The U.S. Supreme Court has granted certiorari to address the issue of whether arbitrators act within their powers under the Federal Arbitration Act (FAA) (versus exceed those powers) when they determine that parties affirmatively agreed to authorize class arbitration based solely on the parties’ use of broad contractual language precluding litigation and requiring arbitration of any dispute arising under the parties’ contract.  Sutter v. Oxford Health Plans LLC, 675 F.3d 215 (3d Cir.), cert. granted, 133 S. Ct. 786 (U.S. Dec. 7, 2012) (No. 12-135).  In the proceedings below (published at 675 F.3d 215 (3d Cir. 2012)), the Third Circuit held that an arbitrator may approve class treatment of a claim so long as there is a contractual basis for that decision.  According to the Third Circuit, absent a stipulation by the parties that there was no agreement on whether there could be class action arbitration, the arbitrator may enforce class arbitration so long as the arbitrator provides a basis for interpreting the contract to allow class arbitration that is not totally irrational.