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
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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
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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
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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
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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
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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."
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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.
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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,
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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
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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.
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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
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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
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further proceedings not inconsistent with this opinion. The
parties shall bear their own costs.
So ordered.
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