Egenera, Inc. v InterCall, Inc.
Joel Feistner represented Egenera, Inc. in a lawsuit against InterCall, Inc. InterCall provided audio conferencing services to Egenera for a per-call/per-minute fee which was reflected in a service agreement entered into in March of 2007. From March of 2007 through October of 2008, InterCall charged a minimum call fee of $15.00 which was never disclosed during contract negotiations and which was not specified in the service agreement. The call fee was only mentioned in a one line term on InterCall's customer web account which was not identified during negotiations and which was not specified in the service agreement. In addition, the customer web account was not provided to Egenera until after the service agreement was executed. From March of 2007 through October of 2008, Egenera's accounts payable department paid these minimum call fees without knowledge that Egenera did not agree to them. The minimum call fees which Egenera paid from March of 2007 through September of 2008 amounted to $104,652.96. When Egenera complained about the fees, InterCall credited back the fees charged in October of 2008 and stopped charging them altogether thereafter.
After a two day jury trial, the jurors were instructed on Egenera's theories of recovery for fraudulent misrepresentation and material misrepresentation. The jury deliberated for approximately one hour and returned a verdict for the full amount of the minimum call fees InterCall charged Egenera in the amount of $104,652.96.