The Fifth Circuit Agrees With Its Sister Circuits That Class Arbitrability Is A Gateway Issue For Courts, Not Arbitrators

In a predictable decision, the Fifth Circuit has held that the availability of class arbitration is a gateway issue for the courts to decide, absent "clear and unmistakable" language in the arbitration agreement to the contrary. The appellate court didn't find such language in 20/20 Commc'ns v. Crawford, Case No. 18-10260 (5th Cir. July 22, 2019).

Instead, the Court followed the lead of several of its sister circuits – the Fourth, Sixth, Seventh, Eighth, Ninth and Eleventh Circuits. We previously blogged a number of those decisions dealing with "gateway issues" and arbitration (See our October 25, 2018 blog that also referenced our prior articles on the subject).

One might question why this issue deserves a blog, but it is indeed one of note because of the view of the arbitrator, one that unfortunately is not alone. In this case, the arbitration agreement used straightforward language allowing the arbitrator to "hear only individual claims" and generally