SCOTUS Sets February Oral Arguments in Two Arbitration-Centric Cases and Grants Certiorari in a New One

This article was first published on the Securities Arbitration Alert blog.

The Supreme Court has set February oral arguments in Bissonnette v. LePage Bakeries Park St. LLCNo. 23-51 and Coinbase v. Suski, No. 23-3, two cases involving arbitration in which Certiorari was previously granted. The February calendar shows that Bissonette will be heard Tuesday February 20 and Suski on Wednesday February 28. The Court also granted certiorari in another arbitration-related case.


As reported in SAA 2023-38 (Oct. 5), the Court granted Certiorari in Bissonnette v. LePage Bakeries Park St. LLC, No. 23-51, where the July 17 Petition states:

“The Federal Arbitration Act exempts the ‘contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.’ 9 U.S.C. § 1. The First and Seventh Circuits have held that this exemption applies to any member of a class of workers that is engaged in foreign or interstate commerce in the same way as seamen and railroad employees—that is, any worker ‘actively engaged’ in the interstate transportation of goods. The Second and Eleventh Circuits have added an additional requirement: The worker’s employer must also be in the ‘transportation industry.’ The question presented is: To be exempt from the Federal Arbitration Act, must a class of workers that is actively engaged in interstate transportation also be employed by a company in the transportation industry?”


Recall that we reported in SAA 2023-25 (Jun. 29) and blogged in June 2023 that the Supreme Court had decided Coinbase, Inc. v. Bielski, No. 22-105, ruling mostly along ideological lines that courts must stay underlying litigation while an appeal of a denial of a motion to compel arbitration is pending. The 5-4 decision, which was released on June 23, was authored by Justice Kavanaugh. He was joined outright by Chief Justice Roberts, and Justices Alito, Barrett, and Gorsuch. Justice Jackson wrote a dissenting opinion, in which Justices Kagan and Sotomayor joined in full, and in which Justice Thomas joined for the most part. Buried in a footnote was this landmine: “The Court’s judgment today pertains to respondent Abraham Bielski. The writ of certiorari as to respondents David Suski et al. is dismissed as improvidently granted.”

We further reported that back with a June 2023 Certiorari Petition were the Suski parties, who raised this issue:

“Whether, where parties enter into an arbitration agreement with a delegation clause, an arbitrator or a court should decide whether that arbitration agreement is narrowed by a later contract that is silent as to arbitration and delegation.”

In a three-item Miscellaneous Order released November 3, 2023, SCOTUS granted Certiorari in Suski. As usual, there was no explanation.

A New Cert. Grant

SCOTUS agreed in a January 12 Miscellaneous Order to take on Smith v. SpizzirriNo. 22-1218. As reported in SAA 2023-36 (Sep. 21), the June 14, 2023 Petition for Certiorari states:

“This case presents a clear and intractable conflict regarding an important statutory question under the Federal Arbitration Act (FAA), 9 U.S.C. 1-16.[] The FAA establishes procedures for enforcing arbitration agreements in federal court. Under Section 3 of the Act, when a court finds a dispute subject to arbitration, the court ‘shall on application of one of the parties stay the trial of the action until [the] arbitration’ has concluded. 9 U.S.C. 3 (emphasis added)…. The question presented is: Whether Section 3 of the FAA requires district courts to stay a lawsuit pending arbitration, or whether district courts have discretion to dismiss when all claims are subject to arbitration.”


George Friedman

George H. Friedman is the publisher and Editor-in-Chief of the Securities Arbitration Alert, a weekly online publication covering the latest developments in financial services arbitration and mediation. He is also the principal of George H. Friedman Consulting, LLC, providing expert advice on arbitration and mediation in general and the FINRA…

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