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ORDER- 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

CHRISTOPHER W. HESSE, et al.,

Plaintiffs,

v.

SPRINT SPECTRUM L.P., et al.

Defendants.

CASE NO. C06-0592JLR

ORDER DENYING PLAINTIFFS’ 

MOTION FOR 

RECONSIDERATION

I. INTRODUCTION

Before the court is Plaintiffs’ motion for reconsideration (Dkt. # 262) of the 

court’s January 9, 2012 order granting in part and denying in part Plaintiffs’ motion for 

limited discovery prior to Defendants’ motion to compel arbitration (Dkt. # 261). On 

January 20, 2012, the court directed Defendants to file a response to Plaintiffs’ motion 

pursuant to Local Rule CR 7(h)(3). (Jan. 20, 2012 Order (Dkt. # 265) (citing Local Rules 

W.D. Wash. CR 7(h)(3).) Defendant Sprint Spectrum L.P. d/b/a Sprint PCS (“Sprint”) 

filed a memorandum in opposition to Plaintiffs’ motion for reconsideration on February 

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ORDER- 2

1, 2012. (Resp. (Dkt. # 266).) Having considered Plaintiffs’ motion and supporting 

documents, as well as Defendants’ response, the court DENIES Plaintiffs’ motion for 

consideration, but clarifies its prior order as described below.

II. BACKGROUND AND ANALYSIS

On January 9, 2012, the court granted in part and denied in part Plaintiffs’ motion 

seeking limited discovery prior to the court’s consideration of Defendants’ motion to 

compel arbitration. (Jan. 9, 2012 Order (Dkt. # 261).) Plaintiffs seek reconsideration of 

that portion of the court’s order denying discovery into whether and when Plaintiffs

entered into an agreement to arbitrate. (See generally Mot.)1

 The court denied this 

aspect of Plaintiffs’ motion for discovery because, during the course of this long 

litigation, Plaintiffs had previously conceded that their “relationship” with “Sprint is 

governed by the Terms & Conditions of Service.” (See Jan. 9, 2012 Order (Dkt. # 261) at 

5-6.) In so ruling, the court cited two briefs previously filed by Plaintiffs in which 

Plaintiffs made this specific admission, as well as Sprint’s November 1, 20012 and 

August 1, 2002 Term & Conditions.3

 (Id. at 6.) 

 

1 In their motion for reconsideration, Plaintiffs also seek “clarification” that the court “has 

not yet decided which version of the Sprint [Terms & Conditions] may apply to plaintiffs.” (See 

Mot. (Dkt. # 262) at 3.) The parties have not asked the court to resolve this issue, and therefore 

it has not.

2 In the January 9, 2012 order, the November 1, 2001 Terms & Conditions are 

inadvertently referred to as the “November 1, 2011 Terms & Conditions.” However, the citation 

to the record noted by the court plainly refers to the November 1, 2001 Terms & Conditions. 

(See Jan. 9, 2012 Order at 6 (citing Dkt. # 175-2 Ex. 1 at SPRINT-PCS-HO 000025).)

3 The court cited these two versions of the Terms & Conditions simply because they were 

both relied upon by Plaintiffs in their motion for partial summary judgment, and both of these 

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ORDER- 3

Significantly, both the November 1, 2001 and August 1, 2002 Terms & Conditions 

contain broad arbitration clauses. (See Moore Decl. (Dkt. # 175-1) Ex. 1 (Nov. 1, 2001 

Terms & Conditions) at SPRINT-PCS-HO 000033 (“Any claim, controversy or dispute . 

. . related directly or indirectly to the services . . . shall be resolved by arbitration . . . .”),

Ex. 2 (Aug. 1, 2002 Terms & Conditions) at SPRINT-PCS-HO 000062 (“Any claim, 

controversy or dispute of any kind between the customer and the company . . . shall be 

resolved by final and binding arbitration . . . .”).) Nevertheless, in its motion to compel 

arbitration, Sprint did not rely on the arbitration clauses contained within the Terms & 

Conditions in effect at the time that Plaintiffs initially entered into their relationships with 

Sprint, but rather on the arbitration clauses contained within the Terms & Conditions in 

effect at the time Plaintiffs terminated their relationships with Sprint. (See Mot. to 

Compel Arb. (Dkt. # 253) at 3-4, 6-7; Brenner Decl. (Dkt. # 177) Ex. 6 at SPRINT-PCS 

HO 000118; Skok Decl. (Dkt. # 245) Ex. A at 1, 9.) The Terms & Conditions that Sprint 

relied upon contain not only arbitration provisions, but class action waiver provisions as 

well – which were absent in the earlier versions of the Terms & Conditions relied upon 

by Plaintiffs.

4 (See Brenner Decl. Ex. 6 at SPRINT-PCS HO 000118; Skok Decl. Ex. A 

at 1, 9.) 

 

versions of the Terms & Conditions contain the following identical statements: “Your 

agreement . . . with Sprint is made up of these Terms and Conditions (“Terms”) and the Service 

Plan that we agree to provide to you.” (See, e.g., Pl. Mot. for Part. S.J. (Dkt. # 175) at 2.)

4

As Plaintiffs point out class action waivers were absent in the November 1, 2001, May 1, 

2002, June 1, 2003, November 24, 2003, and May 25, 2004 versions of the Terms & Conditions. 

(See Mot. at 2 (citing Dkt. # 117 Exs. 2-4, 7-8).) 

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ORDER- 4

Plaintiffs’ motion is directed in particular at their asserted need for discovery 

concerning Sprint’s position that they are bound by a later Terms & Conditions 

containing a class action waiver. (See Mot. at 3.) Plaintiffs have acknowledged that their 

relationship with Sprint is governed by the Terms & Conditions of Service in effect at the 

time they initially became customers of Sprint, and there is no dispute that this version of 

the Terms & Conditions contains an arbitration clause. Implicit in Plaintiffs’ motion for 

reconsideration is the idea that the court will necessarily need to decide in conjunction 

with Sprint’s motion for arbitration which version of the Terms & Conditions is 

applicable, whether it contains a class action waiver, and whether Plaintiffs have thereby 

waived class arbitration. (See generally id.) Accordingly, the court must decide whether 

this issue concerning class action waiver is relevant to its decision on arbitrability, and 

therefore, whether it should reconsider its order denying discovery that Plaintiffs assert is 

relevant to that issue.

The Supreme Court has provided guidance on this issue. In general, issues of 

arbitrability are for the courts, while procedural issues are left to arbitrators. See, e.g., 

First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995). The Supreme Court 

has explained that “questions of arbitrability” include “the kind of narrow circumstance 

where contracting parties would likely expect a court to have decided the gateway matter 

. . . .” Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83-84 (2002). The Howsam

Court further explained that “‘procedural questions which grow out of the dispute and 

bear on its final disposition’ are presumptively not for the judge, but for an arbitrator, to 

decide.” Id. at 84 (quoting John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 557

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ORDER- 5

(1964) (italics in original)). The court, therefore, must determine if the issue of class 

arbitration waiver is a “gateway” issue that it should decide or a procedural issue that 

should be reserved for the arbitrator if the court ultimately orders arbitration. 

In Green Tree Financial Corporation v. Bazzle, 539 U.S. 444 (2003), the parties 

agreed to submit their dispute to an arbitrator, but disagreed whether class arbitration was 

permitted under the agreement, which was silent on the issue. Id. at 447-48. A plurality 

of the Supreme Court concluded that “whether the contracts forbid class arbitration . . . 

concerns neither the validity of the arbitration clause nor its applicability to the 

underlying dispute. . . .” Id. at 452. Thus, it was a procedural question concerning 

“contract interpretation and arbitration procedures,” which “[a]rbitrators are well situated 

to answer.” Id. at 453. Consequently, the plurality in Bazzle would reserve the issue of 

class arbitration waiver for the arbitrator. 

Even though Bazzle does not have the full weight of Supreme Court precedent, it 

is nevertheless persuasive and instructive authority. Thalheimer v. City of San Diego, 

645 F.3d 1109, 1127 n.5 (9th Cir. 2011) (“[W]e follow the [Supreme Court] plurality 

opinion as persuasive authority, though ‘not a binding precedent.’” (quoting Texas v. 

Brown, 460 U.S. 730, 737 (1983))). Many other courts have concluded likewise. See, 

e.g., Scout.com, LLC v. Bucknuts, LLC, No. C07-1444 RSM, 2007 WL 4143229, at *5 

(W.D. Wash. Nov. 16, 2007) (concluding that, in light of Bazzle, it was for the arbitrator 

to decide the procedural issue of whether plaintiffs can arbitrate as a class, and collecting

similar cases); Vaughn v. Leeds, Morelli & Brown, P.C., 315 Fed. App’x 327, 329 (2d 

Cir. 2009) (citing Bazzle and concluding that the district court properly compelled 

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ORDER- 6

arbitration on question of the arbitrability of class claims); Guida v. Home Sav. of Am., 

Inc., 793 F. Supp. 2d 611, 616-17 (E.D.N.Y. 2011) (citing Bazzle, “[t]he Court concludes 

. . . that the ability of a class to arbitrate a dispute where the parties contest whether the 

agreement to arbitrate is silent or ambiguous on the issue is a procedural question that is 

for the arbitrator to decide”); JSC Surgutneftegaz v. President & Fellows of Harvard 

Coll., 04 Civ 6069(RMB), 2007 WL 3019234, at *2 (S.D.N.Y. Oct. 11, 2007) (quoting 

Bazzle and stating that “arbitrators are well situated to answer the question ‘whether 

contracts forbid[] class arbitration’”); Smith v. The Cheesecake Factory Rests., Inc., No. 

3:06-00829, 2010 WL 4789947, at *2 (M.D. Tenn. Nov. 16, 2010) (citing Bazzle and 

stating that the “issue as to whether the parties agreed to class arbitration is to be resolved 

by the arbitrator”).

5

 

5 In Stotl-Nielsen S.A. v. AnimalFeeds International Corporation, --- U.S. ---, 130 S. Ct. 

1758 (2010), the court addressed Bazzle in dicta, stating:

[T]he parties appear to have believed that the judgment in Bazzle requires an 

arbitrator, not a court, to decide whether a contract permits class arbitration . . . . 

In fact, however, only the plurality decided that question. But we need not revisit 

that question here . . . .

Id. at 1772. Although the Stolt-Nielsen Court pointed out that Bazzle did not have the same 

precedential value as a majority opinion, the Court did not conclude that the Bazzle plurality was 

incorrect on the issue of who decides whether a class can arbitrate a dispute. Stolt-Nielsen held 

that “a party may not be compelled under the [Federal Arbitration Act] to submit to class 

arbitration unless there is a contractual basis for concluding that the party agreed to do so.” Id. 

at 1775 (italics in original). The Supreme Court, however, emphasized that the parties had 

stipulated that the arbitration clause was silent on class arbitration and that they had reached no 

agreement on the arbitrability of class-wide claims. Id. at 1775-76 & n.10. Because the parties 

stipulated that they had reached no agreement, the Supreme Court had “no occasion to decide 

what contractual basis may support a finding that the parties agreed to authorize class-action 

arbitration.” Id. at 1776, n.10. Neither did the Stolt-Nielsen Court have occasion to decide the 

threshold issue of whether the court or the arbitrator should decide the arbitrability of class-wide 

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ORDER- 7

In resolving the present issue, the court finds Vilches v. The Travelers Companies, 

Inc., 413 Fed. App’x 487 (3d Cir. 2011), to be particularly instructive. In Vilches, the 

parties were in disagreement regarding whether the arbitration agreement signed at the 

beginning of the plaintiff’s employment or the revised arbitration policy that the 

defendant introduced later in the employment relationship, and which contained a class 

arbitration waiver, governed their dispute. Id. at 490. Despite the parties’ agreement to 

arbitrate all employment disputes irrespective of which provision governed, the district 

court addressed the question of class action waiver and found, based on correspondence 

of the defendan,t that the defendant had provided sufficient notice of the revised policy, 

and that the plaintiff’s electronic consent and continued employment constituted 

agreement to the revised policy. Id. 

The Third Circuit reversed the district court, stating that “the issue of whether [a 

plaintiff] is bound by a disputed amendment to [an] existing [contract] falls within the 

scope of this expansive agreement to arbitrate.” Id. at 491. The Third Circuit reasoned:

While the parties framed their arguments so as to invite the Court’s 

attention to the class action waiver issue – namely, whether the revised 

Arbitration Policy expressly prohibiting class arbitration governs the 

relationship between [defendant] and [plaintiff] – we conclude that “the 

relevant question here is what kind of arbitration proceeding the parties 

agreed to.” Bazzle, 539 U.S. at 452 . . . (emphasis in original). . . . 

Assuming binding arbitration of all employment disputes, the contested 

waiver provision solely affects the type of procedural arbitration 

 

claims. See Yahoo! Inc. v. Iversen, No. 11-CV-03282-LHK, 2011 WL 4802840, at *2 (N.D. Cal. 

Oct. 11, 2011); Guida, 793 F. Supp. 2d at 616 (“[W]hile Stolt-Nielsen pointed out that Bazzle did 

not have the same precedential value as an opinion by a majority of the Court, it did not indicate 

that the plurality opinion in Bazzle was incorrect on the issue of who decides whether a class can 

arbitrate a dispute.”).

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ORDER- 8

mechanism applicable to this dispute. The Supreme Court has made clear 

that questions of contract interpretation aimed at discerning whether a 

particular procedural mechanism is authorized by a given arbitration 

agreement are matters for the arbitrator to decide. . . . Where contractual 

silence is implicated, “the arbitrator and not a court should decide whether a 

contract [was] indeed silent on the issue of class arbitration,” and “whether 

a contract with an arbitration clause forbids class arbitration.” Stolt–

Nielsen S.A. v. AnimalFeeds Int’l Corp., --- U.S. ---, 130 S. Ct. 1758, 1771–

72, . . . (2010).

The Policy originally in force made no mention of class action or class 

arbitration, and was entirely silent on whether the parties had a right to 

proceed through class or collective arbitration. In contrast, the amended 

Policy explicitly precludes class arbitration. Accordingly, we must “give 

effect to the contractual rights and expectations of the parties,” and refer the 

questions of whether class arbitration was agreed upon to the arbitrator. 

Stolt–Nielsen, 130 S.Ct. at 1774.

Vilches, 413 Fed. App’x at 492 (italics in original; some citations, quotations, and text 

modifications omitted). 

Similar to the parties in Vilches, the parties here are in dispute regarding whether 

an earlier version of the Terms & Conditions, which contains an arbitration clause but is 

silent as to class action waiver, or a later version of the Terms & Conditions, which 

contains both an arbitration clause and a class action waiver, is applicable. As in Vilches, 

this issue goes to the procedural mechanisms available at arbitration, and thus is a 

procedural issue that should be left for the arbitrator to decide, assuming that arbitration 

is ordered. Because this issue is appropriately reserved for the arbitrator should Sprint 

prevail on its motion to compel arbitration, the court declines to reconsider its order 

denying discovery that Plaintiffs assert would be relevant to this issue. 

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ORDER- 9

III. CONCLUSION

Based on the foregoing, the court DENIES Plaintiffs’ motion for reconsideration

(Dkt. # 262).

Dated this 17th day of February, 2012.

A

JAMES L. ROBART

United States District Judge

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