Originally from Alternatives to the High Cost of Litigation

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In what has become protracted—but necessary— Federal Arbitration Act litigation, Henry Schein Inc., a Melville, N.Y.-based dental equipment distributor (the “petitioner”) seeking to arbitrate disputes pursuant to a written agreement has for the second time petitioned the U.S. Supreme Court for review.

The first time the U.S. Supreme Court granted certiorari, and in it made one of last year’s most significant arbitration decisions. In Henry Schein Inc. v. Archer & White Sales Inc., 139 S. Ct. 524 (2019) (available at https://bit.ly/2CXAgPw) (referred to in this article as Schein I), a 9-0 decision written by Associate Justice Brett M. Kavanaugh, the Court vacated a Fifth U.S. Circuit Court of Appeals judgment that refused to enforce a delegation agreement on the ground that the petitioner’s arbitrability argument was “wholly groundless.”

The nation’s highest court held that the so-called “wholly groundless” exception to the enforceability of delegation agreements contravened the Federal Arbitration Act.