OrbitCom, Inc. (“OrbitCom”) brought suit against Qwest Communications Corp. (“Qwest”) seeking the recovery of telecommunications access fees. This claim was not independently arbitrable. Qwest refused to pay later charges under an agreement that contained an arbitration clause, essentially asserting a set off or right of recoupment with respect to the prior “overcharges.” Qwest then filed this Motion to Stay Proceedings and Petition to Compel Arbitration, arguing that even though not pleaded as a counterclaim, its refusal to pay amounted to a counterclaim, which arose out of or related to the contract, and that arbitration should be compelled of all claims, because the non-arbitrable claim was collateral to an arbitrable claim. Noting that the arbitration clause was a “broad clause,” which resulted in a presumption of arbitrability, the court granted Qwest’s motion, following Tenth Circuit precedent which requires the arbitration of claims that are collateral to an arbitrable claim. The court also concluded that OrbitCom had not overcome the presumption of arbitration. OrbitCom, Inc. v. Qwest Comm’ns Corp., Case No. 09-00181 (USDC D. Colo. June 25, 2009).
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Arbitration of non-arbitrable claim ordered since it was collateral to an unpleaded arbitrable claim asserted as a set-off
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Senior Patent Counsel
Royal DSM NV