Appeals Court Agrees Cox Set-Top Complaints to Be Arbitrated

The 10th U.S. Circuit Court of Appeals upheld a U.S. District Court decision to send a pair of putative class-action complaints against Cox Communications regarding set-top box policies to arbitration. Citing "a strong presumption the dispute is arbitrable" due to the Federal Arbitration Act, the three-judge panel said in an opinion (in Pacer) Friday there's no basis for inferring that the plaintiffs must have believed the arbitration language in the subscriber agreements didn't encompass a set-top dispute or else they would have consulted counsel. The appellate court rejected plaintiffs' arguments Cox waived its right to arbitration, saying Cox actions in the two cases "were consistent with an intent to arbitrate." That waiver argument seems to be based on Cox's agreement to stay the litigation while the bellwether Healy v. Cox Communications case proceeded, the 10th Circuit said, adding that the preference to litigate one case "does not mean it will want to litigate a future case." The court also rejected the plaintiffs' argument the Cox arbitration clause was unenforceable because language in it seems to indicate Cox could change the agreement terms at any time, since that argument challenges the contract as a whole should be decided in arbitration. The twin lawsuits claimed Cox violated antitrust law by tying its premium cable service to set-top rental. The panel's judges were Harris Hartz, Gregory Phillips and Nancy Moritz, with Hartz writing the opinion.