Justice Brett Kavanaugh Authors First Opinion and Promotes Arbitration; SCOTUS’s Decision on Class Arbitration Is Forthcoming

Justice Brett Kavanaugh, in his first opinion on the Supreme Court of the United States, further solidified the Court’s strong preference for arbitration under the Federal Arbitration Act.  Writing for a unanimous Court in a matter styled as Henry Schein, Inc. v. Archer & White Sales, the Court held that, when parties to a contract delegate “gateway” issues of arbitrability to an arbitrator, a court must enforce the contract according to its terms and allow an arbitrator to address whether the arbitration clause covers the dispute. Some courts, including the Fifth Circuit in the underlying opinion in Henry Schein, concluded that, courts, and not arbitrators, should be able to determine whether an arbitration agreement applies to a particular dispute when the basis for such potential application appears “wholly groundless.”  The Supreme Court reversed the decision of the Fifth Circuit, confirming that it is not the role of the courts…

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