Achey: The Decision That Made Courts Count the Queue

Batching provisions were, for a period, the consensus answer to mass arbitration exposure. The logic was straightforward and superficially fair: if the problem is that ten thousand simultaneous demands generate an unmanageable fee event, process them in tranches. Nobody loses their claim; everybody waits their turn.

Achey v. Cellco Partnership is the decision that showed what "waiting their turn" actually means at scale.

The clause

The underlying dispute was a putative class action by wireless customers alleging violations of the New Jersey Consumer Fraud Act over undisclosed monthly administrative fee charges.

The arbitration agreement provided that where twenty-five or more customers represented by the same counsel brought similar claims, the arbitrations would proceed in stages, with only ten arbitrations moving forward at any one time. Absent settlement, the process would continue in batches of ten until every claim was resolved.

The trial court enforced the agreement. On 1 May 2023, the Appellate Division reversed.

Why it failed

The court's reasoning did not depend on hostility to batching as a concept. It depended on two omissions.

No outer limit. Nothing in the provision constrained how long the batching process could continue. The court held the clause unconscionable on its face because it gave all decision-making power to the respondent as to how long batching would go on — leaving claimants without any protection that their claims would be heard within any defined period.

No tolling. The agreement contained no provision suspending limitations periods for claimants waiting in the queue. A claimant far enough back in line therefore faced the prospect of arriving at arbitration only to meet a limitations defence created by the delay the clause itself imposed.

The arithmetic that follows from a ten-at-a-time regime is the reason this decision is quoted everywhere. Applied to a sizeable inventory, a batch size of ten produces a queue measured not in years but in generations — a runway that has been described in the practitioner literature as leaving some claimants waiting well over a century.

At that point, the distinction between a slow process and no process collapses.

Severance refused

The remedy is as important as the holding.

The court did not excise the batching provision and enforce the remainder. It held the arbitration agreement unenforceable in its entirety, as permeated by provisions that were unconscionable and violative of New Jersey public policy.

Permeation analysis is where a great deal of drafting risk actually lives. A severability clause protects an agreement with one defective term. It does not protect an agreement whose overall design a court reads as systematically one-sided — and the more comprehensively a clause is engineered against mass filings, the more it invites exactly that characterisation.

There is an uncomfortable dynamic here for drafters. Each individual protective term is defensible in isolation. Notice requirements are reasonable. Evidentiary preconditions are reasonable. Batching is reasonable. Confidentiality is reasonable. Stack all of them into one clause and a court may see not a series of reasonable terms but a machine, and decline to repair it.

What Achey established

Three things, all of which have held.

The queue is a term. Courts will compute how long claimants wait and treat the result as a substantive feature of the agreement, not an administrative detail.

Discretion over duration is fatal. A batching regime in which the respondent effectively controls how long the process runs is one-sided in the way unconscionability doctrine exists to address.

Tolling is not optional. Any staged protocol without effective tolling is asking a court to bless a limitations defence manufactured by the drafter's own delay.

Two and a half years later, the Northern District of California reached materially the same conclusion on a protocol with a batch size of twenty-five and an explicit tolling provision that the drafter could contest. Achey set the analytical frame. Subsequent decisions have filled it in.