An increasing number of consumers who have been cheated out their contractual cashback with mobile phone contracts are now considering class actions against the network providers. The network providers have of course successfully so far distanced themselves from what they claim are totally separate contracts with their agents/distributors. Although most consumers who have been ripped off so far seem to have accepted the networks declarations of non-liability, there is now an increasing realisation that since it was the networks who appointed their agents/distributors, and that the only contract entered into on behalf of the network was via their own agent, the neworks do have a vicarious responsiblity and liability for the contracts entered into via their agents in all their respects, including contractually agreed cashback; additionally it seems that in most cases it was the networks themselves who pushed the high-risk supposedly low probable cashback claim business model to their agents/distributors, so as to gain many additional connections to their networks, but it was these new relatively high-risk business models which have led directly to the collapse of an ever increasing number of their agents/distributors, and consumers thus being denied the cashback due under the contract.

To attempt action against the networks on an individual basis would be high-risk and costly. However a number of cheated consumers have begun to get together to pursue class actions directly against the networks. Clearly, in the event of litigation success only those consumers directly participating in the class actions would retrieve their cashback entitlements and costs. Anyone not participating in any action would not recover any of their cashback as a result of this.

Any consumer interested in participating should in the first instance contact Lola Borró on a special e-mail address set-up for contact: phonestoudirect.classaction@yahoo.co.uk. Although this is stated as relative to one agent only it is intended to cover all the affected networks regardless of whatever agent a consumer actually obtained their contract from for the particular network. More information is given on her website:  http://phones2udirect.tripod.com.

I think the owner of this forum needs to decide to what extent he may be deemed to be participating in or passively sponsoring or promoting this, and whether it constitutes soliciting business on behalf of certain parties

I find it extremely difficult to understand the motivation of your post Andy.

If you had thought about it properly before making your post you would have seen that there is no difference in the subject matter of my post and the general orientation of this forum. It is all about scams perpetrated on consumers, where they lose their money as a result. NGN abuse rips off the consumer. The great mobile cashback scam has ripped off many consumers.

I have no commercial interest in any class action which may or may not eventually be taken. There is and cannot be any commercial interest on the part of anyone who may participate in any such class action. The only entity who would gain in any way whatsoever commercially would be lawyers, who would not be selected by me but by the group of consumers. There is thus no pecuniary advantage to me nor to any other ripped-off consumer who may participate.

The only purpose of such a class action being proposed is to attempt to get back the cashback money which has been lost by some consumers. The issue of lost cashback in mobile phone contracts has been discussed previously on this forum. If you look back you can find these posts. My original post on this topic is thus no different from previous discussions about mobile cashback, except that in this case there may be a route for some cheated consumers to get the money they have lost. I repeat, there is no commercial advantage of any nature which would be gained by me nor by any other consumer participant in any action. (By the way, Lola Borró is one of the consumers who has lost cashback and is coordinating the group on a purely voluntary and non-commercial basis.)

You may need to be careful about the things you say. A business failing is one thing, but a suggestion that it was intentionally run from the start so as to fail, or other parties' influence was malign, may be viewed by some of those parties as defamatory.

Andy, I can't understand where you get this stuff from, and I really do not understand the point you are attempting to make? I am always very careful about the things I say and also what I post as it happens.


Quote:

.... A business failing is one thing, but a suggestion that it was intentionally run from the start so as to fail, or other parties' influence was malign, may be viewed by some of those parties as defamatory

Where I have I suggested that any business was run intentionally from the start so as to fail? I most certainly have not suggested any such thing. Where I have suggested that any other parties' influence was malign? I have not stated nor inferred any such thing. These issues seem to be entirely inventions of yours.

What seems even more significant is that the tone of your posting seems to suggest that you perhaps are against anyone who has been cheated out of their contractually agreed cashback standing any chance of getting it back? One might suspect that you have some sort of vested interest in them not having any possibility of getting their cashback. I wonder what industry you work in?

dorf wrote on Mar 11^th, 2008 at 5:59pm:

Where I have I suggested that any business was run intentionally from the start so as to fail? I most certainly have not suggested any such thing. Where I have suggested that any other parties' influence was malign? I have not stated nor inferred any such thing. These issues seem to be entirely inventions of yours.

I think you need to check your posts again, where you allege deliberate scams, cheating, etc, and suggest that the networks are responsible.

For one thing, it might not be clever to help your opponents by disclosing the bones of your case in public (unless a bluff, I suppose)

Good grief.

Andy, it seems either we use a different language, or we are using English in a completely different way, with different meanings of words. I did not  
Quote:

allege deliberate scams, cheating, etc, and suggest that the networks are responsible.

Many sources have stated that some cashback deals "were scams"; it has even been mentioned in parliament and there have been newspaper articles which have stated it and TV and radio programmes which have stated it. That is not terminology commenced by me. It is even stated on a number of other internet sites and forums. They all have stated or inferred from time to time that rogue mobile agents have cheated or tried to cheat their customers.  

I suggested that the high-risk business model which several of the networks are reputed to have suggested to their agents subsequently gave those agents a problem when more consumers than expected remembered to correctly claim their contractual cashback. I did not suggest the networks were directly responsible for the difficulties of agents let alone that the networks deliberately conspired to make these difficulties for their agents. Please read what I have actually posted, and read it in the light of that which has already been posted in many other places on the internet. I am purely repeating that generally accepted position.

It is clear that you have a completely different position. I ask again, in what industry do you work?

dorf wrote on Mar 11^th, 2008 at 7:07pm:

Andy, it seems either we use a different language, or we are using English in a completely different way, with different meanings of words. I did not   Quote: allege deliberate scams, cheating, etc, and suggest that the networks are responsible. [...] Please read what I have actually posted, ...

I did so, and you did indeed use the words ripped off, scams, cheated, cheat, and so on. You then follow on with remarks asserting vicarious liability of the networks for their agents' behaviour, and hence reasons to take class action against them, the networks.

Legal cases don't turn on feelings, but on questions of fact. Phrases like "are reputed" and "increasing realisation" are secondhand hearsay and innuendo at the moment, and you would be obliged to produce proof if that is the case you are tring to make.

You need to look up the words vicarious liability. This means exerting a control or influence over the actions of another party that is deemed liable.

http://en.wikipedia.org/wiki/Vicarious_liability

Reading this, in close association with the words mentioned, your opponents' lawyers may take it as intended to be defamatory, despite your denials, and suggest that a reasonable person would see it as so. They might also be minded to act against the publisher.

That is why some perhaps careless discussion of these matters on other forums has been curtailed or even provisionally removed, and why I suggested that the forum owner here might need to pay some attention.

As I already suggested, you should be able to attract interest from other consumers without setting out too much of a case here before taking legal advice.

Calm down boys, think of your blood pressure. ::)

I am perfectly calm, Sherbert, despite what is I would suggest a series of somewhat irrational, destructive and aggressive responses essentially to my original post.

Andy, I note that twice I have asked you which particular industry you work in, which evidently results in you having such a desire for consumers to be unable to obtain their contractually agreed mobile cashback, under all circumstances?

Twice you have deliberately avoided that question and continued your unwarranted attack on every point which I have attempted to respond to and justify further. One last time I ask you, what particular industry area do you work in or have business interests in? If you fail yet again to fully respond then I would suggest that will be a situation of Quod est demonstrandum!

On any other forum your general, well-established and unwarranted attacks on other posters without evident purpose, other than irrational aggression, would be called, and seen as "flaming"!

NGM's rants & raves removed as Unhelpful, Inflamatory & Off Subject (as usual).

Additional rubbish posts will be dealt with similarly !!  ::)

# Amended by DaveM

dorf wrote on Mar 11^th, 2008 at 11:39pm:

I am perfectly calm, Sherbert, despite what is I would suggest a series of somewhat irrational, destructive and aggressive responses essentially to my original post. Andy, I note that twice I have asked you which particular industry you work in, which evidently results in you having such a desire for consumers to be unable to obtain their contractually agreed mobile cashback, under all circumstances? Twice you have deliberately avoided that question and continued your unwarranted attack on every point which I have attempted to respond to and justify further. One last time I ask you, what particular industry area do you work in or have business interests in? If you fail yet again to fully respond then I would suggest that will be a situation of Quod est demonstrandum! On any other forum your general, well-established and unwarranted attacks on other posters without evident purpose, other than irrational aggression, would be called, and seen as "flaming"!

I realise that it is fashionable to make false personal accusations against other forum members, but it is not an absolute requirement.

Firstly, remember that in posting the thread you are discussing a potential legal case. You don't have to observe my advice that it might be better not to give your opponents too much information in advance, but at least it would be worth taking on board some remarks about what is and is not evidence.

However, here is another example of a specious line of argument. My profession is firstly none of your business whatsoever, and anyway totally irrelevant  to this discussion.

The fact that I ignored the remark twice does not make your supposition true. If you view that as the type of rigorous proof you expect to get away with elsewhere, you may well find it difficult to obtain legal advice that will satisfy you.

dorf wrote on Mar 11^th, 2008 at 11:39pm:

I am perfectly calm, Sherbert, despite what is I would suggest a series of somewhat irrational, destructive and aggressive responses essentially to my original post.

Everyone is entitled to their opinion Dorf, even if it is contrary to yours !


dorf wrote on Mar 11^th, 2008 at 11:39pm:

Andy, I note that twice I have asked you which particular industry you work in, which evidently results in you having such a desire for consumers to be unable to obtain their contractually agreed mobile cashback, under all circumstances?

His work background doesn't matter in this case. What he indicates are points which if you take the time to check, you'd find have validity. The court case (should it get there) will depend heavily on the FACTs & not ASSUMPTIONs !  ::)


dorf wrote on Mar 11^th, 2008 at 11:39pm:

Twice you have deliberately avoided that question and continued your unwarranted attack on every point which I have attempted to respond to and justify further. One last time I ask you, what particular industry area do you work in or have business interests in? If you fail yet again to fully respond then I would suggest that will be a situation of Quod est demonstrandum!

Answered above by Andy.


dorf wrote on Mar 11^th, 2008 at 11:39pm:

On any other forum your general, well-established and unwarranted attacks on other posters without evident purpose, other than irrational aggression, would be called, and seen as "flaming"!

If you want to see FLAMING, just carry on the way you are !

More of NGM's crass comments removed.

Additional rubbish posts will be dealt with exactly the same !!  ::)

NGMsGhost wrote on Mar 12^th, 2008 at 8:46pm:

(# Inflamatory comments removed ~ DaveM). . .  andy9, who had set out quite deliberately to rile another forum member by making absurd claims that normal fair comment by dorf about a now bankrupt mobile phone company amounted to potentially libelous comments. It is clear that andy9 does not work in the law as if he did he would understand what is real libel that people actually sue for and what is merely fair comment that those expressing such views could justify in the wholly unlikely event that any libel action against them was ever attempted (as it almost certainly would not be). As far as I can see andy9 only makes his sudden threats that comments of another poster are libelous when he sees comments that he does not like and wants to try to silence them.

False grounds, I'm afraid.

You are correct that I am not a lawyer, but I think that I can still identify who are the parties in the dispute dorf is talking about.

My comments express no opinion at all on dorf's opinions about a bankrupt mobile company, but are about what dorf says about the network's vicarious liability, which is the case he is actually on about, and associating those remarks with the other words used.

In view of the so-called McLibel trial, I would have thought that any organisation would avoid provoking a bigger problem unless the libel was clear.

McLibel

.

Indeed so.

The idea that the networks are going to sue anyone about criticism of the dodgy cashback deals they allowed their retailers to promise the public (knowing full well that 50% or so of them would fail to meet the onerous conditions imposed to obtain the promised cashback) and that a more pro consumer Office of Fair Trading and Ofcom would have made illegal is really utterly laughable.

There is a Parliamentary Early Day Motion on this here.


Quote:

EDM 696 INDEPENDENT MOBILE PHONE DEALERS ASSOCIATION, OFCOM AND CASHBACK          15.01.2008 Godsiff, Roger That this House welcomes the first meeting to take place between the Independent Mobile Phone Dealers Association (IMPDA) and Ofcom, the telecoms regulator; regards the opportunity presented to the IMPDA to give its views on the working relationship between dealers and the network providers and consumer issues, particularly in regard to the ongoing problems associated with cashback which have left many customers facing legal action, as long overdue; agrees with the IMPDA that the consumer has been ill served by the failure of the network providers adequately to police the cashback incentive scheme; believes the network providers to be complicit in the active promotion of an unsustainable business model in relation to cashback to achieve connection numbers and highly profitable volume targets; further believes the voluntary arrangement agreed between Ofcom and the network providers has comprehensively been demonstrated to be inadequate; and supports the IMPDA in its call to Ofcom, following its current review, to introduce statutory regulation not only to protect the consumer but also to eliminate uncompetitive practices within the industry.

Quote:

Crackdown on mobile mis-selling   Telecoms regulator Ofcom has vowed to crack down on the mis-selling of mobile phones after the failure of a voluntary code of practice in the industry.

http://news.bbc.co.uk/1/hi/business/7302635.stm