Anderson v. Comcast, Corp.

United States Court of Appeals
For the First Circuit

Nos. 06-2165, 06-2203

CARL ANDERSON, individually and on behalf of
all others similarly situated,

Plaintiff, Appellee/Cross-Appellant,

v.

COMCAST, CORPORATION, f/k/a AT&T Comcast Corp.;
COMCAST CABLE COMMUNICATIONS, INC.; COMCAST HOLDINGS CORPORATION,
f/k/a Comcast Corporation; COMCAST CABLE COMMUNICATIONS HOLDINGS,
INC., f/k/a AT&T Broadband, Corp.; COMCAST CABLE HOLDINGS, LLC,
f/k/a Telecommunications, Inc., f/k/a AT&T Broadband, LLC;
COMCAST MO GROUP, INC., f/k/a MediaOne Group, Inc.; COMCAST MO OF
DELAWARE, INC., f/k/a Continental Cablevision, Inc., f/k/a Media
One of Delaware, Inc.; COMCAST OF MASSACHUSETTS II, INC.;
AT&T CORPORATION,

Defendants, Appellants/Cross-Appellees.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

Before

Lipez, Circuit Judge,

Tashima,* Senior Circuit Judge,

and Howard, Circuit Judge.

*
Of the Ninth Circuit, sitting by designation.
 Timothy C. Blank, with whom Joseph L. Sulman, Robert C.
Heim, Nory Miller, and Dechert LLP were on brief, for
Appellants/Cross-Appellees.
Michael J. Quirk, with whom Frank R. Saia and Stephen V.
Saia were on brief, for Appellee/Cross-Appellant.

August 23, 2007
 LIPEZ, Circuit Judge. This appeal and cross-appeal

require us to determine how our recent ruling in Kristian v.

Comcast, Corp., 446 F.3d 25 (1st Cir. 2006) – in which we

determined that specific provisions of Comcast's standard

arbitration agreement with its cable customers had to be severed

from the agreement because they prevented its customers from

vindicating rights in the arbitral forum provided for in state and

federal antitrust statutes – applies to consumer claims that Carl

Anderson brings against Comcast, which seeks to compel arbitration

under the same arbitration agreement.1 In pursuing his claims,

Anderson invoked the Massachusetts Consumer Protection Act, Mass.

Gen. Laws ch. 93A, § 9 ("Chapter 93A"), and various common law tort

theories. Citing Kristian, the district court granted Comcast's

motion to compel arbitration but only after severing provisions in

the arbitration agreement prohibiting attorney's fees, double or

treble damages and a class action remedy in the arbitral forum. It

also specified that "the arbitrator will have the power to

determine the validity and applicability of the agreement's one-

year statute of limitations."

After carefully analyzing the alleged conflicts between

the language of the arbitration agreement and the statutory

1
The arbitration agreement is contained within provisions
eight to ten of a larger standard agreement entitled "Notice to
Customers Regarding Policies, Complaint Procedures & Dispute
Resolution."

-3-
provisions at issue under the framework established in Kristian, we

conclude that only the conflict relating to the limitations period

raises a question of arbitrability for the court to decide. We

therefore vacate that portion of the district court's order

compelling arbitration of the applicability of the contractual

limitations period, and we conclude that the contractual

limitations period is invalid as it relates to Anderson's Chapter

93A claim. However, that clause of the arbitration agreement is

severable under the terms of the agreement; we therefore affirm the

order compelling arbitration of Anderson's claims, absent that

limitations clause. We also reverse that portion of the district

court's order severing the agreement's class action provision and

its bar on multiple damages awards. Those provisions did not pose

questions of arbitrability.

I.

The facts in this case are undisputed. Carl Anderson, a

Massachusetts resident, has been a cable service customer of

Comcast Corporation since at least May 31, 1994. Until 2002, he

leased a cable converter box and remote control in connection with

his cable subscription even though he owned a cable-ready televison

or video cassette recorder. These unnecessary items were billed to

him at approximately $4.30 per month.

In November 2005, Anderson filed a putative class action

in Massachusetts Superior Court alleging that the imposition of

-4-
monthly rental fees on customers with cable-ready equipment

violated Chapter 93A, in addition to violating general common law

tort and contract law principles. Chapter 93A provides a cause of

action to consumers who have been injured by an "[u]nfair method[]

of competition [or] unfair or deceptive acts or practices in the

conduct of any trade or commerce," Mass. Gen. Laws ch. 93A, § 2.

Massachusetts courts have interpreted the terms of Chapter 93A

broadly to include practices that "fall[] 'within at least the

penumbra of some common-law, statutory, or other established

concept of unfairness.'" Lambert v. Fleet Nat'l Bank, 865 N.E.2d

1091, 1097 (Mass. 2007) (quoting Wasserman v. Agnastopoulos, 497

N.E.2d 19, 23 (Mass. App. Ct. 1986)). While asserting no federal

causes of action, Anderson grounds his Chapter 93A unfair trade

practice claim on allegations that Comcast: (1) violated a

provision of the Federal Communications Act requiring that "[a]

cable operator shall not charge a subscriber for any service or

equipment that the subscriber has not affirmatively requested by

name," 47 U.S.C. § 543(f),2 and (2) failed to comply with

regulations issued by the Federal Communications Commission

requiring cable providers to unscramble their basic programming

signals so they can be received by customers with cable-ready

2
The statute further states that "a subscriber's failure to
refuse a cable operator's proposal to provide such service or
equipment shall not be deemed to be an affirmative request for such
service or equipment." 47 U.S.C. § 543(f).

-5-
equipment, 47 C.F.R. § 76.630(a). For the statutory claim,

Anderson seeks treble damages and attorney's fees; for the common

law claims, he seeks actual damages, punitive damages, and

declaratory and injunctive relief.

Shortly after Anderson filed his action, Comcast filed an

unopposed petition for removal to federal court on the basis of

diversity.3 Once in federal court, Comcast moved to compel

arbitration under the arbitration agreement, which states in part:

IF WE ARE UNABLE TO RESOLVE INFORMALLY ANY
CLAIM OR DISPUTE RELATED TO OR ARISING OUT OF
THIS AGREEMENT OR THE SERVICES PROVIDED, WE
HAVE AGREED TO BINDING ARBITRATION EXCEPT AS
PROVIDED BELOW.4

In addition to requiring customers to arbitrate their disputes with

Comcast, the agreement requires that customers contact Comcast

within a year of injury or waive any claim based on that injury; it

requires customers to pay certain costs of arbitration, including

their attorney's fees;5 and it precludes arbitration on a class

3
Comcast is a corporation organized under Pennsylvania law,
with its principal place of business in Pennsylvania. Anderson is
a citizen of Massachusetts.
4
The original text of the arbitration agreement is all in
capital letters. Throughout this opinion, when we reproduce text
from the arbitration agreement, we will reproduce its
capitalization scheme as well.
5
The relevant language of the arbitration agreement states:

The Company will pay for all reasonable arbitration
filing fees and arbitrator's costs and expenses, except
that YOU ARE RESPONSIBLE FOR ALL COSTS THAT YOU INCUR IN
THE ARBITRATION, INCLUDING, BUT NOT LIMITED TO, YOUR

-6-
action basis and denies customers who prevail in arbitration

multiple or punitive damages. Despite setting extensive

limitations on a customer's recovery, the contract contains various

clauses severing any terms that conflict with applicable law.

Anderson objected to the motion, arguing that arbitration

under the terms of the agreement would effectively deny to

plaintiffs the ability to vindicate their statutory and common law

rights. The district court, relying heavily on the framework and

analysis of Kristian v. Comcast, Corp., 446 F.3d 25 (1st Cir.

2006), granted Comcast's motion to compel arbitration, but only

after determining that the agreement's provisions barring

attorney's fees,6 class actions, and multiple damages were "invalid

and severed" as they related to Anderson's Chapter 93A claim.

However, it held that the arbitrator had authority to determine

whether the agreement's limitations period prevented Anderson from

vindicating his statutory claim under Chapter 93A.

In its appeal, Comcast argues that the district court

erred in concluding that the arbitration agreement's bar on class

actions and multiple damages awards were invalid as they related to

Anderson's Chapter 93A claim, and it urges us to reverse that

portion of the district court's order severing these provisions

EXPERT WITNESSES OR ATTORNEYS.
6
Comcast does not appeal from the district court's ruling on
attorney's fees.

-7-
from the arbitration agreement. Anderson cross-appeals from the

district court's order compelling arbitration, arguing that – while

the court correctly found particular provisions of the arbitration

agreement invalid as they relate to his claims – the court should

have found the entire arbitration agreement unconscionable and

therefore unenforceable.7 In addition, he cross-appeals the

district court's ruling that the validity of the arbitration

agreement's one-year limitations period should be determined by the

arbitrator. He argues instead that the conflict between that

limitations period and Chapter 93A's four-year statute of

limitations creates a direct conflict that must be resolved by the

court in favor of the longer statutory period.

II.

We consider these claims against the backdrop of a strong

pro-arbitration policy expressed by Congress and repeatedly upheld

by the courts. The Supreme Court has consistently interpreted the

Federal Arbitration Act, 9 U.S.C. §§ 1-16, as an effort to

"revers[e] centuries of judicial hostility to arbitration

agreements, . . . to allow parties to avoid 'the costliness and

delays of litigation,' and to place arbitration agreements 'upon

the same footing as other contracts.'" Scherk v. Alberto-Culver

Co., 417 U.S. 506, 510-11 (1974) (quoting H.R. Rep. No. 96, 68th

7
Comcast's appeal and Anderson's cross-appeal are separately
docketed as #06-2165 and #06-2203, respectively.

-8-
Cong., 1st Sess., 1, 2 (1924)) (footnote omitted); see also Dean

Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 221 (1985) ("The

preeminent concern of Congress in passing the Act was to enforce

private agreements into which parties had entered, and that concern

requires that we rigorously enforce agreements to

arbitrate. . . ."). Indeed, the Supreme Court has repeatedly

upheld arbitration agreements against a variety of attacks, stating

that "any doubts concerning the scope of arbitrable issues should

be resolved in favor of arbitration, whether the problem at hand is

the construction of the contract language itself or an allegation

of waiver, delay, or a like defense to arbitrability." Moses H.

Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25

(1983).

Despite the Court's liberal policy favoring arbitration,

it has made clear that the "question whether the parties have

submitted a particular dispute to arbitration, i.e., the 'question

of arbitrability,' is 'an issue for judicial determination [u]nless

the parties clearly and unmistakably provide otherwise.'" Howsam

v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (2002) (quoting AT&T

Techs., Inc. v. Commc'ns Workers, 475 U.S. 643, 649 (1986)

(alteration in original)). This judgment – that the question

whether the parties have submitted a particular disagreement to

arbitration is an issue for judicial determination – is based on

the presumed intent of the contracting parties favoring judicial

-9-
determination of such a question. The Court refers to this

presumed intent as the "interpretive rule." Id.; see also Kristian

v. Comcast, Corp., 446 F.3d 25, 38 (1st Cir. 2006). But the Court

has cautioned against an overly expansive application of the

interpretive rule:

Linguistically speaking, one might call any
potentially dispositive gateway question a
"question of arbitrability," for its answer
will determine whether the underlying
controversy will proceed to arbitration on the
merits. The Court's case law, however, makes
clear that, for purposes of applying the
interpretive rule, the phrase "question of
arbitrability" has a far more limited scope.
The Court has found the phrase applicable in
the kind of narrow circumstance where
contracting parties would likely have expected
a court to have decided the gateway matter,
where they are not likely to have thought that
they had agreed that an arbitrator would do
so, and, consequently, where reference of the
gateway dispute to the court avoids the risk
of forcing parties to arbitrate a matter that
they may well not have agreed to arbitrate.

Howsam, 537 U.S. at 83-84 (citation omitted).

One of the "narrow circumstances" that might raise a

question of arbitrability involves an allegation by a party to an

arbitration agreement that some of the terms in an arbitration

agreement conflict with a statutory right that is not waivable by

contract. If that claim withstands analysis, the court will have

to decide whether the conflict precludes enforcement of the

arbitration agreement. See, e.g., Mitsubishi Motors Corp. v. Soler

Chrysler-Plymouth, 473 U.S. 614, 628 (1985) ("Having made the

-10-
bargain to arbitrate, the party should be held to it unless [the

legislature] itself has evinced an intention to preclude a waiver

of judicial remedies for the statutory rights at issue.").

Alternatively, a party may challenge the enforceability of an

arbitration agreement claiming that the agreement itself or some of

its terms are unconscionable. See id. at 627 ("[C]ourts should

remain attuned to well-supported claims that the agreement to

arbitrate resulted from the sort of fraud or overwhelming economic

power that would provide grounds 'for the revocation of any

contract.'") (quoting 9 U.S.C. § 2).

Anderson primarily raises a vindication of statutory

rights argument as a defense to the obligation to arbitrate,

claiming that Chapter 93A, and a related statute of limitations

provision, preclude enforcement of the arbitration agreement. When

faced with such a defense to the obligation to arbitrate, we must

determine whether that defense poses a question of arbitrability

for the court to decide. This question, to which we now turn, is

at the heart of our analysis.

III.

We review the district court's decision de novo, as it

rests entirely on questions of law. Stuart v. United States, 337

F.3d 31, 34 (1st Cir. 2003). We use the framework developed in

Kristian v. Comcast, Corp., 446 F.3d 25 (1st Cir. 2006) to first

-11-
decide whether any of Anderson's challenges to the arbitration

agreement pose questions of arbitrability.

A. Class Bar

We begin and end our analysis of the arbitration

agreement's class bar by determining whether a conflict exists

between the statute and the agreement. We find no conflict. With

respect to class actions, the agreement states:

THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY
CLAIMS TO BE ARBITRATED ON A CLASS ACTION OR
CONSOLIDATED BASIS OR ON BASES INVOLVING
CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE
CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH
AS A PRIVATE ATTORNEY GENERAL), OTHER
SUBSCRIBERS, OR OTHER PERSONS SIMILARLY
SITUATED UNLESS YOUR STATE'S LAWS PROVIDE
OTHERWISE.

In Kristian, where we also assessed the validity of Comcast's bar

on class arbitration, neither the state nor federal antitrust

statute at issue mentioned the right of plaintiffs to proceed on a

class basis. As a result, our analysis focused on whether the

nature and purposes of antitrust law suggested a conflict, and we

determined that, "[b]ecause the denial of class arbitration in the

pursuit of antitrust claims has the potential to prevent Plaintiffs

from vindicating their statutory rights," id. at 55, such a

conflict did exist. Here, however, Chapter 93A specifically

provides for the class action procedure. It states: "Any persons

entitled to bring such action may . . . bring the action on behalf

of himself and such other similarly injured and situated persons."

-12-
Mass. Gen. Laws ch. 93A, § 9(2). Given this explicit statutory

language, the relevant question here is whether Chapter 93A's class

action provision is the kind of provision anticipated by the

agreement's limiting language, "unless your state's laws provide

otherwise." If so, there is no conflict between the arbitration

agreement and the statute because the arbitration agreement, by its

terms, permits arbitration to proceed on a class basis in the face

of state law providing for such actions.

In these circumstances, we find PacifiCare Health Sys.,

Inc. v. Book, 538 U.S. 401, 406-07 (2003), instructive. There, the

Supreme Court faced a potential conflict between an arbitration

agreement that prohibited punitive damages and statutory language

entitling plaintiff to treble damages. Reasoning that an

arbitrator could interpret the agreement to avoid a direct conflict

(i.e., by finding that treble damages were not necessarily

"punitive"), the Court found no question of arbitrability and

compelled arbitration. Id. Likewise here, to the extent there is

any ambiguity as to whether Chapter 93A "provides otherwise," the

arbitrator must interpret the agreement in the first instance. See

id., at 407 ("[S]ince we do not know how the arbitrator will

construe the remedial limitations, the questions whether they

render the parties' agreements unenforceable and whether it is for

courts or arbitrators to decide enforceability in the first

instance are unusually abstract. . . . [T]he proper course is to

-13-
compel arbitration."). Thus, in light of the "unless" qualifier in

the class action provision, we reject Anderson's contention that

this provision raises a question of arbitrability and leave

determination of the class action question in the first instance to

the arbitrator.

B. Multiple Damages

The district court determined that the agreement's

proscription of multiple damages also improperly prevented

plaintiffs from vindicating statutory rights under Chapter 93A.

The relevant language of the agreement states:

IN NO EVENT SHALL WE OR OUR EMPLOYEES OR
AGENTS HAVE ANY LIABILITY FOR PUNITIVE,
TREBLE, EXEMPLARY, SPECIAL, INDIRECT,
INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING
FROM OUR PROVISION OF OR FAILURE TO PROVIDE
ANY EQUIPMENT OR SERVICES TO YOU. . . . SUCH
LIMITATION OF LIABILITY APPLIES IN ALL
CIRCUMSTANCES REGARDLESS OF WHETHER SUCH
DAMAGES MAY BE AVAILABLE UNDER APPLICABLE LAW,
AND THE PARTIES HEREBY WAIVE THEIR RIGHTS, IF
ANY, TO RECOVER ANY SUCH DAMAGES.

As a prelude to assessing the district court's ruling, we review

our approach to this multiple damages prohibition in Kristian, 446

F.3d at 44-50. There, we found a clear conflict between the

language of the agreement and the federal antitrust statute, which

requires that a plaintiff who established an antitrust injury

"shall recover threefold the damages by him sustained," 15 U.S.C.

§ 15(a). Moreover, taking a preliminary look at whether the

remedies provided by the antitrust statute could be contractually

-14-
waived, we found no ambiguity on the waiver issue that would

require deference to the arbitrator. Kristian, 446 F.3d at 46-47

n.15. Hence, we decided that the remedy stripping provision of the

arbitration agreement posed a question of arbitrability – i.e.,

that the court rather than the arbitrator should decide in the

first instance whether the conflict between the arbitration

agreement and the statute prevented Kristian from vindicating her

statutory rights. Id. at 47-48.

Addressing that question (which we define as the "merits"

in a vindication-of-statutory-rights-defense to a motion to compel

arbitration), we first explained why the award of treble damages

under the federal antitrust statutes could not be waived. Id. We

then noted that this unwaivable conflict suggested plaintiffs

should prevail on their defense to arbitration. Id. at 48.

However, we then focused on a "savings clause" in the arbitration

agreement specifically providing that, if certain remedies could

not be contractually waived under applicable law, a plaintiff could

retain those remedies under the agreement despite any contractual

clauses to the contrary. Id. That "savings clause," by allowing

severance of the prohibition on multiple damages as it related to

the federal antitrust claim, effectively removed the conflict

between the language of the arbitration agreement and the federal

antitrust statute on this issue. Id. Therefore, we determined

that, even though the presence of the damages limitation posed a

-15-
question of arbitrability, it did not preclude enforcement of the

arbitration agreement. Id. We thus ruled that the plaintiffs

could recover treble damages in arbitration for federal antitrust

violations.

When we turned to the state antitrust provision, which

specifies that "the court may award up to three times the amount of

actual damages sustained," Mass. Gen. Laws, ch. 93, § 12, we

concluded that Kristian had not established a question of

arbitrability. Kristian, 446 F.3d at 50. In reaching that

conclusion, we explained that even though Massachusetts law used

the word "may" – indicating that multiple damages were

discretionary – there was still a direct conflict between the

statutory provision and the arbitration agreement because the

arbitration agreement precluded the exercise of discretion to award

treble damages that the statute granted to the decision maker. Id.

at 49. We then took a preliminary look at the waiver question –

that is, whether a plaintiff such as Kristian could contractually

waive the right to treble damages under Massachusetts law. In that

analysis, we determined that "Massachusetts law on this question of

waiver [was] ambiguous at best" because the statute made treble

damages discretionary rather than mandatory and because the case

law on whether remedies were contractually waivable under the

statute was unsettled. Id. at 50. We therefore concluded that the

arbitrator would have to decide in the first instance whether there

-16-
was a conflict between the arbitration agreement and the state law

and whether that conflict made the arbitration agreement

unenforceable. Id.

We now turn to the different damages provision of Chapter

93A, which provides that a successful claimant is entitled to money

damages, which "may include double or treble damages," Mass. Gen.

Laws ch. 93A, § 9(3A) and specifies that "recovery shall be in the

amount of actual damages . . .; or up to three but not less than

two times such amount if the court finds . . . a willful or knowing

violation" of the consumer protection act. Id. at § 9(3) (emphasis

added). We note at the outset that this provision differs

significantly from both the federal and state antitrust statutes at

issue in Kristian because it neither mandates multiple damages in

all instances of a violation (as does the federal antitrust

statute), nor does it make multiple damages discretionary in all

cases (as does the Massachusetts antitrust statute). Instead, it

requires multiple damages only if a fact-finder determines that a

"willful or knowing violation" occurred.

Apparently conceding that the statute and the agreement

conflict, Comcast argues that this conflict does not pose a

question of arbitrability for two reasons. First, to the extent

that the Massachusetts legislature made multiple damages permissive

rather than mandatory, Comcast contends that we must follow our

analysis of the state antitrust statute in Kristian and find that

-17-
whether the provision is waivable is "ambiguous at best." We would

therefore be forced to conclude that this conflict raises no

question of arbitrability and that the arbitrator must decide

waivability in the first instance. Second, to the extent that

Chapter 93A makes multiple damages mandatory if the arbitrator

finds a willful or knowing violation, Comcast argues that it

remains uncertain whether a conflict between the agreement and the

statute will arise in this particular case because such a conflict

is dependent upon the arbitrator's factual findings. In the face

of this factual uncertainty, Comcast argues, there is no question

of arbitrability for the court to decide.

Comcast is correct on both points. We have previously

recognized that where the existence of a conflict between a

provision in an arbitration agreement and a statute depends upon an

arbitrator's factual finding relating to the merits of the dispute,

no question of arbitrability arises. In Kristian, we found that a

possible conflict between the agreement's limitations period and

the statute of limitations posed no question of arbitrability where

the plaintiff alleged an ongoing injury because "(1) whether

Plaintiffs in fact suffer from an ongoing injury . . .; and (2)

whether such injury . . . tolls the statute of limitations . . .

would require an examination of the 'merits of the case,' i.e., the

facts, the province of the arbitrator." 446 F.3d at 44. Thus,

whether the conflict between the agreement and the statute posed a

-18-
question of arbitrability depended upon factual determinations

within the arbitrator's purview. Here, with respect to the

mandatory application of the multiple damages provision of the

statute, there will be a conflict between that portion of the

statute and the agreement only if the arbitrator finds a willful or

knowing violation of the statute.

On the other hand, if the arbitrator finds a violation of

the statute that is not willful or knowing, there will be a direct

conflict between the agreement and the multiple damages provision

of the statute because a flat prohibition against multiple damages

removes even the discretion to award them. See id. at 49.

However, it is ambiguous whether Anderson's right to a

discretionary multiple damages remedy is waivable under

Massachusetts law for the same reasons it was ambiguous whether the

plaintiff in Kristian could waive a discretionary treble damages

award under the Massachusetts antitrust statute.

In summary, despite the direct conflicts between the

multiple damages provision of the statute and the multiple damages

prohibition in the arbitration agreement, these conflicts do not

pose a question of arbitrability because: (1) the conflict between

the mandatory portion of the statute and the agreement will only

arise if ths arbitrator makes a factual finding (a willful or

knowing violation) that relates to the merits of the dispute; and

(2) if the arbitrator finds a violation of the statute that is not

-19-
willful or knowing, the discretionary award of multiple damages may

or may not be waivable under Massachusetts law. In the absence of

a question of arbitrability, the district court erred in ordering

that the multiple damages provision be severed from the arbitration

agreement.

C. Statute of Limitations

1. The Question of Arbitrability

Although a four-year statute of limitations applies to

Chapter 93A claims under Massachusetts General Laws chapter 260,

§ 5A, the arbitration agreement provides: "YOU MUST CONTACT US

WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR

FACTS GIVING RISE TO A DISPUTE . . . OR YOU WAIVE THE RIGHT TO

PURSUE A CLAIM BASED UPON SUCH EVENT, FACTS OR DISPUTE." An

apparent conflict therefore arises from the text of these

provisions.8

In Kristian, as just noted, when we faced a similar

conflict between an explicit statutory time limit and the

arbitration agreement's one-year limitation, we concluded that no

question of arbitrability was posed because the question of tolling

required an examination of facts relating to the merits of the

8
We note that Comcast renews its argument that the one-year
provision in the arbitration agreement merely imposes a notice
obligation on customers rather than a deadline for filing claims
and therefore does not conflict with the statutory time limit. Our
rejection of this argument in Kristian, 446 F.3d at 43, is
controlling here.

-20-
dispute – a responsibility that belongs to the arbitrator.

Kristian, 446 F.3d at 44. Comcast suggests that there are

equivalent factual disputes in this case regarding when Anderson

discovered that he was being overcharged and whether Comcast

fraudulently concealed the charges that might eliminate the

conflict by bringing him within the agreement's one-year statute of

limitations.

This argument is unpersuasive. Anderson alleges that he

returned his cable box to Comcast in 2002 but did not file suit

until 2005. Anderson's complaint can only be read as an

acknowledgment that he did not comply with the arbitration

agreement's one-year notice of claim provision. The portions of

Anderson's complaint on which Comcast relies in attempting to

establish a factual dispute do not purport to make a tolling

argument and Comcast cannot impose one on Anderson for its own

purposes. We therefore agree that Anderson has established a

direct conflict between the statutory provision and the agreement.

In the face of this direct conflict, we next make the

preliminary waivability inquiry, as we did in Kristian, id. at 46-

47 & n.15, i.e., we assess whether there is ambiguity on the

question whether the statute of limitations can be contractually

shortened. If there is ambiguity, the waivability question must be

determined by the arbitrator in the first instance. For the

reasons that we explain more fully below, we find that there is not

-21-
such ambiguity and we therefore conclude that this conflict between

the arbitration agreement and the statute of limitations raises a

question of arbitrability.

2. Waivability

Seeking to convince us that the limitations period that

applies to Chapter 93A claims can be contractually shortened,

Comcast points out that Massachusetts permits the reduction of

four-year statutes of limitation to one year in certain contexts

(e.g., sale and lease contracts under the provisions of the

Massachusetts Uniform Commercial Code, ("MUCC"), Mass. Gen. Laws

ch. 106, §§ 2-725(1), 2A-506(1)). In addition, it notes that we

have previously recognized this authority in the context of a claim

brought under Chapter 93A, § 11. See Hays v. Mobil Oil Corp., 930

F.2d 96, 100 (1st Cir. 1991) ("[A] one-year contractual limitations

period, although brief, is valid and enforceable."). Section 11

allows "[a]ny person who engages in the conduct of any trade or

commerce" to bring suit for unfair trade practices. Mass. Gen.

Laws ch. 93A, § 11. It is thus the commercial analog to the

consumer remedy provided by Chapter 93A, § 9.

Anderson seeks to distinguish between the MUCC's

allowance of a truncated statute of limitations and Hays on the one

hand, and consumer claims on the other, by pointing out that the

MUCC provisions apply only to contracts for sale and defaults under

a lease and Hays involved a transaction between commercial parties.

-22-
The distinction between commercial and consumer claims is important

in many contexts. Indeed, § 9 was adopted in 1969 to provide an

effective private remedy to consumers, see Slaney v. Westwood Auto,

Inc., 322 N.E.2d 768, 775-77 (Mass. 1975); § 11 was adopted in

1972, in part to eliminate anticompetitive activity, see Levings v.

Forbes & Wallace, Inc., 396 N.E.2d 149, 152-53 (Mass. App. Ct.

1979). Given their different origins and purposes, what is

waivable under one section might not be waivable under the other.

Chapter 93A does not itself contain a statute of

limitations provision. Instead, the four-year period is specified

in Massachusetts General Laws Chapter 260, § 5A, which creates a

four-year statute of limitations for "[a]ctions arising on account

of violations of any law intended for the protection of consumers,

including . . . chapter ninety-three A." This provision was

enacted in 1975, several years after both § 9 and § 11 were

adopted. Chapter 93A claims such as Anderson's were originally

subject to a two-year statute of limitations, which was extended to

three years in 1973 before § 5A finally extended it to four years

in 1975. See Baldassari v. Pub. Fin. Trust, 337 N.E.2d 701, 708

(Mass. 1975). The Massachusetts courts have interpreted the

enactment of § 5A as part of a broader legislative scheme to

"remedy the imbalance which exists primarily because of a lack of

parity in bargaining power between the consumer and the provider of

consumer goods and services." Mahoney v. Baldwin, 543 N.E.2d 435,

-23-
437 (Mass. App. Ct. 1989). The progressive lengthening of the

statute of limitations, and the statutory language emphasizing the

centrality of consumer protection, strongly suggest that the

Massachusetts legislature did not intend this limitations period to

be shortened by contract.

In addressing the waivability of statutory remedies under

§ 11, the Massachusetts Supreme Judicial Court stated in dicta that

it "ordinarily would not effectuate a consumer's waiver of rights

under Chapter 93A." Canal Elec. Co. v. Westinghouse Elec. Corp.,

548 N.E.2d 182, 187 (Mass. 1990). When we assessed the waivability

of the discretionary multiple damages remedy under the state

antitrust statute in Kristian, 446 F.3d at 49-50, we characterized

this language from Canal as "hinting that waiver of statutory

remedies will not be allowed in situations involving a consumer

plaintiff and/or antitrust claims," id. at 50. However, because

the statutory remedy at issue in that analysis was discretionary,

we concluded that "Massachusetts law on [the] question of waiver

[was] ambiguous at best." Id. Here, where the progression of the

law suggests that the Massachusetts legislature was concerned that

a longer statute of limitations was required to allow consumers to

effectuate their private cause of action under Chapter 93A, we find

no such ambiguity.

Our Hays case is readily distinguishable from the instant

case both because it involved a contract between commercial

-24-
parties, and also because the court in that case never mentioned

the applicability of the four-year statute of limitations arising

from § 5A. Moreover, unlike a discretionary damages remedy

provided by statute, a statute of limitations often determines

whether the consumer can seek any remedy at all. If that statute

of limitations can be reduced from four years to one by agreement,

the consumer loses a protection that is basic to all other consumer

remedies. Given the language of the Supreme Judicial Court in

Canal, and the importance accorded to the four-year statute of

limitations for consumers by the legislature, we conclude that this

four-year statute of limitations was not waivable by Anderson in

his agreement with Comcast. The one-year statute of limitations in

the agreement is thus incompatible with his statutory rights under

Chapter 93A.

3. Severance

This unwaivable conflict between the statute and the

arbitration agreement precludes enforcement of the agreement only

if the problematic provision cannot be severed from it. See

Kristian, 446 F.3d at 48. The dispute resolution section of the

arbitration agreement makes clear that the limitations period is

severable:

If any portion of . . . this dispute
resolution section[] is determined to be
illegal or unenforceable, then that provision
may be deleted or modified and the remainder
of . . . this dispute resolution section[]
shall be given full force and effect.

-25-
Severing the one-year limitation provision – as the agreement

allows us to do – preserves the viability of the arbitral forum.

Put another way, arbitration can go forward, subject to the four-

year statute of limitations.

IV.

In his cross-appeal, Anderson also urges us to find the

arbitration agreement unconscionable and therefore unenforceable as

to both his statutory and common law claims. Anderson's primary

unconscionability argument is inextricably bound to his vindication

of statutory rights argument. That is, he argues that the conflict

between numerous provisions of the agreement and Chapter 93A, and

its related statute of limitations, demonstrates the agreement's

one-sided nature and Comcast's determination to extinguish the

procedural and substantive rights of its customers.

We must reject this argument because of its faulty

premise. We have found a direct, unwaivable conflict only between

the four-year statute of limitations for consumer claims related to

Chapter 93A and the one-year limitation provision of the

arbitration agreement. With its severance provision, the

arbitration agreement itself anticipated such a possible conflict

and explicitly stated that arbitration should go forward without

the offending term. The district court found the prohibition

against attorney's fees unenforceable in the arbitral forum.

Comcast did not appeal that determination. For the reasons stated

-26-
above, there is uncertainty whether the class action and multiple

damages bars of the arbitration agreement will be enforceable or

even implicated in the arbitration proceedings. Under these

circumstances, there is no basis for finding the arbitration

agreement unconscionable.

To the extent that Anderson presents an unconscionability

argument under Massachusetts law that is distinct from his

vindication of statutory rights argument, we find that argument so

undeveloped as to be waived. See United States v. Rosario-Peralta,

199 F.3d 552, 563 n.4 (1st Cir. 1999).

V.

In summary, we make the following rulings. On Comcast's

appeal (docket #06-2165), we vacate that portion of the order

declaring the class action bar of the arbitration agreement invalid

and severing it from the arbitration agreement; and we vacate that

portion of the order declaring the multiple damages provision of

the arbitration agreement invalid and severing it from the

arbitration agreement. On Anderson's cross-appeal (docket #06-

2203), we vacate the order requiring the arbitrator to decide the

enforceability of the arbitration agreement's one-year limitation

provision; arbitration can only go forward with that provision

severed from the agreement. We affirm the district court's order

granting Comcast's motion to compel arbitration. We remand for

-27-
further proceedings not inconsistent with this opinion. The

parties shall bear their own costs.

So ordered.

-28-