11th Circuit Thinks Class Arbitrability Is Not That Special
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Usually the plaintiffs in a class action want to stay out of arbitration, but in the recent case of JPAY v. Kobel, 2018 WL 4472207 (11th Cir. Sept. 19, 2018), it was the class representatives who were fighting for arbitration. In particular, they wanted the arbitrator to decide whether they could have a class action. And they won.
In a case that reads as if it is charting significant new ground, even though the court reached almost the same conclusion just a few weeks ago, the Eleventh Circuit clarified a few holdings. First, the availability of class arbitration is a “gateway issue” that is presumptively for courts to decide. [To be fair, in the earlier decision, it had assumed that result without actually reaching that holding.] Second, the availability of class arbitration can be delegated to arbitrators just as easily as other gateway questions. In other words, the 11th Circuit reaffirmed its opposition to the rule adopted by three other circuits: that the question of class arbitrability takes special delegation language, and incorporating JAMS or AAA rules is not enough.
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