Is "Class Arbitration" An Oxymoron — A Shoe Drops In The Second Circuit

In a recent series of articles, we asked whether "class arbitration" — meaning the utilization of a Fed. R. Civ. P. 23 class action protocol in an arbitration proceeding — is ultimately viable. Given the nature of arbitration, we suggested that it arguably is not. We noted that the United States Supreme Court and various Courts of Appeal had examined several related procedural questions, but that they had not gotten to the core issues that would ultimately determine the viability of a class arbitration award.

The Second Circuit has now begun to nibble at such questions, beginning with its decision on July 24, 2017 in Jock, et al. v. Sterling Jewelers Inc., No. 15-3947, which upset a lower court's confirmation of an arbitrator's "class certification award," whereby a class of tens of thousands of sex discrimination claimants had been recognized in an arbitration. The question on appeal to the Second Circuit was "whether the arbitrator had the authority to certify a