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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 [email protected]
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 [email protected]
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