Washington State Trial Law & Litigation Lawyer & Attorney : Robert M. Boggs : Seattle, Spokane, Tacoma, Yakima, Vancouver

In a 6-3 opinion in the case of Scott v. Cingular Wireless Corporation (no cite yet) the Washington State Supreme Court held last week that a waiver of class actions contained in a consumer contract was unconscionable and unenforceable. The plaintiffs sought to bring a class action alleging that Cingular had overcharged consumers between $1 and $40 for roaming and hidden charges. The waiver appeared in a paragraph that mandated binding arbitration and provided that Cingular would pay the cost of the arbitration unless it was frivolous and pay the consumer’s attorney fees if the consumer recovered at least the demand amount. It then went on to say that “You and Cingular agree that You and Cingular may bring claims against the other only in your or its individual capacity, and not as a plaintiff or class member in any purported class …”

The court found that the waiver was unconscionable based on public policy grounds. The court stated that since 1971 the State’s Consumer Protection Act has encouraged consumers to be quasi-civilian attorneys general by allowing them to privately enforce the provisions of the Consumer Protection Act. They further stated that the courts have favored class actions as the only way that consumers can take action against an offending company when individual claims are so small that they are not worth bringing. By waiving class actions the contract in effect prohibits anyone from bringing an action against Cingular and thereby defeats the intent of the State’s Consumer Protection Act.

But wait a minute said the dissent. The contract provided that Cingular, if the plaintiff recovered at least the demand amount, would pay the plaintiff’s attorney fees and costs. Therefore even though the amount sought is small the plaintiff is able to bring the suit because of this fee provision. But, said the majority, the plaintiff would have to collect every dollar of its demand. If the demand was for $100 and the recovery was for $99 no attorney fees would be paid and therefore it would all be too risky for the plaintiff/consumer.

The dissent predicted that this case was a sweeping rule that would invalidate all such clauses without regard to the specific terms of the contracts. I do not think so. If Cingular would change this paragraph to the effect that it would pay all attorney fees no matter what, then, if the majority means what they say, the paragraph should pass muster.

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Are your personal injury cases drying up? Do you settle your personal injury cases for less because the insurance companies have done a good job tainting jurors? Then try business litigation. The cover storey in the June issue of Trial suggested that there are many plaintiff opportunities in the business world to fight for the little guy.

I was reminded of this when I saw this article recently - a real David v. Goliath case complete with visuals of the Biblical characters. A bag boy, Jonathon Johnson, had worked his way up in a grocery chain to management. In addition he created four of his own stores in the inner city of Richmond which provided quality food at lesser prices and provided many services for the inner city residents.

Then he bought 51% of one of the stores from Rich Foods, the chain where he originally rose to management. Unfortunately another entity known as SuperValu bought ought Rich Foods and he found himself having to deal with them.  They were not nice people. According to a whistleblower that worked for SuperValu they had a plan to run him out of business and replace his four inner city stores with their stores, Sav-a-Lot. They were successful.

But not so fast. In comes attorney Verbena Askew and sues on behalf of Mr. Johnson. The jury returns a verdit of $500,000 for intentional infliction of emotional distress and $15.5 million for negligent infliction of emotional distress for a total of $16 million.

I wonder how many times this kind of stuff happens every day which means I think this is an untapped area of the law. It would also seem to present challenges for trial attorneys to simplify the evidence and come up with creative ways communicate their story to the jurors - in other words a trial attorney’s dream come true.

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In the July issue of Litigation News published by the Section of Litigation of the American Bar Association there appeared a short article on "reasonable doubt".  In the article they quote Paul Mark Sandler of Baltimore on an effective way to describe reasonable doubt in a closing argument.  The quote reads as follows:

"Let's assume we have a box, and in that box are a cat and a mouse.  We put the lid on the box; we walk away.  When we come back the mouse is gone.  Is there any reasonable doubt on what happened to that mouse?  But what if when we come back, we open the box and, lo and behold, there's a big hole in the side of the box.  Is there now reasonable doubt of what happened to that mouse?  Sure there is.  Well, let's turn to the holes in the prosecution's case . . . "

Great one for criminal lawyers.  I am still looking for one to describe "preponderance of the evidence" that is so compelling.

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