20140728 O'Rourke Demand Letter

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MRYAN@DHILLONSMITH.COM SETTLEMENT COMMUNICATION CONFIDENTIAL AND PRIVILEGED PURSUANT TO CALIFORNIA EVIDENCE CODE SECTIONS 1152, 1154, and FEDERAL RULES OF EVIDENC
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MRYAN@DHILLONSMITH.COM SETTLEMENT COMMUNICATION CONFIDENTIAL AND PRIVILEGED PURSUANT TO CALIFORNIA EVIDENCE CODE SECTIONS 1152, 1154, and FEDERAL RULES OF EVIDENCE SECTION 408 July 28, 2014 VIA UNITED STATES MAIL Arthur R. Block, Esq. General Counsel Comcast Corporation One Comcast Center Philadelphia, PA 19103-2838 Tom Karinshak Senior Vice President, Customer Experience Comcast Corporation One Comcast Center Philadelphia, PA 19103-2838 Re: Our Client, Conal O’Rourke Dear Mr. Block: Our firm represents Conal O’Rourke in connection with his legal claims against Comcast, Inc. (“Comcast”), for defaming him, tortiously interfering with his business relationship with his employer, breach of contract, and a multitude of other causes of action, arising out of his legitimate complaints about being overcharged by Comcast. We write to attempt to reach a good-faith settlement of Mr. O’Rourke’s claims against Comcast. We hope that Comcast will be amenable to repairing the reputational and financial harm that Mr. O’Rourke has suffered as a result of its employees, and thereby avoid the necessity of litigation, which we are confident we could bring on both an individual and a class basis. 177 POST STREET, SUITE 700 SAN FRANCISCO, CA 94108 415.433.1700 415.520.6593 (F) Mr. Arthur R. Block, Esq. July 28, 2014 Page 2 of 7 CONFIDENTIAL SETTLEMENT COMMUNICATION RELEVANT FACTS Conal O’Rourke is an established and well-regarded professional services veteran with more than twenty years of experience who, until recently, had a job he loved at the prestigious accounting firm PricewaterhouseCoopers (“PWC”) and, also until recently, was a Comcast subscriber. Although these two facts would appear at first to be unrelated, it was the tortious and defamatory conduct of Comcast employees who affirmatively contacted PWC and asked that Mr. O’Rourke be fired that led to the termination of his employment with PWC. Comcast employees made deliberately false and defamatory statements in retaliation for Mr. O’Rourke’s justified complaints that Comcast was repeatedly overcharging his account, once to the tune of almost $2,000. These Comcast employees, including high-ranking persons in Comcast’s accounting department, knew that their statements to PWC were false, and knew that their requests that Mr. O’Rourke be terminated would result in his termination because Comcast is a major consulting client of PWC and pays PWC millions of dollars each year in fees. Prior to the publication of these defamatory, false and injurious statements, Mr. O’Rourke was held in high regard by his employer and colleagues alike. Beginning in 2012, he held the rank of Senior Associate in the Learning and Development division at PWC. Mr. O’Rourke’s reviews were universally positive, he received an “exceeds expectations” rating on his last two reviews, and he looked forward to a long career with PWC. In the less than two years he worked at PWC, Mr. O’Rourke received several special bonus awards, and more than half a dozen commendations. Prior to working at PWC, Mr. O’Rourke had remained at his last major employer, Accenture, for almost twenty years. Mr. O’Rourke’s career in corporate controllership at Accenture was similarly distinguished. Mr. O’Rourke received multiple awards for excellence, contribution and performance, and never received any sort of reprimand. Mr. O’Rourke had not received any negative performance evaluations or disciplinary actions from any prior employer up until his conflict with Comcast was brought to PWC’s attention, and false accusations were made that Mr. O’Rourke had attempted to use his job at PWC as leverage against Comcast. Although Mr. O’Rourke’s record with PWC was spotless until Comcast employees intervened, the same could not be said for Comcast’s record with Mr. O’Rourke. Mr. O’Rourke’s problems with Comcast began in February of 2013—the very month and year in which Mr. O’Rourke initially began receiving Comcast services for TV and internet at his home. From the very beginning, although Mr. O’Rourke was promised a nine-month promotional discount for premium channels, Mr. O’Rourke was 177 POST STREET, SUITE 700 SAN FRANCISCO, CA 94108 415.433.1700 415.520.6593 (F) Mr. Arthur R. Block, Esq. July 28, 2014 Page 3 of 7 CONFIDENTIAL SETTLEMENT COMMUNICATION overcharged for these services, and was charged for unactivated outlets and set-top boxes. Also, his surname was misspelled as Mr. O’Kourke, making it difficult for him to receive his Comcast bills in a timely fashion. On May 20, 2013, Mr. O’Rourke met with Comcast Assistant Manager Ryan Delerosa for the first time to address these billing issues. Although Mr. O’Rourke was assured that his billing problems would be addressed, they never were. Mr. O’Rourke followed up with Mr. Delerosa by leaving a voicemail message for him on August 14, 2013, but Mr. Delerosa never called him back, and Mr. O’Rourke continued to be overcharged for his Comcast service. On October 28, 2013, due Comcast’s ongoing billing issues, lack of responsiveness, and slow internet speed, Mr. O’Rourke attempted to cancel his Comcast service. Instead, a Comcast representative promised that his billing issues would be resolved, and Mr. O’Rourke was provided with the Movie Channel for three months and a free DVR to compensate him for prior inconveniences. Despite the promises made by customer service, the billing department never followed up with Mr. O’Rourke, and he continued to be overcharged. In addition to Comcast’s continual failure to address Mr. O’Rourke’s billing issues, in late November or early December of 2013, Comcast shipped Mr. O’Rourke twelve random pieces of Comcast equipment, and proceeded to charge him almost $2,000 in fees for equipment that he had neither requested nor wanted. In response, on December 30, 2013, Mr. O’Rourke brought back all twelve pieces of equipment, and also prepared a detailed spreadsheet summarizing the billing errors on his account. Mr. O’Rourke discussed the billing errors with an agent named Janet, and her manager, a Mr. Matt Dobilas. Despite the fact that Mr. O’Rourke discussed the billing errors detailed in the spreadsheet with Mr. Dobilas for more than a quarter of an hour, and that he subsequently emailed Mr. Dobilas a copy of the spreadsheet and a total amount of money by which he was overcharged, the matter was never resolved. On January 11, 2014, Mr. O’Rourke forwarded by email a draft letter he intended to mail to Comcast’s Controller to Comcast manager Matt Dobilas. In the draft letter, he detailed his issues with poor Comcast customer service, and satirically nominated Mr. Dobilas’ office for a customer service award, hoping that Mr. Dobilas would realize the seriousness of the situation, and respond. Mr. Dobilas never did. However, curiously, Mr. O’Rourke’s account was wrongfully sent to collections on February 5, 2014 for being two months past due, shortly after Mr. O’Rourke sent Mr. Dobilas the letter of complaint he intended to send to Comcast’s controller. Mr. O’Rourke’s account was not past due. Mr. O’Rourke patiently walked the collections agent through his account 177 POST STREET, SUITE 700 SAN FRANCISCO, CA 94108 415.433.1700 415.520.6593 (F) Mr. Arthur R. Block, Esq. July 28, 2014 Page 4 of 7 CONFIDENTIAL SETTLEMENT COMMUNICATION history, and eventually convinced the collections agent that his account was not two months past due. In response, the collections agent instructed Mr. O’Rourke to contact customer service again to resolve the matter. On February 6, 2014, the very next day, Mr. O’Rourke contacted the Comcast Controller’s office and requested assistance with his account. He spoke to a Ms. Susan Pillar, and detailed his lengthy customer service and billing complaints, and Comcast’s failure to remedy them despite promising to do so more than a dozen times. By this time, Mr. O’Rourke had been a Comcast customer for almost a year, and had not received one single bill in which he was not overcharged. Mr. O’Rourke also complained that Comcast representatives had failed to show up for several scheduled service appointments without any explanation. Ms. Pillar told Mr. O’Rourke that he would receive a return call to address his three issues. Also on February 6, 2014, Mr. O’Rourke received a bizarre call from a woman named Evelyn who eventually identified herself as being from Comcast. The call was similar to the Comcast customer service call that has currently gone viral in that it was both bizarre and unhelpful. Evelyn initiated the call by asking Mr. O’Rourke “How can I help you?” without introducing herself, explaining where she was calling from, or why she was calling. Mr. O’Rourke asked her why she was calling, at which point she said it had to do with a missed appointment. Comcast had missed so many appointments with Mr. O’Rourke by that time that he had no idea which appointment Evelyn was referring to. When he began trying to explain the situation, Evelyn began to berate him claiming that the technician had kept “the appointment” (the date and time of which she never specified) and bizarrely demanding that Mr. O’Rourke tell her the color of his house (incidentally, he lives in an apartment) and becoming angry when Mr. O’Rourke tried to redirect her by pointing out that he had called with regard to different complaints. Instead of listening to Mr. O’Rourke, Evelyn rudely demanded that Mr. O’Rourke “just answer the question.” Mr. O’Rourke declined to do so, informed her that he was going to call the Controller’s office again, and requested that Comcast “do its homework” before contacting Mr. O’Rourke again. True to his word, also on February 6, 2014, Mr. O’Rourke called the Controller’s office again. In addition to his prior complaints, he expressed frustration over Evelyn’s bizarre, unprofessional, unhelpful and inappropriately angry behavior. Furthermore, he stated that his billing issues raised concerns with him regarding Comcast’s accounting. Mr. O’Rourke made no comment whatsoever about his affiliation with PWC or his 20plus-year financial services industry career, and instead remarked that perhaps the best 177 POST STREET, SUITE 700 SAN FRANCISCO, CA 94108 415.433.1700 415.520.6593 (F) Mr. Arthur R. Block, Esq. SETTLEMENT COMMUNICATION July 28,2014 Page 5 of 7 way to address Comcast's sloppy accounting was to contact the Public Company Accounting Oversight Board so that they could investigate Mr. O'Rourke's concerns. For the first time in Mr. O'Rourke's year of being a Comcast customer, Comcast reacted swiftly and efficiently. Unfortunately, instead of redressing Mr. O'Rourke's grievances, Comcast chose to retaliate against him for expressing concerns over the legality of its contact. That very same day, a Corncast employee from the Controller's office, tipped off by Mr. O'Rourke's familiarity With accounting terminology, thought to perform research into Mr. O'Rourke's background and uncovered the FWC connection. Because Comcast was a major consulting services client of FWC's, someone from the Controller's office contacted Mr. Joseph Atkinson, a partner in the Philadelphia office of PWC, and falsely told Mr. Atkinson that Mr. O'Rourke had invoked his employment with ch in an attempt to somehow obtain leverage in his negotiations with Comcast. Mr. Atkinson informed Mr. O'Rourke that the client was very valuable, was the Philadelphia office's largest client With billings in excess that the client was very angry as a result of Mr. ORourke's complaints, and that Mr. O'Rourke was not to speak with anyone from Corncast. While all of this was happening, Comcast continued to communicate sporadically and ineffectiver with Mr. O'Rourke, setting up two service appointments that they missed without explanation on February 7, 2014 and February 11, 2014. On February 7, 2014, for the first time in his career, Mr. O'Rourke was subiected to an ethics investigation as a result of the knowingly false and defamatory allegations levied against him by one or more Comcast employees. Despite Comcast's failure to produce the recorded all in which Mr. O'Rourke allegedly invoked his connection PWC for leverage (which was ridiculous, since Deloitte, not FWC, audited Comcast at the time), PWC ultimately terminated Mr, O'Rourke on February 18, 2014 as a result. of the knowingly and maliciously raise and defamatory statements Comcast employees made about Mr. O'Rourke. Mr. O'Rourke was shocked, humiliated and ashamed based on the unjustified loss of his job. He sought counseling and was prescribed medication to address his emotional distress On March 10, 2014, Mr. O'Rourke finally succeeded in terminating his service. Comcast never refunded Mr. O'Rourke the money he was overcharged, and also refused to give him the two $20 credits he was entitled to, as per Corncast advertisements, as a result of Comcast's failure to attend the two service calls it scheduled for Mr. O'Rourke in February, 2014. On June 16, 2014, Mr. O'Rourke 177nm Strut Sum, 700 SAN Exam isui. CA 9-1108 415 4331700 1415 520 (?396 Mr. Arthur R. Block, Esq. July 28, 2014 Page 6 of 7 CONFIDENTIAL SETTLEMENT COMMUNICATION requested a copy of his February bill in a phone call to Comcast, but this request was denied. Mr. O’Rourke was informed that if he wanted a copy of the bill, he would have to visit a Comcast location. LEGAL ANALYSIS “Defamation is an invasion of the interest in reputation.” Smith v. Maldonado, 72 Cal. App. 4th 637, 645 (1999). An oral utterance is defamatory if it “tends directly to injure [any person] in respect to his office, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits . . .” or “[w]hich, by natural consequence, causes actual damage.” Cal. Civ. Code § 46. Your employees’ assertions of fact to Mr. O’Rourke’s employer to the effect that he revealed his connection with PWC and attempted to use it as “leverage” to force Comcast to address his issues with their accounting systems were knowingly and maliciously false and defamatory, were intended to injure Mr. O’Rourke in his business and profession, and predictably did so. As an employee of PWC, Mr. O’Rourke has obligations to conduct himself in a professional manner, and not seek an improper advantage, which is exactly what your employees accused him of doing. Your employee’s statements imputed on him general disqualification to practice his profession at PWC, and furthermore, your employees directly called for and obtained Mr. O’Rourke’s termination. The loss of Mr. O’Rourke’s job is directly attributable to your actions. By disrupting the employment relationship between Mr. O’Rourke and PWC, you are also liable for the tort of intentional interference with prospective economic advantage. “The tort of intentional or negligent interference with prospective economic advantage imposes liability for improper methods of disrupting or diverting the business relationship of another which fall outside the boundaries of fair competition.” Settimo Associates v. Environ Systems, Inc., 14 Cal. App. 4th 842, 845 (1993). Your false statements about what Mr. O’Rourke said falls outside the boundaries of fair comment and is legally actionable. You are on notice that Mr. O’Rourke has, at a minimum, a claim against you for defamation per quod, defamation per se, and intentional interference with prospective economic advantage. Mr. O’Rourke demands a full retraction and apology from 177 POST STREET, SUITE 700 SAN FRANCISCO, CA 94108 415.433.1700 415.520.6593 (F) Mr. Arthur R. Block, Esq. July 28, 2014 Page 7 of 7 CONFIDENTIAL SETTLEMENT COMMUNICATION Comcast, which must also be published to his employer, successful reinstatement of Mr. O’Rourke with PWC, and payments in the amount of $100,312.50 to compensate him for lost wages, emotional distress, attorney fees, and the $312.50 by which Comcast overcharged him. If Mr. O’Rourke must file a lawsuit to recover the sums owed, he will seek damages far in excess of the amount demanded herein, including punitive damages. Furthermore, should such an event occur, in addition to the individual action for defamation, we are prepared to prosecute claims on a class basis with regarding to false advertising, unfair competition, the California Consumer Legal Remedies Act, and any other applicable state and federal laws in connection with your overbilling of Mr. O’Rourke and other similarly situated persons. LITIGATION HOLD NOTICE By this letter, you are put on notice not to destroy or alter any information pertaining to Mr. O’Rourke, his account, your communications about him with PWC, and any and all other matters pertaining to your defamation and tortious conduct toward Mr. O’Rourke and your business relationship with PWC. Should any such destruction of evidence occur in Mr. O’Rourke’s matter, we will seek sanctions to the fullest extent of the law, up to and including sanctions that would lead to the termination of Mr. O’Rourke’s lawsuit with a full and uncontestable judgment in his favor. CONCLUSION Mr. O’Rourke’s offer to settle this matter for a full retraction and apology, his reemployment with his former employer, and $100,312.50 shall remain open until Monday, August 4 at 5:00 P.M. Mr. O’Rourke is willing to consider any reasonable counter-offers, but if they are not communicated by that deadline, Mr. O’Rourke will presume that Comcast does not intend to negotiation in good faith, and will act accordingly. Best regards, Maureen Pettibone Ryan 177 POST STREET, SUITE 700 SAN FRANCISCO, CA 94108 415.433.1700 415.520.6593 (F)
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