BIENENSTOCK & ASSOCIATES, INC v LOWRY
Docket No. 323986
Michigan Court of Appeals
March 3, 2016
314 MICH APP 508
Defendants filed an action in the Macomb Circuit Court for class arbitration of multiple claims to obtain overdue compensation from plaintiffs. Plaintiffs moved for summary disposition, which was granted with regard to 22 individuals who had each signed an Independent Contractor Agreement (ICA) containing an arbitration provision. Plaintiffs’ motion for summary disposition was denied with regard to four individuals for whom no ICA could be found. Defendants filed a demand for class arbitration in the Oakland Circuit Court, and plaintiffs filed an action for declaratory and injunctive relief in response. Plaintiffs followed with a motion for summary disposition on the grounds that another action existed between the parties on the same claim and that there was no genuine issue of material fact. After a hearing on the motion, the court, Wendy Lynn Potts, J., denied plaintiffs’ motion for summary disposition. The court ruled from the bench that when a contract between the parties is silent about class arbitration, whether class arbitration is permitted is a gateway question for the court to decide. In contrast, in the absence of contractual language addressing the issue, the court determined that whether arbitration cases can be consolidated is a subsidiary, or procedural, question for the arbitrator to decide. Plaintiffs’ motion for reconsideration was denied in a written opinion that confirmed the court‘s ruling from the bench. Plaintiffs appealed.
The Court of Appeals held:
1. The trial court properly concluded that whether arbitration cases may be consolidated is a subsidiary question for the arbitrator to decide when the parties’ contract is silent about consolidation. Subsidiary, or procedural, questions that affect the final disposition of a case are matters to be decided by the arbitrator. In this case, the contracts signed by defendants were silent with regard to whether arbitration cases could be consolidated. When a contract is silent on a question concerning arbitration, the question must be decided by applying two presumptions to the matter: (1) gateway questions are presumptively disposed of by the court, and (2) procedural questions are presumptively disposed of by the arbitrator. Gateway questions, or questions about whether an issue is arbitrable, include whether an arbitration clause binds the parties and whether an arbitration clause in a binding contract applies to a particular type of controversy. Procedural or subsidiary questions involve the application of procedural preconditions to the arbitration process. These include questions regarding whether any prerequisites to arbitration have been satisfied and questions regarding allegations of waiver, delay, or a similar defense to arbitrability. In this case, the arbitration clause did not address the issue of consolidation; the arbitration clause merely granted broad power to the arbitrator to resolve all disputes between the parties. The gateway question was answered because the parties were clearly subject to an arbitration agreement and because there was no indication that the claim for overdue compensation fell outside the scope of arbitration. However, the question whether the instant arbitration claims could be consolidated was unanswered by the information disposing of the gateway question. Rather, consolidation was a procedural issue—an issue to be decided by the arbitrator.
2. The trial court properly concluded that whether class arbitration is permissible is a gateway question for the court to decide when the parties’ contract is silent regarding class arbitration.
Affirmed.
1. ARBITRATION — AVAILABILITY OF CLASS ARBITRATION — CONTRACT IS SILENT — DECIDED BY COURT.
When a contract is silent with regard to class arbitration, the question whether class arbitration is permitted is a gateway question to be decided by the court.
2. ARBITRATION — AVAILABILITY OF CLAIM CONSOLIDATION — CONTRACT IS SILENT — DECIDED BY ARBITRATOR.
When a contract is silent with regard to the consolidation of arbitration claims, the question whether consolidation is permitted
Kienbaum Opperwall Hardy & Pelton, PLC (by Thomas G. Kienbaum, Elizabeth Hardy, and William B. Forrest III), for plaintiffs.
The Miller Law Firm, PC (by Kevin F. O‘Shea, David B. Viar, and Devon P. Allard), for defendants.
Before: STEPHENS, P.J., and CAVANAGH and MURRAY, JJ.
MURRAY, J. In this action for declaratory and injunctive relief, plaintiffs Lauren Bienenstock & Associates, Inc. (LBA), Lauren Bienenstock, and Samuel Bienenstock appeal as of right the order of the Oakland Circuit Court granting in part and denying in part their motion for summary disposition. The question presented is whether a trial court or an arbitrator has the authority under the Federal Arbitration Act (FAA),
I. FACTS AND PROCEDURAL HISTORY
The factual backdrop to this proceeding arose from a dispute about compensation. All of the defendants worked as independent contractors for LBA at some point in the past. All but two of the defendants in the trial court, Monica Storm and Pamela Worthington, also known as Pamela Jackson, signed independent contractor agreements (ICAs) with LBA for performing their work as licensed court reporters. Each of the ICAs signed by the 22 defendants contained the following clause:
Any dispute relating to this Agreement, or breach thereof, shall be settled by arbitration pursuant to the rules and regulations of the American Arbitration Association (“AAA“). Either party requesting arbitration under this Agreement
shall make a demand on the other party by registered or certified mail, with a copy to the AAA‘s Southfield, Michigan office, which shall be the location of any arbitration hearing. The arbitration shall then take place as noticed by the AAA, and the outcome thereof shall be binding regardless of whether one of the parties fails or refuses to participate.
Initially, defendants filed a lawsuit against plaintiffs in the Macomb Circuit Court seeking what they believed was overdue compensation. However, as a result of the arbitration clause quoted above, plaintiffs moved for, and were granted, summary disposition with regard to 22 defendants in the case—all of whom had signed an ICA with an arbitration agreement—and were denied summary disposition with regard to the four other court reporters for whom no ICA could be found.1 The 22 defendants appealed that decision to this Court, arguing that because the ICAs were not valid or enforceable, they were not required to resolve their disputes by arbitration. We concluded otherwise. Lowry v Lauren Bienenstock & Assoc, Inc, unpublished opinion per curiam of the Court of Appeals, issued December 23, 2014 (Docket No. 317516).
In any event, while those two cases were pending, defendants (including the 22 individuals with a pending appeal) filed a demand for arbitration against plaintiffs with the American Arbitration Association (AAA). Because their ICAs provided that arbitration would be handled under AAA rules and regulations, and AAA rules permitted class arbitration under certain circumstances, defendants filed their arbitration as a class arbitration. Defendants defined the class as “[a]ll court reporters who currently provide, or formerly provided, court reporting services as independent contractors for [LBA] pursuant to a written [ICA] that included an arbitration provision.” Defendants asserted that the class numbered in the hundreds, they all shared a common transaction arising out of the same facts and applicable law, joinder of all claimants would be impracticable, and class arbitration was the most convenient and cost-effective way of disposing of the dispute.
Plaintiffs responded by filing the instant suit in the Oakland Circuit Court, requesting declaratory and injunctive relief regarding defendants’ arbitration before the AAA. Specifically, plaintiffs requested that the trial court declare that defendants were not permitted to bring a class arbitration, and that it enjoin their current class arbitration from going forward. Plaintiffs asserted that federal caselaw under the FAA held that it was a court‘s duty to decide the “gateway issue” of whether class arbitration is permitted. That question was not, as asserted by defendants, for the arbitrator to decide. Relatedly, plaintiffs also asked for a declaration that defendants were only permitted to proceed with individual arbitration regarding their own individual claims, and that there should not be any consolidation. Soon after filing suit, plaintiffs moved for summary disposition of all their claims pursuant to MCR 2.116(C)(6) and (C)(10), asking the trial court to (1) find that it had the authority to determine whether class arbitration or consolidation was permitted, and (2) decide those issues in plaintiffs’ favor.
At the motion hearing, the trial court ruled from the bench. First, the trial court held that, pursuant to persuasive caselaw, in the face of contractual silence whether class arbitration is permitted is a gateway issue for the trial court to decide. The trial court also held that whether consolidation was permitted was a subsidiary question for the arbitrator to decide and denied plaintiffs’ motion for summary disposition on that question.
The trial court subsequently denied plaintiffs’ motion for reconsideration. In doing so, the trial court ruled that because the question of consolidation of claims that are undoubtedly arbitrable falls into the subsidiary question category, without specific instruction from the contract, it is an issue for the arbitrator to decide. Although the trial court noted the potential for disparate treatment between class arbitration and consolidation decisions and who can decide them, the court reasoned that a decision from the United States Court of Appeals for the Sixth Circuit, Reed Elsevier, Inc v Crockett, 734 F3d 594, 597 (CA 6, 2013), supported the principle that courts should decide the gateway issue of class arbitration. The court noted that no decision supported the theory that consolidation was also a gateway issue, and so it concluded that it was a subsidiary issue.
This appeal followed.
II. ANALYSIS
“This Court reviews decisions on motions for summary disposition de novo to determine if the moving party was entitled to judgment as a matter of law.” Alcona Co v Wolverine Environmental Prod, Inc, 233 Mich App 238, 245; 590 NW2d 586 (1998). A motion for summary disposition pursuant to MCR 2.116(C)(10) “tests the factual sufficiency of the complaint....” Joseph v Auto Club Ins Ass‘n, 491 Mich 200, 206; 815 NW2d 412 (2012). “In evaluating a motion for summary disposition brought under [MCR 2.116(C)(10)], a trial court considers affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion.” Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). Summary disposition is proper where there is no “genuine issue regarding any material fact.” Id.
A. GENERAL PRINCIPLES
As noted at the outset of this opinion, the only issue to be decided is whether a trial court judge or an arbitrator is the appropriate one to decide whether multiple arbitrations should be consolidated when the contract does not speak to the issue. The issue is governed by federal law, as there is no dispute that the FAA applies to these contracts. See Amtower v William C Roney & Co (On Remand), 232 Mich App 226, 232; 590 NW2d 580 (1998) (this Court must apply the FAA because “[s]tate courts are bound, under the Supremacy Clause,
“[A]rbitration is simply a matter of contract between the parties; it is a way to resolve those disputes—but only those disputes—that the parties have agreed to submit to arbitration.” First Options of Chicago, Inc v Kaplan, 514 US 938, 943; 115 S Ct 1920; 131 L Ed 2d 985 (1995). In other words, ” ‘arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.’ ” Howsam v Dean Witter Reynolds, Inc, 537 US 79, 83; 123 S Ct 588; 154 L Ed 2d 491 (2002), quoting United Steelworkers of America v Warrior & Gulf Navigation Co, 363 US 574, 582; 80 S Ct 1347; 4 L Ed 2d 1409 (1960). “In this endeavor, as with any other contract, the parties’ intentions control.” Stolt-Nielsen S A v AnimalFeeds Int‘l Corp, 559 US 662, 682; 130 S Ct 1758; 176 L Ed 2d 605 (2010) (quotation marks and citations omitted).
“Where ordinary contracts are at issue, it is up to the parties to determine whether a particular matter is primarily for arbitrators or for courts to decide.” BG Group PLC v Republic of Argentina, 572 US 25, 34; 134 S Ct 1198, 1206; 188 L Ed 2d 220 (2014). However, “[i]f the contract is silent on the matter of who primar-ily is to decide ‘threshold’ questions about arbitration, courts determine the parties’ intent with the help of presumptions.” Id. at 34; 134 S Ct at 1206. One such presumption is that “[u]nless the parties clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitrator.” AT&T Technologies, Inc v Communication Workers of America, 475 US 643, 649; 106 S Ct 1415; 89 L Ed 2d 648 (1986). In Howsam, 537 US at 83, the Supreme Court referred to the above exception as a “gateway question,” or a “question of arbitrability” and held that it had a limited scope. Examples of gateway or arbitrability issues “include questions such as ‘whether the parties are bound by a given arbitration clause,’ or ‘whether an arbitration clause in a concededly binding contract applies to a particular type of controversy.’ ” BG Group, 572 US at 34; 134 S Ct at 1206, quoting Howsam, 537 US at 84.
On the other hand, there are ” ‘procedural questions which grow out of the dispute and bear on its final disposition....’ ” Howsam, 537 US at 84, quoting John Wiley & Sons, Inc v Livingston, 376 US 543, 557; 84 S Ct 909; 11 L Ed 2d 898 (1964). We presume (again, absent any relevant contract language) that procedural questions, sometimes referred to as subsidiary questions, are to be decided by the arbitrator, not the courts. Howsam, 537 US at 85. In other words, “the parties intend arbitrators, not courts, to decide disputes about the meaning and application of particular procedural preconditions for the use of arbitration.” BG Group, 572 US at 35; 134 S Ct at 1207. Examples of procedural questions for the arbitrator to decide include “whether the first two steps of a grievance procedure were completed,
From these doctrinal definitions there are typically two situations where a court would be empowered to decide whether consolidation is permissible. First, if the contract between the parties explicitly states that a court should decide the issue, then the parties’ intent would be plain, and a court would be required to follow that intention. See Stolt-Nielsen, 559 US at 682 (“In this endeavor, as with any other contract, the parties’ intentions control.“) (quotation marks and citation omitted), and BG Group, 572 US at 34; 134 S Ct at 1206 (“[I]t is up to the parties to determine whether a particular matter is primarily for arbitrators or for courts to decide.“). Second, if the parties’ intent is not discernable from the face of the contract, then a court must engage in presumptions regarding the parties’ intent, BG Group, 572 US at 34; 134 S Ct at 1206, and should only decide an issue if it is a gateway issue involving whether a contract to arbitrate exists or whether a particular type of claim falls under the arbitration agreement. Howsam, 537 US at 84.
B. APPLICATION OF GENERAL PRINCIPLES
Turning to the facts before us, the contract does not reveal an intent regarding consolidation, as the text of the arbitration clause makes no mention of consolidation or the potential combination of various parties. Rather, the contract merely grants broad power to the arbitrator to determine all disputes arising between the parties. With no mention of consolidation in the text of the contract, we must turn to the presumptions. BG Group, 572 US at 34-35; 134 S Ct at 1206-1207. In doing so, it is clear that the parties are subject to an arbitration agreement, and there is no suggestion that the underlying claim for overdue compensation falls outside the scope of the agreement. Consequently, the issue of who decides whether to consolidate arbitration claims does not fall within the general purview of a gateway issue, see id., and is instead a procedural or subsidiary issue for the arbitrator to decide. Stolt-Nielsen, 559 US at 685.
The United States Court of Appeals for the Seventh Circuit came to this same straightforward conclusion in Employers Ins Co of Wausau v Century Indemnity Co, 443 F3d 573, 577 (CA 7, 2006), where the court cogently explained:
We find based on Howsam that the question of whether an arbitration agreement forbids consolidated arbitration is a procedural one, which the arbitrator should resolve. It does not involve whether Wausau and Century are bound by an arbitration clause or whether the arbitration clause covers the Aqua-Chem policies. Instead, the consolidation question concerns grievance procedures—i.e., whether Century can be required to participate in one arbitration covering both the Agreements, or in an arbitration with other reinsurers.
In addition, allowing an arbitrator to decide consolidation issues in light of a silent contract would in no way create a “risk of forcing parties to arbitrate a matter that they may well not have agreed to arbitrate,” Howsam, 537 US at 83-84 (emphasis added), because the underlying claims indisputably fall under the agreed-on arbitration clause. And, in no way will the answer on consolidation “determine whether the underlying controversy will proceed to arbitration on the merits.” Id. at 83. Regardless of the outcome of this decision, each of the grievances will proceed to arbitration, with the answer on consolidation determining only what form that arbitration will take. Under the facts presented, the issue of consolidation is a procedural one.
As we noted, our conclusion is consistent with a significant number of federal decisions, each of which have held that whether to consolidate is for the arbitrator to decide when the contract is silent on the issue. Indeed, the decisions are almost uniform in this conclusion. See, e.g., Certain Underwriters, 489 F3d at 588; Employers Ins Co of Wausau, 443 F3d at 577; Shaw‘s Supermarkets, 321 F3d at 254; and Blimpie Int‘l, Inc v Blimpie of the Keys, 371 F Supp 2d 469, 473 (SD NY, 2005). We therefore hold that in the face of contractual silence on the issue, whether multiple arbitrations should be consolidated is a question for the arbitrator.
To their credit, plaintiffs do not seek to hide from this line of cases. Instead, they argue that these cases were collectively based on an incorrect understanding of the precedential effect of Bazzle,2 or that the passage of time since Stolt-Nielsen was released has caused the plurality decision in Bazzle to be no longer persuasive. Proof of this, they argue, is that several federal courts of appeal have recently held that whether class arbitration can proceed is a gateway issue, which of course is contrary to the plurality decision in Bazzle. Plaintiffs are correct that Bazzle provided a foundation for many of these cases, but of equal—if not greater—import to these decisions was the majority opinion in Howsam. And Stolt-Nielsen did not alter how we look at this precise issue, at least not in the way plaintiffs suggest. We explain our conclusions below.
C. STOLT-NIELSEN DOES NOT ADDRESS THIS ISSUE
Determining the import of Stolt-Nielsen requires knowing its context in relation to Bazzle. In Bazzle, a plurality of the Court concluded that the question whether a contract allowed for class arbitration was not a gateway issue, and thus it was for the arbitrator, rather than the court, to decide. See Bazzle, 539 US at 452-453. After Bazzle was issued in 2003, many federal courts relied in part on it to hold that arbitrators were to decide the procedural question of whether an arbitration agreement allowed for class arbitration. See Pedcor Mgt Co, Inc Welfare Benefit Plan v Nations Personnel of Texas, Inc, 343 F3d 355, 359-360 (CA 5, 2003), and Johnson v Long John Silver‘s Restaurants, Inc, 320 F Supp 2d 656, 668 (MD Tenn, 2004), aff‘d 414 F3d 583 (CA 6, 2005).3
But then came Stolt-Nielsen, in which a majority of justices made clear that Bazzle was only a plurality decision, and thus did not contain a holding regarding anything, let alone deciding whether classwide arbitration was a gateway issue for the court to decide. Stolt-Nielsen, 559 US at 679-680. The Court made this point again in Oxford Health Plans LLC v Sutter, 569 US 564; 133 S Ct 2064, 2068 n 2; 186 L Ed 2d 113 (2013), where a majority said that “[the] Court has not yet decided whether the availability of class arbitration” is a decision relegated to the court (thus a gateway issue) or the arbitrator (and thus a procedural, or subsidiary, issue).4 See also Reed Elsevier, 734 F3d at 597-598 (recognizing that Bazzle contained no precedential rulings, and holding that based on Stolt-Nielsen, class arbitration was a gateway issue for the court).
Plaintiffs argue that Stolt-Nielsen and Oxford Health Plans have diminished the importance of the Bazzle plurality‘s decision, and so in turn the cases decided before Stolt-Nielsen that addressed consolidation as a gateway issue with Bazzle as their foundation are suspect and should not be considered persuasive precedent. Stolt-Nielsen does not, however, affect this issue in the way plaintiffs perceive. As explained below, if anything Stolt-Nielsen implicitly disenfranchised courts from analogizing class arbitration issues to these involving consolidation.
The issue presented in Stolt-Nielsen, a post-arbitration case, was “whether imposing class arbitration on parties whose arbitration clauses are ‘silent’ on that issue is consistent with the Federal Arbitration Act (FAA).” Stolt-Nielsen, 559 US at 666. Accordingly, as some courts have noted, ”Stolt-Nielsen concerns only how to decide whether an arbitration agreement authorizes class arbitration, not who decides.” Lee v JPMorgan Chase & Co, 982 F Supp 2d 1109, 1113 (CD Cal, 2013). See also Blue Cross Blue Shield of Massachusetts, Inc v BCS Ins Co, 671 F3d 635, 638-639 (CA 7, 2011) (noting that the only issue decided in Stolt-Nielsen was whether the arbitrators exceeded their authority in conducting a class arbitration, not who decides that issue in the first instance). That the Stolt-Nielsen Court did not address which entity—court or arbitrator—should decide whether an arbitration agreement permitted class arbitration, was more recently made clear in Oxford Health Plans, 569 US at 569 n 2; 133 S Ct at 2068 n 2. The
D. CLASS ARBITRATION DECISIONS
Having rejected plaintiffs’ theory of the impact of Stolt-Nielsen, we now turn to whether the more recent class arbitration gateway decisions impact the consolidation issue. Although there can be no doubt that the “confusion of whether class arbitration is a gateway or subsidiary issue began with [the Bazzle and Stolt-Nielsen] decisions,” Shakoor v VXI Global Solutions Inc, 2015 Ohio 2587; 35 NE3d 539, 545 (Ohio App, 2015), no real confusion exists; under these circumstances, consolidation is a subsidiary issue. This holds true because, despite this lack of clarity at the Supreme Court level, the simple fact is that most (if not all) federal courts have held—pre- and post-Stolt-Nielsen—that consolidation is a procedural issue properly left to the arbitrator. And this is not just a numbers game, where we look to the majority of decisions on an issue and simply follow them. Instead, in addition to recognizing (as we already have) the limited holding of Stolt-Nielsen, these courts also recognized (1) the significantly different and more complex considerations involved in determining whether class arbitration should proceed, compared to what is considered in consolidation issues, and (2) the procedural nature of consolidation issues.
Decisions like Reed Elsevier, which have concluded, contrary to Bazzle, that class arbitration is a gateway issue, do not support the argument that consolidation issues are as well. Indeed, much of what is contained in Stolt-Nielsen provides support for the conclusion that class arbitration issues involve unique and particularly complex matters and are placed in a completely different category from those involving consolidation. For example, the Court repeatedly emphasized the significant differences between a bilateral arbitration (one claimant under one contract) and classwide arbitration, classifying the differences as “fundamental.” Stolt-Nielsen, 559 US at 686. The California Court of Appeals, citing to Stolt-Nielsen, explained some of these critical differences:
For example, arbitration‘s putative benefits—i.e., “lower costs, greater efficiency and speed“—“are much less assured” in classwide arbitration, which, according to the court, “giv[es] reason to doubt the parties’ mutual consent” to a classwide arbitration procedure. (Stolt-Nielsen, supra, at p 685; 130 S Ct 1758; [AT & T Mobility LLC v] Concepcion, [563 US 333; 131 S Ct 1740, 1751; 179 L Ed 2d 742 (2011)] [“the switch from bilateral to class arbitration sacrifices the principal advantage of arbitration—its informality—and makes the process slower, more costly, and more likely to generate procedural morass than final judgment“].) Further, “[c]onfidentiality becomes more difficult” in classwide arbitrations (Concepcion, supra, at p 1750), a complication that “potentially frustrate[s] the parties’ assumptions
when they agreed to arbitrate.” (Stolt-Nielsen, supra, at p 686; 130 S Ct 1758.) [Garden Fresh Restaurant Corp v Superior Court, 231 Cal App 4th 678, 686; 180 Cal Rptr 3d 89 (2014) (some alterations in original).]
An equal, if not greater, concern has been the impact class arbitration can have on third parties, for a class arbitration award “no longer purports to bind just the parties to a single arbitration agreement, but adjudicates the rights of absent parties as well.” Stolt-Nielsen, 559 US at 686. No less significant are the notice and opt-out requirements and a quagmire of other complex issues that must be addressed in a class proceeding. See Opalinski v Robert Half Int‘l Inc, 761 F3d 326, 332-335 (CA 3, 2014), and Reed Elsevier, 734 F3d at 598, both discussing how fundamental the differences are between class arbitration and bilateral arbitration. And because of the significant issues and differences involved in class arbitration versus bilateral arbitration, the Stolt-Nielsen Court held that an arbitrator exceeded his authority by forcing parties to proceed with class arbitration when no contractual language supported that type of proceeding. Stolt-Nielsen, 559 US at 687.
The concerns that surface with class arbitrations do not, for the most part, exist with consolidation. For one, consolidating arbitrations does not result in an arbitrator deciding the rights of absent third parties. Instead, cases that are already subject to arbitration are merely consolidated before the same arbitrator, who can then presumably promote greater efficiency when it comes to discovery or other pre-arbitration matters. The rules typically considered in deciding whether a class action should proceed—and what must be done if it does proceed—are much more complex, time-consuming, and expensive than the issues typically involved in deciding whether to consolidate. Compare
Class actions always have been treated as special. One self-selected plaintiff represents others, who are entitled to protection from the representative‘s misconduct or incompetence. Often this requires individual notice to class members, a procedure that may be more complex and costly than the adjudication itself. See Eisen v Carlisle & Jacquelin, 417 US 156; 94 S Ct 2140; 40 L Ed 2d 732 (1974). As a practical matter the representative‘s small stake means that lawyers are in charge, which creates a further need for the adjudicator to protect the class. Finally, class actions can turn a small claim into a whopping one. Unsurprisingly, Fed.R.Civ.P. 23 imposes stringent requirements on class certification. Consolidation of suits that are going to proceed anyway poses none of these potential problems. That‘s why Fed.R.Civ.P. 42(a) leaves to a district judge‘s discretion—and without any of Rule 23‘s procedures and safeguards—the decision whether to consolidate multiple suits. Just as consolidation under Rule 42(a) does not change the fundamental nature of litigation, so consolidation of the plans’ claims would not change the fundamental nature of arbitration.5
E. CONCLUSION
Finally, critical to our decision is remembering that gateway issues involve “questions such as ‘whether the parties are bound by a given arbitration clause,’ or ‘whether an arbitration clause in a concededly binding contract applies to a particular type of controversy.’ ” BG Group, 572 US at 34; 134 S Ct at 1206, quoting Howsam, 537 US at 84. As we emphasized earlier, gateway arbitrability questions fall into a very narrow range of issues focusing on whether the parties agreed to arbitrate at all, or agreed to arbitrate a particular type of claim. Garden Fresh Restaurant, 231 Cal App 4th at 684, citing Howsam, 537 US at 83. Though these may not be the only circumstances in which gateway issues may be found—as reflected by those cases concluding that a decision on class arbitration is a gateway issue—this fundamental underpinning to gateway issues makes it clear that the fact-intensive decision of consolidation is procedural.
For all these reasons, we conclude that the virtually unanimous opinions amongst the federal courts, prior to (and after) Stolt-Nielsen, holding that consolidation decisions are subsidiary ones left to the arbitrator to decide under the contract (when the contract does not provide for a different venue or otherwise address consolidation), remain persuasive authority, and nothing in the caselaw since then requires a different conclusion.6 We therefore agree with and follow the rationale of those cases and hold that, absent any contractual language addressing the issue, whether multiple arbitrations should be consolidated is a procedural or subsidiary issue for the arbitrator to decide.
Affirmed. Defendants may tax costs, having prevailed in full. MCR 7.219(A).
STEPHENS, P.J., and CAVANAGH, J., concurred with MURRAY, J.