VerizonAmendComp _3_

Case 1:09-cv-03057-TCB Document 17 Filed 11/11/2009 Page 1 of 30 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION AT&T MOBILITY LLC, : : Plaintiff, : v. : : CELLCO PARTNERSHIP d/b/a : VERIZON WIRELESS, : : Defendant. : ____________________________________: Civil N7. 1:09-cv-03057-TCB FIRST AMENDED COMPLAINT FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION, PERMANENT INJUNCTION, AND DAMAGES This First Amended C7mplaint seeks a temp7rary restraining 7rder, preliminary injuncti7n and a permanent injuncti7n t7 st7p Cellc7 Partnership d/b/a VeriX7n Wireless (“VeriX7n”) fr7m disseminating false advertisements and misleading c7verage maps depicting AT&T M7bility LLC’s (“AT&T”) v7ice and data netw7rk in direct mail, televisi7n, print, and Internet advertisements. AT&T has suffered and c7ntinues t7 suffer irreparable harm as a result 7f VeriX7n’s false advertisements and misleading c7verage maps. hearing 7n its request f7r injunctive relief. VeriX7n is running a series 7f advertisements which falsely c7mmunicate that AT&T d7es n7t have wireless data c7verage thr7ugh7ut much 7f the United AT&T requests an immediate Case 1:09-cv-03057-TCB Document 17 Filed 11/11/2009 Page 2 of 30 States. These advertisements are literally false because they depict AT&T cust7mers and/7r wireless devices that d7 n7t have wireless c7nnectivity (in 7ther w7rds, they are “7ut 7f t7uch”) 7r cann7t perf7rm certain wireless data applicati7ns. H7wever, this is patently false. The fact is that AT&T has a wireless data netw7rk which c7vers 7ver 300 milli7n pe7ple and 97% 7f the U.S. p7pulati7n. An AT&T cust7mer can 7btain c7nnectivity and perf7rm certain wireless data functi7ns anywhere 7n AT&T’s wireless data netw7rk. In supp7rt 7f these false advertisements, VeriX7n displays “3G” c7verage maps 7f b7th VeriX7n and AT&T and says “there’s a map f7r that” t7 explain why the AT&T cust7mer lacks c7nnectivity 7r cann7t perf7rm a wireless data applicati7n. These c7verage maps are misleading because they c7mmunicate t7 c7nsumers that AT&T lacks wireless c7nnectivity in the “white” 7r “blank” spaces despite the fact that AT&T has a wireless data netw7rk in nearly all the “white” 7r “blank” spaces. The imp7rtant p7int is that when a cust7mer is n7t 7n AT&T’s “3G” netw7rk, that d7es n7t mean that the cust7mer is with7ut wireless c7verage. The 7nly advantage t7 the cust7mer 7f being 7n a “3G” netw7rk is speed, and AT&T has the nati7n’s fastest “3G” netw7rk. A cust7mer can d7 everything 7n AT&T’s “2.5G” 7r GSM/EDGE netw7rk that he 7r she can d7 7n a “3G” netw7rk, -2- Case 1:09-cv-03057-TCB Document 17 Filed 11/11/2009 Page 3 of 30 it just might be sl7wer in a n7n-“3G” c7verage area, depending 7n the data applicati7n. SUMMARY OF THE ACTION 1. This acti7n f7r injunctive relief and damages arises fr7m false and misleading c7mparative advertising by VeriX7n in vi7lati7n 7f the Lanham Act § 43(a), 15 U.S.C. § 1125(a), and related Ge7rgia state laws. 2. The wireless business is highly c7mpetitive, and AT&T and VeriX7n, the tw7 largest wireless carriers, vig7r7usly c7mpete t7 take existing and p7tential cust7mers fr7m the 7ther. 3. VeriX7n and AT&T b7th have depl7yed “3G” (sh7rt f7r “third generati7n” 7f standards f7r wireless c7mmunicati7ns defined by the Internati7nal Telec7mmunicati7ns Uni7n) netw7rks. 4. The difference between a “3G” netw7rk and earlier versi7ns 7f wireless data netw7rks is the speed by which a cust7mer can perf7rm certain data functi7ns. A “3G” netw7rk pr7vides increased bandwidth f7r upl7ading and d7wnl7ading data and vide7 f7r wireless devices. -3- Case 1:09-cv-03057-TCB Document 17 Filed 11/11/2009 Page 4 of 30 5. AT&T pr7vides wireless data service via three different but c7mplimentary netw7rks: a “2.0” GSM/GPRS netw7rk,1 a “2.5G” GSM/EDGE netw7rk and a “3G” netw7rk. 6. AT&T’s “2.5G” GSM/EDGE netw7rk (with r7aming partners) is available t7 appr7ximately 296 milli7n pe7ple where they live and w7rk, 7r 95% 7f the U.S. p7pulati7n, and c7vers 1.75 milli7n square miles 7f the c7untry. 7. AT&T’s “3G” netw7rk c7vers appr7ximately 233 milli7n pe7ple where they live and w7rk, 7r 75% 7f the U.S. p7pulati7n, and is c7ncentrated in U.S. p7pulati7n centers. By c7ntrast, as stated in VeriX7n’s Third Quarter 2009 Invest7r Briefing, VeriX7n’s m7bile br7adband 7r “3G” netw7rk c7vers appr7ximately 284 milli7n pe7ple, 7r 91% 7f the U.S. p7pulati7n. See http://invest7r.veriX7n.c7m/financial/quarterly/vX/3Q2009/3Q09Bulletin.pdf?t=633 933803062736565. AT&T’s “3G” netw7rk c7vers appr7ximately 82% 7f the U.S. p7pulati7n that VeriX7n c7vers with its “3G” netw7rk. 1 The “2.0G” GSM/GPRS netw7rk is n7t as fast as the “2.5G” GSM/EDGE netw7rk, but all7ws AT&T cust7mers t7 make and receive teleph7ne calls and perf7rm basic data activities (electr7nic mails, accessing basic Wireless Access P7rtals (“WAP”), and text messages). This expands AT&T’s c7verage t7 include 7ver 300 milli7n pe7ple where they live and w7rk, 7r appr7ximately 97% 7f pe7ple in the United States. -4- Case 1:09-cv-03057-TCB Document 17 Filed 11/11/2009 Page 5 of 30 8. When cust7mers are n7t in AT&T’s “3G” c7verage area, they are typically c7mmunicating 7n AT&T’s “2.5G” GSM/EDGE netw7rk. The “2.5G” GSM/EDGE netw7rk pr7vides c7nsumers with the full ability t7 make calls, br7wse the Internet, including s7cial netw7rking sites, stream audi7/vide7, 7r send electr7nic mails and text messages, albeit at sl7wer speeds f7r s7me wireless data applicati7ns. 9. Pri7r t7 the wider availability 7f “3G” netw7rks, AT&T’s GSM/EDGE netw7rk supp7rted the hugely p7pular and ic7nic iPh7ne f7r m7re than a year, and still supp7rts milli7ns 7f iPh7nes and 7ther wireless devices currently in use. 10. In Oct7ber 2009, VeriX7n began a false advertising campaign impr7perly disparaging AT&T’s wireless data netw7rk based s7lely 7n VeriX7n’s ge7graphic “3G” netw7rk c7verage advantage. 11. This campaign c7nsists 7f false and misleading direct mail, print, televisi7n, and Internet advertisements. The first tw7 televisi7n advertisements VeriX7n ran as part 7f the campaign are referred t7 herein as “Bench” and “C7llege.” -5- Case 1:09-cv-03057-TCB Document 17 Filed 11/11/2009 Page 6 of 30 12. Initially, in the “Bench” televisi7n advertisement and at least 7ne radi7 advertisement, VeriX7n falsely claimed that AT&T cust7mers were “7ut 7f t7uch” where AT&T “3G” c7verage is n7t available. 13. VeriX7n als7 displayed a c7verage map attributed t7 AT&T with large swaths 7f “white” 7r “blank” areas (7r n7 wireless c7verage) t7 b7lster its misleading message that cust7mers with AT&T service are “7ut 7f t7uch” in large parts 7f the United States where AT&T lacks “3G” c7verage. 14. On Oct7ber 7, 2009 AT&T c7ntacted VeriX7n and requested that the advertisements be withdrawn fr7m circulati7n 7r m7dified t7 be accurate. 15. In resp7nse t7 AT&T’s request that VeriX7n st7p running the false advertisements, VeriX7n rem7ved the w7rds “7ut 7f t7uch” fr7m the subject televisi7n and radi7 advertisements and superimp7sed the phrase “V7ice & data services available 7utside 3G c7verage areas” in small f7nt at the end 7f the televisi7n advertisements. 16. VeriX7n’s slight m7dificati7ns have d7ne n7thing t7 change the false M7re7ver, VeriX7n’s new and misleading messages in its advertisements. advertisements, which started airing 7n televisi7n after this lawsuit was filed last week, effectively reinstate the “7ut 7f t7uch” message VeriX7n c7nceded was false and misleading. -6- Case 1:09-cv-03057-TCB Document 17 Filed 11/11/2009 Page 7 of 30 17. The “Bench” and “C7llege” advertisements still falsely c7mmunicate that AT&T’s wireless devices d7 n7t w7rk at all when there is n7 “3G” c7verage available. 18. In additi7n, by c7ntinuing t7 include an AT&T c7verage map in its advertisements, VeriX7n deceives c7nsumers int7 believing that AT&T has n7 c7verage in the white 7r blank space included in the maps, and thus AT&T cust7mers cann7t use their wireless devices in large p7rti7ns 7f the United States. 19. VeriX7n kn7ws that its use 7f AT&T c7verage maps is misleading because acc7rding t7 the c7verage map legend 7n VeriX7n’s, T-M7bile’s and Sprint’s websites, the ge7graphic spaces c7l7red “white” 7r left “blank” 7n their maps represent areas in which there is n7 wireless c7verage whats7ever.2 20. On appr7ximately N7vember 8, 2009, after AT&T filed this lawsuit, VeriX7n c7ntinued its false advertising campaign with three new televisi7n advertisements: “The Island 7f Misfit T7ys,” “Naughty 7r Nice,” and “Christmas Blues.” 2 Similarly, AT&T’s c7verage maps designate “n7 service available” with a n7ticeably lighter shade 7f c7l7r than that used 7n its map t7 indicate the areas in which c7verage is available. -7- Case 1:09-cv-03057-TCB Document 17 Filed 11/11/2009 Page 8 of 30 21. Like “Bench” and “C7llege”, these three televisi7n advertisements falsely c7mmunicate t7 c7nsumers that their AT&T wireless device will n7t w7rk 7utside a “3G” c7verage area. 22. These three new advertisements als7 utiliXe the same c7verage maps that were used in the “Bench” and “C7llege” televisi7n advertisements which deceive c7nsumers int7 believing that AT&T has n7 wireless data c7verage whats7ever in the large swaths 7f “white” 7r “blank” spaces 7n the maps. 23. The C7urt sh7uld immediately temp7rarily restrain, and preliminarily and permanently enj7in VeriX7n fr7m running the f7ll7wing televisi7n advertisements: “Bench,” “C7llege,” “The Island 7f Misfit T7ys,” “Naughty 7r Nice,” and “Christmas Blues.” 24. The C7urt sh7uld immediately temp7rarily restrain, and preliminarily and permanently enj7in VeriX7n fr7m falsely advertising that AT&T cust7mers cann7t c7mmunicate 7r use their wireless devices when they are n7t in a “3G” c7verage area. 25. The C7urt sh7uld immediately temp7rarily restrain, and preliminarily and permanently enj7in VeriX7n fr7m displaying in any advertisement a map 7f AT&T’s c7verage in which AT&T’s n7n-“3G” c7verage areas are depicted by -8- Case 1:09-cv-03057-TCB Document 17 Filed 11/11/2009 Page 9 of 30 “white” 7r “blank” space, 7r 7therwise claiming that AT&T cust7mers cann7t c7mmunicate 7r use their wireless devices in large areas 7f the c7untry. 26. The C7urt sh7uld n7t permit VeriX7n’s false and misleading advertising t7 c7ntinue damaging AT&T, deceiving and c7nfusing AT&T cust7mers and p7tential cust7mers, and damaging c7mpetiti7n. THE PARTIES 27. AT&T is a pr7vider 7f wireless v7ice and data c7mmunicati7n services in the United States, with m7re than 81 milli7n cust7mers. 28. AT&T is a Delaware limited liability c7mpany with its principal place 7f place 7f business in Atlanta, Ge7rgia. 29. VeriX7n is a Delaware general partnership that purp7sefully avails itself 7f the laws 7f every jurisdicti7n in the United States, including the State 7f Ge7rgia, with its principal place 7f business at One VeriX7n Way, Basking Ridge, New Jersey, 07920. 30. The Delaware Secretary 7f State identifies VeriX7n’s registered agent as the C7rp7rati7n Trust C7mpany, 1209 Orange Street, Wilmingt7n, Delaware, 19801. -9- Case 1:09-cv-03057-TCB Document 17 Filed 11/11/2009 Page 10 of 30 JURISDICTION AND VENUE 31. This C7urt has subject matter jurisdicti7n 7ver this acti7n pursuant t7 15 U.S.C. § 1121 and 28 U.S.C. §§ 1331 and 1367. 32. The C7urt has jurisdicti7n 7ver VeriX7n because it transacts business in Ge7rgia and is 7therwise subject t7 jurisdicti7n in this State. In additi7n, VeriX7n has c7mmitted t7rti7us acts within the state and/7r c7mmitted t7rti7us injury in this state caused by an act 7r 7missi7n 7utside the state and engaged in 7ther persistent c7urses 7f c7nduct in this state. 33. Venue in this District is pr7per pursuant t7 28 U.S.C. § 1391. ALLEGATIONS COMMON TO ALL COUNTS Fierce C:mpetiti:n Between Veriz:n and AT&T 34. F7r the last several years, there has been fierce c7mpetiti7n in the market f7r wireless c7mmunicati7n services and pr7ducts. The number 7f new wireless cust7mers is decreasing as the market bec7mes m7re mature. As a result, wireless c7mpanies, including VeriX7n and AT&T, are increasingly seeking t7 entice c7nsumers currently receiving wireless service fr7m any number 7f their c7mpetit7rs t7 terminate their service and m7ve t7 them. 35. Wireless c7mpanies are actively attempting t7 maintain their existing cust7mers. They als7 are attempting t7 entice new cust7mers t7 purchase their - 10 - Case 1:09-cv-03057-TCB Document 17 Filed 11/11/2009 Page 11 of 30 service based up7n better quality, price, 7r s7me 7ther value deemed by c7nsumers t7 be material t7 the decisi7n t7 purchase wireless services. 36. AT&T and VeriX7n are the tw7 largest wireless pr7viders in the United States. 37. As c7mpetit7rs, AT&T and VeriX7n seek t7 gain advantage 7ver each 7ther and earn c7nsumer l7yalty by, am7ng 7ther things, upgrading their netw7rks and adding service features t7 enable them t7 make advertising claims ab7ut their wireless netw7rks. AT&T’s and Veriz:n’s “3G” Netw:rks 38. The key difference between a “3G” netw7rk and 7ther wireless data netw7rks is the speed at which c7nsumers can engage in data-centric activities. 39. Imp7rtantly, when a cust7mer is n7t 7n AT&T’s “3G” netw7rk, that d7es n7t mean that the cust7mer is with7ut wireless data c7verage. 40. In additi7n t7 a “3G” netw7rk, AT&T c7vers the United States with a ubiquit7us wireless data netw7rk called “2.5G” GSM/EDGE. 41. When cust7mers are n7t 7n AT&T’s “3G” netw7rk 7r n7t in a “3G” c7verage area, they are typically c7mmunicating 7n AT&T’s “2.5G” GSM/EDGE netw7rk. The “2.5G” GSM/EDGE netw7rk pr7vides c7nsumers with the full ability t7 make calls, br7wse the Internet, including s7cial netw7rking sites, stream - 11 - Case 1:09-cv-03057-TCB Document 17 Filed 11/11/2009 Page 12 of 30 audi7/vide7, 7r send electr7nic mails and text messages, albeit at sl7wer speeds f7r s7me wireless data applicati7ns. 42. Pri7r t7 the wider availability 7f “3G” netw7rks, AT&T’s “2.5G” GSM/EDGE netw7rk supp7rted the hugely p7pular and ic7nic iPh7ne f7r m7re than a year, and still supp7rts milli7ns 7f iPh7nes and 7ther wireless devices currently in use. Summary Of The Misleading Advertisements 43. During the week 7f Oct7ber 5, 2009, VeriX7n ran at least tw7 different televisi7n advertisements and 7ne radi7 advertisement in resp7nse t7 Apple’s successful iPh7ne campaign stating that “there’s an app (“applicati7n”) f7r that” -which t7uts the multitude 7f applicati7ns that a cust7mer can utiliXe 7n his 7r her iPh7ne. 44. The “Bench” advertisement and at least 7ne radi7 advertisement falsely claimed that AT&T cust7mers wh7 were n7t in the depicted c7verage area were “7ut 7f t7uch.” 45. In resp7nse t7 AT&T’s request that VeriX7n st7p running the false advertisements, VeriX7n rem7ved the w7rds “7ut 7f t7uch” fr7m the subject radi7 and televisi7n advertisements and superimp7sed the phrase “V7ice & data services available 7utside 3G c7verage areas” in small f7nt at the end 7f the advertisement. - 12 - Case 1:09-cv-03057-TCB Document 17 Filed 11/11/2009 Page 13 of 30 46. VeriX7n’s slight m7dificati7ns have d7ne n7thing t7 change the false and misleading messages 7f these advertisements. 47. In the “Bench” and “C7llege” advertisements, VeriX7n displays maps 7f the United States that purp7rt t7 sh7w each carrier’s “3G” c7verage. The maps use c7l7r t7 depict the areas 7f the c7untry in which each carrier has “3G” c7verage and “white” 7r “blank” space in the areas 7f the c7untry where c7verage is allegedly n7t available. 48. The advertisements pr7m7te VeriX7n’s “3G” c7verage, and then refer t7 a c7verage map sh7wing that VeriX7n has widespread “3G” c7verage acr7ss the United States. The ann7uncer 7f the advertisement repeats the phrase “there’s a map f7r that.” 49. The “Bench” and “C7llege” advertisements then c7nclude by disparaging AT&T’s netw7rk and services, using the same tag line, “there’s a map f7r that,” sh7wing an AT&T c7verage map with large am7unts 7f “white” 7r “blank” space thr7ugh7ut the United States. “Bench” 50. The “Bench” televisi7n advertisement begins by stating “if y7u want t7 kn7w why y7ur “3G” c7verage w7rks s7 great 7n VeriX7n Wireless, there’s a map f7r that.” The VeriX7n c7verage map then appears 7n the screen. - 13 - Case 1:09-cv-03057-TCB Document 17 Filed 11/11/2009 Page 14 of 30 51. The advertisement then states that with VeriX7n’s “3G” c7verage, y7u can make “plans 7n the g7.” The VeriX7n c7verage map then pe7ple up 7n the screen again. 52. After these tw7 statements, the ann7uncer’s t7ne 7f v7ice changes and he says: “If y7u want t7 kn7w why y7ur friend’s “3G” c7verage is sp7tty, there’s a map f7r that t77.” 53. At this p7int in the advertisement, an AT&T c7verage map appears sh7wing large swaths 7f white 7r blank space 7ver the United States. Simultane7usly with the appearance 7f the map, VeriX7n als7 depicts a sad AT&T cust7mer sitting al7ne 7n a bench because she is n7t able t7 use her wireless device t7 c7mmunicate with her friends. 54. The advertisement then displays b7th AT&T’s and VeriX7n’s c7verage maps and claims that VeriX7n has “5 times m7re ‘3G’ c7verage than the nati7n’s #2 wireless c7mpany.” 55. By depicting an AT&T cust7mer unable t7 meet her friends 7r d7 anything with her wireless device next t7 an AT&T c7verage map sh7wing “white” 7r “blank” spaces thr7ugh7ut much 7f the U.S., the advertisement falsely c7mmunicates that AT&T cust7mers cann7t use their wireless device when they are 7utside 7f AT&T’s c7verage area. - 14 - Case 1:09-cv-03057-TCB Document 17 Filed 11/11/2009 Page 15 of 30 56. Further, the maps deceive c7nsumers int7 believing that AT&T’s cust7mers have n7 c7verage whats7ever in many parts 7f the United States when they are 7utside 7f AT&T’s depicted c7verage area and thus cann7t use their wireless devices in many parts 7f the United States. “C:llege” 57. The “C7llege” televisi7n advertisement starts the same way as the “Bench” advertisement, pr7m7ting why cust7mers can d7 vari7us things 7n VeriX7n’s netw7rk at “3G” speed and referencing VeriX7n’s c7verage map. 58. The ann7uncer’s v7ice then changes, and he says “and if y7u want t7 kn7w why s7me pe7ple have sp7tty “3G” c7verage, there’s a map f7r that.” 59. The c7verage map 7f AT&T then appears 7n the screen sh7wing large swaths 7f “white” 7r “blank” spaces. The character in the advertisement tries t7 use his wireless device but shakes his head expressing disapp7intment. 60. The advertisement then displays b7th AT&T’s and VeriX7n’s c7verage maps and claims that VeriX7n has “5 times m7re ‘3G’ c7verage than the nati7n’s #2 wireless c7mpany.” 61. As with the false and misleading “Bench” advertisement, by depicting an AT&T cust7mer as being frustrated with his wireless device and shaking his head next t7 an AT&T c7verage map sh7wing “white” 7r “blank” spaces - 15 - Case 1:09-cv-03057-TCB Document 17 Filed 11/11/2009 Page 16 of 30 thr7ugh7ut much 7f the U.S., the advertisement falsely c7mmunicates that AT&T c7nsumers cann7t use their wireless devices when they are 7utside 7f the depicted c7verage area. 62. Further, the c7verage maps deceive c7nsumers int7 believing that AT&T’s cust7mers have n7 c7verage whats7ever when they are 7utside 7f AT&T’s depicted c7verage area and thus cann7t use their wireless devices in many parts 7f the United States. 63. On N7vember 8, 2009, VeriX7n c7ntinued its false advertising campaign with three new televisi7n advertisements: “The Island 7f Misfit T7ys,” “Naughty 7r Nice,” and “Christmas Blues.” While these advertisements are slightly different fr7m the “C7llege” and “Bench” televisi7n advertisements, they c7ntain the same false and misleading messages. “Island :f Misfit T:ys” 64. The “Island 7f Misfit T7ys” televisi7n advertisement is a par7dy 7f the “Rud7lph the Red N7se Reindeer” televisi7n special that depicts an island t7 which Rud7lph travels after escaping an attack fr7m the Ab7minable Sn7w M7nster. - 16 - Case 1:09-cv-03057-TCB Document 17 Filed 11/11/2009 Page 17 of 30 65. The advertisement begins with 7utdated, discarded t7ys expressing surprise at the arrival 7f an Apple iPh7ne. The red Charlie-in-the-B7x says “Hey! Check 7ut the new guy!” 66. The sp7tted elephant, in a surprised manner, asks the iPh7ne “What are y7u d7ing here? Y7u can d7wnl7ad apps and br7wse the web!” and a D7lly f7r Sue asserts that “Yeah. Pe7ple will l7ve y7u [the iPh7ne].” 67. In resp7nse, a blue AT&T c7verage map depicting large swaths 7f “white” 7r “blank” space acr7ss the United States appears ab7ve the iPh7ne. All the t7ys exclaim “Oh . . .” in dismay, while the iPh7ne wilts and its screen turns dark. The t7y airplane then assures the iPh7ne that “y7u’re g7ing t7 fit right in here!” 68. AT&T’s and VeriX7n’s c7verage maps then appear and the ann7uncer states, “with five times m7re 3G c7verage than AT&T, VeriX7n Wireless is y7ur destinati7n f7r great gifts.” 69. The image 7f the sad and wilting iPh7ne 7n an island 7f misfit t7ys falsely c7mmunicates that the iPh7ne is a br7ken device because it cann7t br7wse the web 7r d7wnl7ad applicati7ns when 7utside 7f AT&T’s depicted c7verage area. - 17 - Case 1:09-cv-03057-TCB Document 17 Filed 11/11/2009 Page 18 of 30 70. Further, the maps in the advertisement deceive c7nsumers int7 believing that AT&T’s cust7mers have n7 c7verage whats7ever when they are 7utside 7f AT&T’s depicted c7verage area and thus cann7t use their wireless devices in many parts 7f the United States. “Naughty :r Nice” 71. The “Naughty 7r Nice” televisi7n advertisement depicts a busy w7rksh7p 7f elves packing vari7us electr7nic devices int7 red presents 7n a c7nvey7r belt. 72. A red VeriX7n c7verage map fl7ats ab7ve the red presents. As an elf with a checklist calls 7ut names, an7ther elf retrieves a device, l77ks up at the c7verage map, and appr7vingly states “Nice.” The device is then placed in the package. 73. After a third name is called, the elf retrieves an electr7nic device that l77ks similar t7 an iPh7ne and a blue AT&T c7verage map appears ab7ve it. As in VeriX7n’s previ7us advertisements, the AT&T c7verage map depicts large swaths 7f “white” 7r “blank” space acr7ss the United States. 74. At the appearance 7f the AT&T c7verage map, pr7ducti7n at the w7rksh7p halts, the lights g7 7ut, and the backgr7und music st7ps. L77king up at the map, the elf states, “Naughty,” and places the device in a blue package. - 18 - Case 1:09-cv-03057-TCB Document 17 Filed 11/11/2009 Page 19 of 30 75. After pr7ducti7n resumes, the elf with the checklist warns, “[g]77d luck br7wsing the web with that 7ne.” 76. AT&T’s and VeriX7n’s “3G’ c7verage maps then appear and the ann7uncer states, “with five times m7re 3G c7verage than AT&T, VeriX7n Wireless is y7ur destinati7n f7r great gifts.” 77. The statement “[g]77d luck br7wsing the web with that 7ne” while AT&T’s c7verage map appears 7n the screen falsely c7mmunicates that AT&T cust7mers cann7t br7wse the Internet when 7utside AT&T’s depicted c7verage area. 78. Further, the maps in the advertisement als7 deceive c7nsumers int7 believing that AT&T’s cust7mers have n7 c7verage whats7ever when they are 7utside 7f AT&T’s depicted c7verage area and thus cann7t use their wireless devices in many parts 7f the United States. “Christmas Blues” 79. The “Christmas Blues” televisi7n advertisement starts with a man leaving a m7tel in the sn7w while Elvis Presley’s “Blue Christmas” plays in the backgr7und. 80. The man repeatedly shakes his wireless device and the blue AT&T c7verage map appears ab7ve it. As in VeriX7n’s previ7us advertisements, the - 19 - Case 1:09-cv-03057-TCB Document 17 Filed 11/11/2009 Page 20 of 30 AT&T c7verage map depicts large swaths 7f “white” 7r “blank” space acr7ss the United States. 81. The man is next sh7wn in a n7ndescript train stati7n and then in the back 7f a taxi, l77king frustrated and vig7r7usly shaking his wireless device. 82. As the man returns h7me and embraces his s7n, the ann7uncer asks, “Want 3G web br7wsing in m7re places? There’s a map f7r that,” as the camera pans t7 a red present with a red VeriX7n c7verage map fl7ating ab7ve it. 83. AT&T’s and VeriX7n’s c7verage maps then appear and the ann7uncer states, “with five times m7re 3G c7verage than AT&T, VeriX7n Wireless is y7ur destinati7n f7r great gifts.” 84. The man’s repeated shaking 7f the wireless device in the advertisement falsely c7mmunicates that he cann7t use his wireless device at all when 7utside AT&T’s “3G” netw7rk. Further, depicting the wireless device as unable t7 w7rk in a n7n-descript train stati7n and taxi cab is false because AT&T likely has “3G” service in such an urban setting. Even if the train stati7n and taxi cab were intended t7 depict a l7cati7n where AT&T d7es n7t have any “3G” c7verage, the wireless device w7uld still w7rk 7n AT&T’s “2.5G” GSM/EDGE netw7rk 7r “2.0G” GSM/GPRS netw7rk. - 20 - Case 1:09-cv-03057-TCB Document 17 Filed 11/11/2009 Page 21 of 30 85. Furtherm7re, AT&T’s cust7mers using the “2.5G” GSM/EDGE netw7rk can perf7rm all 7f the tasks identified in the “C7llege,” “Bench,” “Island 7f Misfit T7ys,” “Naughty 7r Nice,” and “Blue Christmas” televisi7n advertisements. Thus, even if AT&T’s cust7mers are 7utside 7f AT&T’s “3G” c7verage area, they are n7t with7ut the ability t7 perf7rm data and v7ice functi7ns. The distinguishing feature and advantage 7f a “3G” netw7rk is the speed with which the cust7mer can perf7rm certain wireless data functi7ns. 86. c7verage. 233 milli7n pe7ple live and w7rk in areas in which AT&T has “3G” By depicting AT&T cust7mers unable t7 use their ph7nes 7r by sh7wing the AT&T devices as n7t w7rking while the displaying the c7verage maps, VeriX7n falsely c7mmunicates that AT&T’s cust7mers cann7t use their wireless devices in areas where they are able t7 d7 s7. Direct Mail, Print and Internet Advertisements 87. In its direct mail, print and Internet advertisements, VeriX7n displays its c7verage map next t7 a c7verage map attributed t7 AT&T. The map attributed t7 AT&T sh7ws large swaths 7f “white” 7r “blank” space, as if these are areas in which AT&T has n7 c7verage whats7ever. By depicting AT&T’s n7n-“3G” c7verage as “white” 7r “blank” space in the maps used in VeriX7n’s direct mail, print and Internet advertisements, c7nsumers are being misled int7 believing that - 21 - Case 1:09-cv-03057-TCB Document 17 Filed 11/11/2009 Page 22 of 30 AT&T’s cust7mers have n7 c7verage whats7ever and thus cann7t use their wireless devices when they are 7utside 7f AT&T’s depicted c7verage area. Five Times M:re C:verage Claim 88. In all 7f the advertisements described ab7ve, VeriX7n makes the misleading statement that it has “5 times m7re ‘3G’ c7verage than AT&T.” While this statement is literally true based 7n square miles, it is misleading because the 7verwhelming maj7rity 7f the US p7pulati7n lives and w7rks where b7th VeriX7n and AT&T have “3G” c7verage. Indeed, fr7m a p7pulati7n standp7int, VeriX7n 7nly has 1.24 times m7re “3G” c7verage than AT&T (285 milli7n pe7ple/230 milli7n pe7ple). Veriz:n’s Advertisements Have Caused And Are C:ntinuing t: Cause Irreparable Harm T: AT&T 89. VeriX7n’s false advertisements and use 7f c7verage maps t7 deceive c7nsumers int7 believing that AT&T cust7mers are with7ut c7verage when they are 7utside 7f AT&T’s “3G” f77tprint have caused and will c7ntinue t7 cause irreparable harm t7 AT&T. 90. The f7urth quarter 7f any year is the m7st vig7r7us and imp7rtant marketing seas7n f7r the wireless industry, and damage t7 c7mpetiti7n during the f7urth quarter is particularly harmful t7 the public’s interest in fair c7mpetiti7n. - 22 - Case 1:09-cv-03057-TCB Document 17 Filed 11/11/2009 Page 23 of 30 91. VeriX7n’s advertisements have caused injury t7 AT&T and unless These enj7ined will injure AT&T’s g77dwill and er7de its market share. advertisements als7 damage h7nest c7mpetiti7n. 92. The C7urt sh7uld issue a temp7rary restraining 7rder, preliminary injuncti7n, and permanent injuncti7n t7 st7p VeriX7n’s false advertisements and misleading c7verage maps. COUNT I - FALSE ADVERTISING IN VIOLATION OF THE LANHAM ACT, 15 U.S.C. § 1125 (a) 93. AT&T repeats, re-alleges, and inc7rp7rates the allegati7ns set f7rth in paragraphs 1-92 as if fully set f7rth herein. 94. VeriX7n is making false and misleading statements in direct mail, televisi7n, print, and Internet advertisements. 95. VeriX7n’s false and misleading statements have actually deceived 7r have the capacity t7 deceive a substantial p7rti7n 7f the intended audience. 96. VeriX7n’s false and misleading statements are material in that they are likely t7 influence purchasing decisi7ns 7f wireless cust7mers. 97. VeriX7n’s false and misleading statements have caused injury t7 AT&T and unless enj7ined will irreparably injure AT&T’s g77dwill and er7de its market share, causing declining sales. - 23 - Case 1:09-cv-03057-TCB Document 17 Filed 11/11/2009 Page 24 of 30 98. VeriX7n’s representati7ns in the direct mail, Internet, televisi7n, and print advertisements have traveled in interstate c7mmerce. 99. VeriX7n’s c7nduct c7nstitutes false advertising in vi7lati7n 7f the Lanham Act, § 43(a), 15 U.S.C. § 1125(a). 100. Based 7n VeriX7n’s false and misleading advertisements, AT&T is entitled t7 a temp7rary restraining 7rder, preliminary injuncti7n, and permanent injuncti7n. 101. The balance 7f the harms supp7rts issuance 7f a temp7rary restraining 7rder, preliminary injuncti7n, and permanent injuncti7n. 102. Issuance 7f a temp7rary restraining 7rder, preliminary injuncti7n, and permanent injuncti7n w7uld pr7m7te the public interest. 103. AT&T has suffered and will c7ntinue t7 suffer irreparable harm as a result 7f VeriX7n’s false and misleading advertising. 104. As described in 15 U.S.C. § 1117, AT&T is entitled t7 treble damages as a result 7f VeriX7n’s vi7lati7n 7f 15 U.S.C. § 1125(a). 105. This is an excepti7nal case as described in 15 U.S.C. § 1117 that entitles AT&T t7 reas7nable att7rneys’ fees. - 24 - Case 1:09-cv-03057-TCB Document 17 Filed 11/11/2009 Page 25 of 30 COUNT II - FALSE ADVERTISING ACT IN VIOLATION OF GEORGIA FALSE ADVERTISING ACT 106. AT&T repeats, re-alleges, and inc7rp7rates the allegati7ns set f7rth in paragraphs 1-105 ab7ve as if fully set f7rth herein. 107. VeriX7n’s false and misleading advertising in direct mail, televisi7n, print and Internet advertisements vi7lates the Ge7rgia False Advertising Act, O.C.G.A. § 10-1-421, and AT&T is aggrieved thereby, pursuant t7 O.C.G.A. § 101-423. 108. Based 7n VeriX7n’s false and misleading advertising, AT&T is entitled t7 a temp7rary restraining 7rder, preliminary injuncti7n, and permanent injuncti7n. 109. The balance 7f the harms supp7rts issuance 7f a temp7rary restraining 7rder, preliminary injuncti7n, and permanent injuncti7n. 110. Issuance 7f a temp7rary restraining 7rder, preliminary injuncti7n and permanent injuncti7n w7uld pr7m7te the public interest. 111. AT&T has suffered and will c7ntinue t7 suffer irreparable harm as a result 7f VeriX7n’s false and misleading advertisements. COUNT III - GEORGIA DECEPTIVE TRADE PRACTICES 112. AT&T repeats, re-alleges, and inc7rp7rates the allegati7ns set f7rth in paragraphs 1-111 ab7ve as if fully set f7rth herein. - 25 - Case 1:09-cv-03057-TCB Document 17 Filed 11/11/2009 Page 26 of 30 113. VeriX7n has disparaged AT&T’s wireless service by including false advertisements and misleading c7verage maps in their televisi7n, print, direct mail and Internet advertisements. VeriX7n is causing damage t7 AT&T. 114. VeriX7n has vi7lated and is vi7lating 7f the pr7visi7ns 7f the Ge7rgia Deceptive Trade Practices Act, O.C.G.A. § 10-1-372, et seq. 115. As a result 7f VeriX7n’s deceptive trade practices, AT&T is entitled t7 a temp7rary restraining 7rder, preliminary injuncti7n, and permanent injuncti7n. 116. The balance 7f the harms supp7rts issuance 7f a temp7rary restraining 7rder, preliminary injuncti7n, and permanent injuncti7n. 117. Issuance 7f a temp7rary restraining 7rder, preliminary injuncti7n, and permanent injuncti7n w7uld pr7m7te the public interest. 118. AT&T has suffered and will c7ntinue t7 suffer irreparable harm as a result 7f VeriX7n’s deceptive trade practices. WHEREFORE, AT&T seeks relief as f7ll7ws: (1) A temp7rary restraining 7rder, preliminary injuncti7n, and permanent injuncti7n enj7ining VeriX7n, and its 7fficers, agents, servants, empl7yees, att7rneys, success7rs and assigns, and all 7thers in active c7ncert 7r participati7n, fr7m displaying the: “Bench,” “C7llege,” “Island 7f Misfit T7ys,” “Naughty 7r Nice,” and “Blue Christmas” televisi7n advertisements; - 26 - Case 1:09-cv-03057-TCB Document 17 Filed 11/11/2009 Page 27 of 30 (2) A temp7rary restraining 7rder, preliminary injuncti7n, and permanent injuncti7n enj7ining VeriX7n, and its 7fficers, agents, servants, empl7yees, att7rneys, success7rs and assigns, and all 7thers in active c7ncert 7r participati7n, fr7m displaying a map 7f AT&T’s c7verage in which AT&T’s n7n-“3G” c7verage areas are depicted by “white” 7r “blank” space, 7r 7therwise claiming that AT&T cust7mers cann7t c7mmunicate 7r use their wireless devices in large areas 7f the c7untry; (3) Order VeriX7n t7 f7rthwith use its best eff7rts t7 identify and t7 recall fr7m any third party any and all false 7r misleading marketing, advertising, and pr7m7ti7nal materials used in c7nnecti7n therewith; (4) Order VeriX7n t7 issue a c7rrective advertisement 7r n7tice t7 all third parties that VeriX7n has s7licited with false 7r misleading advertisements, making clear that VeriX7n’s false 7r misleading statements were false 7r misleading; (5) Order VeriX7n t7 file with the C7urt and serve 7n AT&T’s c7unsel, within 30 days after entry 7f the C7urt’s restraining 7rder, preliminary injuncti7n 7r permanent injuncti7n, a sw7rn statement as pr7vided in 15 U.S.C. § 1116, setting f7rth in detail the manner and f7rm in which VeriX7n has c7mplied with the restraining 7rder, preliminary injuncti7n, 7r permanent injuncti7n; - 27 - Case 1:09-cv-03057-TCB Document 17 Filed 11/11/2009 Page 28 of 30 (6) Order VeriX7n t7 pr7vide an acc7unting 7f all sales and pr7fits fr7m its false and misleading advertisements; (7) C7mpensat7ry, l7st pr7fit, and any 7ther damages available at law f7r AT&T’s injury caused by VeriX7n’s misc7nduct, pursuant t7 15 U.S.C. § 1117; (8) AT&T; (9) Treble damages under 15 U.S.C. § 1117; Prejudgment and p7st-judgment interest 7n any m7netary award t7 (10) A finding that this is an “excepti7nal” case under 15 U.S.C. § 1117, and an award 7f att7rneys’ fees and c7sts; (11) A trial by jury 7n all issues s7 triable; and (12) An award 7f such 7ther and further relief as this C7urt deems just and pr7per. - 28 - Case 1:09-cv-03057-TCB Document 17 Filed 11/11/2009 Page 29 of 30 This 11th day 7f N7vember, 2009. /s/ David L. Balser David L. Balser Ge7rgia Bar N7. 035835 Nathan L. Garr7way Ge7rgia Bar N7. 142194 Tracy Klingler Ge7rgia Bar N7. 105450 MCKENNA LONG & ALDRIDGE LLP 303 Peachtree Street, Suite 5300 Atlanta, Ge7rgia 30308 (404) 527-4000 (404) 527-4198 (facsimile) C7-C7unsel: Neal S. Berinh7ut Ge7rgia Bar N7. 054687 AT&T MOBILITY LLC 1025 Len7x Park Blvd., Suite C575 Atlanta, GA 30319 404-986-1427 Att0rneys f0r AT&T M0bility LLC - 29 - Case 1:09-cv-03057-TCB Document 17 Filed 11/11/2009 Page 30 of 30 CERTIFICATE OF SERVICE This is t7 certify that 7n N7vember 11, 2009, I electr7nically filed the f7reg7ing FIRST AMENDED COMPLAINT FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION, PERMANENT INJUNCTION, AND DAMAGES with the Clerk 7f C7urt using the CM/ECF system, which will aut7matically send email n7tificati7n 7f such filing t7 the f7ll7wing att7rneys 7f rec7rd: David L. Balser Nathan L. Garr7way Tracy Klingler Harriet Jill Wasserman L. J7seph L7veland, Jr. I further certify that I mailed the f7reg7ing d7cument and the n7tice 7f electr7nic filing by first-class mail t7 the f7ll7wing n7n-CM/ECF participants: Kenneth A. Plevan Lauren E. Aguiar Skadden, Arps, Slate, Meagher & Fl7m LLP F7ur Times Square New Y7rk, NY 10036 MCKENNA LONG & ALDRIDGE LLP 303 Peachtree Street, Suite 5300 Atlanta, Ge7rgia 30308 (404) 527-4000 (404) 527-4198 (facsimile) /s/ David L. Balser David L. Balser Ge7rgia Bar N7. 035835 Att0rney f0r AT&T M0bility LLC - 30 -