Verizon Arbitration Contract ‘Unenforceable,’ Say 27 'Bait and Switch' Plaintiffs
Verizon is trying to pull the wool over the court’s eyes about the arbitration clause in its customer service agreement when it seeks to compel the dispute of 27 California consumers to arbitration, said the consumers’ opposition brief Friday (docket 3:23-cv-01138) in U.S. District Court for New Jersey in Trenton. Repeated court rulings have attested to “the gross unconscionability and unenforceability” of Verizon’s arbitration provisions, it said.
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The 27 consumers allege Verizon engaged in a “bait and switch” scheme in which its advertising promised them a lower price for wireless services before they signed up, but then they were assessed an additional and previously undisclosed “administrative charge” on their monthly bills. The consumers further claim Verizon lied to them by calling the fee a surcharge to reimburse Verizon for the costs of government charges billed to Verizon, when in fact the fee isn’t “in any way related to any government fee or charge.”
Every court that has ruled on the enforceability of the Verizon arbitration clause has said the agreement doesn’t “clearly delegate arbitrability issues to the arbitrator,” said the plaintiffs’ brief. Courts also said Verizon’s arbitration agreement “contains a ‘daisy chain’ of provisions which are so unconscionable and contrary to public policy that their cumulative effect renders the entire arbitration clause unenforceable as a matter of contract law,” it said.
Verizon appears to believe its only hope of winning a motion to compel arbitration is to “distance itself” from the version of the Verizon agreement “that was struck down as unconscionable in its entirety” by both the New Jersey Appellate Division in Achey v. Cellco Partnership and the Northern District of California court in MacClelland v. Cellco, said the plaintiffs’ brief. Because of this, Verizon seeks to convince this court that two later amended versions of that agreement should apply to the claims of all the plaintiffs in the case at bar, it said. Verizon’s arguments about what version of the Verizon agreement applies to plaintiffs’ claims here “are without merit,” it said.
Verizon hasn’t met its “onerous burden of overcoming the federal presumption in favor of the court deciding all issues of abitrability,” said the brief. The party seeking to overcome the presumption in favor of the court deciding all issues of arbitrability “must show there is express language” in the contract that clearly and unmistakably delegates arbitrability issues to an arbitrator, it said.