Last Friday, I reported on Sandquist v. Lebo Automotive, Inc., ___ Cal.App.4th ___ (Jun. 25, 2014; pub. ord. Jul. 22, 2014), in which the Court of Appeal (Second Appellate District, Division Seven) carefully evaluated the available U.S. Supreme Court decisional law, including Green Tree Financial Corp. v. Bazzle, 539 U.S. 444 (2003), and held that the arbitrator, not the court, should decide whether the parties agreed to class arbitration.
Last week, the Third Circuit reached the opposite conclusion in Opalinsky v. Robert Half Int'l Inc., ___ F.3d ___ (3d Cir. Jul. 30, 2014). An excerpt:
Since Bazzle, the Supreme Court has not directly decided whether the availability of class arbitration is a question of arbitrability. The Court’s line of post-Bazzle opinions, however, indicates that, because of the fundamental differences between classwide and bilateral arbitration, and the consequences of proceeding with one rather than the other, the availability of classwide arbitrability is a substantive gateway question rather than a procedural one. We thus join the Sixth Circuit Court of Appeals in holding that the availability of class arbitration is a “question of arbitrability.”
Slip op. at 15.