The question whether an arbitration agreement permits classwide arbitration is a gateway matter reserved for judicial determination unless the parties clearly and unmistakably provide otherwise.
A law firm signed an adhesion contract with a legal-research provider containing an arbitration clause that did not mention classwide arbitration. The firm filed a demand for classwide arbitration, and the provider sought a declaration that the clause did not authorize it. The question presented is whether the determination of classwide arbitrability is a gateway matter reserved for judicial decision or a subsidiary question for the arbitrator. The court applies the rule that classwide arbitrability is a gateway matter, requiring clear and unmistakable evidence of party consent to arbitrate that specific issue. Because the clause was silent on classwide arbitration, the court holds that the clause does not permit classwide arbitration and affirms the district court's judgment.
At page 599 Determining classwide arbitrability requires clear and unmistakable agreement35 citing cases“the question whether an arbitration agreement permits classwide arbitration is a gateway matter, which is reserved for judicial determination unless the parties clearly and unmistakably provide otherwise.”
- Dominguez v. Stone Brewing Co., No. 3:20-cv-00251 (S.D. Cal. July 2, 2020).([T]he question whether an arbitration agreement 27 permits classwide arbitration is a gateway matter . . . reserved for judicial determination 28 1 unless the parties clearly and unmistakably provide otherwise.)
- Nathan Robinson v. Home Owners Mgmt. Enter., Inc., 590 S.W.3d 518 (Tex. 2019).published LexisNexis Div. v. Crockett, 734 F.3d 594, 599 (6th Cir. 2013). 56 Howsam v. Dean Witter Reynolds, 537 U.S. 79, 83 (2002). 57 Reed Elsevier, 734 F.3d at 598 (“[T]he [Supreme] Court has given every indication, short of an outright holding,…
- Sakyi v. Estée Lauder Cos., 308 F. Supp. 3d 366 (D.C. Cir. 2018).published See Opalinski , 761 F.3d at 329 ("Neither agreement mentions classwide arbitration."); *381 Dell Webb Cmtys. , 817 F.3d at 877 (noting that "the sales agreement says nothing at all" about "whether [it] authorizes class arbitration"); Reed…
- Robinson v. Home Owners Mgmt. Enters., Inc., 549 S.W.3d 226 (Tex. App.—Fort Worth 2018).published (The principal reason to conclude that this arbitration clause does not authorize classwide arbitration is that the clause nowhere mentions it.)
- Chesapeake Appalachia LLC v. Scout Petroleum, No. 17-2037 (3d Cir. Mar. 13, 2018).unpublished(The principal reason to conclude that this arbitration clause does not authorize classwide arbitration is that the clause nowhere mentions it.)
- David Opalinski v. Robert Half Int'l Inc, 677 F. App'x 738 (3d Cir. 2017).unpublished(The principal reason to conclude that this arbitration clause does not authorize classwide arbitration is that the clause nowhere mentions it.)
- Tiffany v. Ko Huts, Inc., 178 F. Supp. 3d 1140 (W.D. Okla. 2016).published See Dell Webb Communities, 817 F.3d at 875 , 2016 WL 1178829, at *6 (“The [Supreme] Court found that ‘class-action arbitration changes the nature of arbitration to such a degree that it cannot be presumed the parties consented to it by sim…
- Chesapeake Appalachia, LLC v. Scout Petroleum, LLC, 809 F.3d 746 (3d Cir. 2016).published (This language' does not clearly and unmistakably assign to an arbitrator the question whether the agreement permits classwide arbitration. Instead it does not mention classwide arbitration at all.)
- Buzzfeed Media Enter., Inc. v. Hannah Anderson, No. 2023-0377-MTZ (Del. Ch. May 15, 2024).published(holding an arbitration provision invoking AAA rules and sending any controversy, claim, or counterclaim “arising out of or in connection with [the customer’s] order” does not sufficiently indicate the parties agreed to…)
- Totalenergies E&P USA, Inc. v. Mp Gulf of Mexico, LLC, 667 S.W.3d 694 (Tex. 2023).published LexisNexis Div. v. Crockett, 734 F.3d 594, 599 (6th Cir. 2013).
Show 23 more citing cases
- Rohm Semiconductor USA, LLC v. Maxpower Semiconductor, Inc., 17 F.4th 1377 (Fed. Cir. 2021).publishedLexisNexis Div. v. Crockett, 734 F.3d 594, 599 (6th Cir. 2013)).
- Brookdale Senior Living Communities, Inc. v. Weir, No. 3:20-cv-00293 (W.D.N.C. Aug. 6, 2021).LexisNexis Div. v. Crockett, 734 F.3d 594, 599 (6th Cir. 2013) (internal quotation marks omitted); see 20/20 Communs., Inc. v. Crawford, 930 F.3d 715, 718-19 (5th Cir. 2019); JPay, Inc. v. Kobel, 904 F.3d 923, 926 (11th Cir. 2018) (“the av…
- Dimitri Shivkov v. Artex Risk Solutions, Inc., 974 F.3d 1051 (9th Cir. 2020).published (concluding that a clause which incorporated the AAA Rules “does not clearly and unmistakably assign to an arbitrator the question whether the agreement permits classwide arbitration)
- Am. Inst. for Foreign Study, Inc. v. Fernandez Jimenez, 468 F. Supp. 3d 414 (D. Mass. 2020).publishedLexisNexis Div. v. Crockett, 734 F.3d 594, 599 (6th Cir. 2013); Herrington v. Waterstone Mortg.
- Pridy v. Duke Energy Corp., No. 3:19-cv-00468 (M.D. Tenn. May 1, 2020).No. 33, at 14 (citing Stolt–Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 687 (2010); Reed Elsevier, Inc. v. Crockett, 734 F.3d 594, 599 (6th Cir. 2013)).) However, the Supreme Court has also held that the unavailability of classw…
- Rickenbaugh v. Power Home Solar, LLC, 2019 NCBC 79 (N.C. Bus. Ct. 2019).published(declining to defer to arbitrator where there was a “total absence of any reference to classwide arbitration in [the arbitration] clause” because “the agreement . . . can just as easily be read to speak only to issues re…)
- Price v. Santander Consum. USA Inc, No. 3:19-cv-00742 (N.D. Tex. Sept. 12, 2019).(concluding that an arbitration clause covering “any controversy, claim, or counterclaim” did not authorize classwide arbitration)
- Matt Rogers v. SWEPI LP, No. 18-3229 (6th Cir. Dec. 10, 2018).unpublishedLexisNexis Div. v. Crockett, 734 F.3d 594, 599 (6th Cir. 2013) (quoting Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (2002)).
- Mitchell v. Craftworks Restaurants & Breweries, Inc., No. 2018-0879, 2018 WL 5297815 (D.D.C. Oct. 25, 2018).publishedLexisNexis Div. v. Crockett, 734 F.3d 594, 599 (6th Cir. 2013)); see also Catamaran Corp. v. Towncrest Pharmacy, 864 F.3d 966, 972 (8th Cir. 2017); Dell Webb Cmtys., Inc. v. Carlson, 817 F.3d 867, 873 (4th Cir. 2016); Opalinski v. Robert H…
- Pamela Herrington v. Waterstone Mortg. Corporatio, No. 17-3609 (7th Cir. Oct. 22, 2018).publishedLexisNexis Div. v. Crockett, 734 F.3d 594, 599 (6th Cir. 2013); Catamaran Corp. v. Towncrest Pharmacy, 864 F.3d 966, 972 (8th Cir. 2017); JPay, Inc. v. Kobel, – F.3d –, 2018 WL 4472207 , at *8 (11th Cir. Sept. 18, 2018); see also Eshagh v.…
- JPay, Inc. v. Cynthia Kobel, 904 F.3d 923 (11th Cir. 2018).published Catamaran, 864 F.3d at 969 (quoting the relevant contractual language); Chesapeake Appalachia, 809 F.3d at 749 (same); Reed Elsevier, 734 F.3d at 599 (same).
- Dish Network L.L.C. v. Ray, 900 F.3d 1240 (10th Cir. 2018).published See, e.g ., Catamaran Corp. v. Towncrest Pharmacy , 864 F.3d 966 , 972 (8th Cir. 2017) (holding classwide arbitration determination to be a gateway dispute); Del Webb Communities, Inc. v. Carlson , 817 F.3d 867 , 873 (4th Cir. 2016) (same)…
- Sakyi v. Estee Lauder Companies, Inc., No. 2017-1863 (D.D.C. Apr. 25, 2018).publishedLexisNexis Div. v. Crockett, 734 F.3d 594, 599 (6th Cir. 2013) (internal quotation marks omitted); see also Catamaran Corp. v. Towncrest Pharmacy, 864 F.3d 966, 972 (8th Cir. 2017) (concluding that the availability of class arbitration is…
- Est. Of Dr. Michael Romney v. Franciscan Med. Grp., 399 P.3d 1220 (Wash. Ct. App. 2017).published “claims ‘arising from or in connection with this Order’ as opposed to other customers’ orders”
- AlixPartners v. Charles Brewington, No. 16-1027, 2016 WL 4578358 (6th Cir. Sept. 20, 2016).published “the question whether an arbitration agreement permits classwide arbitration is a gateway matter, which is reserved for judicial determination unless the parties clearly and unmistakably provide otherwise”
- NCR Corp. v. Jones, 157 F. Supp. 3d 460 (W.D.N.C. 2016).published (The principal reason to conclude that this arbitration clause does not authorize classwide arbitration is that the clause nowhere mentions it.)
- Cobarruviaz v. Maplebear, Inc., 143 F. Supp. 3d 930 (N.D. Cal. 2015).published(whether an arbitration agreement permits classwide arbitrability is a gateway question, which is reserved for judicial determination unless the parties clearly and unmistakably provide otherwise)
- AlixPartners, LLP v. Brewington, 133 F. Supp. 3d 947 (E.D. Mich. 2015).publishedLexisNexis Div. v. Crockett, 734 F.3d 594, 599 (6th Cir.2013) (“[T]he question whether an arbitration agreement permits class-wide arbitration is a gateway matter, which is reserved ‘for judicial determination unless the parties clearly an…
- Chesapeake Appalachia, LLC v. Suppa, 91 F. Supp. 3d 853 (N.D. W. Va. 2015).published See Opalinski v. Robert Half Int'l, Inc., 761 F.3d 326, 330 (3d Cir.2014); Reed Elsevier, Inc. v. Crockett, 734 F.3d 594, 597-99 (6th Cir.2013).
- Opalinski v. Robert Half Int'l Inc., 761 F.3d 326 (3d Cir. 2014).published “for judicial determination^]”
- Cynthia Huffman v. Hilltop Companies, 747 F.3d 391 (6th Cir. 2014).published
- Fletcher v. Honeywell Int'l, Inc., 207 F. Supp. 3d 793 (S.D. Ohio 2016).published
- LaFleur, No. 2:25-cv-11633 (E.D. Mich. Aug. 13, 2026).
At page 597 Distinguishing gateway from subsidiary arbitration questions16 citing casesdescribing questions of arbitrability as "important" and contrasting them with "subsidiary" questions
- Nathan Robinson v. Home Owners Mgmt. Enter., Inc., 590 S.W.3d 518 (Tex. 2019).published LexisNexis Div. v. Crockett, 734 F.3d 594, 599 (6th Cir. 2013). 56 Howsam v. Dean Witter Reynolds, 537 U.S. 79, 83 (2002). 57 Reed Elsevier, 734 F.3d at 598 (“[T]he [Supreme] Court has given every indication, short of an outright holding,…
- Henderson v. U.S Pat. Comm'n, Ltd., 188 F. Supp. 3d 798 (N.D. Ill. 2016).published As these passages make clear, unlike the consolidated arbitration in BCI Insurance, class arbitration “change[s] the stakes.” BCI Ins., 671 F.3d at 639 ; compare id. at 639 (“[W]hether it would be simpler and cheaper to handle twelve claim…
- Indus. Turnaround Corp. v. Chemtrade Holdco U.S., Inc., No. 3:25-cv-02123 (N.D. Ohio Sept. 4, 2026).Reed Elsevier, Inc. v. Crockett, 734 F.3d 594, 597 (6th Cir. 2013) (cleaned up) (emphasis added).
- Pinnacle Design/Build Grp., Inc. v. Kelchner, Inc., 490 F. Supp. 3d 1257 (S.D. Ohio 2020).publishedReed Elsevier, Inc. v. Crockett, 734 F.3d 594, 597 (6th Cir. 2013) (cleaned up) (emphasis added)).
- Dish Network L.L.C. v. Ray, 900 F.3d 1240 (10th Cir. 2018).published See, e.g ., Catamaran Corp. v. Towncrest Pharmacy , 864 F.3d 966 , 972 (8th Cir. 2017) (holding classwide arbitration determination to be a gateway dispute); Del Webb Communities, Inc. v. Carlson , 817 F.3d 867 , 873 (4th Cir. 2016) (same)…
- Wells Fargo Advisors, LLC v. Sappington, Wells Fargo Advisors, LLC, 884 F.3d 392 (2d Cir. 2018).published(describing questions of arbitrability as "important" and contrasting them with "subsidiary" questions)
- Est. Of Dr. Michael Romney v. Franciscan Med. Grp., 399 P.3d 1220 (Wash. Ct. App. 2017).published Stolt-Nielsen, 559 U.S. at 687 . ¶23 In Reed Elsevier, Inc. v. Crockett, the Sixth Circuit held that an agreement did not permit class arbitrations because it did not mention class actions at any point and limited its scope to “claims ‘ari…
- DISH Network, LLC v. Ray, 226 F. Supp. 3d 1168 (D. Colo. 2016).published LexisNexis Div. v. Crockett, 734 F.3d 594, 597-99 (6th Cir. 2013), cert. denied, — U.S. —, 134 S.Ct. 2291 , 189 L.Ed.2d 173 (2014) (the question of whether an arbitration agreement permits classwide arbitration is a gateway question reserv…
- Sandquist v. Lebo Auto., Inc., 376 P.3d 506 (Cal. 2016).published But in more recent years, the United States Supreme Court has not only disavowed any notion that Green Tree decided the issue, it has also, as another court put it, ‘“given every indication, short of an outright holding, that classwide arb…
- Del Webb Communities, Inc. v. Roger Carlson, 817 F.3d 867 (4th Cir. 2016).publishedLexisNexis Div. v. Crockett, 734 F.3d 594, 597-99 (6th Cir.2013) (quoting H owsam, 537 U.S. at 83 , 123 S.Ct. 588 ) (reasoning that the Supreme Court “has given every indication, short of an outright holding, that class-wide arbitrability…
Show 6 more citing cases
- Bienenstock & Assocs., Inc v. Lowry, 887 N.W.2d 237 (Mich. Ct. App. 2016).published Although the trial court noted the potential for disparate treatment between class arbitration and consolidation decisions and who can decide them, the court reasoned that a decision from the United States Court of Appeals for the Sixth Ci…
- Chesapeake Appalachia, LLC v. Suppa, 91 F. Supp. 3d 853 (N.D. W. Va. 2015).published See Opalinski v. Robert Half Int'l, Inc., 761 F.3d 326, 330 (3d Cir.2014); Reed Elsevier, Inc. v. Crockett, 734 F.3d 594, 597-99 (6th Cir.2013).
- Bachrach v. Cornwell Quality Tool Co., 2014-Ohio-5778.publishedLexisNexis Div. v. Crockett, 734 F.3d 594, 597-598 (6th Cir.2013). 5 {¶10} Federal courts have distinguished between threshold or gateway questions and procedural or subsidiary questions.
- Network Capital Funding Corp. v. Papke, No. G049172 (Cal. Ct. App. Oct. 9, 2014).publishedLexisNexis Div. v. Crockett (6th Cir. 2013) 734 F.3d 594, 597-599 (Reed Elsevier).) Several district courts from other circuits, however, have found Bazzle persuasive and concluded the Class Arbitration Question is for arbitrators to decid…
- MMIE, LLC v. Synectics Media, Inc., No. 1:20-cv-03874 (N.D. Ill. June 28, 2021).
- A & D Devoted Logistics, LLC. v. TruNorth Warranty Plans of North Am., LLC., No. 2:20-cv-02046, 2021 WL 4901558 (W.D. Tenn. Oct. 20, 2021).
At page 598 Indications regarding classwide arbitrability as a gateway question15 citing cases[R]ecently the Court has given every indication, short of an outright holding, that classwide arbitrability is a gateway question rather than a subsidiary one.
- Nathan Robinson v. Home Owners Mgmt. Enter., Inc., 590 S.W.3d 518 (Tex. 2019).published ([T]he [Supreme] Court has given every indication, short of an outright holding, that classwide arbitrability is a gateway question rather than a subsidiary one.)
- Catamaran Corp. v. Towncrest Pharmacy, 864 F.3d 966 (8th Cir. 2017).published ([R]ecently the Court has given every indication, short of an outright holding, that classwide arbitrability is a gateway question rather than a subsidiary one.)
- Henderson v. U.S Pat. Comm'n, Ltd., 188 F. Supp. 3d 798 (N.D. Ill. 2016).published ([Wjhether the parties arbitrate one claim or 1,000 in a single proceeding is no mere detail.)
- Tiffany v. Ko Huts, Inc., 178 F. Supp. 3d 1140 (W.D. Okla. 2016).published (Gateway questions are fundamental to the manner in which, the parties will resolve their dispute — whereas subsidiary questions, by comparison, concern details. And whether the parties arbitrate one claim or 1,000 in a…)
- Townsend v. Stand Up Mgmt., Inc., No. 1:18-cv-02884, 2019 WL 3729266 (N.D. Ohio Aug. 8, 2019).LexisNexis Div. v. Crockett, 734 F.3d 594, 598 (6th Cir.2013), quoting Stolt–Nielsen v. Animalfeeds Internatl.
- Dish Network L.L.C. v. Ray, 900 F.3d 1240 (10th Cir. 2018).published (stating "the Court has given every indication, short of an outright holding, that classwide arbitrability is a gateway question rather than a subsidiary one.)
- Shakoor v. VXI Global Solutions, Inc., 2017-Ohio-8018.publishedLexisNexis Div. v. Crockett, 734 F.3d 594, 598 (6th Cir.2013), quoting Stolt-Nielsen v. Animalfeeds Internatl.
- Sandquist v. Lebo Auto., Inc., 376 P.3d 506 (Cal. 2016).published “given every indication, short of an outright holding, that classwide arbitrability is a gateway question rather than a subsidiary one”
- Hedrick v. BNC Nat'l Bank, 186 F. Supp. 3d 1189 (D. Kan. 2016).publishedLexisNexis Div. v. Crockett, 734 F.3d 594, 598-99 (6th Cir.2013). .
- Chesapeake Appalachia, LLC v. Suppa, 91 F. Supp. 3d 853 (N.D. W. Va. 2015).published See Opalinski v. Robert Half Int'l, Inc., 761 F.3d 326, 330 (3d Cir.2014); Reed Elsevier, Inc. v. Crockett, 734 F.3d 594, 597-99 (6th Cir.2013).
Show 4 more citing cases
- Opalinski v. Robert Half Int'l Inc., 761 F.3d 326 (3d Cir. 2014).published Other Circuits The only other Circuit Court of Appeals to have squarely resolved the “who decides” issue is the Sixth, which has also held that “whether an arbitration agreement permits classwide arbitration is a gateway matter” that is pr…
- Sandquist v. Lebo Auto., No. B244412 (Cal. Ct. App. July 22, 2014).published(See, e.g., Reed Elsevier, Inc. v. Crockett (6th Cir. 2013) 734 F.3d 594, 598-599 (Reed Elsevier); Chassen v. Fidelity Nat.
- Fed. Ins. Co. v. Reedstrom, 197 So. 3d 971 (Ala. 2015).published
- Lee v. JPMorgan Chase & Co., 982 F. Supp. 2d 1109 (C.D. Cal. 2013).published
At page 600 Inferring class-action arbitration from agreement3 citing casesclass-wide arbitration cannot be inferred “ ‘solely from the fact of the parties’ agreement to arbitrate’
- Carlos Rivas v. Coverall North Am., No. 20-55140 (9th Cir. Jan. 7, 2021).unpublishedLexisNexis Div. v. Crockett, 734 F.3d 594, 600 (6th Cir. 2013). 3 allow a three-judge panel to overrule circuit precedent).
- Big City Small World Bakery Café, LLC v. Francis David Corp., 265 F. Supp. 3d 750 (E.D. Mich. 2017).publishedLexisNexis Div. v. Crockett, 734 F.3d 594, 600 (6th Cir. 2013). (“The idea that the arbitration agreement in this case reflects the intent of anyone but LexisNexis is the purest legal fiction.
- Cooper v. Honeywell Int'l, Inc., 220 F. Supp. 3d 850 (W.D. Mich. 2016).published(class-wide arbitration cannot be inferred “ ‘solely from the fact of the parties’ agreement to arbitrate’)
At page 595 [T]he arbitration clause says nothing about classwide arbitration.1 citing case
- Sakyi v. Estée Lauder Cos., 308 F. Supp. 3d 366 (D.C. Cir. 2018).published ([T]he arbitration clause says nothing about classwide arbitration.)
v.
Craig CROCKETT, as Alleged Assignee of Dehart and Crockett, P.C.; Craig M. Crockett, P.C., D/B/A Crockett Firm, Defendants-Appellants
OPINION
KETHLEDGE, Circuit Judge.Craig Crockett’s law firm signed an adhesion contract with LexisNexis that contained an arbitration clause. Eventually the parties had a billing dispute. The arbitration clause provided that any arbitration with respect to LexisNexis’s charges must occur in the city where Lex-isNexis is located. That provision and others made arbitration of Crockett’s individual claims economically unfeasible, so Crockett filed an arbitration demand on behalf of himself and a putative class of other LexisNexis customers. But the arbitration clause says nothing about class-wide arbitration, and the Supreme Court has recently made clear that we must interpret arbitration clauses according to their terms. We therefore agree with the district court that the arbitration clause does not permit the classwide arbitration that Crockett seeks here.
I.
LexisNexis (a business division of Reed Elsevier) provides legal-research services, primarily on-line. In 2007, Craig Crockett and his former law firm—Dehart & Crockett, P.C. — subscribed to a LexisNex-is Subscription Plan. The Plan allowed subscribers unlimited access to certain legal databases for a flat, monthly fee. Subscribers could access other databases for an additional fee. According to Crockett, LexisNexis told subscribers that a warning sign — such as a dollar ($) sign— would display if the subscriber was about to use a database outside of the Plan.
Several years after signing up for the Plan, Crockett complained to LexisNexis that his firm was being charged additional fees without any warning that the firm was using a database outside the Plan. Lexis-Nexis allegedly insisted on payment of the additional fees anyway. Soon thereafter, Dehart & Crockett dissolved. Crockett then formed the Crockett Firm and entered into a LexisNexis subscription agreement that is materially identical to the Plan.
The Plan contains an arbitration clause. In 2010, Crockett filed an arbitration demand with the American Arbitration Association against LexisNexis on behalf of himself and two putative classes. One class comprised law firms that were charged additional fees by LexisNexis. The other class comprised clients onto whom such fees were passed. The demand sets forth state-law claims for fraud, negligent misrepresentation, breach of contract, negligence, gross negligence, unjust enrichment, and violation of the New York Consumer Protection Act. Crockett sought damages in excess of $500 million.
In response, LexisNexis sued Crockett in a federal district court in Ohio, seeking a declaration that the Plan’s arbitration clause does not authorize class arbitration. LexisNexis also sought an injunction barring Crockett from proceeding with class-wide arbitration. In an opinion that thoroughly canvassed the caselaw, the district court granted summary judgment in favor of LexisNexis on its declaratory claim and dismissed the injunctive claim without prejudice.
This appeal followed.
II.
We review the district court’s grant of summary judgment de novo. Grden v. [*597] Leikin Ingber & Winters PC, 643 F.3d 169, 171 (6th Cir.2011).
A.
1.
Crockett first argues that an arbitrator, rather than the district court, should have decided whether the Plan’s arbitration clause authorizes classwide arbitration. “[Ajrbitrators derive their authority to resolve disputes only because the parties have agreed in advance to submit such grievances to arbitration.” AT & T Techs., Inc. v. Commc’n Workers of Am., 475 U.S. 643, 648-49, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986). Thus, an arbitrator has authority to answer the question whether an agreement provides for class-wide arbitration — a question we refer to here as “classwide arbitrability” — only if the parties have authorized the arbitrator to answer that question. See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). As to this much, the law is clear.
Less clear is the showing necessary for a court to decide that the parties have authorized an arbitrator to determine classwide arbitrability. On the one hand, courts presume that so-called “gateway disputes” are “for judicial determination unless the parties clearly and unmistakably provide otherwise.” Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002) (internal quotation marks and alterations omitted). Gateway disputes include “whether the parties have a valid arbitration agreement at all or whether a concededly binding arbitration clause applies to a certain type of controversy.” Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444, 452, 123 S.Ct. 2402, 156 L.Ed.2d 414 (2003) (plurality opinion). These matters are important enough that courts “hesitate to interpret silence or ambiguity” as grounds for giving an arbitrator the power to decide them, because “doing so might too often force unwilling parties to arbitrate a matter they reasonably would have thought a judge, not an arbitrator, would decide.” First Options, 514 U.S. at 945, 115 S.Ct. 1920.
On the other hand, “the law reverses the presumption[,]” id., with respect to what we refer to here as “subsidiary questions.” Subsidiary questions “grow out of the dispute and bear on its final disposition[,]” John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 557, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964); and they include, for example, issues related to “waiver, delay,” or “whether a condition precedent to arbitrability has been fulfilled.” Howsam, 537 U.S. at 84-85, 123 S.Ct. 588 (quotation marks and citation omitted). Once a court decides that the parties have agreed to resolve a particular dispute through arbitration, it follows almost a fortiorari — absent clear language to the contrary in the parties’ agreement— that they would have agreed to have an arbitrator decide these subsidiary questions as well.
So we must determine whether class-wide arbitrability is a gateway question or a subsidiary one. The Supreme Court faced this same issue in Bazzle, though only a plurality of the Justices agreed upon its resolution. There, the plurality concluded that classwide arbitrability is merely a subsidiary question (as we use that term here) because it concerns not whether the parties “agreed to arbitrate a matter[,]” but rather “what kind of arbitration proceeding the parties agreed to.” 539 U.S. at 452, 123 S.Ct. 2402 (emphasis omitted). Crockett urges us to adopt the same reasoning and conclusion here.
Although the Supreme Court’s puzzle of cases on this issue is not yet complete, the[*598] Court has sorted the border pieces and filled in much of the background. As an initial matter, the Court has pointedly observed that “only the plurality” in Bazzle decided whether elasswide arbitrability is a gateway question. Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 680, 180 S.Ct. 1758[incorrect citation], 176 L.Ed.2d 605 (2010). And just last Term, the Court flatly stated that it “has not yet decided whether the availability of class arbitration” is a gateway question. Oxford Health Plans LLC v. Sutter, — U.S. -, 133 S.Ct. 2064, 2068 n. 2, 186 L.Ed.2d 113 (2013). Thus, the issue before us — whether elasswide arbitrability is presumptively for an arbitrator to decide, or presumptively for a judge — remains an open one.
But for Crockett the caselaw is even worse than that — for recently the Court has given every indication, short of an outright holding, that elasswide arbitrability is a gateway question rather than a subsidiary one. The Court has stated that “it cannot be presumed the parties consented to [elasswide arbitration] by simply agreeing to submit their disputes to an arbitrator.” Stolt-Nielsen, 559 U.S. at 685, 130 S.Ct. 1758. Indeed, for several reasons, the Court has characterized the differences between bilateral and class-wide arbitration as “fundamental.” Id. at 686, 130 S.Ct. 1758; AT&T Mobility LLC v. Concepcion, — U.S. -, 131 S.Ct. 1740, 1750, 179 L.Ed.2d 742 (2011) (same). First, arbitration’s putative benefits— “lower costs, greater efficiency and speed,” et cetera — “are much less assured” with respect to elasswide arbitration, “giving reason to doubt the parties’ mutual consent” to that procedure. Stolt-Nielsen at 685, 130 S.Ct. 1758; see also Concepcion, 131 S.Ct. at 1751 (stating that “the switch from bilateral to class arbitration sacrifices the principal advantage of arbitration — its informality — and makes the process slower, more costly, and more likely to generate procedural morass than final judgment”). Second, “[c]onfldentiality becomes more difficult” in elasswide ar-bitrations, id. at 1750 — thus “potentially frustrating the parties’ assumptions when they agreed to arbitrate.” Stolt-Nielsen, 559 U.S. at 686, 130 S.Ct. 1758. Third, “the commercial stakes of class-action arbitration are comparable to those of class-action litigation” — indeed, Crockett seeks an award of $500 million here — “even though the scope of judicial review is much more limited[.]” Id. at 686-87, 130 S.Ct. 1758. And then there are the due-process concerns: once an arbitration is expanded elasswide, “[t]he arbitrator’s award no longer purports to bind just the parties to a single arbitration agreement, but adjudicates the rights of absent parties as well.” Id. at 686, 130 S.Ct. 1758. Consequently, the absent parties “must be afforded notice, an opportunity to be heard, and a right to opt out of the class.” Concepcion, 131 S.Ct. at 1751. Indeed, “where absent class members have not been required to opt in, it is difficult to see how an arbitrator’s decision to conduct class proceedings could bind absent class members who have not authorized the arbitrator to decide on a elasswide basis which arbitration procedures are to be used.” Oxford Health, 133 S.Ct. at 2071-72 (Alito, J., concurring). Thus, in sum, “[ajrbitration is poorly suited to the higher stakes of class litigation.” Concepcion, 131 S.Ct at 1752.
Crockett’s argument does not fit this puzzle. Gateway questions are fundamental to the manner in which the parties will resolve their dispute — whereas subsidiary questions, by comparison, concern details. And whether the parties arbitrate one claim or 1,000 in a single proceeding is no mere detail. Unlike the question[*599] whether, say, one party to an arbitration agreement has waived his claim against the other — which of course is a subsidiary question — the question whether the parties agreed to classwide arbitration is vastly more consequential than even the gateway question whether they agreed to arbitrate bilaterally. An incorrect answer in favor of classwide arbitration would “forc[e] parties to arbitrate” not merely a single “matter that they may well not have agreed to arbitrate[,]” Howsam, 537 U.S. at 84, 123 S.Ct. 588, but thousands of them. We therefore hold that the question whether an arbitration agreement permits classwide arbitration is a gateway matter, which is reserved “for judicial determination unless the parties clearly and unmistakably provide otherwise.” Id. at 83, 123 S.Ct. 588 (internal quotations and alterations omitted).
2.
Crockett cannot make that showing here. The Plan’s arbitration clause provides, in relevant part:
2. Arbitration
Except as provided below, any controversy, claim or counterclaim (whether characterized as permissive or compulsory) arising out of or in connection with this Order (including any amendment or addenda thereto), whether based on contract, tort, statute, or other legal theory (including but not limited to any claim of fraud or misrepresentation) will be resolved by binding arbitration under this section and the then-current Commercial Rules and supervision of the American Arbitration Association (“AAA”).
The clause also provides: “Issues of arbi-trability will be determined in accordance and solely with the federal substantive and procedural laws relating to arbitration[.]” This language does not clearly and unmistakably assign to an arbitrator the question whether the agreement permits classwide arbitration. Instead it does not mention classwide arbitration at all. It is true that the clause provides that “any controversy ... arising out of or in connection with this Order” shall be resolved by binding arbitration; and one might argue that the question whether an arbitrator should decide classwide arbitrability is a “controversy ... arising ... in connection with” Crockett’s order. That, indeed, was the interpretation that the plurality gave to analogous language in Bazzle. See 539 U.S. at 448, 123 S.Ct. 2402 (plurality opinion). But given the total absence of any reference to classwide arbitration in this clause, the agreement here can just as easily be read to speak only to issues related to bilateral arbitration. Thus, at best, the agreement is silent or ambiguous as to whether an arbitrator should determine the question of classwide arbitrability; and that is not enough to wrest that decision from the courts. Stolt-Nielsen, 559 U.S. at 684-85, 130 S.Ct. 1758. We therefore agree with the district court that the question whether Crockett and Lexis-Nexis agreed to arbitrate must “be decided by the court, not the arbitrator.” AT & T Techs., 475 U.S. at 649, 106 S.Ct. 1415. And so we turn to that question next.
B.
The principal reason to conclude that this arbitration clause does not authorize classwide arbitration is that the clause nowhere mentions it. A second reason, as the district court correctly observed, is that the clause limits its scope to claims “arising from or in connection with this Order” as opposed to other customers’ orders. Crockett responds that the arbitration clause refers to the AAA’s Commercial Rules, which themselves incorporate the AAA’s Supplemental Rules for Class Arbitration. But the Supple[*600] mental Rules expressly state that one should “not consider the existence of these Supplementary Rules, or any other AAA rules, to be a factor either in favor of or against permitting the arbitration to proceed on a class basis.” Crockett also responds that the agreement does not expressly exclude the possibility of classwide arbitration, which is true enough. But the agreement does not include it either, which is what the agreement needs to do in order for us to force that momentous consequence upon the parties here.
The Supreme Court has made clear that “[a]n implicit agreement to authorize class-action arbitration” should not be inferred “solely from the fact of the parties’ agreement to arbitrate.” Stolt-Nielsen, 559 U.S. at 685, 130 S.Ct. 1758. That, at bottom, is the inference that Crockett asks us to make here. The agreement in this case does not provide for classwide arbitration.
C.
Crockett’s remaining argument is that, if read not to permit classwide arbitration, the arbitration clause is unconscionable. The clause is indeed as one-sided as Crockett says: the clause favors LexisNexis at every turn, and as a practical matter makes it economically unfeasible for Crockett or any other customer to assert the individual claims that Crockett seeks to assert here. The clause provides that any arbitration of any dispute concerning LexisNexis’s charges must occur in Dayton, Ohio, where LexisNexis is headquartered. The customer must pay his own legal fees, even if the arbitrator concludes that LexisNexis’s charges were improper. And unlike many corporations that require arbitration of disputes with their customers, LexisNexis makes its customer split the tab for the arbitrator’s fee.
The idea that the arbitration agreement in this case reflects the intent of anyone but LexisNexis is the purest legal fiction. But all of these things — the one-sided nature of the arbitration clause, and its adhesive nature — were also present in American Express Co. v. Italian Colors Restaurant, — U.S. -, 133 S.Ct. 2304, 186 L.Ed.2d 417 (2013). And there the Supreme Court held that, all of those concerns notwithstanding, the absence of a class-action right does not render an arbitration agreement unenforceable. Id. at 2309 (The solution to Crockett’s problem is likely a market solution; as the district court observed, Westlaw’s agreement with its customers lacks any arbitration clause, much less a clause of the sort at issue here.) Under Italian Colors, therefore, the agreement here is not unconscionable.
The district court’s judgment is affirmed.