Shareholder Sue AT&T Over Allegedly Throttled “Unlimited” Data Users

By David Lee
DALLAS (CN) – AT&T’s throttling of its “unlimited” data plan for mobile phone users exposes the company to billions of dollars in potential claims, an angry shareholder claims in court.
Justin Pierce filed a shareholder derivative lawsuit against the Dallas-based telecommunications giant, its officers and board of directors on Nov. 20 in Dallas County Court.
Pierce claims AT&T’s “multi-year” scheme was revealed in October when the Federal Trade Commission sued the company in San Francisco Federal Court to stop the practice and seek restitution to customers.
The FTC claims AT&T fails to adequately disclose to customers on unlimited data plans the consequence of using what the company decides is too much data – in some cases, just 2 gigabytes in a billing cycle .
AT&T has not offered unlimited data plans for new customers since 2010, but has offered to grandfather existing customers’ unlimited plans each time they upgrade to a new smartphone. The grandfathered customers continue to enjoy unlimited data for $30 a month, while new AT&T users have to pick one of the company’s tiered plans, according to the FTC.
The FTC claims that beginning in July 2011, AT&T began throttling users on its unlimited plans, setting the data-use threshold at 2 gigabytes in dense markets such as New York and San Francisco – and capping the data speed at 128 kilobytes per second in those cities
The noticeably slower speeds have resulted in widespread customer complaints.
Pierce claims the FTC found that AT&T has throttled more than 3.5 million unique customers since October 2011 and that AT&T’s marketing materials and employees fail to inform their unlimited data customers of the throttling program.
“Worse, customers who canceled their service before the end of their service contract as a result of the throttling were forced to pay an early termination fee to AT&T, typically in the hundreds of dollars,” the 37-page complaint states.
“Although federal regulators have not yet disclosed how much money they are seeking in damages from AT&T as a result of their misleading practices, the losses caused to the company’s customers are estimated between $300 million to over $1 billion.”
Pierce says the defendants’ conduct “involves a knowing and capable violation of their obligations” and “a reckless disregard for their duties to the company.”
He claims AT&T’s own researchers advised it to not “say too much” in marketing materials about the throttling program because they found “the more consumers talked about it the more they didn’t like it” and that “consumers felt ‘unlimited should mean unlimited.'”
Pierce says the company’s disclosure through a single statement on a single bill “utterly failed” to disclose speeds would be curtailed by up to 95 percent and that it would limit customers’ ability to use their devices “for even its most basic” functions.
“It also failed to disclose that the speed reduction was due to an artificial limit intentionally imposed by AT&T, as opposed to general network congestion,” the complaint states. “Further, many unlimited mobile data plan customers renewed their contract months, or even years, after this statement appeared in their bill. Upon renewal, they were not informed of the company’s throttling program.” Customers took AT&T to small claims court and news stories of their victories began emerging in February 2012. Pierce claims that in response, AT&T modified its throttling practices and set a uniform nationwide data-use threshold of up to 5 gigabytes per billing cycle.
“It is reasonable to assume that this modification was approved by the board in response to the flood of bad press,” the complaint states. “Nonetheless, to this day the company continues to throttle its customers, albeit in a slightly less egregious manner.”
AT&T did not respond to a request for comment Friday.
Pierce seeks disgorgement and damages for breach of fiduciary duty, corporate waste and unjust enrichment. He is represented by Joe Kendall in Dallas.

From Courthouse News.

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Judge Admits Ballistics Evidence for Trial of Texas JP Accused of Triple Murder

November 17, 2014
By David Lee
ROCKWALL, Texas (CN) – A Texas judge will allow ballistics evidence in the upcoming trial of a former justice of the peace accused of killing a district attorney and his wife in their home after allegedly gunning down a prosecutor in broad daylight.
Eric Williams’s capital murder trial is set to begin on Dec. 1 in Rockwall County, to which it was transferred from neighboring Kaufman County.
Williams, 47, is accused of murdering Kaufman County District Attorney Mike McClelland and his wife Cynthia in their home near Forney in March 2013.
Those killings came two months after McClelland’s first assistant DA – Mark Hasse – was shot to death in a courthouse parking lot.
Williams could be sentenced to death if convicted.
McLelland and Hasse had prosecuted Williams for stealing county computer equipment, resulting in the loss of his judgeship and law license.
Visiting Dallas County Judge Mike Snipes on Friday denied Williams’ motion to strike the testimony of prosecution ballistics expert James Jeffress, of the Texas Department of Public Safety.
Jeffress testified Friday that guns found at Williams’ storage unit matched 16 spent bullets found at the McClellands’ home.
Williams’ attorney, public defender Matthew Seymour, argued that there is no statistical basis for matching bullets with a specific gun, that the science is not exact enough to be considered expert opinion.
“The way Mr. Jeffress conducted his examination and the way other laboratories conduct their examinations … which one is correct?” he asked. “Which one has more bearing, which one simply has a greater degree of accuracy?”
Jeffress rebutted the argument, testifying that the science of linking markings on bullets to specific guns is proven.
“I believe the consecutive manufactured studies – which we have done for over 30 years – have consistently demonstrated that we can do what we say we can do,” Jeffress said. “The barrel test has been taken by 508 examiners in 20 different countries, with an error rate of less than 1 percent.”
In denying the motion to strike, Snipes cited the regular admission of ballistics evidence in courts across the country.

From Courthouse News.

Texas DA Murders Spur Action in Congress

April 15, 2013
By David Lee
(CN) – A Texas senator introduced congressional legislation to increase protection of judges and prosecutors, after the recent murders of two prosecutors near Dallas.
Sen. John Cornyn, R-Texas, introduced The Line of Duty Act of 2013 last week.
It would allow local governments to use federal funding to pay for security details for judges and prosecutors who are in danger of retaliation or intimidation.
“This legislation would provide prosecutors, judges, and law enforcement officials more flexibility in how they choose to protect themselves and their families, as well as create stronger offenses for those who target our public officials,” Cornyn said in a statement.
It also would allow federal, state and local judges, prosecutors and law enforcement officials to carry guns in federal facilities, federal courts and jurisdictions where they are otherwise illegal. They would be allowed to buy and keep ammunition magazines of any size. The Bureau of Prisons would be required to provide secure firearms storage areas.
The bill would also create a new federal crime for killing, attempted killing or conspiracy to kill a federal judge, federal law enforcement officer or federally funded public safety officer, including state prosecutors and judges.
The bill was filed after Kaufman County District Attorney Mike McLelland and his wife, Cynthia, were murdered in their home on March 30. They were shot to death with an assault-type weapon.
The McLellands were killed 2 months after masked gunmen murdered assistant Kaufman County Assistant District Attorney Mark Hasse in a parking lot near the county courthouse.
Hasse had been investigating the Aryan Brotherhood. Two hours after he was killed, two members of the white racist gang pleaded guilty to racketeering conspiracy charges, in a case Hasse helped investigate.
After Hasse was murdered, his boss, McLelland, told the killers through the media that he would “find you, pull you out of whatever hole you’re in, bring you back and let the people of Kaufman County prosecute you to the full extent of the law.”

From Courthouse News.

No Arrests Yet in Texas Prosecutor’s Murder

February 1, 2013
By David Lee
DALLAS (CN) – Two masked gunmen fled in an early 2000s Ford Taurus after murdering an assistant district attorney east of Dallas on Thursday, in what colleagues believe was a work-related killing.
Mark Hasse, 57, an assistant district attorney for Kaufman County, was shot to death in a parking lot just before 9 a.m.
The county courthouse and area schools were put on lockdown for the rest of the day.
No arrests had been made by Thursday evening. Kaufman County officials offer $20,000 for information leading to the conviction of the shooters. Kaufman police are at (972) 932-3094. Anonymous tips may be submitted to Crime Stoppers at 1-877-847-7522.
Colleagues described Hasse as “squeaky clean” and “a spectacular prosecutor.”
Dallas County District Attorney Craig Watkins said Thursday afternoon that an arrest had been made, but he retracted his statement after Kaufman County authorities denied it.
Hasse had been “heavily involved” in investigating the Aryan Brotherhood, the Dallas Morning News reported Thursday, attributing the information to “authorities with knowledge of the assistant DA’s caseload.”
Hours after Hasse was murdered, two members of the Aryan Brotherhood pleaded guilty to federal racketeering charges, in a Texas case that Kaufman County prosecutors helped investigate, the Department of Justice said in a statement.
No officials have linked the killing to the guilty pleas.
(Ben Christian Dillon, of Houston, and James Marshall Meldrum, both 40, of Dallas, pleaded guilty to conspiring to participate in racketeering, the U.S. Attorney’s Office in Houston said in a statement Thursday afternoon.
(“According to court documents, Dillon, Meldrum and other ABT [Aryan Brotherhood of Texas] gang members and associates, agreed to commit multiple acts of murder, robbery, arson, kidnapping and narcotics trafficking on behalf of the ABT gang,” the Houston U.S. attorney said in the statement.
(“Dillon admitted to trafficking in methamphetamine, acting as an enforcer to collect drug debts owed to the ABT enterprise, committing acts of arson for the gang and attempting to kill a fellow ABT gang member who had been marked for death by senior ABT officials. Meldrum admitted to trafficking in methamphetamine and severely beating a subordinate gang member,” according to the U.S. attorney.)
Hasse, a former prosecutor for Dallas County, was well regarded by his colleagues.
“Mark was really a great guy. He was the consummate prosecutor. He was hard working, loved his job, and juries loved him for some reason,” Dallas attorney Ted Steinke told WFAA-TV. “He wasn’t very large in stature, but juries loved him and he exuded confidence.”
Steinke had been Hasse’s boss at the Dallas County District Attorney’s office. Hasse was chief of the Dallas County DA’s organized crime section from 1985 to 1988. He served as president of the Dallas chapter of Mothers Against Drunk Driving. He joined the Kaufman County District Attorney’s Office in July 2010.
Kaufman County Judge Bruce Bell said the county District Attorney’s office will be closed today, but other county offices will be open, including the courthouse.
McLelland spoke fondly of Hasse, who was unmarried, had no children and had just bought a house in Kaufman County.
“Mark was fully aware of the dangers. He accepted them readily,” McLelland told the Morning News. “It was simply the nature of the beast to be working and dealing with bad, bad people on a regular basis.
“Kaufman County, the state of Texas and especially my office suffered a devastating loss. We lost a really good man. He was an excellent friend and a spectacular prosecutor.”
McLelland had a message for the shooters: “I hope that the people that did this are watching. Because we’re confident we’re going to find you, pull you out of whatever hole you’re in, bring you back and let the people of Kaufman County prosecute you to the full extent of the law.”
Kaufman County, pop. 104,000, is immediately east of Dallas County and includes the suburbs of Forney and Seagoville. Its seat is Kaufman.
Hasse’s murder came one day after a Phoenix-area attorney was shot and critically wounded in an office park by an opponent in a mediation hearing.
Attorney Mark Hummels, of Osborn Maledon, was not expected to survive, his law firm said in a statement. Hummels’ client was killed.
The client, Steven D. Singer, 48, CEO of call center Fusion Contact Centers, and Hummels were shot by Arthur D. Harmon, 70. Harmon was found dead at a Mesa shopping center Thursday from a self-inflicted gunshot wound.

From Courthouse News.

Reinstated Josh Brent Apologizes For DUI Death of Teammate and Best Friend

November 13, 2014
By David Lee
DALLAS (CN) – In his first public comments since being convicted and jailed for the drunk driving death of his teammate and best friend, Dallas Cowboy Josh Brent expressed pain and regret for his role in the death of Jerry Brown Jr.
“I miss Jerry,” Brent told reporters Wednesday at the Cowboys’ practice facility in Valley Ranch. “To know that he’s not here because of a mistake that I made that could have been prevented … it hurts me every day.”
Brown was a member of the Cowboys practice squad when he was killed on Dec. 8, 2012, when a car Brent was driving crashed in Irving, rolled over and caught fire.
Prosecutors said Brent’s blood alcohol level was twice the legal limit. He had played with Brown at the University of Illinois.
Brown’s mother, Stacy Jackson, is credited with sparing Brent up to 20 years in state prison by publicly forgiving him, asking the Cowboys to support him and asking jurors at his criminal trial for leniency.
The plea worked, as jurors sentenced Brent to only 10 years of probation in January. Dissatisfied with the sentence, Criminal District Court Judge Robert Burns III ordered Brent to serve 180 days in county jail .
Brent was transferred to EnterHealth, a drug treatment facility in Van Alstyne, after serving four months of his sentence. He has been free since July 29.
National Football League Commissioner Roger Goodell suspended Brent for 10 games, which came to an end Sunday. The Cowboys reinstated Brent to the team’s active roster two days later.
When asked why he was returning to football, Brent said he wanted to honor Brown and make sure he did not “die in vain.”
“Jerry was a great person, a great player and had a bright future,” he said.
“Once again, a mistake that I made took that away from him, took that away from his daughter, took that away from his mother, so that’s something I make sure I keep and feel conscious of that, that I never let his name die in vain.”
Brent thanked Cowboys owner Jerry Jones, the Jones family and Goodell for his second chance. He said he does not know how much he can help the team this year.
“I just do what the coaches ask of me and just try to be the best teammate I can,” he said.
Brent said he has learned through the experience that he’s a “pretty resilient person.”
“But that’s only by the grace of God and the support of the Cowboys organization, my family, Ms. Jackson, the NFL, my teammates,” he added. “Without the support of them, I wouldn’t have been able to make it. But I’m here today.”
Brown’s family last year filed two lawsuits against the operators of Beamers Private Club, for wrongful death. They claim employees continued to serve Brent drinks immediately before the crash though he obviously was intoxicated .
“By defendants’ own admission, the alcohol flowed freely at Privae that night. One Privae employee boasted on Twitter that ’12 Cowboys are in theeee [sic] building,’ and that those ‘fools are buying Ace on top of Ace!!!!,'” according to a complaint filed by Jerry Brown Sr. “Brent is 6 feet, 2 inches tall, and weighs roughly 320 pounds. So he must have consumed many of Privae’s drinks to become that inebriated.”
Brent was also criticized when he tested positive for marijuana use in May 2013 while he awaited trial. Prosecutors said the positive results came one day after Brent allegedly tampered with the alcohol monitoring device he was required to wear as a condition of his bond .

From Courthouse News.

Ebola Patient Zero’s Family Settles Malpractice Claims Against Hospital Over Botched Diagnosis

By David Lee
November 12, 2014
DALLAS (CN) – The family of Ebola patient Thomas Eric Duncan has settled its claims with the Dallas hospital that botched his initial diagnosis and sent him home with antibiotics.
Attorney Les Weisbrod, with Miller Weisbrod in Dallas, announced details of the settlement at a news conference Wednesday morning with members of Duncan’s family.
Hours earlier, his office filed three medical malpractice lawsuits in Dallas County Court on behalf of the Duncans against Texas Health Presbyterian Hospital Dallas, Presbyterian-parent Texas Health Resources, Emergency Medicine Consultants Ltd. and Texas Medicine Resources LLP.
Duncan’s diagnosis, and death, set off a month-long public health crisis that included two of his nurses contracting the disease and the monitoring of more than 100 possible contacts.
Judge Carlos Cortez approved the settlements in an afternoon hearing after listening to testimony in support of the agreement from Duncan’s sister, May Weruth.
The Presbyterian hospital faced scathing criticism for its misdiagnosis of Duncan, who died on Oct. 8 at the hospital after being admitted on his second visit.
Duncan apparently caught the deadly disease while in Liberia days before flying to Dallas. He had helped an ill, pregnant woman to the hospital who was thought to have died due to pregnancy complications.
Civil rights activists and local government officials blasted the hospital, accusing it of turning Duncan away because he was black and lacked insurance .
“We know why what happened at Presbyterian happened. It’s historically what has happened in this community,” Dallas County Commissioner John Wiley Price said at the time. “If a person who looks like me shows up without any insurance, they don’t get the same treatment.” Price is African-American.
Financial terms of the settlement were not disclosed, but Weisbrod said the settlement was better than what the Duncans could have received in court because of Texas’ caps on medical malpractice claims.
Damages for individual defendants are capped at $250,000 and gross negligence must be proven – a higher standard than ordinary negligence.
“The initial treatment in the emergency room, in my opinion, was such that it would meet the standard of gross negligence and that it would have made a difference in the outcome,” Weisbrod said. “I believe that the evidence shows that Mr. Duncan should not have been released; he got up to 103 degrees. He had a number of abnormal findings on his blood work and studies.”
Weisbrod said the defendants would establish a fund for Duncan’s four children and parents, and another fund to help Ebola patients in West Africa.
Louis Troh, Duncan’s fiancée, for whom he traveled to Dallas to marry, is not a party to settlement because she is not a member of the family.
Duncan’s nephew Josephus Weeks angrily blasted the hospital for its “ignorance, incompetence and indecency” in the days after his uncle’s death.
At the press conference, he struck a conciliatory tone in saying, “We all make mistakes.”
“I believe this is an outstanding facility, but we are all human and we make errors,” Weeks said. “What I can do it make sure everything that happened makes things better for everyone.”
Weeks said Presbyterian officials have done an “amazing job” to make things right and that he would have no problem with seeking treatment at Presbyterian.
Weisbrod said the family no longer believes the errors committed had anything to do with Duncan’s race or lack of insurance – that it had to do with poor Ebola policies and procedures.
Weisbrod said his clients will not be charged for Duncan’s care, under the settlement.
Texas Health spokesman Wendell Watson said that the company is “grateful to reach this point of reconciliation and healing for all involved.”
“We know that this has been a terribly sad, difficult and trying time for Mr. Duncan’s family and friends, and they will continue to be in the hearts and prayers of the entire Texas Health Presbyterian family,” Texas Health said in a statement. “As part of the healing process, we have again extended our sincere apologies to the family and shared our regret that the diagnosis of Ebola Virus Disease was not made at the time of Mr. Duncan’s initial Emergency Department visit.”
Presbyterian said it “greatly appreciates” Weisbrod’s acknowledgment that Duncan’s inpatient care “was excellent.”
Texas Health also noted Texas’s “common sense” medical malpractice laws that allow for quick resolution of claims “fairly and equitably.”

From Courthouse News.

Dallas’ Ebola Crisis Ends as Final Contacts Clear Monitoring Period

By David Lee
November 20, 2014

DALLAS (CN) – Dallas’s Ebola crisis ended Friday as the last known contact with the late Thomas Eric Duncan cleared the 21-day incubation period for the deadly disease.
“Thanksgiving has come early to Dallas County,” Dallas County Judge Clay Jenkins said.
Approximately 177 contacts have been monitored since Oct. 1, when Duncan wasdiagnosed and isolated at Texas Health Presbyterian Hospital Dallas.
Duncan died on Oct. 8. Two of his nurses – Nina Pham and Amber Vinson – contracted Ebola and survived .
The contacts include medical staffers at Presbyterian who treated the three victims, their immediate families and members of the public who may have exposed when the three were symptomatic. The last person on the watch list was a Presbyterian employee who handled infected medical waste on Oct. 17.
Department of State Health Services Commissioner Dr. David Lackey said he was “happy to reach this milestone, but our guard stays up.”
Lackey has criticized school districts who closed schools for cleaning out of fear of possible exposure.
“Because no Ebola patients have been present at a Texas school, there is no reason to close or clean a building or bus beyond regular cleaning procedures for schools,” Lackey said in October.
The Royse City Independent School District, northeast of Dallas, closed Davis Elementary and Ruth Cherry Intermediate schools for one day out of an “abundance of caution” due to a Presbyterian nurse living with students from both schools.
Belton Independent School District closed several schools after two students were aboard Frontier Airlines Flight 1143 from Cleveland to Dallas with Vinson.
Texas officials have since cleared all of the passengers on Vinson’s flights to and from Cleveland, DSHS said.
Outside of Dallas, the Centers for Disease Control has identified 50 people who returned to Texas from West Africa – the epicenter of the disease.
“One of those travelers, a Central Texas nurse who cared for Ebola patients in Sierra Leone, is considered to be at ‘some risk’ of exposure to Ebola and has agreed to stay home until she reaches the 21-day mark,” DSHS said. “The rest are considered to be ‘low risk’ contacts and are being monitored for symptoms.”
Dallas County has racked up at least $1 million in costs for containing the disease.
Texas Health Resources CEO Barclay Berdan praised the “courageous nurses and so many others [who] put the needs of a patient first and valiantly worked to save the life of a man who faced, and ultimately lost, his battle with this disease.”
Texas Health Resources is the corporate parent of Texas Health Presbyterian Hospital Dallas, where Duncan died.
The hospital has faced intense criticism for its handling of the crisis – from turning away Duncan during his first visit to the emergency room to how the two nurses in protective gear contracted the disease.
It also was accused of not treating Duncan properly because he was poor and black . Berdan said the hospital has been “humbled and empowered with a new strength of purpose” through the experience and thanked the community for its “heartening” support.
“We are committed to using what we have learned to advance our mission and vision in the communities we are privileged to serve,” Berdan said. “We hope our experience will also help those in the global community who are working so hard to beat this terrible disease in West Africa.”

From Courthouse News.