Tenth Circuit Further Fuels The Circuit Split Over Who Decides Whether Agreement Permits Class Arbitration

What Happened

In agreement with the Second and Eleventh Circuits, the Tenth Circuit held in Dish Network L.L.C. v. Ray, No. 17-1013, 2018 WL 3978537, at *6 (10th Cir. Aug. 21, 2018) that the arbitration agreement's incorporation of AAA rules was "clear and unmistakable" evidence that the parties intended that an arbitrator decide whether the agreement allows for arbitration of class claims.

The Takeaway

Circuit courts are split over whether the adoption of the AAA rules is clear and unmistakable evidence that the parties intended to have an arbitrator decide whether an agreement allows class arbitration. Parties entering into arbitration agreements need to examine whether the applicable circuit court has ruled on this issue and then carefully select the rules they choose.