Deciding Class Arbitrability

There is an ongoing split among the United States circuit courts regarding whether arbitrators or courts should determine the availability of class arbitration. Historically, four circuits—the Third, Fourth, Sixth, and Eighth—have held that class arbitrability is a gateway issue requiring judicial determination, even when arbitration agreements incorporate rules delegating arbitrability questions to arbitrators. However, the Second, Tenth, and Eleventh Circuits have taken a different approach, ruling that incorporating arbitration rules, such as the AAA Supplementary Rules for Class Arbitration, constitutes clear and unmistakable evidence that the parties intended for arbitrators to decide the issue.

The Supreme Court has yet to resolve this split definitively, leaving open the question of whether arbitrators should continue to determine class arbitrability. The viability of this approach remains uncertain as courts continue to grapple with whether class arbitration is a fundamental gateway issue necessitating judicial review or a procedural matter that arbitrators may decide based on contractual delegation.

Following Fifth Circuit precedent, a recent Fifth Circuit panel “reluctantly” concluded that the mere incorporation of the AAA Commercial Arbitration Rules constitutes sufficient clear and unmistakable evidence that the parties intended to delegate class-wide arbitrability to the arbitrator. The panel noted that while some circuits have held that selecting AAA rules provides “clear and unmistakable evidence” of the parties’ intent for an arbitrator to decide whether their agreement allows class arbitration, other circuits have determined that incorporating AAA rules by reference is “insufficient evidence” of such intent. Sullivan v. Feldman, No. 23-20140 (March 11, 2025).