On January 25, 2021 the Supreme Court decided Henry Schein Inc. v. Archer and White Sales Inc.. The question presented was whether a provision in an arbitration agreement that exempts certain claims from arbitration negates an otherwise clear and unmistakable delegation of questions of arbitrability to an arbitrator. This case arose out of a dispute between two dental equipment sales companies. In 2019, the 5th Circuit decided two questions. First, it concluded that the companies’ contract called for arbitration of the “gateway question” of whether a dispute is arbitrable. Second, it concluded that a court (rather than an arbitrator) should determine whether this particular dispute fell within an exception from the contract’s arbitration clause. The Supreme Court dismissed the writ of certiorari as improvidently granted.
Erika Birg, Partner at Nelson Mullins, and Richard Faulkner, Of Counsel at Bennett Injury Law, join us today to discuss this ruling and its implications.