The U.S. Supreme Court keeps writing about class arbitration, but uncertainty continues to reign. Many thought Stolt-Nielsen S.A. v. AnimalFeeds International Corp.1 gave clear guidance about how to interpret arbitration agreements that said nothing about class arbitrations: if the arbitration agreement is silent on whether the parties agreed to arbitrate on a class basis, then class arbitrations are not authorized.2 But this begs the question of how to define silence. A few district courts have gone with the conventional reading of Stolt-Nielsen, holding that silence means the failure to address the subject of class arbitration at all in the written arbitration agreement. Under these circumstances, class arbitration is not authorized.3 A number of other district courts, however, have interpreted silence differently, holding that class arbitrations can be authorized after Stolt-Nielsen even when the written agreement never mentions the topic.4 As one court put it, "the failure to mention class arbitration in the arbitration clause itself does not necessarily equate with the 'silence' discussed in Stolt-Nielsen."5 The more limited reading of Stolt-Nielsen recently was adopted by the U.S. Court of Appeals for the Second Circuit in Jock v. Sterling Jewelers Inc.6 According to the Second Circuit, parties are not necessarily silent about class arbitration even if their written arbitration agreement never mentions the topic. Actual silence is more nuanced. The court interpreted Stolt-Nielsen as holding only that the parties' failure to preclude class arbitrations while agreeing to arbitrate "all claims" is not an agreement to arbitrate claims on a class-wide basis. However, the mere failure to mention class arbitration in the written arbitration agreement does not necessarily mean that there is no agreement to arbitrate.7 Therefore, significant questions remain post-Stolt-Nielsen around silence, including who decides whether a contract is silent and the meaning of silence. I start by parsing the question of who decides whether the parties agreed to arbitrate class claims; in other words, who decides whether a contract is silent. Conventional wisdom holds that Green Tree Fininancial Corp. v. Bazzle8 requires courts to defer to arbitrators on this question, but the Supreme Court in Stolt-Nielson made it clear that the issue remains unresolved. I then turn to the meaning courts have given to a contract's silence.
Who Decides Whether Class Arbitrations Are Authorized?
Did the Parties Agree to Class Arbitration?
Jock v. Sterling Jewelers
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