MEMORANDUM AND ORDER
JOSEPH F. BIANCO, District Judge:
Plaintiffs Joseph Guida ("Guida"), Michael Esposito ("Esposito"), Daniel McGorman ("McGorman"), and Jahn Ramirez ("Ramirez") (collectively "plaintiffs"), bring this putative class action on behalf of themselves, and on behalf of individuals similarly situated, against Home Savings of America, Inc. ("Home Savings" or "defendant"), David Cirocco, and Gregory Caputo (collectively "defendants"), asserting claims under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq., and related New York state wage and labor laws.
A. The Underlying Facts
The following facts are taken from the Complaint ("Compl."), the Declaration of Greg Reniere ("Reniere Decl.") filed in support of defendant's motion, and the exhibits attached thereto.
Plaintiffs are former employees of Home Savings, a provider of mortgage banking services. (Compl. ¶¶ 4-6; Reniere Decl. ¶¶ 2-9.) All of the plaintiffs signed an Alternative Dispute Resolution Agreement as well as a Compensation Agreement. (Reniere Decl. ¶¶ 2-9.) The terms of the Alternative Dispute Resolution Agreement are identical for all of the plaintiffs. The following are relevant portions from the Alternative Dispute Resolution Agreements:
(Reniere Decl. Ex. A (signed by Guida), Ex. C (signed by Esposito), Ex. E. (signed by McGorman), Ex. G (signed by Ramirez).)
It is undisputed by the parties that the Alternative Dispute Resolution Agreements do not explicitly mention class arbitration. Defendant does not contest that the Employee Dispute Resolution Rules of the American Arbitration Association include rules relating to class arbitration.
B. Procedural History
Plaintiffs filed the complaint on January 3, 2011. Defendant Home Savings filed a motion to compel arbitration and dismiss the complaint on March 15, 2011. On March 29, 2011, the Court set a pre-motion telephone conference to address defendant's filing of the motion. The conference was held on April 13, 2011. Plaintiffs filed their response to defendant's motion on May 17, 2011. Defendant filed its reply on May 27, 2011. Oral argument took place on June 16, 2011. Defendant submitted a letter to the Court dated June 22, 2011, to address issues raised at oral argument. On June 23, 2011, the Court received plaintiffs' letter in response. The Court has fully considered the submissions and arguments of the parties.
II. STANDARD OF REVIEW
The Court must evaluate a motion to compel arbitration, pursuant to the FAA, under a standard similar to the standard for a summary judgment motion. See Bensadoun v. Jobe-Riat, 316 F.3d 171, 175 (2d Cir.2003) (citing Par-Knit Mills, Inc. v. Stockbridge Fabrics Co., 636 F.2d 51, 54 n. 9 (3d Cir.1980)); Doctor's Assocs. v. Distajo, 944 F.Supp. 1010, 1014 (D.Conn.1996), aff'd, 107 F.3d 126 (2d Cir. 1997); see also Mazza Consulting Grp., Inc. v. Canam Steel Corp., No. 08-CV-38 (NGG), 2008 WL 1809313, at *1, 2008 U.S. Dist. LEXIS 32670, at *3 (E.D.N.Y. Apr. 21, 2008). "When such a motion is opposed on the ground that no agreement to arbitrate has been made between the parties, a district court should give the opposing party the benefit of all reasonable doubts and inferences that may arise." Mazza Consulting Grp., Inc., 2008 WL 1809313, at *1, 2008 U.S. Dist. LEXIS 32670, at *3. "If there is an issue of fact as to the making of the agreement for arbitration, then a trial is necessary." Bensadoun, 316 F.3d at 175 (citing 9 U.S.C. § 4).
The plaintiffs and Home Savings agree that there is a valid agreement to arbitrate and that it applies to plaintiffs' FLSA and state law claims. Thus, the parties agree that this Court should compel arbitration in this case. The gravamen of the dispute is whether or not the arbitration can proceed on a class basis and whether it is for this Court or the arbitrator to decide the issue. As set forth below, the Court concludes that this dispute should be arbitrated, but that it is for the arbitrator to decide in the first instance whether or not the arbitration can proceed on a class basis. Furthermore, the Court stays this action pending the resolution of the arbitration.
A. Arbitration on Class Basis
For the reasons set forth below, the Court concludes that where, as here, there is disagreement over whether the agreement to arbitrate permits class arbitration and the agreement does not explicitly address this issue, the ability to proceed on a class basis is a procedural question involving contract interpretation and is therefore for the arbitrator to decide in the first instance.
1. Legal Standard
"The question whether the parties have submitted a particular dispute to arbitration, i.e., the question of arbitrability, is an issue 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) (quotation marks omitted). What is deemed a question of arbitrability has been limited to
Id. at 83-84, 123 S.Ct. 588. Disputes about whether the parties are bound by the arbitration agreement, or if a particular controversy falls under the scope of an arbitration agreement, are both the type of gateway issues that go to arbitrability and which are for courts to decide. Id. at 84, 123 S.Ct. 588. On the other hand, "procedural questions which grow out of the dispute and bear on its final disposition are presumptively not for the judge, but for an arbitrator, to decide." Id. (emphasis in original) (quotation marks omitted). Issues of waiver, delay, "or a like defense" are the types of procedural questions that are left for the arbitrator. Id.
Essentially, the parties dispute whether the ability to proceed on a class basis is more akin to a procedural question or, instead, to an issue of arbitrability. Plaintiffs assert that it is a procedural issue, relying on the Supreme Court's plurality opinion in Green Tree Financial Corporation v. Bazzle, 539 U.S. 444, 123 S.Ct. 2402, 156 L.Ed.2d 414 (2003). Home Savings, on the other hand, argues that Bazzle has been undermined by the Supreme Court's more recent decision in Stolt-Nielsen S.A. v. AnimalFeeds International Corporation, ___ U.S. ___, 130 S.Ct. 1758, 176 L.Ed.2d 605 (2010), which allegedly suggests that whether or not an arbitration can proceed on a class basis is an arbitrability issue that should be decided by the courts. This Court agrees with plaintiffs. Although Bazzle is solely a plurality opinion, it is nevertheless instructive. Furthermore, many courts have continued to conclude subsequent to the Supreme Court's decision in Stolt-Nielsen, as does this Court, that the ability to proceed as a class in an arbitration proceeding is a procedural question for the arbitrator to decide.
As an initial matter, Stolt-Nielsen is consistent with Bazzle. In Bazzle, the parties "agreed to submit to the arbitrator all disputes, claims, or controversies arising from or relating to this contract or the relationships which result from this contract[,]" but disputed whether class arbitration was permitted under the agreement, which did not explicitly address the issue. 539 U.S. at 447-48, 451-52, 123 S.Ct. 2402 (emphasis in original) (quotation marks omitted). The Supreme Court concluded that "the dispute about what the arbitration contract in each case means (i.e., whether it forbids the use of class arbitration procedures) is a dispute relating to this contract and the resulting relationships." Id. at 451, 123 S.Ct. 2402 (citations and quotation marks omitted). The plurality opinion in Bazzle further elaborated that "whether the contracts forbid class arbitration ... concerns neither the validity of the arbitration clause nor its applicability to the underlying dispute between the parties." Id. at 452, 123 S.Ct. 2402. Thus, it was a procedural question concerning "contract interpretation and arbitration procedures. Arbitrators are well situated to answer that question." Id. at 453, 123 S.Ct. 2402. In Stolt-Nielsen, the Supreme Court did not reach the issue of who must decide whether a class can arbitrate a dispute. However, the Court addressed Bazzle in dicta as follows:
This Court concludes, in light of Stolt-Nielsen and Bazzle, that the ability of a class to arbitrate a dispute where the parties contest whether the agreement to arbitrate is silent or ambiguous on the issue is a procedural question that is for the arbitrator to decide.
Id. at 492 n. 3. The Third Circuit concluded that the ability of the plaintiffs to proceed on a class basis in arbitration was essentially a question of "what kind of arbitration proceeding the parties agreed to[,]" id. at 492 (emphasis in original) (citing Bazzle), and went on to conclude that "[w]here contractual silence is implicated, the arbitrator and not a court should decide whether a contract was indeed silent on the issue of class arbitration, and whether a contract with an arbitration clause forbids class arbitration." Id. at 492 (quotation marks omitted) (citing Stolt-Nielsen, 130 S.Ct. at 1771-72, describing the plurality opinion in Bazzle). In Vilches, the agreement in question "did not expressly reference class or collective arbitration or any waiver of the same." Id. at 489. The parties debated whether a revised arbitration policy including a class arbitration waiver applied to plaintiffs but agreed that plaintiffs' causes of action alleged in the complaint otherwise fell under the purview of the arbitration agreement. Id. at 491, 494. The court in Vilches referred the "questions of whether class arbitration was agreed upon to the arbitrator." Id. This Court similarly concludes that Stolt-Nielsen and Bazzle are reconcilable and that arbitrating on a class basis is a procedural question that is for the arbitrators to decide in accordance with the Supreme Court's analysis in Stolt-Nielsen, which provides a framework for the arbitrator's analysis of the issue.
Nor is Vilches alone in its conclusion. There are a number of cases in addition to Vilches in which courts have concluded, subsequent to Stolt-Nielsen, that the ability of plaintiffs to arbitrate on a class basis is an issue to be determined by the arbitrator. See, e.g., Aracri v. Dillard's Inc., No. 1:10cv253, 2011 WL 1388613, at *4 (S.D.Ohio Mar. 29, 2011) (concluding that "it is not for this Court, but for an arbitrator to decide whether class arbitration is forbidden under the Arbitration Agreement and Dillard's Rules of Arbitration" where the arbitration agreement did not explicitly mention class arbitration but the parties contested whether Dillard's Rules, to which all arbitration claims were subject, provided for class arbitration); Smith v. The Cheesecake Factory Restaurants, Inc., No. 3:06-00829, 2010 WL 4789947, at *2, 2010 U.S. Dist. LEXIS 121930, at *7 (M.D.Tenn. Nov. 16, 2010) (concluding that "whether the parties agreed to class arbitration is to be resolved by the arbitrator[,]" citing Stolt-Nielsen and Bazzle); Fisher v. General Steel Domestic Sales, LLC, No. 10-cv-1509-WYD-BNB, 2010 WL 3791181, at *2, 2010 U.S. Dist. LEXIS
At oral argument, in addition to Stolt-Nielsen, defendant relied on the Supreme Court's decision in AT & T Mobility LLC v. Concepcion to argue that the ability to arbitrate on a class basis is not a procedural issue. ___ U.S. ___, 131 S.Ct. 1740, 179 L.Ed.2d 742 (2011). However, defendant's reliance on Concepcion is misplaced. In Concepcion, the Supreme Court was not addressing the threshold issue of who should get to decide whether the arbitration could proceed on a class basis. Instead, the Supreme Court decided that a California rule allowing consumers to demand class arbitration despite any agreement stating otherwise was inconsistent with the FAA. 131 S.Ct. at 1750-51. In Concepcion, the Supreme Court essentially stated that class arbitration was disfavored
131 S.Ct. at 1751-52 (emphasis in original) (citations omitted). It is apparent that the Supreme Court simply intended to say that arbitration on a class basis is not a preferred method to proceed and should not be inferred lightly from a contract. According to Concepcion, the procedural requirements necessary to safeguard the interests of an entire class are best carried out in a court rather than arbitration setting. However, nowhere did the Supreme Court suggest that it was for the courts to decide whether the parties agreed to arbitrate on a class basis. Furthermore, courts have relied on Bazzle even after Concepcion was issued. See, e.g., Soto-Fonalledas v. Ritz-Carlton San Juan Hotel Spa & Casino, 640 F.3d 471, 476-77 (1st Cir.2011) (referring to Concepcion and citing Bazzle in support of the court's conclusion that where "the party's claim turns on a construction of ambiguous terms of the agreement, the challenge does not present a question of arbitrability to be decided by a court, but rather an issue of contract interpretation to be resolved in the first instance by an arbitrator" so that it was for the arbitrator to decide whether the scope of the remedies permitted under the agreement in question included all remedies available under federal law (quotation marks omitted)).
In sum, the Court concludes that the arbitration panel will decide whether or not the plaintiffs in this case can proceed on a class basis. The Court, therefore, does not address the merits of the parties' arguments regarding whether class arbitration is appropriate.
B. Staying the Litigation
The remaining issue is whether the litigation should be stayed or dismissed pending arbitration. In its motion
9 U.S.C. § 3. The district court can exercise its discretion to stay the proceeding or can conclude that the litigation should be dismissed. See Salim Oleochemicals v. M/V Shropshire, 278 F.3d 90, 92-93 (2d Cir.2002). A decision to dismiss has implications for the speed with which the arbitration of the dispute may begin because a dismissal is reviewable by an appellate court under Section 16(a)(3) of the FAA, whereas a stay is an unappealable interlocutory order under Section 16(b). Id. at 93. Staying the action is, therefore, more likely to allow the matter to proceed to arbitration in an expeditious manner. Id. The Second Circuit urges courts deciding whether to dismiss or stay litigation when referring a matter to arbitration to "be mindful of this liberal federal policy favoring arbitration agreements" and consider that "[u]nnecessary delay of the arbitral process through appellate review is disfavored." Id. (citation and quotation marks omitted).
The Court concludes that a stay is appropriate in this case. As an initial matter, during oral argument defendant requested a stay in the alternative and plaintiffs also requested a stay, rather than dismissal. This Court recognizes that some courts have held that where "none of plaintiffs claims remain to be resolved by this court, ... there is no reason to stay-rather than dismiss-this action." Mahant v. Lehman Bros., No. 99 Civ. 4421(MBM), 2000 WL 1738399, at *3 (S.D.N.Y. Nov. 22, 2000); see also Mazza Consulting Grp., Inc. v. Canam Steel Corp., No. 08-CV-38 (NGG), 2008 WL 1809313, at *5, 2008 U.S. Dist. LEXIS 32670, at *19-20 (E.D.N.Y. Apr. 21, 2008); Perry v. N.Y. Law Sch., No. 03 Civ. 9221(GBH), 2004 WL 1698622, at *4 (S.D.N.Y. July 28, 2004). However, in the case at hand, the Court believes that the more appropriate action is to stay the proceedings and compel arbitration, particularly to promote expeditious resolution of this dispute. See Halim v. Great Gatsby's Auction Gallery, 516 F.3d 557, 561 (7th Cir.2008) ("[T]he proper course of action when a party seeks to invoke an arbitration clause is to stay the proceedings rather than to dismiss outright."); see also Lloyd v. HOVENSA, LLC, 369 F.3d 263, 269 (3d Cir.2004) ("[T]he plain language of § 3 affords a district court no discretion to dismiss a case where one of the parties applies for a stay pending arbitration.").
For the foregoing reasons, the Court grants in part and denies in part defendant's motion to compel arbitration. The parties shall arbitrate this dispute and the arbitrator will decide whether or not the arbitration can proceed on a class basis. For the reasons set forth above, this lawsuit is stayed pending completion of the arbitration. Counsel for plaintiffs is directed to file a status letter to the Court by September 30, 2011, advising the Court as to the status of the arbitration.