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IN RE WIRELESS TELEPHONE SERVICES ANTITRUST LITIGATION
April 9, 2004.
IN RE WIRELESS TELEPHONE SERVICES ANTITRUST LITIGATION This Document Relates to: ALL MATTERS
The opinion of the court was delivered by: DENISE COTE, District Judge
MEMORANDUM OPINION AND ORDER
VoiceStream, one of the five defendants in this antitrust action, has
moved for summary judgment on the sole claim in this litigation to
survive the defendants' motion to dismiss, to wit, a claim that
VoiceStream has tied the sales of handsets to the sale of its wireless
service. See In re Wireless Telephone Services Antitrust
Litigation, No. 02 Civ. 2637 (DLC), 2003 WL 21912603 (S.D.N.Y. Aug.
12, 2003). VoiceStream argues that the plaintiffs will not be able to
prove that it requires consumers to purchase handsets from it. It
contends principally that its service agreements do not require such purchases, that company
policy does not allow its sales representatives to refuse a customer's
request to use a compatible handset in lieu of a handset purchased from
VoiceStream, and that the existence of a high percentage of bundled sales
is not, standing alone, sufficient to prove that consumers have been
forced to accept an allegedly tied product. VoiceStream admits that it
does not have any records that reflect that any unbundled sales have ever
actually been made, much less that any appreciable number of unbundled
sales have occurred.
This motion is, at the very least, premature. It was made before
VoiceStream had even completed its production of documents to the
plaintiffs. As the plaintiffs' submission pursuant to Rule 56(f),
Fed.R.Civ. P., demonstrates, discovery is appropriate and necessary to shed
light on VoiceStream's actual practices and the commercial realities of
the marketplace. The plaintiffs are entitled to discovery to test,
inter alia, VoiceStream's evidence and assertion that, as a
matter of commercial policy and practice, it does not tie the sales of
handsets to sales of service, and that it actually assists customers to
unlock handsets purchased elsewhere. VoiceStream has not directly
responded to the plaintiffs' argument that there is no evidence that
VoiceStream compensates its sales representatives for providing
assistance to consumers to unlock handsets purchased elsewhere. Although
VoiceStream has offered to allow the plaintiffs to depose immediately any
of their witnesses, there is no requirement that the plaintiffs take depositions on any particular schedule, other than the requirement
that they be completed by September 24, 2004, the date on which fact
discovery is scheduled to conclude. Accordingly it is hereby
ORDERED that defendant VoiceStream's December 23, 2003 motion for
summary judgment is denied.
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