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In re Jamster Marketing Litigation

November 10, 2008

IN RE: JAMSTER MARKETING LITIGATION,


The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge

MDL No. 1751

ORDER GRANTING T-MOBILE

This document relates to all cases.

USA, INC.'S MOTION TO COMPEL ARBITRATION (DOCKET No. 244); DISMISSING PLAINTIFFS HALL, CHUNN, GILES, AND HARMON AS PARTIES

Defendant T-Mobile USA, Inc. ("T-Mobile") moves to compel arbitration of the claims of plaintiffs Christina Hall ("Hall"), Randy Chunn ("Chunn"), Sandra Giles ("Giles"), and Baron Harmon ("Harmon"). Plaintiffs Hall, Chunn, and Giles oppose the motion. Plaintiff Harmon filed a Notice of Joinder (Docket No. 274) in the other plaintiffs' opposition. Defendants VeriSign, Inc. and Jamster LLC joined in TMobile's motion to compel arbitration. For the reasons set forth below, the motion to compel arbitration is granted and the court dismisses Hall, Chunn, Giles, and Harmon as parties to this action.

BACKGROUND

The Coordinated Consolidated Complaint ("CCA"), filed on July 1, 2008, alleges claims by several new plaintiffs including claims by plaintiffs Hall, a resident of Maryland, (CCA ¶18), Chunn, a resident of Mississippi, (CCA ¶14), Giles, a resident of Illinois, (CCA ¶16), and Harmon, a resident of Illinois. (CCA ¶24). Each plaintiff is a customer of T-Mobile. Very broadly, these plaintiffs allege, in essence, that they or their children responded to advertisements of Jamster/VeriSign in 2004 and 2005 and thereafter wrongfully received charges on their T-Mobile bills for mobile content. (CCA ¶¶100-103).

The present motion concerns an arbitration provision contained in the service agreements executed by these plaintiffs. More specifically, the arbitration provision contains a class action waiver provision which provides, in large face bold type:

CLASS ACTION WAIVER. WHETHER IN COURT, SMALL CLAIMS COURT, OR ARBITRATION YOU AND WE MAY ONLY BRING CLAIMS AGAINST EACH OTHER IN AN INDIVIDUAL CAPACITY AND NOT AS A CLASS REPRESENTATIVE OR A CLASS MEMBER IN A CLASS OR REPRESENTATIVE ACTION. (Baca Decl. Exh. 2, p.32, ¶2).

The arbitration provision also provides that T-Mobile will pay all fees and expenses of arbitration for claims under $25, and for claims between $25 and $1,000, subscribers pay only a $25 initial filing fee, and even that fee can be waived under the applicable rules. Arbitration may also be conducted on written submissions only or in a telephonic hearing. See AAA Supplementary Procedures for Consumer-Relat ed Disputes, available at http://www.adr.org.sp.asp?id=22014#C6. All arbitrations are to be conducted by the American Arbitration Association, pursuant to its rules, including the Supplementary Procedures for Consumer-Related Disputes. See www.adr.org/sp.asp?id=28752. The arbitration provision also contains a choice of law provision which provides that any dispute is governed by the Federal Arbitration Act and the "laws of the state in which your billing address in our records is located. (Baca Decl. Exh. 2, p. 39, ¶23).

DISCUSSION

The Federal Arbitration Act

The Federal Arbitration Act ("FAA") provides that a written provision in . . . a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising . . . shall be valid, irrevocable and enforceable, save upon such grounds as exist at law or equity for the revocation of any contract.

9 U.S.C. §2. The FAA establishes federal policy favoring arbitration of disputes. Federal courts are required to "rigorously" enforce the parties agreement to arbitrate. Sherson/American Express, Inc. v. McMahon, 482 U.S. 220 (1987). Indeed, "any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language or an allegation of waiver, delay, or a like defense to arbitrability." Moses H. Cone Memorial Hosp. v. Mercury Const. Corp., 460 U.S. 1, 24 (1983).

[W]here a contract contains an arbitration clause, there is a presumption of arbitrability in a sense that [a]n order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that ...


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