Vernon v. Qwest Communications International, Inc.

925 F. Supp. 2d 1185 (2013)

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Nature of the Case

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Facts

P's signed up for Qwest's (D) 'Price for Life' program which was a minimum two-year contract under which subscribers were guaranteed a discounted rate for as long as they maintained their service without change. Those who terminated early were charged a $200 early cancellation fee. A Subscriber Agreement governed the relationship and required that any dispute or claim arising out of or relating to the services provided must be resolved in arbitration or small claims court. The agreement also waived the right to pursue any claims on a class or consolidate basis or in a representative capacity. Phone customers were told of the agreement and given a web location as well as a cancel within 30 days without any termination charge. Internet customers had to click a box to confirm they agreed to the conditions. Still later at checkout, they were told again of the agreement and that it expressly included arbitration and limits on liability. On the installation disc that was delivered still yet another window appeared informing them of the Agreement location and that major terms included arbitration and limits on liability. The user was also warned that if they click the “I accept button” they would agree to the terms and that they understood them. After subscribing, they got a welcome letter again detailing the location of the agreement and that if they did not agree they can cancel within 30 days but if they continue in usage of the service that constituted acceptance. It also detailed that the Agreement was changed from time to time, but after notice, continued usage constituted acceptance of the changes. Ps terminated and were charged the $200 cancellation fee and brought a class action against D. The court certified the class over D’s objections about arbitration. After a Supreme Court case, (AT&T Mobility v. Conception) D filed a renewed motion to compel arbitration. The Magistrate granted the motion and Ps objected and motioned for reconsideration. The motion boils down to two issues: first, whether the plaintiffs agreed to arbitrate their disputes; and second, even if they did agree, whether the arbitration agreement is enforceable.