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Bond v. Cricket Communications, LLC

United States District Court, D. Maryland

October 26, 2017

TIM BOND, on his own behalf and on behalf of all others similarly situated Plaintiffs
v.
CRICKET COMMUNICATIONS, LLC Defendant

          MEMORANDUM AND ORDER RE: INTERVENE

          Marvin J. Garbis United States District Judge.

         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 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 Background[2]

         After its acquisition by AT&T in 2013, Cricket offered for sale and sold cellphones[3] that operate exclusively on a 3G CDMA[4]cellular network. However, AT&T and Cricket had decided to discontinue the CDMA network and require Cricket customers to use AT&T's GSM[5] 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 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 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,
• 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 ...


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