Nicole Ballas, individually and on behalf of all others similarly situated, Plaintiff,
Virgin Media, Inc., Virgin Mobile USA, LLC, and Virgin MobilE USA, Inc., Defendants.
This case is not published in a printed volume and its disposition appears in a table in the reporter.
Counsel for Plaintiff, Harwood Feffer LLP
Moritt Hock Hamroff Horowitz LLP
Harold M. Somer, P.C., Counsel for Defendant
Skadden, Arps, Slate, Meagher Flom, LLP, Four Times Square
Leonard B. Austin, J.
Plaintiff, Nicole Ballas ("Ballas"), commenced this action on her behalf and on behalf of all members of the class of New York State residents who purchased the Defendants' cell phones alleging that the Defendants failed to advise them of the "topping-up" provisions of the 18 cents per minute plan option.
Defendants, Virgin Media, Inc., Virgin Mobile USA, LLC and Virgin Mobile USA, Inc. (collectively "Virgin") are collectively a cell phone service provider. Virgin provides customers with several cell phone service options including the 18 cents per minute plan that is the subject of this action.
When a customer selects the 18 cents per minute plan option, the customer is required to deposit a sum of money into his/her account. The customer can then use the phone for all available service provided the account still has a positive balance. A customer selecting a pay by the minute plan must "top up" in accordance with the plan by depositing additional funds into the account every 90 days even if the account has a positive balance. If the customer fails to deposit money into the account in accordance with the plan, the phone is declared inactive. A customer whose service is declared inactive cannot send or receive calls except 911 emergency calls nor can the customer access any of the other features of the phone service. If the customer tops up during the 60 day period after the service is declared inactive, the phone is activated and the balance is restored. If the phone account is not restored within the 60 day inactive period, the account is deactivated. In such case, the customer loses the phone number and is charged a deactivation fee equal to the amount on deposit in the account.
If the account is deactivated, the customer will have to reactivate the account as if it were a new account, whereby: the customer will have to pay the top up fee. In addition, the customer will lose the unused account balance.
Topping up is a means by which a purchaser of Virgin's cell phone, who pays by the minute, adds cash to their cell phone account so that they can continue to receive cell phone service. A customer may top up by (1) purchasing Top Up cell phone cards that are sold separately; (2) using a credit or debit card to pay by phone or on the Virgin Mobile USA website; or (3) using the Top Up option contained on the phone. Virgin permits the customer to register a credit or debit card to automatically top up their accounts.
In February 2007, Ballas purchased an "oystr" brand phone. She activated the phone by selecting the 18 cent per minute topping up plan. She does not indicate whether she activated her phone through the phone itself or via the Virgin website. Ballas alleges that she received an e-mail notification from Virgin indicating that it was time to top up. The e-mail specifically advised Ballas that she had to deposit a minimum of $20 in her account every 90 days even if she had a positive balance to keep her service active.
The notice indicated that if she did not top up, she would be unable to send or receive calls.
Ballas asserts that the top up provisions of the pay by the minute plan did not appear on the exterior packaging of the phone she purchased. She further alleges that the topping up requirements are difficult to access on the Virgin Mobile USA website. The topping up link is not readily noticeable. The exterior of the retail packaging states that: (1) there are no commitments or annual contracts; (2) the service is easy to join; (3) credit check is not ...