It’s too late to ask for arbitration after class certification, says 10th Circuit

In Healy v. Cox Communications, Inc., an antitrust class action, the Tenth Circuit affirmed an order finding that Cox Communications waived any right it may have had to compel arbitration because it didn’t ask for arbitration until “after extensive discovery, class certification, potentially dispositive motions, and a petition to this circuit.”

Cox argued that it couldn’t move to compel arbitration with respect to absent class members until after class certification. Judge Lucero’s opinion rejected this argument because the arbitration clauses were material to the class certification decision, and could have (and should have) been asserted as a defense to class certification.

The lesson here is that it’s better to ask for arbitration, and be told your request is premature, than to wait too long, and be told you’re too late.

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