|
A federal district court in Florida has upheld a class action waiver in a wireless contract’s arbitration agreement, observing that the agreement preserved all statutory remedies and did not require the plaintiff to bear unreasonable fees and costs.
In Cruz v. Cingular Wireless, LLC, No. 2:07-CV-714-FTM-29DNF, 2008 WL 4279690 (M.D. Fla. Sept. 15, 2008), Cruz filed a putative class action lawsuit against Cingular, alleging fraudulent charges in violation of the Florida Deceptive and Unfair Trade Practices Act (FDUTPA). Cingular moved to compel arbitration of the Cruz plaintiff’s individual claims. In opposing the motion, Cruz argued that enforcing the class waiver would violate public policy by hindering the purposes of the FDUTPA.
The Court agreed with Cruz that "any limitations on remedies, including injunctive relief, for claims arising under FDUTPA render an arbitration agreement invalid" under Florida law, but found no such limitation in the parties'agreement that would hinder the FDUTPA’s remedial purpose. Not only did the parties'agreement preserve the ability of a prevailing party to recover reasonable fees and costs as allowed in the FDUTPA, it did not limit them in any way.
The Court also noted precedent stating that allowing for recovery of attorney’s fees preserved the right of plaintiffs to vindicate their small individual claims upon enforcement of a class action waiver. See, e.g., Jenkins v. First Am. Cash Advance of Ga., 400 F.3d 868, 878 (11th Cir. 2005).
The Court also noted that the agreement was distinguishable from the one held unconscionable in Dale v. Comcast Corp., 498 F.3d 1216, 1220-22 (11th Cir. 2007). Unlike the Dale-Comcast agreement, the Cruz-Cingular agreement did not prohibit recovery of attorney’s fees, nor did it require that a losing plaintiff reimburse the defendant for fees and costs.
Subscribe to a free weekly update on ADR case law and
legislation
|