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February 02, 2022 Practice Points

U.S. Supreme Court Oral Argument Schedule for Arbitration-Related Cases

A rundown of the Court’s March oral arguments calendar, focusing on dates that will cover arbitration disputes.

By Mark Kantor

The U.S. Supreme Court has agreed to decide a number of arbitration-related cases this term. The Court just released its March oral arguments calendar, allocating dates for all of the remaining arbitration disputes as follows.

Morgan v. Sundance, Inc. (March 21): Whether an employee is required to show “prejudice” to prove that a company waived its right to require her to arbitrate her claims, especially when she would not have been required to make such a showing for waiver regarding another contract.

ZF Automotive US v. Luxshare (March 23), consolidated with AlixPartners LLP v. Fund for Protection of Investor Rights in Foreign States for one hour of oral argument: Whether section 1782, which allows litigants to invoke the power of U.S. courts to render assistance in gathering evidence for use in “a foreign or international tribunal,” applies to private commercial arbitral tribunals or ad hoc ISDS tribunals.

Southwest Airlines v. Saxon (March 28): Whether an airline employee who works as a ramp supervisor is a “transportation worker” under the Federal Arbitration Act (FAA) and related Supreme Court jurisprudence and therefore is not required to arbitrate her wage dispute with the airline.

Viking River Cruises v. Moriana (March 30): Whether the FAA does or does not require enforcement of a bilateral arbitration agreement providing that an employee cannot raise claims on behalf of others under the California Private Attorneys General Act (PAGA).

Absent unusual circumstances, we can expect decisions on all of these disputes by the time the Court’s term finishes around the end of June.

The Supreme Court already heard oral argument in another arbitration-related case, Badgerow v. Walters, back in early November. The issue in that dispute is whether federal courts have subject-matter jurisdiction to confirm or vacate an arbitration award under sections 9 and 10 of the FAA when the only basis for jurisdiction is that the underlying dispute involved a federal question (i.e., by means of “look-through” jurisdiction). That issue does not involve international arbitration awards covered by the New York or Inter-American Arbitration Conventions, where federal court jurisdiction for confirmation/vacatur is expressly established in chapter 2 of the FAA at 9 U.S. Code § 203. The Court’s decision in Badgerow will likely arrive fairly soon.

Mark Kantor is a member of the College of Commercial Arbitrators in Washington, D.C. 

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