High Court Won't Hear Cox's Arbitration Claim

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By Eleanor Tyler

Jan. 12 — The Supreme Court won't review a district court's ruling that Cox Communications Inc. waived its right to compel arbitration of an antitrust class action alleging it unlawfully tied set-top box rentals to premium cable services.

Cox moved to enforce arbitration of Sherman Act §1 tying claims under various contracts that the plaintiff class had signed. The court, however, agreed with the plaintiffs that Cox sat on its right for far too long.

The Tenth Circuit had agreed with the district court that Cox waived its right to compel the class to arbitrate their claims by waiting through five years of litigation—and down to a looming trial date—to invoke its right.

The Supreme Court denied Cox's petition for certiorari to review whether it had waived its arbitration right by waiting until after class certification to assert it.

Case Already Moved On

The Court's decision has little practical impact because, while the petition was pending, the parties went to trial. A jury found for the plaintiffs and awarded $6.31 million in damages, or about $18.9 million trebled.

That verdict was thrown out on Cox's motion, however, as the court found the plaintiffs failed to prove that anybody else would have rented them a cable set-top box if Cox hadn't forced them to rent one. In short, the court held that even if Cox required customers to rent a set-top box from them in order to subscribe to premium cable, the plaintiffs didn't show at trial that they were harmed by that practice or that competition in the market for set-top boxes in general was harmed.

Cox was represented on the appeal by Latham & Watkins of Washington, D.C. The plaintiff-respondents were represented by Schneider Wallace Cotrell Konecky Wotkyns LLP of Emeryville, Cal.

To contact the reporter on this story: Eleanor Tyler in Washington at etyler@bna.com

To contact the editor responsible for this story: Tiffany Friesen Milone at tmilone@bna.com

For More Information 
The Supreme Court's docket for this petition is at http://src.bna.com/bY0.