Kavanaugh's First Opinion: Boring as Arbitration

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By George Khoury, Esq. on January 14, 2019 10:28 AM

Rookie justice Brett Kavanaugh has just released his first bit of Supreme Court authorship, writing the unanimous opinion in the Schein v. Archer and White matter. And yes, it is perhaps one of the most boring decisions to expect this year.

As Justice Kavanaugh makes clear on every single page of the brief, sub-ten page, order, when parties to a contract agree that an arbitrator gets to decide issues of arbitrability, then, unsurprisingly, an arbitrator, and not a judge, gets to decide whether the action should be in court or arbitration, even if the correct answer seems obvious.

"Wholly Groundless"

As Justice Kavanaugh explains, the big issue involved whether the Federal Arbitration Act contains the "wholly groundless" exception to arbitrability being decided by an arbitrator when the agreement to arbitrate contains a provision requiring such. As the decision repeatedly states, when the agreement says an arbitrator gets to decide whether the case should proceed in arbitration or in court, regardless of whether the agreement clearly called for the type of action being brought to be decided in court, the arbitrator gets to decide.

In the Schein matter, the parties' agreement called for arbitration in all matters except those seeking injunctive relief. The case, naturally, involved both claims for damages as well as injunctive relief, and was filed in court. And while the lower courts found that the courts could decide the issue because the Federal Arbitration Act contained an exception for "wholly groundless" demands to arbitrate, SCOTUS unanimously disagreed and held that it did not.

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