Pendergast v. Sprint Nextel Corp.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JANUARY 04, 2010
No. 09-10612 JOHN P. LEY, JR.
________________________ ACTING CLERK

D. C. Docket No. 08-20551-CV-PAS

JAMES PENDERGAST,
individually and on behalf of
all others similarly situated,

Plaintiff-Appellant,

versus

SPRINT NEXTEL CORPORATION,

Defendant,

SPRINT SOLUTIONS, INC.,
SPRINT SPECTRUM L.P.,

Defendants-Appellees.

________________________

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

(January 4, 2010)
Before CARNES and HULL, Circuit Judges, and GOLDBERG,* Judge.

HULL, Circuit Judge:

CERTIFICATION FROM THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT TO THE FLORIDA SUPREME COURT,

PURSUANT TO FLA. CONST. ART. V, § 3(b)(6). TO THE FLORIDA

SUPREME COURT AND ITS HONORABLE JUSTICES:

Plaintiff James Pendergast appeals the district court’s order granting the

motion to compel arbitration filed by Defendants-Appellees Sprint Solutions, Inc.

and Sprint Spectrum, L.P. (collectively, “Sprint”). Plaintiff is a former Sprint

wireless customer and sued Sprint, on behalf of himself and a similarly-situated

class, for allegedly charging improper roaming fees for calls placed within Sprint’s

coverage areas. The district court found the arbitration clause and class action

waiver contained in the Terms and Conditions of Plaintiff’s contract with Sprint

were valid and enforceable and barred this class action.

On appeal, Plaintiff does not contest the arbitration clause itself but claims

the class action waiver in Sprint’s Terms and Conditions is both procedurally and

substantively unconscionable under Florida law. And because Plaintiff’s contract

provides the arbitration and class action waiver clauses are not severable, Plaintiff

*
Honorable Richard W. Goldberg, United States Court of International Trade Judge,
sitting by designation.

2
claims the arbitration clause fails because the class action waiver is unenforceable.

After review and oral argument, we determine conflicting decisions in the

Florida intermediate appellate courts require that we certify certain questions to the

Florida Supreme Court. Before addressing those legal issues, we provide a full

factual background of this dispute.

I. FACTUAL BACKGROUND

A. August 2001 Service Contract And Samsung SCH-8500 Phone

On August 2, 2001, Plaintiff purchased a Samsung SCH-8500 wireless

telephone from Sprint and agreed to a two-year service contract for Sprint wireless

telephone service.1 On August 4, 2001, Sprint shipped Plaintiff’s initial Samsung

telephone to his address in Miami, Florida. Plaintiff began using Sprint wireless

services on August 6, 2001. Plaintiff’s initial bill, dated September 3, 2001,

reflects that he held one account with Sprint, numbered 0071106751-0, and used

wireless services through one phone number, 786-859-6129.

Plaintiff’s initial two-year contract included Sprint’s then-applicable Terms

and Conditions. The packaging material on the outside of the box, containing

Plaintiff’s Samsung SCH-8500 phone, stated the box contained a copy of Sprint’s

Terms and Conditions. And the currently applicable version of Sprint’s Terms and

1
At oral argument, both parties conceded the facts of this action are not in dispute.

3
Conditions was always available on Sprint’s website. Furthermore, Plaintiff’s

initial invoice, dated September 3, 2001, stated: “You may obtain a copy of the

Terms and Conditions of Service for your Sprint PCS Services by writing our

Customer Care Center or visiting our Internet site.”

The May 22, 2001 Terms and Conditions, which were in effect when

Plaintiff first began his service with Sprint, provided (1) Sprint could change the

terms of its agreement with Plaintiff, (2) Plaintiff would accept any such changes

by using the phone on or after the effective date of the changes, and (3) Plaintiff

could terminate his service if he did not accept the changes:

Agreement. Your agreement (“Agreement”) with
[Sprint] and any of its affiliates doing business as Sprint
PCS providing Sprint Personal Communications Services
(“Services”) to you is made up of these Terms and
Conditions of Service (“Terms”) and the Service Plan
that we agree to provide to you . . . .
....
Changes to Agreement. We may change this
Agreement at any time (but see Service Plan). Any
changes to the Terms are effective when we publish the
revised Terms. If you use our Services or make any
payment to us on or after the effective date of the
changes, you accept the changes. If you do not accept
the changes, you may terminate Services (but see
Termination and Changing Service Plans). For purposes
of the Agreement, “use” includes keeping the right to
access the Sprint PCS Network by not terminating
Services. You may not modify the Agreement except for
your Service Plan (see Termination and Changing
Service Plans).

4
Another section of the May 2001 Terms and Conditions provided Plaintiff with a

14-day period after activating his initial phone, during which he could terminate

his service with Sprint without penalty:

Termination: Term Service Plans. If you are on a
Term Service Plan (1) your ability to terminate Services
before the end of the term is limited, (2) your ability to
change to another Service Plan before the end of the term
may be limited, and may result in a termination or
activation fee, (3) you may be required to pay a
termination fee. No termination fee is charged if you
terminate a Term Service Plan within 14 days of
activation of your Sprint PCS Phone.

Sprint’s May 2001 Terms and Conditions had a clause limiting Plaintiff’s potential

remedies against Sprint, specifically barring incidental, consequential, punitive, or

special damages:

NO CONSEQUENTIAL OR OTHER DAMAGES.
UNDER NO CIRCUMSTANCES ARE WE LIABLE
FOR ANY INCIDENTAL, CONSEQUENTIAL,
PUNITIVE OR SPECIAL DAMAGES OF ANY
NATURE WHATSOEVER ARISING OUT OF OR IN
CONNECTION WITH PROVIDING OR FAILING TO
PROVIDE SERVICES, PHONES OR OTHER
EQUIPMENT USED IN CONNECTION WITH THE
SERVICES, INCLUDING, WITHOUT LIMITATION,
LOST PROFITS, LOSS OF BUSINESS, OR COST OF
REPLACEMENT PRODUCTS AND SERVICES. THIS
SECTION SURVIVES TERMINATION OF THIS
AGREEMENT.

5
(emphasis and capitalization in original).2 The May 2001 Terms and Conditions

contained a clause requiring arbitration of most disputes:

ARBITRATION OF DISPUTES. ANY CLAIM,
CONTROVERSY OR DISPUTE, WHETHER
SOUNDING IN CONTRACT, STATUTE, OR TORT,
INCLUDING FRAUD, MISREPRESENTATION, OR
ANY OTHER LEGAL THEORY, RELATED
DIRECTLY OR INDIRECTLY TO THE SERVICES . . .
SHALL BE RESOLVED BY ARBITRATION AS
PRESCRIBED IN THIS SECTION. THE FEDERAL
ARBITRATION ACT, NOT STATE LAW, GOVERNS
THE QUESTION OF WHETHER A CLAIM IS
SUBJECT TO ARBITRATION.

The May 22, 2001 Terms and Conditions did not include a class action waiver as

part of the arbitration clause.3

2
Throughout this opinion, we quote contractual provisions with emphases and
capitalization as they appear in the record.
3
The parties have litigated this case as though the May 22, 2001 Terms and Conditions
were what Plaintiff received in the box for his Samsung SCH-8500 phone and through Sprint’s
website. See Marsh v. Butler County, Ala., 268 F.3d 1014, 1023 n.4 (11th Cir. 2001) (en banc)
(construing complaint in the manner litigated by the parties and district court). However, we
note Sprint advised the district court that the box containing Plaintiff’s initial Samsung SCH-
8500 phone may have contained a printed copy of the Terms and Conditions effective May 1,
2000. The Terms and Conditions effective May 1, 2000 did not contain an arbitration clause.
The May 1, 2000 Terms and Conditions did, however, contain a class action waiver. The May 1,
2000 Terms and Conditions provided: “WAIVER OF CLASS ACTIONS. YOU AGREE
THAT ALL CLAIMS BETWEEN YOU AND SPRINT PCS RELATED TO THIS
AGREEMENT WILL BE LITIGATED INDIVIDUALLY AND THAT YOU WILL NOT
CONSOLIDATE OR SEEK CLASS TREATMENT FOR ANY CLAIM . . . . THIS WAIVER
APPLIES TO THIS AGREEMENT AS AMENDED OR MODIFIED. THIS SECTION
SURVIVES TERMINATION OF THIS AGREEMENT.” In its Terms and Conditions effective
May 22, 2001, Sprint added the arbitration clause quoted above and removed the class action
waiver.

6
 Plaintiff’s affidavit states that: “Once I had contracted with Sprint in 2001, I

could not have left Sprint for another Carrier without rendering my cell phone(s)

useless, as they only worked on Sprint’s network.” However, Sprint presented

evidence that Plaintiff was permitted to sell his mobile phone(s) to others, through

websites such as www.ebay.com, without interference from Sprint. And third

parties who acquire used Sprint mobile phones can activate those phones and use

them on the Sprint network.

B. February 2003 – Samsung SPH-A460 Phone

On February 24, 2003, Plaintiff acquired and activated a new Samsung

model SPH-A460 mobile phone in person at a Sprint store in Coral Gables,

Florida. Plaintiff retained his original account number (0071106751-0) and

original mobile phone number (786-859-6129) when he acquired and activated this

new mobile phone.

The telephone box for the Samsung model SPH-A460 wireless phone

contained a copy of the phone’s user guide, which contained a copy of Sprint’s

Terms and Conditions. The record does not reflect which version of Sprint’s

Terms and Conditions were printed in the user guide for Plaintiff’s new Samsung

model SPH-A460 phone. The packaging material on the outside of the box for the

Samsung model SPH-A460 phone also stated that the box contained a copy of

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Sprint’s Terms and Conditions.

C. July 2, 2005 Service Agreement And Samsung PM-A740 Phone

On July 2, 2005, Plaintiff signed a two-year PCS Advantage Agreement with

Sprint. At the time he entered into the Advantage Agreement, Plaintiff also

acquired a new Samsung PM-A740 mobile phone at a Sprint Store in Coral Gables,

Florida and activated a second phone line with a second phone number (786-859-

9624).

Sprint subsidizes the purchase price of the majority of wireless telephones it

sells to its subscribers. However, the record does not reflect how much of the

purchase price of Plaintiff’s new Samsung PM-A740 mobile phone was subsidized

by Sprint, although Plaintiff admits he received a “discount” on the purchase price

of the phone. Similarly, there is no evidence in the record indicating what, if

anything, Plaintiff paid for any of the phones in this case.

The telephone box for the new Samsung PM-A740 wireless phone Plaintiff

acquired on July 2, 2005 contained a copy of the user guide for that phone, which

contained a copy of Sprint’s Terms and Conditions effective June 30, 2004.4 The

box’s exterior also stated it contained a copy of Sprint’s Terms and Conditions.

4
Plaintiff asserts, and Sprint does not dispute, that Plaintiff was not provided notice of the
June 30, 2004 Terms and Conditions at the time they went into effect in 2004. However,
Plaintiff did receive a copy of the June 30, 2004 Terms and Conditions on July 2, 2005 when he
expanded his Sprint account to include a second phone line.

8
 Sprint’s Terms and Conditions effective June 30, 2004 provide that the

customer accepts the Terms and Conditions by using or paying for Sprint’s

Services:

This agreement (“Agreement”) covers the terms on
which we agree to provide and you agree to accept any
service or product we make available to you, including
your wireless services, wireless devices, etc. (collectively
“Services”). You accept this Agreement when you do
any of the following: (a) provide your written or
electronic signature; (b) accept through an oral or
electronic statement; (c) attempt to or in any way use any
of the Services; (d) pay for any Services; or (e) open any
materials or package that says you are accepting when
you open it.

The Terms and Conditions effective June 30, 2004 also provide a

mechanism, similar to the May 2001 Terms and Conditions, for Sprint to amend

the Agreement and for Plaintiff to accept or refuse Sprint’s changes. The 2004

Terms and Conditions provide: “We may change the Agreement at any time with

notice. Any changes to the Agreement are effective when we publish them. If you

use our Services or make any payment to us on or after the effective date of the

changes, you accept the changes.” The 2004 Terms and Conditions also provide

that Plaintiff could terminate the agreement, without incurring an early termination

fee, within 30 days after changes to the Agreement go into effect if those changes

were made to a material term and had a material adverse effect on Plaintiff.

9
 Similar to the 2001 Terms and Conditions, the 2004 Terms and Conditions

also contained a limitation on Sprint’s liability for incidental, consequential,

punitive, or special damages:

NO CONSEQUENTIAL OR OTHER DAMAGES.
UNDER NO CIRCUMSTANCES ARE WE LIABLE
FOR ANY INCIDENTAL, CONSEQUENTIAL,
PUNITIVE OR SPECIAL DAMAGES OF ANY
NATURE WHATSOEVER ARISING OUT OF OR IN
CONNECTION WITH PROVIDING OR FAILING TO
PROVIDE SERVICES, PHONES OR OTHER
EQUIPMENT USED IN CONNECTION WITH THE
SERVICES, INCLUDING, WITHOUT LIMITATION,
LOST PROFITS, LOSS OF BUSINESS, OR COST OF
REPLACEMENT PRODUCTS AND SERVICES. THIS
SECTION SURVIVES TERMINATION OF THIS
AGREEMENT.

The June 30, 2004 Terms and Conditions contained an arbitration clause,

similar to the one in Sprint’s May 2001 Terms and Conditions, requiring

arbitration of all disputes except for those within the jurisdiction of a small claims

court. The June 2004 Terms and Conditions included a new class action waiver,

printed in capital letters:

MANDATORY ARBITRATION OF DISPUTES:
INSTEAD OF SUING IN COURT, YOU AND SPRINT
AGREE TO ARBITRATE ANY AND ALL CLAIMS,
CONTROVERSIES OR DISPUTES AGAINST EACH
OTHER ARISING OUT OF OR RELATING TO THIS
AGREEMENT . . . . THE FEDERAL ARBITRATION
ACT APPLIES TO THIS AGREEMENT AND ITS
PROVISIONS, NOT STATE LAW, GOVERN ALL

10
 QUESTIONS OF WHETHER A CLAIM IS SUBJECT
TO ARBITRATION. THIS PROVISION DOES NOT
PREVENT EITHER YOU OR SPRINT FROM
BRINGING APPROPRIATE CLAIMS IN SMALL
CLAIMS COURT, BEFORE THE FEDERAL
COMMUNICATIONS COMMISSION OR A STATE
PUBLIC UTILITIES COMMISSION.

YOU AND SPRINT FURTHER AGREE THAT
NEITHER SPRINT NOR YOU WILL JOIN ANY
CLAIM WITH THE CLAIM OF ANY OTHER
PERSON OR ENTITY IN A LAWSUIT,
ARBITRATION OR OTHER PROCEEDING; THAT
NO CLAIM EITHER SPRINT OR YOU HAS
AGAINST THE OTHER SHALL BE RESOLVED ON
A CLASS-WIDE BASIS; AND THAT NEITHER
SPRINT NOR YOU WILL ASSERT A CLAIM IN A
REPRESENTATIVE CAPACITY ON BEHALF OF
ANYONE ELSE. IF FOR ANY REASON THIS
ARBITRATION PROVISION DOES NOT APPLY TO
A CLAIM, WE AGREE TO WAIVE TRIAL BY JURY.
....
We agree to pay our respective arbitration costs, . . . but
the arbitrator can apportion these costs as appropriate.
....
If any party files a judicial or administrative action
asserting a claim that is subject to arbitration and another
party successfully stays such action or compels
arbitration, the party filing that action must pay the other
party’s costs and expenses incurred in seeking such stay
or compelling arbitration, including attorneys’ fees.

If any portion of this Mandatory Arbitration of Disputes
section is determined to be invalid or unenforceable, the
remainder of the Section remains in full force and effect.

Plaintiff began using this second phone number on July 2, 2005. At the time

11
Plaintiff executed the 2005 agreement, at least two of Sprint’s competitors – Virgin

Mobile and TracFone – offered mobile phone service in his area without class

action waivers.

When he acquired his second mobile phone line on July 2, 2005, Plaintiff

signed a two-year Advantage Agreement. The Advantage Agreement explicitly

notified Plaintiff that an arbitration clause was in Sprint’s Terms and Conditions.

By signing the Advantage Agreement, Plaintiff attested he had read and agreed to

all terms of Sprint’s most recent Terms and Conditions (which contained the class

action waiver). The Advantage Agreement as executed by Plaintiff provides:

PCS Advantage Agreement
2-Year PCS Advantage Agreement
MDN: (786) 859-9624
Name: JAMES PENDERGAST
Date: 7/2/2005

You are entering into a binding legal Agreement with
Sprint on behalf of yourself or your company (if you are
a Business Customer). Your Agreement includes: (i) the
requirements and terms of the PCS Services Plan(s) you
choose as set forth in the Service Plan Guide and other
printed materials made available to you at our store; (ii)
if your PCS service plan is not specifically set forth in
any printed materials, the requirements and terms set
forth in the current Service Plan Guide, excluding the
monthly charge and number of minutes included in your
PCS Service Plan – e.g., Anytime, Night & Weekend,
PCS to PCS, etc.; (iii) the most recent Terms and
Conditions of Service for PCS (“Ts&Cs”); and (iv) the
items below.

12
A copy of the Ts&Cs is provided in your phone box or
available upon request, at www.sprintpcs.com or through
Sprint’s Customer Service Solutions department at 1-
800-480-4PCS (4727).

MANDATORY ARBITRATION. As set forth more
completely in the Ts&Cs, you agree to a mandatory
arbitration provision providing that (except for matters
properly brought to small claims courts) any legal or
equitable claim, controversy or dispute of any kind
between you and Sprint and/or any of its employees,
agents, affiliates or other representatives, must be
resolved by final and binding arbitration.
....
Return Policy. Requires return of your complete,
undamaged PCS Phone with the original retailer’s proof
of purchase, within 14 days of purchase and activation
(30 days for California residents). We will provide a
refund either by check or a charge-card credit. We will
refund any activation fee paid and will not charge you an
Early Termination Fee. You will remain responsible for
all charges based on usage prior to deactivation of the
phone (e.g. service charges, taxes, surcharges, etc.).
....
By signing below, you (i) represent that all information
you have provided to Sprint is correct; (ii) agree that you
have read and agreed to all terms of this Agreement,
including the requirements of your PCS Service Plan and
the most recent Ts&Cs; and (iii) if purchasing on behalf
of a business, represent that you are authorized to sign on
such company’s behalf.

THIS CONTRACT CONTAINS A BINDING
ARBITRATION PROVISION WHICH MAY BE
ENFORCED BY THE

Customer Signature

13
 On July 13, 2005, Plaintiff changed the phone number on his second phone

line to 312-545-8378. Plaintiff continued to use this second phone line (with the

new number) by placing calls on it throughout July 2005. So from July 1-13,

2005, Plaintiff’s second phone number was 786-859-9624, and from July 13, 2005

forward it was 312-545-8378.

Plaintiff’s first invoice, dated August 1, 2005, following the acquisition of

his second phone line reflects Plaintiff still carried only one account with Sprint

(No. 0071106751-0) on which three different phone numbers were billed during

July 2005. Plaintiff’s August 1, 2005 invoice also stated that Plaintiff could view

the most current version of Sprint’s Terms and Conditions online or by contacting

Sprint.5 In other words, Plaintiff added the second phone line (with number 786-

859-9624 and then changed it to 312-545-8378) to his pre-existing account for his

first phone line (786-859-6129). Plaintiff’s August 1, 2005 invoice reflected that

he continued to carry one account, stating: “Because you added a new phone to

your account, you will see charges for more than one month of service.”

D. July 2006 – LG VI-5225 Phone

On July 5, 2006, Plaintiff activated a LG model VI-5225 mobile phone for

5
The August 1, 2005 invoice states: “OTHER IMPORTANT INFORMATION The
Terms and Conditions of Sprint PCS Service sometimes change. For the most current version,
please visit our Web site at www.sprintpcs.com or contact us.”

14
use on his first phone line (786-859-6129). The telephone box for the LG VI-5225

phone contained a copy of Sprint’s Terms and Conditions as an independent

document, as opposed to contained in the phone’s user’s guide.6

Plaintiff continued to use his one account (No. 0071106751-0) with two

phone lines until July 10, 2006. As of July 10, 2006, Plaintiff’s second phone line

(then with the number 312-545-8378) became inactive. Thus, as of July 10, 2006,

Plaintiff had what he started with in 2001: one phone line with the same phone

number (786-859-6129) and the same account number (0071106751-0).

In summary, the record shows that during 2001-2006, Plaintiff moved this

first phone line between three different phones: a Samsung SCH-8500 from August

2, 2001 to February 24, 2003; a Samsung SPH-A460 from February 24, 2003 to

July 5, 2006; and a LG VI-5225 from July 5, 2006 to January 20, 2008. Plaintiff

also had a second phone line with a Samsung PM-A740 phone from July 2005 to

July 2006. Each time he acquired a new phone, Sprint provided Plaintiff with a

copy of its Terms and Conditions in effect at that time, and it appears Plaintiff’s

monthly invoices consistently informed Plaintiff that Sprint’s current Terms and

Conditions always were available on Sprint’s website. And he was given a copy of

6
The record does not reflect which version of Sprint’s Terms and Conditions were in
effect as of July 5, 2006 or which version of the Terms and Conditions were contained in the box
for Plaintiff’s LG VI-5225 phone.

15
the Terms and Conditions containing the class action waiver in both 2005 and 2006

when he acquired new phones.

E. 2007-2008

On December 2, 2006, Sprint issued an invoice to Plaintiff for his one

account No. 0071106751-0 which gave the following advance notice that Sprint’s

Terms and Conditions for its service plans would change as of January 1, 2007:

Important Notice.
The Terms & Conditions for Sprint PCS and Nextel
services have been updated. These new terms are
effective January 1, 2007, and are available at
www.sprint.com or upon request. Please carefully
review these terms as they apply to any future use of our
services.

The revised Terms and Conditions effective as of January 1, 2007 were available

on Sprint’s website in December 2006.7 After receiving notice of the updates to

Sprint’s Terms and Conditions, Plaintiff remained a Sprint customer until January

2008.

The January 2007 Terms and Conditions defined Sprint’s “Service” as “our

offers, rate plans, options, wireless services or Devices on your account with us.”

7
In addition to the notice quoted above and similar to the invoice for July 2005,
Plaintiff’s December 2, 2006 invoice also states: “OTHER IMPORTANT INFORMATION
For the most current version of the Sprint PCS Terms and Conditions of Service, please visit our
Web site at www.sprint.com or contact us.” There is no indication in the record that Sprint’s
revised Terms and Conditions, or Sprint’s website, tells the subscriber where the newest changes
are made in any of the Terms and Conditions at issue in this case.

16
The Terms and Conditions also provided: “These Ts&Cs apply to our standard

wireless Services and any other Service we offer you that references these Ts&Cs.”

Similar to its Terms and Conditions since 2001, Sprint’s January 2007

Terms and Conditions provided that the customer accepts the terms by use of or

payment for Sprint services after the effective date:

When You Accept The Agreement

You must have the legal capacity to accept the
Agreement. You accept the Agreement when you do any
of the following: (a) sign a contract with us on paper or
electronically; (b) accept Agreement through an oral or
electronic statement; (c) attempt to or in any way use the
Services; (d) pay for the Services; or (e) open any
package or start any program that says you are accepting
the Agreement when doing so. If you don’t want to
accept the Agreement, don’t do any of these things.

Also similar to Sprint’s previous Terms and Conditions, the Terms and

Conditions effective January 1, 2007 gave Sprint the unilateral right to amend the

agreement and permitted Plaintiff to terminate the contract within 30 days of such

an amendment:

Our Right To Change The Agreement & Your
Related Rights

We may change any part of the Agreement at any
time, including, but not limited to, rates, charges, how
we calculate charges, or your terms of Service. We
will provide you notice of material changes, and may
provide you notice of non-material changes, in a

17
 manner consistent with this Agreement (see
“Providing Notice Under This Agreement”
paragraph). Except as provided below, if a change we
make to the Agreement is material and has a material
adverse effect on you, you may terminate each line of
Service materially affected without incurring an
Early Termination Fee only if you: (a) call us within
30 days after the effective date of the change; and (b)
specifically advise us that you wish to cancel Services
because of a material change to the Agreement that
we have made. If you do not cancel Service within 30
days of the change, an Early Termination Fee will apply
if you terminate Services before the end of any applicable
Term Commitment.

The 2007 Terms and Conditions again contained a provision limiting

Sprint’s liabilities for incidental, consequential, punitive, or special damages:

You Agree Our Liability Is Limited – No
Consequential Damages.

TO THE EXTENT ALLOWED BY LAW, OUR
LIABILITY FOR MONETARY DAMAGES FOR ANY
CLAIMS YOU MAY HAVE AGAINST US IS
LIMITED TO NO MORE THAN THE
PROPORTIONATE AMOUNT OF THE SERVICE
CHARGES ATTRIBUTABLE TO THE AFFECTED
PERIOD. UNDER NO CIRCUMSTANCES ARE WE
LIABLE FOR ANY INCIDENTAL,
CONSEQUENTIAL, PUNITIVE OR SPECIAL
DAMAGES OF ANY NATURE WHATSOEVER
ARISING OUT OF OR RELATED TO PROVIDING
OR FAILING TO PROVIDE SERVICES IN
CONNECTION WITH A DEVICE, INCLUDING, BUT
NOT LIMITED TO, LOST PROFITS, LOSS OF
BUSINESS, OR COST OF REPLACEMENT
PRODUCTS AND SERVICES.

18
 In the January 2007 Terms and Conditions, Sprint expanded its arbitration

provisions, now under the heading of “DISPUTE RESOLUTION.” As the prior

arbitration provisions had, the January 2007 arbitration provision allowed Plaintiff

to pursue qualifying claims in small claims court. All other disputes had to be

brought before an arbitrator. However, the January 2007 Terms and Conditions

expressly provided that, “just as a court would, the arbitrator must honor the terms

and limitations in the Agreement and can award the same damages and relief,

including any attorney’s fees, authorized by law.” Similar to the Terms and

Conditions since June 2004, the January 2007 Terms and Conditions continued to

include a class action waiver, but now the class action waiver appeared twice –

once as part of the arbitration clause, and a second time as a stand-alone waiver of

all potential class action claims. The arbitration clause and first notice of class

action waiver, all under the heading “Dispute Resolution,” are offset from the rest

of the Terms and Conditions in a box and provide the arbitration clause and class

action waiver are not severable from each other:

DISPUTE RESOLUTION

We Agree To First Contact Each Other With Any
Disputes

We each agree to first contact each other with any
disputes and provide a written description of the problem

19
 ....

Instead Of Suing In Court, We Each Agree To
Arbitrate Disputes

We each agree to finally settle all disputes (as defined
and subject to any specific exceptions below) only by
arbitration . . . .

(6) We each agree not to pursue arbitration on a
classwide basis. We each agree that any arbitration
will be solely between you and us (not brought on
behalf of or together with another individual’s claim).
If for any reason any court or arbitrator holds that
this restriction is unconscionable or unenforceable,
then our agreement to arbitrate doesn’t apply and the
dispute must be brought in court.

....

Exceptions To Our Agreement To Arbitrate Disputes
Either of us may bring qualifying claim in small claims
court. In addition, this arbitration provision does not
prevent you from filing your dispute with any federal,
state or local government agency that can, if the law
allows, seek relief against us on your behalf.

Immediately after the above, a second notice of class action waiver followed

outside the text box:

No Class Actions
TO THE EXTENT ALLOWED BY LAW, WE EACH
WAIVE ANY RIGHT TO PURSUE DISPUTES ON A
CLASSWIDE BASIS; THAT IS, TO EITHER JOIN A
CLAIM WITH THE CLAIM OF ANY OTHER
PERSON OR ENTITY, OR ASSERT A CLAIM IN A
REPRESENTATIVE CAPACITY ON BEHALF OF

20
 ANYONE ELSE IN ANY LAWSUIT, ARBITRATION
OR OTHER PROCEEDING.

No Trial By Jury
TO THE EXTENT ALLOWED BY LAW, WE EACH
WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY
LAWSUIT, ARBITRATION, OR OTHER
PROCEEDING.

The January 2007 Terms and Conditions also provided that as to arbitration,

Sprint “will cover any arbitration administrative or filing fees above: (a) $25 if you

are seeking less than $1,000 from us; or (b) the equivalent court filing fees for a

court action in the appropriate jurisdiction if you are seeking $1,000 or more from

us.”

On December 2, 2007, Sprint issued an invoice to Plaintiff containing

advance notice that the Terms and Conditions again would be amended, effective

January 1, 2008.8 The notice provided:

Important Notice: Changes to Terms and Conditions
The Terms & Conditions for Sprint PCS and Nextel
services have been updated. These new terms are
effective January 1, 2008, and are available at sprint.com
or upon request. Please carefully review these terms as
they apply to any future use of our services.

Plaintiff continued to use his Sprint service following the January 1, 2008 effective

8
The December 2, 2007 invoice again also provided: “OTHER IMPORTANT
INFORMATION For the most current version of the Sprint PCS Terms and Conditions of
Service, please visit our Web site at www.sprint.com or contact us.”

21
date.

Sprint’s January 2008 Terms and Conditions are not materially

distinguishable from its January 2007 Terms and Conditions. Similar to the

previous Terms and Conditions, the January 2008 Terms and Conditions provide

they are accepted upon Plaintiff’s using Sprint services9 after the effective date:

When You Accept The Agreement

You must have the legal capacity to accept the
Agreement. You accept the Agreement when you do any
of the following: (a) sign a contract with us on paper or
electronically; (b) accept Agreement through an oral or
electronic statement; (c) attempt to or in any way use the
Services; (d) pay for the Services; or (e) open any
package or start any program that says you are accepting
the Agreement when doing so. If you don’t want to
accept the Agreement, don’t do any of these things.

The 2008 Terms and Conditions again give Sprint the right to unilaterally

modify the agreement and Plaintiff the right to terminate his contract within 30

days of a material change:

Our Right To Change The Agreement & Your
Related Rights

We may change any part of the Agreement at any time,
including, but not limited to, rates, charges, how we

9
The January 2008 Terms and Conditions again defined “Service” as “our offers, rate
plans, options, wireless services or Devices on your account with us,” and stated, “These Ts&Cs
apply to our standard wireless Services and any other Service we offer you that references these
Ts&Cs.”

22
 calculate charges, or your terms of Service. We will
provide you notice of material changes, and may
provide you notice of non-material changes, in a
manner consistent with this Agreement (see “Providing
Notice To Each Other Under The Agreement” section).
If a change we make to the Agreement is material and
has a material adverse effect on Services under your
Term Commitment, you may terminate each line of
Service materially affected without incurring an Early
Termination Fee only if you: (a) call us within 30 days
after the effective date of the change; and (b)
specifically advise us that you wish to cancel Services
because of a material change to the Agreement that we
have made. If you do not cancel Service within 30 days
of the change, an Early Termination Fee will apply if you
terminate Services before the end of any applicable Term
Commitment.

The January 2008 Terms and Conditions limit Sprint’s liabilities:

You Agree Our Liability Is Limited – No
Consequential Damages.

TO THE EXTENT ALLOWED BY LAW, OUR
LIABILITY FOR MONETARY DAMAGES FOR ANY
CLAIMS YOU MAY HAVE AGAINST US IS
LIMITED TO NO MORE THAN THE
PROPORTIONATE AMOUNT OF THE SERVICE
CHARGES ATTRIBUTABLE TO THE AFFECTED
PERIOD. UNDER NO CIRCUMSTANCES ARE WE
LIABLE FOR ANY INCIDENTAL,
CONSEQUENTIAL, PUNITIVE OR SPECIAL
DAMAGES OF ANY NATURE WHATSOEVER
ARISING OUT OF OR RELATED TO PROVIDING
OR FAILING TO PROVIDE SERVICES IN
CONNECTION WITH A DEVICE, INCLUDING, BUT
NOT LIMITED TO, LOST PROFITS, LOSS OF
BUSINESS, OR COST OF REPLACEMENT

23
 PRODUCTS AND SERVICES.

Finally, the January 2008 Terms and Conditions contain slightly updated

arbitration and class action waiver provisions and similarly provide that Sprint will

pay certain arbitration fees, that the arbitrator can award damages and relief,

including attorney’s fees, as authorized by law, and that the arbitration and class

action waiver are non-severable:

DISPUTE RESOLUTION

We Agree To First Contact Each Other With Any
Disputes
We each agree to first contact each other with any
disputes and provide a written description of the problem
....

Instead Of Suing In Court, We Each Agree To
Arbitrate Disputes
We each agree to finally settle all disputes (as defined
and subject to any specific exceptions below) only by
arbitration. In arbitration, there’s no judge or jury and
review is limited. However, just as a court would, the
arbitrator must honor the terms and limitations in the
Agreement and can award the same damages and relief,
including any attorney’s fees, authorized by law.
....
(6) We each agree not to pursue arbitration on a
classwide basis. We each agree that any arbitration will
be solely between you and us (not brought on behalf of
or together with another individual’s claim). If for any
reason any court or arbitrator holds that this restriction
is unconscionable or unenforceable, then our
agreement to arbitrate doesn’t apply and the dispute
must be brought in court.

24
 (7) We each are responsible for our respective costs
relating to counsel, experts, and witnesses, as well as any
other costs relating to the arbitration. However, we will
cover any arbitration administrative or filing fees above:
(a) $25 if you are seeking less than $1,000 from us; or (b)
the equivalent court filing fees for a court action in the
appropriate jurisdiction if you are seeking $1,000 or more
from us.

Exceptions To Our Agreement To Arbitrate Disputes
Either of us many bring qualifying claims in small claims
court. In addition, this arbitration provision does not
prevent you from filing your dispute with any federal,
state or local government agency that can, if the law
allows, seek relief against us on your behalf.

No Class Actions
TO THE EXTENT ALLOWED BY LAW, WE EACH
WAIVE ANY RIGHT TO PURSUE DISPUTES ON A
CLASSWIDE BASIS; THAT IS, TO EITHER JOIN A
CLAIM WITH THE CLAIM OF ANY OTHER
PERSON OR ENTITY, OR ASSERT A CLAIM IN A
REPRESENTATIVE CAPACITY ON BEHALF OF
ANYONE ELSE IN ANY LAWSUIT, ARBITRATION
OR OTHER PROCEEDING.

No Trial By Jury
TO THE EXTENT ALLOWED BY LAW, WE EACH
WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY
LAWSUIT, ARBITRATION OR OTHER
PROCEEDING.

Plaintiff remained a Sprint customer from August 6, 2001 until January 20,

2008, when he had his original phone number (786-859-6129) ported to another

25
service provider, without notification to Sprint.10

F. District Court Proceedings

On February 29, 2008, Plaintiff filed this action, individually and on behalf

of a similarly situated class. Plaintiff alleges Sprint improperly charged customers

roaming fees while they were physically in Sprint’s coverage area. Plaintiff

alleges Sprint’s network limitations caused it to route calls placed within its

geographic coverage area to cellular towers owned by other carriers, causing

improper charging of roaming fees. Plaintiff asserts claims under the Florida

Deceptive and Unfair Trade Practices Act (“FDUTPA”) and Florida law, including

breach of contract and negligent misrepresentation. He seeks monetary damages

and declaratory and injunctive relief. Plaintiff estimates his actual individual

damages to be approximately $20.00.

Plaintiff bases his claims entirely on alleged improper roaming charges. In

his first affidavit, Plaintiff avers that: “During the summer of 2007, I learned for

the first time that Sprint may have been wrongfully charging me for roaming fees

for calls made or received in a PCS coverage area, so I examined my past invoices

and saw several charges that I brought to my attorney’s attention.” The record

reflects Plaintiff was charged for a total of 39 roaming minutes between July 1,

10
Since 2003, Federal Communications Commission rules have required phone number
portability between mobile phone providers. 47 C.F.R. § 52.31.

26
2004 and June 30, 2006. Each roaming minute was incurred on Plaintiff’s original

phone number (786-859-6129).

Plaintiff’s second affidavit avers that he cannot afford a lawyer at an hourly

rate to assert his claims against Sprint and that, absent the benefit of a class action,

he would not pursue his claims at all because the risk of non-recovery and cost of

arbitration outweigh the value of any potential award.

Sprint filed a motion to compel arbitration, contending the arbitration and

class-action waiver clauses in its January 1, 2008 Terms and Conditions barred this

suit. In response, Plaintiff did not argue the arbitration clause itself is

unconscionable. Plaintiff’s argument is that the class action waiver is

unconscionable and thus unenforceable. Sprint’s January 2008 Terms and

Conditions, as they have since January 2007, explicitly require that the arbitration

and class action waiver provisions not be severed from each other. The district

court recognized that the enforceability of the class action waiver was a threshold

issue not severable from the arbitration clause itself. All parties agreed, and the

district court found, that the enforceability of the class action waiver in Plaintiff’s

contract with Sprint is governed by Florida law.

On January 13, 2009, following a hearing and supplemental briefing, the

district court agreed with Sprint, compelled arbitration, and dismissed the case.

27
The district court reasoned that under Florida law, Plaintiff must show both

procedural and substantive unconscionability to establish that a class action waiver

is unenforceable. The district court found the class action waiver was not

procedurally unconscionable and thus must be enforced. The district court

expressly declined to address substantive unconscionability.

Plaintiff filed this timely appeal.11

II. DISCUSSION

A. Florida Law Controls

Federal courts sitting in diversity apply the substantive law of the state in

which the case arose. See Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817

(1938). In this diversity case, we review the enforceability of the class action

waiver in Sprint’s Terms and Conditions in accordance with Florida law. See

Associated Mech. Contractors, Inc. v. Martin K. Eby Const. Co., 271 F.3d 1309,

1314 (11th Cir. 2001).

In instances where a state’s highest court has not ruled on a point of state

law, “‘federal courts are bound by decisions of a state’s intermediate appellate

courts unless there is persuasive evidence that the highest state court would rule

11
This Court reviews the district court’s grant of Sprint’s motion to compel arbitration de
novo. Dale v. Comcast Corp., 498 F.3d 1216, 1219 (11th Cir. 2007). We also review de novo a
district court’s determination and application of state law in a diversity case. Gen. Am. Life Ins.
Co. v. AmSouth Bank, 100 F.3d 893, 897 (11th Cir. 1996).

28
otherwise.’” Bravo v. United States, 577 F.3d 1324, 1325 (11th Cir. 2009)

(quoting King v. Order of United Commercial Travelers of Am., 333 U.S. 153,

158, 68 S. Ct. 488, 491 (1948)). Our precedent indicates that all other data may be

considered to the extent they indicate how the Florida Supreme Court might rule

on an issue. See id., 577 F.3d at 1326 (quoting Putman v. Erie City Mfg. Co., 338

F.2d 911, 917 (5th Cir. 1964)) (“‘The Court is forced, therefore, to look to all

available data; for example, to such sources as the Restatements of Law, treatises

and law review commentary, and the majority rule, keeping in mind that it must

choose the rule which it believes the state court, from all that is known about its

methods of reaching decisions[,] is likely in the future to adopt.’”).12

“‘Where there is any doubt as to the application of state law, a federal court

should certify the question to the state supreme court to avoid making unnecessary

Erie “guesses” and to offer the state court the opportunity to interpret or change

existing law.’” CSX Transp., Inc. v. City of Garden City, 325 F.3d 1236, 1239

(11th Cir. 2003) (quoting Mosher v. Speedstar Div. of AMCA Int'l, Inc., 52 F.3d

913, 916-17 (11th Cir.1995)).

B. Florida Standards For Unconscionability

The first issue on appeal is whether Florida law requires a plaintiff to show

12
This Court adopted as binding precedent all Fifth Circuit decisions prior to October 1,
1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).

29
both procedural and substantive unconscionability to establish that a class action

waiver is unenforceable.13

Plaintiff argues that under Florida contract law the test for unconscionability

is “chameleon-like” and that at least some formulations of it do not require a

showing of both procedural and substantive unconscionability. Alternatively,

Plaintiff argues that even if both are required, Florida courts use a balancing test or

sliding scale, such that if a high amount of procedural unconscionability exists,

Plaintiff need show only a minimal amount of substantive unconscionability.

Plaintiff asserts the district court erred in assessing procedural and substantive

unconscionability independently and stopping its analysis entirely after finding no

procedural unconscionability.

Our review of Florida law confirms the district court’s interpretation of

Florida law as requiring a showing of both procedural and substantive

13
Although Plaintiff complains only about Sprint’s class action waiver, that waiver is a
non-severable portion of the arbitration clause in Sprint’s Terms and Conditions. “The validity
of an arbitration agreement is generally governed by the Federal Arbitration Act, 9 U.S.C. §§ 1
et seq. (the “FAA”), which was enacted in 1925 to reverse the longstanding judicial hostility
toward arbitration.” Caley v. Gulfstream Aerospace Corp., 428 F.3d 1359, 1367 (11th Cir.
2005). Under the FAA, arbitration agreements are enforceable except where state or federal law
provides grounds for their revocation. Id. “Thus, generally applicable contract defenses, such as
fraud, duress, or unconscionability, may be applied to invalidate arbitration agreements.” Dale,
498 F.3d at 1219 (quotation omitted). The parties do not dispute that given the non-severability
of the arbitration and class action waiver clauses in Sprint’s agreement, the defense of
unconscionability to the class action waiver is available to the Plaintiff as to Sprint’s motion to
compel arbitration.

30
unconscionability. Precedent from the Florida Third District Court of Appeal

consistently requires a showing of both procedural and substantive

unconscionability. Hialeah Auto., LLC v. Basulto, __ So.2d __, No. 3D07-855,

2009 WL 187584, at *2 (Fla. 3d Dist. Ct. App. Jan. 28, 2009) (“Our court has said

that, to invalidate a contract for unconscionability ‘under Florida law, a court must

find that the contract is both procedurally and substantively unconscionable.’”)

(quoting Murphy v. Courtesy Ford, L.L.C., 944 So.2d 1131, 1134 (Fla. 3d Dist. Ct.

App. 2006)); see also Golden v. Mobil Oil Corp., 882 F.2d 490, 493 (11th Cir.

1989) (stating in a commercial lease setting that Florida courts require a plaintiff to

show both procedural and substantive unconscionability). Decisions from other

Florida appellate districts also consistently require a showing of both procedural

and substantive unconscionability. E.g., Bland v. Health Care & Retirement Corp.

of Am., 927 So.2d 252, 256 (Fla. 2d Dist. Ct. App. 2006); Fonte v. AT&T Wireless

Servs., Inc., 903 So.2d 1019, 1025 (Fla. 4th Dist. Ct. App. 2005); Powertel, Inc. v.

Bexley, 743 So.2d 570, 574 (Fla. 1st Dist. Ct. App. 1999).

Nonetheless, there is some tension in Florida law regarding the analytical

framework courts should use in evaluating both procedural and substantive

unconscionability. Must courts evaluate both prongs simultaneously in a balancing

exercise, or may courts stop the analysis after finding either procedural or

31
substantive unconscionability to be independently lacking?

Some Florida courts appear to reject the procedural-plus-substantive

unconscionability requirement as a rule of law or use a balancing or sliding scale

approach. Steinhardt v. Rudolph, 422 So.2d 884, 889 (Fla. 3d Dist. Ct. App. 1982)

(stating that although most courts take a “balancing approach” requiring “a certain

quantum of procedural plus a certain quantum of substantive unconscionability,”

the “procedural-substantive analysis is . . . only a general approach to the

unconscionability question and is not a rule of law”) (quotation omitted and

emphasis added); Fonte, 903 So.2d at 1025 (“‘The prevailing view is that

procedural and substantive unconscionability must both be present in order for a

court to exercise its discretion to refuse to enforce a contract or clause under the

doctrine of unconscionability. But they need not be present in the same degree . . .

.’”); Romano v. Manor Care, Inc., 861 So.2d 59, 62 (Fla. 4th Dist. Ct. App. 2003)

(stating “[e]ssentially a sliding scale is invoked” and “the more substantively

oppressive the contract term, the less evidence of procedural unconscionability is

required to come to the conclusion that the term is unenforceable, and vice versa”).

Other Florida courts do not use, and some in fact never mention, a balancing

or sliding scale approach and assess procedural and substantive unconscionability

independently, concluding that if one part of the unconscionability test is not

32
established, the other part need not be examined at all. Bland, 927 So.2d at 257

(“This court, however, eschews the ‘sliding scale’ approach. Rather, we assess

procedural unconscionability and substantive unconscionability independently.”);

Nat’l Fin. Servs., L.L.C. v. Mahan, 19 So.3d 1134, 1136-37 (Fla. 3d Dist. Ct. App.

2009) (“Because the arbitration provisions in this case suffered from no procedural

malady, we do not reach the question of substantive unconscionability.”); Belcher

v. Kier, 558 So.2d 1039, 1045 (Fla. 2d Dist. Ct. App. 1990) (stating “the court

must view unconscionability in a two-pronged approach, i.e., procedural

unconscionability and substantive unconscionability” and “because the appellees

were unable to carry their burden as to both prongs, the ruling in their favor cannot

stand.”); see also Hialeah, __ So.2d __, 2009 WL 187584, at *5 n.4 (“Speaking for

himself, the writer of the opinion suggests that in an appropriate future case, this

court should reconsider Murphy v. Courtesy Ford, L.L.C., 944 So.2d 1131 (Fla. 3d

Dist. Ct. App. 2006) . . . . Although the requirement for both procedural and

substantive unconscionability has been repeated in a number of arbitration cases in

recent years, I respectfully suggest that holding is (a) illogical, and (b) inconsistent

with this court’s decision in Steinhardt v. Rudolph, 422 So.2d 884 (Fla. 3d Dist.

Ct. App. 1982).”) (Cope, J.).14

14
In Golden v. Mobil Oil Corp., involving a commercial lease, this Court recognized that
Florida’s Third District Court of Appeal in Steinhardt “reject[ed the] procedural-substantive

33
 As a result of this tension, there is a question as to the analytical method –

balancing, sliding scale or independent analysis – courts should use in considering

procedural and substantive unconscionability issues under Florida law, which we

conclude should be certified to the Florida Supreme Court.

C. Procedural Unconscionability

Whatever the approach used, it also is not clear whether Sprint’s contract

with the Plaintiff is procedurally unconscionable under Florida law. To determine

whether a contract is procedurally unconscionable under Florida law, courts must

look to: (1) the manner in which the contract was entered into; (2) the relative

bargaining power of the parties and whether the complaining party had a

meaningful choice at the time the contract was entered into; (3) whether the terms

were merely presented on a “take-it-or-leave-it” basis; and (4) the complaining

party’s ability and opportunity to understand the disputed terms of the contract.

Powertel, 743 So.2d at 574; Murphy, 944 So.2d at 1134. Under Florida law, a

analysis as a rule of law, but not[ed] that it is ‘generally helpful.’” 882 F.2d at 493. Golden
concluded that “[w]e need not decide whether the transaction . . . was procedurally
unconscionable because we hold that the limitation of liability clause was not substantively
unconscionable.” Id. at 493-94. However, several Florida intermediate appellate decisions, after
Golden was decided in 1989, adhere to a strict procedural-substantive analysis, do not appear to
follow Steinhardt, and establish a lack of clarity in Florida law.
“If state law changes or is clarified in a way that is inconsistent with the state law
premise of one of our earlier decisions, the prior panel precedent rule does not bind us to follow
our earlier decision.” United States v. Johnson, 528 F.3d 1318, 1320 (11th Cir. 2008). This is
yet another reason why we certify the questions in this case to the Florida Supreme Court.

34
central question in the procedural unconscionability analysis is whether the

consumer has an absence of meaningful choice in whether to accept the contract

terms. Belcher, 558 So.2d at 1042. In addition, Florida courts “might find that a

contract is procedurally unconscionable if important terms were hidden in a maze

of fine print and minimized by deceptive sales practices.” Powertel, 743 So.2d at

574 (quotation marks omitted).

Here, the district court determined that Plaintiff had a meaningful choice and

that Sprint’s class action waiver was not procedurally unconscionable because

Plaintiff had notice of the class action waiver when he executed the 2005

Advantage Agreement, could have rejected the class action waiver within 14 days

of signing his 2005 agreement, could have used other mobile phone carriers (while

keeping the same phone number) without signing a class action waiver, and was

not prohibited from changing to an alternate provider due to the cost of lost

equipment (the Sprint-only mobile phone).

On appeal, Plaintiff relies primarily on the First District’s Powertel case to

argue that the Sprint class action waiver is procedurally unconscionable. In

Powertel, the Florida First District Court of Appeal invalidated an arbitration

clause in a cellular phone service contract. Powertel, 743 So.2d at 572. The

Florida appellate court determined the arbitration provision was unconscionable

35
because (1) the plaintiff lacked any meaningful choice in the matter, and (2)

cancelling the contract was not an effective remedy since it would cause the loss of

purchased equipment that worked only with Powertel’s network and the plaintiff’s

telephone number could not be transferred to a new provider. Id. at 575. The

Florida appellate court added that its procedural unconscionability determination

was supported by deficiencies in the way Powertel notified its customers of the

revised “Terms and Conditions of Service,” including small print, no clear way to

know what provisions were changed, and nothing to indicate it contained anything

new. Id.15 The Florida appellate court concluded “the method Powertel employed

may have left many customers unaware of the new arbitration clause.” Id.

In contrast, Florida’s Fourth District Court of Appeal concluded in Fonte v.

AT&T Wireless Services that the arbitration clause/class action waiver in a mobile

phone contract was not procedurally unconscionable. Fonte, 903 So.2d at 1025-26.

15
A subsequent Second District Court of Appeal decision stated that the “take it or leave
it” nature of the cellular contract modification in Powertel was key to its procedural
unconscionability. Orkin Exterminating Co., Inc. v. Petsch, 872 So.2d 259, 265 (Fla. 2d Dist.
Ct. App. 2004) (“The agreement in Powertel was, without question, procedurally
unconscionable. Powertel, a cellular service provider, attempted to modify its contracts with
customers after the fact, by including an insert in the customer’s bill stating the terms of the
existing contracts would be changed to add an arbitration provision as of a certain date. If the
customer continued to use the cellular service, he or she was deemed to have accepted the new
contract terms . . . . Powertel’s customers had no choice but to agree to the new arbitration clause
if they wished to continue to use the cellular telephone plans they had already purchased.”)
(emphasis added).

36
The Fonte plaintiff executed an AT&T wireless contract and, at the time of the

initial contract, received AT&T’s terms and conditions, which included arbitration

and class action waiver clauses similar to the provisions in this case. See id. at

1021-24. Although suggesting the arbitration clause might be an adhesion

contract,16 the Florida appellate court in Fonte concluded the clause was not

procedurally unconscionable, distinguishing Powertel. Id. at 1026-27. The Fonte

court stated: “Contrary to the manner in which the arbitration clause in Powertel

was imposed, AT&T included the arbitration clause in the original contract and

notified [the plaintiff] numerous times to carefully review the Terms and

Conditions, . . . [and the plaintiff] had no prior investment in AT&T equipment . . .

.” Id. at 1026-27. The Florida court also noted that the plaintiff in Fonte was free

to choose any alternate wireless carrier. Id. at 1027.

The parties cite several other Florida intermediate appellate decisions

discussing procedural unconscionability. Each depends highly on the particular

facts of the case. For example, in Murphy v. Courtesy Ford, Florida’s Third

16
Plaintiff contends that Sprint’s Terms and Conditions qualify as an adhesion contract
under Florida law, and Sprint does not dispute this characterization. See Powertel, 743 So.2d at
574 (“Generally, an adhesion contract is defined as a standardized contract form offered to
consumers of goods and services on essentially a ‘take it or leave it’ basis without affording the
consumer a realistic opportunity to bargain and under such conditions that the consumer cannot
obtain the desired product or services except by acquiescing in the form contract.”) (quotations
omitted). The fact that a contract is one of adhesion is significant, but not dispositive, to the
procedural unconscionability analysis under Florida law. Id.

37
District Court of Appeal affirmed the trial court’s determination that an arbitration

clause contained as part of the conditions of an automobile purchase contract was

not procedurally unconscionable. Murphy, 944 So.2d at 1134-35. The Florida

court reasoned that the arbitration clause appeared in the same type-face as the rest

of the agreement, and there was no evidence that the automobile dealers actively

discouraged or prevented the customer from understanding the terms. Id. at 1135

(“[The plaintiff] cannot avoid her contractual responsibility simply because she

chose not to review the terms of her agreement.”); see also Orkin Exterminating

Co., 872 So.2d at 265 (“[T]he arbitration provision was contained in the original

contract between the parties. It was in large type on the first page of the

agreement, not buried in a maze of fine print. While it was a preprinted provision,

we cannot agree with the circuit court’s finding that it was a contract of

adhesion.”).

However, in Steinhardt v. Rudolph, Florida’s Third District Court of Appeal

concluded a rent escalation clause in an initial condominium lease agreement was

procedurally unconscionable. Steinhardt, 422 So.2d at 886. The Florida appellate

court noted several factors indicating procedural unconscionability, including the

absence of individual condominium unit owners in the negotiations for rent

increases, the inability of owners to opt out of the contract, and the fact that many

38
contractual documents were not provided to individual owners until after closing.

Id. at 892. In Belcher v. Kier, Florida’s Second District Court of Appeal concluded

rental price increases for mobile home tenants were procedurally unconscionable,

mostly because “the difficulties inherent in moving the home from one settled

location to another” made it nearly impossible for the mobile home tenants to be in

the same bargaining position as mobile home park owners. Belcher, 558 So.2d at

1042.17 Finally, in Hialeah Automotive v. Basulto, Florida’s Third District Court

of Appeal determined an arbitration clause in an initial automotive sales contract

was procedurally unconscionable because its terms were in English, the plaintiffs

did not speak English, and the dealership’s employees knew this fact and

conducted the entire transaction, apart from the written agreement, in Spanish, but

did not inform the plaintiffs of the arbitration clause or provide a Spanish language

translation of the initial contract. Hialeah, 2009 WL 187584, at *2-3.

The facts of this case are different from all of the above Florida decisions,

and it is not clear what a Florida court would do if this case were presented to it.

Here, at the time Plaintiff purchased a second phone on the same account as his

first phone, Plaintiff’s 2005 Advantage Agreement contained the arbitration clause

17
Florida’s Second District Court of Appeal ultimately concluded in Belcher that the
contract, although procedurally unconscionable, was not unconscionable on the whole because
the rental increases were not substantively unconscionable. Id. at 1045.

39
and expressly referenced Sprint’s separate 2004 Terms and Conditions, which

contained the class action waiver in clearly understandable print and terms, as

discussed later. The class action waiver remained in the 2007 and 2008 Terms and

Conditions, which Sprint brought to Plaintiff’s attention in monthly invoices and

on its website. Plaintiff argues, however, that Sprint changed the Terms and

Conditions over the course of 2001 to 2008 and did not call his attention to new

provisions, such as the class action waiver, that were added in 2004.

Plaintiff stresses that once he contracted with Sprint in 2001, he could not

have left Sprint for another carrier without rendering his Sprint mobile phone for

his first phone line useless, as it only worked on Sprint’s network.18 Yet the

evidence in the record does not show how much Plaintiff paid for his first phone in

2001, much less how much it was worth, if anything, in 2008.19 Instead, Plaintiff

asserts he “can’t know these things because he never attempted to terminate his

plan or sell his phone, nor are they relevant since the mere fact that such a burden

exists supports the Plaintiff’s unconscionability argument.”

18
It is undisputed that Plaintiff could have cancelled his second phone line within 14 days
of signing the 2005 Advantage Agreement with no monetary penalty and with a full refund of his
second phone.
19
Plaintiff admits in his Reply Brief that he did not submit evidence regarding the 2008
value of his first phone (obtained in 2001) or the cost of replacing it. For that matter, Plaintiff
has submitted no evidence of the purchase price or 2008 value of any of the mobile phones he
used.

40
 Plaintiff also argues he could not have effectively cancelled his service

contract with Sprint because there was no equivalent alternative carrier that did not

also have a class action waiver in its contracts. However, the record indicates both

TracFone and Virgin Mobile offered mobile service without a class action waiver

in Plaintiff’s service area in 2005 when he signed the 2005 Advantage Agreement.

Plaintiff claims neither carrier was an acceptable substitute because Virgin Mobile

allegedly did not offer roaming services beyond the Sprint PCS network, and

TracFone settled a lawsuit in 2007 for allegedly charging its customers improper

roaming charges. Sprint responds that these de minimis differences from Sprint’s

service do not negate that TracFone and Virgin Mobile were available alternatives

to the Sprint service and did not have class action waivers in 2005, and that Florida

law does not require that the available alternatives are perfect substitutes for the

original service.

Sprint also emphasizes, as did the district court, that Plaintiff had a 14-day

period following execution of the 2005 Advantage Agreement during which he

could have cancelled his Sprint services without incurring any penalty and would

receive a full refund of his second phone purchase. Although Plaintiff arguably

had no bargaining power as to the class action wavier in the 2005 Advantage

Agreement, Sprint provided a mechanism through which Plaintiff could have

41
avoided the contract entirely. Thereafter, each time Sprint amended its terms and

conditions, Plaintiff had 30 days to cancel his service without payment of any

penalty fees. As to his mobile phone equipment, Plaintiff repeatedly changed

mobile phone models and admits Sprint subsidized the phones for his service

agreements, although he has submitted no evidence of what he actually paid for the

phones. And Plaintiff’s mobile phone number was required by law to be portable

to other carriers.

Furthermore, the arbitration and class action clauses in this case are clearly

demarcated from the rest of the document and emphasized by being in either bold,

all caps, boxes, or all three. Upon review of the entire Terms and Conditions

applicable in 2005, 2007, and 2008, it is apparent that if Plaintiff had read the

terms and conditions he would have at a minimum noticed these arbitration and

class action waiver clauses, as they are visually distinct from the rest of the

contract and are relatively easy for nonlawyers to understand. E.g.,

(“MANDATORY ARBITRATION OF DISPUTES . . . . NO CLAIM . . .

SHALL BE RESOLVED ON A CLASS-WIDE BASIS”); (“Instead Of Suing In

Court, We Each Agree To Arbitrate Disputes”); (“No Class Actions”). And

when he signed the 2005 Advantage Agreement, Plaintiff represented he had read

the Terms and Conditions. This case is arguably distinct from Florida appellate

42
cases such as Powertel, Murphy, and Hialeah in which unconscionable clauses

were found in small print or buried within agreements, or were in a language other

than the language in which the plaintiff carried out a sales transaction.

Nonetheless, Sprint repeatedly changed its Terms and Conditions without calling

to the subscriber’s attention which parts were new.

After consideration of all Florida intermediate appellate cases cited by the

parties, we cannot determine whether a Florida court would find Sprint’s contract

under the particular facts of this case procedurally unconscionable. Given the

unsettled state of Florida law, the enormous number of mobile phone contracts

these days, and the frequency of these types of unconscionability claims, we

conclude the question of whether Sprint’s contract is procedurally unconscionable

should be certified to the Florida Supreme Court.

D. Substantive Unconscionability

Plaintiff also claims the class action waiver is substantively unconscionable.

Under Florida law, substantive unconscionability focuses on the terms of the

agreement itself and whether the terms of the contract are “unreasonable and

unfair.” Powertel, 743 So.2d at 574; Kohl v. Bay Colony Club Condominium,

Inc., 398 So.2d 865, 868 (Fla. 4th Dist. Ct. App. 1981); accord Golden, 882 F.2d at

493 (stating that under Florida law, “[s]ubstantive unconscionability exists when

43
the terms of the contractual provision are unreasonable and unfair”).20 Substantive

unconscionability focuses “directly on those terms of the contract itself which

amount to an outrageous degree of unfairness to the same contracting party.”

Steinhardt, 422 So.2d at 889. Florida generally defines substantive

unconscionability in reference to an agreement “‘no man in his senses and not

under delusion would make on the one hand, and as no honest and fair man would

accept on the other.’” Belcher, 558 So.2d at 1044 (quoting Hume v. United States,

132 U.S. 406, 10 S. Ct. 134 (1889)).

Plaintiff contends the waiver of the class action remedy in Sprint’s Terms

and Conditions renders his contract substantively unconscionable. Absent the

ability to bring suit as a class, Plaintiff argues (1) that his improper roaming fees

claim is too small to litigate individually; (2) he will be unable to find legal

representation because attorneys will not be able to pool plaintiffs as a class and

collect fees from the class award; and (3) thus the class action waiver effectively

20
This Court in Golden noted that “Florida courts consistently have upheld the right to
limit the remedies available in the event of a breach of a commercial lease agreement.” Golden,
882 F.2d at 494 (citing various Florida cases). The clause at issue in Golden did not prevent the
plaintiff from recovering all damages, but limited his potential recovery to “the difference
between the stipulated rent and the value of the use of the premises.” Id. (quotation marks
omitted). Negotiated commercial leases are arguably different from individual consumer
contracts on standard forms, and thus Golden does not answer the issue here.

44
bars him from bringing suit at all.21

Some Florida cases support Plaintiff’s argument. In Powertel, Florida’s

First District Court of Appeal found an arbitration clause that “effectively

remove[d] Powertel’s exposure to any remedy that could be pursued on behalf of a

class of consumers” substantively unconscionable in part because “the agreement

requires the customers to give up other legal remedies.” Powertel, 743 So.2d at

576 (stating, “One indicator of substantive unconscionability is that the agreement

requires the customers to give up other legal remedies.”). The Powertel court

emphasized that the arbitration clause and class action waiver (1) limited the

plaintiff to actual damages only, thereby precluding recovery of punitive damages;

(2) “precluded the possibility that a group of its customers might join together to

seek relief that would be impractical for any of them to obtain alone”; and (3) did

not allow an arbitrator to provide injunctive or declaratory relief, thereby

effectively forcing plaintiffs to “waive important statutory remedies” (such as those

granted under FDUTPA) and “effectively insulat[ing] Powertel from liability under

21
Plaintiff does not argue that the general limitation on Sprint’s liability repeated in its
Terms and Conditions is relevant to the Court’s analysis for either procedural or substantive
unconscionability. Instead, Plaintiff argues that, without the ability to litigate as a class, the
possibility of a discretionary award of attorney’s fees on his FDUTPA claim, pursuant to Fla.
Stat. § 501.2105(1), is not a sufficient incentive for an attorney to take that claim. Plaintiff’s
briefing on appeal does not otherwise contest Sprint’s limitations on the damages Plaintiff could
receive, whether through an individual suit or class action. Indeed, no party in this appeal cites
Sprint’s limitation-of-damages clause.

45
state consumer laws.” Id. at 576-77.22

In another case, Bellsouth Mobility LLC v. Christopher, 819 So.2d 171, 173

(Fla. 4th Dist. Ct. App. 2002), Florida’s Fourth District Court of Appeal considered

the unconscionability of a class action waiver in an arbitration clause of a wireless

phone contract, stating:

The contract on its face supports that the arbitration
clause is, at a minimum, substantively unconscionable
because it requires customers to give up many specific
legal remedies. For instance, it expressly limits
Bellsouth’s liability to actual damages, even if its
conduct rises to the level of outrageousness required to
assess punitive damages. It also expressly removes
Bellsouth’s exposure to a class action suit which, in this
case, may be warranted due to the numerosity of the
small claims asserted, the common questions of law and
fact raised by the claims, the typicality of the claims, and
Christopher's status as a fair representative of the class.

Id. Ultimately, the Florida appellate court in Bellsouth Mobility did not hold that

22
In cases under Georgia law or federal law, this Court has concluded that arbitration
agreements precluding class action relief generally are valid and enforceable and not
unconscionable. Caley, 428 F.3d at 1378 (Georgia law applied to employment contract); Jenkins
v. First Am. Cash Advance of Ga., LLC, 400 F.3d 868, 877-78 (11th Cir. 2005) (Georgia law
applied to consumer lending agreements); Randolph v Green Fin. Corp.-Ala., 244 F.3d 814, 819
(11th Cir. 2001) (Truth in Lending Act and federal law applied to consumer lending agreement).
However, in Dale v. Comcast Corp., 498 F.3d 1216 (11th Cir. 2007) (Georgia law
applied to cable television subscriber agreement), this Court concluded the class action waiver
was unconscionable based on the specific facts and circumstances of that case, which the Dale
court concluded were materially different from Caley, Jenkins, and Randolph. Id. at 1220-23.
The Dale court stressed that “the enforceability of a particular class action waiver in an
arbitration agreement must be determined on a case-by-case basis, considering the totality of the
facts and circumstances.” Id. at 1224. Thus, our precedents as to Georgia and federal law do not
help much in this Florida case with its own set of unique facts.

46
the contract was substantively unconscionable because the trial court had not made

sufficient evidentiary findings to support an unconscionability ruling. Id.23

The problem for Plaintiff in this case is that the facts here are materially

different from Powertel and BellSouth Mobility, making the substantive

unconscionability issue in this particular case an unsettled question under Florida

law. Here, for example, Sprint’s 2007 and 2008 Terms and Conditions expressly

provide that Plaintiff may recover damages and attorney’s fees, as authorized by

the law governing his claims, in an arbitration proceeding against Sprint to the

same extent as he would be able to in court. And Plaintiff makes claims under a

Florida law, the FDUTPA, that specifically allows for the permissive recovery of

attorney’s fees and costs in civil suits. Fla. Stat. § 501.2105(1). Sprint’s Terms

and Conditions also do not bar declaratory or injunctive relief under FDUTPA. Cf.

Powertel, 743 So.2d at 576 (stating contract was substantively unconscionable in

part because plaintiff was required to waive “important statutory remedies” such as

declaratory or injunctive relief under FDUTPA).

Moreover, Sprint’s 2007 and 2008 Terms and Conditions provide for several

23
Plaintiff also cites to several other cases from Florida or this Circuit which he contends
invalidated class action waivers for substantive unconscionability. These cases are either mis-
stated, mis-cited, or otherwise do not support Plaintiff’s position. E.g., Reuter v. Davis, 2006
WL 3743016 (Fla. Cir. Ct. 2006) (not precedential); Am. Online v. Pasieka, 870 So.2d 170, 171
(Fla. 1st Dist. Ct. App. 2004) (no class action waiver and no discussion of unconscionability);
Reeves v. Ace Cash Express, Inc., 937 So.2d 1136, 1138 (Fla. 2d Dist. Ct. App. 2006) (does not
address unconscionability of class action waiver).

47
different avenues of dispute resolution in addition to arbitration. Plaintiff could

have attempted to resolve his concerns informally. Or Plaintiff could have brought

a qualifying claim in small claims court, for which Sprint would have covered the

filing fees. The dispute resolution clause also specifically permitted Plaintiff to file

disputes with federal, state, or local consumer protection agencies. And if Plaintiff

chose to use the arbitration remedy, Sprint would cover administrative filing fees.

In short, the only avenue taken away from the Plaintiff by the arbitration/class

action waiver is a class action itself which, although providing one mechanism

through which to assert several small claims, is not the only way to bring

Plaintiff’s small claim. It is difficult to say in these factual circumstances that no

reasonable consumer would have made this agreement or that it is so unfair as to

be substantively unconscionable per se. See Rivera v. AT&T Corp., 420 F. Supp.

2d 1312, 1322 (S.D. Fla. 2006) (applying Florida law and concluding class action

waiver in AT&T’s contract was not substantively unconscionable).24 Nonetheless,

24
Plaintiff argues neither the Florida Attorney General’s Office nor federal, state, or local
consumer protection agencies would provide an effective remedy because they are overtasked
and lack the resources needed to pursue vigorously small claims. Plaintiff cites to cases and
briefs from Arizona, California, Washington, Massachusetts, New Jersey, and North Carolina in
support of this argument. These out-of-state cases brought under different states’ laws have no
bearing on this case. The only case cited that involved Florida law, Rivera v. AT&T Corp., 420
F. Supp. 2d 1312 (S.D. Fla. 2006), is contrary to the Plaintiff’s position. Rivera relied in part on
the availability of executive enforcement of consumer protection laws to find that an arbitration
provision was not substantively unconscionable. Id. at 1322 (“Because arbitration agreements
precluding class-action relief are enforceable and Plaintiffs have other forums within which to
seek a remedy for AT&T’s allegedly unlawful billing practice, the Court finds that the CSA is

48
given our certification of the other Florida law questions, we believe the

substantive unconscionability issue as to the class action waiver should be certified

too.

In addition to arguing the class action waiver is substantively

unconscionable, Plaintiff also contends Sprint’s “changes to agreement” clause,

allowing Sprint to amend its Terms and Conditions upon notice to its customers, is

itself substantively unconscionable and violates Florida law. Plaintiff argues

Florida law does not permit modification of contracts without new consideration

and the mutual consent of the parties. Newkirk Constr. Corp. v. Gulf County, 366

So.2d 813, 815 (Fla. 1st Dist. Ct. App. 1979).

Florida law permits contract modifications if there is consent and a meeting

of the minds of the initial contracting parties. Binninger v. Hutchinson, 355 So. 2d

863, 865 (Fla. 1st Dist. Ct. App. 1978). Plaintiff does not dispute Sprint’s

contention that its “changes to agreement” clause was agreed to in the initial terms

of Plaintiff’s contract (in 2001 and 2005) and was fully supported by consideration

at that time. Furthermore, Sprint’s right to modify the Terms and Conditions was

dependent on Plaintiff’s agreeing to the modifications by, inter alia, using his

phone or making a payment, and Plaintiff was permitted to cancel his service

not substantively unconscionable.”).

49
within 30 days of the change if he did not desire to accept the changes.

Nonetheless, given that this issue involves the same Terms and Conditions as the

other issues, we include it as well in our certification.

E. Plaintiff Claims Class Action Waiver Is Void

Plaintiff’s final argument is that the class action waiver is void because it

frustrates the remedial purposes of the FDUTPA. See Fonte, 903 So.2d at 1023

(indicating there are two distinct frameworks for determining whether an

arbitration clause is unenforceable: “(1) whether the arbitration clause is void as a

matter of law because it defeats the remedial purpose of the applicable statute, or

(2) whether the arbitration clause is unconscionable”); see also Hialeah, __ So.2d

__, 2009 WL 187584, at *2 (involving automobile purchase contract and quoting

same language from Fonte).25 In Fonte, Florida’s Fourth District Court of Appeal

examined AT&T’s terms and conditions that came with its mobile phones and

applied to its wireless services. The Florida court in Fonte concluded that although

the FDUTPA permits class action claims, “the arbitration clause’s bar on class

representation does not defeat any of the remedial purposes of the FDUTPA.”

25
Under Florida law, a contract that frustrates the remedial nature of a consumer
protection statute may be void as a matter of law. See Fonte, 903 So.2d at 1024. Plaintiff
claims, as part of his argument for substantive unconscionability, that the class action waiver
frustrates the remedial purposes of the FDUTPA. Technically, if the class action waiver
defeated the remedial purposes of the FDUTPA, it would be void under Florida law, as opposed
to unenforceable for unconscionability.

50
Fonte, 903 So.2d at 1024. The Fonte court reasoned “that neither the text nor our

review of the legislative history of FDUTPA suggests that the legislature intended

to confer a non-waivable right to class representation.” Id. at 1025.26 In Fonte, the

Florida court emphasized “there are numerous enforcement mechanisms which can

protect consumers other than class actions,” such as small claims court or

administrative enforcement through the State Attorney's Office or the Department

of Legal Affairs. Id. Although the Fonte court upheld the arbitration clause’s class

action waiver, it concluded “the arbitration clause's bar on an award of attorney's

fees defeats a remedial purpose of FDUTPA.” Fonte, 903 So.2d at 1024. After

noting one remedial purpose of the FDUTPA was “to provide for the possibility of

an attorney's fee award” in Fla. Stat. § 501.2105, the Florida court severed the

arbitration clause’s bar on attorney’s fees, while upholding the arbitration clause’s

class action waiver.

In contrast to Fonte, Florida’s First District Court of Appeal concluded in

S.D.S. Autos, Inc. v. Chrzanowski, 976 So.2d 600 (Fla. 1st Dist. Ct. App. 2007),

that a class action bar contained in automobile lease agreements was void because

26
See also Orkin, 872 So.2d at 261 (“When considering whether the legislature intended
to preclude the submission of FDUTPA claims to arbitration . . . , ‘the legislature would have to
state such a requirement in unambiguous text’ . . . . FDUTPA contains no such statement of
legislative intent.”) (quoting Aztec Med. Servs., Inc. v. Burger, 792 So.2d 617, 621, 624 (Fla. 4th
Dist. Ct. App. 2001)).

51
it “effectively prevents consumers with small, individual claims based upon motor

vehicle dealers’ violations of section 501.976, Florida Statutes (2005), from

vindicating their statutory rights under FDUTPA.” Id. at 608.

The S.D.S. Autos court specifically noted that an individual asserting a

successful FDUTPA claim arising out of a motor vehicle dealer’s violation of the

statute could recover only the attorney’s fees that were reasonable in light of the

individual’s actual damages. Id. at 606 (citing the attorney’s fees provision in Fla.

Stat. § 501.976). Because individual claimants were likely to have very small

recoveries, the S.D.S. Autos court reasoned, any attorney’s fee award would be

similarly small, effectively preventing individuals from bringing expensive cases

with low actual damages. Id. at 607-08. This case does not have that concern.

The regular attorney’s fees provision of the FDUTPA, Fla. Stat. § 501.2105,

applies, which permits recovery of attorney’s fees and costs of any reasonable

amount.27 Sprint’s arbitration clause does not bar attorney’s fees but provides that

the Plaintiff may recover in arbitration to the extent he could in court. Thus Fonte

arguably is more on point for this case.

Nonetheless, given the unsettled state of Florida law, we do not decide the

27
Fla. Stat. § 501.2105(1) provides: “In any civil litigation resulting from an act or
practice involving a violation of [FDUTPA] . . . , 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.”

52
issue of whether Sprint’s class action waiver is void for any other reason and

include this issue, too, in our certification to the Florida Supreme Court.

III. CONCLUSION

In conclusion, the resolution of this appeal depends on unsettled questions of

Florida law as to whether the class action waiver presented in this case is

procedurally or substantively unconscionable or is void for other reasons. Rather

than attempting an Erie “guess” as to how the Florida Supreme Court would rule

on this issue, we certify the following questions to the Florida Supreme Court,

pursuant to Fla. Const. art. V, § 3(b)(6). See Rando v. Gov’t Employees Ins. Co.,

556 F.3d 1173, 1181 (11th Cir. 2009).

(1) Must Florida courts evaluate both procedural and substantive

unconscionability simultaneously in a balancing or sliding scale approach, or may

courts consider either procedural or substantive unconscionability independently

and conclude their analysis if either one is lacking?

(2) Is the class action waiver provision in Plaintiff’s contract with Sprint

procedurally unconscionable under Florida law?

(3) Is the class action waiver provision in Plaintiff’s contract with Sprint

substantively unconscionable under Florida law?

(4) Is the class action waiver provision in Plaintiff’s contract with Sprint

53
void under Florida law for any other reason?

The phrasing of these certified questions should not restrict the Florida

Supreme Court’s consideration of the problem posed by this case. This extends to

the Florida Supreme Court’s restatement of the issues and the manner in which the

answer is given. In order to assist consideration of the case, the entire record,

along with the briefs of the parties, shall be transmitted to the Florida Supreme

Court.

QUESTIONS CERTIFIED.

54