In Dish Network L.L.C. v. Ray, No. 17-1013 (10th Cir. Aug. 21, 2018) (click here for a copy of the decision), the Tenth Circuit addressed whether a court or arbitrator is the correct decision-maker to determine whether an arbitration clause permits classwide arbitration. Without deciding the issue, two members of the Tenth Circuit panel recognized that other circuits tend to view courts – not arbitrators – as the correct decision-maker for this issue regarding classwide arbitration. However, in a thoughtful concurring opinion, Chief Judge Timothy Tymkovich defends the contrary view that arbitrators – not the courts – should determine whether an arbitration clause permits classwide arbitration. Citing the Supreme Court’s Shady Grove case about the procedural nature of Rule 23 and how the Supreme Court treated claim combination as a matter of procedure in its recent Epic Systems case, Chief Judge Tymkovich reasoned that the ability to proceed as a class is a classic procedural question, and procedural issues are generally for arbitrators to decide. He also argues that the magnitude or significant impact of this decision whether a case proceeds individually or as a class action “cannot transform [an issue] from a procedural concern to a matter of substantive law.”
In this particular case, the Tenth Circuit ultimately let stand the arbitrator’s decision to permit class arbitration of an employment dispute. This Tenth Circuit opinion will be important for anyone litigating whether classwide arbitration is a gateway issue for courts.