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The Third Circuit Extends the Ruling of Opalinski v. Robert Half Int’l Inc., 761 F.3d 326 (3d Cir. 2014), cert. denied, 135 S. Ct. 1530 (2015), to a putative class action, holding that the “question of arbitrability” is to be decided by the courts — and not arbitrators — where the arbitration agreement does not “clearly and unmistakably” resolve the issue

   On January 6, 2016, the U.S. Court of Appeals for the Third Circuit issued a precedential opinion concerning the arbitrability of a class action in Chesapeake Appalachia, LLC, v. Scout Petroleum, LLC (No. 15-1275), ___ F.3d ___ (3d Cir. 2016) and extended the rule previously issued in Opalinski v. Robert Half International Inc., 761 F.3d 326 (3d Cir. 2014), cert. denied, 135 S. Ct. 1530 (2015), the “question of arbitrability” of a dispute is to be decided by the courts — not arbitrators — where the arbitration does not “clearly and unmistakably” (i.e., expressly) resolve the issue
 
   Although the Chesapeake decision does not mention a 2003 U.S. Supreme Court case, the analysis actually goes back to that case when “class arbitrability” issue arose, albeit less directly, which resulted in the AKimm Notes 2016-1-20 Class Action ArbitrabilityAA’s adoption of “class action arbitration” or “class arbitration” rules in its ADR regime.
 
   The U.S. Supreme Court’s 2003, Plurality Decision: Green Tree Financial Corp.
 
  On June 23, 2003, a plurality of the Supreme Court decided Green Tree Financial Corp. v. Bazzle, 539 U.S. 444 (2003), an appeal over a state-law dispute emanating from South Carolina, concerning the arbitrability of a franchise dispute.  In Green Tree, the Supreme Court held that where an arbitration agreement does not facially state whether a dispute. READ MORE

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