Fromer v. Comcast: Federal Court Refuses to Compel Arbitration

United States District Court Judge Stefan Underhill has issued a ruling that augments the growing body of law rebuffing defendants’ attempts to use the U.S. Supreme Court’s 2011 decision in AT&T Mobility v. Concepcion to force plaintiffs seeking classwide relief into individual arbitration. See Fromer v. Comcast Corp., No. 09-02076 (D. Conn. Aug. 21, 2012) (ruling on motion to compel arbitration) (available here).

Comcast customer Robert Fromer filed the class action in 2009, alleging that the company violated antitrust laws by bundling its digital voice service with a modem, essentially forcing subscribers to rent the modem. Comcast sought to use Concepcion to force the plaintiff to arbitrate his claims pursuant to the arbitration clause in his subscriber agreement, which included a class action waiver. Judge Underhill denied Comcast’s motion and found the ban on classwide arbitration to be void, since it would “effectively preclude[] Fromer from pursuing federal statutory remedies.” Fromer at 11. Judge Underhill cited the cost of individual litigation versus the potential gain for plaintiffs, stating that “Fromer can expect to recover approximately $1 for every $202 spent in litigation.” Id. at 10.

The ruling follows a similar decision by the 2nd Circuit Court of Appeals (available here) holding that American Express could not invoke its arbitration clause in an antitrust lawsuit filed by merchant customers.