Cruz v. Cingular Wireless, LLC

PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUG 11, 2011
No. 08-16080 JOHN LEY
CLERK
________________________

D.C. Docket No. 07-00714-CV-FTM-29-DNF

LOURDES CRUZ,
PAUL FLAHERTY, JR., and
CURTIS SMITH,
on behalf of themselves and all others
similarly situated,

Plaintiffs-Appellants,

versus

CINGULAR WIRELESS, LLC,
a foreign corporation now known
as AT&T Mobility, LLC,

Defendant-Appellee.

________________________

Appeal from the United States District Court
for the Middle District of Florida
_________________________

(August 11, 2011)

Before MARCUS, FAY and ANDERSON, Circuit Judges.
MARCUS, Circuit Judge:

The Plaintiffs in this case are customers of Defendant AT&T Mobility, LLC

(“ATTM”),1 a cellular phone company. Each signed a contract with ATTM,

agreeing that any disputes between themselves and ATTM would be resolved

through binding arbitration on an individual, rather than classwide, basis. In spite

of this contractual “class action waiver,” the Plaintiffs sought to pursue their

consumer fraud claims against ATTM in federal court as representatives of a

putative class of similarly situated ATTM customers. When ATTM moved to

dismiss the complaint and compel arbitration in accordance with the terms of the

contracts, the Plaintiffs argued that the contractual class action waiver was

unenforceable, because it effectively immunized ATTM from liability for its

wrongdoing, in violation of Florida public policy.

The district court granted ATTM’s motion to dismiss the complaint and

compel arbitration, holding that Florida public policy did not create a blanket

prohibition on class action waivers, and that under the particular facts of the case,

the arbitration provision was enforceable in full, where the arbitral forum preserved

all statutory remedies, the provision did not limit the consumers’ right to recoup

attorneys’ fees, ATTM agreed to pay all costs of arbitration, and no confidentiality

1
ATTM was formerly known as Cingular Wireless. Cingular Wireless was acquired by
AT&T Inc. in 2006, and renamed AT&T Mobility, LLM in January 2007. [Dkt. 37, ¶ 4.]

2
agreement prevented the Plaintiffs from notifying other ATTM customers of their

potential claims. This timely appeal ensued.

After this Court heard oral argument in this case,2 the Supreme Court

rendered a decision in AT&T Mobility LLC v. Concepcion, 563 U.S. --, 131 S. Ct.

1740 (2011), holding that a state law which “classif[ied] most collective-arbitration

waivers in consumer contracts as unconscionable,” and thus unenforceable, was

preempted by the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1, et seq.

Concepcion, 131 S. Ct. at 1746, 1753. We subsequently requested supplemental

briefing from the parties regarding the effect of Concepcion on this case. After

careful consideration, we now hold that, in light of Concepcion, the class action

waiver in the Plaintiffs’ arbitration agreements is enforceable under the FAA.

Insofar as Florida law would invalidate these agreements as contrary to public

policy (a question we need not decide), such a state law would “stand[] as an

obstacle to the accomplishment and execution” of the FAA, id. at 1753 (quotation

omitted), and thus be preempted. Accordingly, we affirm the district court’s order

dismissing the Plaintiffs’ claims and compelling arbitration.

I.

2
We temporarily deferred our resolution of this appeal to await the Florida Supreme
Court’s answers to a series of questions certified to that court in a related case, Pendergast v.
Sprint Nextel Corp., 592 F.3d 1119 (11th Cir. 2010).

3
 Consumers wishing to obtain cellular telephone service from ATTM must

agree to a Wireless Service Agreement (“WSA”),3 which sets forth or incorporates

by reference certain standardized “Terms of Service.” [Dkt. 37, ¶ 6.] The Terms of

Service contain a mandatory arbitration agreement, providing that the customer

(“you”) and ATTM “agree to arbitrate all disputes and claims between us.” [Dkt.

37-15, at 2.] The arbitration agreement further includes a restriction on class

actions, as follows:

YOU AND [ATTM] AGREE THAT EACH 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 OR REPRESENTATIVE
PROCEEDING. Further, unless both you and [ATTM] agree
otherwise, the arbitrator may not consolidate more than one person’s
claims, and may not otherwise preside over any form of a
representative or class proceeding.

[Dkt. 37-15, at 6.]4 A so-called blow-up clause provides that if the class action

waiver “is found to be unenforceable, then the entirety of this arbitration provision

3
Customers either physically sign their WSA at a store, or else execute an electronic
signature by calling a toll-free phone number. [Dkt. 37, ¶ 10.] ATTM will not activate service
until the customer has signed the WSA, either physically or electronically. [Id.]
4
This is the wording of ATTM’s current arbitration provision, as revised in December
2006. Pursuant to the “change-in-terms” provision contained in all WSAs, which authorizes
ATTM to make unilateral amendments to the Terms of Service, this revised arbitration provision
became effective on all then-existing ATTM subscribers upon notice of the change in December
2006. [Dkt. 37, ¶ 27.] All new WSAs executed since March 2007 also contain this provision.
[Id.] Even before the December 2006 revision, all ATTM service agreements included
mandatory arbitration provisions with substantially identical class action waivers. Appellant Br.
at 6 n.4.

4
shall be null and void.” [Id.]

Notwithstanding the mandatory arbitration provision in their WSAs, the

Plaintiffs filed an Amended Class Action Complaint against ATTM in the United

States District Court for the Middle District of Florida. [Compl., Dkt. 5.] The

Plaintiffs alleged that ATTM violated the Florida Deceptive and Unfair Trade

Practices Act (“FDUTPA”),5 Fla. Stat. § 501.201, et seq., by charging them $2.99 a

month for a “Roadside Assistance Plan” (“RAP”) that they never ordered. [Compl.

¶¶ 1, 32-33.] The RAP purports to provide customers with towing services, dead-

battery jump starts, flat-tire assistance, fuel delivery, lockout assistance, and key

replacement services. [Compl. ¶ 4.] Although ATTM calls the RAP “optional,” the

Plaintiffs allege that ATTM automatically enrolled customers for the service

without the customers’ knowledge or consent. [Compl. ¶¶ 4-5.] They further allege

that the monthly charges were “hidden” in their cellular telephone bills without

notice or warning, and that even once the Plaintiffs noticed the charges and

5
FDUTPA prohibits “[u]nfair methods of competition, unconscionable acts or practices,
and unfair or deceptive acts or practices in the conduct of any trade or commerce.” Fla. Stat. §
501.204(1). Its purpose is “[t]o protect the consuming public and legitimate business
enterprises” from those who engage in the prohibited acts. Id. § 501.202(2). The statute
provides a private right of action for any “person who has suffered a loss as a result of a
violation of this part,” permitting recovery of “actual damages, plus attorney’s fees and court
costs,” id. § 501.211(2), as well as allowing for declaratory judgments and injunctions, id. §
501.211(1). As to recoverable attorney’s fees, the statute provides that “the prevailing party,
after judgment in the trial court and exhaustion of all appeals, if any, may receive his or her
reasonable attorney’s fees and costs from the nonprevailing party.” Id. § 501.2105(1).

5
requested their removal, ATTM refused to remove past charges and allowed

additional charges to accrue during a waiting period before the Plaintiffs’

cancellation became effective. [Compl. ¶¶ 25, 27.] The complaint requested

monetary and injunctive relief, and also sought certification of a proposed class

consisting of “[a]ll persons and entities who (1) enrolled in a[n ATTM] account in

the state of Florida; and (2) were subjected to a monthly charge for the Roadside

Assistance Plan without ever requesting or enrolling in said plan.” [Compl. ¶ 16.]

ATTM moved to dismiss the complaint and compel arbitration pursuant to

the arbitration agreement that the Plaintiffs had signed. [Dkt. 31.] The Plaintiffs

countered that the arbitration provision was unenforceable, on the ground that the

class action waiver embedded in the provision hindered the remedial purposes of

FDUTPA by effectively immunizing ATTM from liability for unlawful business

practices, in violation of public policy.

The district court granted ATTM’s motion to dismiss the complaint and

compel arbitration, holding that ATTM’s class action waiver did not violate

Florida public policy. See Cruz v. Cingular Wireless, LLC, No.

2:07-cv-714-FtM-29DNF, 2008 WL 4279690, at *4 (M.D. Fla. Sept. 15, 2008).

The district court observed that in general, under Florida law, “an arbitration

agreement is unenforceable for public policy reasons if it defeats the remedial

6
purpose of the statute upon which the action is based, or deprives the plaintiff of

the ability to obtain meaningful relief.” Id. at *2 (citing Alterra Healthcare Corp.

v. Estate of Linton, 953 So. 2d 574, 578 (Fla. Dist. Ct. App. 2007); Powertel, Inc.

v. Bexley, 743 So. 2d 570, 576 (Fla. Dist. Ct. App. 1999)). The court then

discerned that although FDUTPA claims are susceptible to class action litigation,

FDUTPA does not confer a blanket, non-waivable right to class representation. Id.

at *3 (citing Fonte v. AT&T Wireless Servs., Inc., 903 So. 2d 1019, 1024-25 (Fla.

Dist. Ct. App. 2005)). The court noted that Florida intermediate appellate courts6

have invalidated as against public policy arbitration agreements that purport to

limit the substantive remedies available under FDUTPA, or the consumer’s ability

to recover full attorney’s fees. Id. at *2-3 (citing S.D.S. Autos, Inc. v.

Chrzanowski, 976 So. 2d 600 (Fla. Dist. Ct. App. 2007); Holt v. O’Brien Imps. of

Fort Myers, Inc., 862 So. 2d 87, 89 (Fla. Dist. Ct. App. 2003); Powertel, 743 So.

2d 570)). By contrast, a Florida intermediate appellate court enforced an

arbitration agreement containing a class action waiver where the agreement

provided that the consumer retained all substantive rights and remedies granted

6
“Absent a decision by the highest state court or persuasive indication that it would
decide the issue differently, federal courts follow decisions of intermediate appellate courts in
applying state law.” Galindo v. ARI Mut. Ins. Co., 203 F.3d 771, 775 (11th Cir. 2000); see also
Pardo v. State, 596 So.2d 665, 666 (Fla. 1992)) (“[T]he decisions of the district courts of appeal
represent the law of Florida unless and until they are overruled by th[e Florida Supreme] Court.”
(quotation omitted)).

7
under FDUTPA, and did not eliminate the consumer’s right to recover full

attorney’s fees.7 See id. (citing Fonte, 903 So. 2d 1019).8

With this framework in mind, the district court examined the arbitration

agreement at issue between ATTM and the Plaintiffs, and concluded it was valid

and enforceable under Florida law, because (1) “there is no question that the

arbitration agreement provides all the same remedies available to plaintiffs under

FDUTPA, as it states in relevant part that ‘[a]rbitrators can award the same

damages and relief that a court can award,’” id. at *3 (quoting arbitration

agreement [Dkt. 37-5, at 20]); (2) the agreement allows a consumer who prevails in

arbitration to recover attorney’s fees and costs from ATTM without limitation, and

7
The arbitration clause in Fonte originally included a bar on attorney’s fees. However,
the court concluded the bar defeated the remedial purpose of FDUTPA, and severed it from the
agreement as against public policy. Fonte, 903 So. 2d at 1024. The court then enforced the
remainder of the arbitration agreement, finding it no longer offended public policy. Id.
8
The same Florida district court of appeal recently limited Fonte, by striking down a
class waiver provision in an arbitration agreement on the ground that it prevented consumers
from vindicating their statutory rights, in violation of public policy. McKenzie v. Betts, 55 So.
3d 615 (Fla. Dist. Ct. App. 2011). The plaintiffs in McKenzie presented credible evidence that,
although the relevant consumer statutes provided for attorney’s fees and the arbitration
agreement at issue did not facially limit that right, the fee awards in such cases are frequently
inadequate. Id. at 619-20. Therefore, because the cases were “complex” and “time-consuming,”
id. at 623, 629, and yet presented a substantial risk of an inadequate fee award, competent
attorneys would refuse (and already had refused) to pursue such cases on an individual basis. Id.
at 619-20, 623, 629. The trial court that presided over the testimony concluded that it is
“virtually impossible,” id. at 620, for “individual plaintiffs [to] obtain competent counsel without
the procedural vehicle of a class action,” id. at 629. Given this evidentiary finding, the Florida
appellate court found that, like in the First Circuit case of Kristian v. Comcast Corp., 446 F.3d
25 (1st Cir. 2006), the class waiver “undermined the presumption that arbitration provided a fair
and adequate mechanism for enforcing statutory rights,” and thus struck the waiver. Id. at 628-
29.

8
even allows an award of double attorney’s fees in certain instances, id.; (3) there

was no confidentiality rule preventing the Plaintiffs from disseminating

information about their claims to other potential claimants, id. at *4; and (4)

ATTM agreed to bear all costs of arbitration regardless of which party prevailed,

id.9 In light of these features, the district court concluded that the arbitration

9
ATTM touts the following “pro-consumer” features of its arbitration provision, as
described by the Court in Concepcion (where the same ATTM arbitration provision was at
issue):

In the event the parties proceed to arbitration, the agreement specifies that
[ATTM] must pay all costs for nonfrivolous claims; that arbitration must take
place in the county in which the customer is billed; that, for claims of $10,000 or
less, the customer may choose whether the arbitration proceeds in person, by
telephone, or based only on submissions; that either party may bring a claim in
small claims court in lieu of arbitration; and that the arbitrator may award any
form of individual relief, including injunctions and presumably punitive damages.
The agreement, moreover, denies [ATTM] any ability to seek reimbursement of
its attorney’s fees, and, in the event that a customer receives an arbitration award
greater than [ATTM]’s last written settlement offer, requires AT&T to pay a
$[5,000] minimum recovery and twice the amount of the claimant’s attorney’s
fees.

Concepcion, 131 S. Ct. at 1744; see also Appellee Br. at 2-3; [Dkt. 37-6, at 17-21]. In spite of
these pro-consumer features, the Plaintiffs argue that ATTM can effectively avoid ever paying
attorney’s fees or the $5,000 premium award simply by refunding the disputed amount (or a little
more) to the customer during the mandatory 30-day waiting period between when ATTM
receives the customer’s “Notice of Dispute” in the mail and when the customer is permitted to
commence arbitration by mailing a “Demand for Arbitration” to the American Arbitration
Association and ATTM. Appellant Br. at 11. Because few consumers will pursue their claims
that far, ATTM thus “pay[s] a handful of small claims and in the process get[s] away with
stealing hundreds of millions of dollars.” Appellant Br. at 10 (quoting Declaration of Marcus
Viles [Dkt. 43-2, at 4]); see also Concepcion, 131 S. Ct. at 1760 (Breyer, J., dissenting) (“[A]s
the Court of Appeals recognized, AT&T can avoid the [premium] payout (the payout that
supposedly makes the [plaintiffs]’ arbitration worthwhile) simply by paying the claim’s face
value, such that ‘the maximum gain to a customer for the hassle of arbitrating a $30.22 dispute is
still just $30.22.’”) (quoting Laster v. AT&T Mobility LLC, 584 F.3d 849, 855, 856 (9th Cir.
2009), rev’d sub nom. Concepcion, 131 S. Ct. 1740).

9
agreement did not defeat the remedial purposes of FDUTPA, and was therefore

valid and enforceable under Florida law. Arguing that the district court failed to

appreciate the functionally exculpatory effect of the class action waiver, the

Plaintiffs appealed the district court’s order to this Court.

II.

We review de novo an order granting a motion to dismiss a complaint and

compel arbitration. Dale v. Comcast Corp., 498 F.3d 1216, 1219 (11th Cir. 2007).

The issue before us is whether the arbitration agreement’s class action waiver is

unenforceable as a violation of Florida public policy. We must affirm the district

court’s order compelling individual arbitration if either the class action waiver is

enforceable under Florida law or the FAA preempts Florida law to the extent it

would invalidate the waiver.10

The FAA makes written agreements to arbitrate “valid, irrevocable, and

enforceable, save upon such grounds as exist at law or in equity for the revocation

of any contract.” 9 U.S.C. § 2. This provision reflects a “liberal federal policy

favoring arbitration,” Concepcion, 131 S. Ct. at 1745 (quoting Moses H. Cone

Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983)), and requires courts

10
“This court may affirm a judgment on any legal ground, regardless of the grounds
addressed and relied upon by the district court.” Cuddeback v. Fla. Bd. of Educ., 381 F.3d 1230,
1235 (11th Cir. 2004).

10
to “rigorously enforce agreements to arbitrate” according to their terms. Dean

Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 221 (1985); accord Concepcion, 131

S. Ct. at 1745.

Under the so-called saving clause of FAA § 2, an arbitration agreement may

be invalidated by “generally applicable contract defenses, such as fraud, duress, or

unconscionability.” Concepcion, 131 S. Ct. at 1746 (quotation omitted).

However, the saving clause does not authorize the invalidation of agreements to

arbitrate “by defenses that apply only to arbitration or that derive their meaning

from the fact that an agreement to arbitrate is at issue.” Id. Thus, “[a]lthough

[FAA] § 2’s saving clause preserves generally applicable contract defenses,” it

does not “preserve state-law rules that stand as an obstacle to the accomplishment

of the FAA’s objectives.” Id. at 1748.

In Concepcion, the Supreme Court considered a putative class action

brought by ATTM subscribers, who sought to avoid enforcement of the very same

arbitration provision at issue here.11 See id. at 1744. The Concepcion plaintiffs

11
In both this case and Concepcion, the governing arbitration agreement is ATTM’s
December 2006 provision, requiring that all disputes be settled by arbitration in the parties’
“individual capacity, and not as a plaintiff or class member in any purported class or
representative proceeding,” and that “the arbitrator may not consolidate more than one person’s
claims, and may not otherwise preside over any form of a representative or class proceeding.”
Concepcion, 131 S. Ct. at 1744 & n.2 (quoting arbitration provision). The only difference
between the provision in Concepcion and the provision sub judice is the amount of the premium
award -- i.e., the amount that the agreement entitles a consumer to recover if her arbitral award is
greater than ATTM’s last written settlement offer made before arbitration -- which apparently is

11
argued that the class action waiver embedded in their arbitration agreement was

unconscionable and thus unenforceable under state law because in practice it

operated to “exempt[] . . . [ATTM] from responsibility for its own fraud.” Id. at

1746 (quoting Discover Bank v. Superior Court, 113 P.3d 1100, 1110 (Cal. 2005)

(alterations and internal quotation marks omitted). Because unconscionability is a

“ground that ‘exist[s] at law or in equity for the revocation of any contract,’” the

plaintiffs argued that their arbitration agreements could be invalidated in

accordance with the saving clause of FAA § 2. Id. at 1746 (quoting 9 U.S.C. § 2)

(alteration in original).

The Supreme Court did not dispute that California law, as enunciated by the

California Supreme Court in Discover Bank, 113 P.3d 1100, would invalidate the

class action waiver as unconscionable, based on its satisfaction of a three-part

requirement laid out in Discover Bank: (1) “the waiver is found in a consumer

contract of adhesion” drafted by a party that has superior bargaining power; (2)

“disputes between the contracting parties predictably involve small amounts of

damages”; and (3) “it is alleged that the party with the superior bargaining power

has carried out a scheme to deliberately cheat large numbers of consumers out of

tied to the jurisdictional limit of the customer’s local small claims court. Appellee Br. at 2 n.2
(citing Terms of Service [Dkt. 37-6, at 20]). In Florida, that limit is $5,000, and accordingly, so
is the premium award. Id. (citing Fla. Small Claims R. 7.010). In Concepcion, which arose out
of California, the premium award was $7,500. Concepcion, 131 S. Ct. at 1744.

12
individually small sums of money.” Concepcion, 131 S. Ct. at 1746 (quoting

Discover Bank, 113 P.3d at 1110). However, the Supreme Court concluded that

the triggering conditions of California’s Discover Bank rule imposed no effective

limit on its application. In particular, the Court called the requirement that claims

be predictably small “toothless and malleable,” and found the other two

requirements universally satisfied, at least in the consumer context, as “the times in

which consumer contracts were anything other than adhesive are long past,” and

“the latter [third requirement] has no limiting effect, as all that is required is an

allegation.” Id. at 1750. The Court thus implied that although the Discover Bank

rule was cast as an application of unconscionability doctrine, in effect, it set forth a

state policy placing bilateral arbitration categorically off-limits for certain

categories of consumer fraud cases, upon the mere ex post demand by any

consumer. See id.

The Court then held that, like preferring fact-finding to be conducted by a

jury, this state-imposed policy preference “interferes with fundamental attributes of

arbitration and thus creates a scheme inconsistent with the FAA.” Id. at 1748.

Declaring that “[t]he overarching purpose of the FAA . . . is to ensure the

enforcement of arbitration agreements according to their terms so as to facilitate

streamlined proceedings,” id., the Court explained that, in light of this purpose,

13
conditioning the enforceability of arbitration agreements on the availability of

classwide arbitration procedures is inconsistent with the FAA. According to the

Court, the “‘changes brought about by the shift from bilateral arbitration to

class-action arbitration’ are ‘fundamental.’” Id. at 1750 (quoting Stolt-Nielsen

S.A. v. AnimalFeeds Int’l Corp., 559 U.S. --, 130 S. Ct. 1758, 1776 (2010)). Class

arbitration, the Court explained, eliminates the “principal advantage of arbitration”

-- its informality -- and instead makes the process slower, more costly, more

ensnared in procedural formality, and more risky to defendants. Id. at 1751-52.

Therefore, because it “stands as an obstacle to the accomplishment and execution

of the full purposes and objectives of Congress,” id. at 1753 (quoting Hines v.

Davidowitz, 312 U.S. 52, 67 (1941)), the Court concluded that a state policy that

allows any party to a consumer contract to demand classwide procedures ex post,

in spite of her agreement to submit all disputes to bilateral arbitration, is preempted

by the FAA, id. at 1750, even if it may be “desirable for [other] reasons,” id. at

1753. Accordingly, California’s Discover Bank rule was preempted.

Here, the Plaintiffs have argued that ATTM’s class action waiver is

unenforceable because it would exculpate ATTM from liability under state law and

would thus defeat the remedial purpose of FDUTPA, in violation of public policy.

Appellant Br. at 17. In particular, the Plaintiffs assert that the arbitration provision

14
at issue hinders the remedial purpose of FDUTPA because the vast majority of

these numerous, small-value claims against ATTM will go unprosecuted unless

they may be brought as a class. The Plaintiffs identify two reasons why numerous,

potentially meritorious RAP-based claims against ATTM will slip through the

cracks if the class action waiver stands: first, attorneys will refuse to represent

ATTM consumers for these legally complex but small-value claims unless they can

be aggregated; and second, absent class-action notice procedures, the vast majority

of ATTM customers will never know that their rights have been violated.

Appellant Br. at 47-54. At bottom, the Plaintiffs argue that because FDUTPA is a

remedial consumer statute -- intended to have deterrent as well as compensatory

effect -- public policy dictates that their claim is of a sort that “must proceed as a

class action or not at all.” Appellant Br. at 16 (alteration and internal quotation

marks omitted).

However, the Concepcion Court specifically rejected this public policy

argument, which was expressly made by the dissent in that case: “The dissent

claims that class proceedings are necessary to prosecute small-dollar claims that

might otherwise slip through the legal system. But States cannot require a

procedure that is inconsistent with the FAA, even if it is desirable for unrelated

reasons.” Concepcion, 131 S. Ct. at 1753 (citation omitted). Thus, in light of

15
Concepcion, state rules mandating the availability of class arbitration based on

generalizable characteristics of consumer protection claims -- including that the

claims “predictably involve small amounts of damages,” id. at 1746 (quoting

Discover Bank, 113 P.3d at 1110), that the company’s deceptive practices may be

replicated across “large numbers of consumers,” id. (quoting Discover Bank, 113

P.3d at 1110), and that many potential claims may go unprosecuted unless they

may be brought as a class, id. at 1753 -- are preempted by the FAA, even if they

may be “desirable,” id. Therefore, to the extent that Florida law would be

sympathetic to the Plaintiffs’ arguments here, and would invalidate the class

waiver simply because the claims are of small value, the potential claims are

numerous, and many consumers might not know about or pursue their potential

claims absent class procedures, such a state policy stands as an obstacle to the

FAA’s objective of enforcing arbitration agreements according to their terms, and

is preempted.12

12
We conclude that Florida law does not yield a certain result in this case and cannot
provide an alternative ground for our decision. Compare Fonte, 903 So. 2d at 1025 (enforcing
class action waiver over public policy challenge because under the arbitration agreement, “the
consumer retains all substantive rights and remedies against AT&T that he or she is granted
under FDUTPA, namely, actual damages, declaratory and injunctive relief, and attorney’s fees”),
with McKenzie, 55 So. 3d at 619, 623 (striking class action waiver as contrary to public policy
even though arbitration agreement did not facially limit the consumer’s right to statutory
remedies or attorney’s fees, based on credible “evidence that competent counsel would not
represent individual plaintiffs on these small claims,” leaving “customers without a viable means
of seeking redress for the alleged violations of Florida law”), S.D.S. Autos, 976 So. 2d at 604,
606 (striking class action waiver as “hampering important remedial purposes of FDUTPA”

16
 In their supplemental briefs, the Plaintiffs offer two arguments for why

Concepcion does not control the outcome of this case. First, they say that

Concepcion only preempts inflexible, categorical state laws that mechanically

invalidate class waiver provisions in a generic category of cases, without requiring

any evidentiary proof regarding whether parties could vindicate their statutory

rights in arbitration. Appellant Supp. Br. at 4-6; Appellant Supp. Reply at 3-4.

They argue that this case escapes Concepcion’s preemptive effect, because Florida

law, unlike California law, invalidates class action bans only when the

individualized facts of the case demonstrate that the ban is functionally

exculpatory. Appellant Supp. Br. at 5; Appellant Supp. Reply at 4. Second, they

claim that Concepcion was only concerned with state laws that impose

nonconsensual class arbitration on parties. Because ATTM’s blow-up provision

assures that ATTM will not be forced into class arbitration -- but only class

litigation -- they claim that Concepcion is not implicated here. Appellant Supp. Br.

at 15-18; Appellant Supp. Reply at 9-10. Neither argument is successful.

because, absent class procedures, individuals asserting successful FDUTPA claims against
automobile dealers under Fla. Stat. § 501.976, which limits a prevailing consumer’s attorney fee
award to an amount that is “reasonable[]” in light of actual damages, would receive inadequate
fee awards, given the individually small nature of the claims), and Powertel, 743 So. 2d at 576-
77 (striking arbitration clause containing class action waiver as unconscionable on the grounds
that it was one-sided and would defeat the remedial purpose of FDUTPA, because the arbitration
agreement precluded punitive damages, declarative and injunctive relief, and the ability to
pursue as a class “potential claims [that] are too small to litigate individually”).

17
 The second argument is disposed of easily. It would be anomalous indeed if

the FAA -- which promotes arbitration, see Concepcion, 131 S. Ct. at 1749 -- were

offended by imposing upon arbitration nonconsensual procedures that interfere

with arbitration’s fundamental attributes, but not offended by the nonconsensual

elimination of arbitration altogether. Cf. id. at 1747 (“When state law prohibits

outright the arbitration of a particular type of claim, the analysis is straightforward:

The conflicting rule is displaced by the FAA.”). In fact, the parties in Concepcion

faced no risk of being forced into class arbitration either, because nonconsensual

class arbitration was already prohibited under Stolt-Nielsen. See 130 S. Ct. at 1775

(holding that “a party may not be compelled under the FAA to submit to class

arbitration unless there is a contractual basis for concluding that the party agreed to

do so”). Moreover, the arbitration agreement in Concepcion contained the very

same blow-up clause that is present here, see Brief for Respondents at 3,

Concepcion, 131 S. Ct. 1740 (No. 09-893), 2010 WL 4411292 at *3 (“Concepcion

Resp. Br.”) (quoting arbitration agreement) -- further assuring that ATTM was at

no greater risk of being forced into class arbitration in Concepcion than it is here.

Even a cursory reading of the opinion reveals that the Concepcion Court described

the “fundamental” changes brought about by the shift from bilateral to class

arbitration to show that nonconsensual class procedures are inconsistent with the

18
FAA -- not to argue for increased class action litigation. Accordingly, Concepcion

cannot be distinguished on this ground.

The Plaintiffs’ first argument presents more difficulty. It is true that the

Plaintiffs here have presented a factual record not present in Concepcion -- the

affidavits of three Florida consumer law attorneys who attested that they would not

represent consumers on an individual basis in pursuing their RAP-based claims

against ATTM. All three examined both ATTM’s arbitration agreement (including

its allegedly pro-consumer features) and the Plaintiffs’ complaint, and concluded

that it would not be cost-effective for them to pursue such claims against ATTM

except on an aggregated basis. [See Dkt. 43 at 6-9, 43-2, 43-3, 43-4.] The

Plaintiffs also provide some statistical evidence -- which the consumer-plaintiffs

also presented in Concepcion -- showing the “infinitesimal” percentage of ATTM

subscribers who have arbitrated a dispute with ATTM, “starkly demonstrat[ing] the

claim-suppressing effect of the [class action] ban.” Concepcion Resp. Br. at *4,

*5, *40; see Appellant Br. at 13 (noting that “only 0.000007% of ATTM customers

filed a notice of dispute against ATTM”); Appellant Supp. Br. at 14 (same).

However, at least as applied to the facts of this case, we believe that faithful

adherence to Concepcion requires the rejection of the Plaintiffs’ argument. The

Plaintiffs’ evidence goes only to substantiating the very public policy arguments

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that were expressly rejected by the Supreme Court in Concepcion -- namely, that

the class action waiver will be exculpatory, because most of these small-value

claims will go undetected and unprosecuted. The Court observed that California’s

Discover Bank rule too had “its origins in California’s unconscionability doctrine

and California’s policy against exculpation.” Concepcion, 131 S. Ct. at 1746; see

also Concepcion Resp. Br. at *19 (noting that “California’s unconscionability

doctrine incorporates the venerable prohibition on exculpatory clauses,” and

quoting state statute rendering unenforceable “[a]ll contracts which have for their

object, directly or indirectly, to exempt anyone from responsibility for his own

fraud”) (quoting Cal. Civ. Code § 1668 (alteration in original)). Indeed, the

Concepcion consumer-plaintiffs’ brief to the Supreme Court repeatedly

emphasized that California’s rule was a “fact-specific” inquiry that only screened

out class action bans “in circumstances where they would . . . be exculpatory.”

Concepcion Resp. Br. at *20; see also id. at *12 (“The FAA favors arbitration, not

exculpation.”).

The Court found, however, that the California rule swept too broadly, in

subjecting whole classes of claims to mandatory class procedures. The rule

suggested by the Plaintiffs here would equally encompass the field of small-value

consumer fraud claims. Indeed, the Plaintiffs all but concede that their rule would

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preserve mandatory class actions for all “small but numerous” consumer claims.

[See Dkt. 43 at 16 (“Clearly a contractual provision precluding class relief for

small but numerous FDUTPA claims against [ATTM] impermissibly frustrates the

remedial purposes of FDUTPA.”).] Unquestionably, if Florida adopted such a

rule, it would be preempted by the FAA, under the reasoning in Concepcion.

Moreover, we need not reach the question of whether Concepcion leaves

open the possibility that in some cases, an arbitration agreement may be

invalidated on public policy grounds where it effectively prevents the claimant

from vindicating her statutory cause of action. See, e.g., Mitsubishi Motors Corp.

v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 637 (1985) (“[S]o long as the

prospective litigant effectively may vindicate [his or her] statutory cause of action

in the arbitral forum, the statute will continue to serve both its remedial and

deterrent function.”); cf. Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 90

(2000) (recognizing that “large arbitration costs could preclude a litigant . . . from

effectively vindicating her federal statutory rights in the arbitral forum”). Even if

the Mitsubishi vindication principle applies to state as well as federal statutory

causes of action, see Booker v. Robert Half Int’l, Inc., 413 F.3d 77, 79, 81-83

(D.C. Cir. 2005) (Roberts, J.), and even if it could be applied to strike down a class

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action waiver in the appropriate circumstance,13 such an argument is foreclosed

here, because the Concepcion Court examined this very arbitration agreement and

concluded that it did not produce such a result. See Concepcion, 131 S. Ct. at 1753

(noting ATTM’s arbitration provision ensured “that aggrieved customers who filed

claims would be essentially guaranteed to be made whole” (alteration and internal

quotation marks omitted)).

In addition, like the plaintiffs in Concepcion, the Plaintiffs here do not allege

any defects in the formation of the contract, aside from its generally adhesive

nature, which alone is insufficient to invalidate a consumer contract. See id. at

1750 (“[T]he times in which consumer contracts were anything other than adhesive

are long past.”); see also id. at 1753 (Thomas, J., concurring) (“As I would read it,

the FAA requires that an agreement to arbitrate be enforced unless a party

successfully challenges the formation of the arbitration agreement, such as by

proving fraud or duress.”).

In light of Concepcion, our resolution of this case does not depend on a

13
See, e.g., Chen-Oster v. Goldman, Sachs & Co., No. 10 Civ. 6950(LBS)(JCF), 2011
WL 2671813, *3-5 (S.D.N.Y. July 7, 2011) (denying motion for reconsideration in light of
Concepcion of order invalidating arbitration agreement because it did not allow for class
proceedings, based on conclusion that individual arbitration would preclude plaintiff from
enforcing her “substantive right under Title VII to bring a pattern or practice claim,” which
under governing substantive law may only be brought as a class); but cf. Gilmer v.
Interstate/Johnson Lane Corp., 500 U.S. 20, 32 (1991) (holding that the inability to arbitrate on a
classwide basis was not an appropriate ground for refusing to enforce an arbitration provision
with respect to statutory Age Discrimination in Employment Act claim).

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construction of Florida law. To the extent that Florida law would require the

availability of classwide arbitration procedures in this case -- in spite of the parties’

agreement to submit all disputes to arbitration “on an individual basis” only [Dkt.

37-15, at 1] -- simply because the case involves numerous small-dollar claims by

consumers against a corporation, many of which will not be brought unless the

Plaintiffs proceed as a class, such a state rule is inconsistent with and thus

preempted by FAA § 2. See Concepcion, 131 S. Ct. at 1748; cf. Day v. Persels &

Assocs., LLC, No. 8:10-CV-2463-T-33TGW, 2011 WL 1770300, at *5 (M.D. Fla.

May 9, 2011) (“The Florida Supreme Court’s answer will have no determinative

effect here because, even if it says that the class action waivers are invalid, that

answer would be pre-empted by the FAA under [Concepcion].”).

III.

The district court’s order dismissing the Plaintiffs’ complaint and

compelling arbitration of the Plaintiffs’ claims is, therefore, AFFIRMED.

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