LexisNexis v. Crockett -- Sixth Circuit Performs A Gateway Analysis In Class Arbitration Controversy

A Sixth Circuit panel has ruled that courts rather than arbitrators should determine whether class arbitration is authorized when the arbitration agreement "says nothing about classwide arbitration." Citing First Options of Chicago v. Kaplan, 514 U.S. 938, 945 (1995), the Court was clear that an arbitrator can only decide "class arbitrability" "if the parties have authorized the arbitrator to answer that question." Judge Raymond Kethledge, author of the opinion in Reid Elsevier, Inc. v. Crockett, (Case No. 12-3574), admitted there was less certainty as to the showing required to authorize an arbitrator to decide class arbitrability. Ultimately, the appellate court determined not only that courts should decide the "gateway issue" but also that the agreement did not provide for classwide arbitration.