Consumer says smartphone arbitration clause is ‘far from conspicuous’

A California consumer says he is not required to arbitrate his clams that Samsung falsely advertises the storage capacity of the GB Galaxy S4 mobile phone because the arbitration clause in the phone’s user manual is “unenforceable and unconscionable.”

In July, Samsung Telecommunications America moved to compel arbitration of plaintiff Conrad Sheffer’s complaint, arguing that he consented to the arbitration clause by not opting out within 30 days after his purchase.

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Galaxy S4 phone

The clause bars him from suing in federal court, “or any court for that matter,” according to Samsung’s motion, filed in the U.S. District Court for the Central District of California.

(Click here for Samsung’s motion to compel arbitration on Westlaw.)

But Sheffer says he neither assented to the terms of the clause nor was aware of the opt-out provision.

The clause also is procedurally unconscionable because it is “far from conspicuous” and was a “surprise to the plaintiff,” according to Sheffer’s response to Samsung’s motion.

(Click here for Sheffer’s response in opposition on Westlaw.)

The lawsuit claims that nearly 6.85 gigabytes of the advertised 16 GB storage space on the phone is inaccessible and unusable because it is taken up by preinstalled internal operating software.

According to the complaint, Sheffer bought the Galaxy S4 in reliance on Samsung’s alleged misrepresentations and omissions regarding the storage space.

(Click here for the complaint on Westlaw.)

The suit seeks a refund on behalf of all Galaxy S4 purchasers for the cost of the phone, as well as restitution of all revenues, compensation and benefits gained by Samsung as a result of the company’s allegedly unfair business practices.

Samsung says Sheffer’s claims are governed by the arbitration clause, which is disclosed in the user manual in “plain language” and “prominent text,” according to the company’s motion to compel arbitration.

Consumers also have the ability to opt out of the clause by email or telephone within 30 days after their purchase “without having to return the phone, pay any fee, or give up any additional rights under the standard limited warranty,” the motion says.

However, Sheffer says his failure to opt out of the clause does not imply he had consented to its terms.

According to his response, he was not even aware of the arbitration clause, which he says is “hidden” on page 245 of the 263-page user manual.

Sheffer also says the clause is unconscionable because he had no power to negotiate its terms.

“The document was essentially a take-it-or-leave-it proposition,” Sheffer says.

Sheffer v. Samsung Telecommunications America LLC et al., No. 13-3466, response in opposition filed (C.D. Cal. Aug. 19, 2013).