Enforceability Status
Class action waivers in Oregon new construction contracts are likely enforceable when paired with arbitration agreements, due to FAA preemption under AT&T Mobility LLC v. Concepcion (2011). Oregon 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. Oregon courts follow this federal precedent.
Oregon's Uniform Arbitration Act (ORS §§ 36.600-36.740) provides a statutory framework for enforcing arbitration agreements. Oregon courts have upheld arbitration provisions in consumer contracts, though the state has a tradition of applying careful scrutiny to consumer contracts of adhesion.
Oregon applies unconscionability analysis under ORS § 72.3020. Both procedural and substantive unconscionability must be demonstrated. While Oregon courts have been protective of consumer rights, challenges to class action waivers in arbitration agreements face a high bar under FAA preemption.
Oregon's Unlawful Trade Practices Act (ORS § 646.605 et seq.) provides individual remedies for unfair or deceptive trade practices, including actual damages and attorney fees. This remedy remains available to buyers regardless of any class action waiver in their builder contract.
Relevant Oregon 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 Oregon and provides for the enforcement of written arbitration agreements.
Prohibits unfair or deceptive trade practices and provides individual remedies including actual damages and attorney fees.
Builders in Oregon Using This Clause
What Oregon Buyers Should Know
- Individual remedies under the Unlawful Trade Practices Act Oregon's Unlawful Trade Practices Act provides individual remedies including actual damages and attorney fees that are available regardless of any class action waiver.
- Oregon courts carefully review adhesion contracts While class action waivers in arbitration agreements are likely enforceable under FAA preemption, Oregon courts may scrutinize other aspects of one-sided builder contract provisions.
- Document all construction issues Maintain detailed records of defects, warranty requests, and builder communications to support any individual claim.
- Consult an Oregon consumer law attorney An attorney can evaluate the specific class action waiver language and advise on enforceability and your individual rights under Oregon law.