Free Answer to Amended Complaint - District Court of California - California

Case 3:07-cv-02231-RJB

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1 JAMES J. MITTERMILLER, Cal. Bar No. 85177 [email protected] 2 FRANK J. POLEK, Cal. Bar No. 167852 [email protected] 3 JOHN C. DINEEN, Cal. Bar No. 222095 [email protected] 4 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP A Limited Liability Partnership 5 Including Professional Corporations 501 West Broadway, 19th Floor 6 San Diego, California 92101-3598 Telephone: 619-338-6500 7 Facsimile: 619-234-3815 8 Attorneys for Defendants SPRINT SOLUTIONS, INC. and SPRINT 9 SPECTRUM L.P. 10 11 12 13 14 UTILITY CONSUMERS' ACTION NETWORK and ERIC TAYLOR, on 15 behalf of themselves, their members and/or all others similarly situated, as applicable, 16 Plaintiffs, 17 v. 18 SPRINT SOLUTIONS, INC.; and SPRINT 19 SPECTRUM L.P., 20 21 22 Defendants SPRINT SOLUTIONS, INC. and SPRINT SPECTRUM L.P. Defendants. Case No. 07 CV 2231 RJB DEFENDANTS' ANSWER TO SECOND AMENDED COMPLAINT Case Assigned To: Hon. Robert J. Bryan DEMAND FOR JURY TRIAL UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

23 ("Defendants") answer Plaintiffs' Second Amended Complaint ("SAC") as follows: 24 25 1. Answering paragraph 1 of Plaintiffs' SAC, Defendants admit that Mr.

26 Taylor has been a Sprint Nextel data services customer. Defendants admit that Mr. Taylor 27 subscribed to Sprint Nextel's data services plan and that the plan provides data 28 transmission services to Sprint Nextel customers. As to the remainder of the allegations
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1 contained in this paragraph, Defendants are without sufficient knowledge or information to 2 form a belief as to the truth of the allegations and on that basis deny each and every 3 allegation contained therein. 4 5 2. Answering paragraph 2 of Plaintiffs' SAC, Defendants admit that they

6 have included charges on customers' invoices for taxes and surcharges. Defendants further 7 admit that Exhibits "1" to "4", attached to Plaintiffs' SAC, are copies of invoices generated 8 by Defendants. All remaining allegations in this paragraph, if any, are denied. 9 10 3. Answering paragraph 3 of Plaintiffs' SAC, Defendants admit that they

11 sent their data services customers monthly bills. As to Plaintiff's allegation that "such fees 12 are not government imposed charges to be imposed for data transmission services, but 13 rather only for telephonic services" Defendants deny such allegations as it is not clear what 14 "charges" Plaintiffs are referencing. As to the remainder of the allegations contained in 15 this paragraph, Defendants are without sufficient knowledge or information to form a 16 belief as to the truth of the allegations and on that basis deny each and every allegation 17 contained therein. 18 19 4. Answering paragraph 4 of Plaintiffs' SAC, Defendants deny they have

20 violated any FCC "determinations." With respect to the remainder of this paragraph, 21 Defendants respond as follows: Plaintiffs' allegations in this paragraph are conclusions of 22 law to which no response is required. To the extent any factual allegations are made, they 23 are denied. 24 25 5. Answering paragraph 5 of Plaintiffs' SAC, Defendants deny each and

26 every allegation contained therein. 27 28
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1

6.

Answering paragraph 6 of Plaintiffs' SAC, no response is required to

2 the first sentence of said paragraph as any such communications were made for settlement 3 purposes pursuant to Federal Rule of Evidence 408. Defendants admit that they received 4 revenue from customers. Defendants admit that they have issued certain credits to data 5 card customers affected by certain charges. To the extent that there are remaining 6 allegations in this paragraph, they are denied. 7 8 7. Answering paragraph 7 of Plaintiffs' SAC, Defendants deny that

9 "there are other problems with Sprint Nextel's data services plan billing system." 10 Defendants admit that Plaintiff Taylor received certain charges for text messages and that 11 Defendants credited Plaintiff Taylor for all such charges. Defendants admit that Mr. 12 Taylor has been a data services only customer. Defendants admit that they assigned a 13 number to Mr. Taylor's data connection card. Defendants deny that they "insist" that they 14 "can do nothing to stop such unauthorized charges." Defendants deny Plaintiffs' 15 allegation that "such unauthorized charges violate state and federal anti-cramming laws, 16 including 47 U.S.C. § 201(b) and Cal. Pub. Util. Code § 2890." Defendants admit that 17 imposition of the new fees constituted an adverse material change for certain customers 18 (but not others) who therefore had the opportunity to terminate their service, in accordance 19 with the parties' contracts. Defendants deny Plaintiffs' allegation that "Sprint Nextel 20 consistently refused to recognize these rights, requiring many Class members to spend 21 considerable time and effort to address these issues." As to the remainder of the 22 allegations contained in this paragraph, Defendants are without sufficient knowledge or 23 information to form a belief as to the truth of the allegations and on that basis deny each 24 and e very allegation contained therein. 25 26 8. Answering paragraph 8 of Plaintiffs' SAC, Defendants admit that they

27 are a corporation and a partnership, respectively, and are "authorized or registered to 28 conduct, or in fact do conduct, substantial business in the State of California." The
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1 remainder of the first sentence, and the second and third sentences of the paragraph contain 2 legal conclusions to which no response is required. Defendants admit that this action 3 challenges Defendants' actions regarding disclosure of certain fees and refunds of certain 4 fees. As to the remainder of the allegations contained in this paragraph, Defendants are 5 without sufficient knowledge or information to form a belief as to the truth of the 6 allegations and on that basis deny each and every allegation contained therein. 7 8 9. Answering paragraph 9 of Plaintiffs' SAC, Defendants admit that

9 venue is proper in this Court. Defendants admit that they received revenue in this district. 10 Defendants deny that they "caused misrepresentations to be disseminated." Defendants 11 admit that they entered into agreements and transactions in this district. Defendants deny 12 that they "breached agreements in this district." Defendants deny they have any liability. 13 As to the remainder of the allegations contained in this paragraph, Defendants are without 14 sufficient knowledge or information to form a belief as to the truth of the allegations and 15 on that basis deny each and every allegation contained therein. 16 17 10. Answering paragraph 10 of Plaintiffs' SAC, in its August 15, 2008

18 Order, the Court granted Defendants' motion to strike the following allegations in this 19 paragraph: "UCAN has lost and diverted staff time and resources from other clients and 20 causes investigating the claims asserted herein and in an attempt to resolve the allegations 21 at issue herein. UCAN thus brings this action acting on behalf of itself and its members 22 and seeks all such remedies that it is entitled to in that capacity." Accordingly, no 23 response is required to those allegations. Defendants admit that Mr. Taylor has been a 24 customer of Sprint Nextel. Defendants deny that Mr. Taylor "suffered injury in fact and 25 lost money or property or had his rights infringed upon as a result of the acts and practices 26 here at issue by being charged and/or required to pay the charges, taxes and fees here at 27 issue and/or not having had such monies refunded with interest." Defendants admit that 28 exhibits 1 to 4 of the SAC are copies of Defendants' billing statements to Taylor. As to the
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1 remainder of the allegations contained in this paragraph, Defendants are without sufficient 2 knowledge or information to form a belief as to the truth of the allegations and on that 3 basis deny each and every allegation contained therein. 4 5 11. Answering paragraph 11 of Plaintiffs' SAC, Defendants admit that

6 they operate and conduct business in California and the United States. Defendants admit 7 that Sprint Solutions, Inc. is a Delaware corporation and Sprint Spectrum, L.P. is a 8 Delaware limited partnership. Defendants admit that they are indirect subsidiaries of 9 Sprint Nextel Corporation. Defendants allege that Sprint Solutions, Inc.'s address is 6200 10 Sprint Parkway, Overland Park, KS 66257. Defendants further allege that Sprint 11 Spectrum, L.P.'s address is 6200 Sprint Parkway, Overland Park, KS 66257. Defendants 12 deny the remainder of the allegations contained in this paragraph. 13 14 12. Answering paragraph 12 of Plaintiffs' SAC, Defendants deny each

15 and every allegation contained therein. 16 17 13. Answering paragraph 13 of Plaintiffs' SAC, Defendants respond as

18 follows: The allegations in this paragraph are merely definitional, and require no response 19 from Defendants. To the extent any allegations are made, they are denied. 20 21 14. Answering paragraph 14 of Plaintiffs' SAC, Defendants deny that

22 "this action is brought and may properly be maintained as a class action." The remainder 23 of this paragraph is merely definitional, and requires no response from Defendants. To the 24 extent any allegations are made, they are denied. 25 26 15. Answering paragraph 15 of Plaintiffs' SAC, Defendants respond as

27 follows: The allegations in this paragraph are merely definitional, and require no response 28 from Defendants. To the extent any allegations are made, they are denied.
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1

16.

Answering paragraph 16 of Plaintiffs' SAC, Defendants admit that

2 Defendants conduct business nationwide and that as of July 2007, Defendants had over one 3 million data services customers. Defendants deny that they "presumably bill all their 4 customers uniformly." As to the remainder of the allegations contained in this paragraph, 5 Defendants are without sufficient knowledge or information to form a belief as to the truth 6 of the allegations and on that basis deny each and every allegation contained therein. 7 8 17. Answering paragraph 17 of Plaintiffs' SAC, Defendants respond as

9 follows: This paragraph does not contain substantive allegations, but rather only a 10 summary of the relief sought by Plaintiffs. No response is required. Further, in its August 11 15, 2008 Order, the Court granted Defendants' motion to strike the following phrase in this 12 paragraph: "exemplary damages." No response is required as to that allegation. 13 Defendants deny all allegations contained in this paragraph and deny that Plaintiffs are 14 entitled to any relief whatsoever. 15 16 18. Answering paragraph 18 of Plaintiffs' SAC, Defendants respond as

17 follows: The allegations in this paragraph are merely definitional, and require no response 18 from Defendants. To the extent any allegations are made, they are denied. Further, in its 19 August 15, 2008 Order, the Court granted Defendants' motion to strike the following 20 phrase in this paragraph: "exemplary damages." No response is required for that 21 allegation. 22 23 19. Answering paragraph 19 of Plaintiffs' SAC, Defendants deny

24 Plaintiffs' allegation that Plaintiffs and putative class members "were victims of the illegal 25 practices in question by being wrongfully charged the taxes and fees here at issue, not 26 receiving accurate information from defendants, and not receiving reimbursement of such 27 charges plus interest thereon, as well as an agreement by defendants to provide a clear and 28 conspicuous corrective notice and not to impose such charges in the future." Defendants
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1 deny Plaintiffs' allegation that "Plaintiffs and all class members have similarly had their 2 legal rights infringed upon, sustained injuries, losses and damages as described herein 3 and/or are facing irreparable harm arising out of defendants' common course of conduct." 4 Defendants deny Plaintiffs' allegation that "The right of each member of the Class to 5 payment of any actual, incidental, consequential, exemplary and/or statutory damages or 6 equitable monetary relief resulting therefrom equally arise from and are attributable to 7 defendants' wrongful conduct in violation of the laws alleged herein, as these claims arise 8 from the same core set of facts." Further, in its August 15, 2008 Order, the Court granted 9 Defendants' motion to strike the following phrase in this paragraph: "exemplary damages." 10 No response is required to that allegation. As to the remainder of the allegations contained 11 in this paragraph, Defendants are without sufficient knowledge or information to form a 12 belief as to the truth of the allegations and on that basis deny each and every allegation 13 contained therein. 14 15 20. Answering paragraph 20 of Plaintiffs' SAC, Defendants deny that they

16 "falsely billed" any persons. As to the remainder of the allegations contained in this 17 paragraph, Defendants are without sufficient knowledge or information to form a belief as 18 to the truth of the allegations and on that basis de ny each and every allegation contained 19 therein. 20 21 21. Answering paragraph 21 of Plaintiffs' SAC, Defendants are without

22 sufficient knowledge or information to form a belief as to the truth of the allegations 23 contained in this paragraph and on that basis deny eac h and every allegation contained 24 therein. 25 26 22. Answering paragraph 22 of Plaintiffs' SAC, Defendants deny any

27 wrongs were done to putative class members. Defendants deny that they engaged in 28 "illegitimate competition." Defendants deny that they "indulge[d] in misleading
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1 practices." As to the remainder of the allegations contained in this paragraph, Defendants 2 are without sufficient knowledge or information to form a belief as to the truth of the 3 allegations and on that basis deny each and every allegation contained therein. 4 5 23. Answering paragraph 23 of Plaintiffs' SAC, Defendants admit that

6 they maintain certain customer information, some of which is maintained electronically. 7 Defendants deny that any "costs are properly imposed on defendants." As to the 8 remainder of the allegations contained in this paragraph, Defendants are without sufficient 9 knowledge or information to form a belief as to the truth of the allegations and on that 10 basis deny each and every allegation contained therein. 11 12 24. Answering paragraph 24 of Plaintiffs' SAC, Defendants deny that

13 "[t]his action is also properly certified to proceed on a class-wide basis." Defendants deny 14 that they "have acted or refused to act in respects generally applicable to the Class, thereby 15 making appropriate final inj unctive relief with regard to the members of the Class as a 16 whole in terms of the equitable relief sought." As to the remainder of the allegations 17 contained in this paragraph, Defendants are without sufficient knowledge or information to 18 form a belief as to the truth of the allegations and on that basis deny each and every 19 allegation contained therein. 20 21 25. Answering paragraph 25 of Plaintiffs' SAC, the allegation that

22 "Defendants hold themselves out as possessing superior knowledge regarding their 23 products and services, particularly in the telecommunications market they serve" is too 24 vague and ambiguous for Defendants to admit or deny and on that basis, it is denied. 25 Defendants admit that they provide products and services for use throughout California 26 and the United States and receive revenues for such products and services. To the extent 27 that there are remaining allegations in this paragraph, they are denied. 28
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1

26.

Answering paragraph 26 of Plaintiffs' SAC, Defendants admit that

2 Defendants' bills included the char ges identified on exhibits 1 through 4 attached to the 3 SAC, and that the particular charges complained of by Plaintiffs amount to $0.55 for the 4 billing period of September 23, 2006 to October 22, 2006, $3.81 for the billing period of 5 April 23, 2007 to May 22, 2007, and $0.57 for the billing period of June 23, 2007 to July 6 26, 2007. In addition, Defendants admit that they have over one million data services 7 customers. As to the remainder of the allegations contained in this paragraph, Defendants 8 are witho ut sufficient knowledge or information to form a belief as to the truth of the 9 allegations and on that basis deny each and every allegation contained therein. 10 11 27. Answering paragraph 27 of Plaintiffs' SAC, Defendants admit that

12 they assign a number to the devi ces used by data services customers to receive such 13 service. As to the remainder of the allegations contained in this paragraph, Defendants are 14 without sufficient knowledge or information to form a belief as to the truth of the 15 allegations and on that basis deny each and every allegation contained therein. 16 17 28. Answering paragraph 28 of Plaintiffs' SAC, Defendants are without

18 sufficient knowledge or information to form a belief as to the truth of the allegations 19 contained in this paragraph and on that basis deny each and every allegation contained 20 therein. 21 22 29. Answering paragraph 29 of Plaintiffs' SAC, Defendants admit that

23 they assign a number to the devices used by data services customers to receive such 24 service. Defendants admit that data services customers cannot ordinarily receive text 25 messages via the devices used by data services customers to receive such service. 26 Defendants deny that they are engaged in a practice known as "cramming." Defendants 27 deny that data services accounts are left "open to receive text messages." Defendants deny 28 that Plaintiff Taylor has not been reimbursed for text message charges. As to the
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1 remainder of the allegations contained in this paragraph, Defendants are without sufficient 2 knowledge or information to form a belief as to the truth of the allegations and on that 3 basis deny each and every allegation contained therein. 4 5 30. Answering paragraph 30 of Plaintiffs' SAC, Defendants admit that

6 certain regulatory rulings have held that wireless broadband internet services constitute 7 "information services." Defendants deny the remainder of the allegations contained in this 8 paragraph. 9 10 31. Answering paragraph 31 of Plaintiffs' SAC, Defendants admit that

11 refunds and/or credits were provided to customers who received certain charges to their 12 accounts. Defendants deny the remainder of the allegations contained in this paragraph. 13 14 32. Answering paragraph 32 of Plaintiffs' SAC, Defendants deny each

15 and every allegation contained therein. 16 17 33. Answering paragraph 33 of Plaintiffs' SAC, Defendants admit that

18 UCAN inquired as to how affected customers would be informed about credits to their 19 accounts. Defendants deny that they are required to provide notice. Defendants deny that 20 any notice given was inadequate. Plaintiffs' allegation that "Sprint Nextel should also post 21 the notice of this credit and the company's method for determining the amount of the 22 credit on their website to ensure full notification to customers" is a legal conclusion to 23 which no response is required. As to the remainder of the allegations contained in this 24 paragraph, Defendants are without sufficient knowledge or information to form a belief as 25 to the truth of the allegations and on that basis deny each and every allegation contained 26 therein. 27 28
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1

34.

Answering paragraph 34 of Plaintiffs' SAC, Defendants deny each

2 and every allegation contained therein. 3 4 35. Answering paragraph 35 of Plaintiffs' SAC, Defendants admit that in

5 January 2008 they implemented an "administrative fee" and a "regulatory fee" and 6 removed certain other charges. Defendants further admit that imposition of those new fees 7 constituted an adverse material change for certain customers (but not others) who therefore 8 had the opportunity to terminate their service, in accordance with the parties' contracts. 9 Defendants deny the remainder of the allegations contained in this paragraph. 10 11 36. Answering paragraph 36 of Plaintiffs' SAC, Defendants admit that

12 Sarah Sherman was a customer of Defendants. As to the remainder of the allegations 13 contained in this paragraph, Defendants are without sufficient knowledge or information to 14 form a belief as to the truth of the allegations and on that basis deny each and every 15 allegation contained therein. Further, Defendants allege that Sarah Sherman has not been a 16 data services customer of Defendants. 17 18 37. Answering paragraph 37 of Plaintiffs' SAC, Defendants are without

19 sufficient knowledge or information to form a belief as to the truth of the allegations 20 contained in this paragraph and on that basis deny each and every allegation contained 21 therein. 22 23 38. Answering paragraph 38 of Plaintiffs' SAC, Defendants admit that

24 Carla Friedrich was a customer of Defendants. As to the remainder of the allegations 25 contained in this paragraph, Defendants are without sufficient knowledge or information to 26 form a belief as to the truth of the allegations and on that basis deny each and every 27 allegation contained therein. Further, Defendants allege that Carla Friedrich has not been a 28 data services customer of Defendants.
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1

39.

Answering paragraph 39 of Plaintiffs' SAC, Defendants are without

2 sufficient knowledge or information to form a belief as to the truth of the allegations 3 contained in this paragraph and on that basis deny each and every allegation contained 4 therein. 5 6 40. Answering paragraph 40 of Plaintiffs' SAC, Defendants are without

7 sufficient knowledge or information to form a belief as to the truth of the allegations 8 contained in this paragraph and on that basis deny each and every allegation contained 9 therein. 10 11 41. Answering paragraph 41 of Plaintiffs' SAC, Defendants are without

12 sufficient knowledge or information to form a belief as to the truth of the allegations 13 contained in this paragraph and on that basis deny each and every allegation contained 14 therein. 15 16 42. Answering paragraph 42 of Plaintiffs' SAC, Defendants deny that they

17 made "uniform misrepresentations or omissions of material fact." Defendants deny that 18 they made improper charges under the Terms and Conditions of Service. As to the 19 remainder of the allegations contained in this paragraph, Defendants are without sufficient 20 knowledge or information to form a belief as to the truth of the allegations and on that 21 basis deny each and every allegation contained therein. 22 23 43. Answering paragraph 43 of Plaintiffs' SAC, Defendants deny that they

24 made any misrepresentation or failed to provide any appropriate credit. Defendants deny 25 that "Class members have suffered injury in fact and loss of money or property." As to the 26 remainder of the allegations contained in this paragraph, Defendants are without sufficient 27 knowledge or information to form a belief as to the truth of the allegations and on that 28 basis deny each and every allegation contained therein.
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1

44.

Answering paragraph 44 of Plaintiffs' SAC, Defendants deny each

2 and every allegation contained therein. 3 4 45. Answering paragraph 45 of Plaintiffs' SAC, Defendants admit that

5 "on or about June 28, 2007 Sprint Nextel claimed to have stopped charging most of the 6 above-described fees to Class members." Defendants deny the remainder of the 7 allegations contained in this paragraph. 8 9 46. Answering paragraph 46 of Plaintiffs' SAC, Defendants respond as

10 follows: As to Plaintiffs' allegation that, "As the data services here at issue are 11 'information services' under the Federal Communications Act, such services are not subject 12 to the provisions of the Federal Communications Act that permit common carriers to 13 charge taxes or fees associated with 'telecommunications' services," the allegation is a 14 conclusion of law to which no response is required. Defendants admit that in or about 15 June 2007 Defendants "stopped chargi ng most of the charges" assessed during the previous 16 billing cycle. Defendants deny the remainder of the allegations contained in this 17 paragraph. 18 19 47. Answering paragraph 47 of Plaintiffs' SAC, Defendants deny each

20 and every allegation contained therein. 21 22 23 24 48. Answering paragraph 48 of Plaintiffs' SAC, Defendants incorporate FIRST ALLEGED CLAIM

25 by reference Defendants' responses to paragraphs 1 through 47 of Plaintiffs' SAC. 26 27 49. Answering paragraph 49 of Plaintiffs' SAC, Defendants deny each

28 and every allegation contained therein.
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50.

Answering paragraph 50 of Plaintiffs' SAC, Defendants deny each

2 and every allegation contained therein. 3 4 51. Answering paragraph 51 of Plaintiffs' SAC, Defendants respond as

5 follows: Plaintiffs' allegations in this paragraph are conclusions of law to which no 6 response is required. To the extent any factual allegations are made, they are denied. 7 8 52. Answering paragraph 52 of Plaintiffs' SAC, Defendants respond as

9 follows: Plaintiffs' allegations in this paragraph are conclusions of law to which no 10 response is required. To the extent any factual allegations are made, they are denied. 11 12 53. Answering paragraph 53 of Plaintiffs' SAC, Defendants respond as

13 follows: Plaintiffs' allegations in this paragraph are conclusions of law to which no 14 response is required. To the extent any factual allegations are made, they are denied. 15 16 54. Answering paragraph 54 of Plaintiffs' SAC, Defendants respond as

17 follows: Plaintiffs' allegations in this paragraph are conclusions of law to which no 18 response is required. To the extent any factual allegations are made, they are denied. 19 20 55. Answering paragraph 55 of Plaintiffs' SAC, Defendants deny that they

21 have engaged in any unlawful, unfair and/or fraudulent conduct or that Defendants' actions 22 present any threat to the public. Defendants de ny that they have acknowledged any 23 wrongdoing. Defendants deny that they have ever "misdescribed" or continue to 24 "misdescribe" any taxes and/or fees charged to their data services customers. Plaintiffs' 25 remaining allegations in this paragraph are conclusions of law to which no response is 26 required. To the extent any factual allegations are made, they are denied. 27 28
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1

56.

Answering paragraph 56 of Plaintiffs' SAC, Defendants respond as

2 follows: This paragraph contains only a summary of Plaintiffs' requested relief, rather than 3 any factual allegations. As such, no response is required. To the extent any factual 4 allegations are made, they are denied. 5 6 7 8 57. Answering paragraph 57 of Plaintiffs' SAC, Defendants incorporate SECOND ALLEGED CLAIM

9 by reference Defendants' responses to paragraphs 1 through 56 of Plaintiffs' SAC. 10 11 58. Answering paragraph 58 of Plaintiffs' SAC, Defendants deny that they

12 "have imposed the above -identified charges in a manner that is not legally proper and that 13 were not properly claimed as due and owing" and that Defendants refused to comply with 14 any contractual obligations. Plaintiffs' remaining allegations in this paragraph are 15 conclusions of law to which no response is required. To the extent any factual allegations 16 are made, they are denied. 17 18 59. Answering paragraph 59 of Plaintiffs' SAC, Defendants deny that they

19 have breached any contracts and deny that they have imposed any fees, surcharges or taxes 20 not due and owing. Defendants deny that they have admitted any wrongdoing. 21 Defendants deny that the y have ever had any obligation to provide "full notice of the 22 nature of the charges imposed" and that they have breached any such obligation, if such 23 obligation exists. Defendants deny for lack of information and belief as to what any 24 putative class members are or were willing to do or that they have "paid such monies." 25 Plaintiffs' remaining allegations in this paragraph are conclusions of law to which no 26 response is required. To the extent any factual allegations are made, they are denied. 27 28
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60.

Answering paragraph 60 of Plaintiffs' SAC, Defendants deny each

2 and every allegation contained therein. 3 4 5 6 61. Answering paragraph 61 of Plaintiffs' SAC, Defendants incorporate THIRD ALLEGED CLAIM

7 by reference Defendants' responses to paragraphs 1 through 60 of Plaintiffs' SAC. 8 9 62. Answering paragraph 62 of Plaintiffs' SAC, Defendants respond as

10 follows: Plaintiffs' allegations in this paragraph are conclusions of law to which no 11 response is required. To the extent any factual allegations are made, they are denied. 12 13 63. Answering paragraph 63 of Plaintiffs' SAC, Defendants admit that

14 Defendants provide services to their data services customers. As to the remainder of the 15 allegations contained in this paragraph, Defendants are without sufficient knowledge or 16 information to form a belief as to the truth of the allegations and on that basis deny each 17 and every allegation contained therein. 18 19 64. Answering paragraph 64 of Plaintiffs' SAC, Defendants deny each

20 and every allegation contained therein. 21 22 65. Answering paragraph 65 of Plaintiffs' SAC, Defendants deny each

23 and every allegation contained therein. 24 25 66. Answering paragraph 66 of Plaintiffs' SAC, Defendants respond as

26 follows: In its August 15, 2008 Order, the Court granted Defendants' motion to strike this 27 paragraph, accordingly, no response is required. To the extent any allegations remain, 28 they are denied.
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67.

Answering paragraph 67 of Plaintiffs' SAC, Defendants deny each

2 and every allegation contained therein. 3 4 5 6 68. Answering paragraph 68 of Plaintiffs' SAC, Defendants incorporate FOURTH ALLEGED CLAIM

7 by reference Defendants' responses to paragraphs 1 through 67 of Plaintiffs' SAC. 8 9 69. Answering paragraph 69 of Plaintiffs' SAC, Defendants respond as

10 follows: Plaintiffs' allegations in this paragraph are conclusions of law to which no 11 response is required. To the extent any factual allegations are made, they are denied. 12 13 70. Answering paragraph 70 of Plaintiffs' SAC, Defendants respond as

14 follows: Plaintiffs' allegations in this paragraph are conclusions of law to which no 15 response is required. To the extent any factual allegations are made, they are denied. 16 17 71. Answering paragraph 71 of Plaintiffs' SAC, Defendants respond as

18 follows: Plaintiffs' allegations in this paragraph are conclusions of law to which no 19 response is required. To the extent any factual allegations are made, they are denied. 20 21 72. Answering paragraph 72 of Plaintiffs' SAC, Defendants respond as

22 follows: This paragraph of the complaint contains a summary of Plaintiffs' requested relief, 23 rather than any factual allegations. As such, no response is required. To the extent any 24 factual allegations are made, they are denied. 25 26 27 28
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1 2 3 73.

FIFTH ALLEGED CLAIM

Answering paragraph 73 of Plaintiffs' SAC, Defendants incorporate

4 by reference Defendants' responses to paragraphs 1 through 72 of Plaintiffs' SAC. 5 6 74. Answering paragraph 74 of Plaintiffs' SAC, Defendants respond as

7 follows: In its July 10, 2008 Order, the Court granted Defendants' motion to dismiss 8 Plaintiffs' Fifth Cause of Action for alleged violation of the Federal Communications Act. 9 No response is required for paragraphs 73 through 82 of Plaintiffs' SAC. 10 11 75. Answering paragraph 75 of Plaintiffs' SAC, Defendants respond as

12 follows: In its July 10, 2008 Order, the Court granted Defendants' motion to dismiss 13 Plaintiffs' Fifth Cause of Action for alleged violation of the Federal Communications Act. 14 No response is required for paragraphs 73 through 82 of Plaintiffs' SAC. 15 16 76. Answering paragraph 76 of Plaintiffs' SAC, Defendants respond as

17 follows: In its July 10, 2008 Order, the Court granted Defendants' motion to dismiss 18 Plaintiffs' Fifth Cause of Action for alleged violation of the Federal Communications Act. 19 No response is required for paragraphs 73 through 82 of Plaintiffs' SAC. 20 21 77. Answering paragraph 77 of Plaintiffs' SAC, Defendants respond as

22 follows: In its July 10, 2008 Order, the Court granted Defendants' motion to dismiss 23 Plaintiffs' Fifth Cause of Action for alleged violation of the Federal Communications Act. 24 No response is required for paragraphs 73 through 82 of Plaintiffs' SAC. 25 26 78. Answering paragraph 78 of Plaintiffs' SAC, Defendants respond as

27 follows: In its July 10, 2008 Order, the Court granted Defendants' motion to dismiss 28
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1 Plaintiffs' Fifth Cause of Action for alleged violation of the Federal Communications Act. 2 No response is required for paragraphs 73 through 82 of Plaintiffs' SAC. 3 4 79. Answering paragraph 79 of Plaintiffs' SAC, Defendants respond as

5 follows: In its July 10, 2008 Order, the Court granted Defendants' motion to dismiss 6 Plaintiffs' Fifth Cause of Action for alleged violation of the Federal Communications Act. 7 No response is required for paragraphs 73 through 82 of Plaintiffs' SAC. 8 9 80. Answering paragraph 80 of Plaintiffs' SAC, Defendants respond as

10 follows: In its July 10, 2008 Order, the Court granted Defendants' motion to dismiss 11 Plaintiffs' Fifth Cause of Action for alleged violation of the Federal Communications Act. 12 No response is required for paragraphs 73 through 82 of Plaintiffs' SAC. 13 14 81. Answering paragraph 81 of Plaintiffs' SAC, Defendants respond as

15 follows: In its July 10, 2008 Order, the Court granted Defendants' motion to dismiss 16 Plaintiffs' Fifth Cause of Action for alleged violation of the Federal Communications Act. 17 No response is required for paragraphs 73 through 82 of Plaintiffs' SAC. 18 19 82. Answering paragraph 82 of Plaintiffs' SAC, Defendants respond as

20 follows: In its July 10, 2008 Order, the Court granted Defendants' motion to dismiss 21 Plaintiffs' Fifth Cause of Action for alleged violation of the Federal Communications Act. 22 No response is required for paragraphs 73 through 82 of Plaintiffs' SAC. 23 24 25 26 83. Answering paragraph 83 of Plaintiffs' SAC, Defendants incorporate SIXTH ALLEGED CLAIM

27 by reference Defendants' responses to paragraphs 1 through 82 of Plaintiffs' SAC. 28
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1

84.

Answering paragraph 84 of Plaintiffs' SAC, Defendants deny each

2 and every allegation contained therein. 3 4 85. Answering paragraph 85 of Plaintiffs' SAC, Defendants deny they

5 received any "unjust enrichment." Defendants deny that "class members suffered injury." 6 The remainder of this paragraph contains a summary of relief requested by Plaintiffs to 7 which no response is required. To the extent that there are factual allegations in this 8 paragraph, they are denied. 9 10 11 12 86. Answering paragraph 86 of Plaintiffs' SAC, Defendants incorporate SEVENTH ALLEGED CLAIM

13 by reference Defendants' responses to paragraphs 1 through 85 of Plaintiffs' SAC. 14 15 87. Answering paragraph 87 of Plaintiffs' SAC, Defendants respond as

16 follows: Plaintiffs' allegations in this paragraph are conclusions of law to which no 17 response is required. To the extent any factual allegations are made, they are denied for 18 lack of information and belief. 19 20 88. Answering paragraph 88 of Plaintiffs' SAC, Defendants respond as

21 follows: Plaintiffs' allegations in this paragraph are conclusions of law to which no 22 response is required. To the extent any factual allegations are made, they are denied for 23 lack of information and belief. 24 25 89. Answering paragraph 89 of Plaintiffs' SAC, Defendants respond as

26 follows: This paragraph contains a summary of relief requested by Plaintiffs to which no 27 response is required. To the extent any factual allegations are made, they are denied for 28 lack of information and belief.
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1 2 3

AFFIRMATIVE DEFENSES

As separate and distinct affirmative defenses to Plaintiffs' allegations,

4 Defendants allege as follows: 5 6 7 8 9 1. The Complaint fails to state facts sufficient to constitute a claim for FIRST AFFIRMATIVE DEFENSE (Failure to State a Claim for Relief)

10 relief against Defendants. 11 12 13 14 15 2. The conduct complained of is not substantially injurious, and Plaintiff SECOND AFFIRMATIVE DEFENSE (Conduct Not Substantially Injurious)

16 is therefore precluded from asserting any claim against Defendants. 17 18 19 20 21 3. This action is barred by the doctrine of primary jurisdiction, in that the THIRD AFFIRMATIVE DEFENSE (Abstention/Primary Jurisdiction)

22 California Public Utilities Commission and the U.S. Federal Communications Commission 23 have particular expertise and experience in this area. In the alternative, the Court should 24 abstain from exercising jurisdiction. 25 26 27 28
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1 2 3 4 4.

FOURTH AFFIRMATIVE DEFENSE (Reasonableness and Good Faith)

Defendants acted reasonably and in good faith at all times material

5 herein. Defendants' conduct was not immoral, unethical, oppressive or unscrupulous. 6 Accordingly, Plaintiffs are barred from any recovery in this action, or their recovery is 7 limited. 8 9 10 11 12 5. The Complaint is barred under the Supremacy Clause of the United FIFTH AFFIRMATIVE DEFENSE (Federal Preemption)

13 States Constitution and the doctrine of federal preemption. The relationship between 14 Defendants and their customers is controlled exclusively by a detailed and comprehensive 15 statutory framework contained in the Federal Communications Act and in the 16 Telecommunications Act of 1996. The claims asserted in the Complaint are preempted by 17 these Acts, and the regulations thereunder, as they seek to negate those enactments and 18 regulations. 19 20 21 22 23 6. If Plaintiffs suffered any loss, damage, or detriment as a result of the SIXTH AFFIRMATIVE DEFENSE (Offset)

24 facts alleged in the Complaint, Plaintiffs' recovery from Defendants, if any, should be 25 offset and reduced to the fullest extent allowed by applicable law. 26 27 28
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1 2 3 4 7.

SEVENTH AFFIRMATIVE DEFENSE (State Preemption)

The relationship between Defendants and their customers is controlled

5 exclusively by a detailed and comprehensive enforcement scheme established under state 6 law, administered by the California Public Utilities Commission and in other states under 7 similar regulatory schemes. The claims asserted in the Complaint are preempted by the 8 Public Utilities Code and regulations and decisions thereunder, and by other similar state 9 regulatory schemes, as Plaintiffs purport to seek an impermissible regime of parallel 10 regulation. 11 12 13 14 15 8. Plaintiffs failed to mitigate their purported damages, if any, and to the EIGHTH AFFIRMATIVE DEFENSE (Failure to Mitigate)

16 extent of that failure to mitigate, their claims are barred or reduced. 17 18 19 20 21 9. By their conduct, action and inaction, Plaintiffs are estopped from NINTH AFFIRMATIVE DEFENSE (Estoppel)

22 obtaining the relief they seek. 23 24 25 26 27 10. By their conduct, action and inaction, Plaintiffs have unclean hands TENTH AFFIRMATIVE DEFENSE (Unclean Hands)

28 and therefore are barred from obtaining the relief they seek.
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1 2 3 4 11.

ELEVENTH AFFIRMATIVE DEFENSE (Waiver)

By their conduct, action and inaction, Plaintiffs have waived any

5 claims against Defendants. 6 7 8 9 10 11 12 13 14 15 13. Plaintiffs' claims are barred under the equitable defense of THIRTEENTH AFFIRMATIVE DEFENSE (Acquiescence) 12. Plaintiffs' claims are barred under the doctrine of laches. TWELFTH AFFIRMATIVE DEFENSE (Laches)

16 acquiescence. 17 18 19 20 21 22 23 24 25 26 15. The charges complained of by Plaintiffs in their Second Amended FIFTEENTH AFFIRMATIVE DEFENSE (Charges Required or Allowed by State Law) 14. Plaintiff's claims are barred under the voluntary payment doctrine. FOURTEENTH AFFIRMATIVE DEFENSE (Voluntary Payment Doctrine)

27 Complaint were specifically allowed or required under the laws of various of the states. 28
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1 2 3 4 16.

SIXTEENTH AFFIRMATIVE DEFENSE (Statutes of Limitations)

The Complaint and each and every count thereof is barred i n whole or

5 in part by the applicable statutes of limitations, including, without limitation, California 6 Code of Civil Procedure Sections 337, 337.1, 339, 340, and 343. 7 8 9 10 17. Defendants presently have insufficient knowledge or information OTHER AFFIRMATIVE DEFENSES

11 upon which to form a belief as to whether it may have additional, as yet unstated, 12 affirmative defenses. Defendants reserve the right to assert additional affirmative 13 defenses. 14 15 16 17 18 19 20 21 22 23 3. That Defendants be awarded their attorneys' fees and costs of suit 2. That Plaintiffs' complaint be dismissed with prejudice; 1. That Plaintiffs take nothing by their complaint; WHEREFORE, Defendants pray that judgment be entered as follows: PRAYER FOR RELIEF

24 incurred herein; and 25 26 27 28
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1 2

4.

For such other and further relief as the Court deems just and proper.

3 Dated: September 8, 2008 4 5 6 7 8 9 10 11 12 13 14 Dated: September 8, 2008 15 16 17 18 19 20 21 22 23 24 25 26 27 28
W02-WEST:8JCD1\400995037.4 USDC Case No. 07 CV 2231 RJB

SHEPPARD, MULLIN, RICHTER & HAMPTON LLP

By

s/ James J. Mittermiller Attorneys for Defendants SPRINT SOLUTIONS, INC. and SPRINT SPECTRUM L.P. E-mail: [email protected]

DEMAND FOR JURY TRIAL Defendants demand a jury trial on all claims.

SHEPPARD, MULLIN, RICHTER & HAMPTON LLP

By

s/ James J. Mittermiller Attorneys for Defendants SPRINT SOLUTIONS, INC. and SPRINT SPECTRUM L.P. E-mail: [email protected]

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DEFENDANTS' ANSWER TO SECOND AMENDED COMPLAINT