Hernandez v. Internet Gaming Entertainment, Ltd et al

Filing 29

Hernandez v. Internet Gaming Entertainment, Ltd et al

Doc. 29

Case 1:07-cv-21403-JIC

Document 29

Entered on FLSD Docket 11/29/2007

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 07-21403-Civ-COHN/SNOW ANTONIO HERNANDEZ, Individually and on behalf of all others similarly situated, Plaintiff, v. INTERNET GAMING ENTERTAINMENT, LTD., a foreign corporation, and IGE U.S. LLC., a Delaware corporation, Defendants. / SUPPLEMENTAL AUTHORITY IN SUPPORT OF PLAINTIFFS' RESPONSE IN OPPOSITION TO IGE U.S., LLC'S MOTION TO STAY THIS ACTION PENDING ARBITRATION, OR ALTERNATIVELY, MOTION TO DISMISS ANY NON-ARBITRABLE CLAIMS FOR IMPROPER VENUE Plaintiff, ANTONIO HERNANDEZ, by and through undersigned counsel, hereby notifies the Court of supplemental authority in support of Plaintiffs' response in opposition to Defendant, IGE U.S., LLC n/k/a AFFINITY MEDIA HOLDINGS, LLC's ("IGE US"), Motion to Stay this Action Pending Arbitration, or Alternatively, Motion to Dismiss Any Non-Arbitrable Claims for Improper Venue. Specifically, Plaintiff notifies the Court of the following: Supplemental Authority On November 26, 2007, Florida's First District Court of Appeal filed its opinion in

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Case 1:07-cv-21403-JIC

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Entered on FLSD Docket 11/29/2007

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S.D.S. Autos, Inc. v. Chrzanowski, 2007 WL 4145222 (Fla. 1st DCA Nov. 26, 2007)1 addressing the enforceability of a binding arbitration provision that contains an express class action waiver against consumers who file class action claims under Florida's Deceptive and Unfair Trade Practices Act ("FDUTPA"). In Chrzanowski, the court held "that the contractual provisions at issue here which purport to prohibit consumers from pursuing class relief for small but numerous claims [...] are irreconcilably at odds with the remedial purposes of FDUTPA, contrary to public policy, and unenforceable for that reason." Id. at 9 This holding was based, in part, upon the court's acknowledgement that it has previously "held that an arbitration agreement that defeats the remedial purpose of the statute upon which an action is based or deprives the plaintiff of the ability to obtain meaningful relief for alleged statutory violations is unenforceable for public policy reasons." Id. at 5 (internal marks and citations omitted). Based upon Chrzanowski, IGE US' motion to stay these proceedings pending arbitration should be denied. Forcing Plaintiffs to arbitrate their class action claims would effectively prevent them from obtaining the meaningful relief FDUTPA was enacted to afford.

This opinion has not yet been released for publication in the permanent law reports. Until it is released it is subject to revisions or withdrawal. A copy of this opinion is attached hereto as Exhibit "A".

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Case 1:07-cv-21403-JIC

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Entered on FLSD Docket 11/29/2007

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Respectfully submitted this 29th day of November, 2007. s/ C. Richard Newsome C. RICHARD NEWSOME, ESQUIRE Florida Bar No.: 827258 Email: [e-mail] Newsome Law Firm 20 N. Orange Ave., Suite 800 Orlando, Florida 32801 Telephone: [phone] Facsimile: [phone] DONALD E. HAVILAND, JR., ESQUIRE Pennsylvania Bar No.: 66615 Email: [e-mail] MICHAEL J. LORUSSO, ESQUIRE Pennsylvania Bar No.: 203684 Email: [e-mail] The Haviland Law Firm, LLC 740 S. Third Street, Third Floor Philadelphia, PA 19147 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff, Antonio Hernandez and the Class

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Case 1:07-cv-21403-JIC

Document 29

Entered on FLSD Docket 11/29/2007

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was filed on this 29th day of November, 2007, with the Clerk of Court using the CM/ECF system which will send notice of electronic filing to: Scott D. Richburg C. Ryan Maloney Foley & Lardner LLP One Independent Drive, Suite 1300 Jacksonville, FL 32201-0240 Richard S. Davis Foley & Lardner LLP 111 North Orange Avenue, Suite 1800 Orlando, FL 32801-2386

s/ C. Richard Newsome Florida Bar No.: 827258 Newsome Law Firm

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