On July 30, 2014, the United States Court of Appeals for the Third Circuit decided that whether an arbitration agreement authorizes arbitration of a class action is a “gateway” issue for the court to decide rather than a procedural question for the arbitrator. In Opalinski v. Robert Half International, Inc., No. 12-4444 (3d Cir. July 30, 2014), the court of appeals became the second federal appeals court to decide that the issue of bilateral vs. classwide arbitration is so important that it should be treated as a substantive issue of arbitrability, rather than a procedural matter: “Because of the fundamental differences between classwide and individual arbitration, and the consequences of proceeding with one rather than the other, we hold that the availability of classwide arbitration is a substantive ‘question of arbitrability’ to be decided by a court absent clear agreement otherwise.” The Sixth Circuit earlier reached the same conclusion in Reed Elsevier, Inc. v. Crockett, 734 F.3d 594 (6th Cir. 2013), using similar reasoning.

Opalinski arose from a lawsuit filed by former employees of Robert Half International, Inc. (RHI) alleging that they had not been paid for overtime as required by the wage and hour laws. RHI moved to compel arbitration on an individual basis; in October 2011, the district court compelled arbitration but ruled that the question of whether the case should proceed on a classwide basis was for the arbitrator. RHI returned to the district court in December 2012, after the arbitrator issued a partial award ruling that the arbitration agreements permitted classwide arbitration, and moved to vacate that award.

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