Postpichal v. Cricket Wireless, LLC

Background

This order addressed plaintiffs’ request to clarify an earlier order granting class certification in their Racketeer Influenced and Corrupt Organizations Act case. Plaintiffs alleged that Cricket Wireless advertised 4G service and sold 4G-capable phones in geographic markets where Cricket did not provide 4G coverage. They claimed that customers paid for 4G phones and monthly service but received slower and less expensive 3G coverage.

The earlier class-certification order excluded certain people who were subject to arbitration agreements. The exclusions included customers who continued using Cricket after receiving a May 22, 2014 text message about Cricket’s arbitration clause, customers who agreed to arbitration electronically after May 2017, and any class member Cricket could prove was subject to an arbitration agreement. The earlier order did not specifically address arbitration provisions placed inside phone boxes because those issues required consideration of state arbitration law.

The parties disagreed about the meaning of the first two exclusions. Cricket argued that it did not need to file a motion to compel arbitration to exclude customers covered by those provisions. Plaintiffs argued that Cricket had to ask the court to compel arbitration for each class member it sought to exclude.

Ruling

The court held that Cricket had the burden of proving that proposed exclusions were based on valid, written arbitration agreements covering the dispute. For the 2014 text-message exclusion, Cricket had to show, under applicable law, that class members assented to arbitration through the text message. For the post-May 2017 electronic-signature exclusion, Cricket had to show that the affected class members agreed to a valid, written arbitration agreement covering the dispute.

The court stated that the evidence submitted so far was not enough to exclude class members. It required Cricket to file a motion to compel arbitration supported by evidence, including specified lists and witness testimony. The court emphasized that the required evidence might still not be sufficient to meet Cricket’s burden.

The court also ruled that plaintiffs’ motion was a proper request for clarification, not a request for reconsideration under Local Rule 7-9. It did not address Cricket’s arguments that the arbitration issues created predominating individual issues or violated due process because Cricket had not sought the required permission to request reconsideration.

Disposition and Next Steps

The court granted plaintiffs’ motion for clarification to the extent stated. It clarified that Cricket must move to compel arbitration for any class members it seeks to exclude. Cricket was given 21 days from the date of the order to file its motion and supporting evidence. Plaintiffs then had 21 days after that filing to respond, provide a list of people remaining in the class, and challenge individual exclusions. The court also appointed Wagstaff & Cartmell LLP and Gupta Wessler PLLC as counsel for the class.