2002-05-22 CC Packet - Laserfiche WebLink

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FOR A DETAILED STATEM!;NT OF THE CHANGES, PLEASE SEE THE AT&T BROADBAND WEBSITE AT www.attbroadband.com/leaalnotice. The notification of the Arbitration Provisions and other amendments was done in accordance with the modification provisions of the CSAs, which allow AT&T Broadband to make changes to the t,erms of the CSAs upon notification to the customers of the modification and its effective date. The CSAs also advise customers that upon notice of a change in terms, they have the right to cancel their service. However, if they elect to continue service, they also agree to accept the modified terms. The CSAs also instruct customers to read their billing statements carefully, as they may include important notices about their service. 26 The AT&T Broadband notice and implementation outlined above stands in contrast to a well-publicized recent District Court decision in California, Ting v. A T& T Long Distance. 27 In the past two years, courts have repeatedly recognized that a consumer's continued use of a product or service after receiving notice of amended terms and conditions - including the addition of an arbitration clause - effects a modification of the contract.2B The Minnesota courts have similarly held that arbitration provisions included as modifications to a contract are enforceable where the party opposing arbitration agreed that such modifications could be made.29 " This notice was substantially more prominent than the forum-selection clause located on a form passenger ticket that the United States Supreme Court found enforceable against a cruise-line passenger seeking to assert a claim for personal injuries. Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 596,597 (1991). Zl This notice is very different from the notice provided in Ting v. A T& T Long Distance, 182 F. Supp. 2d (N.D. Calif. 2001). There, AT&T Long Distance assured customers that nothing about their service would change. AT&T Long Distance also had conducted internal studies to determine how the arbitration provisions could be communicated so that consumers would not take notice, would not think that anything was changing, and in many cases, would not read the new terms. 28 See Bank One, 125 F. Supp. 2d at 831-32 (plaintiff's failure to object to mailed notice of amendment to include arbitration clause constituted agreement to arbitration 'clause); Herrington v. Union Planters Bank, 113 F. Supp. 2d 1026, 1031-32 (S.D. Miss. 2000) (plaintiff's continued use of savings account after notice of arbitration clause constituted agreement to arbitration clause); Marsh, 103 F. Supp. 2d at 921 (enforcing arbitration agreement added by amendment to credit card agreement); Goetsch v. Shell Oil Co., 197 F.RD. 574 (W.D.N.C. 2000) (same); Stiles v. Home Cable Concepts, Inc., 994 F. Supp. 1410, 1414 (M.D. Ala. 1998) (plaintiff's receipt of amended terms and failure to send in card opting out of terms constituted acceptance of arbitration'ciause); South Trust Bank v. Williams, 775 So.2d 184, 190-91 (Ala. 2000) (plaintiff's assented to arbitration provisions by holding accounts open after notice of amendment). Cf. Hill v. Gateway, 105 F.3d 1147 (7th Gir. 1997) (arbitration clause first received by customer along with mail-ordered computer was binding on customer where clause provided for return with 30 days and customer did not return computer). 29 See Moritz v. Francis I. duPont & Co., 189 N.W.2d 487, 488 (Minn. 1971) (enforcing arbitration provision where plaintiff agreed that his employment would be governed by NYSE rules, as amended from time to time, and rules were amended during course of plaintiff's employment to include arbitration provisions); see also Dunshee, 228 NW.2d at 570 (enforcing arbitration agreement included as endorsement to insurance policy). 7 P.42