Lead Opinion
Dеfendants-Appellants Florida Metropolitan University and Corinthian Colleges
I. FACTUAL AND PROCEDURAL BACKGROUND
In 2008, Plaintiff-Appellee Jeffrey Reed (“Reed”) enrolled in Everest University Online’s (“Everest”) distance learning program,
Dissatisfied with his experience at Everest, Reed filed a putative class action in Texas state court, alleging that Defendants-Appellants Corinthian Colleges and Florida Metropolitan University (together, the “School”) had violated certain provisions of the Texas Education Code by soliciting students in Texas without the appropriate certifications.
The School removed the action to the district court, and then moved to compel individual arbitration pursuant to the arbitration provision of the Enrollment Agreement. The arbitration provision provides, in relevant part:
The student agrees that any dispute arising from my enrollment at Everest University, no matter how described, pleaded or styled, shall be resolved by binding arbitration under the Federal Arbitration Act conducted by the American Arbitration Association (“AAA”) under its Commercial Rules. The award rendered by the arbitrator may be enforced in any court having jurisdiction.
Terms of Arbitration
1. Both student and Everest University irrevocably agree that any dispute between them shall be submitted to Arbitration.
2. Neither the student nor Everest University shall file or maintain any lawsuit in any court against the other, and agree that any suit filed in violation of this Agreement shall be dismissed by*633 the court in favor of an arbitration conducted pursuant to this Agreement.
4. The arbitrator’s decision shall be set forth in writing and shall set forth the essential findings and conclusions upon which the decision is based.
5. Any remedy available from a court under the law shall be available in the arbitration.
Acknowledgment of Waiver of Jury Trial and Availability of AAA Rules
By my signature on the reverse, I acknowledge that I understand that both I and Everest University are irrevocably waiving rights to a trial by jury, and are selecting instead to submit any and all claims to the decision of an arbitrator instead of a court. I understand that the award of the arbitrator will be binding, and not merely advisory.
The district court granted the School’s motion to compel arbitration and stayed the action pending arbitration. It found that a valid arbitration agreement existed, that the parties’ dispute was within the scope of the agreement, and that the arbitration clause was not unconscionable. The district court declined, however, to address whether the parties’ agreement provided for class arbitration, concluding that the issue is “more appropriately decided by the arbitrator.”
The case then proceeded before an American Arbitration Association (“AAA”) arbitrator. Reed moved for a Clause Construction Award under the AAA Supplementary Rules for Class Arbitration, seeking class arbitration. The arbitrator determined that the parties implicitly agreed to class arbitration and entered an award to that effect. Reed then sought to confirm the arbitration award in the district court, and the School moved to vacate the award on the basis that the arbitrator exceeded his powers. The School argued that the award conflicted with the recent Supreme Court decisions in Stolt-Nielsen S.A. v. AnimalFeeds International Corp., — U.S. -,
II. DISCUSSION
This appeal requires us to address two issues. Our first task is to determine whether the district court erred when it allowed the arbitrator to decide whether the parties agreed to class arbitration. Second, we must decide whether the district court properly denied the School’s motion to vacate the arbitrator’s award.
1. The District Court Properly Referred the Class Arbitration Issue to the Arbitrator
The School contends that the district court erred when it allowed the arbitrator to determine whether the parties’ arbitration agreement allowed for class arbitration, instead of deciding, the issue itself. We disagree.
The Supreme Court has not definitively decided this issue. In Green Tree Financial Corp. v. Bazzle,
According to the School, the district court should have resolved the class arbitration issue because the parties expressly submitted that issue to the court for resolution. We disagree. Reed’s opposition to the School’s motion to compel arbitration was restricted largely to issues of the applicability and unconscionability of the arbitration clause. Reed, in fact, requested that the court “find that no valid, enforceable arbitration agreement exists, and that Plaintiff may proceed with this case before [the district court].” Reed’s discussion of class arbitration came only when he argued that requiring individual arbitration would render the arbitration agreement unconscionable. Although Reed argued that the case should proceed as a class even if it were referred to arbitration, he did so only in response to the School’s motion to compel arbitration. Nor did the district court understand Reed to make a class arbitration argument. It summarized, “Reed ... argues that his claims are not within the scope of the arbitration agreement, that Defendants are not parties to the arbitration agreement, that Texas law makes the arbitration agreement unenforceable, and that the arbitration agreement is illusory and un~ consсionable, and thus unenforceable.” Indeed, as Reed sought to avoid arbitration altogether and to proceed as a class action, we cannot conclude that he intended to submit the class arbitration issue to the district court.
We now turn to the arbitration rules to which the parties agreed. As noted above, the parties explicitly agreed to adopt the AAA’s Commercial Rules when they entered into their agreement in 2008. These rules do not contain class arbitration procedures; rather, such procedures are provided in the separate Supplementary Rules for Class Arbitration, which were enacted in October 2003 after the Supreme Court’s Green Tree decision. See Stolt-Nielsen,
Commentators and AAA arbitral tribunals have consistently concluded that consent to any of the AAA’s substantive rules also constitutes consent to the Supplementary Rules.
With this conclusion, we now turn to the substance of the Supplementary Rules. Under Supplementary Rule 3, “the arbitrator shall determine as a threshold matter ... whether the applicable arbitration clause permits the arbitration to proceed on behalf of or against a class .... ” AAA Suppl. R. 3 (emphasis added). The parties’ consent to the Supplementary Rules, therefore, constitutes a clear agreement to allow the arbitrator to decide whether the party’s agreement provides
In light of the foregoing, we conclude that the district court correctly referred the class arbitration issue to the arbitrator. We now must decide whether the district court properly confirmed the arbitrator’s class arbitration award.
2. The District Court Erred in Confirming the Arbitration Award
After a hearing, the arbitrator issued an award in which he determined that the parties’ arbitration provision allowed for class arbitration. The district court granted Reed’s motion to confirm the award and denied the School’s cross-motion to vacate the award. The School contends that the arbitration award is inconsistent with Stolt-Nielsen, and that the arbitrator exceeded his authority by ordering the parties into class arbitration without a sufficient contractual basis. Reed responds that the award is compatible with Stolt-Nielsen, and that the exceedingly deferential standard of review applicable to arbitration awards precludes us from vacating the award. For the reasons discussed below, we agree with the School and conclude that the district court erred in failing to vacate the award pursuant to the Federal Arbitration Act (“FAA”), 9 U.S.C. § 10(a)(4).
A. Standard of Review
Our review of the district court’s confirmation of an arbitral award is de novo, “using the same standard as the district court.” DK Joint Venture 1 v. Weyand,
Of the various grounds for vacating an arbitral award provided in Section 10, this fourth ground has received the most attention. In Wilko v. Swan,
[A]n arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only as long as it draws its essence from the collective bargaining agreement. When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award.
United Steelworkers of Am. v. Enter. Wheel & Car Corp.,
Consistent with this precedent, we have recognized that “judicial review of an arbitration award is extraordinarily narrow” and “exceedingly deferential.” Rain CII Carbon, LLC v. ConocoPhillips Co., 674
B. The Arbitrator Exceeded his Powers
With this understanding of our limited review, we now consider whether the arbitrator in this case exceedеd his powers when he concluded that the parties’ agreement permitted class arbitration. Because we find that the arbitrator forced the parties into class arbitration without a contractual basis for doing so, we conclude that the arbitrator exceeded his powers and that the award must be vacated.
i. Stolt-Nielsen
This appeal comes before us in the wake of the Supreme Court’s recent decision in Stolt-Nielsen v. AnimalFeeds International Corp., — U.S.-,
On appeal, the Supreme Court held that the district court properly vacated the award. The Court first reemphasized that a party seeking vacatur must “clear a high hurdle,” as it is “not enough for petitioners to show that the panel committed an error — or even a serious error.” Id. at 1767. As the Court explained, “[i]t is only where [an] arbitrator strays from interpretation and application of the agreement and effectively dispensed] his own brand of industrial justice that his decision may be unenforceable.” Id. (citations and internal quotation marks omitted). Where that happens, an arbitration award may be vacated on the basis that the arbitrator exceeded his powers, “for the task of an arbitrator is to interpret and enforcе a contract, not to make public policy.” Id.
The Court explained that, because the parties stipulated that their agreement was silent on class arbitration, the arbitrators’ “proper task was to identify the rule of law that governs,” presumably “the FAA itself or to one of the two bodies of law that the parties claimed were governing, i.e., either federal maritime law or New York law.” Id. at 1768. However, instead of “inquiring whether the FAA, maritime law, or New York law contains a ‘default rule’ under which an arbitration clause is construed as allowing class arbi
The Court then addressed the “standard to be applied by a decision maker in determining whether a contract may permissibly be interpreted to allow class arbitration,” a question left undecided by Green Tree. Id. at 1772. The Court based its analysis on the FAA’s basic precept that arbitration “is a matter of consent, not coercion.” Id. at 1773. In this respect, parties are “generally free to structure their arbitration agreements as they see fit,” and to “specify with luhom they choose to arbitrate their disputes.” Id. at 1774 (emphasis in original) (citations and internal quotation marks omitted). As such, the Court held that “a party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so.” Id. at 1775 (emphasis in original). The arbitrators had erred by “imposing] class arbitration even though the parties concurred that they had reached ‘no agreement’ on that issue.” Id. In fact, the panel had faulted the parties for failing to preclude class arbitration, and “regarded the agreement’s silence on the question of class arbitration as disposi-tive.” Id. This conclusion, the Court found, was “fundamentally at war with the foundational FAA principle that arbitration is a matter of consent.” Id.
In so deciding, the Court explained that arbitrators may properly presume authorization to impose certain procedural requirements, but “[a]n implicit agreement to authorize class-action arbitration ... is not a term that the arbitrator may infer solely from the fact of the parties’ agreement to arbitrate.” Id. This is so, the Court explained, “because class-action arbitration changes the nature of the arbitration to such a degree that it cannot be presumed the parties consented to it by simply agreeing to submit their disputes to an arbitrator.” Id. The Court then described several fundamental differences between bilateral and class arbitration. For example, in class arbitration, the arbitrator “no longer resolves a single dispute between the parties to a single agreement, but instead resolves many disputes between hundreds or perhaps even thousands of parties,” and the presumption of privacy and confidentiality that applies in many bilateral arbitrations would not apply in class arbitrations. Id. at 1776. Further, “[t]he arbitrator’s award no longer purports to bind just the parties to a single аrbitration agreement, but adjudicates the rights of absent parties as well.” Id. Additionally, although the stakes are similar to those in class action litigation, “the scope of judicial review is much more
Justice Ginsburg, joined by Justices Stevens and Breyer, dissented. The dissent criticized the majority for not affording the arbitration award the proper deference. Because the parties had agreed to submit the class arbitration issue to the arbitrators, the arbitrators did not exceed their authority in resolving the dispute. Id. at 1780 (Ginsburg, J., dissenting). Rather, they properly addressed the “procedural mode available for presentation of Animal-Feeds’ antitrust claims.” Id. at 1781.
The Supreme Court reiterated many of the same concerns regarding class arbítration a year later in Concepcion, — U.S. -,
Therefore, in light of the significant disadvantages of class arbitration as discussed in both Stolt-Nielsen and Concepcion, an arbitrator (or a court) should not conclude that parties' — and defendants in particular — consented to such a proceeding absent a contractual basis for doing so. Although the agreement to submit to class arbitration may be implicit, it should not be lightly inferred.
With this understanding of Stoltr-Niel-sen, we now turn to whether the arbitrator in this case exceeded his powers by ordering the parties to submit to class arbitration.
ii. Arbitrator’s Award
In his award, the arbitrator began by acknowledging that the class arbitration issue presented a “close case,” and was primarily governed by Stolt-Nielsen. After determining that the FAA and Texas law applied,
Upon our deferential review of the award, we conclude that the arbitrator exceeded his authority by ordering the parties into class arbitration without a sufficient basis for concluding that the parties agreed to resolve their dispute in this manner. Stolt-Nielsen,
First, the arbitrator improperly relied upon the “any dispute” clause of the arbitration agreement. The “any dispute” clause is a standard provision that may be found, in one form or another, in many arbitration agreements. See Stolt-Nielsen,
Second, the arbitrator’s reliance upon the “any remedy” clause was also improper. The “any remedy” clause, which merely allows the arbitrator to grant any “remedy available from a court under the law,” says nothing whatsoever about сlass arbitration, and does not constitute an “agree[ment] to authorize class arbitration.” Stolt-Nielsen, 130 S.Ct. at 1776 (emphasis omitted). A “remedy” is “anything a court can do for a litigant who has been wronged or is about to be wronged.” Blaox’s Law Dictionary 1320 (8th ed. 2004); see also Knapp, Stout & Co. v. McCaffrey,
The arbitrator concluded that class arbitration was a potential remedy here because Section 132.121(a) of the Texas Education Code allows for class action lawsuits to address violations of the Code. Even aside from the fact that a class action cannot properly be considered a “remedy” under state or federal law, Section 132.121(a) addresses only class action litigation in state court, and does not support the conclusion that the parties agreed to class arbitration. Indeed, the central purpose of the arbitration agreement is to avoid such provisions of state law, not to incorporate them into the arbitration agreement. In other words, the mere fact that the parties would otherwise be subject to class action in the absence of an arbitration agreement is not a sufficient basis to conclude that they agreed to class arbitration when they entered into an arbitration agreement. Nor can the Texas Education Code class action provision be considered “a ‘default rule’ under which an arbitration clause is construed as allowing class arbitration in the absence of express consent.” Stolt-Nielsen,
Finally, the arbitrator erroneously based his conclusion on the agreement’s silence
We conclude, therefore, that the arbitrator lacked a contractual basis upon which to conclude that the parties agreed to authorize class arbitration. At most, the agreement in this case could support a finding that the parties did not preclude class arbitration, but under Stolt-Nielsen this is not enough. The arbitrator therefore exceeded his authority in ordering the parties to submit to a сlass arbitration proceeding, and the district court should have vacated the award. 9 U.S.C. § 10(a)(4); see Stolt-Nielsen,
The Second Circuit, applying Stolt-Nielsen, has come to a different conclusion.
On appeal, a panel of the Second Circuit, with one judge dissenting, reversed the district court’s order and remanded with instructions to confirm the award. The majority explained that the district court erroneously “focused ... on whether the arbitrator had correctly interpreted the arbitration agreement itself.” Id. at 123. Instead, it should have restricted its analysis to whether the parties had submitted the class arbitration issue to the arbitrator and “whether the agreement or the law categorically prohibited the arbitrator from reaching that issue.” Id. at 123.
The majority distinguished the case before it from the stipulation of silence in Stolt-Nielsen, explaining “[t]he plaintiffs’ concession that there was no explicit
In so holding, the majority “reemphasized] that the primary thrust of [its] decision is whether the district court applied the appropriate level of deference when reviewing the arbitration award.” Id. The majority criticized the dissent for focusing on the “correct” interpretation of Stolt-Nielsen rather than whether the arbitrator exceeded her powers. Id. at 125. Ultimately, the majority concluded, regardless of “whether the arbitrator was right or wrong in her analysis, she had the authority to make the decision, and the parties to the arbitration agreement are bound by it.” Id. at 127 (footnote omitted).
Judge Winter dissented. He first noted that the same “silence” at issue in StolN Nielsen was present in Jock, as neither party claimed that the arbitration clauses at issue either “specifically authorize^] or specifically preelude[d] class arbitration.” Id. at 128 (Winter, J., dissenting). He acknowledged that an implicit agreement to arbitrate is permissible under Stolt-Nielsen, but argued that an implicit agreement cannot be inferred from an arbitration agreement’s silence or failure to preclude class arbitrations, “much less from thin air.” Id. at 129. Nowhere in the arbitrator’s opinion, Judge Winter reasoned, did the arbitrator “purport to identify any provision of thе agreement supporting the existence of an implied agreement”; in fact, many provisions of the agreement supported the conclusion that only bilateral arbitration was permissible. Id. In this regard, Judge Winter discounted the arbitrator’s reliance on the “any relief’ provision of the arbitration agreements, concluding that it could not support an implicit agreement to submit to class arbitration, as class arbitration is a “procedure[ ] used to pursue ... relief,” not relief itself. Id. at 132. Finally, Judge Winter rejected the majority’s reb-anee on the deferential standard of review, noting that the same standard of review was applicable in Stolt-Nielsen, but it did not prevent the Court from vacating the award. Id. at 133.
We respectfully disagree with the Second Circuit’s decision in Jock. We read Stoltr-Nielsen as requiring courts to ensure that an arbitrator has a legal basis for his class arbitration determination, even while applying the appropriately deferential standard of review.
Nor can we agree that the deferential standard of review applicable to arbitration awards precludes such an inquiry. Indeed, the same standard of review was at issue in Stoltr-Nielsen, but it did not prevent the Court from examining and vacating the arbitrator’s award. Furthermore, we are persuaded by the Supreme Court’s lengthy discussion of the significant disadvantages of class arbitration, id. at 1776, a discussion that the Jock majority largely ignored.
To summarize, we conclude that the arbitrator in this case exceeded his powers by ordering the parties to submit to class arbitration without a contractual or legal basis. The district court thus erred in denying the School’s motion to vacate the award. 9 U.S.C. § 10(a)(4); see Stolt-Nielsen,
III. CONCLUSION
For the reasons stated above, we REVERSE the order of the district court and REMAND this case with instructions to refer the parties to bilateral arbitration.
Notes
. Everest is a brand of Defendant-Appellant Corinthian Colleges, Inc. Defendant-Appellant Florida Metropolitan University, Inc. is a subsidiary of Corinthian Colleges.
. Specifically, Reed alleged violations of Texas Education Code § 132.051(a), which requires that schools not advertise or solicit in Texas until they receive the appropriate certificate of approval from the Texas Workforce Commission, and Texas Education Code § 132.059(a), which requires employees of career schools or colleges to register with the Commission.
. In Pedcor Management Co., Inc. Welfare Benefit Plan v. Nations Personnel of Texas, Inc.,
. One arbitral tribunal confronted with this issue concluded that the Supplementary Rules applied to an arbitration commenced in 2004, even though the parties’ arbitration agreement — which was governed by “the Rules of the American Arbitration Association” — was signed approximately five years before the Supplementary Rules were enacted. See Presidents and Fellows of Harvard College v. JSC Surgutneftegaz, 770 PLI/Lit. 127, 135 n. 5 (2008). The panel, relying upon Supplementary Rule 1, explained, “[s]ince the AAA rules apply here — something clear on the face of the [parties’] Agreement — the Supplementary Rules also apply.” Id. One member of the panel dissented from this conclusion, reasoning that the Supplementary Rules could not be incorporated into the parties’ arbitration clause because the Supplementary Rules did not exist at the time the parties entered into their agreement. Id. at 170 (Zykin, dissenting).
. In so holding, we note thаt the parties have never specifically disputed the applicability of the Supplementary Rules. The School, in its motion to vacate the clause construction award, in fact represented to the district court that it had agreed to those Rules. See R. 341 (“The AAA rules to which these parties agreed provide that a clause construction award would be subject to a motion to vacate ....”) (citing Supplementary Rule 3) (emphasis added).
. The parties’ adoption of the AAA Commercial Rules and the Supplementary Rules cannot, however, be considered in deciding whether they agreed to arbitrate as a class. See AAA Suppl. R. 3 ("In construing the applicable arbitration clause, the arbitrator shall not consider the existence of these Supplementary Rules, or any other AAA rules, to be a factor either in favor of or against permitting the arbitration to proceed on a class basis.”).
. The School contends that de novo review of the award is proper because the class arbitration issue is one of arbitrability that should have been considered by the district court. Because we have concluded that the parties agreed to submit the issue to the arbitrator, we need not consider whether class arbitration constitutes an arbitrability issue. Nor would the arbitrability determination necessarily be conclusive, as parties may agree to submit arbitrability questions to an arbitrator. See Rent-A-Center, West, Inc. v. Jackson, - U.S.-,
. We have explained that an arbitrator’s award "draws its essence” from the contract where the award "ha[s] a basis that is at least rationally inferable, if not obviously drawn, from the letter or purpose of the ... agreement. ... [T]he award must, in some logical way, be derived from the wording or purpose of the contract.” Anderman/Smith Operating Co. v. Tenn. Gas Pipeline Co.,
. In this respect, the Court faulted the arbitrators for discounting expert evidence that bilateral rather than class arbitration was customary in maritime agreements. The Court also explained that, "[ujnder both New York law and general maritime law, evidence of 'custom and usage' is relevant to determining the parties' intent when an express agreement is ambiguous.” Stolt-Nielsen,
. This understanding is consistent with Texas law, which provides: ''[F]or a court to read additional provisions into [a] contract, the implication must clearly arise from the languаge used, or be indispensable to effectuate the intent of the parties. It must appear that the implication was so clearly contemplated by the parties that they deem it unnecessary to express it.” Fuller v. Phillips Petroleum Co.,
. The parties agreed that Texas law governed.
. The parties do not provide any such “default rule” under federal or Texas law, nor are we aware of such a rule. The Texas General Arbitration Act makes no reference to class arbitration. See Tex. Civ Prac. & Rem. Code Ann. § 171.001 et seq. The FAA also has no such default rule.
. The Third Circuit has also recently addressed this issue. See Sutter v. Oxford Health Plans LLC,
. We note that the arbitral award in Jock was issued before the Supreme Court's Stolt-Nielsen decision. This led the Jock majority to explain that the “arbitrator faithfully followed the law as it existed at the time of her decision,” and an "intervening change of law, standing alone, [does not] provide[] grounds for vacating an otherwise proper arbitral award.”
. Only the dissent in Jock discussed at length the Supreme Court's recent concerns about class arbitration.
Concurrence Opinion
specially concurring:
I join the majority’s opinion, except Part II.l, and write separately to add some observations regarding Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., — U.S.-,
1.
I agree with the majority’s conclusion in Part II.l of its opinion that the district court did not err in referring the issue of class arbitration vel non to the arbitrator, but I am not persuaded that “the parties’ agreement to the AAA’s Commercial Rules also constitutes consent to the Supplementary Rules.” Majority Op. 8. Instead, I believe that reference of the question to the arbitrator is required by our circuit precedent in Pedcor Management Co., Inc. Welfare Benefit Plan v. Nations Personnel of Texas, Inc.,
In Pedcor, this court considered the upshot of the splintered decision in Green
In analyzing Green Tree, the Pedcor panel applied the well-established principle that “when we are confronted with a plurality opinion, we look to that position taken by those Members who concurred in the judgments on the narrowest grounds.”
In Stolt-Nielsen, the Court recognized that Justice Stevens’ opinion in Green Tree did not decide the question of whether the arbitrator or the court should decide the class arbitration question, аnd “[t]hus, [Green Tree ] did not yield a majority decision on” that issue.
Therefore, I would follow Pedcor to uphold the district court’s referral of the class arbitration question to the arbitrator.
2.
I agree with the majority that under the principles of Stolt-Nielsen that are clearly applicable to this case, we must reverse the district court’s affirmance of the arbitrator’s class arbitration award and remand the case with instructions to refer the partiеs to bilateral arbitration. However, a careful reading and assessment of Stoltr-Nielsen reveals that it is distinguishable from the present case in respects that may be significant in future cases.
First, as the majority notes, Majority Op. 11, Stolt-Nielsen fully reaffirmed the exceedingly deferential standard that federal courts must apply when reviewing arbitration decisions. Indeed, the Court began its analysis in Stolt-Nielsen by restating this deference in no uncertain terms; “Petitioners contend that the decision of the arbitration panel must be vacated, but in order to obtain that relief, they must clear a high hurdle.”
The Court’s decision to vacate the arbitrator’s class arbitration decision in Stolt-Nielsen did not alter this exceptionally deferential standard of review. There, the Court, in deciding that the arbitration panel had exceeded its power, relied upon and repeatedly called attention to the fact that the parties had expressly stipulated that they had reached no agreement on the issue of class arbitration.
Second, Stolt-Nielsen does not require that there be an express agreement to class arbitration in order for arbitrators, within their powers, to find that the parties agreed to class arbitration. See Stolt-Nielsen,
Third, Stolt-Nielsen did not address a case in which a party is unsophisticated and the arbitration agreement is part of a
Subject to my disagreement with the majority’s reasoning in Part II.l, and with the foregoing observations on the Court’s dеcision in Stolt-Nielsen, I concur in the remainder of the majority opinion.
. Chief Justice Rehnquist, joined by Justices O'Connor and Kennedy, dissented on the grounds that "this determination is one for the courts, not for the arbitrator,” Green Tree,
. See also Quilloin v. Tenet HealthSystem Phila., Inc.,
.In Stolt-Nielsen the arbitration agreement was between "sophisticated business entities,” where the form of the agreement was selected by the entity seeking class arbitration, and high-stakes, international antitrust claims were involved.
.Cf. Cruz v. Cingular Wireless, LLC,