This dispute involves two cable subscribers (Andrew Alwert and
Stanley Freedman) who filed putative class actions against Cox
Communications Inc. for allegedly tying monthly set-top box
payments to its premium cable services.
The background of the dispute can be found . In sum, in 2009, several of
Cox's premium cable subscribers filed suits against the company
for allegedly tying the service to its set-top box rentals. The
suits were consolidated and transferred to Oklahoma federal court.
However, in 2011, the Oklahoma federal court denied the request to
certify a national class. Many of the subscribers/plaintiffs then
filed putative class actions in several geographic regions around
the country (Alwert filed on behalf of Cox subscribers in its New
Orleans market and Feldman filed on behalf of Cox subscribers in
its Arizona market). The various regional actions were again
consolidated and transferred to the Oklahoma federal court. The
parties agreed to stay all actions except one case brought on
behalf of Cox subscribers in its Oklahoma City market (the Healey
litigation). After the court granted class certification in that
case, Cox moved to compel arbitration, which was denied. Cox
appealed, and the Tenth Circuit affirmed. While the Healey appeal
was pending before the Tenth Circuit, the Oklahoma federal court
lifted the stay on the Alwert and Feldman cases. Cox answered both
complaints and plaintiffs then sought discovery. Cox then moved to
compel arbitration in both the Alwert and Feldman cases. In
December 2014, the Oklahoma federal court granted the motions,
finding that the arbitration clauses covered the present
litigation, that Cox had not waived arbitration and the arbitration
clauses were supported by consideration and were not illusory. The
plaintiffs appealed and the Tenth Circuit granted the petition to
The Tenth Circuit affirmed the Oklahoma federal court's
order compelling arbitration of both cases, finding that the
arbitration clauses in Alwert and Feldman's subscriber
agreements cover the matters raised in their cases, and that Cox
did not waive its right to arbitration. The Tenth Circuit
distinguished these cases from Healy, because in Healey, Cox
engaged in litigation and did not move to compel arbitration until
a class of subscribers was certified. The Court noted that
Cox's decision to litigate in Healy does not legally impact its
decision to compel arbitration in the Alwert and Feldman cases, as
the matters involve different parties and claims.
Thus, the Court held that Cox had not waived its right to
In re: Cox Enterprises Inc. Set-Top Cable Television Box
Antitrust Litigation, Nos. 15-6076 (Alwert) and 15-6077 (Feldman)
(10th Cir. Aug. 26, 2016).
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Just over a year ago, I authored a Product Liability Advocate blog entry and a Law360 article explaining appropriate methods for asserting objections under Federal Rule of Civil Procedure 34, as amended on December 1, 2015
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