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IN RE WIRELESS TELEPHONE SERVICES ANTITRUST LITIGATION

United States District Court, S.D. New York


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.

20040409

© 1992-2004 VersusLaw Inc.



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