Morgan v. AT&T Wireless Services, Inc.
Plaintiffs Joshua Morgan and George Shannon appeal from the trial court’s denial of their motion to certify a class consisting of customers who purchased cellular telephones from defendant AT&T Wireless Services, Inc. (the predecessor to AT&T Mobility, hereafter referred to as ATTM) in 2003. Plaintiffs’ filed a class action lawsuit alleging ATTM made changes to their wireless network which rendered plaintiffs’ phones unusable. ATTM initially sought to compel individual arbitration based on an arbitration clause that contained a clear action waiver, but changes in the law resulted first in its abandonment of that request, and later in its renewal of its request to compel individual arbitration. The trial court concluded that ATTM waited too long to renew its request to compel arbitration and waived that right as to the named plaintiffs. However, the court also held that ATTM could not have sought to compel arbitration as to the putative class members before the named plaintiffs filed a motion seeking class certification. When plaintiffs did so, the court denied the motion for class certification on the basis that plaintiffs were not compelled to arbitrate due to ATTM’s waiver, but the putative class members were still subject to arbitration. As a result, the named plaintiffs were not representative of the class, and the trial court therefore denied the motion for class certification.
Plaintiffs contend on appeal that a finding of waiver of the right to compel arbitration by a class action defendant applies not only to claims of the class representatives, but also to putative class members, prior to class certification. Because we agree, we reverse the trial court’s order denying class certification.
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