(For that background, click here. For a broader survey of arbitration and class actions in the context of SCOTUS and South Carolina-- at least at that point in time-- click here).
SCOTUS recently took up the issue of class arbitration again, ruling in Lamps Plus that an ambiguous contract to arbitrate could not authorize class arbitration. Lamps Plus extended the rationale of Stolt-Nielsen, a 2010 SCOTUS decision concluding that an agreement that is "silent" on the question of class arbitration could not compel the parties to classwide arbitration.
As described in the posts linked above, Justice Alito's opinion in Stolt-Nielsen discussed the SCOTUS Bazzle opinion in some detail. And Chief Justice Roberts cited Bazzle in Lamps Plus as well.
Reading the Hidden Note: Silence and Ambiguity in Arbitration Contracts
Stolt-Nielsen presented a unique instance of "silence," as the parties actually stipulated that their arbitration agreement did not speak to the question of class arbitration. In other words, that arbitration agreement was not susceptible to more than one interpretation on the issue of class arbitration because the parties agreed that the agreement was not susceptible of any interpretation on that point.
Lamps Plus: Everybody Knows Class Arbitration is Nowhere
This approach may strike South Carolina practitioners as passing strange, as we generally come to understand that 1) as described above, when an ambiguity arises in a contract, courts have the opportunity to determine the intent of the parties based in part upon the drafter of the contract; 2) if you are drafting a contract you get to put what you want in it; and 3) if you don't put a term (e.g. "no class arbitration") in a contract you're drafting, then whatever resulting ambiguity is on you.
That rationale certainly underscored the S.C. Supreme Court's decision in Bazzle:
Generally, if the terms of a contract are clear and unambiguous, this Court must enforce the contract according to its terms regardless of its wisdom or folly. Ambiguous language in a contract, however, should be construed liberally and interpreted strongly in favor of the non-drafting party. After all, the drafting party has the greater opportunity to prevent mistakes in meaning. It is responsible for any ambiguity and should be the one to suffer from its shortcomings." (citations omitted).
Conclusion: When You're On the Losing End ...
Similarly, I am still trying to wrap my head around how the current SCOTUS would address Herron in the event that case arrived there under the right circumstances. Maybe I will try to work through that in a subsequent post.