This post first appeared on the Securities Arbitration Alert blog. The blog’s editor-in-chief is George H. Friedman, Chairman of the Board of Directors for Arbitartion Resolution Services, Inc.
With oral arguments just weeks away, the amicus briefs have been piling up.
We reported in SAa 2024-03 (Jan. 18) that the Supreme Court had set February oral arguments in Bissonnette v. LePage Bakeries Park St. LLC, No. 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. We recap below, borrowing heavily from our past coverage.
Bissonnette
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?”
Suski
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.
Amicus Briefs
Several briefs for both cases have already been filed. Noteworthy briefs in Bissonnette were filed by Amazon.com, the California Employment Law Council, and the Chamber of Commerce of the United States. Noteworthy briefs in Suski were filed by the American Bankers Association, the American Tort Reform Association, the Atlantic Legal Foundation Cato Institute, and the Chamber of Commerce of the United States.
(ed: *We’re sure more briefs will be filed. **The oral argument audio will be livestreamed at www.supremecourt.gov. Transcripts will be found here, and audio files here.***See our blog post, First Monday in October Coming Soon: Some Arbitration-Centric Cases Worth Following.)
