An Unusual Arbitration Issue Emerges After Henry Schein

Law360 (September 6, 2019, 4:56 PM EDT) -- Henry Schein Inc. v. Archer and White Sales Inc.[1] is a unanimous and seemingly uncontroversial U.S. Supreme Court decision on arbitration agreements. There, when the plaintiff sought injunctive relief in court, the parties disagreed whether that request could proceed in court when there was an underlying arbitration agreement. 

This case raised a threshold arbitrability question; i.e., whether the parties’ arbitration agreement applies to the request for injunctive relief. But, that triggers an a priori issue: Who decides that threshold arbitrability question?[2] The lower courts said that was for the courts, but the Supreme Court disagreed because the arbitration agreement contained a...

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