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Federal appeals court examines disputed telephone charges

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Writing for a unanimous 7th Circuit Court of Appeals panel, U.S. Judge David Hamilton authored an opinion Tuesday full of what he calls “telephonese.” The opinion delves into a small business’s disputed phone bill charges and how those matters are governed by state and common law.

The ruling comes in Lady Di’s Inc. v. Enhanced Services Billing Inc. and ILD Telecommunications Inc., No. 10-3903, a case from U.S. Judge Sarah Evans Barker in the Southern District of Indiana involving an Indianapolis beauty and hair salon.

Using AT&T as its telephone company, Lady Di’s disputes charges that were on its telephone bill in 2008 from ESBI in Delaware and ILD in Delaware – both described as “billing aggregators” that are not directly involved with the sale of telecommunications and services to customers but act as intermediaries between telephone companies such as AT&T and service providers offering e-fax services or Internet resources.

After customers pay their telephone bills, ESBI and ILD collect payments for service provider charges recovered by local telephone companies, deduct part of the payment as a fee, and forward the rest to service providers.

In this case, Lady Di’s owners dispute several months of charges in 2008 that they claim were unauthorized for an e-fax service and an Internet search engine and directory option. Lady Di’s made its October payment that year that included the $49.95 and $42.75 charges before discovering the charges, and then contacted AT&T for a refund. AT&T told the business to contact both ESBI and ILD, and the billing aggregators named as defendants here either refused a refund or didn’t respond.

After this suit was filed in state court and later removed to federal court, Lady Di’s account was credited in full for the disputed charges – but the case proceeded on claims that the allegedly unauthorized charges violated Indiana’s anti-cramming statute as well as the Deceptive Consumers Practices Act, and that the amounts were unjust enrichment under common law.

Judge Barker denied a class-certification request and later in separate rulings granted the defendants’ motion for summary judgment on the claims of unjust enrichment and statutory deception. Lady Di’s appealed both rulings, and the 7th Circuit panel affirmed the judgment, but the court followed a different path to reach that same conclusion.

“Turning first to the merits, we conclude that the Indiana anti-cramming regulation does not apply to these defendants because they are not telephone companies and did not act in this case as billing agents for telephone companies,” Judge Hamilton wrote.

Although the anti-cramming regulation detailed in both Indiana Code 8-1-29-5(2) and 170 IAC 7-1.1-19 doesn’t provide a private cause of action, Judge Hamilton wrote that it does provide a way to defend against collection actions. The judges also determined that a recorded phone conversation shows that Lady Di’s actually did order the disputed services and that defeats the unjust enrichment and deceptive commercial solicitation claims.

Precedent from state courts during the past century proves that Indiana courts likely wouldn’t agree with the plaintiffs on the unjust enrichment claims, Judge Hamilton wrote.

“We do not believe Indiana courts would use the equitable doctrine of unjust enrichment to convert a technical violation of a regulation into a right of action that would provide a (tiny) windfall for an individual customer who actually ordered, received the benefit of, and paid for the services in question,” he wrote.

“If Indiana wants to create a private right of action for a violation of the anti-cramming law, it can do so by statute or perhaps by regulation. It has not done so yet. If a customer is a victim of genuine cramming – charged for unwanted services that were not ordered – the equitable doctrine of unjust enrichment might well be applicable. But the doctrine … cannot be used in this way by a customer like plaintiff, who actually ordered and received the services.”
 

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  1. Such things are no more elections than those in the late, unlamented Soviet Union.

  2. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  3. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  4. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  5. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

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