Scott v. Cingular Wireless

160 Wash.2d 843 (2007)

Quick Summary

Doug Scott, Loren and Sandra Tabasinske, Patrick and Janet Oishi (plaintiffs) sued Cingular Wireless (defendant) over a contract clause that prevented class action lawsuits.

They claimed this clause overcharged them on their phone bills and was unlawful. The issue was whether this waiver within the contract was unconscionable and thus could not be enforced.

The Washington Supreme Court held the waiver unconscionable because it undermined consumer protection laws and effectively excused Cingular from legal responsibility for certain misconduct. Therefore, they vacated the order compelling arbitration and remanded the case for further proceedings.

Facts of the Case

Doug Scott, Loren and Sandra Tabasinske, and Patrick and Janet Oishi (plaintiffs) engaged in transactions with Cingular Wireless (defendant), purchasing cellular phones and service plans. The contracts they entered into were standardized with a mandatory arbitration clause that prohibited class actions.

Cingular later updated this clause, still banning class actions but adjusting terms including cost responsibilities for arbitration and attorney fees. The plaintiffs initiated a class action lawsuit alleging Cingular overcharged for services, leading to individual customer overbilling of up to approximately $45 per month.

The plaintiffs argued that the class action waiver within the arbitration clause was both procedurally and substantively unconscionable, rendering it unenforceable. This case centers on whether such a waiver is legally permissible, given its potential to undermine consumer protection laws and access to legal remedies for individuals.

Procedural Posture and History

  1. The plaintiffs filed a class action lawsuit against Cingular Wireless.
  2. The trial court found the class action waiver enforceable and granted Cingular’s motion to compel individual arbitration.
  3. Plaintiffs appealed the decision.

I.R.A.C. Format


Whether the class action waiver within Cingular Wireless’ standard arbitration clause is unconscionable and therefore unenforceable, effectively denying consumers legal remedy under the Consumer Protection Act.

Rule of Law

The court applies the rule that contracts violating public policy or those that are injurious to the public are void and unenforceable. Additionally, agreements that effectively exculpate a party from liability for wrongful conduct are contrary to public interest and thus substantively unconscionable.

Reasoning and Analysis

The Supreme Court of Washington analyzed the waiver’s impact on consumers’ ability to enforce their rights under the Consumer Protection Act (CPA). The court found that requiring individual arbitration effectively barred consumers from seeking redress for small, widespread injuries, which is against the public interest of promoting fair competition and consumer protection.

The court also reasoned that such a waiver could potentially absolve Cingular from accountability for a vast range of wrongful actions, as individual consumers would be disincentivized to pursue minor claims on their own. The majority concluded that the class action waiver was unconscionable since it essentially exculpated Cingular from liability for wrongful conduct that could harm large numbers of consumers.

The court emphasized that class actions play a crucial role in enforcing consumer protection laws when individual claims are too small to justify separate lawsuits. As a result, the entire arbitration clause was rendered void because it stipulated that if any part of it was unenforceable, the entire clause would be nullified.


The class action waiver was found to be unconscionable and unenforceable, leading to the voiding of the entire arbitration clause. The case was remanded to the trial court for further proceedings consistent with this opinion.

Dissenting Opinions

The dissenting opinion argued that the creation of public policy against class action waivers should be a legislative decision, not judicial. It emphasized that arbitration agreements should be respected according to federal law favoring arbitration and that individual arbitration should be considered a viable alternative for vindicating consumer rights under the CPA. The dissent also criticized the majority for not adhering to a case-by-case analysis regarding contract unconscionability.

Key Takeaways

  1. Class action waivers in consumer contracts may be deemed unconscionable if they prevent consumers from vindicating their rights under consumer protection laws.
  2. An arbitration clause containing an unenforceable provision can render the entire clause void if it specifies that unenforceability of any part leads to nullification of the whole.
  3. The judiciary may invalidate contract clauses that contravene public interest, even if such clauses are part of an arbitration agreement.

Relevant FAQs of this case

What constitutes unconscionability in contract law?

Unconscionability in contract law refers to terms that are so one-sided or oppressive that they shock the conscience. Courts determine this by evaluating both procedural unconscionability, which examines the fairness of the negotiation process, and substantive unconscionability, which looks at the fairness of the contract terms themselves.

  • For example: A consumer loan agreement that charges an exorbitant interest rate far above market norms, combined with fine print and legalese making it difficult for the average consumer to understand, might be considered unconscionable.

How do class actions benefit consumers with small individual claims?

Class actions allow individuals with small claims to pool their resources and legal representation to collectively address shared grievances. This is especially beneficial when individual claims are too small to justify separate lawsuits due to the prohibitive cost of legal action versus potential recovery.

  • For example: If a group of consumers each suffered a minor overcharge by a utility company, they could collectively bring a class action lawsuit, making it economically feasible to pursue justice and deter future misconduct by the company.

When can a court void an entire contract clause?

A court can void an entire contract clause when it contains provisions that are illegal, against public policy, or when part of a clause is found unconscionable or unenforceable and cannot be separated from the rest of the clause (severability issue).

  • For example: A service contract has a non-severability provision stating if any part is invalid, the whole clause fails. If a provision limiting liability for negligence is deemed unconscionable, then the entire clause would be voided as per the contract’s own terms.


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