Two sets of plaintiffs, cable service subscribers, sued defendant, a cable provider, alleging that prices plaintiffs paid were inflated as a result of anticompetitive practices. The plaintiffs challenged the mandatory arbitration provisions in the subscriber agreements which: (1) limited discovery; (2) shortened the statute of limitations; (3) bar recovery of treble damages; (4) prevent recovery of attorney’s fees; and (5) prohibit the use of class mechanisms. With respect to the class waiver issue, the court found that, unlike Green Tree Financial and Pacificare, the ban was clear and explicit and therefore could not be left to interpretation by the arbitrator. Then, after acknowledging decisions out of the Third, Fourth, Seventh, and Eleventh Circuits enforcing consumer arbitration clauses barring the use of class devices (class action and/or class arbitration), the court noted two important distinctions. “First, attorney’s fees and costs were either recoverable by the plaintiffs who contested the arbitral forum on the basis of the class arbitration ban, or the fees and costs issue was moot…. Second, in all four decisions, the plaintiffs raised claims against banks or other financial lenders primarily under TILA.” The same rationale, the court found, did not necessarily apply to complex and costly antritrust cases. After quoting from the Ninth Circuit’s decision in Ting v. AT&T, the court concluded that a prohibition on the class mechanism would essentially shield Comcast “from private consumer antitrust enforcement liability, even in cases where it has violated the law. Plaintiffs will be unable to vindicate their statutory rights…. The social goals of federal and state antitrust laws will be frustrated because of the ‘enforcement gap’ created by the de facto liability shield.” Finally, based on the language contemplating severance, the court, rather than throwing out the entire arbitration provision as void, severed out the bar on classwide arbitration. See Kristian v. Comcast, 446 F.3d 25 (1st Cir. 2006).
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