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AARP Asks Courts to Reject Arbitration Clauses That Prevent Consumer Recovery

AARP's brief in a cell phone contract case argues that a class action ban in an arbitration clause is against Florida law.


Arbitration is an out-of-court process that was originally developed to resolve disputes between businesses with equal bargaining power in industries that benefited from having a decision maker with specialized expertise in a particular field. Now, arbitration is increasingly forced upon people in standard form contracts for virtually every good and service they purchase, without any opportunity to negotiate. For the average person, arbitration can sharply limit access to remedies and permit corporations to evade any consequences for violating their legal obligations.

Often, arbitration clauses are designed not simply to move a dispute to an alternative forum, but to prevent a dispute from being heard at all. This is because arbitration is expensive and difficult for the average person. Clauses may also limit remedies and ban class actions. Class actions are often the only effective mechanism to challenge unfair or deceptive practices that can cheat people out of millions, a few dollars at a time. Because litigation is expensive, forcing people to litigate or arbitrate such claims individually is both cost prohibitive and impractical.

Increasingly, businesses include forced arbitration clauses with class action bans in contracts for a wide variety of ordinary consumer products and services. They are routinely used in contracts for phone service, employment, health insurance, nursing home care, medical services and in credit card agreements.

Pendergast v. Sprint Nextel addresses a forced arbitration clause with a class action ban used in form contracts for cell phones. In this case, customers of Sprint Nextel challenged roaming charges they incurred while (they alleged) they were in covered areas. Because the individual charges were small enough to make it difficult to justify the time and expense of litigation on an individual basis, consumers sought to proceed as a class action. Although each consumer was overcharged only small amounts, overall the cell phone provider illegally collected large ill-gotten sums.  

The cell phone provider sought to enforce the ban on class actions and to force consumers into individual arbitrations. The case is before the Supreme Court of Florida, which is considering whether the ban on class actions is unenforceable under Florida law. Florida courts will not enforce arbitration clauses that unfairly limit consumer rights or exculpate corporations from wrongdoing.

AARP's brief, filed by attorneys with AARP Foundation Litigation, argues that arbitration clauses with class action bans eviscerate Florida's consumer protection laws, which are designed to be enforced by private lawsuit rather than by a regulatory agency. Forced individual arbitration essentially shuts the door to any enforcement because it is too difficult and expensive, if not impossible, for most consumers to pursue a remedy.

The brief outlines the way in which class action bans harm consumers. By design, forced arbitration makes litigation or arbitration arising out of the same set of facts and law so expensive and difficult that few, if any, consumers ever seek to enforce their rights. In contrast, a class action allows a large number of claims to be disposed of in one single, efficient proceeding and holds defendants accountable for corporate policies that harm large numbers of people. Without the class mechanism, corporations are able to keep all of their ill-gotten gains because individuals are unable to challenge effectively the unlawful or deceptive practices.

The brief notes that such clauses also restrict access to arbitration by making arbitration cost more than any possible recovery. "People are not 'lunatics or fanatics' who would spend more to obtain a remedy than they might recover," argues AARP's brief in Pendergast.

Finally, the brief notes Florida's long history of holding unenforceable contract provisions that limit important substantive and procedural rights of Floridians.
What's at Stake

If the court enforces the class action ban, older consumers will lose their day in court to challenge many business practices that are fraudulent, deceptive and unfair under Florida state laws. By reducing redress for people harmed by business practices, one of the most important incentives for companies to maintain high standards — its financial self interest — will be lost, and the standard in the overall marketplace will deteriorate.

Case Status

Pendergast v. Sprint Nextel
is before the Supreme Court of Florida, the state's highest court.