• Verma, et al. v. Dell, Inc. Kelley Drye recently defeated class certification in a putative nationwide class action challenging Dell Inc.'s promotional rebate policies and rebate fulfillment record. Plaintiffs attempted to certify a class of all unpaid rebate applicants, and represented to the court that they would move for summary judgment as soon as a class was certified. Plaintiffs were pursuing a nine-figure judgment, but we defeated class certification after an extended hearing. We established that Dell's rebate fulfillment record exceeds 90% of all rebates processed, and demonstrated that the question of whether individual rebates were properly rejected requires a case-by-case investigation of each individual rebate application's history and compliance with Dell's contract requirements. But we did not merely argue these points. Through quantitative analysis of a representative sample of rejected rebate applications, Dell established that only individual hearings could resolve the predominating issue: whether a particular rebate application was valid or should have been rejected. With this victory, Kelley Drye built on its undefeated record in rebate class action certification battles.



• Nextel. Over the past three years, Kelley Drye has led the defense of more than 30 class action cases brought against Nextel Communications and Nextel Partners, Inc. In several related matters, we successfully petitioned for multidistrict litigation over the objections of several noted plaintiff class action firms, transferring over twenty cases to the Western District of Missouri. At the same time, we entered a nationwide settlement with the original class plaintiff and ushered that agreement through the Western District of Missouri, over the objections of several large plaintiff class action firms. The transfer and resulting settlement was described by RCA Wireless, the industry publication, as a "major victory for Nextel." The class action settlement was recently affirmed by the Eighth Circuit. We also achieved dismissal with prejudice of two other class actions filed against Nextel in Florida and Tennessee.



• America Online, Inc., CompuServe Interactive Services, Inc. Kelley Drye has represented AOL and CompuServe in several class action suits filed in Florida, California, Oklahoma, Illinois, and New Jersey. Not one case advanced to class certification, let alone a decision on the merits. The California state appellate court issued an opinion in one of these cases that was especially important. That decision affirmed the LA County Superior Court decision sustaining AOL's demurrer to the complaint for failure to state a cause of action for violation of the Consumer Legal Remedies Act, Unfair Competition Laws, and False and Misleading Advertising Laws. In its decision, the court adopted our reasoning in holding there was no contingent event (plaintiffs "earned and received their rebate when the purchase of the qualifying computer was consummated and the consumer signed the ISP contract") and no material omission occurred ("the law does not require defendants to offer their lowest price ISP service to its rebate applicants or to disclose the price of their other services when advertising one of them."). The decision, authored by Justice Mildred Lillie, a highly-respected jurist who has served on the court since 1958, provides favorable precedent in areas of consumer protection law that are relatively undeveloped. In fact, until this decision, there have been no prior cases under the applicable California statute (i.e., CLRA § 1770(a)(17)).



• TechnoBrands. Kelley Drye recently won an important victory for a national retailer when it successfully defended it against a consumer class action complaint in the Circuit Court of Cook County, Illinois, that attacked its e-mail marketing campaign. The plaintiff's consumer class action complaint alleged that the retailer's unsolicited e-mail advertisements sent to prospective purchasers of its products constituted unfair and deceptive business practices in violation of both the Illinois Consumer Fraud and Deceptive Business Practices Act and the Illinois Electronic Mail Act. Kelley Drye first persuaded the trial court to dismiss the class action complaint against the retailer in its entirety prior to trial, and then successfully advocated for affirmation of that dismissal before the Illinois Appellate Court, resulting in an appellate decision that will be used by many other national retailers in defense of their own e-mail marketing campaigns. The trial court dismissed the plaintiff's claim against the retailer because he was not actually deceived by the e-mail advertisement and because he had not purchased anything nor suffered any actual damage as a result of his receipt of the e-mail advertisement. The appellate court agreed and affirmed the trial court's dismissal of the claim against the retailer. Importantly, both the trial and appellate court rejected the plaintiff's claim that he was damaged by mere receipt of the unsolicited e-mail advertisement on account of the time that he wasted to open and read it online and on account of any potential increase in Internet service charges by his Internet service provider as a result of the volume of unsolicited e-mail advertisements.

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