Enforceability Status
Class action waivers in Washington new construction contracts are likely enforceable when paired with arbitration agreements, due to FAA preemption under AT&T Mobility LLC v. Concepcion (2011). Washington has historically been skeptical of certain arbitration provisions, 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 presumption in favor of 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. Washington courts are bound by this federal precedent.
Washington's Uniform Arbitration Act (RCW §§ 7.04A.010 through 7.04A.903) provides a statutory framework for enforcing arbitration agreements. While Washington courts have at times applied heightened scrutiny to arbitration provisions in consumer contracts, the scope for state-law challenges to class action waivers is significantly limited post-Concepcion.
Washington applies unconscionability analysis under RCW § 62A.2-302. Both procedural and substantive unconscionability must be demonstrated. Washington courts have been more willing than some other jurisdictions to find consumer contract provisions unconscionable, but class action waivers in arbitration agreements are generally upheld under FAA preemption.
Washington's Consumer Protection Act (RCW § 19.86 et seq.) provides strong individual remedies, including treble damages, attorney fees, and costs for unfair or deceptive acts. The state's construction defect statutes also provide individual remedies. These protections remain available to buyers regardless of any class action waiver.
Relevant Washington 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 Washington and provides for the enforcement of written arbitration agreements.
Prohibits unfair or deceptive acts in trade or commerce and provides strong individual remedies including treble damages and attorney fees.
Builders in Washington Using This Clause
What Washington Buyers Should Know
- Strong individual remedies under the Consumer Protection Act Washington's Consumer Protection Act provides treble damages, attorney fees, and costs for unfair or deceptive acts. These individual remedies are available regardless of any class action waiver.
- Washington courts have scrutinized arbitration provisions While class action waivers are likely enforceable under FAA preemption, Washington courts have been willing to examine other aspects of arbitration clauses for unconscionability.
- Document all defects and communications Maintain thorough records of construction issues, warranty requests, and builder communications to support any individual claim.
- Consult a Washington construction law attorney An attorney can evaluate the specific class action waiver language and advise on enforceability and potential challenges to other arbitration provisions.