Case 8:12-cv JST-MLG Document 5 Filed 02/06/13 Page 1 of 17 Page ID #:41

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1 Case :-cv-0-jst-mlg Document Filed 0/0/ Page of Page ID #: 0 MARK F. SULLIVAN, State Bar No. GEORGE P. GALBRAITH-ALBUTT, State Bar No. 00 SULLIVAN TAKETA LLP Townsgate Road Suite 0 Westlake Village, California - Telephone: () - Facsimile: () - Attorneys for Defendants Pacific Telecom Communications Group, International Telephone Corporation, Telephone Management Corporation, Steve Hamilton, and Fred Accuardi CHERI ASTRAHAN, et al. v. Plaintiff, PACIFIC TELECOM COMMUNICATIONS GROUP, a Nevada Corporation; INTERNATIONAL TELEPHONE CORPORATION, a Belize Corporation; TELEPHONE MANAGEMENT CORPORATION, an Oregon Corporation; STEVE HAMILTON; FRED ANTHONY ANTONE ACCUARDI, Defendants. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Case No. SACV -0 JST (MLGx) ANSWER TO PLAINTIFF S COMPLAINT BY DEFENDANTS PACIFIC TELECOM COMMUNICATIONS GROUP, INTERNATIONAL TELEPHONE CORPORATION, TELEPHONE MANAGEMENT CORPORATION, STEVE HAMILTON, AND FRED ACCUARDI

2 Case :-cv-0-jst-mlg Document Filed 0/0/ Page of Page ID #: 0 Defendants Pacific Telecom Communications Group ( Pacific Telecom ), International Telephone Corporation ( IT Belize ), Telephone Management Corporation ( Telephone Management ), Steve Hamilton, and Fred Accuardi (erroneously sued as Fred Anthony Antone Accuardi ) hereby answer the Complaint, individually and not jointly, as follows. DEFENDANTS RESPONSE TO PLAINTIFF S ALLEGATIONS. As to the allegations in paragraph, Defendants admit that Plaintiff is purporting to bring this action as a class action, but deny that this action is appropriate for certification as a class action. Except as expressly admitted, Defendants deny each and every allegation in this paragraph. I. JURISDICTION AND VENUE.. As to the allegations in paragraph, Defendants admit that this court has subject matter jurisdiction under U.S.C. and U.S.C. (d)(), but deny that this action is appropriate for class certification, either as a nationwide class or otherwise. Except as expressly admitted, Defendants deny each and every allegation in this paragraph.. As to the allegations in paragraph, Defendants admit that Pacific Telecom has on occasion done business within the State of California and the County of Los Angeles. Defendants contend that venue in this action is proper only in the District of Oregon, on the grounds that this is the only district in which a substantial portion of the relevant events occurred. Alternatively, Defendants contend that venue should be set in the District of Oregon as that is the district where the majority of records and witnesses are located and accordingly would be the most convenient forum for trial of this action. Except as expressly admitted, Defendants deny each and every allegation in this paragraph.

3 Case :-cv-0-jst-mlg Document Filed 0/0/ Page of Page ID #: 0 II. PARTIES.. As to the allegations in paragraph, Defendants lack knowledge or information sufficient to form a belief about the truth of the allegations in this paragraph and on that basis deny each and every one.. As to the allegations in paragraph, Defendants admit that Pacific Telecom is and at all times relevant hereto was a Nevada corporation, admit that Fred Accuardi is currently the Chief Executive Office of Pacific Telecom and that % of the shares of Pacific Telecom are owned by Fred Accuardi and his wife, and admit that Steve Hamilton is currently the President of Pacific Telecom and that % of the shares of Pacific Telecom are owned by Steve Hamilton. Except as expressly admitted, Defendants deny each and every allegation in this paragraph.. As to the allegations in paragraph, Defendants admit that IT Belize is an International Business Corporation registered under the laws of Belize, with its principal place of business in Portland, Oregon. Except as expressly admitted, Defendants deny each and every allegation in this paragraph.. As to the allegations in paragraph, Defendants admit that Telephone Management is an Oregon corporation with its principal place of business located at SW th Avenue, Portland, Oregon 0. Except as expressly admitted, Defendants deny each and every allegation in this paragraph.. As to the allegations in paragraph, Defendants admit that Steve Hamilton is the President of Pacific Telecom, and admit that Steve Hamilton is a resident of the County of Los Angeles, State of California. Except as expressly admitted, Defendants deny each and every allegation in this paragraph.. As to the allegations in paragraph, Defendants admit that Fred Accuardi is the beneficial owner of IT Belize, is the President of Telephone Management, and is a resident of the State of Oregon. Except as expressly admitted, Defendants deny each and every allegation in this paragraph.

4 Case :-cv-0-jst-mlg Document Filed 0/0/ Page of Page ID #: 0. Defendants deny each and every allegation in paragraph. III. LEGAL REQUIREMENTS FOR DEFENDANTS' UNSOLICITED PRERECORDED ADVERTISING MESSAGES. As to the allegations in paragraph, Defendants admit that the portions of text beginning at page line of the Complaint are, excluding the underlining, an accurate excerpt from U.S.C. (b). Except as expressly admitted, Defendants deny each and every allegation in this paragraph.. As to the allegations in paragraph, Defendants admit that the portions of text beginning at page line 0 of the Complaint are, excluding the underlining, an accurate excerpt from C.F.R.(b)()(v). Except as expressly admitted, Defendants deny each and every allegation in this paragraph.. Defendants admit the allegations in paragraph.. As to the allegations in paragraph, Defendants admit that the FTC publishes a manual for businesses entitled Complying with the Telemarketing Sales Rule, and that this manual sets forth the quoted text in the paragraph. Except as expressly admitted, Defendants deny each and every allegation in this paragraph.. Defendants deny each and every allegation in paragraph.. Defendants deny each and every allegation in paragraph. IV. FACTUAL ALLEGATIONS A. DEFENDANTS BUSINESS PRACTICES. As to the allegations in paragraph, Defendants deny each and every allegation in this paragraph. Defendant further objects to the graphical chart as vague, ambiguous, and as not in compliance with F.R.C.P. Rule.. As to the allegations in paragraph, Defendants: (a) admit that Pacific Telecom is a Competitive Local Exchange Carrier ( CLEC ) and that Steve Hamilton is its President; (b) admit that Fred Accuardi s son, F. Antone Accuardi, is an Oregon attorney; and (c) admit that F. Antone Accuardi has never, at any relevant time, been an

5 Case :-cv-0-jst-mlg Document Filed 0/0/ Page of Page ID #: 0 officer, employee, stockholder, member, or director of any of the Defendants. Except as expressly admitted, Defendants deny each and every allegation in this paragraph.. As to the allegations in paragraph, Defendants: (a) admit that IT Belize is an International Business Corporation registered under the laws of Belize, and that Fred Accuardi is beneficial owner of and has control of IT Belize, and (b) admit that IT Belize has signed contracts concerning calling party name (CNAM) identification and dip fees with businesses that make high volumes of calls. Except as expressly admitted, Defendants deny each and every allegation in this paragraph. 0. As to the allegations in paragraph 0, Defendants admit that Telephone Management has its principal place of business in Oregon. Except as expressly admitted, Defendants deny each and every allegation in this paragraph.. As to the allegations in paragraph, Defendants: (a) admit that Pacific Telecom is a CLEC, and in that status has obtained a block of approximately,000 numbers, each of which could be used as a calling party number ( CPN ) or as an automatic number identification ( ANI ) as those two terms are defined in C.F.R..00, and (b) admit that businesses that regularly make high volumes of calls have contracted with IT Belize to obtain the right to use as ANIs some of these Pacific Telecom numbers. Except as expressly admitted, Defendants deny each and every allegation in this paragraph.. As to the allegations in paragraph, Defendants admit that from time to time the FTC has received complaints regarding telephone calls that were allegedly unsolicited and that allegedly originated from Pacific Telecom numbers. Defendants deny that any of them have made any prerecorded telemarketing calls to Plaintiff, to any member of the class or to anyone else. Defendants allege the FTC has never investigated these complaints or determined whether any of these complaints has merit. Except as expressly admitted, Defendants deny each and every allegation in this paragraph.

6 Case :-cv-0-jst-mlg Document Filed 0/0/ Page of Page ID #: 0. Defendants deny each and every allegation in paragraph.. As to the allegations in paragraph, Defendants (a) admit that when a person who subscribes to enhanced Caller ID services receives a call to his or her wireline number, the recipient s service provider sends a query to a centralized calling name ( CNAM ) database or directory that associates telephone numbers with names of up to characters; (b) admit that if the database returns an associated name, the name, or both the name and the number, are displayed by the call recipient s equipment while the call is ringing, unless a privacy code indicates that access to the name is blocked; (c) admit that the CPN is not the same as the calling party s automatic number identification ( ANI ); (d) admit that ANI refers to the delivery of the calling party s billing number for billing and routing purposes; (e) admit that although the CPN and the ANI for a given call may be the same, the CPN and ANI may differ; (f) admit that the call recipient s service provider pays a small fee, called a caller ID fee, dip fee, or dip, to the database or directory provider for the query; and (g) admit that such fees are typically a tiny fraction of a cent per call. Except as expressly admitted, Defendants deny each and every allegation in this paragraph.. As to the allegations in paragraph, Defendants admit that IT Belize has signed contracts concerning calling party name (CNAM) identification and dip fees with businesses that make high volumes of calls. Except as expressly admitted, Defendants deny each and every allegation in this paragraph.. As to the allegations in paragraph, Defendants admit that a third party contractor hosts a website for International Telephone LLC ( IT LLC ), whose sole member is Telephone Management, and that the servers of this third party contractor are at a data and colocation facility owned by Spire Tech. Except as expressly admitted, Defendants deny each and every allegation in this paragraph.. As to the allegations in paragraph, Defendants admit that IT LLC, through a contract with a third party vendor, formerly provided its clients access to a

7 Case :-cv-0-jst-mlg Document Filed 0/0/ Page of Page ID #: 0 website at reports.inttelephone.com where these clients could: () input the maximum -digit characters that would appear as a caller ID; () review their dips revenue; () determine how a call to an ANI would be routed (i) to the client s toll-free number, e.g., an 00 number, (ii) to the client s interactive voice response ( IVR ) system, or (iii) to an IVR system offered at no charge to clients by IT LLC; or () transfer the call by internet ( SIP forward ) to a different computer server. Except as expressly admitted, Defendants deny each and every allegation in this paragraph. B. DEFENDANTS' CALLS TO PLAINTIFF AND THE CLASS. As to the allegations in paragraph, Defendants lack knowledge or information sufficient to form a belief about the truth of the allegations in this paragraph and on that basis deny each and every one.. Defendants deny each and every allegation in paragraph. 0. As to the allegations in paragraph 0, Defendants (a) admit that was a number which Pacific Telecom had leased to IT LLC for use solely as an ANI, and (b) admit that in turn, IT LLC made this ANI available for use to one of its clients. Defendants again deny that any of them have made any prerecorded telemarketing calls to Plaintiff, to any member of the class or to anyone else. Except as expressly admitted, Defendants lack knowledge or information sufficient to form a belief about the truth of the allegations in this paragraph and on that basis deny each and every one.. As to the allegations in paragraph, Defendants lack knowledge or information sufficient to form a belief about the truth of the allegations in this paragraph and on that basis deny each and every one.. As to the allegations in paragraph, Defendants (a) admit that of the twenty-four distinct numbers listed in this paragraph, thirteen of these were, as set forth in the table below, numbers which Pacific Telecom had leased to IT LLC for use solely as ANIs and which, in turn, IT LLC had made available for use to various clients, and

8 Case :-cv-0-jst-mlg Document Filed 0/0/ Page of Page ID #: 0 (b) admit that that the remaining eleven numbers belong to CLECs other than Pacific Telecom, a fact which Plaintiff could readily have determined by accessing public sources such as the website Defendants again deny that any of them have made any prerecorded telemarketing calls to Plaintiff, to any member of the class or to anyone else. Except as expressly admitted, Defendants lack knowledge or information sufficient to form a belief about the truth of the allegations in this paragraph and on that basis deny each and every one. 0 ANI of another CLEC 0 ANI of another CLEC 0 ANI of another CLEC 00 ANI of another CLEC 0 ANI of another CLEC 0 ANI of another CLEC 000 ANI of another CLEC 0 ANI of another CLEC 00 ANI of another CLEC 00 ANI of another CLEC 0 ANI of another CLEC 00 ANI of Pacific Telecom 0 ANI of Pacific Telecom 0 ANI of Pacific Telecom 0 ANI of Pacific Telecom 00 ANI of Pacific Telecom 0 ANI of Pacific Telecom 00 ANI of Pacific Telecom 0 ANI of Pacific Telecom 0 ANI of Pacific Telecom 0 ANI of Pacific Telecom 000 ANI of Pacific Telecom ANI of Pacific Telecom ANI of Pacific Telecom. As to the allegations in paragraph, Defendants again deny that any of them have made any prerecorded telemarketing calls to any member of the class or to

9 Case :-cv-0-jst-mlg Document Filed 0/0/ Page of Page ID #: 0 anyone else. Defendants lack knowledge or information sufficient to form a belief about the truth of the remaining allegations in this paragraph and on that basis deny each and every one.. As to the allegations in paragraph, Defendants again deny that any of them purchased or otherwise obtained the cell phone number of Plaintiff or of any member of the class. Defendants lack knowledge or information sufficient to form a belief about the truth of each of the allegations in this paragraph and on that basis deny each and every one.. As to the allegations in paragraph, Defendants again deny that any of them have made any prerecorded telemarketing calls to Plaintiff, to any member of the class or to anyone else. Defendants deny each and every allegation in this paragraph.. As to the allegations in paragraph, Defendants again deny that any of them have made any prerecorded telemarketing calls to Plaintiff, to any member of the class or to anyone else. Defendants deny each and every allegation in this paragraph.. As to the allegations in paragraph, Defendants lack knowledge or information sufficient to form a belief about the truth of the allegations in this paragraph and on that basis deny each and every one.. Defendants deny each and every allegation in paragraph. Defendants again deny that any of them have made any prerecorded telemarketing calls to Plaintiff, to any member of the class or to anyone else.. Defendants deny each and every allegation in paragraph. Defendants again deny that any of them have made any prerecorded telemarketing calls to Plaintiff, to any member of the class or to anyone else. 0. Defendants deny each and every allegation in paragraph 0. Defendants again deny that any of them have made any prerecorded telemarketing calls to Plaintiff, to any member of the class or to anyone else..

10 Case :-cv-0-jst-mlg Document Filed 0/0/ Page of Page ID #:0 0. Defendants deny each and every allegation in paragraph. Defendants again deny that any of them have made any prerecorded telemarketing calls to Plaintiff, to any member of the class or to anyone else... Defendants deny each and every allegation in paragraph. v. CLASS ALLEGATIONS. Defendants deny each and every allegation in paragraph.. Defendants deny each and every allegation in paragraph. Defendants specifically deny that members of the class can be identified from records maintained by Defendants because, again, none of the Defendants have made any prerecorded telemarketing calls to Plaintiff, to any member of the class or to anyone else.. Defendants deny each and every allegation in paragraph. Defendants again deny that any of them have made any prerecorded telemarketing calls to Plaintiff, to any member of the class or to anyone else.. Defendants deny each and every allegation in paragraph.. Defendants deny each and every allegation in paragraph.. Defendants deny each and every allegation in paragraph.. Defendants deny each and every allegation in paragraph. 0. Defendants deny each and every allegation in paragraph 0. COUNT I AGAINST ALL DEFENDANTS FOR NEGLIGENT VIOLATIONS OF THE TCPA U.S.C. (b). Defendants deny each and every allegation in paragraph.. Defendants deny each and every allegation in paragraph.. Defendants deny each and every allegation in paragraph.. Defendants deny each and every allegation in paragraph.. Defendants deny each and every allegation in paragraph.. Defendants deny each and every allegation in paragraph.. Defendants deny each and every allegation in paragraph.

11 Case :-cv-0-jst-mlg Document Filed 0/0/ Page of Page ID #: 0. Defendants deny each and every allegation in paragraph. COUNT II AGAINST ALL DEFENDANTS FOR WILLFUL/KNOWING VIOLATIONS OF THE TCPA U.S.C. (b). Defendants deny each and every allegation in paragraph. 0. Defendants deny each and every allegation in paragraph 0.. Defendants deny each and every allegation in paragraph.. Defendants deny each and every allegation in paragraph.. Defendants deny each and every allegation in paragraph.. Defendants deny each and every allegation in paragraph.. Defendants deny each and every allegation in paragraph.. Defendants deny each and every allegation in paragraph.. Defendants deny each and every allegation in paragraph. VI. JURY TRIAL DEMAND jury trial.. Defendants admit the allegations in paragraph and similarly request a PRAYER FOR RELIEF. Defendants deny each and every allegation in Plaintiff s prayer for relief. FIRST AFFIRMATIVE DEFENSE DEFENDANTS AFFIRMATIVE DEFENSES. The Complaint fails to state a claim upon which relief can be granted. SECOND AFFIRMATIVE DEFENSE. At all times relevant to the complaint, Defendant Pacific Telecom was an intra-lata CLEC subject to regulation by the Oregon, Washington, Montana and North Dakota state public service commissions. Under the Federal Communications

12 Case :-cv-0-jst-mlg Document Filed 0/0/ Page of Page ID #: 0 Act, U.S.C. (b), the regulation of the provisioning of facilities and services by such intra-lata and local carriers is presumptively subject to the primary jurisdiction of the respective state commissions in whose jurisdiction such a CLEC operates. Plaintiff s complaint seeks to apply federal law to regulate the use of utility facilities and services circumventing state jurisdiction in violation of U.S.C. (b). The Court should stay or dismiss this action pending review by such Commissions. THIRD AFFIRMATIVE DEFENSE. There are one or more complaints pending against Pacific Telecom in these state commissions which involve the same issue whether there has been an abuse or misuse of this Defendant s privileges as a public utility. Under the terms of U.S. Code section (b), the Court should stay or dismiss this action pending final resolution of these issues by such Commissions. FOURTH AFFIRMATIVE DEFENSE. The issue of the propriety of Pacific Telecom s use of its facilities and privileges as a common carrier is subject to the primary jurisdiction of the Federal Communications Commission. FIFTH AFFIRMATIVE DEFENSE. There are one or more complaints pending against Pacific Telecom in these state commissions which involve the same issue whether there has been an abuse or misuse of this Defendant s privileges as a public utility. Under the doctrine of primary jurisdiction of these states, courts of such states would not have jurisdiction over this action. Since under the Federal Telephone Consumer Protection Act (TCPA), a person is authorized to sue under it only if otherwise permitted by the laws or rules

13 Case :-cv-0-jst-mlg Document Filed 0/0/ Page of Page ID #: 0 of court of a State, U.S.C. (b)(), this suit should similarly not be permitted under the TCPA. SIXTH AFFIRMATIVE DEFENSE. The Complaint seeks to regulate the terms and conditions under which a telephone common carrier may provide use of its services, facilities and privileges to members of the public and, as such, the Complaint would not be within the subject matter jurisdiction of California state trial courts under California Public Utilities Code section. Since under the Federal Telephone Consumer Protection Act (TCPA), a person is authorized to sue only if otherwise permitted by the laws or rules of court of a State, U.S.C. (b)(), this suit should similarly not be permitted under the TCPA. SEVENTH AFFIRMATIVE DEFENSE. As a common carrier, Pacific Telecom is required to provide access to its services and facilities without discrimination. See, for example, California Public Utilities Code sections and. Since none of the Defendants in fact makes any telemarketing or other prerecorded telephone broadcast calls, Plaintiff s Complaint implicitly seeks to require Defendant Pacific Telecom, and its agents, to deny use of its ANIs (and its right of access to the national calling number identification databases) to customers based on improper, discriminatory criteria, including premature judgments concerning the possible misuse of these facilities. A California trial court would be precluded from making a determination as to the reasonableness of such discrimination by California Public Utilities Code section. Since under the Federal Telephone Consumer Protection Act (TCPA), a person is authorized to sue only if otherwise permitted by the laws or rules of court of a State, U.S.C. (b)(), this suit should similarly not be permitted under the TCPA.

14 Case :-cv-0-jst-mlg Document Filed 0/0/ Page of Page ID #: 0 EIGHTH AFFIRMATIVE DEFENSE. In some or all of the states in the proposed nationwide class (and particularly in states with a jurisdictional rule similar to California Public Utilities Code section ), this action could not be brought under the laws or rules of court of those states. Since under the Federal Telephone Consumer Protection Act (TCPA), a person is authorized to sue only if otherwise permitted by the laws or rules of court of a State, U.S.C. (b)(), this suit should similarly not be permitted under the TCPA. NINTH AFFIRMATIVE DEFENSE. Plaintiff and the class members gave their express prior consent to receiving the calls referenced in the Complaint. TENTH AFFIRMATIVE DEFENSE. Some or all of the calls referenced in the Complaint that were allegedly made to wireless numbers did not violate the TCPA because such calls were made within days of the wireless number being ported from wireline service. ELEVENTH AFFIRMATIVE DEFENSE. Some or all of the calls referenced in the Complaint that were allegedly made to wireless numbers did not violate the TCPA because such calls were forwarded by the wireless number s subscriber from a wireline service. TWELFTH AFFIRMATIVE DEFENSE. Some or all of the calls at issue that were made to any residential line using an artificial or prerecorded voice to deliver a message without the prior express written consent of the called party did not violate the TCPA because the call either (i) was

15 Case :-cv-0-jst-mlg Document Filed 0/0/ Page of Page ID #: 0 made for emergency purposes; (ii) was not made for a commercial purpose; (iii) was made for a commercial purpose but does not include or introduce an advertisement or constitute telemarketing; (iv) was made by or on behalf of a tax-exempt nonprofit organization; or (v) delivered a health care message made by, or on behalf of, a covered entity or its business associate, as those terms are defined in the HIPAA Privacy Rule, C.F.R. 0.. THIRTEENTH AFFIRMATIVE DEFENSE. As a condition to the use of Defendant Pacific Telecom s ANIs, Defendants require clients to agree in writing to comply with all federal laws and regulations and provide the clients with a detailed manual prepared by a former Federal Trade Commission staff attorney for the express purpose of assuring compliance with governing federal regulations dealing with prerecorded calls and automated dialing. FOURTEENTH AFFIRMATIVE DEFENSE. At all times relevant to the matters alleged in the Complaint, Defendants acted pursuant to the advice of a former Federal Trade Commission staff attorney with respect to complying with governing federal regulations dealing with prerecorded calls and automated dialing. If Defendants violated any regulation, such violation was not wilful. FIFTEENTH AFFIRMATIVE DEFENSE. The proposed class does not meet the adequacy, typicality, commonality, or numerosity requirements of F.R.C.P. Rule (a). SIXTEENTH AFFIRMATIVE DEFENSE. The proposed class does not meet the requirements of Rule (b).

16 Case :-cv-0-jst-mlg Document Filed 0/0/ Page of Page ID #: 0 SEVENTEENTH AFFIRMATIVE DEFENSE. The merits of consumer complaints referenced in this complaint as having been received by the FTC have not been investigated by the FTC. One or more of the Defendants has advised the FTC of the multiple and entirely ordinary ways that a consumer can erroneously conclude that they have received an unlawful prerecorded call and make a complaint where none was warranted. Additionally, Defendants have advised the FTC of the ease with which unauthorized third parties can misuse ANIs identified with a legitimate CLEC such as Defendant Pacific Telecom, and the FTC has further acknowledged the accuracy of this point. Accordingly, no weight or inference of wrongdoing can be derived from alleged numbers of complaints received by the FTC as they constitute highly prejudicial, unscientific evidence akin to an inadmissible survey. EIGHTEENTH AFFIRMATIVE DEFENSE. Any award of statutory penalties would be excessive under the Fifth and Fourteenth Amendments to the U.S. Constitution. NINETEENTH AFFIRMATIVE DEFENSE. Construing a statute like U.S.C., that governs the making of telemarketing calls, to impose liability on parties who have not made such prerecorded calls would violate due process under the Fifth and Fourteenth Amendments to the U.S. Constitution. TWENTIETH AFFIRMATIVE DEFENSE 0. Plaintiff s claims are barred, in whole or in part, by applicable state statutes of limitation, applicable to the TCPA under U.S.C. (b)(), including but not limited to the one-year statute of limitations in California Code of Civil

17 Case :-cv-0-jst-mlg Document Filed 0/0/ Page of Page ID #: 0 Procedure section 0 and the two-year statute of limitations in California Code of Civil Procedure section.. TWENTY-FIRST AFFIRMATIVE DEFENSE. The TCPA is unconstitutionally void for vagueness because the term prior express consent is not adequately defined. Wherefore, Defendants pray: PRAYER FOR RELIEF. That the Court order that this action is not appropriate for certification as a class action on either a nationwide or statewide basis;. That Plaintiffs take nothing by the Complaint and that it be dismissed with prejudice;. That judgment be entered in favor of Defendants; and. That Defendants be awarded attorney's fees, costs, and other relief as the Court may deem just and proper. DATED: February, 0 By: SULLIVAN TAKETA LLP /s/ Mark F. Sullivan Attorneys for Defendants Pacific Telecom Communications Group, International Telephone Corporation, Telephone Management Corporation, Steve Hamilton, and Fred Anthony Accuardi

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