United States District Court, W.D. Oklahoma
In re COX ENTERPRISES, INC. SET-TOP CABLE TELEVISION BOX ANTITRUST LITIGATION
COX COMMUNICATIONS, INC., Defendant. ANDREW ALWERT, Plaintiff, STANLEY FELDMAN, Plaintiff,
COX COMMUNICATIONS, INC., Defendant.
MEMORANDUM OPINION AND ORDER
J. CAUTHRON UNITED STATES DISTRICT JUDGE.
following proceedings are the latest iteration in this
long-running Multi-District Litigation case. Plaintiffs
originally sought to pursue their anti-trust action against
Defendant as a national class action. The Court rejected that
plan and that decision was affirmed on appeal. Plaintiffs
then elected to proceed with regional class actions.
Plaintiffs elected to proceed with certain
“bellwether” cases. These started with Plaintiff
Richard Healy pursuing his action against Defendant in
Oklahoma. Following the conclusion of a jury trial in that
case, the Court granted Defendant's Fed.R.Civ.P. 50
motion and entered judgment in favor of Cox. That decision
was affirmed on appeal. Plaintiffs Alwert and Feldman then
sought leave to proceed with their state-based class actions.
The Court determined that each Plaintiff had agreed to
arbitrate any claims against Defendant. That decision was
affirmed on appeal. Plaintiffs have now filed a Motion for
Leave to File Amended Complaints seeking to name substitute
plaintiffs to pursue class actions for the states of Arizona
and Louisiana. Defendant has objected to Plaintiffs'
Motion for Leave to Amend and argued that the proposed
substitute plaintiffs are also subject to arbitration
provisions and therefore the Court should deny the Motion for
Leave to Amend as futile.
seek leave to replace Mr. Feldman with Mr. Spencer and Mr.
Gallop as proposed representatives for the Arizona class, and
replace Mr. Alwert with Mr. Turner as proposed representative
for the Louisiana class. In response to Plaintiffs'
Motion, Defendant asserts that each of the proposed
substitute plaintiffs has agreed to arbitrate his claims.
Plaintiffs do not contest that the arbitration provisions are
applicable to Mr. Spencer or Mr. Gallop; rather,
Plaintiffs' only argument is that a recent decision from
the Louisiana Supreme Court requires the Court to find that
the arbitration provision applicable to Mr. Turner is an
unenforceable contract of adhesion. In support of this
provision, Plaintiffs rely upon Duhon v. Activelaf,
LLC, __So.3d__, 2016 WL 6123820 (La. Oct. 19, 2016).
Louisiana Supreme Court has created a four-factor test to
consider in determining whether or not an arbitration clause
is an unenforceable contract of adhesion. See Aguillard
v. Auction Mgmt. Corp., 908 So.2d 1 (La. 2005). Those
four factors examine “(1) the physical characteristics
of the arbitration clause, (2) the distinguishing features of
the arbitration clause, (3) the mutuality of the arbitration
clause, and (4) the relative bargaining strength of the
parties.” Duhon, 2016 WL 6123820 at *4.
Plaintiffs argue that the arbitration clause relied upon by
Defendant violates each of these four factors.
argue that the arbitration provision was not contained in
either the annual notices or other messages contained within
Plaintiff Turner's bill. According to Plaintiffs, those
documents simply informed customers of Cox of the general
provisions or existence of the arbitration clause and
directed them to the Cox website for the complete provisions
of the arbitration clause. Plaintiffs assert this process
concealed the full details of the arbitration clause.
Additionally, Plaintiffs argue that the general notification
about arbitration was buried in a great deal of small print,
which covered dozens of separate topics. However, examination
of the actual documents submitted to Plaintiffs by Cox
demonstrate the error in these arguments.
it is undisputed that in 2015 Defendant sent Mr. Turner its
privacy and annual notice as a Cox customer, which included a
separate paragraph entitled “Arbitration Policy and
Class Action Waiver.” See Dkt. No. 105, Ex. 2,
p. 3. That notice advised all of Defendant's customers,
including Mr. Turner, that it was adding an arbitration
clause and that they would be notified of the change when it
became effective, and the notice further provided an
opportunity to opt out of the arbitration clause. On June 15,
2015, Defendant posted an Updated Terms and Conditions of
Document, which is attached as Ex. 3 to Dkt. No. 515.
Paragraph F of that document in bold, large type, was
entitled “Dispute Resolution; Mandatory Binding
Arbitration; and Class Action Waiver.” That paragraph
provided a thorough explanation of the terms of the
arbitration agreement and the steps necessary to opt out of
the clause. It is undisputed that Mr. Turner received this
Ex. 6 to Dkt. No. 515 is a copy of the bill received by Mr.
Turner for the period ending April 29, 2015, and included in
the “News from Cox” section on that bill was an
important notice outlining that Cox had imposed an
arbitration agreement and that if customers such as Mr.
Turner wanted to opt out they should do so within thirty days
of the date of the bill, following the instructions set forth
in the terms and conditions.
the arbitration clause in Duhon, which consisted of
a series of check boxes without headings, textual
enhancements, or other identifying features, the arbitration
clause here was clearly spelled out and provided on multiple
occasions to Cox customers, such as Mr. Turner. In
Duhon, the court noted that the central question in
determining the enforceability of an arbitration agreement
was whether or not the plaintiff has truly consented to the
arbitration provision. Id. at *4. The Duhon
court noted the plaintiff there had not consented because the
terms of the clause were obscured. Here, unlike the
arbitration provision in Duhon, the physical
characteristics distinguished the arbitration agreement from
other language in the Customer Service Agreement. The
paragraphs were not multi-subject paragraphs, but were solely
related to the arbitration clause and its terms. Thus, the
arbitration clause is far more similar to the one in
Aguillard than the one in Duhon.
Compare 907 So.2d at 16 with 2016 WL
6123820 at *5. After considering the physical characteristics
of the arbitration clause and the distinguishing features of
the arbitration clause from its surrounding text, as well as
Mr. Turner's lack of objection to those terms, the Court
finds that Plaintiff Turner consented to the terms of the
arbitration agreement. The first two factors weigh in favor
of enforcing the arbitration clause.
do not offer any persuasive argument on the issue of the
mutuality of the arbitration clause or the relative
bargaining strength of the parties. Accordingly, the Court
finds that Plaintiffs' attempts to render the arbitration
clause unenforceable based upon the Louisiana Supreme
Court's decision in Duhon is without merit and
the Court finds that the arbitration clause was consented to
by Mr. Turner and it is enforceable as to his claims against
Plaintiffs argue that the arbitration clause cannot be
enforced because the class action that was brought by Mr.
Alwert was pending at the time that he agreed to arbitrate
his clause and thus the agreement to arbitrate would violate
Rule 23 and the Court's stay. The Court finds this
argument without merit. As has been determined on prior
occasions, Mr. Turner was not yet a member of the class at
the time that the arbitration clause went into effect. As the
Court has repeatedly held, until the class is finally
certified, persons such as Mr. Turner are merely potential
members and therefore none of the restrictions as to class
members would have applied to him. Further, as Defendant sets
forth in its reply brief, recent U.S. Supreme Court decisions
have made clear that claims such as Mr. Turner's cannot
be removed from the reach of the Federal Arbitration Act by
Rule 23. See Am. Express Co. v. Italian Colors
Rest., 570 U.S. 228, 233-34 (2013). See also
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 367
(2011), noting that the Rules Enabling Act forbids
interpreting Rule 23 to abridge, enlarge, or modify any
substantive right. In short, nothing about Mr. Turner's
presence as a putative class member prevented Cox from
altering the terms of their agreement between it and those
parties and therefore Cox was within its authority to create
and impose the arbitration agreement.
reasons set forth herein, the Court finds that
Plaintiffs' Motion for Leave to File Amended Complaints
(Dkt. No. 511) is DENIED as futile, as each of the proposed
substitute plaintiffs is subject to arbitration. Because the
Court has rejected Plaintiffs' Leave to Amend, Defendant
concedes that its ...