decides that issue in the first instance). That the Stolt-Nielsen Court did not address which entity— court or arbitrator—should decide whether an arbitration agreement permitted class arbitration, was more recently made clear in Oxford Health Plans, 569 US at _; 133 S Ct at 2068 n 2. The question we are faced with today has therefore not been decided by the United States Supreme Court, and thus Stolt-Nielsen does not require rejection of those post -Bazzle decisions holding that absent contract language addressing the issue, consolidation was for the arbitrator to decide. See Lee, 982 F Supp 2d at 1113 (rejecting the argument that Stolt-Nielsen changed the legal landscape on gateway issues, since it did not involve one), and Blue Cross Blue Shield of Massachusetts, 671 F3d at 638-639 (<HOLDING>). D. CLASS ARBITRATION DECISIONS Having
holding that mental capacity to enter into an arbitration agreement is an issue for the court to decide but noting that we have concluded that whether an arbitration agreement binds a nonsignatory is a gateway matter to be determined by the court rather than the arbitrator unless the parties dearly and unmistakably provide otherwise holding that in ruling on a motion to compel arbitration a court must consider 1 whether the parties have entered into a valid arbitration agreement 2 whether an arbitrable issue exists and 3 whether the right to arbitration has been waived holding that stoltnielsen did not require it to modify its prior holding in employers ins co of wausau 443 f3d at 577 that whether to consolidate arbitration cases was not a gateway issue recognizing that bazzle contained no precedential rulings and holding that based on stoltnielsen class arbitration was a gateway issue for the court holding that a gateway dispute about whether the parties are bound by a given arbitration clause raises a question of arbitrability for a court to decide