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
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