Class Action Defense n 2 Moreover, in acknowledging that Chesapeake should have crafted a more specific contract with a clearer arbitration clause, the Third Circuit reiterated that it “must construe ambiguity against Scout and in Chesapeake’s favor because ‘[i]t is presumed that courts must decide questions of arbitrability unless the parties clearly and unmistakably provide otherwise.’” Thus, the Third Circuit affirmed the lower court. Whereas Opalinski resolved what is commonly referred to as the “who decides” issue, Chesapeake serves to illuminate what is required to overcome the presumption against having an arbitrator determine the appropriateness of class arbitration. It also operates as yet another reminder to counsel drafting arbitration provisions that clarity is key. Arbitration is a creature of contract. Parties thus have the ability to delineate, among other things: (1) an arbitrator’s authority; (2) the type of claims subject to arbitration; and (3) the persons/entities subject to arbitration. Practically speaking, parties wishing to limit (or expand) the type of claims subject to arbitration may wish to expressly divest (or grant) arbitrators the authority to decide claims on a class-wide basis and/or include a waiver of the right to pursue arbitration on a class, collective, aggregate, or representative basis.

Parties should affirmatively state such intentions if they wish to avoid class-wide arbitration. — © 2016 BLANK ROME LLP A copy of the Chesapeake opinion is available here. A further discussion of Opalinski by the authors can also be found here. For more information about the impact of Chesapeake, please contact a member of Blank Rome LLP’s Class Action Defense Practice, or: Evan H.

Lechtman | 215.569.5367 | Lechtman@BlankRome.com Jeffrey N. Rosenthal | 215.569.5553 | Rosenthal-J@BlankRome.com www.blankrome.com .