handsets had an artificially limited useful life. 7069. Plaintiff and other members of the Class have had sufficient direct dealings with either Cricket or its authorized agents to establish vertical privity of contract between themselves and Defendant. Nevertheless, privity is not required in this case because Plaintiff and the other members of the Class are intended third- party beneficiaries of contract between Cricket and its authorized agents. Specifically, Plaintiff and the other members of the Class are the intended beneficiaries of Cricket's implied warranties. Cricket's authorized agents were not intended to be the ultimate consumers of the CDMA handsets. COUNT II 14 JA 185 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 189 of 426 Total Pages:(229 of 466) 4 FRAUDULENT CONCEALMENT 710. Plaintiff incorporates by reference paragraphs 1 through 621 above, as if each and every allegation is set forth fully herein. 721. As set forth above, Cricket knew and failed to disclose and/ or suppressed and/or concealed material facts concerning the CDMA handsets, including the Samsung Galaxy 4S, which it sold to Plaintiff and other members of the class. 732. These concealed facts were material because they directly impacted the reliability and use of the handsets. 743. Cricket owed Plaintiff and the other members of the Class a duty to disclose that the CDMA handsets would be rendered inoperable by the AT&T acquisition and Cricket's plans to convert to the GSM network because it possessed exclusive and superior knowledge and access to these facts. 754. Cricket knew and failed to disclose that the CDMA handsets had an artificially limited useful life and that the CDMA handsets were not compatible with AT&T's GSM cellular network. 765. Cricket actively concealed and/or suppressed these material facts, in whole or in part, with the intent to induce Plaintiff and the other members of the Class to purchase the CDMA handsets from Cricket and its authorized agents and to pay more than they otherwise would have paid had these material facts that the CDMA handsets would be inoperable as a result of the AT&T acquisition and Cricket's plans to convert to the GSM network been disclosed. 15 JA 186 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 190 of 426 Total Pages:(230 of 466) 4 776. Cricket's conduct was oppressive, fraudulent, malicious and in reckless disregard of the rights of Plaintiff and the Class. 787. Plaintiff and the other members of the Class were not aware of the omitted material facts and would not have acted as they did if they had known of the concealed and/or suppressed facts. 798. As a result of Cricket's concealment and/or suppression of material facts concerning the CDMA handsets, Plaintiff and the Class have sustained damages. COUNT III MONEY HAD AND RECEIVED/UNJUST ENRICHMENT 8079. Plaintiff incorporates herein by reference as though fully set forth the allegations in paragraphs 1 through 621 of this Complaint, as if each and every allegation is set forth fully herein. 810. As set forth above, Cricket charged and collected payments for CDMA handsets that would become inoperable in amounts that exceeded the value of these CDMA handsets, which conferred a substantial benefit on Cricket. 821. Cricket was aware of, and had knowledge of, this substantial benefit. 832. By doing so, Cricket has come into the possession of money in the form of payments that it had, and has no right to at law or in equity. 843. It would be inequitable for Cricket to retain any such monies that it had no legal right to charge. 16 JA 187 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 191 of 426 Total Pages:(231 of 466) 4 854. As a consequence, Named Plaintiff and the members of the Class have been damaged. COUNT IV NEGLIGENT MISREPRESENTATION 865. Plaintiff incorporates herein by reference as though fully set forth the allegations in paragraphs 1 through 621 of this Complaint, as if each and every allegation is set forth fully herein. 876. Cricket and its agents or employees negligently made the false and misleading representations and omissions alleged herein, including but not limited to the representations that its CDMA handsets would pass without objection in the trade under the contract description and that the CDMA handsets sold were compatible with and would continue to be compatible with Cricket's CDMA's cellular service for the useful life of the handset. 887. Cricket's agents or employees negligently failed to disclose the material fact that its handsets would become inoperable during its useful lifespan. 898. Cricket's agents or employees negligently failed to disclose that the prices of the CDMA handsets did not accurately represent its value, intending that Plaintiff and the Class would reasonably rely upon the false and misleading representations and omissions to their detriment, which they did. 890. As a direct and proximate result of Cricket's negligent statements, representations, and omissions, Plaintiff and the Class were induced, ab initio, to purchase a CDMA handset from Cricket for a price significantly higher than they were worth. 17 JA 188 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 192 of 426 Total Pages:(232 of 466) 4 910. Cricket, their agents or employees, owed a duty of care to Plaintiff and the Class. 921. Cricket recklessly and negligently breached the duty of care they owed to Plaintiff and the Class by making negligent representations to Plaintiff and the Class and negligently concealing material facts from them, as set forth herein. 932. Cricket knew, or had reason to know, that Plaintiffs and the Class would reasonably rely on the representations and concealments which if erroneous, would cause loss, injury or damage. 943. Plaintiff and the Class justifiably and reasonably took actions to their detriment as alleged herein, by paying Cricket significantly more for their CDMA handsets than they were worth, in reliance on the negligent representations and concealments. COUNT V MARYLAND CONSUMER PROTECTION ACT 954. Plaintiff incorporates herein by reference as though fully set forth the allegations in paragraphs 1 through 621 of this Complaint, as if each and every allegation is set forth fully herein. 965. Cricket is a merchant within the meaning of the Maryland Consumer Protection Act ("MCPA"), MD. CODE ANN., COMM. LAW § 13-101(g), and is subject to all of the MCPA's provisions prohibiting unfair or deceptive trade practices including those in MD. CODE ANN., COMM. LAW §§ 13-303 and 13-301. 976. Cricket's failure to disclose and its concealment from Plaintiff and members of the Class of the material facts as set forth herein constitutes unfair and deceptive trade practices 18 JA 189 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 193 of 426 Total Pages:(233 of 466) 4 in violation of the MCPA, §§ 13-303 and 13-301(1), (2)(i) and (iv) and (3). If Plaintiff and members of the Class had known the material facts related to the CDMA handsets, they would not have purchased the handsets or would have required a significantly lower price. 987. On information and belief, Plaintiff avers that Cricket systematically sold CDMA handsets during the Class Period which were not compatible with AT&T's GSM cellular network and retailed these CDMA handsets to the public without disclosing the impending inoperability of the handsets to its customers, in violation of the MCPA, in order to illegally increase its profits. 998. Cricket's acts and omissions as aforesaid, including its failure to disclose and concealment of the material facts, and its affirmative misrepresentation to Named Plaintiff and the Class, tended to and did deceive Plaintiff and members of the Class and constitutes an unfair and deceptive trade practice, in violation of MCPA §§ 13-303(1) - (3) and 13-301(1), (2)(i) and (iv), and/or (3). 10099. As a result of Cricket's unfair and deceptive trade practices, Named Plaintiff and the Class agreed to and did purchase their CDMA handsets, Plaintiff paid Cricket significantly more for their CDMA handsets than they were worth, and Named Plaintiff and the Class sustained the other damages and losses set forth above. COUNT VI FRAUD 1010. Plaintiff incorporates herein by reference as though fully set forth the allegations in paragraphs 1 through 621 of this Complaint, as if each and every allegation is set forth fully herein. 19 JA 190 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 194 of 426 Total Pages:(234 of 466) 4 1021. Cricket and its authorized agents falsely represented to Plaintiff and other members of the Class that the CDMA handsets would be supported by Cricket for the useful life of the product. But for this representation, which Cricket and its authorized agents knew, or should have known, was false, Plaintiff and the other members of the Class would not have bought the CDMA handsets from Cricket. Moreover, but for this false representation, Plaintiff and the other members of the Class would not have then made a separate purchase from Cricket for the CDMA wireless service plan. 1032. Defendant failed to disclose material information that Cricket would not continue to support the CDMA handsets as a result of the AT&T acquisition and that the CDMA handsets were not compatible with AT&T's GSM cellular network. 1043. Defendant made these false and misleading representations and omissions knowingly, recklessly, and/or without regard for their truth or falsity, and with the intent to induce Plaintiff and other members of the Class to rely upon them by purchasing a CDMA handset from Cricket. 1054. Plaintiff and the other members of the Class justifiably relied upon the false representations and omissions made by Defendant by purchasing the CDMA handset from Cricket's authorized agent and then by purchasing a wireless service agreement from Cricket thereafter. 1065. As a direct and proximate result of the reliance upon the false representations and omissions of Defendant, Plaintiff and the other members of the Class have suffered damages, including, but not limited to, the loss of the use of the CDMA handsets and the loss of their market value, well prior to the end of the useful life of these cell phones. 20 JA 191 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 195 of 426 Total Pages:(235 of 466) 4 1076. Because of the willful and wanton conduct of Defendant, Plaintiff and the other members of the Class are entitled to punitive, as well as actual, damages. COUNT VII VIOLATION OF THE MAGNUSON-MOSS WARRANTY ACT 108. Named Plaintiff re-alleges and incorporates herein by reference the allegations in the foregoing paragraphs as if fully set forth below. 109. Congress enacted the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq. (the "Act") in 1975 in response to widespread complaints from consumers that many warranties were misleading and deceptive and were not being honored. To remedy this problem of deception and failure to honor warranties, the Act imposes civil liability on any "warrantor" for, inter alia, failing to comply with any obligation under a written warranty and/or implied warranty. 15 U.S.C. § 2310(d)(1). The Act further authorizes a "suit for damages and other legal and equitable relief." Id. The Act authorizes the award of attorneys' fees and expressly authorizes class actions. 15 U.S.C. § 2310(e). 110. Cricket is a "warrantor" within the meaning of Section 2301(5) of the Act. 111. Named Plaintiff and other members of the Class are "consumers" within the meaning of Section 2301(3) of the Act. 112. Cricket breached express warranties because the CDMA handsets sold did not conform to the description of the CDMA handsets. Cricket's affirmations of fact concerning the mobile telephones, and descriptions of the mobile telephones, which Cricket make to Plaintiff and the Class, relating ot the mobile telephones and part of the basis of the bargain, created an 21 JA 192 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 196 of 426 Total Pages:(236 of 466) 4 express warranty that the mobile telephones would operate on a nationwide network providing unsurpassed coverage. 113. Cricket breaches of the implied warranties of merchantability and fitness for a particular purpose as alleged herein, violate the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq., including 15 U.S.C. § 2310(d). 114. Cricket knew, at the time of sale, of the defects in the mobile telephones sold to Plaintiff and the Class Members which breached the express warranties and implied warranties of merchantability and fitness for a particular purpose. 115. Named Plaintiff contacted Cricket and asked Cricket to cure the defect in his mobile telephone by replacing it with a usable and comparable CDMA handset or by unlocking his handset so that he could use it on another CDMA wireless provider's network. Cricket refulsed to cure the defect or to replace or unlock Named Plaintiff's handset. 116. As a result of Cricket's violation of the Act, Named Plaintiff and the Class sustained the losses and damages described herein. PRAYER FOR RELIEF WHEREFORE, Plaintiff, on behalf of himself and all similarly situated individuals, demands judgment against Defendant as follows: (1) Declaring this action to be a proper class action maintainable pursuant to Rule 23(a) and Rule 23(b)(3) of the Federal Rules of Civil Procedure and declaring Plaintiff and their counsel to be representatives of the Class; 22 JA 193 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 197 of 426 Total Pages:(237 of 466) 4 (2) Requiring Defendant to replace the CDMA handsets with comparable GSM handsets free of charge; (3) Awarding actual damages to Plaintiff and the Class; (4) Awarding punitive damages to Plaintiff and the Class under Counts II, IV and VI; (5) Awarding Plaintiff and the Class costs and disbursements and reasonable allowances for the fees of counsel and experts, and reimbursement of expenses; (6) Awarding pre-judgment and post-judgment interest on all sums awarded to Named Plaintiff and the Class; and (7) Awarding such other and further relief the Court deems just and equitable. Respectfully submitted, Z LAW, LLC Dated: February 10, 2017 ________/s/___28191__ _____________ Cory L. Zajdel (Fed. Bar No. 28191) 2345 York Road01 Main Street, Ste. B2- 13D TimoniumReisterstown, MD 21093136 (443) 213-1977 clz@zlawmaryland.com Oren S. Giskan (pending pro hac vice) Catherine E. Anderson (pending pro hac vice) Giskan Solotaroff Anderson & Stewart, LLP 11 Broadway, Suite #2150 New York, NY 10004 (212) 847-8315 23 JA 194 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 198 of 426 Total Pages:(238 of 466) 4 Attorneys for Plaintiff DEMAND FOR JURY TRIAL Plaintiff and the Class request a jury trial for any and all Counts for which a trial by jury is permitted by law. ________/s/___28191__ _____________ Cory L. Zajdel (Fed. Bar No. 28191) 24 JA 195 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 199 of 426 Total Pages:(239 of 466) UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND (Baltimore Division) TIM BOND, on his own behalf and on behalf of all others similarly situated, Plaintiffs, Civil Action No. 1:15-cv-923-MJG v. CRICKET COMMUNICATIONS, LLC, Defendant. DEFENDANT CRICKET COMMUNICATIONS, LLC'S MOTION TO COMPEL ARBITRATION Archis A. Parasharami (D. Md. Bar No. 13931) MAYER BROWN LLP 1999 K Street, NW Washington, DC 20006 Tel: (202) 263-3000 Fax: (202) 263-3300 aparasharami@mayerbrown.com Counsel for Defendant Cricket Communications, LLC JA 196 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 200 of 426 Total Pages:(240 of 466) Pursuant to the Federal Arbitration Act, 9 U.S.C. §§ 1-16, Defendant Cricket Communications, LLC ("Cricket") respectfully moves this Court to enter an order (1) compelling Plaintiff Tim Bond to arbitrate his claims against Cricket on an individual basis and (2) staying further proceedings regarding those claims pending the outcome of arbitration. In support of this Motion, Cricket incorporates by reference the attached Memorandum, any reply memorandum that Cricket may file, and any oral argument the Court may allow at a hearing on this Motion. Dated: May 2, 2017 /s/ Archis A. Parasharami Archis A. Parasharami (D. Md. Bar No. 13931) MAYER BROWN LLP 1999 K Street, NW Washington, DC 20006 Tel: (202) 263-3000 Fax: (202) 263-3300 aparasharami@mayerbrown.com Counsel for Defendant Cricket Communications, LLC 1 JA 197 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 201 of 426 Total Pages:(241 of 466) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing was served electronically this 2nd day of May, 2017, upon: Cory L. Zajdel Z LAW, LLC 301 Main Street, Ste. 2-D Reisterstown, MD 21136 (443) 213-1977 clz@zlawmaryland.com Oren S. Giskan Catherine E. Anderson GISKAN SOLOTAROFF ANDERSON & STEWART, LLP 11 Broadway, Suite #2150 New York, NY 10004 (212) 847-8315 Attorneys for Plaintiff /s/ Archis A. Parasharami Archis A. Parasharami (D. Md. Bar No. 13931) 2 JA 198 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 202 of 426 Total Pages:(242 of 466) Mayer Brown LLP 1999 K Street, N.W. Washington, D.C. 20006-1101 Main Tel +1 202 263 3000 Main Fax +1 202 263 3300 August 11, 2017 www.mayerbrown.com Archis A. Parasharami Direct Tel +1 202 263 3328 Direct Fax +1 202 263 5328 The Honorable Marvin J. Garbis aparasharami@mayerbrown.com U.S. District Judge 101 West Lombard Street Chambers 5C Baltimore, MD 21201 Re: Bond v. Cricket Communications, LLC, Case No. 15-cv-923 Dear Judge Garbis: Plaintiff Tim Bond and Defendant Cricket Communications, LLC ("Cricket") have reached a settlement agreement in principle in this case that would resolve the claims of a proposed nationwide class. In light of this settlement, the parties respectfully request that the Court defer ruling on Cricket's pending Motion to Compel Arbitration (Dkt. No. 34). Separately, Cricket will soon file a notice of related case in Scott v. Cricket Communications, LLC, No. 15-cv-3330 (D. Md.), identifying Scott as related to this case. Because the proposed nationwide class settlement in Bond will cover all of the claims at issue in Scott, Cricket intends to move for a partial stay of proceedings in Scott. Sincerely, /s/ Archis A. Parasharami Archis A. Parasharami Counsel for Cricket Communications, LLC cc: Mark W. Ryan, Mayer Brown LLP John McCann, Miles & Stockbridge P.C. Cory L Zajdel, Z Law LLC Catherine Anderson, Giskan Solotaroff Anderson and Stewart LLP Oren S. Giskan, Giskan Solotaroff Anderson and Stewart LLP Mayer Brown LLP operates in combination with other Mayer Brown entities (the "Mayer Brown Practices"), which have offices in North America, Europe and Asia and are associated with Tauil & Chequer Advogados, a Brazilian law partnership. JA 199 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 203 of 426 Total Pages:(243 of 466) UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND (Northern Division) TIM BOND, On his own behalf and on behalf of All others similarly situated, Plaintiffs, v. Case No. 1:15-cv-00923-MJG CRICKET COMMUNICATIONS, LLC, Defendant. MOTION TO INTERVENE Michael Scott, through his attorneys Benjamin H. Carney, Martin E. Wolf and Gordon, Wolf & Carney, Chtd., and pursuant to Fed.R.Civ.P. 24, hereby moves to intervene as a Plaintiff in this case on behalf of himself and on behalf of the certified class of Maryland citizens he represents in a case pending in the Circuit Court for Baltimore City styled, Scott v. Cricket Communications, LLC, Case No. 24-C-15-004918. Filed contemporaneously with this Motion are: (1) a memorandum in support of the motion setting forth the support and authority for intervention under Fed.R.Civ.P. 24(a) and (b); and (2) a Complaint setting forth the claim for which intervention is sought pursuant to Fed.R.Civ.P. 24(c). WHEREFORE, Intervenor Michael Scott demands and Order: 1. Granting the motion; 2. Permitting Mr. Scott to intervene as Plaintiff in this case on his own behalf and on behalf of the certified class he represents; 3. Accepting the Complaint filed with this Motion for filing in this case; and 4. Granting such further relief as justice demands. JA 200 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 204 of 426 Total Pages:(244 of 466) Respectfully submitted, /s/Benjamin H. Carney Benjamin H. Carney (Bar No. 27984) BCarney@GWCfirm.com Martin E. Wolf (Bar No. 09425) MWolf@GWCfirm.com GORDON, WOLF & CARNEY, CHTD. 100 W. Pennsylvania Ave., Suite 100 Towson, Maryland 21204 410-825-2300 410-825-0066 fax Attorneys for Michael Scott and the Certified Class JA 201 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 205 of 426 Total Pages:(245 of 466) CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 24th day of August, 2017, copies of the foregoing Motion to Intervene, and the Memorandum in Support of Motion to Intervene, and the Complaint in Intervention were served by ECF and first class mail, postage prepaid on counsel for the Parties as set forth below: Cory L. Zajdel Archis A. Parasharami Z Law LLC Ann Marie Duffy 2345 York Road, Suite B-13 Mayer Brown LLP Timonium, Maryland 21093 1999 K St. NW Washington, DC 20006 Oren S. Giskan Catherine Anderson John Edward McCann, Jr. Giskan Solotaroff Anderson and Stewart LLP Daniel R. Lanier 11 Broadway Lynn C. Schlie Suite 2150 Miles and Stockbridge PC New York, New York 10004 100 Light Street Baltimore, Maryland 21202 Attorneys for Plaintiff Tim Bond Attorneys for Defendant Cricket Communications, LLC /s/Martin E. Wolf JA 202 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 206 of 426 Total Pages:(246 of 466) 2 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND (NORTHERN DIVISION) MICHAEL SCOTT, On his own behalf and on behalf of all others similarly situated, Intervenor/Plaintiff, TIM BOND, on his own behalf and on behalf of all Civil Action No. 1:15-cv-923-MJG others similarly situated, Plaintiff, v. CRICKET COMMUNICATIONS, LLC, Defendant. CLASS ACTION COMPLAINT OF INTERVENOR AND DEMAND FOR JURY TRIAL Michael A. Scott ("Intervenor Plaintiff"), on his own behalf and on behalf of two Classes of similarly situated persons, defined below, files this Class Action Complaint of Intervenor and Demand for Jury Trial against Cricket Communications, LLC f/k/a Cricket Communications, Inc. ("Cricket" or "Defendant"). I. INTRODUCTION a. Background 1. This is a class action against Cricket, challenging its sale to Intervenor Plaintiff and other Class members of obsolete mobile phones which fail in their essential purpose – making telephone calls or other mobile communications. 2. Cricket unlawfully sold these mobile phones to Intervenor Plaintiff and other Class members in order to unload inventory it knew was obsolete. JA 1203 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 207 of 426 Total Pages:(247 of 466) 2 3. In doing so, Cricket breached warranties. In particular, in this Complaint, Intervenor Plaintiff asserts breach of warranty claims under the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq. (the "MMWA") 4. Intervenor Plaintiff and the Class members are persons who purchased Cricket mobile phones which are only usable on a network using Code Division Multiple Access ("CDMA") technology – when Cricket knew and intended that these mobile phones were obsolete because Cricket has shut down its CDMA network, and had long planned to do so. 5. Indeed, Cricket planned to shut down its CDMA network, and use only Global Systems for Mobile ("GSM") technology, since at least July 2013, when AT&T agreed to acquire Cricket and shut down Cricket's CDMA network. 6. Intervenor Plaintiff and the Class members' cellphones cannot be transferred from Cricket's CDMA network to Cricket's GSM network. 7. Intervenor Plaintiff and the Class members' cellphones cannot be used on another cellphone service provider's network, because they have been "locked" by Cricket. Cricket's refusal to provide service for those telephones renders the telephones useless and worthless. 8. The mobile telephones Intervenor Plaintiff and the Class members purchased from Cricket are useless and worthless. 9. The mobile telephones Intervenor Plaintiff and the Class members purchased from Cricket cannot be used for the ordinary purpose for which mobile telephones are used – to make telephone calls and other mobile communications. 10. Cricket breached express and implied warranties when it sold mobile telephones to Intervenor Plaintiff and to other Class members which are useless and worthless because Cricket has shut down the technology required for those cellphones to operate, and because JA 2204 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 208 of 426 Total Pages:(248 of 466) 2 Cricket intended to shut down that service at the time it sold the telephones to Intervenor Plaintiff and the Class members. 11. As a result of Cricket's unlawful scheme, Intervenor Plaintiff and members of the Class were damaged. 12. Cricket's systematic sale of obsolete CDMA cellphones to Intervenor Plaintiff and other Class members makes this case particularly suitable for resolution through a class action lawsuit. II. PARTIES 13. Intervenor Plaintiff Michael Scott is a natural person who is a Maryland citizen. 14. Plaintiff Tim Bond is a natural person who is a Maryland citizen. 15. Defendant Cricket is Delaware limited liability company, which maintains its principal place of business in Atlanta, Georgia. III. FACTS APPLICABLE TO ALL CLASS MEMBERS 16. This is an action against Cricket resulting from its uniform and consistent sale of mobile telephones to Intervenor Plaintiff and other Class members which are obsolete, and which Cricket knew were obsolete at the time of sale, due to Cricket's intentional and permanent shut-down of its CDMA network, which is required to operate these telephones. 17. Prior to 2015, the majority of telephones purchased through Cricket, and using Cricket services, operated exclusively on a 3G CDMA – or "Third Generation Code Division Multiple Access" – network. 18. Cricket intended to shut down its CDMA network at least as of July, 2013. 19. Nevertheless, Cricket continued selling CDMA-only handsets on and after July 2013. 20. Not only did Cricket sell CDMA-only handsets knowing that it was in the process JA 3205 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 209 of 426 Total Pages:(249 of 466) 2 of shutting down its CDMA network, but those CDMA handsets were "locked" by Cricket's own design so that they could only be used on a Cricket CDMA network. 21. Cricket's sale of CDMA-only mobile telephone handsets, which were locked so that they could only be used on Cricket's CDMA network, when Cricket was in the process of deliberately shutting down the only network on which those mobile telephones could be used, breached express, written, and implied warranties. 22. As part of its regular business practices, Cricket systematically and regularly sold obsolete CDMA-only mobile telephones to Intervenor Plaintiff and other Class members after July 12, 2013, knowing that these phones were defective because they would not be usable on anything but the CDMA network Cricket was in the process of shutting down. IV. FACTS APPLICABLE TO INTERVENOR PLAINTIFF 23. Cricket's unlawful scheme is illustrated through the circumstance of the Intervenor Plaintiff, Michael Scott. 24. After July, 2013, but before March, 2014, Mr. Scott purchased two Samsung Galaxy S4 CDMA-only mobile telephones from Cricket. 25. Each of the mobile telephones Mr. Scott purchased from Cricket cost hundreds of dollars each. 26. Each of the mobile telephones Mr. Scott purchased from Cricket included an express statement, constituting an express warranty, that the telephone included "Nationwide Coverage" and that "Cricket's network provides unsurpassed nationwide coverage." 27. Unknown to Mr. Scott at the time of sale, but known to Cricket, the cellphones it sold to him were defective at the time of sale. These mobile telephones, at the time of sale, were not fit for the ordinary or particular purpose for which they were sold – making telephone calls and other mobile communications after Cricket's CDMA network was, in fact, shut down in JA 4206 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 210 of 426 Total Pages:(250 of 466) 2 2015. Although the mobile telephones worked temporarily after the sale, their inherent defect was present at the time of sale, and only manifested itself once Cricket did, as it had planned at the time of sale, shut down the only network on which the telephones would work. 28. At the time of sale, Cricket planned and intended to entirely cease providing the service required to operate these CDMA-only telephones, and yet it sold those telephones to Mr. Scott and other Class members and "locked" those telephones so that they would be guaranteed to never work following the shut-down of Cricket's CDMA network. This scheme ensured that Cricket would be able to sell additional phones following the shut down of its CDMA network. 29. Cricket never disclosed to Mr. Scott at the time of sale that it intended to cease providing service for the telephones he was purchasing for hundreds of dollars. 30. Cricket knew that Mr. Scott was purchasing the mobile telephones for the particular purpose of making telephone calls and other mobile communications. 31. Cricket breached the implied warranties of merchantability and fitness for a particular purpose by selling Mr. Scott mobile telephones, when it planned and intended at the time of sale to shut down the service which was required for those phones to make telephone calls or otherwise conduct communications. 32. As a result of Cricket's acts and omissions as set forth in this Complaint, Intervenor Plaintiff and the Class members were led to purchase worthless merchandise, lost the benefit of their bargains, and have sustained other losses and damages. V. VIOLATIONS OF EXPRESS WARRANTY AND IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE 33. Although this Complaint does not assert a non-MMWA cause of action for violation of express warranties and the implied warranties of merchantability or fitness for a particular purpose, Cricket's actions as set forth in this Complaint violate express warranties and JA 5207 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 211 of 426 Total Pages:(251 of 466) 2 the implied warranties of merchantability and fitness for a particular purpose. 34. Cricket's affirmations of fact concerning the mobile telephones, and descriptions of the mobile telephones, which Cricket made to Intervenor Plaintiff and the Class, relating to the mobile telephones and part of the basis of the bargain, created an express warranty that the mobile telephones would operate on a nationwide network providing "unsurpassed coverage." The mobile telephones Cricket sold to Intervenor Plaintiff and the Class did not conform to this description. 35. Under both a consumer's reasonable expectations as well as trade quality standards, a mobile telephone which is "locked" so that only one mobile telephone service company can provide service for the telephone cannot pass without objection in the trade under the contract description and therefore is not merchantable under the law when the only mobile telephone service company which can provide service for that telephone has a present intention and plan to cease providing service. A significant segment of the buying public would object to purchasing a mobile telephone which is "locked" and can be operated only with service from a mobile telephone service company which plans to cease providing service at the time of sale. 36. Cricket is a merchant engaged in the business of selling goods such as the mobile telephones sold to Intervenor Plaintiff and Class Members. 37. At the time of the sales to Intervenor Plaintiff and Class members, Cricket expressly and impliedly warranted to Intervenor Plaintiff and Class members that the mobile telephones they purchased conformed to the contract descriptions and affirmations of fact made to them by Cricket – and that they would operate as mobile telephones. 38. The mobile telephones purchased by Intervenor Plaintiff and Class members failed to conform to the implied warranties made to them for the reasons described above and expressly incorporated herein. Further, the mobile telephones delivered to Intervenor Plaintiff JA 6208 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 212 of 426 Total Pages:(252 of 466) 2 and Class members failed to conform to the contract descriptions and affirmations of fact about the operability of the mobile telephones that constituted part of the basis for the bargains of Intervenor Plaintiff and the Class members. 39. In breach of the implied warranty of merchantability, on the date Intervenor Plaintiff and Class members purchased the mobile telephones, these telephones would not pass without objection in the trade under their contract descriptions and Cricket otherwise breached the implied warranty of merchantability. 40. The mobile telephones sold to Intervenor Plaintiff and other Class members would not and did not pass without objection in the trade under their contract descriptions on the date of sale because Cricket planned and intended to soon cease providing service to those telephones, rendering them inoperable and defective. 41. A Cricket mobile telephone, intended to be used on Cricket's service network, which will soon be intentionally rendered inoperable by Cricket's own design and plan could not pass without objection in the trade under the contract description, is not fit for the ordinary purposes for which such goods are used, and is not fit for the particular purpose for which the mobile telephone was sold – i.e. to be used on a Cricket network. 42. In breach of the implied warranty of merchantability, on the date Intervenor Plaintiff and Class members purchased their mobile telephones, each telephone would not pass without objection in the trade under the contract description, was not fit for the ordinary purposes for which such goods would be used. 43. In breach of the implied warranty of fitness for a particular purpose, at the time of contracting Cricket had reason to know of the particular purpose for which the mobile telephones it sold to Intervenor Plaintiff and Class members was required, i.e. to transmit mobile telephone calls and communications using Cricket's network, Intervenor Plaintiff and Class JA 7209 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 213 of 426 Total Pages:(253 of 466) 2 members relied on Cricket's skill or judgment to select or furnish suitable goods, and the goods furnished by Cricket were not fit for that purpose. 44. As a result, the mobile telephones purchased by Intervenor Plaintiff and Class members failed to conform to the express and implied warranties made to them. 45. Cricket possessed actual knowledge of the breaches of express and implied warranty in its sales of obsolete mobile telephones to Intervenor Plaintiff and the Class members. 46. Cricket intended and instructed that the mobile telephones sold to Intervenor Plaintiff and the Class members be manufactured with the defects described herein. 47. Intervenor Plaintiff contacted Cricket and asked Cricket to cure the defect in his mobile telephone by replacing it or unlocking it. Cricket refused to cure the defect or to replace or unlock the mobile telephone. 48. As a result of Cricket's breaches of warranties, Intervenor Plaintiff and the Class sustained the losses and damages described herein. VI. CLASS ACTION ALLEGATIONS 49. Intervenor Plaintiff brings this action on his own behalf and on behalf of all other similarly situated individuals pursuant to Fed.R.Civ.P. 23, in two Classes – the "Certified Class" and the "Nationwide Class". The Certified Class consists of: All Maryland citizens who, between July 12, 2013 and March 13, 2014, purchased a CDMA mobile telephone from Cricket which was locked for use only on Cricket's CDMA network. 50. The Nationwide Class consists of: All persons within the United States who, between July 12, 2013 and March 13, 2014, purchased a CDMA mobile telephone from Cricket which was locked for use only on Cricket's CDMA network. 51. Excluded from the Classes are those individuals who now are or have ever been JA 8210 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 214 of 426 Total Pages:(254 of 466) 2 Cricket executives and the spouses, parents, siblings and children of all such individuals. 52. The Classes, as defined above, are identifiable. Intervenor Plaintiff is a member of each Class. 53. On information and belief, the Classes are so numerous that joinder of all of the members in each Class is impracticable. 54. There are questions of law and fact that not only are common to the Classes but that predominate over any questions affecting only individual Class members. The common and predominating questions for each Class include, but are not limited to: a. Whether the Cricket CDMA mobile telephones sold to Intervenor Plaintiff and the Class are inoperable; b. Whether Cricket sold Intervenor Plaintiff and Class members mobile telephones which cannot be used to make telephone calls or mobile communications; c. Whether Cricket knew at the time of sale that Intervenor Plaintiff and Class members intended to use the mobile telephones it sold to them to make telephone calls and mobile communications; d. Whether Cricket planned and intended at the time it sold mobile telephones to Intervenor Plaintiff and other Class members that it would shut-down the CDMA network; e. Whether Cricket's CDMA network is required to operate the mobile telephones of Intervenor Plaintiff and other Class members; f. Whether Cricket breached written warranties in its sales of mobile telephones to Intervenor Plaintiff and other Class members; g. Whether Cricket breached the implied warranty of merchantability in its sales JA 9211 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 215 of 426 Total Pages:(255 of 466) 2 of mobile telephones to Intervenor Plaintiff and other Class members; h. Whether Cricket breached the implied warranty of fitness for a particular purpose in its sales of mobile telephones to Intervenor Plaintiff and other Class members; i. Whether Cricket violated the Magnuson-Moss Warranty Act in its transactions with Intervenor Plaintiff and other Class members; j. Whether Cricket is liable for damages sustained by Intervenor Plaintiff and other Class members. 55. The claims of the Intervenor Plaintiff are typical of the claims of the respective members of each Class within the meaning of Fed.R.Civ.P. 23(a)(3), and are based on and arise out of similar facts constituting Cricket's wrongful conduct. 56. The prosecution of separate actions by individual members of either Class would create a risk of establishing incompatible standards of conduct for Cricket within the meaning of Fed.R.Civ.P. 23(b)(1)(A). 57. The common questions of law and fact enumerated above predominate over questions affecting only individual members of the Classes, and a class action is the superior method for fair and efficient adjudication of the controversy within the meaning of Fed.R.Civ.P. 23(b)(3). The likelihood that individual members of the Classes will prosecute separate actions is remote due to the time and expense necessary to conduct such litigation. 58. Intervenor Plaintiff's counsel is experienced in class actions and foresees little difficulty in the management of this case as a class action. VII. CAUSE OF ACTION Violation of the Magnuson-Moss Warranty Act 59. Intervenor Plaintiff re-alleges and incorporates herein by reference the allegations JA10 212 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 216 of 426 Total Pages:(256 of 466) 2 in the foregoing paragraphs as if fully set forth below. 60. Congress enacted the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq. (the "Act") in 1975 in response to widespread complaints from consumers that many warranties were misleading and deceptive and were not being honored. To remedy this problem of deception and failure to honor warranties, the Act imposes civil liability on any "warrantor" for, inter alia, failing to comply with any obligation under a written warranty and/or implied warranty. See 15 U.S.C. § 2310(d)(1). The Act further authorizes a "suit for damages and other legal and equitable relief." Id. The Act authorizes the award of attorneys' fees and expressly authorizes class actions. 15 U.S.C. § 2310(e). 61. Cricket is a "warrantor[s]" within the meaning of Section 2301(5) of the Act. 62. Intervenor Plaintiff and other members of the Classes are "consumers" within the meaning of Section 2301(3) of the Act. 63. Cricket's breaches of the express warranties, the implied warranty of merchantability and implied warranty of fitness for a particular purpose, set forth in Part VI of this Complaint and expressly incorporated herein, violate the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq., including 15 U.S.C. § 2310(d). 64. Cricket knew, at the time of sale, of the defects in the mobile telephones sold to Intervenor Plaintiff and the Class members which breached the express warranties and implied warranties of merchantability and fitness for a particular purpose. 65. As a result of Cricket's violation of the Act, Intervenor Plaintiff and the Classes sustained the losses and damages described herein. WHEREFORE, Intervenor Plaintiff and the Classes pray that the Court: (a) enter judgment against Cricket, and in favor of Intervenor Plaintiff and the Classes, for compensatory damages in an amount deemed appropriate by a jury; (b) award pre-judgment interest and costs JA11 213 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 217 of 426 Total Pages:(257 of 466) 2 for each Class member; (c) enter an order certifying this action as a class action pursuant to Fed.R.Civ.P. 23(b)(1), (2) and/or (3); (d) award reasonable costs and attorneys' fees; and (e) award such other and further relief as the Court deems just and proper. Respectfully submitted, /s/Benjamin H. Carney Benjamin H. Carney (Bar No. 27984) BCarney@GWCfirm.com Martin E. Wolf (Bar No. 09425) MWolf@GWCfirm.com GORDON, WOLF & CARNEY, CHTD. 100 W. Pennsylvania Ave., Suite 100 Towson, Maryland 21204 410-825-2300 410-825-0066 fax Attorneys for Intervenor Plaintiff and the Class JURY DEMAND Intervenor Plaintiff hereby demands a trial by jury of all issues so triable. /s/Benjamin H. Carney Benjamin H. Carney JA12 214 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 218 of 426 Total Pages:(258 of 466) IN THE UNITED STATES DISTRICT FOR THE DISTRICT OF MARYLAND (Baltimore Division) TIM BOND on his own behalf and on behalf of all others similarly situated, Plaintiffs, v. CRICKET COMMUNICATIONS, LLC Case No. 1:15-cv-923-MJG Defendant. DECLARATION OF CORY L. ZAJDEL CORY L. ZAJDEL, being duly sworn according to law, deposes and says: 1. I am the managing member of Z Law, LLC and counsel for Plaintiff Tim Bond in the above captioned matter. I submit this Declaration for the limited purpose of putting before the Court a document relevant to the pending Motion to Intervene (ECF #42). 2. Attached hereto is a true and correct copy of a letter I received by email from Judge Benson Everett Legg (Ret.) on September 5, 2017. 3. Attached hereto is a true and correct copy of a Declaration of Martin E. Wolf filed with this Court on July 15, 2011 testifying to the adequacy of Cory L. Zajdel as class counsel in complex commercial litigation in a case captioned Stillmock v. Weis Markets, Inc., Case No. 1:07-cv-01342-MJG (ECF #127-2). JA 215 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 219 of 426 Total Pages:(259 of 466) I DECLARE UNDER THE PENALTY OF PERJURY THAT THE CONTENTS OF THE FOREGOING ARE TRUE TO THE BEST OF MY KNOWLEDGE, INFORMATION AND BELIEF. Dated: September 7, 2017 By:_________/s/__28191_________________ Cory L. Zajdel, Esq. (Fed. Bar No. 28191) Z Law, LLC 2345 York Road, Suite B-13 Timonium, Maryland 21093 (443) 213-1977 clz@zlawmaryland.com Attorney for Plaintiffs 2 JA 216 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 220 of 426 Total Pages:(260 of 466) JA 217 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 221 of 426 Total Pages:(261 of 466) Case Case1:07-cv-01342-MJG 1:15-cv-00923-MJG Document Document127-2 43-3 Filed Filed09/07/17 07/15/11 Page Page11of of12 12 JA 218 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 222 of 426 Total Pages:(262 of 466) Case Case1:07-cv-01342-MJG 1:15-cv-00923-MJG Document Document127-2 43-3 Filed Filed09/07/17 07/15/11 Page Page22of of12 12 JA 219 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 223 of 426 Total Pages:(263 of 466) Case Case1:07-cv-01342-MJG 1:15-cv-00923-MJG Document Document127-2 43-3 Filed Filed09/07/17 07/15/11 Page Page33of of12 12 JA 220 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 224 of 426 Total Pages:(264 of 466) Case Case1:07-cv-01342-MJG 1:15-cv-00923-MJG Document Document127-2 43-3 Filed Filed09/07/17 07/15/11 Page Page44of of12 12 JA 221 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 225 of 426 Total Pages:(265 of 466) Case Case1:07-cv-01342-MJG 1:15-cv-00923-MJG Document Document127-2 43-3 Filed Filed09/07/17 07/15/11 Page Page55of of12 12 JA 222 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 226 of 426 Total Pages:(266 of 466) Case Case1:07-cv-01342-MJG 1:15-cv-00923-MJG Document Document127-2 43-3 Filed Filed09/07/17 07/15/11 Page Page66of of12 12 JA 223 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 227 of 426 Total Pages:(267 of 466) Case Case1:07-cv-01342-MJG 1:15-cv-00923-MJG Document Document127-2 43-3 Filed Filed09/07/17 07/15/11 Page Page77of of12 12 JA 224 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 228 of 426 Total Pages:(268 of 466) Case Case1:07-cv-01342-MJG 1:15-cv-00923-MJG Document Document127-2 43-3 Filed Filed09/07/17 07/15/11 Page Page88of of12 12 JA 225 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 229 of 426 Total Pages:(269 of 466) Case Case1:07-cv-01342-MJG 1:15-cv-00923-MJG Document Document127-2 43-3 Filed Filed09/07/17 07/15/11 Page Page99of of12 12 JA 226 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 230 of 426 Total Pages:(270 of 466) Case Case1:07-cv-01342-MJG 1:15-cv-00923-MJG Document Document127-2 43-3 Filed Filed09/07/17 07/15/11 Page Page1010of of12 12 JA 227 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 231 of 426 Total Pages:(271 of 466) Case Case1:07-cv-01342-MJG 1:15-cv-00923-MJG Document Document127-2 43-3 Filed Filed09/07/17 07/15/11 Page Page1111of of12 12 JA 228 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 232 of 426 Total Pages:(272 of 466) Case Case1:07-cv-01342-MJG 1:15-cv-00923-MJG Document Document127-2 43-3 Filed Filed09/07/17 07/15/11 Page Page1212of of12 12 JA 229 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 233 of 426 Total Pages:(273 of 466) 6 EXHIBIT A JA 230 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 234 of 426 Total Pages:(274 of 466) 6 1 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge MICHAEL A. SCOTT, * IN THE * Plaintiff, * CIRCUIT COURT * V * FOR * CRICKET COMMUNICATIONS, LLC, * BALTIMORE CITY * Defendant. * 24-C-15-004918 * * * * * * * * * * * * * TRANSCRIPT OF OFFICIAL PROCEEDINGS (Plaintiff's Motion for Certification of Class) -- -- -- -- -- BEFORE: THE HONORABLE ALTHEA M. HANDY, Judge -- -- -- –- -- HEARING DATE: May 23, 2017 -- -- -- -- -- APPEARANCES: For the Plaintiff: Benjamin H. Carney, Esquire Martin E. Wolf, Esquire For the Defendant: Mark W. Ryan, Esquire Daniel R. Lanier, Esquire Transcriptionist: Kelly A. Taylor AAERT Cert. No.: CET-745 Transcription Service: ACCUSCRIBES TRANSCRIPTION SERVICE 2007 W. Rogers Avenue Baltimore, Maryland 21209 Proceedings recorded by digital media with video, transcript produced by transcription service. ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 231 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 235 of 426 Total Pages:(275 of 466) 6 1 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge 1 TABLE OF CONTENTS 2 PAGE 3 Case called 3 4 Plaintiff's Oral Arguments 3, 17, 31, 37, 42, 48 5 Defendant's Oral Arguments 9, 28, 32, 44, 50 6 Court to issue written decision 53 7 Transcriber's Certificate 93 8 9 EXHIBITS: 10 PLAINTIFF'S EXHIBITS: 11 MARKED ADMITTED 12 None offered. - - 13 14 DEFENDANT'S EXHIBITS: 15 None offered. 16 17 18 19 20 21 22 23 24 25 ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 232 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 236 of 426 Total Pages:(276 of 466) 6 2 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge 1 PROCEEDINGS 2 (On the record - 10:01:38 a.m.) 3 THE COURT: You can call the next case. 4 THE CLERK: Thank you. Calling in the matter of 5 Michael A. Scott versus Cricket Communications, LLC. Case 6 number C-15-004918. Counsel, please step forward and 7 identify yourself for the record. Thank you. 8 MR. CARNEY: Good morning, Your Honor. Benjamin 9 Carney on behalf of the Plaintiff. And with me here this 10 morning is Martin Wolf. 11 THE COURT: Yes, good morning. 12 MR. WOLF: Good morning, Your Honor. 13 MR. RYAN: Good morning, Your Honor. Mark Ryan 14 here on behalf of the Defendant. And with me is Dan 15 Lanier. 16 MR. LANIER: Good morning, Your Honor. 17 THE COURT: Okay. Good morning and thank you. 18 So we're here on Plaintiff's Motion for Certification of 19 the Class. 20 PLAINTIFF'S ORAL ARGUMENT 21 MR. CARNEY: Yes, Your Honor. Your Honor, this 22 case is a proposed class action, as the Court's aware, 23 about Cricket's sale of cellular phones to the Plaintiff 24 and to other members of the proposed class, at the same 25 time that Cricket was allegedly in the process of shutting ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 233 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 237 of 426 Total Pages:(277 of 466) 6 3 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge 1 down the only network on which those phones, every single 2 one of those phones, would work. That network was 3 required to make the phones work and Cricket was in the 4 process of shutting it down at the time that it sold the 5 phones to the Plaintiff and to every single member of the 6 proposed class. 7 A class action, in this case, is the only chance 8 that putative class members will have to get any kind of 9 relief from these alleged acts. Because these are phones, 10 it's a relatively small transaction when compared with the 11 costs of pursuing such a case in court or even in 12 arbitration. The profits from this alleged scheme are 13 huge for a company like Cricket. But the cost of pursuing 14 Cricket in an individual case is prohibitively high. So a 15 class action is the only realistic practical possibility 16 that a class member is going to be able to have a chance 17 of getting relief against Cricket. And we'll have a 18 chance to assert their claims against Cricket. 19 So we're here today on Plaintiff's Motion for 20 Class Certification under Maryland 2-231. This case is 21 well suited for class treatment, it concerns the same 22 phones that were sold to the Plaintiff and every member of 23 the class. These were CDMA-only phones that were locked 24 to Cricket's network, the one that it was in the process 25 of shutting down. The case concerns the same actions on ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 234 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 238 of 426 Total Pages:(278 of 466) 6 4 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge 1 the part of Cricket with respect to all class members. It 2 was the same action, it wasn't a multiplicity of 3 individual actions toward class members that caused the 4 alleged harm in this case. It was the shutting down of 5 Cricket's network that rendered the phones unusable. And 6 Cricket was in the process of doing that when it sold the 7 phones to every class member. 8 The case concerns the same breach of warranty, 9 the same alleged breach of warranty, for every class 10 member. The alleged breach of warranty for the Plaintiff 11 is the same as the alleged breach of warranty for every 12 single other person in the proposed class. And in fact, 13 Cricket doesn't dispute those things, those core issues at 14 the center of this case that make it well suited for class 15 certification. Cricket doesn't dispute that there are 16 persons that fit the class definition that are some 17 numerous that joinder is impracticable under 2-231(a)(1). 18 Cricket doesn't contest that each of those 19 numerous persons shares the common characteristic of being 20 a Maryland citizen, it couldn't. The class is by 21 definition only Maryland citizens. Cricket doesn't 22 contest that each of the persons in the class purchased a 23 CDMA-only mobile phone. This is a case issue that's 24 common to the class. Cricket doesn't contest that each 25 person in the class had a phone that was locked to ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 235 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 239 of 426 Total Pages:(279 of 466) 6 5 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge 1 Cricket's network. And that those phones would not work 2 after Cricket shut the network down. Again, which it was 3 in the process of doing when it sold every single one of 4 these phones. And in fact, Cricket asserts that routine 5 business practices govern the sales of these phones. That 6 they all had the same types of boxes, they all had the 7 same verbiage that accompanied the phones. That they all 8 were accompanied by the same Cricket terms. 9 But even given the fact that all of these claims 10 are the same, that they all allege the same core facts, 11 that they all allege the same core legal theory, if 12 there's no class treatment, there's no relief. There's no 13 chance of relief for the class members. And that would be 14 contrary to the only purpose of the only claim in this 15 under the Magnuson-Moss Warranty Act. That act was 16 enacted by congress in order to facilitate cases like 17 this. It expressly contemplated class actions for breach 18 of warranty claims, just like the ones asserted in this 19 case. And the reason that it expressly contemplated class 20 actions, was because they would "facilitate relief which 21 would otherwise not be available as a practical matter for 22 individual consumers." And that's exactly the situation 23 that we have here. 24 As a practical matter, without a class action, 25 there's no way that anybody has the chance to assert these ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 236 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 240 of 426 Total Pages:(280 of 466) 6 6 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge 1 claims against Cricket. Now, Cricket says that it sold 2 more than 45,000 of these phones, locked to its network, 3 that it was in the process of shutting down, to people, to 4 customers, who listed addresses in Maryland. It's not the 5 same as the class members, because the class members are 6 limited to people who are Maryland citizens. But there's 7 no dispute that the class is so numerous that joinder is 8 impracticable. 9 It would be infeasible for class members to get 10 relief without a class action. And you needn't look no 11 further than the circumstances of this case. We've 12 litigated for coming on two years now and we're still at 13 the preliminary stages of litigation. Cricket has filed 14 multiple motions to force this case into arbitration. And 15 that's what would happen with every single person that 16 Cricket -- that has tried to assert a claim against 17 Cricket. Cricket has filed 30, 40-age motions, to get out 18 of court and to get into arbitration. We've gotten over 19 that hump in this litigation, but that's after a 20 significant period of time, significant investment of 21 lawyer's effort and expense. 22 And any doubts about the propriety of class 23 certification, as the case law shows, should be resolved 24 in favor of class certification. So here, where the core 25 facts are all the same, the core claims are all the same, ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 237 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 241 of 426 Total Pages:(281 of 466) 6 7 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge 1 the legal theories are all the same, and a class action is 2 the only way that class members have the chance to get 3 relief. Any doubts about class certification certainly 4 should be resolved in favor of certification of the class. 5 And there's several cases that are cited in the briefs 6 that stand for that proposition. And of course, class 7 certification is conditional. It can always be revisited 8 if in the future it looks like there's a reason that it 9 should be. And so that's just an overview of why we 10 believe that this case is appropriate for class 11 certification, Your Honor. 12 I'm prepared to go through the general class 13 certification requirements under Rule 2-231. There are a 14 couple of arguments that were raised by Cricket that took 15 up a substantial portion of their brief about Mr. Scott's 16 adequacy. If the Court has any particular questions about 17 that, I would like to defer those questions to my 18 colleague, Mr. Wolf, who's prepared to answer those 19 questions in particular. But I'm prepared to go through 20 the other factors if it please the Court. 21 THE COURT: Okay. And I did read your motion, 22 so. 23 MR. CARNEY: Well, I don't want to belabor the 24 point then, Your Honor. We do believe that just the class 25 certification requirements are satisfied for the reasons ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 238 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 242 of 426 Total Pages:(282 of 466) 6 8 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge 1 that I discussed. The common questions exist for the 2 reasons that I discussed. And if Your Honor has any 3 particular questions, I'd be happy to answer those now. I 4 know that another issue that Cricket raised was the 5 potential ascertain ability of a citizens-only class. I 6 believe we laid out in the briefs why that argument has 7 been directly rejected by U.S. Courts of Appeals, numerous 8 courts, the Fourth Circuit has recommended that cases be 9 limited to classes of citizens of a particular state. 10 THE COURT: Excuse me one second, I'm sorry. 11 (The Court briefly handles an unrelated matter) 12 THE COURT: All right, I'm sorry. 13 MR. CARNEY: No problem, Your Honor. And I would 14 just touch on the other issue, unless Your Honor has 15 questions about the ascertain ability argument that they 16 made at this point. I can respond to anything that they - 17 - 18 THE COURT: All right. We'll here from them on 19 those matters and then you can respond. 20 MR. CARNEY: Thank you, Your Honor. 21 DEFENDANT'S ORAL ARGUMENT 22 MR. RYAN: Good morning, Your Honor. 23 THE COURT: Yes, good morning. 24 MR. RYAN: So Your Honor, a couple of points, 25 just by way of background. The notion that we were in the ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 239 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 243 of 426 Total Pages:(283 of 466) 6 9 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge 1 process of shutting down the network when these phones 2 were sold, it doesn't really bear on today's exercise, 3 Your Honor. But just for the record, can we say, as 4 you'll recall, when we were here before, we explained that 5 the Federal Communications Commission had to approve the 6 transaction. So the class period is entirely consists of 7 people who purchased phones before the FCC had actually 8 approved the transaction. So we weren't shutting down the 9 network until the FCC had approved our ability to do the 10 deal. So that's just a background fact. 11 Now, another fact, Your Honor, and you can look 12 high and low in their briefs for this and you won't see 13 it. When they say there's no other chance of relief, to 14 the extent that that's an issue. They neglect to point 15 out that there's another class action pending in Federal 16 Court involving these same events. That's the Bond case. 17 The Bond case is a nationwide class action. The Bond case 18 includes a Magnuson-Moss Warranty Act claim. And the Bond 19 case will, would, encompass every class member that they 20 purport to represent. Now, we're contesting Bond, we're 21 defending ourselves. Just as we're defending ourselves in 22 this case. And as we're entitled to do. But I just want 23 it clear, there is another class action that's pending 24 before Judge Garbis here in Federal District Court in 25 Baltimore. So to say it's Mr. Scott or nothing is simply ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 240 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 244 of 426 Total Pages:(284 of 466) 6 10 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge 1 not accurate. 2 I'd also say, we'll now turn to what the initial 3 issue that brings us here today, Mr. Scott's character. 4 What they're saying is, although they have a class of 5 45,000 people or more that they want to represent, he's 6 the only one they can find. He's the only one that they 7 could find to represent the class. So he's the only class 8 member before the Court. Now, as to Mr. Scott, here's the 9 plain. In asking the Court to appoint Mr. Scott as class 10 representative, they are saying to the Court, he is a 11 appropriate fiduciary for 47,000 citizens of the State of 12 Maryland. Because it's a fiduciary capacity in which the 13 class representative acts, the class representative is 14 responsible for the litigation. 15 Now, essentially, to sum it up, their position 16 is that when it comes to appointing a class rep, approving 17 a class rep, that the Court should not take into account 18 character. The character, integrity, reliability, when 19 the Court makes its decision, those matters don't count. 20 Now, they can look high and low for a case in which a 21 court said character doesn't count. Or find a case in 22 which an individual with the criminal history that Mr. 23 Scott has that extended over decades, that includes 16 24 convictions. That includes violations of court orders. 25 That includes theft. This it not a person, Your Honor, we ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 241 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 245 of 426 Total Pages:(285 of 466) 6 11 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge 1 submit, that this Court wants to say has the necessary 2 character, the necessary integrity, and the necessary 3 background to serve in that capacity on behalf of 47,000 4 citizens of the State of Maryland. 5 They're asking this Court to break new ground 6 and to be, we believe, the only Court that's only said 7 character simply is not taken into account. A long 8 criminal record is simply not taken into account. 9 Integrity is simply not taken into account. That's not 10 what we say when we look to identify whether particular 11 people are adequate fiduciaries. It's just -- it's just 12 unheard of, Your Honor, in the system. Now, they say; 13 well, the real issue is what's proper cross examination of 14 Mr. Scott at trial. What's proper to cross examine him 15 about and what's not. That's a separate issue. That goes 16 to a separate part of adequacy. Is Mr. Scott, when he 17 takes the stand in this case, is he someone who's subject 18 to such cross examination about his criminal conduct that 19 it's going to reflect poorly on the class, and therefore 20 compromise their ability to recover. That's the issue on 21 cross examination at trial. 22 Now -- and that's different. That's an 23 evidentiary ruling, that's a ruling the Court might make 24 at trial, that's something we can talk about today. But 25 not this threshold issue of whether in the first instance ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 242 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 246 of 426 Total Pages:(286 of 466) 6 12 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge 1 we should just close our eyes and put on blinders as to 2 Mr. Scott's history of criminal conduct. Now, Your Honor, 3 I also want to point out, when we were here last time, 4 Your Honor will recall we had a debate about whether we 5 would be allowed to take Mr. Scott's deposition. And the 6 Court said; yes, well, you might have done it sooner, but 7 I'm going to let you take his deposition, and we arranged 8 a deposition. Now, at the deposition, counsel instructed 9 Mr. Scott not to answer any questions about his criminal 10 history. Instructed him not to answer. 11 So when we asked; have you been convicted of any 12 crimes of dishonesty, involving dishonesty, in the State 13 of Maryland. Dishonesty, which they concede in their 14 papers is a relevant inquiry here, he was instructed not 15 to answer. So not only are they offering Mr. Scott with 16 his -- what we know about his criminal history, they're 17 offering Mr. Scott on an incomplete record, because they 18 instructed him not to answer questions in a deposition 19 that this Court ordered. And there was no basis for those 20 instructions. And we have subsequently moved to compel. 21 So we didn't just sit on our rights here, Your Honor. 22 THE COURT: You should have called me. 23 MR. RYAN: Your Honor, in all candor, I thought 24 about it. You know, that's a fair point. We were trying 25 to finish the deposition. We were trying, and I was very ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 243 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 247 of 426 Total Pages:(287 of 466) 6 13 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge 1 clear, and the transcript reflects this; look, we just 2 want the information. We're not trying to embarrass Mr. 3 Scott unnecessarily, we saved it for the end of the 4 deposition. I agreed to put any of his answers under 5 seal. We didn't run to the newspapers with this. But the 6 fact of the matter is, they are preventing us from using 7 the full record. And Your Honor, when you ask yourself; 8 well, what evidence do I have that Mr. Scott, in addition 9 to his lengthy criminal record, would not be a suitable 10 class rep. Look at their initial papers for Motion for 11 Class Certification. Not a whiff, not a mention, not a 12 hint, that Mr. Scott has any criminal record whatsoever. 13 They don't even bring it to the Court's attention in their 14 opening papers, this criminal record. 15 Then we come to his deposition prepared to show 16 exhibits that we found online, we did a search. His name 17 came up, registered sex offender. His name came up. And 18 then we did a further search. So we were able to get 19 public documents that laid out his criminal history. And 20 we had questions about it. Because these are pretty 21 summary records, we have questions about those. But I'll 22 point out, Your Honor, they have never said, they have 23 never said to this Court, this all there is. They haven't 24 put in an affidavit or a declaration that says there's no 25 other criminal conduct. They haven't, to our knowledge, ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 244 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 248 of 426 Total Pages:(288 of 466) 6 14 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge 1 done any search whatsoever to confirm counsel for 2 themselves, the nature and extent of Mr. Scott's criminal 3 record. And at the deposition, when they instructed him 4 not to answer, they said; well, these convictions are too 5 old, they don't involve dishonesty, and wouldn't let us 6 ask questions about whether they did. But they don't 7 involve dishonesty. 8 Now, in their papers here, even they concede 9 that at least two of them, at least two of the convictions 10 for theft, are the proper subject for this Court's 11 consideration and for cross examination at trial. So they 12 want to have it both ways. They want to say there's 13 nothing here, there's nothing here about Mr. Scott. 14 Nothing in their opening papers. There's nothing more 15 than a bunch of old convictions, which is not accurate. 16 And counsel, and Cricket, take our word for it, because 17 we're not going to let him answer questions in deposition. 18 And that's just not the process that we follow. And it's 19 not fair -- it's not fair, it's not reasonable, to ask the 20 Court to make a decision with respect to Mr. Scott. Now, 21 I think there's sufficient undisputed evidence before the 22 Court about Mr. Scott's criminal history that would 23 clearly justify this Court say, uh-uh, Mr. Scott's not 24 going to be appointed as fiduciary. People can be 25 protected in the Bond litigation or find someone else. ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 245 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 249 of 426 Total Pages:(289 of 466) 6 15 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge 1 But at a minimum, what in hiding the ball, in 2 resisting full disclosure of this important subject 3 matter, I think that's another reason for this Court to 4 say sorry, you had your chance to come clean on what 5 exactly Mr. Scott's record here. You interfered with that 6 process and you're done. But how can they possibly stand 7 up and say; oh, they don't get to ask Mr. Scott, if these 8 records are all of his criminal convictions, which of them 9 involved dishonest conduct. And Your Honor, there's a 10 rule of evidence, of course, in Maryland. I think it's 11 608(b) or 609(b). We're allowed to ask him when he takes 12 the stand, have you been involved in prior conduct, even 13 if it didn't result in a conviction, prior misconduct that 14 may reflect on your honesty. That's the rule. Now, the 15 Court -- 16 THE COURT: Well, I think we have to have a 17 hearing first. 18 MR. RYAN: Pardon me? 19 THE COURT: I think we have to have a hearing. 20 You can't just ask that question. 21 MR. RYAN: Yes. You have to have a hearing, Your 22 Honor, if there's any doubt about whether there's a basis 23 for the question. You're right, absolutely. But here 24 we've got a basis for the question. But I think our point 25 is, since it's clearly allowed under the Rules of ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 246 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 250 of 426 Total Pages:(290 of 466) 6 16 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge 1 Evidence, if the Court permits it, how can they block us 2 in a deposition from asking those questions. How can they 3 prevent us from exploring the nature of the conduct, 4 rather than just have the bare papers with the statutory 5 recitation of the offense without allowing us to see, 6 well, what was really going on here. Because absent that, 7 they're saying approve this guy, approve this guy as a 8 fiduciary, which I think looks terrible. It doesn't 9 reflect well on the system, that Mr. Scott would be 10 appointed a fiduciary. And approve him, Your Honor, 11 without knowing the whole story. That is unprecedented 12 and it shouldn't be allowed. 13 Now, we have other issues to talk about on class 14 certification, which I'm happy to turn to, Your Honor. Or 15 if the Court wants to stop here and hear from them, it's 16 up to the Court. I can switch subjects now, (inaudible 17 10:23:11 a.m.). 18 THE COURT: Okay. Well, do you want to address 19 this issue before we move on? 20 PLAINTIFF'S FURTHER ARGUMENT 21 MR. WOLF: I can address it, Your Honor. 22 THE COURT: Okay. 23 MR. WOLF: So we heard -- what we heard was sort 24 of a mash up of a number of things lumped together as if 25 it were one cohesive incident or circumstance. So let me ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 247 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 251 of 426 Total Pages:(291 of 466) 6 17 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge 1 start at the beginning. And we have set out in our reply 2 on the class certification all of this information. But 3 the first thing, obviously class certification is a 4 discretionary call for you. It's within your discretion 5 to certify a class or not. Including the finding of 6 adequacy of the named plaintiff in the case. Now, the 7 Courts that have addressed that have said that you should 8 always look for a red flag when the defendant is pushing 9 very hard that this person should not be determined 10 adequate. 11 The Seventh Circuit referred to is as having the 12 fox watch the chicken house. They are worried about the 13 class members not being represented by this person 14 adequately and so you should take it with a grain of salt. 15 Do they want an adequate representative or not 16 representative, which is what we have here. In Maryland, 17 the leading case on class certification is Philip Morris 18 versus Angeletti, it was decided in 2001 by the Court of 19 Appeals. And it talks about at length about certifying 20 the class and all the elements of class certification. 21 With regard to adequacy, it followed what is the 22 very traditional notion of what it means to be adequate. 23 You have to determine if both the representative plaintiff 24 is adequate and whether the counsel that are representing 25 the class are adequate. There's no challenge to the ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 248 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 252 of 426 Total Pages:(292 of 466) 6 18 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge 1 adequacy of counsel, at least so far, I think. And with 2 regard to whether the named plaintiff is adequate, 3 Angeletti says that the Court must determine whether that 4 person presents a conflict of interest with members of the 5 class. Is his claim so different, is he subject to 6 defenses that would make him different from the class. So 7 that he would raise arguments that most class members 8 would not have to face; is there a conflict. That's what 9 Angeletti says. And on that turn, I believe their 10 response on class certification was his claims were not in 11 conflict with the class, Mr. Scott is not. 12 However, they want to go further and just 13 generally oppose him because of his credibility, because 14 he has been convicted of crimes. And to just generally 15 attack his character. And we have cited to the Court, 16 first of all, it's not clear whether under Angeletti that 17 that's an appropriate test for a class representative. 18 Angeletti does say that you can look to the decision under 19 Federal Rule 23, because the rules are similar. And so 20 interpretations under 23 can be used in Maryland. And 21 that was in 2000. Let me say, Rule 23 continues to 22 change. It's been amended three times since 2000, 23 significantly in two different occasions, on 2003 and 24 2007. So that Maryland has a completely different rule 25 with regard to when a class action motion is decided and ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 249 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 253 of 426 Total Pages:(293 of 466) 6 19 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge 1 what goes into it from a factual perspective. We no 2 longer are like the Federal courts in that sense. And so 3 the question is, has Angeletti and the ruling that 4 adequacy is determined by conflicts of the class, has that 5 been changed so that the Federal laws would not -- under 6 Federal Rule 23, you would look at more. And with 7 Angeletti, would the Court of Appeals say; okay, we can go 8 along with whatever Federal courts have done in the last 9 17 years or is it simply what Angeletti says. 10 So that's a question, Your Honor, that I don't 11 think has been decided by the Court of Appeals. I don't 12 know how close Rule 23 is to Rule 2-231 anymore. However, 13 the Federal cases that Cricket is relying on, what I call 14 the Federal overlay to this analysis, are all about 15 whether you can challenge the adequacy of a class 16 representative because of his character in general, 17 general character. And that's an important 18 characteristic. Can you say, look, he's got 16 19 convictions over 30 years. That's not a person who should 20 represent the class. He just is a bad guy. And the 21 Federal courts who have been face with that, despite 22 Cricket saying that every court does it, has said we do 23 not do it. And we've cited to you the appropriate section 24 in Newberg, which is the leading treatise on the class 25 actions, that says courts do not consider prior bad acts, ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 250 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 254 of 426 Total Pages:(294 of 466) 6 20 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge 1 even illegal prior acts that are unrelated to this case. 2 That's what it says. 3 And all of the cases that were cited, both in 4 our brief and even in Cricket's brief, although the cases 5 cited by Cricket used broad language to talk about the 6 fiduciary obligation and persons of good character, they 7 only found the person inadequate when whatever this 8 character flaw was that they were alleging in those 9 particular cases, related to something in the case. In 10 fact, one of the cases cited by them, I have to -- one of 11 the cases cited by Cricket, because it had a nice little 12 half a sentence in there about how broadly you have to 13 look at the character of a person, they actually -- they 14 actually found the person adequate, despite the prior 15 convictions that that -- the prior bad acts that were 16 being alleged in the case. 17 So the bottom line of all the cases, whether we 18 cited them, whether Cricket cited them. The bottom line 19 is that when Federal courts look to prior bad acts to 20 determine the character of a proposed representative of a 21 class, they only take it into consideration when they have 22 an impact on that particular case. So for instance, if in 23 one of the cases it was a securities fraud case, and the 24 person had been convicted of securities fraud, he was now 25 the plaintiff asserting a class -- claims for securities ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 251 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 255 of 426 Total Pages:(295 of 466) 6 21 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge 1 fraud. And they said that impacts on your credibility. 2 You'd be cross examined on that, it would shine poorly on 3 the class members who wouldn't have to face that if they 4 hadn't been convicted of it. And that's the tie in. 5 That's the tie in. Is there's something about the prior 6 acts that will reflect so poorly on the class 7 representative that the class would be injured by it. 8 That's why it's important to determine whether any of 9 these things can be used to cross examine Mr. Scott at 10 trial should he testify about his credibility. And 11 Maryland's Rule 5-609 determines when can you use criminal 12 convictions to impeach a witness' credibility at trial. 13 And it has a test that's set out, and it has a time limit, 14 and it has the nature of the crime that has to be 15 involved. And we went through that analysis in our brief. 16 Let me take a sidebar here. Cricket says even 17 at the deposition I wouldn't allow him to answer questions 18 that they asked. And even now we admit that two of those 19 would fall within the test. They didn't ask anything 20 about those at the deposition. None of the deposition 21 exhibits involved those particular crimes. That's all new 22 stuff that they've brought in for class certification. So 23 we filed a response on their Motion to Compel, Your Honor, 24 yesterday. And I think it addresses all of their issues 25 pretty well. The bottom line for purposes of class ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 252 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 256 of 426 Total Pages:(296 of 466) 6 22 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge 1 certification, are that all of these criminal convictions, 2 only two that they alleged now, only two of them would 3 fall within the test that they were infamous crimes within 4 a 15 year period of the day you're testifying. And the 5 Court would still have to balance the probative value of 6 those two convictions against the unfair prejudice. 7 Which Cricket says, the class is going to be 8 prejudiced by this guy because of these convictions. So 9 that's a given. So you have to look at what's Mr. Scott's 10 testimony about, Your Honor. Mr. Carney laid out the 11 important facts of the case, which really aren't in 12 dispute. Most of it involves Cricket's behavior. So Mr. 13 Scott's not testifying about anything that's 14 controversial. He bought a phone. Everybody understands 15 he bought a phone. And he bought it within the time 16 period when Cricket had already announced the plan that 17 they were going to shut down the network. And he 18 testified that when the network was shut down, Cricket 19 wouldn't -- they wouldn't fix the malfunction in the 20 phone, they wouldn't fix it. They wouldn't give him a new 21 phone, they wouldn't give him his money back, they 22 wouldn't unlock the phone so he could use it. 23 That's all he has to testify about. Everything 24 else is Cricket's behavior. And so what would be the 25 probative value of saying Mr. Scott was convicted of petty ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 253 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 257 of 426 Total Pages:(297 of 466) 6 23 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge 1 theft twice. You should know that. Because what he's 2 saying isn't controversial, they don't even dispute it. 3 They don't dispute that he bought the phone. They don't 4 dispute he bought it in the time period. They don't 5 dispute that they never resolved it, they never fixed the 6 phone, they never replaced the phone. So none of it is in 7 dispute. So what's the probative value of saying that 8 he's been convicted of two petty thefts? 9 So I don't think that it comes in at all. And 10 therefore whatever the bad acts were, none of it effects 11 this case. You know, a class representative has a 12 fiduciary role to the class. But it's in a limited 13 capacity. You know, he's not standing in their shoes as 14 their best friend. You know, he's standing in their shoes 15 as a person who bought a phone just like them. And as to 16 the assertion that no court has ever done this, no court 17 has allowed someone with criminal convictions to be a 18 class rep, that just simply isn't true. And we've cited 19 any number of cases in our brief. The one, I think delved 20 mostly, is Kasally v. Kelly (phonet). And I say that, 21 because that was a person who had convictions, who had 22 convictions in their record, drug use in their record, had 23 all sorts of prior bad acts. And what the judge said is 24 that that doesn't mean anything in this case, because what 25 they've done is, they have gone to great efforts to ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 254 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 258 of 426 Total Pages:(298 of 466) 6 24 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge 1 represent this class. They sought out counsel, and they 2 prepared themselves, and they showed up for depositions. 3 And even though they knew their past is going to be 4 dragged out, and they're going to be, you know, beat over 5 the head with prior convictions, and drug use, and 6 sicknesses, and depression, and all that stuff, they still 7 showed up and they still want to pursue it to the end. 8 And that's exactly what Mr. Scott, that's his position. 9 He knows that people are going to ask him about 10 his criminal record. He knows it exists out there. And 11 he knows they're going to drag it up again; tell us about 12 this, tell us about that. It doesn't have anything to do 13 with the issues in this case. It doesn't have anything to 14 do with the class members' interest in this case. It 15 doesn't have anything to do with his ability to stand in 16 their shoes as a person who bought the phone at the same 17 time, under the same circumstances, who was not given the 18 relief that they were due under their warranty. He is 19 perfectly in line with the class. He has no conflicts 20 with them. And he's demonstrated so far in this case that 21 he's willing to put in time, and effort, and everything 22 else. And even suffer embarrassment and humiliation about 23 his past in order to vindicate their rights. That's what 24 the courts look to. 25 That's what the Southern District of New York ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 255 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 259 of 426 Total Pages:(299 of 466) 6 25 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge 1 looked at in the Kasally case. And what Judge Sheindlin 2 said is appropriated. Your attacks on these two people, 3 you know, are self-serving. And the other line was that 4 they were self-serving and disrespectful. Sorry, I 5 couldn't find it in my notes. Disrespectful and self- 6 serving. And that's what the Court say you have to guard 7 against. When the plaintiff -- when the defendant is so 8 interested in digging up dirt, whether it's relevant or 9 not, and throwing it at the class representative, what's 10 their intention. And yes, Your Honor, there is another 11 class action pending. I don't know if it would be 12 successful or not. But I do know this. Without a class 13 action, what Mr. Carney said was without a class action, 14 not without another case. But without a class action, 15 these Maryland citizens are not going to be able to 16 recover. They're not going to be able to stand up against 17 a powerful D.C. firm and litigate their case for a couple 18 hundred dollars. They just can't do it. And -- 19 THE COURT: Can you hold on for one second? 20 MR. WOLF: Yes. 21 THE COURT: I'm sorry. 22 (The Court briefly handles an unrelated matter) 23 THE COURT: All right. I'm sorry. 24 MR. WOLF: So, Your Honor, we've come to the 25 points and it's your discretion. Are unrelated criminal ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 256 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 260 of 426 Total Pages:(300 of 466) 6 26 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge 1 convictions, are they something that would disqualify a 2 person from representing the class? And in this case, the 3 only person that we have that has stepped forward. Is it 4 worth not certifying the class and letting however many 5 thousands of people out there just let their claims go by 6 the wayside, is that appropriate? Or is Mr. Scott an 7 appropriate representative? Or there is a middle ground 8 and Mr. Carney eluded to it. You can certify the class 9 with Mr. Scott. We can look for another representative. 10 In fact, Rule 2-231(f) expressly provides that within your 11 discretion, Your Honor, at any time through the case, you 12 can issue relevant orders. Including an order that the 13 class be notified about the case, to offer class members 14 an opportunity to weigh in on whether they think the 15 representation is adequate, or whether they wish to assert 16 their own defenses or claims, or whether they wish to 17 intervene in the case generally to be a representative 18 themselves. 19 So if Mr. Scott, and you have questions about 20 his credibility because of these convictions, otherwise 21 the class would be certifiable, then we would request that 22 the Court issue such an order. Allow us to send notice to 23 the class. Allow us to see if someone else who doesn't 24 have convictions would intervene, if that would make it 25 better. And of the thousands of notices we send out, I'm ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 257 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 261 of 426 Total Pages:(301 of 466) 6 27 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge 1 sure we'll find someone. I'm sure Cricket will oppose 2 them because of something. But we'll find someone. But 3 to let the class action and all those class members just 4 die out and fade away, just doesn't seem appropriate. 5 When court, after court, after court has said; general 6 attacks on character are not appropriate to determine 7 adequacy of the class representative. And those cases, 8 Your Honor, I don't to belabor them, they're all cited in 9 the case, they're all cited in the briefs. The ones we've 10 cited. The ones that we've cited to in Newburg. The ones 11 Cricket has cited. 12 THE COURT: Okay. 13 MR. WOLF: Unless it relates to this case, then 14 it's not appropriate to find him inadequate as a result. 15 THE COURT: I think I've heard enough about this. 16 Unless you want to -- was there something you wanted to 17 add? 18 MR. RYAN: I do, Your Honor. 19 THE COURT: Okay. 20 DEFENDANT'S FURTHER ARGUMENT 21 MR. RYAN: On the deposition, which was largely 22 not addressed by counsel. But there was some suggestion 23 and maybe I didn't ask the right question. Question, this 24 was my question to Mr. Scott. "Okay. Have you been, 25 since you moved to Maryland in 2000, have you been ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 258 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 262 of 426 Total Pages:(302 of 466) 6 28 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge 1 convicted of any crimes by a Maryland court?" Instructed 2 inquire into any criminal convictions in the State of 3 Maryland since 2000. Then a little bit later. "Okay." 4 This is me speaking, Your Honor. "Okay. So counsel, let 5 me just -- if I were to ask the witness about any 6 registries he'd be on or any other restrictions he may be 7 under that relate to criminal charges or criminal 8 convictions, you're going to give him the same 9 instruction, right?" Mr. Wolf, "Correct." Mr. Ryan. "To 10 not answer." Mr. Ryan. "So I take it you're 11 uncomfortable with it." "I understand you're going to 12 instruct him not to answer. I don't want to put him -- go 13 through the exercise of putting the questions to him." 14 Mr. Wolf. "Right." 15 Mr. Ryan. "I mean, I will do it. If you're 16 more comfortable with that record, I will do it. Answer, 17 no." And then Mr. Wolf goes off of it. So we -- there's 18 no plausible basis for a suggestion that we didn't ask the 19 questions. We tried to work with counsel in the 20 deposition so we knew exactly where we were for the 21 purposes of the Motion to Compel. So that's one. The 22 only other thing -- because the cases -- they have their 23 cases, we have our cases. The issue is what this Court is 24 going to decide based on the record before it. And there 25 are plenty of cases, even the Seventh Circuit case that ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 259 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 263 of 426 Total Pages:(303 of 466) 6 29 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge 1 they cite, was a case in which Judge Posner of the Seventh 2 Circuit said I'm going to overrule the District Court's 3 decision to accept this representative. And you've got to 4 go back now and take another look at his character. 5 Now, Judge Posner went on to say you can't be 6 trivial, you can't make trivial attacks on people. I 7 don't think that these are trivial. Then respect to the 8 Angeletti case, that's the -- as Mr. Wolf said, the 9 leading case in Maryland. That was a tobacco case. And 10 there was a motion made, I think it was before Judge 11 Angeletti, to not allow class counsel to represent the 12 case, because they had a conflict of interest. The trial 13 judge said; no, I'm going to allow counsel. There was 14 then a mandamus petition in which the Court of Appeals 15 said; no, these counsel do have a conflict, they can't 16 represent the class. But they didn't get into -- they 17 mention an Angeletti character matters to the class rep. 18 But Angeletti had nothing whatsoever to do with the issues 19 that confront this Court today. And so the idea that go 20 ahead and certify someone who's clearly inappropriate, we 21 may find someone they'll approve, we may find someone 22 later who's better. They've had plenty of time to locate 23 class representatives. 24 And I just keep coming back to this. It is not 25 right, particularly on an incomplete record. It is not ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 260 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 264 of 426 Total Pages:(304 of 466) 6 30 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge 1 right to ask this Court to say to the people of the State 2 of Maryland this is a person who's suitable to act in a 3 fiduciary capacity. Thank you, Your Honor. 4 MR. WOLF: May I Your Honor? Just quickly. On 5 the Motion to Compel, I filed a response. I have a 6 response to that. That question in particular stretches 7 back 17 years, for instance. One of the question was, 8 from the time you're 18 until 2000, have you been 9 convicted. These are things that don't come into court. 10 They're not coming in under Maryland law. So he's not 11 going to be questioned about it, it doesn't effect this 12 case, on that. And Your Honor -- 13 THE COURT: Well, the thing is, when you're 14 engaging in discovery, everything that you receive or find 15 out, it doesn't necessarily mean it's admissible. But you 16 can certainly ask the question. 17 MR. WOLF: No. And the question is, is it 18 relevant for discovery purposes. So working with the body 19 of law that says unless it bears on the issues in this 20 case, it doesn't matter whether a person's been convicted 21 of crimes in the past. I mean, that's what the Federal 22 courts essentially said. Unless it bears on this case, 23 and in this case Mr. Scott isn't testifying -- 24 THE COURT: I hear what you're saying, I hear 25 what you're saying. ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 261 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 265 of 426 Total Pages:(305 of 466) 6 31 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge 1 MR. WOLF: Okay. 2 THE COURT: I just would have overruled the 3 objection and had your client answer if I had been called. 4 MR. WOLF: Understood, Your Honor. 5 THE COURT: That's all I'm saying. All right. 6 So did you want to -- excuse me. 7 MR. RYAN: We have other arguments on class 8 certification, Your Honor. 9 THE COURT: Okay. 10 MR. RYAN: Would you like to hear those? 11 THE COURT: Yes. 12 MR. RYAN: So, for example, they say Mr. Scott's 13 credibility is not at issue here. Well, first of all, our 14 records reflect, as best we can tell, he never bought a 15 phone, he's not a member of the class. Now, with their 16 reply brief, their theory has been I bought two phones 17 when I was living in New York, when I was staying with my 18 uncle in New York on a job. Those are the two phones. 19 One I gave to my uncle, one phone I have. We asked him, 20 did you ever make a claim that one of those phones was not 21 working and you got it replaced. Because that's what we 22 show. We show one phone and then a request to replace a 23 phone. Never happened. What happened to your uncle's 24 phone? He misplaced it. Well, now we get this very 25 strange affidavit, I have a copy of it, it's attached to ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 262 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 266 of 426 Total Pages:(306 of 466) 6 32 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge 1 their brief, from the uncle. The uncle weighs in in the 2 reply brief and says; oh, oh, oh, I did have a phone and I 3 did call to have that phone replaced. And when I did it, 4 I imitated -- I pretended to be my nephew, Mr. Scott, the 5 class rep here, because it was really on his account. And 6 so, yes, Cricket is apparently right there was a phone, 7 there was a request to replace the phone. 8 And now the question becomes, okay. So the 9 uncle's got one phone, where's Mr. Scott's phone? Where's 10 Mr. Scott's phone? And they say; well, it's right here. 11 It's right here, Your Honor. This is Exhibit 4. In his 12 deposition, he brought a phone, he brought it in the box, 13 he said; this is the phone that I had, it didn't work. 14 And there's a serial number for the phone. It's a little 15 bit (inaudible 10:47:04) serial number on the phone. And 16 in this brief, Mr. Scott says; oh, that serial number is 17 different than the serial number on Mr. Peters' phone. 18 I'm reading from their brief. It's a bunch of numbers, 19 but in the middle, it says 4368. 4368. And Mr. Peters' 20 phone number is 4363, not 4383. Okay. So two different 21 phones. 22 That's my uncle's phone, this is my phone. 23 Guess what the serial number says on this phone? It's Mr. 24 Peters' serial number, as they state in their brief, on 25 this box is the serial phone for Mr. Peters' phone. We ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 263 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 267 of 426 Total Pages:(307 of 466) 6 33 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge 1 have no record, and our records reflect that that is the 2 number of the phone that Mr. Peters ordered. We have no 3 evidence, and we him in the deposition; what evidence do 4 you have that you purchased the phone. Cash, where's your 5 receipt. Where's any evidence whatsoever that you 6 purchased the phone. And he doesn't have it. Now, it's 7 important, because, of course, because it's a Maryland 8 citizen class, your uncle's not a member of the class, 9 your uncle lives in New York. So there's an issue, Your 10 Honor. 11 The Court doesn't have to decide this today, 12 although because I understand that you would want to look 13 at the evidence. But the point is, his credibility is 14 going to be at issue in this trial. Mr. Scott's 15 credibility takes the stand. Let me give you another 16 example of his credibility. He says clear in his 17 deposition that they never made me an offer. When I went 18 to Cricket, they never made me an offer to give me a 19 discount on a trade-in, $120, or $160, or in any way to 20 mitigate the impact of the shutting down of the network. 21 Now, we know, we know from the FCC record, we 22 know that the commitments that Cricket made, that many, 23 many, many customers either got replacement iPhones, 24 replacement feature phones, or they got $160 or $120 25 credits to purchase a new phone that would work on the new ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 264 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 268 of 426 Total Pages:(308 of 466) 6 34 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge 1 network. So he's going to take the stand in front of this 2 jury, a jury, that's what he wants to do, and say; look, 3 not only did they switch away their network, they never 4 even made me an offer to compensate me to any degree 5 whatsoever. That makes his claim unique. That makes his 6 claim unique. Because millions of people were in fact 7 given benefits by Cricket, approved by the FCC. 8 So they can't say, oh, his credibility's got 9 nothing to do with this case. Of course his credibility 10 has to do with this case. And because it does, we get to 11 cross examine him on his credibility for prior convictions 12 and prior bad acts. Now, the problem there is, does that 13 then taint, does it cast the rest of the class claims in a 14 bad light in front of the jury. So the jury's saying; oh, 15 this guy's coming in, it's unclear he purchased a phone, 16 says he never was made any offer, even though there's 17 great documentary record that he was, and got these 18 different affidavits. One affidavit says he had one 19 phone, another affidavit, Mr. Scott says he had two 20 phones. There's all this surrounding his view of events 21 that are going to be subject to credibility attacks. And 22 that's going to spill over. That's the danger, spill over 23 and affect how the jury views the class, because he's the 24 representative of the class. And for them to say in their 25 papers, as they do, I think it really says a lot when they ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 265 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 269 of 426 Total Pages:(309 of 466) 6 35 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge 1 say in their reply brief; well, we don't even have to call 2 him up very much, we're going to limit his testimony as 3 much as we possibly can. Because they know, they know, 4 that with a record like his, they known where there's 5 inconsistent statements already under oath in this case, 6 that he is really exposed on cross examination. And that 7 makes him, by any measure, even by the measure that 8 counsel advances to this Court, is there any reason to 9 doubt his credibility with respect to the issues in this 10 case. 11 We don't think that's the only question for this 12 Court to ask. But as to that question, you bet, you bet. 13 Really? You were made no offer? You're one of seven 14 million Cricket customers nationwide that was made no 15 offer whatsoever? Even though the FCC said you should do 16 this? And even though AT&T subsequently certified to the 17 FCC that they had made these offers? And even though I 18 don't think anybody else has ever claimed that no offers 19 of any sort were made. So that makes him unique, it casts 20 his credibility in doubt. And so too with the issue on 21 whether he purchased a phone at all. So those are issues 22 that directly go to his adequacy as a class 23 representative, in addition to his 16 felonies. 24 And they can talk -- they can say, yeah, there 25 are cases where people with events in their past that have ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 266 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 270 of 426 Total Pages:(310 of 466) 6 36 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge 1 been certified, they have been certified as class reps. 2 But no court has done it with someone like this. Where's 3 the guy with 16 convictions that some court has proof? 4 And it's just not -- it's just not right what they're 5 saying to this Court, which is look the other way on an 6 incomplete record with a guy whose testimony so far to 7 date in this case is highly questionable. That's not the 8 way the system should work. And why didn't -- why didn't 9 (inaudible 10:52:54) Bond case is not an adequate 10 substitute for citizens of the State of Maryland since 11 they're a member of that class. They don't really address 12 it and of course they were completely silent on Bond in 13 their papers. 14 So there are -- there are other arguments, Your 15 Honor. And let me -- 16 MR. WOLF: Excuse me, Your Honor. Before we move 17 off adequacy, could I address the telephone and the -- 18 what has been alleged as false testimony in this case? 19 THE COURT: Yes, you may. 20 MR. WOLF: Mr. Ryan couldn't be more wrong and he 21 knows it. That's the sad part, he knows it. He 22 introduced a piece of evidence, Your Honor, with this 23 opposition to class cert, of a shipping notice for the 24 phone that was purchased, that he said Mr. Scott 25 purchased. This is what I wrote about in the brief. Not ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 267 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 271 of 426 Total Pages:(311 of 466) 6 37 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge 1 what he said, what I wrote. The shipping notice has a 2 serial number for the phone that was shipped, he said Mr. 3 Scott bought. The last five digits are 81818. Easy to 4 remember. The phone records that Cricket has put into 5 this case show that the phone with that serial number was 6 activated. And then that's the phone that the complaints 7 are it doesn't work right and was replaced. 8 What I wrote about in the brief, Your Honor, is 9 this box right here. You see how the box is? It has what 10 I call a sleeve on it, right? 11 THE COURT: Yes. 12 MR. WOLF: The sleeve has a serial number for a 13 phone; 81818. That was the sleeve that was on the box for 14 the phone that was ordered that his uncle got. The phone 15 Mr. Scott brought to the deposition, 82898. That's what's 16 on the box. It's a different serial number. The phone 17 itself comes apart take the back off, you remove the 18 battery. The serial number in the phone matches this box. 19 Now, we gave copies of the boxes and every one of these 20 serial numbers in our discovery, which you ordered us to 21 produce in two days, 700 pages, they've had it for weeks. 22 They know this phone is different than the one that they 23 say was shipped to Mr. Scott's uncle. Two different 24 phones. 25 Now, Mr. Scott's uncle's testimony in his ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 268 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 272 of 426 Total Pages:(312 of 466) 6 38 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge 1 affidavit is, they ordered a new phone for me, but I had 2 to ship back the phone first before they'd replace it. So 3 he shipped back a phone, presumably in a box somewhat like 4 this, and he put a sleeve on it. He must have put the 5 sleeve for this phone on the box. Because Mr. Scott has a 6 box with his uncle's old phone sleeve on it. So if he 7 shipped back a phone, which he says he did. Cricket 8 doesn't contest that anywhere. And Mr. Scott has a phone 9 with a different serial number, there had to be two boxes 10 in the same place at the same time. And Mr. Scott said, I 11 bought two phones at once, they were delivered to my 12 uncle's house when I was there. I never had a problem 13 with my phone, his uncle did. Sent it back and got a new 14 one. But he sent back the sleeve rom Mr. Scott's phone. 15 It actually shows two phones in the same place at the same 16 time. And that's exactly what I wrote. 17 So to come in and say that I somehow have, you 18 know, played fast and loose with serial numbers is just 19 wrong. Wrong. And if you look at the evidence, don't 20 listen to an offer was made, an offer was made. Look at 21 the evidence. Four spam emails that are really marketing 22 materials trying to get people to buy new phones. And 23 they all say; we have $120 trade-in allowance, see this 24 website for the details and the terms and conditions, and 25 go to your Cricket store. Mr. Scott's testimony is, I ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 269 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 273 of 426 Total Pages:(313 of 466) 6 39 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge 1 went to a Cricket store and they offered me nothing. 2 Maybe he didn't meet the terms and conditions. I don't 3 know. But to come in and say we have documented evidence 4 that he got an offer, he didn't get an offer. None of 5 those things were offers. They were talking about a 6 program they had that maybe you get an offer, maybe you 7 don't. 8 The bottom line is, even their best offer 9 communicated with -- Mr. Scott said he didn't open any of 10 those spam emails. I don't open spam emails myself. Or 11 spam texts. I don't open them either. He says he didn't 12 open them. He testified at his deposition he didn't. 13 Even if he had opened them, and even if he went there, and 14 even if they offered him the $160, that doesn't cure the 15 defect in the phone. That doesn't solve the breach of 16 warranty. They didn't make the broken phone merchantable. 17 They didn't make it fit for the use that he bought it for, 18 that the knew he bought it for. They didn't make the 19 transfer to the new network have no effect on him, because 20 he had to buy a phone. And at the very least, he had to 21 pay the difference in price for the phones. 22 So this idea about the offers and what they said 23 or didn't; his testimony holds up. There's nothing in 24 there that says he got an offer. There's these cryptic 25 messages that there's a program, maybe you qualify, go to ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 270 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 274 of 426 Total Pages:(314 of 466) 6 40 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge 1 the store to find out. He went to the store and the 2 answer was no, you can pay for a phone, that's it. So you 3 know, to stand up today and represent it in that fashion, 4 completely ignores the actual testimony, what I actually 5 wrote in the brief. It's as if we don't exist. Whatever 6 is said must be the truth when it's not. Even when they 7 represent what we've said isn't true. 8 What I just showed you with the box is exactly 9 what I wrote, Your Honor. And to come in and to read the 10 first five numbers of a serial number, because they are 11 the same. All those are the same. The last five are 12 different. And the sleeve doesn't match the box, which 13 does match the phone. There had to be two phones at the 14 same place at the same time. And Mr. Scott said I bought 15 two phones at the same time. It's perfectly consistent. 16 Not that he had to testify about a lot of that. But the 17 point is, they are doing everything they can to make him 18 out to be a liar and a convicted criminal. None of which 19 will have an impact on this case. And that is just wrong. 20 THE COURT: I need to take a 10 minute recess. 21 All right? 22 THE CLERK: All rise. The Court will stand in 23 recess. 24 (Off the record - 11:00:54 a.m.) 25 (Session resumes - 11:14:12 a.m.) ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 271 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 275 of 426 Total Pages:(315 of 466) 6 41 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge 1 THE CLERK: All rise. Thank you very much. The 2 Circuit Court for Baltimore City, Part 14, will resume its 3 session. The Honorable Althea M. Handy presiding. 4 THE COURT: Okay, thank you. Please be seated. 5 THE CLERK: Do you want me to recall it? 6 THE COURT: Sure, thank you. 7 THE CLERK: Thank you. Recalling in the matter 8 of Michael A. Scott versus Cricket Communications, LLC. 9 Case number C-15-004918. Counsel, please identify 10 yourselves for the record. Thank you. 11 MR. CARNEY: Good morning again, Your Honor. 12 Benjamin Carney on behalf of the Plaintiff. With me is 13 Martin Wolf. 14 THE COURT: Okay. Thank you. 15 MR. RYAN: Good morning again, Your Honor. Mark 16 Ryan on behalf of the Defendant. And with me is Dan 17 Lanier. 18 THE COURT: Okay, thank you. 19 MR. CARNEY: Your Honor, just to pick up where we 20 left off. The one thing I think we hadn't responded to 21 that they brought up was the Bond case. It was a case 22 that Mr. Ryan raised, it's never been raised in this case 23 before. So it's surprising that it's coming up here today 24 as a reason that this Court should not certify the class. 25 I don't know a whole lot about the Bond case. What I do ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 272 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 276 of 426 Total Pages:(316 of 466) 6 42 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge 1 know is that it's in Federal court, it is not a certified 2 class action. Cricket successfully forced that case into 3 arbitration back in 2015 or 2016. Apparently, after this 4 case was remanded from Federal court to State court, and 5 after this Court lifted the stay in this case, Cricket and 6 the counsel for the Plaintiff in that case, agreed that 7 the plaintiff there could file a Magnuson-Moss claim. In 8 that case they were already being compelled to 9 arbitration. A claim that's the only claim in this case, 10 and that wasn't in that Federal case before this case got 11 remanded to State court, and this Court lifted the stay. 12 Now, Cricket has said in this case, that it has 13 a powerful chance, I think is its words, of compelling 14 arbitration under the Magnuson-Moss Warranty Act in 15 Federal court, though Cricket acknowledges that they can't 16 compel arbitration in this Court. So if Cricket's right 17 and it can compel arbitration under the Magnuson-Moss 18 Warranty in Federal court, which it's moved to do in the 19 Bond case, then that's no protection at all. There's no 20 case there if Cricket is right. So for Cricket to come 21 into this Court and say; well, there's this other case 22 that's pending and that will protect class members, that's 23 not as Mr. Wolf referred to Judge Posner's commentary on 24 defendants opposing adequacy of the class representative 25 on the basis that they aren't good enough for the class. ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 273 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 277 of 426 Total Pages:(317 of 466) 6 43 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge 1 Judge Posner said that that was like the fox 2 guarding the chicken house. This isn't the fox guarding 3 the chicken house, it's the fox building the chicken 4 house. The Bond case doesn't have anything to do with 5 this litigation. And if Cricket's right, that case is 6 going to be forced into arbitration on an individual 7 basis, it's not going to protect any of the class members 8 in this case. And with that I will sit down, Your Honor. 9 MR. RYAN: May I respond briefly, Your Honor? 10 THE COURT: Yes. 11 MR. RYAN: The reason we brought up Bond was, 12 because in their reply brief, for the first time, and as 13 they said this morning in their opening remarks, this is 14 it, they said it's only Scott, there's no other vehicle 15 for class resolution of these complaints. So this is in 16 response to an argument that they made in their reply 17 brief for the first time. This is what they're saying to 18 the Court; it's this or nothing. And in fact, there's a 19 case pending in Federal court that I think counsel 20 probably recalls, was filed first. And it was only after 21 that that the Scott case was filed. 22 Now Your Honor, in our discussion of what the 23 phone numbers are, I'm not saying that counsel misstated 24 any. I'm saying that there's substantial confusion. For 25 the first time in their reply brief, Mr. Scott's uncle ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 274 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 278 of 426 Total Pages:(318 of 466) 6 44 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge 1 weighs in and says; I had two phones. I returned one and 2 the other one reflects that he used it. He's not a member 3 of the class. The point is, there's no evidence of a 4 third phone. There's nothing in our records and they 5 haven't submitted anything that would show the existence 6 of a third phone. 7 The point there, Your Honor, being Mr. Scott's 8 credibility here, is in question. And there's a history 9 of criminal proceedings and criminal convictions that 10 would prompt the Court, prompt any reasonable juror to 11 say; yes, we have a right to be concerned about his 12 credibility. So that's really -- and credibility issues, 13 by the way, that were raised by them in a reply brief in 14 Mr. Scott's uncle's affidavit, which we have copies of if 15 the Court would like. Thank you. 16 THE COURT: Okay. Do you want to proceed with 17 your other arguments for why the class shouldn't be 18 certified? 19 MR. RYAN: I would, Your Honor. And I appreciate 20 that. I think the next question goes to ascertain 21 ability, Your Honor, and administrate-ability, of a class 22 action. Is the class action something we're going to be 23 able to manage. Now, they say there are 45 to 47,000 24 people in Maryland who bought phones during the class 25 period. The problem there is, that they didn't say in ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 275 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 279 of 426 Total Pages:(319 of 466) 6 45 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge 1 their complaint people who resided in Maryland or people 2 who lived in Maryland. Because they want it to be in 3 State court, so they define the class as citizens of 4 Maryland. Now, the great majority of people who live in 5 Maryland are going to be citizens of Maryland. We don't - 6 - we don't question that at all. But there could be some 7 non-trivial number of people who were living in Maryland, 8 but were not citizens. And they argued recently in the 9 Fourth Circuit that citizenship is something more than 10 residency. It's more than domicile. You have to have an 11 intent to stay. And the courts look at are you a 12 registered voter, do you own a car, how long have you been 13 in the State. 14 Now we're entitled, Your Honor, to challenge 15 whether particular people belong in the class or not. 16 It's their burden to show that the members of the class 17 are citizens, that the people that are in the class are 18 citizens and not simply residents. They made that as a 19 technical decision to define their complaint that way. So 20 now the Court faces the task of how many people are we 21 going to have to call in here to examine about whether 22 they're citizens or simply residents. And again, that's 23 because of the choice that they made to avoid -- and that 24 will be a mess. And that means that the class process, 25 given the burden it will put on the parties, the burden it ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 276 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 280 of 426 Total Pages:(320 of 466) 6 46 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge 1 would put on the Court, I can't say that it is a superior 2 method. 3 And they are not going to be able to ascertain 4 who's in the class and who's not in the class based on the 5 citizenship test without extensive proceedings and 6 extensive burden on the system. And this is not -- Your 7 Honor, it's not a damages question. It's not a damages 8 question. The question is, when they're standing up in 9 front of the jury and they're describing the number of 10 people in the class, and they're describing their damages 11 to people in the class, they have to demonstrate that the 12 people they're talking about are in the class. And how 13 are they going to show -- they told, the told the Fourth 14 Circuit when the Fourth Circuit was asking questions 15 about; well, we need to find a class of citizens, how do 16 you distinguish between residents and citizens of the 17 state. Mr. Carney said; we'll just interview them, 18 Cricket can just interview those people. So a lot of 19 interviews, Your Honor. That's a lot of interviews to 20 determine who's in the class and who's not. 21 I think, Your Honor, I'm just looking at my 22 notes. I think we've been through the arguments, Your 23 Honor. I do -- I do think, in addition to the inability 24 to ask Mr. Scott relevant questions in his deposition, I 25 do think that springing an affidavit from his uncle on us ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 277 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 281 of 426 Total Pages:(321 of 466) 6 47 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge 1 at the reply brief stage, when the testimony at Mr. 2 Scott's deposition was not that his uncle had returned the 3 phone, but had misplaced his phone, I think that's not 4 appropriate either. And we should be able to challenge 5 affidavits that are going to be used against us on a major 6 -- that they're trying to use against us on a major event 7 in this case. And the normal way of doing that is to take 8 the affiant's deposition. So thank you, Your Honor. I 9 really appreciate the time here today. 10 THE COURT: All right. Thank you. 11 MR. WOLF: Your Honor, just -- Mr. Scott was 12 asked at his deposition what's your uncle's name, where 13 does he live. That was April, six or seven weeks ago. I 14 was waiting for a deposition, nothing. You know, we 15 didn't know that that was an interest -- bless you, Your 16 Honor. 17 THE COURT: Excuse me. 18 MR. WOLF: We didn't know that was an issue that 19 was going to be contested,. You know, until we got their 20 response to the class cert about Mr. Scott lied; he said 21 he bought two phones and he only bought one. Well, we get 22 his uncle. You know, he told you at the deposition, I 23 gave one to my uncle, I kept one for myself. Here's the 24 one I kept. My uncle doesn't know where his is. That's 25 what he testified about. Then we get the response on the ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 278 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 282 of 426 Total Pages:(322 of 466) 6 48 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge 1 class cert; he's lying. So we got the uncle to say; yeah, 2 he gave me a phone. 3 I mean, I don't understand what's so, you know, 4 sneaky about this. Take his deposition. They had seven 5 weeks. They haven't done anything prospectively. Thank 6 you, Your Honor. 7 MR. CARNEY: Your Honor, I just have a brief 8 response to the argument that was just made on ascertain 9 ability, which I believe was the only other argument that 10 was raised. We addressed this in the brief, there is the 11 case, the Hannaford Brothers case, where that exact 12 argument is directly rejected. The idea that citizenship 13 makes a class non-ascertainable is contrary to Federal 14 law. There's also reams of class action cases where class 15 members have to self-identify through claim forms or 16 declarations. That's a regular feature of class action 17 cases. There's a lot of situations where people can't be 18 identified from the defendant's records or from available 19 records. So they have to say I'm a class member. 20 And the idea that this is going to devolve into, 21 you know, this mess, I think as Mr. Ryan characterized it, 22 is just not -- I don't think recognizes the history of 23 class action practice. This is something that's taken 24 care of with declarations, with affidavits. If Cricket 25 wants to challenge those, if it believes that it has a ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 279 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 283 of 426 Total Pages:(323 of 466) 6 49 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge 1 basis to challenge somebody's declaration that they're a 2 Maryland citizen, which is based on objective factors, as 3 the Maryland Court of Appeals has said; if they want to 4 challenge it, they can do it. But the case law is also 5 clear, and this is also discussed in the brief, there is 6 no due process right to a cost effective way to dispute 7 somebody's class membership. It just isn't there, it 8 doesn't exist. 9 So this is the way that class actions are done. 10 Defining classes to be limited to the citizens of a 11 particular state is not only appropriate, multiple -- I 12 think six U.S. Courts of Appeals have suggested that 13 classes should be defined that way. And it would be 14 contrary to Federal law for Cricket's argument to carry 15 any water. So unless the Court has any questions of me, 16 I'm finished. 17 THE COURT: Okay. Thank you. 18 MR. CARNEY: Thank you, Your Honor., 19 MR. RYAN: There's two issues. Is it permitted, 20 I guess is one issue. But how are they going to -- I 21 didn't hear Mr. Carney say how they're going to do it in 22 this case. We don't have information about which of our 23 customers are citizens of Maryland. You know what we 24 have? We have addresses. That's what we have for many of 25 the customers. So to say that there's -- to basically ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 280 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 284 of 426 Total Pages:(324 of 466) 6 50 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge 1 suggest there's nothing to it, we'll just identify the 2 citizenship of 47,000. Even though we concede most of 3 them will be citizens, Your Honor. We concede that. But 4 we're entitled to see if there's any appreciable number of 5 these people who can not belong in the class that they 6 defined. And so that just goes to the ascertain ability 7 and the manageability of this case. And it will be a very 8 big burden on this Court. Thank you. 9 THE COURT: Don't you want to say anything? 10 MR. LANIER: It's all been said, Your Honor. 11 THE COURT: All right. So I'm not going to give 12 you an oral decision right now, I'm going to write an 13 order. I'm not up for trying to get everything together 14 and give you an oral decision. But I will try to have it 15 to you by mid next week if not sooner. Okay? 16 MR. CARNEY: Thank you, Your Honor. 17 THE COURT: Thank you all very much for your very 18 helpful arguments. Thank you and have a great day. 19 THE CLERK: All rise. 20 THE COURT: That's okay, I've got to get my stuff 21 together. Thank you. 22 (Off the record - 11:28:24 a.m.) 23 24 25 ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 281 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 285 of 426 Total Pages:(325 of 466) 6 51 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge 1 TRANSCRIBER'S CERTIFICATE 2 This is to certify that the proceedings in the matter 3 of Michael A. Scott v. Cricket Communications, LLC, case 4 number 24-C-15-004918, heard in Circuit Court for 5 Baltimore City on May 23rd, 2017, was recorded on digital 6 media with video. 7 I hereby certify that the proceedings herein 8 contained were transcribed by me or under my direction. 9 That said transcript is a true and accurate record to the 10 best of my ability and constitutes the official transcript 11 thereof. 12 In witness thereof, I have hereunto subscribed my 13 name on August 15th, 2017. 14 15 16 17 _________________________ 18 Sherry R. Miller, President 19 20 21 22 23 24 25 ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 282 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 286 of 426 Total Pages:(326 of 466) 6 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge Page 52 A 49:24 answer 7:18 8:3 12:9 44:20 46:3 48:8 a.m 2:2 16:17 40:24 adequacy 7:16 11:16 12:10,15,18 14:4,17 50:6 40:25 50:22 17:6,21 18:1 19:4 21:17 28:10,12,16 asked 12:11 21:18 AAERT 1:19 19:15 27:7 35:22 31:3 40:2 31:19 47:12 ability 8:5,15 9:9 36:17 42:24 answers 13:4 asking 10:9 11:5 16:2 11:20 24:15 44:21 adequate 11:11 anybody 5:25 35:18 46:14 48:9 50:6 51:10 17:10,15,22,24,25 anymore 19:12 assert 3:18 5:25 6:16 able 3:16 13:18 25:15 18:2 20:14 26:15 apart 37:17 26:15 25:16 44:23 46:3 36:9 apparently 32:6 42:3 asserted 5:18 47:4 adequately 17:14 Appeals 8:7 17:19 asserting 20:25 absent 16:6 administrate-ability 19:7,11 29:14 49:3 assertion 23:16 absolutely 15:23 44:21 49:12 asserts 5:4 accept 29:3 admissible 30:15 APPEARANCES AT&T 35:16 accompanied 5:7,8 admit 21:18 1:13 attached 31:25 account 10:17 11:7,8 ADMITTED 1:11 appoint 10:9 attack 18:15 11:9 32:5 advances 35:8 appointed 14:24 attacks 25:2 27:6 accurate 10:1 14:15 affect 34:23 16:10 29:6 34:21 51:9 affiant's 47:8 appointing 10:16 attention 13:13 ACCUSCRIBES affidavit 13:24 31:25 appreciable 50:4 August 51:13 1:20 34:18,19 38:1 appreciate 44:19 available 5:21 48:18 acknowledges 42:15 44:14 46:25 47:9 Avenue 1:21 act 5:15,15 9:18 30:2 affidavits 34:18 47:5 appropriate 7:10 avoid 45:23 42:14 48:24 10:11 18:17 19:23 aware 2:22 action 2:22 3:7,15 ago 47:13 26:6,7 27:4,6,14 agreed 13:4 42:6 47:4 49:11 B 4:2 5:24 6:10 7:1 9:15,17,23 18:25 ahead 29:20 appropriated 25:2 back 22:21 29:4,24 25:11,13,13,14 27:3 allege 5:10,11 approve 9:5 16:7,7 30:7 37:17 38:2,3,7 42:2 44:22,22 alleged 3:9,12 4:4,9 16:10 29:21 38:13,14 42:3 48:14,16,23 4:10,11 20:16 22:2 approved 9:8,9 34:7 background 8:25 actions 3:25 4:3 5:17 36:18 approving 10:16 9:10 11:3 5:20 19:25 49:9 allegedly 2:25 April 47:13 bad 19:20,25 20:15 activated 37:6 alleging 20:8 arbitration 3:12 6:14 20:19 23:10,23 acts 3:9 10:13 19:25 allow 21:17 26:22,23 6:18 42:3,9,14,16 34:12,14 20:1,15,19 21:6 29:11,13 42:17 43:6 balance 22:5 23:10,23 34:12 allowance 38:23 aren't 22:11 42:25 ball 15:1 actual 40:4 allowed 12:5 15:11 argued 45:8 Baltimore 1:4,21 add 27:17 15:25 16:12 23:17 argument 2:20 8:6 9:25 41:2 51:5 addition 13:8 35:23 allowing 16:5 8:15,21 16:20 bare 16:4 46:23 Althea 1:10 41:3 27:20 43:16 48:8,9 based 28:24 46:4 address 16:18,21 amended 18:22 48:12 49:14 49:2 36:11,17 analysis 19:14 21:15 arguments 1:4,5 7:14 basically 49:25 addressed 17:7 27:22 Angeletti 17:18 18:3 18:7 31:7 36:14 basis 12:19 15:22,24 48:10 18:9,16,18 19:3,7,9 44:17 46:22 50:18 28:18 42:25 43:7 addresses 6:4 21:24 29:8,11,17,18 arranged 12:7 49:1 announced 22:16 ascertain 8:5,15 battery 37:18 ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 283 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 287 of 426 Total Pages:(327 of 466) 6 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge Page 53 bear 9:2 21:15 23:19 31:16 41:12,19 46:17 7:3,4,7,11,13,25 bears 30:19,22 32:1,2,16,18,24 48:7 49:18,21 13:11 16:14 17:2,3 beat 24:4 35:1 36:25 37:8 50:16 17:17,20 18:10 beginning 17:1 40:5 43:12,17,25 carry 49:14 21:22 22:1 31:8 behalf 2:9,14 11:3 44:13 47:1 48:7,10 case 1:3 2:3,5,22 3:7 certified 35:16 36:1,1 41:12,16 49:5 3:11,14,20,25 4:4,8 42:1 44:18 behavior 22:12,24 briefly 8:11 25:22 4:14,23 5:19 6:11 certify 17:5 26:8 belabor 7:23 27:8 43:9 6:14,23 7:10 9:16 29:20 41:24 51:2,7 believe 7:10,24 8:6 briefs 7:5 8:6 9:12 9:17,17,19,22 10:20 certifying 17:19 26:4 11:6 18:9 48:9 27:9 10:21 11:17 17:6 CET-745 1:19 believes 48:25 bring 13:13 17:17 20:1,9,16,22 challenge 17:25 belong 45:15 50:5 brings 10:3 20:23 22:11 23:11 19:15 45:14 47:4 benefits 34:7 broad 20:5 23:24 24:13,14,20 48:25 49:1,4 Benjamin 1:14 2:8 broadly 20:12 25:1,14,17 26:2,11 chance 3:7,16,18 41:12 broken 39:16 26:13,17 27:9,13 5:13,25 7:2 9:13 best 23:14 31:14 39:8 Brothers 48:11 28:25 29:1,8,9,9,12 15:4 42:13 51:10 brought 21:22 32:12 30:12,20,22,23 34:9 change 18:22 bet 35:12,12 32:12 37:15 41:21 34:10 35:5,10 36:7 changed 19:5 better 26:25 29:22 43:11 36:9,18 37:5 40:19 character 10:3,18,18 big 50:8 building 43:3 41:9,21,21,22,25 10:21 11:2,7 18:15 bit 28:3 32:15 bunch 14:15 32:18 42:2,4,5,6,8,9,10,10 19:16,17 20:6,8,13 bless 47:15 burden 45:16,25,25 42:12,19,20,21 43:4 20:20 27:6 29:4,17 blinders 12:1 46:6 50:8 43:5,8,19,21 47:7 characteristic 4:19 block 16:1 business 5:5 48:11,11 49:4,22 19:18 body 30:18 buy 38:22 39:20 50:7 51:3 characterized 48:21 Bond 9:16,17,17,18 cases 5:16 7:5 8:8 charges 28:7 9:20 14:25 36:9,12 C 19:13 20:3,4,9,10 chicken 17:12 43:2,3 41:21,25 42:19 C-15-004918 2:6 20:11,17,23 23:19 43:3 43:4,11 41:9 27:7 28:22,23,23,25 choice 45:23 bottom 20:17,18 call 2:3 17:4 19:13 35:25 48:14,17 Circuit 1:2 8:8 17:11 21:25 39:8 32:3 35:1 37:10 Cash 33:4 28:25 29:2 41:2 bought 22:14,15,15 45:21 cast 34:13 45:9 46:14,14 51:4 23:3,4,15 24:16 called 1:3 12:22 31:3 casts 35:19 circumstance 16:25 31:14,16 37:3 Calling 2:4 caused 4:3 circumstances 6:11 38:11 39:17,18 can't 15:20 25:18 CDMA-only 3:23 24:17 40:14 44:24 47:21 29:5,6,15 34:8 4:23 cite 29:1 47:21 42:15 46:1 48:17 cellular 2:23 cited 7:5 18:15 19:23 box 32:12,25 37:9,9 candor 12:23 center 4:14 20:3,5,10,11,18,18 37:13,16,18 38:3,5 capacity 10:12 11:3 cert 1:19 36:23 47:20 23:18 27:8,9,10,10 38:6 40:8,12 23:13 30:3 48:1 27:11 boxes 5:6 37:19 38:9 car 45:12 certainly 7:3 30:16 citizen 4:20 33:8 49:2 breach 4:8,9,10,11 care 48:24 certifiable 26:21 citizens 4:21 6:6 8:9 5:17 39:15 Carney 1:14 2:8,9,21 Certificate 1:7 51:1 10:11 11:4 25:15 break 11:5 7:23 8:13,20 22:10 certification 1:8 2:18 36:10 45:3,5,8,17 brief 7:15 20:4,4 25:13 26:8 41:11 3:20 4:15 6:23,24 45:18,22 46:15,16 ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 284 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 288 of 426 Total Pages:(328 of 466) 6 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge Page 54 49:10,23 50:3 clear 9:23 13:1 18:16 39:2 6:24,25 citizens-only 8:5 33:16 49:5 conduct 11:18 12:2 Correct 28:9 citizenship 45:9 46:5 clearly 14:23 15:25 13:25 15:9,12 16:3 cost 3:13 49:6 48:12 50:2 29:20 confirm 14:1 costs 3:11 City 1:4 41:2 51:5 CLERK 2:4 40:22 conflict 18:4,8,11 couldn't 4:20 25:5 claim 5:14 6:16 9:18 41:1,5,7 50:19 29:12,15 36:20 18:5 31:20 34:5,6 client 31:3 conflicts 19:4 24:19 counsel 2:6 12:8 14:1 42:7,9,9 48:15 close 12:1 19:12 confront 29:19 14:16 17:24 18:1 claimed 35:18 cohesive 16:25 confusion 43:24 24:1 27:22 28:4,19 claims 3:18 5:9,18 colleague 7:18 congress 5:16 29:11,13,15 35:8 6:1,25 18:10 20:25 come 13:15 15:4 consider 19:25 41:9 42:6 43:19,23 26:5,16 34:13 25:24 30:9 38:17 consideration 14:11 count 10:19,21 class 1:8 2:19,22,24 39:3 40:9 42:20 20:21 couple 7:14 8:24 3:6,7,8,15,16,20,21 comes 10:16 23:9 consistent 40:15 25:17 3:23 4:1,3,7,9,12,14 37:17 consists 9:6 course 7:6 15:10 33:7 4:16,20,22,24,25 comfortable 28:16 constitutes 51:10 34:9 36:12 5:12,13,17,19,24 coming 6:12 29:24 consumers 5:22 court 1:2,6 2:3,11,17 6:5,5,7,9,10,22,24 30:10 34:15 41:23 contained 51:8 3:11 6:18 7:16,20 7:1,2,3,4,6,10,12,24 commentary 42:23 contemplated 5:17 7:21 8:10,11,12,18 8:5 9:6,15,17,19,23 Commission 9:5 5:19 8:23 9:16,24 10:8,9 10:4,7,7,9,13,13,16 commitments 33:22 CONTENTS 1:1 10:10,17,19,21,24 10:17 11:19 13:10 common 4:19,24 8:1 contest 4:18,22,24 11:1,5,6,23 12:6,19 13:11 16:13 17:2,3 communicated 39:9 38:8 12:22 13:23 14:20 17:5,13,17,20,20,25 Communications 1:4 contested 47:19 14:22,23 15:3,15,16 18:5,6,7,10,11,17 2:5 9:5 41:8 51:3 contesting 9:20 15:19 16:1,15,16,18 18:25 19:4,15,20,24 company 3:13 continues 18:21 16:22 17:18 18:3 20:21,25 21:3,6,7 compared 3:10 contrary 5:14 48:13 18:15 19:7,11,22 21:22,25 22:7 compel 12:20 21:23 49:14 22:5 23:16,16 25:6 23:11,12,18 24:1,14 28:21 30:5 42:16 controversial 22:14 25:19,21,22,23 24:19 25:9,11,12,13 42:17 23:2 26:22 27:5,5,5,12 25:14 26:2,4,8,13 compelled 42:8 convicted 12:11 27:15,19 28:1,23 26:13,21,23 27:3,3 compelling 42:13 18:14 20:24 21:4 29:14,19 30:1,9,13 27:7 29:11,16,17,23 compensate 34:4 22:25 23:8 28:1 30:24 31:2,5,9,11 31:7,15 32:5 33:8,8 complaint 45:1,19 30:9,20 40:18 33:11 35:8,12 36:2 34:13,23,24 35:22 complaints 37:6 conviction 15:13 36:3,5,19 37:11 36:1,11,23 41:24 43:15 convictions 10:24 40:20,22 41:2,4,6 42:2,22,24,25 43:7 completely 18:24 14:4,9,15 15:8 41:14,18,24 42:1,4 43:15 44:3,17,21,22 36:12 40:4 19:19 20:15 21:12 42:4,5,11,11,15,16 44:24 45:3,15,16,17 compromise 11:20 22:1,6,8 23:17,21 42:18,21 43:10,18 45:24 46:4,4,10,11 concede 12:13 14:8 23:22 24:5 26:1,20 43:19 44:10,15,16 46:12,15,20 47:20 50:2,3 26:24 28:2,8 34:11 45:3,20 46:1 47:10 48:1,13,14,14,16,19 concerned 44:11 36:3 44:9 47:17 49:3,15,17 48:23 49:7,9 50:5 concerns 3:21,25 4:8 copies 37:19 44:14 50:8,9,11,17,20 classes 8:9 49:10,13 conditional 7:7 copy 31:25 51:4 clean 15:4 conditions 38:24 core 4:13 5:10,11 Court's 2:22 13:13 ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 285 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 289 of 426 Total Pages:(329 of 466) 6 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge Page 55 14:10 29:2 customers 6:4 33:23 12:18,25 13:4,15 discretionary 17:4 courts 8:7,8 17:7 35:14 49:23,25 14:3,17 16:2 21:17 discussed 8:1,2 49:5 19:2,8,21,25 20:19 21:20,20 27:21 discussion 43:22 24:24 30:22 45:11 D 28:20 32:12 33:3 dishonest 15:9 49:12 D.C 25:17 33:17 37:15 39:12 dishonesty 12:12,12 credibility 18:13 damages 46:7,7,10 46:24 47:2,8,12,14 12:13 14:5,7 21:1,10,12 26:20 Dan 2:14 41:16 47:22 48:4 dispute 4:13,15 6:7 31:13 33:13,15,16 danger 34:22 depositions 24:2 22:12 23:2,3,4,5,7 34:9,11,21 35:9,20 Daniel 1:16 depression 24:6 49:6 44:8,12,12 date 1:12 36:7 describing 46:9,10 disqualify 26:1 credibility's 34:8 day 22:4 50:18 despite 19:21 20:14 disrespectful 25:4,5 credits 33:25 days 37:21 details 38:24 distinguish 46:16 Cricket 1:4 2:5,25 deal 9:10 determine 17:23 18:3 District 9:24 24:25 3:3,13,14,17,18 4:1 debate 12:4 20:20 21:8 27:6 29:2 4:6,13,15,18,21,24 decades 10:23 46:20 documentary 34:17 5:2,4,8 6:1,1,13,16 decide 28:24 33:11 determined 17:9 documented 39:3 6:17,17 7:14 8:4 decided 17:18 18:25 19:4 documents 13:19 14:16 19:13,22 19:11 determines 21:11 doesn't 4:13,15,18,21 20:5,11,18 21:16 decision 1:6 10:19 devolve 48:20 4:24 9:2 10:21 16:8 22:7,16,18 27:1,11 14:20 18:18 29:3 didn't 12:21 13:5 23:24 24:12,13,15 32:6 33:18,22 34:7 45:19 50:12,14 15:13 21:19 27:23 26:23 27:4 30:11 35:14 37:4 38:7,25 declaration 13:24 28:18 29:16 32:13 30:15,20 33:6,11 39:1 41:8 42:2,5,12 49:1 36:8,8 39:2,4,9,11 37:7 38:8 39:14,15 42:15,20,20 46:18 declarations 48:16 39:12,16,17,18,23 40:12 43:4 47:24 48:24 51:3 48:24 44:25 47:15,18 49:8 Cricket's 2:23 3:24 defect 39:15 49:21 doing 4:6 5:3 40:17 4:5 5:1 20:4 22:12 defendant 1:5,16 die 27:4 47:7 22:24 42:16 43:5 2:14 17:8 25:7 difference 39:21 dollars 25:18 49:14 41:16 different 11:22 18:5 domicile 45:10 crime 21:14 defendant's 1:5,14 18:6,23,24 32:17,20 don't 7:23 10:19 crimes 12:12 18:14 8:21 27:20 48:18 34:18 37:16,22,23 13:13 14:5,6 15:7 21:21 22:3 28:1 defendants 42:24 38:9 40:12 19:10,11 23:2,3,3,4 30:21 defending 9:21,21 digging 25:8 23:9 25:11 27:8 criminal 10:22 11:8 defenses 18:6 26:16 digital 1:24 51:5 28:12 29:7 30:9 11:18 12:2,9,16 defer 7:17 digits 37:3 35:1,11,18 36:11 13:9,12,14,19,25 define 45:3,19 direction 51:8 38:19 39:2,7,10,11 14:2,22 15:8 21:11 defined 49:13 50:6 directly 8:7 35:22 40:5 41:25 45:5,6 22:1 23:17 24:10 Defining 49:10 48:12 48:3,22 49:22 50:9 25:25 28:2,7,7 definition 4:16,21 dirt 25:8 doubt 15:22 35:9,20 40:18 44:9,9 degree 34:4 disclosure 15:2 doubts 6:22 7:3 cross 11:13,14,18,21 delivered 38:11 discount 33:19 drag 24:11 14:11 21:2,9 34:11 delved 23:19 discovery 30:14,18 dragged 24:4 35:6 demonstrate 46:11 37:20 drug 23:22 24:5 cryptic 39:24 demonstrated 24:20 discretion 17:4 25:25 due 24:18 49:6 cure 39:14 deposition 12:5,7,8,8 26:11 ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 286 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 290 of 426 Total Pages:(330 of 466) 6 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge Page 56 E 34:11 45:21 18:19 19:2,5,6,8,13 full 13:7 15:2 E 1:15 examined 21:2 19:14,21 20:19 further 6:11 13:18 Easy 37:3 example 31:12 33:16 30:21 42:1,4,10,15 16:20 18:12 27:20 effect 30:11 39:19 excuse 8:10 31:6 42:18 43:19 48:13 future 7:8 effective 49:6 36:16 47:17 49:14 exercise 9:2 28:13 felonies 35:23 G effects 23:10 effort 6:21 24:21 Exhibit 32:11 fiduciaries 11:11 Garbis 9:24 efforts 23:25 exhibits 1:9,10,14 fiduciary 10:11,12 general 7:12 19:16 either 33:23 39:11 13:16 21:21 14:24 16:8,10 20:6 19:17 27:5 47:4 exist 8:1 40:5 49:8 23:12 30:3 generally 18:13,14 elements 17:20 existence 44:5 file 42:7 26:17 eluded 26:8 exists 24:10 filed 6:13,17 21:23 getting 3:17 emails 38:21 39:10 expense 6:21 30:5 43:20,21 give 22:20,21 28:8 39:10 explained 9:4 find 10:6,7,21 14:25 33:15,18 50:11,14 embarrass 13:2 exploring 16:3 25:5 27:1,2,14 given 5:9 22:9 24:17 embarrassment exposed 35:6 29:21,21 30:14 34:7 45:25 24:22 expressly 5:17,19 40:1 46:15 go 7:12,19 18:12 19:7 enacted 5:16 26:10 finding 17:5 26:5 28:12 29:4,19 encompass 9:19 extended 10:23 finish 12:25 35:22 38:25 39:25 engaging 30:14 extensive 46:5,6 finished 49:16 goes 11:15 19:1 entirely 9:6 extent 9:14 14:2 firm 25:17 28:17 44:20 50:6 entitled 9:22 45:14 eyes 12:1 first 11:25 15:17 17:3 going 3:16 11:19 50:4 18:16 31:13 38:2 12:7 14:17,24 16:6 F 40:10 43:12,17,20 22:7,17 24:3,4,9,11 Esquire 1:14,15,16 1:16 face 18:8 19:21 21:3 43:25 25:15,16 28:8,11,24 essentially 10:15 faces 45:20 fit 4:16 39:17 29:2,13 30:11 30:22 facilitate 5:16,20 five 37:3 40:10,11 33:14 34:1,21,22 event 47:6 fact 4:12 5:4,9 9:10 fix 22:19,20 35:2 43:6,7 44:22 events 9:16 34:20 9:11 13:6 20:10 fixed 23:5 45:5,21 46:3,13 35:25 26:10 34:6 43:18 flag 17:8 47:5,19 48:20 Everybody 22:14 factors 7:20 49:2 flaw 20:8 49:20,21 50:11,12 evidence 13:8 14:21 facts 5:10 6:25 22:11 follow 14:18 good 2:8,11,12,13,16 15:10 16:1 33:3,3,5 factual 19:1 followed 17:21 2:17 8:22,23 20:6 33:13 36:22 38:19 fade 27:4 force 6:14 41:11,15 42:25 38:21 39:3 44:3 fair 12:24 14:19,19 forced 42:2 43:6 gotten 6:18 evidentiary 11:23 fall 21:19 22:3 forms 48:15 govern 5:5 exact 48:11 false 36:18 forward 2:6 26:3 grain 17:14 exactly 5:22 15:5 far 18:1 24:20 36:6 found 13:16 20:7,14 great 23:25 34:17 24:8 28:20 38:16 fashion 40:3 Four 38:21 45:4 50:18 40:8 fast 38:18 Fourth 8:8 45:9 ground 11:5 26:7 examination 11:13 favor 6:24 7:4 46:13,14 guard 25:6 11:18,21 14:11 FCC 9:7,9 33:21 34:7 fox 17:12 43:1,2,3 guarding 43:2,2 35:6 35:15,17 fraud 20:23,24 21:1 guess 32:23 49:20 examine 11:14 21:9 feature 33:24 48:16 friend 23:14 guy 16:7,7 19:20 22:8 Federal 9:5,15,24 front 34:1,14 46:9 36:3,6 ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 287 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 291 of 426 Total Pages:(331 of 466) 6 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge Page 57 guy's 34:15 12:2,4,21,23 13:7 important 15:2 19:17 interview 46:17,18 13:22 15:9,22 21:8 22:11 33:7 interviews 46:19,19 H 16:10,14,21 19:10 impracticable 4:17 introduced 36:22 H 1:14 21:23 22:10 25:10 6:8 investment 6:20 hadn't 21:4 41:20 25:24 26:11 27:8 inability 46:23 involve 14:5,7 half 20:12 27:18 28:4 30:3,4 inadequate 20:7 involved 15:9,12 handles 8:11 25:22 30:12 31:4,8 32:11 27:14 21:15,21 Handy 1:10 41:3 33:10 36:15,16,22 inappropriate 29:20 involves 22:12 Hannaford 48:11 37:8 40:9 41:11,15 inaudible 16:16 involving 9:16 12:12 happen 6:15 41:19 43:8,9,22 32:15 36:9 iPhones 33:23 happened 31:23,23 44:7,19,21 45:14 incident 16:25 isn't 23:2,18 30:23 happy 8:3 16:14 46:7,19,21,23 47:8 includes 9:18 10:23 40:7 43:2 49:7 hard 17:9 47:11,16 48:6,7 10:24,25 issue 1:6 4:23 8:4,14 harm 4:4 49:18 50:3,10,16 Including 17:5 26:12 9:14 10:3 11:13,15 haven't 13:23,25 Honorable 1:10 41:3 incomplete 12:17 11:20,25 16:19 44:5 48:5 house 17:12 38:12 29:25 36:6 26:12,22 28:23 he'd 28:6 43:2,3,4 inconsistent 35:5 31:13 33:9,14 he's 10:5,6,7 19:18 huge 3:13 individual 3:14 4:3 35:20 47:18 49:20 23:1,8,13,14 24:20 humiliation 24:22 5:22 10:22 43:6 issues 4:13 16:13 24:21 30:10 31:15 hump 6:19 infamous 22:3 21:24 24:13 29:18 34:1,23 44:2 48:1 hundred 25:18 infeasible 6:9 30:19 35:9,21 head 24:5 information 13:2 44:12 49:19 hear 16:15 30:24,24 I 17:2 49:22 it's 3:10 6:4 9:25 31:10 49:21 I'd 8:3 10:2 initial 10:2 13:10 10:12 11:11,11,19 heard 16:23,23 27:15 I'll 13:21 injured 21:7 14:18,19,19 15:10 51:4 I'm 7:12,19 8:10,12 inquire 28:2 15:25 16:15 17:4 hearing 1:12 15:17 12:7 16:14 25:21 inquiry 12:14 18:16,22 21:8 15:19,21 25:23 26:25 27:1 instance 11:25 20:22 23:12 25:8,25 helpful 50:18 29:2,13 31:5 32:18 30:7 27:14 30:15 31:25 here's 10:8 47:23 43:23,24 46:21 instruct 28:12 32:10,11,14,18,23 hereunto 51:12 48:19 49:16 50:11 instructed 12:8,10,14 33:6,7 34:15 36:4,4 hiding 15:1 50:12,13 12:18 14:3 28:1 37:16 40:5,6,15 high 3:14 9:12 10:20 I've 27:15 50:20 instruction 28:9 41:22,23,23 42:1,18 highly 36:7 idea 29:19 39:22 instructions 12:20 43:3,7,14,18 45:10 hint 13:12 48:12,20 integrity 10:18 11:2 45:16 46:7,7 50:10 history 10:22 12:2,10 identified 48:18 11:9 12:16 13:19 14:22 identify 2:7 11:10 intent 45:11 J 44:8 48:22 41:9 50:1 intention 25:10 job 31:18 hold 25:19 ignores 40:4 interest 18:4 24:14 joinder 4:17 6:7 holds 39:23 illegal 20:1 29:12 47:15 judge 1:10 9:24 honesty 15:14 imitated 32:4 interested 25:8 23:23 25:1 29:1,5 Honor 2:8,12,13,16 impact 20:22 33:20 interfered 15:5 29:10,13 42:23 2:21,21 7:11,24 8:2 40:19 interpretations 43:1 8:13,14,20,22,24 impacts 21:1 18:20 juror 44:10 9:3,11 10:25 11:12 impeach 21:12 intervene 26:17,24 jury 34:2,2,14,23 ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 288 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 292 of 426 Total Pages:(332 of 466) 6 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge Page 58 46:9 lied 47:20 Magnuson-Moss 4:1,3 5:13 6:5,5,9 jury's 34:14 lifted 42:5,11 5:15 9:18 42:7,14 7:2 17:13 18:4,7 justify 14:23 light 34:14 42:17 21:3 24:14 26:13 limit 21:13 35:2 major 47:5,6 27:3 42:22 43:7 K limited 6:6 8:9 23:12 majority 45:4 45:16 48:15 Kasally 23:20 25:1 49:10 malfunction 22:19 membership 49:7 keep 29:24 line 20:17,18 21:25 manage 44:23 mention 13:11 29:17 Kelly 1:18 23:20 24:19 25:3 39:8 manageability 50:7 merchantable 39:16 kept 47:23,24 listed 6:4 mandamus 29:14 mess 45:24 48:21 kind 3:8 listen 38:20 Mark 1:16 2:13 messages 39:25 knew 24:3 28:20 litigate 25:17 41:15 method 46:2 39:18 litigated 6:12 MARKED 1:11 Michael 1:1 2:5 41:8 know 8:4 12:16,24 litigation 6:13,19 marketing 38:21 51:3 19:12 23:1,11,13,14 10:14 14:25 43:5 Martin 1:15 2:10 mid 50:15 24:4 25:3,11,12 little 20:11 28:3 41:13 middle 26:7 32:19 33:21,21,22 35:3,3 32:14 Maryland 1:21 3:20 Miller 51:18 37:22 38:18 39:3 live 45:4 47:13 4:20,21 6:4,6 10:12 million 35:14 40:3 41:25 42:1 lived 45:2 11:4 12:13 15:10 millions 34:6 47:14,15,18,19,22 lives 33:9 17:16 18:20,24 minimum 15:1 47:24 48:3,21 living 31:17 45:7 25:15 27:25 28:1,3 minute 40:20 49:23 LLC 1:4 2:5 41:8 29:9 30:2,10 33:7 misconduct 15:13 knowing 16:11 51:3 36:10 44:24 45:1,2 misplaced 31:24 47:3 knowledge 13:25 locate 29:22 45:4,5,5,7 49:2,3,23 misstated 43:23 known 35:4 locked 3:23 4:25 6:2 Maryland's 21:11 mitigate 33:20 knows 24:9,10,11 long 11:7 45:12 mash 16:24 mobile 4:23 36:21,21 longer 19:2 match 40:12,13 money 22:21 look 6:10 9:11 10:20 matches 37:18 morning 2:8,10,11 L 11:10 13:1,10 17:8 materials 38:22 2:12,13,16,17 8:22 laid 8:6 13:19 22:10 18:18 19:6,18 matter 2:4 5:21,24 8:23 41:11,15 language 20:5 20:13,19 22:9 8:11 13:6 15:3 43:13 Lanier 1:16 2:15,16 24:24 26:9 29:4 25:22 30:20 41:7 Morris 17:17 41:17 50:10 33:12 34:2 36:5 51:2 motion 1:8 2:18 3:19 largely 27:21 38:19,20 45:11 matters 8:19 10:19 7:21 13:10 18:25 law 6:23 30:10,19 looked 25:1 29:17 21:23 28:21 29:10 48:14 49:4,14 looking 46:21 mean 23:24 28:15 30:5 laws 19:5 looks 7:8 16:8 30:15,21 48:3 motions 6:14,17 lawyer's 6:21 loose 38:18 means 17:22 45:24 move 16:19 36:16 leading 17:17 19:24 lot 34:25 40:16 41:25 measure 35:7,7 moved 12:20 27:25 29:9 46:18,19 48:17 media 1:24 51:6 42:18 left 41:20 low 9:12 10:20 meet 39:2 multiple 6:14 49:11 legal 5:11 7:1 lumped 16:24 member 3:5,16,22 multiplicity 4:2 length 17:19 lying 48:1 4:7,10 9:19 10:8 lengthy 13:9 31:15 33:8 36:11 N letting 26:4 M 44:2 48:19 name 13:16,17 47:12 liar 40:18 M 1:10 41:3 members 2:24 3:8 51:13 ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 289 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 293 of 426 Total Pages:(333 of 466) 6 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge Page 59 named 17:6 18:2 numerous 4:17,19 26:12,22 50:13 person's 30:20 nationwide 9:17 6:7 8:7 ordered 12:19 33:2 persons 4:16,19,22 35:14 37:14,20 38:1 20:6 nature 14:2 16:3 O orders 10:24 26:12 perspective 19:1 21:14 oath 35:5 overlay 19:14 Peters 32:17,19,24 necessarily 30:15 objection 31:3 overrule 29:2 32:25 33:2 necessary 11:1,2,2 objective 49:2 overruled 31:2 petition 29:14 need 40:20 46:15 obligation 20:6 overview 7:9 petty 22:25 23:8 needn't 6:10 obviously 17:3 Philip 17:17 neglect 9:14 occasions 18:23 P phone 4:23,25 22:14 nephew 32:4 offender 13:17 PAGE 1:2 22:15,20,21,22 23:3 network 3:1,2,24 4:5 offense 16:5 pages 37:21 23:6,6,15 24:16 5:1,2 6:2 9:1,9 offer 26:13 33:17,18 papers 12:14 13:10 31:15,19,22,23,24 22:17,18 33:20 34:4,16 35:13,15 13:14 14:8,14 16:4 32:2,3,6,7,9,9,10,12 34:1,3 39:19 38:20,20 39:4,4,6,8 34:25 36:13 32:13,14,15,17,20 never 13:22,23 23:5 39:24 Pardon 15:18 32:22,22,23,25,25 23:5,6 31:14,23 offered 1:12,15 39:1 part 4:1 11:16 36:21 33:2,4,6,25 34:15 33:17,18 34:3,16 39:14 41:2 34:19 35:21 36:24 38:12 41:22 offering 12:15,17 particular 7:16,19 37:2,4,5,6,13,14,14 new 11:5 21:21 22:20 offers 35:17,18 39:5 8:3,9 11:10 20:9,22 37:16,18,22 38:1,2 24:25 31:17,18 39:22 21:21 30:6 45:15 38:3,5,6,7,8,13,14 33:9,25,25 38:1,13 official 1:7 51:10 49:11 39:15,16,20 40:2,13 38:22 39:19 oh 15:7 32:2,2,2,16 particularly 29:25 43:23 44:4,6 47:3,3 Newberg 19:24 34:8,14 parties 45:25 48:2 Newburg 27:10 okay 2:17 7:21 16:18 pay 39:21 40:2 phones 2:23 3:1,2,3,5 newspapers 13:5 16:22 19:7 27:12 pending 9:15,23 3:9,22,23 4:5,7 5:1 nice 20:11 27:19,24 28:3,4 25:11 42:22 43:19 5:4,5,7 6:2 9:1,7 non-ascertainable 31:1,9 32:8,20 41:4 people 6:3,6 9:7 10:5 31:16,18,20 32:21 48:13 41:14,18 44:16 11:11 14:24 24:9 33:24 34:20 37:24 non-trivial 45:7 49:17 50:15,20 25:2 26:5 29:6 30:1 38:11,15,22 39:21 normal 47:7 old 14:5,15 38:6 34:6 35:25 38:22 40:13,15 44:1,24 notes 25:5 46:22 once 38:11 44:24 45:1,1,4,7,15 47:21 notice 26:22 36:23 ones 5:18 27:9,10,10 45:17,20 46:10,11 phonet 23:20 37:1 online 13:16 46:12,18 48:17 pick 41:19 notices 26:25 open 39:9,10,11,12 50:5 piece 36:22 notified 26:13 opened 39:13 perfectly 24:19 40:15 place 38:10,15 40:14 notion 8:25 17:22 opening 13:14 14:14 period 6:20 9:6 22:4 plain 10:9 number 2:6 16:24 43:13 22:16 23:4 44:25 plaintiff 1:2,14 2:9 23:19 32:14,15,16 opportunity 26:14 permits 16:1 2:23 3:5,22 4:10 32:17,20,23,24 33:2 oppose 18:13 27:1 permitted 49:19 17:6,23 18:2 20:25 37:2,5,12,16,18 opposing 42:24 person 4:12,25 6:15 25:7 41:12 42:6,7 38:9 40:10 41:9 opposition 36:23 10:25 17:9,13 18:4 Plaintiff's 1:8,4,10 45:7 46:9 50:4 51:4 oral 1:4,5 2:20 8:21 19:19 20:7,13,14,24 2:18,20 3:19 16:20 numbers 32:18 37:20 50:12,14 23:15,21 24:16 plan 22:16 38:18 40:10 43:23 order 5:16 24:23 26:2,3 30:2 plausible 28:18 ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 290 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 294 of 426 Total Pages:(334 of 466) 6 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge Page 60 played 38:18 proceed 44:16 qualify 39:25 12:17 13:7,9,12,14 please 2:6 7:20 41:4 proceedings 1:7,24 question 15:20,23,24 14:3 15:5 23:22,22 41:9 2:1 44:9 46:5 51:2 19:3,10 27:23,23,24 24:10 28:16,24 plenty 28:25 29:22 51:7 30:6,7,16,17 32:8 29:25 33:1,21 point 7:24 8:16 9:14 process 2:25 3:4,24 35:11,12 44:8,20 34:17 35:4 36:6 12:3,24 13:22 4:6 5:3 6:3 9:1 45:6 46:7,8,8 40:24 41:10 50:22 15:24 33:13 40:17 14:18 15:6 45:24 questionable 36:7 51:9 44:3,7 49:6 questioned 30:11 recorded 1:24 51:5 points 8:24 25:25 produce 37:21 questions 7:16,17,19 records 13:21 15:8 poorly 11:19 21:2,6 produced 1:24 8:1,3,15 12:9,18 31:14 33:1 37:4 portion 7:15 profits 3:12 13:20,21 14:6,17 44:4 48:18,19 position 10:15 24:8 program 39:6,25 16:2 21:17 26:19 recover 11:20 25:16 Posner 29:1,5 43:1 prohibitively 3:14 28:13,19 46:14,24 red 17:8 Posner's 42:23 prompt 44:10,10 49:15 referred 17:11 42:23 possibility 3:15 proof 36:3 quickly 30:4 reflect 11:19 15:14 possibly 15:6 35:3 proper 11:13,14 16:9 21:6 31:14 potential 8:5 14:10 R 33:1 powerful 25:17 42:13 proposed 2:22,24 3:6 R 1:16 51:18 reflects 13:1 44:2 practical 3:15 5:21 4:12 20:20 raise 18:7 regard 17:21 18:2,25 5:24 proposition 7:6 raised 7:14 8:4 41:22 registered 13:17 practice 48:23 propriety 6:22 41:22 44:13 48:10 45:12 practices 5:5 prospectively 48:5 read 7:21 40:9 registries 28:6 prejudice 22:6 protect 42:22 43:7 reading 32:18 regular 48:16 prejudiced 22:8 protected 14:25 real 11:13 rejected 8:7 48:12 preliminary 6:13 protection 42:19 realistic 3:15 relate 28:7 prepared 7:12,18,19 provides 26:10 really 9:2 16:6 22:11 related 20:9 13:15 24:2 public 13:19 32:5 34:25 35:6,13 relates 27:13 presents 18:4 purchase 33:25 36:11 38:21 44:12 relatively 3:10 President 51:18 purchased 4:22 9:7 47:9 relevant 12:14 25:8 presiding 41:3 33:4,6 34:15 35:21 reams 48:14 26:12 30:18 46:24 presumably 38:3 36:24,25 reason 5:19 7:8 15:3 reliability 10:18 pretended 32:4 purport 9:20 35:8 41:24 43:11 relief 3:9,17 5:12,13 pretty 13:20 21:25 purpose 5:14 reasonable 14:19 5:20 6:10 7:3 9:13 prevent 16:3 purposes 21:25 28:21 44:10 24:18 preventing 13:6 30:18 reasons 7:25 8:2 relying 19:13 price 39:21 pursue 24:7 recall 9:4 12:4 41:5 remanded 42:4,11 prior 15:12,13 19:25 pursuing 3:11,13 Recalling 41:7 remarks 43:13 20:1,14,15,19 21:5 pushing 17:8 recalls 43:20 remember 37:4 23:23 24:5 34:11 put 12:1 13:4,24 receipt 33:5 remove 37:17 34:12 24:21 28:12 37:4 receive 30:14 rendered 4:5 probably 43:20 38:4,4 45:25 46:1 recess 40:20,23 rep 10:16,17 13:10 probative 22:5,25 putative 3:8 recitation 16:5 23:18 29:17 32:5 23:7 putting 28:13 recognizes 48:22 replace 31:22 32:7 problem 8:13 34:12 recommended 8:8 38:2 38:12 44:25 Q record 2:2,7 9:3 11:8 replaced 23:6 31:21 ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 291 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 295 of 426 Total Pages:(335 of 466) 6 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge Page 61 32:3 37:7 restrictions 28:6 43:23,24 32:23,24,25 37:2,5 replacement 33:23 result 15:13 27:14 says 6:1 13:24 18:3,9 37:12,16,18,20 38:9 33:24 resume 41:2 19:9,25 20:2 21:16 38:18 40:10 reply 17:1 31:16 32:2 resumes 40:25 22:7 30:19 32:2,16 serve 11:3 35:1 43:12,16,25 returned 44:1 47:2 32:19,23 33:16 service 1:20,20,24 44:13 47:1 revisited 7:7 34:16,18,19,25 38:7 serving 25:6 represent 9:20 10:5,7 right 8:12,18 15:23 39:11,24 44:1 session 40:25 41:3 19:20 24:1 29:11 25:23 27:23 28:9 scheme 3:12 set 17:1 21:13 29:16 40:3,7 28:14 29:25 30:1 Scott 1:1 2:5 9:25 seven 35:13 47:13 representation 26:15 31:5 32:6,10,11 10:8,9,23 11:14,16 48:4 representative 10:10 36:4 37:7,9,10 12:9,15,17 13:3,8 Seventh 17:11 28:25 10:13,13 17:15,16 40:21 42:16,20 13:12 14:13,20 29:1 17:23 18:17 19:16 43:5 44:11 47:10 15:7 16:9 18:11 sex 13:17 20:20 21:7 23:11 49:6 50:11,12 21:9 22:25 24:8 shares 4:19 25:9 26:7,9,17 27:7 rights 12:21 24:23 26:6,9,19 27:24 Sheindlin 25:1 29:3 34:24 35:23 rise 40:22 41:1 50:19 30:23 32:4,16 Sherry 51:18 42:24 Rogers 1:21 34:19 36:24 37:3 shine 21:2 representatives role 23:12 37:15 38:5,8,10 ship 38:2 29:23 rom 38:14 39:9 40:14 41:8 shipped 37:2,23 38:3 represented 17:13 routine 5:4 43:14,21 46:24 38:7 representing 17:24 rule 7:13 15:10,14 47:11,20 51:3 shipping 36:23 37:1 26:2 18:19,21,24 19:6,12 Scott's 7:15 10:3 shoes 23:13,14 24:16 reps 36:1 19:12 21:11 26:10 12:2,5 14:2,22,23 shouldn't 16:12 request 26:21 31:22 rules 15:25 18:19 15:5 22:9,13 31:12 44:17 32:7 ruling 11:23,23 19:3 32:9,10 33:14 show 13:15 31:22,22 required 3:3 run 13:5 37:23,25 38:14,25 37:5 44:5 45:16 requirements 7:13 Ryan 1:16 2:13,13 43:25 44:7,14 47:2 46:13 7:25 8:22,24 12:23 seal 13:5 showed 24:2,7 40:8 resided 45:1 15:18,21 27:18,21 search 13:16,18 14:1 shows 6:23 38:15 residency 45:10 28:9,10,15 31:7,10 seated 41:4 shut 5:2 22:17,18 residents 45:18,22 31:12 36:20 41:15 second 8:10 25:19 shutting 2:25 3:4,25 46:16 41:16,22 43:9,11 section 19:23 4:4 6:3 9:1,8 33:20 resisting 15:2 44:19 48:21 49:19 securities 20:23,24 sicknesses 24:6 resolution 43:15 20:25 sidebar 21:16 resolved 6:23 7:4 S see 9:12 16:5 26:23 significant 6:20,20 23:5 sad 36:21 37:9 38:23 50:4 significantly 18:23 respect 4:1 14:20 sale 2:23 self- 25:5 silent 36:12 29:7 35:9 sales 5:5 self-identify 48:15 similar 18:19 respond 8:16,19 43:9 salt 17:14 self-serving 25:3,4 simply 9:25 11:7,8,9 responded 41:20 satisfied 7:25 send 26:22,25 19:9 23:18 45:18 response 18:10 21:23 saved 13:3 sense 19:2 45:22 30:5,6 43:16 47:20 saying 10:4,10 16:7 sent 38:13,14 single 3:1,5 4:12 5:3 47:25 48:8 19:22 22:25 23:2,7 sentence 20:12 6:15 responsible 10:14 30:24,25 31:5 separate 11:15,16 sit 12:21 43:8 rest 34:13 34:14 36:5 43:17 serial 32:14,15,16,17 situation 5:22 ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 292 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 296 of 426 Total Pages:(336 of 466) 6 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge Page 62 situations 48:17 story 16:11 takes 11:17 15:11 37:15 38:16 40:2 six 47:13 49:12 strange 31:25 33:15 42:9,19,22,22 44:12 sleeve 37:10,12,13 stretches 30:6 talk 11:24 16:13 20:5 45:22 46:19 47:3 38:4,5,6,14 40:12 stuff 21:22 24:6 35:24 47:24 48:16,23 small 3:10 50:20 talking 39:5 46:12 49:24 50:20 sneaky 48:4 subject 11:17 14:10 talks 17:19 theft 10:25 14:10 sold 3:4,22 4:6 5:3 15:2 18:5 34:21 task 45:20 23:1 6:1 9:2 subjects 16:16 Taylor 1:18 thefts 23:8 solve 39:15 submit 11:1 technical 45:19 theories 7:1 somebody's 49:1,7 submitted 44:5 telephone 36:17 theory 5:11 31:16 somewhat 38:3 subscribed 51:12 tell 24:11,12 31:14 there's 5:12,12,12,25 sooner 12:6 50:15 subsequently 12:20 terms 5:8 38:24 39:2 6:6 7:5,8 9:13,15 sorry 8:10,12 15:4 35:16 terrible 16:8 13:24 14:12,13,14 25:4,21,23 substantial 7:15 test 18:17 21:13,19 14:21 15:9,22,22 sort 16:23 35:19 43:24 22:3 46:5 17:25 21:5 28:17 sorts 23:23 substitute 36:10 testified 22:18 39:12 32:14 33:9 34:16 sought 24:1 successful 25:12 47:25 34:20 35:4 39:23 Southern 24:25 successfully 42:2 testify 21:10 22:23 39:24,25 42:19,21 spam 38:21 39:10,10 suffer 24:22 40:16 43:14,18,24 44:3,4 39:11 sufficient 14:21 testifying 22:4,13 44:8 48:14,17 speaking 28:4 suggest 50:1 30:23 49:19,25 50:1,4 spill 34:22,22 suggested 49:12 testimony 22:10 35:2 thereof 51:11,12 springing 46:25 suggestion 27:22 36:6,18 37:25 they'd 38:2 stage 47:1 28:18 38:25 39:23 40:4 they'll 29:21 stages 6:13 suitable 13:9 30:2 47:1 they're 10:4 11:5 stand 7:6 11:17 15:6 suited 3:21 4:14 texts 39:11 12:16 16:7 24:4,11 15:12 24:15 25:16 sum 10:15 thank 2:4,7,17 8:20 25:16 27:8,9 30:10 33:15 34:1 40:3,22 summary 13:21 30:3 41:1,4,6,7,10 36:4,11 43:17 standing 23:13,14 superior 46:1 41:14,18 44:15 45:22 46:8,9,10,12 46:8 sure 27:1,1 41:6 47:8,10 48:5 49:17 47:6 49:1,21 start 17:1 surprising 41:23 49:18 50:8,16,17,18 they've 21:22 23:25 state 8:9 10:11 11:4 surrounding 34:20 50:21 29:22 37:21 12:12 28:2 30:1 switch 16:16 34:3 that's 4:23 5:22 6:15 thing 17:3 28:22 32:24 36:10 42:4 system 11:12 16:9 6:19 7:9 9:10,14,16 30:13 41:20 42:11 45:3,13 36:8 46:6 9:23 11:6,9,15,20 things 4:13 16:24 46:17 49:11 11:22,22,23,24 21:9 30:9 39:5 statements 35:5 T 12:24 14:18 15:3 think 14:21 15:3,10 statutory 16:4 TABLE 1:1 15:14 18:8,17 15:16,19,24 16:8 stay 42:5,11 45:11 taint 34:13 19:10,17,19 20:2 18:1 19:11 21:24 staying 31:17 take 10:17 12:5,7 21:4,5,8,13,21 22:9 23:9,19 26:14 step 2:6 14:16 17:14 20:21 22:13,23 24:8,8,23 27:15 29:7,10 stepped 26:3 21:16 28:10 29:4 24:25 25:6 28:21 34:25 35:11,18 stop 16:15 34:1 37:17 40:20 29:8 30:21 31:5,21 41:20 42:13 43:19 store 38:25 39:1 40:1 47:7 48:4 32:22 34:2,22,22 44:20 46:21,22,23 40:1 taken 11:7,8,9 48:23 35:11 36:7,21 37:6 46:25 47:3 48:21 ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 293 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 297 of 426 Total Pages:(337 of 466) 6 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge Page 63 48:22 49:12 try 50:14 v 1:3 23:20 51:3 27:9,10 40:7 46:22 third 44:4,6 trying 12:24,25 13:2 value 22:5,25 23:7 website 38:24 thought 12:23 38:22 47:6 50:13 vehicle 43:14 week 50:15 thousands 26:5,25 turn 10:2 16:14 18:9 verbiage 5:7 weeks 37:21 47:13 three 18:22 twice 23:1 versus 2:5 17:18 41:8 48:5 threshold 11:25 two 6:12 14:9,9 18:23 video 1:24 51:6 weigh 26:14 throwing 25:9 21:18 22:2,2,6 23:8 view 34:20 weighs 32:1 44:1 tie 21:4,5 25:2 31:16,18 views 34:23 went 21:15 29:5 time 2:25 3:4 6:20 32:20 34:19 37:21 vindicate 24:23 33:17 39:1,13 40:1 12:3 21:13 22:15 37:23 38:9,11,15 violations 10:24 weren't 9:8 23:4 24:17,21 40:13,15 44:1 voter 45:12 what's 11:13,14,15 26:11 29:22 30:8 47:21 49:19 22:9 23:7 25:9 38:10,16 40:14,15 types 5:6 W 37:15 47:12 48:3 43:12,17,25 47:9 W 1:16,21 whatsoever 13:12 times 18:22 U waiting 47:14 14:1 29:18 33:5 tobacco 29:9 U.S 8:7 49:12 want 7:23 9:22 10:5 34:5 35:15 today 3:19 10:3 uh-uh 14:23 12:3 13:2 14:12,12 where's 32:9,9 33:4,5 11:24 29:19 33:11 uncle 31:18,19 32:1,1 16:18 17:15 18:12 36:2 40:3 41:23 47:9 33:9 37:14,23 24:7 27:16 28:12 whiff 13:11 today's 9:2 38:13 43:25 46:25 31:6 33:12 41:5 who's 7:18 11:17 told 46:13,13 47:22 47:2,22,23,24 48:1 44:16 45:2 49:3 29:20,22 30:2 46:4 touch 8:14 uncle's 31:23 32:9,22 50:9 46:4,20,20 trade-in 33:19 38:23 33:8 37:25 38:6,12 wanted 27:16 willing 24:21 traditional 17:22 44:14 47:12 wants 11:1 16:15 wish 26:15,16 transaction 3:10 9:6 unclear 34:15 34:2 48:25 witness 21:12 28:5 9:8 uncomfortable 28:11 warranty 4:8,9,10,11 51:12 transcribed 51:8 understand 28:11 5:15,18 9:18 24:18 Wolf 1:15 2:10,12 Transcriber's 1:7 33:12 48:3 39:16 42:14,18 7:18 16:21,23 51:1 understands 22:14 wasn't 4:2 42:10 25:20,24 27:13 transcript 1:7,24 Understood 31:4 watch 17:12 28:9,14,17 29:8 13:1 51:9,10 undisputed 14:21 water 49:15 30:4,17 31:1,4 transcription 1:20,20 unfair 22:6 way 5:25 7:2 8:25 36:16,20 37:12 1:24 unheard 11:12 33:19 36:5,8 44:13 41:13 42:23 47:11 Transcriptionist unique 34:5,6 35:19 45:19 47:7 49:6,9 47:18 1:18 unlock 22:22 49:13 won't 9:12 transfer 39:19 unnecessarily 13:3 ways 14:12 word 14:16 treatise 19:24 unprecedented 16:11 wayside 26:6 words 42:13 treatment 3:21 5:12 unrelated 8:11 20:1 we'll 3:17 8:18 10:2 work 3:2,3 5:1 28:19 trial 11:14,21,24 25:22,25 27:1,2 46:17 50:1 32:13 33:25 36:8 14:11 21:10,12 unusable 4:5 we're 2:18 3:19 6:12 37:7 29:12 33:14 use 21:11 22:22 9:20,20,21,22 13:2 working 30:18 31:21 tried 6:16 28:19 23:22 24:5 39:17 14:17 15:11 35:2 worried 17:12 trivial 29:6,6,7 47:6 44:22 45:14 50:4 worth 26:4 true 23:18 40:7 51:9 we've 6:11,18 15:24 wouldn't 14:5 21:3 truth 40:6 V 19:23 23:18 25:24 21:17 22:19,19,20 ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 294 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 298 of 426 Total Pages:(338 of 466) 6 MICHAEL A. SCOTT v. CRICKET COMMUNICATIONS, LLC, May 23, 2017 Before ALTHEA M. HANDY, Judge Page 64 22:20,21,22 17 1:4 19:9 30:7 5 write 50:12 18 30:8 5-609 21:11 written 1:6 50 1:5 wrong 36:20 38:19 2 53 1:6 38:19 40:19 2-231 3:20 7:13 wrote 36:25 37:1,8 19:12 6 38:16 40:5,9 2-231(a)(1) 4:17 608(b) 15:11 2-231(f) 26:10 609(b) 15:11 X 2000 18:21,22 27:25 28:3 30:8 7 Y 2001 17:18 700 37:21 yeah 35:24 48:1 2003 18:23 year 22:4 2007 1:21 18:24 8 years 6:12 19:9,19 2015 42:3 81818 37:3,13 30:7 2016 42:3 82898 37:15 yesterday 21:24 2017 1:12 51:5,13 York 24:25 31:17,18 21209 1:21 9 33:9 23 1:12 18:19,20,21 9 1:5 You'd 21:2 19:6,12 93 1:7 you'll 9:4 23rd 51:5 you're 15:6,23 22:4 24-C-15-004918 1:5 28:8,10,11,15 30:8 51:4 30:13,24,25 35:13 28 1:5 you've 29:3 3 Z 3 1:3,4 30 6:17 19:19 0 31 1:4 1 32 1:5 37 1:4 10 40:20 10:01:38 2:2 4 10:23:11 16:17 4 32:11 10:47:04 32:15 40-age 6:17 10:52:54 36:9 42 1:4 11:00:54 40:24 4363 32:20 11:14:12 40:25 4368 32:19,19 11:28:24 50:22 4383 32:20 120 33:19,24 38:23 44 1:5 14 41:2 45 44:23 15 22:4 45,000 6:2 10:5 15th 51:13 47,000 10:11 11:3 16 10:23 19:18 35:23 44:23 50:2 36:3 48 1:4 160 33:19,24 39:14 ACCUSCRIBES TRANSCRIPTION SERVICE 410-466-2033 667-210-2925 JA 295 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 299 of 426 Total Pages:(339 of 466) EXHIBIT B JA 296 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 300 of 426 Total Pages:(340 of 466) JA 297 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 301 of 426 Total Pages:(341 of 466) JA 298 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 302 of 426 Total Pages:(342 of 466) JA 299 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 303 of 426 Total Pages:(343 of 466) JA 300 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 304 of 426 Total Pages:(344 of 466) JA 301 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 305 of 426 Total Pages:(345 of 466) JA 302 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 306 of 426 Total Pages:(346 of 466) EXHIBIT C JA 303 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 307 of 426 Total Pages:(347 of 466) JA 304 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 308 of 426 Total Pages:(348 of 466) JA 305 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 309 of 426 Total Pages:(349 of 466) JA 306 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 310 of 426 Total Pages:(350 of 466) JA 307 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 311 of 426 Total Pages:(351 of 466) UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND (Northern Division) TIM BOND, On his own behalf and on behalf of All others similarly situated, Plaintiffs, v. Case No. 1:15-cv-00923-MJG CRICKET COMMUNICATIONS, LLC, Defendant. Notice of Appeal Movant/Intervenor, Michael Scott ("Mr. Scott"), pursuant to Federal Rule of Appellate Procedure 3, hereby appeals to the United States Court of Appeals for the Fourth Circuit the October 26, 2017 Order of this Court in this case (Doc. No. 47), denying Mr. Scott's motion to intervene. Respectfully submitted, /s/Martin E. Wolf Benjamin H. Carney (Bar No. 27984) BCarney@GWCfirm.com Martin E. Wolf (Bar No. 09425) MWolf@GWCfirm.com GORDON, WOLF & CARNEY, CHTD. 100 W. Pennsylvania Ave., Suite 100 Towson, Maryland 21204 410-825-2300 410-825-0066 fax Attorneys for Michael Scott and the Certified Class JA 308 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 312 of 426 Total Pages:(352 of 466) CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 1st day of November, 2017, copies of the foregoing Notice of Appeal were served by ECF and first class mail, postage prepaid on counsel for the Parties as set forth below: Cory L. Zajdel Archis A. Parasharami Z Law LLC Ann Marie Duffy 2345 York Road, Suite B-13 Mayer Brown LLP Timonium, Maryland 21093 1999 K St. NW Washington, DC 20006 Oren S. Giskan Catherine Anderson John Edward McCann, Jr. Giskan Solotaroff Anderson and Stewart LLP Daniel R. Lanier 11 Broadway Lynn C. Schlie Suite 2150 Miles and Stockbridge PC New York, New York 10004 100 Light Street Baltimore, Maryland 21202 Attorneys for Plaintiff Tim Bond Attorneys for Defendant Cricket Communications, LLC /s/Martin E. Wolf JA 309 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 313 of 426 Total Pages:(353 of 466) UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND (Baltimore Division) TIM BOND, on his own behalf and on behalf of all others similarly situated, Plaintiffs, Civil Action No. 1:15-cv-923-MJG v. CRICKET COMMUNICATIONS, LLC, Defendant. JOINT STATUS REPORT Plaintiff Tim Bond and Defendant Cricket Communications, LLC, by and through their respective undersigned counsel, submit this joint status report pursuant to the Court Order dated October 26, 2017 (Dkt. No. 47). Counsel state as follows: 1. Counsel for Bond and Cricket intend to present a final settlement agreement to the parties for execution on or before Monday, November 6, 2017. 2. Counsel for Plaintiff intends to file a Motion for Preliminary Approval on or before Monday, November 13, 2017. Respectfully submitted, 1 JA 310 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 314 of 426 Total Pages:(354 of 466) Dated: November 2, 2017 /s/ Cory L. Zajdel (signed by Archis /s/ Archis A. Parasharami A. Parasharami with permission of Archis A. Parasharami Cory L. Zajdel) Mark W. Ryan Cory L. Zajdel (Fed. Bar No. 28191) MAYER BROWN LLP Z Law, LLC 1999 K St. NW 2345 York Road, Ste. B-13 Washington, DC 20006 Timonium, MD 21093 Tel: (202) 263-3000 (443) 213-1977 Fax: (202) 263-3300 clz@zlawmaryland.com aparasharami@mayerbrown.com mryan@mayerbrown.com Oren S. Giskan Catherine E. Anderson Counsel for Defendant Solotaroff Anderson & Stewart, LLP 217 Centre Street, Sixth Floor New York, NY 10013 ogiskan@gslawny.com canderson@gslawny.com Counsel for Plaintiff 2 JA 311 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 315 of 426 Total Pages:(355 of 466) IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND (Northern Division) Tim Bond On his own behalf and on behalf of all others similarly situated, Plaintiff, Case Action No. 1:15−cv−923—MJG v. Cricket Communications, LLC Defendant. Motion for Stay Pending Appeal Proposed Intervenor, Michael Scott ("Mr. Scott") moves for a stay of proceedings pending his appeal of this Court's October 26, 2017 Order denying Mr. Scott's Motion to Intervene (ECF#47). As described in the accompanying memorandum of law, which is incorporated herein, a decision last week from the U.S. Court of Appeals for the Eleventh Circuit reversed a District Court's denial of a motion to intervene in materially identical circumstances to those presented here, demonstrating that Mr. Scott's appeal is likely to succeed and supporting a brief stay pending the resolution of that appeal. See Tech. Training Assocs., Inc. v. Buccaneers Ltd. P'ship, No. 17-11710, 2017 WL 4819371, at *1 (11th Cir. Oct. 26, 2017) ("Tech Training").1 1 Tech Training was issued the same day as this Court's order denying Mr. Scott's motion to intervene, so Mr. Scott was not able to bring it to the Court's attention before the decision on that motion. JA 312 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 316 of 426 Total Pages:(356 of 466) Moreover, each of the factors to be considered in connection with a motion for stay pending appeal favors a stay. See Long v. Robinson, 432 F.2d 977, 979 (4th Cir. 1970); Plato v. Roudebush, 397 F. Supp. 1295, 1311 (D. Md. 1975). WHEREFORE, for the reasons set forth above and in the accompanying memorandum of law, Mr. Scott respectfully requests that the Court stay further proceedings in this case pending the resolution of Mr. Scott's appeal of the denial of his motion to intervene. Respectfully submitted, /s/Benjamin H. Carney Benjamin H. Carney (Bar No. 27984) BCarney@GWCfirm.com Martin E. Wolf (Bar No. 09425) MWolf@GWCfirm.com GORDON, WOLF & CARNEY, CHTD. 100 W. Pennsylvania Ave., Suite 100 Towson, Maryland 21204 410-825-2300 410-825-0066 fax Attorneys for Michael Scott and the Certified Class 2 JA 313 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 317 of 426 Total Pages:(357 of 466) IN THE UNITED STATES DISTRICT FOR THE DISTRICT OF MARYLAND (Baltimore Division) TIM BOND on his own behalf and on behalf of all others similarly situated, Plaintiffs, v. CRICKET COMMUNICATIONS, LLC Case No. 1:15-cv-923-MJG Defendant. MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT, AND FOR APPROVAL OF THE FORM, MANNER AND ADMINISTRATION OF NOTICE Plaintiff Tim Bond, by and through undersigned counsel, respectfully moves the Court for preliminary approval of a class Settlement between Bond and the Settlement Class he seeks to represent, and Defendant Cricket Communications, LLC ("Cricket"). Cricket consents to the relief requested in this motion. As set forth in the attached Proposed Order Preliminarily Approving Settlement, Certifying Class for Settlement Purposes, Appointing Class Counsel and Settlement Administrator, and Setting Schedule with Respect to Notice, Final Approval Hearing, and Administration, Bond proposes the following timetable unless altered by the Court by future Order: Within ten (10) days Cricket to provide the Cricket Database to the after entry of Order Settlement Administrator Within thirty (30) days Settlement Administrator to provide notice to the after entry of Order Settlement Class Within ninety (90) days Deadline for any member of the Settlement Class to file after entry of Order and serve Request for Exclusion or written opposition JA 314 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 318 of 426 Total Pages:(358 of 466) to the settlement, or any motion to intervene At least fourteen (14) days prior Deadline for filing response to any opposition by a to the Final Approval Hearing Settlement Class Member, to file a motion to finally approve the settlement, file a petition for attorney's fees and costs and incentive award One hundred fifteen (115) days Final Approval Hearing on the settlement or more after entry of Order In support of this Motion, Bond relies upon the accompanying Memorandum of Law. WHEREFORE, Bond requests that the Court: (1) preliminarily approve the proposed settlement; (2) certify the Settlement Class for settlement purposes; (3) appoint the undersigned attorneys as Class Counsel; (4) approve the forms of notice to the Settlement Class; and (5) grant such further relief as justice demands. As explained in the accompanying Memorandum of Law, Bond requests that the Court do so only after an order is entered in this Court voiding or vacating the state-court order certifying a class under Maryland state-court rules and appointing class counsel in Scott v. Cricket Communications, LLC, which was pending in state court and now has returned to federal court under Docket Number No. 15-cv-3330 (D. Md.). Respectfully submitted, Z LAW, LLC Dated: November 22, 2017 ________/s/___28191___________________ Cory L. Zajdel, Esq. (Federal Bar No. 28191) 2345 York Road, Suite #B-13 Timonium, Maryland 21093 (443) 213-1977 clz@zlawmaryland.com Oren S. Giskan, Esq. ogiskan@gslawny.com Catherine E. Anderson, Esq. canderson@gslawny.com Giskan Solotaroff Anderson & Stewart, LLP 2 JA 315 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 319 of 426 Total Pages:(359 of 466) 217 Centre Street, 6th Floor New York, NY 10013 (212) 847-8315 Attorneys for Plaintiff 3 JA 316 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 320 of 426 Total Pages:(360 of 466) 6 IN THE UNITED STATES DISTRICT FOR THE DISTRICT OF MARYLAND (Baltimore Division) TIM BOND on his own behalf and on behalf of all others similarly situated, Plaintiffs, v. CRICKET COMMUNICATIONS, LLC Case No. 1:15-cv-923-MJG Defendant. MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT, AND FOR APPROVAL OF THE FORM, MANNER, AND ADMINISTRATION OF NOTICE Plaintiff Tim Bond, the named plaintiff in this nationwide class action, and Defendant Cricket Communications, LLC ("Cricket") have reached a settlement that, if approved, will fully resolve this matter. The Court should grant preliminary approval—and ultimately grant final approval of the Settlement Agreement1—because it is "fair, reasonable, and adequate" under the circumstances. Fed. R. Civ. P. 23(e). In light of the settlement, Cricket consents to the relief requested in this motion for settlement purposes only. The settlement benefits provided under the Settlement Agreement are well tailored to the allegations in this case. The thrust of Bond's allegations is that Cricket sold Code Division Multiple Access ("CDMA") phones to consumers when it knew those would not be usable after Cricket merged with AT&T and discontinued service on its CDMA network. Therefore, it is fitting that this Settlement Agreement grants to all Settlement Class Members who submit a valid 1 A copy of the Settlement Agreement is attached to the proposed Order Preliminarily Approving the Settlement as Exhibit A. JA 317 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 321 of 426 Total Pages:(361 of 466) 6 claim the right to unlock their legacy Cricket phone, so that it can be rendered usable on another CDMA network. Alternatively, Settlement Class members can receive free high-speed data to use with their prepaid Cricket wireless service. Settlement Class Members may submit a claim for relief for each qualifying Cricket CDMA phone they purchased. This relief is appropriate because it allows class members to choose between (1) having their legacy phones unlocked for potential use on other CDMA networks—a benefit tailored to the allegations in this case concerning Cricket's legacy CDMA network; or (2) obtaining free data on Cricket's new network—a benefit that has real and direct value for members of the proposed class who currently use Cricket's wireless service or may use it in the future. Bond believes that this relief reflects a fair resolution of the claims of members of the proposed nationwide Settlement Class, especially given the parties' respective litigation risks and the costs to all sides from continued litigation. In addition to being substantively fair, the Settlement Agreement was reached in a procedurally sound manner. The Settlement Agreement is the product of extensive arms-length negotiations between the parties and their experienced counsel, who were well-informed about the legal and factual issues involved. The parties negotiated the settlement term sheet entirely under the auspices of an experienced mediator, the Hon. Benson E. Legg (Ret.), who is a former Chief Judge of this District. Under Judge Legg's supervision, the parties negotiated over attorney's fees and an incentive award only after reaching agreement on the settlement benefits for class members. Further, the proposed forms of notice are appropriately tailored to give Settlement Class Members the best notice practicable under the circumstances of this case, the terms of the -2- JA 318 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 322 of 426 Total Pages:(362 of 466) 6 settlement including opt-out and objection rights, and class counsel's fee application. The claim form and claim process are straightforward and user-friendly. For these reasons, and the reasons discussed further below, Bond and his undersigned counsel believe the settlement to be in the best interests of the class members and wish to begin the court approval process that is required for all class action settlements. If the Court grants preliminary approval of the settlement, Bond will, at an appropriate time, submit a final motion supporting the fairness of the proposed settlement after the Class Members have received notice and an opportunity to object, comment, or opt-out, and prior to the Court's Final Approval Hearing. I. BACKGROUND This case is a class action brought on behalf of a proposed nationwide class of consumers against Cricket alleging that Cricket sold phones to consumers that it knew would not be usable on its cellular network after Cricket merged with AT&T. Bond alleged in his Complaint that Cricket violated the Magnuson-Moss Warranty Act ("MMWA"), state warranty law, and other consumer protection laws, and committed several common law torts including fraud. ECF #29. This Court has previously compelled Bond to arbitrate all of his claims against Cricket on an individual basis except for the MMWA claim. ECF #18-9. The MMWA claim is the subject of a fully briefed and pending Motion to Compel Arbitration ripe for decision. See ECF #34, 37 and 40. Cricket asserts that the remaining MMWA claim must be arbitrated individually. It further denies all of Bond's claims on the merits, denies any wrongdoing, and denies any liability to Bond or to any Class Member. -3- JA 319 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 323 of 426 Total Pages:(363 of 466) 6 II. PROPOSED SETTLEMENT Bond and Cricket arrived at the proposed settlement in this case after: (1) informal discovery; (2) extensive research into the applicable laws and factual issues; (3) litigating to decision a Motion to Compel Arbitration of Bond's claims other than his MMWA claim; and (4) lengthy and arduous arms-length negotiations spanning many months. Based upon the informal discovery in this case and the representations of Cricket, numerous consumers 2 purchased a locked cellular telephone from Cricket or its authorized agent that was enabled to work on Cricket's legacy CDMA mobile network but would no longer work on Cricket's new network after Cricket's merger with AT&T due to Cricket's decision to migrate to AT&T's Global Systems for Mobile ("GSM") cellular networks. Bond alleges that because Cricket's CDMA phones were locked to Cricket's CDMA cellular network, they became inoperable after the transition from CDMA to GSM cellular networks—meaning that Cricket customers had no opportunity to take their locked CDMA cellular phones to another cellular service provider for activation on other CDMA networks. The Settlement Agreement provides a choice between three forms of non-monetary relief to Class Members who submit a timely and complete claim form - (1) an Unlock Benefit; (2) a Data Benefit; or (3) a Four Month Data Benefit. A Class Member who chooses the Unlock Benefit will be able to unlock their Cricket CDMA cellular phone. This benefit both increases the value of the cellular phone—because unlocked phones are generally more valuable in the marketplace for pre-owned phones than locked phones—and allows the Class Member to activate and use the cellular phone on another cellular provider's network. Alternatively, a Class Member who selects the Data Benefit will receive one (1) gigabyte of additional free high-speed 2 Informal discovery revealed there are 114,468 potential Settlement Class members in Maryland alone. -4- JA 320 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 324 of 426 Total Pages:(364 of 466) 6 data on a new line of Cricket Service without paying an activation fee. Finally, a Class Member that selects the Four Month Data Benefit will receive one Gigabyte of additional free high-speed data on a new or existing line of Cricket Service for four (4) subsequent consecutive months of timely prepaid Cricket Service. As will be briefed in more detail prior to any Final Approval Hearing, each of these three benefits has a value between at least thirty five and forty dollars ($35.00 - $40.00). In addition, as part of the Settlement of this litigation, Cricket has agreed to pay all costs of administering this Settlement (including the costs of the settlement administrator and the costs associated with mailing or emailing individual notice to each Class Member). Moreover, Cricket has agreed to pay any attorneys' fees and expenses approved by the Court, not exceeding three hundred thousand dollars ($300,000.00), and any incentive award approved by the Court but not to exceed three thousand five hundred dollars ($3,500.00). Accordingly, neither the incentive award, attorney's fees and expenses or the settlement administration costs will dilute the Settlement benefits provided to Class Members. III. ARGUMENT IN SUPPORT OF PRELIMINARY APPROVAL The Parties request that the Court: (i) preliminarily approve the terms of the Settlement Agreement; (ii) conditionally certify the Settlement Class for purposes of settlement only; (iii) appoint Named Plaintiff Tim Bond as the Settlement Class Representative; (iv) appoint the law firms of Z Law, LLC and Giskan Solotaroff Anderson & Stewart, LLP as Class Counsel; (v) approve the form, content, and method of delivering notice to the Settlement Class as set out in the Settlement Agreement as "the best notice that is practicable under the circumstances" (Fed R. Civ. P. 23(c)(2)(B)); and (vi) schedule a final approval hearing in accordance with the deadlines -5- JA 321 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 325 of 426 Total Pages:(365 of 466) 6 proposed in the proposed Preliminary Approval Order. The Settlement Agreement represents the Parties' best efforts to settle this litigation on terms that are fair and reasonable under the circumstances and that adequately protect the interests of absent class members. For those reasons, and as further discussed below, the Settlement Agreement readily meets the threshold requirements for preliminary approval, especially in light of the "recognized public policy in favor of private settlement of disputes." CX Reinsurance Co. Ltd. v. Kirson, 2017 WL 1078041, at *3 (D. Md. Mar. 22, 2017) (citing Crandell v. United States, 703 F.2d 74, 75 (4th Cir. 1983)); Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 116-17 (2d Cir. 2005) (noting the "strong judicial policy in favor of settlements, particularly in the class action context."); Norfolk Shipbuilding & Drydock Corp. v. Nance, 858 F.2d 182, 188 (4th Cir. 1988) (noting "the general federal policy in favor of settlements"). A. The Settlement Agreement Should Be Preliminarily Approved At the preliminary approval stage, "the court's goal. . . is to assess whether there is probable cause to submit the proposal to members of the class and to hold a full-scale hearing on its fairness." In re Titanium Dioxide Antitrust Litig., 2013 WL 5182093, at *3 (D. Md. Sept. 12, 2013) (quotation marks omitted). "[T]he court's inquiry is whether there has been a basic showing that the Proposed Settlement Agreements are sufficiently within the range of reasonableness so that notice should be given." Id. (quotation marks and ellipsis omitted); see also Horton v. Merrill Lynch, Pierce, Fenner & Smith, 855 F. Supp. 825 (E.D.N.C. 1994) (explaining that the Court need only take a preliminary look at the settlement agreement to insure that it is within "the range of possible approval"); see also MANUAL FOR COMPLEX LITIGATION (Fourth) § 21.632 at 320 n.976 (2004) (endorsing the "range of possible approval" standard for -6- JA 322 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 326 of 426 Total Pages:(366 of 466) 6 preliminary approval). "The preliminary fairness review considers (1) the 'fairness' of the settlement, and (2) the 'adequacy' of the settlement." Titanium Dioxide, 2013 WL 5182093, at *3. In determining the fairness of the settlement, the court "considers the following factors: whether the proposed settlement is the product of good faith bargaining at arm's length; the posture of the case at settlement; the extent and sufficiency of discovery conducted; counsel's experience with similar litigation and their relevant qualifications; and any pertinent circumstances surrounding the negotiations." Id. And in determining the adequacy of the settlement, the court considers "the relative strength of the plaintiffs' case on the merits, weaknesses in the plaintiffs' case, including proof-related obstacles or particularly strong defenses; the cost of additional litigation; defendants' ability to pay a judgment; and any opposition to the settlement." Id. at *4. Here, the proposed settlement easily clears the bar as both fair and adequate. 1. Fairness The proposed settlement is fair to the class. "In a class action settlement, there is a presumption of fairness, reasonableness, and adequacy when it is achieved through arm's length negotiations between experienced and capable counsel after meaningful discovery." Case v. French Quarter III LLC, 2015 WL 12851717, at *7 (D.S.C. July 27, 2015). Each of those factors is true of the Settlement in this case. Counsel negotiated the settlement at arm's length over the course of months, with the supervision and assistance of the Hon. Benson E. Legg. Both plaintiff's and defense counsel have extensive experience in class action litigation, having litigated and settled numerous consumer class actions. And the parties have exchanged sufficient information to allow for a full evaluation of the merits of Bond's claims. -7- JA 323 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 327 of 426 Total Pages:(367 of 466) 6 The settlement accordingly reflects the independent and experienced judgment of counsel for both Parties that its terms are fair and reasonable under the circumstances, which is powerful evidence that the settlement satisfies the fairness requirement. Lomascolo v. Parsons Brinckerhoff, Inc., 2009 WL 3094955, at *10 (E.D. Va. Sept. 28, 2009) ("A court is entitled to rely on the judgment of experienced counsel for the parties in performing th[e] balancing task [of settlement] and absent fraud, collusion or the like, a court should be hesitant to substitute its own judgment for that of counsel." (citing Flinn v. FMC Corp., 528 F.2d 1169, 1173 (4th Cir. 1975))). 2. Adequacy The settlement is also adequate in light of the weaknesses in Bond's case and the costs of additional litigation. The only claim pending before the Court is Bond's MMWA claim. Cricket has filed and briefed a pending Motion to Compel Arbitration that would require that claim to be resolved in individual arbitration and which, if granted, would eliminate the opportunity for any Class Member other than Bond to benefit from this litigation. Although Bond maintains that MMWA claims are not arbitrable, the risk that Cricket's motion will be granted is significant, given the numerous courts that have compelled MMWA claims to arbitration. See ECF # 34-1 at 4-5 (collecting cases). Even apart from the arbitration issue, Bond and Class Members faced substantial impediments to recovery that justify settlement here. Most notably, Cricket's efforts to mitigate any potential damages arising from its transition from CDMA to the GSM technology—including by offering trade in credits on certain phones and, in some instances, providing brand new identical replacement phones compatible with the GSM network—would reduce the amount of any recovery for many class members. -8- JA 324 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 328 of 426 Total Pages:(368 of 466) 6 In light of the risks of Bond's claim and the potential cost of litigating it on the merits, the substantial benefit that the Settlement provides to class members easily falls in the "range of possible approval." Bond's complaint alleges that each Class Member purchased a cellular phone between July 12, 2013 and March 13, 2014 and was not able to use their cellular phone for the expected usable life of the cellular phone. But Bond recognized that Cricket had at least two responses: First, that each Class Member was able to use his or her cellular phone prior to the date that Cricket shut down its CDMA cellular network; and second, that the cellular phone retained some value even though it was not usable "as is" on a cellular network. Cricket shut down its CDMA network at different times in different locations—including, for example, in Maryland in March 2015 and in California in September 2015. For this reason, a class member in Maryland would have been able to use his or her cellular phone for at least one year but potentially up to two years. And a class member in California was able to use his or her cellular phone for at least one year and a half but potentially more than two years. The phones at issue in this case ranged in price from approximately $20 to approximately $599. Consumers that purchased phones at the lower end of the cost spectrum, therefore, will receive close to if not more than the full original value of their phones under the Settlement, despite being able to use them for a year or more. And consumers that purchased $300 phones stand to receive compensation valued at around half of their potential claim. 3 This is plainly a 3 The approximate value of an individual Class Member's claim can be estimated by starting with the purchase price of the cellular phone and subtracting amounts for depreciation and the continuing value of the cellular phone. Bond purchased his phone for $300 and was able to use his phone for one and a quarter (1.25) years. Using general depreciation standards for cellular phones after 1.25 years Bond's phone was worth an estimated $120.00 and has a continuing value of forty dollars $40.00. This makes Bond's outstanding claim worth $80.00. The Settlement will provide him with up to $40.00 in benefits (50% recovery) or the ability to -9- JA 325 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 329 of 426 Total Pages:(369 of 466) 6 substantial benefit to the class and one that merits preliminary approval. B. The Settlement Class Should Be Provisionally Certified For The Limited Purpose Of Settlement The Parties also request that the Court provisionally certify the Settlement Class for settlement purposes only. Provisional certification will permit the Claims Administrator to provide notice of the proposed settlement to the Settlement Class to inform them of the existence and terms of the Settlement Agreement, their right to opt-out or object, and the date, time and location of the formal fairness hearing. The Settlement Class meets the requirements of Fed R. Civ. P. 23(a) in a settlement context because: (1) the thousands of potential members are too numerous to be joined; (2) class members share a common interest in seeking redress for alleged violations of the MMWA; (3) Bond's interest in his claim under the MMWA is typical of the Settlement Class Members' interest in pursuing damages for their own MMWA claims; and (4) the Class Representative is adequate because he has no interests antagonistic to the Class's interests and is represented by experienced counsel. Furthermore, the Settlement Class meets the requirements of Fed R. Civ. P. 23(b)(3) in a settlement context. 1. Joining all members of the class is impracticable Fed. R. Civ. P. 23(a)(1) "requires impracticability of joinder of all members of the purported class. Impracticability refers only to difficulty, not impossibility." Peoples v. Wendover Funding, Inc., 179 F.R.D. 492, 497 (D. Md. 1998). "[G]enerally, courts find classes of at least 40 members sufficiently large to satisfy the impracticability requirement." Id. As unlock his phone for potential use on another cellular network. - 10 - JA 326 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 330 of 426 Total Pages:(370 of 466) 6 noted above, the Settlement Class here consists of numerous consumers and thus easily satisfies the impracticability requirement. 2. There are questions of law and fact common to the class Fed R. Civ. P. 23(a)(2) requires that there be questions of law or fact common to the class. This in turn means that class members' claims "must depend upon a common contention." Wal-Mart Stores Inc. v. Dukes, 564 U.S. 338, 350 (2011). Here, such common questions include whether Cricket allegedly violated the MMWA by selling CDMA phones that would be inoperable after Cricket's merger with AT&T. 3. Bond's claims are typical of those of the proposed class Fed. R. Civ. P. 23(a)(3) requires that the "claims. . . of the representative parties [be] typical of the claims. . . of the class." "The test for determining typicality is whether the claim or defense arises from the same course of conduct leading to the class claims, and whether the same legal theory underlies the claims or defenses." Peoples, 179 F.R.D. at 498. Bond's claim satisfies this requirement for purposes of settlement. Bond alleges and Cricket's records confirm that Bond purchased a Samsung Galaxy 4S CDMA phone from an authorized agent of Cricket. The class similarly consists of persons who purchased CDMA handsets from Cricket or its authorized agents that allegedly became unusable after the Cricket-AT&T merger. 4. Bond and Class Counsel will fairly and adequately protect the interests of the Proposed Class The adequacy of representation requirement is satisfied because Bond's interests are co- extensive with, and not antagonistic to, the interests of the Settlement Class and because Bond has an interest in this case via his individual MMWA claim for damages against Cricket. See Fed. R. Civ. P. 23(a)(4); see also In re Kirschner Med. Corp. Sec. Litig., 139 F.R.D. 74, 79 (D. - 11 - JA 327 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 331 of 426 Total Pages:(371 of 466) 6 Md. 1991). Further, Bond is represented by qualified and competent counsel who has extensive experience and expertise in prosecuting complex class actions, including consumer cases. 5. The requirements of Fed. R. Civ. P. 23(b) are met The Settlement Class also satisfies the requirements of Fed. R. Civ. P. 23(b)(3) for purposes of settlement. "[C]lass-wide issues predominate if resolution of some of the legal or factual questions that qualify each class member's case as a genuine controversy can be achieved through generalized proof, and if these particular issues are more substantial than the issues subject only to individualized proof." Moore v. PaineWebber, Inc., 306 F.3d 1247, 1252 (2d Cir. 2002) (citations omitted). Here, predominance is satisfied for purposes of settlement because Bond claims that Cricket engaged in a common course of conduct—namely, allegedly violating the MMWA by selling CDMA handsets that breached applicable warranties. While Cricket might contend in litigation that the predominance requirement is not satisfied because it would assert a variety of defenses, it is waiving all such defenses for settlement purposes only. Finally, class resolution here is superior to other methods because resolving these potential complaints in one fell swoop through a class-wide settlement would achieve "economies of time, effort, and expense, and promote. . . uniformity of decision as to persons similarly situated." Amchem Prods. v. Windsor, 521 U.S. 591, 614 (1997). IV. THE PROPOSED METHOD OF CLASS NOTICE IS APPROPRIATE Following preliminary approval, "the court must direct to class members the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort." Fed. R. Civ. P. 23(c)(2)(B). 4 Under Rule 23(c)(2)(B), 4 Fed R. Civ. P. 23(e)(1) also requires that class members receive notice of a proposed - 12 - JA 328 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 332 of 426 Total Pages:(372 of 466) 6 notice must plainly inform class members of: (i) the nature of the action; (ii) the definition of the class certified; (iii) the class claims, issues or defenses; (iv) that a class member may enter an appearance through an attorney if the member so desires; (v) that the court will exclude from the class any member who requests exclusion; (vi) the time and manner for requesting exclusion; and (vii) the binding effect of a class judgment. Id. Notice is adequate if it is "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Eisen v. Carlisle & Jacqueline, 417 U.S. 156, 174 (1974). The parties respectfully submit that the Settlement Agreement establishes a notice procedure that satisfies these standards. First, the proposed Email Notice and Direct Mail Notice (Exhibits A and B) clearly communicate the information required by Fed R. Civ. P. 23(c)(2)(B)(i)-(vii). Second, the Settlement Agreement calls for a process (described in Part V, infra) that the parties anticipate will provide individual notice to the vast majority of Settlement Class members. The Settlement Administrator will also post the Complaint, Long Form Notice (Exhibit C), and the Settlement Agreement to be made available on a dedicated Settlement Website to be administered by the Settlement Administrator. As set forth in the Settlement Agreement, Cricket is required to construct and compile a Cricket Database of information from its records, and that Database will be verified by the Settlement Administrator. In short, Class Counsel has proposed forms and manner of notice to Class Members that deliver the best practicable notice to Class Members of the proposed Settlement and, if desired, settlement "in a reasonable manner." Here, where the Parties propose to give notice of both certification and proposed settlement, the notice must satisfy Rule 23(c)(2). See, e.g., Beaulieu v. EQ Indus. Servs., Inc., 2009 WL 2208131, at *27 (E.D.N.C. July 22, 2009). - 13 - JA 329 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 333 of 426 Total Pages:(373 of 466) 6 their right to participate in the settlement approval process. V. PROPOSED PROCEDURE FOR PROVIDING NOTICE TO THE CLASS Bond proposes the following procedure for notice in this case: 1. The parties have agreed to request that the Court approve Kurtzman Carson Consultants, which has significant and extensive experience administering and managing class action settlements, as Settlement Administrator. The Settlement Administrator will obtain Settlement Class Members' email and/or postal addresses, create and maintain a website that includes relevant case documents, all notices, and a secure portal to submit claim forms, provide Notice to the Class, review claims made, follow up with Class Members who provide an incomplete claim form, and notify Class Members how to obtain their Settlement Benefits following final approval. 2. The Settlement Administrator will provide Email Notice to all Settlement Class Members for whom a complete email address is available in the Cricket Database. The Settlement Administrator will provide two follow up Email Notices to any Settlement Class Member that has not yet submitted a claim during the Claim Period. 3. The Settlement Administrator will provide a Direct Mail Notice to any Settlement Class Member for whom a complete email address in not listed in the Cricket Database. Prior to providing the Direct Mail Notice the Settlement Administrator will use the United States Postal Service National Change of Address Database to determine if any Settlement Class Member has a more current address than that contained in the Cricket Database. Bond believes that these proposed methods of notice are likely to reach each Class Member who can reasonably be found. - 14 - JA 330 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 334 of 426 Total Pages:(374 of 466) 6 VI. PREREQUISITE TO ENTERING AN ORDER PRELIMINARILY APPROVING THE NATIONWIDE CLASS SETTLEMENT As the Court is aware, Scott v. Cricket Communications, LLC, No. 15-cv-3330 (D. Md.), is currently pending before Judge Russell of this District. That case, initially filed in state court, was removed by Cricket to federal court, but Judge Russell remanded the case to state court in August 2016. Cricket sought to appeal the order of remand to the Fourth Circuit, and that court ultimately vacated Judge Russell's remand order on July 28, 2017. In the meantime, on June 9, 2017, the Circuit Court of Baltimore City certified a class of Maryland Citizens with similar MMWA claims and appointed Class Counsel in Scott v. Cricket Communications, LLC, Case No. 24-C-15-004918 (Cir. Ct. Balt. City). The Scott action has now returned to federal court following the Fourth Circuit's vacatur of the order remanding that action to state court. Scott v. Cricket Communications, LLC, Case No. 15-cv-3330 (D. Md.) (ECF #43). In Scott, which is currently assigned to Judge Russell, Cricket has moved to vacate the state-court order certifying the class of Maryland Citizens and appointing Class Counsel. Bond negotiated the nationwide class settlement in this case on the assumption that the state court order certifying the Maryland Citizens Class and appointing Class Counsel was either void or will be vacated in light of the return of the Scott lawsuit to federal court. That assumption is reflected in the Settlement Agreement itself, which states (at ¶ 14.02(a)) that Cricket has the unilateral right to terminate the Settlement Agreement if "[t]he order certifying a class of Maryland citizens in Scott. . . is not vacated." For this reason, this Court should not rule on this Motion for Preliminary Approval unless and until an order is entered in this Court in the Scott action voiding or vacating the state court class-certification - 15 - JA 331 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 335 of 426 Total Pages:(375 of 466) 6 order. If, however, this Court determines that the state-court order certifying the class of Maryland Citizens is a valid and binding order in this Court, Bond will withdraw this Motion for Preliminary Approval. VII. CONCLUSION For the reasons stated herein, Bond respectfully submits that this Court should grant the Motion for Preliminary Approval and approve the form and manner of notice to the Settlement Class, but that it should do so only after an order is entered in this Court voiding or vacating the order certifying the class of Maryland Citizens and appointing Class Counsel in the Scott litigation. Respectfully submitted, Z LAW, LLC Dated: November 22, 2017 ________/s/___28191___________________ Cory L. Zajdel, Esq. (Federal Bar No. 28191) 2345 York Road, Suite #B-13 Timonium, Maryland 21093 (443) 213-1977 clz@zlawmaryland.com Oren S. Giskan, Esq. ogiskan@gslawny.com Catherine E. Anderson, Esq. canderson@gslawny.com Giskan Solotaroff Anderson & Stewart, LLP 217 Centre Street, 6th Floor New York, NY 10013 (212) 847-8315 Attorneys for Plaintiff - 16 - JA 332 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 336 of 426 Total Pages:(376 of 466) IN THE UNITED STATES DISTRICT FOR THE DISTRICT OF MARYLAND (Baltimore Division) TIM BOND on his own behalf and on behalf of all others similarly situated, Plaintiffs, v. CRICKET COMMUNICATIONS, LLC Case No. 1:15-cv-923-MJG Defendant. [PROPOSED] ORDER PRELIMINARILY APPROVING SETTLEMENT; CERTIFYING CLASS FOR SETTLEMENT PURPOSES; APPOINTING CLASS COUNSEL AND SETTLEMENT ADMINISTRATOR; AND SETTING SCHEDULE WITH RESPECT TO NOTICE, FINAL APPROVAL HEARING, AND ADMINISTRATION After review and consideration of the Settlement Agreement and all exhibits thereto ("the Agreement") dated November 14, 2017 (attached as Exhibit A to this Order), relating to claims raised against Defendant Cricket Communications, LLC ("Cricket" or "Defendant"), and upon joint application of Plaintiff Tim Bond ("Representative Plaintiff") and Cricket (collectively the "Parties" in the above-referenced "Action"), with good cause appearing, THIS COURT FINDS and ORDERS as follows: 1. The terms of the Agreement, and the Settlement provided for therein, are preliminarily approved as fair, reasonable and adequate, subject to further consideration thereof at the Final Approval Hearing described at Paragraph 23 of this Order. 2. The definitions set forth in the Agreement are hereby incorporated by reference into this Order. 3. The Court has jurisdiction over the subject matter of the Action and the Parties, JA 333 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 337 of 426 Total Pages:(377 of 466) including all Settlement Class Members, and venue is proper in this District. 4. For purposes of this settlement only, and without prejudice to Cricket's right to contest class certification in the event that the proposed Settlement is not fully implemented, the Court finds that the requirements of Rule 23(a) and Rule 23(b)(3) of the Federal Rules of Civil Procedure are satisfied and in particular finds that Bond and Class Counsel are adequate representatives of the Settlement Class. 5. For purposes of this Settlement only, and without prejudice to Cricket's right to contest class certification in the event that the proposed Settlement is not fully implemented, the proposed settlement set forth in the Agreement is preliminarily approved because it is within the range of approval as fair, reasonable, and adequate, and accordingly, notice of the Settlement should be given to members of the Settlement Class (as defined in the following paragraph). 6. The Court hereby provisionally certifies the following Settlement Class in accordance with the Agreement, and pursuant to FED. R. CIV. P. 23(a) and FED. R. CIV. P. 23(b)(3), for settlement purposes only: All persons nationwide during the period July 12, 2013, to [the date of preliminary court approval of the settlement agreement], who purchased a CDMA handset from Cricket or through its authorized agents. Excluded from the settlement class are: (i) Cricket, any entity in which Cricket has a controlling interest or which has a controlling interest in Cricket, and Cricket's legal representatives, predecessors, successors, and assigns; (ii) governmental entities; and (iii) the Court presiding over any motion to approve the settlement. 7. For the purpose of this preliminary approval and all matters relating to the Settlement of this Action, and without prejudice to Cricket's right to contest the appointment of Bond as the representative of the Settlement Class and/or the appointment of Class Counsel in the event that the proposed Settlement is not fully implemented, until further order of the Court, 2 JA 334 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 338 of 426 Total Pages:(378 of 466) Plaintiff Tim Bond shall be the Representative of the Settlement Class and Representative Plaintiff's counsel of record is appointed as counsel for the Settlement Class ("Class Counsel"). The law firms representing the Class and who shall comprise Class Counsel are: Cory L. Zajdel (Lead Class Counsel) Z Law, LLC 2345 York Road, Suite #B-13 Timonium, MD 21093 Oren S. Giskan, Esq. Catherine E. Anderson, Esq. Giskan Solotaroff Anderson & Stewart, LLP 217 Centre Street, 6th Floor New York, NY 10013 8. Kurtzman Carson Consultants ("Settlement Administrator") is hereby appointed to serve as Settlement Administrator. 9. Defendant is hereby Ordered to prepare and provide to the Settlement Administrator the Cricket Database within ten (10) days after the entry of this Order in readable, searchable and unlocked electronic form. 10. The Settlement Administrator shall carry out all duties and responsibilities of the Settlement Administrator specified in the Agreement; maintain the confidentiality of all Confidential Material; and use the information contained in the Cricket Database solely for purposes of implementing this Settlement and for no other purposes whatsoever. 11. The parties, Cricket's Counsel, and Class Counsel shall comply with the various provisions of the Agreement, which are incorporated, as such requirements pertain to the parties, Cricket's Counsel, and Class Counsel. 12. The Exhibits to the Settlement Agreement: Email Notice Form (Exhibit A); Direct Mail Notice Form (Exhibit B); Long Form Notice (Exhibit C); Online Claim Form and Instructions (Exhibit D); and Mail-in Claim Form and Instructions (Exhibit E), are hereby 3 JA 335 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 339 of 426 Total Pages:(379 of 466) approved as to form. 13. Within thirty (30) days after the entry of this Order, pursuant to the procedures detailed in the Agreement, the Settlement Administrator shall provide notice of this Settlement and of the Final Approval Hearing to all potential Settlement Class Members by electronic or direct mail to each person identified in the Cricket Database a copy of the Class Notice, substantially in the forms attached to the Agreement ("Class Notice Date"). 14. The reasonable costs and expenses of printing, preparing and mailing the Class Notice, and the reasonable costs and expenses of the Settlement Administrator, and other related administrative expenses shall be borne by Defendant. 15. Prior to the Final Approval Hearing described in paragraph 23 below, Class Counsel shall serve and file a sworn statement of the Settlement Administrator evidencing compliance with the provisions of this Order relating to the Class Notice after Cricket has reviewed the Settlement Administrator's sworn statement. 16. Notice to potential Settlement Class Members in accordance with the provisions of the Agreement and paragraph 13 of this Order is hereby found to be: (a) the best Notice practicable under the circumstances; (b) valid, due and sufficient notice of this Order to all persons affected by and/or entitled to participate in the Settlement; and (c) in full compliance with the notice requirements of FED. R. CIV. P. 23 and due process to all persons entitled to such Notice. 17. Any Settlement Class Member wishing to be excluded from the Settlement Class shall mail a request for exclusion ("Request for Exclusion"), pursuant to Section 10 of the Agreement, to the Settlement Administrator, postmarked no later than sixty (60) days following the Class Notice Date. Requests for exclusion that do not include all required information and/or 4 JA 336 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 340 of 426 Total Pages:(380 of 466) are not transmitted as to the instructions set forth in the Class Notice will not be honored. Upon receipt, the Settlement Administrator shall forward a copy of any request for Exclusion to Class Counsel and to counsel for Cricket within seven (7) calendar days after the Opt-Out Deadline. Such request shall set forth: the name, address, and telephone number of the Settlement Class Member, and contain the words "opt-out," "exclusion," or other words clearly indicating an intent not to participate in the Settlement. Requests for exclusion shall be deemed to have been made in each and every capacity in which the person requesting the exclusion is acting. Any Settlement Class Member who does not properly and timely request exclusion shall be included in the Settlement Class and shall be bound by the determinations of the Court, and any Final Judgment entered in the Action, if this Settlement receives Final Approval from the Court. The specific date and deadline for requesting exclusion by a Settlement Class Member shall be set forth in the Class Notice. 18. At least seven (7) days prior to the Final Approval Hearing the Settlement Administrator shall file with the Court a sworn statement listing all persons who have submitted timely requests for exclusion. 19. The Settlement Administrator shall be responsible for the receipt of all Requests for Exclusion from Settlement Class Members and shall preserve all such communications until administration is complete or further order of the Court. All written communications received from Settlement Class Members to the Settlement Administrator and all written responses to inquiries by Settlement Class Members from the Settlement Administrator relating to the Agreement and Settlement shall be available at all reasonable times for inspection and copying by Cricket's counsel and Class Counsel, subject to further Order of the Court if issues of privilege or confidentiality arise. Notice to Settlement Class Members shall designate the 5 JA 337 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 341 of 426 Total Pages:(381 of 466) Settlement Administrator as the person to whom Requests for Exclusion shall be sent. 20. In order to be deemed a Settlement Class Member entitled to participate in the Settlement as set forth in the Agreement, in the event that the Settlement is effected in accordance with all of the terms and conditions thereof, Settlement Class Members need not take any affirmative action, but shall not opt-out of, or request exclusion from the Settlement. 21. All other events contemplated under the Agreement to occur after this Order and before the Final Approval Hearing described in paragraph 23 of this Order shall be governed by the Agreement to the extent not inconsistent with this Order. 22. Memoranda in support of the Settlement, petitions for attorneys' fees and reimbursement of expenses by Class Counsel and requests for any Representative Plaintiff award shall be filed with the Clerk of the Court at least fourteen (14) days prior to the Final Approval Hearing. 23. A Final Approval Hearing shall be held before the undersigned at __:__am/pm on _______________ ___, 2018 in the United States District Court for the District of Maryland, 101 W. Lombard Street, Baltimore, Maryland 21201, to consider the fairness, reasonableness and adequacy of the proposed Settlement, the entry of any final Order or Judgment in the case, petitions for attorneys' fees and for reimbursement of expenses by Representative Plaintiff's counsel, and other related matters. The Final Approval Hearing may be postponed, adjourned or continued by Order of the Court without further notice to the Settlement Class. 24. Any Settlement Class Member who does not opt out of the Settlement may appear at the Final Approval Hearing in person or by counsel, if any appearance is filed and served as provided in the Class Notice, and will be heard to the extent allowed by the Court in support of, or in opposition to, the fairness, reasonableness and adequacy of the proposed Settlement, the 6 JA 338 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 342 of 426 Total Pages:(382 of 466) entry of any final Order or Judgment in the case, petitions for attorneys' fees and for reimbursement of expenses by Representative Plaintiff's counsel, or other related matters. Provided, however, that no person shall be permitted to intervene or otherwise be heard in opposition to the proposed Settlement, and, if approved, the judgment entered thereon, or to the requested award of attorneys' fees and reimbursement of expenses, and no papers or briefs submitted by any person shall be accepted or considered by the Court unless, not later than ninety (90) days after the entry of this Order, such person has: a. filed with the Clerk of the Court a notice of such person's intention to intervene or otherwise appear together with a statement that indicates the basis for such intervention or opposition along with any supporting documentation; b. served copies of such notice, statement and documentation, together with copies of any other papers or briefs that such person files with the Court, either in person or by mail, upon Kurtzman Carson Consultants, at CDMA Settlement Administrator, P.O. Box #####, Louisville, KY #####-####; and c. otherwise complied with the Agreement and Notice for purposes of such hearing. 25. Any Settlement Class Member who does not object to the Settlement in the manner provided in this Order shall be deemed to have waived such objection and shall forever be foreclosed from making any objection to the fairness or adequacy of the proposed Settlement as incorporated in the Agreement, including but not limited to all other related matters handled during the Final Approval Hearing. 26. If the proposed Settlement is not implemented or if the Settlement is terminated for any reason whatsoever, the Settlement, and all proceedings in connection with the Agreement, including, without limitation, all orders entered in connection with the proposed Settlement shall be without prejudice to the rights of the Parties, and all Orders issued pursuant to this proposed Settlement shall be vacated. In such an event, the Settlement and all negotiations, proceedings and statements made in connection with the proposed Settlement, 7 JA 339 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 343 of 426 Total Pages:(383 of 466) including without limitation the Agreement, shall be null, void and without effect. No evidence relating to such negotiations, proceedings, documents, or statements shall be used in any manner or for any purpose in any subsequent proceedings in this Action, or in any other proceeding between the settling parties, and this Action shall revert to its status immediately prior to the execution of the Agreement, including but not limited to its status as a putative class action. 27. The Court retains jurisdiction to consider all further applications arising out of or connected with the proposed Settlement. The Court may approve the Settlement with such modifications as may be agreed to by the Parties, if appropriate, without further notice to the Settlement Class. 28. Upon entry of this Order, and until further Order of the Court, all proceedings in the Action, except those proceedings in furtherance of obtaining final approval of the Settlement, shall be stayed. Until further Order of the Court, Settlement Class Members shall be barred from commencing or prosecuting any action or proceeding in any court or tribunal against the Released Parties asserting Released Claims. 29. Counsel for the Parties are hereby authorized to utilize all reasonable procedures in connection with the administration of the Agreement which are not materially inconsistent with either this Order or the terms of the Agreement. IT IS SO ORDERED Dated: ________________ ___, 201__ _______________________________ Hon. Marvin J. Garbis Judge, U.S. District Court for the District of Maryland 8 JA 340 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 344 of 426 Total Pages:(384 of 466) 7 Index of Exhibits Exhibit A Email Notice Exhibit B Direct Mail Notice Exhibit C Long Form Notice Exhibit D Online Claim Form Exhibit E Mail-in Claim Form JA 341 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 345 of 426 Total Pages:(385 of 466) 7 JA 342 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 346 of 426 Total Pages:(386 of 466) 7 FROM: [Settlement Administrator] RE: SETTLEMENT OF CLASS ACTION LAWSUIT – You Could Be Entitled To Benefits United States District Court for the District of Maryland Bond v. Cricket Communications, LLC, 1:15-cv-00923-MJG If you purchased a CDMA mobile telephone from Cricket between July 12, 2013 and [Preliminary Approval Date], you could be entitled to benefits from a class action settlement. NOTICE OF PROPOSED CLASS ACTION SETTLEMENT. YOUR LEGAL RIGHTS MIGHT BE AFFECTED BY THIS SETTLEMENT. PLEASE READ THIS NOTICE CAREFULLY CLAIM NUMBER: XXXXXXXXXX You received this Email Notice because you have been identified as someone who may have purchased a Code-Division Multiple Access (CDMA) cellphone from Cricket between July 12, 2013 and [Date of Preliminary Approval]. You would have purchased such a phone between July 12, 2013 and [last date when Cricket sold CDMA phones]. The plaintiff in this class action lawsuit alleges that Cricket sold CDMA-only compatible mobile devices that it knew would not be usable on its new network after it merged with AT&T. The plaintiff alleges that this conduct violated the federal Magnuson Moss Warranty Act and state warranty law, the Maryland Consumer Protection Act and other state consumer protection laws, and constituted fraudulent concealment, unjust enrichment, negligent misrepresentation, and fraud under state law. Cricket denies any wrongdoing or liability and denies the allegations. The parties have agreed to settle the class action. Under the proposed settlement, you may be entitled to benefits. For more information, please visit www.CDMAlawsuit.com or call toll free 1-800-XXX-XXXX. If you wish to receive benefits under the settlement, you must submit a claim form no later than _____. The claim form is available online at www.CDMAlawsuit.com/claimform. If the settlement is approved, class members who have timely submitted valid claim forms: (1) will be entitled to unlock their Qualifying Cricket CDMA phones (which may allow you to activate your CDMA phone with another wireless carrier, subject to that carrier's policies); or (2) will be entitled to receive one GB of free high- speed data when porting their existing wireless number to a new line of Cricket service (for former customers) or adding or porting a new line to their existing Cricket service without paying an activation fee (for current customers), after maintaining one month of service with Cricket on that new line; or (3) will be entitled to receive one GB of additional free high-speed data for up to four subsequent consecutive months of timely prepaid service, upon purchasing one month of future service on either an existing or new line of Cricket service. Please see www.CDMAlawsuit.com for additional information about the benefits available under the settlement. If you are a class member, whether you file a claim form or not, any legal claims that you may have or could have in the future regarding the legal and factual issues in this case will be released. If you do not wish to be bound by the terms of the settlement, you must opt out from the settlement by ______. You also may instead formally object to the settlement. Visit www.CDMAlawsuit.com for information on how to opt out or object. JA 343 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 347 of 426 Total Pages:(387 of 466) 7 JA 344 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 348 of 426 Total Pages:(388 of 466) 7 United States District Court for the District of Maryland Bond v. Cricket Communications, LLC, 1:15-cv-00923-MJG If you purchased a CDMA mobile telephone from Cricket between July 12, 2013 and [Preliminary Approval Date], you could be entitled to benefits from a class action settlement. NOTICE OF PROPOSED CLASS ACTION SETTLEMENT. YOUR LEGAL RIGHTS MIGHT BE AFFECTED BY THIS SETTLEMENT. PLEASE READ THIS NOTICE CAREFULLY CLAIM NUMBER: XXXXXXXXXX You received this Postcard Notice because you have been identified as someone who may have purchased a Code-Division Multiple Access (CDMA) cellphone from Cricket between July 12, 2013 and [Date of Preliminary Approval]. You would have purchased such a phone between July 12, 2013 and [last date when Cricket sold CDMA phones]. The plaintiff in this class action lawsuit alleges that Cricket sold CDMA-only compatible mobile devices that it knew would not be usable on its new network after it merged with AT&T. The plaintiff alleges that this conduct violated the federal Magnuson Moss Warranty Act and state warranty law, the Maryland Consumer Protection Act and other state consumer protection laws, and constituted fraudulent concealment, unjust enrichment, negligent misrepresentation, and fraud under state law. Cricket denies any wrongdoing or liability and denies the allegations. The parties have agreed to settle the class action. Under the proposed settlement, you may be entitled to benefits. For more information, please visit www.CDMAlawsuit.com or call toll free 1-800-XXX-XXXX. If you wish to receive benefits under the settlement, you must submit a claim form no later than _____. The claim form is available online at www.CDMAlawsuit.com/claimform. If the settlement is approved, class members who have timely submitted valid claim forms: (1) will be entitled to unlock their Qualifying Cricket CDMA phones (which may allow you to activate your CDMA phone with another wireless carrier, subject to that carrier's policies); or (2) will be entitled to receive one GB of free high- speed data when porting their existing wireless number to a new line of Cricket service (for former customers) or adding or porting a new line to their existing Cricket service without paying an activation fee (for current customers), after maintaining one month of service with Cricket on that new line; or (3) will be entitled to receive one GB of additional free high-speed data for up to four subsequent consecutive months of timely prepaid service, upon purchasing one month of future service on either an existing or new line of Cricket service. Please see www.CDMAlawsuit.com for additional information about the benefits available under the settlement. If you are a class member, whether you file a claim form or not, any legal claims that you may have or could have in the future regarding the legal and factual issues in this case will be released. If you do not wish to be bound by the terms of the settlement, you must opt out from the settlement by ______. You also may instead formally object to the settlement. Visit www.CDMAlawsuit.com for information on how to opt out or object. JA 345 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 349 of 426 Total Pages:(389 of 466) 7 JA 346 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 350 of 426 Total Pages:(390 of 466) 7 Bond v. Cricket Communications, LLC, 1:15-cv-00923-MJG If you purchased a CDMA mobile telephone from Cricket between July 12, 2013 and [date of Preliminary Approval], you could be entitled to benefits from a class action settlement. The United States District Court for the District of Maryland authorized this notice. This is not a solicitation from a lawyer. You are not being sued. THE SETTLEMENT A settlement has been reached in this class action lawsuit concerning Cricket's sale of Code Division Multiple Access ("CDMA") phones between July 12, 2013 and [date of Preliminary Approval]. In connection with the settlement, Cricket has agreed to provide one of the following three benefits to Settlement Class Members: (1) Unlock Benefit: This Benefit will allow Settlement Class Members to unlock their Qualifying Cricket CDMA phone (which may allow you to activate your CDMA phone with another wireless carrier, subject to that carrier's policies). (2) Data Benefit: This Benefit will allow former customer Settlement Class Members to port an existing wireless number onto a new line of Cricket service (and current customer Settlement Class Members to port or add a new line to their existing Cricket service), without paying an activation fee, and receive 1 GB of additional free high-speed data after maintaining one month of service with Cricket on that new line. (3) Four Month Data Benefit: This Benefit will permit Settlement Class Members who maintain one month of future Cricket service on either an existing or new line of Cricket service to receive 1 GB of additional free high-speed data for up to four subsequent consecutive months of timely prepaid service. • You may be a Settlement Class Member and qualify for a benefit if you purchased a Qualifying Cricket CDMA Phone in the United States from Cricket, or Cricket's authorized agents, between July 12, 2013 and [date of Preliminary Approval]. You must submit a valid Claim Form to receive a benefit. • Your legal rights are affected whether you do or do not act. Please read this notice carefully. JA 347 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 351 of 426 Total Pages:(391 of 466) 7 YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT: SUBMIT CLAIM The only way to get a benefit. EXCLUDE YOURSELF Get no benefit. This is the only option that allows you ever to be part of any other lawsuit against Cricket or its affiliates about the issues in this case. See section 13 for details. OBJECT Write the Court if you do not like the settlement to explain why. See section 18 for details. GO TO A HEARING Ask to speak in Court about the settlement. See section 22 for details. DO NOTHING Get no payment or benefit. Give up your rights. • These rights and options—and the deadlines to exercise them—are explained in this notice. • The Court in charge of this case still has to decide whether to approve the settlement. All benefits will be provided only after any appeals are resolved. Please be patient. JA 348 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 352 of 426 Total Pages:(392 of 466) 7 WHAT THIS NOTICE CONTAINS Page BASIC INFORMATION............................................................................................................................ 1 1. What is this notice?............................................................................................................. 1 2. What is this lawsuit about? ................................................................................................. 1 3. Why is this a class action? .................................................................................................. 1 4. Why is there a settlement? .................................................................................................. 1 WHO IS IN THE SETTLEMENT ............................................................................................................ 2 5. How do I know if I am part of the settlement? ................................................................... 2 6. Are there exceptions to being included?............................................................................. 2 7. If I no longer own my CDMA Cricket phone, am I still included? .................................... 2 8. I'm still not sure if I am included........................................................................................ 2 THE SETTLEMENT BENEFITS—WHAT YOU GET ......................................................................... 2 9. What benefits does the settlement provide?........................................................................ 2 10. What are the requirements to receive a benefit? ................................................................. 3 HOW YOU GET BENEFITS—SUBMITTING A CLAIM FORM....................................................... 3 11. How do I submit a claim? ................................................................................................... 3 12. When would I receive my benefits?.................................................................................... 4 EXCLUDING YOURSELF FROM THE SETTLEMENT .................................................................... 4 13. How do I opt out of the settlement?.................................................................................... 4 14. If I don't exclude myself, can I sue Cricket or its affiliates for the same thing later? ................................................................................................................................... 4 15. If I exclude myself, can I get benefits from the settlement? ............................................... 4 THE LAWYERS REPRESENTING YOU............................................................................................... 5 16. Do I have a lawyer in this case?.......................................................................................... 5 17. How will the lawyers be paid?............................................................................................ 5 OBJECTING TO THE SETTLEMENT .................................................................................................. 5 18. How can I object to the settlement and/or Class Counsel's fee and expense request? ............................................................................................................................... 5 19. What's the difference between objecting and excluding? .................................................. 6 THE COURT'S Final Approval HEARING ............................................................................................ 6 20. When and where will the Court decide whether to approve the settlement? ...................... 6 21. Do I have to come to the hearing? ...................................................................................... 6 22. May I speak at the hearing? ................................................................................................ 6 IF YOU DO NOTHING ............................................................................................................................. 7 i JA 349 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 353 of 426 Total Pages:(393 of 466) 7 23. What happens if I do nothing at all? ................................................................................... 7 GETTING MORE INFORMATION........................................................................................................ 7 24. Are there more details about the settlement?...................................................................... 7 25. How do I get more information?......................................................................................... 7 ii JA 350 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 354 of 426 Total Pages:(394 of 466) 7 BASIC INFORMATION 1. What is this notice? The purpose of this notice is to provide you with information about the proposed settlement in a class action lawsuit, and about your options, before the Court decides whether to approve the settlement. This notice explains the lawsuit, the settlement, your legal rights, what benefits are available, who is eligible for them, and how to get them. The Court in charge of the case is the United States District Court for the District of Maryland, and the case is known as Bond v. Cricket Communications, LLC, Case No. 1:15-cv-00923-MJG. The person who sued is called a plaintiff, and the company the Plaintiff sued, Cricket Communications, LLC, is called a defendant. 2. What is this lawsuit about? The Plaintiff in this class action lawsuit alleges that Cricket sold phones that it knew would not be usable on its new network after it merged with AT&T. The Plaintiff alleges that this conduct violated the federal Magnuson Moss Warranty Act and state warranty law, the Maryland Consumer Protection Act and other state consumer protection laws, and constituted fraudulent concealment, unjust enrichment, negligent misrepresentation, and fraud under state law. Cricket denies any wrongdoing or liability and denies the allegations. The current version of the Complaint filed in this case, available at www.CDMAlawsuit.com, contains more detail, including a list of the legal claims alleged. Cricket denies all allegations and is entering into this settlement to avoid burdensome and costly litigation. The settlement is not an admission of wrongdoing. 3. Why is this a class action? In a class action, one or more people, called class representatives, sue on behalf of people who have similar claims. All these people are "Class" or "Settlement Class Members." One court resolves the issues for all Settlement Class Members, except for those who exclude themselves from the Class. The Plaintiff in this lawsuit is Tim Bond. If the Court approves the settlement, Mr. Bond will become the Class Representative. 4. Why is there a settlement? The Court did not decide in favor of the Plaintiff or the Defendant. Instead, the parties have agreed to settle the case. That way, they avoid the costs and risks associated with further legal proceedings. The Plaintiff and his attorneys (called "Class Counsel") believe that the settlement is in the best interests of the Settlement Class Members. 1 JA 351 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 355 of 426 Total Pages:(395 of 466) 7 WHO IS IN THE SETTLEMENT To see if you are eligible for a benefit, you first have to decide if you are a Settlement Class Member. 5. How do I know if I am part of the settlement? For the purposes of this Settlement, the Court has decided that everyone who fits the following description is a "Settlement Class Member": all persons nationwide during the period July 12, 2013 to [the date of preliminary approval], who purchased a CDMA phone from Cricket or through its authorized agents. 6. Are there exceptions to being included? The Class does not include: Cricket, any entity in which Cricket has a controlling interest or which has a controlling interest in Cricket, or a legal representative, predecessor, successor, or assign of Cricket. Also excluded are all persons who validly request exclusion (see section 13 below). 7. If I no longer own my CDMA Cricket phone, am I still included? Yes. You may still claim a benefit if you no longer own your Qualifying Cricket CDMA phone, but you have satisfactory proof of purchase of that phone, including record of the International Mobile Equipment Identity number ("IMEI") number of that phone. The IMEI number may appear on the original box that contained your phone, on your original receipt or on the phone itself. 8. I'm still not sure if I am included. If you are still not sure whether you are included, you can visit the website, www.CDMAlawsuit.com, for more information. THE SETTLEMENT BENEFITS—WHAT YOU GET 9. What benefits does the settlement provide? In connection with the settlement, Cricket has agreed to provide one of the following three benefits, per Qualifying Cricket CDMA Phone, at the option of the claiming Settlement Class Member: (1) Cricket would unlock any Qualifying Cricket CDMA Phone of the Settlement Class Member ("Unlock Benefit"); or (2) following notice from the Claims Administrator that his claim has been approved, a former customer may port his existing wireless number onto a new line of Cricket Service (and a current customer may port or add a new line to his existing Cricket Service), without paying an activation fee, and receive 1 Gigabyte of additional free 2 JA 352 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 356 of 426 Total Pages:(396 of 466) 7 high-speed data after maintaining one month of Service with Cricket on that new line ("Data Benefit"); or (3) following notice from the Claims Administrator that his claim has been approved, and after maintaining one month of subsequent Service on either an existing or new line of Cricket Service, a Settlement Class Member may receive 1 Gigabyte of additional free high-speed data for up to four (4) subsequent consecutive months of timely prepaid Service ("Four Month Data Benefit"). A Settlement Class Member who elects to activate a new line to obtain either the Data Benefit or Four Month Data Benefit must do so through a website or toll-free number specifically designated by Cricket. 10. What are the requirements to receive a benefit? To receive a benefit, you must: (1) have purchased a Qualifying Cricket CDMA Phone from Cricket, or Cricket's authorized agents, between July 12, 2013 and [date of Preliminary Approval], and (2) submit a valid Claim Form. For information about how to submit a Claim Form, see section 11 below. Settlement Class Members may submit one Claim Form for each Qualifying Cricket CDMA Phone they purchased from Cricket, or through its authorized agents, during the period between July 12, 2013 through [the date of Preliminary Approval of the Settlement Agreement]. HOW YOU GET BENEFITS—SUBMITTING A CLAIM FORM 11. How do I submit a claim? To receive the Unlock Benefit, the Data Benefit, or the Four Month Data Benefit, you must submit a valid Claim Form. Only eligible persons will receive benefits. Claim Forms can be submitted online or by mail, as described in this section. Submitting a Claim Form online: If you received an email notice of this settlement, and you still have that email, you can fill out and submit a Claim Form online (at no cost to you) by following the appropriate hyperlink in the email for submitting claims. If you received a notice of this settlement by postcard, you can fill out and submit a Claim Form online (at no cost to you) by visiting the web address listed in the postcard for submitting claims. Otherwise, you can also visit www.CDMAlawsuit.com/claimform to submit a Claim Form online (at no cost to you). Submitting a Claim Form by mail: If you prefer, you may download and print a Claim Form by visiting www.CDMAlawsuit.com. Once you print the Claim Form, fill it out, and mail it (at your own expense) to the Settlement Administrator at [CDMA Settlement Administrator, P.O. Box #####, Louisville, KY #####-####]. You must read the instructions included in the Claim Form carefully and fill out the Claim Form as directed. If you submit a Claim Form by mail you will need to sign the Claim Form. 3 JA 353 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 357 of 426 Total Pages:(397 of 466) 7 DEADLINE FOR SUBMITTING CLAIM FORMS: Claim Forms submitted online must be submitted by no later than [DATE]. Claim Forms submitted by mail must be postmarked by no later than [DATE]. If you fail to submit a Claim Form by the deadline, your claim may be rejected, and you may be deemed to have waived all rights to receive benefits. 12. When would I receive my benefits? The Court will hold a hearing on [DATE] at [TIME], to decide whether to approve the settlement. If the Court approves the settlement, eligible Settlement Class Members will be sent instructions for how to redeem the benefit they have selected. There is the possibility that a class member appeals the settlement. The appeal process can take time, please be patient. EXCLUDING YOURSELF FROM THE SETTLEMENT If you don't want to receive a benefit from the settlement, but you want to preserve any right you may have to sue or continue to sue Cricket or its affiliates about the legal issues in this case, then you must take steps to exclude yourself from the settlement (sometimes called "opting out"). Read on for details. 13. How do I opt out of the settlement? You can exclude yourself (or "opt out") of the settlement. To exclude yourself, you must send a letter that clearly states your intent to exclude yourself from the settlement. Be sure to include: your name; your address; your telephone number; a statement that you want to exclude yourself from the settlement; your signature; and reference the case name Bond v. Cricket Communications, LLC, Case No. 1:15-cv-00923-MJG. To be valid, your exclusion request must be postmarked no later than [DATE] and sent to: [CDMA Settlement Administrator, P.O. Box #####, Louisville, KY #####-####]. You can't exclude yourself on the phone or by fax or e-mail. If you ask to be excluded from the settlement, you will not receive a benefit and you cannot object to the settlement, but you preserve any right you may have to sue (or continue to sue) Cricket or its affiliates about the legal issues in this case. 14. If I don't exclude myself, can I sue Cricket or its affiliates for the same thing later? No. Unless you exclude yourself from the settlement, you give up any right you may have to sue Cricket or its affiliates about the legal issues in this case. 15. If I exclude myself, can I get benefits from the settlement? No. If you exclude yourself from the settlement, you may not receive a benefit. 4 JA 354 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 358 of 426 Total Pages:(398 of 466) 7 THE LAWYERS REPRESENTING YOU 16. Do I have a lawyer in this case? The Court has appointed the following lawyers to represent you in this case: Cory L. Zajdel Z Law, LLC 2345 York Road, Suite B-13 Timonium, MD 21093 Catherine Anderson Giskan Solotaroff & Anderson LLP 217 Centre Street New York, NY 10013 Together, these lawyers are called Class Counsel. You will not be charged for these lawyers. If you want to be represented by your own lawyer, you may hire one at your own expense. 17. How will the lawyers be paid? Class Counsel will ask the Court for attorneys' fees and expenses of up to $300,000, and will also request a service award payment for the Class Representative in the amount of $3,500. A copy of Class Counsel's application for attorneys' fees and expenses will be posted on the case website (www.CDMAlawsuit.com) when it is filed. The Court will determine the proper amount of attorneys' fees and expenses to award Class Counsel and the proper amount for a service award payment to the Class Representative. Cricket will pay the amounts awarded by the Court in addition to making the benefits available to the Class. OBJECTING TO THE SETTLEMENT You can tell the Court that you don't agree with the settlement or some part of it. 18. How can I object to the settlement and/or Class Counsel's fee and expense request? If you're a Settlement Class Member and don't exclude yourself, you can object to the settlement if you don't like any part of it. You can also object to Class Counsel's request for attorneys' fees and expenses and/or to the service award for the Class Representative. The Court will consider your views. To object, you must send a letter saying that you object to the settlement, Class Counsel's request for attorneys' fees and expenses, and/or the requested service award for the Class Representative in Bond v. Cricket Communications, LLC, Case No. 1:15-cv- 00923-MJG. To be valid, your objection must include: (a) your name, address, and telephone number; (b) your signature; (c) a statement that you are a member of the Class and an explanation of the basis upon which you claim to be a member of the Class; (d) all the reasons for your objection; and (e) the identity of all counsel, if any, who represent you. The objection and any supporting papers must be mailed to the following two addressees, postmarked no later than [DATE]: 5 JA 355 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 359 of 426 Total Pages:(399 of 466) 7 COURT KURTZMAN CARSON CONSULTANTS Clerk of the Court [CDMA Settlement Administrator, United States District Court Maryland P.O. Box #####, 101 West Lombard Street Louisville, KY #####-####] Baltimore, MD 21201 19. What's the difference between objecting and excluding? Objecting is simply telling the Court that you don't like something about the settlement, the request for attorneys' fees and expenses, and/or the request for service award. Excluding yourself is telling the Court that you don't want to be part of the settlement. If you exclude yourself from the settlement, you cannot object to it. THE COURT'S FINAL APPROVAL HEARING The Court will hold a hearing to decide whether to approve the settlement. You may attend, and you may ask to speak, but you don't have to. 20. When and where will the Court decide whether to approve the settlement? The Court will hold a Final Approval Hearing on [DATE/TIME], at the United States District Court for the District of Maryland, 101 West Lombard Street, Chambers 5C, Baltimore, MD 21201. At this hearing, the Court will consider whether the settlement is fair, reasonable, and adequate. If there are objections, the Court will consider them. The Court will listen to people who have asked to speak at the hearing. The Court may also consider how much to award Class Counsel in attorneys' fees and expenses and the amount of a service award for the Class Representative. At or after the hearing, the Court will decide whether to approve the settlement. We do not know how long these decisions will take. 21. Do I have to come to the hearing? No. Class Counsel will answer questions that the Court may have. But, you are welcome to come at your own expense. If you send an objection, you don't have to come to Court to talk about it. As long as your written objection was postmarked no later than [DATE], and meets the other criteria described in section 18 above, the Court will consider it. You may also pay your own lawyer to attend, but it's not necessary. 22. May I speak at the hearing? You may ask the Court for permission to speak at the Final Approval Hearing. To do so, you must send a letter saying that you intend to appear and speak at the Final Approval Hearing in "Bond v. Cricket Communications, LLC, Case No. 1:15-cv-00923-MJG." Be sure to include this case name and number, your name, address, and telephone number, your signature, and the identity of any lawyers, if any, who will appear on your behalf. Your letter of intent to appear and speak must be mailed to the Clerk of the Court and the Settlement Administrator, at the addresses 6 JA 356 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 360 of 426 Total Pages:(400 of 466) 7 listed in section 18 above, postmarked no later than [DATE]. You cannot speak at the Final Approval Hearing if you exclude yourself from the settlement. IF YOU DO NOTHING 23. What happens if I do nothing at all? If you do nothing, you will not receive a benefit. If you don't exclude yourself from the settlement, you won't be able to start a lawsuit, continue with a lawsuit, or be part of any other lawsuit against Cricket or its affiliates about the legal issues in this case. GETTING MORE INFORMATION 24. Are there more details about the settlement? This notice summarizes the proposed settlement. More details are in the Settlement Agreement, a copy of which is available at www.CDMAlawsuit.com. Also, a copy of the Settlement Agreement and the other documents relating to the case are on file at the United States District Court for the District of Maryland, and may be examined and copied at any time during regular office hours at the Office of the Clerk, 101 West Lombard Street, Baltimore, MD 21201. 25. How do I get more information? You can visit www.CDMAlawsuit.com, where you will find answers to common questions about the settlement, the Claim Form, a copy of the Complaint in the case, a copy of the Settlement Agreement, plus other information. Questions may not be directed to the Court. DATE: 7 JA 357 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 361 of 426 Total Pages:(401 of 466) 7 JA 358 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 362 of 426 Total Pages:(402 of 466) 7 Bond v. Cricket Communications, LLC, 1:15-cv-00923-MJG (D. Md.) CLASS ACTION SETTLEMENT INSTRUCTIONS FOR SUBMITTING CLAIM FORM 1. READ THESE INSTRUCTIONS CAREFULLY. IF YOU FAIL TO FOLLOW THESE INSTRUCTIONS, YOU MAY LOSE CERTAIN BENEFITS TO WHICH YOU MIGHT OTHERWISE BE ENTITLED. 2. What is the "Unlock Benefit"? This Benefit will allow you to unlock the phone that is the subject of this lawsuit (which may allow you to activate the phone with another wireless carrier, subject to that carrier's policies). If you select this Benefit, the Settlement Administrator will provide a code and instructions to unlock your Qualifying Cricket CDMA phone. 3. What is the "Data Benefit"? This Benefit will allow you to port your existing wireless number onto a new line of Cricket service (if you are a former customer), or port or add a new line to your existing Cricket Service (if you are a current customer), and receive 1 Gigabyte of additional free high-speed data after maintaining one month of Service with Cricket on that new line. Under this option, you do not have to pay any activation fee. If you select this Benefit, the Settlement Administrator will provide instructions on how to redeem your free high-speed data. 4. What is the "Four Month Data Benefit"? This Benefit will allow you to buy one month of future service on either an existing or new line of Cricket Service, and receive 1 Gigabyte of additional free high-speed data for up to four subsequent consecutive months of timely prepaid service with Cricket. Under this option, if you add a new line of service, you must pay any applicable activation fee. If you select this Benefit, the Settlement Administrator will provide instructions on how to redeem your free high-speed data. 5. How do I submit a claim? To make a claim, complete and submit this Claim Form. You can submit your Claim Form online, at no charge, by clicking the SUBMIT BUTTON on the form. If you prefer, you may also mail the Claim Form at your own expense to: [CDMA Settlement Administrator, P.O. Box #####, Louisville, KY #####-####]. You may download and print the Claim Form for mailing by visiting www.CDMAlawsuit.com/claimform. To be valid, your Claim Form must include all the required information: (a) Your full legal name; (b) The Claim Number that appears in the Email Notice you received from the Settlement Administrator or the Postcard Notice you received from the Settlement Administrator (if you didn't receive a claim number, please call 1-888-XXX-XXXX); (c) Your valid email address; (d) Your valid, current phone number; JA 359 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 363 of 426 Total Pages:(403 of 466) 7 Bond v. Cricket Communications, LLC, 1:15-cv-00923-MJG (D. Md.) CLASS ACTION SETTLEMENT (e) A certification that you purchased a Qualifying Cricket CDMA Phone between July 12, 2013 and [date of Preliminary Approval] and that you are making a claim for that Phone; (f) The International Mobile Equipment Identity ("IMEI") number of the Qualifying Cricket CDMA Phone for which you are making a claim; (g) Selection of one of the three Benefits (the "Unlock Benefit," the "Data Benefit," or the "Four Month Data Benefit"); and (h) A certification that you attest that the information you provided in the Claim Form is true and correct to the best of your knowledge and belief. Only eligible persons will receive benefits. If your Claim Form does not contain all the required information, is untimely, or contains false or inaccurate information, it may be rejected by the Settlement Administrator. 6. How do I find the IMEI Number on my Phone? Instructions for locating the IMEI number can be found on the Settlement Website here: www.CDMAlawsuit.com/IMEI. 7. What is the deadline for submitting a claim? You must submit your Claim Form by no later than ____. If you fail to submit your Claim Form by the deadline, your claim may be rejected, and you will be deemed to have waived all rights to receive benefits under these settlements. 8. Where can I get more information? For more information or if you have any questions about completing this Claim Form, please visit www.CDMAlawsuit.com or call 1-888-XXX-XXXX. Unless you expressly opt out from the Settlement Class (as explained in the Long Form Notice available at www.CDMAlawsuit.com), you will be bound by the Settlement Agreement, Releases, and the Final Judgment even if you do not submit a Claim Form. JA 360 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 364 of 426 Total Pages:(404 of 466) 7 Bond v. Cricket Communications, LLC, 1:15-cv-00923-MJG (D. Md.) CLASS ACTION SETTLEMENT CLAIM FORM You must complete every part of this Claim Form marked with an asterisk (*) to get benefits. Providing the additional information may facilitate your receipt of benefits. A. CLAIMANT INFORMATION Name (Full Name required*): __________________________________________________________ First Middle Last Claim Number (Required*): ______________________________________________________________ Address: _____________________________________________________________________________ City: ____________________________________ State: __________________ Zip: _________________ E-mail (Required*): _____________________________________________________________________ Current Phone Number (Required*): ______________________________________________________ B. IMEI NUMBER FROM CRICKET CDMA PHONE Fill in the 15-digit IMEI Number associated with the Qualifying Cricket CDMA Phone for which you are making a claim (Required*). Instructions for locating the IMEI Number can be found above. C. BENEFIT ELECTION Check one of the boxes below to elect which Benefit you would like to receive (Selection required*): I would like Cricket to unlock my Qualifying Cricket CDMA phone (Unlock Benefit). OR I am a current or former customer and would like to port an existing wireless number onto a new line of Cricket service (or I am a current customer and would like to add a new line to my existing Cricket service) to be able to receive 1 GB of additional free high-speed data after maintaining one month of service with Cricket on that new line. (Data Benefit). OR I would like to buy one month of future service on either an existing or new line of Cricket service to be able to receive 1 GB of additional free high-speed data at the end of each of up to four subsequent consecutive months of timely prepaid Cricket service (Four Month Data Benefit). I understand that I must pay any applicable activation fee under this option. [next page] JA 361 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 365 of 426 Total Pages:(405 of 466) 7 Bond v. Cricket Communications, LLC, 1:15-cv-00923-MJG (D. Md.) CLASS ACTION SETTLEMENT D. CERTIFICATION You must check the box below for your claim to be valid (Required*): I certify that the information I have provided in this Claim Form is true and correct to the best of my knowledge and belief and that I purchased a Qualifying Cricket CDMA Phone between July 12, 2013 and [date of Preliminary Approval] and I am making a claim for that Phone (Certification required*). [SUBMIT BUTTON] JA 362 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 366 of 426 Total Pages:(406 of 466) 7 JA 363 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 367 of 426 Total Pages:(407 of 466) 7 Bond v. Cricket Communications, LLC, 1:15-cv-00923-MJG (D. Md.) CLASS ACTION SETTLEMENT INSTRUCTIONS FOR SUBMITTING CLAIM FORM 1. READ THESE INSTRUCTIONS CAREFULLY. IF YOU FAIL TO FOLLOW THESE INSTRUCTIONS, YOU MAY LOSE CERTAIN BENEFITS TO WHICH YOU MIGHT OTHERWISE BE ENTITLED. 2. What is the "Unlock Benefit"? This Benefit will allow you to unlock the phone that is the subject of this lawsuit (which may allow you to activate the phone with another wireless carrier, subject to that carrier's policies). If you select this Benefit, the Settlement Administrator will provide a code and instructions to unlock your Qualifying Cricket CDMA phone. 3. What is the "Data Benefit"? This Benefit will allow you to port your existing wireless number onto a new line of Cricket service (if you are a former customer), or port or add a new line to your existing Cricket Service (if you are a current customer), and receive 1 Gigabyte of additional free high-speed data after maintaining one month of Service with Cricket on that new line. Under this option, you do not have to pay any activation fee. If you select this Benefit, the Settlement Administrator will provide instructions on how to redeem your free high-speed data. 4. What is the "Four Month Data Benefit"? This Benefit will allow you to buy one month of future service on either an existing or new line of Cricket Service, and receive 1 Gigabyte of additional free high-speed data for up to four subsequent consecutive months of timely prepaid service with Cricket. Under this option, if you add a new line of service, you must pay any applicable activation fee. If you select this Benefit, the Settlement Administrator will provide instructions on how to redeem your free high-speed data. 5. How do I submit a claim? To make a claim, complete and submit this Claim Form. You can submit your Claim Form online, at no charge, by clicking the SUBMIT BUTTON on the form. If you prefer, you may also mail the Claim Form at your own expense to: [CDMA Settlement Administrator, P.O. Box #####, Louisville, KY #####-####]. You may download and print the Claim Form for mailing by visiting www.CDMAlawsuit.com/claimform. To be valid, your Claim Form must include all the required information: (a) Your full legal name; (b) The Claim Number that appears in the Email Notice you received from the Settlement Administrator or the Postcard Notice you received from the Settlement Administrator (if you didn't receive a claim number, please call 1-888-XXX-XXXX); (c) Your valid email address; (d) Your valid, current phone number; JA 364 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 368 of 426 Total Pages:(408 of 466) 7 Bond v. Cricket Communications, LLC, 1:15-cv-00923-MJG (D. Md.) CLASS ACTION SETTLEMENT (e) A certification that you purchased a Qualifying Cricket CDMA Phone between July 12, 2013 and [date of Preliminary Approval] and that you are making a claim for that Phone; (f) The International Mobile Equipment Identity ("IMEI") number of the Qualifying Cricket CDMA Phone for which you are making a claim; (g) Selection of one of the three Benefits (the "Unlock Benefit," the "Data Benefit," or the "Four Month Data Benefit"); and (h) A certification that you attest that the information you provided in the Claim Form is true and correct to the best of your knowledge and belief. Only eligible persons will receive benefits. If your Claim Form does not contain all the required information, is untimely, or contains false or inaccurate information, it may be rejected by the Settlement Administrator. 6. How do I find the IMEI Number on my Phone? Instructions for locating the IMEI number can be found on the Settlement Website here: www.CDMAlawsuit.com/IMEI. 7. What is the deadline for submitting a claim? You must submit your Claim Form by no later than ____. If you fail to submit your Claim Form by the deadline, your claim may be rejected, and you will be deemed to have waived all rights to receive benefits under these settlements. 8. Where can I get more information? For more information or if you have any questions about completing this Claim Form, please visit www.CDMAlawsuit.comor call 1-888-XXX-XXXX. Unless you expressly opt out from the Settlement Class (as explained in the Long Form Notice available at www.CDMAlawsuit.com), you will be bound by the Settlement Agreement, Releases, and the Final Judgment even if you do not submit a Claim Form. JA 365 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 369 of 426 Total Pages:(409 of 466) 7 Bond v. Cricket Communications, LLC, 1:15-cv-00923-MJG (D. Md.) CLASS ACTION SETTLEMENT CLAIM FORM You must complete every part of this Claim Form marked with an asterisk (*) to get benefits. Providing the additional information may facilitate your receipt of benefits. A. CLAIMANT INFORMATION Name (Full Name required*): __________________________________________________________ First Middle Last Claim Number (Required*): ______________________________________________________________ Address: _____________________________________________________________________________ City: ____________________________________ State: __________________ Zip: _________________ E-mail (Required*): _____________________________________________________________________ Current Phone Number (Required*): ______________________________________________________ B. IMEI NUMBER FROM CRICKET CDMA PHONE Fill in the 15-digit IMEI Number associated with the Qualifying Cricket CDMA Phone for which you are making a claim (Required*). Instructions for locating the IMEI Number can be found above. C. BENEFIT ELECTION Check one of the boxes below to elect which Benefit you would like to receive (Selection required*): I would like Cricket to unlock my Qualifying Cricket CDMA phone (Unlock Benefit). OR I am a current or former customer and would like to port an existing wireless number onto a new line of Cricket service (or I am a current customer and would like to add a new line to my existing Cricket service) to be able to receive 1 GB of additional free high-speed data after maintaining one month of service with Cricket on that new line. (Data Benefit). OR I would like to buy one month of future service on either an existing or new line of Cricket service to be able to receive 1 GB of additional free high-speed data at the end of each of up to four subsequent consecutive months of timely prepaid Cricket service (Four Month Data Benefit). I understand that I must pay any applicable activation fee under this option. [next page] JA 366 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 370 of 426 Total Pages:(410 of 466) 7 Bond v. Cricket Communications, LLC, 1:15-cv-00923-MJG (D. Md.) CLASS ACTION SETTLEMENT D. CERTIFICATION You must check the box below for your claim to be valid (Required*): I certify that the information I have provided in this Claim Form is true and correct to the best of my knowledge and belief and that I purchased a Qualifying Cricket CDMA Phone between July 12, 2013 and [date of Preliminary Approval] and I am making a claim for that Phone (Certification required*). SIGNATURE: __________________________________________ DATE: ________________ JA 367 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 371 of 426 Total Pages:(411 of 466) 4 UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND (Baltimore Division) TIM BOND, on his own behalf and on behalf of all others similarly situated, Civil Action No. 1:15-cv-923-MJG Plaintiffs, v. CRICKET COMMUNICATIONS, LLC, Defendant. STIPULATION AND AGREEMENT OF SETTLEMENT It is hereby stipulated and agreed by and among the undersigned Parties (defined below), subject to the approval of the Court, that the settlement of this Action (defined below) shall be effectuated pursuant to the terms and conditions set forth in this Stipulation and Agreement of Settlement (the "Agreement" or "Settlement Agreement"), which are the result of good faith, arm's length negotiations mediated by the Honorable Benson E. Legg (Ret.). I. RECITALS 1.01 On March 31, 2015, plaintiff Tim Bond ("Plaintiff") filed a putative class action complaint in the United States District Court for the District of Maryland against Cricket Communications, LLC ("Cricket" or "Defendant") captioned Tim Bond v. Cricket Communications, LLC, Case No. 15-cv-923 (D. Md.) (the "Action"). The original complaint contained numerous state-law claims, which the Court compelled Plaintiff to arbitrate in January 2016. Subsequently, the parties stipulated that the Plaintiff would be allowed to amend his complaint to add a claim under the Magnuson-Moss Warranty Act ("MMWA"), and Plaintiff filed a Second Amended Complaint (the "Complaint") containing the MMWA claim on March JA 368 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 372 of 426 Total Pages:(412 of 466) 4 8, 2017. The Complaint alleges that Cricket violated the MMWA by selling Code Division Multiple Access ("CDMA")-compatible mobile devices while contemplating a transition to Global System for Mobile communication ("GSM") technology, in contravention of state warranty law. The Complaint also includes the state-law claims contained in the original complaint filed in March 2015 which were compelled to individual arbitration in January 2016. 1.02 Cricket disputes Plaintiff's allegations in his Complaint and maintains that it complied with all applicable laws. Cricket also maintains that Plaintiff is required to arbitrate his claims with Cricket on an individual basis and that, even if this case were to be litigated, it would not be appropriate for class treatment. The Parties are entering into this Agreement to avoid the risk and expense of further litigation, to resolve all disputes that have arisen between them, and to settle any and all claims that do or may exist in the past, present or future. 1.03 This Settlement Agreement is the result of good faith, arm's-length settlement negotiations. The Parties have exchanged information; have participated in two mediation sessions and multiple telephone calls under the guidance of the Honorable Benson E. Legg (Ret.); and have had a full and fair opportunity to evaluate the strengths and weaknesses of their respective positions. 1.04 The Parties understand, acknowledge, and agree that the execution of this Settlement Agreement constitutes the settlement and compromise of disputed claims. This Settlement Agreement is inadmissible as evidence against any of the Parties except to enforce the terms of the Settlement Agreement and is not an admission of wrongdoing or liability on the part of any Party to this Settlement Agreement. The Parties desire and intend to effect a full, complete and final settlement and resolution of all existing disputes and claims as set forth in this Agreement. -2- JA 369 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 373 of 426 Total Pages:(413 of 466) 4 1.05 The Parties hereby stipulate and agree that, in consideration of the agreements, promises, and covenants set forth in this Settlement Agreement, and subject to approval of the Court, the Action shall be fully and finally settled and the Action dismissed with prejudice under the terms and conditions of this Settlement Agreement. II. DEFINITIONS As used in this Agreement and the related documents attached hereto as exhibits (A: Email Notice Form; B: Direct Mail Notice Form; C: Long Form Notice; D: Online Claim Form and Instructions; E: Mail-in Claim Form and Instructions) the terms set forth below shall have the meanings set forth below. The singular includes the plural and vice versa. 2.01 "Action" means the civil action entitled Tim Bond v. Cricket Communications, LLC, Case No. 15-cv-923-MJG (D. Md.). 2.02 "Agreement" or "Settlement Agreement" means this Stipulation and Agreement of Settlement, including all attached and/or incorporated exhibits. 2.03 "Aggregate Fees, Costs, and Expenses" means the aggregate Attorneys' Fees and Costs, the Settlement Administration Costs and the Incentive Award. 2.04 "Attorneys' Fees and Costs" means all fees, costs and expenses to be awarded as per the Settlement of this Action pursuant to the Fee and Cost Application. 2.05 "Benefit" means the benefits to be provided to the Settlement Class Members pursuant to Section IV of this Agreement. 2.06 "CAFA Notice" refers to the notice pursuant to the Class Action Fairness Act, 28 U.S.C. § 1715(b) to be provided by the Settlement Administrator pursuant to Section VIII of this Agreement. 2.07 "CDMA" means Code Division Multiple Access, a mobile network technology. -3- JA 370 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 374 of 426 Total Pages:(414 of 466) 4 2.08 "Claims Period" means one hundred and eighty (180) days after the Class Notice Date. 2.09 "Class Counsel" means and includes: Cory L. Zajdel Z Law, LLC 2345 York Road, Suite B-13 Timonium, MD 21093 Oren Giskan Catherine E. Anderson Giskan Solotaroff &Anderson LLP 217 Centre Street New York, NY 10013 2.10 "Class Notice" means any type of notice that has been or will be provided to the Settlement Class pursuant to this Agreement and any additional notice that might be ordered by the Court, including but not limited to the Email Notice, the Direct Mail Notice, and the Long Form Notice. 2.11 "Class Notice Date" means thirty (30) calendar days following entry of the Preliminary Approval Order. 2.12 "Class Period" means from July 12, 2013 through the date of Preliminary Approval of the Settlement Agreement. 2.13 "Class Representative" or "Plaintiff" means the named plaintiff Tim Bond. 2.14 "Complaint" means the Second Amended Complaint filed in this Action by Plaintiff and Class Counsel. 2.15 "Court" means the United States District Court for the District of Maryland, and U.S. District Judge Marvin J. Garbis, before whom the Action is pending. 2.16 "Cricket's Counsel" or "Defendant's Counsel" means Mayer Brown LLP. 2.17 "Cricket" or "Defendant" refers to defendant Cricket Communications, LLC. -4- JA 371 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 375 of 426 Total Pages:(415 of 466) 4 2.18 "Cricket Database" means the database that Cricket's Counsel will provide to the Settlement Administrator, which includes, among other things, contact information for Settlement Class Members and their International Mobile Equipment Identity numbers ("IMEIs"). 2.19 "Direct Mail Notice" or "Postcard Notice" means the written notice that will be mailed to Settlement Class Members by the Settlement Administrator and will be substantially in the form of Exhibit B attached hereto. 2.20 "Effective Date" means the first date by which all of the following events shall have occurred: (a) the Court has entered a Preliminary Approval Order; (b) the Court has entered a Final Approval Order and Judgment; and (c) the Final Approval Order and Judgment has become Final as defined in Section 2.24. 2.21 "Email Notice" means the written notice that will be emailed to Settlement Class Members by the Settlement Administrator and will be substantially in the form of Exhibit A attached hereto. 2.22 "Escrow Fund" means the funds in the account established by the Settlement Administrator pursuant to Section IV of this Agreement. 2.23 "Fee and Cost Application" means that written motion or application by which Plaintiff and/or Class Counsel requests that the Court award Attorneys' Fees and Costs and the Incentive Award. 2.24 "Final" means that the Final Approval Order and Judgment has been entered on the docket in the Action and (a) the time to appeal from such order and judgment has expired and no appeal has been filed, or (b) if an appeal from such order and judgment has been filed, it has finally been resolved and has resulted in an affirmance of the Final Approval Order and -5- JA 372 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 376 of 426 Total Pages:(416 of 466) 4 Judgment, or (c) the Court, following the resolution of any appeal from the Final Approval Order and Judgment, enters a further order or orders approving the Settlement on the terms set forth in this Agreement, and either no further appeal is taken from such order(s) or any such appeal results in the affirmation of such orders. Neither the pendency of the Fee and Cost Application, nor any appeal pertaining solely to a decision on the Fee and Cost Application, shall in any way delay or preclude the Final Approval Order and Judgment from becoming Final. 2.25 "Final Approval Hearing" means the hearing scheduled to take place after the date of entry of the Preliminary Approval Order, no sooner than 100 calendar days after the entry of the Preliminary Approval Order, at which the Court shall: (a) determine whether to grant final approval to this Settlement Agreement and to finally certify the Settlement Class; (b) consider any timely objections to this Settlement and all responses thereto; (c) rule on the Fee and Cost Application; and (d) dismiss the Action with prejudice. 2.26 "Final Approval Order and Judgment" means the order in which the Court grants final approval of this Settlement Agreement, finally certifies the Settlement Class, and authorizes the entry of a final judgment and dismissal of the Action with prejudice. The form of the Final Approval Order and Judgment is a material term of this Settlement Agreement. 2.27 "GSM" means Global System for Mobile Communications, a mobile network technology. 2.28 "Incentive Award" means the incentive payment to the Class Representative, in accordance with Section VI of this Settlement Agreement. 2.29 "Litigation" means the legal proceedings in the Action. 2.30 "Long Form Notice" means the notice that shall be made available on the Settlement Website, in the form attached hereto as Exhibit C. -6- JA 373 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 377 of 426 Total Pages:(417 of 466) 4 2.31 "MMWA" means the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq. 2.32 "Objection Deadline" means sixty (60) calendar days following the Class Notice Date. 2.33 "Opt-Out Deadline" means sixty (60) calendar days following the Class Notice Date. 2.34 "Parties" shall refer to Plaintiff, the Settlement Class, and Cricket. 2.35 "Person" means any natural person, firm, corporation, unincorporated association, partnership, or other form of legal entity or government body, including its agents and representatives. 2.36 "Preliminary Approval Order" means the Order in which the Court grants its preliminary approval to this Settlement Agreement and preliminarily certifies the Settlement Class, authorizes dissemination of Class Notice to the Settlement Class, and appoints the Settlement Administrator. The form of the Preliminary Approval Order and Judgment is a material term of this Settlement Agreement. 2.37 "Qualifying Cricket CDMA Phone" means a CDMA compatible phone purchased from Cricket, or through its authorized agents, during the Class Period for which Cricket is able to verify the Phone's IMEI. 2.38 "Release" means the releases set forth in Section XIII of this Settlement Agreement. 2.39 "Released Claims" means the claims released in Section XIII of this Settlement Agreement. 2.40 "Released Parties" means: (a) Cricket; (b) Cricket's counsel; (c) Cricket's past, present, and future direct and indirect owners, parents, subsidiaries, and other corporate affiliates -7- JA 374 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 378 of 426 Total Pages:(418 of 466) 4 (including but not limited to all AT&T companies); (d) Cricket's successors and predecessors and their past, present, and future direct and indirect owners, parents, subsidiaries, and other corporate affiliates; (e) all entities with which Cricket contracted or engaged to market or sell CDMA mobile devices within the Class Period; (f) Cricket's insurance carriers and their counsel; and (g) for each of the foregoing Persons, each of their past, present, or future officers, directors, shareholders, owners, employees, representatives, agents, principals, partners, members, administrators, legatees, executors, heirs, estates, predecessors, successors, or assigns. 2.41 "Request for Exclusion" means the written submission submitted by a Settlement Class Member to opt out of the Settlement consistent with the terms of this Settlement Agreement. 2.42 "Service" refers to Cricket's prepaid, monthly wireless service offered to the public at Cricket Retail and Cricket Authorized Retailer locations. 2.43 "Settlement" or "Settlement Agreement" means the Settlement set forth in this Agreement between Plaintiff and Cricket and each and every exhibit attached hereto. 2.44 "Settlement Administration Costs" means any and all fees and costs incurred in administering the Settlement, to be paid exclusively from the Escrow Fund, including but not limited to, the fees and costs of disseminating all Class Notice, publishing Class Notice, administering and maintaining the Settlement Website, and providing Benefits to Settlement Class Members, but specifically excluding payment of the Incentive Award and payment of the any amounts awarded pursuant to the Fee and Cost Application. 2.45 "Settlement Administrator" means Kurtzman Carson Consultants. 2.46 "Settlement Class" means and includes all persons nationwide during the period July 12, 2013 to date of Preliminary Approval, who purchased a CDMA phone from Cricket or -8- JA 375 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 379 of 426 Total Pages:(419 of 466) 4 through its authorized agents. The following are excluded from the Settlement Class: (i) Cricket, any entity in which Cricket has a controlling interest or which has a controlling interest in Cricket, and Cricket's legal representatives, predecessors, successors, and assigns; (ii) governmental entities; and (iii) the Court presiding over any motion to approve the settlement. 2.47 "Settlement Class Members" means the Plaintiff and those persons who are members of the Settlement Class, as set forth in the Settlement Class as defined above, and who do not submit a timely and valid Request for Exclusion from the Settlement Class. 2.48 "Settlement Website" means the Internet website to be operated and maintained by the Settlement Administrator as described in Section VII of this Settlement Agreement. 2.49 When a deadline or date falls on a weekend or a legal Court holiday, the deadline or date shall be extended to the next business day that is not a weekend or legal Court holiday. III. ALL PARTIES AGREE THAT THEY RECOMMEND APPROVAL OF THE SETTLEMENT 3.01 Cricket's Position On The Conditional Certification Of Settlement Class. Cricket disputes that a class would be manageable and further denies that a litigation class properly could be certified on the claims asserted in this Litigation. Solely for purposes of avoiding the expense and inconvenience of further litigation, however, Cricket does not oppose the certification of the Settlement Class for the purposes of this Settlement only. Preliminary certification of the Settlement Class will not be deemed a concession that certification of a litigation class is appropriate, nor would Cricket be precluded from challenging class certification in further proceedings in this Litigation or in any other action if the Settlement Agreement is not finalized or finally approved. If the Settlement Agreement is not finally approved by the Court for any reason whatsoever, the certification of the Settlement Class will be void, and no doctrine of waiver, estoppel, or preclusion will be asserted in any litigated certification proceedings in this -9- JA 376 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 380 of 426 Total Pages:(420 of 466) 4 Litigation or any other judicial proceeding. No agreements made by or entered into by Cricket in connection with the Settlement Agreement may be used by Plaintiff, any Settlement Class Member, or any other person to establish any of the elements of class certification in any litigated certification proceedings, whether in this Litigation or any other judicial proceeding. 3.02 The parties agree that if the Settlement Agreement is not finally approved for any reason whatsoever, Cricket may renew its motion to compel arbitration (Dkt. No. 34). 3.03 Plaintiff's Belief In The Merits Of Case. Class Counsel has conducted an examination and evaluation of the relevant law and facts, including information provided by Cricket, to assess the merits of Plaintiff's claims and potential claims and to determine how best to serve the interests of the Settlement Class. 3.04 Plaintiff Recognizes The Benefits Of Settlement. Plaintiff recognizes and acknowledges, however, the expense and amount of time which would be required to continue to pursue this Litigation against Cricket, as well as the uncertainty, risk, and difficulties of proof inherent in prosecuting such claims on behalf of the Settlement Class, including the risk of not prevailing on the merits or on whether a class may be certified for litigation purposes. Plaintiff has concluded that it is desirable that this Litigation and any Released Claims be fully and finally settled and released as set forth in this Settlement. Plaintiff and Class Counsel believe that the Settlement set forth in this Agreement confers substantial benefits upon the Settlement Class and that it is in the best interests of the Settlement Class to settle as described in this Agreement. IV. SETTLEMENT CLASS RELIEF AND ESCROW FUND In consideration of a full, complete, and final settlement of the Action, dismissal of the Action with prejudice, and the Release in Section XIII below, and subject to the Court's approval, the Parties agree to the following relief: - 10 - JA 377 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 381 of 426 Total Pages:(421 of 466) 4 4.01 Benefits to Settlement Class Members. Cricket agrees to provide one (1) of the following three (3) Benefits, per Qualifying Cricket CDMA Phone, at the option of the claiming Settlement Class Member, in the manner described below, to those confirmed to be Settlement Class Members after receiving satisfactory proof of purchase of a Qualifying Cricket CDMA Phone during the Class Period: a. Cricket would unlock any Qualifying Cricket CDMA Phone of the Settlement Class Member ("Unlock Benefit"); OR b. following notice from the Claims Administrator that his claim has been approved, a former customer may port his existing wireless number onto a new line of Cricket Service (and a current customer may port or add a new line to his existing Cricket Service), without paying an activation fee, and receive 1 Gigabyte of additional free high-speed data after maintaining one month of Service with Cricket on that new line ("Data Benefit"); OR c. following notice from the Claims Administrator that his claim has been approved, and after maintaining one month of subsequent Service on either an existing or new line of Cricket Service, a Settlement Class Member may receive 1 Gigabyte of additional free high-speed data for up to four (4) subsequent consecutive months of timely prepaid Service ("Four Month Data Benefit"). 4.02 Activation of New Line Through Designated Cricket Website or Toll-Free Number. A Settlement Class Member who elects to activate a new line to obtain either the Data Benefit or Four Month Data Benefit must do so through a website or toll-free number specifically designated by Cricket. - 11 - JA 378 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 382 of 426 Total Pages:(422 of 466) 4 4.03 Escrow Fund. a. When this Settlement becomes Final, Cricket will deposit funds into the Escrow Fund sufficient to provide for all remaining Settlement Administration Costs that have not already been paid by Cricket directly, the payment of Attorneys' Fees and Costs, and the payment of an Incentive Award to Plaintiff. The Escrow Fund will be maintained by the Settlement Administrator. All of the monies deposited by Cricket into the Escrow Fund will be placed in an interest bearing escrow account established and maintained by the Settlement Administrator. b. All remaining Settlement Administration Costs that have not been paid by Cricket directly will be drawn from the Escrow Fund by the Settlement Administrator, subject to the written approval of Cricket (via its counsel). c. If this Settlement Agreement is not approved or for any reason the Effective Date does not occur, no payments or distributions of any kind shall be made, other than payments to the Settlement Administrator for services rendered and costs incurred. V. CLAIMS PROCESS 5.01 Claims Forms. a. To be eligible to receive one of the Benefits, a Settlement Class Member must submit a Claim Form that is determined by the Settlement Administrator to be valid, pursuant to the Claim Review Process set forth in Section 7.04, below. b. A Claim Form must include the following information: (i) the full legal name of the Settlement Class Member, (ii) the Settlement Class Member's Claim Number, which will be provided by the Settlement Administrator, (iii) a valid, current telephone number for the Settlement Class Member, (iv) a valid email address for the Settlement Class Member, (v) verification that the Settlement Class Member purchased a Qualifying Cricket CDMA Phone, - 12 - JA 379 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 383 of 426 Total Pages:(423 of 466) 4 (vi) the IMEI number from the Settlement Class Member's Qualifying Cricket CDMA Phone, and (vii) the Settlement Class Member's election of one of the three Benefits described in Section 4.01 above. c. The Online Claim Form and Instructions for submission are attached to this Agreement as Exhibit D. The Mail-in Claim Form and Instructions for submission are attached to this Agreement as Exhibit E. d. Information about how to locate the IMEI number from the Qualifying Cricket CDMA Phone shall be included on the Settlement Website. e. Each Settlement Class Member shall affirm that their statements in the Claim Form are true and correct to the best of their knowledge and belief. f. Settlement Class Members may submit one (1) Claim Form for each Qualifying Cricket CDMA Phone they purchased. 5.02 Submission of Claims. a. Direct Mail Notices delivered to Settlement Class Members shall contain the web address for the appropriate Claim Form. Notices delivered via email to Settlement Class Members shall contain a hyperlink to the Claim Form. b. Settlement Class Members may submit a Claim Form electronically through the Settlement Website. Settlement Class Members may also submit a Claim Form by mail at their own expense. The Settlement Website shall include a downloadable, printable Claim Form. 5.03 Claims Period. a. To be valid, Claim Forms submitted online via the Settlement Website must be submitted no later than one hundred and eighty (180) days after the Class Notice Date. - 13 - JA 380 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 384 of 426 Total Pages:(424 of 466) 4 b. To be valid, Claim Forms submitted by mail must be postmarked no later than one hundred and eighty (180) days after the Class Notice Date. VI. ATTORNEYS' FEES, COSTS AND PAYMENT TO CLASS REPRESENTATIVE 6.01 Attorneys' Fees And Costs. a. Subject to the conditions set forth in this Agreement, Cricket hereby agrees to pay to Class Counsel up to $290,000 as Attorneys' Fees and up to $10,000 in Costs (for a total amount of Attorneys' Fees and Costs of up to $300,000) in connection with the Settlement. This amount shall be in addition to the benefits Cricket has agreed to provide to members of the Settlement Class and in addition to Settlement Administration Costs. This proposed payment of Attorneys' Fees and Costs is subject to Court approval. b. Class Counsel agree to accept $300,000 as Attorneys' Fees and Costs in this matter, and agree that $300,000 will satisfy in full any statutory or other obligation Cricket may have to either the Settlement Class or Class Counsel for Attorneys' Fees and Costs in connection with the Settlement. c. Class Counsel will file a Fee and Cost Application with the Court for an award of Attorneys' Fees and Costs to be paid from the Escrow Fund in the agreed amount of $300,000. If approved by the Court, Class Counsel will be entitled to payment of the Attorneys' Fees and Costs out of the Escrow Fund within twelve (12) calendar days of the Effective Date. d. If any portion of the $300,000 is not approved by the Court, in full or in part, Class Counsel shall retain the right to further petition for attorneys' fees and costs in a total amount not to exceed $300,000 (the agreed maximum stated in Section 6.01(a)) and/or to appeal any such ruling. e. In the event that the Settlement does not become effective for any reason, including termination by one or more of the parties as contemplated by the terms of this - 14 - JA 381 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 385 of 426 Total Pages:(425 of 466) 4 Agreement, the agreement to pay Attorneys' Fees and Costs shall be void, and no doctrine of waiver, estoppel or preclusion will be asserted in any litigated proceedings in this matter. No statements made or actions taken by either party in furtherance of this Attorneys' Fees and Expenses Agreement constitute or may be used as an admission of, or evidence of, the validity or invalidity of any claims for Attorneys' Fees and Expenses. f. The parties represent that they commenced negotiations on proposed Attorneys' Fees and Costs only after they reached agreement on all the material terms of this Settlement Agreement. 6.02 Payment Of The Incentive Award To Class Representative. The Class Representative will ask the Court to award him an Incentive Award of $3,500 for the time and effort he has invested in the Action. Within twelve (12) calendar days after the Effective Date, and after receiving a W-9 form from the Class Representative, the Settlement Administrator shall disburse such funds to the Class Representative as awarded by the Court. The parties warrant that they commenced negotiations on the proposed Incentive Award only after they reached agreement on all the material terms of this Settlement Agreement. 6.03 Settlement Independent Of Award Of Fees, Costs And Incentive Award. The payments of Attorneys' Fees and Costs and the Incentive Award set forth in Sections 6.01 and 6.02 are subject to and dependent upon the Court's approval as fair, reasonable, adequate, and in the best interests of Settlement Class Members. This Settlement, however, is not dependent or conditioned upon the Court's approving Plaintiff's and/or Class Counsel's requests for such payments or awarding the particular amounts sought by Plaintiff and/or Class Counsel. In the event the Court declines Plaintiff's and/or Class Counsel's requests or awards less than the amounts sought, this Settlement will continue to be effective and enforceable by the Parties. - 15 - JA 382 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 386 of 426 Total Pages:(426 of 466) 4 VII. SETTLEMENT ADMINISTRATION AND COSTS 7.01 Costs Of Notice. All costs of providing the Class Notice as provided in this Agreement, including the costs of identifying members of the Settlement Class and the costs of printing, web hosting and/or publishing the Class Notice, shall be paid for by Cricket, subject to the terms of this Settlement Agreement. In the event that this Settlement Agreement is terminated in accordance with its terms, Cricket shall bear any costs of providing Class Notice already incurred. 7.02 Costs Of Administering Settlement. All Settlement Administration Costs shall be paid for by Cricket. In the event that this Settlement Agreement is terminated in accordance with its terms, Cricket shall bear any Settlement Administration Costs already incurred. 7.03 Settlement Administrator. The Settlement Administrator will be responsible for all matters relating to the administration of this Settlement, as set forth below. Those responsibilities include, but are not limited to: a. obtaining email or postal address information from Cricket for Settlement Class Members; b. completing Class Notice, as provided in Section VIII of this Settlement Agreement; c. creating and maintaining a Settlement Website, from which Settlement Class Members can access the Claim Form and copies of the Complaint, this Settlement Agreement, the Direct Mail and Email Notice, the Long Form Notice, the Preliminary Approval Order, and other important documents and information about the Settlement; d. acting as a liaison between Settlement Class Members and the Parties; e. preparing and providing a declaration to Cricket's Counsel and Class Counsel, no later than seven (7) calendar days prior to the Final Approval Hearing, that will: (i) - 16 - JA 383 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 387 of 426 Total Pages:(427 of 466) 4 attest the compliance with the provisions of this Settlement Agreement related to Class Notice; (ii) list each Settlement Class Member who timely and validly opted out of the Settlement; and f. performing any other tasks reasonably required to effectuate the Settlement. 7.04 Claims Review Process. a. Cricket shall have the right to verify the accuracy of information submitted during the Claims Process, either through its own records or through the Settlement Administrator, to ensure that claimants are Settlement Class Members and that they have submitted valid claims. b. Any Claim Form that does not contain all of the information required by paragraphs 5.01(b) and (e) above, shall be deemed invalid. However, the Settlement Administrator may email or mail such Settlement Class Member notifying them of the missing information and/or deficiencies and providing them with an opportunity to cure (the "Cure Notice"). Settlement Class Members shall have until the end of the Claims Period or 45-days from the date of e-mailing or mailing the Cure Notice to the Settlement Class Member, whichever is longer, to cure defective or incomplete claims. The 45-day cure period may extend after the end of the Claims Period for submission of Claim Forms so long as the original Claim Form was timely submitted. c. The Settlement Administrator shall attempt to obtain a valid email address for each Claim Form received that did not include a valid email address. d. The Settlement Administrator shall have the right to reject any claims that are deemed to be fraudulent or invalid or any claims that are deemed to be defective or - 17 - JA 384 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 388 of 426 Total Pages:(428 of 466) 4 incomplete after the Settlement Class Member has been provided an opportunity to cure pursuant to Section 7.04(b) above. 7.05 Notice to Settlement Class Members Who Submit Valid Claims. By no later than forty-five (45) days after the Effective Date, the Settlement Administrator shall send notice to all Settlement Class Members who submitted valid claims, informing them that their claims have been approved and providing instructions regarding how to redeem the Benefit they have selected. VIII. CLASS NOTICE 8.01 In the event that the Court enters the Preliminary Approval Order, the Settlement Administrator will provide Class Notice to the Settlement Class, as provided for in this Agreement no later than the Class Notice Date. 8.02 Email Notice. For the purposes of providing Class Notice and administering the Settlement, Cricket shall provide to the Settlement Administrator the Cricket Database, which includes contact information for Settlement Class Members. The Email Notice, as set forth in Exhibit A, will be provided to all Settlement Class Members for whom a complete email address is available in the Cricket Database. After the initial Email Notice provided on or before the Class Notice Date, additional Email Notice shall be provided at least two more times, to occur 30 and 90 days after the initial Email notice, to each Settlement Class Member whose initial Email Notice did not bounce back. The Settlement Administrator shall not send additional Email Notice to any Settlement Class Member who requests that he or she not receive additional e-mail relating to the Settlement. 8.03 Direct Mail Notice. For each Settlement Class Member for whom a complete email address is not listed in the Cricket Database the Settlement Administrator will send the Direct Mail Notice to the mailing address listed in the Cricket Database unless, as set forth - 18 - JA 385 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 389 of 426 Total Pages:(429 of 466) 4 below, that mailing address has been updated in the United States Postal Service National Change of Address database ("USPS Database"), in which case, the Settlement Administrator will send the Direct Mail Notice to the updated address. Prior to sending out Direct Mail Notices, the Settlement Administrator will use the "USPS Database" to determine whether any of the mailing addresses listed in the Cricket Database have been changed or updated. Where any addresses listed in the Cricket Database have been updated in the "USPS Database", the Settlement Administrator will send the Direct Mail Notice to the updated address. 8.04 Settlement Website. After entry of the Preliminary Approval Order and prior to the Class Notice Date, the Settlement Administrator shall cause the Complaint, Long Form Notice, this Settlement Agreement and other relevant documents to be made available on a dedicated Settlement Website to be administered by the Settlement Administrator. 8.05 CAFA Notice. Cricket, by its counsel and through the Settlement Administrator, will be responsible for serving the required CAFA Notice within ten (10) calendar days after the entry of the Preliminary Approval Order. Cricket, by its counsel, shall ensure that the Settlement Administrator has contracted in writing to retain such documents and records in accordance with this paragraph. 8.06 The Settlement Administrator shall have discretion to make minor revisions to the format of the Class Notice in a reasonable manner to reduce mailing or administrative costs. Before Class Notice is commenced, Class Counsel and Cricket's Counsel shall first be provided with a proof copy of any and all Class Notices (including what the items will look like in their final form), and shall have the right to inspect the same for compliance with the Settlement Agreement and with the Court's Orders. - 19 - JA 386 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 390 of 426 Total Pages:(430 of 466) 4 8.07 Declarations Of Compliance. The Settlement Administrator shall prepare a declaration attesting to compliance with the Class Notice requirements of this Settlement Agreement. Such declaration shall be provided to Class Counsel and Cricket's Counsel and filed with the Court no later than seven (7) calendar days prior to the Final Approval Hearing. 8.08 Best Notice Practicable. The Parties agree that compliance with the procedures described in this Section is the best notice practicable under the circumstances and shall constitute due and sufficient notice to the Settlement Class of the pendency of the Action, certification of the Settlement Class, the terms of the Settlement Agreement, and the Final Approval Hearing, and shall satisfy the requirements of the Federal Rules of Civil Procedure, the United States Constitution, and any other applicable law, rule and/or regulation. IX. PRELIMINARY APPROVAL 9.01 Order Of Preliminary Approval. As soon as practicable after the execution of this Settlement Agreement, Class Counsel shall apply, and Cricket shall file a notice joining Class Counsel's application, for entry of the Preliminary Approval Order. The proposed Preliminary Approval Order shall include provisions: a. preliminarily certifying the Settlement Class for settlement purposes only; b. preliminarily approving this Settlement and finding this Settlement sufficiently fair, reasonable and adequate to allow Class Notice to be disseminated to the Settlement Class; c. approving the form, content, and manner of the Class Notice; d. appointing Kurtzman Carson Consultants as the Settlement Administrator; e. setting a schedule for proceedings with respect to final approval of this Settlement, including scheduling a Final Approval Hearing for no earlier than 100 calendar days from the date of Preliminary Approval Order; - 20 - JA 387 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 391 of 426 Total Pages:(431 of 466) 4 f. providing that, pending entry of a Final Approval Order and Judgment, the Parties shall cooperate in seeking orders that no Settlement Class Member (either directly, in a representative capacity, or in any other capacity) shall commence or continue any action against Cricket or other Released Parties asserting any of the Released Claims; g. staying the Action, other than such proceedings as are related to this Settlement; and h. providing that no admissions have been made by Cricket. X. OPT-OUTS AND OBJECTIONS 10.01 Opting Out Of The Settlement. A Settlement Class Member wishing to make a Request for Exclusion from the Settlement Class shall mail the request in written form, by first class mail, postage prepaid, and postmarked to the address of the Settlement Administrator as specified in the Class Notice. Such Request for Exclusion shall clearly indicate the name, address, and telephone number of the person or entity seeking exclusion, the name and case number of the case; must be signed by such person; and shall state that the Settlement Class Member excludes him or herself from the Settlement. The Request for Exclusion shall not be effective unless it provides the required information and is postmarked no later than the Opt-Out Deadline, or the exclusion is otherwise accepted by the Court. No Settlement Class Member, or any person acting on behalf of or in concert or in participation with that Settlement Class Member, may request exclusion of any other Settlement Class Member from the Settlement Class. Copies of Requests for Exclusion will be provided by the Settlement Administrator to Class Counsel and to Cricket's Counsel not later than seven (7) calendar days after the Opt-Out Deadline. The Requests for Exclusion shall be filed with the Court by the Settlement Administrator in connection with the Plaintiff's Unopposed Motion for Final Approval of the Class Action Settlement. The Settlement Administrator will provide a list of each Settlement - 21 - JA 388 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 392 of 426 Total Pages:(432 of 466) 4 Class Member who timely and validly opted out of the Settlement in its declaration filed with the Court, as required by Section VII. 10.02 Deadline. Settlement Class Members who do not properly and timely submit a Request for Exclusion will be bound by this Settlement Agreement and the Judgment, including the Release in Section XIII below. Any member of the Settlement Class who submits a valid and timely Request for Exclusion will not be a Settlement Class Member and will not be bound by the terms of this Settlement Agreement. 10.03 Objections. Any Settlement Class Member who intends to object to the fairness of this Settlement must file a written objection with the Court by the Objection Deadline. In the written objection, the Settlement Class Member must state his or her full name, address, and telephone number, and must state the reasons for his or her objection, and whether he or she intends to appear at the Final Approval Hearing on his or her behalf or through counsel. Any documents supporting the objection must also be attached to the objection. 10.04 Final Approval Hearing. Any Settlement Class Member who has timely filed an Objection may appear at the Final Approval Hearing, either in person or through an attorney hired at the Settlement Class Member's own expense, to object to the fairness, reasonableness, or adequacy of this Settlement Agreement or the Settlement. XI. FINAL APPROVAL AND JUDGMENT ORDER 11.01 No later than seven (7) calendar days prior to the Final Approval Hearing, the Settlement Administrator will file with the Court and serve on counsel for all Parties a declaration stating that the Class Notice required by the Agreement has been completed in accordance with the terms of the Preliminary Approval Order. - 22 - JA 389 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 393 of 426 Total Pages:(433 of 466) 4 11.02 If the Court issues the Preliminary Approval Order, and all other conditions precedent to the Settlement have been satisfied, no later than fourteen (14) calendar days prior to Final Approval Hearing: a. All Parties will request, individually or collectively, that the Court enter the Final Approval Order, with Class Counsel filing a memorandum of points and authorities in support of a motion seeking Final Approval; and b. Class Counsel and/or Cricket may file a memorandum addressing any Objections submitted to the Settlement. 11.03 At the Final Approval Hearing, the Court will consider and determine whether the provisions of this Agreement should be approved, whether the Settlement should be finally approved as fair, reasonable, and adequate, whether any objections to the Settlement should be overruled, whether the Attorneys' Fees and Costs to Class Counsel and Incentive Award to the Class Representative should be approved, and whether a Judgment finally approving the Settlement should be entered. 11.04 This Agreement is subject to and conditioned upon the issuance by the Court of a Final Approval Order that grants final approval of this Agreement and enters a final Judgment and: a. finds that the Class Notice provided satisfies the requirements of due process and Federal Rules of Civil Procedure Rule 23(e)(1); b. finds that Settlement Class Members have been adequately represented by the Class Representative and Class Counsel; c. finds that the Settlement Agreement is fair, reasonable, and adequate with respect to the Settlement Class, that each Settlement Class Member will be bound by this - 23 - JA 390 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 394 of 426 Total Pages:(434 of 466) 4 Agreement, including the Release and the covenant not to sue set forth in Section XIII, and that this Settlement Agreement should be and is approved. d. dismisses on the merits and with prejudice all claims of the Settlement Class Members asserted in the Action; e. permanently enjoins each and every Settlement Class Member from bringing, joining, or continuing to prosecute any Released Claims against Cricket or any of the Released Parties; and f. retains jurisdiction of all matters relating to the interpretation, administration, implementation, effectuation, and enforcement of this Settlement Agreement. XII. FINAL JUDGMENT 12.01 The judgment entered at the Final Approval Hearing will be deemed Final for purposes of this Settlement Agreement after the latest of the following: (i) if no individual, or counsel on their behalf, has filed an appearance that would give them potential standing to appeal the Final Approval Order and Judgment, then on the date the settlement is finally approved by this Court; (ii) if an individual, or on an attorney has filed an appearance, and no notice of appeal of the Final Approval Order and Judgment is filed, the expiration date of the time for filing any appeal from the Final Approval Order and Judgment, including any extension of such expiration date granted by order of any court of competent jurisdiction, by operation of law, or otherwise; (iii) the date of final affirmance on an appeal of the Final Approval Order and Judgment, the expiration of the time for a petition for rehearing and a petition for certiorari of the Final Approval Order and Judgment, or, if such a petition is filed, either the denial of that petition or, if the petition is granted, the date of final affirmance of the Final Approval Order and Judgment following review pursuant to that grant; or (iv) the date of final dismissal of any appeal of the - 24 - JA 391 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 395 of 426 Total Pages:(435 of 466) 4 Final Approval Order and Judgment or the final dismissal of any proceeding to review the Final Approval Order and Judgment. XIII. RELEASE OF CLAIMS 13.01 Plaintiff and each Settlement Class Member, as well as their respective assigns, heirs, executors, administrators, successors, and agents, hereby release, resolve, relinquish, and discharge each and all of the Released Parties from each of the Released Claims (as defined below). Plaintiff and the Settlement Class Members further agree that they will not institute any action or cause of action (in law, in equity or administratively), suits, debts, liens, or claims, known or unknown, fixed or contingent, which they may have or claim to have, in state or federal court, in arbitration, or with any state, federal or local government agency or with any administrative or advisory body, arising from or reasonably related to the Released Claims. The Release does not apply to members of the Settlement Class who opt out of the Settlement by submitting a valid and timely Request for Exclusion. 13.02 "Released Claims" means any and all claims, causes of action, suits, obligations, debts, demands, agreements, promises, liabilities, damages, losses, controversies, costs, expenses, and attorneys' fees of any nature whatsoever, whether based on any federal law, state law, common law, territorial law, tribal law, foreign law, contract, rule, regulation, any regulatory promulgation (including, but not limited to, any opinion or declaratory ruling), common law, or equity, whether known or unknown, suspected or unsuspected, asserted or unasserted, foreseen or unforeseen, actual or contingent, liquidated or unliquidated, punitive or compensatory, as of the date of the Final Approval Order, that arise out of or relate in any way to Cricket's sale, marketing, and/or advertising of CDMA mobile devices prior to or in connection with Cricket's transition from CDMA to GSM technology, including but not limited to all warranty claims under the federal Magnuson-Moss Warranty Act and state warranty laws, state - 25 - JA 392 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 396 of 426 Total Pages:(436 of 466) 4 common law claims for fraudulent concealment, unjust enrichment, negligent misrepresentation, fraud, and any claims under the Maryland Consumer Protection Act, California Unfair Competition Law, or other state consumer protection laws. 13.03 Waiver Of Unknown Claims. Without limiting the foregoing, the Released Claims specifically extend to claims that Plaintiff and Settlement Class Members do not know or suspect to exist in their favor at the time that the Settlement and the releases contained therein become effective. This Section constitutes a waiver, without limitation as to any other applicable law, of Section 1542 of the California Civil Code, which provides: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. 13.04 Plaintiff and the Settlement Class Members understand and acknowledge the significance of these waivers of California Civil Code Section 1542 and similar federal and state statutes, case law, rules, or regulations relating to limitations on releases. In connection with such waivers and relinquishment, Plaintiff and the Settlement Class Members acknowledge that they are aware that they may hereafter discover facts in addition to, or different from, those facts that they now know or believe to be true with respect to the subject matter of the Settlement, but that it is their intention to release fully, finally, and forever all Released Claims with respect to the Released Parties, and in furtherance of such intention, the releases of the Released Claims will be and remain in effect notwithstanding the discovery or existence of any such additional or different facts. 13.05 Covenant Not To Sue. Plaintiff agrees and covenants, and each Settlement Class Member will be deemed to have agreed and covenanted, not to sue any Released Party with - 26 - JA 393 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 397 of 426 Total Pages:(437 of 466) 4 respect to any of the Released Claims, or otherwise to assist others in doing so, and agree to be forever barred from doing so, in any court of law or equity, or any other forum. XIV. TERMINATION OF AGREEMENT 14.01 Either Plaintiff Or Defendant May Terminate The Agreement Under Certain Circumstances. Plaintiff and Cricket will each have the right to unilaterally terminate this Agreement by providing written notice of his, her, their, or its election to do so ("Termination Notice") to all other Parties hereto within ten (10) calendar days of any of the following occurrences: a. the Court rejects, materially modifies, materially amends or changes, or declines to issue a Preliminary Approval Order or a Final Approval Order with respect to the Settlement Agreement; b. an appellate court reverses the Final Approval Order, and the Settlement Agreement is not reinstated without material change by the Court on remand; c. any court incorporates into, or deletes or strikes from, or modifies, amends, or changes the Settlement Agreement in a way that Plaintiff or Defendant reasonably consider material, unless such modification or amendment is accepted in writing by all Parties, except that, as provided above, the Court approval of Attorneys' Fees and Costs or the Incentive Award, or their amount, is not a condition of the Settlement; d. the Effective Date does not occur. 14.02 Cricket's Additional Right To Terminate the Agreement. In addition to the grounds for termination listed in Section 14.01, Cricket shall have the right to unilaterally terminate this Agreement by providing Termination Notice to all other Parties hereto within fourteen (14) calendar days of any of the following occurrences: - 27 - JA 394 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 398 of 426 Total Pages:(438 of 466) 4 a. The order certifying a class of Maryland citizens in Scott v. Cricket Communications, LLC, No. 24-C-15-004918 (Cir. Ct. Balt. City) is not vacated. b. The Court does not approve the Class Notice plan detailed in Section VIII. c. more than five percent (5%) of the Class opts out; and d. any other ground for termination provided for elsewhere in this Agreement occurs. 14.03 Revert To Status Quo If Plaintiff Or Defendant Terminates. If either Plaintiff or Cricket terminates this Agreement as provided in Sections 14.01 and 14.02, the Agreement will be of no force and effect and the Parties' rights and defenses will be restored, without prejudice, to their respective positions as if this Agreement had never been executed, and any orders entered by the Court in connection with this Agreement will be vacated. However, any payments made to the Settlement Administrator for services rendered to the date of termination will not be refunded to Cricket. XV. NO ADMISSION OF LIABILITY 15.01 Cricket denies any liability or wrongdoing of any kind associated with the alleged claims in the Complaint. Cricket has denied and continues to deny each and every material factual allegation and all claims asserted against it in the Action. Nothing in this Settlement Agreement will constitute an admission of wrongdoing or liability, or of the truth of any allegations in the Action. Nothing in this Settlement Agreement will constitute an admission by Cricket that the Action is properly brought on a class or representative basis, or that classes may be certified, other than for settlement purposes. To this end, the Settlement of the Action, the negotiation and execution of this Agreement, and all acts performed or documents executed pursuant to or in furtherance of the Settlement: (i) are not and will not be deemed to be, and may not be used as, an admission or evidence of any wrongdoing or liability on the part of Cricket or - 28 - JA 395 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 399 of 426 Total Pages:(439 of 466) 4 of the truth of any of the allegations in the Action; (ii) are not and will not be deemed to be, and may not be used as an admission or evidence of any fault or omission on the part of Cricket in any civil, criminal, or administrative proceeding in any court, arbitration forum, administrative agency, or other tribunal; and (iii) are not and will not be deemed to be and may not be used as an admission of the appropriateness of these or similar claims for class certification. 15.02 Pursuant to Federal Rule of Evidence Rule 408 and any similar provisions under the laws of any state, neither this Agreement nor any related documents filed or created in connection with this Agreement will be admissible in evidence in any proceeding, except as necessary to approve, interpret, or enforce this Agreement. 15.03 The Parties agree that nothing in this Settlement Agreement shall be construed to prohibit communications between Cricket or any of the other Released Parties about the Settlement or any related topic, or between Cricket and any Settlement Class Member in the regular course of Cricket's businesses. XVI. CONFIDENTIALITY 16.01 The Parties agree that this Settlement Agreement will be publicly filed in the Court record in connection with the Motion for Preliminary Approval. The Parties agree to keep the fact of settlement confidential until such time as the Motion for Preliminary Approval is filed. 16.02 The parties agree that they will not initiate any publicity concerning the Settlement other than to state generally that the Parties have reached a settlement that is mutually agreeable to all Parties and is beneficial to Class Members and to encourage Class Members to submit claims. The parties may only make public statements that comply with any stipulations concerning confidentiality or protective orders and will not disclose information that is not part of the public record. - 29 - JA 396 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 400 of 426 Total Pages:(440 of 466) 4 16.03 Plaintiff, Class Counsel, Cricket and their agents each shall refrain from disparaging the Released Parties or taking any action designed or reasonably foreseeable to cause harm to the public perception of the Released Parties regarding any issue related in any way to the Action or the Settlement. Nothing in this Agreement is intended to limit or waive the confidentiality of communications under the attorney-client privilege between Class Counsel and Plaintiff and/or Settlement Class Members, nor is anything in this Agreement intended to limit the ability of Class Counsel to make truthful representations to judicial authorities regarding either their appointment as Class Counsel or the Settlement of this matter. XVII. MISCELLANEOUS 17.01 Entire Agreement. This Agreement, the exhibits hereto, and the termination provision referenced in Section XIV above constitute the entire agreement between the Parties. No representations, warranties, or inducements have been made to any of the Parties, other than those representations, warranties, and inducements contained in this Agreement. 17.02 Successors. Each and every term of this Settlement Agreement shall be binding upon and inure to the benefit of Plaintiff, the Settlement Class Members, and any of their successors and personal representatives, and shall bind and shall inure to the benefit of the Released Parties, all of which persons and entities are intended to be beneficiaries of this Settlement Agreement. 17.03 Potential Changes To Attachments. The Parties agree to request that the Court approve the forms of the Email Notice attached hereto as Exhibit A, the Direct Mail Notice attached hereto as Exhibit B, the Long Form Notice attached hereto as Exhibit C, the Online Claim Form and Instructions attached hereto as Exhibit D, and the Mail-in Claim Form and Instructions attached hereto as Exhibit E. The fact that the Court may require non-substantive changes to any of these documents does not invalidate this Settlement Agreement. - 30 - JA 397 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 401 of 426 Total Pages:(441 of 466) 4 17.04 Governing Law. This Agreement will be governed by the laws of the State of Maryland except to the extent with or preempted by federal law. 17.05 Jurisdiction. The Court will retain continuing and exclusive jurisdiction over the Parties to this Agreement, including all Settlement Class Members, for purposes of the administration and enforcement of this Agreement. 17.06 No Construction Against Drafting Party. This Agreement was drafted jointly by the Parties and, in construing and interpreting this Agreement, no provision of this Agreement will be construed or interpreted against any Party based upon the contention that this Agreement or a portion of it was drafted or prepared by that Party. 17.07 Resolution Of Disputes. The Parties will cooperate in good faith in the administration of this Settlement and agree to use their best efforts to promptly file a Motion for Preliminary Approval with the Court and to take any other actions required to effectuate this Settlement. Any unresolved dispute regarding the administration of this Agreement will be decided by the Court or by Judge Legg (Ret.), the mediator agreed upon by the parties. 17.08 Counterparts. This Agreement may be signed in counterparts and the separate signature pages executed by the Parties and their counsel may be combined to create a document binding on all of the Parties and together will constitute one and the same instrument. 17.09 Time Periods. The time periods and dates described in this Agreement are subject to Court approval and may be modified upon order of the Court or written stipulation of the Parties. 17.10 Authority. Each person executing this Settlement Agreement on behalf of any of the Parties hereto represents that such person has the authority to so execute this Agreement. - 31 - JA 398 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 402 of 426 Total Pages:(442 of 466) 4 17.11 No Oral Modifications. This Agreement may not be amended, modified, altered, or otherwise changed in any manner, except by a writing signed by all of the duly authorized agents of Defendant and Plaintiff, and approved by the Court. 17.12 Terms and Conditions Not Superseded. Except as expressly provided herein, nothing in this Agreement abrogates, supersedes, modifies, or qualifies in any way any of the contractual terms and conditions applicable in the ordinary course to the relationship between Cricket and its customers, or to the services provided by Cricket and purchased by its customers. 17.13 No Collateral Attack. This Agreement shall not be subject to collateral attack by any Class Members or their representatives any time on or after the Effective Date. Such prohibited collateral attacks shall include, but shall not be limited to, claims that a Class Member's claim was improperly denied and/or that a Class Member failed to receive timely notice of the Settlement. 17.14 Notices. Unless otherwise stated in this Agreement, any notice to the Parties required or provided for under this Agreement will be in writing and may be sent by electronic mail, overnight delivery or hand delivery, postage prepaid, as follows: If To Class Counsel: Cory L. Zajdel Z Law, LLC 2345 York Road, Suite B-13 Timonium, MD 21093 (443) 213-1977 clz@zlawmaryland.com If To Counsel For Defendant: Mark W. Ryan Archis A. Parasharami - 32 - JA 399 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 403 of 426 Total Pages:(443 of 466) 4 Mayer Brown LLP 1999 K Street, N.W. Washington, DC 20006-1101 202-263-3338 mryan@mayerbrown.com aparasharami@mayerbrown.com IN WITNESS HEREOF, the undersigned have executed this Stipulation of Settlement as of: [SIGNATURE PAGES] - 33 - JA 400 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 404 of 426 Total Pages:(444 of 466) 4 IN WITNESS HEREOF, the undersigned have executed this Stipulation of Settlement as of: _______________________________ By: Tim Bond Dated: November ___, 2017 On Behalf of Plaintiff's Counsel/Class Counsel, __________________________________ Cory L. Zajdel Z Law, LLC 2345 York Road, Suite B-13 Timonium, MD 21093 Dated: November ___, 2017 CRICKET COMMUNICATIONS, LLC _______________________________ By: Nataraj Rao Its: Vice President, Business Operations and Strategy Dated: November ___, 2017 On Behalf of Defendant's Counsel, __________________________________ Mark W. Ryan Mayer Brown LLP 1999 K Street, N.W. Washington, DC 20006-1101 Dated: November ___, 2017 - 34 - JA 401 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 405 of 426 Total Pages:(445 of 466) JA 402 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 406 of 426 Total Pages:(446 of 466) JA 403 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 407 of 426 Total Pages:(447 of 466) JA 404 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 408 of 426 Total Pages:(448 of 466) JA 405 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 409 of 426 Total Pages:(449 of 466) JA 406 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 410 of 426 Total Pages:(450 of 466) JA 407 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 411 of 426 Total Pages:(451 of 466) JA 408 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 412 of 426 Total Pages:(452 of 466) JA 409 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 413 of 426 Total Pages:(453 of 466) JA 410 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 414 of 426 Total Pages:(454 of 466) JA 411 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 415 of 426 Total Pages:(455 of 466) JA 412 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 416 of 426 Total Pages:(456 of 466) JA 413 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 417 of 426 Total Pages:(457 of 466) JA 414 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 418 of 426 Total Pages:(458 of 466) JA 415 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 419 of 426 Total Pages:(459 of 466) JA 416 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 420 of 426 Total Pages:(460 of 466) JA 417 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 421 of 426 Total Pages:(461 of 466) JA 418 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 422 of 426 Total Pages:(462 of 466) JA 419 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 423 of 426 Total Pages:(463 of 466) JA 420 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 424 of 426 Total Pages:(464 of 466) JA 421 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 425 of 426 Total Pages:(465 of 466) JA 422 Appeal: 17-2288 Doc: 22-2 Filed: 12/12/2017 Pg: 426 of 426 Total Pages:(466 of 466) JA 423

MOTION by Appellant Michael A. Scott file supplemental appendix. Date and method of service: 12/12/2017 Courier delivery. [1000207468] [17-2288] Martin Wolf [Entered: 12/12/2017 03:57 PM]

Appeal: 17-2288 Doc: 23-1 Filed: 12/12/2017 Pg: 1 of 5 Total Pages:(1 of 116) UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT MICHAEL A. SCOTT, Potential Intervenor-Appellant, TIM BOND, On his own behalf and on behalf of All others similarly situated, Plaintiff-Appellee, Appeal No. 17-2288 and CRICKET COMMUNICATIONS, LLC, Defendant-Appellee, and AT&T INC., Defendant. LOCAL RULE 28(b) MOTION TO FILE SUPPLEMENTAL MATERIAL AS AN ATTACHMENT TO THE BRIEF OF POTENTIAL INTEVENOR-APPELLANT Potential Intervenor-Appellant, Michael A. Scott, through his attorneys Benjamin H. Carney, Martin E. Wolf and Gordon, Wolf & Carney, Chtd., and pursuant to Local Rule 28(b) of this Court, hereby moves for leave to file the attached, separately-bound appendix to his brief in this appeal. 1 Appeal: 17-2288 Doc: 23-1 Filed: 12/12/2017 Pg: 2 of 5 Total Pages:(2 of 116) This appeal is from an order denying Mr. Scott's motion to intervene in the District Court case. The procedure is complicated by the fact that Mr. Scott is the class representative of a certified class in a related case. That case was originally filed in the Circuit Court for Baltimore City, was removed to District Court, remanded to the Baltimore City Court, the remand was reversed by this Court, was removed again, and is currently pending again in the District Court. In order to provide the necessary background and factual context for the Court in this appeal, Mr. Scott must describe the facts and procedure in the related case. The appendix that is the subject of this motion includes the docket entries in the related case, from both the Circuit Court for Baltimore City and the District Court. It also includes seven documents from the related case, such as the class certification order, remand order, and others by way of example. The docket entries and the selected documents are needed to provide support for the factual and procedural recitation in Mr. Scott's brief. Local Rule 28(b) provides in pertinent part (italics in original): Should a party wish to supplement the brief with matters other than those designated in FRAP 28(f) or FRAP 32.1(b), the additional material must be presented to the Court under separate cover, accompanied by a motion for leave to file such supplemental material as an attachment to the brief. The materials in the proposed appendix are documents "other than those designated in FRAP 28(f) or FRAP 32.1(b)." Nevertheless, they are materials of which this Court 2 Appeal: 17-2288 Doc: 23-1 Filed: 12/12/2017 Pg: 3 of 5 Total Pages:(3 of 116) may take judicial notice. See, U.S. v. Vann, 660 F.3d 771, 776 (4th Cir. 2011)(taking judicial notice of docket in state court proceeding); U.S. v. Kane, 434 Fed.Appx. 175, 2011 WL 2173708 at *2 (4th Cir. June 3, 2011)(taking judicial notice of indictment in New Jersey case); Lolavar v. de Santibanes, 430 F.3d 221, 224 n.2 (4th Cir. 2005)(taking judicial notice of the records of a court of record); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) quoting St. Louis Baptist Temple, Inc. v. FDIC, 605 F.2d 1169, 1172 (10th Cir. 1979)("federal courts, in appropriate circumstances, may take notice of proceedings in other courts, both within and without the federal judicial system, if the proceedings have a direct relation to the matters at issue") and cases cited therein; see also, Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir. 1991)("courts routinely take judicial notice of documents filed in other courts"); Conagra Foods, Inc. v. Americold Logistics, LLC, 776 F.3d 1175, 1176 n. 1 (10th Cir. 2015)("[W]e may take judicial notice of public records, including district court filings."); Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n. 6 (9th Cir. 2006)("We may take judicial notice of court filings and other matters of public record." The Court reviewed documents filed in a case in which Wal-Mart settled with Visa in the Eastern District of New York.). 3 Appeal: 17-2288 Doc: 23-1 Filed: 12/12/2017 Pg: 4 of 5 Total Pages:(4 of 116) Statement Pursuant to L.R. 27(a) Counsel for Plaintiff-Appellee Bond and Defendant-Appellee Cricket Communications were notified of Mr. Scott's intention to file this motion. Counsel for Mr. Bond does not consent but will not oppose the motion. Counsel for Cricket is considering the motion, but has not responded regarding consent or whether Cricket intends to oppose. WHEREFORE, Intervenor Michael Scott requests an Order: 1. Granting the motion; 2. Permitting Mr. Scott to file the attached, separately-bound appendix with his brief in this appeal; and 3. Granting such further relief as justice demands. Respectfully submitted, /s/Martin E. Wolf Benjamin H. Carney BCarney@GWCfirm.com Martin E. Wolf MWolf@GWCfirm.com GORDON, WOLF & CARNEY, CHTD. 100 W. Pennsylvania Ave., Suite 100 Towson, Maryland 21204 410-825-2300 410-825-0066 fax Attorneys for Potential Intervenor-Appellant Michael Scott 4 Appeal: 17-2288 Doc: 23-1 Filed: 12/12/2017 Pg: 5 of 5 Total Pages:(5 of 116) CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 12th day of December, 2017, copies of the foregoing Local Rule 28(b) Motion to File Supplemental Material as an Attachment to the Brief of Potential Intervenor-Appellant were served by ECF on counsel for the Parties as set forth below: Cory L. Zajdel Archis A. Parasharami Z Law LLC Matthew A. Waring 2345 York Road, Suite B-13 Mayer Brown LLP Timonium, Maryland 21093 1999 K St. NW Washington, DC 20006 Attorneys for Plaintiff-Appellee Attorneys for Defendant-Appellee Tim Bond Cricket Communications, LLC /s/Martin E. Wolf 5 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 1 of 111 Total Pages:(6 of 116) No. 17-2288 UNITED STATES COURT OF APPEALS For the Fourth Circuit _______________ MICHAEL A. SCOTT, Potential Intervenor-Appellant, v. TIM BOND, on his own behalf and on behalf of all others similarly situated, Plaintiff-Appellee, and CRICKET COMMUNICATIONS, LLC, Defendant-Appellee, and AT&T INC., Defendant. _______________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND (The Honorable Marvin J. Garbis) _______________ APPENDIX TO BRIEF OF MICHAEL A. SCOTT _______________ Benjamin H. Carney Martin E. Wolf GORDON, WOLF & CARNEY, CHTD. 100 W. Pennsylvania Avenue, Suite 100 Towson, Maryland 21204 Tel. 410-825-2300 Fax. 410-825-0066 Counsel for Potential Intervenor-Appellant Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 2 of 111 Total Pages:(7 of 116) TABLE OF CONTENTS Page Scott v. Cricket Comms., LLC, Circuit Court for Baltimore City Docket Entries .......................................................................................................... 1 Class Action Complaint and Demand for Jury Trial ............................................ 13 Order Certifying Class ........................................................................................... 31 Scott v. Cricket Comms., LLC, U.S. Dist. Court, No. 15-03330 Docket Entries ........................................................................................................ 37 Declaration of Chad Walker .................................................................................. 45 Declaration of Rick Cochran ................................................................................. 47 Order Remanding Case to Circuit Court for Baltimore City .............................. 49 Letter to Judge Russel dated August 11, 2017 ....................................................... 71 Response to Motion for Entry of Administrative Order No. 1.............................. 72 i Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 3 of 111 Total Pages:(8 of 116) APX 1 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 4 of 111 Total Pages:(9 of 116) APX 2 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 5 of 111 Total Pages:(10 of 116) APX 3 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 6 of 111 Total Pages:(11 of 116) APX 4 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 7 of 111 Total Pages:(12 of 116) APX 5 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 8 of 111 Total Pages:(13 of 116) APX 6 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 9 of 111 Total Pages:(14 of 116) APX 7 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 10 of 111 Total Pages:(15 of 116) APX 8 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 11 of 111 Total Pages:(16 of 116) APX 9 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 12 of 111 Total Pages:(17 of 116) APX 10 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 13 of 111 Total Pages:(18 of 116) APX 11 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 14 of 111 Total Pages:(19 of 116) APX 12 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 15 of 111 Total Pages:(20 of 116) 5 < Michael A. Scott, IN THE CIRCUIT COURT FOt1/1/ 6 Bluebird Lane BALTIMORE CITY Essex, Maryland 21221 on behalf of himself and all others similarly situated, Case No. Plaintiff V. Cricket Communications, LLC, f/k/a Cricket Communications, Inc. 1209 Orange Street Wilmington, Delaware 19801 Serve on: The Corporation Trust Incorporated 351 West Camden Street Baltimore, Maryland 21201 Defendant. CLASS ACTION COMPLAINT AND DEMAND FOR JURY TRIAL Michael A. Scott ("Named Plaintiff' or "Plaintiff"), on his own behalf and on behalf of all others similarly situated, sues Cricket Communications, LLC f/k/a Cricket Communications, Inc. ("Cricket" or "Defendant"). I. INTRODUCTION a. Background 1. This is a Class Action Complaint against Cricket, for its sale to Plaintiff and other Class members of obsolete mobile phones which fail in their essential purpose — making telephone calls or other mobile communications. 2. Cricket unlawfully sold these mobile phones to Plaintiff and other Class members in order to unload inventory it knew was obsolete. APX 1 13 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 16 of 111 Total Pages:(21 of 116) 5 3. In doing so, Cricket breached warranties. In particular, in this Complaint, Plaintiff asserts breach of warranty claims under the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq. 4. Named Plaintiff and the Class are Maryland citizens who purchased Cricket mobile phones which are only usable on a network using Code Division Multiple Access ("CDMA") technology — when Cricket knew and intended that these mobile phones were obsolete because Cricket has shut down its CDMA network, and has long planned to do so. 5. Indeed, Cricket planned to shut down its CDMA network, and use only Global Systems for Mobile ("GSM") technology, since at least July 2013, when AT&T agreed to acquire Cricket and shut down Cricket's CDMA network. 6. Plaintiff and the Class' cellphones cannot be transferred from Cricket's CDMA network to Cricket's GSM network. 7. Plaintiff and the Class' cellphones cannot be used on another cellphone service provider's network, because they have. been "locked" by Cricket. Cricket's refusal to provide service for those telephones renders the telephones useless and worthless. 8. The mobile telephones Plaintiff and the Class purchased from Cricket are useless and worthless. 9. The mobile telephones Plaintiff and the Class purchased from Cricket cannot be used for the ordinary purpose for which mobile telephones are used — to make telephone calls and other mobile communications. APX 9 14 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 17 of 111 Total Pages:(22 of 116) 5 10. Cricket breached express and implied warranties when it sold mobile telephones to Plaintiff and to other Class members which are useless and worthless because Cricket has shut down the technology required for those cellphones to operate, and because Cricket intended to shut down that service at the time it sold the telephones to Plaintiff and the Class. 11. As a result of Cricket's unlawful scheme, Named Plaintiff and members of the Class were damaged. 12. Cricket's systematic sale of obsolete CDMA cellphones to Plaintiff and other Class members makes this case particularly suitable for resolution through a class action lawsuit. II. PARTIES 13. Named Plaintiff Michael Scott is a natural person who is a Maryland citizen. 14. Defendant Cricket is Delaware limited liability company, which maintains its principal place of business in Atlanta, Georgia. Cricket does substantial business in Baltimore City, Maryland. III. JURISDICTION AND VENUE 15. Subject matter jurisdiction is proper under MD. CODE ANN., CTS. & JUD. PROC. § 1-501 (2006), and this Court has personal jurisdiction pursuant to MD. CODE ANN., CTS. 8z JUD. PROC. § 6-102(a), as Cricket maintains an agent for service of process in Maryland, and will be served in Maryland. 16. Venue is proper under MD. CODE ANN., CTS. & JUD. PROC. § 6-201(a) APX3 15 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 18 of 111 Total Pages:(23 of 116) 5 because Cricket carries out regular and substantial business in Baltimore City and regularly solicits business from residents of Baltimore City. Among other things, Cricket sells cellphones from physical locations in Baltimore City, has agents located in Baltimore City, and provides services to cellphones located in Baltimore City. 17. Jurisdiction is further proper in this Court under the Magnuson-Moss Act, 15 U.S.C. §2310(d). No federal jurisdiction exists, because this action is brought as a class action, and there are fewer than one hundred named plaintiffs. W. FACTS APPLICABLE TO ALL CLASS MEMBERS 18. This is an action against Cricket resulting from its uniform and consistent sale of mobile telephones to Plaintiff and other Class members which are obsolete, and which Cricket knew were obsolete at the time of sale, due to Cricket's intentional and permanent shut-down of its CDMA network, which is required to operate these telephones. 19. Prior to 2015, the majority of telephones purchased through Cricket, and using Cricket services, operated exclusively on a 3G CDMA — or "Third Generation Code Division Multiple Access" — network. 20. Cricket intended to shut down its CDMA network at least as of July, 2013. 21. Nevertheless, Cricket continued selling CDMA-only handsets on and after July 2013. 22. Not only did Cricket sell CDMA-only handsets knowing that it was in APX 4 16 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 19 of 111 Total Pages:(24 of 116) 5 the process of shutting down its CDMA network, but those CDMA handsets were "locked" by Cricket's own design so that they could only be used on a Cricket CDMA network. 23. Cricket's sale of CDMA-only mobile telephone handsets, which were locked so that they could only be used on Cricket's CDMA network, when Cricket was in the process of deliberately shutting down the only network on which those mobile telephones could be used, violated Maryland law. 24. As part of its regular business practices, Cricket systematically and regularly sold obsolete CDMA-only mobile telephones to Plaintiff and other members of the Class after July 12, 2013, knowing that these phones were defective because they would not be usable on anything but the CDMA network Cricket was in the process of shutting down. V. FACTS APPLICABLE TO NAMED PLAINTIFF 25. Cricket's unlawful scheme is illustrated through the circumstance of the named Plaintiff, Michael Scott. 26. After July, 2013, but before March, 2014, Mr. Scott purchased two Samsung Galaxy S4 CDMA-only mobile telephones from Cricket. 27. Each of the mobile telephones Mr. Scott purchased from Cricket cost hundreds of dollars each. 28. Each of the mobile telephones Mr. Scott purchased from Cricket included an express statement, constituting an express warranty, that the telephone included "Nationwide Coverage" and that "Cricket's network provides APX5 17 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 20 of 111 Total Pages:(25 of 116) 5 unsurpassed nationwide coverage." 29. Unknown to Mr. Scott at the time of sale, but known to Cricket, the cellphones it sold to him were defective at the time of sale. These mobile telephones, at the time of sale, were not fit for the ordinary or particular purpose for which they were sold — making telephone calls and other mobile communications after Cricket's CDMA network was, in fact, shut down in 2015. Although the mobile telephones worked temporarily after the sale, their inherent defect was present at the time of sale, and only manifested itself once Cricket did, as it had planned at the time of sale, shut down the only network on which the telephones would work. 30. At the time of sale, Cricket planned and intended to entirely cease providing the service required to operate these CDMA-only telephones, and yet it sold those telephones to Mr. Scott and other Class members and "locked" those telephones so that they would be guaranteed to never work following the shut-down of Cricket's CDMA network. This scheme ensured that Cricket would be able to sell additional phones following the shut down of its CDMA network. 31. Cricket never disclosed to Mr. Scott at the time of sale that it intended to cease providing service for the telephones he was purchasing for hundreds of dollars. 32. Cricket knew that Mr. Scott was purchasing the mobile telephones for the particular purpose of making telephone calls and other mobile communications. 33. Cricket breached the implied warranties of merchantability and fitness for a particular purpose by selling Mr. Scott mobile telephones, when it planned and APX618 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 21 of 111 Total Pages:(26 of 116) 5 intended at the time of sale to shut down the service which was required for those phones to make telephone calls or otherwise conduct communications. 34. As a result of Cricket's acts and omissions as set forth in this Complaint, Named Plaintiff and the Class were led to purchase worthless merchandise, lost the benefit of their bargains, and have sustained other losses and damages. VI. VIOLATIONS OF MARYLAND'S EXPRESS WARRANTY AND IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE 35. Although this Complaint does not assert a UCC cause of action for violation of express warranties and the implied warranties of merchantability or fitness for a particular purpose, Cricket's actions as set forth in this Complaint violate express warranties and the implied warranties of merchantability and fitness for a particular purpose under the UCC, including under MD. CODE ANN., COMM. LAW §§ 2-313, 2-314 and 2-315. 36. Cricket's affirmations of fact concerning the mobile telephones, and descriptions of the mobile telephones, which Cricket made to Plaintiff and the Class, relating to the mobile telephones and part of the basis of the bargain, created an express warranty that the mobile telephones would operate on a nationwide. network providing "unsurpassed coverage." The mobile telephones Cricket sold to Plaintiff and the Class did not conform to this description. 37. Under both a consumer's reasonable expectations as well as trade quality standards, a mobile telephone which is "locked" so that only one mobile telephone service company can provide service for the telephone cannot pass APX 7 19 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 22 of 111 Total Pages:(27 of 116) 5 without objection in the trade under the contract description and therefore is not merchantable under the law when the only mobile telephone service company which can provide service for that telephone has a present intention and plan to cease providing service. A significant segment of the buying public would object to purchasing a mobile telephone which is "locked" and can be operated only with service from a mobile telephone service company which plans to cease providing service at the time of sale. 38. Cricket is a merchant engaged in the business of selling goods such as the mobile telephones sold to Named Plaintiff and Class Members. 39. At the time of the sales to Named Plaintiff and Class members, Cricket expressly and impliedly warranted to Named Plaintiff and Class members that the mobile telephones they purchased conformed to the contract descriptions and affirmations of fact made to them by Cricket — and that they would operate as mobile telephones. 40. The mobile telephones purchased by Named Plaintiff and Class members failed to conform to the implied warranties made to them for the reasons described above and expressly incorporated herein. Further, the mobile telephones delivered to Named Plaintiff and Class members failed to conform to the contract descriptions and affirmations of fact about the operability of the mobile telephones that constituted part of the basis for the bargains of Named Plaintiff and the Class members. 41. In breach of the implied warranty of merchantability that arises under APX 20 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 23 of 111 Total Pages:(28 of 116) 5 MD. CODE ANN., COMM. LAW § 2-314(2)(a), on the date Named Plaintiff and Class members purchased the mobile telephones, these telephones would not pass without objection in the trade under their contract descriptions and Cricket otherwise breached the implied warranty of merchantability. 42. The mobile telephones sold to Plaintiff and other Class members would not and did not pass without objection in the trade under their contract descriptions on the date of sale because Cricket planned and intended to soon cease providing service to those telephones, rendering them inoperable and defective. 43. A Cricket mobile telephone, intended to be used on Cricket's service network, which will soon be intentionally rendered inoperable by Cricket by Cricket's own design and plan could not "[p]ass without objection in the trade under the contract description," is not "fit for the ordinary purposes for which such goods are used" as required by MD. CODE ANN., COMM. LAW § 2-314, and is not fit for the particular purpose for which the mobile telephone was sold — i.e. to be used on a Cricket network - as required by MD. CODE ANN., COMM. LAW § 2-314. 44. In breach of the implied warranty of merchantability that arises under MD. CODE ANN., COMM. LAW § 2-314, on the date Named Plaintiff and Class members purchased their mobile telephones, each telephone would not pass without objection in the trade under the contract description, was not fit for the ordinary purposes for which such goods would be used. 45. In breach of the implied warranty of fitness for a particular purpose that arises under MD. CODE ANN., COMM. LAW § 2-315, at the time of contracting APX 21 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 24 of 111 Total Pages:(29 of 116) 5 Cricket had reason to know of the particular purpose for which the mobile telephones it sold to Plaintiff and Class members was required, i.e. to transmit mobile telephone calls and communications using Cricket's network, Plaintiff and Class members relied on Cricket's skill or judgment to select or furnish suitable goods, and the goods furnished by Cricket were not fit for that purpose. 46. As a result, the mobile telephones purchased by Named Plaintiff and Class members failed to conform to the express and implied warranties made to them. 47. Cricket possessed actual knowledge of the breaches of express and implied warranty in its sales of obsolete mobile telephones to Named Plaintiff and the Class members. 48. Cricket intended and instructed that the mobile telephones sold to Named Plaintiff and the Class members be manufactured with the defects described herein. 49. Named Plaintiff contacted Cricket and asked Cricket to cure the defect in his mobile telephone by replacing it or unlocking it. Cricket refused to cure the defect or to replace or unlock the mobile telephone. 50. As a result of Cricket's breaches of warranties, Named Plaintiff and the Class sustained the losses and damages described herein. VII. CLASS ACTION ALLEGATIONS 51. Named Plaintiff brings this action on his own behalf and on behalf of all other similarly situated individuals pursuant to MD. RULE 2-231. The class APX 11)22 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 25 of 111 Total Pages:(30 of 116) 5 consists of All Maryland citizens who, between July 12, 2013 and March 13, 2014, purchased a CDMA mobile telephone from Cricket which was locked for use only on Cricket's CDMA network. 52. Excluded from the Class are those individuals who now are or have ever been Cricket executives and the spouses, parents, siblings and children of all such individuals. 53. The Class, as defined above, is identifiable. Named Plaintiff is a member of the Class. 54. On information and belief, the Class is so numerous that joinder of all of its members is impracticable. 55. There are questions of law and fact that not only are common to the Class but that predominate over any questions affecting only individual Class members. The common and predominating questions include, but are not limited to: a. Whether the Cricket CDMA mobile telephones sold to Plaintiff and the Class are inoperable; b. Whether Cricket sold Plaintiff and Class members mobile telephones which cannot be used to make telephone calls or mobile communications; c. Whether Cricket knew at the time of sale that Plaintiff and Class members intended to use the mobile telephones it sold to them to make telephone calls and mobile communications; APX 11 23 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 26 of 111 Total Pages:(31 of 116) 5 d. Whether Cricket planned and intended at the time it sold mobile telephones to Plaintiff and other Class members that it would shut- down the CDMA network; e. Whether Cricket's CDMA network is required to operate the mobile telephones of Plaintiff and other Class members; f. Whether Cricket breached written warranties in its sales of mobile telephones to Plaintiff and other Class members; g. Whether Cricket breached the implied warranty of merchantability in its sales of mobile telephones to Plaintiff and other Class members; h. Whether Cricket breached the implied warranty of fitness for a particular purpose in its sales of mobile telephones to Plaintiff and other Class members; i. Whether Cricket violated the Magnuson-Moss Warranty Act in its transactions with Plaintiff and other Class members; j. Whether Cricket is liable for damages sustained by Plaintiff and other Class members. 56. The claims of the Named Plaintiff are typical of the claims of the respective members of the Class within the meaning of MD. RULE 2-231(0(3), and are based on and arise out of similar facts constituting Cricket's wrongful conduct. 57. The prosecution of separate actions by individual members of the Class would create a risk of establishing incompatible standards of conduct for Cricket APX 1224 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 27 of 111 Total Pages:(32 of 116) 5 within the meaning of MD. RULE 2-231(b)(1)(A). 58. The common questions of law and fact enumerated above predominate over questions affecting only individual members of the Class, and a class action is the superior method for fair and efficient adjudication of the controversy within the meaning of MD. RULE 2-231(b)(3). The likelihood that individual members of the Class will prosecute separate actions is remote due to the time and expense necessary to conduct such litigation. 59. Named Plaintiffs counsel is experienced in class actions and foresees little difficulty in the management of this case as a class action. IX. CAUSE OF ACTION Violation of the Magnuson-Moss Warranty Act 60. Named Plaintiff re-alleges and incorporates herein by reference the allegations in the foregoing paragraphs as if fully set forth below. 61. Congress enacted the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq. (the "Act") in 1975 in response to widespread complaints from consumers that many warranties were misleading and deceptive and were not being honored. To remedy this problem of deception and failure to honor warranties, the Act imposes civil liability on any "warrantor" for, inter alia, failing to comply with any obligation under a written warranty and/or implied warranty. See 15 U.S.C. § 2310(d)(1). The Act further authorizes a "suit for damages and other legal and equitable relief." Id. The Act authorizes the award of attorneys' fees and expressly authorizes class actions. 15 U.S.C. § 2310(e). 62. Cricket is a "warrantor[sr within the meaning of Section 2301(5) of the APX 1R25 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 28 of 111 Total Pages:(33 of 116) 5 Act. 63. Named Plaintiff and other members of the Class are "consumers" within the meaning of Section 2301(3) of the Act. 64. Cricket's breaches of the express warranties, the implied warranty of merchantability and implied warranty of fitness for a particular purpose, set forth in Part VI of this Complaint and expressly incorporated herein, violate the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq., including 15 U.S.C. § 2310(d). 65. Cricket knew, at the time of sale, of the defects in the mobile telephones sold to Plaintiff and the Class members which breached the express warranties and implied warranties of merchantability and fitness for a particular purpose. 66. As a result of Cricket's violation of the Act, Named Plaintiff and the Class sustained the losses and damages described herein. (continued on following page) APX 26 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 29 of 111 Total Pages:(34 of 116) 5 WHEREFORE, Named Plaintiff and the Class pray that the Court: (a) enter judgment against Cricket, and in favor of Plaintiff and the Class, for compensatory damages in an amount deemed appropriate by a jury, in an aggregated amount which exceeds $75,000; (b) award pre-judgment interest and costs for each Class member; (c) enter an order certifying this action as a class action pursuant to MD. RULE 2- 231(b)(1), (2) and/or (3); (d) award reasonable costs and attorneys' fees; and (f) award such other and further relief as the Court deems just and proper. Respectfully submitted, GORDON, WOLF & CARNEY, CHTD. Benjamin H. Carney Martin E. Wolf 102 W. Pennsylvania Ave., Su 402 Towson, Maryland 21204 (4. 825-230 By: enjamin H. arney Attorneys for Named Plaintiff and the Class JURY DEMAND Plaintiff hereby demands a trial by jury of all issues,able. enjamin H. Carney APX1N27 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 30 of 111 Total Pages:(35 of 116) Circuit Court for Baltimore City City or County - NON-DOMESTIC CASE INFORMATION REP ..rrr DIRECTIONS: Plaintiff: This Information Report must be completed and attached to the complaint filed with the Clerk of Court unless your case is exempted from the requirement by the Chief Judge of the Court of Appeals pursuant to Rule 2-1 I 1(a). A copy must be included for each defendant to be served Defendant: You must file an Information Report as required by Rule 2-323(h). THIS INFORMATION REPORT CANNOT BE ACCEPTED AS AN ANSWER OR RESPONSE FORM FILED BY: p PLAIN 111+ 0 DEFENDANT CASE NUMBER (Omit to insert) CASE NAME. Michael A. Scott vs. Cricket Communications, LLC Plaintiff Defendant JURY DEMAND: 0 Yes El No Anticipated length of trial: hours or 5 days RELATED CASE PENDING? Yes No If yes, Case #(s), if known: Special Requirements? 0 Interpreter (Please attach Form CC-DC 41) 0 ADA accommodation (Please attach Form CC-DC 49) NATURE OF ACTION DAMAGES/RELIEF (CHECK ONE BOX) TORTS LABOR A. TORTS CI Motor Tort [I Workers' Comp. Actual Damages CI Premises Liability 0 Wrongful Discharge 0 Under $7,500 CI Medical Bills CI Assault 8c Battery CI EEO CI $7,500 -$50,000 $ ID Product Liability El Other CI $50,000- $100,000 0 Property Damages 0 Professional Malpractice CONTRACTS 0Over $100,000 $ 0Wrongful Death ['Insurance CI Wage Loss 0 Business & Commercial ['Confessed Judgment $ 0 Libel & Slander ['Other ['False Arrest/Imprisonment REAL PROPERTY B. CONTRACTS C. NONMONETARY 0Nuisance • Judicial Sale ['Toxic Torts IDCondemnation 0 Under $10,000 ['Declaratory Judgment ['Fraud El Landlord Tenant 13 $10,000 -$20,000 ['Injunction 0 Malicious Prosecution [IOther Igl Over $20,0000 ['Other 0Lead Paint OTHER El Asbestos El Civil Rights ID Other C3 Environmental ['ADA m other Magnuson Moss Act ALTERNATIVE DISPUTE RESOLUTION INFORMATION Is this case appropriate for arerral WTI ADR process under Md. Rule 17-101? (Check all that 1221y) A. Mediation 11 Yes Igl No C. Settlement Conference 0 Yes IK1No B. Arbitration 0 Yes Igi No D. Neutral Evaluation ID Yes gi No TRACK REQUEST With the exception of Baltimore County and Baltimore City, please fill in the estimated LENGTH OF TRIAL THIS CASE WILL THEN BE TRACKED ACCORDINGLY. 1/2 day of trial or less I day of trial time 8 3 days of trial time More than 3 days of trial time 2 days of trial time PLEASE SEE PAGE TWO OF THIS FORM FOR INSTRUCTIONS PERTAINING TO THE BUSIN AND TECHNOLOGY CASE MANAGEMENT PROGRAM AND COMPLEX SCIENCE AND/OR ME CAL ASE MANAGEMENT PROGRAM (ASTAR), AS WELL AS ADDITIONAL INSTRU'- INS IF Ye ARE F INC YOUR COMPLAINT IN BALTIMORE CITY, PRINCE GEORGE'S C t tir,OR ALT! ORE I UNTY 111.- Date September 24, 2015 Signature f ' CC/DCM 002 (Rev. 2/2010) Page 1 of 3 APX 28 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 31 of 111 Total Pages:(36 of 116) n, BU.INESS4110:I FcHN OLOGW*ASEtMiktir 1 ',T,ROGRAW ' For all jurisdictions, if Business and Technology track designation under Md Rule 16-205 is requested, attach a duplicate copy of complaint and check one of the tracks below. 0 0 Expedited Standard Trial within 7 months Trial within 18 months of Filing of Filing 0 EMERGENCY RELIEF REQUESTED Signature Date,• COMPLEX sc-nEN,pg';'AiNDIOTVMEDAC' MA NAGEMENTPROGRAM' *STA' ., FOR PURPOSES OF POSSIBLE SPECIAL ASSIGNMENT TO AN ASTAR RESOURCE JUDGE under Md. Rule 16-202. Please check the applicable box below and attach a duplicate copy of your complaint. 1:1 Expedited - Trial within 7 months of Filing El Standard - Trial within 18 months of Filing IF YOU ARE FILING YOUR COMPLAINT IN BALTIMORE CITY, PRINCE GEORGE'S COUNTY, OR BALTIMORE COUNTY PLEASE FILL OUT THE APPROPRIATE BOX BELOW. CIRCUIT COURT FOR BALTIMORE CITY (CHECK ONLY ONE) 0 Expedited Trial 60 to 120 days from notice. Non-jury matters. 0 Standard-Short Trial 210 days. CI Standard Trial 360 days. 0 Lead Paint Fill in: Birth Date of youngest plaintiff. 0 Asbestos Events and deadlines set by individual judge. RI Protracted Cases Complex cases designated by the Administrative Judge. CIRCUIT COURT FOR PRINCE GEORGE'S COUNTY To assist the Court in determining the appropriate Track for this case, check one of the boxes below. This information is nil an admission and may not be used for any purpose other than Track Assignment. 0 Liability is conceded. 0 Liability is not conceded, but is not seriously in dispute. 0 Liability is seriously in dispute. CC/DCM 002 (Rev. 2/2010) Page 2 of 3 APX 29 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 32 of 111 Total Pages:(37 of 116) CIRCUIT COURT FOR BALTIMORE COUNTY El Expedited Attachment Before Judgment, Declaratory Judgment (Simple), Administrative Appeals, District (Trial Date-90 days) Court Appeals and Jury Trial Prayers, Guardianship, Injunction, Mandamus. El Standard Condemnation, Confessed Judgments (Vacated), Contract, Employment Related Cases, Fraud and (Trial Date-240 days) Misrepresentation, International Tort, Motor Tort, Other Personal Injury, Workers' Compensation Cases. O Extended Standard Asbestos, Lender Liability, Professional Malpractice, Serious Motor Tort or Personal Injury Cases (Trial Date-345 days) (medical expenses and wage loss of $100,000, expert and out-of-state witnesses (parties), and trial of five or more days), State Insolvency. ID Complex Class Actions, Designated Toxic Tort, Major Construction Contracts, Major Product Liabilities, (Trial Date-450 days) Other Complex Cases. CC/DCM 002 (Rev. 2/2010) Page 3 of 3 APX 30 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 33 of 111 Total Pages:(38 of 116) APX 31 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 34 of 111 Total Pages:(39 of 116) APX 32 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 35 of 111 Total Pages:(40 of 116) APX 33 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 36 of 111 Total Pages:(41 of 116) APX 34 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 37 of 111 Total Pages:(42 of 116) APX 35 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 38 of 111 Total Pages:(43 of 116) APX 36 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 39 of 111 Total Pages:(44 of 116) APX 37 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 40 of 111 Total Pages:(45 of 116) APX 38 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 41 of 111 Total Pages:(46 of 116) APX 39 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 42 of 111 Total Pages:(47 of 116) APX 40 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 43 of 111 Total Pages:(48 of 116) APX 41 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 44 of 111 Total Pages:(49 of 116) APX 42 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 45 of 111 Total Pages:(50 of 116) APX 43 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 46 of 111 Total Pages:(51 of 116) APX 44 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 47 of 111 Total Pages:(52 of 116) APX 45 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 48 of 111 Total Pages:(53 of 116) APX 46 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 49 of 111 Total Pages:(54 of 116) APX 47 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 50 of 111 Total Pages:(55 of 116) APX 48 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 51 of 111 Total Pages:(56 of 116) IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND MICHAEL A. SCOTT,: Plaintiff,: v.: Civil Action No. GLR-15-3330 CRICKET COMMUNICATIONS, LLC,: Defendant.: MICHAEL A. SCOTT,: Plaintiff,: v.: Civil Action No. GLR-15-3759 CRICKET COMMUNICATIONS, LLC,: Defendant.: ORDER For the reasons stated in the foregoing Memorandum Opinion, it is this 19th day of August 2016, hereby: ORDERED that Scott's Motions to Remand (ECF No. 15, GLR-15- 3330; ECF No. 18, GLR-15-3759) are GRANTED; IT IS FURTHER ORDERED that cases Scott v. Cricket Communications, LLC, No. GLR-15-3330 (D.Md. removed Oct. 30, 2015) and Scott v. Cricket Communications, LLC, No. GLR-15-3759 (D.Md. removed Dec. 9, 2015) are REMANDED; IT IS FURTHER ORDERED that Scott's Motion to Strike New Materials and Arguments or for Leave to File a Surreply Addressing Them (ECF No. 30, GLR-15-3330) and Cricket's Motion APX 49 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 52 of 111 Total Pages:(57 of 116) to Compel Arbitration (ECF No. 20, GLR-15-3330), Motion to Dismiss or, in the Alternative, to Stay (ECF No. 16, GLR-15- 3759), and Motion to Relate Case (ECF No. 16, GLR-15-3330) are DENIED AS MOOT; and IT IS FURTHER ORDERED that the Court shall CLOSE these cases. /s/ ____________________________ George L. Russell, III United States District Judge 2 APX 50 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 53 of 111 Total Pages:(58 of 116) 0 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND MICHAEL A. SCOTT,: Plaintiff,: v.: Civil Action No. GLR-15-3330 CRICKET COMMUNICATIONS, LLC,: Defendant.: MICHAEL A. SCOTT,: Plaintiff,: v.: Civil Action No. GLR-15-3759 CRICKET COMMUNICATIONS, LLC,: Defendant.: MEMORANDUM OPINION THIS MATTER is before the Court on several motions related to Plaintiff Michael A. Scott's putative class action alleging Defendant Cricket Communications, LLC ("Cricket") violated the Magnuson-Moss Warranty Act ("MMWA"), 15 U.S.C. §§ 2301 et seq. (2012). Scott filed Motions to Remand (ECF No. 15, GLR-15-3330; ECF No. 18, GLR-15-3759) and a Motion to Strike New Materials and Arguments or for Leave to File a Surreply Addressing Them (ECF No. 30, GLR-15-3330). Cricket filed a Motion to Compel Arbitration (ECF No. 20, GLR-15-3330), Motion to Dismiss or, in the Alternative, to Stay (ECF No. 16, GLR-15-3759), and Motion APX 51 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 54 of 111 Total Pages:(59 of 116) 0 to Relate Case (ECF No. 16, GLR-15-3330). All Motions are ripe for disposition. Having reviewed the Motions and supporting documents, the Court finds no hearing necessary. See Local Rule 105.6 (D.Md. 2016). For the reasons outlined below, the Court will grant the Motions to Remand and deny all other Motions as moot. I. BACKGROUND Sometime between July 2013 and March 2014, Scott purchased two Samsung Galaxy S4 cellphones from Cricket that cost "hundreds of dollars each." (Class Action Compl. ¶¶ 26, 27, ECF No. 2, GLR-15-3330). The paperwork accompanying the cellphones expressly stated that Cricket's Code Division Multiple Access ("CDMA") network provided "unsurpassed nationwide coverage." (Id. ¶ 28). Unbeknownst to Scott, however, at least as early as July 2013, AT&T had acquired Cricket and intended to shut down Cricket's CDMA network and switch previous Cricket customers to AT&T's Global Systems for Mobile ("GSM") network. (Id. ¶ 5). Though Cricket knew the CDMA network would be shut down, Cricket "locked" Scott's cellphones for use exclusively on Cricket's CDMA network. (Id. ¶ 7). This rendered Scott's cellphones "useless and worthless" and "obsolete." (Id. ¶¶ 1, 7, 8). Scott filed a putative Class Action Complaint on September 24, 2015 in the Circuit Court for Baltimore City, Maryland ("Scott I"). (ECF No. 2, GLR-15-3330). Scott defines the class 2 APX 52 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 55 of 111 Total Pages:(60 of 116) 0 as "[a]ll Maryland citizens who, between July 12, 2013 and March 13, 2014, purchased a CDMA mobile telephone from Cricket which was locked for use only on Cricket's CDMA network." (Class Action Compl. ¶ 51). Scott raises a single claim for violation of the MMWA stemming from alleged breaches of express warranties and the implied warranties of merchantability and fitness for a particular purpose. (Id. ¶¶ 60–66). On October 30, 2015, Cricket removed Scott I to this Court. (ECF No. 1, GLR-15-3330). On November 10, 2015, Scott filed a Complaint Petitioning to Stay Threatened Arbitration in the Circuit Court for Baltimore County, Maryland ("Scott II"). (ECF No. 2, GLR-15-3759). On December 9, 2015, Cricket removed Scott II to this Court. (ECF No. 1, GLR-15-3759). On November 23, 2015, Scott filed a Motion to Remand Scott I. (ECF No. 15, GLR- 15-3330). On December 2, 2015, Cricket filed a Motion to Relate Scott I to Bond v. Cricket Communications, LLC, No. WDQ-15-923 (D.Md. stayed Jan. 12, 2016). (ECF No. 16, GLR-15-3330). On December 16, 2015, Cricket filed a Motion to Compel Arbitration (ECF No. 20, GLR-15-3330) and Motion to Dismiss or, in the Alternative, to Stay (ECF No. 16, GLR-15-3759). On December 21, 2015, Scott filed a Motion to Remand Scott II. (ECF No. 18, GLR-15-3759). Finally, on February 26, 2016, Scott filed a Motion to Strike New Materials and Arguments or for Leave to 3 APX 53 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 56 of 111 Total Pages:(61 of 116) 0 File a Surreply Addressing Them (ECF No. 30, GLR-15-3330). All Motions are opposed. II. DISCUSSION A. Motions to Remand 1. Scott I a. Legal Standard Federal courts are courts of limited jurisdiction and "may not exercise jurisdiction absent a statutory basis." Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005). Under the Class Action Fairness Act ("CAFA"), federal courts have jurisdiction over a class action when there is: (1) minimal diversity, 28 U.S.C. § 1332(d)(2)(A); (2) an aggregate amount in controversy exceeding $5 million, exclusive of interest and costs, § 1332(d)(2); and (3) a class size greater than 100 persons, § 1332(d)(5)(B). There is minimal diversity under CAFA when "any member of the class is a citizen of a state different from the defendant." 28 U.S.C. § 1332(d)(2)(A). In this context, "residency is not sufficient to establish citizenship." Johnson v. Advance Am., 549 F.3d 932, 937 n.2 (4th Cir. 2008). Rather, "[t]o be a citizen of a State, a person must be both a citizen of the United States and a domiciliary of that State." Id. (citing Newman–Green, Inc. v. Alfonzo–Larrain, 490 U.S. 826, 828 (1989)). "Domicile requires physical presence, coupled with an 4 APX 54 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 57 of 111 Total Pages:(62 of 116) 0 intent to make the State a home." Id. (citing Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989)). Factors relevant to determining an individual's domicile include "current residence; voting registration and voting practices; location of personal and real property; location of brokerage and bank accounts; membership in unions; fraternal organizations, churches, clubs, and other associations; place of employment or business; driver's license and automobile registration; payment of taxes; as well as several others." Blake v. Arana, No. WQQ-13-2551, 2014 WL 2002446, at *2 (D.Md. May 14, 2014) (quoting Dyer v. Robinson, 853 F.Supp. 169, 172 (D.Md. 1994)). Though the Court typically construes removal jurisdiction strictly, see Md. Stadium Auth. v. Ellerbe Becket Inc., 407 F.3d 255, 260 (4th Cir. 2005), there is no presumption in favor of remand when cases are removed under CAFA, Dart Cherokee Basin Operating Co., LLC v. Owens, 135 S.Ct. 547, 554 (2014). The "primary objective" of CAFA is to "ensur[e] '[f]ederal court consideration of interstate cases of national importance." Standard Fire Ins. Co. v. Knowles, 133 S.Ct. 1345, 1350 (2013) (citation omitted). "CAFA's 'provisions should be read broadly, with a strong preference that interstate class actions should be heard in a federal court if properly removed by any defendant." 5 APX 55 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 58 of 111 Total Pages:(63 of 116) 0 Dart Cherokee, 135 S.Ct. at 554 (quoting S.Rep. No. 109–14, p. 43 (2005)). To remove a class action under CAFA, "the party seeking to invoke federal jurisdiction must allege it in his notice of removal and, when challenged, demonstrate the basis for federal jurisdiction." Strawn v. AT & T Mobility LLC, 530 F.3d 293, 298 (4th Cir. 2008); accord Dart Cherokee, 135 S.Ct. at 554. A removing party must demonstrate federal jurisdiction by a preponderance of the evidence. 28 U.S.C. § 1446(c)(2)(B). A notice of removal is not required "to meet a higher pleading standard than the one imposed on a plaintiff in drafting an initial complaint." Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d 192, 200 (4th Cir. 2008). Under 28 U.S.C. § 1446(a), the removing party must provide only "a short and plain statement of the grounds for removal." Although a notice of removal is not a "pleading" as defined in Federal Rule of Civil Procedure 7(a), the standard articulated in §1446(a) is "deliberately parallel" to the notice pleading standard of Rule 8(a). Ellenburg, 519 F.3d at 199 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 553–55 (2007)). b. Analysis Scott presents three primary arguments for why the Court should grant his Motion to Remand. First, Cricket does not sufficiently allege the number of class members and amount in 6 APX 56 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 59 of 111 Total Pages:(64 of 116) 0 controversy required for CAFA jurisdiction because Cricket's Notice of Removal addresses a class that Cricket defined, not the far more narrow class that Scott defined in his Complaint (the "Class"). Scott discusses several Fourth Circuit cases he reads as concluding that remand is warranted when a removing party redefines and broadens the class defined in the complaint. Second, even assuming Cricket met its preliminary burden of sufficiently alleging federal jurisdiction, Cricket failed to present facts demonstrating federal jurisdiction because Cricket's facts, like its allegations, are broader than the Class. Third, Scott is the only named plaintiff in the putative MMWA class action and the MMWA expressly prohibits federal jurisdiction over MMWA class actions with fewer than 100 named plaintiffs. In response, Cricket maintains that Scott's principal argument for seeking remand is that Cricket did not sufficiently prove federal jurisdiction in its Notice of Removal. Cricket argues Scott misunderstands and overstates Cricket's burden on removal because in Dart Cherokee, the Supreme Court of the United States held that before federal jurisdiction is challenged, the removing party carries a burden of only plausibly alleging that CAFA's jurisdictional prerequisites are satisfied. Cricket contends that not only does its Notice of Removal sufficiently allege federal jurisdiction, but also the 7 APX 57 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 60 of 111 Total Pages:(65 of 116) 0 evidence it presented with its Notice of Removal and in response to Scott's Motion to Remand proves federal jurisdiction by a preponderance of the evidence. Finally, Cricket argues that notwithstanding the MMWA's express prohibition of MMWA class actions with less than 100 named plaintiffs, Congress enacted CAFA long after it enacted the MMWA and many courts have held that MMWA class action with less than 100 named plaintiffs are permissible. i. Whether Cricket Sufficiently Alleges Federal Jurisdiction In its Notice of Removal, Cricket alleges the Class is greater than 100 persons because "Cricket's sales indicate that Cricket sold at least 50,000 CDMA mobile telephones that were shipped to and activated in Maryland between July 12, 2013 and March 13, 2014." (Notice of Removal ¶ 4, ECF No. 1, GLR-15- 3330). To calculate the amount in controversy, Cricket relied on Scott's allegations that he paid "hundreds of dollars" for his cellphones to assume that each class member was harmed by a maximum of $200 per cellphone purchase. (Id. ¶ 10). Cricket then multiplied 50,000 by $200 to allege that the amount in controversy is no less than $10 million—double the statutory requirement. (Id.). Scott argues Cricket does not sufficiently allege the requisite number of class members and amount in controversy 8 APX 58 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 61 of 111 Total Pages:(66 of 116) 0 because Cricket does not state how many of the approximately 50,000 CDMA cellphones Cricket shipped to and activated in Maryland were purchased by Maryland citizens and locked for use only on Cricket's CDMA network. There is no question that Cricket's allegations are over-inclusive. Cricket alleges the entire population of CDMA cellphones shipped to and activated in Maryland and asks the Court to Court to infer that a subset of this population—cellphones locked for use only on the CDMA network and sold to Maryland citizens—satisfies CAFA's jurisdictional prerequisites. In all of the CAFA cases Scott cites in which the courts examined over-inclusive notices of removal, the courts analyzed whether the defendants had proved federal jurisdiction, not whether they had alleged it. Thus, none of the cases Scott cites is helpful to determining whether Cricket's over-inclusive allegations pass muster. The only CAFA case Scott cites that addresses whether a defendant has sufficiently alleged federal jurisdiction is Covert v. Auto. Credit Corp., 968 F.Supp.2d 746 (D.Md. 2013). In that case, this Court concluded the defendant failed to sufficiently allege federal jurisdiction because it "completely omit[ted] to allege the size of the putative class." Covert, 968 F.Supp.2d at 751. Indeed, "[n]owhere in the notice of removal [did] Defendant allege that the size of the putative class [was] greater than 100 persons." Id. at 749. This Court 9 APX 59 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 62 of 111 Total Pages:(67 of 116) 0 concluded the complete failure to allege a jurisdictional fact rendered the notice of removal defective. Id. This case is distinguishable from Covert because Cricket did not completely fail to allege the requisite number of class members or amount in controversy. Cricket alleged "the total amount in controversy is, at a minimum, $10,000,000," (Notice of Removal ¶ 10), and "the aggregate number of putative class members is greater than 100 persons," (id. ¶ 4). The only shortcoming in Cricket's allegations, if any, is that they are not tailored to the Class. Scott's allegations, however, include "a short and plain statement of the grounds for removal," 28 U.S.C. § 1446(a), and they give Scott fair notice of the grounds upon which federal jurisdiction purportedly rests, see Twombly, 550 U.S. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Accordingly, the Court concludes Cricket sufficiently alleges federal jurisdiction under CAFA. ii. Whether Cricket Proves Federal Jurisdiction by a Preponderance of the Evidence Because Scott challenges the basis for federal jurisdiction, Cricket must present facts proving federal jurisdiction. See Strawn, 530 F.3d at 298. By strategically defining the Class as including only Maryland citizens, Scott places Cricket in somewhat of a predicament: Scott can't prove there is at least $5 million in controversy without extensive 10 APX 60 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 63 of 111 Total Pages:(68 of 116) 0 discovery of facts related to the domiciles of potentially tens of thousands of Cricket customers. Cricket confirms that it does not possess any information relevant to the domiciles of customers who purchased and activated CDMA cellphones in Maryland during the relevant period because "[b]uying a cell phone does not require a recitation of one's life story." (Def.'s Opp. Mot. Remand at 13, ECF No. 18, GLR-15-3330). Lacking information relevant to domicile, Cricket presents evidence that is broader than the Class. Cricket offers the declaration of Rich Cochran, Strategic Business Systems and Operations Professional, who states that between July 12, 2013 and March 13, 2014, Cricket customers who listed Maryland addresses on their accounts purchased at least 47,760 cellphones locked to Cricket's CDMA network. (Cochran Decl. ¶ 6, ECF No. 18-1). Assuming $200 in damages per phone, Cricket estimates the amount in controversy is $9,552,000. Cricket implicitly asks the court to infer that out of the 47,760 CDMA cellphones shipped to and activated by Maryland residents during the relevant period, Cricket sold at least 25,000 of these phones to Maryland citizens.1 Cricket maintains "there is no conceivable possibility that the number of putative class members and the amount in controversy could fall below the 1 25,000 Maryland citizens multiplied by $200 in damages per cellphone equals $5 million in controversy. 11 APX 61 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 64 of 111 Total Pages:(69 of 116) 0 CAFA floor." (Def.'s Opp'n Mot. Remand at 11). Cricket further contends it is an "absurd proposition" that nearly half of the Maryland residents who purchased CDMA cellphones during the relevant period were domiciled in a state other than Maryland. (Id.). Cricket relies on three cases outside the Fourth Circuit to argue Cricket's over-inclusive evidence is sufficient to prove federal jurisdiction.2 As Scott highlights, however, courts in the Fourth Circuit have consistently remanded putative class actions when defendants present evidence that is broader than the class defined in the complaint. Scott identifies at least three examples from the United States District Court for the Southern District of West Virginia. First, in Krivonyak v. Fifth Third Bank, No. 2:09-CV-00549, 2009 WL 2392092, at *2 (S.D.W.Va. Aug. 4, 2009), the plaintiffs defined the class as those borrowers whose loans Fifth Third Bank ("Fifth Third") serviced and who Fifth Third charged multiple late fees for the same late payment or did not credit for full or partial payments. Fifth Third presented evidence that they serviced 2,201 total loans to West Virginia consumers and estimated that because the plaintiffs were each seeking 2 See Raskas v. Johnson & Johnson, 719 F.3d 884 (8th Cir. 2013), Lewis v. Verizon Commc'ns, Inc., 627 F.3d 395 (9th Cir. 2010), and Spivey v. Vertrue, Inc., 528 F.3d 982, 983 (7th Cir. 2008). 12 APX 62 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 65 of 111 Total Pages:(70 of 116) 0 $4,400 in civil penalties, the total amount in controversy was approximately $9.6 million. Krivonyak, 2009 WL 2392092, at *2. Fifth Third failed, however, to present any evidence regarding how many of the 2,201 total borrowers were charged multiple late fees or not credited for full or partial payments. Id. at *5. In other words, Fifth Third failed to prove how many borrowers were in the plaintiffs' narrowly tailored class. Without evidence of the number of class members, the Court concluded Fifth Third failed to prove federal jurisdiction because the amount in controversy was merely speculative. Id. at 5—7. Second, in Caufield v. EMC Mortgage Corp., 803 F.Supp.2d 519, 526 (S.D.W.Va. 2011), the plaintiffs defined the class as those borrowers whose loans defendant EMC Mortgage Corp. ("EMC Mortgage") serviced and who EMC Mortgage charged specific fees in violation of West Virginia statutory law. EMC Mortgage offered evidence that it was servicing approximately 700 West Virginia loans, which is the number it used to attempt to demonstrate there was more than $5 million in controversy. Id. at 527. EMC Mortgage, however, presented no evidence of how many of the total West Virginia loans EMC Mortgage subjected to the late fees specified in the plaintiffs' class definition. Id. at 526—27. As such, the Court concluded EMC Mortgage failed to demonstrate the requisite number of class members or 13 APX 63 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 66 of 111 Total Pages:(71 of 116) 0 amount in controversy, specifically finding the defendant relied on nothing more than "conjecture." Id. Third, in Pauley v. Hertz Glob. Holdings, Inc., No. 3:13- 31273, 2014 WL 2112920, at *1 (S.D.W.Va. May 19, 2014), the plaintiffs defined the class as customers who rented cars from defendants Hertz Corporation ("Hertz") and Dollar Thrifty Automotive Group, Inc. ("Dollar Thrifty") and after receiving and paying parking citations issued during the rental period were nevertheless charged administrative fees by Hertz and Dollar Thrifty. Hertz attempted to prove CAFA's amount in controversy requirement by offering a declaration that Hertz collected $5.6 million in administrative fees associated with parking citations. Id. at *2. Because Hertz presented no evidence regarding how much of the $5.6 million Hertz collected from customers who were charged administrative fees after paying the underlying parking citations, the court concluded Hertz failed to demonstrate there was at least $5 million in controversy. Id. at *5. The Court rejects Cricket's assertion that the foregoing cases are "outliers." (See Def.'s Opp'n Mot. to Remand at 14 n.4). Just last year, in James v. Santander Consumer USA, Inc., JFM-15-654, 2015 WL 4770924, at *5 (D.Md. Aug. 12, 2015), this Court also concluded that defendants fail to demonstrate federal jurisdiction under CAFA when they present evidence that is 14 APX 64 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 67 of 111 Total Pages:(72 of 116) 0 broader than the class defined in the complaint. In James, the plaintiff defined the class to include only those individuals whose cars were repossessed by defendant Santander Consumer USA, Inc. ("Santander") under closed end credit contracts ("CLECs") and who did not receive proper pre- and post-sale notifications. Id. at *3. Santander attempted to demonstrate the requisite number of class members and amount in controversy by offering evidence of the total number of vehicles Santander repossessed and sold under CLECs. Id. at *2. Santander, however, did not present any evidence regarding how many of the repossessions Santander conducted without sending the proper pre- and post- sale notifications. Id. Consequently, this Court concluded Santander failed to prove federal jurisdiction under CAFA and remanded the case. Id. at *3. Here, Cricket, like the defendants in Krivonyak, Caufield, Pauley, and James, presents evidence that is over-inclusive—the Class includes only Maryland citizens, but Cricket's evidence pertains to all consumers who provided Maryland addresses. Residency is not tantamount to citizenship. See Johnson, 549 F.3d at 937 n.2 (4th Cir. 2008). Assuming $200 in controversy per class member, Cricket must prove at least 25,000 consumers who purchased locked CDMA cellphones during the relevant period are domiciled in Maryland. See id. (citing Newman–Green, Inc. v. Alfonzo–Larrain, 490 U.S. 826, 828 (1989)) (explaining that 15 APX 65 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 68 of 111 Total Pages:(73 of 116) 0 "[t]o be a citizen of a State, a person must be both a citizen of the United States and a domiciliary of that State"). But, Cricket presents no evidence of any of the factors relevant to domicile, such as where the consumers are registered to vote, where they pay taxes, or where they are employed. See Blake, 2014 WL 2002446, at *2 (quoting Dyer, 853 F.Supp. at 172) (listing factors relevant to determining domicile). As a result, the Court would have to speculate to determine the number of class members that purchased CDMA cellphones and the amount in controversy. The Court concludes, therefore, that Cricket fails to prove federal jurisdiction by a preponderance of the evidence. Cricket further argues that from a practical perspective, requiring defendants to prove state citizenship when a plaintiff challenges CAFA removal would completely prohibit CAFA removal because that would be an "impossible burden of proof." (Def.'s Opp'n Mot. to Remand at 12). Cricket maintains "[i]t should be obvious that companies like Cricket do not keep track of customers' state of citizenship, which would require asking every customer to divulge whether or not he or she 'intends to make the State a home.'" (Id.) (citation omitted). Cricket also contends that prohibiting CAFA removal by requiring companies to prove state citizenship would belie CAFA's "'primary objective' of 'ensuring Federal court consideration of 16 APX 66 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 69 of 111 Total Pages:(74 of 116) 0 interstate cases of national importance.'" (Id.) (quoting Standard Fire, 133 S. Ct. at 1350). This Court is not persuaded for several reasons. First, Scott, as the plaintiff, is the master of his complaint, and he can choose to circumscribe his class definition to avoid federal jurisdiction under CAFA. Johnson v. Advance Am., 549 F.3d 932, 937 (4th Cir. 2008); see Morgan v. Gay, 471 F.3d 469, 474 (3d Cir. 2006) ("The Supreme Court has long held that plaintiffs may limit their claims to avoid federal subject matter jurisdiction. . . . CAFA does not change the proposition that the plaintiff is the master of her own claim."). Second, Cricket maintains that it should be excused from tailoring its evidence to the Class because Cricket does not obtain information relevant to the domiciles of its customers as part of its normal business practices. In Pauley, Hertz's normal business practices did not entail learning precisely when its customers paid their parking citations because there is no evidence Hertz required its customers to provide this information. Nevertheless, the district court granted the plaintiffs' motion to remand because Hertz did not prove the amount of administrative fees it charged its customers after the customers paid their parking citations. Pauley, 2014 WL 2112920, at *5. 17 APX 67 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 70 of 111 Total Pages:(75 of 116) 0 Third, the Court disagrees that requiring defendants to prove state citizenship when a plaintiff challenges CAFA removal would contravene CAFA's objective of preserving federal jurisdiction over interstate cases of national importance. Limiting a class to citizens of only one state creates an action that is inherently intrastate. And, as the United States Court of Appeals explained in Johnson, in enacting CAFA, "Congress did not give federal courts jurisdiction over all class actions;" rather, it "specifically exclude[ed] [class actions] consisting of 'primarily local matters.'" 549 F.3d at 938. In sum, Cricket fails to prove federal jurisdiction by a preponderance of the evidence because Cricket does not tailor its evidence to Scott's narrowly defined Class. Furthermore, granting Scott's Motion to Remand comports with the discretion afforded plaintiffs in drafting their complaints and Congress's intent in passing CAFA. Accordingly, the Court will grant Scott's Motion to Remand.3 2. Scott II Cricket argues the Court should not remand Scott II because federal jurisdiction exists under the look-through doctrine discussed in Vaden v. Discover Bank, 556 U.S. 49 (2009). Scott 3 The MMWA does not save Cricket's Notice of Removal because it provides that MMWA class actions must name at least 100 plaintiffs, see 15 U.S.C. § 2310(d)(3)(C) (2012), and Scott is the only plaintiff named in his Complaint, (see ECF No. 2, GLR- 15-3330). 18 APX 68 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 71 of 111 Total Pages:(76 of 116) 0 contends that even assuming the look-through doctrine applies, remand is warranted because Cricket's Notice of Removal is based entirely on the look-through doctrine and the Court does not have CAFA or federal-question jurisdiction over Scott I. The Court agrees with Scott. Section 4 of the Federal Arbitration Act ("FAA"), 9 U.S.C. § 4 (2012), authorizes a district court to entertain a petition to compel arbitration if the court would have jurisdiction, "save for [the arbitration] agreement," over "a suit arising out of the controversy between the parties." Vaden v. Discover Bank, 556 U.S. 49, 52 (2009). In Vaden, the Supreme Court held that in a stand-alone action to compel arbitration pursuant to Section 4 of the FAA, a federal court may "look through" the petition and grant the requested relief if the court would have federal-question jurisdiction over the underlying controversy. Id. at 62. Relying on Vaden, Cricket asks the Court to look through Scott II and conclude that the Court has subject matter jurisdiction over Scott II because the Court has federal- question and CAFA jurisdiction over the underlying controversy— Scott I. As the Court explained above, however, the Court has neither subject-matter nor CAFA jurisdiction over Scott I. Accordingly, Vaden provides no basis for the Court's 19 APX 69 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 72 of 111 Total Pages:(77 of 116) 0 jurisdiction over Scott II, and the Court will grant Scott's Motion to Remand. III. CONCLUSION Based on the foregoing reasons, the Court will GRANT Scott's Motions to Remand (ECF No. 15, GLR-15-3330; ECF No. 18, GLR-15-3759) and DENY as moot Scott's Motion to Strike New Materials and Arguments or for Leave to File a Surreply Addressing Them (ECF No. 30, GLR-15-3330) and Cricket's Motion to Compel Arbitration (ECF No. 20, GLR-15-3330), Motion to Dismiss or, in the Alternative, to Stay (ECF No. 16, GLR-15- 3759), and Motion to Relate Case (ECF No. 16, GLR-15-3330). A separate Order follows. Entered this 19th day of August, 2016 /s/ ____________________________ George L. Russell, III United States District Judge 20 APX 70 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 73 of 111 Total Pages:(78 of 116) Mayer Brown LLP 1999 K Street, N.W. Washington, D.C. 20006-1101 Main Tel +1 202 263 3000 Main Fax +1 202 263 3300 August 11, 2017 www.mayerbrown.com Archis A. Parasharami Direct Tel +1 202 263 3328 Direct Fax +1 202 263 5328 The Honorable George Levi Russell, III aparasharami@mayerbrown.com U.S. District Judge 101 West Lombard Street Chambers 7A Baltimore, MD 21201 Re: Scott v. Cricket Communications, LLC, Case No. 15-cv-3330 Dear Judge Russell: Enclosed please find Cricket Communications, LLC's ("Cricket") Renewed Notice of Removal in this case. We also enclose a copy of a Notice, filed today, that this case is related to the prior-filed action, Bond v. Cricket Communications, LLC, 15-cv-00923, (D. Md.), pending before Judge Garbis. We have also enclosed our Motion to Vacate State Court Class Certification Order and Motion to Vacate State Court Order Denying Cricket's Motion to Compel Arbitration. Because the parties in Bond have reached a nationwide class settlement in principle, we have filed a Motion for a Partial Stay of proceedings in this case. Sincerely, /s/ Archis A. Parasharami Archis A. Parasharami Counsel for Cricket Communications, LLC cc: Mark W. Ryan, Mayer Brown LLP John McCann, Miles & Stockbridge P.C. Benjamin H. Carney, Gordon, Wolf & Carney CHTD Martin E. Wolf, Gordon, Wolf & Carney CHTD Mayer Brown LLP operates in combination with other Mayer Brown entities (the "Mayer Brown Practices"), which have offices in North America, Europe and Asia and are associated with Tauil & Chequer Advogados, a Brazilian law partnership. APX 71 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 74 of 111 Total Pages:(79 of 116) UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND (Baltimore Division) MICHAEL A. SCOTT, on behalf of himself and all others similarly situated, Plaintiff, Civil Action No. 15-cv-03330-GLR v. CRICKET COMMUNICATIONS, LLC, f/k/a CRICKET COMMUNICATIONS, INC. Defendant. DEFENDANT CRICKET COMMUNICATIONS, LLC'S RESPONSE TO PLAINTIFF'S MOTION FOR ENTRY OF ADMINISTRATIVE ORDER NUMBER 1 Pursuant to Rule 103.5(b), Defendant Cricket Communications, LLC ("Cricket") hereby responds to Plaintiff Michael Scott's Motion for Entry of Administrative Order Number 1, filed on July 28, 2017, in state court. See Scott v. Cricket Commc'ns, LLC, No. 24-C-15-004918 CN, Dkt. 46/0 (attached as Exhibit A). Earlier today, Cricket removed that litigation to this Court in light of Plaintiff's First Amended Complaint (Dkt. No. 41, Ex. 2) and the Fourth Circuit's decision in this case vacating the Court's earlier remand order (Scott v. Cricket Commc'ns, LLC, --- F.3d ---, 2017 WL 3197548 (4th Cir. July 28, 2017)). Scott's motion—asking the state court to authorize class notice to a class of Maryland citizens—should be denied for multiple reasons. First, as discussed in more detail in Cricket's Motion to Vacate State Court Class Certification Order (Dkt. No. 43), once the Fourth Circuit vacated this Court's remand order, the state court class certification order either became void for lack of jurisdiction or must be 1 APX 72 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 75 of 111 Total Pages:(80 of 116) invalidated by this Court (Dkt. No. 43, at 4-7). Because the class certified by the state court is not valid in this Court, it is even more clear that class notice cannot proceed.1 Second, Scott's motion is moot because it asks for class notice to be issued pursuant to Maryland's class action rules, and it is black-letter law that the Federal Rules of Civil Procedure govern in this Court. See Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 400 (2010). Third, as Cricket informed the Court earlier today (Dkt. No. 47), the parties in a related case, pending before Judge Garbis—Bond v. Cricket Communications, LLC, No. 15-cv-923 (D. Md.)—have agreed in principle to a nationwide class settlement that would subsume the claims in Scott's lawsuit. The class notice requested by Scott—which rests on a state-court class certification order that is subject to invalidation by this Court—would result in confusing and duplicative notice to Maryland residents who are members of the proposed settlement class in Bond. For these reasons, this Court should deny Plaintiff's Motion for Entry of Administrative Order Number 1. If this Court is not inclined to deny Plaintiff's motion outright, Cricket respectfully requests supplemental briefing to address why the proposed class notice plan is improper. 1 Earlier this afternoon, Scott filed a petition for rehearing and rehearing en banc with the Fourth Circuit. Pet. for Reh'g and Reh'g En Banc, Scott v. Cricket Communications, LLC, 16- 2300, Dkt. 51 (4th Cir. 2017). That petition has the effect of staying the Fourth Circuit's mandate pending resolution of the petition for rehearing. But the petition does not affect the validity of Cricket's renewed notice of removal to this Court (Dkt. No. 41), because—regardless of the outcome of Scott's petition for rehearing—Scott purported to amend his complaint to plead a putative nationwide class (Dkt. No. 41, Ex. 2), and there can be no legitimate debate that the standards for CAFA removal are easily satisfied with respect to the proposed new class pleaded in the amended complaint. 2 APX 73 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 76 of 111 Total Pages:(81 of 116) Dated: August 11, 2017 Respectfully submitted, /s/ Archis A. Parasharami Archis A. Parasharami (D. Md. Bar No. 13931) Mark W. Ryan MAYER BROWN LLP 1999 K Street, NW Washington, DC 20006 Tel: (202) 263-3000 Fax: (202) 263-3300 aparasharami@mayerbrown.com mryan@mayerbrown.com John E. McCann, Jr. (D. Md.; Bar No. 10028) Daniel R. Lanier (D. Md.; Bar No. 4504) MILES & STOCKBRIDGE P.C. 100 Light Street Baltimore, MD 21202 Tel: (410) 385-3586 Fax: (410) 773-9124 jmccann@milesstockbridge.com dlanier@milesstockbridge.com Counsel for Defendant Cricket Communications, LLC 3 APX 74 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 77 of 111 Total Pages:(82 of 116) 5 APX 75 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 78 of 111 Total Pages:(83 of 116) 5 APX 76 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 79 of 111 Total Pages:(84 of 116) 5 APX 77 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 80 of 111 Total Pages:(85 of 116) 5 APX 78 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 81 of 111 Total Pages:(86 of 116) 5 APX 79 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 82 of 111 Total Pages:(87 of 116) 5 APX 80 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 83 of 111 Total Pages:(88 of 116) 5 APX 81 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 84 of 111 Total Pages:(89 of 116) 5 APX 82 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 85 of 111 Total Pages:(90 of 116) 5 APX 83 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 86 of 111 Total Pages:(91 of 116) 5 APX 84 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 87 of 111 Total Pages:(92 of 116) 5 APX 85 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 88 of 111 Total Pages:(93 of 116) 5 APX 86 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 89 of 111 Total Pages:(94 of 116) 5 APX 87 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 90 of 111 Total Pages:(95 of 116) 5 APX 88 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 91 of 111 Total Pages:(96 of 116) 5 APX 89 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 92 of 111 Total Pages:(97 of 116) 5 APX 90 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 93 of 111 Total Pages:(98 of 116) 5 APX 91 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 94 of 111 Total Pages:(99 of 116) 5 APX 92 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 95 of 111 Total Pages:(100 of 116) 5 APX 93 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 96 of 111 Total Pages:(101 of 116) 5 APX 94 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 97 of 111 Total Pages:(102 of 116) 5 APX 95 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 98 of 111 Total Pages:(103 of 116) 5 APX 96 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 99 of 111 Total Pages:(104 of 116) 5 APX 97 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 100 of 111 Total Pages:(105 of 116) 5 APX 98 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 101 of 111 Total Pages:(106 of 116) 5 APX 99 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 102 of 111 Total Pages:(107 of 116) 5 APX 100 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 103 of 111 Total Pages:(108 of 116) 5 APX 101 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 104 of 111 Total Pages:(109 of 116) 5 APX 102 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 105 of 111 Total Pages:(110 of 116) 5 APX 103 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 106 of 111 Total Pages:(111 of 116) 5 APX 104 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 107 of 111 Total Pages:(112 of 116) 5 APX 105 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 108 of 111 Total Pages:(113 of 116) 5 APX 106 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 109 of 111 Total Pages:(114 of 116) 5 APX 107 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 110 of 111 Total Pages:(115 of 116) 5 APX 108 Appeal: 17-2288 Doc: 23-2 Filed: 12/12/2017 Pg: 111 of 111 Total Pages:(116 of 116) 5 APX 109

FULL ELECTRONIC APPENDIX and full paper appendix by Appellant Michael A. Scott. Method of Filing Paper Copies: courier. Date paper copies mailed dispatched or delivered to court: 01/12/2017. [1000207499] [17-2288] Martin Wolf [Entered: 12/12/2017 04:16 PM]

Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 1 of 426 No. 17-2288 UNITED STATES COURT OF APPEALS For the Fourth Circuit _______________ MICHAEL A. SCOTT, Potential Intervenor-Appellant, v. TIM BOND, on his own behalf and on behalf of all others similarly situated, Plaintiff-Appellee, and CRICKET COMMUNICATIONS, LLC, Defendant-Appellee, and AT&T INC., Defendant. _______________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND (The Honorable Marvin J. Garbis) _______________ JOINT APPENDIX _______________ Benjamin H. Carney Cory Lev Zajdel Archis A. Parasharami Martin E. Wolf Z LAW, LLC Matthew A. Waring GORDON, WOLF & CARNEY, CHTD. Suite B-13 MAYER BROWN, LLP 100 W. Pennsylvania Avenue, Suite 100 2345 York Road 1999 K Street, NW Towson, Maryland 21204 Timonium, MD 21093 Washington, DC 20006 Tel. 410-825-2300 Tel. 443-213-1977 Tel. 202-263-3000 Fax. 410-825-0066 Fax. 202-263-3300 Counsel for Potential Intervenor-Appellant Counsel for Plaintiff-Appellee Counsel for Defendant-Appellee Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 2 of 426 TABLE OF CONTENTS Page Docket Sheet ............................................................................................................ 1 Memorandum and Order Denying Motion to Intervene........................................ 8 Complaint .............................................................................................................. 25 First Amended Class Action Complaint ................................................................ 47 Motion to Compel Arbitration .............................................................................. 69 Memorandum Opinion granting Motion to Compel Arbitration ......................... 72 Order granting Motion to Compel Arbitration .................................................... 82 Motion Requesting Leave to File Second Amended Complaint ........................... 83 Declaration of Cory L. Zajdel .................................................................... 87 Second Amended Class Action Complaint................................................ 91 Redlined First Amended Class Action Complaint................................... 115 Stipulation Concerning Motion for Leave to File Second Amended Complaint ............................................................................... 139 Marginal Order granting Stipulation re Motion for Leave to File Second Amended Complaint .............................................................................. 143 Order Granting Motion for Leave to File Second Amended Complaint ............ 147 Second Amended Class Action Complaint.......................................................... 148 Redlined First Amended Class Action Complaint............................................... 172 Motion to Compel Arbitration ............................................................................ 196 August 11, 2017 Correspondence ........................................................................ 199 Motion to Intervene ............................................................................................. 200 i Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 3 of 426 Proposed Intervention Complaint ....................................................................... 203 Attachments to Opposition to Motion to Intervene by Tim Bond: Declaration of Cory L. Zajdel .............................................................................. 215 Judge Legg Letter ................................................................................................. 217 Declaration of Martin E. Wolf ............................................................................. 218 Attachments to Opposition to Motion to Intervene by Cricket Communications, LLC: Transcript of Official Proceedings in Scott Case ................................................. 231 Order Granting Class Certification in Scott Case ............................................... 297 Order Denying Cricket's Motion to Compel Arbitration in Scott Case ....................................................................... 305 Notice of Appeal .................................................................................................. 308 Joint Status Report ............................................................................................... 310 Motion for Stay Pending Appeal ......................................................................... 312 Motion for Preliminary Approval ........................................................................ 314 Memorandum in Support of Motion for Preliminary Approval ......................... 317 Proposed Order Preliminarily Approving Settlement ......................................... 333 Proposed Notices.................................................................................................. 341 Stipulation and Agreement of Settlement ............................................................ 368 Exhibits to the Reply in Support of Motion for Stay Pending Appeal: Mobile Wireless Device Unlocking Voluntary Commitment Letter ............................................................................ 402 CTIA Consumer Code for Wireless Service........................................................ 406 Cricket Charges and Fees .................................................................................... 412 Cricket Add-On Features..................................................................................... 415 Cricket Auto Pay Service Credit Program Terms and Conditions .......................................................................... 418 ii Appeal: 17-2288 Doc: 24 District of Maryland (CM/ECF Live 6.1) Filed: 12/12/2017 Pg: 4 of 426 11/14/17, 2(30 PM APPEAL U.S. District Court District of Maryland (Baltimore) CIVIL DOCKET FOR CASE #: 1:15-cv-00923-MJG Bond v. Cricket Communications, LLC Date Filed: 03/31/2015 Assigned to: Judge Marvin J. Garbis Jury Demand: Plaintiff Case in other court: Fourth Circuit Court of Appeals, 17-02288 Nature of Suit: 190 Contract: Other Cause: 28:1332 Diversity-Other Contract Jurisdiction: Diversity Plaintiff Tim Bond represented by Cory L Zajdel on his own behalf and on behalf of all Z Law LLC others similarly situated 2345 York Road, Suite B-13 Timonium, MD 21093 14432131977 Email: clz@zlawmaryland.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Catherine Anderson Giskan Solotaroff Anderson and Stewart LLP 11 Broadway Ste 2150 New York, NY 1004 2128478315 Email: canderson@gslawny.com TERMINATED: 10/15/2016 PRO HAC VICE ATTORNEY TO BE NOTICED Oren S. Giskan Giskan Solotaroff Anderson and Stewart LLP 11 Broadway Ste 2150 New York, NY 10004 2128478315 Email: ogiskan@gslawny.com TERMINATED: 10/15/2016 PRO HAC VICE ATTORNEY TO BE NOTICED https://ecf.mdd.uscourts.gov/cgi-bin/DktRpt.pl?713353178015434-L_1_0-1 Page 1 of 7 JA 1 Appeal: 17-2288 Doc: 24 District of Maryland (CM/ECF Live 6.1) Filed: 12/12/2017 Pg: 5 of 426 11/14/17, 2(30 PM Plaintiff Mr. Michael A Scott represented by Martin Eugene Wolf Intervenor/Plaintiff Gordon, Wolf & Carney, Chtd 100 W Pennsylvania Ave Ste 100 Towson, MD 21204 14108252300 Fax: 14108250066 Email: mwolf@GWCfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Benjamin Howard Carney Gordon, Wolf & Carney, Chtd 100 W Pennsylvania Ave Ste 100 Towson, MD 21204 14108252300 Fax: 14108250066 Email: bcarney@GWCfirm.com ATTORNEY TO BE NOTICED V. Defendant AT&T Inc TERMINATED: 05/08/2015 Defendant Cricket Communications, LLC represented by John Edward McCann, Jr Miles and Stockbridge PC 100 Light St Baltimore, MD 21202 14103853586 Fax: 14103853700 Email: jmccann@milesstockbridge.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Ann Marie Duffy Mayer Brown 1999 K St NW Washington, DC 20006 2022633418 Fax: 2022635318 Email: aduffy@mayerbrown.com ATTORNEY TO BE NOTICED https://ecf.mdd.uscourts.gov/cgi-bin/DktRpt.pl?713353178015434-L_1_0-1 Page 2 of 7 JA 2 Appeal: 17-2288 Doc: 24 District of Maryland (CM/ECF Live 6.1) Filed: 12/12/2017 Pg: 6 of 426 11/14/17, 2(30 PM Archis A. Parasharami Mayer Brown LLP 1999 K Street NW Washington, DC 20006 202-263-3328 Fax: 202-263-5328 Email: aparasharami@mayerbrown.com ATTORNEY TO BE NOTICED Daniel R Lanier Miles and Stockbridge PC 100 Light St Baltimore, MD 21202 14103853651 Fax: 14103853700 Email: dlanier@milesstockbridge.com ATTORNEY TO BE NOTICED Lynn C Schlie Miles and Stockbridge PC 100 Light St Baltimore, MD 21202 4103853865 Fax: 14107739156 Email: lschlie@milesstockbridge.com ATTORNEY TO BE NOTICED Date Filed # Docket Text 03/31/2015 1 COMPLAINT against AT&T Inc (Filing fee $ 400 receipt number 0416-5301338.), filed by Tim Bond. (Attachments: # 1 Civil Cover Sheet, # 2 Summons)(Zajdel, Cory) (Entered: 03/31/2015) 03/31/2015 2 Summons Issued 21 days as to AT&T Inc. (jnls, Deputy Clerk) (Entered: 03/31/2015) 05/08/2015 3 AMENDED COMPLAINT against Cricket Communications, LLC, filed by Tim Bond. (Attachments: # 1 Amended Complaint with Tracked Changes, # 2 Summons for Cricket Communications, LLC)(Zajdel, Cory) (Entered: 05/08/2015) 05/11/2015 4 Summons Issued 21 days as to Cricket Communications, LLC. (jnls, Deputy Clerk) (Entered: 05/11/2015) 06/05/2015 5 FILED IN ERROR - AFFIDAVIT of Service for Summons, Civil Cover Sheet and First Amended Class Action Complaint served on Archis A. Parasharami, Esq. on June 5, 2015, filed by Tim Bond. (Zajdel, Cory) Modified on 6/5/2015 (jnls, Deputy Clerk). (Entered: 06/05/2015) 06/05/2015 6 QC NOTICE: 5 Affidavit of Service filed by Tim Bond was filed incorrectly. ***Please https://ecf.mdd.uscourts.gov/cgi-bin/DktRpt.pl?713353178015434-L_1_0-1 Page 3 of 7 JA 3 Appeal: 17-2288 Doc: 24 District of Maryland (CM/ECF Live 6.1) Filed: 12/12/2017 Pg: 7 of 426 11/14/17, 2(30 PM re-file documents by selecting Service of Process > Summons Returned Executed. It has been noted as FILED IN ERROR, and the document link has been disabled. (jnls, Deputy Clerk) (Entered: 06/05/2015) 06/05/2015 7 SUMMONS Returned Executed by Tim Bond. Cricket Communications, LLC served on 6/5/2015, answer due 6/26/2015. (Zajdel, Cory) (Entered: 06/05/2015) 06/15/2015 8 NOTICE of Appearance by Ann Marie Duffy on behalf of Cricket Communications, LLC (Duffy, Ann) (Entered: 06/15/2015) 06/16/2015 9 STIPULATION to Extend Time to Respond to First Amended Class Action Complaint by Tim Bond. (Zajdel, Cory) (Entered: 06/16/2015) 06/16/2015 10 MOTION to Appear Pro Hac Vice for Catherine Anderson (Filing fee $ 50, receipt number 0416-5442358.) by Tim Bond (Zajdel, Cory) (Entered: 06/16/2015) 06/16/2015 11 MOTION to Appear Pro Hac Vice for Oren Giskan (Filing fee $ 50, receipt number 0416-5442416.) by Tim Bond (Zajdel, Cory) (Entered: 06/16/2015) 06/16/2015 12 PAPERLESS ORDER granting 10 Motion to Appear Pro Hac Vice on behalf of Catherine Anderson. Directing attorney Catherine Anderson to register online for CM/ECF at https://www.mdd.uscourts.gov/attyregB/inputProHac.asp. Signed by Clerk on 6/16/2015. (bu, Deputy Clerk) (Entered: 06/16/2015) 06/16/2015 13 PAPERLESS ORDER granting 11 Motion to Appear Pro Hac Vice on behalf of Oren S. Giskan. Directing attorney Oren S. Giskan to register online for CM/ECF at https://www.mdd.uscourts.gov/attyregB/inputProHac.asp. Signed by Clerk on 6/16/2015. (bu, Deputy Clerk) (Entered: 06/16/2015) 06/17/2015 14 MARGINAL ORDER approving 9 Stipulation to extend time to respond to first amended complaint filed by Tim Bond. Signed by Judge William D Quarles, Jr on 6/17/2015. (jnls, Deputy Clerk) (Entered: 06/17/2015) 07/13/2015 15 MOTION to Compel Arbitration, MOTION to Stay Proceedings Pending Outcome of Arbitration by Cricket Communications, LLC Responses due by 7/30/2015 (Attachments: # 1 Memorandum in Support, # 2 Basham Declaration, # 3 Index of Exhibits to Basham Declaration, # 4 Exhibit 1, # 5 Exhibit 2, # 6 Exhibit 3, # 7 Exhibit 4, # 8 Exhibit 5, # 9 Exhibit 6, # 10 Webb Declaration, # 11 Exhibit 1)(Duffy, Ann) (Entered: 07/13/2015) 08/14/2015 16 RESPONSE in Opposition re 15 MOTION to Compel Arbitration MOTION to Stay Proceedings Pending Outcome of Arbitration filed by Tim Bond. Replies due by 8/31/2015. (Attachments: # 1 Declaration of Tim Bond)(Zajdel, Cory) (Entered: 08/14/2015) 09/04/2015 17 REPLY to Response to Motion re 15 MOTION to Compel Arbitration MOTION to Stay Proceedings Pending Outcome of Arbitration filed by Cricket Communications, LLC. (Duffy, Ann) (Entered: 09/04/2015) 01/12/2016 18 MEMORANDUM OPINION. Signed by Judge William D Quarles, Jr on 1/12/2016. (jnls, Deputy Clerk) (Entered: 01/12/2016) 01/12/2016 https://ecf.mdd.uscourts.gov/cgi-bin/DktRpt.pl?713353178015434-L_1_0-1 Page 4 of 7 JA 4 Appeal: 17-2288 Doc: 24 District of Maryland (CM/ECF Live 6.1) Filed: 12/12/2017 Pg: 8 of 426 11/14/17, 2(30 PM 01/12/2016 19 ORDER granting 15 Motion of defendant to Compel Arbitration and to stay proceedings pending the outcome of arbitration; Administratively closing this case. Signed by Judge William D Quarles, Jr on 1/12/2016. (jnls, Deputy Clerk) (Entered: 01/12/2016) 06/28/2016 20 NOTICE of Change of Address by Cory L Zajdel (Zajdel, Cory) (Entered: 06/28/2016) 02/10/2017 21 MOTION for Leave to File Second Amended Class Action Complaint by Tim Bond (Attachments: # 1 Affidavit of Cory L. Zajdel, # 2 Second Amended Complaint - Cleaned, # 3 Second Amended Complaint - Redlined)(Zajdel, Cory) (Entered: 02/10/2017) 02/15/2017 22 NOTICE of Appearance by John Edward McCann, Jr on behalf of Cricket Communications, LLC (McCann, John) (Entered: 02/15/2017) 02/15/2017 23 NOTICE of Appearance by Daniel R Lanier on behalf of Cricket Communications, LLC (Lanier, Daniel) (Entered: 02/15/2017) 02/15/2017 Case reassigned to Judge Marvin J. Garbis. Judge William D Quarles, Jr no longer assigned to the case. (cags, Deputy Clerk) (Entered: 02/15/2017) 02/17/2017 24 NOTICE of Appearance by Lynn C Schlie on behalf of Cricket Communications, LLC (Schlie, Lynn) (Entered: 02/17/2017) 02/21/2017 25 NOTICE of Appearance by Archis A. Parasharami on behalf of Cricket Communications, LLC (Parasharami, Archis) (Entered: 02/21/2017) 02/24/2017 26 STIPULATION re 21 MOTION for Leave to File Second Amended Class Action Complaint by Cricket Communications, LLC(Parasharami, Archis) (Entered: 02/24/2017) 02/27/2017 27 MARGINAL ORDER Approving 26 Stipulation concerning 21 Motion for Leave to File Second Amended Complaint filed by Cricket Communications, LLC. Signed by Judge Marvin J. Garbis on 2/27/2017. (jnls, Deputy Clerk) (Entered: 02/27/2017) 03/08/2017 28 ORDER granting 21 Motion for Leave to File Second Amended Class Action Complaint by Tim Bond. Signed by Judge Marvin J. Garbis on 3/7/2017. (jnls, Deputy Clerk) (Entered: 03/08/2017) 03/08/2017 29 SECOND AMENDED COMPLAINT against Cricket Communications, LLC, filed by Tim Bond. (Attachments: # 1 Redline Amended Complaint)(jnls, Deputy Clerk) (Entered: 03/08/2017) 03/10/2017 30 STIPULATION Concerning Briefing Schedule by Cricket Communications, LLC(Parasharami, Archis) (Entered: 03/10/2017) 03/10/2017 31 MARGINAL ORDER Approving 30 Stipulation Concerning Briefing Schedule filed by Cricket Communications, LLC. Signed by Judge Marvin J. Garbis on 3/10/2017. (jnls, Deputy Clerk) (Entered: 03/13/2017) 04/26/2017 32 STIPULATION Concerning Briefing Schedule by Cricket Communications, LLC(Parasharami, Archis) (Entered: 04/26/2017) 04/26/2017 https://ecf.mdd.uscourts.gov/cgi-bin/DktRpt.pl?713353178015434-L_1_0-1 Page 5 of 7 JA 5 Appeal: 17-2288 Doc: 24 District of Maryland (CM/ECF Live 6.1) Filed: 12/12/2017 Pg: 9 of 426 11/14/17, 2(30 PM 04/26/2017 33 MARGINAL ORDER Approving 32 Stipulation Concerning Briefing Schedule by Cricket Communications, LLC. Signed by Judge Marvin J. Garbis on 4/26/2017. (jnls, Deputy Clerk) (Entered: 04/26/2017) 05/02/2017 34 MOTION to Compel Arbitration, MOTION to Stay Proceedings Pending Outcome of Arbitration by Cricket Communications, LLC (Attachments: # 1 Memorandum in Support)(Parasharami, Archis) (Entered: 05/02/2017) 05/25/2017 35 STIPULATION Concerning Briefing Schedule by Tim Bond(Zajdel, Cory) (Entered: 05/25/2017) 05/26/2017 36 Marginal ORDER APPROVING 35 Stipulation Concerning Briefing Schedule filed by Tim Bond. Signed by Judge Marvin J. Garbis on 5/25/2017. (hmls, Deputy Clerk) (Entered: 05/26/2017) 06/09/2017 37 RESPONSE in Opposition re 34 MOTION to Compel Arbitration MOTION to Stay Proceedings Pending Outcome of Arbitration filed by Tim Bond.(Zajdel, Cory) (Entered: 06/09/2017) 06/21/2017 38 Consent MOTION for Extension of Time to File Response/Reply as to 37 Response in Opposition to Motion by Cricket Communications, LLC(Parasharami, Archis) (Entered: 06/21/2017) 06/21/2017 39 MARGINAL ORDER granting 38 Consent Motion for Extension of Time. Signed by Judge Marvin J. Garbis on 6/21/2017. (jnls, Deputy Clerk) (Entered: 06/21/2017) 07/14/2017 40 REPLY to Response to Motion re 34 MOTION to Compel Arbitration MOTION to Stay Proceedings Pending Outcome of Arbitration filed by Cricket Communications, LLC.(Parasharami, Archis) (Entered: 07/14/2017) 08/11/2017 41 Correspondence re: Bond v. Cricket Communications, LLC (Parasharami, Archis) (Entered: 08/11/2017) 08/24/2017 42 MOTION to Intervene by Michael A Scott (Attachments: # 1 Memorandum in Support, # 2 Exhibit Intervention Complaint)(Carney, Benjamin) (Entered: 08/24/2017) 09/07/2017 43 RESPONSE in Opposition re 42 MOTION to Intervene filed by Tim Bond. (Attachments: # 1 Declaration of Cory L. Zajdel, # 2 Judge Legg Letter, # 3 Declaration of Martin E. Wolf)(Zajdel, Cory) (Entered: 09/07/2017) 09/07/2017 44 RESPONSE in Opposition re 42 MOTION to Intervene filed by Cricket Communications, LLC. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C) (Parasharami, Archis) (Entered: 09/07/2017) 09/21/2017 45 REPLY to Response to Motion re 42 MOTION to Intervene Movant/Intervenor's Reply Memorandum in Support of His Motion to Intervene filed by Michael A Scott.(Wolf, Martin) (Entered: 09/21/2017) 10/05/2017 46 Correspondence re: Supplemental Authority Supporting Mr. Scott's Motion to Intervene (Carney, Benjamin) (Entered: 10/05/2017) 10/26/2017 47 MEMORANDUM AND ORDER denying 42 Motion of Michael Scott to Intervene; the Court shall defer ruling on Cricket's 34 Motion to Compel Arbitration; Status Report https://ecf.mdd.uscourts.gov/cgi-bin/DktRpt.pl?713353178015434-L_1_0-1 Page 6 of 7 JA 6 Appeal: 17-2288 Doc: 24 District of Maryland (CM/ECF Live 6.1) Filed: 12/12/2017 Pg: 10 of 426 11/14/17, 2(30 PM due 11/2/2017. Signed by Judge Marvin J. Garbis on 10/26/2017. (jnls, Deputy Clerk) (Entered: 10/26/2017) 11/01/2017 48 NOTICE OF APPEAL as to 47 Memorandum and Order,, Order on Motion to Intervene, by Michael A Scott. Filing fee $ 505, receipt number 0416-6977013.(Wolf, Martin) (Entered: 11/01/2017) 11/02/2017 49 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 48 Notice of Appeal. IMPORTANT NOTICE: To access forms which you are required to file with the United States Court of Appeals for the Fourth Circuit please go to http://www.ca4.uscourts.gov and click on Forms & Notices.(slss, Deputy Clerk) (Entered: 11/02/2017) 11/02/2017 50 USCA Case Number 17-2288 for 48 Notice of Appeal filed by Michael A Scott. Case Manager - Ashley Brownlee (slss, Deputy Clerk) (Entered: 11/02/2017) 11/02/2017 51 STATUS REPORT (Joint) by Cricket Communications, LLC(Parasharami, Archis) (Entered: 11/02/2017) 11/03/2017 52 MOTION to Stay re 48 Notice of Appeal Motion to Stay Pending Appeal by Michael A Scott (Attachments: # 1 Memorandum of Law in Support)(Carney, Benjamin) (Entered: 11/03/2017) PACER Service Center Transaction Receipt 11/14/2017 14:29:32 PACER Client keckroad:5354193:3834897 Login: Code: Search 1:15-cv-00923- Description: Docket Report Criteria: MJG Billable 5 Cost: 0.50 Pages: https://ecf.mdd.uscourts.gov/cgi-bin/DktRpt.pl?713353178015434-L_1_0-1 Page 7 of 7 JA 7 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 11 of 426 7 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND TIM BOND, on his own behalf * and on behalf of all others similarly situated * Plaintiffs * vs. * CIVIL ACTION NO. MJG-15-923 CRICKET COMMUNICATIONS, LLC * Defendant * * * * * * * * * * MEMORANDUM AND ORDER RE: INTERVENE The Court has before it Michael Scott's Motion to Intervene [ECF No. 42] and the materials submitted relating thereto. The Court has considered the materials submitted by the parties and finds a hearing unnecessary. I. BACKGROUND Plaintiff, Tim Bond ("Bond") filed this putative class action against Defendant Cricket Communications, LLC ("Cricket")1 on May 8, 2015. On September 24, 2015, Michael A. Scott ("Scott") filed a putative class action against Cricket in the 1 Bond's initial Class Action Complaint [ECF No. 1] was filed on March 31, 2015 against AT&T Inc. ("AT&T"), but Bond substituted Cricket as Defendant in the First Amended Class Action Complaint [ECF No. 3] on May 8, 2015. AT&T announced its agreement to acquire Cricket Communications Inc. on July 12, 2013. After acquiring Cricket Communications Inc., AT&T formed Cricket Communications, LLC to carry on the business of the former company. 1 JA 8 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 12 of 426 7 Circuit Court for Baltimore City. Scott's lawsuit was removed to this Court, remanded back to state court, appealed, and then remanded back to federal court. Scott now seeks to intervene in Bond's lawsuit on his own behalf and on behalf of the certified class he represents. A more detailed discussion of the factual and procedural background for both cases will provide relevant context for the instant determination. A. Factual Background2 After its acquisition by AT&T in 2013, Cricket offered for sale and sold cellphones3 that operate exclusively on a 3G CDMA4 cellular network. However, AT&T and Cricket had decided to discontinue the CDMA network and require Cricket customers to use AT&T's GSM5 cellular network. The cellphones cost hundreds of dollars each and were marketed as including "unsurpassed nationwide coverage." Class Action Compl. ¶¶ 26-28, ECF No. 2, GLR-15-3330 ("Scott Compl."). But the cellphones sold by Cricket cannot be transferred from the CDMA network to the GSM network. The cellphones were also "locked" by Cricket so they 2 The "facts" herein are as alleged by Plaintiff and are not necessarily agreed upon by Defendants. 3 Both Bond and Scott refer specifically to Samsung Galaxy S4 mobile telephones. 4 CDMA refers to Code Division Multiple Access technology. 5 GSM refers to Global Systems for Mobile technology. 2 JA 9 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 13 of 426 7 cannot be used on another cellphone service provider's network. In other words, the cellphones became useless and worthless. B. Bond's Lawsuit Bond initially filed his lawsuit on March 31, 2015 against AT&T, but amended his complaint on May 8, 2015 to substitute Cricket as the Defendant. Class Action Compl., ECF No. 1, First Am. Class Action Compl. ("FAC"), ECF No. 3. Bond seeks to represent a class defined as "[a]ll persons nationwide during the period July 12, 2013 to the present who purchased a CDMA handset from Cricket or through its authorized agents." FAC ¶ 41. In the FAC, Bond alleged six causes of action:  Count I – Breach of Implied Warranty of Merchantability  Count II – Fraudulent Concealment  Count III – Money Had and Received/Unjust Enrichment  Count IV – Negligent Misrepresentation  Count V – Maryland Consumer Protection Act  Count VI – Fraud On July 13, 2015, Cricket moved to compel arbitration and stay proceedings pending the outcome of arbitration. Mot. Compel, ECF No. 15. Judge Quarles of this Court granted the motion on January 12, 2016 and stayed the case pending the 3 JA 10 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 14 of 426 7 outcome of arbitration. Mem. Opinion and Order, ECF Nos. 18, 19. Neither Bond nor Cricket initiated arbitration. Almost a year later, on December 9, 2016, Bond contacted Cricket's counsel to request consent for leave to amend the complaint. After receiving no response, Bond contacted Cricket's counsel again on January 12, 2017 and was notified that Cricket would not consent. On February 17, 2017, Bond filed a Motion Requesting Leave to File Second Amended Class Action Complaint [ECF No. 21], which added Count VII for Violations of the Magnusson-Moss Warranty Act ("MMWA"). Although Counts I through VI remained in the proposed Second Amended Class Action Complaint ("SAC"), Bond stated his understanding that those causes of action were subject to arbitration but that he could not be compelled to arbitrate the MMWA claim. Mot. Leave 2-3, ECF No. 21. After the parties met and conferred concerning Bond's motion, on February 24, 2017, Bond and Cricket filed the Stipulation Concerning Plaintiff's Motion for Leave to File Second Amended Complaint [ECF No. 26]. Therein, the parties agreed to the following:  Bond agreed to seek leave to file his SAC solely to pursue a new claim under the federal MMWA, 4 JA 11 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 15 of 426 7  Bond agreed that he was bound to arbitrate Counts I through VI and would not re-litigate any facts or introduce any new evidence related to arbitration or other subject and would not seek to reopen Counts I to VI,  Bond agreed that it would respond to Cricket's intended new motion to compel arbitration only on the grounds that the MMWA does not permit the claim to be arbitrated, and  Cricket agreed to not object to the stay being lifted for the sole purpose of allowing Bond to pursue the new MMWA claim. Id. The Court approved the Stipulation and granted Bond's request to file the SAC. See ECF Nos. 27, 28, 29. On May 2, 2017, Cricket filed a Motion to Compel Arbitration [ECF No. 34], and Bond responded accordingly. Bond and Cricket engaged Judge Benson Everett Legg (Ret.) to mediate a class-wide settlement. Negotiations were conducted at arms-length. Legg Ltr., ECF No. 43-2. The first mediation session was held on May 5, 2017, followed by a second session by telephone on August 2, 2017, and agreement in principle was ultimately achieved on August 5, 2017. Id. Thereafter, a letter was filed with this Court advising that a settlement agreement in principle had been reached, which would resolve the claims of a proposed nationwide class. Ltr., ECF No. 41. In the letter, Cricket advised the Court: Cricket will soon file a notice of related case in Scott v. Cricket Communications, LLC, No. 15-cv-3330 (D. Md.), identifying 5 JA 12 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 16 of 426 7 Scott as related to this case. Because the proposed nationwide class settlement in Bond will cover all of the claims at issue in Scott, Cricket intends to move for a partial stay of proceedings in Scott. Id. The parties also requested that the Court defer ruling on the pending motion to compel arbitration in Bond's lawsuit. Id. On August 24, Scott filed the instant motion seeking to intervene in this case "on behalf of himself and on behalf of the certified class of Maryland citizens he represents. . . ." Mot. 1, ECF No. 42. The Motion is now ripe for decision. C. Scott's Lawsuit Scott filed his lawsuit on September 24, 2015 in the Circuit Court for Baltimore City. Scott Compl. Scott defines the class as "[a]ll Maryland citizens who, between July 12, 2013 and March 13, 2014, purchased a CDMA mobile telephone from Cricket which was locked for use only on Cricket's CDMA network." Id. at ¶ 51. Scott raises a single claim for violation of the Magnusson-Moss Warranty Act, 15 U.S.C. §§ 2301 et seq., stemming from alleged breaches of express warranties and the implied warranties of merchantability and fitness for a particular purpose. Id. ¶¶ 60–66. On October 30, 2015, Cricket removed the case to federal court under the Class Action Fairness Act ("CAFA"), averring 6 JA 13 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 17 of 426 7 that "[r]ecords of Cricket's sales indicate that Cricket sold at least 50,000 CDMA mobile telephones that were shipped to and activated in Maryland between July 12, 2013 and March 13, 2014." Notice of Removal 3, ECF No. 1, GLR 15-1330. On November 20, 2015, Cricket notified the Court that the Bond lawsuit was a related case. Notice of Related Case, ECF No. 14, GLR-15-3330.6 On November 23, 2015, Scott filed a motion to remand the case back to the Circuit Court for Baltimore City. Motion to Remand, ECF No. 15, GLR-15-3330. Scott argued that removal was improper because Cricket had not used the proper class definition to allege CAFA jurisdiction, i.e., Scott had proposed a class limited to Maryland citizens only, but Cricket described a class of "persons whose phones were shipped to and activated in Maryland." Mem. 9, ECF No. 15-1, GLR-15-3330. On December 16, 2015, Cricket filed its Motion to Compel Arbitration [ECF No. 20, GLR-15-3330].7 6 Cricket followed up on December 2, 2015 with a Motion to Relate Case [ECF No. 16, GLR-15-3330]. Scott filed a response [ECF No. 17, GLR-15-3330] indicating that he had no objection to assigning both cases to the same Judge but otherwise disagreed that the cases were "related." 7 On November 10, 2015, Scott had filed a Complaint Petitioning to Stay Threatened Arbitration in the Circuit Court for Baltimore County, Maryland. ECF No. 2, GLR-15-3759. On December 9, 2015, Cricket removed that case to this Court and it was filed as a related case to GLR-15-3330. ECF No. 1, GLR-15- 3759. On December 2, 2015, Cricket moved to dismiss or stay the related case in GLR-15-3759, and on December 21, 2015, Scott filed a motion to remand the case back to state court. 7 JA 14 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 18 of 426 7 On August 19, 2016, Judge Russell of this Court granted Scott's motions to remand and denied Cricket's motions as moot. Judge Russell determined that Cricket had failed to carry its evidentiary burden to present sufficient facts to prove federal jurisdiction because the proposed class includes only Maryland citizens, but Cricket's evidence pertained only to Maryland residents. Mem. Opinion 18, ECF No. 33, GLR-15-3330. On August 29, 2016, Cricket filed a petition for permission to appeal to the Fourth Circuit Court of Appeals.8 On November 8, 2016, the Fourth Circuit Court of Appeals issued an Order that deferred ruling on the petition pending briefing and further consideration of the merits of the appeal. Order, ECF No. 38, GLR-15-3330.9 After briefing and oral argument, the Fourth Circuit issued its Judgment on July 28, 2017, vacating the District Court's judgment and remanding for further 8 Remand orders are generally not subject to appeal, but there is a limited exception in CAFA cases. Under CAFA, "a court of appeals may accept an appeal from an order of a district court granting or denying a motion to remand a class action to the State court from which it was removed if application is made to the court of appeals not more than 10 days after entry of the order." 28 U.S.C. § 1453(c)(1). If the appeal is accepted, the court of appeals must "complete all action on such appeal, including rendering judgment, not later than 60 days after the date on which such appeal was filed, unless an extension is granted" by agreement for any period of time or for up to 10 days for good cause shown. § 1453(c)(2)- (3). 9 A briefing schedule was issued in Appeal No. 16-2300, Scott v. Cricket Communications, LLC, and the petition, No. 16-3051, was placed in abeyance. 8 JA 15 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 19 of 426 7 proceedings. Judgment, ECF No. 39, GLR-15-3330.10 On the same day, the Fourth Circuit also granted the petition for permission to appeal. Order, ECF No. 40, GLR-15-3330. During the pendency of the appeal, Scott's underlying case moved forward in the Circuit Court for Baltimore City. Scott moved to lift the stay that had been imposed by agreement of the parties, and the motion was granted on February 3, 2017. Cricket filed a motion to compel arbitration in Baltimore City, and it was denied on May 11, 2017. Scott then filed the motion for class certification, which was granted on June 9, 2017 as follows: [A]ll Maryland citizens who, between July 12, 2013 and March 13, 2014, purchased a Code Division Multiple Access ("CDMA") mobile telephone from Cricket Communications, LLC ("Cricket"),which was locked for use only on Cricket's CDMA network. Mot. Mem 5, ECF No. 42-1. After the Fourth Circuit's opinion was issued, on July 28, 2017, Scott amended the complaint in Baltimore City to include both the certified class of Maryland citizens, and a putative nationwide class defined as: All persons within the United States who, between July 12, 2013 and March 13, 2014, purchased a CDMA mobile telephone from Cricket, which was locked for use only on Cricket's CDMA network. 10 In a published decision, Scott v. Cricket Communications, LLC, 865 F.3d 189 (4th Cir. 2017). 9 JA 16 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 20 of 426 7 Id. Scott's District Court lawsuit was reopened on August 9, 2017. On August 11, 2017, Cricket filed a renewed notice of removal in GLR-15-3330, a motion to vacate the state court class certification order, a motion to vacate the state court order denying Cricket's motion to compel arbitration, a motion to compel arbitration, a motion to stay proceedings in part, and a notice of Bond's related lawsuit and that a settlement in principle had been reached therein. Also on August 11, 2017, Scott petitioned the Fourth Circuit for a rehearing, which stayed the mandate pending decision, and Scott filed a motion for entry of Administrative Order Number 1, which would provide potential class members notice of the lawsuit. On August 25, 2017, the Fourth Circuit denied Scott's requested rehearing, and on September 5, 2017, the Fourth Circuit issued its mandate. On September 9, 2017, Scott filed a motion to remand his case back to state court and to strike the renewed notice of removal. The parties have briefed their motions, and all remain pending in GLR-15-3330. 10 JA 17 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 21 of 426 7 II. LEGAL STANDARD Rule11 24 creates two intervention alternatives, both subject to the filing of a "timely motion." Gould v. Alleco, Inc., 883 F.2d 281, 286 (4th Cir. 1989). The Rule distinguishes between "Intervention of Right" pursuant to Rule 24(a), and "Permissive Intervention" pursuant to Rule 24(b). In addition to being timely, the Fourth Circuit has explained that an intervenor must, under Rule 24(a)(2), satisfy three additional requirements: (1) it must demonstrate a sufficient interest in the subject matter of the underlying action; (2) it has to prove that the interest would be impaired if the intervention was not allowed; and (3) it must establish that the interest is inadequately represented by existing parties. Houston Gen. Ins. Co. v. Moore, 193 F.3d 838, 839 (4th Cir. 1999)(citations omitted). Permissive intervention under Rule 24(b)(2) gives the court discretion to grant intervention when an applicant "has a claim or defense that shares with the main action a common question of law or fact." Rule 24(b)(1)(B). "In exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties' rights." Id. at (b)(3). 11 All "Rule" references herein are to the Federal Rules of Civil Procedure. 11 JA 18 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 22 of 426 7 III. DISCUSSION Scott moves to intervene as of right, and alternately permissively. Under either alternative, the application for intervention must be timely, although "[w]here intervention is of right, 'the timeliness requirement of Rule 24 should not be as strictly enforced as in a case where intervention is only permissive.'" Scardelletti v. Debarr, 265 F.3d 195, 203 (4th Cir. 2001), rev'd on other grounds, Devlin v. Scardelletti, 536 U.S. 1 (2002)(quoting Brink v. DaLesio, 667 F.2d 420, 428 (4th Cir. 1981)). Both Bond and Cricket contend that Scott's motion for intervention is not timely. In order to determine whether a motion to intervene is sufficiently timely, a trial court in this Circuit assesses factors including "how far the suit has progressed, the prejudice that delay might cause other parties, and the reason for the tardiness in moving to intervene." Scardelletti, 265 F.3d at 203; Alt v. U.S. E.P.A., 758 F.3d 588, 591 (4th Cir. 2014). A district court has wide discretion in determining what is timely. Gould, 883 F.2d at 286. "In a class action the critical issue with respect to timeliness is whether the proposed intervenor moved to intervene 'as soon as it became clear. . . that the interests of the unnamed class members would no longer be protected by the named class 12 JA 19 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 23 of 426 7 representatives.'" Hill v. W. Elec. Co., 672 F.2d 381, 386 (4th Cir. 1982)(quoting United Airlines, Inc. v. McDonald, 432 U.S. 385, 394 (1977)). The instant case has progressed to a settlement in principle "that would resolve the claims of a proposed nationwide class." Ltr. Aug. 11, 2017, ECF No. 41. The parties asserted in the letter that the proposed nationwide class settlement would cover all of the claims at issue in Scott's lawsuit. Id. Scott asserts that the filing of the letter was the first time he became aware of an interest being at risk. Scott contends that because he filed his motion to intervene within 20 days of the letter, his motion is timely. Scott, however, knew about Bond's lawsuit no later than November 20, 2015 when Cricket filed the Notice of Related Case [ECF No. 14, GLR-15-3330] in Scott's case. Cricket's Notice stated that the allegations in the two complaints arise out of the same events, and both cases raise warranty claims although the causes of action are not identical. The Notice points out that the main difference is that Bond's alleged class is nationwide while Scott's alleged class is limited to Maryland customers. Scott made no response until Cricket's Motion to Relate Case [ECF No. 16, GLR-15-3330], which was filed on December 2, 2015. In his Response [ECF No. 17, GLR-15-3330], 13 JA 20 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 24 of 426 7 Scott stated that he had no objection to the case being assigned to the same Judge, but disagreed that his lawsuit arises from the same events as Bond's because Scott's complaint challenges the sale of worthless cell phones to Maryland citizens only, while the Bond lawsuit is a putative federal nationwide class action.12 Scott added that the causes of action were not duplicative since he alleged only an MMWA claim and Bond's lawsuit contained no MMWA claim. Regardless, Bond's case was compelled to arbitration in January 2016, and Scott pursued removing his case back to state court. Since that time, Bond amended his Complaint to add an MMWA claim. Therefore, as of February 10, 2017, Scott knew, or should have known, that Bond's case included an MMWA cause of action, and as of February 24, 2017, Scott knew, or should have known, of the stipulation to lift the stay in Bond's case in order to litigate the MMWA claim. Scott could have intervened in February 2017, but chose to pursue his own case in state court. Scott's case has since been removed again to federal court, and on July 28, 2017, Scott amended his own Complaint to add a proposed nationwide class. Scott now faces motions to vacate the state court class certification, to compel 12 The Court notes that having defined different classes does not equate with whether the two cases were both arising out of the same events. It is clear that both cases arise out of Cricket's sale of CDMA cellphones. 14 JA 21 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 25 of 426 7 arbitration and to stay proceedings. It was not until August 24, 2017, after notice of the proposed settlement in Bond's case, that Scott moved to intervene. Scott argues that Bond's case has barely been litigated even though it is the older of the two cases. But Bond's case has been through a formal arms-length settlement negotiation and the parties reached a settlement in principle. Bond's case, therefore, is near to final resolution, and there is no doubt that intervention at this time will cause delay and potential disruption of the negotiated settlement. Scott does not adequately explain how his interests have now become no longer protected. Scott expresses concern that Cricket is engaging in a reverse auction, which can produce an inferior settlement. However, Scott's stated objective of protecting his interests, as well as the certified Maryland class,13 can be satisfied by the opportunity to participate and object to the settlement in the fairness hearing14 if he does not opt-out of the nationwide class. Scott can also choose to opt- 13 There remains an open question of whether there will continue to be a Maryland certified class since there is a pending motion to vacate the state court decision that certified the class. 14 A class action cannot be settled without the approval of the Court after a hearing "and on finding that it is fair, reasonable, and adequate." Rule 23(e)(2). Scott will have the opportunity to raise his concerns regarding collusion and inadequacy of the settlement during the approval process. 15 JA 22 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 26 of 426 7 out of the settlement and continue to pursue his separate litigation against Cricket. Further, it is logical for Cricket to pursue settlement in the case with a nationwide class rather than the case limited to Maryland citizens, so its actions do not "smell" of targeting the most ineffectual attorneys or seeking easy resolution. Under the circumstances of this case, Scott could have, and should have, acted sooner. Upon review of the timeliness factors, the Court finds that Scott's intervention motion was untimely and shall exercise its discretion to deny the motion. Scott may, of course, file objections to the proposed settlement in the ordinary course if and when preliminary approval of the proposed settlement is granted. Cricket's and Bond's oppositions argue that even if the motion to intervene were considered timely, Scott has failed to establish the remaining elements for intervention under Rule 24. Because the Court determines that the motion is not timely, it need not address herein the remaining elements. The bottom line is that intervention is being denied but Scott, as a class member, may participate in further proceedings herein relating to the settlement reached by Bond and Cricket. 16 JA 23 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 27 of 426 7 IV. CONCLUSION For the foregoing reasons: 1. Michael Scott's Motion to Intervene [ECF No. 42] is DENIED. 2. The Court shall defer ruling on Cricket's pending Motion to Compel Arbitration [ECF No. 34] pending settlement. 3. Plaintiffs and Defendant shall proceed expeditiously regarding the settlement of the instant case and shall, by November 2, 2017, provide a status report stating the dates for further action regarding settlement approval procedures. SO ORDERED, on Thursday, October 26, 2017. /s/__________ Marvin J. Garbis United States District Judge 17 JA 24 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 28 of 426 2 IN THE UNITED STATES DISTRICT FOR THE DISTRICT OF MARYLAND (Baltimore Division) TIM BOND 150 WESTMINSTER PIKE REISTERSTOWN, MD 21136 JURY TRIAL DEMANDED on his own behalf and on behalf of all others similarly situated, Plaintiffs, v. AT & T INC. Case No. 1:15-cv-923 208 S. AKARD STREET DALLAS, TX 75202 SERVE ON: Department of Assessment and Taxation Corporate Charter Division 301 W. Preston Street Room 801 Baltimore, MD 21201 Defendant. CLASS ACTION COMPLAINT Plaintiff Tim Bond ("Plaintiff" or "Bond") b r i n g s this class action complaint individually and in a representative capacity on behalf all others similarly situated (the "Class") against defendant AT&T, Inc. ("AT&T") and its Cricket unit. I. Preliminary Statement 1. On July 12, 2013, AT&T announced its agreement to acquire Cricket Communications Inc. 1 JA 25 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 29 of 426 2 2. From July 12, 2013 to the present (the "Class Period"), Cricket, both directly and through its authorized agents, has offered for sale and sold to the consuming public CDMA handsets. 3. Prior to the Class Period, AT&T decided that on or after the acquisition of Cricket, AT&T would discontinue all CDMA service and require all Cricket customers to use AT&T's GSM cellular network. 4. Prior to the Class Period, Cricket knew or should have known that AT&T intended to discontinue the use of CDMA handsets in favor of AT&T's GSM service. 5. During the Class Period, Cricket knew, or reasonably should have known, that the CDMA handsets sold would be inoperable as a result of the acquisition by AT&T. 6. During the Class Period, Cricket affirmatively represented that all CDMA handsets sold were compatible with Cricket's cellular phone service. 7. During the Class Period, Cricket failed to disclose that these CDMA handsets had an artificially limited useful life and that the phones would not be supported for the expected life of the phone. 8. Included in the CDMA handsets which rendered inoperable by the AT&T acquisition is the Plaintiff's Samsung Galaxy S4, which he purchased from Cricket in or around December 2013. 9. Plaintiff asserts claims individually on behalf of the Class. 2 JA 26 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 30 of 426 2 II. The Parties 10. Plaintiff is a citizen of M a r y l a n d c u r r e n t l y r e s i d i n g a t 1 5 0 Westminster Pike, Reisterstown, MD 21136 (Baltimore County, MD). He is a natural person over the age of 21 and otherwise sui juris. 11. Defendant AT&T Inc. is incorporated in the State of Delaware and maintains its corporate headquarters in Dallas, Texas. On July 12, 2013, AT&T agreed to buy Leap Wireless International, Inc., for $1.2 billion. As part of the agreement, AT&T would acquire the Leap Wireless subsidiary, Cricket Communications Inc. ("Cricket"), which provided wireless products and services to approximately 4.6 million subscribers. On March 13, 2014, the Federal Communications Commission approved the merger between AT&T and Leap Wireless. Since that time, Cricket has functioned as a unit of AT&T. III. JURISDICTION AND VENUE 12. This Court has jurisdiction over this action pursuant to the Class Action Fairness Act of 2005 ("CAFA"), Pub. L. No. 109-2, 119 Stat. 4 (codified in various sections of 28 U.S.C.). 13. Plaintiff Tim Bond is a citizen of Maryland. Defendant is a citizen of Delaware and Texas but is registered to do business in Maryland and nationwide. The amount in controversy exceeds $5,000,000 and there are at least one hundred members of the putative class. 14. This Court has jurisdiction over Defendant because it either is a foreign corporation authorized to conduct business in Maryland, is doing business in Maryland and has registered with the Maryland Secretary of State, or do sufficient business in Maryland, have 3 JA 27 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 31 of 426 2 sufficient minimum contacts with Maryland, or otherwise intentionally avail themselves of the Maryland consumer market through the promotion, marketing and sale of wireless products and services in Maryland. This purposeful availment renders the exercise of jurisdiction by this Court over Defendant and its affiliated or related entities permissible under traditional notions of fair play and substantial justice. 15. In addition, this Court has subject-matter jurisdiction under CAFA because the amount in controversy exceeds $5 million and diversity exists between Plaintiff and the Defendants. 28 U.S.C. § 1332(d)(2). Further, in determining whether the $5 million amount in controversy requirement of 28 U.S.C. § 1332(d) (2) is met, the claims of the putative class members are aggregated. 28 U.S.C. § 1332(d)(6). 16. Venue is proper in this forum pursuant to 28 U.S.C. § 1391 because Defendant transacts business and may be found in this District and a substantial portion of the practices complained of herein occurred in the District of Maryland. 17. All conditions precedent to this action have occurred, been performed, or have been waived. IV. Factual Allegations 18. Two of the predominant cellular voice technologies are Global Systems for Mobile communications ("GSM") and Code Division Multiple Access ("CDMA"). 19. GSM was developed by the European Telecommunications Standards Institute to replace the analog networks. In the United States, GSM is the technology behind AT&T and T- Mobile USA. Current GSM devices use a Security Identity Module, or SIM, card. This card contains the International Mobile Subscriber Identity (IMSA) Number, carrier information, and 4 JA 28 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 32 of 426 2 consumer contact information. Assuming the phone is not locked by the carrier, the SIM card slot allows the consumer to migrate the phone between carriers. 20. CDMA was developed by Qualcomm and has been the technology preferred by Sprint and Verizon. Rather than having a SIM card for data storage, data is stored on the CDMA phone itself. This has made moving a CDMA phone between carriers difficult, if not impossible. 21. At all relevant times, Cricket has marketed, offered for sale, and sold handheld devices compatible with the CDMA network. 22. In July 2013, AT&T reached an agreement to purchase the assets and assume the liabilities of Leap Wireless, the parent of Cricket, for $1.2 Billion. AT & T retained Cricket's directors and management in addition to its 3,400 employees. The July 12, 2013 press release of AT&T and Leap Wireless provided, in relevant part, the following information about the acquisition: AT&T will acquire all of Leap's stock and wireless properties, including licenses, network assets, retail stores and approximately 5 million subscribers. . . . Leap's network covers approximately 96 million people in 35 U.S. states. Leap currently operates -- under the Cricket brand -- a 3G CDMA network, as well as a 4G LTE network covering 21 million people in these areas, and has 3,400 employees. AT&T will retain the Cricket brand name, provide Cricket customers with access to AT&T's award-winning 4G LTE mobile network, utilize Cricket's distribution channels, and expand Cricket's presence to additional U.S. cities. The result will be increased competition, better device choices, improved customer care and a significantly enhanced mobile Internet experience for consumers seeking low-cost prepaid wireless plans. . . . The acquisition includes spectrum in the PCS and AWS bands covering 137 million people and is largely complementary to AT&T's existing spectrum 5 JA 29 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 33 of 426 2 licenses. Immediately after approval of the transaction, AT&T plans to put Leap's unutilized spectrum – which covers 41 million people -- to use in furthering its 4G LTE deployment and providing additional capacity and enhanced network performance for customers' growing mobile Internet usage. Owners of approximately 29.8% of Leap's outstanding shares have entered into an agreement to vote in favor of the transaction. The transaction is subject to review by the Federal Communications Commission and the Department of Justice and to other customary closing conditions. AT&T expects the transaction to close in six to nine months. 23. Thus, according to the July 12, 2013 press release, AT&T intended to move customers from Cricket's CDMA network to AT&T's GSM network and Cricket/AT&T further intended not to support CDMA handsets that could not be migrated to the GSM network. 24. In fact, many CDMA handsets cannot be moved to a GSM network. 25. Cricket knew and failed to disclose this material information to customers. 26. Cricket, moreover, continued to offer for sale and sell to the consuming public CDMA handsets that are not compatible with and cannot be migrated to the GSM network. 27. Cricket thus knew, and failed to disclose, that many of the CDMA handsets it offered for sale and sold to the consuming public would be rendered inoperable as a result of the AT&T acquisition. 28. For instance, Plaintiff purchased a Samsung Galaxy 4S from an authorized agent of Cricket in or around December 2013, more than five months after AT&T acquired Cricket. 29. Thereafter, Plaintiff entered into a wireless service agreement with Cricket to use the Samsung Galaxy 4S on Cricket's CDMA compatible cellular network. 6 JA 30 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 34 of 426 2 30. Plaintiff received two different receipts, one for the purchase of the phone and one for the purchase of the wireless service agreement. 31. In January 2015, AT&T publicly announced that the legacy CDMA markets covered by its Cricket unit will be turned off this year, in a three-phase switch-off plan. See https://www.telegeography.com/products/commsupdate/articles/2015/01/09/att-confirms- september-shutdown-of-cricket-cdma-network/. 32. As per the AT&T public announcement in January 2015, the CDMA wireless service will be terminated on a rolling basis by bill cycle. Customers in the initial 'sunset markets' will have their service terminated by bill cycle beginning March 15, 2015 with the CDMA network in those markets being turned off completely on 15 April 2015. Initial (March/April) sunset markets include: Washington, DC; Little Rock, Fayetteville and Fort Smith (Arkansas); Wilmington (Delaware); Chicago and Northern Illinois (Illinois); South Bend (Indiana); Baltimore (Maryland); Atlantic City (New Jersey); Buffalo, Rochester and Syracuse (New York) and Philadelphia (Pennsylvania). 33. The second group of markets slated for shutdown in May/June 2015 consists of: Wichita (Kansas); Albuquerque and Las Cruces (New Mexico); Las Vegas (Nevada) and Oklahoma City and Tulsa (Oklahoma). 34. All remaining legacy CDMA markets will be turned off by mid-September 2015. 35. Cricket announced that its customers who purchased an iPhone with original CDMA (including the iPhone 4s, iPhone 5, iPhone 5s or iPhone 5c) will receive a free, replacement SIM card that enables the iPhone to operate on Cricket's new 4G and 4G LTE nationwide GSM network. However, persons who purchased any other type of cell phone from Cricket would be required to purchase a new handset. 7 JA 31 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 35 of 426 2 36. As Cricket explained on its website: "The new Cricket's nationwide 4G network uses GSM (Global System for Mobile Communications) technology that is the global standard for mobile service while the original Cricket uses CDMA network technology. That means that with the exception of original Cricket iPhone 4S, iPhone 5, iPhone 5S and iPhone 5C, your current CDMA phone will not work on the new Cricket network. 37. In or around February 2015, Plaintiff went into a Cricket store in Maryland to pay his bill for February service. When Plaintiff was in the Cricket store, Cricket turned his Samsung Galaxy S4 phone off. Plaintiff attempted to have his phone turned back on through AT&T and other service providers, including Sprint, Virgin Mobile and T-Mobile. But none was able to revive Plaintiff's phone. 38. Plaintiff's phone has no value or only a de minimis value due to its inoperability on any cellular network. 39. Plaintiff is not alone. Indeed, several consumers have made anonymous complaints on the web page forum: https://forums.att.com/t5/General-Account-Questions/AT- amp-T-Merger-with-Cricket-Sucks/td-p/4096500, concerning Cricket's failure to disclose that the CDMA handheld devices which it offered for sale and sold to the consuming public as of July 12, 2013, would be inoperable as a result of the AT&T acquisition, including the following: Blownaway Sep 26, 2014 8:26:33 AM This merger of AT&T and Cricket is horrible. First I just bought an expensive Samsung Galaxy S4 not even a year ago and I am being told that I have to buy a brand new phone when the merger is fully complete (March 2015). This is ridiculous - who is sitting around with an extra $400 a year to purchase a new phone. As large a company as AT&T they do not have the capability to switch my phone over. 8 JA 32 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 36 of 426 2 SteveJodylynn Oct 29, 2014 12:28:27 PM I agree. It is just a few months from when my expensive CDMA Cricket smartphone (less than a year old) becomes inoperable and I've heard nothing from AT&T or Cricket about the transition plan, other than I will be forced to shell out hundreds for a new phone that is compatible with AT&T's network. Chiefsfan Nov 29, 2014 5:43:14 PM. . . AT&T is screwing over thousands of Cricket customers and they DON'T CARE ONE BIT! Cricket shouldn't have been selling phones over the past 7-8 months, since the merger with AT&T, knowing that they won't work after March, but they continue to do just that. The point is that AT&T is gaining millions of unearned $ by forcing customers to buy new ridiculously expensive phones (oh, but they'll give you a free deal on their piece-o-crap phones (which are all of them other than the Galaxy & iphones) all under the guise of "providing better service". What a crock!! WE ALL NEED TO BOYCOTT AT&T ONCE THEY RENDER OUR PHONES USELESS!!! hatenewcricket Feb 11, 2015 9:16:13 PM I know what you mean I got my S4 just befor[e] they annou[n]ced the switch, I believe they knew what was going to happen and sold me an already worthless phone this whole thing has been a rip off and is unfair to cricked customers who are getting screwed V. CLASS ALLEGATIONS 40. Plaintiff brings this action against Defendant pursuant to Rule 23 of the Federal Rules of Civil Procedure on behalf of himself and all other persons similarly situated. Plaintiff seeks to represent the following classes: All persons nationwide during the period July 12, 2013 to the present, who purchased a CDMA handset from Cricket or through its authorized agents. Excluded from this class are Defendants, their affiliates, subsidiaries, agents, board members, directors, officers, and/or employees. 9 JA 33 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 37 of 426 2 41. Plaintiff reserves the right to modify or amend the definition of the proposed Class before the Court determines whether certification is appropriate. 42. Defendant subjected Plaintiff and the respective Class members to the same unfair, unlawful, and deceptive practices and harmed them in the same manner. 43. The Class, as defined above, is identifiable. 44. The Named Plaintiff is a member of the Class. 45. The proposed class is so numerous that joinder of all members would be impracticable. Cricket sold thousands of CDMA handsets during the Class Period in the State of Maryland and nationwide. 46. The individual class members are ascertainable, as the names and addresses of all class members can be identified in the business records maintained by Defendant. 47. While the precise number of class members can only be obtained through discovery, the numbers are clearly more than can be consolidated in one complaint such that it would be impractical for each member to bring suit individually. 48. There are questions of law and fact that are common to Plaintiff's and class members' claims. These common questions predominate over any questions that go particularly to any individual member of the Class. 49. Among such common questions of law and fact are the following: a. Whether Cricket offered for sale and sold to the consuming public CDMA handsets during the Class Period; b. Whether Cricket knew and failed to disclose that the CDMA handsets would be inoperable upon completion of the merger with AT&T; 10 JA 34 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 38 of 426 2 c. Whether Cricket breached the implied covenant of good faith and fair dealing by offering for sale and selling soon to be inoperable CDMA handsets; d. Whether Cricket made material misstatements of fact and/or knew and failed to disclose material information concerning the CDMA handsets which it sold to Plaintiff and other members of the class, including facts that the CDMA handsets would be inoperable as a result of the AT&T acquisition, that Cricket planned to convert to the GSM network and that as a result, the CDMA handsets had an artificially limited useful life; e. Whether Cricket breached the implied warranty of merchantability by selling Plaintiff and the other members of the Class CDMA handsets which it knew had an artificially limited useful life; and f. Whether Plaintiff and the Class Members are entitled to damages and/or injunctive relief as a result of Defendant's conduct. 50. Plaintiff's claims are typical of the claims of t he c la s s because of the similarity, uniformity, and common purpose of Defendant's unlawful conduct. Each class member has sustained, and will continue to sustain, damages in the same manner as Plaintiff as a result of Defendant's wrongful conduct. 51. Plaintiff is an adequate representative of the class he seeks to represent and will fairly and adequately protect the interests of that class. 52. Plaintiff is committed to the vigorous prosecution of this action and has retained competent counsel, experienced in litigation of this nature, to represent them. 53. There is no hostility between Plaintiff and the unnamed class members. 54. Plaintiff anticipates no difficulty in the management of this litigation as a class action. 11 JA 35 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 39 of 426 2 55. To prosecute this case, Plaintiff has chosen the undersigned law firms, which are experienced in class action litigation and have the financial and legal resources to meet the substantial costs and legal issues associated with this type of litigation. 56. The questions of law or fact common to Plaintiff's and each Class Member's claims predominate over any questions of law or fact affecting only individual members of the class. 57. All claims by Plaintiff and the unnamed class members are based Cricket's sale of CDMA handsets to the consuming public when it knew, or reasonably should have known and failed to disclose that these handsets would be inoperable upon completion of the AT&T merger. 58. Common issues predominate where, as here, liability can be determined on a class-wide basis, even when there will be some individualized damages determinations. 59. As a result, when determining whether common questions predominate, courts focus on the liability issue, and if the liability issue is common to the class as is the case at bar, common questions will be held to predominate over individual questions. 60. A class action is superior to individual actions in part because of the non- exhaustive factors listed below: (a) Joinder of all class members would create extreme hardship and inconvenience for the affected customers as they reside all across the states; (b) Individual claims by class members are impractical because the costs to pursue individual claims exceed the value of what any one class member has at stake. As a result, individual class members have no interest in prosecuting and controlling separate actions; 12 JA 36 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 40 of 426 2 (c) There are no known individual class members who are interested in individually controlling the prosecution of separate actions; (d) The interests of justice will be well served by resolving the common disputes of potential class members in one forum; (e) Individual suits would not be cost effective or economically maintainable as individual actions; and (f) The action is manageable as a class action. VI. CAUSES OF ACTION COUNT I BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY 61. Plaintiff incorporates by reference paragraphs 1 through 60 above, as if each and every allegation is set forth fully herein. 62. At all relevant times, Cricket was a merchant with respect to the CDMA handsets. 63. Plaintiff purchased his now inoperable CDMA handset from an authorized agent of Cricket. At the time of purchase, Cricket and it authorized agents were in the business of selling CDMA handsets and/or by course of business held itself out as having special knowledge or skill regarding those handsets. 64. A warranty that the CDMA handsets were in merchantable condition was implied by law in the sale of these handsets by Cricket and its agents. 13 JA 37 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 41 of 426 2 65. The CDMA handsets which Cricket and its authorized agents sold to Plaintiff and other members of the class were not in merchantable condition and are not fit for the ordinary purpose for which handsets are used and/or were not of the same quality of those generally acceptable in the trade. 66. In fact, the CDMA handsets sold by Cricket and its authorized agents, including the Samsung Galaxy 4S sold to Plaintiff, were unmerchantable. 67. Specifically, Cricket knew and failed to disclose that these CDMA handsets would be inoperable as a result of the AT&T acquisition and Cricket's plan to convert to the GSM network. As a result, the CDMA handsets had an artificially limited useful life. 68. Plaintiff and other members of the Class have had sufficient direct dealings with either Cricket or its authorized agents to establish vertical privity of contract between themselves and Defendant. Nevertheless, privity is not required in this case because Plaintiff and the other members of the Class are intended third- party beneficiaries of contract between Cricket and its authorized agents. Specifically, Plaintiff and the other members of the Class are the intended beneficiaries of Cricket's implied warranties. Cricket's authorized agents were not intended to be the ultimate consumers of the CDMA handsets. COUNT II FRAUDULENT CONCEALMENT 69. Plaintiff incorporates by reference paragraphs 1 through 60 above, as if each and every allegation is set forth fully herein. 14 JA 38 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 42 of 426 2 70. As set forth above, Cricket knew and failed to disclose and/ or suppressed and/or concealed material facts concerning the CDMA handsets, including the Samsung Galaxy 4S, which it sold to Plaintiff and other members of the class. 71. These concealed facts were material because they directly impacted the reliability and use of the handsets. 72. Cricket owed Plaintiff and the other members of the Class a duty to disclose that the CDMA handsets would be rendered inoperable by the AT&T acquisition and Cricket's plans to convert to the GSM network because it possessed exclusive and superior knowledge and access to these facts. 73. Cricket knew and failed to disclose that the CDMA handsets had an artificially limited useful life and that the CDMA handsets were not compatible with AT&T's GSM cellular network. 74. Cricket actively concealed and/or suppressed these material facts, in whole or in part, with the intent to induce Plaintiff and the other members of the Class to purchase the CDMA handsets from Cricket and its authorized agents and to pay more than they otherwise would have paid had these material facts that the CDMA handsets would be inoperable as a result of the AT&T acquisition and Cricket's plans to convert to the GSM network been disclosed. 75. Cricket's conduct was oppressive, fraudulent, malicious and in reckless disregard of the rights of Plaintiff and the Class. 15 JA 39 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 43 of 426 2 76. Plaintiff and the other members of the Class were not aware of the omitted material facts and would not have acted as they did if they had known of the concealed and/or suppressed facts. 77. As a result of Cricket's concealment and/or suppression of material facts concerning the CDMA handsets, Plaintiff and the Class have sustained damages. COUNT III MONEY HAD AND RECEIVED/UNJUST ENRICHMENT 78. Plaintiff incorporates herein by reference as though fully set forth the allegations in paragraphs 1 through 60 of this Complaint, as if each and every allegation is set forth fully herein. 79. As set forth above, Cricket charged and collected payments for CDMA handsets that would become inoperable in amounts that exceeded the value of these CDMA handsets, which conferred a substantial benefit on Cricket. 80. Cricket was aware of, and had knowledge of, this substantial benefit. 81. By doing so, Cricket has come into the possession of money in the form of payments that it had, and has no right to at law or in equity. 82. It would be inequitable for Cricket to retain any such monies that it had no legal right to charge. 83. As a consequence, Named Plaintiff and the members of the Class have been damaged. 16 JA 40 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 44 of 426 2 COUNT IV NEGLIGENT MISREPRESENTATION 84. Plaintiff incorporates herein by reference as though fully set forth the allegations in paragraphs 1 through 60 of this Complaint, as if each and every allegation is set forth fully herein. 85. Cricket and its agents or employees negligently made the false and misleading representations and omissions alleged herein, including but not limited to the representations that its CDMA handsets would pass without objection in the trade under the contract description and that the CDMA handsets sold were compatible with and would continue to be compatible with Cricket's CDMA's cellular service for the useful life of the handset. 86. Cricket's agents or employees negligently failed to disclose the material fact that its handsets would become inoperable during its useful lifespan. 87. Cricket's agents or employees negligently failed to disclose that the prices of the CDMA handsets did not accurately represent its value, intending that Plaintiff and the Class would reasonably rely upon the false and misleading representations and omissions to their detriment, which they did. 88. As a direct and proximate result of Cricket's negligent statements, representations, and omissions, Plaintiff and the Class were induced, ab initio, to purchase a CDMA handset from Cricket for a price significantly higher than they were worth. 89. Cricket, their agents or employees, owed a duty of care to Plaintiff and the Class. 17 JA 41 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 45 of 426 2 90. Cricket recklessly and negligently breached the duty of care they owed to Plaintiff and the Class by making negligent representations to Plaintiff and the Class and negligently concealing material facts from them, as set forth herein. 91. Cricket knew, or had reason to know, that Plaintiffs and the Class would reasonably rely on the representations and concealments which if erroneous, would cause loss, injury or damage. 92. Plaintiff and the Class justifiably and reasonably took actions to their detriment as alleged herein, by paying Cricket significantly more for their CDMA handsets than they were worth, in reliance on the negligent representations and concealments. COUNT V MARYLAND CONSUMER PROTECTION ACT 93. Plaintiff incorporates herein by reference as though fully set forth the allegations in paragraphs 1 through 60 of this Complaint, as if each and every allegation is set forth fully herein. 94. Cricket is a merchant within the meaning of the Maryland Consumer Protection Act ("MCPA"), MD. CODE ANN., COMM. LAW § 13-101(g), and is subject to all of the MCPA's provisions prohibiting unfair or deceptive trade practices including those in MD. CODE ANN., COMM. LAW §§ 13-303 and 13-301. 95. Cricket's failure to disclose and its concealment from Plaintiff and members of the Class of the material facts as set forth herein constitutes unfair and deceptive trade practices in violation of the MCPA, §§ 13-303 and 13-301(1), (2)(i) and (iv) and (3). If Plaintiff and 18 JA 42 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 46 of 426 2 members of the Class had known the material facts related to the CDMA handsets, they would not have purchased the handsets or would have required a significantly lower price. 96. On information and belief, Plaintiff avers that Cricket systematically sold CDMA handsets during the Class Period which were not compatible with AT&T's GSM cellular network and retailed these CDMA handsets to the public without disclosing the impending inoperability of the handsets to its customers, in violation of the MCPA, in order to illegally increase its profits. 97. Cricket's acts and omissions as aforesaid, including its failure to disclose and concealment of the material facts, and its affirmative misrepresentation to Named Plaintiff and the Class, tended to and did deceive Plaintiff and members of the Class and constitutes an unfair and deceptive trade practice, in violation of MCPA §§ 13-303(1) - (3) and 13-301(1), (2)(i) and (iv), and/or (3). 98. As a result of Cricket's unfair and deceptive trade practices, Named Plaintiff and the Class agreed to and did purchase their CDMA handsets, Plaintiff paid Cricket significantly more for their CDMA handsets than they were worth, and Named Plaintiff and the Class sustained the other damages and losses set forth above. COUNT VI FRAUD 99. Plaintiff incorporates herein by reference as though fully set forth the allegations in paragraphs 1 through 60 of this Complaint, as if each and every allegation is set forth fully herein. 19 JA 43 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 47 of 426 2 100. Cricket and its authorized agents falsely represented to Plaintiff and other members of the Class that the CDMA handsets would be supported by Cricket for the useful life of the product. But for this representation, which Cricket and its authorized agents knew, or should have known, was false, Plaintiff and the other members of the Class would not have bought the CDMA handsets from Cricket. Moreover, but for this false representation, Plaintiff and the other members of the Class would not have then made a separate purchase from Cricket for the CDMA wireless service plan. 101. Defendant failed to disclose material information that Cricket would not continue to support the CDMA handsets as a result of the AT&T acquisition and that the CDMA handsets were not compatible with AT&T's GSM cellular network. 102. Defendant made these false and misleading representations and omissions knowingly, recklessly, and/or without regard for their truth or falsity, and with the intent to induce Plaintiff and other members of the Class to rely upon them by purchasing a CDMA handset from Cricket. 103. Plaintiff and the other members of the Class justifiably relied upon the false representations and omissions made by Defendant by purchasing the CDMA handset from Cricket's authorized agent and then by purchasing a wireless service agreement from Cricket thereafter. 104. As a direct and proximate result of the reliance upon the false representations and omissions of Defendant, Plaintiff and the other members of the Class have suffered damages, including, but not limited to, the loss of the use of the CDMA handsets and the loss of their market value, well prior to the end of the useful life of these cell phones. 20 JA 44 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 48 of 426 2 105. Because of the willful and wanton conduct of Defendant, Plaintiff and the other members of the Class are entitled to punitive, as well as actual, damages. PRAYER FOR RELIEF WHEREFORE, Plaintiff, on behalf of himself and all similarly situated individuals, demands judgment against Defendant as follows: (1) Declaring this action to be a proper class action maintainable pursuant to Rule 23(a) and Rule 23(b)(3) of the Federal Rules of Civil Procedure and declaring Plaintiff and their counsel to be representatives of the Class; (2) Requiring Defendant to replace the CDMA handsets with comparable GSM handsets free of charge; (3) Awarding actual damages to Plaintiff and the Class; (4) Awarding punitive damages to Plaintiff and the Class under Counts II, IV and VI; (5) Awarding Plaintiff and the Class costs and disbursements and reasonable allowances for the fees of counsel and experts, and reimbursement of expenses; (6) Awarding pre-judgment and post-judgment interest on all sums awarded to Named Plaintiff and the Class; and (7) Awarding such other and further relief the Court deems just and equitable. 21 JA 45 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 49 of 426 2 Respectfully submitted, Z LAW, LLC Dated: March 31, 2015 ________/s/___28191__ _____________ Cory L. Zajdel (Fed. Bar No. 28191) 301 Main Street, Ste. 2-D Reisterstown, MD 21136 (443) 213-1977 clz@zlawmaryland.com Oren S. Giskan (pending pro hac vice) Catherine E. Anderson (pending pro hac vice) Giskan Solotaroff Anderson & Stewart, LLP 11 Broadway, Suite #2150 New York, NY 10004 (212) 847-8315 Attorneys for Plaintiff DEMAND FOR JURY TRIAL Plaintiff and the Class request a jury trial for any and all Counts for which a trial by jury is permitted by law. ________/s/___28191__ _____________ Cory L. Zajdel (Fed. Bar No. 28191) 22 JA 46 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 50 of 426 2 IN THE UNITED STATES DISTRICT FOR THE DISTRICT OF MARYLAND (Baltimore Division) TIM BOND 150 WESTMINSTER PIKE REISTERSTOWN, MD 21136 JURY TRIAL DEMANDED on his own behalf and on behalf of all others similarly situated, Plaintiffs, v. CRICKET COMMUNICATIONS, LLC Case No. 1:15-cv-923-WDQ 1209 ORANGE STREET WILMINGTON, DE 19801 SERVE ON: Archis A. Parasharami Mayer Brown LLP 1999 K Street, N.W. Washington, DC 20006 Defendant. FIRST AMENDED CLASS ACTION COMPLAINT Plaintiff Tim Bond ("Plaintiff" or "Bond") b r i n g s this class action complaint individually and in a representative capacity on behalf all others similarly situated (the "Class") against defendant Cricket Communications, LLC. I. Preliminary Statement 1. On July 12, 2013, AT&T announced its agreement to acquire Cricket Communications Inc. 2. After acquiring Cricket Communications Inc., AT & T formed Cricket Communications, LLC ("Cricket") to carry on the business of the former Cricket Communications, Inc. 1 JA 47 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 51 of 426 2 3. From July 12, 2013 to the present (the "Class Period"), Cricket, both directly and through its authorized agents, has offered for sale and sold to the consuming public CDMA handsets. 4. Prior to the Class Period, AT&T and Cricket decided that on or after the acquisition of Cricket, AT&T would discontinue all CDMA service and require all Cricket customers to use AT&T's GSM cellular network. 5. Prior to the Class Period, Cricket knew or should have known that AT&T intended to discontinue the use of CDMA handsets in favor of AT&T's GSM service. 6. During the Class Period, Cricket knew, or reasonably should have known, that the CDMA handsets sold would be inoperable as a result of the acquisition by AT&T. 7. During the Class Period, Cricket affirmatively represented that all CDMA handsets sold were compatible with Cricket's cellular phone service. 8. During the Class Period, Cricket failed to disclose that these CDMA handsets had an artificially limited useful life and that the phones would not be supported for the expected life of the phone. 9. Included in the CDMA handsets which rendered inoperable by the AT&T acquisition is the Plaintiff's Samsung Galaxy S4, which he purchased from Cricket in or around December 2013. 10. Plaintiff asserts claims individually on behalf of the Class. 2 JA 48 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 52 of 426 2 II. The Parties 11. Plaintiff is a citizen of M a r y l a n d c u r r e n t l y r e s i d i n g a t 1 5 0 Westminster Pike, Reisterstown, MD 21136 (Baltimore County, MD). He is a natural person over the age of 21 and otherwise sui juris. 12. Defendant Cricket Communications, LLC is a limited liability company formed in the State of Delaware and maintains its corporate headquarters in Wilmington, Delaware. On July 12, 2013, AT&T agreed to buy Leap Wireless International, Inc., for $1.2 billion. As part of the agreement, AT&T would acquire the Leap Wireless subsidiary, Cricket Communications Inc. ("Cricket"), which provided wireless products and services to approximately 4.6 million subscribers. On March 13, 2014, the Federal Communications Commission approved the merger between AT&T and Leap Wireless. Since that time, Cricket has functioned as a unit of AT&T as Cricket Communications, LLC. III. JURISDICTION AND VENUE 13. This Court has jurisdiction over this action pursuant to the Class Action Fairness Act of 2005 ("CAFA"), Pub. L. No. 109-2, 119 Stat. 4 (codified in various sections of 28 U.S.C.). 14. Plaintiff Tim Bond is a citizen of Maryland. Defendant is a citizen of Delaware and Texas but is registered to do business in Maryland and nationwide. The amount in controversy exceeds $5,000,000 and there are at least one hundred members of the putative class. 15. This Court has jurisdiction over Defendant because it either is a foreign corporation authorized to conduct business in Maryland, is doing business in Maryland and has 3 JA 49 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 53 of 426 2 registered with the Maryland Secretary of State, or do sufficient business in Maryland, have sufficient minimum contacts with Maryland, or otherwise intentionally avail themselves of the Maryland consumer market through the promotion, marketing and sale of wireless products and services in Maryland. This purposeful availment renders the exercise of jurisdiction by this Court over Defendant and its affiliated or related entities permissible under traditional notions of fair play and substantial justice. 16. In addition, this Court has subject-matter jurisdiction under CAFA because the amount in controversy exceeds $5 million and diversity exists between Plaintiff and the Defendants. 28 U.S.C. § 1332(d)(2). Further, in determining whether the $5 million amount in controversy requirement of 28 U.S.C. § 1332(d) (2) is met, the claims of the putative class members are aggregated. 28 U.S.C. § 1332(d)(6). 17. Venue is proper in this forum pursuant to 28 U.S.C. § 1391 because Defendant transacts business and may be found in this District and a substantial portion of the practices complained of herein occurred in the District of Maryland. 18. All conditions precedent to this action have occurred, been performed, or have been waived. IV. Factual Allegations 19. Two of the predominant cellular voice technologies in the United States are Global Systems for Mobile communications ("GSM") and Code Division Multiple Access ("CDMA"). 20. GSM was developed by the European Telecommunications Standards Institute to replace the analog networks. In the United States, GSM is the technology behind AT&T and T- 4 JA 50 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 54 of 426 2 Mobile USA. Current GSM devices use a Security Identity Module, or SIM, card. This card contains the International Mobile Subscriber Identity (IMSA) Number, carrier information, and consumer contact information. Assuming the phone is not locked by the carrier, the SIM card slot allows the consumer to migrate the phone between carriers. 21. CDMA was developed by Qualcomm and has been the technology preferred by Sprint and Verizon. Rather than having a SIM card for data storage, data is stored on the CDMA phone itself. This has made moving a CDMA phone between carriers difficult, if not impossible. 22. At all relevant times, Cricket has marketed, offered for sale, and sold handheld devices compatible with the CDMA network. 23. In July 2013, AT&T reached an agreement to purchase the assets and assume the liabilities of Leap Wireless, the parent of Cricket, for $1.2 Billion. AT & T retained Cricket's directors and management in addition to its 3,400 employees. The July 12, 2013 press release of AT&T and Leap Wireless provided, in relevant part, the following information about the acquisition: AT&T will acquire all of Leap's stock and wireless properties, including licenses, network assets, retail stores and approximately 5 million subscribers. . . . Leap's network covers approximately 96 million people in 35 U.S. states. Leap currently operates -- under the Cricket brand -- a 3G CDMA network, as well as a 4G LTE network covering 21 million people in these areas, and has 3,400 employees. AT&T will retain the Cricket brand name, provide Cricket customers with access to AT&T's award-winning 4G LTE mobile network, utilize Cricket's distribution channels, and expand Cricket's presence to additional U.S. cities. The result will be increased competition, better device choices, improved customer care and a significantly enhanced mobile Internet experience for consumers seeking low-cost prepaid wireless plans. . . . 5 JA 51 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 55 of 426 2 The acquisition includes spectrum in the PCS and AWS bands covering 137 million people and is largely complementary to AT&T's existing spectrum licenses. Immediately after approval of the transaction, AT&T plans to put Leap's unutilized spectrum – which covers 41 million people -- to use in furthering its 4G LTE deployment and providing additional capacity and enhanced network performance for customers' growing mobile Internet usage. Owners of approximately 29.8% of Leap's outstanding shares have entered into an agreement to vote in favor of the transaction. The transaction is subject to review by the Federal Communications Commission and the Department of Justice and to other customary closing conditions. AT&T expects the transaction to close in six to nine months. 24. Thus, according to the July 12, 2013 press release, AT&T intended to move customers from Cricket's CDMA network to AT&T's GSM network and Cricket/AT&T further intended not to support CDMA handsets that could not be migrated to the GSM network. 25. In fact, many CDMA handsets cannot be moved to a GSM network. 26. Cricket knew and failed to disclose this material information to customers. 27. Cricket, moreover, continued to offer for sale and sell to the consuming public CDMA handsets that are not compatible with and cannot be migrated to the GSM network. 28. Cricket thus knew, and failed to disclose, that many of the CDMA handsets it offered for sale and sold to the consuming public would be rendered inoperable as a result of the AT&T acquisition. 29. For instance, Plaintiff purchased a Samsung Galaxy 4S from an authorized agent of Cricket in or around December 2013, more than five months after AT&T acquired Cricket. 30. Thereafter, Plaintiff entered into a wireless service agreement with Cricket to use the Samsung Galaxy 4S on Cricket's CDMA compatible cellular network. 6 JA 52 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 56 of 426 2 31. Plaintiff received two different receipts, one for the purchase of the phone and one for the purchase of the wireless service agreement. 32. In January 2015, AT&T publicly announced that the legacy CDMA markets covered by its Cricket unit will be turned off this year, in a three-phase switch-off plan. See https://www.telegeography.com/products/commsupdate/articles/2015/01/09/att-confirms- september-shutdown-of-cricket-cdma-network/. 33. As per the AT&T public announcement in January 2015, the CDMA wireless service will be terminated on a rolling basis by bill cycle. Customers in the initial 'sunset markets' will have their service terminated by bill cycle beginning March 15, 2015 with the CDMA network in those markets being turned off completely on 15 April 2015. Initial (March/April) sunset markets include: Washington, DC; Little Rock, Fayetteville and Fort Smith (Arkansas); Wilmington (Delaware); Chicago and Northern Illinois (Illinois); South Bend (Indiana); Baltimore (Maryland); Atlantic City (New Jersey); Buffalo, Rochester and Syracuse (New York) and Philadelphia (Pennsylvania). 34. The second group of markets slated for shutdown in May/June 2015 consists of: Wichita (Kansas); Albuquerque and Las Cruces (New Mexico); Las Vegas (Nevada) and Oklahoma City and Tulsa (Oklahoma). 35. All remaining legacy CDMA markets will be turned off by mid-September 2015. 36. Cricket announced that its customers who purchased an iPhone with original CDMA (including the iPhone 4s, iPhone 5, iPhone 5s or iPhone 5c) will receive a free, replacement SIM card that enables the iPhone to operate on Cricket's new 4G and 4G LTE nationwide GSM network. However, persons who purchased any other type of cell phone from Cricket would be required to purchase a new handset. 7 JA 53 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 57 of 426 2 37. As Cricket explained on its website: "The new Cricket's nationwide 4G network uses GSM (Global System for Mobile Communications) technology that is the global standard for mobile service while the original Cricket uses CDMA network technology. That means that with the exception of original Cricket iPhone 4S, iPhone 5, iPhone 5S and iPhone 5C, your current CDMA phone will not work on the new Cricket network. 38. In or around February 2015, Plaintiff went into a Cricket store in Maryland to pay his bill for February service. When Plaintiff was in the Cricket store, Cricket turned his Samsung Galaxy S4 phone off. Plaintiff attempted to have his phone turned back on through AT&T and other service providers, including Sprint, Virgin Mobile and T-Mobile. But none was able to revive Plaintiff's phone. 39. Plaintiff's phone has no value or only a de minimis value due to its inoperability on any cellular network. 40. Plaintiff is not alone. Indeed, several consumers have made anonymous complaints on the web page forum: https://forums.att.com/t5/General-Account-Questions/AT- amp-T-Merger-with-Cricket-Sucks/td-p/4096500, concerning Cricket's failure to disclose that the CDMA handheld devices which it offered for sale and sold to the consuming public as of July 12, 2013, would be inoperable as a result of the AT&T acquisition, including the following: Blownaway Sep 26, 2014 8:26:33 AM This merger of AT&T and Cricket is horrible. First I just bought an expensive Samsung Galaxy S4 not even a year ago and I am being told that I have to buy a brand new phone when the merger is fully complete (March 2015). This is ridiculous - who is sitting around with an extra $400 a year to purchase a new phone. As large a company as AT&T they do not have the capability to switch my phone over. 8 JA 54 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 58 of 426 2 SteveJodylynn Oct 29, 2014 12:28:27 PM I agree. It is just a few months from when my expensive CDMA Cricket smartphone (less than a year old) becomes inoperable and I've heard nothing from AT&T or Cricket about the transition plan, other than I will be forced to shell out hundreds for a new phone that is compatible with AT&T's network. Chiefsfan Nov 29, 2014 5:43:14 PM. . . AT&T is screwing over thousands of Cricket customers and they DON'T CARE ONE BIT! Cricket shouldn't have been selling phones over the past 7-8 months, since the merger with AT&T, knowing that they won't work after March, but they continue to do just that. The point is that AT&T is gaining millions of unearned $ by forcing customers to buy new ridiculously expensive phones (oh, but they'll give you a free deal on their piece-o-crap phones (which are all of them other than the Galaxy & iphones) all under the guise of "providing better service". What a crock!! WE ALL NEED TO BOYCOTT AT&T ONCE THEY RENDER OUR PHONES USELESS!!! hatenewcricket Feb 11, 2015 9:16:13 PM I know what you mean I got my S4 just befor[e] they annou[n]ced the switch, I believe they knew what was going to happen and sold me an already worthless phone this whole thing has been a rip off and is unfair to cricked customers who are getting screwed V. CLASS ALLEGATIONS 41. Plaintiff brings this action against Defendant pursuant to Rule 23 of the Federal Rules of Civil Procedure on behalf of himself and all other persons similarly situated. Plaintiff seeks to represent the following classes: All persons nationwide during the period July 12, 2013 to the present, who purchased a CDMA handset from Cricket or through its authorized agents. Excluded from this class are Defendants, their affiliates, subsidiaries, agents, board members, directors, officers, and/or employees. 9 JA 55 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 59 of 426 2 42. Plaintiff reserves the right to modify or amend the definition of the proposed Class before the Court determines whether certification is appropriate. 43. Defendant subjected Plaintiff and the respective Class members to the same unfair, unlawful, and deceptive practices and harmed them in the same manner. 44. The Class, as defined above, is identifiable. 45. The Named Plaintiff is a member of the Class. 46. The proposed class is so numerous that joinder of all members would be impracticable. Cricket sold thousands of CDMA handsets during the Class Period in the State of Maryland and nationwide. 47. The individual class members are ascertainable, as the names and addresses of all class members can be identified in the business records maintained by Defendant. 48. While the precise number of class members can only be obtained through discovery, the numbers are clearly more than can be consolidated in one complaint such that it would be impractical for each member to bring suit individually. 49. There are questions of law and fact that are common to Plaintiff's and class members' claims. These common questions predominate over any questions that go particularly to any individual member of the Class. 50. Among such common questions of law and fact are the following: a. Whether Cricket offered for sale and sold to the consuming public CDMA handsets during the Class Period; b. Whether Cricket knew and failed to disclose that the CDMA handsets would be inoperable upon completion of the merger with AT&T; c. Whether Cricket breached the implied covenant of good faith and fair dealing by offering for sale and selling soon to be inoperable CDMA handsets; 10 JA 56 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 60 of 426 2 d. Whether Cricket made material misstatements of fact and/or knew and failed to disclose material information concerning the CDMA handsets which it sold to Plaintiff and other members of the class, including facts that the CDMA handsets would be inoperable as a result of the AT&T acquisition, that Cricket planned to convert to the GSM network and that as a result, the CDMA handsets had an artificially limited useful life; e. Whether Cricket breached the implied warranty of merchantability by selling Plaintiff and the other members of the Class CDMA handsets which it knew had an artificially limited useful life; and f. Whether Plaintiff and the Class Members are entitled to damages and/or injunctive relief as a result of Defendant's conduct. 51. Plaintiff's claims are typical of the claims of t he c la s s because of the similarity, uniformity, and common purpose of Defendant's unlawful conduct. Each class member has sustained, and will continue to sustain, damages in the same manner as Plaintiff as a result of Defendant's wrongful conduct. 52. Plaintiff is an adequate representative of the class he seeks to represent and will fairly and adequately protect the interests of that class. 53. Plaintiff is committed to the vigorous prosecution of this action and has retained competent counsel, experienced in litigation of this nature, to represent them. 54. There is no hostility between Plaintiff and the unnamed class members. 55. Plaintiff anticipates no difficulty in the management of this litigation as a class action. 56. To prosecute this case, Plaintiff has chosen the undersigned law firms, which are experienced in class action litigation and have the financial and legal resources to meet the substantial costs and legal issues associated with this type of litigation. 11 JA 57 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 61 of 426 2 57. The questions of law or fact common to Plaintiff's and each Class Member's claims predominate over any questions of law or fact affecting only individual members of the class. 58. All claims by Plaintiff and the unnamed class members are based on Cricket's sale of CDMA handsets to the consuming public when it knew, or reasonably should have known and failed to disclose that these handsets would be inoperable upon completion of the AT&T merger. 59. Common issues predominate where, as here, liability can be determined on a class-wide basis, even when there will be some individualized damages determinations. 60. As a result, when determining whether common questions predominate, courts focus on the liability issue, and if the liability issue is common to the class as is the case at bar, common questions will be held to predominate over individual questions. 61. A class action is superior to individual actions in part because of the non- exhaustive factors listed below: (a) Joinder of all class members would create extreme hardship and inconvenience for the affected customers as they reside all across the states; (b) Individual claims by class members are impractical because the costs to pursue individual claims exceed the value of what any one class member has at stake. As a result, individual class members have no interest in prosecuting and controlling separate actions; (c) There are no known individual class members who are interested in individually controlling the prosecution of separate actions; (d) The interests of justice will be well served by resolving the common disputes of potential class members in one forum; (e) Individual suits would not be cost effective or economically maintainable as individual actions; and 12 JA 58 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 62 of 426 2 (f) The action is manageable as a class action. VI. CAUSES OF ACTION COUNT I BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY 62. Plaintiff incorporates by reference paragraphs 1 through 61 above, as if each and every allegation is set forth fully herein. 63. At all relevant times, Cricket was a merchant with respect to the CDMA handsets. 64. Plaintiff purchased his now inoperable CDMA handset from an authorized agent of Cricket. At the time of purchase, Cricket and it authorized agents were in the business of selling CDMA handsets and/or by course of business held itself out as having special knowledge or skill regarding those handsets. 65. A warranty that the CDMA handsets were in merchantable condition was implied by law in the sale of these handsets by Cricket and its agents. 66. The CDMA handsets which Cricket and its authorized agents sold to Plaintiff and other members of the class were not in merchantable condition and are not fit for the ordinary purpose for which handsets are used and/or were not of the same quality of those generally acceptable in the trade. 67. In fact, the CDMA handsets sold by Cricket and its authorized agents, including the Samsung Galaxy 4S sold to Plaintiff, were unmerchantable. 68. Specifically, Cricket knew and failed to disclose that these CDMA handsets would be inoperable as a result of the AT&T acquisition and Cricket's plan to convert to the GSM network. As a result, the CDMA handsets had an artificially limited useful life. 13 JA 59 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 63 of 426 2 69. Plaintiff and other members of the Class have had sufficient direct dealings with either Cricket or its authorized agents to establish vertical privity of contract between themselves and Defendant. Nevertheless, privity is not required in this case because Plaintiff and the other members of the Class are intended third- party beneficiaries of contract between Cricket and its authorized agents. Specifically, Plaintiff and the other members of the Class are the intended beneficiaries of Cricket's implied warranties. Cricket's authorized agents were not intended to be the ultimate consumers of the CDMA handsets. COUNT II FRAUDULENT CONCEALMENT 70. Plaintiff incorporates by reference paragraphs 1 through 61 above, as if each and every allegation is set forth fully herein. 71. As set forth above, Cricket knew and failed to disclose and/ or suppressed and/or concealed material facts concerning the CDMA handsets, including the Samsung Galaxy 4S, which it sold to Plaintiff and other members of the class. 72. These concealed facts were material because they directly impacted the reliability and use of the handsets. 73. Cricket owed Plaintiff and the other members of the Class a duty to disclose that the CDMA handsets would be rendered inoperable by the AT&T acquisition and Cricket's plans to convert to the GSM network because it possessed exclusive and superior knowledge and access to these facts. 14 JA 60 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 64 of 426 2 74. Cricket knew and failed to disclose that the CDMA handsets had an artificially limited useful life and that the CDMA handsets were not compatible with AT&T's GSM cellular network. 75. Cricket actively concealed and/or suppressed these material facts, in whole or in part, with the intent to induce Plaintiff and the other members of the Class to purchase the CDMA handsets from Cricket and its authorized agents and to pay more than they otherwise would have paid had these material facts that the CDMA handsets would be inoperable as a result of the AT&T acquisition and Cricket's plans to convert to the GSM network been disclosed. 76. Cricket's conduct was oppressive, fraudulent, malicious and in reckless disregard of the rights of Plaintiff and the Class. 77. Plaintiff and the other members of the Class were not aware of the omitted material facts and would not have acted as they did if they had known of the concealed and/or suppressed facts. 78. As a result of Cricket's concealment and/or suppression of material facts concerning the CDMA handsets, Plaintiff and the Class have sustained damages. COUNT III MONEY HAD AND RECEIVED/UNJUST ENRICHMENT 79. Plaintiff incorporates herein by reference as though fully set forth the allegations in paragraphs 1 through 61 of this Complaint, as if each and every allegation is set forth fully herein. 15 JA 61 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 65 of 426 2 80. As set forth above, Cricket charged and collected payments for CDMA handsets that would become inoperable in amounts that exceeded the value of these CDMA handsets, which conferred a substantial benefit on Cricket. 81. Cricket was aware of, and had knowledge of, this substantial benefit. 82. By doing so, Cricket has come into the possession of money in the form of payments that it had, and has no right to at law or in equity. 83. It would be inequitable for Cricket to retain any such monies that it had no legal right to charge. 84. As a consequence, Named Plaintiff and the members of the Class have been damaged. COUNT IV NEGLIGENT MISREPRESENTATION 85. Plaintiff incorporates herein by reference as though fully set forth the allegations in paragraphs 1 through 61 of this Complaint, as if each and every allegation is set forth fully herein. 86. Cricket and its agents or employees negligently made the false and misleading representations and omissions alleged herein, including but not limited to the representations that its CDMA handsets would pass without objection in the trade under the contract description and that the CDMA handsets sold were compatible with and would continue to be compatible with Cricket's CDMA's cellular service for the useful life of the handset. 16 JA 62 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 66 of 426 2 87. Cricket's agents or employees negligently failed to disclose the material fact that its handsets would become inoperable during its useful lifespan. 88. Cricket's agents or employees negligently failed to disclose that the prices of the CDMA handsets did not accurately represent its value, intending that Plaintiff and the Class would reasonably rely upon the false and misleading representations and omissions to their detriment, which they did. 89. As a direct and proximate result of Cricket's negligent statements, representations, and omissions, Plaintiff and the Class were induced, ab initio, to purchase a CDMA handset from Cricket for a price significantly higher than they were worth. 90. Cricket, their agents or employees, owed a duty of care to Plaintiff and the Class. 91. Cricket recklessly and negligently breached the duty of care they owed to Plaintiff and the Class by making negligent representations to Plaintiff and the Class and negligently concealing material facts from them, as set forth herein. 92. Cricket knew, or had reason to know, that Plaintiffs and the Class would reasonably rely on the representations and concealments which if erroneous, would cause loss, injury or damage. 93. Plaintiff and the Class justifiably and reasonably took actions to their detriment as alleged herein, by paying Cricket significantly more for their CDMA handsets than they were worth, in reliance on the negligent representations and concealments. 17 JA 63 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 67 of 426 2 COUNT V MARYLAND CONSUMER PROTECTION ACT 94. Plaintiff incorporates herein by reference as though fully set forth the allegations in paragraphs 1 through 61 of this Complaint, as if each and every allegation is set forth fully herein. 95. Cricket is a merchant within the meaning of the Maryland Consumer Protection Act ("MCPA"), MD. CODE ANN., COMM. LAW § 13-101(g), and is subject to all of the MCPA's provisions prohibiting unfair or deceptive trade practices including those in MD. CODE ANN., COMM. LAW §§ 13-303 and 13-301. 96. Cricket's failure to disclose and its concealment from Plaintiff and members of the Class of the material facts as set forth herein constitutes unfair and deceptive trade practices in violation of the MCPA, §§ 13-303 and 13-301(1), (2)(i) and (iv) and (3). If Plaintiff and members of the Class had known the material facts related to the CDMA handsets, they would not have purchased the handsets or would have required a significantly lower price. 97. On information and belief, Plaintiff avers that Cricket systematically sold CDMA handsets during the Class Period which were not compatible with AT&T's GSM cellular network and retailed these CDMA handsets to the public without disclosing the impending inoperability of the handsets to its customers, in violation of the MCPA, in order to illegally increase its profits. 98. Cricket's acts and omissions as aforesaid, including its failure to disclose and concealment of the material facts, and its affirmative misrepresentation to Named Plaintiff and the Class, tended to and did deceive Plaintiff and members of the Class and constitutes an unfair 18 JA 64 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 68 of 426 2 and deceptive trade practice, in violation of MCPA §§ 13-303(1) - (3) and 13-301(1), (2)(i) and (iv), and/or (3). 99. As a result of Cricket's unfair and deceptive trade practices, Named Plaintiff and the Class agreed to and did purchase their CDMA handsets, Plaintiff paid Cricket significantly more for their CDMA handsets than they were worth, and Named Plaintiff and the Class sustained the other damages and losses set forth above. COUNT VI FRAUD 100. Plaintiff incorporates herein by reference as though fully set forth the allegations in paragraphs 1 through 61 of this Complaint, as if each and every allegation is set forth fully herein. 101. Cricket and its authorized agents falsely represented to Plaintiff and other members of the Class that the CDMA handsets would be supported by Cricket for the useful life of the product. But for this representation, which Cricket and its authorized agents knew, or should have known, was false, Plaintiff and the other members of the Class would not have bought the CDMA handsets from Cricket. Moreover, but for this false representation, Plaintiff and the other members of the Class would not have then made a separate purchase from Cricket for the CDMA wireless service plan. 102. Defendant failed to disclose material information that Cricket would not continue to support the CDMA handsets as a result of the AT&T acquisition and that the CDMA handsets were not compatible with AT&T's GSM cellular network. 19 JA 65 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 69 of 426 2 103. Defendant made these false and misleading representations and omissions knowingly, recklessly, and/or without regard for their truth or falsity, and with the intent to induce Plaintiff and other members of the Class to rely upon them by purchasing a CDMA handset from Cricket. 104. Plaintiff and the other members of the Class justifiably relied upon the false representations and omissions made by Defendant by purchasing the CDMA handset from Cricket's authorized agent and then by purchasing a wireless service agreement from Cricket thereafter. 105. As a direct and proximate result of the reliance upon the false representations and omissions of Defendant, Plaintiff and the other members of the Class have suffered damages, including, but not limited to, the loss of the use of the CDMA handsets and the loss of their market value, well prior to the end of the useful life of these cell phones. 106. Because of the willful and wanton conduct of Defendant, Plaintiff and the other members of the Class are entitled to punitive, as well as actual, damages. PRAYER FOR RELIEF WHEREFORE, Plaintiff, on behalf of himself and all similarly situated individuals, demands judgment against Defendant as follows: (1) Declaring this action to be a proper class action maintainable pursuant to Rule 23(a) and Rule 23(b)(3) of the Federal Rules of Civil Procedure and declaring Plaintiff and their counsel to be representatives of the Class; 20 JA 66 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 70 of 426 2 (2) Requiring Defendant to replace the CDMA handsets with comparable GSM handsets free of charge; (3) Awarding actual damages to Plaintiff and the Class; (4) Awarding punitive damages to Plaintiff and the Class under Counts II, IV and VI; (5) Awarding Plaintiff and the Class costs and disbursements and reasonable allowances for the fees of counsel and experts, and reimbursement of expenses; (6) Awarding pre-judgment and post-judgment interest on all sums awarded to Named Plaintiff and the Class; and (7) Awarding such other and further relief the Court deems just and equitable. Respectfully submitted, Z LAW, LLC Dated: May 8, 2015 ________/s/___28191__ _____________ Cory L. Zajdel (Fed. Bar No. 28191) 301 Main Street, Ste. 2-D Reisterstown, MD 21136 (443) 213-1977 clz@zlawmaryland.com Oren S. Giskan (pending pro hac vice) Catherine E. Anderson (pending pro hac vice) Giskan Solotaroff Anderson & Stewart, LLP 11 Broadway, Suite #2150 New York, NY 10004 (212) 847-8315 Attorneys for Plaintiff 21 JA 67 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 71 of 426 2 DEMAND FOR JURY TRIAL Plaintiff and the Class request a jury trial for any and all Counts for which a trial by jury is permitted by law. ________/s/___28191__ _____________ Cory L. Zajdel (Fed. Bar No. 28191) 22 JA 68 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 72 of 426 UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND (Baltimore Division) TIM BOND, on his own behalf and on behalf of all others similarly situated, Plaintiffs, Civil Action No. 1:15-cv-923-WDQ v. CRICKET COMMUNICATIONS, LLC, Defendant. DEFENDANT CRICKET COMMUNICATIONS, LLC'S MOTION TO COMPEL ARBITRATION Archis A. Parasharami (application to D. Md. Bar pending) Ann Marie Duffy (D. Md. Bar No. 16634) E. Brantley Webb MAYER BROWN LLP 1999 K Street, NW Washington, DC 20006 Tel: (202) 263-3000 Fax: (202) 263-3300 aparasharami@mayerbrown.com aduffy@mayerbrown.com bwebb@mayerbrown.com Counsel for Defendant Cricket Communications, LLC JA 69 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 73 of 426 Pursuant to the Federal Arbitration Act, 9 U.S.C. §§ 1-16, Defendant Cricket Communications, LLC ("Cricket") respectfully moves this Court to enter an order (1) compelling Plaintiff Tim Bond to arbitrate his claims against Cricket on an individual basis and (2) staying further proceedings regarding those claims pending the outcome of arbitration. In support of this Motion, Cricket incorporates by reference the attached Memorandum as well as the Declarations of Julie Basham and Brantley Webb along with their supporting exhibits, any reply memorandum that Cricket may file, and any oral argument the Court may allow at a hearing on this Motion. Dated: July 13, 2015 /s/ Ann Marie Duffy Archis A. Parasharami (application to D. Md. Bar pending) Ann Marie Duffy (D. Md. Bar No. 16634) E. Brantley Webb MAYER BROWN LLP 1999 K Street, NW Washington, DC 20006 Tel: (202) 263-3000 Fax: (202) 263-3300 aparasharami@mayerbrown.com aduffy@mayerbrown.com bwebb@mayerbrown.com Counsel for Defendant Cricket Communications, LLC 1 JA 70 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 74 of 426 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing was served electronically this 13th day of July, 2015, upon: Cory L. Zajdel Z LAW, LLC 301 Main Street, Ste. 2-D Reisterstown, MD 21136 (443) 213-1977 clz@zlawmaryland.com Oren S. Giskan Catherine E. Anderson GISKAN SOLOTAROFF ANDERSON & STEWART, LLP 11 Broadway, Suite #2150 New York, NY 10004 (212) 847-8315 Attorneys for Plaintiff /s/ Ann Marie Duffy Ann Marie Duffy (D. Md. Bar No. 16634) 2 JA 71 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 75 of 426 0 JA 72 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 76 of 426 0 JA 73 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 77 of 426 0 JA 74 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 78 of 426 0 JA 75 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 79 of 426 0 JA 76 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 80 of 426 0 JA 77 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 81 of 426 0 JA 78 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 82 of 426 0 JA 79 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 83 of 426 0 JA 80 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 84 of 426 0 JA 81 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 85 of 426 JA 82 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 86 of 426 IN THE UNITED STATES DISTRICT FOR THE DISTRICT OF MARYLAND (Baltimore Division) TIM BOND JURY TRIAL DEMANDED on his own behalf and on behalf of all others similarly situated, Plaintiffs, v. CRICKET COMMUNICATIONS, LLC Case No. 1:15-cv-923-WDQ Defendant. MOTION REQUESTING LEAVE TO FILE SECOND AMENDED CLASS ACTION COMPLAINT Named Plaintiff Tim Bond ("Bond"), by and through his attorney hereby moves this Court to lift the stay entered in this case and to allow Bond leave to amend his complaint. Bond added Count VII for Violations of the Magnusson Moss Warranty Act, 15 U.S.C. § 2301 et seq. in the Second Amended Class Action Complaint. Pursuant of FED. R. CIV. P. 15(a)(2) and this Court's Local Rules, counsel for Bond attempted to contact counsel for Defendant Cricket on December 7, 2016 and did contact counsel for Defendant Cricket on December 9, 2016 requesting consent for leave to amend the complaint. Declaration of Cory L. Zajdel, Esq. at ¶¶ 2-3 (Exhibit A). Not receiving any response from the request, counsel for Bond contacted counsel for Defendant Cricket again on January 12, 2017. Id. at ¶ 3 (Exhibit A). On January 18, 2017, counsel for Cricket notified that it would not consent to leave to file an amended complaint. Id. at ¶ 4 (Exhibit A). In response to Named Plaintiff's First Amended Class Action Complaint, Defendant JA 83 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 87 of 426 Cricket Communications, LLC ("Cricket") filed a Motion to Compel Arbitration. The Court granted the Motion to Compel Arbitration and entered a stay to this litigation "pending the outcome of arbitration[.]" ECF #19. The Order compelling arbitration and entering a stay of this litigation related to Counts I through VI of the First Amended Class Action Complaint.1 Count VII, added in the Second Amended Class Action Complaint was not part of the First Amended Class Action Complaint and the Court has not considered whether the claims alleged under this Count are controlled by the purported arbitration clause in the contract between Bond and Cricket. The Federal Rules of Civil Procedure direct the courts to liberally allow leave to amend a complaint prior to trial "when justice so requires." FED. R. CIV. P. 15(a)(2). In turn, the courts will allow amendment so long as the amendment avoids "prejudice, bad faith, [and] futility." Katyle v. Penn Nat. Gaming, Inc., 63 F.3d 462, 471 (4th Cir. 2011). Since Cricket did not provide consent to the filing of the Second Amended Class Action Complaint, Bond assumes that Cricket will argue that one of these factors applies. In short, Bond states that as of the date of this filing, Defendant Cricket has not filed an answer or a motion to dismiss and no discovery has been undertaken in this litigation. Moreover, neither party has initiated arbitration in this matter and to the best of Bond's knowledge no additional expenses have accrued to either party since the Court entered the Order compelling arbitration of the claims included in the First Amended Complaint. Declaration of Cory L. Zajdel, Esq. at ¶¶ 5-6. Accordingly, there would be no prejudice caused by the filing of the Second Amended Class Action Complaint. Bond will address these arguments in Reply after they are presented by Cricket. 1 Bond is not seeking review or attempting to revive Counts I through VI in his Second Amended Complaint. They remain in the Second Amended Class Action Complaint for the purposes of appellate review when that route becomes available to Bond. JA 84 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 88 of 426 To the contrary, Bond does understand that Cricket will take the position that the Court has ruled that the contract between Bond and Cricket had an arbitration agreement in writing under the Federal Arbitration Act, 9 U.S.C. § 1 et seq. and therefore the parties must arbitrate all claims arising under the contract. This argument does not apply to the added Magnusson Moss Warranty Act Claim because the statute itself prohibits a court from compelling arbitration of claims brought under the statute and violates Magnusson Moss Warranty Act Claim's single document rule. 15 U.S.C. § 2302(a), § 2310(d)(1) and § 2310(a)(3); 16 C.F.R. § 703; Fed. Trade Comm'n, Final Action: Concerning Review of Interpretations of Magnuson-Moss Warranty Act; Rule Governing Disclosure of Written Consumer Product Warranty Terms and Conditions; Rule Governing Pre-Sale Availability of Written Warranty Terms; Rule Governing Informal Dispute Settlement Procedures; and Guides for the Advertising of Warranties and Guarantees (May 22, 2015), available at www.ftc.gov/policy/federal-register-notices/final-action-magnuson-moss- warranty-act-interpretations-rules; Koons Ford of Baltimore, Inc. v. Lobach, 398 Md. 38, 39, 919 A.2d 722, 723 (Md. 2007). For these reasons, Bond is not required to submit his Magnuson- Moss Warranty Act claim to arbitration. As required by the Local Rules, both a clean version and a redlined version of the Second Amended Class Action Complaint are attached hereto. For the reasons set forth herein, Plaintiff Bond respectfully requests that his Motion Requesting Leave to File Second Amended Class Action Complaint be GRANTED and that it be accepted for filing. JA 85 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 89 of 426 Respectfully submitted, Z LAW, LLC Dated: February 10, 2017 ________/s/___28191__ _____________ Cory L. Zajdel (Fed. Bar No. 28191) 2345 York Road, Ste. B-13 Timonium, MD 21093 (443) 213-1977 clz@zlawmaryland.com Oren S. Giskan Catherine E. Anderson Giskan Solotaroff Anderson & Stewart, LLP 11 Broadway, Suite #2150 New York, NY 10004 (212) 847-8315 Attorneys for Plaintiff JA 86 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 90 of 426 IN THE UNITED STATES DISTRICT FOR THE DISTRICT OF MARYLAND (Baltimore Division) TIM BOND on his own behalf and on behalf of all others similarly situated, Plaintiffs, v. CRICKET COMMUNICATIONS, LLC Case No. 1:15-cv-923-WDQ Defendant. DECLARATION OF CORY L. ZAJDEL CORY L. ZAJDEL, being duly sworn according to law, deposes and says: 1. I am the managing member of Z Law, LLC and counsel for Plaintiff Tim Bond in the above captioned matter. I submit this Declaration for the limited purpose of putting before the Court certain documents related to the Motion for Leave to File Second Amended Class Action Complaint. 2. On December 7, 2016, I placed a call and left a message for counsel for Defendant Cricket Communications, LLC attempting to discuss consent for leave to file the Second Amended Class Action Complaint. 3. Attached as Exhibit A are true and correct copies of electronic mail sent to counsel for Defendant Cricket Communications, LLC on December 9, 2017 and January 12, 2017 requesting consent for leave to file the Second Amended Class Action Complaint. JA 87 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 91 of 426 4. Also attached as Exhibit A is a true and correct copy of electronic mail I received from counsel for Defendant Cricket Communications, LLC on January 18, 2017 denying the request to consent for leave to file the Second Amended Class Action Complaint. 5. Neither Plaintiff or Defendant has initiated an arbitration related to this litigation. 6. The only communication between the parties after the order compelling arbitration was entered and before Plaintiff's request to consent to the filing of an amended complaint was a brief telephone call lasting only a couple of minutes. I DECLARE UNDER THE PENALTY OF PERJURY THAT THE CONTENTS OF THE FOREGOING ARE TRUE TO THE BEST OF MY KNOWLEDGE, INFORMATION AND BELIEF. Dated: February 10, 2017 By:________/s/_28191_______________ Cory L. Zajdel, Esq. 2345 York Road, Suite #B-13 Timonium, Maryland 21093 (443) 213-1977 clz@zlawmaryland.com Attorney for Plaintiff Tim Bond JA 88 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 92 of 426 JA 89 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 93 of 426 RE: Bond v. AT&T Parasharami, Archis A. <AParasharami@mayerbrown.com> Wed 1/18/2017 1:36 PM To:Cory Zajdel <clz@zlawmaryland.com>; Cory, Thanks for your patience and I hope you are having a happy New Year! I lost track of this over the holidays. I have checked with my client and as you suspected, my client cannot consent to your motion to lift the stay. Best, Archis From: Cory Zajdel [mailto:clz@zlawmaryland.com] Sent: Thursday, January 12, 2017 3:51 PM To: Parasharami, Archis A. Subject: Re: Bond v. AT&T Archis: It has been more than a month since I emailed you the proposed amended complaint and request for consent to lift the stay in the action in order to file the amended complaint. I have not heard from you since. Please let me know by next Friday Cricket's position. CLZ From: Cory Zajdel Sent: Friday, December 9, 2016 4:22:00 PM To: Parasharami, Archis A. Subject: Re: Bond v. AT&T Archis: Pursuant to our call earlier this week, please find attached an amended complaint that I propose to file in this matter adding one court to the complaint. In order to achieve this, I will file a motion to lift the stay in this action and for leave to file amended complaint as attached. The purpose of this email is to request consent from Cricket Wireless/AT&T to the relief sought. Please let me know if your client consents to the relief requested. If you would like to discuss this issue further, please feel free to contact me at your convenience. CLZ __________________________________________________________________________ This email and any files transmitted with it are intended solely for the use of the individual or entity to whom they are addressed. If you have received this email in error please notify the system manager. If you are not the named addressee you should not disseminate, distribute or copy this e-mail. JA 90 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 94 of 426 4 IN THE UNITED STATES DISTRICT FOR THE DISTRICT OF MARYLAND (Baltimore Division) TIM BOND JURY TRIAL DEMANDED on his own behalf and on behalf of all others similarly situated, Plaintiffs, v. CRICKET COMMUNICATIONS, LLC Case No. 1:15-cv-923-WDQ Defendant. SECOND AMENDED CLASS ACTION COMPLAINT Plaintiff Tim Bond ("Plaintiff" or "Bond") b r i n g s this class action complaint individually and in a representative capacity on behalf all others similarly situated (the "Class") against defendant Cricket Communications, LLC. I. Preliminary Statement 1. On July 12, 2013, AT&T announced its agreement to acquire Cricket Communications Inc. 2. After acquiring Cricket Communications Inc., AT & T formed Cricket Communications, LLC ("Cricket") to carry on the business of the former Cricket Communications, Inc. 3. From July 12, 2013 to the present (the "Class Period"), Cricket, both directly and through its authorized agents, has offered for sale and sold to the consuming public CDMA handsets. JA 91 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 95 of 426 4 4. Prior to the Class Period, AT&T and Cricket decided that on or after the acquisition of Cricket, AT&T would discontinue all CDMA service and require all Cricket customers to use AT&T's GSM cellular network. 5. Prior to the Class Period, Cricket knew or should have known that AT&T intended to discontinue the use of CDMA handsets in favor of AT&T's GSM service. 6. During the Class Period, Cricket knew, or reasonably should have known, that the CDMA handsets sold would be inoperable as a result of the acquisition by AT&T. 7. During the Class Period, Cricket affirmatively represented that all CDMA handsets sold were compatible with Cricket's cellular phone service. 8. During the Class Period, Cricket failed to disclose that these CDMA handsets had an artificially limited useful life and that the phones would not be supported for the expected life of the phone. 9. Included in the CDMA handsets which were rendered inoperable by the AT&T acquisition is the Plaintiff's Samsung Galaxy S4, which he purchased from Cricket in or around December 2013. 10. Plaintiff asserts claims individually on behalf of the Class. II. The Parties 11. Plaintiff is a citizen of M a r y l a n d c u r r e n t l y r e s i d i n g a t 1 5 0 Westminster Pike, Reisterstown, MD 21136 (Baltimore County, MD). He is a natural person over the age of 21 and otherwise sui juris. JA 92 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 96 of 426 4 12. Defendant Cricket Communications, LLC is a limited liability company formed in the State of Delaware and maintains its corporate headquarters in Wilmington, Delaware. On July 12, 2013, AT&T agreed to buy Leap Wireless International, Inc., for $1.2 billion. As part of the agreement, AT&T would acquire the Leap Wireless subsidiary, Cricket Communications Inc. ("Cricket"), which provided wireless products and services to approximately 4.6 million subscribers. On March 13, 2014, the Federal Communications Commission approved the merger between AT&T and Leap Wireless. Since that time, Cricket has functioned as a unit of AT&T as Cricket Communications, LLC. III. JURISDICTION AND VENUE 13. This Court has jurisdiction over this action pursuant to the Class Action Fairness Act of 2005 ("CAFA"), Pub. L. No. 109-2, 119 Stat. 4 (codified in various sections of 28 U.S.C.). 14. Plaintiff Tim Bond is a citizen of Maryland. Defendant is a citizen of Delaware and Texas but is registered to do business in Maryland and nationwide. The amount in controversy exceeds $5,000,000 and there are at least one hundred members of the putative class. 15. This Court has jurisdiction over Defendant because it either is a foreign corporation authorized to conduct business in Maryland, is doing business in Maryland and has registered with the Maryland Secretary of State, or do sufficient business in Maryland, have sufficient minimum contacts with Maryland, or otherwise intentionally avail themselves of the Maryland consumer market through the promotion, marketing and sale of wireless products and services in Maryland. This purposeful availment renders the exercise of jurisdiction by this JA 93 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 97 of 426 4 Court over Defendant and its affiliated or related entities permissible under traditional notions of fair play and substantial justice. 16. In addition, this Court has subject-matter jurisdiction under CAFA because the amount in controversy exceeds $5 million and diversity exists between Plaintiff and the Defendants. 28 U.S.C. § 1332(d)(2). Further, in determining whether the $5 million amount in controversy requirement of 28 U.S.C. § 1332(d) (2) is met, the claims of the putative class members are aggregated. 28 U.S.C. § 1332(d)(6). 17. Venue is proper in this forum pursuant to 28 U.S.C. § 1391 because Defendant transacts business and may be found in this District and a substantial portion of the practices complained of herein occurred in the District of Maryland. 18. All conditions precedent to this action have occurred, been performed, or have been waived. IV. Factual Allegations 19. Two of the predominant cellular voice technologies in the United States are Global Systems for Mobile communications ("GSM") and Code Division Multiple Access ("CDMA"). 20. GSM was developed by the European Telecommunications Standards Institute to replace the analog networks. In the United States, GSM is the technology behind AT&T and T- Mobile USA. Current GSM devices use a Security Identity Module, or SIM, card. This card contains the International Mobile Subscriber Identity (IMSA) Number, carrier information, and consumer contact information. Assuming the phone is not locked by the carrier, the SIM card slot allows the consumer to migrate the phone between carriers. JA 94 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 98 of 426 4 21. CDMA was developed by Qualcomm and has been the technology preferred by Sprint and Verizon. Rather than having a SIM card for data storage, data is stored on the CDMA phone itself. This has made moving a CDMA phone between carriers difficult, if not impossible. 22. At all relevant times, Cricket has marketed, offered for sale, and sold handheld devices compatible with the CDMA network. 23. Each of the CDMA handsets sold by Cricket included an express statement, constituting an express warranty, that the telephone included "Nationwide Coverage" and that "Cricket's network provides unsurpassed nationwide coverage." 24. In July 2013, AT&T reached an agreement to purchase the assets and assume the liabilities of Leap Wireless, the parent of Cricket, for $1.2 Billion. AT & T retained Cricket's directors and management in addition to its 3,400 employees. The July 12, 2013 press release of AT&T and Leap Wireless provided, in relevant part, the following information about the acquisition: AT&T will acquire all of Leap's stock and wireless properties, including licenses, network assets, retail stores and approximately 5 million subscribers. . . . Leap's network covers approximately 96 million people in 35 U.S. states. Leap currently operates -- under the Cricket brand -- a 3G CDMA network, as well as a 4G LTE network covering 21 million people in these areas, and has 3,400 employees. AT&T will retain the Cricket brand name, provide Cricket customers with access to AT&T's award-winning 4G LTE mobile network, utilize Cricket's distribution channels, and expand Cricket's presence to additional U.S. cities. The result will be increased competition, better device choices, improved customer care and a significantly enhanced mobile Internet experience for consumers seeking low-cost prepaid wireless plans. . . . The acquisition includes spectrum in the PCS and AWS bands covering 137 million people and is largely complementary to AT&T's existing spectrum JA 95 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 99 of 426 4 licenses. Immediately after approval of the transaction, AT&T plans to put Leap's unutilized spectrum – which covers 41 million people -- to use in furthering its 4G LTE deployment and providing additional capacity and enhanced network performance for customers' growing mobile Internet usage. Owners of approximately 29.8% of Leap's outstanding shares have entered into an agreement to vote in favor of the transaction. The transaction is subject to review by the Federal Communications Commission and the Department of Justice and to other customary closing conditions. AT&T expects the transaction to close in six to nine months. 25. Thus, according to the July 12, 2013 press release, AT&T intended to move customers from Cricket's CDMA network to AT&T's GSM network and Cricket/AT&T further intended not to support CDMA handsets that could not be migrated to the GSM network. 26. In fact, many CDMA handsets cannot be moved to a GSM network because Cricket locked the CDMA handsets it sold. 27. Cricket knew and failed to disclose this material information to customers. 28. Cricket, moreover, continued to offer for sale and sell to the consuming public CDMA handsets that are not compatible with and cannot be migrated to the GSM network. 29. Cricket thus knew, and failed to disclose, that many of the CDMA handsets it offered for sale and sold to the consuming public would be rendered inoperable as a result of the AT&T acquisition (i.e. not able to make telephone calls or other forms of mobile communications). 30. For instance, Plaintiff purchased a Samsung Galaxy 4S from an authorized agent of Cricket in or around December 2013, more than five months after AT&T acquired Cricket. JA 96 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 100 of 426 4 31. Thereafter, Plaintiff entered into a wireless service agreement with Cricket to use the Samsung Galaxy 4S on Cricket's CDMA compatible cellular network. 32. Plaintiff received two different receipts, one for the purchase of the phone and one for the purchase of the wireless service agreement. 33. In January 2015, AT&T publicly announced that the legacy CDMA markets covered by its Cricket unit will be turned off this year, in a three-phase switch-off plan. See https://www.telegeography.com/products/commsupdate/articles/2015/01/09/att-confirms- september-shutdown-of-cricket-cdma-network/. 34. As per the AT&T public announcement in January 2015, the CDMA wireless service will be terminated on a rolling basis by bill cycle. Customers in the initial 'sunset markets' will have their service terminated by bill cycle beginning March 15, 2015 with the CDMA network in those markets being turned off completely on 15 April 2015. Initial (March/April) sunset markets include: Washington, DC; Little Rock, Fayetteville and Fort Smith (Arkansas); Wilmington (Delaware); Chicago and Northern Illinois (Illinois); South Bend (Indiana); Baltimore (Maryland); Atlantic City (New Jersey); Buffalo, Rochester and Syracuse (New York) and Philadelphia (Pennsylvania). 35. The second group of markets slated for shutdown in May/June 2015 consists of: Wichita (Kansas); Albuquerque and Las Cruces (New Mexico); Las Vegas (Nevada) and Oklahoma City and Tulsa (Oklahoma). 36. All remaining legacy CDMA markets will be turned off by mid-September 2015. 37. Cricket announced that its customers who purchased an iPhone with original CDMA (including the iPhone 4s, iPhone 5, iPhone 5s or iPhone 5c) will receive a free, JA 97 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 101 of 426 4 replacement SIM card that enables the iPhone to operate on Cricket's new 4G and 4G LTE nationwide GSM network. However, persons who purchased any other type of cell phone from Cricket would be required to purchase a new handset. 38. As Cricket explained on its website: "The new Cricket's nationwide 4G network uses GSM (Global System for Mobile Communications) technology that is the global standard for mobile service while the original Cricket uses CDMA network technology. That means that with the exception of original Cricket iPhone 4S, iPhone 5, iPhone 5S and iPhone 5C, your current CDMA phone will not work on the new Cricket network. 39. In or around February 2015, Plaintiff went into a Cricket store in Maryland to pay his bill for February service. When Plaintiff was in the Cricket store, Cricket turned his Samsung Galaxy S4 phone off. Plaintiff attempted to have his phone turned back on through AT&T and other service providers, including Sprint, Virgin Mobile and T-Mobile. But none was able to revive Plaintiff's phone. 40. Plaintiff's phone has no value or only a de minimis value due to its inoperability on any cellular network. 41. Plaintiff is not alone. Indeed, several consumers have made anonymous complaints on the web page forum: https://forums.att.com/t5/General-Account-Questions/AT- amp-T-Merger-with-Cricket-Sucks/td-p/4096500, concerning Cricket's failure to disclose that the CDMA handheld devices which it offered for sale and sold to the consuming public as of July 12, 2013, would be inoperable as a result of the AT&T acquisition, including the following: Blownaway Sep 26, 2014 8:26:33 AM JA 98 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 102 of 426 4 This merger of AT&T and Cricket is horrible. First I just bought an expensive Samsung Galaxy S4 not even a year ago and I am being told that I have to buy a brand new phone when the merger is fully complete (March 2015). This is ridiculous - who is sitting around with an extra $400 a year to purchase a new phone. As large a company as AT&T they do not have the capability to switch my phone over. SteveJodylynn Oct 29, 2014 12:28:27 PM I agree. It is just a few months from when my expensive CDMA Cricket smartphone (less than a year old) becomes inoperable and I've heard nothing from AT&T or Cricket about the transition plan, other than I will be forced to shell out hundreds for a new phone that is compatible with AT&T's network. Chiefsfan Nov 29, 2014 5:43:14 PM. . . AT&T is screwing over thousands of Cricket customers and they DON'T CARE ONE BIT! Cricket shouldn't have been selling phones over the past 7-8 months, since the merger with AT&T, knowing that they won't work after March, but they continue to do just that. The point is that AT&T is gaining millions of unearned $ by forcing customers to buy new ridiculously expensive phones (oh, but they'll give you a free deal on their piece-o-crap phones (which are all of them other than the Galaxy & iphones) all under the guise of "providing better service". What a crock!! WE ALL NEED TO BOYCOTT AT&T ONCE THEY RENDER OUR PHONES USELESS!!! hatenewcricket Feb 11, 2015 9:16:13 PM I know what you mean I got my S4 just befor[e] they annou[n]ced the switch, I believe they knew what was going to happen and sold me an already worthless phone this whole thing has been a rip off and is unfair to cricked customers who are getting screwed V. CLASS ALLEGATIONS 42. Plaintiff brings this action against Defendant pursuant to Rule 23 of the Federal Rules of Civil Procedure on behalf of himself and all other persons similarly situated. Plaintiff seeks to represent the following classes: All persons nationwide during the period July 12, 2013 to the present, who purchased a CDMA handset from Cricket or through its authorized agents. JA 99 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 103 of 426 4 Excluded from this class are Defendants, their affiliates, subsidiaries, agents, board members, directors, officers, and/or employees. 43. Plaintiff reserves the right to modify or amend the definition of the proposed Class before the Court determines whether certification is appropriate. 44. Defendant subjected Plaintiff and the respective Class members to the same unfair, unlawful, and deceptive practices and harmed them in the same manner. 45. The Class, as defined above, is identifiable. 46. The Named Plaintiff is a member of the Class. 47. The proposed class is so numerous that joinder of all members would be impracticable. Cricket sold thousands of CDMA handsets during the Class Period in the State of Maryland and nationwide. 48. The individual class members are ascertainable, as the names and addresses of all class members can be identified in the business records maintained by Defendant. 49. While the precise number of class members can only be obtained through discovery, the numbers are clearly more than can be consolidated in one complaint such that it would be impractical for each member to bring suit individually. 50. There are questions of law and fact that are common to Plaintiff's and class members' claims. These common questions predominate over any questions that go particularly to any individual member of the Class. 51. Among such common questions of law and fact are the following: a. Whether Cricket offered for sale and sold to the consuming public CDMA handsets during the Class Period; JA 100 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 104 of 426 4 b. Whether Cricket knew and failed to disclose that the CDMA handsets would be inoperable upon completion of the merger with AT&T; c. Whether Cricket knew at the time of sale that Plaintiff and Class Members intended to use the mobile telephones it sold to them to make telephone calls and mobile communications; d. Whether Cricket breached written warranties in its sales of mobile telephones to Plaintiff and other Class Members; e. Whether Cricket breached the implied covenant of good faith and fair dealing by offering for sale and selling soon to be inoperable CDMA handsets; f. Whether Cricket breached the implied warranty of fitness for a particular purpose in its sales of mobile telephones to Plaintiff and other Class Members; g. Whether Cricket made material misstatements of fact and/or knew and failed to disclose material information concerning the CDMA handsets which it sold to Plaintiff and other members of the class, including facts that the CDMA handsets would be inoperable as a result of the AT&T acquisition, that Cricket planned to convert to the GSM network and that as a result, the CDMA handsets had an artificially limited useful life; h. Whether Cricket breached the implied warranty of merchantability by selling Plaintiff and the other members of the Class CDMA handsets which it knew had an artificially limited useful life; i. Whether Cricket violated the Magnuson-Moss Warranty Act in its transactions with Plaintiff and other Class Members; and j. Whether Plaintiff and the Class Members are entitled to damages and/or injunctive relief as a result of Defendant's conduct. 52. Plaintiff's claims are typical of the claims o f t he cl as s because of the similarity, uniformity, and common purpose of Defendant's unlawful conduct. Each class member has sustained, and will continue to sustain, damages in the same manner as Plaintiff as a result of Defendant's wrongful conduct. JA 101 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 105 of 426 4 53. Plaintiff is an adequate representative of the class he seeks to represent and will fairly and adequately protect the interests of that class. 54. Plaintiff is committed to the vigorous prosecution of this action and has retained competent counsel, experienced in litigation of this nature, to represent them. 55. There is no hostility between Plaintiff and the unnamed class members. 56. Plaintiff anticipates no difficulty in the management of this litigation as a class action. 57. To prosecute this case, Plaintiff has chosen the undersigned law firms, which are experienced in class action litigation and have the financial and legal resources to meet the substantial costs and legal issues associated with this type of litigation. 58. The questions of law or fact common to Plaintiff's and each Class Member's claims predominate over any questions of law or fact affecting only individual members of the class. 59. All claims by Plaintiff and the unnamed class members are based on Cricket's sale of CDMA handsets to the consuming public when it knew, or reasonably should have known and failed to disclose that these handsets would be inoperable upon completion of the AT&T merger. 60. Common issues predominate where, as here, liability can be determined on a class-wide basis, even when there will be some individualized damages determinations. 61. As a result, when determining whether common questions predominate, courts focus on the liability issue, and if the liability issue is common to the class as is the case at bar, common questions will be held to predominate over individual questions. JA 102 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 106 of 426 4 62. A class action is superior to individual actions in part because of the non- exhaustive factors listed below: (a) Joinder of all class members would create extreme hardship and inconvenience for the affected customers as they reside all across the states; (b) Individual claims by class members are impractical because the costs to pursue individual claims exceed the value of what any one class member has at stake. As a result, individual class members have no interest in prosecuting and controlling separate actions; (c) There are no known individual class members who are interested in individually controlling the prosecution of separate actions; (d) The interests of justice will be well served by resolving the common disputes of potential class members in one forum; (e) Individual suits would not be cost effective or economically maintainable as individual actions; and (f) The action is manageable as a class action. VI. CAUSES OF ACTION COUNT I BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY 63. Plaintiff incorporates by reference paragraphs 1 through 62 above, as if each and every allegation is set forth fully herein. 64. At all relevant times, Cricket was a merchant with respect to the CDMA handsets. 65. Plaintiff purchased his now inoperable CDMA handset from an authorized agent of Cricket. At the time of purchase, Cricket and it authorized agents were in the business of selling CDMA handsets and/or by course of business held itself out as having special knowledge or skill regarding those handsets. JA 103 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 107 of 426 4 66. A warranty that the CDMA handsets were in merchantable condition was implied by law in the sale of these handsets by Cricket and its agents. 67. The CDMA handsets which Cricket and its authorized agents sold to Plaintiff and other members of the class were not in merchantable condition and are not fit for the ordinary purpose for which handsets are used and/or were not of the same quality of those generally acceptable in the trade. 68. In fact, the CDMA handsets sold by Cricket and its authorized agents, including the Samsung Galaxy 4S sold to Plaintiff, were unmerchantable. 69. Specifically, Cricket knew and failed to disclose that these CDMA handsets would be inoperable as a result of the AT&T acquisition and Cricket's plan to convert to the GSM network. As a result, the CDMA handsets had an artificially limited useful life. 70. Plaintiff and other members of the Class have had sufficient direct dealings with either Cricket or its authorized agents to establish vertical privity of contract between themselves and Defendant. Nevertheless, privity is not required in this case because Plaintiff and the other members of the Class are intended third- party beneficiaries of contract between Cricket and its authorized agents. Specifically, Plaintiff and the other members of the Class are the intended beneficiaries of Cricket's implied warranties. Cricket's authorized agents were not intended to be the ultimate consumers of the CDMA handsets. COUNT II FRAUDULENT CONCEALMENT 71. Plaintiff incorporates by reference paragraphs 1 through 62 above, as if each and every allegation is set forth fully herein. JA 104 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 108 of 426 4 72. As set forth above, Cricket knew and failed to disclose and/ or suppressed and/or concealed material facts concerning the CDMA handsets, including the Samsung Galaxy 4S, which it sold to Plaintiff and other members of the class. 73. These concealed facts were material because they directly impacted the reliability and use of the handsets. 74. Cricket owed Plaintiff and the other members of the Class a duty to disclose that the CDMA handsets would be rendered inoperable by the AT&T acquisition and Cricket's plans to convert to the GSM network because it possessed exclusive and superior knowledge and access to these facts. 75. Cricket knew and failed to disclose that the CDMA handsets had an artificially limited useful life and that the CDMA handsets were not compatible with AT&T's GSM cellular network. 76. Cricket actively concealed and/or suppressed these material facts, in whole or in part, with the intent to induce Plaintiff and the other members of the Class to purchase the CDMA handsets from Cricket and its authorized agents and to pay more than they otherwise would have paid had these material facts that the CDMA handsets would be inoperable as a result of the AT&T acquisition and Cricket's plans to convert to the GSM network been disclosed. 77. Cricket's conduct was oppressive, fraudulent, malicious and in reckless disregard of the rights of Plaintiff and the Class. JA 105 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 109 of 426 4 78. Plaintiff and the other members of the Class were not aware of the omitted material facts and would not have acted as they did if they had known of the concealed and/or suppressed facts. 79. As a result of Cricket's concealment and/or suppression of material facts concerning the CDMA handsets, Plaintiff and the Class have sustained damages. COUNT III MONEY HAD AND RECEIVED/UNJUST ENRICHMENT 80. Plaintiff incorporates herein by reference as though fully set forth the allegations in paragraphs 1 through 62 of this Complaint, as if each and every allegation is set forth fully herein. 81. As set forth above, Cricket charged and collected payments for CDMA handsets that would become inoperable in amounts that exceeded the value of these CDMA handsets, which conferred a substantial benefit on Cricket. 82. Cricket was aware of, and had knowledge of, this substantial benefit. 83. By doing so, Cricket has come into the possession of money in the form of payments that it had, and has no right to at law or in equity. 84. It would be inequitable for Cricket to retain any such monies that it had no legal right to charge. 85. As a consequence, Named Plaintiff and the members of the Class have been damaged. JA 106 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 110 of 426 4 COUNT IV NEGLIGENT MISREPRESENTATION 86. Plaintiff incorporates herein by reference as though fully set forth the allegations in paragraphs 1 through 62 of this Complaint, as if each and every allegation is set forth fully herein. 87. Cricket and its agents or employees negligently made the false and misleading representations and omissions alleged herein, including but not limited to the representations that its CDMA handsets would pass without objection in the trade under the contract description and that the CDMA handsets sold were compatible with and would continue to be compatible with Cricket's CDMA's cellular service for the useful life of the handset. 88. Cricket's agents or employees negligently failed to disclose the material fact that its handsets would become inoperable during its useful lifespan. 89. Cricket's agents or employees negligently failed to disclose that the prices of the CDMA handsets did not accurately represent its value, intending that Plaintiff and the Class would reasonably rely upon the false and misleading representations and omissions to their detriment, which they did. 90. As a direct and proximate result of Cricket's negligent statements, representations, and omissions, Plaintiff and the Class were induced, ab initio, to purchase a CDMA handset from Cricket for a price significantly higher than they were worth. 91. Cricket, their agents or employees, owed a duty of care to Plaintiff and the Class. JA 107 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 111 of 426 4 92. Cricket recklessly and negligently breached the duty of care they owed to Plaintiff and the Class by making negligent representations to Plaintiff and the Class and negligently concealing material facts from them, as set forth herein. 93. Cricket knew, or had reason to know, that Plaintiffs and the Class would reasonably rely on the representations and concealments which if erroneous, would cause loss, injury or damage. 94. Plaintiff and the Class justifiably and reasonably took actions to their detriment as alleged herein, by paying Cricket significantly more for their CDMA handsets than they were worth, in reliance on the negligent representations and concealments. COUNT V MARYLAND CONSUMER PROTECTION ACT 95. Plaintiff incorporates herein by reference as though fully set forth the allegations in paragraphs 1 through 62 of this Complaint, as if each and every allegation is set forth fully herein. 96. Cricket is a merchant within the meaning of the Maryland Consumer Protection Act ("MCPA"), MD. CODE ANN., COMM. LAW § 13-101(g), and is subject to all of the MCPA's provisions prohibiting unfair or deceptive trade practices including those in MD. CODE ANN., COMM. LAW §§ 13-303 and 13-301. 97. Cricket's failure to disclose and its concealment from Plaintiff and members of the Class of the material facts as set forth herein constitutes unfair and deceptive trade practices in violation of the MCPA, §§ 13-303 and 13-301(1), (2)(i) and (iv) and (3). If Plaintiff and JA 108 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 112 of 426 4 members of the Class had known the material facts related to the CDMA handsets, they would not have purchased the handsets or would have required a significantly lower price. 98. On information and belief, Plaintiff avers that Cricket systematically sold CDMA handsets during the Class Period which were not compatible with AT&T's GSM cellular network and retailed these CDMA handsets to the public without disclosing the impending inoperability of the handsets to its customers, in violation of the MCPA, in order to illegally increase its profits. 99. Cricket's acts and omissions as aforesaid, including its failure to disclose and concealment of the material facts, and its affirmative misrepresentation to Named Plaintiff and the Class, tended to and did deceive Plaintiff and members of the Class and constitutes an unfair and deceptive trade practice, in violation of MCPA §§ 13-303(1) - (3) and 13-301(1), (2)(i) and (iv), and/or (3). 100. As a result of Cricket's unfair and deceptive trade practices, Named Plaintiff and the Class agreed to and did purchase their CDMA handsets, Plaintiff paid Cricket significantly more for their CDMA handsets than they were worth, and Named Plaintiff and the Class sustained the other damages and losses set forth above. COUNT VI FRAUD 101. Plaintiff incorporates herein by reference as though fully set forth the allegations in paragraphs 1 through 62 of this Complaint, as if each and every allegation is set forth fully herein. JA 109 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 113 of 426 4 102. Cricket and its authorized agents falsely represented to Plaintiff and other members of the Class that the CDMA handsets would be supported by Cricket for the useful life of the product. But for this representation, which Cricket and its authorized agents knew, or should have known, was false, Plaintiff and the other members of the Class would not have bought the CDMA handsets from Cricket. Moreover, but for this false representation, Plaintiff and the other members of the Class would not have then made a separate purchase from Cricket for the CDMA wireless service plan. 103. Defendant failed to disclose material information that Cricket would not continue to support the CDMA handsets as a result of the AT&T acquisition and that the CDMA handsets were not compatible with AT&T's GSM cellular network. 104. Defendant made these false and misleading representations and omissions knowingly, recklessly, and/or without regard for their truth or falsity, and with the intent to induce Plaintiff and other members of the Class to rely upon them by purchasing a CDMA handset from Cricket. 105. Plaintiff and the other members of the Class justifiably relied upon the false representations and omissions made by Defendant by purchasing the CDMA handset from Cricket's authorized agent and then by purchasing a wireless service agreement from Cricket thereafter. 106. As a direct and proximate result of the reliance upon the false representations and omissions of Defendant, Plaintiff and the other members of the Class have suffered damages, including, but not limited to, the loss of the use of the CDMA handsets and the loss of their market value, well prior to the end of the useful life of these cell phones. JA 110 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 114 of 426 4 107. Because of the willful and wanton conduct of Defendant, Plaintiff and the other members of the Class are entitled to punitive, as well as actual, damages. COUNT VII VIOLATION OF THE MAGNUSON-MOSS WARRANTY ACT 108. Named Plaintiff re-alleges and incorporates herein by reference the allegations in the foregoing paragraphs as if fully set forth below. 109. Congress enacted the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq. (the "Act") in 1975 in response to widespread complaints from consumers that many warranties were misleading and deceptive and were not being honored. To remedy this problem of deception and failure to honor warranties, the Act imposes civil liability on any "warrantor" for, inter alia, failing to comply with any obligation under a written warranty and/or implied warranty. 15 U.S.C. § 2310(d)(1). The Act further authorizes a "suit for damages and other legal and equitable relief." Id. The Act authorizes the award of attorneys' fees and expressly authorizes class actions. 15 U.S.C. § 2310(e). 110. Cricket is a "warrantor" within the meaning of Section 2301(5) of the Act. 111. Named Plaintiff and other members of the Class are "consumers" within the meaning of Section 2301(3) of the Act. 112. Cricket breached express warranties because the CDMA handsets sold did not conform to the description of the CDMA handsets. Cricket's affirmations of fact concerning the mobile telephones, and descriptions of the mobile telephones, which Cricket make to Plaintiff and the Class, relating to the mobile telephones and part of the basis of the bargain, created an JA 111 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 115 of 426 4 express warranty that the mobile telephones would operate on a nationwide network providing unsurpassed coverage. 113. Cricket breaches of the implied warranties of merchantability and fitness for a particular purpose as alleged herein, violate the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq., including 15 U.S.C. § 2310(d). 114. Cricket knew, at the time of sale, of the defects in the mobile telephones sold to Plaintiff and the Class Members which breached the express warranties and implied warranties of merchantability and fitness for a particular purpose. 115. Named Plaintiff contacted Cricket and asked Cricket to cure the defect in his mobile telephone by replacing it with a usable and comparable CDMA handset or by unlocking his handset so that he could use it on another CDMA wireless provider's network. Cricket refused to cure the defect or to replace or unlock Named Plaintiff's handset. 116. As a result of Cricket's violation of the Act, Named Plaintiff and the Class sustained the losses and damages described herein. PRAYER FOR RELIEF WHEREFORE, Plaintiff, on behalf of himself and all similarly situated individuals, demands judgment against Defendant as follows: (1) Declaring this action to be a proper class action maintainable pursuant to Rule 23(a) and Rule 23(b)(3) of the Federal Rules of Civil Procedure and declaring Plaintiff and their counsel to be representatives of the Class; JA 112 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 116 of 426 4 (2) Requiring Defendant to replace the CDMA handsets with comparable GSM handsets free of charge; (3) Awarding actual damages to Plaintiff and the Class; (4) Awarding punitive damages to Plaintiff and the Class under Counts II, IV and VI; (5) Awarding Plaintiff and the Class costs and disbursements and reasonable allowances for the fees of counsel and experts, and reimbursement of expenses; (6) Awarding pre-judgment and post-judgment interest on all sums awarded to Named Plaintiff and the Class; and (7) Awarding such other and further relief the Court deems just and equitable. Respectfully submitted, Z LAW, LLC Dated: February 10, 2017 ________/s/___28191__ _____________ Cory L. Zajdel (Fed. Bar No. 28191) 2345 York Road, Ste. B-13 Timonium, MD 21093 (443) 213-1977 clz@zlawmaryland.com Oren S. Giskan Catherine E. Anderson Giskan Solotaroff Anderson & Stewart, LLP 11 Broadway, Suite #2150 New York, NY 10004 (212) 847-8315 Attorneys for Plaintiff JA 113 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 117 of 426 4 DEMAND FOR JURY TRIAL Plaintiff and the Class request a jury trial for any and all Counts for which a trial by jury is permitted by law. ________/s/___28191__ _____________ Cory L. Zajdel (Fed. Bar No. 28191) JA 114 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 118 of 426 4 IN THE UNITED STATES DISTRICT FOR THE DISTRICT OF MARYLAND (Baltimore Division) TIM BOND 150 WESTMINSTER PIKE REISTERSTOWN, MD 21136 JURY TRIAL DEMANDED on his own behalf and on behalf of all others similarly situated, Plaintiffs, v. CRICKET COMMUNICATIONS, LLC Case No. 1:15-cv-923-WDQ 1209 ORANGE STREET WILMINGTON, DE 19801 SERVE ON: Archis A. Parasharami Mayer Brown LLP 1999 K Street, N.W. Washington, DC 20006 Defendant. FIRSECONDT AMENDED CLASS ACTION COMPLAINT Plaintiff Tim Bond ("Plaintiff" or "Bond") b r i n g s this class action complaint individually and in a representative capacity on behalf all others similarly situated (the "Class") against defendant Cricket Communications, LLC. I. Preliminary Statement 1. On July 12, 2013, AT&T announced its agreement to acquire Cricket Communications Inc. 2. After acquiring Cricket Communications Inc., AT & T formed Cricket Communications, LLC ("Cricket") to carry on the business of the former Cricket Communications, Inc. JA 115 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 119 of 426 4 3. From July 12, 2013 to the present (the "Class Period"), Cricket, both directly and through its authorized agents, has offered for sale and sold to the consuming public CDMA handsets. 4. Prior to the Class Period, AT&T and Cricket decided that on or after the acquisition of Cricket, AT&T would discontinue all CDMA service and require all Cricket customers to use AT&T's GSM cellular network. 5. Prior to the Class Period, Cricket knew or should have known that AT&T intended to discontinue the use of CDMA handsets in favor of AT&T's GSM service. 6. During the Class Period, Cricket knew, or reasonably should have known, that the CDMA handsets sold would be inoperable as a result of the acquisition by AT&T. 7. During the Class Period, Cricket affirmatively represented that all CDMA handsets sold were compatible with Cricket's cellular phone service. 8. During the Class Period, Cricket failed to disclose that these CDMA handsets had an artificially limited useful life and that the phones would not be supported for the expected life of the phone. 9. Included in the CDMA handsets which were rendered inoperable by the AT&T acquisition is the Plaintiff's Samsung Galaxy S4, which he purchased from Cricket in or around December 2013. 10. Plaintiff asserts claims individually on behalf of the Class. JA 116 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 120 of 426 4 II. The Parties 11. Plaintiff is a citizen of M a r y l a n d c u r r e n t l y r e s i d i n g a t 1 5 0 Westminster Pike, Reisterstown, MD 21136 (Baltimore County, MD). He is a natural person over the age of 21 and otherwise sui juris. 12. Defendant Cricket Communications, LLC is a limited liability company formed in the State of Delaware and maintains its corporate headquarters in Wilmington, Delaware. On July 12, 2013, AT&T agreed to buy Leap Wireless International, Inc., for $1.2 billion. As part of the agreement, AT&T would acquire the Leap Wireless subsidiary, Cricket Communications Inc. ("Cricket"), which provided wireless products and services to approximately 4.6 million subscribers. On March 13, 2014, the Federal Communications Commission approved the merger between AT&T and Leap Wireless. Since that time, Cricket has functioned as a unit of AT&T as Cricket Communications, LLC. III. JURISDICTION AND VENUE 13. This Court has jurisdiction over this action pursuant to the Class Action Fairness Act of 2005 ("CAFA"), Pub. L. No. 109-2, 119 Stat. 4 (codified in various sections of 28 U.S.C.). 14. Plaintiff Tim Bond is a citizen of Maryland. Defendant is a citizen of Delaware and Texas but is registered to do business in Maryland and nationwide. The amount in controversy exceeds $5,000,000 and there are at least one hundred members of the putative class. 15. This Court has jurisdiction over Defendant because it either is a foreign corporation authorized to conduct business in Maryland, is doing business in Maryland and has JA 117 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 121 of 426 4 registered with the Maryland Secretary of State, or do sufficient business in Maryland, have sufficient minimum contacts with Maryland, or otherwise intentionally avail themselves of the Maryland consumer market through the promotion, marketing and sale of wireless products and services in Maryland. This purposeful availment renders the exercise of jurisdiction by this Court over Defendant and its affiliated or related entities permissible under traditional notions of fair play and substantial justice. 16. In addition, this Court has subject-matter jurisdiction under CAFA because the amount in controversy exceeds $5 million and diversity exists between Plaintiff and the Defendants. 28 U.S.C. § 1332(d)(2). Further, in determining whether the $5 million amount in controversy requirement of 28 U.S.C. § 1332(d) (2) is met, the claims of the putative class members are aggregated. 28 U.S.C. § 1332(d)(6). 17. Venue is proper in this forum pursuant to 28 U.S.C. § 1391 because Defendant transacts business and may be found in this District and a substantial portion of the practices complained of herein occurred in the District of Maryland. 18. All conditions precedent to this action have occurred, been performed, or have been waived. IV. Factual Allegations 19. Two of the predominant cellular voice technologies in the United States are Global Systems for Mobile communications ("GSM") and Code Division Multiple Access ("CDMA"). 20. GSM was developed by the European Telecommunications Standards Institute to replace the analog networks. In the United States, GSM is the technology behind AT&T and T- JA 118 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 122 of 426 4 Mobile USA. Current GSM devices use a Security Identity Module, or SIM, card. This card contains the International Mobile Subscriber Identity (IMSA) Number, carrier information, and consumer contact information. Assuming the phone is not locked by the carrier, the SIM card slot allows the consumer to migrate the phone between carriers. 21. CDMA was developed by Qualcomm and has been the technology preferred by Sprint and Verizon. Rather than having a SIM card for data storage, data is stored on the CDMA phone itself. This has made moving a CDMA phone between carriers difficult, if not impossible. 22. At all relevant times, Cricket has marketed, offered for sale, and sold handheld devices compatible with the CDMA network. 23. Each of the CDMA handsets sold by Cricket included an express statement, constituting an express warranty, that the telephone included "Nationwide Coverage" and that "Cricket's network provides unsurpased nationwide coverage." 243. In July 2013, AT&T reached an agreement to purchase the assets and assume the liabilities of Leap Wireless, the parent of Cricket, for $1.2 Billion. AT & T retained Cricket's directors and management in addition to its 3,400 employees. The July 12, 2013 press release of AT&T and Leap Wireless provided, in relevant part, the following information about the acquisition: AT&T will acquire all of Leap's stock and wireless properties, including licenses, network assets, retail stores and approximately 5 million subscribers. . . . Leap's network covers approximately 96 million people in 35 U.S. states. Leap currently operates -- under the Cricket brand -- a 3G CDMA network, as well as a 4G LTE network covering 21 million people in these areas, and has 3,400 employees. JA 119 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 123 of 426 4 AT&T will retain the Cricket brand name, provide Cricket customers with access to AT&T's award-winning 4G LTE mobile network, utilize Cricket's distribution channels, and expand Cricket's presence to additional U.S. cities. The result will be increased competition, better device choices, improved customer care and a significantly enhanced mobile Internet experience for consumers seeking low-cost prepaid wireless plans. . . . The acquisition includes spectrum in the PCS and AWS bands covering 137 million people and is largely complementary to AT&T's existing spectrum licenses. Immediately after approval of the transaction, AT&T plans to put Leap's unutilized spectrum – which covers 41 million people -- to use in furthering its 4G LTE deployment and providing additional capacity and enhanced network performance for customers' growing mobile Internet usage. Owners of approximately 29.8% of Leap's outstanding shares have entered into an agreement to vote in favor of the transaction. The transaction is subject to review by the Federal Communications Commission and the Department of Justice and to other customary closing conditions. AT&T expects the transaction to close in six to nine months. 254. Thus, according to the July 12, 2013 press release, AT&T intended to move customers from Cricket's CDMA network to AT&T's GSM network and Cricket/AT&T further intended not to support CDMA handsets that could not be migrated to the GSM network. 265. In fact, many CDMA handsets cannot be moved to a GSM network because Cricket locked the CDMA handsets it sold. 276. Cricket knew and failed to disclose this material information to customers. 287. Cricket, moreover, continued to offer for sale and sell to the consuming public CDMA handsets that are not compatible with and cannot be migrated to the GSM network. 298. Cricket thus knew, and failed to disclose, that many of the CDMA handsets it offered for sale and sold to the consuming public would be rendered inoperable as a result of the AT&T acquisition (i.e. not able to make telephone calls or other forms of mobile communications). JA 120 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 124 of 426 4 3029. For instance, Plaintiff purchased a Samsung Galaxy 4S from an authorized agent of Cricket in or around December 2013, more than five months after AT&T acquired Cricket. 310. Thereafter, Plaintiff entered into a wireless service agreement with Cricket to use the Samsung Galaxy 4S on Cricket's CDMA compatible cellular network. 321. Plaintiff received two different receipts, one for the purchase of the phone and one for the purchase of the wireless service agreement. 332. In January 2015, AT&T publicly announced that the legacy CDMA markets covered by its Cricket unit will be turned off this year, in a three-phase switch-off plan. See https://www.telegeography.com/products/commsupdate/articles/2015/01/09/att-confirms- september-shutdown-of-cricket-cdma-network/. 343. As per the AT&T public announcement in January 2015, the CDMA wireless service will be terminated on a rolling basis by bill cycle. Customers in the initial 'sunset markets' will have their service terminated by bill cycle beginning March 15, 2015 with the CDMA network in those markets being turned off completely on 15 April 2015. Initial (March/April) sunset markets include: Washington, DC; Little Rock, Fayetteville and Fort Smith (Arkansas); Wilmington (Delaware); Chicago and Northern Illinois (Illinois); South Bend (Indiana); Baltimore (Maryland); Atlantic City (New Jersey); Buffalo, Rochester and Syracuse (New York) and Philadelphia (Pennsylvania). 354. The second group of markets slated for shutdown in May/June 2015 consists of: Wichita (Kansas); Albuquerque and Las Cruces (New Mexico); Las Vegas (Nevada) and Oklahoma City and Tulsa (Oklahoma). 365. All remaining legacy CDMA markets will be turned off by mid-September 2015. JA 121 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 125 of 426 4 376. Cricket announced that its customers who purchased an iPhone with original CDMA (including the iPhone 4s, iPhone 5, iPhone 5s or iPhone 5c) will receive a free, replacement SIM card that enables the iPhone to operate on Cricket's new 4G and 4G LTE nationwide GSM network. However, persons who purchased any other type of cell phone from Cricket would be required to purchase a new handset. 387. As Cricket explained on its website: "The new Cricket's nationwide 4G network uses GSM (Global System for Mobile Communications) technology that is the global standard for mobile service while the original Cricket uses CDMA network technology. That means that with the exception of original Cricket iPhone 4S, iPhone 5, iPhone 5S and iPhone 5C, your current CDMA phone will not work on the new Cricket network. 398. In or around February 2015, Plaintiff went into a Cricket store in Maryland to pay his bill for February service. When Plaintiff was in the Cricket store, Cricket turned his Samsung Galaxy S4 phone off. Plaintiff attempted to have his phone turned back on through AT&T and other service providers, including Sprint, Virgin Mobile and T-Mobile. But none was able to revive Plaintiff's phone. 4039. Plaintiff's phone has no value or only a de minimis value due to its inoperability on any cellular network. 410. Plaintiff is not alone. Indeed, several consumers have made anonymous complaints on the web page forum: https://forums.att.com/t5/General-Account-Questions/AT- amp-T-Merger-with-Cricket-Sucks/td-p/4096500, concerning Cricket's failure to disclose that the CDMA handheld devices which it offered for sale and sold to the consuming public as of July 12, 2013, would be inoperable as a result of the AT&T acquisition, including the following: JA 122 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 126 of 426 4 Blownaway Sep 26, 2014 8:26:33 AM This merger of AT&T and Cricket is horrible. First I just bought an expensive Samsung Galaxy S4 not even a year ago and I am being told that I have to buy a brand new phone when the merger is fully complete (March 2015). This is ridiculous - who is sitting around with an extra $400 a year to purchase a new phone. As large a company as AT&T they do not have the capability to switch my phone over. SteveJodylynn Oct 29, 2014 12:28:27 PM I agree. It is just a few months from when my expensive CDMA Cricket smartphone (less than a year old) becomes inoperable and I've heard nothing from AT&T or Cricket about the transition plan, other than I will be forced to shell out hundreds for a new phone that is compatible with AT&T's network. Chiefsfan Nov 29, 2014 5:43:14 PM. . . AT&T is screwing over thousands of Cricket customers and they DON'T CARE ONE BIT! Cricket shouldn't have been selling phones over the past 7-8 months, since the merger with AT&T, knowing that they won't work after March, but they continue to do just that. The point is that AT&T is gaining millions of unearned $ by forcing customers to buy new ridiculously expensive phones (oh, but they'll give you a free deal on their piece-o-crap phones (which are all of them other than the Galaxy & iphones) all under the guise of "providing better service". What a crock!! WE ALL NEED TO BOYCOTT AT&T ONCE THEY RENDER OUR PHONES USELESS!!! hatenewcricket Feb 11, 2015 9:16:13 PM I know what you mean I got my S4 just befor[e] they annou[n]ced the switch, I believe they knew what was going to happen and sold me an already worthless phone this whole thing has been a rip off and is unfair to cricked customers who are getting screwed V. CLASS ALLEGATIONS 421. Plaintiff brings this action against Defendant pursuant to Rule 23 of the Federal Rules of Civil Procedure on behalf of himself and all other persons similarly situated. Plaintiff seeks to represent the following classes: JA 123 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 127 of 426 4 All persons nationwide during the period July 12, 2013 to the present, who purchased a CDMA handset from Cricket or through its authorized agents. Excluded from this class are Defendants, their affiliates, subsidiaries, agents, board members, directors, officers, and/or employees. 432. Plaintiff reserves the right to modify or amend the definition of the proposed Class before the Court determines whether certification is appropriate. 443. Defendant subjected Plaintiff and the respective Class members to the same unfair, unlawful, and deceptive practices and harmed them in the same manner. 454. The Class, as defined above, is identifiable. 465. The Named Plaintiff is a member of the Class. 476. The proposed class is so numerous that joinder of all members would be impracticable. Cricket sold thousands of CDMA handsets during the Class Period in the State of Maryland and nationwide. 4 8 7. The individual class members are ascertainable, as the names and addresses of all class members can be identified in the business records maintained by Defendant. 498. While the precise number of class members can only be obtained through discovery, the numbers are clearly more than can be consolidated in one complaint such that it would be impractical for each member to bring suit individually. 5049. There are questions of law and fact that are common to Plaintiff's and class members' claims. These common questions predominate over any questions that go particularly to any individual member of the Class. 5 1 0. Among such common questions of law and fact are the following: JA 124 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 128 of 426 4 a. Whether Cricket offered for sale and sold to the consuming public CDMA handsets during the Class Period; b. Whether Cricket knew and failed to disclose that the CDMA handsets would be inoperable upon completion of the merger with AT&T; c. Whether Cricket knew at the time of sale that Plaintiff and Class Members intended to use the mobile telephones it sold to them to make telephone calls and mobile communications; d. Whether Cricket breached written warranties in its sales of mobile telephones to Plaintiff and other Class Members; e. Whether Cricket breached the implied covenant of good faith and fair dealing by offering for sale and selling soon to be inoperable CDMA handsets; f. Whether Cricket breached the implied warranty of fitness for a particular purpose in its sales of mobile telephones to Plaintiff and other Class Members; gd. Whether Cricket made material misstatements of fact and/or knew and failed to disclose material information concerning the CDMA handsets which it sold to Plaintiff and other members of the class, including facts that the CDMA handsets would be inoperable as a result of the AT&T acquisition, that Cricket planned to convert to the GSM network and that as a result, the CDMA handsets had an artificially limited useful life; he. Whether Cricket breached the implied warranty of merchantability by selling Plaintiff and the other members of the Class CDMA handsets which it knew had an artificially limited useful life; i. Whether Cricket violated the Magnuson-Moss Warranty Act in its transactions with Plaintif and other Class Members; and jf. Whether Plaintiff and the Class Members are entitled to damages and/or injunctive relief as a result of Defendant's conduct. 521. Plaintiff's claims are typical of the claims o f t he cl as s because of the similarity, uniformity, and common purpose of Defendant's unlawful conduct. Each class JA 125 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 129 of 426 4 member has sustained, and will continue to sustain, damages in the same manner as Plaintiff as a result of Defendant's wrongful conduct. 532. Plaintiff is an adequate representative of the class he seeks to represent and will fairly and adequately protect the interests of that class. 5 4 3. Plaintiff is committed to the vigorous prosecution of this action and has retained competent counsel, experienced in litigation of this nature, to represent them. 554. There is no hostility between Plaintiff and the unnamed class members. 565. Plaintiff anticipates no difficulty in the management of this litigation as a class action. 576. To prosecute this case, Plaintiff has chosen the undersigned law firms, which are experienced in class action litigation and have the financial and legal resources to meet the substantial costs and legal issues associated with this type of litigation. 587. The questions of law or fact common to Plaintiff's and each Class Member's claims predominate over any questions of law or fact affecting only individual members of the class. 598. All claims by Plaintiff and the unnamed class members are based on Cricket's sale of CDMA handsets to the consuming public when it knew, or reasonably should have known and failed to disclose that these handsets would be inoperable upon completion of the AT&T merger. 6059. Common issues predominate where, as here, liability can be determined on a class-wide basis, even when there will be some individualized damages determinations. JA 126 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 130 of 426 4 610. As a result, when determining whether common questions predominate, courts focus on the liability issue, and if the liability issue is common to the class as is the case at bar, common questions will be held to predominate over individual questions. 621. A class action is superior to individual actions in part because of the non- exhaustive factors listed below: (a) Joinder of all class members would create extreme hardship and inconvenience for the affected customers as they reside all across the states; (b) Individual claims by class members are impractical because the costs to pursue individual claims exceed the value of what any one class member has at stake. As a result, individual class members have no interest in prosecuting and controlling separate actions; (c) There are no known individual class members who are interested in individually controlling the prosecution of separate actions; (d) The interests of justice will be well served by resolving the common disputes of potential class members in one forum; (e) Individual suits would not be cost effective or economically maintainable as individual actions; and (f) The action is manageable as a class action. VI. CAUSES OF ACTION COUNT I BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY 632. Plaintiff incorporates by reference paragraphs 1 through 621 above, as if each and every allegation is set forth fully herein. 643. At all relevant times, Cricket was a merchant with respect to the CDMA handsets. 654. Plaintiff purchased his now inoperable CDMA handset from an authorized agent of Cricket. At the time of purchase, Cricket and it authorized agents were in the business of JA 127 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 131 of 426 4 selling CDMA handsets and/or by course of business held itself out as having special knowledge or skill regarding those handsets. 665. A warranty that the CDMA handsets were in merchantable condition was implied by law in the sale of these handsets by Cricket and its agents. 676. The CDMA handsets which Cricket and its authorized agents sold to Plaintiff and other members of the class were not in merchantable condition and are not fit for the ordinary purpose for which handsets are used and/or were not of the same quality of those generally acceptable in the trade. 687. In fact, the CDMA handsets sold by Cricket and its authorized agents, including the Samsung Galaxy 4S sold to Plaintiff, were unmerchantable. 698. Specifically, Cricket knew and failed to disclose that these CDMA handsets would be inoperable as a result of the AT&T acquisition and Cricket's plan to convert to the GSM network. As a result, the CDMA handsets had an artificially limited useful life. 7069. Plaintiff and other members of the Class have had sufficient direct dealings with either Cricket or its authorized agents to establish vertical privity of contract between themselves and Defendant. Nevertheless, privity is not required in this case because Plaintiff and the other members of the Class are intended third- party beneficiaries of contract between Cricket and its authorized agents. Specifically, Plaintiff and the other members of the Class are the intended beneficiaries of Cricket's implied warranties. Cricket's authorized agents were not intended to be the ultimate consumers of the CDMA handsets. COUNT II JA 128 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 132 of 426 4 FRAUDULENT CONCEALMENT 710. Plaintiff incorporates by reference paragraphs 1 through 621 above, as if each and every allegation is set forth fully herein. 721. As set forth above, Cricket knew and failed to disclose and/ or suppressed and/or concealed material facts concerning the CDMA handsets, including the Samsung Galaxy 4S, which it sold to Plaintiff and other members of the class. 732. These concealed facts were material because they directly impacted the reliability and use of the handsets. 743. Cricket owed Plaintiff and the other members of the Class a duty to disclose that the CDMA handsets would be rendered inoperable by the AT&T acquisition and Cricket's plans to convert to the GSM network because it possessed exclusive and superior knowledge and access to these facts. 754. Cricket knew and failed to disclose that the CDMA handsets had an artificially limited useful life and that the CDMA handsets were not compatible with AT&T's GSM cellular network. 765. Cricket actively concealed and/or suppressed these material facts, in whole or in part, with the intent to induce Plaintiff and the other members of the Class to purchase the CDMA handsets from Cricket and its authorized agents and to pay more than they otherwise would have paid had these material facts that the CDMA handsets would be inoperable as a result of the AT&T acquisition and Cricket's plans to convert to the GSM network been disclosed. JA 129 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 133 of 426 4 776. Cricket's conduct was oppressive, fraudulent, malicious and in reckless disregard of the rights of Plaintiff and the Class. 787. Plaintiff and the other members of the Class were not aware of the omitted material facts and would not have acted as they did if they had known of the concealed and/or suppressed facts. 798. As a result of Cricket's concealment and/or suppression of material facts concerning the CDMA handsets, Plaintiff and the Class have sustained damages. COUNT III MONEY HAD AND RECEIVED/UNJUST ENRICHMENT 8079. Plaintiff incorporates herein by reference as though fully set forth the allegations in paragraphs 1 through 621 of this Complaint, as if each and every allegation is set forth fully herein. 810. As set forth above, Cricket charged and collected payments for CDMA handsets that would become inoperable in amounts that exceeded the value of these CDMA handsets, which conferred a substantial benefit on Cricket. 821. Cricket was aware of, and had knowledge of, this substantial benefit. 832. By doing so, Cricket has come into the possession of money in the form of payments that it had, and has no right to at law or in equity. 843. It would be inequitable for Cricket to retain any such monies that it had no legal right to charge. JA 130 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 134 of 426 4 854. As a consequence, Named Plaintiff and the members of the Class have been damaged. COUNT IV NEGLIGENT MISREPRESENTATION 865. Plaintiff incorporates herein by reference as though fully set forth the allegations in paragraphs 1 through 621 of this Complaint, as if each and every allegation is set forth fully herein. 876. Cricket and its agents or employees negligently made the false and misleading representations and omissions alleged herein, including but not limited to the representations that its CDMA handsets would pass without objection in the trade under the contract description and that the CDMA handsets sold were compatible with and would continue to be compatible with Cricket's CDMA's cellular service for the useful life of the handset. 887. Cricket's agents or employees negligently failed to disclose the material fact that its handsets would become inoperable during its useful lifespan. 898. Cricket's agents or employees negligently failed to disclose that the prices of the CDMA handsets did not accurately represent its value, intending that Plaintiff and the Class would reasonably rely upon the false and misleading representations and omissions to their detriment, which they did. 890. As a direct and proximate result of Cricket's negligent statements, representations, and omissions, Plaintiff and the Class were induced, ab initio, to purchase a CDMA handset from Cricket for a price significantly higher than they were worth. JA 131 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 135 of 426 4 910. Cricket, their agents or employees, owed a duty of care to Plaintiff and the Class. 921. Cricket recklessly and negligently breached the duty of care they owed to Plaintiff and the Class by making negligent representations to Plaintiff and the Class and negligently concealing material facts from them, as set forth herein. 932. Cricket knew, or had reason to know, that Plaintiffs and the Class would reasonably rely on the representations and concealments which if erroneous, would cause loss, injury or damage. 943. Plaintiff and the Class justifiably and reasonably took actions to their detriment as alleged herein, by paying Cricket significantly more for their CDMA handsets than they were worth, in reliance on the negligent representations and concealments. COUNT V MARYLAND CONSUMER PROTECTION ACT 954. Plaintiff incorporates herein by reference as though fully set forth the allegations in paragraphs 1 through 621 of this Complaint, as if each and every allegation is set forth fully herein. 965. Cricket is a merchant within the meaning of the Maryland Consumer Protection Act ("MCPA"), MD. CODE ANN., COMM. LAW § 13-101(g), and is subject to all of the MCPA's provisions prohibiting unfair or deceptive trade practices including those in MD. CODE ANN., COMM. LAW §§ 13-303 and 13-301. 976. Cricket's failure to disclose and its concealment from Plaintiff and members of the Class of the material facts as set forth herein constitutes unfair and deceptive trade practices JA 132 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 136 of 426 4 in violation of the MCPA, §§ 13-303 and 13-301(1), (2)(i) and (iv) and (3). If Plaintiff and members of the Class had known the material facts related to the CDMA handsets, they would not have purchased the handsets or would have required a significantly lower price. 987. On information and belief, Plaintiff avers that Cricket systematically sold CDMA handsets during the Class Period which were not compatible with AT&T's GSM cellular network and retailed these CDMA handsets to the public without disclosing the impending inoperability of the handsets to its customers, in violation of the MCPA, in order to illegally increase its profits. 998. Cricket's acts and omissions as aforesaid, including its failure to disclose and concealment of the material facts, and its affirmative misrepresentation to Named Plaintiff and the Class, tended to and did deceive Plaintiff and members of the Class and constitutes an unfair and deceptive trade practice, in violation of MCPA §§ 13-303(1) - (3) and 13-301(1), (2)(i) and (iv), and/or (3). 10099. As a result of Cricket's unfair and deceptive trade practices, Named Plaintiff and the Class agreed to and did purchase their CDMA handsets, Plaintiff paid Cricket significantly more for their CDMA handsets than they were worth, and Named Plaintiff and the Class sustained the other damages and losses set forth above. COUNT VI FRAUD 1010. Plaintiff incorporates herein by reference as though fully set forth the allegations in paragraphs 1 through 621 of this Complaint, as if each and every allegation is set forth fully herein. JA 133 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 137 of 426 4 1021. Cricket and its authorized agents falsely represented to Plaintiff and other members of the Class that the CDMA handsets would be supported by Cricket for the useful life of the product. But for this representation, which Cricket and its authorized agents knew, or should have known, was false, Plaintiff and the other members of the Class would not have bought the CDMA handsets from Cricket. Moreover, but for this false representation, Plaintiff and the other members of the Class would not have then made a separate purchase from Cricket for the CDMA wireless service plan. 1032. Defendant failed to disclose material information that Cricket would not continue to support the CDMA handsets as a result of the AT&T acquisition and that the CDMA handsets were not compatible with AT&T's GSM cellular network. 1043. Defendant made these false and misleading representations and omissions knowingly, recklessly, and/or without regard for their truth or falsity, and with the intent to induce Plaintiff and other members of the Class to rely upon them by purchasing a CDMA handset from Cricket. 1054. Plaintiff and the other members of the Class justifiably relied upon the false representations and omissions made by Defendant by purchasing the CDMA handset from Cricket's authorized agent and then by purchasing a wireless service agreement from Cricket thereafter. 1065. As a direct and proximate result of the reliance upon the false representations and omissions of Defendant, Plaintiff and the other members of the Class have suffered damages, including, but not limited to, the loss of the use of the CDMA handsets and the loss of their market value, well prior to the end of the useful life of these cell phones. JA 134 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 138 of 426 4 1076. Because of the willful and wanton conduct of Defendant, Plaintiff and the other members of the Class are entitled to punitive, as well as actual, damages. COUNT VII VIOLATION OF THE MAGNUSON-MOSS WARRANTY ACT 108. Named Plaintiff re-alleges and incorporates herein by reference the allegations in the foregoing paragraphs as if fully set forth below. 109. Congress enacted the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq. (the "Act") in 1975 in response to widespread complaints from consumers that many warranties were misleading and deceptive and were not being honored. To remedy this problem of deception and failure to honor warranties, the Act imposes civil liability on any "warrantor" for, inter alia, failing to comply with any obligation under a written warranty and/or implied warranty. 15 U.S.C. § 2310(d)(1). The Act further authorizes a "suit for damages and other legal and equitable relief." Id. The Act authorizes the award of attorneys' fees and expressly authorizes class actions. 15 U.S.C. § 2310(e). 110. Cricket is a "warrantor" within the meaning of Section 2301(5) of the Act. 111. Named Plaintiff and other members of the Class are "consumers" within the meaning of Section 2301(3) of the Act. 112. Cricket breached express warranties because the CDMA handsets sold did not conform to the description of the CDMA handsets. Cricket's affirmations of fact concerning the mobile telephones, and descriptions of the mobile telephones, which Cricket make to Plaintiff and the Class, relating ot the mobile telephones and part of the basis of the bargain, created an JA 135 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 139 of 426 4 express warranty that the mobile telephones would operate on a nationwide network providing unsurpassed coverage. 113. Cricket breaches of the implied warranties of merchantability and fitness for a particular purpose as alleged herein, violate the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq., including 15 U.S.C. § 2310(d). 114. Cricket knew, at the time of sale, of the defects in the mobile telephones sold to Plaintiff and the Class Members which breached the express warranties and implied warranties of merchantability and fitness for a particular purpose. 115. Named Plaintiff contacted Cricket and asked Cricket to cure the defect in his mobile telephone by replacing it with a usable and comparable CDMA handset or by unlocking his handset so that he could use it on another CDMA wireless provider's network. Cricket refulsed to cure the defect or to replace or unlock Named Plaintiff's handset. 116. As a result of Cricket's violation of the Act, Named Plaintiff and the Class sustained the losses and damages described herein. PRAYER FOR RELIEF WHEREFORE, Plaintiff, on behalf of himself and all similarly situated individuals, demands judgment against Defendant as follows: (1) Declaring this action to be a proper class action maintainable pursuant to Rule 23(a) and Rule 23(b)(3) of the Federal Rules of Civil Procedure and declaring Plaintiff and their counsel to be representatives of the Class; JA 136 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 140 of 426 4 (2) Requiring Defendant to replace the CDMA handsets with comparable GSM handsets free of charge; (3) Awarding actual damages to Plaintiff and the Class; (4) Awarding punitive damages to Plaintiff and the Class under Counts II, IV and VI; (5) Awarding Plaintiff and the Class costs and disbursements and reasonable allowances for the fees of counsel and experts, and reimbursement of expenses; (6) Awarding pre-judgment and post-judgment interest on all sums awarded to Named Plaintiff and the Class; and (7) Awarding such other and further relief the Court deems just and equitable. Respectfully submitted, Z LAW, LLC Dated: February 10, 2017 ________/s/___28191__ _____________ Cory L. Zajdel (Fed. Bar No. 28191) 2345 York Road01 Main Street, Ste. B2- 13D TimoniumReisterstown, MD 21093136 (443) 213-1977 clz@zlawmaryland.com Oren S. Giskan (pending pro hac vice) Catherine E. Anderson (pending pro hac vice) Giskan Solotaroff Anderson & Stewart, LLP 11 Broadway, Suite #2150 New York, NY 10004 (212) 847-8315 JA 137 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 141 of 426 4 Attorneys for Plaintiff DEMAND FOR JURY TRIAL Plaintiff and the Class request a jury trial for any and all Counts for which a trial by jury is permitted by law. ________/s/___28191__ _____________ Cory L. Zajdel (Fed. Bar No. 28191) JA 138 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 142 of 426 UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND (Baltimore Division) TIM BOND, on his own behalf and on behalf of all others similarly situated, Plaintiffs, Civil Action No. 1:15-cv-923-MJG v. CRICKET COMMUNICATIONS, LLC, Defendant. STIPULATION CONCERNING PLAINTIFF'S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT Plaintiff Tim Bond and Defendant Cricket Communications, LLC ("Cricket"), by and through their respective undersigned counsel, submit the following stipulation to consent to an Order (1) lifting the stay entered in this case to permit Plaintiff to seek leave to file a Second Amended Complaint and (2) granting leave to file a Second Amended Complaint, pursuant to the conditions outlined in this stipulation. In support, the parties state as follows: 1. On March 31, 2015, Plaintiff filed a putative Class Action Complaint seeking relief for himself and a proposed class of all consumers who purchased CDMA wireless devices from AT&T, Inc. between July 12, 2013 to the present. Dkt. No. 1. 2. On May 8, 2015, Plaintiff filed a First Amended Class Action Complaint and substituted the current Defendant Cricket in place of AT&T, Inc. Dkt. No. 3. The complaint raised six counts: breach of implied warranty of merchantability (count I); fraudulent concealment (count II); money had and received/unjust enrichment (count III); negligent misrepresentation (count IV); Maryland Consumer Protection Act (count V); and fraud (count VI). 1 JA 139 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 143 of 426 3. On July 13, 2015, pursuant to the Federal Arbitration Act, 9 U.S.C. §§ 1-16, Cricket filed a Motion to Compel Arbitration, in which it asked this Court to enter an order (1) compelling Plaintiff to arbitrate his claims against Cricket on an individual basis and (2) staying further proceedings regarding those claims pending the outcome of arbitration. Dkt. No. 15. 4. On January 12, 2016, this Court granted Cricket's Motion to Compel Arbitration as to all claims in Plaintiff's First Amended Complaint, stayed proceedings "pending the outcome of arbitration," and administratively closed this case. Dkt. No. 19 (Order); Dkt. No. 18 (Memorandum Opinion). 5. On February 10, 2017, Plaintiff filed a Motion Requesting Leave to File Second Amended Class Action Complaint. Dkt. No. 21. 6. In his Second Amended Complaint, Plaintiff has added an additional count for "Violations of the Magnusson Moss Warranty Act" (count VII). 7. Counsel for the parties have met and conferred concerning the Motion. 8. In this stipulation, Plaintiff represents that: a. Plaintiff seeks leave to file his Second Amended Complaint solely to pursue a new claim under the federal Magnusson Moss Warranty Act (MMWA). Dkt. No. 21 at 2 n.1. b. Plaintiff agrees that the prior Order compelling arbitration is law of the case and binds him to arbitrate all of the claims contained in the First Amended Complaint (subject to appellate review), which correspond to all of the claims listed in the proposed Second Amended Complaint apart from the new MMWA claim. c. Plaintiff recognizes that, if this Court grants leave to file the proposed Second Amended Complaint, Cricket intends to move to compel arbitration of all claims, and 2 JA 140 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 144 of 426 represents that the grounds on which Plaintiff intends to respond to the arbitration motion are that the MMWA does not permit Plaintiff's claims to be arbitrated. 9. In light of these representations, Cricket will not object to lifting the stay in this case for the sole purpose of allowing Plaintiff to pursue his new MMWA claim. 10. The parties agree that Cricket may respond to the Second Amended Class Action Complaint by moving to compel arbitration, and that Plaintiff's arguments in response will be limited to those identified in the representations contained in Paragraph 8, above. 11. The parties further agree that Plaintiff will not re-litigate any facts or introduce any new evidence related to arbitration or other subjects, and will not seek to reopen counts I-VI or any other claim previously litigated and compelled by this Court to arbitration. Respectfully Submitted, Dated: February 24, 2017 /s/ Archis A. Parasharami Archis A. Parasharami MAYER BROWN LLP 1999 K Street, NW Washington, DC 20006 Tel: (202) 263-3000 Fax: (202) 263-3300 aparasharami@mayerbrown.com bwebb@mayerbrown.com Counsel for Defendant Cricket Communications, LLC /s/ Cory L. Zajdel (signed by Archis A. Parasharami with permission of Cory L. Zajdel) Cory L. Zajdel (Fed. Bar No. 28191) Z Law, LLC 2345 York Road, Ste. B-13 Timonium, MD 21093 (443) 213-1977 clz@zlawmaryland.com 3 JA 141 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 145 of 426 Oren S. Giskan Catherine E. Anderson Giskan Solotaroff Anderson & Stewart, LLP 11 Broadway, Suite #2150 New York, NY 10004 Counsel for Plaintiff Tim Bond 4 JA 142 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 146 of 426 JA 143 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 147 of 426 JA 144 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 148 of 426 JA 145 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 149 of 426 JA 146 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 150 of 426 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND TIM BOND, on his own behalf * and on behalf of all others similarly situated * Plaintiffs * vs. * CIVIL ACTION NO. MJG-15-923 CRICKET COMMUNICATIONS, LLC * Defendant * * * * * * * * * * ORDER GRANTING UNOPPOSED MOTION Pursuant to, and subject to the conditions of, the parties' stipulation, [ECF No. 26], the Motion Requesting Leave to File Second Amended Class Action Complaint [ECF No. 21] is GRANTED. The Second Amended Class Action Complaint [ECF No. 21-2] is deemed filed this date. SO ORDERED, this Tuesday, March 07, 2017. /s/__________ Marvin J. Garbis United States District Judge JA 147 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 151 of 426 4 IN THE UNITED STATES DISTRICT FOR THE DISTRICT OF MARYLAND (Baltimore Division) TIM BOND JURY TRIAL DEMANDED on his own behalf and on behalf of all others similarly situated, Plaintiffs, v. CRICKET COMMUNICATIONS, LLC Case No. 1:15-cv-923-WDQ Defendant. SECOND AMENDED CLASS ACTION COMPLAINT Plaintiff Tim Bond ("Plaintiff" or "Bond") b r i n g s this class action complaint individually and in a representative capacity on behalf all others similarly situated (the "Class") against defendant Cricket Communications, LLC. I. Preliminary Statement 1. On July 12, 2013, AT&T announced its agreement to acquire Cricket Communications Inc. 2. After acquiring Cricket Communications Inc., AT & T formed Cricket Communications, LLC ("Cricket") to carry on the business of the former Cricket Communications, Inc. 3. From July 12, 2013 to the present (the "Class Period"), Cricket, both directly and through its authorized agents, has offered for sale and sold to the consuming public CDMA handsets. 1 JA 148 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 152 of 426 4 4. Prior to the Class Period, AT&T and Cricket decided that on or after the acquisition of Cricket, AT&T would discontinue all CDMA service and require all Cricket customers to use AT&T's GSM cellular network. 5. Prior to the Class Period, Cricket knew or should have known that AT&T intended to discontinue the use of CDMA handsets in favor of AT&T's GSM service. 6. During the Class Period, Cricket knew, or reasonably should have known, that the CDMA handsets sold would be inoperable as a result of the acquisition by AT&T. 7. During the Class Period, Cricket affirmatively represented that all CDMA handsets sold were compatible with Cricket's cellular phone service. 8. During the Class Period, Cricket failed to disclose that these CDMA handsets had an artificially limited useful life and that the phones would not be supported for the expected life of the phone. 9. Included in the CDMA handsets which were rendered inoperable by the AT&T acquisition is the Plaintiff's Samsung Galaxy S4, which he purchased from Cricket in or around December 2013. 10. Plaintiff asserts claims individually on behalf of the Class. II. The Parties 11. Plaintiff is a citizen of M a r y l a n d c u r r e n t l y r e s i d i n g a t 1 5 0 Westminster Pike, Reisterstown, MD 21136 (Baltimore County, MD). He is a natural person over the age of 21 and otherwise sui juris. 2 JA 149 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 153 of 426 4 12. Defendant Cricket Communications, LLC is a limited liability company formed in the State of Delaware and maintains its corporate headquarters in Wilmington, Delaware. On July 12, 2013, AT&T agreed to buy Leap Wireless International, Inc., for $1.2 billion. As part of the agreement, AT&T would acquire the Leap Wireless subsidiary, Cricket Communications Inc. ("Cricket"), which provided wireless products and services to approximately 4.6 million subscribers. On March 13, 2014, the Federal Communications Commission approved the merger between AT&T and Leap Wireless. Since that time, Cricket has functioned as a unit of AT&T as Cricket Communications, LLC. III. JURISDICTION AND VENUE 13. This Court has jurisdiction over this action pursuant to the Class Action Fairness Act of 2005 ("CAFA"), Pub. L. No. 109-2, 119 Stat. 4 (codified in various sections of 28 U.S.C.). 14. Plaintiff Tim Bond is a citizen of Maryland. Defendant is a citizen of Delaware and Texas but is registered to do business in Maryland and nationwide. The amount in controversy exceeds $5,000,000 and there are at least one hundred members of the putative class. 15. This Court has jurisdiction over Defendant because it either is a foreign corporation authorized to conduct business in Maryland, is doing business in Maryland and has registered with the Maryland Secretary of State, or do sufficient business in Maryland, have sufficient minimum contacts with Maryland, or otherwise intentionally avail themselves of the Maryland consumer market through the promotion, marketing and sale of wireless products and services in Maryland. This purposeful availment renders the exercise of jurisdiction by this 3 JA 150 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 154 of 426 4 Court over Defendant and its affiliated or related entities permissible under traditional notions of fair play and substantial justice. 16. In addition, this Court has subject-matter jurisdiction under CAFA because the amount in controversy exceeds $5 million and diversity exists between Plaintiff and the Defendants. 28 U.S.C. § 1332(d)(2). Further, in determining whether the $5 million amount in controversy requirement of 28 U.S.C. § 1332(d) (2) is met, the claims of the putative class members are aggregated. 28 U.S.C. § 1332(d)(6). 17. Venue is proper in this forum pursuant to 28 U.S.C. § 1391 because Defendant transacts business and may be found in this District and a substantial portion of the practices complained of herein occurred in the District of Maryland. 18. All conditions precedent to this action have occurred, been performed, or have been waived. IV. Factual Allegations 19. Two of the predominant cellular voice technologies in the United States are Global Systems for Mobile communications ("GSM") and Code Division Multiple Access ("CDMA"). 20. GSM was developed by the European Telecommunications Standards Institute to replace the analog networks. In the United States, GSM is the technology behind AT&T and T- Mobile USA. Current GSM devices use a Security Identity Module, or SIM, card. This card contains the International Mobile Subscriber Identity (IMSA) Number, carrier information, and consumer contact information. Assuming the phone is not locked by the carrier, the SIM card slot allows the consumer to migrate the phone between carriers. 4 JA 151 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 155 of 426 4 21. CDMA was developed by Qualcomm and has been the technology preferred by Sprint and Verizon. Rather than having a SIM card for data storage, data is stored on the CDMA phone itself. This has made moving a CDMA phone between carriers difficult, if not impossible. 22. At all relevant times, Cricket has marketed, offered for sale, and sold handheld devices compatible with the CDMA network. 23. Each of the CDMA handsets sold by Cricket included an express statement, constituting an express warranty, that the telephone included "Nationwide Coverage" and that "Cricket's network provides unsurpassed nationwide coverage." 24. In July 2013, AT&T reached an agreement to purchase the assets and assume the liabilities of Leap Wireless, the parent of Cricket, for $1.2 Billion. AT & T retained Cricket's directors and management in addition to its 3,400 employees. The July 12, 2013 press release of AT&T and Leap Wireless provided, in relevant part, the following information about the acquisition: AT&T will acquire all of Leap's stock and wireless properties, including licenses, network assets, retail stores and approximately 5 million subscribers. . . . Leap's network covers approximately 96 million people in 35 U.S. states. Leap currently operates -- under the Cricket brand -- a 3G CDMA network, as well as a 4G LTE network covering 21 million people in these areas, and has 3,400 employees. AT&T will retain the Cricket brand name, provide Cricket customers with access to AT&T's award-winning 4G LTE mobile network, utilize Cricket's distribution channels, and expand Cricket's presence to additional U.S. cities. The result will be increased competition, better device choices, improved customer care and a significantly enhanced mobile Internet experience for consumers seeking low-cost prepaid wireless plans. . . . The acquisition includes spectrum in the PCS and AWS bands covering 137 million people and is largely complementary to AT&T's existing spectrum 5 JA 152 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 156 of 426 4 licenses. Immediately after approval of the transaction, AT&T plans to put Leap's unutilized spectrum – which covers 41 million people -- to use in furthering its 4G LTE deployment and providing additional capacity and enhanced network performance for customers' growing mobile Internet usage. Owners of approximately 29.8% of Leap's outstanding shares have entered into an agreement to vote in favor of the transaction. The transaction is subject to review by the Federal Communications Commission and the Department of Justice and to other customary closing conditions. AT&T expects the transaction to close in six to nine months. 25. Thus, according to the July 12, 2013 press release, AT&T intended to move customers from Cricket's CDMA network to AT&T's GSM network and Cricket/AT&T further intended not to support CDMA handsets that could not be migrated to the GSM network. 26. In fact, many CDMA handsets cannot be moved to a GSM network because Cricket locked the CDMA handsets it sold. 27. Cricket knew and failed to disclose this material information to customers. 28. Cricket, moreover, continued to offer for sale and sell to the consuming public CDMA handsets that are not compatible with and cannot be migrated to the GSM network. 29. Cricket thus knew, and failed to disclose, that many of the CDMA handsets it offered for sale and sold to the consuming public would be rendered inoperable as a result of the AT&T acquisition (i.e. not able to make telephone calls or other forms of mobile communications). 30. For instance, Plaintiff purchased a Samsung Galaxy 4S from an authorized agent of Cricket in or around December 2013, more than five months after AT&T acquired Cricket. 6 JA 153 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 157 of 426 4 31. Thereafter, Plaintiff entered into a wireless service agreement with Cricket to use the Samsung Galaxy 4S on Cricket's CDMA compatible cellular network. 32. Plaintiff received two different receipts, one for the purchase of the phone and one for the purchase of the wireless service agreement. 33. In January 2015, AT&T publicly announced that the legacy CDMA markets covered by its Cricket unit will be turned off this year, in a three-phase switch-off plan. See https://www.telegeography.com/products/commsupdate/articles/2015/01/09/att-confirms- september-shutdown-of-cricket-cdma-network/. 34. As per the AT&T public announcement in January 2015, the CDMA wireless service will be terminated on a rolling basis by bill cycle. Customers in the initial 'sunset markets' will have their service terminated by bill cycle beginning March 15, 2015 with the CDMA network in those markets being turned off completely on 15 April 2015. Initial (March/April) sunset markets include: Washington, DC; Little Rock, Fayetteville and Fort Smith (Arkansas); Wilmington (Delaware); Chicago and Northern Illinois (Illinois); South Bend (Indiana); Baltimore (Maryland); Atlantic City (New Jersey); Buffalo, Rochester and Syracuse (New York) and Philadelphia (Pennsylvania). 35. The second group of markets slated for shutdown in May/June 2015 consists of: Wichita (Kansas); Albuquerque and Las Cruces (New Mexico); Las Vegas (Nevada) and Oklahoma City and Tulsa (Oklahoma). 36. All remaining legacy CDMA markets will be turned off by mid-September 2015. 37. Cricket announced that its customers who purchased an iPhone with original CDMA (including the iPhone 4s, iPhone 5, iPhone 5s or iPhone 5c) will receive a free, 7 JA 154 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 158 of 426 4 replacement SIM card that enables the iPhone to operate on Cricket's new 4G and 4G LTE nationwide GSM network. However, persons who purchased any other type of cell phone from Cricket would be required to purchase a new handset. 38. As Cricket explained on its website: "The new Cricket's nationwide 4G network uses GSM (Global System for Mobile Communications) technology that is the global standard for mobile service while the original Cricket uses CDMA network technology. That means that with the exception of original Cricket iPhone 4S, iPhone 5, iPhone 5S and iPhone 5C, your current CDMA phone will not work on the new Cricket network. 39. In or around February 2015, Plaintiff went into a Cricket store in Maryland to pay his bill for February service. When Plaintiff was in the Cricket store, Cricket turned his Samsung Galaxy S4 phone off. Plaintiff attempted to have his phone turned back on through AT&T and other service providers, including Sprint, Virgin Mobile and T-Mobile. But none was able to revive Plaintiff's phone. 40. Plaintiff's phone has no value or only a de minimis value due to its inoperability on any cellular network. 41. Plaintiff is not alone. Indeed, several consumers have made anonymous complaints on the web page forum: https://forums.att.com/t5/General-Account-Questions/AT- amp-T-Merger-with-Cricket-Sucks/td-p/4096500, concerning Cricket's failure to disclose that the CDMA handheld devices which it offered for sale and sold to the consuming public as of July 12, 2013, would be inoperable as a result of the AT&T acquisition, including the following: Blownaway Sep 26, 2014 8:26:33 AM 8 JA 155 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 159 of 426 4 This merger of AT&T and Cricket is horrible. First I just bought an expensive Samsung Galaxy S4 not even a year ago and I am being told that I have to buy a brand new phone when the merger is fully complete (March 2015). This is ridiculous - who is sitting around with an extra $400 a year to purchase a new phone. As large a company as AT&T they do not have the capability to switch my phone over. SteveJodylynn Oct 29, 2014 12:28:27 PM I agree. It is just a few months from when my expensive CDMA Cricket smartphone (less than a year old) becomes inoperable and I've heard nothing from AT&T or Cricket about the transition plan, other than I will be forced to shell out hundreds for a new phone that is compatible with AT&T's network. Chiefsfan Nov 29, 2014 5:43:14 PM. . . AT&T is screwing over thousands of Cricket customers and they DON'T CARE ONE BIT! Cricket shouldn't have been selling phones over the past 7-8 months, since the merger with AT&T, knowing that they won't work after March, but they continue to do just that. The point is that AT&T is gaining millions of unearned $ by forcing customers to buy new ridiculously expensive phones (oh, but they'll give you a free deal on their piece-o-crap phones (which are all of them other than the Galaxy & iphones) all under the guise of "providing better service". What a crock!! WE ALL NEED TO BOYCOTT AT&T ONCE THEY RENDER OUR PHONES USELESS!!! hatenewcricket Feb 11, 2015 9:16:13 PM I know what you mean I got my S4 just befor[e] they annou[n]ced the switch, I believe they knew what was going to happen and sold me an already worthless phone this whole thing has been a rip off and is unfair to cricked customers who are getting screwed V. CLASS ALLEGATIONS 42. Plaintiff brings this action against Defendant pursuant to Rule 23 of the Federal Rules of Civil Procedure on behalf of himself and all other persons similarly situated. Plaintiff seeks to represent the following classes: All persons nationwide during the period July 12, 2013 to the present, who purchased a CDMA handset from Cricket or through its authorized agents. 9 JA 156 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 160 of 426 4 Excluded from this class are Defendants, their affiliates, subsidiaries, agents, board members, directors, officers, and/or employees. 43. Plaintiff reserves the right to modify or amend the definition of the proposed Class before the Court determines whether certification is appropriate. 44. Defendant subjected Plaintiff and the respective Class members to the same unfair, unlawful, and deceptive practices and harmed them in the same manner. 45. The Class, as defined above, is identifiable. 46. The Named Plaintiff is a member of the Class. 47. The proposed class is so numerous that joinder of all members would be impracticable. Cricket sold thousands of CDMA handsets during the Class Period in the State of Maryland and nationwide. 48. The individual class members are ascertainable, as the names and addresses of all class members can be identified in the business records maintained by Defendant. 49. While the precise number of class members can only be obtained through discovery, the numbers are clearly more than can be consolidated in one complaint such that it would be impractical for each member to bring suit individually. 50. There are questions of law and fact that are common to Plaintiff's and class members' claims. These common questions predominate over any questions that go particularly to any individual member of the Class. 51. Among such common questions of law and fact are the following: a. Whether Cricket offered for sale and sold to the consuming public CDMA handsets during the Class Period; 10 JA 157 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 161 of 426 4 b. Whether Cricket knew and failed to disclose that the CDMA handsets would be inoperable upon completion of the merger with AT&T; c. Whether Cricket knew at the time of sale that Plaintiff and Class Members intended to use the mobile telephones it sold to them to make telephone calls and mobile communications; d. Whether Cricket breached written warranties in its sales of mobile telephones to Plaintiff and other Class Members; e. Whether Cricket breached the implied covenant of good faith and fair dealing by offering for sale and selling soon to be inoperable CDMA handsets; f. Whether Cricket breached the implied warranty of fitness for a particular purpose in its sales of mobile telephones to Plaintiff and other Class Members; g. Whether Cricket made material misstatements of fact and/or knew and failed to disclose material information concerning the CDMA handsets which it sold to Plaintiff and other members of the class, including facts that the CDMA handsets would be inoperable as a result of the AT&T acquisition, that Cricket planned to convert to the GSM network and that as a result, the CDMA handsets had an artificially limited useful life; h. Whether Cricket breached the implied warranty of merchantability by selling Plaintiff and the other members of the Class CDMA handsets which it knew had an artificially limited useful life; i. Whether Cricket violated the Magnuson-Moss Warranty Act in its transactions with Plaintiff and other Class Members; and j. Whether Plaintiff and the Class Members are entitled to damages and/or injunctive relief as a result of Defendant's conduct. 52. Plaintiff's claims are typical of the claims o f t h e cl as s because of the similarity, uniformity, and common purpose of Defendant's unlawful conduct. Each class member has sustained, and will continue to sustain, damages in the same manner as Plaintiff as a result of Defendant's wrongful conduct. 11 JA 158 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 162 of 426 4 53. Plaintiff is an adequate representative of the class he seeks to represent and will fairly and adequately protect the interests of that class. 54. Plaintiff is committed to the vigorous prosecution of this action and has retained competent counsel, experienced in litigation of this nature, to represent them. 55. There is no hostility between Plaintiff and the unnamed class members. 56. Plaintiff anticipates no difficulty in the management of this litigation as a class action. 57. To prosecute this case, Plaintiff has chosen the undersigned law firms, which are experienced in class action litigation and have the financial and legal resources to meet the substantial costs and legal issues associated with this type of litigation. 58. The questions of law or fact common to Plaintiff's and each Class Member's claims predominate over any questions of law or fact affecting only individual members of the class. 59. All claims by Plaintiff and the unnamed class members are based on Cricket's sale of CDMA handsets to the consuming public when it knew, or reasonably should have known and failed to disclose that these handsets would be inoperable upon completion of the AT&T merger. 60. Common issues predominate where, as here, liability can be determined on a class-wide basis, even when there will be some individualized damages determinations. 61. As a result, when determining whether common questions predominate, courts focus on the liability issue, and if the liability issue is common to the class as is the case at bar, common questions will be held to predominate over individual questions. 12 JA 159 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 163 of 426 4 62. A class action is superior to individual actions in part because of the non- exhaustive factors listed below: (a) Joinder of all class members would create extreme hardship and inconvenience for the affected customers as they reside all across the states; (b) Individual claims by class members are impractical because the costs to pursue individual claims exceed the value of what any one class member has at stake. As a result, individual class members have no interest in prosecuting and controlling separate actions; (c) There are no known individual class members who are interested in individually controlling the prosecution of separate actions; (d) The interests of justice will be well served by resolving the common disputes of potential class members in one forum; (e) Individual suits would not be cost effective or economically maintainable as individual actions; and (f) The action is manageable as a class action. VI. CAUSES OF ACTION COUNT I BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY 63. Plaintiff incorporates by reference paragraphs 1 through 62 above, as if each and every allegation is set forth fully herein. 64. At all relevant times, Cricket was a merchant with respect to the CDMA handsets. 65. Plaintiff purchased his now inoperable CDMA handset from an authorized agent of Cricket. At the time of purchase, Cricket and it authorized agents were in the business of selling CDMA handsets and/or by course of business held itself out as having special knowledge or skill regarding those handsets. 13 JA 160 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 164 of 426 4 66. A warranty that the CDMA handsets were in merchantable condition was implied by law in the sale of these handsets by Cricket and its agents. 67. The CDMA handsets which Cricket and its authorized agents sold to Plaintiff and other members of the class were not in merchantable condition and are not fit for the ordinary purpose for which handsets are used and/or were not of the same quality of those generally acceptable in the trade. 68. In fact, the CDMA handsets sold by Cricket and its authorized agents, including the Samsung Galaxy 4S sold to Plaintiff, were unmerchantable. 69. Specifically, Cricket knew and failed to disclose that these CDMA handsets would be inoperable as a result of the AT&T acquisition and Cricket's plan to convert to the GSM network. As a result, the CDMA handsets had an artificially limited useful life. 70. Plaintiff and other members of the Class have had sufficient direct dealings with either Cricket or its authorized agents to establish vertical privity of contract between themselves and Defendant. Nevertheless, privity is not required in this case because Plaintiff and the other members of the Class are intended third- party beneficiaries of contract between Cricket and its authorized agents. Specifically, Plaintiff and the other members of the Class are the intended beneficiaries of Cricket's implied warranties. Cricket's authorized agents were not intended to be the ultimate consumers of the CDMA handsets. COUNT II FRAUDULENT CONCEALMENT 71. Plaintiff incorporates by reference paragraphs 1 through 62 above, as if each and every allegation is set forth fully herein. 14 JA 161 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 165 of 426 4 72. As set forth above, Cricket knew and failed to disclose and/ or suppressed and/or concealed material facts concerning the CDMA handsets, including the Samsung Galaxy 4S, which it sold to Plaintiff and other members of the class. 73. These concealed facts were material because they directly impacted the reliability and use of the handsets. 74. Cricket owed Plaintiff and the other members of the Class a duty to disclose that the CDMA handsets would be rendered inoperable by the AT&T acquisition and Cricket's plans to convert to the GSM network because it possessed exclusive and superior knowledge and access to these facts. 75. Cricket knew and failed to disclose that the CDMA handsets had an artificially limited useful life and that the CDMA handsets were not compatible with AT&T's GSM cellular network. 76. Cricket actively concealed and/or suppressed these material facts, in whole or in part, with the intent to induce Plaintiff and the other members of the Class to purchase the CDMA handsets from Cricket and its authorized agents and to pay more than they otherwise would have paid had these material facts that the CDMA handsets would be inoperable as a result of the AT&T acquisition and Cricket's plans to convert to the GSM network been disclosed. 77. Cricket's conduct was oppressive, fraudulent, malicious and in reckless disregard of the rights of Plaintiff and the Class. 15 JA 162 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 166 of 426 4 78. Plaintiff and the other members of the Class were not aware of the omitted material facts and would not have acted as they did if they had known of the concealed and/or suppressed facts. 79. As a result of Cricket's concealment and/or suppression of material facts concerning the CDMA handsets, Plaintiff and the Class have sustained damages. COUNT III MONEY HAD AND RECEIVED/UNJUST ENRICHMENT 80. Plaintiff incorporates herein by reference as though fully set forth the allegations in paragraphs 1 through 62 of this Complaint, as if each and every allegation is set forth fully herein. 81. As set forth above, Cricket charged and collected payments for CDMA handsets that would become inoperable in amounts that exceeded the value of these CDMA handsets, which conferred a substantial benefit on Cricket. 82. Cricket was aware of, and had knowledge of, this substantial benefit. 83. By doing so, Cricket has come into the possession of money in the form of payments that it had, and has no right to at law or in equity. 84. It would be inequitable for Cricket to retain any such monies that it had no legal right to charge. 85. As a consequence, Named Plaintiff and the members of the Class have been damaged. 16 JA 163 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 167 of 426 4 COUNT IV NEGLIGENT MISREPRESENTATION 86. Plaintiff incorporates herein by reference as though fully set forth the allegations in paragraphs 1 through 62 of this Complaint, as if each and every allegation is set forth fully herein. 87. Cricket and its agents or employees negligently made the false and misleading representations and omissions alleged herein, including but not limited to the representations that its CDMA handsets would pass without objection in the trade under the contract description and that the CDMA handsets sold were compatible with and would continue to be compatible with Cricket's CDMA's cellular service for the useful life of the handset. 88. Cricket's agents or employees negligently failed to disclose the material fact that its handsets would become inoperable during its useful lifespan. 89. Cricket's agents or employees negligently failed to disclose that the prices of the CDMA handsets did not accurately represent its value, intending that Plaintiff and the Class would reasonably rely upon the false and misleading representations and omissions to their detriment, which they did. 90. As a direct and proximate result of Cricket's negligent statements, representations, and omissions, Plaintiff and the Class were induced, ab initio, to purchase a CDMA handset from Cricket for a price significantly higher than they were worth. 91. Cricket, their agents or employees, owed a duty of care to Plaintiff and the Class. 17 JA 164 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 168 of 426 4 92. Cricket recklessly and negligently breached the duty of care they owed to Plaintiff and the Class by making negligent representations to Plaintiff and the Class and negligently concealing material facts from them, as set forth herein. 93. Cricket knew, or had reason to know, that Plaintiffs and the Class would reasonably rely on the representations and concealments which if erroneous, would cause loss, injury or damage. 94. Plaintiff and the Class justifiably and reasonably took actions to their detriment as alleged herein, by paying Cricket significantly more for their CDMA handsets than they were worth, in reliance on the negligent representations and concealments. COUNT V MARYLAND CONSUMER PROTECTION ACT 95. Plaintiff incorporates herein by reference as though fully set forth the allegations in paragraphs 1 through 62 of this Complaint, as if each and every allegation is set forth fully herein. 96. Cricket is a merchant within the meaning of the Maryland Consumer Protection Act ("MCPA"), MD. CODE ANN., COMM. LAW § 13-101(g), and is subject to all of the MCPA's provisions prohibiting unfair or deceptive trade practices including those in MD. CODE ANN., COMM. LAW §§ 13-303 and 13-301. 97. Cricket's failure to disclose and its concealment from Plaintiff and members of the Class of the material facts as set forth herein constitutes unfair and deceptive trade practices in violation of the MCPA, §§ 13-303 and 13-301(1), (2)(i) and (iv) and (3). If Plaintiff and 18 JA 165 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 169 of 426 4 members of the Class had known the material facts related to the CDMA handsets, they would not have purchased the handsets or would have required a significantly lower price. 98. On information and belief, Plaintiff avers that Cricket systematically sold CDMA handsets during the Class Period which were not compatible with AT&T's GSM cellular network and retailed these CDMA handsets to the public without disclosing the impending inoperability of the handsets to its customers, in violation of the MCPA, in order to illegally increase its profits. 99. Cricket's acts and omissions as aforesaid, including its failure to disclose and concealment of the material facts, and its affirmative misrepresentation to Named Plaintiff and the Class, tended to and did deceive Plaintiff and members of the Class and constitutes an unfair and deceptive trade practice, in violation of MCPA §§ 13-303(1) - (3) and 13-301(1), (2)(i) and (iv), and/or (3). 100. As a result of Cricket's unfair and deceptive trade practices, Named Plaintiff and the Class agreed to and did purchase their CDMA handsets, Plaintiff paid Cricket significantly more for their CDMA handsets than they were worth, and Named Plaintiff and the Class sustained the other damages and losses set forth above. COUNT VI FRAUD 101. Plaintiff incorporates herein by reference as though fully set forth the allegations in paragraphs 1 through 62 of this Complaint, as if each and every allegation is set forth fully herein. 19 JA 166 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 170 of 426 4 102. Cricket and its authorized agents falsely represented to Plaintiff and other members of the Class that the CDMA handsets would be supported by Cricket for the useful life of the product. But for this representation, which Cricket and its authorized agents knew, or should have known, was false, Plaintiff and the other members of the Class would not have bought the CDMA handsets from Cricket. Moreover, but for this false representation, Plaintiff and the other members of the Class would not have then made a separate purchase from Cricket for the CDMA wireless service plan. 103. Defendant failed to disclose material information that Cricket would not continue to support the CDMA handsets as a result of the AT&T acquisition and that the CDMA handsets were not compatible with AT&T's GSM cellular network. 104. Defendant made these false and misleading representations and omissions knowingly, recklessly, and/or without regard for their truth or falsity, and with the intent to induce Plaintiff and other members of the Class to rely upon them by purchasing a CDMA handset from Cricket. 105. Plaintiff and the other members of the Class justifiably relied upon the false representations and omissions made by Defendant by purchasing the CDMA handset from Cricket's authorized agent and then by purchasing a wireless service agreement from Cricket thereafter. 106. As a direct and proximate result of the reliance upon the false representations and omissions of Defendant, Plaintiff and the other members of the Class have suffered damages, including, but not limited to, the loss of the use of the CDMA handsets and the loss of their market value, well prior to the end of the useful life of these cell phones. 20 JA 167 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 171 of 426 4 107. Because of the willful and wanton conduct of Defendant, Plaintiff and the other members of the Class are entitled to punitive, as well as actual, damages. COUNT VII VIOLATION OF THE MAGNUSON-MOSS WARRANTY ACT 108. Named Plaintiff re-alleges and incorporates herein by reference the allegations in the foregoing paragraphs as if fully set forth below. 109. Congress enacted the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq. (the "Act") in 1975 in response to widespread complaints from consumers that many warranties were misleading and deceptive and were not being honored. To remedy this problem of deception and failure to honor warranties, the Act imposes civil liability on any "warrantor" for, inter alia, failing to comply with any obligation under a written warranty and/or implied warranty. 15 U.S.C. § 2310(d)(1). The Act further authorizes a "suit for damages and other legal and equitable relief." Id. The Act authorizes the award of attorneys' fees and expressly authorizes class actions. 15 U.S.C. § 2310(e). 110. Cricket is a "warrantor" within the meaning of Section 2301(5) of the Act. 111. Named Plaintiff and other members of the Class are "consumers" within the meaning of Section 2301(3) of the Act. 112. Cricket breached express warranties because the CDMA handsets sold did not conform to the description of the CDMA handsets. Cricket's affirmations of fact concerning the mobile telephones, and descriptions of the mobile telephones, which Cricket make to Plaintiff and the Class, relating to the mobile telephones and part of the basis of the bargain, created an 21 JA 168 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 172 of 426 4 express warranty that the mobile telephones would operate on a nationwide network providing unsurpassed coverage. 113. Cricket breaches of the implied warranties of merchantability and fitness for a particular purpose as alleged herein, violate the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq., including 15 U.S.C. § 2310(d). 114. Cricket knew, at the time of sale, of the defects in the mobile telephones sold to Plaintiff and the Class Members which breached the express warranties and implied warranties of merchantability and fitness for a particular purpose. 115. Named Plaintiff contacted Cricket and asked Cricket to cure the defect in his mobile telephone by replacing it with a usable and comparable CDMA handset or by unlocking his handset so that he could use it on another CDMA wireless provider's network. Cricket refused to cure the defect or to replace or unlock Named Plaintiff's handset. 116. As a result of Cricket's violation of the Act, Named Plaintiff and the Class sustained the losses and damages described herein. PRAYER FOR RELIEF WHEREFORE, Plaintiff, on behalf of himself and all similarly situated individuals, demands judgment against Defendant as follows: (1) Declaring this action to be a proper class action maintainable pursuant to Rule 23(a) and Rule 23(b)(3) of the Federal Rules of Civil Procedure and declaring Plaintiff and their counsel to be representatives of the Class; 22 JA 169 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 173 of 426 4 (2) Requiring Defendant to replace the CDMA handsets with comparable GSM handsets free of charge; (3) Awarding actual damages to Plaintiff and the Class; (4) Awarding punitive damages to Plaintiff and the Class under Counts II, IV and VI; (5) Awarding Plaintiff and the Class costs and disbursements and reasonable allowances for the fees of counsel and experts, and reimbursement of expenses; (6) Awarding pre-judgment and post-judgment interest on all sums awarded to Named Plaintiff and the Class; and (7) Awarding such other and further relief the Court deems just and equitable. Respectfully submitted, Z LAW, LLC Dated: February 10, 2017 ________/s/___28191__ _____________ Cory L. Zajdel (Fed. Bar No. 28191) 2345 York Road, Ste. B-13 Timonium, MD 21093 (443) 213-1977 clz@zlawmaryland.com Oren S. Giskan Catherine E. Anderson Giskan Solotaroff Anderson & Stewart, LLP 11 Broadway, Suite #2150 New York, NY 10004 (212) 847-8315 Attorneys for Plaintiff 23 JA 170 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 174 of 426 4 DEMAND FOR JURY TRIAL Plaintiff and the Class request a jury trial for any and all Counts for which a trial by jury is permitted by law. ________/s/___28191__ _____________ Cory L. Zajdel (Fed. Bar No. 28191) 24 JA 171 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 175 of 426 4 IN THE UNITED STATES DISTRICT FOR THE DISTRICT OF MARYLAND (Baltimore Division) TIM BOND 150 WESTMINSTER PIKE REISTERSTOWN, MD 21136 JURY TRIAL DEMANDED on his own behalf and on behalf of all others similarly situated, Plaintiffs, v. CRICKET COMMUNICATIONS, LLC Case No. 1:15-cv-923-WDQ 1209 ORANGE STREET WILMINGTON, DE 19801 SERVE ON: Archis A. Parasharami Mayer Brown LLP 1999 K Street, N.W. Washington, DC 20006 Defendant. FIRSECONDT AMENDED CLASS ACTION COMPLAINT Plaintiff Tim Bond ("Plaintiff" or "Bond") b r i n g s this class action complaint individually and in a representative capacity on behalf all others similarly situated (the "Class") against defendant Cricket Communications, LLC. I. Preliminary Statement 1. On July 12, 2013, AT&T announced its agreement to acquire Cricket Communications Inc. 2. After acquiring Cricket Communications Inc., AT & T formed Cricket Communications, LLC ("Cricket") to carry on the business of the former Cricket Communications, Inc. 1 JA 172 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 176 of 426 4 3. From July 12, 2013 to the present (the "Class Period"), Cricket, both directly and through its authorized agents, has offered for sale and sold to the consuming public CDMA handsets. 4. Prior to the Class Period, AT&T and Cricket decided that on or after the acquisition of Cricket, AT&T would discontinue all CDMA service and require all Cricket customers to use AT&T's GSM cellular network. 5. Prior to the Class Period, Cricket knew or should have known that AT&T intended to discontinue the use of CDMA handsets in favor of AT&T's GSM service. 6. During the Class Period, Cricket knew, or reasonably should have known, that the CDMA handsets sold would be inoperable as a result of the acquisition by AT&T. 7. During the Class Period, Cricket affirmatively represented that all CDMA handsets sold were compatible with Cricket's cellular phone service. 8. During the Class Period, Cricket failed to disclose that these CDMA handsets had an artificially limited useful life and that the phones would not be supported for the expected life of the phone. 9. Included in the CDMA handsets which were rendered inoperable by the AT&T acquisition is the Plaintiff's Samsung Galaxy S4, which he purchased from Cricket in or around December 2013. 10. Plaintiff asserts claims individually on behalf of the Class. 2 JA 173 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 177 of 426 4 II. The Parties 11. Plaintiff is a citizen of M a r y l a n d c u r r e n t l y r e s i d i n g a t 1 5 0 Westminster Pike, Reisterstown, MD 21136 (Baltimore County, MD). He is a natural person over the age of 21 and otherwise sui juris. 12. Defendant Cricket Communications, LLC is a limited liability company formed in the State of Delaware and maintains its corporate headquarters in Wilmington, Delaware. On July 12, 2013, AT&T agreed to buy Leap Wireless International, Inc., for $1.2 billion. As part of the agreement, AT&T would acquire the Leap Wireless subsidiary, Cricket Communications Inc. ("Cricket"), which provided wireless products and services to approximately 4.6 million subscribers. On March 13, 2014, the Federal Communications Commission approved the merger between AT&T and Leap Wireless. Since that time, Cricket has functioned as a unit of AT&T as Cricket Communications, LLC. III. JURISDICTION AND VENUE 13. This Court has jurisdiction over this action pursuant to the Class Action Fairness Act of 2005 ("CAFA"), Pub. L. No. 109-2, 119 Stat. 4 (codified in various sections of 28 U.S.C.). 14. Plaintiff Tim Bond is a citizen of Maryland. Defendant is a citizen of Delaware and Texas but is registered to do business in Maryland and nationwide. The amount in controversy exceeds $5,000,000 and there are at least one hundred members of the putative class. 15. This Court has jurisdiction over Defendant because it either is a foreign corporation authorized to conduct business in Maryland, is doing business in Maryland and has 3 JA 174 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 178 of 426 4 registered with the Maryland Secretary of State, or do sufficient business in Maryland, have sufficient minimum contacts with Maryland, or otherwise intentionally avail themselves of the Maryland consumer market through the promotion, marketing and sale of wireless products and services in Maryland. This purposeful availment renders the exercise of jurisdiction by this Court over Defendant and its affiliated or related entities permissible under traditional notions of fair play and substantial justice. 16. In addition, this Court has subject-matter jurisdiction under CAFA because the amount in controversy exceeds $5 million and diversity exists between Plaintiff and the Defendants. 28 U.S.C. § 1332(d)(2). Further, in determining whether the $5 million amount in controversy requirement of 28 U.S.C. § 1332(d) (2) is met, the claims of the putative class members are aggregated. 28 U.S.C. § 1332(d)(6). 17. Venue is proper in this forum pursuant to 28 U.S.C. § 1391 because Defendant transacts business and may be found in this District and a substantial portion of the practices complained of herein occurred in the District of Maryland. 18. All conditions precedent to this action have occurred, been performed, or have been waived. IV. Factual Allegations 19. Two of the predominant cellular voice technologies in the United States are Global Systems for Mobile communications ("GSM") and Code Division Multiple Access ("CDMA"). 20. GSM was developed by the European Telecommunications Standards Institute to replace the analog networks. In the United States, GSM is the technology behind AT&T and T- 4 JA 175 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 179 of 426 4 Mobile USA. Current GSM devices use a Security Identity Module, or SIM, card. This card contains the International Mobile Subscriber Identity (IMSA) Number, carrier information, and consumer contact information. Assuming the phone is not locked by the carrier, the SIM card slot allows the consumer to migrate the phone between carriers. 21. CDMA was developed by Qualcomm and has been the technology preferred by Sprint and Verizon. Rather than having a SIM card for data storage, data is stored on the CDMA phone itself. This has made moving a CDMA phone between carriers difficult, if not impossible. 22. At all relevant times, Cricket has marketed, offered for sale, and sold handheld devices compatible with the CDMA network. 23. Each of the CDMA handsets sold by Cricket included an express statement, constituting an express warranty, that the telephone included "Nationwide Coverage" and that "Cricket's network provides unsurpased nationwide coverage." 243. In July 2013, AT&T reached an agreement to purchase the assets and assume the liabilities of Leap Wireless, the parent of Cricket, for $1.2 Billion. AT & T retained Cricket's directors and management in addition to its 3,400 employees. The July 12, 2013 press release of AT&T and Leap Wireless provided, in relevant part, the following information about the acquisition: AT&T will acquire all of Leap's stock and wireless properties, including licenses, network assets, retail stores and approximately 5 million subscribers. . . . Leap's network covers approximately 96 million people in 35 U.S. states. Leap currently operates -- under the Cricket brand -- a 3G CDMA network, as well as a 4G LTE network covering 21 million people in these areas, and has 3,400 employees. 5 JA 176 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 180 of 426 4 AT&T will retain the Cricket brand name, provide Cricket customers with access to AT&T's award-winning 4G LTE mobile network, utilize Cricket's distribution channels, and expand Cricket's presence to additional U.S. cities. The result will be increased competition, better device choices, improved customer care and a significantly enhanced mobile Internet experience for consumers seeking low-cost prepaid wireless plans. . . . The acquisition includes spectrum in the PCS and AWS bands covering 137 million people and is largely complementary to AT&T's existing spectrum licenses. Immediately after approval of the transaction, AT&T plans to put Leap's unutilized spectrum – which covers 41 million people -- to use in furthering its 4G LTE deployment and providing additional capacity and enhanced network performance for customers' growing mobile Internet usage. Owners of approximately 29.8% of Leap's outstanding shares have entered into an agreement to vote in favor of the transaction. The transaction is subject to review by the Federal Communications Commission and the Department of Justice and to other customary closing conditions. AT&T expects the transaction to close in six to nine months. 254. Thus, according to the July 12, 2013 press release, AT&T intended to move customers from Cricket's CDMA network to AT&T's GSM network and Cricket/AT&T further intended not to support CDMA handsets that could not be migrated to the GSM network. 265. In fact, many CDMA handsets cannot be moved to a GSM network because Cricket locked the CDMA handsets it sold. 276. Cricket knew and failed to disclose this material information to customers. 287. Cricket, moreover, continued to offer for sale and sell to the consuming public CDMA handsets that are not compatible with and cannot be migrated to the GSM network. 298. Cricket thus knew, and failed to disclose, that many of the CDMA handsets it offered for sale and sold to the consuming public would be rendered inoperable as a result of the AT&T acquisition (i.e. not able to make telephone calls or other forms of mobile communications). 6 JA 177 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 181 of 426 4 3029. For instance, Plaintiff purchased a Samsung Galaxy 4S from an authorized agent of Cricket in or around December 2013, more than five months after AT&T acquired Cricket. 310. Thereafter, Plaintiff entered into a wireless service agreement with Cricket to use the Samsung Galaxy 4S on Cricket's CDMA compatible cellular network. 321. Plaintiff received two different receipts, one for the purchase of the phone and one for the purchase of the wireless service agreement. 332. In January 2015, AT&T publicly announced that the legacy CDMA markets covered by its Cricket unit will be turned off this year, in a three-phase switch-off plan. See https://www.telegeography.com/products/commsupdate/articles/2015/01/09/att-confirms- september-shutdown-of-cricket-cdma-network/. 343. As per the AT&T public announcement in January 2015, the CDMA wireless service will be terminated on a rolling basis by bill cycle. Customers in the initial 'sunset markets' will have their service terminated by bill cycle beginning March 15, 2015 with the CDMA network in those markets being turned off completely on 15 April 2015. Initial (March/April) sunset markets include: Washington, DC; Little Rock, Fayetteville and Fort Smith (Arkansas); Wilmington (Delaware); Chicago and Northern Illinois (Illinois); South Bend (Indiana); Baltimore (Maryland); Atlantic City (New Jersey); Buffalo, Rochester and Syracuse (New York) and Philadelphia (Pennsylvania). 354. The second group of markets slated for shutdown in May/June 2015 consists of: Wichita (Kansas); Albuquerque and Las Cruces (New Mexico); Las Vegas (Nevada) and Oklahoma City and Tulsa (Oklahoma). 365. All remaining legacy CDMA markets will be turned off by mid-September 2015. 7 JA 178 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 182 of 426 4 376. Cricket announced that its customers who purchased an iPhone with original CDMA (including the iPhone 4s, iPhone 5, iPhone 5s or iPhone 5c) will receive a free, replacement SIM card that enables the iPhone to operate on Cricket's new 4G and 4G LTE nationwide GSM network. However, persons who purchased any other type of cell phone from Cricket would be required to purchase a new handset. 387. As Cricket explained on its website: "The new Cricket's nationwide 4G network uses GSM (Global System for Mobile Communications) technology that is the global standard for mobile service while the original Cricket uses CDMA network technology. That means that with the exception of original Cricket iPhone 4S, iPhone 5, iPhone 5S and iPhone 5C, your current CDMA phone will not work on the new Cricket network. 398. In or around February 2015, Plaintiff went into a Cricket store in Maryland to pay his bill for February service. When Plaintiff was in the Cricket store, Cricket turned his Samsung Galaxy S4 phone off. Plaintiff attempted to have his phone turned back on through AT&T and other service providers, including Sprint, Virgin Mobile and T-Mobile. But none was able to revive Plaintiff's phone. 4039. Plaintiff's phone has no value or only a de minimis value due to its inoperability on any cellular network. 410. Plaintiff is not alone. Indeed, several consumers have made anonymous complaints on the web page forum: https://forums.att.com/t5/General-Account-Questions/AT- amp-T-Merger-with-Cricket-Sucks/td-p/4096500, concerning Cricket's failure to disclose that the CDMA handheld devices which it offered for sale and sold to the consuming public as of July 12, 2013, would be inoperable as a result of the AT&T acquisition, including the following: 8 JA 179 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 183 of 426 4 Blownaway Sep 26, 2014 8:26:33 AM This merger of AT&T and Cricket is horrible. First I just bought an expensive Samsung Galaxy S4 not even a year ago and I am being told that I have to buy a brand new phone when the merger is fully complete (March 2015). This is ridiculous - who is sitting around with an extra $400 a year to purchase a new phone. As large a company as AT&T they do not have the capability to switch my phone over. SteveJodylynn Oct 29, 2014 12:28:27 PM I agree. It is just a few months from when my expensive CDMA Cricket smartphone (less than a year old) becomes inoperable and I've heard nothing from AT&T or Cricket about the transition plan, other than I will be forced to shell out hundreds for a new phone that is compatible with AT&T's network. Chiefsfan Nov 29, 2014 5:43:14 PM. . . AT&T is screwing over thousands of Cricket customers and they DON'T CARE ONE BIT! Cricket shouldn't have been selling phones over the past 7-8 months, since the merger with AT&T, knowing that they won't work after March, but they continue to do just that. The point is that AT&T is gaining millions of unearned $ by forcing customers to buy new ridiculously expensive phones (oh, but they'll give you a free deal on their piece-o-crap phones (which are all of them other than the Galaxy & iphones) all under the guise of "providing better service". What a crock!! WE ALL NEED TO BOYCOTT AT&T ONCE THEY RENDER OUR PHONES USELESS!!! hatenewcricket Feb 11, 2015 9:16:13 PM I know what you mean I got my S4 just befor[e] they annou[n]ced the switch, I believe they knew what was going to happen and sold me an already worthless phone this whole thing has been a rip off and is unfair to cricked customers who are getting screwed V. CLASS ALLEGATIONS 421. Plaintiff brings this action against Defendant pursuant to Rule 23 of the Federal Rules of Civil Procedure on behalf of himself and all other persons similarly situated. Plaintiff seeks to represent the following classes: 9 JA 180 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 184 of 426 4 All persons nationwide during the period July 12, 2013 to the present, who purchased a CDMA handset from Cricket or through its authorized agents. Excluded from this class are Defendants, their affiliates, subsidiaries, agents, board members, directors, officers, and/or employees. 432. Plaintiff reserves the right to modify or amend the definition of the proposed Class before the Court determines whether certification is appropriate. 443. Defendant subjected Plaintiff and the respective Class members to the same unfair, unlawful, and deceptive practices and harmed them in the same manner. 454. The Class, as defined above, is identifiable. 465. The Named Plaintiff is a member of the Class. 476. The proposed class is so numerous that joinder of all members would be impracticable. Cricket sold thousands of CDMA handsets during the Class Period in the State of Maryland and nationwide. 4 8 7. The individual class members are ascertainable, as the names and addresses of all class members can be identified in the business records maintained by Defendant. 498. While the precise number of class members can only be obtained through discovery, the numbers are clearly more than can be consolidated in one complaint such that it would be impractical for each member to bring suit individually. 5049. There are questions of law and fact that are common to Plaintiff's and class members' claims. These common questions predominate over any questions that go particularly to any individual member of the Class. 5 1 0. Among such common questions of law and fact are the following: 10 JA 181 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 185 of 426 4 a. Whether Cricket offered for sale and sold to the consuming public CDMA handsets during the Class Period; b. Whether Cricket knew and failed to disclose that the CDMA handsets would be inoperable upon completion of the merger with AT&T; c. Whether Cricket knew at the time of sale that Plaintiff and Class Members intended to use the mobile telephones it sold to them to make telephone calls and mobile communications; d. Whether Cricket breached written warranties in its sales of mobile telephones to Plaintiff and other Class Members; e. Whether Cricket breached the implied covenant of good faith and fair dealing by offering for sale and selling soon to be inoperable CDMA handsets; f. Whether Cricket breached the implied warranty of fitness for a particular purpose in its sales of mobile telephones to Plaintiff and other Class Members; gd. Whether Cricket made material misstatements of fact and/or knew and failed to disclose material information concerning the CDMA handsets which it sold to Plaintiff and other members of the class, including facts that the CDMA handsets would be inoperable as a result of the AT&T acquisition, that Cricket planned to convert to the GSM network and that as a result, the CDMA handsets had an artificially limited useful life; he. Whether Cricket breached the implied warranty of merchantability by selling Plaintiff and the other members of the Class CDMA handsets which it knew had an artificially limited useful life; i. Whether Cricket violated the Magnuson-Moss Warranty Act in its transactions with Plaintif and other Class Members; and jf. Whether Plaintiff and the Class Members are entitled to damages and/or injunctive relief as a result of Defendant's conduct. 521. Plaintiff's claims are typical of the claims o f t h e cl as s because of the similarity, uniformity, and common purpose of Defendant's unlawful conduct. Each class 11 JA 182 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 186 of 426 4 member has sustained, and will continue to sustain, damages in the same manner as Plaintiff as a result of Defendant's wrongful conduct. 532. Plaintiff is an adequate representative of the class he seeks to represent and will fairly and adequately protect the interests of that class. 5 4 3. Plaintiff is committed to the vigorous prosecution of this action and has retained competent counsel, experienced in litigation of this nature, to represent them. 554. There is no hostility between Plaintiff and the unnamed class members. 565. Plaintiff anticipates no difficulty in the management of this litigation as a class action. 576. To prosecute this case, Plaintiff has chosen the undersigned law firms, which are experienced in class action litigation and have the financial and legal resources to meet the substantial costs and legal issues associated with this type of litigation. 587. The questions of law or fact common to Plaintiff's and each Class Member's claims predominate over any questions of law or fact affecting only individual members of the class. 598. All claims by Plaintiff and the unnamed class members are based on Cricket's sale of CDMA handsets to the consuming public when it knew, or reasonably should have known and failed to disclose that these handsets would be inoperable upon completion of the AT&T merger. 6059. Common issues predominate where, as here, liability can be determined on a class-wide basis, even when there will be some individualized damages determinations. 12 JA 183 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 187 of 426 4 610. As a result, when determining whether common questions predominate, courts focus on the liability issue, and if the liability issue is common to the class as is the case at bar, common questions will be held to predominate over individual questions. 621. A class action is superior to individual actions in part because of the non- exhaustive factors listed below: (a) Joinder of all class members would create extreme hardship and inconvenience for the affected customers as they reside all across the states; (b) Individual claims by class members are impractical because the costs to pursue individual claims exceed the value of what any one class member has at stake. As a result, individual class members have no interest in prosecuting and controlling separate actions; (c) There are no known individual class members who are interested in individually controlling the prosecution of separate actions; (d) The interests of justice will be well served by resolving the common disputes of potential class members in one forum; (e) Individual suits would not be cost effective or economically maintainable as individual actions; and (f) The action is manageable as a class action. VI. CAUSES OF ACTION COUNT I BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY 632. Plaintiff incorporates by reference paragraphs 1 through 621 above, as if each and every allegation is set forth fully herein. 643. At all relevant times, Cricket was a merchant with respect to the CDMA handsets. 654. Plaintiff purchased his now inoperable CDMA handset from an authorized agent of Cricket. At the time of purchase, Cricket and it authorized agents were in the business of 13 JA 184 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 188 of 426 4 selling CDMA handsets and/or by course of business held itself out as having special knowledge or skill regarding those handsets. 665. A warranty that the CDMA handsets were in merchantable condition was implied by law in the sale of these handsets by Cricket and its agents. 676. The CDMA handsets which Cricket and its authorized agents sold to Plaintiff and other members of the class were not in merchantable condition and are not fit for the ordinary purpose for which handsets are used and/or were not of the same quality of those generally acceptable in the trade. 687. In fact, the CDMA handsets sold by Cricket and its authorized agents, including the Samsung Galaxy 4S sold to Plaintiff, were unmerchantable. 698. Specifically, Cricket knew and failed to disclose that these CDMA handsets would be inoperable as a result of the AT&T acquisition and Cricket's plan to convert to the GSM network. As a result, the CDMA handsets had an artificially limited useful life. 7069. Plaintiff and other members of the Class have had sufficient direct dealings with either Cricket or its authorized agents to establish vertical privity of contract between themselves and Defendant. Nevertheless, privity is not required in this case because Plaintiff and the other members of the Class are intended third- party beneficiaries of contract between Cricket and its authorized agents. Specifically, Plaintiff and the other members of the Class are the intended beneficiaries of Cricket's implied warranties. Cricket's authorized agents were not intended to be the ultimate consumers of the CDMA handsets. COUNT II 14 JA 185 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 189 of 426 4 FRAUDULENT CONCEALMENT 710. Plaintiff incorporates by reference paragraphs 1 through 621 above, as if each and every allegation is set forth fully herein. 721. As set forth above, Cricket knew and failed to disclose and/ or suppressed and/or concealed material facts concerning the CDMA handsets, including the Samsung Galaxy 4S, which it sold to Plaintiff and other members of the class. 732. These concealed facts were material because they directly impacted the reliability and use of the handsets. 743. Cricket owed Plaintiff and the other members of the Class a duty to disclose that the CDMA handsets would be rendered inoperable by the AT&T acquisition and Cricket's plans to convert to the GSM network because it possessed exclusive and superior knowledge and access to these facts. 754. Cricket knew and failed to disclose that the CDMA handsets had an artificially limited useful life and that the CDMA handsets were not compatible with AT&T's GSM cellular network. 765. Cricket actively concealed and/or suppressed these material facts, in whole or in part, with the intent to induce Plaintiff and the other members of the Class to purchase the CDMA handsets from Cricket and its authorized agents and to pay more than they otherwise would have paid had these material facts that the CDMA handsets would be inoperable as a result of the AT&T acquisition and Cricket's plans to convert to the GSM network been disclosed. 15 JA 186 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 190 of 426 4 776. Cricket's conduct was oppressive, fraudulent, malicious and in reckless disregard of the rights of Plaintiff and the Class. 787. Plaintiff and the other members of the Class were not aware of the omitted material facts and would not have acted as they did if they had known of the concealed and/or suppressed facts. 798. As a result of Cricket's concealment and/or suppression of material facts concerning the CDMA handsets, Plaintiff and the Class have sustained damages. COUNT III MONEY HAD AND RECEIVED/UNJUST ENRICHMENT 8079. Plaintiff incorporates herein by reference as though fully set forth the allegations in paragraphs 1 through 621 of this Complaint, as if each and every allegation is set forth fully herein. 810. As set forth above, Cricket charged and collected payments for CDMA handsets that would become inoperable in amounts that exceeded the value of these CDMA handsets, which conferred a substantial benefit on Cricket. 821. Cricket was aware of, and had knowledge of, this substantial benefit. 832. By doing so, Cricket has come into the possession of money in the form of payments that it had, and has no right to at law or in equity. 843. It would be inequitable for Cricket to retain any such monies that it had no legal right to charge. 16 JA 187 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 191 of 426 4 854. As a consequence, Named Plaintiff and the members of the Class have been damaged. COUNT IV NEGLIGENT MISREPRESENTATION 865. Plaintiff incorporates herein by reference as though fully set forth the allegations in paragraphs 1 through 621 of this Complaint, as if each and every allegation is set forth fully herein. 876. Cricket and its agents or employees negligently made the false and misleading representations and omissions alleged herein, including but not limited to the representations that its CDMA handsets would pass without objection in the trade under the contract description and that the CDMA handsets sold were compatible with and would continue to be compatible with Cricket's CDMA's cellular service for the useful life of the handset. 887. Cricket's agents or employees negligently failed to disclose the material fact that its handsets would become inoperable during its useful lifespan. 898. Cricket's agents or employees negligently failed to disclose that the prices of the CDMA handsets did not accurately represent its value, intending that Plaintiff and the Class would reasonably rely upon the false and misleading representations and omissions to their detriment, which they did. 890. As a direct and proximate result of Cricket's negligent statements, representations, and omissions, Plaintiff and the Class were induced, ab initio, to purchase a CDMA handset from Cricket for a price significantly higher than they were worth. 17 JA 188 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 192 of 426 4 910. Cricket, their agents or employees, owed a duty of care to Plaintiff and the Class. 921. Cricket recklessly and negligently breached the duty of care they owed to Plaintiff and the Class by making negligent representations to Plaintiff and the Class and negligently concealing material facts from them, as set forth herein. 932. Cricket knew, or had reason to know, that Plaintiffs and the Class would reasonably rely on the representations and concealments which if erroneous, would cause loss, injury or damage. 943. Plaintiff and the Class justifiably and reasonably took actions to their detriment as alleged herein, by paying Cricket significantly more for their CDMA handsets than they were worth, in reliance on the negligent representations and concealments. COUNT V MARYLAND CONSUMER PROTECTION ACT 954. Plaintiff incorporates herein by reference as though fully set forth the allegations in paragraphs 1 through 621 of this Complaint, as if each and every allegation is set forth fully herein. 965. Cricket is a merchant within the meaning of the Maryland Consumer Protection Act ("MCPA"), MD. CODE ANN., COMM. LAW § 13-101(g), and is subject to all of the MCPA's provisions prohibiting unfair or deceptive trade practices including those in MD. CODE ANN., COMM. LAW §§ 13-303 and 13-301. 976. Cricket's failure to disclose and its concealment from Plaintiff and members of the Class of the material facts as set forth herein constitutes unfair and deceptive trade practices 18 JA 189 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 193 of 426 4 in violation of the MCPA, §§ 13-303 and 13-301(1), (2)(i) and (iv) and (3). If Plaintiff and members of the Class had known the material facts related to the CDMA handsets, they would not have purchased the handsets or would have required a significantly lower price. 987. On information and belief, Plaintiff avers that Cricket systematically sold CDMA handsets during the Class Period which were not compatible with AT&T's GSM cellular network and retailed these CDMA handsets to the public without disclosing the impending inoperability of the handsets to its customers, in violation of the MCPA, in order to illegally increase its profits. 998. Cricket's acts and omissions as aforesaid, including its failure to disclose and concealment of the material facts, and its affirmative misrepresentation to Named Plaintiff and the Class, tended to and did deceive Plaintiff and members of the Class and constitutes an unfair and deceptive trade practice, in violation of MCPA §§ 13-303(1) - (3) and 13-301(1), (2)(i) and (iv), and/or (3). 10099. As a result of Cricket's unfair and deceptive trade practices, Named Plaintiff and the Class agreed to and did purchase their CDMA handsets, Plaintiff paid Cricket significantly more for their CDMA handsets than they were worth, and Named Plaintiff and the Class sustained the other damages and losses set forth above. COUNT VI FRAUD 1010. Plaintiff incorporates herein by reference as though fully set forth the allegations in paragraphs 1 through 621 of this Complaint, as if each and every allegation is set forth fully herein. 19 JA 190 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 194 of 426 4 1021. Cricket and its authorized agents falsely represented to Plaintiff and other members of the Class that the CDMA handsets would be supported by Cricket for the useful life of the product. But for this representation, which Cricket and its authorized agents knew, or should have known, was false, Plaintiff and the other members of the Class would not have bought the CDMA handsets from Cricket. Moreover, but for this false representation, Plaintiff and the other members of the Class would not have then made a separate purchase from Cricket for the CDMA wireless service plan. 1032. Defendant failed to disclose material information that Cricket would not continue to support the CDMA handsets as a result of the AT&T acquisition and that the CDMA handsets were not compatible with AT&T's GSM cellular network. 1043. Defendant made these false and misleading representations and omissions knowingly, recklessly, and/or without regard for their truth or falsity, and with the intent to induce Plaintiff and other members of the Class to rely upon them by purchasing a CDMA handset from Cricket. 1054. Plaintiff and the other members of the Class justifiably relied upon the false representations and omissions made by Defendant by purchasing the CDMA handset from Cricket's authorized agent and then by purchasing a wireless service agreement from Cricket thereafter. 1065. As a direct and proximate result of the reliance upon the false representations and omissions of Defendant, Plaintiff and the other members of the Class have suffered damages, including, but not limited to, the loss of the use of the CDMA handsets and the loss of their market value, well prior to the end of the useful life of these cell phones. 20 JA 191 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 195 of 426 4 1076. Because of the willful and wanton conduct of Defendant, Plaintiff and the other members of the Class are entitled to punitive, as well as actual, damages. COUNT VII VIOLATION OF THE MAGNUSON-MOSS WARRANTY ACT 108. Named Plaintiff re-alleges and incorporates herein by reference the allegations in the foregoing paragraphs as if fully set forth below. 109. Congress enacted the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq. (the "Act") in 1975 in response to widespread complaints from consumers that many warranties were misleading and deceptive and were not being honored. To remedy this problem of deception and failure to honor warranties, the Act imposes civil liability on any "warrantor" for, inter alia, failing to comply with any obligation under a written warranty and/or implied warranty. 15 U.S.C. § 2310(d)(1). The Act further authorizes a "suit for damages and other legal and equitable relief." Id. The Act authorizes the award of attorneys' fees and expressly authorizes class actions. 15 U.S.C. § 2310(e). 110. Cricket is a "warrantor" within the meaning of Section 2301(5) of the Act. 111. Named Plaintiff and other members of the Class are "consumers" within the meaning of Section 2301(3) of the Act. 112. Cricket breached express warranties because the CDMA handsets sold did not conform to the description of the CDMA handsets. Cricket's affirmations of fact concerning the mobile telephones, and descriptions of the mobile telephones, which Cricket make to Plaintiff and the Class, relating ot the mobile telephones and part of the basis of the bargain, created an 21 JA 192 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 196 of 426 4 express warranty that the mobile telephones would operate on a nationwide network providing unsurpassed coverage. 113. Cricket breaches of the implied warranties of merchantability and fitness for a particular purpose as alleged herein, violate the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq., including 15 U.S.C. § 2310(d). 114. Cricket knew, at the time of sale, of the defects in the mobile telephones sold to Plaintiff and the Class Members which breached the express warranties and implied warranties of merchantability and fitness for a particular purpose. 115. Named Plaintiff contacted Cricket and asked Cricket to cure the defect in his mobile telephone by replacing it with a usable and comparable CDMA handset or by unlocking his handset so that he could use it on another CDMA wireless provider's network. Cricket refulsed to cure the defect or to replace or unlock Named Plaintiff's handset. 116. As a result of Cricket's violation of the Act, Named Plaintiff and the Class sustained the losses and damages described herein. PRAYER FOR RELIEF WHEREFORE, Plaintiff, on behalf of himself and all similarly situated individuals, demands judgment against Defendant as follows: (1) Declaring this action to be a proper class action maintainable pursuant to Rule 23(a) and Rule 23(b)(3) of the Federal Rules of Civil Procedure and declaring Plaintiff and their counsel to be representatives of the Class; 22 JA 193 Appeal: 17-2288 Doc: 24 Filed: 12/12/2017 Pg: 197 of 426 4 (2) Requiring Defendant to replace the CDMA handsets with comparable GSM handsets free of charge; (3) Awarding actual damages to Plaintiff and the Class; (4) Awarding punitive damages to Plaintiff and the Class under Counts II, IV and VI; (5) Awarding Plaintiff and the Class costs an