Scott v. Cingular Wireless

¶1 The plaintiffs below filed a class action suit against Cingular Wireless alleging that Cingular had overcharged consumers between $1 and around $45 per month by unlawfully adding roaming and hidden charges. The trial court entered an order compelling individual arbitration based on an arbitration clause in Cingular’s standard subscriber contracts. That arbitration clause contained a provision prohibiting class action litigation or arbitration. Plaintiffs contend that class action waiver is unconscionable and unenforceable.

Chambers, J.

¶2 We took direct review¹ and conclude that the class action waiver is unconscionable because it effectively denies large numbers of consumers the protection of Washington’s Consumer Protection Act (CPA), chapter 19.86 RCW, and because it effectively exculpates Cingular from liability for a whole class of wrongful conduct. It is, therefore, unenforceable. Since the arbitration clause itself provides that if any part is found unenforceable, the entire clause shall be void, there is no basis to compel arbitration. Accordingly, we vacate the order compelling arbitration and remand to the trial court for further proceedings consistent with this opinion.

I

¶3 Plaintiffs Doug Scott, Loren and Sandra Tabasinske, and Patrick and Janet Oishi (plaintiffs) purchased cellular telephones and calling plans from Cingular. The contracts they all signed were standard preprinted agreements that included a clause requiring mandatory arbitration. That arbitration clause, in turn, contained a provision prohibiting consolidation of cases, class actions, and class arbitration. Cingular also retained the right to unilaterally revise the agreement and, in July 2003, did so. Customers were informed via a monthly “bill stuffier” titled in bold print, “IMPORTANT INFORMATION CONCERNING YOUR CONTRACT.” Clerk’s Papers (CP) at 355. The revised arbitration clause still prohibited class actions. CP at 355-56.² It also specified that arbitration would be conducted according to American Arbitration Association (AAA) rules; that Cingular would pay the filing, administrator, and arbitration fees unless the customer’s claim was found to be frivolous; that Cingular would reimburse the customer for reasonable attorney fees and expenses incurred for the arbitration (provided that the customer recovered at least the demand amount); and that the arbitration would take place in the county of the customer’s billing address. It also removed limitations on punitive damages.

¶4 The plaintiffs’ underlying suit asserts that they were improperly billed for long distance and/or out-of-network “roaming” calls³ and that as a result of these improper billing practices, individual customers were overcharged up to around $45 a month. Plaintiffs filed a class action suit to challenge the legality of these additional charges. While the plaintiffs admit no individual consumer suffered a significant loss, they claim that in the aggregate, Cingular unilaterally overcharged the public by very large sums of money.

¶5 Cingular moved to compel individual arbitration. Plaintiffs resisted, arguing that the class action waiver is substantively and procedurally unconscionable and thus unenforceable. Among other things, they assert that the agreement is overly one-sided because it is inconceivable that Cingular would bring a class action suit against its customers. They also argue that the class action waiver, at least when coupled with the attorney fee provision, will prevent meritorious claims from being heard. In support, the plaintiffs submitted a declaration from attorney Sally Gustafson Garratt, who had previously served as the division chief for consumer protection in the Washington State attorney general’s office. She declared that the attorney general’s office did not have sufficient resources to respond to many individual cases and often “relied on . . . private class action to correct the deceptive or unfair industry practice and to reimburse consumers for their losses.” CP at 1571,1567-77. The plaintiffs also submitted a declaration of Peter Maier, an attorney in private practice who specialized in consumer law. He explained that the claims against Cingular “are too small and too complex factually and legally” to be adjudicated separately. CP at 1582. Maier declared that he would be unwilling to take on such cases and opined, “it is very unlikely that any other private practice attorney would be willing to do so.” CP at 1585.

¶6 The trial court granted Cingular’s motion, concluding that although Cingular’s contract is a contract of adhesion, it is not sufficiently complex, illegible, or misleading to be deemed procedurally unconscionable. The court also found no substantive unconscionability. We accepted review and received helpful amicus curiae briefs from the AARP and the National Association of Consumer Advocates; from Amazon.com, Inc., Intel Corporation, Microsoft Corporation, and RealNetworks, Inc.; from the Association of Washington Business; from the Chamber of Commerce of the United States of America; from the Attorney General of Washington; from CTIA — The Wireless Association; and from the Washington State Trial Lawyers Association Foundation.

¶7 In essence, plaintiffs and their supporting amici argue Cingular’s class action waiver is substantively and procedurally unconscionable. They contend it both denies consumers a meaningful opportunity to prove their cases and undermines the protections of Washington’s CPA.

¶8 Cingular and its supporting amici argue, however, that the majority of courts (at least at the time they made the argument) addressing the question have found class action waivers enforceable. E.g., Jenkins v. First Am. Cash Advance of Ga., 400 F.3d 868 (11th Cir. 2005); Iberia Credit Bureau, Inc. v. Cingular Wireless LLC, 379 F.3d 159, 174 (5th Cir. 2004); Snowden v. Checkpoint Check Cashing, 290 F.3d 631, 638-39 (4th Cir. 2002); Dale v. Comcast Corp., 453 F. Supp. 2d 1367, 1377 (D. Ga. 2006) (applying Georgia law); Tillman v. Commercial Credit Loans, Inc., 177 N.C. App. 568, 629 S.E.2d 865, 875 (2006); AutoNation USA Corp. v. Leroy, 105 S.W.3d 190, 199-200 (Tex. App. 2003). Plaintiffs respond that an increasing number of courts have found class action waivers in arbitration clauses substantively unconscionable. E.g., Ting v. AT&T, 319 F.3d 1126, 1150 (9th Cir. 2003); Skirchak v. Dynamics Research Corp., 432 F. Supp. 2d 175, 181 (D. Mass. 2006); Edwards v. Blockbuster Inc., 400 F. Supp. 2d 1305, 1309 (E.D. Okla. 2005); Luna v. Household Fin. Corp. III, 236 F. Supp. 2d 1166, 1178 (W.D. Wash. 2002); Lozada v. Dale Baker Oldsmobile, Inc., 91 F. Supp. 2d 1087, 1105 (W.D. Mich. 2000); Leonard v. Terminix Int’l Co., 854 So. 2d 529, 538 (Ala. 2002); Discover Bank v. Superior Court, 36 Cal. 4th 148, 113 P.3d 1100, 30 Cal. Rptr. 3d 76 (2005); Powertel, Inc. v. Bexley, 743 So. 2d 570, 576 (Fla. Dist. Ct. App. 1999); Kinkel v. Cingular Wireless, LLC, 223 Ill. 2d 1, 47, 857 N.E.2d 250, 306 Ill. Dec. 157 (2006); Whitney v. Alltel Commc’ns, Inc., 173 S.W.3d 300, 314 (Mo. Ct. App. 2005); Muhammad v. County Bank of Rehoboth Beach, 189 N.J. 1, 20-21, 912 A.2d 88 (2006); Schwartz v. Alltel Corp., 2006-Ohio-3353, ¶ 36 (Ct. App.); Vasquez-Lopez v. Beneficial Or., Inc., 210 Or. App. 553, 572, 152 P.3d 940 (2007); Thibodeau v. Comcast Corp., 912 A.2d 874, 886 (2006); see also Kristian v. Comcast Corp., 446 F.3d 25, 64-65 (1st Cir. 2006) (struck class action waiver for preventing vindication of statutory rights); Wis. Auto Title Loans, Inc. v. Jones, 2006 WI 53, ¶ 73, 290 Wis. 2d 514, 714 N.W.2d 155 (questioning whether class action waiver in arbitration clause would be enforceable). There is a clear split of authority.

II

A. Standard of Review

¶9 We review trial court decisions on motions to compel arbitration de novo. Zuver v. Airtouch Commc’ns, Inc., 153 Wn.2d 293, 302, 103 P.3d 753 (2004) (citing Ticknor v. Choice Hotels Int'l, Inc., 265 F.3d 931, 936 (9th Cir. 2001)). The plaintiffs, as the parties opposing arbitration, bear the burden of showing the class action waiver is not enforceable. Zuver, 153 Wn.2d at 302 (citing Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 92, 121 S. Ct. 513, 148 L. Ed. 2d 373 (2000)).

¶10 This case is somewhat unusual in our experience because it is not the arbitration clause itself the plaintiffs challenge. Instead, it is the class action waiver embedded within it. We begin by considering whether that waiver itself is unconscionable and unenforceable under Washington law.

B. Public Policy

1. Class Actions and the Washington CPA

¶11 An agreement that has a tendency “ ‘to be against the public good, or to be injurious to the public’ ” violates public policy. King v. Riveland, 125 Wn.2d 500, 511, 886 P.2d 160 (1994) (quoting Marshall v. Higginson, 62 Wn. App. 212, 216, 813 P.2d 1275 (1991)). An agreement that violates public policy may be void and unenforceable. Restatement (Second) of Contracts § 178 (1981). Washington’s CR 23 authorizes class actions and demonstrates a state policy favoring aggregation of small claims for purposes of efficiency, deterrence, and access to justice. See, e.g., Darling v. Champion Home Builders Co., 96 Wn.2d 701, 706, 638 P.2d 1249 (1982) (“Class actions . . . establish effective procedures for redress of injuries for those whose economic position would not allow individual lawsuits. Accordingly, they improve access to the courts.” (citing 7 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1754, at 543 (1972); Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326, 339, 100 S. Ct. 1166, 63 L. Ed. 2d 427 (1980))). As we have noted before, when consumer claims are small but numerous, a class-based remedy is the only effective method to vindicate the public’s rights. E.g., Darling, 96 Wn.2d at 706. Class remedies not only resolve the claims of the individual class members but can also strongly deter future similar wrongful conduct, which benefits the community as a whole. Judge Mosk understood this over 30 years ago:

Frequently numerous consumers are exposed to the same dubious practice by the same seller so that proof of the prevalence of the practice as to one consumer would provide proof for all. Individual actions by each of the defrauded consumers is often impracticable because the amount of individual recovery would be insufficient to justify bringing a separate action; thus an unscrupulous seller retains the benefits of its wrongful conduct. A class action by consumers produces several salutary by-products, including a therapeutic effect upon those sellers who indulge in fraudulent practices, aid to legitimate business enterprises by curtailing illegitimate competition, and avoidance to the judicial process of the burden of multiple litigation involving identical claims. The benefit to the parties and the courts would, in many circumstances, be substantial.

Vasquez v. Superior Court, 4 Cal. 3d 800, 808, 484 P.2d 964, 94 Cal. Rptr. 796 (1971). Class actions exist because too many are injured to name. Weiss v. Regal Collections, 385 F.3d 337, 345 (3d Cir. 2004). That said, class action waivers have been found permissible in some contexts. Cf. Heaphy v. State Farm Mut. Auto. Ins. Co., 117 Wn. App. 438, 447-48, 72 P.3d 220 (2003); Stein v. Geonerco, Inc., 105 Wn. App. 41, 49, 17 P.3d 1266 (2001); see generally Discover Bank, 36 Cal. 4th at 162.

¶12 We turn to whether this class action waiver is unconscionable because it undermines Washington’s CPA to the extent that it is “injurious to the public.” See King, 125 Wn.2d at 511. The CPA is designed to protect consumers from unfair and deceptive acts and practices in commerce. RCW 19.86.020. To achieve this purpose, the legislature requires that the CPA “be liberally construed that its beneficial purposes may be served.” RCW 19.86.920.

¶13 Private enforcement of the CPA was not possible until 1971, when the legislature created the private right of action to encourage it. Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 783-84, 719 P.2d 531 (1986). Private actions by private citizens are now an integral part of CPA enforcement. See RCW 19.86.090. Private citizens act as private attorneys general in protecting the public’s interest against unfair and deceptive acts and practices in trade and commerce. Lightfoot v. MacDonald, 86 Wn.2d 331, 335-36, 544 P.2d 88 (1976). Consumers bringing actions under the CPA do not merely vindicate their own rights; they represent the public interest and may seek injunctive relief even when the injunction would not directly affect their own private interests. Hangman Ridge, 105 Wn.2d at 790; Hockley v. Hargitt, 82 Wn.2d 337, 349-50, 510 P.2d 1123 (1973).

¶14 Courts have previously held that class actions are a critical piece of the enforcement of consumer protection law. The reason is clear. Without class actions, many meritorious claims would never be brought. Vasquez, 4 Cal. 3d at 808; see also Eagle v. Fred Martin Motor Co., 157 Ohio App. 3d 150, 178, 2004-Ohio-829, 809 N.E.2d 1161 (“by expressly eliminating a consumer’s right to proceed through a class action or as a private attorney general in arbitration, the arbitration clause directly hinders the consumer protection purposes of the [Ohio CPA]”). Class actions are vital where the damage to any individual consumer is nominal, and that vital piece is exactly what the plaintiffs claim the class action waiver before us seeks to eviscerate.

¶15 Thus, we conclude that without class actions, consumers would have far less ability to vindicate the CPA. See Carnegie v. Household Int’l, Inc., 376 F.3d 656, 661 (7th Cir. 2004). Again, the CPA contemplates that individual consumers will act as “private attorneys general,” harnessing individual interests in order to promote the public good. See Wash. State Physicians Ins. Exch. & Ass’n v. Fisons Corp., 122 Wn.2d 299, 313, 858 P.2d 1054 (1993). But by mandating that claims be pursued only on an individual basis, the class arbitration waiver undermines the legislature’s intent that individual consumers act as private attorneys general by dramatically decreasing the possibility that they will be able to bring meritorious suits.

¶16 Without class action suits, the public’s ability to perform this function is drastically diminished. We agree with plaintiffs and the Washington attorney general and conclude the class action waiver clause before us is an unconscionable violation of this State’s policy to “protect the public and foster fair and honest competition,” RCW 19.86.920, because it drastically forestalls attempts to vindicate consumer rights. To the extent that this clause prevents CPA cases, it is substantively unconscionable.⁴

2. Exculpation

¶17 We turn now to whether this class action waiver is unconscionable for effectively exculpating its drafter from liability for a large class of wrongful conduct. Contract provisions that exculpate the author for wrongdoing, especially intentional wrongdoing, undermine the public good. Adler v. Fred Lind Manor, 153 Wn.2d 331, 357, 103 P.3d 773 (2004) (provision violates Washington law because it “could be interpreted to insulate the employer from potential liability for violative behavior”). Exculpation from any potential liability for unfair or deceptive acts or practices in commerce clearly violates public policy. RCW 19.86.920; cf. Discover Bank, 36 Cal. 4th at 162-63. As our sister court said, “ ‘[a] company which wrongfully extracts a dollar from each of millions of customers will reap a handsome profit; the class action is often the only effective way to halt and redress such exploitation.’ ” Discover Bank, 36 Cal. 4th at 156 (quoting Blue Chip Stamps v. Superior Court, 18 Cal. 3d 381, 387, 556 P.2d 755, 134 Cal. Rptr. 393 (1976) (Tobriner, J., concurring)).

¶18 Of course, on its face, the class action waiver does not exculpate Cingular from anything; it merely channels dispute resolution into individual arbitration proceedings or small claims court. But in effect, this exculpates Cingular from legal liability for any wrong where the cost of pursuit outweighs the potential amount of recovery. As the ever inimitable Judge Posner has aptly noted, “[t]he realistic alternative to a class action is not 17 million individual suits, but zero individual suits, as only a lunatic or a fanatic sues for $30.” Carnegie, 376 F.3d at 661.

¶19 In such cases, the ability to proceed as a class transforms a merely theoretically possible remedy into a real one. Gilman v. Wheat, First Sec., Inc., 345 Md. 361, 381, 692 A.2d 454 (1997) (class actions have a “penumbra! remedial aspect” in that they “may make relief that otherwise might only be potentially available to a plaintiff actually available”). It is often the only meaningful type of redress available for small but widespread injuries. See, e.g., Discover Bank, 36 Cal. 4th 148; Gilman, 345 Md. at 378. Without it, many consumers may not even realize that they have a claim. Accord Abels v. JBC Legal Group, PC, 227 F.R.D. 541, 547 (N.D. Cal. 2005) (quoting Sledge v. Sands, 182 F.R.D. 255, 259 (N.D. Ill. 1998)). The class action provides a mechanism to alert them to this fact. Second, again, claims as small as those in this case are impracticable to pursue on an individual basis even in small claims court, and particularly in arbitration. Shifting the cost of arbitration to Cingular does not seem likely to make it worth the time, energy, and stress to pursue such individually small claims. The plaintiffs also presented evidence that the prohibitive cost actually does^prevent claims. In addition to the declarations discussed above, it appears that no claims from Washington customers have been brought to arbitration against Cingular in the past six years.

¶20 Cingular contends that it has cured any concerns about access to a remedy by promising to pay all AAA filing, administrative, and arbitrator fees unless the arbitrator finds the claim frivolous, and by promising to pay the attorneys fees under certain circumstances. While laudable, it appears to us that these provisions do not ensure that a remedy is practically available. First, the attorney fees are awarded only if the plaintiffs recover at least the full amount of their demand.⁵ A plaintiff could recover 99 percent of a claim and still not be awarded any attorney fees. Cingular’s lawyers are undoubtedly paid regardless of result. But, if the consumer loses or achieves an award of one dollar less than sought, there is no award of fees. Even if all of the contingencies are met and attorney fees are awarded, the arbitrator may consider the amount in controversy in awarding fees. While technically, the plaintiffs are not prevented from hiring an attorney, practically, attorneys are generally unwilling to take on individual arbitrations to recover trivial amounts of money. This is, of course, precisely why class actions were created in the first place. As Judge Seinfeld of the Court of Appeals rightly noted:

Washington courts favor a liberal interpretation of CR 23 as the rule avoids multiplicity of litigation, “saves members of the class the cost and trouble of filing individual suits!,] and ... also frees the defendant from the harassment of identical future litigation.” “[A] primary function of the class suit is to provide a procedure for vindicating claims which, taken individually, are too small to justify individual legal action but which are of significant size and importance if taken as a group.” As a federal court has stated, “the interests of justice require that in a doubtful case . . . any error, if there is to be one, should be committed in favor of allowing the class action.”

Smith v. Behr Process Corp., 113 Wn. App. 306, 318-19, 54 P.3d 665 (2002) (alterations in original) (citations omitted) (quoting Brown v. Brown, 6 Wn. App. 249, 256-57, 253, 492 P.2d 581 (1971); Esplin v. Hirschi, 402 F.2d 94, 101 (10th Cir. 1968)). We agree and conclude that since this clause bars any class action, in arbitration or without, it functions to exculpate the drafter from liability for a broad range of undefined wrongful conduct, including potentially intentional wrongful conduct, and that such exculpation clauses are substantively unconscionable. Cf. Luna, 236 F. Supp. 2d at 1177-79 (finding under Washington law that class action waiver in an arbitration rider was substantively unconscionable).

¶21 Like the arbitration clause found unconscionable in Zuver, this elass action waiver effectively prevents one party to the contract, the consumer, from pursuing valid claims, effectively exculpating the drafter from potential liability for small claims, no matter how widespread. See Zuver, 153 Wn.2d at 317-18; accord Muhammad, 189 N.J. at 20-21 (striking class action waiver that functioned as an exculpation clause). A clause that unilaterally and severely limits the remedies of only one side is substantively unconscionable under Washington law for denying any meaningful remedy. Zuver, 153 Wn.2d at 318; see also Adler, 153 Wn.2d at 357-58; cf. Riensche v. Cingular Wireless, LLC, No. CO6-1325Z, 2006 U.S. Dist. LEXIS 93747, at *40-41 (W.D. Wash. Dec. 27, 2006) (finding Cingular’s class action ban substantively unconscionable under Washington law).

C. Federal Preemption

¶22 Next, Cingular argues that the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-16, governs the contracts at issue and requires that we enforce the class action waiver. Section 2 of the FAA states that written arbitration agreements “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. “Section 2 is a congressional declaration of a liberal federal policy favoring arbitration agreements, notwithstanding any state substantive or procedural policies to the contrary.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S. Ct. 927, 74 L. Ed. 2d 765 (1983) (citing Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 87 S. Ct. 1801, 18 L. Ed. 2d 1270 (1967)). Our State also favors arbitration of disputes. Zuver, 153 Wn.2d at 301 n.2 (citing cases).

¶23 But Congress simply requires us to put arbitration clauses on the same footing as other contracts, not make them the special favorites of the law. See 9 U.S.C. § 2. As we held above, contracts that effectively exculpate their drafter from liability under the CPA for broad categories of liability are not enforceable in Washington, even if they are embedded in an arbitration clause. The arbitration clause is irrelevant to the unconscionability.

¶[24 Class action waivers have very little to do with arbitration. Clauses that eliminate causes of action, eliminate categories of damages, or otherwise strip away a party’s right to vindicate a wrong do not change their character merely because they are found within a clause labeled “Arbitration.” At least based on the briefing before us, we see no reason why the purposes of favoring individual arbitration would not equally favor class-wide arbitration. Cf. Kinkel, 223 Ill. 2d at 19 (“Cingular cites many sources demonstrating that encouraging arbitration is, indeed, a strong federal objective, but offers no authority for the claim that individual arbitration, rather than class arbitration, is favored.”).

¶25 The FAA favors arbitration, not exculpation. As the United States Supreme Court has noted, arbitration can be a perfectly appropriate place for individuals to vindicate legislative policy, “so long as the prospective litigant effectively may vindicate its statutory cause of action in the arbitral forum.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 637, 105 S. Ct. 3346, 87 L. Ed. 2d 444 (1985). But this clause prevents the use of arbitration to vindicate a broad range of statutory CPA rights. We join those courts that have found that striking a class action waiver in an arbitration clause does not violate the FAA. E.g., Discover Bank, 36 Cal. 4th at 165-66; Kinkel, 223 Ill. 2d at 19.

¶26 By its terms, the class action waiver is not severable from the arbitration clause. CP at 356; cf. Zuver, 153 Wn.2d at 320 (unconscionable terms may be struck to preserve essential ones) (citing Daniel P. O’Meara, Arbitration of Employment Disputes § 4.22 (2002)). Because no party argues for severability, we enforce the language of the agreement between the parties and conclude that the entirety of the arbitration clause is null and void.⁶

Ill

¶27 We conclude that the class action waiver before us effectively denies plaintiffs a forum to vindicate the consumer protections guaranteed by Washington law and effectively exculpates its drafter from liability for a broad range of wrongful conduct. Where many customers of the same company have the same or similar complaint and each is damaged a small amount, class action litigation or arbitration is the only practical remedy available. Under such circumstances, the class action waiver is substantively unconscionable. The FAA does not preempt Washington law in this case. Since Cingular’s class action waiver states that if it “is found to be unenforceable, then the entirety of this arbitration clause shall be null and void,” there remains no basis to compel arbitration. We do not reach plaintiffs’ remaining claims. We reverse and remand to the trial court for further proceedings consistent with this opinion.⁷

Alexander, C.J., and C. Johnson, Sanders, Owens, and Fairhurst, JJ., concur.

1 Scott v. Cingular Wireless, 156 Wn.2d 1001, 135 P.3d 478 (2005).

2 The modified arbitration clause provides in part:

You agree that, by entering into this Agreement, you and Cingular are waiving the right to a trial by jury. . . . You and Cingular agree that YOU AND CINGULAR MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, and not as a plaintiff or class member in any purported class or representative proceeding. Further, you agree that the arbitrator may not consolidate proceedings [on] more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding, and that... if this specific proviso is found to be unenforceable, then the entirety of this arbitration clause shall be null and void.

CP at 356. We do not consider whether the bill stuffer was an effective method to modify the contract.

3 “Roaming” occurs when a subscriber of one wireless service provider uses another provider’s facilities.

4 Because we find the class action waiver substantively unconscionable, we find it unnecessary to address plaintiffs’ claims of procedural unconscionability.

5 The provision reads: “[I]f the arbitrator grants relief to you that is equal to or greater than the value of your Demand, Cingular shall reimburse you for your reasonable attorneys’ fees and expenses incurred for the arbitration.” CP at 356.

6 Nothing in this opinion should be taken to prevent the parties from agreeing to submit their dispute to class wide arbitration.

7 We respectfully disagree with our learned colleague in dissent that this opinion presumes the CPA invalidates all class action waivers. We mean to say only that class action waivers that prevent vindication of rights secured by the CPA are invalid. We agree with our dissenting colleague that whether any particular class action waiver is unenforceable will turn on the facts of the particular case. We can certainly conceive of situations where a class action waiver would not prevent a consumer from vindicating his or her substantive rights under the CPA and would thus be enforceable. E.g., Hangman Ridge, 105 Wn.2d 778.