May 2018
The Eleventh Circuit Court of Appeals recently held that a litigant may enforce its contractual arbitration provision as to absent class members despite not obtaining a ruling on the issue at the outset of the case. The right to compel arbitration of unnamed class member claims was not lost because there was no “party” against whom to compel arbitration unless or until a class is certified. This occurred in Garcia et al. v. Wells Fargo Bank, N.A., Case No. 16-16820.

This ruling is significant because it recognizes that defendants can preserve their rights to pursue arbitration of class member claims even if not pursued at the beginning of a suit. The key issue, according to the Court, is notice to the trial court and counsel. In this way, the court and parties can efficiently structure their motion practice and discovery while still recognizing arbitration rights as to the unnamed class member agreements. Otherwise, the defendant is placed in the awkward and difficult position of seeking to compel arbitration as to persons and claims over which the trial court lacks jurisdiction unless or until a class has been certified.

View the full alert here.