INTRODUCTION AND SUMMARY OF ARGUMENT
When the Court preciously considered this case, it presented the question whether a court may refuse to enforce parties' agreements to delegate questions of arbitrability to arbitrators if the court views the argument for the dispute's arbitrability as "wholly groundless." The Court unanimously held that "a court may not decide an arbitrability question that the parties have delegated to an arbitrator." Henry Schein I, 139 S. Ct. at 530.
On remand, the court of appeals nonetheless again declined to enforce the parties' delegation of arbitrability.
The court of appeals interpreted the agreement to contain a valid delegation, Pet. App. 8a, and the case comes before this Court on that premise. See Pet. Br. 15. But the court of appeals seized on the carve out from the arbitration agreement of "actions seeking injunctive relief," J.A. 114, to conclude that a court must determine for itself whether the action "seek[s] injunctive relief" before sending the case to an arbitrator to decide arbitrability.
There are at least two fundamental errors in that approach.
First, it conflates two separate issues: (1) who decides a question of arbitrability and (2) the question of arbitrability itself--i.e., whether the claim or dispute at issue falls within the scope of the parties' arbitration agreement. This Court has long held that the two issues are distinct, and that parties are free to delegate threshold questions of arbitrability to the arbitrator for decision. See Henry Schein I, 139 S. Ct. at 527; Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 68-70 (2010); First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943-44 (1995).
Second, the court of appeals flipped the order in which those two issues are resolved. Both logic and this Court's precedents make clear that an "agreement to arbitrate a gateway issue" of arbitrability is "an additional, antecedent agreement the party seeking arbitration asks the federal court to enforce." Henry Schein I, 139 S. Ct. at 529 (emphasis added) (quoting Rent-A-Center, 561 U.S. at 70).
For that reason, once a court finds that the parties entered into a valid delegation, the court has no further role in addressing arbitrability--that issue is for the arbitrator. The Federal Arbitration Act requires a court to enforce the arbitration agreement as written. This Court has repeatedly enforced that statutory requirement, holding that courts may not refuse to enforce an agreement to arbitrate a particular question--including the question of arbitrability--based on the court's view of the merits of that question.
The interpretation of the carve-out by the court of appeals here to displace the parties' otherwise valid delegation of arbitrability conflicts with that settled principle. It also conflicts with the Federal Arbitration Act's mandate to resolve the scope of arbitrable issues in favor of arbitration. Moreover, allowing that approach to stand would undermine the predictability and certainty regarding the enforceability of arbitration agreements that Congress enacted the Federal Arbitration Act to provide.
Countless businesses have entered into arbitration agreements containing delegation provisions-not just with other businesses, as in this case, but also with customers or employees--in order to avoid time-consuming litigation in court over the enforceability of arbitration agreements, litigation that can swallow the benefits of arbitration. Like the "wholly groundless" exception rejected by this Court in Henry Schein I, reading an agreement's carve out for certain claims or remedies to displace agreements delegating to the arbitrator threshold questions of arbitrability--including whether a claim falls within the carve-out provision--vitiates those contractual commitments. The Court should overturn the decision below and reaffirm that courts must enforce arbitration agreements, including delegation provisions, as written.