Oxford Health Plans LLC v. Sutter,
569 U.S. ___ (2013)

Annotate this Case
  • Syllabus  | 
  • Opinion (Elena Kagan)  | 
  • Concurrence (Samuel A. Alito, Jr.)



No. 12–135



on writ of certiorari to the united states court of appeals for the third circuit

[June 10, 2013]

     Justice Alito, with whom Justice Thomas joins, concurring.

     As the Court explains, “[c]lass arbitration is a matter of consent,” ante, at 1, and petitioner consented to the arbitrator’s authority by conceding that he should decide in the first instance whether the contract authorizes class arbitration. The Court accordingly refuses to set aside the arbitrator’s ruling because he was “ ‘arguably construing . . . the contract’ ” when he allowed respondent to proceed on a classwide basis. Ante, at 8 (quoting Eastern Associated Coal Corp. v. Mine Workers, 531 U. S. 57, 62 (2000) ). Today’s result follows directly from petitioner’s concession and the narrow judicial review that federal law allows in arbitration cases. See 9 U. S. C. §10(a).

     But unlike petitioner, absent members of the plaintiff class never conceded that the contract authorizes the ar- bitrator to decide whether to conduct class arbitration. It doesn’t. If we were reviewing the arbitrator’s interpretation of the contract de novo, we would have little trouble concluding that he improperly inferred “[a]n implicit agreement to authorize class-action arbitration . . . from the fact of the parties’ agreement to arbitrate.” Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp., 559 U. S. 662, 685 (2010) .

     With no reason to think that the absent class members ever agreed to class arbitration, it is far from clear that they will be bound by the arbitrator’s ultimate resolution of this dispute. Arbitration “is a matter of consent, not coercion,” Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U. S. 468, 479 (1989) , and the absent members of the plaintiff class have not submitted themselves to this arbitrator’s authority in any way. It is true that they signed contracts with arbitration clauses materially identical to those signed by the plaintiff who brought this suit. But an arbitrator’s erroneous interpretation of contracts that do not authorize class arbitration cannot bind someone who has not authorized the arbitrator to make that determination. As the Court explains, “[a]n arbitrator may employ class procedures only if the parties have authorized them.” Ante, at 1.

     The distribution of opt-out notices does not cure this fundamental flaw in the class arbitration proceeding in this case. “[A]rbitration is simply a matter of contract between the parties,” First Options of Chicago, Inc. v. Kaplan, 514 U. S. 938, 943 (1995) , and an offeree’s silence does not normally modify the terms of a contract, 1 Restatement (Second) of Contracts §69(1) (1979). Accord- ingly, at least where absent class members have not been required to opt in, it is difficult to see how an arbitrator’s decision to conduct class proceedings could bind absent class members who have not authorized the arbitrator to decide on a classwide basis which arbitration procedures are to be used.

     Class arbitrations that are vulnerable to collateral at- tack allow absent class members to unfairly claim the “benefit from a favorable judgment without subjecting themselves to the binding effect of an unfavorable one,” American Pipe & Constr. Co. v. Utah, 414 U. S. 538 –547 (1974). In the absence of concessions like Oxford’s, this possibility should give courts pause before concluding that the availability of class arbitration is a question the arbitrator should decide. But because that argument was not available to petitioner in light of its concession below, I join the opinion of the Court.

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