Case 2:21-cv-00856-TL Document 1-2 Filed 06/25/21 Page 1 of 24
`ELECTRONICALLY FILED
`5/3/2021 12:38 PM
`Heidi Percy
`County Clerk
`Snohomish County, WASH
`Case Number: 21-2-02029-31
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`SUPERIOR COURT OF WASHINGTON
`FOR SNOHOMISH COUNTY
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`21-2-02029-31
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`No.
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`CLASS ACTION COMPLAINT FOR
`STATUTORY DAMAGES AND
`INJUNCTIVE RELIEF UNDER THE
`CONSUMER PROTECTION ACT,
`RCW 19.86, AND FOR INJUNCTIVE
`RELIEF UNDER THE COMMERCIAL
`ELECTRONIC MAIL ACT,
`RCW 19.190
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`
`
`DANIELLE LATIMER,
`for Herself, as a Private Attorney
`General, and/or On Behalf Of All
`Others Similarly Situated,
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`v.
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`AT&T MOBILITY LLC,
`DIRECTV, LLC,
`JOHN DOE 1,
`AT&T INC., and
`DOES 2–20, inclusive,
`
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`Plaintiff,
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`Defendants.
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`Plaintiff DANIELLE LATIMER, demanding trial by jury as to all issues so triable in a
`separate document to be filed, alleges as follows, on personal knowledge and/or on information
`and belief and/or upon the investigation of Plaintiff’s counsel, against Defendant AT&T
`MOBILITY LLC, Defendant DIRECTV, LLC, Defendant JOHN DOE 1, Defendant AT&T
`INC., and Defendants DOES 2 through 20, inclusive:
`INTRODUCTION
`I.
`The subject line of an email from a mobile telephone company is false or
`1.
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`CLASS ACTION COMPLAINT
`FOR STATUTORY DAMAGES AND INJUNCTIVE RELIEF - 1
`
`
`HATTIS & LUKACS
`400 108th Avenue NE, Suite 500
`Bellevue, WA 98004
`T: 425.233.8650 | F: 425.412.7171
`www.hattislaw.com
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`Case 2:21-cv-00856-TL Document 1-2 Filed 06/25/21 Page 2 of 24
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`misleading when the subject line states that the email contains important information about a
`customer’s personal cell phone account, but the email is actually an advertisement for satellite
`television offered by a different company.
`That is the case at bar: Plaintiff Danielle Latimer had an account with Defendant
`2.
`AT&T Mobility LLC for cell phone service. On July 9, 2018, AT&T Mobility LLC transmitted
`to Ms. Latimer (and to a class of similarly situated Washington State residents) an email with
`the subject line “Important AT&T wireless account notice”.
`The email was not a notice about Ms. Latimer’s AT&T wireless account. It was
`3.
`an advertisement for television subscription services offered by Defendant DIRECTV, LLC
`(which is a corporate sibling of AT&T Mobility LLC, since both are subsidiaries of Defendant
`AT&T Inc.).
`The subject line of the email therefore contained false or misleading information
`4.
`in violation of the Washington Consumer Protection Act, RCW 19.86 (“CPA”), and the
`Washington Commercial Electronic Mail Act, RCW 19.190 (“CEMA”).
`Based on information and belief, July 8, 2018, was not the only time that one or
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`more of the defendants sent an email with that subject line or with a subject line of similar
`meaning and effect. Based on information and belief, the defendants continue to transmit such
`email subject lines into Washington State.
`Plaintiff therefore brings this class action with the principal goals of (1)
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`obtaining statutory damages for past violations of the CPA and CEMA, and (2) obtaining a
`public injunction to protect the public and future AT&T wireless subscribers from future
`violations.
`PARTIES
`II.
`Plaintiff Danielle Latimer is an adult individual who is a citizen of the United
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`States of America and a citizen of the State of Washington. She was at all relevant times and is
`a resident of the City of Edmonds, County of Snohomish, State of Washington.
`Defendant AT&T Mobility LLC is a limited liability company chartered under
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`the laws of the State of Delaware with its principal place of business in the State of Georgia.
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`CLASS ACTION COMPLAINT
`FOR STATUTORY DAMAGES AND INJUNCTIVE RELIEF - 2
`
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`HATTIS & LUKACS
`400 108th Avenue NE, Suite 500
`Bellevue, WA 98004
`T: 425.233.8650 | F: 425.412.7171
`www.hattislaw.com
`
`

`

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`Case 2:21-cv-00856-TL Document 1-2 Filed 06/25/21 Page 3 of 24
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`Defendant DIRECTV, LLC is a limited liability company chartered under the
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`laws of the State of California with its principal place of business in the State of California.
`AT&T Mobility LLC and DIRECTV, LLC are as of the time of the filing of this
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`lawsuit and at all relevant times in the past corporate siblings in that AT&T Mobility LLC and
`DIRECTV, LLC are and were each a subsidiary of Defendant AT&T Inc.
`Defendant JOHN DOE 1 is a business entity of unknown form which is
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`currently in the process of being created or finalized and which may succeed to the liabilities of
`Defendant DIRECTV, LLC, when the ongoing transaction between AT&T Inc. and TPG
`Capital to create a new, spun-off DIRECTV business closes (as is expected to happen in the
`second half of 2021, according to AT&T Inc.’s most recent Annual Report (SEC Form 10-K)).
`(References in this pleading to the “named defendants” exclude Defendant John Doe 1.)
`Defendant AT&T Inc. is a corporation chartered under the laws of the State of
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`Delaware with its principal place of business in the State of Texas.
`Defendant AT&T Inc. is the parent of Defendant AT&T Mobility LLC and
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`Defendant DIRECTV, LLC. Both generally and with regard to the actions and omission pled
`herein, Defendant AT&T Inc. so dominates and controls Defendant AT&T Mobility LLC and
`Defendant DIRECTV, LLC as to make Defendant AT&T Mobility LLC and Defendant
`DIRECTV, LLC simple instrumentalities of Defendant AT&T Inc. Defendant AT&T Inc.’s
`ownership of Defendant AT&T Mobility LLC and Defendant DIRECTV, LLC is not for the
`purpose of participating in the affairs of the subsidiary corporations in the customary and usual
`manner but for the purpose of controlling Defendant AT&T Mobility LLC and Defendant
`DIRECTV, LLC so that each may be used as a mere agency or instrumentality of Defendant
`AT&T Inc.
`For example, the principal allegation in this lawsuit—that AT&T Mobility
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`transmitted a commercial email with a false or misleading subject line in order to advertise the
`services of Defendant DIRECTV, LLC—required instruction, approval, or coordination by
`parent company AT&T Inc. AT&T Inc. also reaped the ultimate benefits of the unlawful
`activities pled herein.
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`CLASS ACTION COMPLAINT
`FOR STATUTORY DAMAGES AND INJUNCTIVE RELIEF - 3
`
`
`HATTIS & LUKACS
`400 108th Avenue NE, Suite 500
`Bellevue, WA 98004
`T: 425.233.8650 | F: 425.412.7171
`www.hattislaw.com
`
`

`

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`Case 2:21-cv-00856-TL Document 1-2 Filed 06/25/21 Page 4 of 24
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`For example, AT&T Inc. so dominates and closely integrates the operations of
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`Defendant AT&T Mobility LLC and Defendant DIRECTV, LLC that AT&T Inc. combines
`both companies (with others) for securities reporting purposes in the same “Communications”
`segment of its business—the most important by far of AT&T Inc.’s reportable segments. See
`AT&T Inc., Annual Report (SEC Form 10-K), filed Feb. 25, 2021, p. 4 (“Our Communications
`segment provides wireless and wireline telecom, video and broadband services to consumers
`located in the U.S. and businesses globally. Our Communications services and products are
`marketed under the AT&T, Cricket, AT&T PREPAID, AT&T TV, AT&T Fiber and
`DIRECTV brand names. The Communications segment provided approximately 79% of 2020
`segment operating revenues and 80% of our 2020 total segment contribution.”).
`16.
`Defendant Doe 2 through Doe 20, inclusive, aided, abetted and/or dominated
`Defendant AT&T Mobility LLC and/or Defendant DIRECT, LLC in such a manner that Doe 2
`through Doe 20, inclusive, are each directly, contributorily, vicariously, derivatively and/or
`otherwise liable for the acts or omissions of Defendant AT&T Mobility LLC and/or Defendant
`DIRECT, LLC. Plaintiff is currently unaware of the true identities of Doe 2 through Doe 20,
`inclusive; Plaintiff anticipates that, upon learning the true identities of any of Doe 2 through
`Doe 20, inclusive, Plaintiff will either freely amend the operative complaint or request leave
`from the Court to amend the operative complaint.
`JURISDICTION AND VENUE
`III.
`This Court has subject matter jurisdiction over this civil action pursuant to,
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`without limitation, Section 6 of Article IV of the Washington State Constitution (Superior
`Court jurisdiction, generally), RCW 19.86.090 (Superior Court jurisdiction over Consumer
`Protection Act claims) and RCW 19.190.090 (Superior Court jurisdiction over Commercial
`Electronic Mail Act claims).
`This Court has personal jurisdiction over each of the defendants pursuant to,
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`without limitation, RCW 4.28.185, in that: (1) Defendant AT&T Mobility LLC and Defendant
`DIRECTV, LLC are each registered to do business in the State of Washington; (2) each named
`defendant has transacted and continues to transact business within the State of Washington;
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`CLASS ACTION COMPLAINT
`FOR STATUTORY DAMAGES AND INJUNCTIVE RELIEF - 4
`
`
`HATTIS & LUKACS
`400 108th Avenue NE, Suite 500
`Bellevue, WA 98004
`T: 425.233.8650 | F: 425.412.7171
`www.hattislaw.com
`
`

`

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`Case 2:21-cv-00856-TL Document 1-2 Filed 06/25/21 Page 5 of 24
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`and/or (3) each named defendant has committed tortious acts within the State of Washington or
`has committed tortious acts outside the State of Washington which had an impact within the
`State of Washington. In addition, each named defendant intended, knew, or is chargeable with
`the knowledge that its out-of-state actions would have a consequence within the State of
`Washington.
`19. With regard to the cause of action brought pursuant to the Washington
`Consumer Protection Act, this Court has personal jurisdiction over each named defendant
`pursuant to RCW 19.86.160. For example, and without limitation, Defendant AT&T Mobility
`LLC, Defendant DIRECTV, LLC, and Defendant AT&T Inc. has each engaged and is
`continuing to engage in conduct in violation of RCW 19.86 which has had and continues to
`have an impact in Washington State which said chapter reprehends.
`Venue is proper in Snohomish County Superior Court because, without
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`limitation, Plaintiff Danielle Latimer resides in Snohomish County; a significant portion of the
`acts giving rise to this civil action occurred in Snohomish County; and/or each named
`defendant intended to and did have a substantial and foreseeable effect on trade or commerce in
`Snohomish County.
`FACTUAL ALLEGATIONS
`IV.
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`A.
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`AT&T Mobility And DirecTV Are Corporate Siblings Who Sell Different
`Products.
`Defendant AT&T Mobility LLC (“AT&T Mobility”) is one of the nation’s and
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`the state’s largest providers of wireless telephone and telecommunications services.
`As of December 31, 2020, AT&T Mobility served approximately 183 million
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`subscriber lines nationwide. See AT&T Corp., Annual Report (SEC Form 10-K), filed Feb. 25,
`2021, p. 3.
`Based on information and belief, AT&T Mobility has more than 3 million
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`subscriber lines in Washington State.
`AT&T Mobility is continuously attempting to keep its current Washington State
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`customers, is continuously attempting to sell additional products and services to its existing
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`CLASS ACTION COMPLAINT
`FOR STATUTORY DAMAGES AND INJUNCTIVE RELIEF - 5
`
`
`HATTIS & LUKACS
`400 108th Avenue NE, Suite 500
`Bellevue, WA 98004
`T: 425.233.8650 | F: 425.412.7171
`www.hattislaw.com
`
`

`

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`Case 2:21-cv-00856-TL Document 1-2 Filed 06/25/21 Page 6 of 24
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`Washington State customers, and is continuously attempting to add new Washington State
`customers. DIRECTV, LLC is continuously attempting to keep its current Washington State
`customers, is continuously attempting to sell additional products and services to its existing
`Washington State customers and is continuously attempting to add new Washington State
`customers.
`Defendant AT&T Inc. is continuously identifying consumers in Washington
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`State who subscribe to the services of one of its subsidiaries and is continuously attempting to
`sell them the additional services of another subsidiary.
`AT&T Mobility is a wireless communication company. When a person buys a
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`mobile phone, the person may contract with AT&T Mobility to provide wireless service so that
`the phone can be used. AT&T Mobility is not in the business of selling subscriptions to
`television channels.
`Defendant DIRECTV, LLC is in the television business. It sells packages of
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`television channels to subscribers.
`A consumer can and often does subscribe to the services of Defendant AT&T
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`Mobility LLC without subscribing to the services of Defendant DIRECTV, LLC, or vice versa.
`It is in the financial interest of Defendant AT&T Inc. to cross-sell the goods and
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`services of its subsidiaries.
`The Unlawful Email Subject Lines.
`B.
`30.
`Plaintiff Danielle Latimer has been an AT&T Mobility customer since
`approximately 2016. Ms. Latimer is not and has never been a subscriber to DirecTV.
`At 4:13 a.m. on July 9, 2018, AT&T Mobility transmitted to, and Ms. Latimer
`31.
`received in, Washington State an email with the subject line: “Important AT&T wireless
`account notice”.
`32. Ms. Latimer understands the subject line “Important AT&T wireless account
`notice” to mean that the topic of the email is her account with AT&T Mobility. An ordinary
`consumer in Washington State would have had the same understanding of the subject line.
`The email was not about her AT&T wireless account. (The email was not
`33.
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`CLASS ACTION COMPLAINT
`FOR STATUTORY DAMAGES AND INJUNCTIVE RELIEF - 6
`
`
`HATTIS & LUKACS
`400 108th Avenue NE, Suite 500
`Bellevue, WA 98004
`T: 425.233.8650 | F: 425.412.7171
`www.hattislaw.com
`
`

`

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`Case 2:21-cv-00856-TL Document 1-2 Filed 06/25/21 Page 7 of 24
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`important, either, but Ms. Latimer is not asserting claims in this lawsuit based on the use of the
`word “important” in the subject line.)
`Instead, the email was an advertisement for DirecTV.
`34.
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`Among other things, the body of the email stated, “This is an AT&T
`promotional email.”
`At 4:19 a.m. on July 9, 2018, AT&T Mobility transmitted to, and Ms. Latimer
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`received in, Washington State a second email with the same subject line and contents as the one
`sent at 4:13 a.m.
`Consequently, AT&T Mobility twice transmitted to Ms. Latimer an email with
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`an unlawful subject line and, on July 9, 2018, violated Washington State law on two separate
`occasions with regard to Ms. Latimer.
`Based on information and belief, one or both of the emails that AT&T Mobility
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`transmitted to Ms. Latimer on July 9, 2018, was also transmitted to many other AT&T Mobility
`customers in Washington State. Based on information and belief, AT&T Mobility transmitted
`the same or similar email to tens of thousands, if not hundreds of thousands, of people in
`Washington State.
`Each such email transmitted to a consumer in Washington State constituted a
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`separate violation of Washington State law. For example, if AT&T Mobility sent one email
`with an unlawful subject line to 100,000 customers in Washington State, then AT&T Mobility
`violated Washington State law 100,000 separate times.
`Based on information and belief, the defendants started to transmit such emails,
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`conspire to transmit such emails, and/or assist in the transmitting of such emails in 2016.
`Based on information and belief, the emails of July 9, 2018, were not the only
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`time that AT&T Mobility transmitted emails into Washington State with a subject line reading
`“Important AT&T wireless account notice” or words of similar meaning but which were in fact
`commercial emails (i.e., promotional emails). Each such email transmitted to each consumer in
`Washington State constituted a separate violation of Washington State law.
`Based on information and belief, AT&T Mobility continues to transmit and
`42.
`
`CLASS ACTION COMPLAINT
`FOR STATUTORY DAMAGES AND INJUNCTIVE RELIEF - 7
`
`
`HATTIS & LUKACS
`400 108th Avenue NE, Suite 500
`Bellevue, WA 98004
`T: 425.233.8650 | F: 425.412.7171
`www.hattislaw.com
`
`

`

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`Case 2:21-cv-00856-TL Document 1-2 Filed 06/25/21 Page 8 of 24
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`intends to continue to transmit emails into Washington State with a subject line reading
`“Important AT&T wireless account notice” but which in fact are commercial emails.
`43. Without a public injunction, future AT&T Mobility subscribers will have these
`emails with unlawful subject lines transmitted to them.
`Due to AT&T Mobility’s past, present, and continuing transmission of
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`commercial emails into Washington State with a subject line reading “Important AT&T
`wireless account notice” or words of similar meaning or effect, Plaintiff Latimer prays for
`multiple remedies, including statutory damages for each separate violation and for a public
`injunction that would prohibit AT&T Mobility from transmitting such emails in the future to
`Washington State consumers.
`Plaintiff does not believe or concede that the type of claim she is alleging—an
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`allegation that the subject line concealed the commercial nature of the email—is the only type
`of subject line claim that can be brought under the Washington Consumer Protection Act or the
`Washington Commercial Electronic Mail Act. Plaintiff is bringing the claim that fits the facts
`of her case; other plaintiffs may allege that different types of false or misleading subject lines
`violate Washington’s laws.
`Plaintiff would like to continue to receive emails from AT&T Mobility
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`(particularly, emails which actually contain notices about Plaintiff’s AT&T wireless account),
`provided that the subject lines of the emails do not contain false or misleading information.
`
`C.
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`Plaintiff Latimer Asks The Court To Recognize The McGill Rule As Part
`Of Washington State Law.
`
`One of the reasons this lawsuit has been brought is to clarify an issue of
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`Washington State law.
`In response to this pleading, AT&T Mobility will certainly move to compel
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`arbitration.
`In opposition to AT&T Mobility’s motion to compel arbitration, Ms. Latimer
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`will respectfully ask the Court to clarify that the laws of the State of Washington recognize a
`rule similar to that enunciated by the California Supreme Court in McGill v. Citibank, N.A., 2
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`CLASS ACTION COMPLAINT
`FOR STATUTORY DAMAGES AND INJUNCTIVE RELIEF - 8
`
`
`HATTIS & LUKACS
`400 108th Avenue NE, Suite 500
`Bellevue, WA 98004
`T: 425.233.8650 | F: 425.412.7171
`www.hattislaw.com
`
`

`

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`Case 2:21-cv-00856-TL Document 1-2 Filed 06/25/21 Page 9 of 24
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`Cal. 5th 945 (2017).
`In McGill, the California Supreme Court held that a contractual provision that
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`prohibited a plaintiff from seeking in any forum the remedy of a public injunction violated
`public policy and was unenforceable (the “McGill rule”).
`In its most frequent application, the McGill rule renders unenforceable an
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`arbitration provision in a consumer contract of adhesion which prohibits the consumer from
`obtaining in court and also in arbitration an injunction to protect the public from future
`unlawful conduct by the defendant.
`The Ninth Circuit ruled that the Federal Arbitration Act does not preempt the
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`McGill rule. Blair v. Rent-A-Center, Inc., 928 F.3d 819 (9th Cir. 2019).
`The McGill rule is based on a venerable legal principle: A law established for a
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`public purpose cannot be contravened by a private agreement. McGill, 2 Cal. 5th at 961.
`The law of the State of Washington has long recognized this principle. See, e.g.,
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`Shoreline Community College Dist. 7 v. Employment Security Dept., 120 Wn.2d 394, 409–410
`(1992) (“Where a statutorily created private right serves a public policy purpose, the persons
`protected by the statute cannot waive the right either individually or through collective
`bargaining.”); Grandview Inland Fruit Co. v. Hartford Fire Ins. Co., 189 Wash. 590, 605–606
`(1937) (“While one may decline to take advantage of a privilege given to him by such a statute,
`he may not bind himself by or be held to a contract which denies to him a right which the law
`has allowed to him on grounds of public policy.”); Motor Contract Co. v. Van Der Volgen, 162
`Wash. 449, 454 (1931) (“[A]n agreement to waive rights involving a question of public policy
`is void.”).
`In California, the consumer protection statutes applied in McGill each serves a
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`public policy purpose. Likewise, the Washington CPA and CEMA each serves a public policy
`purpose.
`In California, the consumer protection statutes applied in McGill each allows a
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`plaintiff to obtain an injunction. Likewise, both the Washington CPA and CEMA each allows a
`plaintiff to obtain an injunction. See RCW 19.86.090 (allows CPA suit “to enjoin further
`
`CLASS ACTION COMPLAINT
`FOR STATUTORY DAMAGES AND INJUNCTIVE RELIEF - 9
`
`
`HATTIS & LUKACS
`400 108th Avenue NE, Suite 500
`Bellevue, WA 98004
`T: 425.233.8650 | F: 425.412.7171
`www.hattislaw.com
`
`

`

`
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`Case 2:21-cv-00856-TL Document 1-2 Filed 06/25/21 Page 10 of 24
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`violations”); RCW 19.190.090(1) (allows CEMA suit “to enjoin further violations”).
`In McGill, the plaintiff was seeking a “public injunction,” i.e., an injunction
`57.
`which would principally benefit the public and would only incidentally benefit the plaintiff. In
`the case at bar, Ms. Latimer likewise seeks a public injunction which would principally benefit
`the public and would only incidentally benefit Ms. Latimer.
`The public injunction provisions of the Washington CPA and CEMA are
`58.
`particularly broad in that a plaintiff may obtain an injunction which does not benefit the
`plaintiff at all but only benefits others. “[A] private consumer can obtain injunctive relief even
`if that injunction would not affect that particular consumer’s private interests.” Dix v. ICT
`Group, Inc., 160 Wn.2d 826, 837 (2007).
`The Washington Supreme Court has ruled (like the California Supreme Court)
`59.
`that the remedy of a public injunction serves an important public policy purpose. In Hockley v.
`Hargitt, 82 Wn.2d 337, 350-351 (1973), the Washington Supreme Court held:
`RCW 19.86.090 [of the Washington Consumer Protection Act]
`authorizes an injured person to recover only the ‘actual damages
`sustained by him’ but imposes no such limitation upon injunctive
`relief. Had the legislature desired to so limit the injunction they
`could have easily done so, as they did with damages.
`Our interpretation is strengthened by RCW 19.86.920, which
`declares: “(T)he purpose of this (consumer protection) act is . . . to
`protect the public and foster fair and honest competition. . . . To this
`end this act shall be liberally construed that its beneficial purposes
`may be served.”
`This broad public policy is best served by permitting an injured
`individual to enjoin future violations of RCW 19.86, even if such
`violations would not directly affect the individual’s own private
`rights.
`If each consumer victim were limited to injunctive relief tailored to
`his own individual interest, the fraudulent practices might well
`continue unchecked while a multiplicity of suits developed. On the
`other hand, if a single litigant is allowed to represent the public and
`consumer fraud is proven, the multiplicity of suits is avoided and the
`illegal scheme brought to a halt. Both results are in the public
`interest and consistent with the liberal construction of our consumer
`protection act. …
`We hold that under RCW 19.86.090 an individual may seek and
`obtain an injunction that would, besides protecting his own interests,
`protect the public interest.
`
`
`CLASS ACTION COMPLAINT
`FOR STATUTORY DAMAGES AND INJUNCTIVE RELIEF - 10
`
`
`HATTIS & LUKACS
`400 108th Avenue NE, Suite 500
`Bellevue, WA 98004
`T: 425.233.8650 | F: 425.412.7171
`www.hattislaw.com
`
`

`

`
`
`Case 2:21-cv-00856-TL Document 1-2 Filed 06/25/21 Page 11 of 24
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`In the McGill case, the language of the arbitration provision prevented the
`60.
`plaintiff from obtaining a public injunction from a court and from an arbitrator. McGill, 2
`Cal.5th at 956. Thus, the arbitration provision violated public policy because a plaintiff bound
`by the arbitration agreement could not obtain a public injunction in either forum.
`The arbitration provision which AT&T Mobility will seek to enforce in this
`61.
`lawsuit likewise prohibits Plaintiff Latimer from obtaining a public injunction in either forum
`because it, first, prevents a plaintiff from seeking a public injunction from a court and, second,
`prevents a plaintiff from seeking a public injunction from an arbitrator. Since a plaintiff would
`be prevented by the terms of the AT&T Mobility arbitration agreement from obtaining a public
`injunction from either forum, the provision should be declared unenforceable under
`Washington State’s version of the McGill rule.
`The arbitration agreement which AT&T Mobility will attempt to enforce against
`62.
`Ms. Latimer in this lawsuit is part of the Wireless Customer Agreement which is extant as of
`the day of the filing of this lawsuit.
`AT&T’s Wireless Customer Agreement, which governs the dispute here for
`63.
`Plaintiff and all proposed Class members, includes an arbitration agreement as Section 2.2.
`Section 2.2(6) of that arbitration agreement states that: “The arbitrator may award declaratory
`or injunctive relief only in favor of the individual party seeking relief and only to the extent
`necessary to provide relief warranted by that party’s individual claim.” This language purports
`to bar the arbitrator from granting the type of public injunctive relief authorized under
`Washington law as a remedy for claims under Washington’s CPA and CEMA. As Section
`2.2(1) purports to require the parties to arbitrate “all disputes and claims,” the arbitration
`provision thus purports to bar the parties from seeking public injunctive relief in any forum.
`Such a provision is unenforceable under the McGill principle.
`Section 2.2(6) of AT&T’s arbitration agreement concludes with a non-
`64.
`severability (or “poison pill”) provision, stating: “If this specific provision is found to be
`unenforceable, then the entirety of this arbitration provision shall be null and void.”
`Because Section 2.2(6) is unenforceable under Washington law as an improper
`65.
`
`CLASS ACTION COMPLAINT
`FOR STATUTORY DAMAGES AND INJUNCTIVE RELIEF - 11
`
`
`HATTIS & LUKACS
`400 108th Avenue NE, Suite 500
`Bellevue, WA 98004
`T: 425.233.8650 | F: 425.412.7171
`www.hattislaw.com
`
`

`

`
`
`Case 2:21-cv-00856-TL Document 1-2 Filed 06/25/21 Page 12 of 24
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`waiver of public injunctive relief in any forum, the “entirety” of the full arbitration agreement
`(Section 2.2) is “null and void.” Therefore, the claims brought in this lawsuit are not subject to
`any of the requirements of AT&T’s arbitration agreement.
`Three federal courts in California have already concluded that the very same
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`AT&T arbitration agreement is null and void under the McGill principle for just these reasons.
`See Roberts v. AT&T Mobility LLC, No. 3:15-cv-3418-EMC, 2018 WL 1317346 (N.D. Cal.
`Mar. 14, 2018); McArdle v. AT&T Mobility LLC, No. 09-cv-1117-CW, 2017 WL 4354998
`(N.D. Cal. Oct. 2, 2017); Vianu v. AT&T Mobility LLC, No. 19-cv-03602-LB, Dkt No. 56
`(N.D. Cal. Mar. 2, 2020).
`67.
`Since a plaintiff would be prevented by the terms of the AT&T’s arbitration
`agreement from obtaining a public injunction in any forum, it should be declared unenforceable
`under Washington State’s version of the McGill rule (which need not necessarily track every
`contour of California’s version).
`CLASS ACTION ALLEGATIONS
`V.
`Plaintiff Latimer brings this class-action lawsuit on behalf of herself and the
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`members of the following Washington State class (the “Class”):
`All residents of the State of Washington who, within the
`applicable limitations period, received a commercial email from
`or at the behest of AT&T Mobility, LLC, DIRECTV LLC or
`AT&T Inc. with a subject line containing the phrase “AT&T
`wireless account notice” or words of similar meaning.
`
`Specifically excluded from the Class are each defendant, any entity in which a
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`defendant has a controlling interest or which has a controlling interest in a defendant, any
`defendant’s agents and employees and attorneys, the bench officers to whom this civil action is
`assigned, and the members of each bench officer’s staff and immediate family.
`Numerosity. Plaintiff does not know the exact number of Class members but is
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`informed and believes that the Class comprises at least tens of thousands people. As such, the
`Class members are so numerous that joinder of all members is impracticable.
`Commonality and Predominance. Well-defined, nearly identical legal or factual
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`questions affect the members of the Class. These questions predominate over questions that
`
`CLASS ACTION COMPLAINT
`FOR STATUTORY DAMAGES AND INJUNCTIVE RELIEF - 12
`
`
`HATTIS & LUKACS
`400 108th Avenue NE, Suite 500
`Bellevue, WA 98004
`T: 425.233.8650 | F: 425.412.7171
`www.hattislaw.com
`
`

`

`
`
`Case 2:21-cv-00856-TL Document 1-2 Filed 06/25/21 Page 13 of 24
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`might affect individual Class members. These common questions include, but are not limited
`to, the following:
`Whether each defendant knew or had reason to know that it was
`a.
`transmitting the emails to a Washington State resident;
`Whether the subject line reading “AT&T wireless account notice” is
`b.
`false or misleading when the body of the email consists principally of an advertisement and is
`commercial in nature;
`Whether the pled conduct of each defendant is injurious to the public
`c.
`
`interest;
`
`Whether each defendant should be ordered to pay statutory damages, the
`d.
`manner in which those statutory damages are to be calculated in a class action, and the manner
`in which those statutory damages are to apportioned, if at all, among multiple defendants; and
`Whether each defendant should be enjoined from further engaging in the
`e.
`misconduct alleged herein.
`The prosecution of separate actions by individual members of the Class would
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`create a risk of inconsistent or varying adjudications with respect to individual members of the
`Class which would establish incompatible standards of conduct for the party opposing the class.
`Each party opposing the Class has acted or refused to act on grounds generally
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`applicable to the Class, thereby making appropriate a final and permanent public injunction
`with respect to the Class as a whole.
`Typicality. Plaintiff’s claims are typical of Class members’ claims. The
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`defendants transmitted, conspired to transmit, or assisted to transmit emails with false or
`misleading information in the subject line to Plaintiff and to each Class member.
`Adequacy. Plaintiff will fairly and adequately protect Class members’ interests.
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`Plaintiff has no interests antagonistic to Class members’ interests. Plaintiff has retained counsel
`who has considerable experience and success in prosecuting complex class action and
`consumer protection cases.
`Superiority. Further, a class action is superior to all other available methods for
`76.
`
`CLASS ACTION COMPLAINT
`FOR STATUTORY DAMAGES AND INJUNCTIVE RELIEF - 13
`
`
`HATTIS & LUKACS
`400 108th Avenue NE, Suite 500
`Bellevue, WA 98004
`T: 425.233.8650 | F: 425.412.7171
`www.hattislaw.com
`
`

`

`
`
`Case 2:21-cv-00856-TL Document 1-2 Filed 06/25/21 Page 14 of 24
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