Lead Opinion
delivered the opinion of the Court
In this interlocutory appeal of a trial court’s class certification order, the class representative obtained assignments of claims that the defendant telephone company improperly charged some of its business customers certain municipal fees. The court of appeals affirmed the statewide class certification.
I. Factual and Procedural Background
Southwestern Bell Telephone Company (Southwestern Bell) provides telephone service packages to its business customers.
Marketing on Hold, d/b/a Southwestern Tariff Analyst (STA), provides auditing services of business telephone bills and assists its customers in seeking adjustments from telephone companies for improper billing practices. In the course of auditing several Southwestern Bell telephone bills for its customers, STA discovered that Southwestern Bell assessed municipal fees for services STA claims were exempted by the ordinances from 1991 to 1998. STA entered into assignment agreements with five of its customers
The trial court conducted a four-day certification hearing and issued a twenty-eight page order certifying the class. The class is defined as:
All persons and entities or their assignees who made payment(s) to Southwestern Bell Telephone Company for charges which were characterized in Southwestern Bell’s bill or statement as a “municipal charge” or “municipal surcharge” or “municipal fee,” or similar designation (hereinafter collectively referred to as a “municipal charge”), at a time when the customer’s service charge upon which such “municipal charge” was imposed, was provided in a municipality located in the State of Texas having a[n SAP] ordinance....
and all or part of the such so-called “municipal charge” ... was based upon customer service charges made by SWBT for [services included in the SmartTrunk, Digital Loop, and Hotel/Motel subscription packages].3
The trial court found that the class satisfied the numerosity, commonality, typicality, and adequacy of representation requirements of rule 42(a) of the Texas Rules of Civil Procedure and that questions of law or fact common to thе class predominated over individual questions under then-rule 42(b)(4) (now rule 42(b)(3)).
Southwestern Bell appealed the trial court’s interlocutory certification order, and the court of appeals affirmed. See Tex. Civ. Prac. & Rem.Code § 51.014(a)(3). Southwestern Bell subsequently petitioned this Court, complaining that the court of appeals erred in affirming the class certification order. Specifically, Southwestern Bell challenges: (1) STA’s standing and its ability to represent the class adequately; (2) whether STA’s claims are typical of the class; and (3) the predominance of common questions where several claims allegedly require individualized proof of reliance and the assessment of damages requires individualized review of customer bills and other records. We granted Southwestern Bell’s petition and review the trial court’s class certification under an abuse of discretion standard. Henry Schein, Inc. v. Stromboe,
II. Standing
Southwestern Bell argues that the assignments under which STA claims standing are void as a matter of law and public policy, and, therefore, STA has no standing to sue or ability to serve as the class representative. “[B]efore Rule 42’s requirements are considered, a named plaintiff must first satisfy the threshold requirement of individual standing at the time suit is filed, without regard to the class claims.” M.D. Anderson Cancer Ctr. v. Novak,
“The requirement in this State that a plaintiff have standing to assert a claim derives from the Texas Constitution’s separation of powers among the departments of government, which denies the judiciary authority to decide issues in the abstract, and from the Open Courts provision, which provides court access only to a ‘person for an injury done him.’ ” DaimlerChrysler v. Inman,
Southwestern Bell does not argue that the assignments were invalid due to the absence of the legal precepts necessary to create a binding contractual assignment— meeting of the minds and consideration. Hathaway v. Gen. Mills, Inc.,
The municipal ordinances contain “anti-assignment” clauses that bar the assignment of “any right that accrues from the ordinance,” including the claims asserted by STA in this case.
Because STA holds contractually valid assignments, STA steps into the shoes of the claim-holders and is considered under the law to have suffered the same injury as the assignors and have the same ability to pursue the claims. Holy Cross Church of God in Christ v. Wolf,
Southwestern Bell also argues that the assignments should be invalidated on public policy grounds. Southwestern Bell contends that allowing an assignee to purchase the right to serve as the class representative will result in “entrepreneurial class actions,” or the commercial marketing of class representation. Because this would undermine the purpose of the class action device, Southwestern Bell argues, the Cоurt should hold that the assignments are void as a matter of public policy. We analyze this issue under our common law of assignability of claims.
The assignability of a cause of action is generally freely permitted, but assignments may be invalidated on public policy grounds. In re Prudential Ins. Co. of Am.,
STA already had a substantial financial interest in the claims against Southwestern Bell prior to the assignments. Cf. Mallios v. Baker,
Southwestern Bell argues that STA’s representation distorts the litigation process and flouts the legitimate goals of the class action device because STA has suffered no common class injury and is using the class device as a covert means to generate a finder’s fee for itself, rather than to compensate for an out-of-pocket loss. However, the valid assignment of claims to a party is not invalidated by the pаrty’s designation as the representative in a class suit. Nothing unique to the class action context or to this case dictates that we take the extraordinary step of invalidating otherwise contractually valid assignments on the asserted public policy grounds. See Citizens Ins. Co. of Am. v. Daccach,
Certainly, class actions are not intended to serve as vehicles for commercial investment in desired large recoveries or as avenues for entrepreneurial business development. To the extent those concerns exist in a class suit, the courts of this state must scrutinize the circumstances on a case-by-case basis to determine if the arrangement undermines the tenets and purpose оf the class action vehicle or otherwise violates public policy. See Mallios,
STA is a member of the class that the trial court certified. The certification order states that “[a]ll persons and entities or their assignees who made payment(s) to Southwestern Bell Telephone Company” for municipal charges are members of the class. In other words, STA is a valid class member—a point acknowledged by Southwestern Bell at oral argument when its counsel stated that “an assignee can pursue these claims and could even be a class member.”
If we were to hold, as Southwestern Bell contends we should, that STA’s assignments are void on public policy grounds, we would abrogate STA’s individual standing to bring its claims as either a member of the putative class as defined by the trial court or in an individual lawsuit. STA’s individual standing does not change based on whether it asserts that standing as a class member, in support of its bid to seiwe as the class representative, or as an individual litigant. The standing require
Southwestern Bell’s remaining arguments on standing concern STA’s designation as class representative. However, whether the named plaintiff is a proper class representative is not part of the standing inquiry. M.D. Anderson, 52 S.W.3d at 710. Assignee-class representation undoubtedly raises concerns about the potential for misappropriation of the class action device, and, as discussed above, the potential for abuse implicates public policy concerns. However, to evaluate class representatives whose representation may either threaten or further the proper use of class actions and the rights of absent class members, we employ well-established legal mechanisms-the adequacy, predominance, and typicality requirements.
Accordingly, we decline to invalidate the assignments on public policy grounds. Having concluded that STA has standing, we turn to the merits of Southwestern Bell’s petition — whether STA and the proposed class satisfy the requirements in Texas Rule of Civil Procedure 42.
III. Rule 42
All class actions must satisfy four requirements:
(1) numerosity — the class is so numerous that joinder of all members is impracticable; (2) commonality — there are questions of law or fact common to the class; (3) typicality — the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) adequacy of representation — the representative parties will fairly and adequately protect the interests of the class.
Daccach,
A class action must also satisfy at least one of the requirements in rule 42(b). Here, STA claims the class action satisfies rule 42(b)(3), which requires that “questions of law or fact common to the members of the class predominate over any questions affecting only individual members” and that class treatment is “superior to other available methods for the fair and efficient adjudication of the controversy.” Daccach,
A. Typicality
For a proper class certification, rule 42 requires that “the claims or
We have not previously had an opportunity to address the typicality of an assign-ee-class representative’s claims. Other courts considering this issue have focused on the legal theories behind the claims asserted, not the characteristics of the as-signee, unless a defense unique to the as-signee will “skew the focus of the litigation and create a danger that absent class members will suffer if their representative is preoccupied with defenses unique to it.” In re Cardizem CD Antitrust Litig.,
Emphasizing STA’s individual characteristics and its status as an assign-ee, Southwestern Bell downplays the literal language of rule 42(a) which focuses on the “claims or defenses ” of the class representative. Tex.R. Civ. P. 42(a)(3) (emphasis added). By virtue of its valid assignments, STA seeks a refund of the overcharges based on the same legal theories and conduct as the class; therefore, STA’s claims are typical of the class. Further, an assignee under Texas common law stands in the shoes of his assignor. Jackson v. Thweatt,
B. Predominance
Predominance guards against certifying class actions that could overwhelm or confuse a jury or compromise a party’s defense. Schein,
Southwestern Bell argues individualized proof of reliance and review of customer bills and other records to assess damages precludes a finding of predominance. We disagree.
1. Liability
Southwestern Bell argues that reliance is an element of the class claims for breach of express warranty and unjust enrichment, and thus individualized proof of each customer’s reliance on the bills in question will be the focus of the litigation.
STA responds that a showing of particularized reliance is not required to establish breach of express warranty or unjust enrichment, but even if it is, class-wide proof of reliance is available in this case because Southwestern Bell employs a standard format in its telephone bills, including a line item for municipal fees. STA cites the allegations in the class petition that “[a] Class member cannot independently verify, or independently determine, the customer service charges on which the ‘municipal charge’ is being applied and the rate applied to such customer service charges.” STA argues that class members were subjected to a uniform misrepresentation in the bills — that the amount of the municipal fee was legally authorized — and that, by paying their bills, class members relied on that misrepresentation. Whether Southwestern Bell was authorized to charge municipal fees on the services in question and whether class members relied on that representation, STA contends, are thus susceptible to class-wide proof. See Klay v. Humana, Inc.,
Texas courts have been reluctant to certify a class when proof of reliance is required as an element of a claim. See Schein,
Assuming STA alleges a fraud-based theory of unjust enrichment, the determinative inquiry under both unjust enrichment and breach of express warranty is whether individual inquiries regarding reliance predominate. When we have concluded that individual inquiries would
When evidence existed that individual class members’ experiences reasonably could have varied, we have likewise refused to certify the class. We held in Best Buy Co. v. Barrera that the class claim to recover a restocking fee, based on the equitable “money had and received” theory, turned on individual issues that would predominate at trial.
Conversely, in this case, Southwestern Bell employs a standard format in its telephone bills, including a line item for municipal fees. The municipal charge is uniformly calculated and applied. After rigorous analysis, the trial court found that the alleged misrepresentation on each bill — an amount due and owing for a municipal charge — “is uniform to all members of the class.... ” The trial court also found that “evidence of reliance can be demonstrated from the records of [Southwestern Bell] by showing that the members of the putative class paid the bill after it was presented.” Again, we review the certification under an abuse of discretion standard. Schein,
The class has met its burden of establishing class-wide proof of reliance because the plaintiffs had no choice but to rely on the misrepresentation. In paying the amount of the bill, Southwestern Bell’s customers must have paid the total amount due, including the municipal fee. If they had paid a different amount, such as one
Southwestern Bell’s argument that some of its customers may have called customer service to obtain an adjustment, failed to pay the bill entirely, or otherwise acted inconsistently with a showing of reliance is mere hypothesis and does not defeat class-wide proof of reliance. Class-wide proof of reliance is possible when class-wide evidence of reliance exists. Schein,
This case is different from, for example, Fidelity & Guaranty Life Insurance Co. v. Pina, in which the plaintiffs sued alleging a misrepresentation that the high interest rate on an annuity would continue past the first year, when in fact it did not.
Accordingly, we hold that the trial court did not abuse its discretion in finding that individual issues of liability for the breach of warranty and unjust enrichment claims will not predominate over common issues at trial. Schein,
2. Damages
Even though the class claims are susceptible to class-wide proof of reliance and thus liability, it will still be necessary to determine the refund or credit owed to each customer. Although individualized damage calculations do not necessarily defeat predominance, where the focus of the litigation will involve individually assessing the amount of the refund and determining who is entitlеd to any such refund, a finding of predominance of class issues is precluded. Schein,
Southwestern Bell also argues that the proposed computer program fails to address critical problems of calculating damages, including missing data, the possibility that “reallocated” municipal charges will increase or decrease individual damage awards, billing adjustments, changes in area code or municipality, and changed or discontinued services. Again, STA’s expert refuted each of Southwestern Bell’s expert’s claims regarding the difficulty in calculating damages.
The testimony at the certification hearing shows that STA’s expert had experience in evaluating allegations of over-billing and calculating refunds, while Southwestern Bell’s expert did not. Having reviewed their testimony and giving due deference to the trial court’s decision, we conclude the trial court did not abuse its discretion in giving STA’s expert’s testimony more weight in the face of conflicting evidencе. See Schein,
Finally, Southwestern Bell argues that the computer program cannot accurately assign damages to particular class members in a timely and efficient manner. Southwestern Bell’s records are identified by telephone number, not customer name. The records do not reflect changes in ownership, whether charges were subdivided, or whether someone else paid the bill on the customer’s behalf. Because the class is defined as those customers who made payments to Southwestern Bell, Southwestern Bell contends that each class member must be investigated to determine if she actually paid each of the bills at issue for the 96-month period.
The class definition — customers who made payments to Southwestern Bell — is materially indistinguishable from the customer responsible for payment. The statute makes clear that a customer, defined as the person “responsible for the payment of charges,” shall receive a refund in the case of overbilling. 16 Tex. Admin. Code § 26.27(a)(3)(B). Whether the telephone charges were ultimately subdivided by the сustomer and passed on to its tenants, guests, or employees is irrelevant — the bill was submitted to the customer, and the customer was responsible for its payments. In addition, proof of ownership and payment may be efficiently determined
With respect to notice, the trial court stated that because “the records of [Southwestern Bell] may not be sufficient to identify who may have owned some billing telephone numbers ... notice to some putative class members will be more difficult to accomplish than others.” The trial court also stated that it would “inquire into additional technical means of identifying and notifying unidentified class members, such as a search of the records of the Secretary of State’s Office, both during the initial notice phase of the lawsuit and during damage distribution, if any.” Evidence at the certification hearing establishes that at least twenty-five percent of the class members are current Southwestern Bell customers, and Southwestern Bell produced a list of putative class members, identifying approximately 2,200, or thirty percent, of the putative class members by name. Therefore, the trial court did not abuse its discretion in concluding that the individual class members will not be too difficult to identify.
Because we conclude that neither individual liability nor damage issues will consume the focus of the litigation, we hold that the trial court did not abuse its discretion in finding that the class meets the predominance requirement. Schein,
C. Adequacy
In addition to proving that the putative class representative holds typical claims, and that the class claims predominate in the class, the putative class representative must prove that it will adequately represent the class. An assignee’s interests are not “necessarily antagonistic” solely because it is an as-signee, but the perils of permitting an assignee to represent the class raise important concerns under rule 42. Cordes,
With these considerations in mind, we now turn to Southwestern Bell’s claim that STA cannot adequately represent the class. We agree that STA’s interests conflict with those of the absent class members. STA is not an injured claimant seeking relief to make itself whole, but voluntarily assumed the classwide injury in order to serve as the class representative. Unlike the class, STA has a materially lesser interest in making itself and the class whole because it was never personally aggrieved by Southwestern Bell’s alleged overcharging, and its maximum recovery is less than half the value of any
The undisputed evidence also shows that STA solicited these assignments from its customers to become the class representative. Prior to the dispute in this case, STA and the five customer-assignors were bound by consulting contracts in which STA agreed to audit the customer’s telephone bill in exchange for “fifty percent (50%) of all recovered overcharges, in the form of either refunds or credits.” After discovering the alleged overcharges, STA solicited assignments of five customers’ “right or interest in the Claims” in this case and the “sole authority for decisions with regards to prosecuting or settling the Claims” in exchange for, to use STA’s characterization, “a reduction of the preexisting consulting fee percentage” from fifty to thirty percent. STA already had a substantial financial interest in the claims against Southwestern Bell prior to the assignments. The only objective benefit that STA obtained was standing to sue on behalf of the five assignеd claimants, and the resultant ability to serve as the class representative and to control the litigation of some 6,900 claims against Southwestern Bell. STA stands in somewhat different shoes from other class members by virtue of its possible recovery pursuant to consulting contracts with other customers who paid the alleged overcharges but have not assigned their claims to STA. STA’s motives, different interests, and potentially conflicting interest created by the benefits under the five assignments and consulting contracts distinguish it from the thousands of other class members.
While the sacrificial servant role exists in many segments of our society, it is not often found in class action litigation. Class representation vests a great deal of power in the class representative. Bowden v. Phillips Petroleum Co.,
In this case, STA has failed to adequately show that in pursuing its claims, STA will advance the interests of the class. Schein,
IY. Conclusion
It is well-settled that a valid as-signee of a claim has standing to be a member of a class action related to that claim. The assignee is not disqualified from serving as a class representative so long as it is not a stranger sеeking entrepreneurship in class actions, and it does not distort the litigation process. In this instance, STA, the assignee, had an existing business relationship with class members, is a class member itself and obtained valid assignments from class members. As with any class representative, STA also must satisfy the requirements of Rule 42 of the Texas Rules of Civil Procedure. Although STA satisfied the typicality and predominance requirements to be a class representative (numerosity and commonality were not challenged), it failed to establish that it is an adequate class representative. Accordingly, we reverse the judgment of the court of appeals, decertify the class, and remand to the trial court for further proceedings consistent with this opinion.
Notes
. Southwestern Bell is now a wholly-owned subsidiary of AT & T, Inc. See AT & T, Inc. Annual Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, for the Fiscal Year Ended December 31, 2008 (Form 10-K), File No. 1-8610, Exhibit 21
. The five customers are Russell & Smith Ford, Inc., United Services Automobile Association, Riverway Bank, Petrocon Engineering, and S & B Engineering.
. Each of these terms describe a service provided by Southwestern Bell. The Hotel/Motel service allows the hotel or motel to incur charges on a per-call basis, thus allowing guests to receive and make local telephone calls charged to the room. Digital Loop and Smart Trunk describe an interface that makes a single connection with the telephone company that then provides the customer with twenty-three channels for telephone communication.
. The relevant text in the ordinance is as follows:
SECTION 1 — PURPOSE
Pursuant to the laws of the State of Texas, the CITY Charter and this Ordinance, the TELEPHONE COMPANY has the NON-EXCLUSIVE right and privilege to USE the public RIGHTS-OF-WAY in the CITY for the operation of a telecommunications system subject to the restrictions set forth herein ...
SECTION 13 — ASSIGNMENT OF ORDINANCE
This Ordinance and any rights or privileges hereunder shall not be assignable to any other entity without the express consent of the CITY. Such consent shall be evidenced by an ordinance which shall fully recite theterms and conditions, if any, upon which such consent is given.
. The various municipal ordinances involved are not identical; however, the differences do not affect the analysis herein.
. See also Elbaor v. Smith,
. STA and another consulting company hold assignments of claims in a related class action settlement brought in the 357th District Court of Cameron County, Texas. The claims in this case were carved out of another class action brought by Jose Míreles and Patricia Genuchi against Southwestern Bell for improper municipal fees paid by approximately five million Southwestern Bell business and residential customers in Texas. After a settlement (the Míreles settlement) was reached, STA intervened at the fairness hearing. STA dropped its objection once an agreement was reached that narrowed the scope of the Mí-reles settlement release apparently to exclude the claims of Southwestern Bell's business customers who paid municipal fees pursuant to the three types of telephone service packages at issue in this case.
.Specifically, the assignments convey the customer’s "rights, remedies, interests, benefits, choses in action, defenses, claims, demands, lawsuits, debts, liens, collateral, damages, covenants, agreements, actions, cross-actions, counterclaims, third-party claims, and causes of action of any nature, against [Southwestern Bell].” The claims are based on " 'municipal charges’ ... [that] were not authorized or imposed by the municipal ordinance or municipal franchise agreement relating to [Southwestern Bell’s] use of public right-of-ways.” STA agrees to pay the customer-assignors "70 percent of the net proceeds from any recovery on the Claims as part of the consideration for assigning to STA its remaining interest in the Claims.” "Net proceeds from any recovery on the Claims” is defined as "any recovery (in good funds) received on the Claims less STA’s costs of court, expenses, attorneys' fees, and any offsets, incurred in pursuing recovery on the Claims.”
. In this case, STA stood to gain fifty percent of any refund or credit it obtained on behalf of its five clients prior to the assignment pursuant to its preexisting auditing contracts. Under the assignments, STA stands to gain only thirty percent.
. STA was a Southwestern Bell customer and a member of a prior class action against Southwestern Bell for alleged overcharging, but it is undisputed that STA did not personally pay the fees ascribed to the telephone services at issue in this case.
. Linda S. Mullenix, professor at the University of Texas School of Law and prolific author on federal and state class actions, testified at the certification hearing that she "had never seen anything like this before...." She opined that the multitude of different incentives of STA presents a scenario in which "class counsel will be either litigating, negotiating, or bargaining the rights of one group [of class members] against another.”
. Southwestern Bell also argues that STA's interests directly conflict with the class, due to STA's preference for cash remedies, its lack of an assignment from a Hotel/Molel subscriber, and the possibility that some customers' damages may be reduced or eliminated by reallocation of municipal fees, and challenges whether STA will zealously represent the class and supervise class counsel. Because we have concluded that STA is not an adequate representative on other grounds, we need not reach Southwestern Bell's additional arguments.
Dissenting Opinion
joined by Chief Justice JEFFERSON and Justice MEDINA, dissenting.
The Court concludes that Marketing on Hold, doing business as Southwest Tariff Analyst (STA), holds valid assignments of claims typical of the class, has standing to assert its claims as a class member, is neither a stranger to the litigation nor a class-action entrepreneur, and will not disrupt the class-suit vehicle or distort the
Southwestern Bell is assessed fees under various municipal ordinances in order to compensate the cities enacting them for administering public rights-of-way. The company is allowed to pass the fees through to its telephone subscribers, but it is prohibited from making a profit from the charge. See, e.g., Brownsville, Tex., Ordinance 95-1296, § 12 (July 18, 1995). STA provides auditing services of business tеlephone bills and assists its customers in seeking refunds from telephone companies for improper billing practices, in exchange for a percentage of the amount its customers recover. In the course of auditing Southwestern Bell bills for its customers, STA discovered that the company had improperly passed through municipal charges for certain services relating to Smart-Trunk, Digital Loop and Hotel/Motel services. Each of these trademarks describe a service provided by Southwestern Bell to its business customers.
STA had a number of customers who subscribed to some of these Southwestern Bell services.
After a four-day certification hearing thе trial court determined that the class satisfied the numerosity, commonality, typicality, and adequacy of representation requirements of Rule 42(a) of the Texas Rules of Civil Procedure, and that questions of law and fact common to the class predominated over individual questions under Rule 42(b)(4). Tex.R. Civ. P. 42(b)(4)
According to the Court, STA must have a lesser interest in making itself and the class whole because it was “never personally aggrieved by Southwestern Bell’s alleged overcharging and its maximum recovery is less than half the value of any individual claim for damages.”
Southwestern Bell contends STA’s thirty-percent interest in recovered funds will make it more likely to disregard a settlement paid for in coupons or credits. In support, Southwestern Bell points to an STA employee’s testimony at the certification hearing that he was uncertain as to whether a coupon settlement would be proper in this case.
Southwestern Bell points to the fact that STA does not hold an assignment from a customer who subscribed to Hotel/Motel services and thus has no incentive to pursue such claims. However, it is highly unlikely that any potential class representative would have a claim based on all three types of subscription packages. The salient point is that the Hotel/Motel claims arise from the same unauthorized course of conduct as the other class claims, and are brought under the same statutory scheme with the same legal theories. Southwestern Bell has not articulated how the interests or claims of Smart Trunk and Digital Loop customers differ from or conflict with those of Hotel/Motel customers. See Cardizem,
Southwestern Bell also challenges whether STA and its representatives have the qualifications, background, and interest to represent the class and supervise class counsel, pointing to the testimony of an STA employee, Mike Shelton, that “we’re here at the disposal of the lawyers.” Tex.R. Crv. P. 42(a)(4). However, quoted in full, Shelton’s statement demonstrates that he is aware of his duty “[t]o vigorously represent the class, to put their needs above ours, to — as we’re doing today, we’re here at the disposal of the lawyers, at the disposal of the Court to vigorously pursue this case and protect the class rights.” Southwestern Bell claims another employee, Mark Wilder, lacks familiarity with the surrounding facts and legal theories. However, Wilder possesses knowledge and expertise regarding the billing procedures at issue in this case, which are not common knowledge nor widely known to members of the putative class. The evidence supports the trial court’s determination that STA is an appropriate class representative, and the testimony of its employees does as well.
In sum, the speculative conflicts the Court and Southwestern Bell hypothesize between STA and the other class members are too tenuous to render it an inadequate class representative. Considering the absence of any realistic potential for conflict or antagonism between STA and the class, together with STA’s demonstrated superi- or expertise in the subject matter of the litigation, I would hold that STA has satisfied the adequacy requirement and affirm certification of the class. Because the Court concludes otherwise, I respectfully dissent.
. The Hotel/Motel service allows the hotel or motel to incur charges on a per-call basis, thus allowing guests to receive and make local telephone calls charged to the room. Digital Loop and Smart Trunk describe an interface that makes a single connection with the telephone company that then provides the customer with twenty-three channels for telephone сommunication.
. The customers are United Services Automobile Association (USAA), S & B Engineers, Inc./S & B Engineers and Constructors, Ltd., Petrocon Engineering, Inc., Riverway Bank, and Russell & Smith Ford, Inc.
. The customers assigned 100% of their claims to STA, but as part of the consideration for the assignment STA agreed to pay the assignors 70% of any net proceeds recovered and retain 30% for itself.
. That employee testified as follows:
Q: “And a coupon settlement would be proper in this case, as to what STA should receive for 30 percent interest?”
A: “I'm not certain.”
. Southwestern Bell’s expert offered the following hypothetical example: if the municipal fee is $9 million and Southwestern Bell had $100 million in revenues, then Southwestern Bell would charge its customers a 9% municipal charge to recoup the $9 million fee. A customer with a $100,000 bill would have had a $9,000 municipal charge without reallocation. If, however, only $90 million in revenue was appropriately subject to these charges, Southwestern Bell would then have to charge its customers a 10% municipal charge to recoup the $9 million fee. Under reallocation, if only $99,000 was taxable, then
. For example, for USAA, a large customer-assignor, damages with reallocation would be $2,560.67 and damages without reallocation would be $2,563.74. For Ridgeway Bank, a small customer-assignor, damages with reallocation would be $99.66 and damages without reallocation would be $102.59.