Class Arbitrability is a Decision for the Court, Not the Arbitrator

Continuing the recent theme of workplace arbitration cases, the U.S. Court of Appeals for the Fifth Circuit has held that the decision regarding the availability of class arbitration is a “gateway” issue to be decided by the court, not an arbitrator. According to the Fifth Circuit, only “clear and unmistakable” language to the contrary contained in an arbitration agreement can override a court’s ability to determine this threshold issue. The Fifth Circuit now joins the Fourth, Sixth, Seventh, Eighth, Ninth, and Eleventh circuit courts in this holding.