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January 03, 2024 Feature

I. Alternative Dispute Resolution

John Jay Range

A. Introduction

In one of the least surprising decisions this term, the Supreme Court once again reversed a decision of the Ninth Circuit involving a class action litigation and an arbitration clause governed by the Federal Arbitration Act (FAA).1 In Coinbase Inc. v. Bielski,2 the Court held that the Ninth Circuit erred by not staying a class action litigation pending an interlocutory appeal of an order by the district court declining to enforce the parties’ arbitration agreement. The Court held that, under the principle articulated in Griggs v. Provident Consumer Discount Co.,3 a stay of the class action litigation was mandatory. Filing of an appeal divests a trial court of jurisdiction “over those aspects of the case involved in the appeal.”4 The Court found that “[b]ecause the question on appeal is whether the case belongs in arbitration or instead in a district court, the entire case is essentially ‘involved in the appeal.’”5 Hence the Court held in a 5–4 decision that the Ninth Circuit was required to stay the district court litigation pending its decision on the enforceability of the arbitration agreement.

Coinbase further extends the Supreme Court’s growing protection of arbitration as a tool to limit class acton litigation.6 This time, however, the Court’s decision was not based on an expansion of the FAA itself, but rather on an extension of judge-made common law regulating procedures between trial and appellate courts during an appeal. The Court’s broad construction of Griggs in Coinbase mandates a stay of litigation whenever a party takes an interlocutory appeal from an order denying a motion to compel arbitration. The dissenters warn that the ruling risks opening the door to mandatory stays in a large array of non-arbitration cases, unnecessarily delaying litigation pending interlocutory appeals.7

This report briefly discusses the relevant statutory provisions of the FAA that relate to whether and when appeals can be taken from orders granting or denying arbitration, and whether stays are mandated during such appeals. It also addresses the origin and development of the Griggs doctrine, including the circuit split that developed regarding application of Griggs stays to interlocutory appeals taken from orders denying arbitration. This background informs the debate concerning whether there is any controlling statutory language in the FAA itself, and whether and to what extent the Griggs doctrine applies in the absence of any controlling language in the FAA. The report concludes by discussing how the decision in Coinbase removes yet another arrow from the quiver of class action lawyers, and whether the enlarged Griggs doctrine is likely to open the door to more extensive use of that doctrine in non-arbitration cases.

B. Congressional Amendment of the FAA Produces a Circuit Split

Section 3 of the FAA makes clear that when a motion to compel arbitration is granted, the court should “stay the trial of the action until such arbitration has been had in accordance with the terms of the [arbitral] agreement. . . .”8 The FAA does not permit an interlocutory appeal of an order compelling arbitration. Under FAA § 3, the stay of the litigation remains in place until after the arbitration is concluded. Then FAA § 10 would permit a court to review the arbitral award on limited grounds.9

From 1925 until 1988, the FAA did not allow a party to take an interlocutory appeal from an order denying a motion to compel arbitration. In 1988, however, Congress amended the FAA, adding § 16(a), which permits interlocutory appeals from orders denying arbitration.10 Section 16(a) thus reflects one of the relatively rare occasions when Congress has made a statutory exception to the usual rule that parties may not appeal before a final judgment.11 As such, § 16(a) reflects Congress’s favored treatment of arbitration.

Congress was silent in § 16(a) whether a court should grant a stay of litigation if the party seeking arbitration filed an interlocutory appeal from a district court’s order denying arbitration. Congress plainly understood that it had the authority to grant or prohibit stays pending such interlocutory appeals. Contemporaneously with enacting FAA § 16(a), Congress authorized an interlocutory appeal in another context, but explicitly barred courts from issuing a stay of the underlying administrative proceeding pending such an appeal.12 In the context of § 16(a), however, Congress remained silent on the issue of whether the underlying litigation should continue or be stayed.13

Compounding the problem with statutory analysis created by Congress’s silence, the Supreme Court in 1982 decided Griggs v. Provident Consumer Discount Co.14 That case had absolutely nothing to do with arbitration. Rather, the Supreme Court in Griggs was asked to resolve the generic civil procedure question of how district courts and courts of appeal should handle a judgment after a party files a notice of appeal. The Supreme Court held in Griggs that a notice of appeal “divests the district court of its control over those aspects of the case involved in the appeal.”15 Subsequently, the Supreme Court clarified that “[o]nly Congress may determine a lower court’s subject matter jurisdiction.”16 Griggs merely articulates a “judge-made rule” that is “designed to promote judicial economy and avoid the confusion and inefficiency that might flow from putting the same issue before two courts at the same time.”17 Under the Griggs rule, districts courts should not continue to address any aspects of the case that are under consideration by a court of appeals.

The Ninth Circuit construed FAA § 16(a) in Britton v. Co-op Banking Group,18 holding that Griggs did not divest the district court of jurisdiction when a party filed an interlocutory appeal after a decision denying a motion to compel arbitration. The Ninth Circuit construed both Griggs and Moore’s Federal Practice to allow the district court to continue to exercise jurisdiction over all “matters not involved in the appeal,” drawing a distinction between the issue of arbitrability and the merits of the case.19

A circuit split developed seven years later when the Seventh Circuit held that a district court should automatically stay a case under the Griggs doctrine if a party appealed from an order denying a motion to compel arbitration.20 Judge Easterbrook flatly rejected the Ninth Circuit’s rationale that a distinction could be drawn between the “merits” of the case and the issue of whether those merits should be arbitrated or litigated. He argued that, under Griggs, “‘[w]hether the litigation may go forward in the district court is precisely what the court of appeals must decide.”21

The Third,22 Fourth,23 Tenth,24 Eleventh,25 and District of Columbia Circuits26 have also relied on Griggs to adopt a procedural policy of halting district court proceedings indefinitely when a party appeals an order declining to compel arbitration. The Second27 and Fifth Circuits28 have joined the Ninth Circuit29 in declining to grant automatic stays based on Griggs. Instead, they require a party to file an application to obtain a discretionary stay of the case pending the outcome of the interlocutory appeal. Granting such stays rests in the sound discretion of the district court and is subject to a showing of irreparable harm and a probability of success on the merits. The monetary costs of lawyer fees, discovery, etc., are generally not sufficient to show the harm necessary to obtain discretionary stays.30 Hence, the availability of a Griggs automatic stay is often outcome determinative as to whether litigation following an order denying a motion to compel arbitration is stayed pending appeal.

C. Supreme Court Grants Certiorari to Resolve the Circuit Split

To resolve the circuit split over § 16(a), the Supreme Court granted a joint petition for certiorari to hear two class action cases involving Coinbase, Inc.31 The Coinbase cases involve two distinctly different matters that substantially differ on the gateway question of arbitrability. This report will discuss only the Court’s decision in Coinbase, Inc. v. Bielski in light of the fact that the Court dismissed the second case on the grounds that certiorari was improvidently granted.32 The facts related to the merits of Bielski’s claims are wholly irrelevant to the Supreme Court’s decision, as the only issue addressed was whether a stay pending appeal was required by Griggs following Coinbase’s appeal of the denial of its motion to compel arbitration.33

In the Supreme Court’s 5–4 opinion, Justice Kavanaugh emphasized the very narrow issue before the Court, stating: “The sole question here is whether the district court must stay its pre-trial and trial proceedings while the interlocutory appeal is ongoing.”34 Justice Kavanaugh candidly acknowledged that the text of FAA § 16(a) did not resolve the issue.35 But because Congress enacted § 16(a) “against a clear background principle prescribed by this Court’s precedents,” the “Griggs principle resolves this case.”36 The Court resolved the circuit split by ruling Griggs dictates that an interlocutory appeal “divests the district court of its control over those aspects of the case involved in the appeal.”37

In Coinbase, the Court held that, “[b]ecause the question on appeal is whether the case belongs in arbitration or instead in the district court,” the entire case is essentially “involved in the appeal.”38 Quoting Judge Esterbrook’s holding in Bradford-Scott, the Court asserted that “when a party appeals the denial of a motion to compel arbitration, whether ‘the litigation may go forward in the district court is precisely what the court of appeals must decide.’”39 The Court asserted that it “makes no sense for the trial to go forward while the court of appeals cogitates on whether there should be one.”40

In support of its position, the Court stated it was following the majority rule, noting that “[m]ost courts of appeals to address the question in the § 16(a) context have reached that same conclusion.”41 The Court further cited Moore’s treatise on federal civil procedure stating that “a stay in these circumstances” is “the sounder approach” and “is consistent with the general [Griggs] principle that a district court should not exercise jurisdiction over those aspects of the case that are involved in the appeal.”42 The Court also cited Wright and Miller as endorsing automatic stays because “[c]ontinued trial-court proceedings pending appeal could lead to an entirely wasted trial if arbitration is ordered on appeal.”43

Thus the Court primarily relied on “common practice in § 16(a) cases” to support its decision, asserting that “common practice reflects common sense.”44 The Court explained that, if pre-trial and trial proceedings were allowed to proceed while the appeal on arbitrability was ongoing, “then many of the asserted benefits of arbitration (efficiency, less expense, less intrusive discovery, and the like) would be irretrievably lost,” largely defeating Congress’s purpose for granting an interlocutory appeal in the first instance.45 The worst possible outcome for the parties and the courts would be reached if an appeal resulted in ordering arbitration, as the parties would have needlessly been placed to great expense and the court would have wasted scarce judicial resources on a dispute that ultimately heads to arbitration in any event.46

The dissenting opinion by Justice Jackson (joined in full by Justices Sotomayor, and Kagan and in part by Justice Thomas) is one-third longer than the Court’s decision. Justice Jackson starts the dissent by asserting: “This mandatory-general-stay rule for interlocutory arbitrability appeals comes out of nowhere.”47 The dissent primarily objects that the majority “invents a new stay rule perpetually favoring one class of litigants—defendants seeking arbitration.”48 The dissent warns that the logic of the Court’s decision “has such significant implications for federal litigation that the majority itself shies away from the Pandora’s box it may have opened.”49 The dissent asserts the majority opinion “transmogrifies Griggs into a sweeping stay of ‘pre-trial and trial proceedings’ on not just arbitrability, but also the merits.”50 The dissent asserts the majority has “supercharged” Griggs51 and “ventures down an uncharted path—and that way lies madness.”52

As an example of the potential madness that could escape Pandora’s box, Justice Jackson points to the Court’s decision in Viking River Crusises, Inc. v. Moriana, where the Court stated that “an arbitration agreement is ‘a specialized kind of forum-selection clause.”53 The minority suggests: “If arbitration appeals require stays of all pre-trial and trial proceedings, why not all appeals about forum-selection agreements?”54 The minority points out that similar arguments could be made for mandatory stays pending appeals from disputes over “venue, personal jurisdiction, forum non conveniens, federal-court jurisdiction, and abstention” to name but a few.55 The minority suggests that “the mandatory-general-stay rule the Court adopts today would upend federal litigation as we know it.”56

After raising this parade of horribles, however, Justice Jackson notes that, in fact, the majority’s holding “reaches only arbitration appeals under § 16(a).”57 She further concedes: “And it might well be that the concerns motivating today’s mandatory-general-stay rule do not extend beyond arbitration.”58 But Justice Jackson characterizes the result as a “windfall that the Court gives to defendants seeking arbitration, preferencing their interests over all others,” which she characterizes as “entirely unwarranted.”59

D. Analysis of the Coinbase Decision

The Court’s Coinbase decision did not come “out of nowhere.” It is entirely consistent with the Supreme Court’s development of the FAA over the last two decades. With rare exception,60 the Court’s rulings have enlarged the preemptive power of the FAA, ostensibly to create “an equal treatment rule” for arbitration agreements.61 Not coincidentally, the Court’s expansion of the FAA has favored business interests over the interests of plaintiff-side class action lawyers and consumers. Many businesses now view arbitration as a shield against class action litigation. Their contracts, often adhesion contracts, require arbitration of disputes. Further, arbitration is defined as one-on-one dispute resolution, where the parties waive any right to participate in class action litigation. Justice Gorsuch in Epic Systems wrote that, when parties contract for “individual rather than class or collective action procedures, “the Arbitration Act seems to protect pretty absolutely” their agreement.62

What distinguishes Coinbase from prior arbitration precedent is that the Court relies on judge-made common law rather than any provision of the FAA to establish its mandatory stay rule for § 16(a) interlocutory appeals. Because the FAA “does not say” what Congress intended, the Court holds the principles articulated in Griggs control the outcome. As described above, Griggs in essence holds that, when a notice of appeal is filed, the district court is ousted from further jurisdiction over the issue raised on appeal to avoid the trial and appeals courts from exercising jurisdiction over the same order at the same time.

But with respect to arbitration, the circuit courts did not agree on how to characterize the issue on appeal. Basically, the Second, Fifth, and Ninth Circuits did not believe Griggs ousted district courts from continuing to litigate a dispute after a motion to compel arbitration was denied. Those circuit courts, asserting the question of arbitration vel non was separate from the merits of the dispute, held that district courts could proceed to trial notwithstanding that the pending appeal might require vacating the judgment in the trial court if the arbitration clause was upheld. Six other circuits reached the opposite conclusion, holding that arbitrability of a case was the issue before the court of appeals, such that the district court was ousted from jurisdiction and could nor proceed to trial on the merits.

If anything, the Supreme Court is long overdue in resolving the circuit split that has existed since 1997. And the Court’s resolution of the split in favor of the majority of circuit courts hardly seems controversial. Not only has this been the majority rule for many years, but it is entirely consistent with the Court’s broadened protection of arbitration under the FAA.

The Ninth Circuit’s decision in Coinbase arguably interferes with the fundamental aspects of arbitration as defined by the Supreme Court since at least AT&T Mobility. The parties in Coinbase contracted for bilateral arbitration. They also agreed that an arbitrator rather than a court would resolve disputes over the validity of their arbitration agreement. As the Supreme Court noted, requiring the parties to engage in class action litigation, merits discovery, and trial while an appeal is pending diminishes the value of a § 16(a) appeal,63 denudes the parties’ of their contractual rights if arbitration is ultimately upheld,64 and undermines the FAA’s goal of enforcing arbitral agreements by potentially permitting litigation risks and costs to coerce a “blackmail settlement.”65

Contrary to the dissenters, it is doubtful that the holding in Coinbase will open Pandora’s box to uncontrolled liberalization of stays pending appeals of forum-selection disputes, such as challenges to venue, personal jurisdiction, forum non conveniens, etc. It has been more than twenty-five years since the Seventh Circuit first ordered a Griggs stay in an arbitration appeal, and more than eleven years since the Fourth Circuit became the last of six circuits to impose mandatory Griggs stays pending § 16(a) interlocutory appeals. Yet the dissent does not identify a single escapee from Pandora’s box in any of these circuits,66 suggesting Coinbase is unlikely to unleash a flood of forum-selection disputes seeking to alter the established rules for stays in such cases.67 Additionally, Congress is the ultimate authority on the jurisdiction of the courts and on whether stays should or should not be granted during interlocutory appeals. It can, by statute, erase any decision of the Supreme Court to imposes mandatory stays relying on Griggs principles if it thinks the Court “got it wrong.”

In summary, Coinbase is another major win for parties seeking to enforce arbitral agreements, and particularly for parties seeking to avoid class action litigation by utilizing bilateral arbitration agreements that waive the right to participate in class action litigation. The result in Coinbase also gives the Supreme Court another opportunity to police the Ninth Circuit’s enforcement of the Court’s FAA precedents. Following remand, the Ninth Circuit will have to rule on the merits of the district court’s invalidation of the parties’ arbitration agreement. It is possible that Coinbase, Inc. v. Bielski could make a return visit to the Supreme Court.68


1. 9 U.S.C. §§ 1–16 (2012).

2. Coinbase Inc. v. Bielski, 143 S. Ct. 1915 (2023).

3. Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982) (per curium) (“The filing of a notice of appeal is an event of jurisdictional significance—it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.”).

4. Coinbase, 143 S. Ct. at 1919.

5. Id.

6. The holding in Coinbase, however, applies to any interlocutory appeal from an order denying arbitration, not just claims asserting a right to class action litigation.

7. For instance, Justice Jackson suggests that objections based on improper venue, lack of personal jurisdiction, forum non conveniens, etc., could give rise to arguments for a mandatory stay pending appeal, thereby upsetting a judge’s traditional power to grant discretionary stays only under limited circumstances to prevent interlocutory appeals from unnecessarily delaying litigation. Coinbase, 143 S. Ct. at 1931.

8. 9 U.S.C. § 3.

9. Compare 9 U.S.C. §§ 3 and 4, with § 10.

10. Coinbase, 143 S. Ct. at 1919. Congress added the provision in FAA § 16(a) for interlocutory appeals via the Judicial Improvements and Access to Justice Act of 1988 (JIAJA), Pub. L. 100-702, title X, §1019(a), 102 Stat. 4670 (1988).

11. Coinbase, 143 S. Ct. at 1919 (“Section § 16(a) creates a rare statutory exception to the usual rule that parties may not appeal before final judgment.”).

12. The Court noted that Congress enacted a “non stay” provision respecting litigation in the Court of Veterans Appeals just the day before it enacted FAA § 16(a). See Coinbase, 143 S. Ct. at 1921 n.6.

13. Naturally, both the majority and dissenting opinions in Coinbase assert that this silence supports their position. Compare Coinbase, 143 S. Ct. at 1921 (“[W]hen Congress wants to authorize an interlocutory Appel, but not to automatically stay district court proceedings pending that appeal, Congress typically says so.”), with id. at 1924 (“[N]owhere did Congress provide that such a interlocutory appeal automatically triggers a general stay of pre-trial and trial proceedings.”).

14. Griggs v. Provident Consumer Disc. Co., 459 U.S. 56 (1982) (per curium).

15. Id. at 58.

16. See Hamer v. Neighborhood Hous. Servs. of Chicago, 138 S. Ct. 13, 17 (2017).

17. 20 James. Wm. Moore et al., Moore’s Federal Practice ¶ 303.22[1] (3d ed. 2019).

18. Britton v. Co-op Banking Grp., 916 F.2d 1405 (9th Cir. 1990).

19. Id. at 1410.

20. Bradford-Scott Data Corp., Inc. v. Physician Comput. Network, Inc., 128 F.3d 504 (7th Cir. 1997).

21. Id. at 506.

22. Ehleiter v. Grapetree Shores, Inc., 482 F.3d 207, 214–15 (3d Cir. 2007).

23. Levin v. Alms & Assocs., Inc., 634 F.3d 260, 263–66 (4th Cir. 2011).

24. McCauley v. Haliburton Energy Servs., Inc., 413 F.3d 1158, 1160–62 (10th Cir. 2005).

25. Blinco v. Green Tree Servicing, LLC, 366 F.3d 1249, 1251–53 (11th Cir. 2004) (per curiam).

26. Bombardier Corp. v. Nat’l R.R. Passenger Corp., No. 02-7125, 2002 WL 31818924, at *1 (D.C. Cir. 2002).

27. Motorola Credit Corp. v. Uzan, 388 F.3d 39 (2d Cir. 2004).

28. Weingarten Realty Invs. v. Miller, 661 F.3d 904 (5th Cir. 2011).

29. Britton v. Co-op Banking Grp., 916 F.2d 1405 (9th Cir. 1990).

30. Coinbase Inc. v. Bielski, 143 S. Ct. 1915, 1923 (2023). The Court rejected Bielski’s argument that discretionary stays were sufficient to protect the party in an appeal seeking to enforce its arbitral contract, asserting that courts “applying the usual four-factor standard for a discretionary stay often deny stays in § 16(a) appeals because courts applying that test often do not consider litigation-related burdens (here, from the continued District Court proceedings) to constitute irreparable harm.” Id. The Supreme Court’s rulings have defined avoidance of litigation expenses as one of the fundamental asserted benefits of arbitration. From the Court’s point of view, Griggs principles must be considered first. The Court asserted that if the district court’s jurisdiction is displaced by Griggs principles, the case must be stayed on appeal without reaching the question of a discretionary stay because “the background Griggs rule applies regardless of how often courts might otherwise grant stays under the ordinary discretionary stay factors.” Id.

31. See Coinbase, Inc. v. Bielski, and Coinbase, Inc. v. Suski, No. 22-105, joint petition for certiorari granted (Dec. 9, 2022). The difference between the Bielski and Suski claims turns on the existence of an arbitration agreement in Coinbase Inc. v. Suski, versus the validity or enforceability of an admitted arbitration agreement in Coinbase Inc. v. Bielski, including the validity of the provision delegating authority to decide the dispute to the arbitrator. The factual and contractual differences between the two Coinbase cases are discussed in detail in the Spring 2023 Report of the Alternative Dispute Resolution Committee of the Infrastructure and Regulated Industry Section and can be accessed by ABA members online,

32. Coinbase, 143 S. Ct. at 1923 n.7. Hence, the discussion in this report is limited to the Coinbase Inc. v. Bielski.

33. The facts demonstrate, however, that Coinbase’s application to compel arbitration was not frivolous. Bielski allowed a scammer to remotely access and take control of his computer operating system. The scammer accessed Bielski’s Coinbase account, stealing more than $30,000. Bielski sought help from Coinbase in attempting to recover the stolen money, but Coinbase took no steps to remedy or investigate the fraud. Bielski filed a class action claiming Coinbase’s refusal to remedy the fraud on its platform violated the Electronic Funds Transfer Act (EFTA), 15 U.S.C. § 1693 et seq., and Regulation E of its implementing regulations, 12 C.F.R. §§ 1005.1–1005.20. See Brief for Petitioner at 10, Docket No. 22-105. Coinbase moved to compel arbitration according to the terms of its user agreement, which contained a delegation to the arbitrator to decide any dispute over arbitrability of a claim. The district court refused to enforce the delegation, claiming that it referenced the arbitration agreement, which the court found to be contrary to California law. Given the Supreme Court’s strict enforcement of contractual delegations to arbitrators, Coinbase’s arguments that the arbitrator should have decided the enforceability of the arbitration agreement are not frivolous.

34. Coinbase, 143 S. Ct. at 1918.

35. Id. at 1919 (“Section 16(a) does not say whether the district court proceedings must be stayed.”).

36. Id.

37. Id. (quoting Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982) (per curium)).

38. Id.

39. Id. at 1920 (quoting Bradford-Scott Data Corp., Inc. v. Physician Comput. Network, Inc., 128 F.3d 504 (7th Cir. 1997) (Easterbrook, J.)).

40. Id. (quoting Apostol v. Gallion, 870 F.2d 1335, 1338 (7th Cir. 1989)).

41. Id.

42. Id. (citing 19 J. Moore, D. Coquillette, G. Joseph, G. Vairo & C. Varner, Moore’s Federal Practice § 203.12 [3][a] (3d ed. 2022)).

43. Id. (quoting 15B C.Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3914.17, p. 7 (2d ed., Supp. 2022)).

44. Id. at 1921.

45. Id.

46. Id.

47. Id. at 1924 (Jackson, J., dissenting). Justice Jackson’s dissent does not even reference the opinions of the six circuit courts that have for decades employed the broad stay approached endorsed by the Supreme Court majority. Nor does it deny the Court’s conclusion has been advocated for a long time by the leading treatises on federal procedure. To the extent Judge Jackson’s comment that the decision “comes out of nowhere” means the automatic stay rule is not found within the four corners of FAA § 16(a), that point is not disputed by the majority.

48. Id.

49. Id.

50. Id. at 1928 (quoting id. at 1918 (majority opinion)).

51. Id. (Jackson, J., dissenting)

52. Id. at 1931.

53. Viking River Crusises, Inc. v. Moriana, 142 S. Ct. 1906, 1919 (2022).

54. Coinbase, 143 S. Ct. at 1931 (Jackson, J., dissenting).

55. Id.

56. Id.

57. Id.

58. Id.

59. Id.

60. One of the rare exceptions is New Prime Inc. v. Oliverira, 139 S. Ct. 532 (2019) (extending the FAA’s “transportation worker” exemption to independent contractors, thereby freeing them from forced (i.e., adhesion) pre-dispute arbitration clauses that prohibit class action litigation).

61. The “equal treatment” doctrine first developed in AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 344 (2011). It was significantly enhanced in DIRECTV, Inc. v. Imburgia, 136 S. Ct. 463, 469–71 (2015), and Kindred Nursing Centers L.P. v. Clark, 137 S. Ct. 1421, 1426–28 (2017). The fully developed “equal treatment rule” was invoked in Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612 (2018). There, the Court relied on the “equal treatment rule” to reject a claim that the FAA’s “savings clause” invalidated a class action waiver contained in an employers’ arbitration agreement as inconsistent with § 7 of the National Labor Relations Act.

62. Epic Sys. Corp., 138 S. Ct. at 1621.

63. Coinbase, 143 S. Ct. at 1921 (majority opinion) (“Absent an automatic stay of district court proceedings, Congress’s decision in § 16(a) to afford a right to an interlocutory appeal would be largely nullified.” The Court also asserted: “As Judge Easterbrook stated, continuation of proceedings in the district court “largely defeats the point of the appeal.” Id. (quoting Bradford-Scott Data Corp., Inc. v. Physician Comput. Network, Inc., 128 F.3d 504, 505 (7th Cir. 1997)).

64. Id. (“If the district court could move forward with pre-trial and trial proceedings while the appeal of arbitrability was ongoing, then many of the asserted benefits of arbitration . . . would be irretrievably lost—even if the court of appeals later concluded that the case actually had belonged in arbitration all along.”).

65. The Court clearly notes this potential for coercion in its opinion, stating: “Absent a stay, parties also could be forced to settle to avoid the district court proceedings (including discovery and trial) that they contracted to avoid through arbitration. That potential for coercion is especially pronounced in class actions, where the possibility of colossal liability can lead to what Judge Friendly called “blackmail settlements.” Coinbase, 143 S. Ct. at 1922 (quoting H. Friendly, Federal Jurisdiction: A General View 120 (1973)).

66. The circuits that stayed arbitration appeals also typically relied on Griggs to stay appeals in analogous contexts such as qualified immunity and double jeopardy. Coinbase, 143 S. Ct. at 1920. The dissenters do not challenge Griggs stays in these contexts.

67. With respect to the dissent’s argument about the need to preserve deathbed testimony, nothing would prevent a party subject to a Griggs stay from moving, as appropriate, in either the district court or the court of appeals, for leave to take such testimony.

68. See, e.g., AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011), reversing 584 F.3d 849 (9th Cir. 2010); Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612 (2018), reversing Morris v. Ernst & Young, LLP, 834 F.3d 975 (9th Cir. 2016).

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John Jay Range

Mr. Range is the recently retired Chair of the Alternative Dispute Resolution Committee of the Infrastructure and Regulated Industries Section.