Supreme Court DIG’s Henry Schein Arbitrability Case

The Supreme Court issued an order earlier today in the Henry Schein v. Archer & White arbitrability case, dismissing the writ of certiorari as improvidently granted (“DIG”).

In this case, the Court had granted cert on the following issue: “Whether a provision in an arbitration agreement that exempts certain claims from arbitration negates an otherwise clear and unmistakable delegation of questions of arbitrability to an arbitrator?”

This issue presumes the existence of a clear and unmistakable delegation, but as I and several amici and the respondent argued, there was no proper delegation in this case for multiple reasons. There was a cross-petition raising this issue of whether a proper delegation exists, but the Court denied cert on the cross-petition. During oral argument in December, Justice Alito admitted it is difficult to answer the issue upon which cert was granted without assuming a proper delegation exists, and he appeared to apologize for this problem (saying it was the Court’s “fault” and then back-peddling a little and saying it was the Court’s “responsibility” for not detecting this problem earlier.)

The threshold issue, whether parties can delegate arbitrability by merely incorporating a provider’s arbitration rules by reference, has been the subject of other cert petitions. I suspect the Court may grant cert one day in the future in a proper case raising this threshold issue, perhaps in a case without the complicating factor of a carveout provision as existed in the Henry Schein case

author

Imre Szalai

Professor Szalai graduated from Yale University, double majoring in Economics and Classical Civilizations, and he received his law degree from Columbia University, where he was named a Harlan Fiske Stone Scholar. After graduating from law school, Professor Szalai practiced antitrust law in New York City, and then he practiced complex…

Featured Arbitrators

ad
View all

Read these next

Category

SCOTUS Won’t Reconsider Denied Cert. Petition on FAA Applicability to Amazon Drivers

This article first appeared on Securities Arbitration Alert, here. SCOTUS again has eschewed an opportunity to clear up the split over the Federal Arbitration Act’s (“FAA”) section 1 exemption for...

By George Friedman
Category

Canada – Motion to “Compel” Participation in Arbitration Dismissed, Despite Arbitration Clause

This article was first published on the Arbitration Matters blog, here. In Black & McDonald v. Eiffage Innovative Canada Inc., 2022 ONSC 1855, Justice Dow was faced with two motions: (1)...

By Lisa C. Munro
Category

Canada – Arbitration Clause Not Consideration; Provides Only Detriment to Contracting Party

This article was first published on the Arbitration Matters blog, here. In Goberdhan v Knights of Columbus, 2022 ONSC 3788, Justice Harris dismissed the Defendant’s motion to stay the Plaintiff’s wrongful...

By Lisa C. Munro

Find an Arbitrator