Jock v. Sterling Jewelers Inc., 942 F.3d 617

Background

Plaintiffs are current and former Sterling retail employees who signed a mandatory RESOLVE arbitration agreement and sued for sex-based pay discrimination under Title VII and the Equal Pay Act.
The RESOLVE Agreement incorporated the AAA rules and expressly delegated "questions of arbitrability" and procedural questions to the arbitrator.
An AAA arbitrator construed the RESOLVE Agreement to permit class arbitration and certified an opt-out Title VII injunctive/declaratory class of ~44,000, including many employees who had not opted into the proceeding (absent class members).
The District Court vacated the class certification as to absent class members, concluding the arbitrator exceeded her authority by binding nonconsenting employees.
The Second Circuit (after prior interlocutory history in Jock I–III) reversed: because absent class members signed the RESOLVE Agreement that delegated arbitrability to the arbitrator (via incorporation of AAA rules and an explicit clause), the arbitrator had authority to determine class arbitrability and bind them; the question whether an opt-out (vs. mandatory) class was permitted was remanded for the District Court.

Issues

Issue	Plaintiff's Argument (Jock)	Defendant's Argument (Sterling)	Held
Whether an arbitrator may bind absent class members who did not affirmatively opt in by determining the agreement permits class arbitration	Absent members authorized the arbitrator by signing RESOLVE, which delegates arbitrability via AAA rules and an express clause	Absent members never submitted the arbitrability question to the arbitrator and thus cannot be bound by an allegedly erroneous arbitral ruling	Held for Plaintiffs: signing RESOLVE (incorporating AAA rules and delegating arbitrability) constitutes bargaining for the arbitrator’s construction; arbitrator had authority to bind absent members
Whether incorporation of the AAA rules and the RESOLVE "questions of arbitrability" clause is "clear and unmistakable" evidence to delegate class‑arbitrability to the arbitrator	These contract terms clearly and unmistakably delegate class‑arbitrability (Supplementary Rules make arbitrator the threshold decider)	Sterling argued absent members did not consent to that specific arbitrator deciding class arbitrability	Held for Plaintiffs: incorporation of AAA rules + explicit arbitrability clause qualifies as delegation binding signatories
Whether Lamps Plus undermines Jock I and the arbitration delegation analysis	Jock I remains valid because here the parties delegated arbitrability to an arbitrator; Lamps Plus involved a court deciding class arbitrability	Lamps Plus requires clearer evidence for class arbitration when courts (not arbitrators) decide the question	Held: Lamps Plus does not change result; distinction is that Lamps Plus concerned court decision, while here the contract delegates to an arbitrator

Key Cases Cited

Oxford Health Plans LLC v. Sutter, 569 U.S. 564 (2013) (arbitral delegation doctrine: parties may submit arbitrability to arbitrator and courts must enforce that delegation)
Stolt‑Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662 (2010) (class arbitration cannot be imposed absent contractual basis)
Jock v. Sterling Jewelers Inc., 646 F.3d 113 (2d Cir. 2011) (prior panel held review focuses on whether arbitrator was permitted to decide class arbitrability, not correctness)
Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407 (2019) (ambiguous arbitration agreements cannot supply the contractual basis for class arbitration when courts resolve arbitrability)
Porzig v. Dresdner, Kleinwort, Benson, N. Am. LLC, 497 F.3d 133 (2d Cir. 2007) (arbitrator lacks power to decide disputes not covered by parties’ arbitration agreement)
Wal‑Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) (class‑action commonality and Rule 23 principles relevant to class certification)
Wells Fargo Advisors, LLC v. Sappington, 884 F.3d 392 (2d Cir. 2018) (incorporation of rules empowering an arbitrator is evidence of clear and unmistakable delegation)