Reed Elsevier v. Crockett: Sixth Circuit Rules That Courts, Not Arbitrators, Decide Whether An Arbitration Agreement Allows Classwide Arbitration

The United States Court of Appeals for the Sixth Circuit recently held that courts, not arbitrators, decide whether an arbitration agreement permits classwide arbitration, unless the parties clearly and unmistakably agreed otherwise. Reed Elsevier v. Crockett, No. 12-3574, ___ F.3d ___ (6th Cir. Nov. 5, 2013). As the Sixth Circuit noted, the issue of classwide arbitrability can have "momentous consequences" and make the difference between arbitrating "one claim or 1,000 in a single proceeding." And the threshold question—whether arbitrators or courts are presumed to decide classwide arbitrability—is consequential because arbitrators are given wide latitude in their rulings, which are subject only to limited, deferential review under the Federal Arbitration Act, while courts are bound by rules of contract interpretation and their decisions are subject to full appellate review. The United States Supreme Court recently highlighted that it has never decided that