## Facts

- Boston-area cable subscribers brought federal and state antitrust claims alleging Comcast’s acquisitions and conduct unlawfully monopolized cable services and led to supracompetitive prices.
- Comcast’s subscriber/service agreements were periodically revised; in 2001 Comcast added a mandatory arbitration clause covering “any claim or dispute” arising out of the agreement or services, including statutory claims.
- The arbitration clause required individual-only arbitration and barred class actions and class arbitration.
- The clause also restricted remedies by barring treble damages and barring recovery of attorney’s fees and costs otherwise available under antitrust statutes.
- The agreements included a severability (savings) clause providing that unlawful or unenforceable terms would be severed and the remainder enforced.
- Comcast moved to compel arbitration and to stay or dismiss the court actions based on the arbitration clause.

## Issues

1. Whether the arbitration clause applied retroactively to cover antitrust claims based on conduct predating the clause’s adoption.
2. Whether subscribers received adequate notice of the revised agreement such that continued service use manifested assent to arbitration.
3. Whether the clause’s waivers of treble damages, attorney’s fees/costs, and class procedures were unenforceable because they prevented effective vindication of federal and state antitrust rights in arbitration.
4. If any provisions were invalid, whether they were severable so that arbitration could proceed on the remaining terms.

## Decision

- The First Circuit reversed the district court’s denial of Comcast’s motion to compel arbitration.
- The court held the arbitration clause was broad enough to apply retroactively to the asserted antitrust disputes.
- The court held Comcast provided adequate notice and that subscribers were bound by the revised terms through continued use after notice.
- The court held invalid, as applied to the antitrust claims, the provisions barring treble damages (for federal antitrust claims), barring attorney’s fees and costs, and barring class arbitration/class actions because they prevented effective vindication of statutory rights.
- Applying the agreements’ severability clauses, the court severed the invalid restrictions and compelled arbitration to proceed without them.

## Legal Principles

- Under the Federal Arbitration Act, arbitration agreements covering statutory claims are enforceable according to their terms, and doubts about scope are generally resolved in favor of arbitrability.
- A revised service contract can bind consumers to new terms, including arbitration, when adequate notice is provided and the consumer continues to accept services under the revised terms.
- An arbitration agreement may not prospectively eliminate substantive statutory remedies or otherwise operate to prevent a claimant from effectively vindicating federal or state statutory rights in the arbitral forum.
- Provisions that bar treble damages and statutory fee- and cost-shifting in antitrust claims can be invalid when they strip statutory entitlements necessary to private enforcement.
- A categorical ban on class procedures may be invalid when, in context, it makes pursuit of complex, low-value statutory claims economically impracticable, thereby preventing effective vindication.
- When an arbitration agreement contains a severability clause, courts may sever unlawful remedial or procedural restrictions and enforce the parties’ underlying agreement to arbitrate.

## Conclusion

The First Circuit required the subscribers to arbitrate their antitrust claims because the arbitration clause applied retroactively and was properly noticed, but it refused to enforce remedial and procedural waivers that would block effective vindication of antitrust rights, severing those terms and compelling arbitration on the remaining provisions.


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