Amicus Curiae Brief — Coinbase, Inc., Petitioner v. David Suski, et al.

No. 23-3

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------COINBASE, INC.,

Petitioner,

v.

DAVID SUSKI, ET AL.,

Respondents.

---------------------------------♦--------------------------------On Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

---------------------------------♦--------------------------------AMICUS CURIAE BRIEF OF

ANTHONY MICHAEL SABINO

IN SUPPORT OF PETITIONER

AND SUGGESTING REVERSAL

---------------------------------♦--------------------------------ANTHONY MICHAEL SABINO

SABINO & SABINO, P.C.

92 Willis Avenue, 2nd Floor

Mineola, New York 11501

(516) 294-3199

Anthony.Sabino@sabinolaw.com

December 2023

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

Where parties enter into an arbitration agreement

with a delegation clause, should an arbitrator or a

court decide whether that arbitration agreement is

narrowed by a later contract that is silent as to arbitration and delegation?

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED...................................

i

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

ii

TABLE OF AUTHORITIES .................................

iv

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

1

STATEMENT .......................................................

1

SUMMARY OF ARGUMENT ..............................

2

ARGUMENT ........................................................

3

I.

II.

III.

IN ORDER TO FULFILL THE PROMISE

OF THE FEDERAL ARBITRATION ACT,

IT IS RESPECTFULLY SUGGESTED

THAT THE DECISION BELOW BE REVERSED ....................................................

3

IN ORDER TO ENSURE THAT COURTS

DO NOT NULLIFY CONTRACTUAL TERMS,

NOR DEPRIVE PARTIES OF THE BENEFIT OF THEIR BARGAIN, IT IS RESPECTFULLY SUGGESTED THAT THE

DECISION BELOW BE REVERSED ........

6

FOR REASON THAT IT IS CONTRARY

TO THE STRONG FEDERAL POLICY

FAVORING ARBITRATION, IT IS RESPECTFULLY SUGGESTED THAT THE

DECISION BELOW BE REVERSED ........ 10

iii

TABLE OF CONTENTS – Continued

Page

IV.

FOR REASON THAT IT IS A JUDICIAL

INTERPRETATION WHICH IMPERMISSIBLY FRUSTRATES ARBITRATION,

IT IS RESPECTFULLY SUGGESTED

THAT THE DECISION BELOW BE REVERSED .................................................... 12

V.

IN ORDER TO ENSURE THAT COURTS

DO NOT DEPRIVE PARTIES OF THEIR

PREROGATIVE TO DELEGATE “QUESTIONS OF ARBITRABILITY” TO THE

ARBITRATOR, IT IS RESPECTFULLY

SUGGESTED THAT THE DECISION BELOW BE REVERSED ................................ 14

CONCLUSION..................................................... 20

iv

TABLE OF AUTHORITIES

Page

CASES

AT&T Technologies, Inc. v. Communications

Workers of America, 475 U.S. 643 (1986) .......... 15, 16

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

(2011) ..................................................... 4, 6, 7, 12, 13

American Express Co. v. Italian Colors Restaurant, 570 U.S. 228 (2013)............................... 6, 12, 16

American Express Inc. v. McMahon, 482 U.S. 220

(1987) ................................................................. 15, 16

Buckeye Check Cashing, Inc. v. Cardegna, 546

U.S. 440 (2006) ..........................................................4

Coinbase, Inc. v. Bielski, 599 U.S. ___ (No. 22105) (June 23, 2023) ..................................................7

Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213

(1985) .........................................................................7

Epic Systems Corp. v. Lewis, 584 U.S. ___ (No.

16-285) (May 21, 2018).................. 4, 5, 10, 11, 13, 16

First Options of Chicago, Inc. v. Kaplan, 514 U.S.

938 (1995) ................................................................16

Henry Schein, Inc. v. Archer & White Sales, Inc.,

586 U.S. ___ (No. 17-1272) (January 8, 2019) ... 7, 14, 16

Howsam v. Dean Witter Reynolds, Inc., 537 U.S.

79 (2002) ............................................................ 14, 15

Lamps Plus, Inc. v. Varela, 587 U.S. ___ (No. 17988) (April 24, 2019) .................................................8

Mastrobuono v. Shearson Lehman Hutton, Inc.,

514 U.S. 52 (1995) ........................................... 4, 7, 15

v

TABLE OF AUTHORITIES – Continued

Page

Mitsubishi Motors Corp. v. Soler ChryslerPlymouth, Inc., 473 U.S. 614 (1985) ...................... 7, 8

Morgan v. Sundance, Inc., 596 U.S. ___ (No. 21328) (May 23, 2022) ...................................................4

Moses H. Cone Memorial Hospital v. Mercury

Construction Corp., 460 U.S. 1 (1983) ................. 3, 11

Prima Paint Corp. v. Flood & Conklin Mfg. Co.,

388 U.S. 395 (1967) ...................................................4

Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63

(2010) ................................................................... 6, 15

Stolt-Nielsen S.A. v. AnimalFeeds International

Corp., 559 U.S. 662 (2010) ............................... 6, 8, 14

Suski v. Coinbase, Inc., 55 F.4th 1227 (9th Cir.

2022) ...............................................................9, 17-19

Viking River Cruises, Inc. v. Moriana, 596 U.S.

___ (No. 20-1573) (June 15, 2022) ............................8

Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior University, 489

U.S. 468 (1989) .............................................. 3, 4, 6, 7

STATUTES

9 U.S.C. §§ 1, et seq. ......................................................3

9 U.S.C. § 2 ....................................................................3

9 U.S.C. § 3 ....................................................................3

9 U.S.C. § 4 ....................................................................3

9 U.S.C. § 9 ....................................................................3

vi

TABLE OF AUTHORITIES – Continued

Page

RULES

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

OTHER AUTHORITIES

Anthony M. Sabino & Michael A. Sabino, “Law

of the Land: U.S. Supreme Court Upholds Arbitration Agreements, Despite State Court

Resistance,” 61 Nassau Lawyer 3 (December

2011) ........................................................................13

Anthony M. Sabino, “Supreme Court Illuminates Enforceability of Arbitration Agreements,” 262 New York Law Journal 4 (July 3,

2019) ..........................................................................8

Anthony Michael Sabino, “Awarding Punitive

Damages in Securities Industry Arbitration: Working For A Just Result,” 27 U. of

Richmond L. Rev. 33 (1992) ....................................11

Michael A. Sabino & Anthony M. Sabino, “ ‘Epic’

Decision by Supreme Court Orders Arbitration, Prohibits Class Action,” 259 New York

Law Journal 4 (June 6, 2018) .................................13

1

INTEREST OF AMICUS CURIAE

This amicus curiae is a law professor with expertise in arbitration generally, securities arbitration,

commercial law, and commercial arbitration. Furthermore, this amicus curiae has represented parties in arbitration proceedings, frequently chairs arbitrations

for the Financial Industry Regulatory Authority and

other bodies, and regularly lectures on the precise topics found in the pending controversy. This case addresses the interpretation of the Federal Arbitration

Act, implicates the enforcement of agreements to arbitrate, and, hence, shall determine the proper conduct

of arbitration proceedings in a wide variety of fora.

This amicus curiae has a professional and scholarly interest in the proper application and development of the

law in these domains.1

---------------------------------♦---------------------------------

STATEMENT

This amicus curiae respectfully adopts, in relevant

part, the Statement of the Case set forth in the Petition

for Certiorari filed by the Petitioner herein, Coinbase,

Inc. (hereinafter, “Petitioner”). Petition for Writ of Certiorari at 5.

---------------------------------♦---------------------------------

1

No counsel for a party authored this brief in whole or in

part, and no such counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief. See

Supreme Court Rule 37.6.

2

SUMMARY OF ARGUMENT

The question presented should be answered in favor of the Petitioner, to wit, that the arbitrator, and not

a court, should decide whether an arbitration agreement is narrowed by a later contract that is silent as

to arbitration and delegation. Accordingly, it is respectfully suggested that the decision below be reversed. In

the case at bar, reversal is justified for reason of the

text of the Federal Arbitration Act, the strong federal

policy favoring arbitration, and the lengthy and consistent line of precedents upholding that ideal. The ruling of the lower tribunal denying the arbitrator the

authority to decide the “gateway” question of determining arbitrability is unsupported by the statutory

regime which empowers arbitration, frustrates the

strong federal policy favoring arbitration, and cannot

be reconciled with the Court’s jurisprudence, which for

decades now (including some quite recent arbitration

milestones) has robustly upheld the enforceability of

arbitral accords generally, and the validity of parties’

agreements to delegate “gateway” questions of arbitrability to the arbitrator specifically. Given that the holding now under review denigrated the parties’ choice to

assign to the arbitrator, and not a court, the power to

decide threshold issues of arbitrability, it is respectfully suggested by this amicus curiae that the decision

below be reversed.

---------------------------------♦---------------------------------

3

ARGUMENT

I.

IN ORDER TO FULFILL THE PROMISE

OF THE FEDERAL ARBITRATION ACT, IT

IS RESPECTFULLY SUGGESTED THAT

THE DECISION BELOW BE REVERSED.

Since 1925, arbitration has been regulated, and,

moreover, encouraged, by the Federal Arbitration Act.

9 U.S.C. §§ 1, et seq. (“FAA”). The FAA explicitly directs

the courts to enforce agreements to arbitrate, empowering them to do so by a variety of means.

Foremost in the statutory scheme is Section 2, the

“primary substantive provision of the Act.” Moses H.

Cone Memorial Hospital v. Mercury Construction Corp.,

460 U.S. 1, 24 (1983) (“Moses H. Cone”). The statute

mandates that a written provision in a contract which

calls for the arbitration of controversies “shall be valid,

irrevocable, and enforceable.” 9 U.S.C. § 2 (emphasis

supplied). See Volt Information Sciences, Inc. v. Board

of Trustees of Leland Stanford Junior University, 489

U.S. 468, 474 (1989) (“Volt”). It is noteworthy that the

proviso is stated in the imperative “shall,” and not the

permissive “may” or similar.

Subsequent portions of the FAA also unmistakably work towards the goal of enforcing agreements to

arbitrate. See 9 U.S.C. § 3 (providing for a stay of proceedings for a matter referable to arbitration), § 4

(supplying jurisdiction to compel arbitration), and § 9

(establishing a mechanism for confirming and enforcing an arbitration award). See also Volt, supra, 489

U.S. at 474 (analyzing Sections 2 and 4). In sum and

4

substance, every aspect of the FAA supports the enforcement of agreements to arbitrate. See AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 344 (2011)

(“Concepcion”).

The Court has repeatedly declared that the aim of

the FAA is to ensure private agreements to arbitrate

are enforced according to their terms. See Mastrobuono

v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 57 (1995)

(“Mastrobuono”) (quotation omitted). The Court has

frequently held that the FAA places agreements to arbitrate on “an equal footing with other contracts.” Concepcion, supra, 563 U.S. at 339 (quotations omitted),

citing Buckeye Check Cashing, Inc. v. Cardegna, 546

U.S. 440, 443 (2006). See also Volt, supra, 489 U.S. at

474 and 478.

The Court has declared that the FAA safeguards

arbitral accords from “judicial interference.” Epic Systems Corp. v. Lewis, 584 U.S. ___, ___, slip op. at 3 (No.

16-285) (May 21, 2018) (“Epic”). See also Prima Paint

Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 404

(1967) (the plain language of the Act evinces a clear

legislative intent to prohibit judicial obstructionism to

arbitration). See also Morgan v. Sundance, Inc., 596

U.S. ___, ___, slip op. at 6 (No. 21-328) (May 23, 2022)

(quotation and citation omitted) (the strong federal

policy favoring arbitration acknowledges the FAA’s

commitment to overrule the judiciary’s longstanding

refusal to enforce arbitral accords, and to place such

agreements on the same footing as other contracts).

5

As a recent addition to the pantheon of the Court’s

arbitration jurisprudence, Epic confirms that the statutory components of the FAA constitute a cohesive

scheme which “require[s] courts to respect and enforce

agreements to arbitrate.” Epic, supra, slip op. at 5.

Quite telling is the closing paragraph of Epic, wherein

the Court characterizes that statutory regime as a solemn command from Congress “that arbitration agreements . . . must be enforced as written.” Id., slip op. at

25.

Regrettably, the decision below, as well as certain

of the conflicting cases which swirl about it, threatens

all or most of the precepts stated above. By aggrandizing to itself the power to decide the vital “gateway”

question of what is arbitrable, a matter which the parties specifically reserved to the arbitrator, and not a

court, the lower bench usurped a key element of the

parties’ original bargain.

When a court refuses to permit the arbitrator to

exercise a power explicitly bestowed by the relevant

arbitral accord, it denies the parties the benefit of their

bargain, fails to enforce the pertinent compact as written, places the agreement to arbitrate on a footing different from – -indeed, inferior to – -other contracts, and

evinces, at least implicitly, a form of judicial hostility

to arbitration, an animosity which the FAA was expressly intended to extinguish.

Reversing the circuit opinion shall reinforce the

inexorable statutory edict that agreements to arbitrate shall be valid, irrevocable, and enforceable, an

6

overriding legislative command upheld time and again

by the Court. Moreover, correcting the appellate tribunal in this instance shall assure that arbitral accords

are enforced according to their terms, are on an equal

footing with other contracts, and are safeguarded from

judicial interference.

For these reasons, it is respectfully suggested by

this amicus curiae that the decision below be reversed.

II.

IN ORDER TO ENSURE THAT COURTS DO

NOT NULLIFY CONTRACTUAL TERMS,

NOR DEPRIVE PARTIES OF THE BENEFIT

OF THEIR BARGAIN, IT IS RESPECTFULLY SUGGESTED THAT THE DECISION

BELOW BE REVERSED.

It is a “fundamental principle that arbitration is a

matter of contract.” Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 67 (2010) (“Rent-A-Center”). See also

American Express Co. v. Italian Colors Restaurant, 570

U.S. 228, 233 (2013) (“American Express”). In relation

thereto, it has long been a bedrock principle of this

Court’s jurisprudence that arbitration is a matter of

consent, not coercion. Stolt-Nielsen S.A. v. AnimalFeeds International Corp., 559 U.S. 662, 681 (2010)

(“Stolt-Nielsen”), quoting Volt, supra, 489 U.S. at 479

(quotations omitted). Precisely for these reasons, the

Court’s arbitration landmarks have long affirmed that

“the FAA requires courts to honor parties’ expectations.” Concepcion, supra, 563 U.S. at 351.

7

Agreements to arbitrate must therefore be rigorously enforced. Dean Witter Reynolds Inc. v. Byrd, 470

U.S. 213, 221 (1985). See also Henry Schein, Inc. v.

Archer & White Sales, Inc., 586 U.S. ___, ___, slip op. at

4-5 (No. 17-1272) (January 8, 2019) (“Henry Schein”)

(citation omitted) (courts must enforce arbitration contracts according to their terms, and may not override

the parties’ agreement). As with any other contract,

the parties’ intentions control. Mitsubishi Motors

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

626 (1985) (“Mitsubishi”).

The proper role of the courts is to “give effect to

the contractual rights and expectations of the parties,”

as gleaned from the arbitral accord. Volt, supra, 489

U.S. at 479. As only very recently exemplified by the

Court, these contractual rights typically encompass

the “asserted benefits of arbitration,” among them “efficiency, less expense, less intrusive discovery,” and dispensing with a “trial that [the parties] contracted to

avoid through arbitration,” an expectation “especially

pronounced in class actions,” where there is a risk of

coercive settlements. Coinbase, Inc. v. Bielski, 599 U.S.

___, ___, slip op. at 6 (No. 22-105) (June 23, 2023) (parentheses omitted).

Reflecting that arbitral pacts are just like ordinary

contracts, it has long been acknowledged that parties

are generally free to shape their agreements to arbitrate as they see fit. Mastrobuono, supra, 514 U.S. at

57. See also Concepcion, supra, 563 U.S. at 344 (“The

point of affording parties discretion in designing arbitration processes” is that it empowers them to adopt

8

the rules and procedures they deem best suited to their

particular needs.). Thus, in yet another hallmark of the

Court’s arbitration jurisprudence, it is well known that

parties may categorize the controversies they wish to

submit to the arbitrator for resolution. See generally

Mitsubishi, supra, 473 U.S. at 628 (parties may choose

to include or exclude statutory claims from arbitration,

but are bound to that choice, once made).

Consistent therewith, the Court recently expressed intolerance for procedures or judicial decisions

which unduly circumscribe the freedom of parties to

determine the issues subject to arbitration, and the

rules by which the parties shall arbitrate. Viking River

Cruises, Inc. v. Moriana, 596 U.S. ___, ___, slip op. at

18 (No. 20-1573) (June 15, 2022) (“Viking”), quoting

Lamps Plus, Inc. v. Varela, 587 U.S. ___, ___, slip op. at

7 (No. 17-988) (April 24, 2019) (“Lamps Plus”). Such

contrivances violate the fundamental principle that arbitration is a matter of consent. Viking, supra, slip op.

at 18, citing Stolt-Nielsen, supra, 559 U.S. at 684. See

also Anthony M. Sabino, “Supreme Court Illuminates

Enforceability of Arbitration Agreements,” 262 New

York Law Journal at p. 4, cl. 4 (July 3, 2019) (analyzing

Lamps Plus).

The decision below is difficult, if not impossible, to

reconcile with the foregoing axioms. The lower court

seemingly disregarded the fundamental precept that,

like any other contract, an agreement to arbitrate is to

be rigorously enforced according to its terms. In the

instant case, this would include the parties’ original

accord to refer all questions of arbitrability to the

9

arbitrator, and not a court. By denying the arbitrator

the power to resolve “gateway” questions of arbitrability, and instead diverting that authority to a court, the

appellate panel acted contrary to the Court’s precedents, as set forth herein above, choosing instead to

substitute judicial intervention for contractual stipulations, consent, and the expectations of the parties.

In all likelihood, certain aspects of the arbitral

pact at issue herein should be beyond question. The

first is that the agreement to arbitrate was arrived at

by consent; it was not imposed by coercion. Second, the

signatories contracted to arbitrate all controversies,

with the arbitrator, not a court, resolving “gateway”

questions of arbitrability. Third and last, no doubt the

parties expected a court to honor the terms of their arbitration proviso.

The holding now in controversy confounds the

terms of that agreement to arbitrate, as well as the

parties’ expectations. Among other things, it appears

that the circuit tribunal misconstrued the arbitration

clause herein, by conflating the matter of the existence

of that arrangement with its scope. Suski v. Coinbase,

Inc., 55 F.4th 1227, 1230 (9th Cir. 2022) (“Suski”). That

might explain why the court below rerouted the authority to adjudicate “gateway” questions of arbitrability to a jurist, an eventuality contrary to the bargain

previously agreed to by the parties, whereby they evidently contracted for and presumed a more delimited

role for a court, should some element of their accord

prove controversial.

10

It is respectfully submitted by this amicus curiae

that the decision now under review is antithetical to

the arbitration jurisprudence of the Court, including,

but not limited to, the maxims that arbitration is a

matter of contract, agreements to arbitrate must be enforced according to their terms, and the expectations of

the contracting parties are to be honored. The arbitration landmarks of the Court do not permit the lower

courts to nullify contractual terms; nor do the Court’s

precedents condone judges depriving parties of the

benefit of their bargain.

For these reasons, it is respectfully suggested by

this amicus curiae that the decision below be reversed.

III. FOR REASON THAT IT IS CONTRARY TO

THE STRONG FEDERAL POLICY FAVORING ARBITRATION, IT IS RESPECTFULLY

SUGGESTED THAT THE DECISION BELOW BE REVERSED.

The long and unbroken line of this Court’s arbitration landmarks informs us that, well into the opening

decades of the Twentieth Century, there was widespread judicial hostility towards arbitration as an alternative to traditional litigation. Not long ago, the

Court reminded that, once upon a time, “courts routinely refused to enforce agreements to arbitrate” or

found other means to undermine their effectiveness.

Epic, supra, slip op. at 5.

The strong federal policy validating arbitration

closed that unfortunate chapter in American law.

11

Moses H. Cone, supra, 460 U.S. at 24. See also Anthony

Michael Sabino, “Awarding Punitive Damages in Securities Industry Arbitration: Working For A Just

Result,” 27 U. of Richmond L. Rev. 33, 34-39 (1992)

(summarizing the then-extant landmarks announcing

the strong federal policy favoring arbitration). Consonant with that mandate, for many decades now the

Court has repeatedly and consistently put aside obstacles to the fulfillment of the robust policy favoring arbitration. See generally Epic, supra, slip op. at 16 (“In

many cases over many years, this Court has heard and

rejected efforts to conjure conflicts between the Arbitration Act and other federal statutes.”).

The decision now at the bar is untethered from the

strong federal policy favoring arbitration. In contravention of that policy, and the legislative mandate

which codified it nearly one hundred years ago, the

lower court waylaid the instant controversy from the

parties’ chosen path of arbitration, and instead redirected the dispute to litigation, a track which the parties had eschewed in their original pact.

This ruling by the panel thwarted contractual

terms stipulating arbitration for the resolution of all

controversies, precisely, questions of arbitrability, and

thereby frustrated the expectations of the parties as

signatories to that arbitral accord. All this is inapposite to the strong federal policy favoring arbitration.

Now, in order to uphold that policy, the holding of the

court below must be undone.

12

For these reasons, it is respectfully suggested by

this amicus curiae that the decision below be reversed.

IV. FOR REASON THAT IT IS A JUDICIAL

INTERPRETATION WHICH IMPERMISSIBLY FRUSTRATES ARBITRATION, IT IS

RESPECTFULLY SUGGESTED THAT THE

DECISION BELOW BE REVERSED.

Time and again, consistently, and without hesitation, the Court has set aside judge-made law which

frustrates agreements to arbitrate. See Concepcion, supra, 563 U.S. at 340-41. In dismantling one such obstacle to arbitration, that one emanating from a state

tribunal, the Court warned that judicial hostility towards arbitration “manifest[s] itself in a great variety

of devices and formulas.” Id. at 342 (quotations and citations omitted). Given that Concepcion’s most powerful lessons have already been well illustrated in the

arguments preceding this one, there is no need to regurgitate them here.

The salient point to be made at this juncture is

that the axiom announced in Concepcion held no ambiguity. It pronounced that, whenever judicial interpretations from whatever source prohibit or impede

arbitration, “the analysis is straightforward: The conflicting rule is displaced by the FAA.” Id. at 341. Concepcion provides the rule for decision in the case at bar,

as it has in other, recent arbitration landmarks. See

American Express, supra, 570 U.S. at 238 (“Truth to

tell,” Concepcion “all but resolves” the question.).

13

The decision below is little different from the state

court construct disavowed in Concepcion. The former

suffers from the same flaws as the latter: it is antithetical to the strong federal policy favoring arbitration; it

usurps the contractual terms of the parties’ arbitral accord; and it defeats the parties’ expectations.

It must be noted that, even as the FAA approaches

its centennial, “remnants of [a] ‘litigation only’ ideology

occasionally crop up” in the form of judicially crafted

obstacles to arbitration. Anthony M. Sabino & Michael

A. Sabino, “Law of the Land: U.S. Supreme Court Upholds Arbitration Agreements, Despite State Court Resistance,” 61 Nassau Lawyer at p. 3, cl. 2 (December

2011). Small wonder, then, that the Court not long ago

reaffirmed its obligation to guard against “new devices” intended to confound agreements to arbitrate.

Epic, supra, slip op. at 9, quoted by Michael A. Sabino

& Anthony M. Sabino, “ ‘Epic’ Decision by Supreme

Court Orders Arbitration, Prohibits Class Action,” 259

New York Law Journal at p. 4, cl. 4 (June 6, 2018).

The instant matter is the latest test of the Court’s

commitment to the ideals exemplified in its arbitration

jurisprudence. Refuting the appellate tribunal’s ruling

is not merely imperative for today; it is urgently required to assure that future judicial manifestations

hostile to arbitration, but yet to be conceived, shall not

survive the Court’s scrutiny.

It is respectfully submitted by this amicus curiae

that the decision of the court below is yet another judicial construct irremediably opposed to the text of the

14

FAA, and the strong federal policy favoring arbitration.

As with any judicial interpretation which impermissibly frustrates arbitration, the determination of the

lower court cannot be permitted to stand.

For these reasons, it is respectfully suggested by

this amicus curiae that the decision below be reversed.

V.

IN ORDER TO ENSURE THAT COURTS DO

NOT DEPRIVE PARTIES OF THEIR PREROGATIVE TO DELEGATE “QUESTIONS

OF ARBITRABILITY” TO THE ARBITRATOR, IT IS RESPECTFULLY SUGGESTED

THAT THE DECISION BELOW BE REVERSED.

It is a basic tenet of the Court’s arbitration jurisprudence that “questions of arbitrability” are ordinarily for a court to decide. Howsam v. Dean Witter

Reynolds, Inc., 537 U.S. 79, 83 (2002) (“Howsam”). Yet

the Court issued a contemporaneous warning that this

postulation is to be applied narrowly, and then solely

to prevent the injustice of forcing arbitration upon a

party that had never consented to same. Id. at 83-84

(cautioning that not every threshold or “gateway” controversy amounts to a “question of arbitrability”).

The foregoing is offset by a rule of equal efficacy;

parties to an arbitral accord “may choose who will resolve specific disputes.” Stolt-Nielsen, supra, 559 U.S.

at 683 (emphasis supplied). See also Henry Schein, supra, slip op. at 4 (citation and internal quotations omitted) (“[P]arties may agree to have an arbitrator decide

15

not only the merits of a particular dispute but also

‘gateway’ questions of arbitrability.”). Accordingly, parties to an arbitral pact enjoy the liberty of delegating

questions of arbitrability to the arbitrator, provided

they do so in clear and unmistakable terms. Howsam,

supra, 537 U.S. at 83, quoting AT&T Technologies, Inc.

v. Communications Workers of America, 475 U.S. 643,

649 (1986) (“AT&T Technologies”) (quotation omitted).

The Court has long “recognized that parties can

agree to arbitrate ‘gateway’ questions of ‘arbitrability.’ ” Rent-A-Center, supra, 561 U.S. at 68-69. This line

of cases “merely reflects the principle that arbitration

is a matter of contract.” Id. at 69-70 (footnote and citations omitted). As a corollary to the foregoing, the

Court has characterized “[a]n agreement to arbitrate a

gateway issue [as] simply an additional, antecedent

agreement the party seeking arbitration asks the federal court to enforce.” Id. at 70 (emphasis supplied). Finally, “the FAA operates on this additional arbitration

agreement just as it does on any other,” thereby assuring the dignity of the arbitral accord, unless and until

it is repudiated upon such grounds as exist in law or

equity for the revocation of any contract. Id.

It is therefore unsurprising that the Court’s

landmarks authorize parties to diverge from the ostensible norm, and delegate questions of arbitrability to the arbitrator. For decades now, the Court has

looked on with approval as parties have entrusted arbitrators with the power to decide issues arising under

solemn and complex statutory schemes, such as the

federal securities laws, Shearson/American Express

16

Inc. v. McMahon, 482 U.S. 220, 238 (1987), the Racketeer Influenced and Corrupt Organizations Act, id. at

242, and the federal antitrust laws. American Express,

supra, 570 U.S. at 233-34. See also Epic, supra, slip op.

at 16 (summarizing the above and additional precedents “reject[ing] efforts to conjure conflicts” between

the FAA and other federal statutes). Provided it is

clearly and unmistakably stated, the parties’ delegation of questions of arbitrability to the arbitrator is

indistinguishable from these other, far-reaching assignments of adjudicative authority to arbitrators.

Who determines questions of arbitrability turns

upon “what the parties agreed to about that matter.”

First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938,

943 (1995) (“First Options”) (emphasis in the original).

See also AT&T Technologies, supra, 475 U.S. at 649-50

(parties may agree to submit questions of arbitrability

to the arbitrator, and not a court). The primacy accorded to the choice of the parties is firmly grounded

in “the fact that arbitration is simply a matter of contract,” First Options, supra, 514 U.S. at 943, and arbitral pacts, “like other contracts, are enforced according

to their terms.” Id. at 947 (quotations and citations

omitted). See also Henry Schein, supra, slip op. at 5

(“[A] court may not decide an arbitrability question

that the parties have delegated to an arbitrator.”).

In sum, the Court’s arbitration jurisprudence assigns the first priority to determining what the parties

agreed to with regard to who decides questions of arbitrability. If it appears that the parties have delegated

questions of arbitrability to the arbitrator, the next

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step is to confirm that such a delegation was expressed

in clear and categorical terms.

In the case at bar, a plain reading of the relevant

language should result in the foregoing two inquiries

being answered in favor of the arbitrator, and not a

court, deciding questions of arbitrability. The arbitration clause comprehensively and unequivocally endows the arbitrator, and not a court, with the power to

resolve, inter alia, all issues of the enforceability, revocability, scope, and validity of the arbitral accord. And

even a variant of that base agreement incorporated

rules of the American Arbitration Association, which

were just as unqualified and unmistakable in granting

the arbitrator the power to resolve all disputes regarding the existence, scope or validity of the arbitration

pact. Suski, supra, 55 F.4th at 1229.

Unfortunately, the decision below cannot be easily

squared with these self-evident facts nor, more importantly, the precepts set forth herein above. For one,

it appears that the circuit bench unjustifiably disregarded the parties’ original agreement, precisely, to refer all questions of arbitrability to the arbitrator, and

not a court. In setting aside that fundamental component of the seminal accord, the appellate panel irreparably harmed the parties’ freedom to craft the arbitral

process to their liking.

Furthermore, this unwarranted judicial intervention provoked an outcome clearly at odds with the parties’ original agreement, by expropriating from the

arbitrator the authority to resolve a pivotal threshold

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issue, and instead rechanneling that power to a judicial officer.

Next, the axioms discussed herein above sit in

counterpoise; yet the tribunal below upset that fine

balance, by abruptly tipping the scales toward a court,

contrary to the parties’ evident choice that the arbitrator should determine “gateway” questions of arbitrability.

With due respect for the underlying opinion, it is

difficult to comprehend why the issue of supersession,

if indeed there is one, was declared to be so distinct

that it must be resolved by a court, and not the arbitrator. That conclusion seems especially incongruous

when one contemplates that the parties’ initial agreement clearly and unmistakably vested sweeping authority in the arbitrator to decide a broad range of

controversies, including the existence, scope or validity of the arbitral agreement. Suski, supra, 55 F.4th at

1229.

Indeed, the foregoing inevitably leads to the following, closing observations. Respectfully, it would

seem to make little sense that mere contest rules are

capable of vitiating a contractual commitment to refer

all “gateway” questions of arbitrability to the arbitrator, and not a court, especially given that, as the lower

court found, said rules “contain no language specifically revoking the parties’ arbitration agreement.” Id.

at 1231. In any event, should not that question be decided, in the first instance, by the arbitrator, and not a

jurist, just as the parties agreed?

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Finally, the signatories to the initial accord are

distinguishable from other contest entrants: the former expressly assigned all questions of arbitrability

to the arbitrator, and not a court; the latter, while

they might have consented to the contest rules, never

subscribed to the arbitral pact. See id. at 1231. Respectfully, it is the proverbial “apples versus oranges”

scenario, which the circuit panel seemingly did not

take into account. Moreover, should the Court decide to

reverse the appellate tribunal, such a ruling shall not

impact the distinct rights of the other contest entrants,

as they stand separate and apart from the parties

herein.

It is respectfully submitted by this amicus curiae

that the decision now under review misapprehends the

Court’s arbitration jurisprudence regarding who decides questions of arbitrability, fails to recognize the

ability of parties to contractually delegate the determination of such issues to the arbitrator, and unjustifiably amplifies judges’ discretion to decide questions of

arbitrability. Accordingly, the holding now at issue

should be reversed, in order to ensure that the lower

courts do not deprive parties of their prerogative to delegate “gateway” questions of arbitrability to the arbitrator, and to further augment the Court’s well settled

jurisprudence in this domain.

For these reasons, it is respectfully suggested by

this amicus curiae that the decision below be reversed.

---------------------------------♦---------------------------------

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CONCLUSION

Respectfully, for all the reasons set forth herein

above, it is suggested by this amicus curiae that the

decision below be reversed.

Respectfully submitted,

ANTHONY MICHAEL SABINO

SABINO & SABINO, P.C.

92 Willis Avenue, 2nd Floor

Mineola, New York 11501

(516) 294-3199

Anthony.Sabino@sabinolaw.com

December 2023