if my cell phone contract has a class action waiver and I cancel my contract and pay the early termination fees, am I still bound by the class action waiver?

I would also like to get any advice on what legal actions, if any, can be taken if a company has unethical business practices that are affecting thousands of consumers.

Asked on September 23, 2012 under General Practice, Texas


B.H.F., Member, Texas State Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

Up until 2011, class action waivers were being attacked by consumers and were making some pretty good headway at getting these waivers held invald for a variety of reasons so that consumers could move forward with their lawsuits.  Last year, however, the Supreme Court actually upheld a contractual class action waiver.... which put a slight dent in the progress made for consumers.  This decision did not undo all of the progress, but did leave the current state of the law in a flux-- so until they clarify that decision a bit more-- the best answer to your question is maybe.  If the lower courts follow suit with this latest opinion by the Supreme Court, then the class action waiver may stand.  However, it will depend on the marketing that went along with your contract and how your contract is worded.  If you do want to file a suit against the company, find an attorney that has experience in handling class action- deceptive trade practices suits so that they can review your contract and see if it fits one of the requirements needed to set aside the waiver provision.  It won't matter that you canceled the contract... what matters is what the contract says and what they told you it would say.  Some of these waivers have been effectively done away with by showing that consumers were misled about the contents of the contract.  Some of these cases have involved cell phone companies with hard sell tactics.

As far as the type of legal action that you can file...the answer to this part of your question will again depend on how they marketed the contract and services to you.  But if they were unethical or deceptive your different causes of actions would include:  a deceptive trade practices suit and a breach of contract suit.

You may also want to consider filing a complaint with the Texas Attorney General.  The more complaints they receive, the more likely they are to help with an enforcement action. 

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