Davis Polk is lead counsel for T-Mobile USA, Inc. (T-Mobile) in connection with a consolidated, multidistrict litigation in the U.S. District Court for the Northern District of Illinois alleging that four wireless carriers (T-Mobile, AT&T, Sprint and Verizon), along with the industry trade association, fixed per-use text messaging rates. The plaintiffs represent a class of over 100 million U.S. consumers, and seek several billion dollars in damages.

In November 2013, the defendants moved for summary judgment as to the plaintiffs’ Sherman Act claims, arguing that there is no evidence of a conspiracy to set text messaging rates. The plaintiffs opposed the motion.

On May 19, 2014, Judge Matthew Kennelly granted the defendants’ motion for summary judgment. He concluded that “no reasonable jury could find in favour of plaintiffs on the basis of the evidence” that they had presented. Accordingly, he directed that judgment should be entered in the defendants’ favor.

 In his decision, Judge Kennelly held that the plaintiffs had offered no direct evidence of any conspiracy. He also found that evidence about industry structure, sequential matching price increases and contact among the carriers at trade association meetings was insufficient to avoid summary judgment. In connection with the motion, the carriers introduced evidence demonstrating that each pricing decision was based on individual internal analysis. The carriers also introduced evidence showing that a large number of individuals were involved with analyzing pricing, and that the deliberations at each carrier were well documented. Moreover, the carriers pointed out that the documents and witness testimony did not suggest the existence of any agreement.

The plaintiffs criticized aspects of the carriers’ pricing analyses, in an effort to call into question their legitimacy. Judge Kennelly rejected this effort, concluding that the plaintiffs’ theory of the case “requires the inference of a vast, multifaceted, highly coordinated conspiracy dedicated to creating a Potemkin village of seemingly independent analyses to lend paper support to each collusive pricing move. This inference is unreasonable and unsupported . . . . Even considered in the light most favorable to plaintiffs, the evidence amounts to no more than a showing of consciously parallel conduct.”

The Davis Polk litigation team includes partners Christopher B. Hockett, counsel Sandra West Neukom, associates Micah G. Block and Whitney Fogg, and legal assistant Felicia Yu. All members of the Davis Polk team are based in the Menlo Park office.

Schiff Hardin LLP is co-counsel to T-Mobile in connection with the matter.