Amicus Curiae Brief — Lamps Plus, Inc., et al., Petitioners v. Frank Varela

No. 17-988

In the

Supreme Court of the United States

LAMPS PLUS, INC., et al.,

Petitioners,

v.

FRANK VARELA,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of A ppeals for the Ninth Circuit

BRIEF AMICUS CURIAE OF THE

CHAMBER OF COMMERCE OF THE

UNITED STATES OF AMERICA IN

SUPPORT OF PETITIONERS

Steven P. Lehotsky

Warren Postman

U.S. Chamber Litigation

Center, Inc.

1615 H Street, NW

Washington, DC 20062

(202) 463-5337

Thomas R. McCarthy

Counsel of Record

Bryan K. Weir

Consovoy McCarthy

Park PLLC

3033 Wilson Boulevard, Suite 700

Arlington, VA 22201

(703) 243-9423

tom@consovoymccarthy.com

Attorneys for Amicus Curiae

February 12, 2018

278693

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . ii

INTEREST OF AMICUS CURIAE . . . . . . . . . . . . . . . . 1

INTRODUCTION AND SUMMARY

OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I.

The Decision Below Patently Violates

The FAA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

A. The Decision Below Is A “Palpable

Evasion” Of Stolt-Nielsen . . . . . . . . . . . . . . . 7

B. T he Pa nel Dec i sion A l so Ru n s

Afoul Of The Liberal Federal Policy

Favoring Arbitration . . . . . . . . . . . . . . . . . . . 9

II. Summary Reversal Is Warranted . . . . . . . . . . . 10

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

ii

TABLE OF CITED AUTHORITIES

Page

CASES

14 Penn Plaza LLC v. Pyett,

556 U.S. 247 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Agostini v. Felton,

521 U.S. 203 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

American Express Co. v.

Italian Colors Restaurant,

570 U.S. 228 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 4

AT&T Mobility LLC v. Concepcion,

563 U.S. 333 (2011) . . . . . . . . . . . . . . . . . . . . . . . passim

Citizens Bank v. Alafabco, Inc.,

539 U.S. 52 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Buckeye Check Cashing, Inc. v. Cardegna,

546 U.S. 440 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 6

CompuCredit Corp. v. Greenwood,

565 U.S. 95 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Dean Witter Reynolds, Inc. v. Byrd,

470 U.S. 213 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 6

DirecTV, Inc. v. Imburgia,

136 S. Ct. 463 (2015) . . . . . . . . . . . . . . . . . . 8, 10, 11, 12

iii

Cited Authorities

Page

Dudley v. Stubbs,

489 U.S. 1034 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Gilmer v. Interstate/Johnson Lane Corp.,

500 U.S. 20 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Kindred Nursing Ctrs. v. Clark,

137 S. Ct. 1421 (2017) . . . . . . . . . . . . . . . . . . . . . 3, 8, 11

KPMG LLP v. Cocchi,

565 U.S. 18 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 11

Marmet Health Care Ctr. v. Brown,

565 U.S. 530 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Mastrobuono v. Shearson Lehman Hutton, Inc.,

514 U.S. 52 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Mitsubishi Motors Corp. v.

Soler Chrysler-Plymouth, Inc.,

473 U.S. 614 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 9

Moses H. Cone Mem’l Hosp. v.

Mercury Constr. Corp.,

460 U.S. 1 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Nitro-Lift Techs., L.L.C. v. Howard,

568 U.S. 17 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 11

iv

Cited Authorities

Page

Oxford Health Plans LLC v. Sutter,

569 U.S. 564 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Perry v. Thomas,

482 U.S. 483 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Preston v. Ferrer,

552 U.S. 346 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 9

Rodriguez de Quijas v.

Shearson/American Express, Inc.,

490 U.S. 477 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Scherk v. Alberto-Culver Co.,

417 U.S. 506 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Schweiker v. Hansen,

450 U.S. 785 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp.,

559 U.S. 662 (2010) . . . . . . . . . . . . . . . . . . . . . . . passim

Volt Information Sciences, Inc. v. Board of

Trustees of Leland Stanford Junior Univ.,

489 U.S. 468 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5

STATUTES AND OTHER AUTHORITIES

9 U.S.C. § 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

v

Cited Authorities

Page

Sup. Ct. R. 37.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Ch r i st opher R . D r a hoz a l & Pet er B.

Rutledge, Contra ct an d Procedure,

94 Marq. L. Rev. 1103 (2011) . . . . . . . . . . . . . . . . . . . . 6

Eugene Gressman et al., Supreme Cou r t

Practice (9th ed. 2007) . . . . . . . . . . . . . . . . . . . . . . . . 11

Larry R. Leiby, Class Arbitrations Under Attack—

But Survive, 7 No. 1 Journal of the American

College of Construction Lawyers (Jan. 2013) . . . . . . 6

1

INTEREST OF AMICUS CURIAE1

The Chamber of Commerce of the United States of

America is the world’s largest federation of businesses

and associations. The Chamber represents three hundred

thousand direct members and indirectly represents an

underlying membership of more than three million U.S.

businesses and professional organizations of every size

and in every economic sector and geographic region of

the country. An important function of the Chamber is to

represent the interests of its members in matters before

the courts, Congress, and the Executive Branch.

To that end, the Chamber regularly files amicus

curiae briefs in cases that raise issues of concern to the

Nation’s business community, including cases involving

the enforceability of arbitration agreements. See, e.g.,

American Express Co. v. Italian Colors Restaurant, 570

U.S. 228 (2013); Oxford Health Plans LLC v. Sutter, 569

U.S. 564 (2013); AT&T Mobility LLC v. Concepcion, 563

U.S. 333 (2011).

Many of the Chamber’s members regularly employ

arbitration agreements in their contracts. Arbitration

allows them to resolve disputes promptly and efficiently

while avoiding the costs associated with traditional

litigation. Arbitration is speedy, fair, inexpensive, and

1. Pursuant to this Court’s Rule 37.6, counsel for amicus

curiae certifies that this brief was not authored in whole or in part

by counsel for any party and that no person or entity other than

amicus curiae, its members, or its counsel has made a monetary

contribution intended to fund the preparation or submission of this

brief. All parties have received timely notice of amicus curiae’s

intent to file and consented to the filing of this brief.

2

less adversarial than litigation in court. Based on the

legislative policies reflected in the Federal Arbitration

Act (“FAA”) and this Court’s consistent endorsement

of arbitration, the Chamber’s members have structured

millions of contractual relationships around arbitration

agreements.

Amicus thus has a strong interest in the faithful and

consistent application of this Court’s FAA jurisprudence

and, in particular, the FAA’s “two goals”—“enforcement

of private agreements and encouragement of efficient and

speedy dispute resolution.” Dean Witter Reynolds, Inc.

v. Byrd, 470 U.S. 213, 221 (1985).

INTRODUCTION AND SUMMARY

OF ARGUMENT

One of the fundamental precepts of the FAA is that

“arbitration ‘is a matter of consent, not coercion.’” StoltNielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662,

681 (2010) (quoting Volt Information Sciences, Inc. v.

Board of Trustees of Leland Stanford Junior Univ., 489

U.S. 468, 479 (1989)); see also Volt, 489 U.S. at 478-79

(underscoring the congressional goal of “ensuring that

private arbitration agreements are enforced according

to their terms”). Consistent with that baseline precept,

this Court held in Stolt-Nielsen that “a party may not be

compelled under the FAA to submit to class arbitration

unless there is a contractual basis for concluding that

the party agreed to do so.” 559 U.S. at 684. Courts and

arbitrators thus may not infer “[a]n implicit agreement to

authorize class-action arbitration … solely from the fact

of the parties’ agreement to arbitrate.” Id. at 685.

3

But that is precisely what the Ninth Circuit panel

majority (Reinhardt & Wardlaw, JJ.) did in this case.

The majority held that class arbitration was required,

notwithstanding the fact that there was no contractual

basis for doing so. To be sure, the panel purported to

rely on language within the arbitration agreement. But

that contract language did nothing more than replace

litigation with arbitration as the parties’ agreed-upon

mechanism for dispute resolution by waiving the right

to go to court and resolve disputes via trial. That is, the

relevant contract language did precisely what any gardenvariety arbitration agreement does: it waived “the right

to go to court and receive a jury trial.” Kindred Nursing

Ctrs. v. Clark, 137 S. Ct. 1421, 1427 (2017).

Judge Fernandez (in dissent) described the panel’s

decision as a “palpable evasion of Stolt-Nielsen.” Pet.

App. 5a. This is an apt description. But the decision is

even worse than that. By forcing class procedures on the

parties, the panel robbed the parties of the advantages

of arbitration as envisioned by the FAA, thereby running

afoul of the “liberal federal policy favoring arbitration.”

AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339

(2011).

Summary reversal is warranted here. See, e.g.,

Nitro-Lift Techs., L.L.C. v. Howard, 568 U.S. 17 (2012)

(per curiam); Marmet Health Care Ctr. v. Brown, 565

U.S. 530 (2012) (per curiam); KPMG LLP v. Cocchi, 565

U.S. 18 (2011) (per curiam). The decision below is clearly

erroneous; the panel’s evasion of Stolt-Nielsen is precisely

the type of hostility toward arbitration the FAA was

meant to eradicate; the decision threatens to undermine

the enforcement of arbitration agreements throughout the

4

Ninth Circuit; and, if left uncorrected, the decision may

green-light other circuits to engage in similar hostility

against the FAA.

ARGUMENT

I.

The Decision Below Patently Violates The FAA.

In 1925, Congress responded to “centuries of judicial

hostility to arbitration agreements,” by enacting the FAA.

Scherk v. Alberto-Culver Co., 417 U.S. 506, 510 (1974).

The FAA codified a “national policy favoring arbitration”

and “place[d] arbitration agreements on equal footing

with all other contracts,” Buckeye Check Cashing, Inc. v.

Cardegna, 546 U.S. 440, 443 (2006); see also American

Express Co. v. Italian Colors Restaurant, 570 U.S. 228,

232 (2013) (“Congress enacted the FAA in response to

widespread judicial hostility to arbitration.”); Gilmer v.

Interstate/Johnson Lane Corp., 500 U.S. 20, 24 (1991)

(“[The FAA’s] purpose was to reverse the longstanding

judicial hostility to arbitration agreements that had

existed at English common law and had been adopted by

American courts, and to place arbitration agreements

upon the same footing as other contracts.”).

Section 2 is the FAA’s centerpiece. See Moses H. Cone

Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24

(1983). It makes written arbitration agreements “valid,

irrevocable, and enforceable” as a matter of federal law,

“save upon such grounds as exist at law or in equity for the

revocation of any contract,” 9 U.S.C. § 2; see also Perry

v. Thomas, 482 U.S. 483, 489 (1987). Section 2 “create[s]

a body of federal substantive law of arbitrability,” id., a

“principal purpose” of which is to “ensur[e] that private

5

arbitration agreements are enforced according to their

terms,” Volt, 489 U.S. at 478-79.

Consistent with this purpose and the consensual

nature of arbitration, parties “are generally free to

structure their arbitration agreements as they see fit.”

Mastrobuono v. Shearson Lehman Hutton, Inc., 514

U.S. 52, 57 (1995) (quotation omitted). And courts and

arbitrators must “give effect to the[ir] contractual rights

and expectations,” Volt, 489 U.S. at 479. Accordingly,

parties may (and often do) agree on the issues they choose

to arbitrate, the forum in which the arbitration will take

place, the rules under which arbitration will proceed, and

who will resolve specific issues. See Mitsubishi Motors

Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628

(1985); Volt, 489 U.S. at 479; Stolt-Nielsen, 559 U.S. at 683.

As the Court explained in Stolt-Nielsen, parties also

“may specify with whom they choose to arbitrate their

disputes.” 559 U.S. at 683. Because courts and arbitrators

must “give effect to the intent of the parties … it follows

that a party may not be compelled under the FAA to

submit to class arbitration unless there is a contractual

basis for [doing so].” Id. at 684. And because the shift

from bilateral to class arbitration interferes with the

fundamental attributes of arbitration as envisioned by

the FAA, the Court explained, “it cannot be presumed the

parties consented to [class arbitration] by simply agreeing

to submit their disputes to an arbitrator.” Id. at 685. To

so presume would violate the FAA’s purpose of ensuring

that arbitration agreements are enforced “according to

their terms.” Volt, 489 U.S. at 478-479.

6

Moreover, requiring class procedures in arbitration

where they are not consensual would violate the FAA’s

other primary purpose—“encourag[ing] efficient and

speedy dispute resolution.” Dean Witter Reynolds, 470

U.S. at 221. Consistent with the “national policy favoring

arbitration,” Buckeye Check Cashing, 546 U.S. at 443, the

FAA was meant to promote “streamlined proceedings and

expeditious results,” Preston v. Ferrer, 552 U.S. 346, 357-58

(2008) (quotation omitted). But imposing class procedures

on arbitration would replace the advantages inherent

in bilateral arbitration—informality, inexpensiveness,

efficiency—with “procedural formalit[ies]” that “make[]

the process slower [and] more costly.” Concepcion, 563

U.S. at 348-49. In short, this would “interfere[] with

fundamental attributes of arbitration and thus create[]

a scheme inconsistent with the FAA.” Id. at 344. That is

why “express contract provisions permitting arbitration

on a class basis are rare.” Christopher R. Drahozal &

Peter B. Rutledge, Contract and Procedure, 94 Marq.

L. Rev. 1103, 1160 (2011); see also Larry R. Leiby, Class

Arbitrations Under Attack—But Survive, 7 No. 1 Journal

of the American College of Construction Lawyers 4 (Jan.

2013) (“An arbitration agreement or clause that expressly

provides for class arbitration would be rare. The author

has never seen one.”).

As explained more fully below, the panel held that

the parties must proceed to class arbitration based solely

on routine contractual language of the kind found in any

arbitration agreement—that is, without “a contractual

basis for concluding that the part[ies] agreed to [class

procedures].” Stolt-Nielsen, 559 U.S. at 684. “The

panel’s conclusion [thus] is fundamentally at war with the

foundational FAA principle that arbitration is a matter of

7

consent.” Id. at 684. On top of that, the panel’s decision is

inconsistent with the national policy in favor of arbitration.

Concepcion, 563 U.S. at 339.

A.

The Decision Below Is A “Palpable Evasion”

Of Stolt-Nielsen.

As noted above, Stolt-Nielsen makes clear that courts

and arbitrators may not infer “[a]n implicit agreement

to authorize class-action arbitration … solely from the

fact of the parties’ agreement to arbitrate.” 559 U.S. at

685. “[T]he FAA requires more.” Id. at 687. The Court

left open in Stolt-Nielsen how much more is required. Id.

at 687 n.10. But as Petitioners put it, the panel majority

“resolv[ed] the question left open in Stolt-Nielsen in a

manner fundamentally incompatible with Stolt-Nielsen

itself.” Pet. 13.

The panel relied on three provisions of the arbitration

agreement in holding that the parties must proceed

to class arbitration. Specifically, the panel relied on

Respondent’s waiver of “any right I may have to file a

lawsuit or other civil action or proceeding relating to my

employment with the Company” and “any right I may have

to resolve employment disputes through trial by judge or

jury,” as well as his agreement that “arbitration shall be in

lieu of any and all lawsuits or other civil legal proceedings

relating to my employment.” Pet. App. 3a.

But these provisions do nothing more than replace

litigation with arbitration as the parties’ mechanism for

dispute resolution—by waiver of the right to go to court

and resolve disputes via a jury (or bench) trial. Every

arbitration agreement does at least this; indeed, “a waiver

8

of the right to go to court and receive a jury trial” is “the

primary characteristic of an arbitration agreement.”

Kindred Nursing Ctrs., 137 S. Ct. at 1427. Petitioners thus

are correct to point out that, if these routine provisions

“were enough, then any arbitration agreement that does

not expressly waive class procedures could support an

inference that the parties agreed to class arbitration.”

Pet. 13. 2 That is, the opinion in practice creates a default

rule that ordinary arbitration agreements result in class

arbitration unless the parties expressly disclaim this

result. The Ninth Circuit has thus inverted the holding

of Stolt-Nielsen.

Judge Fernandez was accordingly correct to describe

the panel majority’s decision as a “palpable evasion

of Stolt-Nielsen.” Pet. App. 5a. Indeed, the panel’s

(mis)application of Stolt-Nielsen would reduce that

important precedent to a practical nullity. Pet. 13. StoltNielsen would have no effect—except for in the rare

case where parties stipulate that contractual silence

on the issue of class arbitration means “there’s been no

agreement that has been reached on that issue.” 559 U.S.

at 668-69 (quotation omitted); see Pet. App. 2a.

2. As Petitioners explain, the canon construing ambiguous

contract language against the drafter has no effect here. See Pet.

18-19. “[T]he reach of [that canon] must have limits, no matter who

the drafter was.” DirecTV, Inc. v. Imburgia, 136 S. Ct. 463, 470

(2015). The key limit here, of course, is that the relevant contract

language must be ambiguous. But the provisions relied upon by the

panel are “not ambiguous.” Pet. App. 5a (Fernandez, J, dissenting).

Given a proper reading, the agreement “demonstrat[es] the parties’

intent to engage in traditional, bilateral arbitration.” Pet. 14.

9

B. The Panel Decision Also Runs Afoul Of The

Liberal Federal Policy Favoring Arbitration.

As explained above, the panel violated Stolt-Nielsen’s

rule that “a party may not be compelled under the FAA

to submit to class arbitration unless there is a contractual

basis for concluding that the party agreed to do so.” 559

U.S. at 684. By requiring class arbitration where it is not

consensual, the panel also ran afoul of the “liberal federal

policy favoring arbitration.” Concepcion, 563 U.S. at 339

(quotation omitted).

As the Court has emphasized, “[its] cases place it

beyond dispute that the FAA was designed to promote

arbitration.” Id. at 345. To the point, the Court has

repeatedly remarked that the “prime objective” of

arbitration to “achieve streamlined proceedings and

expeditious results,” Preston, 552 U.S. at 357-58 (quotation

omitted), and that this is why parties choose arbitration

as a means of resolving their disputes, see 14 Penn Plaza

LLC v. Pyett, 556 U.S. 247, 257 (2009) (“Parties generally

favor arbitration precisely because of the economics of

dispute resolution.”); see also Mitsubishi Motors, 473 U.S.

at 633 (“[I]t is typically a desire to keep the effort and

expense required to resolve a dispute within manageable

bounds that prompts them mutually to forgo access to

judicial remedies.”).

As the Court explained in Concepcion, requiring

classwide arbitration where it is not consensual interferes

with the fundamental attributes of arbitration and

undermines its prime objectives. “[S]witch[ing] from

bilateral to class arbitration sacrifices the principal

advantage of arbitration—its informality.” 563 U.S. at 348.

10

Indeed, “class arbitration requires procedural formality.”

Id. at 349. It thus makes dispute resolution “slower, more

costly, and more likely to generate procedural morass than

final judgment.” Id. at 348. By shifting to class arbitration,

then, “the expedition, informality, and cost-savings of

traditional bilateral arbitration are lost.” Pet. 25.

At the same time, shifting to class arbitration “greatly

increases risks to defendants,” Concepcion, 563 U.S.

at 350—because of the sharply limited judicial review

inherent in arbitration. As the Court has noted, “[t]he

absence of multilayered review makes it more likely that

errors will go uncorrected.” Id. Parties are willing to

accept these errors when “their impact is limited to the

size of individual disputes” and “outweighed by savings

from avoiding the courts.” Id. But when faced with the

prospect of damages aggregated among thousands of

claimants, the risk of error becomes to great to bear. Id.

(“Faced with even a small chance of a devastating loss,

defendants will be pressured into settling questionable

claims.”).

Class arbitration thus negates the chief advantages

of arbitration and magnifies its disadvantages. It is “not

arbitration as envisioned by the FAA.” Id. at 351. Rather,

it “is a worst-of-both worlds hybrid of arbitration and

litigation.” Pet. 25. Accordingly, the imposition of class

procedures (where it is nonconsensual) flouts the FAA

and its federal policy in favor of arbitration.

II. Summary Reversal Is Warranted.

“No one denies that lower courts must follow this

Court’s holding[s].” DirecTV, Inc. v. Imburgia, 136 S.

11

Ct. 463, 468 (2015). Thus is true in FAA cases, just the

same as in all other areas of the law. See id. Accordingly,

when lower courts fail to apply this Court’s decisions

interpreting the FAA, the Court has not hesitated to

intervene. See Kindred Nursing Ctrs., 137 S. Ct. at 142728; Imburgia, 136 S. Ct. at 468-71. In fact, the Court has

summarily reversed “several times in recent years to set

aside manifest failures by lower courts to adhere to this

Court’s arbitration rulings.” Pet. 27. See Nitro-Lift, 568

U.S. 17; Marmet Health, 565 U.S. 530; Cocchi, 565 U.S.

18; Citizens Bank v. Alafabco, Inc., 539 U.S. 52 (2003)

(per curiam).

Summary reversal is undoubtedly “strong medicine.”

Dudley v. Stubbs, 489 U.S. 1034, 1039 (1989) (O’Connor,

J., dissenting). But this is one of those cases in which that

medicine is needed. The relevant law “is settled and stable,

the facts are not in dispute, and the decision below is

clearly in error.” Eugene Gressman et al., Supreme Court

Practice 350 (9th ed. 2007) (quoting Schweiker v. Hansen,

450 U.S. 785, 791 (1981) (Marshall, J., dissenting)); see also

id. at 352 (“[T]he Court has shown no reluctance to reverse

summarily a … decision found to be clearly erroneous.”).

And this is not the first time the Ninth Circuit has failed

to properly apply the FAA and this Court’s precedents

interpreting it. See, e.g., Concepcion, 563 U.S. 333;

CompuCredit Corp. v. Greenwood, 565 U.S. 95 (2012).

Summary reversal is especially warranted given the

judicial hostility to arbitration exhibited by the court

below. Pet. 27 (“It is hard to imagine a result more inimical

to the strong federal policy favoring arbitration embodied

by the FAA.”). As Judge Fernandez aptly put it, the Ninth

Circuit’s decision is a “palpable evasion of Stolt-Nielsen,”

12

App. 5a (Fernandez, J., dissenting). Indeed, the panel

“underruled” Stolt-Nielsen, rendering it a nullity within

the Ninth Circuit. See supra p. 8. Lower courts, of course,

are not permitted to nullify this Court’s precedents.

Although they are “free to note their disagreement with

a decision of this Court,” Imburgia, 136 S. Ct. at 468,

they nonetheless must follow it. Only “‘this Court [has]

the prerogative of overruling its own decisions.’” Agostini

v. Felton, 521 U.S. 203, 237 (1997) (quoting Rodriguez

de Quijas v. Shearson/American Express, Inc., 490 U.S.

477, 484 (1989)).

If left uncorrected, the panel decision would

undermine the enforcement of arbitration agreements

throughout the Ninth Circuit. Defendants across the nine

States within the circuit who have entered into “gardenvariety arbitration agreements like the one in this case …

will be deterred from enforcing them whenever the claims

at issue are potentially subject to class-wide treatment.”

Pet. 26-27.

Worse still, decisions like the one below, if left

unchecked, allow judicial hostility to arbitration to persist

elsewhere and may green-light other circuits to engage in

similar hostility against the FAA. This would upset the

uniform, faithful application of the FAA that is critical to

amicus and its members. 3

3. An additional factor weighing in favor of summary

reversal is the panel’s issuance of its decision as an unpublished

memorandum disposition. Pet. App. 1a. Given the presence of a

dissent—particularly one that deemed the panel decision contrary

to this Court’s precedent—the decision was clearly a contestable

one and cannot fairly be passed off as a routine application of

settled precedent. This Court should not allow an “unpublished”

13

CONCLUSION

Amicus curiae respectfully requests that the Court

grant the petition for certiorari and summarily reverse

the judgment of the Ninth Circuit.

Respectfully submitted,

Steven P. Lehotsky

Thomas R. McCarthy

Warren Postman

Counsel of Record

U.S. Chamber Litigation

Bryan K. Weir

Center, Inc.

Consovoy McCarthy

1615 H Street, NW

Park PLLC

Washington, DC 20062

3033 Wilson Boulevard, Suite 700

Arlington, VA 22201

(202) 463-5337

(703) 243-9423

tom@consovoymccarthy.com

Attorneys for Amicus Curiae

February 12, 2018

designation to insulate such contestable and important holdings

from further review.