Amezcua v. Cellco Partnership, 2009 WL 1190553 (N.D. Cal. May 4, 2009)

Is that extra $20 per paycheck from the president’s stimulus plan not stretching as far as you hoped? Are you still looking for a way to cut back on expenses?

Fortunately for you, loyal CAFA Law Blog readers, we’ve uncovered a way for you to save up to 20% on your next cell phone bill: make sure you’re not paying for a Snoop Dogg ringtone or a sleepy kitten wallpaper that you didn’t authorize to be downloaded to your cell phone.

In this case, the plaintiff filed a class action suit in the Santa Clara, California Superior Court against her mobile content provider, alleging that she was billed for unwanted mobile content that she had not authorized to be downloaded to her cell phone, including “music ringtones, wallpapers, games and news.” The plaintiff didn’t plead a specific dollar amount of damages but did ask for “compensatory and punitive damages, costs and attorneys’ fees, pre- and post-judgment interest.”

The mobile content provider removed the case to the federal district court for the Northern District of California under CAFA. This didn’t sit well with the plaintiff, and she sought a remand “on the ground that [the mobile content provider had] not carried its burden to establish that the aggregate amount in controversy exceed[ed] $5 million.”

The mobile content provider argued three reasons why the amount in controversy exceeded the $5 million jurisdictional threshold for federal district courts.

First, the mobile content provider argued that the amount in controversy should include “its entire revenue” of approximately $29.3 million. WRONG. The issue was the extent of the unauthorized charges, not the mobile content provider’s entire revenue.

Second, the mobile content provider argued “that the plaintiff’s request for punitive damages and attorneys’ fees” should be included in the amount in controversy. WRONG AGAIN. This court already rejected this argument because “the speculative nature of the compensatory damages prevented meaningful reference to punitive damages or fees.”

Finally, the mobile content provider argued that since the “industry wide . . . average amount of unauthorized charges [was] approximately 20%,” that amount should be multiplied by the content provider’s entire revenue of $29.3 million to derive an amount in controversy of $5,860,000. STILL WRONG. Even though the court acknowledged this method of calculation was “sound,” it rejected it nonetheless because “the statement . . . [was] not competent evidence of the extent of the fraud in the mobile content industry, let alone in the billing practices of [the mobile content provider].”

At the end of the day, the content provider could not establish the requisite amount in controversy. The plaintiff got her remand, but the court’s opinion did not indicate if she got to keep the Snoop Dogg ringtone or the sleepy kitten wallpaper.

By:  Michael Rahmn