Martha Kristian and James D. Masterman v. Comcast Corporation Comcast Mo Group, Inc. Comcast Cable Holdings, LLC Comcast Cable Communications Holdings, Inc. Comcast Cable Communications, Inc. And Comcast Holdings Corporation, at & T Broadband, Jack Rogers and Paul Pinella v. Comcast Corporation and at & T Broadband

This appeal requires us to evaluate the enforceability of arbitration agreements that Comcast, a cable television provider, invoked against a group of its subscribers, who have sued it for violations of state and federal antitrust laws. Concluding that the arbitration agreements did not have retroactive effect, the district court ruled that the subscribers could not be compelled to arbitrate their antitrust claims. In so ruling, the district court did not have to reach a number of other issues raised by the subscribers in opposition to Comcast's demand for arbitration.

We disagree with the district court's interpretation of the arbitration agreements. Their language does have retroactive effect. This ruling requires us to address the other arguments raised by the subscribers against the enforceability of the arbitration agreements. We find that Comcast provided adequate notice of the arbitration agreements. However, we conclude that the provision of the arbitration agreements barring the recovery of treble damages is invalid as applied to the subscribers' federal antitrust claims because it prevents the vindication of a federal statutory right. Similarly, we conclude that the provisions of the arbitration agreements barring the recovery of attorney's fees and costs and barring class arbitration are invalid because they prevent the vindication of statutory rights under state and federal law. Nevertheless, the arbitration agreements contain savings clauses that provide for severance of these invalid provisions. With these provisions severed, the arbitration can go forward. Thus, we reverse the district court's ruling that the subscribers cannot be compelled to arbitrate their antitrust claims.

Plaintiffs-Appellees James D. Masterman, Paul Pinella, Jack Rogers, and Martha Kristian (collectively, "Plaintiffs") are Boston area subscribers of cable services obtained from Defendant-Appellant Comcast Corporation ("Comcast"). Plaintiffs subscribed for cable services through Comcast predecessor companies in 1987, 1991, 1994, and 1999, respectively. Their two complaints — one in state court, one in federal court — allege that the prices that they have been paying for cable services are inflated as a result of anticompetitive practices on the part of Comcast and AT & T Broadband, Comcast's predecessor-in-interest.

The complaints allege that Comcast has been consolidating its hold on markets and territories through agreements to swap or exchange cable television assets ("swapping agreements").1 The complaints specifically reference two swapping agreements, one in 1999 and another in 2001. Plaintiffs Kristian and Masterman allege that Comcast engages in conduct that excludes, prevents, or interferes with competition, including Comcast's refusal to provide programming access to competitors either before or after Comcast merged with AT & T Broadband in 2002. Plaintiffs seek certification of class actions comprised of individuals who subscribed to Comcast cable services in the Boston area at anytime from December 1999 to the present.

When Plaintiffs first subscribed for cable services, none of their service agreements contained an arbitration provision. In 2001, Comcast began including an arbitration provision in the terms and conditions governing the relationship between Comcast and its subscribers. These terms and conditions are contained, in part, in notices that inform subscribers at the time of cable installation — and at least annually thereafter — of the terms and conditions governing their subscriptions ("Policies & Practices"). Comcast included the Policies & Practices with each Boston area subscriber's invoice as a billing stuffer during the November 2001 billing cycle.

The version of the Policies & Practices mailed in November/December 2002 contained an arbitration agreement that, at first blush, substantially differed from the one in the 2001 Policies & Practices. The arbitration agreement contained in the November/December 2003 Policies & Practices remained unchanged from 2002. Comcast seeks to compel arbitration pursuant to the language of the arbitration agreements contained in the 2002/2003 Policies & Practices; the 2002/2003 arbitration agreements are the focus of this appeal.

Rogers and Pinella filed a complaint ("Rogers" complaint) against Comcast and AT & T Broadband in Massachusetts state court, alleging a cause of action under the Massachusetts Antitrust Act, Mass. Gen. Laws. Ch. 93. Comcast removed this action to the U.S. District Court for the District of Massachusetts. Contemporaneously, Kristian and Masterman filed a complaint ("Kristian" complaint) against Comcast, as well as several other Comcast entities, in the U.S. District Court for the District of Massachusetts, alleging causes of action under the Clayton Antitrust Act, 15 U.S.C. §§ 15 and 26.

Pursuant to the arbitration agreements at issue, Comcast filed motions to compel arbitration in both cases. Plaintiffs in Rogers presented several arguments to the district court in opposition to Comcast's motion to compel arbitration (Plaintiffs' opposition to Comcast's motion to compel arbitration in Kristian was in all relevant respects identical to the opposition filed by the Rogers' Plaintiffs). They asserted, inter alia, that the facts that gave rise to their complaint occurred before the existence of the 2002/2003 arbitration agreements; therefore, the agreements did not apply to their antitrust claims. Plaintiffs also contended that the arbitration agreements prevented them from vindicating their causes of action under federal antitrust law, and that they violated public policy and were unconscionable under state law. Concluding that the language of the 2002/2003 arbitration agreements did not have retroactive effect, the district court ruled that they did not apply to the state antitrust claims at issue. The district court did not reach Plaintiffs' other arguments.

The district court applied its decision in Rogers to Kristian as both complaints were based on the same underlying facts, the arbitration agreements at issue in both cases were identical, and the district court's reasoning applied equally to both complaints. Thereafter, Comcast filed an interlocutory appeal contesting the district court's denial of its motions to compel arbitration. Both cases are currently stayed, pending resolution of this appeal. As the district court's order refusing to compel arbitration applied to both the Rogers and Kristian complaints, the two cases have been consolidated for purposes of this appeal.

We evaluate the district court's denial of a motion to compel arbitration de novo. Campbell v. Gen. Dynamics Gov't Sys. Corp., 407 F.3d 546, 551 (1st Cir. 2005). However, in deciding this appeal, "[w]e are not wedded to the lower court's rationale, but, rather, may affirm its order on any independent ground made manifest by the record." InterGen N.V. v. Grina, 344 F.3d 134, 141 (1st Cir.2003).

As noted, the district court found that the arbitration agreements in the 2002/2003 Policies & Practices did not apply retroactively. Below, in relevant part, is the 2002/2003 arbitration language at issue, set forth in bold face as it appears in the agreements:

IF WE ARE UNABLE TO RESOLVE INFORMALLY ANY CLAIM OR DISPUTE RELATED TO OR ARISING OUT OF THIS AGREEMENT OR THE SERVICES PROVIDED, WE HAVE AGREED TO BINDING ARBITRATION EXCEPT AS PROVIDED BELOW. YOU MUST CONTACT US WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A DISPUTE . . . OR YOU WAIVE THE RIGHT TO PURSUE A CLAIM BASED UPON SUCH EVENT, FACTS OR DISPUTE.

THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED ON A CLASS ACTION OR CONSOLIDATED BASIS OR ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS A PRIVATE ATTORNEY GENERAL), OTHER SUBSCRIBERS, OR OTHER PERSONS SIMILARLY SITUATED UNLESS YOUR STATE'S LAWS PROVIDE OTHERWISE.

The district court focused its attention on the first sentence of the first paragraph, in particular the phrase "the services provided":

The inclusion of the word "the" before "services provided" indicates to the Court that the services being discussed are those specifically provided under "this agreement." It is also noteworthy that "the services provided" is mentioned immediately after "this agreement" without any qualifying language whatsoever that would indicate that the services do not refer to the agreement itself. These two factors, acting in combination, lead the Court to believe that the phrase "the services provided" refers to specific services provided under the particular subscriber agreement at issue, and does not refer to services in a general sense.

The district court buttressed this interpretation of the arbitration clause with two other points.

First, the district court cited cases where certain contractual language meant retroactive effect. See, e.g., Belke v. Merrill Lynch, Pierce, Fenner & Smith, 693 F.2d 1023, 1028 (11th Cir.1982)("any controversy between us arising out of your business") (over'd on other grounds by Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985)); Beneficial Nat'l Bank, U.S.A. v. Payton, 214 F.Supp.2d 679, 689 (S.D.Miss.2001)(collecting cases); Whisler v. H.J. Meyers & Co., Inc., 948 F.Supp. 798, 802 (N.D.Ill.1996)("`any controversy arising out of or relating to any of my accounts'"). The district court also cited cases where the arbitration provision explicitly addressed retroactivity. See, e.g., Boulet v. Bangor Sec., 324 F.Supp.2d 120, 125 n. 4 (D.Me 2004) (discussing retroactive effect of agreement that stated "`whether entered into prior, on or subsequent to the date hereof'"). Because the 2002/2003 arbitration agreements were not phrased like the agreements in any of the cases it cited, the district court found that the ambiguity of the agreements should be interpreted against Comcast in light of the policy of construing adhesion contracts strictly against the drafter. The district court expressly found that the arbitration agreements were contracts of adhesion.2 See Rosenberg v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 170 F.3d 1, 19 n. 16 (1st Cir.1999).

Second, the district court highlighted the presence of a statute of limitations provision found in the sentence immediately after the sentence containing the phrase "the services provided".3 In the district court's view, if the arbitration agreements had retroactive effect, the statute of limitations provision would act as a waiver of all disputes arising one-year prior to the arbitration provision in the 2002 Policies & Practices. Such a waiver would be a "significant departure from the parties' prior agreements, which did not even contain an arbitration provision."4 The district court stated that "there is no indication that the phrase `the services provided' was intended to have such a dramatic effect on the parties' pre-existing contractual relationships."

We cannot agree with the district court's reading of the arbitration agreements. As an initial matter, the district court ignored a large number of cases where arbitration agreements contained language specifically excluding retroactive effect. For example, in Security Watch, Inc. v. Sentinel Systems, Inc., 176 F.3d 369 (6th Cir.1999), the Sixth Circuit found no retroactivity in an arbitration clause that read "`[t]he parties shall follow these dispute resolution processes in connection with all disputes, controversies or claims . . . arising out of or relating to the Products furnished pursuant to this Agreement or acts or omissions of Distributor or AT & T under this Agreement.'" Id. at 372 (emphasis added). In Choice Security Systems, Inc. v. AT & T Corp., 141 F.3d 1149 (Table), 1998 WL 153254 (1st Cir. Feb.25, 1998) (unpublished), we found no retroactivity in an arbitration provision that read "all disputes. . . arising out of or relating to the products furnished pursuant to this Agreement." Id. at *1 (emphasis added); see also In re Universal Serv. Fund Billing Practices Litg., 300 F.Supp.2d 1107, 1124 (D.Kan.2003); Coffman v. Provost Umphrey Law Firm, L.L.P., 161 F.Supp.2d 720, 723, 726-27 (E.D.Tex.2001). In these cases, the language in the arbitration clause unmistakably limits arbitration to what is covered by the agreements — e.g., "pursuant to this Agreement." These arbitration clauses do not contain the additional language found in the clauses at issue here — "any claim or dispute arising out of this agreement or the services provided" (emphasis added). Read most naturally, the phrase "or the services provided" covers claims or disputes that do not arise "out of this agreement" and hence are not limited by the time frame of the agreements.

In rejecting this natural reading, the district court, as noted, placed an undue amount of emphasis on the article "the" in the phrase "the services provided", which appears immediately after the reference to "this agreement". ("If we are unable to resolve informally any claim or dispute related to or arising out of the agreement or the services provided, we have agreed to binding arbitration except as provided below.") In effect, this reading adds to the phrase "the services provided" words of limitation — "under this agreement". There is no justification for rewriting the arbitration provision in this way. Additionally, because the word "services" is defined in the Policies & Practices,5 it is grammatically correct to include the definite article "the" before "services" in order to signify that "services" refer to "services" as defined in the text, rather than services in a general sense.

Moreover, contrary to the district court's finding, the 2002/2003 arbitration agreements did not effect a substantial change in the terms governing a potential arbitral proceeding between Comcast and its subscribers. The district court found that the 2002/2003 arbitration agreements, if they were enforced, would represent a significant shift in the contractual relationship. Specifically, the district court noted that "[t]his conclusion [of non-retroactivity] is supported by the fact that the [2002/2003] arbitration provisions contained a strict limitations period." However, the 2001 Policies & Practices included a limitations period identical to the one found in the 2002/2003 arbitration clauses.6 The 2001 Policies & Practices also explicitly contained language that addressed retroactivity, mirroring the language of the arbitration agreements in the decisions cited above:

ANY AND ALL DISPUTES ARISING BETWEEN YOU AND THE COMPANY. . . WHETHER ARISING BEFORE OR AFTER THE EFFECTIVE DATE MUST BE RESOLVED BY FINAL AND BINDING ARBITRATION. THIS INCLUDES ANY AND ALL DISPUTES BASED ON ANY PRODUCT, SERVICE OR ADVERTISING CONNECTED TO THE PROVISION OR USE OF THE SERVICE.

In a side-by-side comparison of the 2001 and the 2002/2003 Policies & Practices, the only major difference between the two versions is that certain provisions, such as a limitation on remedies and a bar on the use of class mechanisms, are located in different sections. In the 2001 version, the bar on class arbitration is located in its own offset subsection — subsection (b) — under section 10, entitled "Dispute Resolution"; in the 2002/2003 version, similar language exists as the second paragraph of section 10, entitled "Mandatory and Binding Arbitration" and is not offset. Also, the 2001 version contained, as subsection (c) of section 10, "Dispute Resolution," a remedies limitation specific to arbitration, in addition to the general remedies limitation, section 8, entitled "Limited 30-Day Warranty and Limitation of Liability". In the 2002/2003 version, the arbitration-specific remedies limitation of the 2001 version has no analogue. Instead, the 2002/2003 version uses the general remedies limitation. Finally, the 2002/2003 iteration adds a provision specifically permitting severance of the class mechanism bar. Aside from those changes, nearly every other section of the 2002/2003 Policies & Practices is identical to the 2001 version, with only a few other minor changes to language.

In this respect, the district court made an apt observation but drew the wrong conclusion because it did not incorporate the 2001 Policies & Practices into its analysis: "There is no indication that the phrase `the services provided' was intended to have such a dramatic effect on the parties' pre-existing contractual relationships." Precisely. The 2002/2003 Policies & Practices merely re-ordered and restructured the 2001 Policies & Practices, changing the language detailing the rules governing arbitration and eliminating some redundancy in the 2001 version. It was never intended to make significant changes in the pre-existing relationship.

Furthermore, the district court incorrectly relied on the state contract principle requiring contracts of adhesion to be construed strictly against the drafter. Ordinarily, given the strong federal policy of resolving any doubts concerning arbitrability in favor of arbitration, any ambiguity created by the change in language from 2001 to 2002/2003 should be resolved in favor of finding arbitrability. See Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) ("[A]s a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration."). While the district court acknowledged this principle — as proffered by Comcast — in its discussion, it chose not to apply it. Instead, it concluded that "[i]n light of the fact that the subscriber agreements at issue in this case are unquestionably adhesion contracts, this Court considers it appropriate to hold the defendants to the words they chose to use in drafting the arbitration provisions."

To support this choice, the district court cited Paul Revere Variable Annuity Ins. Co. v. Kirschhofer, 226 F.3d 15 (1st Cir. 2000). There, we acknowledged that "[o]ne important constraint is that the federal policy favoring arbitration does not totally displace ordinary rules of contract interpretation. Thus, numerous courts have employed the tenet of contra proferentem in construing ambiguities in arbitration agreements against the drafters." Id. at 25. The petitioners in Paul Revere:

concede[d] that the contra proferentem tenet properly applies to such questions as whether a party has entered an arbitration agreement or whether an arbitration agreement is enforceable vel non [;] they nonetheless maintain[ed] that it ha[d] no application to questions touching upon the scope of an arbitration agreement.

Id. In response, we held that "generally speaking, the presumption in favor of arbitration applies to the resolution of scope questions. . . . A scope question arises when the parties have a contract that provides for arbitration of some issues and it is unclear whether a specific dispute falls within that contract." Id. (internal citations and quotation marks omitted).

Here, Plaintiffs argue that the arbitration agreements are not enforceable as to their particular antitrust claims because the arbitration agreements do not apply retroactively. Plaintiffs concede that the arbitration agreements are generally valid. Put another way, Plaintiffs argue that their antitrust claims do not fall within the scope of the arbitration agreements as a result of non-retroactivity. Plaintiffs are in fact raising a scope question. Thus, the general rule cited in Paul Revere applies. Where the federal policy favoring arbitration is in tension with the tenet of contra proferentem for adhesion contracts, and there is a scope question at issue, the federal policy favoring arbitration trumps the state contract law tenet.7 For this reason as well, the district court erred in ruling that the arbitration agreements did not apply retroactively to the antitrust claims of Plaintiffs.

Therefore, we conclude that the 2002/2003 arbitration agreements, like their 2001 predecessor, do have retroactive effect. Thus, we must address the other arguments advanced by Plaintiffs in opposition to the enforcement of the arbitration agreements.

Plaintiffs assert that "Comcast's arbitration clauses are also unenforceable because Comcast failed to give Plaintiffs advance 30 day notice of the arbitration provisions as required by federal law." The district court did not address this issue because it found the retroactivity issue dispositive. Specifically, Plaintiffs assert that Comcast did not provide the requisite 30-day notice to subscribers as required by 47 C.F.R. §§ 76.1602 & 76.1603,8 which interpret and implement a portion of the Cable Television and Consumer Protection Act, 47 U.S.C. § 552(c).

The statute and regulations do not specify the type of notice required. Indeed, the statute establishes a flexible notice standard. A company may provide notice "using any reasonably written means at [the cable company's] sole discretion." 47 U.S.C. § 552(c) (2000). Here, Comcast provided notice by setting out the entire text of the new subscription agreement. Although this may not be ideal notice because it does not draw attention to the changes contained in the 2002/2003 agreements from the 2001 agreement, Comcast was not required to provide any more notice than it did. Rather, Comcast need only provide notice that is a "reasonable written means" in order to satisfy the requirements of 47 U.S.C. § 552(c). While the outer boundary of what is reasonable may not be certain, the notice provided by Comcast here meets the standard.

Additionally, Plaintiffs assert that Comcast did not provide adequate notice in compliance with the Policies & Practices itself, which requires that Comcast will "provide you [the subscriber] notice of the change and its Effective Date." The Policies & Practices does not contain an explicit effective date, notifying a subscriber when the provisions contained in the Policies & Practices begin to apply. However, the Policies & Practices states in its first paragraph that it was distributed by Comcast to subscribers as notice "in order to comply with the Company's obligations under the rules of the Federal Communications Commission." Thus, the Policies & Practices incorporates by reference the Federal Communications Commission's ("FCC") 30-day advance notice regulation, 47 C.F.R. § 76.1603(b). Again, Comcast could have complied more clearly with its self-imposed effective date notice requirement, but this compliance is good enough. Furthermore, neither the statute nor the FCC's regulations require that subscribers receive any explicit statement about the effective date of new terms. We are satisfied that Comcast provided adequate notice.9

Plaintiffs contend that the 2002/2003 arbitration agreements should be invalidated because many of their provisions prevent Plaintiffs from vindicating their statutory rights. Plaintiffs' "vindication of statutory rights" arguments reflect "the presumption that arbitration provides a fair and adequate mechanism for enforcing statutory rights." Rosenberg, 170 F.3d at 14; see also Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 637, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985)("[S]o long as the prospective litigant effectively may vindicate its statutory cause of action in the arbitral forum, the statute will continue to serve both its remedial and deterrent function.") Unless the arbitral forum provided by a given agreement provides for the fair and adequate enforcement of a party's statutory rights, the arbitral forum runs afoul of this presumption and loses its claim as a valid alternative to traditional litigation.

Plaintiffs assert that the arbitration agreements prevent them from vindicating their statutory rights because the agreements: (1) provide for limited discovery; (2) establish a shortened statute of limitations period; (3) bar recovery of treble damages; (4) prevent recovery of attorney's fees; and (5) prohibit the use of class mechanisms. Before undertaking our analysis of the five provisions in the arbitration agreements that Plaintiffs find objectionable, we must explain some preliminary considerations that inform the analysis of each of their vindication of statutory rights claims.

A. "Questions of Arbitrability"

i. The Supreme Court trilogy

a. Howsam

In analyzing a given vindication of statutory rights claim, we must first decide who the proper decision maker is for such a claim: an arbitrator or a court. The touchstone for deciding this question is Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002). In Howsam, the Court "focuse[d] upon an arbitration rule of the National Association of Securities Dealers (NASD)" involving a six-year statute of limitations. Id. at 81, 123 S.Ct. 588. Dean Witter had asked the district court "to declare that the dispute was `ineligible for arbitration' because it was more than six years old." Id. at 82, 123 S.Ct. 588. The Supreme Court had to decide "whether a court or an NASD arbitrator should apply the [NASD's] rule to the underlying controversy," id. at 81, 123 S.Ct. 588—the type of threshold decision we must make here for each of Plaintiffs' vindication of statutory rights claims.

The Court began its analysis with the observation that "`arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.'" Id. at 83, 123 S.Ct. 588 (quoting Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960)). The Court continued:

Although the Court has also long recognized and enforced a liberal federal policy favoring arbitration agreements, it has made clear that there is an exception to this policy: The question whether the parties have submitted a particular dispute to arbitration, i.e., the "question of arbitrability," is an issue for judicial determination unless the parties clearly and unmistakably provide otherwise.

Id. at 83, 123 S.Ct. 588 (internal citations omitted). This statement requires close scrutiny because it includes references to three distinct elements: (1) the federal policy favoring arbitration agreements, which has nothing to do with the intent of the parties that have entered into an arbitration agreement; (2) the exception to this policy — based on the presumed intent of the contracting parties — that the question of whether the parties have submitted a particular dispute to arbitration (the "question of arbitrability") is an issue for judicial determination; and (3) a clear and unmistakable expression of actual intent by the contracting parties that they want an arbitrator rather than a court to decide whether they have submitted a particular dispute to arbitration.

This second element, involving the presumed intent of the contracting parties favoring judicial determination of whether a particular dispute has been submitted to arbitration, is described by the Court as "the interpretive rule". The Court in Howsam had to decide "whether application of the NASD time limit provision falls into the scope of this . . . interpretive rule." Id. at 83, 123 S.Ct. 588. If the Court decided that the interpretive rule applied, a court would decide the applicability of the six-year statute of limitations. If the Court decided that the interpretive rule did not apply, the general policy favoring arbitration would govern, and the arbitrator would decide the applicability of the statute of limitations.

In rejecting the application of the interpretive rule to the dispute over the applicability of the statute of limitations, the Court explained that it would be wrong to view too broadly the presumption that the parties to an arbitration agreement intend that a court rather than an arbitrator will decide whether the parties have submitted a particular dispute to arbitration. As the Court explained:

Linguistically speaking, one might call any potentially dispositive gateway question a "question of arbitrability," for its answer will determine whether the underlying controversy will proceed to arbitration on the merits. The Court's case law, however, makes clear that, for purposes of applying the interpretive rule [that a court rather than an arbitrator should decide whether the parties have submitted a particular dispute to arbitration], the phrase "question of arbitrability" has a far more limited scope. The Court has found the phrase applicable in the kind of narrow circumstance where contracting parties would likely have expected a court to have decided the gateway matter, where they are not likely to have thought that they had agreed that an arbitrator would do so, and consequently, where reference of the gateway dispute to the court avoids the risk of forcing parties to arbitrate a matter that they may well not have agreed to arbitrate.

Id. at 83-84, 123 S.Ct. 588 (internal citations omitted). The cornerstone here is an assumption about the intent of the contracting parties to an arbitration agreement, in "the kind of narrow circumstances where contracting parties would likely have expected a court to have decided the gateway matter." Id. at 83-84, 123 S.Ct. 588. In these narrow circumstances, the gateway dispute poses a "question of arbitrability", meaning that a court, rather than an arbitrator, decides whether the parties have submitted the particular dispute to arbitration.

Howsam described two categories of disputes where we presume that courts rather than arbitrators should resolve the gateway dispute: (1) disputes "about whether the parties are bound by a given arbitration clause"; and (2) disagreements "about whether an arbitration clause in a concededly binding contract applies to a particular type of controversy." Id. at 84, 123 S.Ct. 588. Examples of the former include whether an arbitration contract binds parties that did not sign the agreement; and whether an arbitration agreement survived a corporate merger and bound the subsequent corporation. See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995); John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964). Examples of th