Antitrust Law Daily Wrap Up, CONSUMER PROTECTION—DAriz: Cell Phone Purchaser Required to Arbitrate Claims, (Jan 8, 2013)
Organizations Mentioned:Cricket Communications, Inc. | Snell & Wilmer, LLP
By Jody Coultas, J.D.
A cell phone purchaser could not state consumer protection and fraud claims against cell phone retailer Cricket Communications Inc. as the claims were precluded by an arbitration clause included in the purchaser agreement, according to the federal district court in Tucson (Shupe v. Cricket Communications Inc., January 4, 2012, Jorgenson, C.).
After purchasing a cell phone from Cricket and registering the number with the national do-not-call list, Cricket began to text message the cell phone. Although the purchaser sent a letter demanding Cricket to immediately stop sending the messages, Cricket sent messages for a few months. Cricket then allegedly terminated the purchaser’s phone service without legal reason or notice. The purchaser alleged that Cricket violated the Telephone Consumer Protection Act (“TCPA”) and filed claims for fraud, invasion of privacy, retaliation, fraud in the inducement, and harassment.
Because the arbitration agreement was valid and enforceable, the court dismissed the claims. Arbitration clauses that are either procedurally or substantively unconscionable are unenforceable. Although the sales contract was one of adhesion, that alone did not render the terms unconscionable. The purchaser was provided with the agreement and was given the opportunity to reject the arbitration clause. Therefore, it was reasonable for both parties to expect disputes to be arbitrated.
The purchaser’s argument that advertisements stating that there were “no contracts” overruled the arbitration clause was rejected by the court. The purchaser failed to provide any specifics regarding when she heard/saw advertisements or reliance on provisions of the advertisements. Also, there was no argument as to why any reliance on the advertisements should carry more weight than the purchase agreement.
The court granted the purchaser’s motion to remove the fraud in factum claim, include additional allegations in the fraud in the inducement claim, and file a request for attorney fees and costs.
The case is No. CIV 12-634-TUC-CKJ.
Maria L. Shupe, pro se. Andrew Martin Jacobs (Snell & Wilmer LLP) for Cricket Communications Inc.
Cases: ConsumerProtection ArizonaNews