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.
Continue reading “Henry Schein, Inc., II: Post-Argument Analysis”
On March 19, 2019, the United States Supreme Court took a middle-ground approach in deciding when, under federal maritime law, a “bare-metal” manufacturer is liable for failure to warn of dangers posed by parts used with its products, even though they are made by other manufacturers. Rejecting both a “foreseeability” standard and the “bare metal defense,” the 6-3 majority in Air & Liquid Systems Corp. v. DeVries held that “[i]n the maritime tort context, a product manufacturer has a duty to warn when (i) its product requires incorporation of a part, (ii) the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and (iii) the manufacturer has no reason to believe that the product’s users will realize that danger.”
Read the full Duane Morris LLP Alert.
On June 4, 2018, the U.S. Supreme Court issued its opinion in Lamar, Archer & Cofrin, LLP v. Appling, 584 U.S. ___ (2018), resolving a circuit split on the issue of whether a debtor’s statement about a single asset constitutes “a statement respecting the debtor’s financial condition” for the purposes of 11 U.S.C. § 523(a)(2). Affirming the Eleventh Circuit’s decision, 848 F.3d 953 (11th Cir. 2017), the Supreme Court held that a debtor’s statement about a single or specific asset does fall within the scope of the statutory phrase “a statement respecting the debtor’s financial condition,” and therefore, such a statement must be made in writing in order to constitute grounds for nondischargeability.
Read the full text of this client Alert on the Duane Morris LLP website.
The manner in which small businesses can easily solicit orders and sell merchandise over the internet may soon end. In its place, the Supreme Court may require a more regimented and costly scheme that may force many small businesses to go out of business or limit their sales to certain states. It all depends on the outcome of a recent case in the Supreme Court called South Dakota v. Wayfair, Inc. While Wayfair itself is not a small business, a decision in this case could adversely impact many small businesses that argue, like Wayfair, that they should have some presence in the state (and thus be a user of state services) before a state can impose a tax or tax collection duty on them. On the other hand, many larger businesses, local nonweb businesses and the states believe all businesses, whether in a state or not, should collect sales/use tax to even the playing field, and if some small businesses can’t hack it or handle the administrative or financial cost, so be it. This is the background on the issues at play in Wayfair.
Read the full Alert on the Duane Morris LLP website.
By Brian J. Slipakoff and Joseph J. Pangaro
As Justice Neil Gorsuch’s confirmation hearings progressed in the early part of 2017, one of the most commonly discussed aspects of his legal background was his opposition to administrative deference. The legal profession will surely be watching to see whether the Supreme Court’s long standing position “that considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer” will remain intact. Chevron, U.S.A., Inc. v. Nat. Resources Def. Council, Inc., 467 U.S. 837 (1984). However, administrative deference is not simply a federal issue, and Pennsylvania’s view of the question is closely tied to the federal regime. Continue reading “The Future of Administrative Deference in Pennsylvania”