United States: Court Refuses To Take Another Look At Case Questioning Whether Judge Or Arbitrator Should Decide Scope Of Arbitration Agreement

The overall quiet at the Court on Monday was only lightly interrupted with its per curiam decision in Henry Schein, Inc. v. Archer & White Sales, Inc., dismissing the petition for certiorari to the Fifth Circuit as improvidently granted. I mention it because the dismissal leaves open the questions that remained when a unanimous Court held on January 8, 2019, in the first iteration of the Schein case, that "a court may not decide an arbitrability question that the parties have delegated to an arbitrator."

The underlying case was an antitrust matter against Schein, a dental equipment distributor, that sought both monetary damages and injunctive relief. Schein sought to compel arbitration, and the parties' arbitration agreement provided that "[a]ny dispute arising under or related to this Agreement (except for actions seeking injunctive relief ... shall be resolved by binding arbitration ... ." The core question was, "Did that provision apply to the case at hand, and had Archer agreed that the initial question of arbitrability itself was for the arbitrator or a court to decide?" The Fifth Circuit held that Schein's motion to compel arbitration was invalid, thus holding that the threshold question could be decided by a court. The Supreme Court unanimously reversed, as noted above. However, while resolving the underlying legal issue, the Court did not provide any more guidance on what an arbitration agreement should look like other than that it should provide "clear and unmistakable evidence" of the parties' intent.