Enforceability Status
Class action waivers in Hawaii new construction contracts are likely enforceable when paired with arbitration agreements, due to FAA preemption under AT&T Mobility LLC v. Concepcion (2011). Hawaii has consumer-protective traditions, but federal preemption limits the state's ability to invalidate class action waivers in arbitration agreements.
Legal Analysis
The Federal Arbitration Act (9 U.S.C. §§ 1-16) establishes a strong federal policy favoring arbitration agreements, including class action waivers. Under AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011), the FAA preempts state rules conditioning arbitration on the availability of class-wide procedures. Hawaii courts follow this federal precedent.
Hawaii's Uniform Arbitration Act (HRS §§ 658A-1 through 658A-29) provides a statutory framework for enforcing arbitration agreements. Hawaii courts have upheld arbitration provisions in consumer contracts, though the state has a tradition of protective interpretation of consumer rights.
Hawaii applies unconscionability analysis under HRS § 490:2-302 and common law principles. Both procedural and substantive unconscionability must be demonstrated. While Hawaii courts have been protective of consumer rights, challenges to class action waivers in arbitration agreements face a high bar under FAA preemption.
Hawaii's Unfair or Deceptive Acts or Practices statute (HRS § 480-2) provides individual remedies for unfair or deceptive trade practices, including treble damages and attorney fees. These individual remedies remain available to buyers regardless of any class action waiver.
Relevant Hawaii Law
Establishes a strong federal policy favoring arbitration agreements and preempts state laws that single out arbitration provisions for disfavored treatment.
Governs arbitration agreements in Hawaii and provides for the enforcement of written arbitration agreements.
Prohibits unfair or deceptive trade practices and provides individual remedies including treble damages and attorney fees.
Builders in Hawaii Using This Clause
What Hawaii Buyers Should Know
- Strong individual remedies under HRS Chapter 480 Hawaii's unfair or deceptive acts statute provides individual remedies including treble damages and attorney fees that are available regardless of any class action waiver.
- Hawaii courts are protective of consumer rights While class action waivers are likely enforceable under FAA preemption, Hawaii courts may scrutinize other aspects of builder arbitration provisions for fairness.
- Document all construction defects Maintain detailed records of defects, warranty requests, and builder communications to support any individual claim.
- Consult a Hawaii real estate attorney An attorney can evaluate the specific class action waiver language and advise on enforceability and your individual rights under Hawaii law.