NO. 09-15890-G _______________________________

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

_______________________________ KARA MAUGHON and LEVI BLASDEL, individually and on behalf of

others similarly situated, Appellants,

v. CARNIVAL CORPORATION,

Appellee. _______________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA

NO. 1:09-cv-21453-ASG _______________________________

BRIEF AMICUS CURIAE OF AARP IN SUPPORT OF APPELLANTS

SEEKING CERTIFICATION _______________________________

On the brief: Michael Schuster AARP 601 E Street, N.W. Washington, DC 20049 (Tel) (202) 434-2060 (Fax) (202)-434-6424

Julie Nepveu DC Bar No. 458305 AARP Foundation Litigation 601 E Street, N.W. Washington, DC 20049 (Tel) (202) 434-2060 (Fax) (202)-434-6424 jnepveu@aarp.org

Maughon v. Carnival, NO. 09-15890-G

C-1 of 3

Corporate Disclosure Statement

The IRS has determined that AARP is organized and operated exclusively

for the promotion of social welfare pursuant to Section 501 (c) 4 of the Internal

Revenue Code and is exempt from income tax. AARP is also organized and

operated as a non-profit corporation pursuant to Title 29 of Chapter 6 of the

District of Columbia Code 1951.

Other legal entities related to AARP include AARP Foundation, AARP

Services, Inc., Legal Counsel for the Elderly, AARP Financial, AARP Global

Network, and Focalyst.

AARP has no parent corporation, not has it issues shares or securities.

By: ______\s\_________________ Julie Nepveu Counsel for AARP

Maughon v. Carnival, NO. 09-15890-G

C-2 of 3

Certificate of Interested Persons

Pursuant to Fed. R. App. P. 26.1 and 11th Cir. R. 26.1-1, counsel for Amicus

Curiae AARP hereby certifies that the following persons, attorneys, and

corporations have or may have an interest in the outcome of this case and/or are

subsidiaries or other identifiable legal entities related to a party:

1. AARP

2. Arison, Mickey

3. Barbara Green, P.A.

4. Bernstein, David C.

5. Blasdel, Levi

6. Briggs, Thomas D. Esq.

7. Cahill, Gerald R.

8. Campbell, D. Michael, Esq.

9. Carnival Corporation

10. D. Michael Campbell, P.A.

11. David Mishael, P.A.

12. Dychter, Alexander, I., Esq.

13. Dychter Law Offices, P.A.

14. Frank, Howard S.

15. Green, Barbara, Esq.

Maughon v. Carnival, NO. 09-15890-G

C-3 of 3

16. Gold, Alan, S., United States District Court Judge

17. JOSEPHS JACK, P.A.

18. Lerner, Susan S., Esq.

19. Mase, Curtis M., Esq.

20. Mase Lara & Eversole, P.A.

21. Maughon, Kara

22. McAliley, Chris, United States Magistrate Judge

23. Mishael, David B., Esq.

24. Perez, Arnaldo

25. Tejera, Valentina M., Esq.

26. Weinstein, Joshua

By: ______\s\_________________ Julie Nepveu Counsel for AARP

i

TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT ............................................ C1

CERTIFICATE OF INTERESTED PERSONS ........................................... C2

TABLE OF CONTENTS ................................................................................. i

TABLE OF CITATIONS .............................................................................. iii

STATEMENT OF THE ISSUES.................................................................... 1

STATEMENT OF INTEREST ....................................................................... 1

SUMMARY OF THE ARGUMENT ............................................................. 3

ARGUMENT .................................................................................................. 3

I. Corporations Use Remedy-Stripping Arbitration Clauses To Shield Themselves From Liability.............................................................. 3

II. Arbitration Clauses That Serve Merely As A Delivery Device For

Class Action Bans Limit Effective Enforcement Of Statutory Rights ............................................................................................... 6

III. Class Action Bans Frustrate Statutory Enforcement Because

People Are Not “Lunatics Or Fanatics” .......................................... 9

A. Forcing People To Pursue Claims Individually Is Burdensome And Limits Enforcement ............................................................ 9

B. People Lack Information Necessary To Enforce Rights On An

Individual Basis ........................................................................ 13

1. By Definition, People May Not Recognize A Deceptive Practice As Illegal ................................. 14

2. Class Actions Overcome Impediments To

Enforcement ........................................................... 16

ii

IV. Class Actions Bans That Allow Corporations To “Self-deregulate” Undermine Laws Protecting People In The Marketplace ............. 19

CONCLUSION ............................................................................................ 27

CERTIFICATE OF COMPLIANCE ............................................................ 29

CERTIFICATE OF SERVICE ..................................................................... 30

iii

TABLE OF CITATIONS

Federal Cases Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) ............................................. 6 Carnegie v. Household Int'l, Inc., 376 F.3d 656 (7th Cir 2004) ................................ 9 Cooper v. QC Financial Services, Inc.,

503 F.Supp.2d 1266 (D. Ariz. 2007) ............................................................. 26 Cruz v. Cingular Wireless LLC, Case No. 08-16080-C (11th Cir.) ....................................... 2-3 Dale v. Comcast, 498 F.3d 1216 (11th Cir. 2007) ..................................................... 9 Deposit Guaranty Nat'l Bank v. Roper, 445 U.S. 326 (1980) ................................. 22 Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) ................................................. 8 Hensley v. Eckerhart, 461 U.S. 424 (1983) ............................................................. 22 Homa v. American Express Co., 558 F.3d 225 (3rd Cir. 2009) .............................. 25 In re American Express Merchants’ Litigation, 554 F.3d 300 (2d Cir.

2009), pet. for cert. pending, No. 08-1473 (May 29, 2009) ......................... 11 Kinkel v. Cingular Wireless LLC, 857 N.E.2d 250 (Ill. 2006) ................................ 25 Kristian v. Comcast Corp., 446 F.3d 25 (1st Cir. 2006).................................... 12, 23 Luna v. Household Fin. Corp., III, 236 F. Supp. 2d 1166,

(W.D. Wash. 2002) ........................................................................................ 26 Mace v. Van Ru Credit Corp., 109 F.3d 338 (7th Cir. 1997) .................................... 6 Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S.

614, (1985) ....................................................................................................... 4 Pendergast v. Sprint Nextel Corp., 2010 WL 6745 (11th

Cir. January 4, 2010) ..................................................................................... 27

iv

Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985) ............................................. 8 Ting v. AT&T, 319 F.3d 1126 (9th Cir. 2003) .......................................................... 8 Ting v. AT&T, 182 F.Supp 2d. 902 (2002) ................................................................ 8 State Cases ACORN v. Household International, Inc.,

211 F. Supp. 2d 1160 (N.D. CA 2002) ............................................................ 5 Bruntaeger v. Zeller, 515 A.2d 123 (1986) ............................................................. 22 Coady v. Cross Country Bank,

299 Wis. 2d 420, 729 N.W.2d 732 (Wis. Ct. App. 2007) ............................. 16 Coastal Caisson Drill Co. v. Am. Cas. Co., 523 So.2d 791

(Fla. 2d DCA 1988), approved, 542 So.2d 957 (Fla.1989) ........................... 24 Discover Bank v. Superior Court, 36 Cal. 4th 148,

30 Cal. Rptr. 3d 76, 113 P.3d 1100 (2005) .............................................. 17, 22 Eagle v. Fred Martin Motor Co., 157 Ohio App. 3d 150,

178 N.E.2d 1161 (Ohio Ct. App. 2004) ........................................................ 26 Eastman v. Conseco Fin. Servicing Corp., No. 01-1743,

2002 WL 1061856 (Wis. Ct. App. May 29, 2002) .................................. 14-15 Fiser v. Dell Comp. Corp., 144 N.M. 464, 188 P.3d 1215 (2008) .......................... 25 Fonte v. AT&T Wireless Services, Inc., 903 So.2d 1019 (Fla. 4th DCA 2005) ...... 16 Gentry v. Superior Court, 64 Cal. Rptr. 3d 773,

165 P.3d 556 (Cal. 2007) ............................................................................... 25 Gramatan Home Investors Corp. v. Starling, 470 A.2d 1157 (1983) ..................... 22 Holt v. O’Brien Imports of Fort Myers, Inc.,

862 So.2d 87 (Fla. 2d DCA 2003) ................................................................. 23

v

McNulty v. H & R Block, 843 A.2d 1267 (Pa.Super.2004) ..................................... 26 Muhammad v. County Bank of Rehoboth Beach,

912 A.2d 88 (N.J. 2006) ................................................................................ 26 Powertel, Inc. v. Bexley, 743 So.2d 570 (Fla. Dist. Ct. App. 1999) .......... 4, 9, 11, 12 Reuter v. Davis, Case No. 502001CA001164XXXXMB

2006 WL 3743016 (Fla. Cir. Ct. Dec. 12, 2006) .......................................... 10 Rollins, Inc. v. Heller, 454 So.2d 580 (Fla.App. 3 Dist., 1984) ........................ 15, 23 S.D.S., Inc. v. Chrzanowski, 976 So.2d 600 (Fla. 1st DCA 2007) ..12, 13, 16, 21, 23 Szetela v. Discover Bank, 97 Cal.App.4th 1094,

118 Cal.Rptr.2d 862 (2002) ................................................................... 4, 5, 26

Vasquez-Lopez v. Beneficial Oregon, 210 Or. App. 553, 152 P.3d 940 (Or. Ct. App. 2007) ........................................................... 25-26

West Virginia ex rel. Dunlap v. Berger,

567 S.E.2d 265 (W. Va. 2002) ...................................................................... 27 Woods v. QC Financial Services, 280 S.W.3d 90 (Mo. App. 2008) ....................... 25 Statutes § 69.081(2) Fla. Stat. ................................................................................................ 19 § 501.201 Fla. Stat ..................................................................................................... 9 § 501.202 Fla. Stat ................................................................................................... 18 § 501.204(1) Fla. Stat. .............................................................................................. 14 § 501.211 Fla. Stat. .................................................................................................. 21 Civil Rights Act of 1964, 42 U.S.C. § 2000a-3 (2000) ........................................... 21

vi

Other Authorities 119 Cong. Rec. 25415 (July 23, 1973) .................................................................... 18 Paul D. Carrington, Self-Deregulation: A National Policy of the

Supreme Court, 2 NEV. L. REV. 259 (2002) .................................................. 20 Paul D. Carrington, Unconscionable Lawyers,

19 GA. ST. U. L. REV. 361 (2002) ............................................................... 15

Henry Cohen, Congressional Research Service, Awards of Attorneys’ Fees By Federal Courts and Federal Agencies 63-113 (2006) ................................................................................................ 21

Alba Conte & Herbert B. Newberg, NEWBERG ON

CLASS ACTIONS, § 9:67 N.2 (4TH ED. 2008) ............................................. 20 Edward Wood Dunham, The Arbitration Clause as Class Action

Shield, 16 FRANCHISE L.J. 141 (1997) ........................................................ 3 Myriam Gilles, Opting Out of Liability: The Forthcoming,

Near-Total Demise of the Modern Class Action, 104 Mich. L. Rev. 373 (2005) ......................................................................... 5 J. Maria Glover, Beyond Unconscionability: Class Action

Waivers and Mandatory Arbitration Agreements, 59 V and. L. Rev. 1735 (2006) ...................................................................... 20

Alan S. Kaplinsky & Mark J. Levin, Excuse Me, But Who’s the

Predator? Banks Can Use Arbitration Clauses as a Defense, BUS. L. TODAY, May/June 1998, at 24 ....................................................................... 4

Carroll E. Neesemann, Should an Arbitration Provision Trump the

Class Action? Yes: Permitting Courts to Strike Bar on Class Actions in Otherwise Clean Clause Would Discourage Use of Arbitration, DISP. RESOL. MAG., Spring 2002, at 13 ................................................................. 7

Michael L. Rustad, Smoke Signals From Private Attorneys General

in Mega Social Policy Cases, 51 DEPAUL L. REV. 511 (2001) ................ 19

vii

David S. Schwartz, Understanding Remedy-Stripping Arbitration Clauses: Validity, Arbitrability, and Preclusion Principles, 38 U.S.F. L. Rev. 49 (2003) ............................................................................ 6

David Streitfeld, No Help in Sight, More Homeowners Walk Away,

NY Times, Feb. 2, 2010 ................................................................................ 11 Jean R. Sternlight, As Mandatory Binding Arbitration Meets the

Class Action, Will the Class Action Survive? Wm and Mary L. Rev. 1 (2000). ................................................................... 24

Jean R. Sternlight, Creeping Mandatory Arbitration: Is it Just?

57 Stan. L. Rev. 1631 (2005) ........................................................................ 10 Jean R. Sternlight and Elizabeth J. Jensen, Using Arbitration To Eliminate

Consumer Class Actions: Efficient Business Practice Or Unconscionable Abuse? 67 Law & Contemp. Probs. 75 (2004) ..... 14, 15, 18

Sen. Rep. No. 93-151, reprinted in 1974 U.S.C.C.A.N. 7702 ................................ 17 Sen. Report No. 95-382, 95th Cong., 1st. Sess.,

reprinted in 1977 U.S.C.C.A.N., 1695, 1699. ............................................... 21

1

STATEMENT OF THE ISSUES

I. WHETHER CARNIVAL’S CLASS ACTION BAN IS VOID BECAUSE IT VIOLATES FLORIDA’S PUBLIC POLICYAND FRUSTRATES THE PURPOSE OF THE FLORIDA DECEPTIVE AND UNFAIR TRADE PRACTICES ACT. II. WHETHER THIS COURT SHOULD CERTIFY THE QUESTION TO THE FLORIDA SUPREME COURT

STATEMENT OF INTEREST

AARP is a non-partisan, non-profit organization. As the largest membership

organization dedicated to people 50 and older, AARP is greatly concerned about

fraudulent, deceptive, and unfair corporate practices, many of which have a

disproportionate impact on older people. AARP thus supports laws and public

policies designed to protect people from such practices and to preserve the legal

means for them to seek redress when they are injured by them. Among these

activities, AARP advocates for improved access to the civil justice system and

supports the availability of the full range of enforcement tools, including class

actions.

While many older people lose large amounts of money to such practices,

many others lose relatively small amounts or are subjected to practices which

violate statutes that provide low monetary remedies. These losses nevertheless are

significant. Moreover, even small losses may accumulate into huge ill-gotten gains

for corporations which may have thousands or even millions of customers, each

2

subject to the same harmful practices. Meaningful protection in the marketplace

requires access to effective redress through private litigation, both to provide a

remedy and to remove the incentive a business may have to engage in fraudulent,

unfair, or deceptive practices.

AARP is interested in the Court’s ruling because of the impact it will have if

people are forced to forego the only effective remedies they have. AARP is

concerned that access to justice is being severely curtailed by corporations that

limit substantive rights and remedies via mandatory arbitration clauses in

standardized contracts. In addition to preventing individual consumers from

resolving disputes judicially, most arbitration clauses also contain remedy-

stripping provisions that would never be permitted or enforced if not imbedded in

the arbitration clause. In particular, preclusion of class action lawsuits and class-

wide arbitration makes it virtually impossible for many consumers to seek relief

and effectively immunizes corporations from liability. Arbitration limits remedies

because of the expense, lack of review, and inherent disadvantages to infrequent

users compared to repeat players. AARP has filed amicus curiae briefs in the U.S.

Supreme Court, federal appellate courts, and state courts addressing the importance

of preserving court access for consumers, especially those with relatively small

amounts in dispute, to ensure that they can seek the full range of redress that

Congress and state legislatures enacted for their protection. See, e.g., Cruz v.

3

Cingular Wireless LLC, Case No. 08-16080-C (11th Cir.).

SUMMARY OF THE ARGUMENT

Corporations use remedy stripping arbitration clauses to shield themselves from

liability. The class action ban, imbedded in arbitration clauses, is designed to cut off the

only economical method available to most consumers to redress injuries arising under the

Florida Deceptive and Unfair Trade Practices Act. The small value of typical claims, along

with the time, expense and information necessary to pursue a remedy, makes individual

claims very unlikely. As a result, people do not have meaningful access to remedies and

corporations are not deterred from engaging in practices that violate the law. The

arbitration clause in dispute frustrates the purposes of the FDUTPA and should be held to

be unenforceable. In the alternative, this issue should be certified to the Florida Supreme

Court for a ruling on whether this class action ban violates Florida public policy.

ARGUMENT

I. Corporations Use Remedy-Stripping Arbitration Clauses To Shield

Themselves From Liability Corporations—unwilling to submit to the remedial landscape provided by

statute for their violations of law—have gone rogue. Corporate lawyers have

seized upon arbitration provisions as a tool to shield corporations from liability

when they step over the line. See, e.g. Edward Wood Dunham, The Arbitration

Clause as Class Action Shield, 16 FRANCHISE L.J. 141 (1997) (urging

4

franchisers to use arbitration specifically to prevent class actions by franchisees);

Alan S. Kaplinsky & Mark J. Levin, Excuse Me, But Who’s the Predator? Banks

Can Use Arbitration Clauses as a Defense, BUS. L. TODAY, May/June 1998, at

24 (urging banks to use arbitration to prevent consumer class actions).

Many arbitration clauses, packed with remedy-stripping language, are not

designed simply to move disputes from the judicial to the arbitral forum with no

loss of substantive rights, as the Federal Arbitration Act was designed to encourage.

Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 637 n.19

(1985) (explaining that arbitration clauses cannot be used to deprive individuals of

their substantive rights: “We . . . note that in the event the choice-of-forum and

choice-of-law clauses operated in tandem as a prospective waiver of a party’s right

to pursue statutory remedies for antitrust violations, we would have little hesitation

in condemning the agreement as against public policy.”). Instead, their specific

purpose is to accomplish what corporations could not do legislatively: immunize

corporate defendants from liability or accountability for wrongdoing by deterring

or even preventing potential victims from seeking redress either in court or before

an arbitrator. See, e.g., Powertel, Inc. v. Bexley, 743 So. 2d 570, 576 (“The

prospect of class litigation ordinarily has some deterrent effect on a manufacturer

or service provider, but that is absent here.”); Szetela v. Discover Bank, 118 Cal.

Rptr. 2d 862, 868 (Ct. App. 2002) (explaining that the arbitration clause “serves as

5

a disincentive for Discover to avoid the type of conduct that might lead to class

action litigation,” essentially granting Discover “a license to push the boundaries

of good business practices to their furthest limits”); ACORN v. Household

International, Inc., 211 F. Supp. 2d 1160, 1174 (N.D. CA 2002) (finding “The

interlocking nature of these hindrances indicates that the purpose of the arbitration

agreement is not to transfer claims to a more expeditious forum but to deter

Defendants’ customers from bringing claims.”).

Operating more like pick-pockets than pirates, many corporations are

stealthily eliminating statutory rights and remedies by way of arbitration clauses

imbedded in standard form contracts. Flying below the radar, credit card

companies, electronics manufacturers, wireless and cable service providers,

nursing homes, employers, homebuilders, and many other corporate entities have

devised ever more sophisticated arbitration provisions that disrupt the consumer

protection landscape provided by statute. Such corporations know that few people

will read or understand their import, and will usually have no opportunity or option

to negotiate or reject such clauses. Myriam Gilles, Opting Out of Liability: The

Forthcoming, Near-Total Demise of the Modern Class Action, 104 Mich. L. Rev.

373, 395-99 (2005). As one scholar observed, remedy-stripping clauses were

inserted into broad arbitration agreements by “overzealous drafters” who hoped

that “the courts’ enthusiasm for enforcing arbitration clauses would spill over onto

6

the logically separable remedy limitation, one that would have had no chance of

enforcement without the arbitration clause.” David S. Schwartz, Understanding

Remedy-Stripping Arbitration Clauses: Validity, Arbitrability, and Preclusion

Principles, 38 U.S.F. L. Rev. 49, 49-50 (2003).

II. Arbitration Clauses That Serve Merely As A Delivery Device For Class Action Bans Limit Effective Enforcement of Statutory Rights

One such remedy-stripping provision frequently imbedded into arbitration

clauses is the class action ban. Class actions are an innovative, statutorily provided

mechanism designed to provide an effective, efficient means of providing relief to

groups of people who are similarly harmed by a common practice. Lawmakers

and courts embrace class actions because they recognize that a class action

mechanism is necessary to provide meaningful access to justice. The Supreme

Court explained:

The policy at the very core of the class action mechanism is to overcome the problem that small recoveries do not pro-vide the incentive for any individual to bring a solo action prosecuting his or her rights. A class action solves this problem by aggregating the relatively paltry potential reco-veries into something worth someone’s (usually an attor-ney’s) labor.

Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 617 (1997) (quoting Mace v. Van

Ru Credit Corp., 109 F.3d 338, 344 (1997)).

Corporations recognize the likelihood they will be held liable for their

wrongdoing increases substantially when a class action is available. They know,

7

as did the architects of Rule 23, that requiring all disputes to be handled on an

individual basis shields wrongdoers from liability. Id. Indeed, it is generally

recognized that evading class action liability may be a principal motivation of

companies imposing arbitration. See Carroll E. Neesemann, Should an

Arbitration Provision Trump the Class Action? Yes: Permitting Courts to

Strike Bar on Class Actions in Otherwise Clean Clause Would Discourage Use

of Arbitration, DISP. RESOL. MAG., Spring 2002, at 13.

If not for the “benefits” it gains from the class action ban, Carnival

would not seek to compel arbitration. Indeed, Carnival appears interested only

in the class action ban, not the arbitration forum, in that the arbitration clause in

dispute specifically requires arbitration only if a class action ban is upheld. (Pl.-

Appellant Op. Br. at 4) (Carnival’s Passenger Ticket provided: “IF FOR ANY

REASON THIS CLASS ACTION WAIVER IS UNENFORCEABLE AS TO

ANY PARTICULAR CLAIM, THEN AND ONLY THEN SUCH CLAIM

SHALL NOT BE SUBJECT TO ARBITRATION.”). Thus, while arbitration

is often touted as merely an alternative forum for adjudication, the primary

corporate goal is typically the remedy-stripping features, including the class

action ban. The arbitration clause serves merely as the delivery device.

On its face, a class action ban may not appear to abolish a remedy. It may

appear merely to require a company’s thousands or even millions of customers

8

who entered into identical contracts to pursue one person at a time their relatively

small dollar claims to challenge practices that affect them all similarly -- precisely

the claims that would be uneconomical to bring individually, and that the class

action device is effective at addressing. See Phillips Petroleum Co. v. Shutts, 472

U.S. 797, 809 (1985) (noting “Class actions also may permit the plaintiffs to pool

claims which would be uneconomical to litigate individually. . . most of the

plaintiffs would have no realistic day in court if a class action were not available.”).

Thus, despite a seemingly neutral appearance, class action bans effectively

cut off remedies and shield corporations because often, “[e]conomic reality dictates

that [a plaintiff's] suit proceed as a class action or not at all.” Eisen v. Carlisle &

Jacquelin, 417 U.S. 156, 161 (1974). In holding one such clause unconscionable

and unenforceable, the trial court in Ting v. AT&T explained:

This lawsuit is not about arbitration. If all AT&T had done was to move customer disputes that survive its informal resolution process from the courts to arbitration, its actions likely would have been sanctioned by the state and federal policies favoring arbitration. While that is what it sug-gested it was doing to its customers, it was really doing much more; it was actually rewriting substantially the legal landscape on which its customers must contend. . . . It is not just that AT&T wants to litigate in the forum of its choice – arbitration; it is that AT&T wants to make it very difficult for anyone to effectively vindicate her rights, even in that forum. That is illeg-al and unconscionable and must be enjoined.

Ting v. AT&T, 182 F.Supp 2d. 902, 938-39 (2002) (emphasis added) aff’d in

relevant part Ting v. AT&T, 319 F.3d 1126, 1149 n.14 (9th Cir. 2003), cert.

denied 540 U.S. 811 (2003) (directing courts to “look beyond the facial

9

neutrality and examine the actual effects” of arbitration clauses, and criticizing

a case that “ignore[d] the obvious practical implications of the arbitration

provision”). As this Court held in Dale v. Comcast, it is important to consider

the practical effect a class action ban will have on the corporation’s ability “to

engage in unchecked market behavior that may be unlawful.” Id., 498 F.3d

1216, 1224 (11th Cir. 2007). See Powertel, 743 So.2d at 576 (holding

unenforceable a clause that “effectively insulates Powertel from liability under

state consumer laws.”).

III. Class Action Bans Frustrate Statutory Enforcement Because People are Not “Lunatics or Fanatics”

A class action ban frustrates the remedial and deterrent goals of the Florida

Deceptive and Unfair Trade Practices Act, § 501.201 Fla. Stat. (hereinafter

FDUTPA), because it is burdensome for people to pursue their remedies

individually and results in less effective statutory enforcement. As Judge Posner

aptly observed, “The realistic alternative to a class action is not 17 million

individual suits, but zero individual suits, as only a lunatic or a fanatic sues for

$30.” Carnegie v. Household Int'l, Inc., 376 F.3d 656, 661 (7th Cir. 2004).

A. Forcing People To Pursue Claims Individually Is Burdensome And Limits Enforcement

One major problem with forcing people to pursue their claims individually

is that some people cheated by business practices will undoubtedly forego pursuing

10

their claims because the value of their potential recovery does not justify the cost,

time, effort, risk, and stress necessary to obtain it. Common sense dictates that a

fair portion of the people cheated by a deceptive business practice, including those

who cannot afford to lose even a small amount of money, will not pursue an

individual remedy, especially not a small value claim. Some people will live by

the maxims that one does not throw good money after bad and it is best to cut

one’s losses. Others will come to the conclusion that other priorities, including

going to work, caregiving, and getting through their busy lives, make it impractical

or impossible for them to pursue their legal rights for such a small recovery. Many

people will avoid becoming embroiled in a legal dispute at any cost.

Empirical examples confirm this conclusion. See, e.g. Reuter v. Davis, Case

No. 502001CA001164XXXXMB, 2006 WL 3743016, *4 (Fla. Cir. Ct. Dec. 12,

2006) (finding that, although over 66,000 customers engaged in over 1,000,000

such transactions during a five year period and the alleged loan sharking was

punishable as a third-degree felony under Florida law, not a single individual claim

was filed); see also Jean R. Sternlight, Creeping Mandatory Arbitration: Is it Just?,

57 Stan L Rev 1631, 1655 (2005) (noting, in the first two years in which its

contracts featured mandatory arbitration clauses, credit card issuer First USA filed

51,622 arbitration claims against card users, while only four consumers made a

claim against the company).

11

Indeed, even a relatively large monetary claim may be viewed by many

people as not worth the risk and trouble to pursue. See, e.g., In re American

Express Merchants’ Litigation, 554 F.3d 300, 316-17, 319 (2d Cir. 2009), pet. for

cert. pending, No. 08-1473 (May 29, 2009) (holding ban on collective action is

unenforceable, and concluding that plaintiffs’ claims “cannot reasonably be

pursued as individual actions,”). In today’s economy, for example, borrowers are

walking away from their homes rather than asserting claims they may have to

challenge unfair, deceptive, or predatory lending and foreclosure practices. See

David Streitfeld, No Help in Sight, More Homeowners Walk Away, NY Times, Feb.

2, 2010, available at http://www.nytimes.com/2010/02/03/business/03walk.

html?em (accessed Feb. 4, 2010).

Thus, the burdens of individual litigation, including not only the costs of

attorneys, experts, and discovery, but also the toll litigation takes on an injured

person, will take access to justice out of reach for most people, even those with

substantial damages, if they are required to pursue their cases unaided by the class

action mechanism. “Class litigation provides the most economically feasible

remedy for the kind of claim that has been asserted here.” Powertel, 743 So. 2d at

576 (holding class action ban unenforceable where it frustrated purposes of the

FDUTPA).

12

The burden imposed by a class action ban is not only that people must

individually pursue their claims, but also that liability based on common facts must

be proved over and over again. It can be expected that individuals will not always

succeed, even if the claims are merited, especially since the repeat litigant

defendant will have an advantage through superior knowledge of the case and

access to legal representation. In a class action, conversely, the claim must be

proven only once on behalf of the entire class. Absent the class action ban, that

burden would not be imposed on each individual. The FDUTPA is frustrated if

corporations are permitted to impose such burdensome inefficiency and expense

onto all customers, a burden which ultimately falls onto the entire consuming

public.

Such efforts at limiting liability should not succeed simply because the class

action ban is imbedded in the arbitration clause. See Kristian v. Comcast Corp.,

446 F.3d 25, 54 (1st Cir. 2006) (noting that although the class action device is

procedural and not formally substantive, a court should refuse to “ignore the

substantive implications of this procedural mechanism”). The court citied Kristian

in S.D.S., Inc. v. Chrzanowski, in refusing to enforce a class action ban in customer

leases, noting:

they violate public policy by hampering important remedial purposes of FDUTPA, because they are designed to prevent individuals with small claims…from seeking remedies as a class… In doing so, we join numerous

13

other courts in declining to enforce bans on class relief in consumer contracts that give rise to claims under consumer protection statutes

976 So.2d 600, 604 (Fla. 1st DCA 2007)1

B. People Lack Information Necessary To Enforce Rights On An Individual Basis

; see Powertel, 743 So. 2d at 576.

In addition to the burden imposed by forcing individual claims, lack of

information is also a serious impediment that cannot be overcome without the

availability of a class action remedy. Apparently, the lower court was troubled by

the impact that lack of information would have on individuals’ ability to bring

claims in this case. The district judge ordered Carnival to send to all affected

people a notice of the right to make a claim within the shortened statute of

limitations, noting that “[t]he FDUPTA rights of these passengers, as such may

exist, should not be tactically lessened by Carnival because of arbitration as

compared to the pursuit of a class action by the named Plaintiffs on their behalf.”

The court’s finding that the passenger’s rights under the FDUTPA would be

tactically lessened strongly suggests that this arbitration clause with its remedy

stripping provisions will in fact limit enforcement of the consumer protection laws,

thus making it contrary to public policy and unenforceable. Moreover, in requiring

the court-ordered notice, but also requiring individuals to submit to arbitration, the

1 While not controlling law, the Chrzanowski court cited cases from numerous

other courts in support of its holding. Id., 976 So.2d at 610-11.

14

Court explicitly recognized that claimants pursuing their remedies might later be

forced to pay for the cost of that notice if they do not succeed in arbitration. Pl.-

Appellant Op. Br. at 5.

1. By Definition, People May Not Recognize A Deceptive Practice As Illegal

By definition, a practice which is fraudulent, unfair, or deceptive may not be

recognized by the injured person. The FDUTPA makes unlawful "[u]nfair

methods of competition or deceptive acts or practices in the conduct of any trade or

commerce." § 501.204(1) Fla. Stat. Lack of information about such a practice is a

particularly difficult impediment for individuals to overcome. Jean R. Sternlight

and Elizabeth J. Jensen, Using Arbitration To Eliminate Consumer Class Actions:

Efficient Business Practice Or Unconscionable Abuse? 67 Law & Contemp. Probs.

75, 89 (2004). Although a charge or a fee may be noticed, many people may not

understand that a particular inducement, late fee, excessive interest rate, liquidated

damages penalty, or other such charge or practice may be illegal. Id. Even if a

person may sense that her rights are being violated, she may not seek out -- or have

access to -- expensive legal advice or representation necessary to understand or

enforce her rights, especially considering the relatively small amounts at stake. Id.

Moreover, many people will have to overcome a steep learning curve about how to

pursue an individual claim: financial literacy rates are low, and many people may

not have an understanding of the legal system. Id. Even fewer understand how to

15

proceed in arbitration. Id. For those who find this information hurdle

insurmountable, the goals of the FDUTPA will not be met absent the class action

mechanism. See Eastman v. Conseco Fin. Servicing Corp., No. 01-1743, 2002 WL

1061856, at *3 (Wis. Ct. App. May 29, 2002) (explaining “[u]nless class action is

authorized, many plaintiffs will be unaware of the allegedly illegal activities and

will not commence any proceedings.”).

Indeed, a person may in fact be deterred from attempting to pursue a remedy

if the arbitration clause contains deceptively rights-stripping provisions. Paul D.

Carrington, Unconscionable Lawyers, 19 GA. ST. U. L. REV. 361 (2002) (noting

that some waivers included in contracts, while clearly unenforceable, nevertheless

deter people from bringing claims). Even if a court may ultimately refuse to

enforce such limitations, the person reading their contract may not know the

limitation on remedies would be unenforceable and would not necessarily bring the

issue to court in the first instance. Id.; see Rollins, Inc. v. Heller, 454 So.2d 580,

585 (Fla.App. 3 Dist., 1984) (holding “actual damages are recoverable in full for

the FDUTPA violation notwithstanding Rollins' attempt to limit its liability in the

contract.”). The arbitration clause in this case arguably contains such deceptive

limitations which may deter people from ever seeking to enforce their legal rights,

including requirements that they arbitrate in Miami-Dade County, even if they live

in another state. See Pl.-Appellant Op. Br. at 5. Thus, this case is distinguishable

16

from Fonte v. AT&T Wireless Services, Inc., 903 So.2d 1019 (Fla. 4th DCA 2005)

(upholding class action ban but striking limitation on remedies as violating public

policy).

2. Class Actions Overcome Impediments to Enforcement

While lack of information will prevent many people from ever seeking

redress individually, thereby frustrating the remedial and deterrence goals of the

FDUTPA, a class action may remove the impediment to enforcement posed by the

lack of information, and thus furthers the goals of the FDUTPA, as the legislature

intended. If even a single injured consumer has enough information to challenge an

illegal practice and pursue a remedy as a class action, protection and remedies will

flow even to those people who did not recognize the fraud or deception, did not

understand their rights, or did not have the wherewithal to pursue enforcement.

See Chrzanowski, 976 So.2d at 610-11 (citing Coady v. Cross Country Bank, 299

Wis. 2d 420, 452, 729 N.W.2d 732, 747 (Wis. Ct. App. 2007) (noting that without

the availability of class action mechanism where small-value claims are concerned,

“many consumers may never realize that they have been wronged” and the

deterrent effect on corporate wrongdoing provided by the prospect of class-wide

relief “is eviscerated.”)).

The class action directly overcomes the information impediment that

frustrates the public goal of deterrence. Id. First, without a class action remedy, a

17

business is tacitly permitted to retain ill-gotten gains unless each individual pursues

a remedy, thereby defeating both the remedial and deterrence goal of the FDUTPA.

See e.g., Discover Bank v. Superior Court, 36 Cal. 4th 148, 30 Cal. Rptr. 3d 76,

113 P.3d 1100 (2005) (holding class action ban unenforceable where credit card

company had allegedly carried out a deliberate scheme to cheat large numbers of

consumers out of small sums). Corporations do not have a profit incentive to cheat

if there is a reasonable chance they will be caught and forced to pay both

restitution and the price of enforcement. In fact, lack of enforcement puts

honorable businesses at a competitive disadvantage. “It is difficult for a company

to conform to high standards and practices if it has competitors who continue to

reap greater profits by pursuing less honorable tactics.” Sen. Rep. No. 93-151,

reprinted in 1974 U.S.C.C.A.N. 7702, 7709.

Second, a class action ban frustrates the FDUTPA because it permits a busi-

ness to comply with the law with respect to only those people who actually pursue

an individual remedy. See Sternlight and Jensen, supra, at 89. A business may

“buy off” an individual but not change its overall practices. Id. A class action, un-

like a series of individual actions, protects past, present, and future customers, even

those who are unaware of injuries from illegal practices. The Florida Legislature

intended that the consuming public would benefit from the enactment and vigorous

18

enforcement of the FDUTPA, and instructed courts to construe the statute liberally

to ensure the remedial goals would be met. § 501.202 Fla. Stat.2

Third, a class action serves as a wake-up call in the marketplace, thereby

furthering the deterrence goals of the FDUTPA indirectly. It demonstrates

publicly and in practical monetary terms that a business generally will not profit by

using illegal practices. According to the Federal Reserve Board in statements in

favor of providing a class action mechanism to provide a remedy for the Truth in

Lending Act in the face of strong corporate opposition, the threat of a class action

“elevates a possible [ ] lawsuit from the ineffective “nuisance” category to the type

of suit which has enough sting in it to assure that management will strive with

diligence to achieve compliance.” 119 Cong. Rec. 25415 (July 23, 1973). In

comparison, individual suits, especially if pursued in arbitration, typically provide

no reportable decision and may be subject to confidentiality agreements

specifically to prevent the public and competitors access to information about

either the practices or the remedies obtained. Sternlight and Jensen, supra at 89.

2 § 501.202 Fla. Stat. provides: “The provisions of this part shall be construed liberally to promote the following policies: (1) To simplify, clarify, and modernize the law governing consumer protection, unfair methods of competition, and unconscionable, deceptive, and unfair trade practices. (2) To protect the consuming public and legitimate business enterprises from those who engage in unfair methods of competition, or unconscionable, deceptive, or unfair acts or practices in the conduct of any trade or commerce. (3) To make state consumer protection and enforcement consistent with established policies of federal law relating to consumer protection.”

19

This secrecy further limits individual enforcement and violates public policy.

For example, while not controlling in this case, it is instructive that the Florida

Legislature enacted the Sunshine in Litigation Act to prevent secrecy in litigation

that may conceal defects or dangers that may harm the public. § 69.081(2) Fla. Stat.

A class claim may draw public attention to a particular problem, abuse, or

dangerous product defect which would not be apparent when viewed in isolation or

even through the lens of multiple individual lawsuits. See, e.g., Michael L. Rustad,

Smoke Signals From Private Attorneys General in Mega Social Policy Cases, 51

DEPAUL L. REV. 511, 518 (2001) (reporting that “[p]rivate attorneys general, not

government regulators, discovered that Firestone Tires mounted on Ford Explorers

caused hundreds of rollover accidents due to tread separation. . . . The NHTSA

[National Highway Traffic Safety Administration] based its recall of 6.5 million

tires on information provided by plaintiff’s counsel, rather than [by] in-house

government investigators”). By limiting the scope of the case in an individual

action in comparison to a class action, it is less likely such information would

become apparent.

IV. Class Actions Bans That Allow Corporations To “Self-deregulate” Undermine Laws Protecting People In The Marketplace

The stakes are much higher than might appear at first glance. Not only are

individual’s rights and remedies threatened because of the extra burden a class

action ban places on an individual, but ultimately, the integrity of the laws

20

protecting the marketplace is under attack as well. Banning class actions by

contract makes statutory enforcement less likely, effectively “de-regulating”

corporations. Paul D. Carrington, Self-Deregulation: A National Policy of the

Supreme Court, 2 NEV. L. REV. 259 (2002).

Scholars have warned that the growing reliance on contract provisions

prohibiting class arbitration carries great potential for abuse and overreaching. See,

e.g., 3 Alba Conte & Herbert B. Newberg, NEWBERG ON CLASS ACTIONS, § 9:67

n.2 (4th ed. 2008) (“The bar on class arbitration threatens the premise that

arbitration can be a fair and adequate mechanism for enforcing statutory rights.”);

Gilles, supra at 378 (arguing that “sound public policy requires collective litigation

be available for small-claim plaintiffs who would not have the incentive or

resources to remedy harms or deter wrongdoing in one-on-one proceedings”); J.

Maria Glover, Beyond Unconscionability: Class Action Waivers and Mandatory

Arbitration Agreements, 59 Vand. L. Rev. 1735, 1770 (2006) (urging non-

enforcement of class action waivers “where such waivers have the practical effect

of extinguishing individual claims”).

The potential for abuse and overreaching through contract provisions is

particularly troubling in relation to the many laws in place to prevent marketplace

21

abuses, such as the FDUTPA, which are designed primarily to be self-enforcing.3

That is, the person subjected to the prohibited practice is a primary enforcer of

compliance through private litigation. § 501.211 Fla. Stat.4

public enforcement resources are necessarily limited. Reflecting this reality – against the backdrop of class action availability – the Act created a private cause of action for consumers aggrieved by FDUTPA violations…. In enacting FDUTPA, the Legislature was necessarily aware of class actions’ role in deterring future FDUTPA violations by effectively redressing past violations

Under such laws the

private individual, rather than regulators or taxpayer-funded agencies, take a lead

in policing the marketplace. The court in Chrzanowski, found that

976 So.2d at 604, 610.

3 For example, the Senate Report accompanying adoption of the Fair Debt Collec-tions Practices Act (“FDCPA”) states that the "committee views this legislation as primarily self-enforcing; consumers who have been subject to collection abuses will be enforcing compliance." Senate Report No. 95-382, 95th Cong., 1st. Sess., p. 5, reprinted in 1977 U.S.C.C.A.N., 1695, 1699. Congress entrusts the protection of virtually all of our most important individual rights to private litigants. See, e.g., Civil Rights Act of 1964, 42 U.S.C. § 2000a-3 (2000). In addition to the Constitu-tional provisions protected by self-enforcing laws, “[t]here are also roughly two hundred statutory [provisions], which were generally enacted to encourage private litigation to implement public policy.” Henry Cohen, Congressional Research Service, Awards of Attorneys’ Fees by Federal Courts and Federal Agencies 63-112 (2006). 4 § 501.211 Fla. Stat. provides: (1) Without regard to any other remedy or relief to which a person is entitled, anyone aggrieved by a violation of this part may bring an action to obtain a declaratory judgment that an act or practice violates this part and to enjoin a person who has violated, is violating, or is otherwise likely to vi-olate this part.

22

The Supreme Court has recognized that “[t]he aggregation of individual

claims in the context of a classwide suit is an evolutionary response to the

existence of injuries unremedied by the regulatory action of government” resulting

in “increasing reliance on the ‘private attorney general’ for the vindication of legal

rights” via class actions. Deposit Guaranty Nat'l Bank v. Roper, 445 U.S. 326, 338-

339 (1980). Legislatures “could, of course, have provided public funds or

government attorneys for litigating …claims, but it chose to “limi[t] the growth of

the enforcement bureaucracy…by continuing to rely on the private bar and by

making defendants bear the full burden of paying for enforcement of

their …obligations.” Hensley v. Eckerhart, 461 U.S. 424, 445-446 (1983). State

attorneys general rely on private class actions “to correct the deceptive or unfair

industry practice and to reimburse consumers for their losses” Discover Bank, 161

P.3d at 1104 (holding class action ban in arbitration clause unenforceable). Under

the innovative American system of consumer protection, which eschews big

government and values the entrepreneurial spirit, “[t]he interests of the business

community and the public at large are best served by shifting the burden of the

expense of consumer fraud litigation onto the shoulders of those whose unfair or

fraudulent acts are responsible for the litigation in the first place." Gramatan Home

Investors Corp. v. Starling, 470 A.2d 1157, 1162 (1983); accord Bruntaeger v.

Zeller, 515 A.2d 123 (1986).

23

Class action bans undermine laws protecting people from marketplace

abuses because there simply is no comparable public enforcement mechanism to

fill their role. See Kristian, 446 F.3d at 61 (finding “[i]f the class mechanism

prohibition here is enforced, Comcast will be essentially shielded from private

consumer antitrust enforcement liability, even in cases where it has violated the

law” and “the social goals … will be frustrated because of the ‘enforcement gap’

created by the de facto liability shield.”).

Even if there were a comparable public enforcement mechanism, the Florida

legislature explicitly chose to provide enforcement by private litigation in addition

to public enforcement. “FDUTPA provides for public and private enforcement

alike.” Chrzanowski 976 So.2d at 609 (citing Kristian, 446 F.3d at 59, holding

that “[w]hen Congress enacts a statute that provides for both private and

administrative enforcement actions, Congress envisions a role for both types of

enforcement” and that “[w]eakening one of those enforcement mechanisms seems

inconsistent with the Congressional scheme”). An attempt to undermine or shift

the burden of enforcement onto a state funded agency through contract provisions

entered into by individuals clearly frustrates the explicit intent of the FDUTPA.

See Holt v. O’Brien Imports of Fort Myers, Inc., 862 So.2d 87, 89 (Fla. 2d DCA

2003) (individual cannot waive liability imposed by a statute enacted to protect

both the public and the individual; such contract provisions are contrary to public

24

policy); Rollins v. Heller, 454 So. 2d 580 (Fla. 3d DCA 1984) (holding

unenforceable arbitration clause that makes injunctive relief unavailable and limits

attorneys fees). “In general, corporate arguments that the attorney general may be

available to fill the enforcement gap have been rejected because it results in ‘do it

yourself’ law reform that needs no yea vote from elected lawmakers.” Jean R.

Sternlight, As Mandatory Binding Arbitration Meets the Class Action, Will the

Class Action Survive? Wm and Mary L. Rev. 1, 11 (2000).

In light of the importance of private litigation to police the marketplace,

courts have refused to aid in corporate efforts to force waiver of important

statutory and civil rights through contract clauses. "[A]n individual cannot waive

the protection of a statute that is designed to protect both the public and the

individual." Coastal Caisson Drill Co. v. Am. Cas. Co., 523 So.2d 791, 793 (Fla.

2d DCA 1988), approved, 542 So.2d 957 (Fla.1989). Moreover, few cash-

strapped governments are able to increase the size and funding of the attorney

general’s office to pursue such claims. As one court noted,

Although the Attorney General could challenge the early-termination fee on behalf of the consumers of Illinois, she must allocate scarce resources to a variety of issues affecting consumers. There is no guarantee that the Attorney General would find the particular claim raised by plaintiff to be a high priority. If we were to conclude that the mere possibility of governmental action were sufficient to overcome the substantive and procedural flaws in Cingular’s class action waiver, we would be denying plaintiff and other consumers any remedy for the allegedly illegal $150

25

penalty, at least until the Attorney General had the resources and the incentive to pursue the issue.

Kinkel v. Cingular Wireless LLC, 857 N.E.2d 250, 262 (Ill. 2006) (holding class

action ban in arbitration clause unenforceable).

Many other courts have similarly refused to enforce class action bans in

arbitration clauses which effectively insulate businesses from enforcement under

consumer protection statutes. See e.g., Homa v. American Express Co., 558 F.3d

225, 230-31 (3rd Cir. 2009) (emphasizing class action waiver unconscionable

based on “the fundamental public policy of New Jersey” that consumers be able to

pursue their statutory rights under the state’s consumer protection laws.”); Fiser v.

Dell Comp. Corp., 144 N.M. 464, 188 P.3d 1215, 1221 (2008) (enforcement of

class action ban “would be tantamount to allowing Defendant to unilaterally

exempt itself” from state consumer protection law); Woods v. QC Financial

Services, 280 S.W.3d 90, 97 & 98 (Mo. App. 2008) (payday lender’s class action

ban “reduces the possibility of attracting competent counsel” and, by

individualizing claims “absolutely and completely insulates and immunizes

Appellant from scrutiny and accountability for its business practices.”); Gentry v.

Superior Court, 64 Cal. Rptr. 3d 773, 788, 165 P.3d 556, 571 (Cal. 2007) (holding

that “class arbitration waivers cannot . . . be used to weaken or undermine the

private enforcement of overtime pay legislation by placing formidable practical

obstacles in the way of employees’ prosecution of those claims”); Vasquez-Lopez v.

26

Beneficial Oregon, 210 Or. App. 553, 572, 152 P.3d 940, 951 (Or. Ct. App. 2007)

(holding a class action ban unconscionable after finding that it gave the defendant

“a virtual license to commit, with impunity, millions of dollars’ worth of small-

scale fraud”); Cooper v. QC Financial Services, Inc., 503 F. Supp. 2d 1266, 1288

(D. Ariz. 2007) (noting that “[i]ndividualizing each claim absolutely and

completely insulates and immunizes Defendant from scrutiny and accountability

for its business practices and ‘also serves as a disincentive for [Defendant] . . . to

avoid the type of conduct that might lead to class action litigation in the first

place’”) (alterations in original) (citations omitted); Muhammad v. County Bank of

Rehoboth Beach, 912 A.2d 88, 99 & 101 (N.J. 2006) (class action ban

unenforceable because it effectively shielded payday lender from state statutory

consumer protections); McNulty v. H & R Block, 843 A.2d 1267, 1273-74

(Pa.Super.2004) (tax preparer’s ban on class arbitration required each individual to

pay $50 filing fee to resolve claim of $37; “When . . . clauses like this are used as a

sword to strike down access to justice instead of a shield against prohibitive costs,

we must defer to the overriding principle of access to justice.”); Luna v. Household

Fin. Corp., III, 236 F. Supp. 2d 1166, 1178-79 (W.D. Wash. 2002) (finding class

action ban “would prevent borrowers from effectively vindicating their rights for

certain categories of claims”); Eagle v. Fred Martin Motor Co., 157 Ohio App. 3d

150, 178, 809 N.E.2d 1161, 1183 (Ohio Ct. App. 2004) (noting that the elimination

27

of “a consumer’s right to proceed through a class action or as a private attorney

general in arbitration . . . directly hinders the consumer protection purposes” of the

Ohio Consumer Protection Act); West Virginia ex rel. Dunlap v. Berger, 567

S.E.2d 265 (W. Va. 2002) (finding “permitting [a ban on] class action relief would

go a long way toward allowing those who commit illegal activity to go unpunished,

undeterred, and unaccountable.”); Szetela, 118 Cal.Rptr.2d at 868 (holding class

action ban was “not only substantively unconscionable, it violates public policy by

granting ... [the defendant] a ‘get out of jail free’ card while compromising

important consumer rights.”).

Conclusion

This Court should reverse the lower court’s decision and rule that the class

action ban in the Carnival Cruise Line arbitration clause is unenforceable because

it limits enforcement of and therefore it frustrates the goals of the FDUTPA, or

certify the issues presented to the Florida Supreme Court for a determination of

Florida law, consistent with Pendergast v. Sprint Nextel Corp., 2010 WL 6745

(11th Cir. January 4, 2010) (certifying arbitration questions to FL Supreme Court).

28

Respectfully Submitted: _________\s\________________ Julie Nepveu DC Bar No. 458305

AARP Foundation Litigation 601 E Street, N.W.

Washington DC 20049 (Tel) 202-434-2060 (Fax) 202-434-6424 jnepveu@aarp.org

On the Brief:

Michael Schuster AARP 601 E Street, N.W.

Washington DC 20049 (Tel) 202-434-2060 (Fax) 202-434-6424

29

CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitations of Fed. R. App. P. 29(d) and Fed. R. App. P. 32(a)(7)(B). The brief contains (6167) words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a) & (B)(iii). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(6). It has been prepared in a 14-point proportionally spaced typeface using Microsoft Word. ________\s\______________ Julie Nepveu

30

CERTIFICATE OF SERVICE

I hereby certify that, on this 9th day of February, 2010, pursuant to 11th Cir. R. 31-3, an original and six (6) copies of the foregoing Brief Amicus Curiae of AARP in Support of Appellants Seeking Certification were served via First Class Postage prepaid U.S. mail on the Clerk of the Court, United States Court of Appeals for the Eleventh Circuit, 56 Forsyth Street, Northwest, Atlanta, GA 30303. I also hereby certify that, pursuant to 11th Cir. R. 27 and Fed. R. App. P. 25, one (1) copy of the foregoing Brief Amicus Curiae of AARP in Support of Appellants Seeking Cer-tification were served via First Class Postage prepaid U.S. mail to: BARBARA GREEN Co-Counsel for Plaintiffs Barbara Green, P.A. 300 Sevilla Avenue, Suite 209 Coral Gables, FL 33134 DAVID B. MISHAEL Co-Counsel for Plaintiffs David Mishael, P.A. 8603 S. Dixie Hwy., Suite 315 Miami, FL 33143 Curtis M. Mase, Esq. Thomas D. Briggs, Esq. Valentina M. Tejera, Esq. Mase Lara & Eversole, P.A. 80 Southwest 8th Street, Suite 2700 Miami, FL 33130.

SUSAN S. LERNER Co-Counsel for Plaintiffs Josephs Jack Post Office Box 330519 Miami, FL 33133 D. MICHAEL CAMPBELL Campbell Law 523 East Central Avenue Winter Haven, FL 33880

Dated this 9th day of February, 2010.

________\s\______________ Julie Nepveu