By Russ Bleemer

The U.S. Supreme Court this morning declined to hear Rams Football Co., et al. v. St. Louis Regional Convention & Sports Complex Auth., No. 19-672, a case involving a prominent question in the arbitration field.

Rams Football is a Missouri state appeals court case on arbitrability and the so-called delegation clause—the arcane lawyers’ law on who gets to decide whether a case is decided by arbitrators or the courts.

The case had been listed for Friday Court conferences, according to Scotusblog, at least eight times this before the Court turned it down at Friday’s conference, and noted the denial in this morning’s order list.

The CPR Speaks blog discussed Rams Football at length in David Chung, “Under Consideration: The Supreme Court May Be Ready to Tackle Arbitrability–Again” (March 23) (available at https://bit.ly/2wx0Nmf).

The Supreme Court set out the law on delegation clauses in First Options v. Kaplan, 514 U.S. 938 (1995) (available at http://bit.ly/2WEXGnF)—a case argued and won by Chief Justice John G. Roberts Jr. when he was a Washington, D.C., partner in Hogan & Hartson—which held that courts should review arbitrability and should not assume that the parties agreed to arbitrate arbitrability unless there is clear and unmistakable evidence that they did so.

And the standard has been elusive ever since.

Problems with arbitrability may be growing.  In addition to the Rams Football case, last year’s Supreme Court decision on the subject,  Henry Schein, Inc., et al. v. Archer and White Sales, Inc., 139 S.Ct. 524 (2019) (available at http://bit.ly/2YLDkWQ), was remanded, reheard, decided, and is back before the Court on basically the same issue.

In last year’s decision, the Court held unanimously that parties to a contract have the ultimate say in whether to have an arbitrator or a court resolve disputes on questions of arbitrability.  Schein’s main holding was that a court couldn’t refuse to enforce arbitration because it believed the claims for arbitration were “wholly groundless”; it sent the case back on remand to the Fifth U.S. Circuit Court of Appeals, and the remand decision about the delegation clause is back before the Court for cert consideration.

So far as it is known, the new Schein has not yet made it to the Court’s conference table.  For more on Schein, see Philip J. Loree Jr., “Schein Returns: Scotus’s Arbitration Remand Is Now Back at the Court,” CPR Speaks (Feb. 19) (available at http://bit.ly/3bQXQgl).

See also, Philip J. Loree Jr., “Schein’s Remand Decision Goes Back to the Supreme Court. What’s Next?” 38 Alternatives 54 (April 2020) (available https://bit.ly/3aYy7Sg), and  Richard D. Faulkner & Philip J. Loree Jr., “Schein’s Remand Decision: Should Scotus Review the Provider Rule Incorporation-by-Reference Issue?” 38 Alternatives 70 (May 2020) (available at http://altnewsletter.com/ on May 1).

Late last month, an appellate court in Florida in a split decision trashed the concept of incorporating by a reference to American Arbitration Association rules as “clear and convincing evidence” of parties agreeing to an Internet app clickthrough contract as sending the arbitrability decision to an arbitrator. Doe and Doe v. Natt and Airbnb Inc., Case No. 2D19-1383 (Fla. 2d DCA March 25) (available at https://bit.ly/3byW6r6).

The Rams issue, according to the team’s cert request petition was

Whether the Federal Arbitration Act permits a court to refuse to enforce the terms of an arbitration agreement assigning questions of arbitrability to the arbitrator if those terms would be enforceable under ordinary state-law contract principles in a non-arbitration context.

For now, the Missouri Court of Appeals decision affirming a trial court’s decision denying arbitration and sending the case to trial stands, and the case is remanded to trial.

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Scotusblog’s case page, available at https://bit.ly/2QANwjk, contains the Rams’ cert petition, the respondent’s brief in opposition, and the Rams’ reply.

Russ Bleemer is the editor of Alternatives