Originally from Alternatives to the High Cost of Litigation

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Application of the First Options/Rent-a- Center legal framework described in Part 1 last month to the facts of Archer and White Sales Inc. v. Henry Schein Inc., et al., No. 16-41674 (5th Cir. Aug. 14, 2019) (available at http://bit.ly/33Cb78g)—and to other cases where parties have agreed to arbitrate under arbitration provider rules containing delegation provisions—strongly suggests that the respondent to the current U.S. Supreme Court cert petition, Archer and White, did not clearly and unmistakably agree to arbitrate arbitrability simply by incorporating by reference the AAA Commercial Rules.

In our view, incorporating provider rules by reference satisfies neither the letter nor spirit of the “clear and unmistakable rule.”

First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995) (available at https://bit.ly/3enrFGx), required that courts presume that parties intended courts would decide arbitrability disputes unless the parties “clearly and unmistakably” agree otherwise.