In Opalinski v. Robert Hald Int'l, Inc., the Third Circuit joined the Sixth Circuit in answering the question of "who decides" whether an otherwise silent arbitration agreement between parties may be submitted to classwide arbitration. The Third Circuit, in agreement with the Sixth Circuit in Reed Elsevier, Inc. v. Crockett, held that the availability of classwide arbitration is a substantive question of arbitrability. The Third Circuit concluded that the availability of classwide arbitration was a substantive question of arbitrability, rather than a procedural question, because the fundamental characteristics and consequences of classwide arbitration significantly differ from bilateral arbitration. The Third Circuit relied primarily on the Supreme Court's guidance in Stolt-Nielsen S.A. v. AnimalFeeds International Corp. and Justice Alito's concurrence in Oxford Health Plans LLC v. Sutter to refute the Court's plurality opinion in Green Tree Financial Corp. v. Bazzle.
Marcus Shand, "Who Decides?" The Third Circuit: Class Action Availability is a Question of Arbitrability?, 7 Y.B. Arb. & Mediation 226 (2015).