Litigation Byte

Court Finds Arbitral Forum’s Decision to Consolidate Cases is Not a Gateway Arbitrability Question

March 27, 2025

The Ninth Circuit Court of Appeals affirmed a district court’s decision to deny the plaintiff’s motion to compel arbitration, finding that the plaintiff was not an “aggrieved” party within the meaning of the Federal Arbitration Act (FAA) because the defendant did not refuse to arbitrate. In so ruling, the Court also found that the arbitration administrator’s decision to consolidate arbitrations was not a gateway arbitrability question delegated to a court to decide.

What was the case about?

The plaintiff, along with thousands of other claimants represented by the same law firm, initiated arbitration against the defendant, alleging various violations of state and federal privacy laws. The arbitration agreement called for the use of Judicial Arbitration and Mediation Services (JAMS) to arbitrate all disputes. JAMS ultimately consolidated those arbitrations under its procedural rules. Unfortunately, those arbitrations devolved into a procedural stalemate, as numerous arbitrators were disqualified.

The plaintiff then moved to compel individual arbitration, arguing that she was “aggrieved” by the consolidation of the claims because it amounted to defendant’s refusal to individually arbitrate disputes as required. The district court disagreed and, in so ruling, further found that the consolidation of the claims by JAMS was not a gateway arbitrability issue. On appeal, the Ninth Circuit Court of Appeals affirmed.

How did the Court rule?

Broadly speaking, the Ninth Circuit’s decision addressed two substantive issues. First, the Ninth Circuit affirmed the decision that the plaintiff was not “aggrieved” by the consolidation of the arbitrations within the meaning of the FAA, 9 U.S.C. § 4, because the defendant did not refuse to arbitrate. Rather, it was the arbitral forum that decided, pursuant to its own rules, that consolidation was appropriate.

Second, the court found that JAMS’ decision to consolidate the claims was not a gateway question of arbitrability for the court to decide. Typically, courts, not arbitrators, are to decide gateway questions of arbitrability, such as whether the parties have agreed to arbitrate a dispute and/or whether an arbitration agreement is enforceable by one of the parties. According to the Ninth Circuit, the arbitral forum’s decision to consolidate cases under its own rules is not a gateway arbitrability question. Indeed:

It strains credulity to believe that it is the business of a federal court to second-guess an independent arbitration provider’s application of its own rule—a rule incorporated into the parties’ agreement—to consolidate thousands of identical arbitration demands. As Jones’s counsel acknowledged during oral argument, no court would tolerate having to try 7,300 identical cases separately. No arbitration provider should have to, either.