En Banc Rehearing Sought in Cox Set-Top Arbitration Decision
The 10th U.S. Circuit Court of Appeals, in its decision last month that an arbitrator should decide whether a Cox Communications arbitration provision was unenforceable (see 1608290021), was inconsistent with multiple of its own prior rulings in other arbitration-related cases,…
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said a pair of appellants in a petition (in Pacer) for hearing en banc posted Friday. "En banc reconsideration is necessary to secure and maintain uniformity of this Court’s decisions," appellants Andrew Alwert and Stanley Feldman said, pointing to the court's 2002 Dumais v. American Golf ruling saying an arbitration agreement letting one party alter the arbitration agreement’s existence or scope without limits is illusory. Since Cox had that unilateral right, they said, the 10th Circuit erred by suggesting state law exclusively governs this issue and an arbitrator rather than the court should adjudicate the issue. The 10th Circuit decision also runs contrary to the Federal Arbitration Act, Supreme Court precedent interpreting the act "and a broad consensus among other courts of appeal," they said. The act and precedent require the court to determine threshold issues of arbitrability, including whether the agreement to arbitrate is valid, said Alwert and Feldman, who had brought class-action complaints against Cox on set-top box policies. In a statement Monday, Cox said it believes there's no need for a full panel review since the original decision was unanimous.