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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. Bob Leonard killed two people named Jennifer and Dion Longworth. There were no Smiths involved.

  2. Being on this journey from the beginning has convinced me the justice system really doesn't care about the welfare of the child. The trial court judge knew the child belonged with the mother. The father having total disregard for the rules of the court. Not only did this cost the mother and child valuable time together but thousands in legal fees. When the child was with the father the mother paid her child support. When the child was finally with the right parent somehow the father got away without having to pay one penny of child support. He had to be in control. Since he withheld all information regarding the child's welfare he put her in harms way. Mother took the child to the doctor when she got sick and was totally embarrassed she knew nothing regarding the medical information especially the allergies, The mother texted the father (from the doctors office) and he replied call his attorney. To me this doesn't seem like a concerned father. Seeing the child upset when she had to go back to the father. What upset me the most was finding out the child sleeps with him. Sometimes in the nude. Maybe I don't understand all the rules of the law but I thought this was also morally wrong. A concerned parent would allow the child to finish the school year. Say goodbye to her friends. It saddens me to know the child will not have contact with the sisters, aunts, uncles and the 87 year old grandfather. He didn't allow it before. Only the mother is allowed to talk to the child. I don't think now will be any different. I hope the decision the courts made would've been the same one if this was a member of their family. Someday this child will end up in therapy if allowed to remain with the father.

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  4. The judge thinks that she is so cute to deny jurisdiction, but without jurisdiction, she loses her immunity. She did not give me any due process hearing or any discovery, like the Middlesex case provided for that lawyer. Because she has refused to protect me and she has no immunity because she rejected jurisdiction, I am now suing her in her district.

  5. Sam Bradbury was never a resident of Lafayette he lived in rural Tippecanoe County, Thats an error.

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