agreement failed due to the unavailability of the arbitral forum. 395 Ill.
App. 3d 1079. We allowed Gateway’s petition for leave to appeal. Ill.
S. Ct. R. 315 (eff. Feb. 26, 2010). The present appeal concerns
whether section 5 of the Federal Arbitration Act (Arbitration Act or
Act) (9 U.S.C. §5 (2006)) applies to permit the circuit court to
appoint a substitute arbitrator due to the unavailability of the parties’
designated arbitral forum.
Plaintiff Carr and others filed a class action complaint in June
2002, against defendants Intel Corporation, Gateway, Inc., and other
computer manufacturers. The complaint alleged that defendants
marketed Pentium 4 processors and computers in a misleading manner
by claiming that the Pentium 4 processor was faster than its
predecessor, the Pentium III. Carr alleged that, in fact, the Pentium 4
was slower than the Pentium III and Athlon processors from AMD
(Advanced Micro Devices, Inc.).
Carr’s allegations were contained in counts IV, V, and VI of the
class action complaint. In 2003, the circuit court severed those counts
and Carr’s allegations proceeded separately. In the other action, styled
Barbara’s Sales, Inc. v. Intel Corp., the circuit court certified a class.
The defendants in that action appealed and the case eventually came
before this court, where we held that the class action could not
proceed because the alleged representations made by the defendants
in that case were not actionable under Illinois law. Barbara’s Sales,
Inc. v. Intel Corp., 227 Ill. 2d 45, 76 (2007).
With respect to the instant case, Carr alleged causes of action
under California law and under Illinois’s Consumer Fraud and
Deceptive Business Practices Act (815 ILCS 505/1 et seq. (West
2000)). The allegations in Carr’s complaint were identical to those
contained in the original class action complaint. Gateway filed a
motion to dismiss or, in the alternative, to compel arbitration, based
on an arbitration clause in a “Limited Warranty Terms and Conditions
Agreement” that was included in the materials sent with the computer
when it arrived at Carr’s home. Gateway argued that Carr agreed to
arbitrate all disputes.
In November 2007, the circuit court held an evidentiary hearing
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