Third Circuit Holds That A Court, Not An Arbitrator, Must Decide Whether An Arbitration Agreement Authorizes Class-Wide Arbitration

Who decides whether an arbitration agreement allows for class-wide arbitration — a court or an arbitrator? In the wake of mixed signals from the U.S. Supreme Court, lower courts have been reluctant to answer this question. However, on July 30, 2014, in Opalinski v. Robert Half International, Inc., the U.S. Court of Appeals for the Third Circuit became the second federal court of appeals to definitively hold that the availability of class-wide arbitration is a threshold question for the court, not a subsidiary question for the arbitrator.

The plaintiffs in Opalinski signed employment agreements with Robert Half International (RHI) that contained arbitration provisions requiring that "[a]ny dispute or claim arising out of or relating to Employee's employment, termination of employment or any provision of this Agreement" be submitted to arbitration. Neither agreement mentioned class-wide arbitration. The plaintiffs brought a putative class action against RHI in federal