<http://schema.org/articleBody>
"CHARLESTON &ndash; Although the U.S. 4th Circuit Court of Appeals told District Judge John Copenhaver he must hear a class action against AT&T Mobility, neither side wants the case to remain in Copenhaver's court. <br /><br />  AT&T Mobility wants him to order arbitration. <br /><br />  Plaintiffs James Strawn and James Staton want him to send the case back to Kanawha Circuit Court, where they filed it in 2006. <br /><br />  They alleged that the former Cingular Wireless improperly charged $2.99 a month for roadside assistance service that customers did not request. <br /><br />  The phone company removed the suit to federal court under the Class Action Fairness Act, arguing that the amount in controversy exceeded the act's $5 million threshold. <br /><br />  The company attached an affidavit stating that it billed 58,800 West Virginia customers for roadside assistance. <br /><br />  The company multiplied that number by $200, the maximum penalty under state consumer law, and calculated the controversy at $11,760,000. <br /><br />  On behalf of Strawn and Staton, Harry Bell of Bell & Bands in Charleston moved for remand to Kanawha County. <br /><br />  Bell argued that the company inflated the amount by counting customers who paid the fee willingly along with those who paid it unwillingly. <br /><br />  Phone company attorney Jeffrey Wakefield answered that he couldn't separate the willing from the unwilling. <br /><br />  Copenhaver declared that the phone company failed to prove federal jurisdiction. He granted Bell's remand motion. <br /><br />  AT&T Mobility appealed, and in June the 4th Circuit reversed Copenhaver. <br /><br />  The appellate court ruled that Bell's class definition did not distinguish between willing and unwilling customers. <br /><br />  When the case returned to Copenhaver's court, AT&T Mobility moved to compel arbitration and to stay discovery. <br /><br />  Tim Yianne of Bell & Bands opposed a stay of discovery on Aug. 25, arguing that Strawn and Staton deserve a chance to challenge AT&T Mobility's affidavit. <br /><br />  Although Yianne did not move again for remand, his brief pointed in that direction. <br /><br />  \"Discovery is the only way for the court and the parties to accurately determine if CAFA jurisdiction is satisfied,\" he wrote. <br /><br />  He wrote that \"allowing a party to invoke federal jurisdiction through unchallenged affidavits will promote gamesmanship and forum shopping by defendants who seek to avoid state court venues that otherwise are appropriate forums.\" <br /><br />  He asked Copenhaver to hold the arbitration motion in abeyance until he has resolved the motion to stay discovery.    "^^<http://www.w3.org/2001/XMLSchema#string>
<http://wvrecord.com/stories/510594674-both-sides-want-at-t-case-out-of-federal-court>