Whether an arbitrator may compel class arbitration without finding actual consent, and instead based only on a finding that the agreement does not unambiguously prohibit class arbitration and should be construed against the drafter

QUESTION PRESENTED In Stolt-Nielsen S.A. v. AnimalFeeds International Corp., 559 U.S. 662 (2010), this Court held that an arbitrator cannot compel class arbitration if the agreement is “silent” on the question and the arbitrator relies on a policy-based rationale; what is needed is affirmative consent to resolve disputes through classwide arbitration. In Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407 (2019), this Court held that a court cannot compel class arbitration merely by finding that an agreement does not unambiguously prohibit it and should be construed against the drafter. Affirmative consent is needed. Here, an arbitrator compelled class arbitration—and certified a class with 70,000 absent class members— without finding consent, and merely by concluding that the agreement does not unambiguously prohibit class arbitration and should be construed against the drafter. Nonetheless, the Second Circuit upheld the arbitrator’s authority to bind the parties and absent class members by distinguishing Stolt-Nielsen on the ground that the contract is ambiguous (as in Lamps Plus), then distinguishing Lamps Plus on the ground that the decision was made by an arbitrator (as in Stolt-Nielsen). The question presented is whether an arbitrator may compel class arbitration—binding the parties and absent class members—without finding actual consent, and instead based only on a finding that the agreement does not unambiguously prohibit class arbitration and should be construed against the drafter. @)