Lemberg Law Client Prevails in Ruling against Time Warner Cable


The U.S. District Court, Southern District of New York, recently denied Time Warner Cable’s motion to strike a Lemberg Law client’s demand for a jury trial.

The case, Sherrod vs. Time Warner Cable, involves allegations that Time Warner Cable violated the Telephone Consumer Protection Act by robocalling Mr. Sherrod’s cell phone in an attempt to collect a debt from someone named Anthony Sanford.

The suit alleges that, on several occasions, Mr. Sherrod spoke with a live operator and told the operator that he had no connection with an Anthony Sanford and requested that Time Warner Cable stop calling his cell phone and remove him from their call list. Nevertheless, the company called his cell phone dozens of times.

As is his right, Mr. Sherrod demanded a jury trial in his case. Time Warner Cable claimed that he had agreed to give up his right to a jury trial as part of his agreement to use Time Warner Cable services.

There is extensive legal precedent that the Seventh Amendment guarantees a right to a jury trial in federal court. According to the court’s decision, waiving the right to a jury trial incorporates four factors: “1) the negotiability of contract terms and negotiations between the parties concerning the waiver provision; 2) the conspicuousness of the waiver provision in the contract; 3) the relative bargaining power of the parties; and 4) the business acumen of the party opposing the waiver.”

Mr. Sherrod argued that he didn’t knowingly and voluntarily waive his right to a jury trial, and that as a consumer, he had zero negotiating leverage or bargaining power when he signed up for cable services. He notes that the jury waiver language is buried on page 9 of the 11-page subscriber agreement.

The judge said that Time Warner Cable’s citations to support its argument involved “relatively sophisticated parties with greater business acumen, opportunity to negotiate, and ability to seek the advice of legal counsel than Sherrod.” The court said that, while the customer agreement did include a prominent arbitration clause and provided instructions for opting out of binding arbitration, it did not specifically refer to a jury waiver. The court ruled that Time Warner Cable did not prove that Mr. Sherrod knowingly and voluntarily waived his right to a jury trial.

The court went on to rule that, even if it were to find that Mr. Sherrod waived a jury trial, it wouldn’t apply to his claim under the TCPA. The judge opined that the Subscriber Agreement had to relate to the dispute, and that Mr. Sherrod’s dispute was outside of the scope of the agreement: “The actions alleged in Sherrod’s complaint – automated calls placed by TWC to Sherrod’s cellphone requesting to speak with Anthony Sanford – may have some plausible connection to the service provider-customer relationship between TWC and Anthony Sanford but they have no connection with the service provider-customer relationship between TWC and William Sherrod.”

With this decision, the case moves forward.

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About the Author:

Sergei Lemberg is a lawyer whose practice focuses on consumer law, class actions and personal injury litigation. He has been repeatedly recognized as the “most active consumer attorney” in the country. In 2020, Mr. Lemberg represented Noah Duguid in the United States Supreme Court in the case entitled Duguid v. Facebook. He is the author of Defanging Debt Collectors, a book that teaches consumers how to battle debt collectors and win.

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