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Early Termination Fee Class Action
December 12, 2011
As described in the prior entries, since we filed the class action lawsuit challenging Qwest's imposition of early termination fees against persons whose high speed internet service is terminated, Qwest has been arguing that the arbitration provision contained in its Subscriber Agreement bars any subscriber from bringing a class action lawsuit in court. If it prevails in this argument, consumers' only choices would be to proceed in an individual arbitration against Qwest, to file a small claims court action, or not to bring any type of legal challenge to the ETF.
Chief Judge Daniel, to whom the case was assigned, postponed any ruling on Qwest's motion to compel arbitration until after the Supreme Court could rule on a case called AT&T Mobility v. Concepcion. That ruling was issued in April 2011. The Supreme Court held that federal law preempted application of California's law to invalidate ATTM's arbitration and class action waiver provision. Since then, numerous courts throughout the country have followed that decision in holding that the arbitration and class action waiver provisions of other companies could not be invalidated under the laws of other states.
Not surprisingly, in May Qwest renewed its motion to compel arbitration and dismiss the class action in this case. We, of course, opposed the motion. Click here to read the briefs on the website. As you will see, despite the decision in AT&T Mobility v. Concepcion, we believe that Qwest's provision was so outrageous that a court should invalidate it.
Before the motion could be heard, the case was reassigned from Chief Judge Daniel to Judge R. Brooke Jackson, a newly appointed judge. Judge Jackson decided that Magistrate Judge Shaffer would issue the initial decision on the validity of the arbitration and class action waiver provision. We argued before Magistrate Shaffer on October 7, 2011. He has not yet issued a decision. We will update the website after we receive a ruling.
October 27, 2010
Earlier this week, Qwest filed an opposition to our motion for reconsideration of the Court’s order staying proceedings in this case. It continues to want this case put on hold until after the United States Supreme Court decides a case currently before it. We intend to file a reply brief shortly responding to Qwest’s arguments.
September 30, 2010
Judge Daniels yesterday issued an Order granting Qwest’s motion to stay (postpone) consideration of its motion to compel arbitration. In its motion to stay, Qwest argued that the Supreme Court has accepted review of a case that supposedly addresses whether a state law can be used to invalidate an arbitration provision that contains a class action waiver. Judge Daniels ruled before our response was due. However, this morning, in the parallel case dealing with Qwest’s “Price for Life” guarantee, Judge Miller issued an Order denying the motion to stay and denying Qwest’s underlying motion to compel arbitration. Accordingly, we have filed a motion for reconsideration of Judge Daniels’ Order granting Qwest’s motion for stay. Judge Daniels has not yet ruled on our motion for reconsideration.
March 3, 2010
At the end of a document on Qwest's website to which customers supposedly agree as a condition of service, called a Subscriber Agreement, Qwest has buried a provision that purports to deny customers the right to file a class action lawsuit or to bring even an individual suit like this one in court. Qwest moved several months ago to dismiss this lawsuit on the basis that it violates that provision. Plaintiffs filed their opposition to that motion on February 19. Qwest has until March 26, 2010 to file a reply. Proceedings in the case may stop until the Court decides the motion.
December 7, 2009
The parties are engaged in discovery over whether the claim in this case may be prosecuted as a class action in court or whether each customer must arbitrate his or her claim separately. If you are interested in helping us with this issue, click here.
July 16, 2009
Judge Thomas S. Zilly Granted in Part and Denied in Part Defendants' Motion to Dismiss, and Granted Defendant's Motion to Transfer, ordering the case to be transferred to the District of Colorado. Click here to view the Order.
"Price for Life" Class Action
December 12, 2011
As described in the prior entries, since we filed the class action lawsuit challenging Qwest's breach of its price-for-life guarantee, Qwest has been arguing that the arbitration provision contained in its Subscriber Agreement bars any subscriber from bringing a class action lawsuit in court. If it prevails in this argument, consumers' only choices would be to proceed in an individual arbitration against Qwest, to file a small claims court action, or not to bring any type of legal challenge to an increase in the guaranteed price.
Senior Judge Miller, to whom the case was assigned, scheduled a trial concerning our challenge to the validity of the Subscriber Agreement. Before the trial could occur, however, he retired. The case has been reassigned to Judge Christine Arguello. She has not yet scheduled a trial in the case.
In the meantime, the Supreme Court issued a ruling in April 2011 in a case called AT&T Mobility v. Concepcion. The Supreme Court held that federal law preempted application of California's law to invalidate ATTM's arbitration and class action waiver provision. Since then, numerous courts throughout the country have followed that decision in holding that the arbitration and class action waiver provisions of other companies could not be invalidated under the laws of other states.
Although this case is on hold, in May Qwest renewed its motion to compel arbitration and dismiss the companion class action case challenging the validity of Qwest's imposition of early termination fees based on the ruling in the ATTM case. We, of course, opposed the motion. Click here to read the briefs in that case. As you will see, despite the decision in AT&T Mobility v. Concepcion, we believe that Qwest's provision was so outrageous that a court should invalidate it.
A hearing was held on Qwest's motion in that case before Magistrate Judge Shaffer on October 7, 2011. He has not yet issued a decision. We will update the website after we receive a ruling.
September 30, 2010
Judge Miller today issued an Order denying Qwest’s motion to compel arbitration and its motion to stay consideration of that motion. He rejected some of Qwest’s arguments to compel arbitration outright and concluded that several factual disputes had to be presented at a trial before he could decide whether plaintiff’s claim that Qwest broke its Price for Life guarantee should be resolved by the Court, as we argue, or by an arbitrator, as Qwest argues. A trial has not yet been scheduled.
The dispute over whether this case should be decided by an arbitrator or the Court is really a misnomer. The real issue is whether the case can proceed as a class action. Qwest’s Subscriber Agreement states that customers cannot bring a class action lawsuit. An arbitrator probably would do as the Subscriber Agreement states and deny customers the ability to proceed as a class action. If the Court rules the arbitration provision invalid, however, the Court also almost certainly will rule the class action waiver to be invalid. The claims of each plaintiff and customer in these cases are too small to be brought individually; thus, enforcement of the arbitration provision will probably mean dismissal of the claims. Conversely, invalidation of the arbitration provision will mean that we will have an opportunity to bring the claims as a class action lawsuit.
March 3, 2010
At the end of a document on Qwest's website to which customers supposedly agree as a condition of service, called a Subscriber Agreement, Qwest has buried a provision that purports to deny customers the right to file a class action lawsuit or to bring even an individual suit like this one in court. Qwest moved about two months ago to dismiss this lawsuit on the basis that it violates that provision. Plaintiff filed his opposition to that motion on February 8. Qwest has until March 11, 2010 to file a reply. Proceedings in the case may stop until the Court decides the motion.
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