Henry Schein, Inc., II: Post-Argument Analysis

The Supreme Court heard argument in the second iteration of Henry Schein, Inc. v. Archer & White Sales, Inc., Case No. 19-963, (Henry Schein II) on December 8, 2020, which was broadcast live on CSPAN and is available here.  During the course of the argument and questioning, the Court made clear that it was only considering a narrow question:  Assume that the contract generally says that an arbitrator decides if a particular dispute must be arbitrated, rather than be litigated in a court. Also assume that the contract says claims for injunctive relief are not subject to arbitration. The parties to the contract have a dispute, and they disagree on whether the dispute seeks injunctive relief. Who decides this threshold dispute—an arbitrator or a court? (For more background on this case, see our pre-argument discussion on the issues presented.)

The question presented to the Court in Henry Schein II seems to be one of pure contract interpretation, which makes it an odd choice for the Court to hear. The Court is ostensibly deciding whether the carve-out for injunctive relief claims in this contract limits just the scope of arbitration or also limits the scope of the contract’s delegation to the arbitrator to decide the threshold issues of arbitrability. Yet, the oral argument revealed a few themes that indicate some of the broader implications of this litigation.

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Arbitrability Returns to the Supreme Court in Henry Schein, Inc. v. Archer & White Sales, Inc., the Sequel

Arbitrability—or who decides what claims are subject to arbitration—is returning to the Supreme Court next week for the second time in as many years.  The first time the matter reached the Court, the Supreme Court  unanimously held that, where a contract clearly and unmistakably delegates questions of arbitrability to an arbitrator, a court cannot decide the issue in the first instance, even if the court thinks the argument for arbitration is “wholly groundless.”  Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524 (2019).

The issue has now returned to the Supreme Court following remand and a new decision by the Fifth Circuit.  Archer & White Sales, Inc. v. Henry Schein, Inc., 935 F.3d 274 (5th Cir. 2019).  On December 8, 2020, the Court will hear the case again, this time to decide “[w]hether 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.”

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Pipeline Developers Beware: Third Circuit Disallows Eminent Domain Over State Lands Under Natural Gas Act

In a unanimous, precedential opinion issued on September 10, 2019, the United States Court of Appeals for the Third Circuit held that the Natural Gas Act (NGA), 15 U.S.C. § 717, et seq., does not abrogate state sovereign immunity and does not give private pipeline companies the power in federal court proceedings to condemn property owned by states. See In re PennEast Pipeline Co., F.3d , Nos. 19-1191 through 19-1232, 2019 WL 4265190 (3d Cir. Sept. 10, 2019). This decision—the first on this topic by any federal appellate court—may have far-reaching implications for pipeline development and other infrastructure projects in Pennsylvania, New Jersey, Delaware and beyond.

View the full Alert on the Duane Morris LLP website.

District Courts Can Extend Time to File Notices of Appeal Beyond Time Allowed in the Federal Rules

The Supreme Court issued its first opinion of the October 2017 sitting, Hamer v. Neighborhood Housing Services of Chicago, No. 16-658, 2017 WL 5160782 (Nov. 8, 2017), early last month. We previously previewed this case when the Supreme Court first granted a writ of certiorari.[1] As expected, the Supreme Court clarified an important issue regarding time limits for filing notices of appeal in civil cases. Specifically, the Supreme Court held that district courts are allowed to extend the time for filing a notice of appeal beyond the thirty-day limit prescribed in the Federal Rules of Appellate Procedure because the deadline is only set by court rule, not statute, and thus is not jurisdictional.

The Supreme Court used Hamer to resolve a circuit split over whether Federal Rule of Appellate Procedure 4(a)(5)(C) is jurisdictional or whether it is a mandatory claim-processing rule. Jurisdictional time limits “deprive[] a court of adjudicatory authority over the case, necessitating dismissal—a ‘drastic’ result.” Hamer, slip op. at 2 (citing Henderson v. Shinseki, 562 U.S. 428, 435 (2011)). These time limits are “not subject to waiver or forfeiture and may be raised at any time in the court of first instance and on direct appeal.” Id. at 2-3 (footnote omitted) (citing Kontrick v. Ryan, 540 U.S. 443, 455 (2004)). Indeed, courts are independently obligated to consider jurisdictional timeliness rules, even when not raised by either party. Id. at 3 (citing Shinseki, 562 U.S. at 434). Mandatory claim-processing rules, by contrast, can be waived or forfeited if a party fails to object to an untimely filing. Id. However, “[i]f properly invoked, mandatory claim-processing rules must be enforced.” Id. (citing Manrique v. United States, 137 S. Ct. 1266, 1271-72 (2017)). Continue reading “District Courts Can Extend Time to File Notices of Appeal Beyond Time Allowed in the Federal Rules”