Cell phone contract not unconscionable

Florida case provides good example of why one should actually read a contract before filing a lawsuit

Appellant Briceno took her camera phone to a Sprint store to have it worked on. She claimed that employees of the store, using her phone, accessed and distributed “personal photographs of her body to third persons by the internet.” Briceno filed suit against Sprint in Florida state court alleging various privacy-related causes of action.

The court never got to the merits of the case, however, because Sprint successfully moved to compel arbitration, pursuant to a clause found in Sprint’s “Terms and Conditions of Service.”

Briceno sought review of the trial court’s order compelling arbitration. The appellate court affirmed.

Unlike the recent Illinois case of Hubbert v. Dell Corp., this case did not involve the question of whether the terms and conditions containing the arbitration clause were part of the contract between the customer and the provider. The main issue in this case was whether the arbitration clause was unconscionable. The court held that it was not.

Because of a choice of law provision in the terms and conditions, the Florida court found itself in the unusual position of applying Kansas law to determine the question of whether the arbitration clause was unconscionable. It held that the agreement did not unfairly exploit any disadvantaged position of Briceno. On the contrary, the court noted that she was “college educated . . . certainly not illiterate, uneducated, or unsophisticated.” She simply ignored the terms and conditions because “she did not care about reading them and . . . did not like to read.”

The court then concluded that Sprint had not unfairly concealed amendments to the terms and conditions containing the arbitration clause. It noted that alerts to changes in the terms and conditions had been provided on an invoice sent to Briceno. She could have looked online to read them, or could have requested a paper copy by telephone. It was also customary for Sprint to include the terms and conditions with new telephones, and Briceno had exchanged her telephone for a new one four times within the course of three years.

Given these factors, the court held that the arbitration clause was not unconscionable. It was therefore enforceable, and the trial court properly ordered the parties to arbitrate the dispute.

Briceno v. Sprint Spectrum, L.P., — So.2d —, 2005 WL 2093681 (Fla.App. 3 Dist., August 31, 2005).

[Link to opinion]