Fifth Circuit Suggests Question of Class Arbitrability Was for Arbitrator Not Court

The Fifth Circuit has suggested that the question of class arbitrability was for the arbitrator, not the court, based on the language of the arbitration clause at issue. The court ultimately concluded, however, that it did not need to reach that issue because the appellant challenging the arbitrator's conclusion that class arbitration was available forfeited the argument.

Roy Conrad initiated arbitration against his employer Sun Coast Resources Inc. regarding purported violations of the Fair Labor Standards Act. The arbitrator concluded that the parties' agreement "clearly provide[d] for collective actions." Sun Coast moved to vacate that determination, but the district court rejected Sun Coast's arguments. The Fifth Circuit affirmed.

The court explained that although there was a presumption that class arbitrability is a question for the court, "the arbitration agreement ... appear[ed] to assign the question of class arbitrability to the arbitrator rather than to the court." The arbitration clause covered "any dispute concerning the arbitrability of any such controversy or claim" and incorporated the American Arbitration Association rules for arbitration. Those provisions "strongly indicate[d] that the parties bargained for the arbitrator to decide class arbitrability."

The Fifth Circuit nevertheless found it unnecessary to decide that issue. Sun Coast had forfeited its argument that the arbitrator invaded the province of the court by failing to raise that argument before the arbitrator and then failing to properly raise it before the district court.

In fact, Sun Coast had "affirmatively agreed that the arbitrator should decide whether collective proceedings were appropriate."

The court also refused to vacate the arbitrator's award on the merits. It concluded that the arbitrator interpreted the agreement and focused on the arbitration clause's text, which was sufficient regardless of whether the arbitrator's decision was in fact correct.

Sun Coast Resources, Inc. v. Conrad, No. 19-20058 (5th Cir. Apr. 16, 2020).