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Lozano v. AT&T Wireless Servs.

Lozano v. AT&T Wireless Servs.

United States Court of Appeals for the Ninth Circuit

June 4, 2007, Argued and Submitted, Pasadena, California; September 20, 2007, Filed

Nos. 05-56466, 05-56511

Opinion

 [*721]  ROBART, District Judge:

This opinion addresses cross-appeals of the district court's order denying in part, and granting in part, Paul Lozano's class certification  [**2] motion. Lozano appeals the district court's denial of a nationwide class for his Federal Communications Act ("FCA") and declaratory relief claims. Lozano also appeals the court's denial of a California subclass on these claims, as well as his breach of contract claim. AT&T Wireless Services, Inc. ("AWS") appeals the district court's certification of a California subclass for Lozano's state law claims. We have jurisdiction to hear this appeal pursuant to Rule 23(f) of the Federal Rules of Civil Procedure and 28 U.S.C. § 1292(e). For the reasons stated, we affirm in part and reverse in part.

I. Background

Lozano is a customer of AWS and brought this putative class action based on AWS's disclosures relating to its billing practices for cellular services. 3 On October 4, 2004, Lozano filed a Second Amended Complaint in the district court. In his complaint, Lozano asserts claims under the FCA, the Declaratory Judgment Act ("DJA"), California contract law, the California Consumer Legal Remedies Act ("CLRA"), and California Unfair Competition Law ("UCL"). Lozano bases these claims on allegations that AWS billed its customers for cellular telephone calls during a billing period other than the  [**3] billing period in which the calls were made, a practice termed "out-of-cycle billing." Lozano contends that by doing this, AWS assessed charges for cellular telephone calls that would not have been assessed if the calls had been billed during the billing period in which the calls were made. AWS, according to Lozano, did not fully and adequately disclose its billing practice  [*722]  to its customers at the time they entered into contracts with AWS.

A. Out-of-Cycle Billing

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504 F.3d 718 *; 2007 U.S. App. LEXIS 22430 **; 42 Comm. Reg. (P & F) 799

PAUL LOZANO, on behalf of himself and all others similarly situated and as a private attorney general on behalf of the members of the general public residing within the State of California, Plaintiff-Appellee-Cross Appellant, v. AT&T WIRELESS SERVICES, INC., a Delaware Corporation, Defendant-Appellant-Cross Appellee.

Subsequent History: Reconsideration denied by Lozano v. At&T Wireless Servs., 2007 U.S. App. LEXIS 27748 (9th Cir. Cal., Nov. 26, 2007)

Prior History:  [**1] Appeal from the United States District Court for the Central District of California William J. Rea, District Judge, Presiding. 1 D.C. No. CV-02-00090-AHS.

.

Lozano v. At&T Wireless, 2003 U.S. Dist. LEXIS 21780 (C.D. Cal., Oct. 28, 2003)

Disposition: AFFIRMED in part, REVERSED in part.

CORE TERMS

district court, billing, arbitration, out-of-cycle, class action, customers, predominance, minutes, class certification, unfair, unconscionable, disclosures, argues, subclass, certify, certification, consumer, damages, contends, arbitration agreement, reimbursement, mootness, billing practices, invoice, overage, roaming, cycle, reservation, charges, intent of congress

Contracts Law, Defenses, Unconscionability, Adhesion Contracts, Communications Law, Federal Acts, Federal Communications Act, Federal Preemption, Civil Procedure, Special Proceedings, Class Actions, Appellate Review, Certification of Classes, Prerequisites for Class Action, General Overview, Business & Corporate Compliance, Arbitration, Federal Arbitration Act, Arbitration Agreements, Contracts Law, Contract Conditions & Provisions, Arbitration Clauses, Alternative Dispute Resolution, Arbitrability, Labor & Employment Law, Conditions & Terms, Arbitration Provisions, Enforcement, Remedies, Antitrust & Trade Law, Sherman Act, Jurisdiction, Jurisdiction, Jurisdictional Sources, Statutory Sources, Governments, Legislation, Interpretation, Commonality, Remedies, Damages, Consumer Protection, Deceptive & Unfair Trade Practices, State Regulation, State & Territorial Governments, Claims By & Against, Justiciability, Mootness, Constitutional Law, Case or Controversy, Class Members, Appeals, Standards of Review