Earlier today, I filed an amicus brief in the Henry Schein case pending before the Supreme Court. Click here for a copy of the brief: Henry Schein Amicus Brief.
I drafted the brief with Philip J. Loree, Jr. and Richard Faulkner, both arbitration gurus, and joining as amici were several ADR scholars, Professors Henry Allen Blair, Sarah Rudolph Cole, Angela Downes, Clark Freshman, and Jill Gross. I want to thank the entire group for helping with the brief.
If an arbitration clause incorporates by reference an outside set of arbitral rules, and if those outside rules include a delegation provision whereby an arbitrator has the power to rule on threshold arbitrability issues, most courts will say that the incorporation by reference satisfies the heightened standard of “clear and unmistakable” evidence for delegation recognized in the Supreme Court’s landmark First Options decision. However, as set forth in the brief, an incorporation by reference should not satisfy the heightened standard.
Oral argument is scheduled for December 8, 2020, and the Supreme Court should release an opinion early next year.