Here we have yet another opportunity for the United States Supreme Court to clarify whether class arbitrations are appropriate without express consent to participate in a class arbitration. The issue is described as follows:
Whether an arbitrator acts within his powers under the Federal Arbitration Act (as the Second and Third Circuits have held) or exceeds those powers (as the Fifth Circuit has held) by determining that parties affirmatively “agreed to authorize class arbitration,” Stolt-Nielsen S.A. v. Animalfeeds Int'l Corp., based solely on their use of broad contractual language precluding litigation and requiring arbitration of any dispute arising under their contract.
This case concerns reimbursements to doctors. And yet, the question that will likely remain unanswered is whether, in the employment context, the National Labor Relations Act preserves a right to concerted activity, including class litigation, even if in the arbitration context. The case is entitled Oxford Health Plan LLC v. Sutter, and the docket is here.