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Su v. AT&T, Inc.

United States District Court, D. New Jersey

January 8, 2020

CHANCELLOR SU and PEARLL CLEMENTE, Plaintiffs,
v.
AT&T, INC., JOHN AND JANE DOES 1-10 fictitious names, and ABC CORP. 1-10 fictitious entities, Defendants.

          OPINION

          KEVIN McNULTY. U.S.D.J.

         Plaintiffs Chancellor Su and Pearll Clemente worked for AT&T at its store in Fort Lee, New Jersey. In 2018, AT&T fired them after it conducted a nationwide investigation into allegations of improper sales practices by its employees. Su and Clemente sued AT&T, claiming that they had been wrongfully terminated. Now before the Court is defendant AT&T's motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6). (DE 4). For the following reasons, the motion is GRANTED.

         I. BACKGROUND

         A. Facts[1]

         Plaintiff Chancellor Su worked for over twenty years at the Fort Lee AT&T store. (Compl. ¶ 7). Plaintiff Pearll Clemente also worked at die same store for several years. (Compl. ¶ 8). Both were loyal and exemplary employees. (Compl. ¶¶ 7 & 8).

         In approximately July 2016, AT&T acquired the satellite TV provider DirecTV and later that year, it launched a service known as "DirecTV Now," which allows customers to live-stream TV through AT&T's wireless networks. (Compl. ¶¶ 9 & 10). To increase the number of DirecTV Now subscribers, AT&T in 2017 began a nationwide campaign of selling the service directly to its wireless customers when they signed up for new phone lines or upgraded devices. (Compl. ¶ 11). Employees were told to sign up customers "at all costs." (Compl. ¶ 11). Before it implemented this "sell now and ask questions later" approach, AT&T neither instructed its employees how to sell DirecTV Now nor advised them what sales tactics it deemed permissible under its corporate policies. (Compl. ¶ 12).

         Managers and supervisors instructed Su and Clemente, as well as other AT&T employees, to use fake names and email addresses to create unauthorized accounts for customers who resisted their DirecTV Now up-sells. (Compl. ¶ 13). They also encouraged Su and Clemente to offer discounts on accessories in exchange for DirecTV Now subscriptions and to offer DirecTV Now subscriptions to customers who had accrued data-overage charges. (Compl. ¶ 14).

         In March 2018, based on AT&T's perception of the use of improper sales tactics, the company began investigating the practices of the employees responsible for selling DirecTV Now subscriptions. (Compl. ¶ 15). Su and Clemente told the AT&T investigators that they had been following the orders of their managers and supervisors when selling DirecTV Now subscriptions, but both were fired as a result of the investigation. (Compl. ¶ 16). Both have been unable to find comparable positions since then. (Compl. ¶ 17).

         B. Procedural History

         On June 24, 2019 Su and Clemente sued in New Jersey state court. (DE 1 at 11). Their complaint asserted one count of common-law wrongful termination, arguing that the "such termination . . . was in violation of an established rule of public policy as enumerated by the legislature, an administrative rule, regulation or decision, judicial decision and/or some other established rule of public policy and /or was otherwise in violation of public policy." (Compl. ¶ 21). On July 29, AT&T removed the case to federal court on diversity grounds, see 28 U.S.C. §§ 1441(a) & 1446(a). (DE 1). AT&T filed this motion to dismiss on August 19. (DE 4).

         II. DISCUSSION

         Because this matter involves a controversy between citizens of different states and the amount in controversy is alleged to exceed the sum of $75, 000, this Court has jurisdiction pursuant to 28 U.S.C. § 1332(a). New Jersey substantive law will apply. See Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938).

         A. Standard of Review

         Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, if it fails to state a claim upon which relief can be granted. The defendant, as the moving party, bears the burden of showing that no claim has been stated. Animal Sci. Prods., Inc. v. China Minmetals Corp.,654 F.3d 462, 469 n.9 (3d Cir. 2011). For the purposes of a motion to dismiss, the facts alleged in the complaint are accepted as true and all reasonable inferences are ...


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