#### Laryssa JOCK, Jacquelyn Boyle, Christy Chadwick, Lisa Follett, Maria House, Denise Maddox, Lisa McConnell, Gloria Pagan, Judy Reed, Linda Rhodes, Khristina Rodriguez, Nina Shahmirzadi, Leighla Smith, Marie Wolf, Kelly Contreras, Dawn Souto-Coons, Plaintiffs-Counter-Defendants-Appellees, v. STERLING JEWELERS, INC., Defendant-Counter-Claimant-Appellant.

15-3947

United States Court of Appeals, Second Circuit.

July 24, 2017

*16For Defendant-Counter-Claimant-Appellant: Gerald L. Maatman Jr. (David Ben-net Rosse Lorie E. Almon, Daniel B. Klein, Seyfarth Shaw LLP, New York, NY; Jeffrey S. Klein, Weil, Gotshal & Manges LLP, New York, NY, on the brief), Seyfarth Shaw LLP, New York, NY.

For Plaintiffs-Counter-Defendants-Ap-pellees: Joseph M. Sellers (Kaplana Kota-gal, Shaylyn Cochran, Cohen Milstein Sellers & Toll, PLLC, Washington, D.C.; Sam J. Smith, Loren B. Donnell, Burr & Smith LLP, St. Petersburg, FL; Thomas A. Warren, Thomas A. Warren Law Offices, P.L., Tallahassee, FL, on the brief), Cohen Mil-stein Sellers & Toll, PLLC, Washington, D.C.

Present: Peter W. Hall, Debra Ann Livingston, Circuit Judges, Nicholas G. Garaufis, District Judge.*

*

Judge Nicholas G. Garaufis, of the United States District Court for the Eastern District of New York, sitting by designation.

SUMMARY ORDER

.Defendant-Counter-Claimant-Appellant Sterling Jewelers Inc. (“Sterling”) appeals the order of the district court confirming in part the arbitrator’s class certification award. “We review a district court’s deci*17sion to confirm an arbitration award *de novo*to the extent it turns on legal questions, and we review any findings of fact for clear error,” *Duferco Int’l Steel Trading v. T. Klaveness Shipping A/S,*333 F.3d 383, 388 (2d Cir. 2003) (quoting *Westerbeke Corp. v. Daihatsu Motor Co., Ltd.,*304 F.3d 200, 208 (2d Cir. 2002)). As is relevant here, we may vacate an arbitration award “where the arbitrator[ ] exceeded [her] 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)(4). Our focus in such cases is on “whether the arbitrator[] had the power, based on the parties’ submission or the arbitration agreement, to reach a certain issue, not whether the arbitrators correctly decided that issue.” *DiRussa v. Dean Witter Reynolds, Inc.,*121 F.3d 818, 824 (2d Cir. 1997). We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

The narrow question presented here is whether the arbitrator had the authority to certify a class that included absent class members, *ie.,*employees other than the named plaintiffs and those who have opted into the class. As the district court explained, it is law of the case that “the issue of whether the agreement permitted class arbitration was squarely presented to the arbitrator.” *Jock v. Sterling Jewelers Inc.,*646 F.3d 113, 124 (2d Cir. 2011) *(“Jock*I”). Our decision in *Jock I,*however, did not squarely address whether the arbitrator had the power to bind absent class members to class arbitration given that they, unlike the parties here, never consented to the arbitrator determining whether class arbitration was permissible under the agreement in first place. *See Oxford Health Plans LLC v. Sutter,*569 U.S. 564, 133 S.Ct. 2064, 2066, 186 L.Ed.2d 113 (2013) (“Class arbitration is a matter of consent: An arbitrator may employ class procedures only if the parties have authorized them.”); *accord Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp.,*559 U.S. 662, 681-82, 130 S.Ct. 1758, 176 L.Ed.2d 605 (2010); *cf. Oxford,*133 S.Ct. at 2068 n.2 (indicating that the availability of class arbitration may be a “question of arbitrability” that is “presumptively for courts to decide”); *Nationwide Mut. Ins. Co. v. Home Ins. Co.,*330 F.3d 843, 846 (6th Cir. 2003) (“An arbitration panel may not determine the rights or obligations of non-parties to the arbitration.”). The district court accordingly erred in finding that law of the case conclusively resolved this question. *See Jock v. Sterling Jewelers, Inc.,*143 F.Supp.3d 127, 129 (S.D.N.Y. 2015).

The Supreme Court’s decision in *Oxford Health Plans*does not suggest otherwise. In that case, the Court wrestled solely with the question of whether an arbitrator to whom the parties had submitted the issue acted within his authority in finding that a contract provided for class arbitration. *See*133 S.Ct. at 2066. This issue is analogous to that addressed by this Court in *Jock I. Oxford Health Plans*does not speak, however, to whether an arbitrator in that scenario *also*has the authority to certify a class containing absent class members.

The district court suggested that Justice Alito’s concurrence in *Oxford Health Plans*(joined by Justice Thomas) provides additional support for its conclusion here, which is based principally (but erroneously) on law of the case. *See Jock,*143 F.Supp.3d at 129 n.2. Justice Alito did indeed join the majority opinion in *Oxford Health Plans,*despite his doubt as to whether absent class members would — or should — ultimately be bound by the results of arbitration. *See id.*at 2071-72 (Alito, *J.,*concurring). Again, however, he joined an opinion addressing only whether, given Oxford Health Plans’ concession that it had consented to the arbitrator deciding *18whether the parties’ agreement authorized class arbitration, “the availability of class arbitration [was] a question the arbitrator should decide.” *Id.*at 2072. In doing so, moreover, he indicated that “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 classwide basis which arbitration procedures are to be used.” *Id.*(emphasis added). Thus, Justice Alito did not directly address the issue that is pertinent here: whether an arbitrator, who may decide the question whether an arbitration agreement provides for class procedures because the parties “squarely presented” it for decision, may thereafter purport to bind *non-parties*to class procedures on this basis.

We therefore vacate and remand for further consideration of whether the arbitrator exceeded her authority in certifying a class that contained absent class members who have not opted in.

5⁄8 3⁄8 5⁄8

For the foregoing reasons, we VACATE the district court’s judgment, and we REMAND the case for further proceedings consistent with this order.