Originally from:

Journal of American Arbitration (JAA) - Vol. 2, No. 1

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ARTICLES

The Black Sheep of the Federal Circuit Courts: The United
States Court of Appeals for the Ninth Circuit Decision in Ting
v. AT&T Signals a Win for Consumers
By Jacqueline Angela Simms

I. OVERVIEW
A California residential long distance customer, Darcy Ting, and a
consumer advocacy group, Consumer Action, brought suit against
AT&T, claiming that AT&T’s Consumer Services Agreement (CSA)
violated California’s Consumer Legal Remedies Act (CLRA) and
California’s Unfair Practices Act (UPA) by barring customers from
bringing claims against AT&T as a class. Pursuant to the Federal
Communication Commission’s detariffing order, AT&T executed a new
contract, the CSA, with its existing customers. The CSA included
several provisions that limited the rights and remedies available to
customers in the event of a disagreement, collectively known as the Legal
Remedies Provisions. The Legal Remedies Provisions limited AT&T’s
liability in claims for other than negligence and precluded liability for
punitive, reliance, special, and consequential damages under section 4,
and required binding arbitration and banned all class actions under
section 7(a). Upon mailing the contract to its customers, AT&T’s letter
stipulated that the CSA would be accepted by the customers upon
performance or upon continued use of the AT&T service. The plaintiffs
brought a state-court class action against AT&T for declaratory and
injunctive relief in the United States District Court for the Northern
District of California. Ting v. AT&T, 182 F. Supp. 2d 902 (N.D. Cal.
2002). The district court held that the Legal Remedies Provisions
violated California’s public policy and unconscionability laws and that