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Since the cell phone became a cranial fixture some time last decade, the plaintiff bar has taken aim at phone service companies, suing over marketing, billing practices and reception range. But like so many consumers with a shaky signal, the class action lawyers have hit serious static. “Nobody’s been able to get any relief in court,” said Reed Kathrein, a partner at plaintiff firm Lerach Coughlin Stoia Geller Rudman & Robbins. Several California class actions over cell phone fees — including two that Kathrein has brought — have languished for years in various circles of pretrial limbo, as the companies aim to beat down plaintiffs before they argue their cases. “They throw up a lot of roadblocks,” Kathrein said. These range from challenges growing out of the 2004 ballot measure that curbed private attorney general suits to attempts to force arbitration to arguments that federal law precludes many state claims. But over the past few weeks, Kathrein’s suits have made some significant headway. A May 31 ruling kept a 7-year-old case over phone service maps out of arbitration and moving toward trial. The Los Angeles County Superior Court case has been whittled down to a claim for injunctive relief only. And a tentative ruling on Thursday by Alameda County Superior Court Judge Ronald Sabraw would allow another case over cell phone termination fees to move forward, rather than having to wait for a ruling by the Federal Communications Commission on whether federal law pre-empts the claim. Dominic Surprenant, a partner at Quinn Emanuel Urquhart Oliver & Hedges defending Nextel Communications Inc. in the Alameda, Calif., case, said the ruling has more to do with FCC delays than with the case itself. He argues that such suits are the result of the plaintiff bar dialing into cell phone litigation as soon as it became clear that the industry was growing. “They clearly have cell phones in their cross hairs,” he said. “There’s a lot of revenue flowing through these companies.” Over the past few years, Suprenant said, he’s worked on somewhere between eight and 10 cell phone class actions. “The plaintiff bar is always looking for the next industry,” he said. “Cell phones over the last year have been very attractive. Almost everyone has a cell phone, and almost everyone doesn’t like their cell phone provider.” There’s no question that cell phone suits are popular. In Kathrein’s Los Angeles case, Superior Court Judge Carolyn Kuhl cites at least seven decisions on issues of arbitration clauses alone. But Kathrein said the problems are with the business practices of cell service providers, rather than plaintiff attorneys. “They’re a sleazy industry,” Kathrein said. He argues that cell phone companies use marketing materials — including coverage maps — to get clients, lock them into contracts with early-termination fees and force them to arbitrate claims, rather than go to court. “We sued over coverage maps seven years ago, and now people realize they can’t get coverage, but they can’t switch because they’re locked in,” he said. The biggest issue most cell phone lawyers are dealing with is the limitation that federal law places on suits against cell phone companies. An FCC law says that state courts cannot regulate phone rates and most issues relating to technology, but that they may regulate other aspects of cell phone contracts. “The big fight has been with plaintiff lawyers trying to find ways to attack that don’t deal with technology or rates,” Suprenant said. For example, he said, plaintiff lawyers may sue in state court over notices given to customers of rate changes, but not over the rate changes themselves. FCC regulation promises to be an ongoing issue in the Alameda County case, where Sabraw seems poised to let the case proceed, rather than await a ruling from the FCC on whether termination fees are part of the federally regulated rate structure. But there are outstanding questions in that case and the case in front of Kuhl that must be answered before trial. In the meantime, the lawyers expect the litigation to continue.

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