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 here. 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 appeal.

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 arbitrate.

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).