SCOTUS Agrees to Review Schein v. Archer & White Sales ... Again.

About 18 months ago, the Supreme Court of the United States issued a ruling in the case Schein v. Archer & White Sales, Inc. which unanimously held that under the Federal Arbitration Act, if parties “clearly and unmistakably” delegate a question to an arbitrator, a court can’t second guess the decision to arbitrate that particular dispute.

As is frequently the case, the Court remanded the case back to the trial level for “further proceedings consistent with this opinion.”

Guess what? As Carol Anne Freeling said in that epic mid-80s classic sequel Poltergeist II, ”They’re baaacckk.” Turns out, the lower courts, to the satisfaction of the parties, could not determine what “clearly and unmistakably” actually means.

This past Monday, SCOTUS agreed to take the case back on this issue. The arbitration agreement between the parties exempted certain claims from arbitration, and on that basis, Henry Schein, Inc. wishes to challenge any findings that the entire dispute must be arbitrated.

Stay tuned.

UPDATE: On January 25, 2021, SCOTUS dismissed this the appeal in this case as being improvidently granted.