In my June 17 column1 I reported on the U.S. Supreme Court's June 10 decision in Oxford Health Plans v. Sutter,2 upholding an arbitrator's decision to allow class arbitration, but only because the parties there agreed that the arbitrator should decide whether their contract authorized class arbitration. The defendant's decision to challenge "arbitrability" of the issue in court came too late. Thus, even though the underlying agreement was "silent" on whether the parties had intended to permit class arbitration, the arbitrator's construction "holds, however good, bad or ugly."
Since contracts that are "silent" regarding class arbitration have a measure of frailty in this regard—indeed, the court in Oxford said in footnote 2: "this Court has not yet decided whether the availability of class arbitration is a question of arbitrability"—my column advised those firms electing to arbitrate disputes to incorporate "class action waivers" in their contractual arbitration clauses. Such waivers were upheld by the U.S. Supreme Court in the Concepcion decision in 2011,3 a ruling this column has analyzed extensively.4
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