Class Action Waiver Unconscionable, Case Against Cingular Goes Forward

Consumers filed a class action Cingular, alleging overcharges. Pursuant to an arbitration clause, the trial court ordered arbitration. But the arbitration clause included a waiver of class action litigation or class action arbitration, and the plaintiffs argued that that waiver was unconscionable -- and the Washington Supreme Court agreed. The arbitration clause says that if any part is invalidated the whole clause is out, so the case doesn't have to go to arbitration at all. Scott v. Cingular Wireless, No. 77406-4, majority (July 12, 2007) (Chambers, J.).

In dissent, Justice Madsen (joined by Justices J. Johnson and Bridge) says: "If there is to be state policy forbidding class action waivers in consumer agreements, it should come from our legislature, not this court." She is also concerned about the case's disfavoring of arbitration.

This case had a lot of lawyers working on it. For the plaintiffs (petitioners), there were three lawyers from Crane Dunham and two from Trial Lawyers for Public Justice (TLPJ's briefs are here). For the respondents, there were seven -- one from Cingular, one from Microsoft, and five from at least two different law firms.

And then there were the amici:

• Washington State Trial Lawyers Association Foundation (brief here)
• Attorney General of Washington (brief here)
• Association of Washington Business
• Chamber of Commerce (both local counsel and two from the Nat'l Chamber Litigation Center in DC) (brief here)
• The Wireless Association Ctia
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• AARP (again, both local and from DC) (brief here)
• National Association of Consumer Advocates (one of the two listed counsel is with the AARP Foundation)
• Intel Corporation
• Amazon.com , Inc.
• Realnetworks , Inc.
• Microsoft Corporation

Here's commentary on the case from a Seattle Times reporter: State Supreme Court backs class-action suits, Postman on Poltics, July 12, 2007.

Here's a summary of a similar case in Illinois (Kinkel v. Cingular Wireless LLC): Illinois Supreme Court Holds Class Action Waiver Unconscionable, Consumer Law & Policy Blog, Oct. 17, 2006.