First Monday in October Coming Soon: Some Arbitration-Centric Cases Worth Following

The Supreme Court will be back in session on October 2. Here are some arbitration-centric cases worth tracking, as suggested by SCOTUSBlog.

Certiorari Petitions this summer were filed in matters involving arbitration. We offer a primer on those cases worth following, as suggested in SCOTUSBlog’s “Petitions We’re Watching” section.

• Argent Trust Company v. Harrison, No. 23-30: The July 7 Petition identifies the question presented in this case as: “Whether a participant in a plan governed by ERISA who asserts statutory claims under that statute can be compelled, pursuant to a binding arbitration provision, to submit his claims to individual arbitration.”

• Coinbase v. Suski, No. 23-3: Recall that we reported in SAA 2023-25 (Jun. 29) and blogged on June 23 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.” Back with a June 23 Certiorari Petition are the Suski parties, who raise 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.”

• Smith v. Spirrizzi, No. 22-1218: The June 14 Petition for Certiorari states: “This case presents a clear and intractable conflict regarding an important statutory question under the Federal Arbitration Act (FAA), 9 U.S.C. 1-16.[] The FAA establishes procedures for enforcing arbitration agreements in federal court. Under Section 3 of the Act, when a court finds a dispute subject to arbitration, the court ‘shall on application of one of the parties stay the trial of the action until [the] arbitration’ has concluded. 9 U.S.C. 3 (emphasis added)…. The question presented is: Whether Section 3 of the FAA requires district courts to stay a lawsuit pending arbitration, or whether district courts have discretion to dismiss when all claims are subject to arbitration.”

Also Worth Watching

Law Offices of Crystal Moroney, P.C. v. Consumer Financial Protection Bureau, No. 22-1233: On June 21, Moroney filed a Certiorari Petition identifying this issue for review:

“Whether the Consumer Financial Protection Agency’s funding structure—which imposes no meaningful constraints on the authority of the President or CFPB to choose the Bureau’s amount of annual public funding—violates the Appropriations Clause, U.S. Const. Art. I, Sec. 9, Cl. 7, and renders unenforceable the CID [Civil Investigative Demand] issued in this case.”

Note that we reported in SAA 2023-10 (Mar. 9) that the Supreme Court had granted a Petition in No. 22-448, seeking review of Community Financial Services Ass’n of America v. CFPB, No. 21-50826 (5th Cir. Oct. 19, 2022). There, a unanimous Fifth Circuit held that the CFPB’s funding method is unconstitutional. We see a Cert. grant coming in Moroney, which is set for consideration at the Court’s September 26 conference, and then the two cases being consolidated.

Conclusion

We’re reasonably certain another Cert. grant is coming this Term. Time will certainly tell, but closing the loop on FAA section 3 ambiguity on court cases ordered into arbitration seems very likely. Likewise, the Court might be inclined to take on arbitration and ERISA.

(ed: We will be sure to track these cases.)