The Wisconsin Supreme Court released one new opinion last week – MBS-Certified Public Accountants, LLC v. Wisconsin Bell Inc. d/b/a AT & T Wisconsin, authored by Justice Bradley.
This case involves the remedies available for a telephone customer who falls victim to the practice of “cramming” – including small, unauthorized, often unnoticed, charges on a phone bill. AT&T argued that because MBS had paid its phone bill voluntarily and without protest, MBS could not file a lawsuit to recover the amounts it paid. A common law rule called the “voluntary payment doctrine” (“VPD”) supports such a defense in most cases, and the court was asked to decide whether it could be applied to the cramming claims at issue in this case.
The court concluded that the VPD could not apply, because the purposes of the statutes prohibiting cramming would be defeated if a customer had to notice the charges and object before being able to recover. Because cramming is specifically designed to avoid detection applying the VPD would encourage even more sneakiness to hide those charges, and further would remove any remedy, because phone companies typically cancel such charges once “caught” by a sharp-eyed customer.
Justice Prosser, joined by Justice Gableman, concurred in part and dissented in part. They agreed that VPD could not apply to some of MBS’s claims, but disagreed with the legal standard the majority used and would have addressed the other claims rather than remanding it to the court of appeals for that court to address the remaining claims.