American Arbitration Association Panel Distinguishes Third Circuit’s Holding In Opalinski

The intersection of class actions and arbitration continues to raise issues for parties to consider in evaluating whether arbitration clauses do or do not permit class actions in arbitration. One such issue involves who gets to decide whether there can be class arbitration, a court or the arbitrator? The answer to that question, and to the related question of whether a class arbitration can proceed, depends on the language in the arbitration clause.

On July 30, 2014, the United States Court of Appeals for the Third Circuit held that whether an arbitration agreement allows for class arbitration is a "question of arbitrability" that is to be decided by the court, rather than by the arbitrator(s), unless the arbitration agreement contains language "unambiguously delegating" resolution of this issue to the arbitrator(s). Opalinski v. Robert Half International Inc., No. 12-4444 (3d Cir. July 30, 2014). A panel of three arbitrators from the American Arbitration Association