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Forcing Californians to arbitrate disputes over small sums of money more than 2,000 miles away in Georgia wasn’t such a peachy idea, an appeal court ruled Tuesday. “There may well be a significant number of California consumers who have suffered losses in the range of $40 to $50,” Justice Daniel Curry of Los Angeles’ 2nd District Court of Appeal wrote. “To expect any or all of them to travel to Georgia in order to obtain redress on a case-by-case basis, whether in a courthouse or in an arbitration hearing room, is unreasonable as a matter of law.” Curry’s decision affirms L.A. County Superior Court Judge Judith Chirlin, who had refused to compel arbitration of a class action accusing Atlanta-based EarthLink Inc. of improperly charging fees for a digital subscriber line, or DSL, prior to providing customers with the equipment necessary to utilize the service. The suit was filed as a class action under the state’s unfair competition law by EarthLink customer and California resident Ozgur Aral, who was charged for the DSL service despite not receiving the related equipment for five weeks in 2003. EarthLink tried to enforce a contract clause forbidding class actions and requiring any other monetary claims to be arbitrated in the Peach State. Joined by Justices Norman Epstein and J. Gary Hastings, Justice Curry cited Discover Bank v. Superior Court, 05 C.D.O.S. 5684, a June ruling by the California Supreme Court that declared unconscionable class action waivers where large numbers of consumers claim to have been cheated out of small amounts of money. “In the present case,” Curry wrote Tuesday, “the terms of the agreement were presented on a ‘take it or leave it’ basis either through installation of the software or through materials included in the package mailed with the software with no opportunity to opt out. This is quintessential procedural unconscionability.” He also criticized EarthLink’s forum selection clause. “Although both the California Supreme Court and the United States Supreme Court place a heavy burden on the plaintiff who seeks to prove that a forum selection clause is unreasonable, particularly where the alleged unreasonableness is based on the additional expense and inconvenience of litigating far from home,” Curry wrote, “the burden was not intended to be insurmountable.” EarthLink was represented by attorneys from Seyfarth Shaw’s Los Angeles and Boston offices. Aral was represented by lawyers from Long Beach’s Westrup, Klick & Associates, as well as the Law Offices of Allan A. Sigel and Magana, Cathcart & McCarthy, both of L.A. The state attorney general’s office sided with Aral as an amicus curiae.

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