February 25, 2010 7:38 AM |
Posted by Allen, D. Matthew |
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In Events Marketing and Products, Inc. v. Comcast Spotlight, Inc., -- So. 3d --, 2010 WL 624136 (Fla. 3d DCA Feb. 24, 2010), the Third District was faced with the question of whether a plaintiff who raised only individual claims in the first complaint could amend the complaint to allege class claims after the defendant sought to compel arbitration. It answered the question: "No."
The parties' contract required AAA arbitration. It also contained a class action waiver clause. AAA supplemental rules on class arbitration do not allow class arbitration in the face of such a clause unless a court issues a ruling giving a plaintiff permission to prosecute class claims in arbitration.
The plaintiff sought such a ruling, arguing that the class arbitration waiver clause was unconscionable. The problem, according to the defendant, was that this issue had to be addressed at the threshold of the case and "artful pleading" such as the addition of class claims by amendment did not afford another bite at the apple.
The Third District agreed that the viability of a class action arbitration waiver clause is a threshold issue that must be addressed at the beginning of the case. Here, the plaintiff did not seek a determination that the waiver clause was unenforceable in its initial papers opposing arbitration. Accordingly, the golden apple of class arbitration was beyond its reach.