Steps to Sue

First Steps

The first thing you are going to need is a signed copy of your AT&T contract. In the contract, find the applicable section that promises unlimited data speeds and make sure that it is highlighted for court when you file your claim.
 

File in your state’s small claims court

Find your state in THIS list and follow the links to see how and where to file. In most states, filing is a matter of filling out a form and paying the filing fee, which typically ranges from $40-80. Most small claims courts adhere to the loser-pays philosophy, so you may be able to get that filing fee back if you’re successful in court. Most states will let you download the forms and fill them out at home, but if you have questions, take the form to the court clerk and have them help you. Its important to get this step right, so ask questions if you have them and have the clerk check your form before you file!

Notification and subpoena

Once you’ve filed in your jurisdiction, you have to notify the defendant (AT&T) of the filing. This is also the step that allows you to require AT&T to provide information as well. In Matt’s case, he subpoenaed the records for the tower closest to his home along with the average speed of users in his area.

That will lead to a "discovery" process where each side of the suit is given pertinent information from the other side. That means you are going to need to hand over your research to AT&T and they must give you pertinent information (about cell towers and speeds in your area) at the same time.

It is a good idea to keep track of your data usage on a monthly basis whether or not you are planning on suing one of the largest mobile carriers in the world. You can track your data usage directly through AT&T by calling *3282# (*Data#) or by using applications like Norton Mobile Utilities Beta on an Android device. Before "clarifying" its policy yesterday, AT&T had been throttling the top 5% of users in an area that meant that many people were seeing their speeds throttled after about 2 GB of use. From my own personal experience, I had not been throttled by AT&T after 2.5 GB of use in the Boston area but different areas had different limits. AT&T will now throttle users after 3 GB on HSPA networks and 5GB on LTE networks.

Next, research your data speeds. AT&T increased the speed of users that have been throttled in recent weeks but it is an interesting exercise to check your speeds anyway. PublikDemand recommends Speedtest or Glasnost for this purpose. Document your un-throttled speed and then your throttled speed. Spaccarelli went from, "0.13Mbps, versus a normal rate of 3.46Mbps" in his research.
As in any court case, the more prepared you are, the better chance you will have for success.

Proving your case

Your day in court has finally arrived—now what? Unfortunately, its not quite as simple as showing up and telling the judge you want your $850 too. You’ll need to prove your case, but here are the points to make in your argument:
  • You were promised unlimited data by the contract you signed with AT&T. Have your a copy of your contract handy, and highlight the sections that support your case, in particular the portions promising you unlimited data.
  • AT&T did in fact limit your service: this is a well-documented practice of AT&T’s, but you can prove it in your own case using tools like Speedtest or Glasnost, which can check for different kinds of throttling. Check your bandwidth frequently, even before suspected throttling, and log your findings, because its important to show your normal rate of download versus your throttled rate. In Matt’s case, he was seeing a throttled rate of 0.13Mbps, versus a normal rate of 3.46Mbps, a 20x slowdown of his normal rate.  The best evidence of this would be to check and log your bandwidth several times a day, for several days both before and after the throttling kicks in.
  • The throttling of your bandwidth by AT&T caused you some kind of economic damage, which is the basis for the monetary amount you specify in your lawsuit. In Matt’s case, the damage was an inability to use Netflix, a service which he paid for and had a reasonable expectation to be able to use. Your damages may be based on something like that, an inability to do your work, or anything that has demonstrable economic value. In general you can ask for your state’s maximum award, but the judge is going to use this part of your argument in setting damages if you successfully plead your case.
  • AT&T claims to have the fastest network. Under the doctrine of “justifiable reliance“, that a reasonable person of similar education and background would accept their claim on its face and make an economic decision based on the content of their claim, they are obligated to make a reasonable attempt at providing such service.
  • AT&T’s methodology for choosing a cap was unpredictable and vague. The top 5% of users in an area found themselves throttled,
  • AT&T has defended their throttling in the past by saying that the top 5% of users is responsible for network congestion. But a closer look disproves this theory:
    • Is the premise true? Uncapped users on average utilize an average of 3.97GB data transfer per billing cycle, versus 3.19 for capped plans, according to a study by Validas, which amounts to an average of an additional 25% bandwidth. AT&T routinely provides data plans up to 5GB per month, which leads one to believe that the average uncapped user is well within their ability to provide service.
    • Is it necessary? AT&T, until March 1, began throttling unlimited customers who had utilized between 1.5GB and 2.0GB in a given billing cycle. AT&T has had a 3GB billing plan for over a year at a similar price point to their old unlimited plan. Clearly they had the ability to deliver the promised service at least up to that point, and declined to do so as a matter of policy. (As of March 1, their stated policy is to throttle unlimited customers starting at 3GB of data transfer, which stil flies in the face of an unlimited plan.)
Based on the above arguments you have a good chance of a similar outcome in your own case.  However, small claims decisions are not precedent-setting, so your mileage my vary depending on the jurisdiction you file in. AT&T has stated an intent to appeal the decision in Matt’s case, and if they do so in yours, do not expect the money to come right away as any judgement will be held up while the appeal is processed.

Prove Economic Damage

In any claims court, you are going to have to prove actual damage. This may be harder to do than you might imagine. The onus is on the plaintiff to prove that their life, work or day-to-day financial activities were harmed because of the data throttling. Spaccarelli proved his point by pointing to the fact that he streamed Netflix through his phone (which he hooked up to a projector) and that the throttling caused him to not be able to use a service that he paid for. Streaming Spotify (at $9.99 a month for mobile devices) could also be an example of this.

There is danger in following Spaccarelli's example though. Foremost, you are going to need to pay between $40 and $80 to file the claim and if you lose, that is a cost you are going to have to eat. Also, Spaccarelli is an extreme edge case user of AT&T's network. He jailbroke his iPhone and used it as a data connection for his other devices along with the Netflix streaming. Really, nobody streams ALL of their movies and television on mobile devices.

Your case will likely not succeed if you have only been throttled once in your history. The best advice is to only proceed if you find that AT&T's policy hurt you on a consistent basis. The company will also likely counter that it has plenty of options available for consumers on tiered data plans. AT&T wants nothing more than to move all of its users off the grandfathered legacy unlimited data plans, which makes up about 17% of all its subscribers. Yet, the premise of the suit is that you, as a consumer, signed a contract that promised unlimited data at speeds commensurate to "the fastest network in the country," as AT&T advertises.

 

Pitfalls

Foremost, when you are bringing a case in small claims court, you are not allowed a lawyer. Sure, you can get legal advice but an outside source but the claim is yours alone. That means that to win a claims suit against a company like AT&T, you are going to need to be extremely well prepared. Spacarrelli researched his case for three months before filing it in Semi Valley, Calif. on Jan. 9, 2012. The flipside of that is that AT&T will not be allowed to send a team of lawyers after you. In Spaccarelli's case he was opposed by an AT&T area sales manager.

The AT&T contract will be key. AT&T will contend that the contract is the binding agreement between the users and the carrier and in that contract there are provisions citing acceptable use and policies that protect the carrier from lawsuits. With yesterday's clarification of the data throttling policy it is unclear how that new information will be viewed by a claims court on a case-by-case basis. There are no legal precedents set in claims court so each case is individual to others that have been filed. Last year the Supreme Court upheld a provision in AT&T's contract that prohibits class-action lawsuits to be filed. So, you will be alone in your quest.

This was recreated from information found on bothe of these websites  www.readwriteweb.com and www.publikdemand.wpengine.com Click on either link to get their full article!