When an arbitration provision in a contract contains a waiver of class arbitration, the U.S. Supreme Court has determined that a plaintiff can only pursue individual—not class—claims in arbitration. When an arbitration provision, however, remains silent on class arbitration, the Supreme Court has not yet decided whether the availability of class arbitration is a question of arbitrability to be decided by a court or a procedural question to be determined by an arbitrator. The Supreme Court’s view has been evolving, as its opinions in Stolt-Nielsen v. AnimalFeeds International, 559 U.S. 662, 686–87 (2010), and Oxford Health Plans v. Sutter, 133 S. Ct. 2064 (2013), have cast doubt on the court’s prior plurality opinion in Green Tree Financial v. Bazzle, 539 U.S. 444 (2003). Federal courts that have addressed the “who decides” question have arrived at different conclusions. One court, in Reed Elsevier v. Crockett, 734 F.3d 594, 599 (6th Cir. 2013), described the existing case law on class arbitrability as “a puzzle of cases that is not yet complete.”
In July 2014, the U.S. Court of Appeals for the Third Circuit’s watershed, precedential opinion in Opalinski v. Robert Half International, 761 F.3d 326 (3d Cir. 2014), provided a seemingly definitive answer: Within this circuit, a court should decide whether class arbitration is available. Less than three months later, a decision from the U.S. District Court for the Middle District of Pennsylvania distinguishing Opalinski has added another piece to the puzzle of trying to decide who decides. Now, navigating the current landscape of class arbitrability law in the Third Circuit requires an understanding of both Opalinski and Judge Malachy Mannion’s opinion in Chesapeake Appalachia v. Burkett, No. 3:13-3073, 2014 U.S. Dist. LEXIS 148442 (M.D. Pa. Oct. 17, 2014).
What’s At Stake?
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