Courts vs. Arbitrators: Who Decides The Availability Of Class Procedures In Arbitration?

Recently in Opalinski v. Robert Half International Inc.,² the Third Circuit joined the Sixth Circuit in holding that the question of whether parties to an arbitration agreement consented to class arbitration is an issue for courts, rather than arbitrators, to decide, unless the parties clearly agree otherwise. The court reasoned that proceeding on a class basis so fundamentally changes the nature of arbitration that whether the parties agreed to do so is a substantive gateway issue—i.e., an issue of "arbitrability"— for courts to decide, rather than a procedural issue for arbitrators.³

The Third Circuit decision in Opalinski and the Sixth Circuit decision in Reed Elsevier, Inc. v. Crockett⁴ represent significant victories for parties hoping to avoid class arbitration when an arbitration clause is silent on the availability of class procedures. This article discusses why it is important for courts, rather than arbitrators, to decide the availability of class