District Court (Cal.) Orders TCPA Claim to Arbitration; Says Arbitration Just Fine to Vindicate Consumer’s TCPA Rights

In Knutson v. Sirius XM Radio Inc., 2012 WL 1965337 (S.D.Cal. 2012), Judge Battaglia ordered a TCPA claim to arbitration, notwithstanding the consumer’s argument that arbitration would not afford him the ability to vindicate his TCPA rights as he would like. Judge Battaglia rejected the claim and ordered the matter to arbitration.

Plaintiff asserts that if he is ordered to arbitration, he will not be able to vindicate his statutory rights under the TCPA because he cannot afford to pay attorneys’ fees to arbitrate his claims. Pl.’s Opp’n at 15. Plaintiff argues that the Supreme Court has required arbitration of statutory rights only if a prospective litigant “effectively may vindicate” those rights in the arbitral forum. See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 28 (1991) (quoting Mitsubishi Motors Corp. v. Soler Chrysler–Plymouth, Inc., 473 U.S. 614, 637 (1985)). Plaintiff cites In re American Express Merchants’ Litigation, 634 F.3d 187 (2nd Cir.2011) and Kristian v. Comcast Corp., 446 F.3d 25 (1st Cir.2006) as being in tension with AT & T Mobility. Plaintiff suggests that AT & T Mobility ‘s vindication of rights analysis is based upon state law unconscionability, and thus permits state law to in-validate class-action waivers when such waivers pre-clude effective vindication of statutory rights. Pl.’s Opp’n at 17. ¶ However, the Ninth Circuit recently rejected a similar argument in Coneff v. AT & T Corp., in which the plaintiff argued that the claims alleging violations of state consumer protection laws and the Federal Communications Act could not be vindicated effec-tively because they were “worth much less than the cost of litigating them .” Coneff v. AT & T Corp., 673 F.3d 1155, 1159 (9th Cir.2012). The Ninth Circuit found that the arbitration agreement had “a number of fee-shifting and otherwise pro-consumer provisions,” which are also present in Defendant’s Customer Agreement.FN1 See id. Furthermore, the Ninth Circuit stated that the concern that customers would have “insufficient incentive to vindicate their rights … is a primary policy rationale for class actions” and as the Supreme Court stated in AT & T Mobility, “such unrelated policy concerns cannot undermine the FAA.” Id. (citing AT & T Mobility, 131 S.Ct. at 1753).