Karen Kidd Apr. 20, 2016, 12:35pm


PHILADELPHIA – Metro PCS now is freed, unless there's a fourth filing in the case, from a lawsuit brought by a Philadelphia wireless retailer who alleged a conspiracy by the retail giant to obstruct or delay interstate commerce by extortion to obtain its assets.

U.S. District Court Judge Mark Kearney, of the Eastern District of Pennsylvania, on March 2 sharply criticized plaintiffs in the case, saying the litigation was ill conceived. He also singled out the attorney for plaintiff 3G Wireless.

"Disappointed business owners often file a lawsuit as leverage to renegotiate or find another business opportunity through resolution," Kearney wrote.

"In doing so, the owners must ensure their lawyers fully present the known facts involving all possible parties. They cannot sue and sue again striving to find either the right spin on static facts or a judge willing to proceed to trial on a new spin on old facts."

The opinion pointed out this case has been pleaded before three courts in three separate actions and that the business owners should have expected the court to review earlier failed attempts.

"Plaintiffs fall short in this third try," Kearney wrote. "In the accompanying Order, we grant Defendants’ motions to dismiss as the Plaintiffs’ claims are either barred by claim preclusion based on at least one earlier state court dismissal, lack of standing and, as to a new racketeering claim, fails to state a claim."

The lawsuit was filed Nov. 25 in the U.S. District Court for the Eastern District of Pennsylvania by Joseph and Heather Cho, along with 3G Wireless Inc. and Elite Mobile Inc., against Metro PCS Pennsylvania and various company officials, retailers and franchise dealers. The case alleged the defendants engaged in racketeering.

The events leading to the lawsuit began June 1, 2008, when 3G Wireless allegedly entered into an exclusive dealer contract with Metro PCS, a contract in which 3G Wireless was granted an exclusive license to sell and market Metro PCS products.

"As alleged before three courts, 3G’s troubles with MetroPCS began in June 2013 and ended in November 2013," the opinion said.

At that time, one of the two company officials named defendants in the case met to discuss ending the contract so that the exclusive MetroPCS dealer agreement could be offered elsewhere. The plaintiff alleged the conspiracy involving even more named defendants to terminate the dealer contract before it expired in April 2015 was successful.

The first of the three cases was filed the following December in the Philadelphia County Court of Common Pleas. Allegations in that filing, as in the next two, included interference with contractual relations; civil conspiracy to commit interference with contractual relations; civil conspiracy to commit conversion; and quantum meruit. The following May, that court sustained MetroPCS’ preliminary objections and dismissed the state court complaint against MetroPCS.

MetroPCS then filed its own case against 3G and Joseph Cho in the same court. In response, Cho filed a counterclaim alleging the same facts as in his previous complaint. The court on Nov. 3, 2014, dismissed the asserted counterclaims over failure to state a claim. In November of the following year, almost the same case was filed in U.S. District Court.

"In the suit here, 3G and MetroPCS also repeated the same legal claims but, for good measure, cloaked the facts with new claims under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961, et seq. (“RICO”)," Kearney wrote.

"3G’s counsel concedes his clients could have brought this same legal theory in state court, but elected not to do so. Otherwise, the legal claims already twice dismissed by the esteemed Judge (Patricia) McInerney in the Court of Common Pleas are repeated hoping a third attempt will succeed."

Kearney took issue with plaintiff’s counsel in the case, attorney Mark C. Wesoski of Bensalem, in footnote 21. That footnote concerned Plaintiff Joseph Cho’s admission during a Feb. 5 deposition that MetroPCS never told him during a November 2013 meeting that it wanted to continue doing business with him.

That admission contradicted Cho's previous pleadings, Kearney wrote.

"What is more surprising and troubling is Plaintiffs’ counsel represented him in the deposition where he admitted this fact, and then continued to assert this fact as true in Plaintiffs’ response to the MetroPCS Defendants’ motion," Kearney wrote.

"Counsel has a duty not to make a false statement of material fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer. While this fact has no bearing on our decision today, we remind Plaintiffs’ counsel of his duty of candor and our Court’s diligent review of counsel’s conduct."

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