Class Action Lawsuit and Litigation News

An Illinois Supreme Court ruling upholding consumers’ right to file lawsuits in the courts despite contracts that purport to require binding arbitration is being seen as a victory for consumers. The ruling is likely to have a substantial impact on similar cases under consideration by federal and state courts in Ohio, New Mexico and a number of other states.

“This decision establishes a new rule in the giving consumers the right to file lawsuits when the arbitration forum specified as an integral part of the sales contract is no longer available,” said Aaron M. Zigler, the partner at the Korein Tillery law firm who argued the case.

“The Court has struck down an arbitration clause that was used to deprive consumers of a meaningful remedy in the face of inappropriate conduct by a merchant. The Court’s ruling means that, under these circumstances, companies’ one-sided agreements cannot be used to deny consumers their right to their day in a court of law.”

Korein Tillery filed the case in state court in 2002 on behalf of consumers who were misled by inflated claims concerning the speed of Pentium 4 computer processors sold by Gateway demanded that the dispute go to arbitration as required by its “Terms and Conditions” booklet included in the box with the computer.

After the National Arbitration Forum (NAF), the sole arbitration provider allowed by Gateway under the Terms and Conditions, stopped performing consumer arbitrations in order to settle a lawsuit brought by the Attorney General alleging consumer fraud, deceptive trade practices, and false advertising, Korein Tillery argued that the arbitration provision requirement was void.

The Illinois Supreme Court agreed with Korein Tillery that the arbitration forum specified in the contract was “an integral part” of the arbitration clause and the absence of that forum entitled the consumer to seek a remedy in court.

Zigler said corporations across the country have been increasingly using mandatory arbitration clauses usually buried in small print in agreements for consumers, investors, and employees to prohibit lawsuits in favor of arbitration heavily weighted in companies’ favor.

“These arbitration clauses are designed to eliminate consumers’ right to their day in court,” Zigler said. “There’s often no knowledge, choice, or understanding by a consumer and nearly all companies marketing credit cards, phones, mortgages and computers now use them, as do banks, car dealers, doctors, and insurers. There are tens of millions of these agreements and courts across the country are now deciding whether such clauses can be used to make customers, employees, and shareholders contractually ‘waive’ all of their rights.”

Paul Bland, a senior attorney at Public Justice who is involved in appellate litigation challenging arbitration clauses in more than a dozen states, said the decision in could have far-reaching impact on behalf of consumers. “This is an important victory for consumers not only in Illinois, but across the nation,” he said.

Sutter Health, which operates one of the largest hospital chains in California, will pay $46 million and make historic changes in its billing and disclosure of anesthesia charges and services to its patients, insurers and other payers, according to the California Department of Insurance.

“This settlement represents a groundbreaking step in opening up hospital billing to public scrutiny,” said state Insurance Commissioner Dave Jones. “The settlement requires Sutter to disclose on its Website every component of its anesthesia billing and what those services cost Sutter.

“Patients, insurers and the public will now be able to compare Sutter’s costs to what it charges for anesthesia. This new transparency should lead to lower prices and point the way to similar billing reforms for all types of hospital services.”

Sutter has over 20 hospitals in northern California, including California Pacific Medical Center in San Francisco, Sutter General Hospital in Sacramento, and Memorial Medical Center in Modesto. The settlement brings to a close a 2011 whistleblower lawsuit brought against Sutter by billing auditor, Rockville Recovery Associates.

Inflated anesthesia charges

The whistleblower lawsuit alleged that Sutter included a false and misleading charge in its surgery bills. Sutter patients or their insurers received three separate charges relating to anesthesia, including a charge by an outside anesthesiologist, a charge for the operating room and a charge under an obscure Code 37x Anesthesia.

Sutter often charged thousands of dollars for Code 37x Anesthesia for each operation. Yet the services covered by that code were allegedly already captured in the operating room charge, itself a charge in the thousands of dollars. Sutter charged for anesthesia on a time-based or chronometric basis even when no Sutter employee, only the outside anesthesiologist, was present and overseeing anesthesia. Some hospitals also charged separately for anesthesia gasses using code 25x. Sutter’s contracts with insurers also included a clause alleged to unduly restrict insurers from contesting the bills.

Corrective actions

The settlement requires that Sutter:

• Pay $46 million
• Stop billing for anesthesia in the operating room on a chronometric basis and instead charge on a fully disclosed flat-fee basis
• Describe every component of its anesthesia billing
• Post on its Website and provide to insurers and the commissioner the cost to each Sutter hospital of its anesthesia services, updated annually
• Clarify the relationship between its master schedule of charges (known as chargemasters in the health care industry) and the bills that consumers and insurers receive. This change will lead to an increase of transparency and accountability in hospital billing
• More readily permit insurers and other payers to contest Sutter’s bills.

Other defendants

Another defendant, Marin General Hospital, has agreed to implement the same changes to its procedures for billing anesthesia services. Marin General Hospital was a member of Sutter Health during the period of the misconduct alleged by the complaint. In 2010, Marin General Hospital became an independent hospital.

The settlement also includes defendants MultiPlan, Inc. (“Multiplan”) and Private Healthcare Systems, Inc. (“PHCS”), whose provider contracts with Sutter included Sutter’s audit policy that allegedly unduly restricted payers' ability to challenge Sutter’s charges. In addition to paying $925,000, MultiPlan and PHCS agreed to continue to provide notifications to payers about their audit rights.

Good news for anyone who lets Charles Schwab handle their investments: the Financial Industry Regulatory Authority (FINRA) has determined that the company “violated FINRA rules by adding waiver provisions in customer agreements prohibiting customers from participating in class actions.”

Charles Schwab must pay a half-million-dollar fine, and can no longer force its investors/customers into arbitration should they have any complaints.

The issue of forced arbitration and customer rights made it to the forefront of public consciousness last week, after The New York Times discovered that food conglomerate General Mills had quietly altered its legal and privacy policies to state that “In exchange for the benefits, discounts, content, features, services, or other offerings that you receive or have access to by using our websites, joining our sites as a member, joining our online community, subscribing to our email newsletters, downloading or printing a digital coupon, entering a sweepstakes or contest, redeeming a promotional offer, or otherwise participating in any other General Mills offering,” you-the-customer give up any right to sue the company over a dispute, but must instead agree to let General Mills hire a professional arbitrator to settle the matter.

The outrage inspired by this news soon convinced the company to backtrack, and rescind its attempted forced-arbitration policy.

Timeline

Schwab's forced arbitration attempts go back much further. FINRA said that “In October 2011, Schwab sent amendments to its customer account agreement to more than 6.8 million investors. The amendments included waiver provisions that required customers to agree that any claims against Schwab be arbitrated solely on an individual basis and that arbitrators had no authority to consolidate more than one party's claims.”

The company presumably made this attempt as a result of an April 2011 Supreme Court ruling that the Federal Arbitration Act (FAA) overrides any state law banning forced arbitration or allowing class action suits in customer-service contracts.

In other words, the court ruled, it is acceptable in at least some instances for a company (AT&T, in that specific case) to put fine print in its customer service contracts requiring customers to settle disputes through arbitration, rather than as part of a class-action suit before the courts.

So if AT&T can force its customers into arbitration, why can't Charles Schwab? Because AT&T is not bound by FINRA rules, whereas securities firms like Charles Schwab are. Therefore, FINRA said, “the FAA does not preclude FINRA's enforcement of its rules.”

There are some things everyone already knows. One of them is that forced arbitration agreements are great for big companies, bad for consumers. 

For one thing, consumers almost never prevail when they enter into an arbitration under the rules laid down by whatever gargantuan entity they've dared to challenge. For another, forced arbitration clauses block consumers from filing the class action lawsuits that can bring them relief and also dissuade big companies from riding roughshod over consumers.

But don't take our word for it. The Consumer Financial Protection Bureau has just released a study that confirms it.

“Tens of millions of consumers are covered by arbitration clauses, but few know about them or understand their impact,” said CFPB Director Richard Cordray. “Our study found that these arbitration clauses restrict consumer relief in disputes with financial companies by limiting class actions that provide millions of dollars in redress each year. Now that our study has been completed, we will consider what next steps are appropriate.”

The study found that more than 75% of consumers surveyed did not know whether they were subject to an arbitration clause in their agreements with their financial service providers, and fewer than 7% of those covered by arbitration clauses realized that the clauses restricted their ability to sue in court.

Study findings

The CFPB studied arbitration clauses in a number of different consumer finance markets including credit cards and checking accounts, which have the largest numbers of consumers. The report results indicate that:

Tens of millions of consumers are covered by arbitration clauses. For example, in the credit card market, card issuers representing more than half of all credit card debt have arbitration clauses – impacting as many as 80 million consumers. In the checking account market, banks representing 44% of insured deposits have arbitration clauses.

Consumers filed roughly 600 arbitration cases and 1,200 individual federal lawsuits per year on average in the markets studied. More than 20% of these cases may have been filed by companies, rather than consumers.

In the 1,060 cases that were filed in 2010 and 2011, arbitrators awarded consumers a combined total of less than $175,000 in damages and less than $190,000 in debt forbearance. Arbitrators also ordered consumers to pay $2.8 million to companies, predominantly for debts that were disputed.

Between 2010 and 2012, consumers filed 3,462 individual lawsuits in federal court about consumer finance disputes in five of these markets. The Bureau found that of the relatively few cases that were decided by a judge, consumers were awarded just under $1 million.

Roughly 32 million consumers on average are eligible for relief through consumer finance class action settlements each year. Across substantially all consumer finance markets, at least 160 million class members were eligible for relief over the five-year period studied. The settlements totaled $2.7 billion in cash, in-kind relief, and attorney’s fees and expenses – with roughly 18% of that going to expenses and attorneys’ fees.

These figures do not include the potential value to consumers of class action settlements requiring companies to change their behavior. Based on available data, the Bureau estimates that the cash payments to class members alone were at least $1.1 billion and cover at least 34 million consumers.

Arbitration clauses can act as a barrier to class actions. By design, arbitration clauses can be used to block class actions in court. The CFPB found that it is rare for a company to try to force an individual lawsuit into arbitration but common for arbitration clauses to be invoked to block class actions.

For example, in cases where credit card issuers with an arbitration clause were sued in a class action, companies invoked the arbitration clause to block class actions 65% of the time.

No evidence of arbitration clauses leading to lower prices for consumers. The CFPB looked at whether companies that include arbitration clauses in their contracts offer lower prices because they are not subject to class action lawsuits. It found no statistically significant evidence that the companies that eliminated their arbitration clauses increased their prices or reduced access to credit relative to those that made no change in their use of arbitration clauses.

The complete report on arbitration is available online.

Are class action lawsuits about to be snuffed out?

A number of legal practitioners and scholars say that might be the ultimate outcome of AT&T Mobility Services v. Concepcion, a case being argued before the Supreme Court on Tuesday.

Brian Fitzpatrick, a law professor at Vanderbilt University, writes in a San Francisco Chroniclecolumn that the case "could be [the Supreme Court's] most important case in years."

"If the case is decided the way many observers predict, it could end class-action litigation in America as we know it," Fitzpatrick warns.

Case rooted in arbitration clauses

The case owes its very existence to our old friend, arbitration clauses. The plaintiffs, Vincent and Liza Conception, who sued AT&T for deceptive practices, challenged a clause in their user agreement mandating that all claims be resolved through binding arbitration, rather than litigation in the courts. The same provision prohibited consumers from bringing class actions, either in arbitration or litigation form.

While a California federal court ruled that the class action prohibition violates public policy and is thus unenforceable - a commonly-citedargument against class action waivers - AT&T says that the Federal Arbitration Act preempts state laws and mandates enforcement of the class action waiver.

Fitzpatrick - who points out that "the current court is very friendly to businesses" - says that many observers expect the Supreme Court to side with AT&T, allowing class action waivers to be enforced all over the country.

Because of previous decisions making personal injury class actions very difficult to certify, Fitzpatrick says that a ruling in AT&T's favor could constitute a death knell to class actions altogether. That's because almost all remaining class action lawsuits are "between parties who are in transactional relationships with one another,” meaning that, with a win by AT&T, would-be plaintiffs could be forced to sign away their right to bring a class action right from the beginning.

Wide-ranging consequences

The ramifications of a class action ban would be profound. Plaintiffs who bring the kinds of suits that end up as class actions - those concerning defective products, misleading contracts, or unfair working conditions - usually don't suffer economic damage great enough to justify bringing a suit all by themselves. The class action gives them an incentive to fight a case that wouldn't otherwise be worth it.

And perhaps more importantly, class actions serve as a deterrent to companies who would otherwise be able to nickel-and-dime consumers without consequence.

"The marketplace is fairer for consumers and workers because there's a deterrent out there," Deepak Gupta, an attorney with Public Citizen, a consumer watchdog group, told The Los Angeles Times. Gupta is arguing the case for consumers.

"Companies are afraid of class actions," Gupta said. "This helps keep them honest."

Long time coming?

That the conservative Supreme Court would like to end class actions is not a completely surprising concept. Recently, in staying a class action ruling against tobacco companies, Justice Scalia ominously warned that such a day might come. Scalia took issue with class action defendants' inability to cross-examine witnesses who allege that they broke the law, an issue that he said might amount to a violation of due process.

"The extent to which class treatment may constitutionally reduce the normative requirements of due process is an important question," Scalia wrote, adding that the issue is reflective of what he says is "national concern of the abuse of the class action device."

It's class action season at the United States Supreme Court.

As reported in November, the court has the chance to kill -- or at least severely limit--  the device in AT&T Mobility Services v. Concepcion, a potentially seismic case that has been flying under the radar.

Now, legal experts are holding their breath to see whether the court will take a much higher-profile case: the long-running class action alleging that Wal-Mart systematically discriminated against female employees.

The case -- which is the largest job discrimination suit in U.S. history, and one of the biggest class actions -- was certified as a class action in August by the Ninth Circuit Court of Appeals. Soon after, Wal-Mart asked the Supreme Court to review the decision. Class certification is a critical stage in class action lawsuits, and greatly increases the chances of a settlement.

The legal community has been waiting to see whether the Supreme Court will take the case. If it does, the decision is likely to be seen as a boon for Wal-Mart -- and the corporate community at large.

"If the Supreme Court takes this case, it will signal this business-friendly court is hostile to class actions against corporate defendants,” Stanford Law professor Deborah Hensle told The Los Angeles Times.

Corporate world sits and waits

Throughout the case, Wal-Mart has argued that the sheer number of plaintiffs -- potentially over one million current and former employees -- renders the case "unmanageable.”

The suit covers 1.5 million female employees who worked for Wal-Mart and Sam's Club between 1998 and the present. The plaintiffs allege that they were paid less than their male colleagues, and received fewer chances for advancement. If the case settles, or the plaintiffs win, the award could easily reach into the billions.

The suit has drawn the attention of the business community, with the U.S. Chamber of Commerce and several other corporations filing friend-of-the-court briefs on Wal-Mart's behalf. A Chamber spokeswoman called the case "the most important class action case facing the Court in over a decade.”

If the court does take the case, oral arguments will likely take place sometime in the spring, and the court will issue a decision next summer.

The case, along with the AT&T suit, has class action lawyers on edge. The AT&T suit involves a user agreement mandating consumers to resolve disputes through binding arbitration, rather than litigation in the courts. The same provision forbids consumers from brining class actions.

If the court rules for AT&T, as many expect it to, class-action waivers could be enforced all over the country, thereby eradicating most of the cases that are still ripe for class treatment.

The high-stakes cases are not entirely surprising, given the current makeup of the court. Justice Antonin Scalia, one of the court's conservative justices, made clear his distaste for class actions in a recent tobacco ruling.

"The extent to which class treatment may constitutionally reduce the normative requirements of due process is an important question,” Scalia wrote. He added that the issue shows "national concern of the abuse of the class action device.”

Several months ago, ConsumerAffairs.com reported on AT&T Mobility v. Concepcion, a lawsuit pending in the Supreme Court that could have wide-ranging consequences for class actions -- and could potentially snuff them out altogether. 

Regardless of how Concepcion comes out, there are two other employment cases before the Court that could alter the employment class action landscape. 

Dukes v. Wal-Mart 

Dukes v. Wal-Mart, the largest-ever employment class action in the U.S., has been generating headlines for quite some time. Originally certified as a class in 2004, the suit was brought on behalf of as many as 1.5 million current and former Wal-Mart employees who say the mega-store systematically discriminates against female employees. According to the class, Wal-Mart pays men more -- and promotes them more frequently -- than their female counterparts. 

The Supreme Court agreed in December to hear the case, and its decision could determine how easy it is for employees of other companies to bring similar mega-actions. The Ninth Circuit Court of Appeals, which ruled in April that the case could go forward, outlined a liberal standard for certification of such cases, essentially contending that the policies complained of were similar enough to justify class treatment for the suit. 

The dissent in the Ninth Circuit, which could provide a template for the Supreme Court should it decide to decertify the class, protested that the plaintiffs “have little in common but their sex and this lawsuit.” 

The case has drawn the attention of major players, including the U.S. Chamber of Commerce, which filed a brief in support of Wal-Mart's position. Robin Conrad, executive vice president of the Chamber's Litigation Center, predicted that the Ninth Circuit's “radically lowered” test for “blockbuster class actions” would cause “the West Coast [to] become a haven for bet-the-business class actions.” 

Smith v. Bayer 

Smith v. Bayer concerns a group of consumers who claim they were harmed by Bayer's anti-cholesterol drug Baycol. Two separate actions were filed -- both in state courts. One of those cases, however, was removed to a federal court, which eventually denied class certification. The state court plaintiffs then sought to certify their suit as a class action, and Bayer objected, arguing that the federal court's decision in the other case barred this one from going forward. 

Generally, under the Anti-Injunction Act, a federal court can't issue an injunction that would affect a state court case. Under an exception, however, the federal court can issue an injunction if the state court would be relitigating an issue already settled in federal court. The question in Smith is whether it falls within that exception. If it does, the federal court can issue an injunction forbidding the state court from certifying the class, thereby dooming both suits. 

Concepcion 

Despite the importance of Dukes and Smith, Concepcion is likely the marquee class-action of this term, and could end up being the Court's most consequential decision overall. At least one scholar has predicted that the hype surrounding the case is overblown, so perhaps the ultimate question is who will end up being the most surprised by the decision.

By Jon Hood
ConsumerAffairs.com

November 22, 2009
Consumers scored a major victory on Friday as JPMorgan Chase, the nation's largest credit card lender, announced it will drop a mandatory arbitration clause from its credit card contracts. The announcement was made with an eye toward settling a class action lawsuit targeting Chase and several other major financial institutions.

The class action, filed by Berger & Montague PC of Philadelphia, also names Bank of America, Citigroup, Discover, and Capital One as defendants. The suit accuses the defendants of having secretly met or consulted on some 30 occasions for the purpose of requiring their cardholders to arbitrate all disputes.

Chase agreed to drop the arbitration requirement for at least three and a half years, starting next year, although it appears the lender has already gotten a head start. Before news of the settlement broke, a spokesman said via an e-mail that the bank stopped using arbitrators in July. Chase also promised not to replace the clause with a class-action waiver or other restrictions on consumers' remedial options.

It has been a good year for consumers on the arbitration front. In March, the Supreme Court held that credit card holders are not always bound by arbitration agreements, overruling the Fourth Circuit.

Bank of America announced in August that it was no longer requiring arbitration for disputes relating to a range of products, including credit cards, car loans, and deposit accounts. BofA, the nation's largest bank, was the first to abandon the arbitration-only policy.

What's it mean

What does it mean for consumers? Those who have a dispute or disagreement with Chase are now able to file suit in court, where their chances of success or at least a fair hearing are infinitely better. The arbitration forums used by credit card companies are notoriously tilted in banks' favor. A 2007 Public Citizen study found that consumers lost fully 95 percent of cases decided in a California arbitration forum.

State attorneys general and other law enforcement officials have been cracking the whip as well, often with great success. The National Arbitration Forum went so far as to halt all consumer arbitration disputes as part of an agreement with Minnesota Attorney General Lori Swanson. The American Arbitration Association similarly said it would suspend arbitration proceedings until new fairness standards were in place.

Next year may prove even more brutal for credit card companies; they become subject to new regulations on rates and fees in February, when the Credit Card Accountability Responsibility and Disclosure (CARD) Act goes into effect.

The settlement between Chase and the plaintiffs now awaits final approval from the court. As part of the agreement, the plaintiffs agree to relieve Chase of any liability stemming from the arbitration clause itself, but reserve their right to litigate claims that were originally slated for, or heard in, arbitration forums.

A federal appellate court ruled this week that class action plaintiffs who find their federal cases thrown out can't turn around and re-file in a state court.

The decision, rendered by the Eighth Circuit Court of Appeals on Tuesday, involved a class action against Bayer regarding its prescription medication Baycol. The drug was intended to lower cholesterol and fight cardiovascular disease, but was taken off the market in 2001 after being linked to 31 deaths.

The plaintiffs, led by West Virginia resident George McCollins, filed a class action lawsuit in a West Virginia county court in 2001. The suit was later removed to federal court, and heard by a multidistrict litigation (MDL) panel in Minnesota.

The MDL panel denied class certification in 2008, holding that, to state a proper claim for economic injury under the West Virginia Consumer Credit and Protection Act (WVCCPA), McCollins would need to "demonstrate Baycol was something other than what he bargained for," which was impossible since he hadn't been injured by the drug, and had in fact benefited from it. The court subsequently granted an injunction preventing the plaintiffs from bringing an action in state court. The appeals court's decision affirmed that injunction.

The Eighth Circuit agreed with the MDL panel's ruling, ruling that "economic loss alone is insufficient" to state a claim under the WVCCPA. Judge Diana Murphy went on to hold that "[r]e-litigation in state court of whether to certify the same class rejected by a federal court presented an impermissible 'heads-I-win, tails-you-lose situation.'" The court cited a Seventh Circuit decision, In re Bridgestone/Firestone, which similarly held that unsuccessful federal class actions couldn't be reheard in state court.

The plaintiffs contended that their individual economic damages were so small that bringing individual actions would be a waste of time and money, and that a class action was thus their only practical option. Judge Murphy recognized this concern, but said that the plaintiffs "have no absolute right to litigate their claims as a class ... only a right, preserved by the district court's narrowly tailored injunction, to litigate their own claims."

The decision could have far-reaching implications in other circuits. Dorsey & Whitney LLP, one of the firms representing the defendants, highlighted the decision on its website as one that "could limit class action exposure for product liability defendants." Whether the plaintiffs plan to appeal is unclear.

The Eighth Circuit appeals court is dominated by Republican-leaning judges, who are regarded as relatively hostile to civil plaintiffs and class action suits. Nine of its 11 judges were appointed by Republican presidents. Judge Murphy was appointed by President Bill Clinton, while the other two judges deciding the case -- Duane Benton and Lavenski Smith -- were both appointed by President George W. Bush.

The Supreme Court has handed a defeat to T-Mobile by rejecting its appeal of a previous ruling over the company's use of mandatory arbitration clauses in its contracts.

The Supreme Court chose to pass up the case and refused to hear two similar cases that also dealt with arbitration clauses in T-Mobile's cell phone contracts.

The Court's refusal to hear the cases means that the earlier decision of the Ninth Circuit Court of Appeals, which found that T-Mobile's contract clause mandating arbitration for customer disputes was unenforceable under Washington state law, stands.

The decision also means that a class action lawsuit filed against T-Mobile over its contracts' arbitration provisions can go forward, and it may impact a separate lawsuit filed against T-Mobile in California over the company's use of "termination fees" against customers who seek to cancel contracts early.

In both cases, T-Mobile argued that by signing contracts that include arbitration clauses, customers were voluntarily waiving their rights to have disputes against the company heard in a court of law.

T-Mobile also argued that federal laws mandating the enforcement of arbitration clauses should supersede state laws limiting the ability of companies to ban class actions.

Arbitration is heavily favored by industry, and clauses mandating arbitration to settle customer disputes can be found in contracts for everything from cellphones, to cable service, to credit cards. But consumers regularly end up on the losing side of disputes settled through arbitration, and often have to pay thousands of dollars in costs and travel great distances to even have their claims heard.

The Ninth Circuit had previously ruled that an arbitration clause found in Cingular/AT&T;'s contracts was "unconscionable," clearing a similar lawsuit against the company to proceed.

The wireless industry, like many others, has been scrambling to enact voluntary reforms of its practices in order to avoid potential litigation.

T-Mobile joined the other major wireless carriers in choosing to prorate its termination fees rather than buckle to proposed legislation that would limit the fees it could charge.

Verizon Wireless has been negotiating with the FCC to craft an industry-wide proposal for prorating termination fees over the course of a wireless contract, and for enabling customers to change plans without incurring new fees. But the proposal would also block the numerous individual and class-action lawsuits over the fees, and would supersede state laws governing the fees with weaker federal regulations.

Industry insiders speculate that Verizon may also be spearheading the proposal to solidify its market advantage over struggling rivals T-Mobile and Sprint.