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Bar Association for the Third Federal Circuit Bar Association for the Third Federal Circuit On Appeal October 2014 THIRD CIRCUIT BAR ASSOCIATION WELCOMES JUDGE CHERYL ANN KRAUSE Volume VIII, Number 3 TO THE BENCH • Third Circuit Bar Association Welcomes On July 7, 2014, the U.S. Senate unanimously confirmed Cheryl Ann Krause to the U.S. Court of Judge Cheryl Ann Krause To The Bench – Page 1 Appeals for the Third Circuit. Judge Krause fills the vacancy created when Judge Dolores K. Sloviter assumed senior status. • “Who Decides?” – The Third Circuit Holds That Court, Not Arbitrators, Presumptively Prior to joining the Third Circuit, Decide Whether An Arbitration Can Judge Krause spent eight years as a Proceed On A Class Basis – Page 2 partner in the Philadelphia office of Dechert LLP, where she specialized • En Banc Court Splits On When Objection in white-collar criminal defense and Is Required To Preserve Procedural Error government investigations. Before At Sentencing – Page 3 that, she was a shareholder in • Third Circuit Retains Certiorari Jurisdiction the Philadelphia office of Hangley Over Some V.I. Appeals But Unanswered Aronchick Segal Pudlin & Schiller. Questions Abound – Page 5 Judge Krause was born in • Public Notice - U.S. Bankruptcy Judgeship St. Louis and raised in suburban Vacancy - District of New Jersey – Page 6 Philadelphia. She received her B.A. summa cum laude from the University of Pennsylvania in 1989 and her J.D. with highest honors from Stanford Law School in 1993. Following law school, Judge Krause clerked for Judge Alex Kozinski on the U.S. Court of Appeals for the Ninth Circuit (1993 to 1994) and Justice Anthony M. Kennedy on the U.S. Supreme Court (1994 to 1995). She was an associate at Davis Polk & Wardwell in New York City from 1996 to 1997 before serving as an Assistant U.S. Attorney in the Southern District of New York from 1997 to 2002. Since 2003, Judge Krause has regularly taught courses at the University of Pennsylvania Law School, where she founded and led an appellate litigation externship program. In 2011, she founded the Philadelphia Project, a partnership between Dechert LLP and the Public Interest Law Center of Philadelphia, to improve the quality of education for children with disabilities. FOR MORE INFORMATION ABOUT THE Additionally, from 2007 to 2014, Judge Krause served as outside counsel for the City of THIRD CIRCUIT BAR ASSOCIATION, Philadelphia’s Board of Ethics and on the Board of Directors of the Committee of Seventy, a PLEASE CONTACT US AT: non-partisan civil organization focused on fair elections and government integrity. [email protected] Judge Krause’s formal investiture took place on September 22, 2014. Justice Anthony M. OR VISIT US AT: Kennedy administered the oath of office. In addition to Justice Kennedy, speakers included www.thirdcircuitbar.org (continued on page 3) 1 “Who DECides?” – THE THIRD CIRCUIT HOLDS THAT COURT, NOT ARBITRATORS, PRESUMPTIVELY DECIDE WHETHER AN ARBITRATION CAN PROCEED ON A CLASS BASIS Opalinski v. Robert Half International Inc., 761 F.3d 326 (3d Cir. July 30, 2014) Kim M. Watterson & Richard L. Heppner Jr. Reed Smith, LLP, Pittsburgh, PA When one party to an arbitration agreement initiates a class action, and the (i.e. a gateway issue that the parties cannot be presumed to have agreed to other party seeks to compel individual arbitration, who decides whether arbitrate). If it were a “question of arbitrability,” then a presumption would the arbitration proceeds on an individual or a class basis—the court or apply that the district court decides the question; if it were not, then courts the arbitrator? Whether a case proceeds individually or as a class action is would presume that the arbitrator decides it. See First Options of Chi., Inc. obviously consequential. And the “who decides” question can be equally v. Kaplan, 514 U.S. 938, 944-45 (1994). Second, the panel had to determine consequential. An arbitrator’s decision on whether class arbitration is allowed whether the presumption was overridden in this case. is given great deference under the Federal Arbitration Act (“FAA”) and will be On the first, the panel explained that whether the availability of class arbitration upheld if it “even arguably” construes the arbitration agreement. By contrast, is a gateway “question of arbitrability” was an open legal question. Although a district courts are bound by established canons of contract construction and plurality of the Supreme Court treated it as a non-gateway issue in Green Tree their decisions on class arbitration are subject to de novo appellate review. Financial Corp. v. Bazzle, 539 U.S. 444, 451-53 (2003), the Supreme Court’s Although courts for years had believed that whether to allow class arbitration subsequent cases have noted that the issue remains undecided. Specifically, was a procedural question left to the arbitrators, the U.S. Supreme Court has in Stolt-Nielsen, the Supreme Court emphasized that the Bazzle decision was recently, twice noted that “who decides” is an open question. Stolt-Nielsen “only [a] plurality.” 559 U.S. 662, 680 (2010). And in Oxford Health Plans, the S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 680 (2010); Oxford Health Plans Supreme Court stated that it “has not yet decided whether the availability of LLC v. Sutter, 133 S.Ct. 2064, 2069 n.2 (2013). The Third Circuit is the second class arbitration” is for a court or for an arbitrator to resolve. 133 S.Ct. 2064, Circuit to address this open question, reaching the same conclusion as the 2069 n.2 (2013). Nor, the Opalinski panel explained, had the Third Circuit Sixth Circuit. previously decided the issue. Although the Third Circuit had stated in Quillion In Opalinski v. Robert Half International Inc., 761 F.3d 326 (3d Cir. 2014), v. Tennett HealthSystem Philadelphia, Inc., 673 F.3d 221, 232 (3d Cir. 2012), a panel of the Third Circuit held that the fundamental differences between that “the actual determination as to whether class action is prohibited is a classwide and individual arbitration mean that courts, not arbitrators, decide question of interpretation and procedure for the arbitrator,” the panel explained whether an arbitration agreement allows for class arbitration, unless the that statement was dicta because the parties to that case had agreed that the parties have explicitly agreed otherwise. In August, the Third Circuit declined to arbitrator would decide the issue. rehear the panel’s decision en banc. Opalinksi held that the availability of classwide arbitration is a “question Plaintiffs David Opalinski and James McCabe brought a putative class action in of arbitrability,” presumptively for the district court to decide, because it New Jersey District Court alleging Defendant Robert Half International (“RHI”) fell into the two categories of questions that the Third Circuit has held are failed to pay overtime in violation of the Fair Labor Standards Act, 29 U.S.C. so fundamental that they must be questions of arbitrability: (1) questions § 201 et seq. RHI moved to compel individual arbitration based on arbitration implicating “whose claims the arbitrator may resolve,” and (2) and questions provisions in the plaintiffs’ employment agreements. Those provisions said implicating “the type of controversy submitted to arbitration.” See Puleo v. nothing about either the availability of class arbitration or who decided whether Chase Bank USA, N.A., 605 F.3d 172, 178 (3d Cir. 2010). The class arbitrability class arbitration was authorized. The District Court held that the arbitrator decision clearly affects “whose claims the arbitrator may resolve” because should decide whether the employment agreements allowed for classwide classwide arbitration subjects the claims of all the absent class members to arbitration and compelled arbitration. arbitration. Similarly, whether to allow classwide arbitration affects “the type of controversy submitted to arbitration.” The panel recognized the difference Early in the arbitration, the arbitrator ruled that the employment agreements between an individual action and a class action is not merely procedural, authorized class arbitration. RHI moved the District Court to vacate that ruling, noting that the Supreme Court has called the difference “fundamental” but the District Court denied the motion. RHI appealed, arguing that the District because “class action arbitration changes the nature of arbitration.” Those Court, not the arbitrator, should have decided whether class arbitration was differences, the panel explained, render class arbitration “qualitatively separate permitted. from deciding an individual quarrel.” The Third Circuit first ruled that RHI had not waived the “who decides” issue The panel drew support from the Sixth Circuit’s decision in Reed Elsevier v. by failing to appeal from the District Court’s initial order compelling arbitration, Crockett, which found that class arbitrability was a question of arbitrability for because that was not a final order and RHI had made its objection known all the courts to decide, because the question is so “fundamental to the manner in along. which the parties will resolve their dispute” and is “vastly more consequential The Court then turned to the central “who decides” question which, it than even the gateway question whether they agreed to arbitrate.” 734 F.3d explained, was subject to a two-part analysis. First, the panel had to 594, 598-99 (6th Cir. 2013). And, the panel noted that no other Circuits had determine if the availability of class arbitration is a “question of arbitrability” considered the issue. (continued on page 6) 2 THIRD CIRCUIT BAR ASSOCIATION WELCOMES JUDGE CHERYL ANN KRAUSE TO THE BENCH — continued from page 1 Senator Bob Casey, Senator Pat Toomey, SEC Chair Mary Jo White, Dechert LLP Chair Andrew Levander, Chief Judge Theodore A. McKee, and former White House Counsel Kathryn Ruemmler, who read the Presidential Commission. On her transition to the Court, Judge Krause stated: “I am immensely grateful and humbled by the opportunity to return to public service in this capacity.
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