To arbitrate or not to arbitrate, that is the question. But, like the famous prince, employers may vacillate no more. Prior to the recent decisions of the U.S. Court of Appeals for the Third Circuit in Sutter v. Oxford Health Plans , 675 F.3d 215 (3d Cir. 2012), and Quilloin v. Tenet Healthsystem Philadelphia , 673 F.3d 221 (3d Cir. 2012), employers with mandatory arbitration procedures could wait until faced with a potential class action before deciding whether or not to challenge the claimants’ right to arbitrate on a group or class basis.

In its landmark decision in Stolt–Nielsen S.A. v. AnimalFeeds International , 130 S.Ct. 1758, 176 L.Ed.2d 605 (2010), the U.S. Supreme Court held that an arbitral panel had exceeded its authority by allowing class arbitration when the parties had reached no agreement on the issue. In Sutter , Judge Julio M. Fuentes stated that the default rule set forth in Stolt-Nielsen would not preclude a finding by an arbitration panel that the parties had agreed to allow class-based arbitration when the controlling arbitration agreement is broadly drawn. In Quilloin , the Third Circuit, agreeing with its earlier decision in Litman v. Cellco P’ship , 655 F.3d 225 (3d Cir. 2011) (regarding a New Jersey prohibition against waivers of class-wide dispute resolution), held that Pennsylvania law prohibiting waivers of class-based arbitration was clearly pre-empted.