In Scott v. Cingular Wireless, the Washington State Supreme Court joined a growing number of state and federal courts around the country striking down class action bans that would effectively prevent consumers from holding corporations accountable for wrongdoing. 
 
The court held – as Public Justice had argued – that the class action ban embedded in the arbitration clause in Cingular’s consumer contract is “unconscionable” under state law because it forces customers to arbitrate their small claims one-by-one, thus depriving them of the class action option, the only effective means of vindicating their rights. 

Public Justice also argued that federal law does not preempt state laws precluding companies from barring class actions in contract provisions. The court agreed, recognizing that federal law “favors arbitration, not exculpation.”
 
“This decision is likely to have a significant influence on the way other courts think about this issue,” said Paul Bland of Public Justice, who argued the appeal. “A number of courts around the country are wrestling with this issue right now, and the Washington Supreme Court’s opinion is so thoughtful and well-reasoned that it is likely to persuade many other courts to also protect consumer rights.”
The court recognized that class actions are necessary to “strongly deter future similar wrongful conduct, which benefits the community as a whole,” and concluded that, if enforced, Cingular’s class action ban would effectively neuter the Washington’s Consumer Protection Act.

“This decision sends a strong message to corporations that they can’t draft contracts that place them above the law,” said Public Justice’s Brayton-Baron Attorney Leslie Bailey, the primary author of the briefs in the Scott appeal. “The court recognized that Cingular was trying to prevent its customers from bringing the only type of case that could stop it from cheating lots of customers out of small sums of money: a class action.”

Although Cingular embedded its class action ban in a contract provision requiring mandatory arbitration, the company drafted the arbitration clause so that it is void if the class action ban is unenforceable. The high court’s decision invalidating the class action ban – and thus the arbitration clause – means that the plaintiffs’ claims can now go forward in court. 

The case arose when Cingular allegedly charged roaming and long distance fees despite its promise to provide those services for free. When its customers sued in state court in 2004, Cingular tried to force them to arbitrate their claims individually. The trial court ruled in Cingular’s favor and the appellate court declined to hear the consumers’ appeal, but the state Supreme Court granted discretionary review. The Washington Attorney General, the Washington State Trial Lawyers’ Association, the National Association of Consumer Advocates, and AARP filed amicus curiae briefs in support of the plaintiffs.    

In addition to Bland and Bailey, the plaintiffs’ legal team in Scott includes Seattle attorneys Douglas S. Dunham and Stephen J. Crane of Crane Dunham, and Steven Rosen of the Law Offices of Steve Rosen.  The case was pursued as part of Public Justice’s Access to Justice Campaign and Class Action Preservation Project.