Whether the parties' generic incorporation of an arbitration association's rules in their arbitration agreement constitutes clear and unmistakable evidence of intent to delegate class arbitrability to an arbitrator

Under the Federal Arbitration Act, courts presume that the parties intended to have courts, not arbitrators, decide certain “gateway questions of arbitrability” absent “clear and unmistakable evidence” to the contrary. Henry Schein, Inc. v. Archer & White Sales, Inc., 586 U.S. 63, 67-68, 69 (2019) (alterations and quotation marks omitted). One gateway question of arbitrability subject to this standard is whether an arbitration agreement allows for class arbitration. The question presented is: Whether the parties’ generic incorporation of an arbitration association’s rules in their arbitration agreement is clear and unmistakable evidence that the parties intended to delegate the issue of class arbitrability to an arbitrator, as four circuits hold, or whether the generic incorporation of such rules is not clear and unmistakable evidence to delegate that question to an arbitrator, as four other circuits hold.