PRECEDENTIAL

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11

- 1773

_____________

JOHN IVAN SUTTER, M.D.

v.

OXFORD HEALTH PLANS LLC,

Appellant

_____________
On Appeal from the District Court
for the District of New Je rsey (No. 05

- cv

- 2198 ) District Judge: Honorable Garrett E. Brown

_____________
Argued November 17, 2011

Before: FUENTES, CHAGARES

, Circuit Judges , and

POGUE, Judge *

* Hon. Donald C. Pogue, Chief Judge, United States Court of International Trade, sitting by designation.2 (Opinion Filed: April 3, 2012 )

Marc De Leeuw, Esq.
Sullivan & Cromwell
125 Broad Street New York, NY 10004

P. Christine Deruelle, Esq. [ARGUED] Edward Soto, Esq. Weil, Gotshal & Manges
1395 Brickell Avenue
Suite 1200 Miami, FL 33131

Adam N. Saravay, Esq. McCarter & English 100 Mulberry Street Four Gateway Center, 14th Floor Newark, NJ 0710 2

Counsel for Appellants

Eric D. Katz, Esq. [ARGUED] Mazie, Slater, Katz & Freeman 103 Eisenhower Parkway Roseland, NJ 07068

Counsel for Appellee3 OPINION OF THE COURT

FUENTES, Circuit Judge :

Oxford Health Plans, LLC, and Dr. Ivan Sutter are parti es to a Primary Care Physician Agreement , drafted by Oxford, which c ontains a broad ar bitration clause

. Neither
the arbitration clause nor any other provision of the agreement makes express reference to class arbitration.
Nevertheless , when a dispute aro se regarding Oxford‟s alleged failure to make prompt and accurate reimbursement

paymen ts to participating physicians, an arbitrator construed
the broad text of the clause to authorize class arbitration.
Oxford contends that the Supreme Court‟s decision in Stolt

Nielsen S.A. v. AnimalFeeds International Corp. , 130 S. Ct. 1758 (2010), requires vacatur of the award authorizing class
arbitra tion. We disagree, and we will affirm the Order of the District Court denying Oxford‟s motion to vacate the award

.

I

B y their 1998 Primary Care Physician Agreement (the “Agreement”)

, the parties agreed that Sutter would provide primary care health services to members of Oxford‟s managed care network in exchange for compensation at predetermined reimbursement rates. They also agreed to arbitrate their disputes under the A greement by a clause that

states :

No civil action concerning any dispute arising
under this A greement shall be instituted before4 any court, and all such disputes shall be submitted to final and binding ar bitration in New Jersey, pursuant to the Rules of the
American Arbitration Association with one
arbitrator.

(App. 55).

A dispute arose in April 2002, when Sutter accused Oxford of engaging in a practice of improperly denying, underpaying, and delaying re imbursement of physicians‟ claims for the provision of medical services. Sutter filed a complaint on behalf of himself and a class of health care providers against Oxford and other health insurers in New Jersey Superior Court, alleging breach of contract and other violations of New Jersey law

. Oxford moved to compel
arbitration of Sutter‟s claims against it under the Agreement. Sutter opposed the motion, arguing that referral of the class claims to individual arbitration would violate New Jersey public p olicy . H e urg ed the Superior Court either to refuse to enforce the clause or to certify the class before sending the
claims to arbitration. In October 2002, t he Superior Court

gra n ted Oxford‟s motion to compel arbitration and ordered that all procedural issues, including those of class certification, be resolve d by the arbitrator.

The parties commenced arbitration before William L.D. Barrett and submitted to him the question of whether the arbitration clause in their Agreement allows for class
arbitratio n. By memorandum and order dated September 23, 2003, he determined that it does

. Fram ing the question as one of contract construction, the arbitrator turned first to the text
of the arbitration claus e. He described the clause as “ much5 broader even than the usual broad arbitration clause ;” it was “unique in [his ] experience and seem[ed] to be drafted to be as broad as can be.” (App. 47). T he arbitrator thus
determined that the clause‟s first phrase, “ N o civil action concerning any dispute arising under this A greement shall be instituted before any court,” embrace s all conceivable court
action s , including class action s . Because the clause‟s second phrase sends “ all such disputes ” to arbitration, he reasoned
that class disputes must also be arbitrated. T hus, the arbitrator concluded that the clause expressed the parties‟ intent to authorize class arbitration “on its face.” (App. 48).
H e observed that an express carve

- out for class arbitration would be required to negate this reading of the clause. He

m used , however, t hat it would be bizarre for the parties to
have intend ed to make class action impossible in any forum. Since he found the clause unambiguous, the arbitrator did not reach Sutter‟s argument that any ambiguity in the clause
should be constru ed against its drafter, Oxford. The arbitrator subsequently incorporated this clause construction into his Partial Final Class Determination Award, dated March 24,
2005.

In April 2005, Oxford filed a motion to vacate the
award in the District Court , argu ing that the arbitrator had exceeded his powers and manifestly disregarded the law by ordering class arbitration. The District Court denied Oxford‟s motion in October 2005, and a panel of this Court affirmed in February 2007. Sutter v. Oxford Health Plan s, LLC , No. 05

- CV

- 2198, 2005 U.S. Dist. LEXIS 25792 (D.N.J. Oct. 31, 2005), aff’d 227 F. App‟x 1 35 (3d Cir. 2007). The arbitration
thereafter proceeded on a classwide basis.6 This action represents Oxford‟s second foray into
federal court to vacate the aw ard authorizing class arbitration as in excess of the arbitrator‟s powers

. Since Oxford‟ s first unsuccessful attempt at vacatur, the Supreme Court decided
Stolt

- Nielsen S.A. v. AnimalFeeds International Corp.

, 130
S. Ct. 1758 (2010), in which it held that an arbitral panel had exceeded its authority by allowing class arbitration when the parties had reached no agreement on the issue

. See id. at 1775

. Oxford contends that Stolt

- Nielsen controls this case and compels the conclusion that the arbitrator‟s co nstruction of the clause was in excess of his powers. Oxford first moved
the arbitrator for reconsideration of his clause construction award, but the arbitrator distinguished Stolt

- Nielsen and
reaffirmed his construction of the parties‟ clause . Oxford
th en moved the District Court to vacate the arbitrator‟s most

recent award or , in the alternative, to reconsider its own 2005
decision denying vacatur. T he District Court denied Oxford‟s
motion and granted Sutter‟s cross

- motion to confirm the
award

. Sutter v. Oxford Health Plans, LLC , Nos. 05

- CV

2198, 10

- CV

- 4903, 2011 U.S. Dist. LEXIS 17123 (D.N.J. Feb. 22, 2011). Oxford appeals.

II

The District Court exercised diversity jurisdiction over this matter pursuant to 28 U.S.C. § 1332. We have jurisdiction ov er Oxford‟s appeal under the Federal Arbitration Act, 9 U.S.C. § 16(a)(1)(D) (“An appeal may be
taken from

. . . an order

. . . confirming or denying
confirmation of an award or partial award

. ” ). 1

1 Anomalously, the Federal Arbitration Act creates a body of federal substantive law without creating any independent7 On appeal from a district court‟s ruling on a motion to

co nfirm or vacate an arbitration award, we review its legal conclusions de novo and its factual findings for clear error. First Options of Chicago, Inc. v. Kaplan , 514 U.S. 938, 947

- 48 (1995), aff’g 19 F.3d 1503, 1509 (3d Cir. 1994); China
Minmetals Materia ls Imp. & Exp. Co. v. Chi Mei Corp. , 334 F.3d 274, 278

- 79 (3d Cir. 2003).

A more deferential standard of review applies to the
arbitration award itself. We do not entertain claims that an arbitrator has made factual or legal errors. Rather, m indful of

t he strong federal policy in favor of commercial arbitration,

we begin with the presumption that the award is enforceable.
S ee Moses H. Cone Memorial Hosp. v. Mercury Const. Corp.

, 460 U.S. 1, 24

- 25 (1983). An award may be vacated only

upon one of the fou r narrow grounds enumerated in the
Federal Arbitration Act :

(1) where the award was procured by corruption, fraud, or undue means;

(2) where there was evident partiality or corruption in the arbitrators, or either of them;

federal

- question jurisdiction. Moses H. Cone Memorial Hosp. v. Mercury Const. Corp. , 460 U.S. 1, 25 n.32 (1983). It does, however, confer appellate jurisdiction, including over interlocutory judicial orders. See 9 U.S.C. § 16(a). In a court of competent jurisdiction, assuming ripeness, interlocutory arbitral awards on the availability of class arbitration are
reviewable under the Act. See Stolt

- Nielsen , 130 S. Ct. at
1766

- 67 & n.2.8 (3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or

(4) wh ere the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter
submitted was not made.

9 U.S.C. § 10(a). These grounds are exclus ive and may not be supplemented by contract

. Ha ll St. Assocs. , L.L.C. v. Mattel, Inc. , 552 U.S. 576, 584 (2008)

, overruling Roadway Package Sys. , Inc. v. Kayser , 257 F.3d 287, 288 (3d Cir. 2001)

. In sum, when parties agree to resolve their disputes before an arbitrator without involving the courts, th e courts will enforce the bargains implicit in such agreements by enforcing arbitration awards absent a reason to doubt the authority or integrity of the arbitral forum. See id. at 586 (characterizing the exclusive statutory bases for vacatur as “egregiou s departures from the parties‟ agreed

- upon

ar bitration ” ).

The basis for vacatur asserted in this case, § 10(a)(4)
of the Federal Arbitration Act

, permits district courts to

vacate award s when arbitrato rs exceed their powers.

“ Arbitration under the Act is a matter of consent , not coercion, and parties are generally free to structure their arbitration agreements as they see fit.” Volt Info. Scis. , Inc. v.9 Bd. of Trustees of Leland Stanford Junior Univ. , 4 89 U.S. 468, 479 (1989). By contractually restricti ng the issues they
will arbitrate , the individuals with whom they will arbitrate,
and the arbitration procedure s that will govern , parties to an arbitration agreement may place limits upon the arbitrator‟s

powers that are enforceable by the courts. See Pu leo v. Chase Bank USA, N.A. , 605 F.3d 172, 181 (3d Cir. 2010) (en banc). An arbitrator overstep s these limits, and subject s his award to judicial vacatur under § 10(a)(4), when he decides an issue not submitted to him, grants relief in a form that cannot be rationally derived from the parties‟ agreement and
submissions

, or issues an award that is so completely
irrational that it lacks support altogether

. Ario v. Underwriting Members of Syndicate 53 at Lloyds for the 1998 Year of Account , 618 F.3d 277, 295

- 96 (3d Cir. 2010) (citing Mut. Fire, Marine & Inland Ins. Co. v. Norad Reins. Co.

, 868 F.2d 52, 56 (3d Cir. 1989))

. In other words, the task of an arbitrator is to interpret and enforce a contract. When he makes a good faith attempt to do so, even serio us errors of law or fact will not subject his award to vacatur. See Brentwood Med. Assocs. v. United Mine Workers of Am. , 396
F.3d 237 , 243 (3d Cir. 2005) (upholding an arbitration award despite the arbitrator‟s inexplicable reliance on language not
found in the relevant agreement). But w hen the arbitrator “strays from interpretation and application of the agreement and effectively „dispenses his own brand of industrial justice,‟” he exceeds his powers and his award will be
unenforceable. Stolt

- Nielsen

, 130 S. Ct. at 1767 (quoting Major League Baseball Players Ass ’ n. v. Garvey , 532 U.S. 504, 509 (2001) (per curiam) (quoting Steelworkers v. Enterprise Wheel & Car Corp. , 363 U.S. 593, 597 (1960))). 2

2 Like the Supreme Court, this Court will refer to the fede ral10 A n arbitrator may exceed his powers by ordering class

ar bitration without authorization

. In Stolt

- Nielsen , the Supreme Court held that arbitrators may not infer parties‟ consent to class arbitration procedures solely from the fact of their agreement to arbitrate. 130 S. Ct. at 1775. Therefore,
an arbitrator lacks the power to order class arbitration unless there is a contractual basis for concluding that the parties agreed to that procedure

. Id.

III

Stolt

- Nielsen arose out of a Department of Justice investigation which revealed that Stolt

- Nielsen and other shipping companies were engaged in an illegal price fixing conspiracy. Id. at 1765. AnimalFeeds and other customers of the shipping companies brought class action antitrust
lawsuits

, which were consolidated by the Judicial Panel on Multidistrict Litigat ion

. Id. AnimalFeeds ‟ suit was subsequently referred to arbitration on the basis of an
arbitration clause in the “ Vegoilvoy ” charter party, a standard

common law developed under Textile Workers Union of Am. v. Lincoln Mills of Ala. , 353 U.S. 448, 456

- 57 (1957)

, for judicial review of labor arbitration awards under the Labor Management Relations Act, 29 U.S.C. § 185, to elaborate the meaning of the Fe deral Arbitration Act‟s statutory grounds
for vacatur. See Swift Indus., Inc. v. Botany Indus., Inc. , 466
F.2d 1 125, 1130 & n.11 (3d Cir. 1972); cf. Hall St. , 552 U.S. at 585 (suggesting without deciding that the judicially created manifest disregard of l aw ground for vacatur may be properly considered only as a judicial gloss on the statutory grounds);
Stolt

- Nielsen , 130 S. Ct. at 1768 n.3 (same).11 form shipping contract that AnimalFeeds had selected. Id. at 1764

- 65. When AnimalFeeds then sought to proceed in
arbitration on a classwide basis , the parties agreed to submit the issue of class arbitration to a panel of three arbitrators. Id.
at 1765. After hearing argument and testimony , t he arbitrators concluded that class arbitration was permitted. Id.
at 1766.

Before the arbitrators, t he parties stipulated that the
arbitration clause in the Vegoilvoy charter party was “silent”
wi th respect to class arbitration

, in the sense that they had not reached any agreement on that issue. Id. at 176 6 . “Cou nsel for AnimalFeeds explained to the arbitration panel that the term „silent‟ did not simply mean that the clause made no express reference to class arbitration. Rather, he said, „all parties agree that when a contract is silent on an issue there‟s
been no agreement that has been reached on that issue.‟” Id.
Thus , the arbitration clause was silent but “not ambiguous so
as to call for parol evidence ” because “t he parties were in complete agreement regarding their intent.” Id. at 1770 (internal quotation marks omitted). T he arbitrators were bound to conclude that the parties intended neither to authorize nor to preclude class arbitration. See id.

The parties‟ stipulation left the arbitrators unable to apply traditional principles of contract interpreta tion. It obviously “left no room for an inquiry regarding the parties‟ intent, and any inquiry into that settled question would have been outside the panel‟s assigned task.” Id. Nor could the panel construe the text of the arbitration clause because, in light of the parties‟ stipulation, “the particular wording of the charter party was quite beside the point.” Id.12 “Because the parties agreed their agreement was „silent‟ in the sense that they had not reached any agreement
on the issue of class arbitr ation, the arbitrators‟ proper task was to identify the rule of law that governs in that situation.”
Id. at 1768 ( identifying the Federal Arbitration Act, federal maritime law, and New York law as possib le sources of a governing rule ). Instead, the panel based its decision that class arbitration was permitted on the parties‟ failure to contractually preclude the procedure and on other arbitral
decisions construing other clauses to allow class arbitration.
Id. In so doing, the Supreme Court held, the arb itrators impermissibly assumed the power of a common law court to
fashion a rule of decision

. Id. at 1769 . By doing so, rather than interpreting the contract under the governing law, the arbitrators exceeded their powers within the meaning of § 10(a)(4) of the Federal Arbitration Act. Id. at 1770.

The Supreme Court held that “a party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so.” Id. at 1775 (emphasis in original). The Court therefore faulted the arbitrators for imposing class arbitration in the absence of any agreement on the issue and on the basis that the parties had not intended to preclude class
arbitration. Id. Although parties may implicitly authorize arbitrators to adopt necessary procedures, the Court held that “[a]n implicit agreement to authorize class

- action
arbitration

. . . is not a term that the arbitrator may infer solely from the fact of the parties‟ agreement to arbitrate

. ” Id. “[ T] he differences between bilateral and class

- action arbitration are too great for arbitrators to presume

. . . that the parties‟ mere silence on the issue of class

- action arbitration constitutes consent to resolve their disputes in class13 proceedings.” Id. at 1776 ; see also AT&T Mobility LLC v. Concepcion , 131 S. Ct. 1740, 1752 (2011) ( further articulating the “fundamental” differences between bilateral arbitration and class arbitration). 3

Stolt

- Nielsen did not establish a bright line rule that
class arbit ration is allowed only under an arbitration agreement that incan ts “class arbitration” or otherwise expressly provides for aggregate procedures

. Stolt

- Nielsen

, 130 S. Ct. at 1776 n.10; Jock v . Sterling Jewelers Inc. , 646 F.3d 113, 124 (2d Cir. 2011) (hol ding that an arbitrator did not exceed her powers by ruling that class arbitration was allowed under an agreement lacking an express class provision). T he Court underscored this point, writing

, “We have no occasion to decide what contractual basis may

3 In AT&T Mobility LLC v. Concepcion , the Supreme Court held that the Federal Arbitration Act preempts a Cali fornia common law rule invalidating class waivers in arbitration
clauses as unconscionable. See 131 S. Ct. 1740 , 1753 (2011).
The Court found its decision in Stolt

- Nielsen to be “instructive.” Id. at 1750. Because class arbitration necessarily sacrific es the informality, speed, and cost savings of arbitration and increases the stakes without increasing the level of judicial scrutiny available under the Federal Arbitration Act, the Court found “it hard to believe that defendants would bet the company wit h no effective means of review, and even harder to believe that Congress would have intended to allow state courts to force such a decision.” Id. at 1752. Recognizing that parties could agree to class arbitration if they so chose, the Court held that thi s procedure may not be required by state law. Id. at 1752

- 53.14 sup port a finding that the parties agreed to authorize class

action arbitration. Here, as noted, the parties stipulated that there was „no agreement‟ on the issue of class

- action arbitration.” 130 S. Ct. at 1776 n.10 ; see also id. at 1783 (Ginsburg, J., dis senting) (“[T]he Court does not insist on express consent to class arbitration.”).

Instead, Stolt

- Nielsen established a default rule under the Federal Arbitration Act: “ [A] party may not be compelled
under the FAA to submit to class arbitration unless the re is a contractual basis for concluding that the party agreed to do
so.” Id. at 1775 (emphasis in original). Absent a contractual
basis for finding that the parties agreed to class arbitration, an arbitration award ordering that procedure exceeds the

ar bitrator‟s powers and will be subject to vacatur under § 10(a)(4). 4

I V

Oxford argues that the c la use c onstruction a ward at issue in this case should be vacated because the arbitrator

4 Thus, the District Court misstated the law when it wrote that
the arbitrator must decide whether the arbitration clause “forbids” class arbitration. See Sutter v. Oxford Health Plans,
LLC

, 2011 U.S Dist. LEXIS 17123

, at *12 (quoting Vilches v.
The Trav elers Cos. , 413 F . App‟x 487, 492 (3d Cir. 2011)). It
is evident from the District Court‟s discussion, however, that it properly understood that Stolt

- Nielsen allows class arbitration only whe re the parties intend to authorize it, as the arbitrator found they did in this case. In any event, upon de novo review under the appropriate standard, we conclude that
the arbitration award stands.15 exceeded his powers under Stolt

- Nielsen

. According to Oxford, “the ar bitrator found that the arbitration clause
between Sutter and Oxford is silent on the issue of class
arbitration , but he went on to conclude that the clause permits class arbitration in light of its breadth and the absence of a
class arbitration exclusion. ” ( Appellant‟s Br. at 14). Oxford charges that the arbitrator imposed his own default rule, in derogation of Stolt

- Nielsen and New Jersey law, based on his

ow n conceptions of public policy.

As an initial matter, we reject Oxford‟s attempt to cast
this case in the mold of Stolt

- Nielsen

. The arbitration clause
in its Agreement does not refer to class arbitration. Yet it is

not “ silent ” in the way that the Vegoilvoy charter party was

“ silent ” in Stolt

- Nielsen , and Oxford equivocates when it suggests othe rwise. 5 No stipulation between Oxford and

5 Oxford seems to suggest that an arbitration provision is “silent” whenever the words “class arbitration” are not written into the text of the arbitration clause. This rule finds no support in Stolt

- Nielsen . It would effectively impose on all contracting parties an obligation to use the words “class
arbitrat ion” to signal their intention to authorize class
arbitration. But Stolt

- Nielsen did not purport to restrict the freedom of contracting parties in this way. Rather, it repeatedly emphasized that the fundamental duty of the
arbitrator and t he courts to ef fectuate parties‟ intentions.
Stolt

- Nielsen

, 130 S. Ct. at 1773

- 74. Oxford‟ s approach would cabin the freedom of contracting parties, safeguarded by the Federal Arbitration Act, to structure their arbitration provisions as they see fit. See id. at 17 74 (“ Underscoring the consensual nature of private dispute resolut ion, we have held that parties are generally free to structure their arbitrat ion16 Sutter is conclusive of the parties‟ intent and, indeed, the parties dispute whether or not they intended to authorize class
arbitration. Therefore , the arbitrator in this case was not constrained to conclude tha t the parties did not intend to
authorize class arbitration or, on the other hand, to identify a contrary default rule of New Jersey law. Cf. Stolt

- Nielsen

, 130 S. Ct. at 1769

- 70

. His decision to order class arbitration is within his authority so long as it stands on a contractual
basis. See id. at 1775.

As Oxford concedes, t he arbitrator did articulate a contractual basis for his decision to order class arbitration. Appropriately, the arbitrator made first resort to the t ext of the
arbitration clause :

No civil action concerning any dispute arising
under this A greement shall be instituted before any court, and all such disputes shall be submitted to final and binding arbitration in New Jersey, pursuant to the Rules of the
American Arbitration Associat ion with one
arbitrator.

(App. 55). He reasoned that the clause‟s first phrase, “N o civil action concerning any dispute arising under this
A greement shall be instituted before any court,” is broad enough to include class actions. Thus, its second phrase , “and all such disputes shall be submitted to final and binding arbitration in New Jersey, pursuant to the Rules of the American Arbitration Association with one arbitrator,” sends

agreements as they see fit.” ) (internal quotation marks and citation omitted)

.17 all conceivable civil actions

— including class actions

— to arbitration. In other words, the phrase “no civil action

. . . shall be instituted in any court” mean t that a class action may not be instituted in a court of law. “All such disputes” must go to arbitration.

Oxford attacks the contractual basis for the arbitrator‟s
dec ision by asserting that the arbitrator‟s purported examination of the parties‟ intent was prete xt for the imposition of his policy preferences. See Stolt

- Nielsen , 130
S. Ct. at 1769

- 70 (concluding that the arbitral panel had impermissibly imposed its pref erred policy notwithstanding its references to the parties ‟ intent, where the parties stipulated that they had formed no intent). According to Oxford, if the arbitrator were actually desirous of determining the parties‟ intent, he w ould have sought it not in the text of their agreement to arbitrate but instead in their briefing before the New Jersey Superior Court. In that forum, Sutter opposed enforcement of the arbitration agreement on the ground that it would send the disp ute to individual arbitration, which, he argued, would be contrary to New Jersey public policy. Oxford argues that Sutter‟s submissions to the Superior Court, together with Oxford‟s own representations that its Agreement did not contemplate arbitration on a classwide basis, were tanta mount to a stipulation that the parties did not
intend to authorize class arbitration

. Cf. id. at 1766

.

Oxford‟s argument lacks force because Sutter‟s litigation position in the Superior Court is not conclusive, or

even particularly probative, of the me aning of a clause drafted solely by Oxford. Cf. id. at 1775 ( relying on the stipulation of the sophisticated business entity that had selected the charter party). We observe, further, that Sutter‟s litigation position18 was not uniform: Sutter alternativel y urged the Superior Court to certify the class before sending the claims to arbitration, and he argued before the arbitrator that the clause could be construed to affirmatively authorize class arbitration.
Without a conclusive statement of the parties‟ i ntent or clear evidence of arbitral overreaching, we must conclude that the arbitrator performed his duty appropriately and endeavored to give effect to the parties‟ intent. In this light, Oxford‟s allegations of pretext are simply dressed

- up arguments th at the arbitrator interpreted its agreement erroneously.

The remainder of Oxford‟s arguments a re similarly uncognizable claims of factual and legal error

. In particular, Oxford argues that the arbitrator improperly inferred the parties‟ intent to author ize class arbitration from the breadth of the parties‟ arbitration agreement and from its failure to preclude class arbitration

. In his c lause c onstruction a ward, the arbitrator remarked that the parties‟ arbitration clause was unique in its breadth. Con struing the broad text and structure
of the clause , he concluded that the parties affirmatively intended to authorize arbitration on a classwide basis. Then, given his construction of the clause, the arbitrator noted that an express exception for class ar bitration would be required to carve out and prohibit class arbitration. Oxford submits that the arbitrator thereby relied on two grounds that Stolt

- Nielsen had expressly proscribed.

The arbitrator unquestionably relied on the breadth of
the arbitration agreement, but Stolt

- Nielsen does not proscribe
such reliance. Rather, it acknowledges the relevance of an arbitration agreement‟s breadth to the determination of
whether it authorizes class arbitration. In Stolt

- Nielsen , the Supreme Court concluded tha t the arbitration panel “imposed19 its own conception of sound policy” in derogation of its duty to interpret the arbitration agreement and apply the law. 130
S. Ct. at 1769. T he Court acknowledged indications that were arguably contrary to its conclusion: T he panel had referred to the parties‟ intent and had commented on the breadth of the arbitration agreement. Id. at 1770. But the Court nonetheless
held that these references and comments could not overcome the parties‟ stipulation that they had reached no agreement on the issue of class arbitration. In light of the parties‟ stipulation, “the panel had no occasion to ascertain the parties‟ intention” and “the particular wording of the charter party was quite beside the point.” Id. (internal quotation

m arks omitted). The lesson from this discussion is that where, as here, the parties‟ intent with respect to class
arbitration is in question , the breadth of their arbitration agreement is relevant to the resolution of that question.

Stolt

- Nielsen does pr ohibit an arbitrator from inferring parties‟ consen t to class arbitration solely from their failure to preclude that procedure , but the arbitrator did not draw the proscribed inference in this case. Rather

, the arbitrator
construed the text of the arbitra tion agreement to authorize and require class arbitration. Then he observed that an

express carve

- out for class arbitration would have made it unavailable even under the clause‟s otherwise broad language. A s the arbitrator later articulated when he revis ited his construction of the clause in light of Stolt

- Nielsen , th e lack of an express exclusion was merely corroborative of his primary holding that the parties‟ clau se authorized class arbitration; it was not the basis of that holding. T h us, th e arbitrat or did not impermissibly infer the parties‟ intent to authorize class arbitration from their failure to preclude it.20 We are satisfied that the arbitrator endeavored to i nterpret the parties‟ a greement within the bounds of the law

, and we cannot say that his interpretation was totally
irrational. Nothing more is required under § 10(a)(4) of the
Federal Arbitration Act.

V

Because the arbitrator did not exceed his powers by construing the parties‟ arbitration agreement to authorize class arbitration, w e will affirm the O rder of the District
Court.