I see what you mean, but it's not likely with regard to VM. They mention in the fine print that throttling will occur after 2.5GB of high speed data on the Sprint network. If they didn't mention that anywhere, then yeah, it would be ripe as you say. As it is mentioned in the fine print, something I'm sure their legal reps told them, then there's no case here.
It's not VM's fault that people don't read the fine print or Terms of Service agreements. They're there for a few reasons (legal and otherwise). That is the responsibility of the customer.
As we sometimes say in the Open Source community, RTFM if you don't want to get screwed!
There is a case to be made that the throttling is so extensive that the data if effectively capped. Again, the advertising just needs to be misleading in order to have a case...
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