Petition for Writ of Certiorari — Tug Hill Operating, LLC, Petitioner v. Lastephen Rogers

No. ______

In the

Supreme Court of the United States

________________

TUG HILL OPERATING, LLC,

v.

Petitioner,

LASTEPHEN ROGERS, individually and for others

similarly situated,

________________

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

________________

PETITION FOR WRIT OF CERTIORARI

________________

PHILIP M. COOPER

JOHN C. O’QUINN

KIRKLAND & ELLIS LLP Counsel of Record

300 North LaSalle

LUCAS H. FUNK*

Chicago, IL 60654

KIRKLAND & ELLIS LLP

1301 Pennsylvania Ave., NW

Washington, DC 20004

(202) 389-5000

john.oquinn@kirkland.com

Counsel for Petitioner

*Additional Counsel Information Listed on Inside Cover

December 15, 2023

*Admitted only in Oregon and practice is supervised by

principals of the Firm.

QUESTION PRESENTED

Arbitration agreements frequently allow the

arbitrator to “decide not only the merits of a particular

dispute but also ‘gateway’ questions of ‘arbitrability.’”

Henry Schein, Inc. v. Archer & White Sales, Inc., 139

S. Ct. 524, 529 (2019) (citation omitted). When an

“agreement delegates the arbitrability issue to an

arbitrator, a court may not decide [it].” Id. at 530.

Arbitrability issues include “whether the arbitration

contract b[inds] parties who did not sign the

agreement.” Howsam v. Dean Witter Reynolds, Inc.,

537 U.S. 79, 84 (2002).

Yet when faced with agreements that delegate

arbitrability issues to the arbitrator, the circuits have

split 5-to-3 on if a court may nonetheless decide

whether the agreement covers a nonsignatory. The

Fourth Circuit recently joined the short side by

refusing to enforce Respondent Lastephen Rogers’s

clear agreement to arbitrate such “threshold issues.”

App.15. Rogers had sued Petitioner Tug Hill for

classifying him as an independent contractor, and Tug

Hill sought arbitration as a third-party beneficiary of

the contract between Rogers and the “company that

had helped Rogers find the position with Tug Hill.”

App.3. But rather than let the arbitrator exercise its

“exclusive” power to interpret the agreement, the

court simply construed it to find that Tug Hill was not

“a third-party beneficiary.” App.5, 17-20.

The question presented is:

When an arbitration agreement delegates

gateway questions of arbitrability to the arbitrator,

may a court still interpret the agreement for itself to

decide whether the agreement covers nonsignatories?

ii

PARTIES TO THE PROCEEDING

Tug Hill Operating, LLC is the petitioner here

and was defendant-appellee below.

Lastephen Rogers, on behalf of himself and all

others similarly situated, is the respondent here and

was plaintiff-appellant below.

RUSCO Operating, LLC sought intervention in

the district court and was defendant-intervenorappellee below.

iii

CORPORATE DISCLOSURE STATEMENT

Tug Hill Operating, LLC has no parent

corporation. Its sole member is Tug Hill, Inc., and no

publicly held corporation owns more than 10% of Tug

Hill, Inc.’s stock.

iv

STATEMENT OF RELATED PROCEEDINGS

Rogers v. Tug Hill Operating, LLC, No. 22-1480

(CA4) (opinion issued and judgment entered August 7,

2023; mandate issued August 29, 2023).

Rogers v. Tug Hill Operating, LLC, No. 5:21-cv199 (N.D. W.Va.) (opinion issued April 12, 2022,

granting motion to dismiss and compel arbitration and

granting motion to intervene of RUSCO Operating,

LLC).

There are no additional proceedings in any court

that are directly related to this case.

v

TABLE OF CONTENTS

QUESTION PRESENTED .......................................... i

PARTIES TO THE PROCEEDING ........................... ii

CORPORATE DISCLOSURE STATEMENT ........... iii

STATEMENT OF RELATED PROCEEDINGS ....... iv

PETITION FOR WRIT OF CERTIORARI ................ 1

OPINIONS BELOW ................................................... 5

JURISDICTION ......................................................... 5

STATUTORY PROVISION INVOLVED ................... 5

STATEMENT OF THE CASE ................................... 6

I.

Rogers Signs An Arbitration Agreement To

Find Work With Tug Hill. ................................... 6

II. Rogers Sues Over His Work For Tug Hill. ......... 8

III. The Fourth Circuit Decides The Arbitrability

Question Of Tug Hill’s Rights Under The

Agreement............................................................ 9

REASONS FOR GRANTING THE PETITION....... 10

I.

The Circuits Are Split On Whether A Court

May Interpret A Nonsignatory’s Contractual

Rights Despite A Delegation Of Questions Of

Arbitrability. ...................................................... 12

A. Three Circuits Hold That A Court May

Interpret A Nonsignatory’s Contractual

Rights Despite A Delegation Of

Questions Of Arbitrability. ........................ 12

B. Five Circuits And Several Districts Hold

That A Delegation Of Questions Of

Arbitrability Requires The Arbitrator To

Decide A Nonsignatory’s Rights. ............... 15

vi

II. This Case Presents An Important Question In

A Clean Vehicle. ................................................ 19

III. The Fourth Circuit Erred In Deciding The

Arbitrability Question For Itself....................... 22

CONCLUSION ......................................................... 31

APPENDIX

Appendix A

Opinion, United States Court of Appeals

for the Fourth Circuit, Rogers. v. Tug Hill

Operating, LLC, No. 22-1480 (Aug. 7,

2023)............................................................. App-1

Appendix B

Memorandum Opinion and Order

Granting Motion to Intervene and

Granting Motion to Dismiss, United

States District Court for the Northern

District of West Virginia, Rogers v. Tug

Hill Operating, LLC, No. 5:21-CV-199

(Apr. 12, 2022) ........................................... App-24

Appendix C

Independent Contractor Agreement (Jan.

25, 2019)..................................................... App-64

Appendix D

Excerpts From Terms of Service (Feb. 20,

2019)........................................................... App-75

vii

TABLE OF AUTHORITIES

Cases

Altenhofen v. Energy Transfer Partners,

LP.,

No. 20-cv-200, 2020 WL 7336082

(W.D. Pa. Dec. 14, 2020) .................... 18, 21, 30, 31

Apollo Comput., Inc. v. Berg,

886 F.2d 469 (CA1 1989) .................................. 4, 17

Arthur Andersen LLP v. Carlisle,

556 U.S. 624 (2009) .............. 1, 2, 19, 24, 26, 28, 30

Becker v. Delek US Energy, Inc.,

39 F.4th 351 (CA6 2022) .......................... 16, 21, 22

Casa Arena Blanca LLC v. Rainwater,

No. 21-2038, 2022 WL 839800 (CA10

Mar. 22, 2022) ............................................ 4, 18, 19

Coinbase, Inc. v. Suski,

No. 23-3, 2023 WL 7266998 (U.S.

Nov. 3, 2023) ................................................... 20, 21

Contec Corp. v. Remote Sol. Co.,

398 F.3d 205 (CA2 2005) ............................ 4, 17, 18

Eckert/Wordell Architects, Inc. v. FJM

Props. of Willmar, LLC,

756 F.3d 1098 (CA8 2014) ................................ 4, 16

First Options of Chi., Inc. v. Kaplan,

514 U.S. 938 (1995) .............................................. 20

viii

GE Energy Power Conversion Fr. SAS,

Corp. v. Outokumpu Stainless USA,

LLC,

140 S. Ct. 1637 (2020) .......................................... 20

Grabowski v. PlatePass, L.L.C.,

No. 20-cv-7003, 2021 WL 1962379

(N.D. Ill. May 17, 2021)........................................ 19

Henry Schein v. Archer & White Sales,

Inc.,

139 S. Ct. 524 (2019) .…. i, 1, 2, 5, 9, 10, 11, 15, 19,

21, 22, 23, 25,26, 27, 28, 29, 30.

Hightower v. GMRI, Inc.,

272 F.3d 239 (CA4 2001) ...................................... 27

Howsam v. Dean Witter Reynolds, Inc.,

537 U.S. 79 (2002) .. i, 1, 2, 5, 11, 20, 22, 23, 26, 27,

28

Kramer v. Toyota Motor Corp.,

705 F.3d 1122 (CA9 2013) .............................. 14, 15

Neal v. GMRI, Inc.,

No. 19-cv-647, 2020 WL 698270

(M.D. Ala. Feb. 11, 2020) ............................... 18, 19

Newman v. Plains All Am. Pipeline,

L.P.,

23 F.4th 393 (CA5 2022) .......................... 12, 13, 19

ix

Newman v. Plains All Am. Pipeline,

L.P.,

44 F.4th 251 (CA5 2022) (denial of

rehearing en banc) ......... 3, 4, 11, 12, 13, 14, 21, 30

Ngo v. BMW of N. Am., LLC,

23 F.4th 942 (CA9 2022) ................................ 15, 19

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

568 U.S. 17 (2012) ................................................ 20

Rent-A-Center, W., Inc. v. Jackson,

561 U.S. 63 (2010) ................................................ 14

Robertson v. Enbridge (U.S.) Inc.,

No. 19-cv-1080, 2020 WL 5751641

(W.D. Pa. July 31, 2020) ...................................... 18

Swiger v. Rosette,

989 F.3d 501 (CA6 2021) ...................... 3, 15, 16, 19

Statutes

9 U.S.C. §2 ......................................................... 5, 6, 27

9 U.S.C. §3 ................................................................. 27

9 U.S.C. §4 ........................................................... 26, 27

28 U.S.C. §1254 ........................................................... 5

PETITION FOR WRIT OF CERTIORARI

This petition presents a recurring question that is

straightforward under precedent yet continues to

divide the circuits: When an arbitration agreement

states that an arbitrator will decide gateway questions

of arbitrability (such as the interpretation,

applicability, and enforceability of the agreement), can

a court still interpret the agreement for itself to

determine whether the contract confers arbitration

rights on a nonsignatory? This Court has all-but said

that the answer is no. “[G]ateway” questions of

arbitrability include whether an “arbitration contract

b[inds] parties who did not sign the agreement.”

Howsam, 537 U.S. at 84. And “if the agreement

delegates the arbitrability issue to an arbitrator, a

court may not decide the arbitrability issue.” Henry

Schein, 139 S. Ct. at 530.

No other answer makes sense. Whether an

agreement can “be enforced by or against nonparties”

is just a question of contract interpretation that

requires someone to construe the “scope of [the]

agreement[]” by looking to its language and context.

Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 630-31

(2009). A delegation of arbitrability says that this

someone is the arbitrator—such as the arbitrator

here, who had “exclusive authority to resolve any

dispute relating to … interpretation, applicability, or

enforceability.” App.5-6. It is no answer to cite the socalled “[]intuitive” concern that “a party with no

contractual right to compel arbitration might be

permitted to do just that” unless the court first

interprets

whether

the

agreement

covers

nonsignatories. App.13. That concern assumes its

2

own premise—that a nonsignatory lacks a contractual

right to arbitrate—whereas in reality whether a

nonsignatory has this right is merely another

interpretive question “of state contract law,” Arthur

Andersen, 556 U.S. at 630, no different than other

threshold interpretive issues that plainly can be

assigned to the arbitrator, like “whether a [particular]

controversy falls within the arbitration clause,”

Howsam, 537 U.S. at 84, or “whether the parties have

agreed to arbitrate” at all, Henry Schein, 139 S. Ct. at

529 (citation omitted). Indeed, the only way the court

below was able to decide that a nonsignatory lacked

arbitration rights was by “read[ing]” the agreement

“in [its] context,” App.15—i.e., “interpret[ing]” it—

which is what the agreement said the “arbitrator ha[d]

exclusive authority to [do],” App.5. Regardless of

whether a court thinks that an interpretive dispute is

“wholly groundless,” a delegation of arbitrability

exclusively assigns the dispute to the arbitrator, who

in all events is well-equipped to evaluate (and, if

needed, punish) even the most “frivolous motions to

compel arbitration.” Henry Schein, 139 S. Ct. at 53031.

But several circuit courts ignore delegations of

arbitrability and claim the right to decide for

themselves whether the better reading of an

arbitration agreement is one that confers on

nonsignatories the right to seek arbitration. In the

decision below, the Fourth Circuit accepted that

Respondent Lastephen Rogers had signed a binding

arbitration agreement with the company that placed

him with Petitioner Tug Hill; that Rogers’s agreement

included an express delegation of “threshold issues” of

arbitrability to the arbitrator; and that many

3

arbitration agreements can be “enforce[d]” by

nonparties “under standard contract principles[] such

as … ‘third-party beneficiary theories.’” App.5-6, 13

(citation omitted).

But rather than allow the

arbitrator to decide whether this contract was one that

allowed a nonsignatory to compel arbitration, the

Fourth Circuit reversed the district court (which had

held that question was for the arbitrator) and

reallocated that question to “the court.” App.16-17.

The Fourth Circuit then interpreted the agreement for

itself to fulfill its own prophecy that the “provision[s]”

and “language of the Agreement” meant that Tug Hill

“could [not] enforce it as a third-party beneficiary.”

App.19-20.

The Fourth Circuit is not alone in its approach.

Last year, the Ninth Circuit followed its longstanding

view that the nonsignatory question belongs to the

court. And a few months later, the Fifth Circuit

divided evenly, 8-to-8, on whether to rehear its

decision that, notwithstanding a delegation of

arbitrability, the court could interpret whether the

party seeking arbitration was a third-party

beneficiary—over a vigorous dissent from the denial of

rehearing en banc explaining why the Fifth Circuit

was “out-of-step with at least five other circuits (to say

nothing of the Supreme Court).” Newman v. Plains

All Am. Pipeline, L.P., 44 F.4th 251 (2022) (Jones, J.).

Sure enough, five circuits (and several district

courts) have correctly held that a delegation of

arbitrability requires the arbitrator to decide disputes

about nonsignatories, including “argument[s] that [an

entity] who did not sign [the] agreement … lack[s]

ability to invoke the arbitration agreement.” Swiger

4

v. Rosette, 989 F.3d 501, 506 (CA6 2021); see also Casa

Arena Blanca LLC v. Rainwater, No. 21-2038, 2022

WL 839800, at *5 (CA10 Mar. 22, 2022);

Eckert/Wordell Architects, Inc. v. FJM Props. of

Willmar, LLC, 756 F.3d 1098, 1099 (CA8 2014); Contec

Corp. v. Remote Sol. Co., 398 F.3d 205, 210-11 (CA2

2005); Apollo Comput., Inc. v. Berg, 886 F.2d 469, 47274 (CA1 1989).

This Court should now settle the issue. Far from

resolving itself, the split has recently deepened, with

a 2-to-3 divide in decisions over the last three years

alone. That gulf is untenable in the arbitration

context, implicating the nationwide application of the

Federal Arbitration Act (FAA), and creating

uncertainty about the meaning of contracts and the

resolution of disputes for both signatories and

nonsignatories alike.

Moreover, this conflict

implicates yet another federal statute of nationwide

importance: As several judges have noted, the split

frequently arises in the “familiar” context of Fair

Labor Standards Act (FLSA) cases like this one. E.g.,

Newman, 44 F.4th at 254 (Jones, J., dissenting).

This case is an ideal vehicle to decide the matter.

The Fourth Circuit did not question that Rogers had

executed a binding arbitration agreement or that his

agreement contained an express delegation of

questions of arbitrability. And the Fourth Circuit’s

conclusion that the court (not the arbitrator) should

decide whether the contract conferred nonsignatory

rights on Tug Hill was outcome-determinative. Not

only did the Fourth Circuit conclusively decide the

question presented here—that the court alone must

5

decide the nonsignatory issue—but it also ruled that

Tug Hill could not compel arbitration at all.

The Fourth Circuit’s decision deepens the circuit

split and is inconsistent with the reasoning of this

Court’s decisions in Howsam, Arthur Andersen, and

Henry Schein (among others). This Court should

grant certiorari and reverse.

OPINIONS BELOW

The Fourth Circuit’s opinion is reported at 76

F.4th 279 and reproduced at App.1-23. The district

court’s opinion is reported at 598 F. Supp. 3d 404 and

reproduced at App.24-63.

JURISDICTION

The Fourth Circuit issued its opinion on August 7,

2023. On October 27, 2023, The Chief Justice

extended the time for filing a petition for certiorari to

and including January 4, 2024. This Court has

jurisdiction under 28 U.S.C. §1254(1).

STATUTORY PROVISION INVOLVED

The Federal Arbitration Act, 9 U.S.C. §2, states:

A written provision in any maritime

transaction or a contract evidencing a

transaction involving commerce to settle by

arbitration a controversy thereafter arising

out of such contract or transaction, or the

refusal to perform the whole or any part

thereof, or an agreement in writing to submit

to arbitration an existing controversy arising

out of such a contract, transaction, or refusal,

shall be valid, irrevocable, and enforceable,

save upon such grounds as exist at law or in

6

equity for the revocation of any contract or as

otherwise provided in chapter 4.

STATEMENT OF THE CASE

I.

Rogers Signs An Arbitration Agreement To

Find Work With Tug Hill.

Rogers claims to be an experienced foreman in the

oil and gas industry. See App.3. “[H]e sought to find

work with oil and gas companies” like Tug Hill

through an intermediary company called RigUp, 1

which is “in the business of connecting skilled workers

in the industry with companies looking for such

workers,” and which had an underlying services

agreement with Tug Hill. Id. RigUp “operates an

online platform … which is used by oil and gas

operators and independent contractors” to “connect

independent contractors to particular projects.”

App.26. “Beyond [its] matchmaking function,” RigUp

“also provides independent contractors with

administrative functions like payment, insurance, and

record-keeping.” Id.

“To engage RigUp’s services, Rogers executed an

agreement with RigUp in January 2019 that governed

their relationship.” App.3-4. In that agreement,

“Rogers represented to RigUp that he was ‘an

independent professional and entrepreneur’ who

wanted to ‘be introduced to new clients by RigUp to

provide them services as an independent professional,

and not as an employee.’” App.4 (cleaned up).

1 RigUp, Inc. is the former name of the company that owns

RUSCO Operating, LLC, all of which the Fourth Circuit

collectively addressed as “RigUp.” App.3 n.1.

7

There is little question that Rogers’s agreement

anticipated (and indeed had the purpose of) Rogers

working for companies like Tug Hill. The agreement

explained to Rogers that “RigUp has been engaged by

Companies” such as Tug Hill “to introduce you to them

for the purposes of completing projects” and that he

could use RigUp’s services “to provide freelance

services to third party companies.”

App.4, 71

(capitalization modified). “Rogers represented to

RigUp” that he “wanted to ‘be introduced to new

clients by RigUp to provide them services.’” App.4

(cleaned up). The agreement contemplated litigation

about whether “Rogers was an employee of RigUp or a

Company” with which Rogers was placed (like Tug

Hill), and it said that Rogers was “waiving[] any claim

for workers compensation benefits under … a

Company’s workers’ compensation insurance policy.”

App.5, 70 (emphasis added and brackets omitted).

The agreement also incorporated an arbitration

provision stating “that every dispute arising in

connection with these Terms will be resolved by

binding arbitration.” App.5. The provision included

an express delegation of threshold questions of

arbitrability to the arbitrator: “[T]he arbitrator has

exclusive authority to resolve any dispute relating to

the interpretation, applicability, or enforceability of

this binding arbitration agreement.” App.5-6; see also

App.72, 75-76.

That same month—and “pursuant to RigUp’s

matchmaking”—“Rogers began work as a [foreman] at

a rig site operated by Tug Hill.” App.6. As everyone

up to that point had expected, Rogers performed

services as an independent contractor.

8

II. Rogers Sues Over His Work For Tug Hill.

A year-and-a-half later, Rogers sued Tug Hill,

alleging that “he actually performed his work as an

employee” and that Tug Hill had violated the FLSA

“by failing to pay him any overtime.” Id. He sought to

represent himself and a class of “other similarly

situated workers.” Id.

Tug Hill responded that Rogers was required to

arbitrate his dispute. Although Tug Hill had not itself

signed the agreement, it sought to “enforce the

arbitration agreement either ‘as a third-party

beneficiary or pursuant to estoppel principles.’”

App.7-8 (ellipsis omitted). Tug Hill further explained

that “the arbitration clause delegated to the arbitrator

the ‘exclusive authority’ to decide questions of

arbitrability.” App.7.

The district court agreed. Relevant here, it

“concluded that the fact that … Tug Hill was not a

signatory to the RigUp Agreement was of no moment

because any question of arbitrability had to be decided

by the arbitrator based on the delegation clause in the

arbitration agreement.”

App.9 (cleaned up).

“Alternatively, the court concluded that Tug Hill was

a third-party beneficiary that was permitted to enforce

Rogers’[s] arbitration agreement with RigUp” based

on the court’s own interpretation of the agreement. Id.

(quotations omitted). 2

2 The district court also granted RigUp’s motion to intervene

both as a matter of right and as a matter of permissive

intervention. App.37-50. The Fourth Circuit separately reversed

that grant, however, even though Rogers’s selective pleading

sought to circumvent RigUp, and even though RigUp had

9

III. The

Fourth

Circuit

Decides

The

Arbitrability Question Of Tug Hill’s Rights

Under The Agreement.

The Fourth Circuit reversed. Rather than allow

the arbitrator to exercise the “exclusive authority”

Rogers had granted it to decide whether his agreement

could be interpreted to create third-party

beneficiaries, the Fourth Circuit interpreted the

agreement for itself and held “as a matter of state

contract law” that Tug Hill was not “authorized to

enforce the arbitration agreement.” App.16.

In deciding arbitrability for itself, the Fourth

Circuit recognized that “it [was] plain that Rogers

agreed to arbitrate issues—including threshold

issues.”

App.15.

Sure enough the agreement

committed to the arbitrator “any dispute relating to

the interpretation, applicability or enforceability of

this binding arbitration agreement.” App.5-6. The

court also recognized that many contracts can be

interpreted to allow “enforce[ment] by or against

nonparties to the contract through … ‘third-party

beneficiary theories.’” App.11 (citation omitted). But

it decided that the “threshold question” whether the

agreement to arbitrate extended only to disputes

“between [Rogers] and RigUp,” was ostensibly one for

the court under “the Supreme Court’s jurisprudence,”

App.13-15 (emphasis omitted)—despite this Court’s

recent reminder that “a court possesses no power to

decide” “threshold arbitrability question[s]” when the

contract allocates them to the arbitrator, Henry

substantial interests such as its intermediary role and

indemnification exposure to Tug Hill. See App.6-7, 37.

10

Schein, 139 S. Ct. at 529, and despite recognizing

disagreement among the circuits, see App.16-17 (citing

the Sixth Circuit).

The Fourth Circuit then proceeded to decide

(under its view of state contract law) that, contrary to

the district court’s fallback interpretation, Tug Hill

could not “enforce the RigUp arbitration agreement as

a third-party beneficiary.” App.17-18. It considered

the contract’s “provisions” and “language,” and

ultimately disagreed with the district court that

Rogers’s “[a]greement demonstrates an intent to make

Tug Hill a third-party beneficiary by providing

specific—and significant—benefits to Tug Hill.”

App.17, 19-20 (cleaned up). In other words, the Fourth

Circuit directly ruled on the “interpretation,

applicability, or enforceability of [the] agreement”—

which is precisely what Rogers had agreed to commit

to “the arbitrator[’s] … exclusive authority.” App.5-6

(brackets omitted).

REASONS FOR GRANTING THE PETITION

The decision below presents a critical, recurring

question that has split the circuits 5-to-3: When an

agreement delegates to the arbitrator the power to

decide gateway questions about the interpretation of

the agreement, may a court nonetheless interpret the

agreement to decide for itself whether the agreement

applies to nonsignatories? The split will not resolve

itself, as confirmed by the 2-to-3 divide that has

further cemented in the past few years. And the split

not only implicates the FAA, but often intersects with

recurring litigation involving yet another important

federal statute—the FLSA. Left unchecked, decisions

like the one below invite litigants under the FLSA

11

(and a host of other laws, especially those with joint

and several liability regimes) to evade the very

agreements they signed by suing nonsignatories while

excluding their named contractual counterparties.

This is an ideal vehicle to take up the question

presented. In reversing the district court, the Fourth

Circuit

squarely

decided

the

issue

after

acknowledging contrary authority. It did not disagree

that Rogers’s agreement expressly delegated

questions of arbitrability or that Rogers had signed

and understood it. And its decision was outcomedeterminative to whether the arbitrator or the court

must decide the nonsignatory question, given that the

Fourth Circuit took the dispute out of the arbitrator’s

hands entirely.

The Fourth Circuit’s decision was also “manifest

error” under settled precedent. Newman, 44 F.4th at

255 (Jones, J., dissenting). This Court has said that

the question whether an agreement binds “parties

who did not sign” it is a “gateway … ‘question of

arbitrability.’” Howsam, 537 U.S. at 84. This Court

has also said that an agreement can “delegate[] [an]

arbitrability issue to an arbitrator.” Henry Schein,

139 S. Ct. at 530. And the agreement here broadly

gave the arbitrator “exclusive authority to resolve any

dispute” about arbitrability. App.5. Accordingly, only

the arbitrator may interpret whether Tug Hill can

assert arbitration rights, even if a court might

interpret the agreement otherwise.

12

I.

The Circuits Are Split On Whether A Court

May Interpret A Nonsignatory’s Contractual

Rights Despite A Delegation Of Questions Of

Arbitrability.

The circuits are split. The Fifth and Ninth

Circuits agree with the Fourth Circuit that the court

must decide whether an arbitration agreement applies

to a nonsignatory even when there is a delegation of

questions of arbitrability. But “at least five other

circuits” (and plenty of district courts) disagree.

Newman, 44 F.4th at 251 (Jones, J., dissenting). Only

this Court can settle the issue.

A. Three Circuits Hold That A Court May

Interpret A Nonsignatory’s Contractual

Rights Despite A Delegation Of

Questions Of Arbitrability.

The Fourth and Fifth Circuits have recently

staked out their positions. In the Fourth Circuit’s

view, a court cannot “compel arbitration without first

resolving whether, as a matter of state contract law,

[a nonsignatory is] authorized to enforce the

arbitration agreement”—even if the agreement grants

the arbitrator “exclusive authority to resolve any

dispute relating to … interpretation, applicability, or

enforceability.” App.5-6, 16.

Not long before, the Fifth Circuit held under

similar circumstances that “deciding an arbitration

agreement’s enforceability between parties remains a

question for courts” irrespective of a delegation of

arbitrability. Newman v. Plains All Am. Pipeline,

L.P., 23 F.4th 393, 398 (2022). The plaintiff opposing

arbitration in Newman was an “independent pipeline

inspector[]” who signed a contract containing an

13

arbitration clause with one company, but later

asserted FLSA claims against the “client company”

that allegedly employed him. Id. at 397. The client

company sought arbitration, arguing that it was “a

third-party beneficiary” to the plaintiff’s contract and

“that

deciding

an

arbitration

agreement’s

enforceability between the parties is an arbitrability

question, which would make it delegable to an

arbitrator.” Id. at 397, 399. A panel of the Fifth

Circuit disagreed: “It is up to us—not an arbitrator—

to decide whether [the client company] can enforce the

[plaintiff’s] arbitration agreement.” Id. at 399. It thus

proceeded to decide under state law that the client

company “was not a third-party beneficiary.” Id. at

401-03.

The full Fifth Circuit then split 8-to-8 on whether

to rehear the case en banc. In dissent, Judge Jones

explained

that

the

panel

had

“seriously

misconstrue[d] the law governing arbitration,” put

the court “out-of-step with at least five other circuits

(to say nothing of the Supreme Court),” and charted a

dangerous path for “a bevy of lawsuits like [this one

that] have become common in the energy industry.”

Newman, 44 F.4th at 251-52; see also id. at 254-55 &

n.7 (noting the increasingly “familiar” tactic of

litigants seeking to avoid “clear[] and unmistakabl[e]

agree[ments] to arbitrate arbitrability”).

In the dissent’s view, the agreement “‘clearly and

unmistakably’ delegate[d] to the arbitrator” gateway

questions of arbitrability, including “the existence,

scope or validity of the arbitration agreement.” Id. at

253 (cleaned up). Those “gateway issue[s] include[]

‘whether an arbitration clause binds persons who did

14

not sign it,’” and there was no reason to treat this

gateway issue differently from any other. Id. at 252

(citation omitted). After all, under ordinary “state-law

interpretive principles,” the fact that the client

company “was not a formal party to the arbitration

agreement does not rule it out from potential

arbitration.” Id. at 253. And per binding Supreme

Court precedent, a party “can agree to arbitrate

‘gateway’ questions of ‘arbitrability,’ such as whether

the parties have agreed to arbitrate or whether their

agreement covers a particular controversy.” Id. at 252

(quoting Rent-A-Center, W., Inc. v. Jackson, 561 U.S.

63, 70 (2010)). Accordingly, “whether a non-signatory

… can enforce the arbitration agreement against a

signatory … presents a question of arbitrability that

the signatory’s arbitration agreement delegated to an

arbitrator.” Id. at 253 (cleaned up).

Like the Fourth and Fifth Circuits, the Ninth

Circuit holds that, even when a contract “expressly

provide[s] that the arbitrator shall decide issues of

interpretation, scope, and applicability of the

arbitration provision,” the court can still “decide the

issue of whether a nonsignatory may compel [a]

[p]laintiff[] to arbitrate.” Kramer v. Toyota Motor

Corp., 705 F.3d 1122, 1127 (2013). In Kramer,

consumers sued Toyota over alleged vehicle defects,

and Toyota sought arbitration “as a nonsignatory to

the Purchase Agreements between Plaintiffs and [the]

Dealerships” from which they had bought the cars. Id.

at 1125-26.

Although those contracts included

“arbitration agreements” that “agreed to arbitrate

arbitrability,” the court decided for itself that “[t]he

language of the contracts … evidence[d] Plaintiffs’

intent to arbitrate arbitrability with the Dealerships

15

and no one else.” Id. at 1127. Based on this

interpretation, the court concluded that “Toyota, a

nonsignatory to the Purchase Agreements,” could not

“compel Plaintiffs to arbitrate.” Id. at 1126. Even

after Henry Schein, the Ninth Circuit follows this

approach. See, e.g., Ngo v. BMW of N. Am., LLC, 23

F.4th 942, 945-47 (2022) (ruling that “[l]anguage

limiting the right to compel arbitration to a specific

buyer and a specific dealership” prevented “a thirdparty beneficiary of the arbitration clause” from

seeking arbitration, even though the agreement

delegated issues of arbitrability).

B. Five Circuits And Several Districts Hold

That A Delegation Of Questions Of

Arbitrability Requires The Arbitrator

To Decide A Nonsignatory’s Rights.

The First, Second, Sixth, Eighth, and Tenth

Circuits, by contrast, properly allow arbitrators to

interpret agreements to address nonsignatory issues.

Many district courts (including the one below) concur.

The Sixth Circuit has repeatedly confirmed its

considered view. Take Swiger, in which the plaintiff

sued not the lender with whom she had executed an

arbitration agreement, but an individual defendant

who was the supposed “mastermind” behind the

lender. 989 F.3d at 503. The defendant sought

arbitration, which the plaintiff opposed on the ground

that the defendant “did not sign [the] agreement” and

thus “lacked ability to invoke [it].” Id. at 506. The

Sixth Circuit disagreed. Noting that the plaintiff’s

agreement included a “delegation clause,” the court

explained that the defendant’s “ability to invoke the

arbitration agreement constitutes an issue of

16

enforceability that must be considered by an

arbitrator in the presence of a delegation provision.”

Id. at 506-07 (quotations omitted). Or take Becker v.

Delek US Energy, Inc., a case from last year involving

yet another FLSA suit against an energy company

under markedly similar circumstances. 39 F.4th 351,

353 (CA6 2022). Although the energy company had

not signed the arbitration agreement, which was

between the plaintiff and the entity that had arranged

his work, there the Sixth Circuit confirmed that “the

question whether [the energy company] can enforce

the arbitration agreement [was] for an arbitrator to

decide.” Id. at 356.

The Eighth Circuit likewise “compels the parties

to submit to an arbitrator the threshold issue of

whether [a party] may use an arbitration provision in

a contract it did not sign.” Eckert, 756 F.3d at 1099.

In Eckert, the plaintiff architecture firm had sued an

entity that “was not a signatory to the architectural

services contract,” which included an arbitration

provision, and thus sought to avoid arbitration on the

theory that “it had no agreement with [the

nonsignatory] requiring it to arbitrate disputes.” Id.

The Eighth Circuit easily rejected this argument:

“Whether a particular arbitration provision may be

used to compel arbitration between a signatory and a

nonsignatory is a threshold question of arbitrability.”

Id. at 1100. And though the default rule is that

“threshold questions of arbitrability are for a court to

decide,” the contract allowed “the arbitrator to decide

threshold questions of arbitrability” and therefore

“committed to the arbitrator the issue of whether [the]

non-signatory[] could use the arbitration provision.”

Id.

17

The First Circuit has long held a similar view. In

Apollo, a computer company opposing arbitration

“claim[ed] that there was no agreement to arbitrate

between it and the defendants”—former executives of

the plaintiff’s contractual counterparty—because the

counterparty “had not validly assigned that right to

the defendants.” 886 F.2d at 470, 472. But the First

Circuit did “not reach” the issue because the plaintiff

“contracted to submit issues of arbitrability to the

arbitrator.” Id. at 472. Although “the general rule is

that the arbitrability of a dispute is to be determined

by the court,” this “contract … delegate[d] to the

arbitrator decisions about the arbitrability of disputes

involving the existence and validity of a prima facie

agreement to arbitrate.” Id. at 472-73. Accordingly,

disputes about whether “the right to compel

arbitration … was validly assigned to the defendants

and whether it can be enforced by them against

[plaintiff] are issues” that “[t]he arbitrator should

decide.” Id. at 473.

That approach is consistent with the Second

Circuit’s view that, when a party “argue[s] that it

c[an]not be compelled to participate in arbitration [by]

… a non-signatory,” the issue “whether a valid

arbitration agreement existed … [is] an issue to be

decided by the arbitrator.” Contec, 398 F.3d at 207. In

Contec, a company sought arbitration after being sued

for withholding payment on a shipment of electronics,

but its adversary “contended that [the company] was

not a signatory to [an earlier] Agreement and was

therefore barred from seeking its enforcement.” Id.

The court disagreed. The party opposing arbitration

had “agreed to be bound by provisions that clearly and

unmistakably allow the arbitrator to determine her

18

own jurisdiction over an agreement to arbitrate” and

the party thus could not “disown its agreed-to

obligation to arbitrate all disputes, including the

question of arbitrability.” Id. at 211 (cleaned up).

The Tenth Circuit recently adopted similar logic.

Faced with a dispute about whether an arbitration

agreement bound a nonsignatory, the court concluded

that “[o]nce the district court made th[e]

determination” “that there is an arbitration

agreement … that contains an enforceable delegation

clause,” “it should have sent the case to arbitration”

instead of “proceeding to address the third-party

beneficiary issue.” Casa Arena, 2022 WL 839800, at

*5. In other words, “the question of whether the

Agreement should be enforced against [a purported]

third-party beneficiary of that contract is one that

should be decided by an arbitrator, not the court.” Id.

Finally, many district courts (like the one below)

have followed the majority rule. Courts evaluating

some of the “numerous” FLSA suits against energy

companies have explained that “[w]hether [a

defendant] may enforce [arbitration] agreements, as a

non-signatory, is a question reserved for arbitration.”

Altenhofen v. Energy Transfer Partners, LP., No. 20cv-200, 2020 WL 7336082, at *1 (W.D. Pa. Dec. 14,

2020); accord Robertson v. Enbridge (U.S.) Inc., No.

19-cv-1080, 2020 WL 5751641, at *3-5 (W.D. Pa. July

31, 2020), report and recommendation adopted, 2020

WL 5702419 (Sept. 24, 2020). Other courts agree that

“whether nonsignatory affiliates are ultimately

entitled to enforce [an] arbitration clause is a matter

of the agreement’s continued existence, validity, and

scope which must be decided by the arbitrator.” Neal

19

v. GMRI, Inc., No. 19-cv-647, 2020 WL 698270, at *45 (M.D. Ala. Feb. 11, 2020) (cleaned up); accord

Grabowski v. PlatePass, L.L.C., No. 20-cv-7003, 2021

WL 1962379, at *4 (N.D. Ill. May 17, 2021) (“[T]he

question of whether a purported nonsignatory can

enforce an arbitration agreement concerns a question

of arbitrability and, thus, must be decided by the

arbitrator.”).

II. This Case Presents An Important Question

In A Clean Vehicle.

The question presented is important and can be

resolved only by this Court. At least five circuits have

encountered the issue since Henry Schein, 3 yet they

have split 2-to-3 despite often recognizing each other’s

positions and despite an evenly divided en banc vote

in the Fifth Circuit over a vigorous dissent.

Regardless of whether other circuits weigh in, a divide

will remain until this Court acts.

The fact that the broader tally entails a 5-to-3

circuit split (plus several district courts) confirms that

the question is a recurring and important one. That is

not surprising either.

Contracts are frequently

“enforced by or against nonparties to the contract”

through means ranging from “assumption” to “thirdparty beneficiary theories,” Arthur Andersen, 556 U.S.

at 631 (citation omitted), meaning that the

nonsignatory issue will arise often. And the issue is

twice-over critical.

3 Rogers, 76 F.4th 279 (CA4 2023); Casa Arena, 2022 WL

839800 (CA10 2022); Newman, 23 F.4th 393 (CA5 2022); Ngo, 23

F.4th 942 (CA9 2022); Swiger, 989 F.3d 501 (CA6 2021).

20

First, the FAA sets out a “national policy” of

“great importance,” Nitro-Lift Techs., L.L.C. v.

Howard, 568 U.S. 17 (2012) (per curiam), meaning

that litigants should not experience different results

in different jurisdictions. All potential parties to

disputes—signatories and nonsignatories alike—

deserve clarity about how the law of arbitration will

apply. That is doubly true when it comes to “gateway”

arbitrability questions that have the power to shape

all subsequent events. Howsam, 537 U.S. at 84. As

this Court has explained, the question of “who—court

or arbitrator—has the primary authority to decide

whether a party has agreed to arbitrate can make a

critical difference.” First Options of Chi., Inc. v.

Kaplan, 514 U.S. 938, 942 (1995). 4 In recent years,

this Court thus has granted certiorari to resolve other

arbitration-related disputes about whether entities

can “enforce [an] arbitration agreement as a

nonsignatory.” GE Energy Power Conversion Fr. SAS,

Corp. v. Outokumpu Stainless USA, LLC, 140 S. Ct.

1637, 1643-44 (2020) (holding that a treaty did not

conflict with the rule that “the FAA permits a

nonsignatory to rely on state-law equitable estoppel

doctrines to enforce an arbitration agreement”). 5

4 This case provides a clear example of different adjudicators

within the same jurisdiction reaching contrary conclusions. The

district court (in an alternative holding) interpreted state thirdparty beneficiary law one way, but the Fourth Circuit interpreted

it in a different way.

5 This Court’s recent grant of another arbitrability-related

issue in Coinbase, Inc. v. Suski, No. 23-3, 2023 WL 7266998 (U.S.

Nov. 3, 2023), confirms the importance of arbitrability questions

but does not eliminate the need for review here. In Suski, the

Court will address the question, “Where parties enter into an

21

Second, the nonsignatory issue often manifests in

cases involving yet another important federal

statute—the FLSA—a trend that multiple judges

have noted. See, e.g., Newman, 44 F.4th at 254-55

(Jones, J., dissenting) (“The employee [in Becker] later

sued the non-signatory defendant for FLSA

violations…. Sound familiar?”); Altenhofen, 2020 WL

7336082, at *1 (“Many of the lawyers in this case have

litigated numerous, materially similar lawsuits, in

this and other Districts.”). In fact, “a bevy of lawsuits

like [these] have become common in the energy

industry,” with plaintiffs suing nonsignatories in an

effort to evade arbitration agreements signed by the

intermediaries that connected the plaintiffs with the

nonsignatories. Newman, 44 F.4th at 252 (Jones, J.,

dissenting). This Court should resolve what has

become a nationwide inconsistency.

The decision below is a perfect vehicle to do so.

The Fourth Circuit squarely held that a court must

“first resolv[e] … as a matter of state contract law” the

nonsignatory question before a court can “compel

arbitration,” and it rejected the contrary view “that

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?” Pet. for Writ of Cert. at i, Suski, No. 23-3. That

framing presumes that the parties to the litigation include

signatories to the relevant agreement(s), and thus does not cover

the gateway question here of who (arbitrator or court) should

decide whether the relevant agreement applies to the litigants in

the first place. And even if the decision in Suski reconfirms that

a delegation of arbitrability broadly empowers an arbitrator to

decide threshold issues, that seems unlikely to move the Fourth

Circuit, which already brushed off decisions like Henry Schein

saying the same thing.

22

the question of whether a third party c[an] enforce a

delegation provision in an arbitration clause [is] for

the arbitrator, not the court.” App.16-17 (citing

Becker, 39 F.4th at 355-56). The Fourth Circuit

accepted that Rogers was bound by his arbitration

agreement. The Fourth Circuit accepted that Rogers’s

agreement clearly delegated questions of arbitrability

to the arbitrator by giving “the arbitrator … exclusive

authority to resolve any dispute relating to the

interpretation, applicability, or enforceability of this

binding arbitration agreement.” App.5-6 (brackets

omitted). And the court’s decision to keep the

arbitrability question for itself was dispositive

because the arbitrator never had the chance to decide

the threshold question about Tug Hill’s rights under

the agreement.

III. The Fourth Circuit Erred In Deciding The

Arbitrability Question For Itself.

The decision below violates settled and binding

precedent. This Court has unanimously held that an

“agreement [may] delegate[] the arbitrability issue to

an arbitrator.” Henry Schein, 139 S. Ct. at 530.

Threshold arbitrability issues encompass “whether

the parties have agreed to arbitrate,” id. at 529

(citation omitted), including “whether the arbitration

contract b[inds] parties who did not sign the

agreement,” Howsam, 537 U.S. at 84. In such cases,

the court’s task is simply to “determine[] whether a

valid arbitration agreement exists” at all, with any

gateway interpretive questions then passing to the

arbitrator. Henry Schein, 139 S. Ct. at 530 (emphasis

added).

23

Here, the Fourth Circuit never denied that “a

valid arbitration agreement exists.” Id. Indeed, “it

[was] plain that Rogers agreed to arbitrate issues—

including threshold issues”—arising in connection

with any of the terms of his agreement with RigUp, to

which Tug Hill claimed to be a beneficiary. App.15.

The analysis should have stopped there. Having

found that “a valid agreement exists” and that “the

agreement delegates the arbitrability issue to an

arbitrator,” Henry Schein, 139 S. Ct. at 530, questions

about who the “contract bound” were “question[s] of

arbitrability” for the arbitrator, Howsam, 537 U.S. at

84. It makes no difference that the court thought the

better reading of the agreement was that Rogers had

agreed just to arbitrate disputes “arising between him

and RigUp.” App.15. The only way the court reached

that conclusion was by engaging in contract

interpretation—for example, by “read[ing]” “the

delegation provision … in the context of the

arbitration clause as a whole.” Id. That was error

under the settled rule that, “if a valid agreement exists

… delegat[ing] the arbitrability issue to an arbitrator,”

interpretive questions “such as whether the parties

have agreed to arbitrate” fall to the arbitrator, even if

the court thinks a contrary view is “frivolous.” Henry

Schein, 139 S. Ct. at 529-31 (citation omitted).

Other binding precedent demonstrates the

inescapable logic that only the arbitrator can decide

the nonsignatory question. Whether an agreement

creates rights for third-party beneficiaries is a matter

of contract interpretation, so an agreement that

delegates matters of contract interpretation to the

arbitrator necessarily commits the nonsignatory

24

question to the arbitrator. After all, “the scope of

agreements (including the question of who is bound by

them)” is an ordinary matter “of state contract law.”

Arthur Andersen, 556 U.S. at 630 (emphasis added).

Far from the notion “that nonparties to a contract are

categorically barred from [FAA] relief,” many

“‘traditional principles’ of state law allow a contract to

be enforced by or against nonparties … through

[doctrines

including]

‘third-party

beneficiary

theories.’” Id. at 631 (citation omitted). In other

words, someone needs to interpret the agreement and

apply it to the circumstances to decide what it says

and to whom it applies. And here, Rogers’s agreement

expressly committed to the arbitrator any such

“dispute relating to … interpretation, applicability, or

enforceability.” App.5-6.

Were there any doubt about that point, however,

the Fourth Circuit’s own circular logic erases it. The

Fourth Circuit bypassed the agreement’s delegation of

arbitrability by saying that Rogers “did not enter into

any agreement that allows an arbitrator to decide

whether a third party like Tug Hill has rights under

the arbitration agreement”—but the only way the

court reached that conclusion was by first interpreting

and applying the agreement for itself; specifically, by

“read[ing]” “the delegation provision … in the context

of the arbitration clause as a whole” to find it “plain

that Rogers agreed to arbitrate issues … arising

between him and RigUp.” App.15 (emphasis omitted).

Indeed, the Fourth Circuit twice recognized that it

was engaging in contract interpretation to decide

issues of applicability and enforceability. First, when

the court acknowledged that “a nonparty [like Tug

Hill] may nonetheless be entitled to enforce[ment]

25

under standard contract principles.” App.13. And

second, when the court—having taken the question

out of the arbitrator’s hands—again reapplied state

law to reaffirm its own conclusion (contrary to the

district court) that “Tug Hill may [not] enforce the

RigUp arbitration agreement as a third-party

beneficiary” based on the agreement’s “language,”

“provisions,” and “purpose.” App.18-20.

But that is not all. In at least five respects, the

court’s reasoning is contrary to precedent.

First, the Fourth Circuit’s fundamental premise—

that “it is plain that Rogers agreed to arbitrate issues

… [b]ut he did not enter into any agreement that

allows an arbitrator to decide whether a third party

like Tug Hill has rights,” App.15 (emphasis added)—

is just a rehash of the “wholly groundless” exception

that Henry Schein rejected. 139 S. Ct. at 528. It may

have been “plain” to the Fourth Circuit how the

agreement should be interpreted, applied, and

enforced. But once the court acknowledged that “a

valid agreement exists” that “delegates the

arbitrability issue,” its job was over and it could “not

decide the arbitrability issue.” Id. at 530.

In addition to this binding law, there are strong

practical reasons why a court should not end-run a

delegation of arbitrability based on its own

interpretation of the agreement. As Henry Schein

stressed, “[i]t is not unheard-of for one fair-minded

adjudicator to think a decision is obvious in one

direction but for another fair-minded adjudicator to

decide the matter the other way.” Id. at 531. In fact,

the district court here “[a]lternatively … concluded

that Tug Hill was a third-party beneficiary that was

26

permitted to enforce Rogers’[s] arbitration agreement

with RigUp.” App.9 (quotations omitted). Regardless

of whether a panel of the Fourth Circuit thought that

Tug Hill’s construction of the agreement was “wholly

groundless,” an “arbitrator might hold a different

view.” Henry Schein, 139 S. Ct. at 530-31.

Second, the Fourth Circuit defended its position

by saying that this Court’s decision in “Arthur

Andersen … makes clear … that it is a court, not an

arbitrator, that must initially decide whether a

nonparty to an arbitration agreement is entitled to

enforce it.” App.11. Quite the contrary. Arthur

Andersen did not even address the effect of a

delegation of arbitrability—it simply explained (as

relevant here) that some contracts can be interpreted

to “allow [them] to be enforced by or against

nonparties.” 556 U.S. at 631. To be sure, in a minerun case that interpretation might be a “‘question of

arbitrability’ for a court to decide.” Howsam, 537 U.S.

at 84. But where—as here—the plaintiff’s “agreement

delegates the arbitrability issue to an arbitrator, a

court may not decide [it].” Henry Schein, 139 S. Ct. at

530. Indeed, the fact that Arthur Andersen viewed the

rights of third-party beneficiaries as presenting

interpretive questions of “state contract law regarding

the scope of agreements,” 556 U.S. at 630, simply

confirms that the nonsignatory question is just

another contract-interpretation dispute that “the

agreement [can] delegate[] … to an arbitrator,” Henry

Schein, 139 S. Ct. at 530.

Third, the Fourth Circuit pointed to the text of the

FAA, which says that “a written agreement for

arbitration” is needed for a court to compel

27

arbitration, App.11 (emphasis omitted) (quoting 9

U.S.C. §4); see also 9 U.S.C. §§2, 3, and then coupled

it with curated statements from Henry Schein that

“the court determines whether a valid arbitration

agreement exists” “before referring a dispute to an

arbitrator,” App.12 (quoting 139 S. Ct. at 530). But

here, there is no debate that a valid, written

arbitration agreement “exists” or that this

“agreement” delegates disputes about arbitrability to

the arbitrator. Henry Schein, 139 S. Ct. at 530. All

that is at issue are interpretive questions about who

and what the agreement covers. Such questions about

“whether the parties have agreed to arbitrate,” id. at

529 (citation omitted), or whether the agreement

covers a “part[y] who did not sign [it]” are classic

“question[s] of arbitrability,” Howsam, 537 U.S. at 84.

The Fourth Circuit’s exception, taken to its logical

conclusion, would swallow the rule set forth in this

Court’s precedents. And, to the extent the Fourth

Circuit thought that “§§3 and 4 of the [FAA] … mean,

in essence, that a court must always resolve questions

of arbitrability,” “that ship has sailed” under this

Court’s “consistent[] h[oldings] that parties may

delegate threshold arbitrability questions to the

arbitrator.” Henry Schein, 139 S. Ct. at 530.

Fourth, the Fourth Circuit cited its own precedent

for the supposed “general” rule that “the relevant

threshold question that a court must address when

being asked to compel arbitration is whether ‘an

arbitration agreement exists between the parties.’”

App.13 (quoting Hightower v. GMRI, Inc., 272 F.3d

239, 242 (2001)). But the emphasized language (which

is from dicta and unremarkable, given that the

stereotypical arbitration dispute arises between

28

signatories) impermissibly adds to the limited inquiry

into “whether a valid arbitration agreement exists …

and if the agreement delegates the arbitrability issue

to an arbitrator.” Henry Schein, 139 S. Ct. at 530

(emphases added).

More fundamentally, the notion that a dispute

over whether an agreement covers “the parties” to the

litigation somehow belongs to a super-category of

nondelegable issues cannot be squared with precedent

or logic. Again, Arthur Andersen makes clear that

“who is bound” is just a matter of “state contract law

regarding the scope of agreements.” 556 U.S. at 630

& n.4. So a delegation of arbitrability—like this one—

that gives the arbitrator “exclusive authority to

resolve any dispute relating to … interpretation,

applicability, or enforceability,” App.5-6, necessarily

encompasses such disputes over “scope,” Arthur

Andersen, 556 U.S. at 630. Indeed, the sort of contract

interpretation needed to decide whether a litigant is a

third-party beneficiary is no different from the

contract interpretation needed to decide other

arbitrability questions like “whether the parties have

agreed to arbitrate,” Henry Schein, 139 S. Ct. at 529

(citation omitted), meaning there is no coherent basis

to sever the nonsignatory question from all other

arbitrability matters. See, e.g., Howsam, 537 U.S. at

84 (describing a nonsignatory question alongside

other “gateway dispute[s]”). And the Fourth Circuit’s

desire to subdivide among arbitrability questions is

especially odd here given that Rogers indisputably

signed an express delegation of arbitrability knowing

full well that the arbitrator would be called upon “to

resolve any dispute relating to … interpretation,

29

applicability, or enforceability.”

added).

App.5-6 (emphasis

Regardless, the Fourth Circuit’s own analysis

once more dispels the notion that the interpretive

question of which “parties” can assert an agreement

can be disentangled from Rogers’s express delegation

of “any dispute” over “interpretation, applicability, or

enforceability.” App.5-6, 13. As discussed, the court’s

conclusion depended on its own interpretation of what

the agreement supposedly made “plain” about the

scope of “Rogers[’s] agree[ment]” given the “context of

the arbitration clause as a whole.” App.15. But the

contours of a contract—including “who can enforce

[it]”—are concededly just interpretive matters “of

state contract law regarding the scope of agreements.”

App.14 (citation omitted). Thus, when the Fourth

Circuit construed the arbitration agreement—which

admittedly could be interpreted in a matter “in which

a nonparty [like Tug Hill] may nonetheless [have

been] entitled to enforce it,” App.13—the Fourth

Circuit admitted it was answering “gateway questions

of arbitrability,” Henry Schein, 139 U.S. at 529

(cleaned up).

Fifth, the Fourth Circuit wrongly echoed Rogers’s

purported pragmatic concern that it “cannot be … that

a person like him who has executed an arbitration

agreement containing a delegation clause with one

party (RigUp) is required to arbitrate whether he

must arbitrate with a different party (Tug Hill).”

App.10 (cleaned up). According to the court, it would

be “counterintuitive” for “a party with no contractual

right to compel arbitration [to] be permitted to do just

that.” App.13.

30

That logic puts the cart before the horse—

specifically, by assuming its own premise that Tug

Hill has “no contractual right to compel arbitration.”

Id. In reality, whether Tug Hill has such a right as a

third-party beneficiary depends on the interpretation

of the contract—once more confirmed by the Fourth

Circuit’s need to interpret the agreement to decide the

point. See, e.g., App.15-20.

That logic is also a direct attack on Henry Schein,

which explained that similar “policy argument[s]”

about litigants overstating contracts and claiming

rights they do not possess are both legally irrelevant

and overblown. 139 S. Ct. at 531. They are legally

irrelevant because even a “wholly groundless”

argument about to whom and to what “the arbitration

agreement applies” will not justify displacing the

arbitrator. Id. at 528, 531; cf. Arthur Andersen, 556

U.S. at 629 (concerns about “frivolous interlocutory

appeals” cannot “surmount the plain language of the

[FAA]”). And these arguments are overblown because

they ignore that litigants have good reasons to avoid

“frivolous motions to compel arbitration.” Henry

Schein, 139 S. Ct. at 531. “Arbitrators can efficiently

dispose of frivolous cases by quickly ruling that a

claim is not in fact arbitrable,” and “under certain

circumstances … may be able to … impos[e] feeshifting and cost-shifting sanctions.” Id. In fact, this

Court was “not aware that frivolous motions to compel

arbitration have caused a substantial problem.” Id. If

anything, the increasingly “familiar” problem here is

that litigants are trying to circumvent agreements to

arbitrate by suing nonsignatories and asking courts to

decide arbitrability issues. Newman, 44 F.4th at 254

(Jones, J., dissenting); see also Altenhofen, 2020 WL

31

7336082, at *1 (“[This] is neither counsels’ nor the

Court’s ‘first rodeo.’”).

*

*

*

The answer to the question presented is simple

under precedent. When an agreement delegates

threshold questions of arbitrability to the arbitrator,

the arbitrator is entitled to interpret the agreement to

decide whether it covers the litigants and their

dispute. Yet the lower courts have created an evergrowing split that only this Court can resolve. Rather

than

tolerate

uncertainty

and

inconsistent

applications of federal law, this Court should settle the

issue.

CONCLUSION

For the foregoing reasons, this Court should grant

the petition for certiorari.

32

Respectfully submitted,

PHILIP M. COOPER

JOHN C. O’QUINN

KIRKLAND & ELLIS LLP Counsel of Record

300 North LaSalle

LUCAS H. FUNK*

Chicago, IL 60654

KIRKLAND & ELLIS LLP

1301 Pennsylvania Ave., NW

Washington, DC 20004

(202) 389-5000

john.oquinn@kirkland.com

Counsel for Petitioner

December 15, 2023

*Admitted only in Oregon and practice is supervised by

principals of the Firm.