Arbitration and Prison Communications: The Difficulty of Challenging Excessive Fees

On March 29, 2017, the Third Circuit ruled that users of a prison phone service could not be compelled to arbitrate their claims against the telecommunications provider. This was a victory for plaintiffs, who were allowed to continue to pursue class certification for their claims. However, as discussed below, this was a very narrow victory, as the court indicated that minor wording changes in the contract might allow enforcement of a provision requiring arbitration and waiving class-action remedies. If such a provision were enforced, it would become uneconomical to pursue low-value individual claims. As a result, the combination of the arbitration clause and class-action waiver would act as an effective exculpatory clause, making it nearly impossible for plaintiffs to sue over exorbitant and unlawful charges for prison communications. In turn, the diminished ability to enforce prisoner access to communications through litigation puts added pressure on already overburdened regulatory authorities and leaves geographically separated families struggling to maintain contact with incarcerated loved ones