A defendant in a class action antitrust suit that did not move to compel arbitration until shortly before trial was set to begin was held to have waived its right to arbitrate. In re: Cox Enterprises, Inc. Set-Top Cable Television Box Antitrust Litigation, No. 14-6158 (10th Cir., June 24, 2015). Defendant’s motion to compel arbitration followed extensive discovery, class certification, and potentially dispositive motions. The court found that the defendant’s assertion of its right to arbitrate was overly late and inconsistent with its conduct in litigating the case. Here
The court rejected the defendant’s argument that it would have been futile to file its motion to compel arbitration before the class was certified, because absent class members were not parties prior to certification. The court found that the defendant could have asserted
its right to arbitrate at any time during the course of the litigation, and it could have asserted its right to arbitrate against the absent class members as a possible defense against class certification.