Opalinski V. Robert Half International, Inc. — A Footnote In A Prior Opinion Doesn’t Signal The Supreme Court’s Willingness To Resolve Who Decides The Availability Of Class Arbitration

After reading the Supreme Court's opinion in Oxford Health Plans, LLC v. Sutter, 133 S. Ct. 2064 (2013), some might have concluded that the Court was ready to resolve who determines the availability of class arbitration court or arbitrator — in the right case. See 133 S. Ct. at 2068 n.2. But on March 9, 2015, the Justices denied certiorari in Opalinski v. Robert Half International, Inc., Case No. 14-625, a case raising just that question. Have intervening opinions and revised arbitration agreements made the issue inconsequential or moot? Practically speaking, most contemporary arbitration agreements likely remove ambiguity about class arbitration by explicitly excluding it from available remedies.

As usual, the Court did not provide reasoning for the denial. Consequently, the certiorari briefs and prior opinions are the only sources of insight into the decision.

The Background.

In November 2014, two employees sought Supreme Court review of the Third Circuit's decision in Opalinski, which involved claims under the Fair Labor Standards Act (FLSA) that the company failed to pay them overtime and improperly classified them as exempt from overtime under the FLSA. Both plaintiffs had signed arbitration agreements that did not mention class arbitration. The Third Circuit panel held that "the availability of classwide arbitration is a substantive 'question of arbitrability' to be decided by a court absent clear agreement otherwise." 761 F.3d 326, 332 (3d Cir. 2014). The panel joined the Sixth Circuit, which had also concluded that "whether an arbitration agreement permits classwide arbitration is a gateway matter . . . reserved 'for judicial determination unless the parties clearly and unmistakably provide otherwise.'" Reed Elsevier Inc. v. Crockett, 734 F. 3d 594, 599 (6th Circuit 2013). Our November 11, 2013, blog article describes the holding in the Reed Elsevier Inc. opinion.

After the Third Circuit denied rehearing, the employees filed a petition for writ of certiorari on November 25, 2014. The petition was premised in large part on Oxford Health Plans, which we analyzed here in a blog article on June 11, 2013.

In Oxford Health Plans, a unanimous Supreme Court held that when a party agrees an arbitrator should decide if an agreement authorizes classwide arbitration, that party cannot later seek judicial intervention if it disagrees with the resulting award.

The employees in Opalinski, however, hung their bid for certiorari on a footnote in...