Yesterday, the United States Supreme Court dismissed the latest petition in Henry Schein, Inc. v. Archer and White Sales, Inc., No. 19-963, as improvidently granted. The case was a follow-up to the high court’s unanimous opinion in Henry Schein, Inc. v. Archer and White Sales, Inc., No. 17-1272 (January 8, 2019) regarding whether it is up to a court or an arbitrator to decide questions related to arbitrability.
According to Henry Schein’s petition for certiorari, the question presented in the follow-up petition was:
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.
The most recent Henry Schein case was argued before the high court last month. The Supreme Court did not provide further explanation in its order dismissing the case.
In the context of a form employment agreement, is providing that a particular set of rules will govern arbitration proceedings, without more, “clear and unmistakable evidence” of the parties’ intent to have the arbitrator decide questions of arbitrability?
Eleven of the twelve Circuit Courts have previously held agreeing to arbitrate using arbitration rules that permit an arbitrator to rule on his or her own jurisdiction constitutes “clear and unmistakable evidence” that the authority to decide questions of arbitrability is allocated to arbitrator. It would appear the Supreme Court is in agreement with the Circuit Court decisions.
H/t to Mark Kantor for alerting us to these cases!