Amicus Curiae Brief — Adrian Jules, Petitioner v. Andre Balazs Properties, et al.

Supreme Court briefFeb 24, 2026

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No. 25-83

IN THE

Supreme Court of the United States

————

ADRIAN JULES,

Petitioner,

ANDRE BALAZS PROPERTIES, et al.,

Respondents.

————

On Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

————

BRIEF AMICUS CURIAE OF

THE CHAMBER OF COMMERCE OF

THE UNITED STATES OF AMERICA

IN SUPPORT OF RESPONDENTS

————

JENNIFER B. DICKEY

JONATHAN D. URICK

U.S. CHAMBER

LITIGATION CENTER

1615 H Street NW

Washington, DC 20062

PETER B. RUTLEDGE

Counsel of Record

NATHAN R. MILES

TAFT STETTINIUS &

HOLLISTER LLP

3343 Peachtree Road, NE

1600 Atlanta Financial Center

Atlanta, GA 30326

(404) 233-7000

Brutledge@taftlaw.com

Counsel for Amicus Curiae

February 24, 2026

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

TABLE OF CONTENTS

Page

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

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

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

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

Petitioner’s Reading Ignores Statutory

History .......................................................

Petitioner’s Reading Would Upset Expectations Around International Arbitrations

Not Governed By The New York

Convention Or Panama Convention ........

Petitioner’s Reading Ignores The EntryOf Judgment Clause Contained In The

Parties’ Agreement ...................................

Federal Jurisdiction Effectuates The

FAA’s Purpose To Counteract State

Hostility To Arbitration ............................

The Jurisdictional-Anchor Theory Has

Not Produced Petitioner’s Parade Of

Horribles ...................................................

CONCLUSION ....................................................

(i)

TABLE OF AUTHORITIES

CASES

Page(s)

Adolph v. Uber Techs., Inc.,

532 P.3d 682 (Cal. 2023) ...........................

Allied-Bruce Terminix Cos., Inc. v. Dobson,

513 U.S. 265 (1995) ................................... 8, 18

AT&T Mobility LLC v. Concepcion,

563 U.S. 333 (2011) .................... 3, 16, 18-19, 21

Atlantic Fruit Co. v. Red Cross Line,

276 Fed. 319 (S.D.N.Y. 1921) ...................

Badgerow v. Walters,

596 U.S. 1 (2022). ........................ 1, 5, 7-8, 23-25

Berkovitz v. Arbib &

Houlberg, Inc.,

130 N.E. 288 (N.Y. 1921) ......................... 2, 9-13

Brewer v. Mo. Title Loans,

364 S.W.3d 486 (Mo. 2012) .......................

Buckeye Check Cashing, Inc. v. Cardegna,

546 U.S. 440 (2006) ................................. 4, 6, 21

Cheng-Canindin v. Renaissance Hotel

Assocs.,

57 Cal. Rptr. 2d 867 (Cal. Ct. App. 1996) .....

Chilutti v. Uber Techs., Inc.,

300 A.3d 430 (Pa. Super. 2023), rev’d on

other grounds, No. 58 EAP 2024, 2026

WL 156181 (Pa. Jan. 21, 2026).................

Citizens Bank v. Alafabco,

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

iii

TABLE OF AUTHORITIES—Continued

Page(s)

Cortez Byrd Chips, Inc. v. Bill Harbert

Constr. Co.,

529 U.S. 193 (2000) ............................ 3, 8, 14-16

Dean Witter Reynolds Inc. v. Byrd,

470 U.S. 213 (1985) ...................................

4, 6

DIRECTV, Inc. v. Imburgia,

577 U.S. 47 (2015) .....................................

Dodson Int’l Parts, Inc. v. Williams Int’l

Co. LLC,

12 F.4th 1212 (10th Cir. 2021) ............. 5, 23, 25

EEOC v. Waffle House, Inc.,

534 U.S. 279 (2002) ...................................

Epic Systems Corp. v. Lewis,

584 U.S. 497 (2018) .................................. 3-4, 16

Favara v. Regent Aerospace Corp.,

No. B246718, 2013 WL 5832391 (Cal.

Ct. App. Oct. 30, 2013) .............................. 19-20

France v. Bernstein,

No. 1:24-cv-448 (RDA/WEF), 2025 WL

350236 (E.D. Va. Jan. 30, 2025) ...............

George v. Rushmore Serv. Ctr., LLC,

114 F.4th 226 (3d Cir. 2024) .....................

Glob. Client Sols., LLC v. Ossello,

367 P.3d 361 (Mont. 2016) ........................

Griffin v. Santander Consumer USA,

No. 6:23-cv-6366-TMC, 2024 WL

1652567 (D.S.C. Apr. 17, 2024) ................

TABLE OF AUTHORITIES—Continued

Page(s)

Hamilton v. Liverpool & L. & G. Ins. Co.,

136 U. S. 242 (1890) ..................................

Hosiery Mfrs. Corp. v. Goldston,

143 N.E. 779 (N.Y. 1924) ..........................

Hopper v. CarMax Auto Superstores, Inc.,

No. 3:24-MC-00110-KDB-SCR, 2024 WL

4530304 (W.D.N.C. Oct. 18, 2024) ...........

Jules v. Andre Balazs Props.,

Nos. 23-1253(L), 23-1283(Con), 2025 WL

1201914 (2d Cir. Apr. 25, 2025) ...............

Kindred Nursing Ctrs. Ltd. P’ship v.

Clark,

581 U.S. 246 (2017) ................................... 18-19

Kinsella v. Baker Hughes Oilfields

Operations, LLC,

66 F.4th 1099 (7th Cir. 2023) ...................

Lamps Plus, Inc. v. Varela,

587 U.S. 176 (2019) ................................... 3, 16

Marchant v. Mead-Morrison Mfg. Co.,

29 F.2d 40 (2d Cir. 1928) ....................... 2, 12-13

Marine Club Manager, Inc. v.

RB Commercial Mortgage LLC,

No. 23-1841, 2024 WL 3617552

(4th Cir. Aug. 1, 2024) ..............................

Marine Transit Corp. v. Dreyfus,

284 U.S. 263 (1932) ..................... 2, 12-13, 16-17

TABLE OF AUTHORITIES—Continued

Page(s)

Mastrobuono v. Shearson Lehman

Hutton, Inc.,

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

McConnell & Malek Enters. v.

Proof Mark, Inc.,

No. 23-cv-00010-LJC, 2025 WL 2430610

(N.D. Cal. Aug. 22, 2025) .......................... 23-24

Mitsubishi Motors Corp. v.

Soler Chrysler-Plymouth,

473 U.S. 614 (1985) ...................................

Narayan v. Ritz-Carlton Dev. Co.,

400 P.3d 544 (Haw. 2017) .........................

Park Const. Co. v. Independent Sch. Dist.

No. 32,

296 N.W. 475 (Minn. 1941) .......................

Pinela v. Neiman Marcus Grp., Inc.,

190 Cal. Rptr. 3d 159 (Cal. Ct. App.

2015) ..........................................................

Prest., etc., D. & H. C. Co. v. Pa. Coal Co.,

50 N. Y. 250 (1872) ...................................

Red Cross Line v. Atlantic Fruit Co.,

264 U.S. 109 (1924) ...................................

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

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

Rodriguez de Quijas v. Shearson/Am.

Express, Inc.,

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

4, 6

TABLE OF AUTHORITIES—Continued

Page(s)

Rubash v. Volkswagen Group of America, Inc.,

No. 21-cv-447-wmc, 2023 WL 5424098

(W.D. Wisc. Aug. 18, 2023) .......................

Schumacher Homes of Circleville, Inc. v.

Spencer,

577 U.S. 1129 (2016) .................................

Shearson/Am. Express Inc. v. McMahon,

482 U.S. 220 (1987) ...................................

4, 6

Shelton v. Federal Savings Bank,

No. CV-25-00108-PHX-KML, 2025 WL

395290 (D. Ariz. Jan. 22, 2025) ................

SmartSky Networks LLC v.

DAG Wireless Ltd.,

93 F.4th 175 (4th Cir. 2024) ..................... 24-25

Southland Corp. v. Keating,

465 U.S. 1 (1984) .......................................

Stolt-Nielsen S.A. v. AnimalFeeds

Int’l Corp.,

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

Teleport Mobility, Inc. v. Sywula,

No. 21-cv-00874-SI, 2025 WL 860498

(N.D. Cal. Mar. 18, 2025)..........................

United Steel, Paper & Forestry, Rubber,

Mfg., Energy, Allied Indus. & Serv.

Workers Int’l Union, AFL-CIO/CLC v.

Huntington Ingalls Inc.,

No. 4:24-CV-19, 2024 WL 3823992

(E.D. Va. Aug. 13, 2024) ...........................

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Vaden v. Discover Bank,

556 U.S. 49 (2009) .....................................

1, 7

Van Buren v. United States,

593 U.S. 394 (2021) ...................................

Volt Information Sciences, Inc. v. Board of

Trustees of Leland Stanford Junior

University, 489 U.S. 468 (1989)................

Yates v. United States,

574 U.S. 528 (2015) .........................................

ZF Automotive U.S., Inc. v. Luxshare, Ltd.,

596 U.S. 619 (2022) ...................................

FOREIGN CASES

Hamlyn & Co. v. The Talisker Distillery,

[1894 H.L.] A.C. 202 ................................. 9, 11

Scott v. Avery,

[1855] 5 H. L. 811 .....................................

Wilson v. Glasgow Tramways & O. Co.,

5 Session Cases (Scot.) Fourth Series,

981 ............................................................. 9-10

STATUTES

9 U.S.C. §§ 1 et seq. ................................ 1-3, 14-16

§ 1 .................................................................... 17

§ 2. .......................................................... 6, 19-20

§ 3 ............................................... 3, 4, 6-9, 15, 26

§ 4 ........................................................... 4, 6-7, 9

§ 5 ...................................................................... 6

viii

TABLE OF AUTHORITIES—Continued

Page(s)

§ 6 ...................................................................... 6

§ 7 ...................................................................... 6

§ 9 ............................................. 4, 6-7, 15, 17, 26

§ 10 ........................................................... 6-7, 26

§ 11 .................................................................... 6

9 U.S.C. §§ 201 et seq. .................................... 3, 15

§ 203 ................................................................ 15

9 U.S.C. §§ 301 et seq. .................................... 3, 15

§ 302 ................................................................ 15

28 U.S.C. § 1391 ................................................. 15

N.Y. Arbitration Law, ch. 275, N.Y. Laws

1920 (McKinney) ........................ 2, 4, 8-9, 11-12

§ 3 ...................................................................... 9

§ 5 ...................................................................... 9

Ohio Rev. Code Ann. § 2711.23 (West) .............. 22

FOREIGN STATUTES

English Arbitration Act 1889, 52 & 53 Vict.

c. 49............................................................ 10-11

OTHER AUTHORITIES

Arbitration of Interstate Commercial

Disputes: Joint Hearings on S. 1005 and

H.R. 646 before the Subcomms. of the

Comms. On the Judiciary, 68th Cong. 1st

Sess. 38 (1924) ..................................... 11-12, 14

TABLE OF AUTHORITIES—Continued

Page(s)

Federal Commercial Arbitration: Hearings

on S. 4213 and S. 4214 Before the

Subcomm. of the S. Comm. On the

Judiciary, 67th Cong. 4th Sess. (1923) ....

Gary B. Born, International Commercial

Arbitration (3d ed. 2021) ............. 3, 8, 14, 17-18

Harry Baum and Leon Pressman, The

Enforcement of Commercial Arbitration

Agreements in the Federal Courts, 8

N.Y.U. L.Q. Rev. 238 (1930) .....................

James Dawson, Contract After Concepcion:

Some Lessons from the State Courts, 124

Yale L.J. 233 (2014) ..................................

JAMS Comprehensive Arbitration Rules &

Procedures (June 1, 2021) .................... 4, 16, 18

Julius

Henry

Cohen,

Commercial

Arbitration and the Law (1918) ..............

Julius Henry Cohen & Kennth Dayton, The

New Federal Arbitration Law, 12 Va. L.

Rev. 265 (1926).......................................... 2, 17

Paul L. Sayre, Development of Commercial

Arbitration Law, 37 Yale L.J. 595 (1928)

Philip J. Loree Jr., The Fourth Circuit

Weighs the Post-Badgerow Jurisdictional

Anchor—and Finds It Won’t Set, 142

Alternatives 73 (May 2024) .......................

Restatement (Third) U.S. Law of

International Commercial Arbitration

(2019) .........................................................

TABLE OF AUTHORITIES—Continued

Page(s)

Richard C. Curtis, A Comparison of the

Recent Arbitration Statutes, 13 A.B.A. J.

567 (1927) ..................................................

Sabra A. Jones, Historical Development of

Commercial Arbitration in the United

States, 12 Minn. L. Rev. 240 (1928) .........

Salvatore U. Bonaccorso, Note, State Court

Resistance to Federal Arbitration Law, 67

Stan. L. Rev. 1145 (2015) .........................

State Courts and the Federalization of

Arbitration Law, 134 Harv. L. Rev. 1184

(2021) ......................................................... 19, 22

William Catron Jones, Three Centuries of

Commercial Arbitration in New York: A

Brief Survey, 1956 Wash. U. L.Q. 193

(1956) .........................................................

INTEREST OF THE AMICUS CURIAE1

The Chamber of Commerce of the United States

(“Chamber”) is the world’s largest business federation.

The Chamber represents approximately 300,000

direct members and indirectly represents the interests

of more than three million companies and professional

organizations of every size, in every industry sector,

and from every region of the country. An important

function of the Chamber is to represent the interests

of its members in matters before Congress, the

Executive Branch, and the courts. To that end, the

Chamber has participated in many cases addressing

the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1

et seq. These include cases specifically addressing the

subject-matter jurisdiction of the federal courts, such

as Vaden v. Discover Bank, 556 U.S. 49 (2009) and

Badgerow v. Walters, 596 U.S. 1 (2022).

The Chamber has a strong interest in predictable

jurisdictional rules governing the judicial forums in

which arbitration clauses and the resulting awards

can be reviewed. Many of the Chamber’s members rely

upon arbitration clauses to provide a fair and efficient

mechanism for resolving disputes without the costs

of traditional litigation in court. Predictable jurisdictional rules help reenforce that system, consistent

with the wishes of Congress expressed in the FAA.

And, in the Chamber’s view, predictable rules that

allow for a federal forum to maintain jurisdiction in

cases like this one are consistent with the FAA’s text,

track its statutory history, and serve its purpose of

addressing state-court hostility to arbitration.

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

part and no entity or person, aside from amicus, its members, or

its counsel, made any monetary contribution intended to fund the

preparation or submission of this brief.

SUMMARY OF ARGUMENT

Under Chapter 1 of the FAA, when a federal court

properly exercises subject-matter jurisdiction to

review an arbitration agreement and then issues a

stay, it retains the power to consider subsequent crossapplications to confirm or to vacate the arbitration

award arising out of that same proceeding. In addition

to the reasons advanced by Respondents, five others

support this conclusion.

First, it tracks the statutory history behind the

FAA’s enactment. As this Court and numerous

arbitration scholars have repeatedly recognized, New

York’s arbitration law, N.Y. Arbitration Law, ch. 275,

N.Y. Laws 1920 (McKinney) (hereinafter “1920 New

York Law”), served as the “prototype of” the FAA.

Harry Baum and Leon Pressman, The Enforcement of

Commercial Arbitration Agreements in the Federal

Courts, 8 N.Y.U. L.Q. Rev. 238, 243 (1930); see also

Julius Henry Cohen & Kenneth Dayton, The New Federal

Arbitration Law, 12 Va. L. Rev. 265, 269, 275 (1926).

Only a year after New York’s legislative enactment, that

state’s court of appeals unanimously interpreted its new

arbitration law to preserve jurisdiction when a court

stays its hand after deciding to enforce an arbitration

agreement. Matter of Berkovitz v. Arbib & Houlberg, Inc.,

130 N.E. 288 (N.Y. 1921). Congress expressly modeled

the FAA on New York’s arbitration law and, while

designing the federal statute, was cognizant of the

Berkovitz decision. Judicial interpretations immediately following the FAA’s adoption confirm this view:

Agreement and award proceedings constituted a single,

integrated case for purposes of federal subject-matter

jurisdiction. See Marine Transit Corp. v. Dreyfus, 284

U.S. 263, 275-276 (1932); Marchant v. Mead-Morrison

Mfg. Co., 29 F.2d 40 (2d Cir. 1928). In light of that

historical backdrop, the best interpretation of the FAA

is that a federal court retains jurisdiction to entertain

cross-applications to review or to vacate awards after

issuing a Section 3 stay.

Second, this rule heeds this Court’s jurisprudence

interpreting Chapter 1 of the FAA to take into account

its implications for international commercial arbitration. See Cortez Byrd Chips, Inc. v. Bill Harbert

Constr. Co., 529 U.S. 193 (2000). As Cortez recognized,

Chapter 1 governs not only domestic arbitrations but

also a slice of international ones too. Indeed, at the

time of its enactment, Chapter 1 covered virtually

all international commercial arbitrations because, in

1925, the United States was not a party to thenprevailing multilateral treaties. See I Gary B. Born,

International Commercial Arbitration § 1.01[C][2] at

65 (3d ed. 2021) (hereinafter “Born”). Still today,

Chapter 1 governs agreements and awards in international commercial arbitrations falling outside the New

York Convention (governed by FAA Chapter 2) and the

Panama Convention (governed by FAA Chapter 3).

Petitioner’s view would create an anomaly in which a

federal court would retain jurisdiction under Chapters

2 and 3 to review arbitration awards, but not under

Chapter 1. There is little reason to think Congress

would have intended this odd consequence, particularly given that Chapter 1 originally governed review

of virtually all international commercial arbitration

awards.

Third, this rule comports with this Court’s prior

precedent interpreting the FAA to require courts to

enforce arbitration agreements “according to their

terms.” See AT&T Mobility LLC v. Concepcion, 563

U.S. 333, 339 (2011); Lamps Plus, Inc. v. Varela, 587

U.S. 176, 183-84 (2019) (quoting Epic Systems Corp. v.

Lewis, 584 U.S. 497, 506 (2018)). Those “terms” often

include institutional rules (here the JAMS rules)

incorporated by reference into the parties’ agreement.

See JAMS Comprehensive Arbitration Rules & Procedures

(June 1, 2021). Among those incorporated rules in this

case, JAMS Rule 25 includes a bilateral agreement by

the parties to “entry of judgment upon and in any court

with jurisdiction.” That language, long utilized by

arbitral institutions, works hand-in-glove with FAA

Section 9 (and the New York arbitration law on which

it was based). In relevant part, Section 9 specifies that

judicial confirmation and vacatur proceedings may be

brought “[i]f the parties in their agreement have

agreed that a judgment of the court shall be entered

upon the award made pursuant to the arbitration . . . .”

9 U.S.C. § 9. So when a federal court, properly vested

with subject-matter jurisdiction under Vaden, requires

parties to arbitrate (whether by issuing a Section 3

stay or a Section 4 order), its role to enforce the parties’

agreement “according to its terms” does not extinguish

simply when the arbitration commences; rather, the

court retains jurisdiction to enforce such an “entry of

judgment” term in cases where the parties do not

voluntarily comply with the award.

Fourth, this rule overcomes lingering state judicial

hostility to arbitration. As this Court has long

recognized, Congress adopted the FAA to overcome

judicial hostility to arbitration agreements and awards,

especially among state courts. Rodriguez de Quijas v.

Shearson/Am. Express, Inc., 490 U.S. 477, 480 (1989);

see also Buckeye Check Cashing, Inc. v. Cardegna, 546

U.S. 440, 443 (2006); Shearson/Am. Express Inc. v.

McMahon, 482 U.S. 220, 231-232 (1987); Dean Witter

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

Following New York’s adoption of its arbitration law in

1920, the patchwork of rules prevailing in the several

states enabled a party trying to avoid participating in

arbitration or paying an award to force its New York

counterparty to sue in the courts of another state more

hostile to arbitration than New York. The FAA offered

a welcome antidote to this forum-shopping problem.

By tracking New York’s standards for the enforceability of arbitration agreements and awards, the 1925

federal enactment promised to enhance national uniformity both through its substantive standards and

through clarifying the power of federal courts. Despite

substantial progress over the past century, state-court

hostility still festers in pockets of the United States.

Preserving the subject-matter jurisdiction of the

federal courts across agreement- and award-stage

proceedings honors Congress’ longstanding and longrecognized goals and spares parties the commercedefeating inefficiency of seeking relief in hostile state

forums.

Fifth, contrary to Petitioner’s suggestion, permitting federal jurisdiction will not produce a parade of

horribles. Even though essentially every circuit has

employed some form of the “jurisdictional anchor”

theory, Petitioner fails to cite any empirical evidence

to prove that its feared flood of litigation has come to

pass. See Br. at 33-36. Justice Breyer’s dissent in

Badgerow cannot fill the gap because Badgerow

involved a standalone complaint that lacked jurisdiction whereas this case involves an application to

confirm filed in an action that was already pending in

federal court. Compare Dodson Int’l Parts, Inc. v.

Williams Int’l Co. LLC, 12 F.4th 1212, 1227-28 (10th

Cir. 2021).

For these reasons, along with those advanced by

Respondents, the lower court’s judgment should be

affirmed.

ARGUMENT

Following the example set by New York a few

years earlier, Congress in 1925 adopted the FAA to

overthrow obsolete “judicial hostility to arbitration.”

Rodriguez de Quijas, 490 U.S. at 480; see also Buckeye

Check Cashing, Inc., 546 U.S. at 443; McMahon, 482

U.S. at 231-232; Dean Witter Reynolds Inc., 470 U.S. at

221. Closely modeling the original FAA on New York’s

own arbitration statute, Congress aimed to address

variations among the several states. A uniform federal

standard, coupled with the availability of a federal

forum, reduced the risk that state courts, hostile to

arbitration, could frustrate arbitration agreements

and awards that had grown increasingly essential to

interstate and to international commerce. Otherwise,

recalcitrant parties could continue to welch on their

arbitration agreements or to thwart confirmation of

arbitral awards by seeking refuge in the courts of

states (or countries) that, unlike New York, were

hostile to arbitration.

Consistent with that overarching purpose, the original

federal enactment sets forth a series of requirements:

a rule of substantive federal law generally requiring

enforcement of arbitration agreements (§2), a requirement to stay litigation in federal court when seized

with an enforceable arbitration agreement (§3), a

power to compel arbitration (a form of specific performance of the arbitration agreement) when a recalcitrant

party resisted its contractual obligation (§4), a power

to appoint arbitrators when necessary (§5), a power to

enforce subpoenas issued by arbitrators (§7), and a

requirement presumptively to confirm arbitration

awards subject to a limited number of defenses

(§§9-11). Many provisions explicitly refer to the

United States Courts, see e, g., 9 U.S.C. §§ 3, 6, 9-11,

reflecting Congress’ recognition that, for these rules to

achieve their intended purpose, parties needed

pathways to a federal forum.

Vaden addressed this need with respect to arbitration agreements. Citing language in Section 4,2 Vaden

carved one such path by allowing a district court to

“look through” the petition to the underlying dispute

in order to ascertain whether federal subject-matter

jurisdiction would lie absent the arbitration clause.

556 U.S. at 62-65. For example, if the underlying

action involved a claim of federal employment discrimination, ordinary principles of federal subject-matter

jurisdiction would permit the district court to exercise

authority over the motion to compel (or application for

a stay, see 9 U.S.C. § 3). See Vaden, 556 U.S. at 70.

Badgerow addressed this need with respect to

arbitration awards. Noting subtle linguistic differences

between Section 4 and Sections 9 and 10 of the FAA,

Badgerow held that Vaden’s “look through” principle

did not apply to freestanding applications to confirm or

to vacate the award. 596 U.S. at 11-15. Instead,

Badgerow concluded that the path to federal court

would be found in an independent basis for federal

subject-matter jurisdiction with respect to that

freestanding post-award application. Id. at 18.

This case lies at the intersection of Vaden and

Badgerow. Like Vaden, the look-through theory

supported the exercise of federal subject-matter jurisdiction at the agreement-enforcement stage of the

In relevant part, Section 4 provides that a party “may petition

any United States district court which, save for such agreement,

would have jurisdiction under title 28, in a civil action or in

admiralty of the subject matter of a suit arising out of the

controversy between the parties.”

proceeding (the underlying claim included several

federal questions). Like Badgerow, the case involves

the subject-matter jurisdiction of the federal courts

over cross-applications to vacate and to confirm

arbitral awards. The precise question, as both parties

recognize, is whether federal subject-matter jurisdiction that unquestionably existed at the agreementstage proceedings also encompasses jurisdiction over

award-stage proceedings when the federal court

exercises its power to stay proceedings under FAA

Section 3. The answer to that question is “Yes.”

When a federal court stays proceedings under

Section 3, the subject-matter jurisdiction properly

exercised at the agreement-enforcement stage encompasses post-award proceedings to confirm or to

vacate the award. This brief addresses five reasons, in

addition to those advanced in Respondents’ brief, that

this must be the rule.

A. Petitioner’s Reading Ignores Statutory

History.

When interpreting a federal statute, this Court

routinely consults the history against which the

statute was enacted. ZF Automotive U.S., Inc. v.

Luxshare, Ltd., 596 U.S. 619, 628 (2022); Cortez, 529

U.S. at 199. As noted above, it is widely accepted that

the FAA was enacted against the backdrop of, and

largely modeled upon, New York’s 1920 arbitration

law. See Allied-Bruce Terminix Cos., Inc. v. Dobson, 513

U.S. 265, 287 (1995) (Thomas, J., dissenting, joined by

Scalia, J.); Southland Corp. v. Keating, 465 U.S. 1,

34 (1984) (O’Connor, J., dissenting); see generally I Born

at 157. Careful examination of the contemporaneous

jurisprudence reveals that New York courts considered

their jurisdiction over agreement-stage proceedings

to extend to award-enforcement proceedings. This

paralleled more general principles of ancillary jurisdiction that federal courts likewise embraced at that

time. Considered together, this statutory history

supports Respondents’ view.

New York adopted its arbitration law in 1920, just

a few years before Congress adopted the FAA. Like

Congress, New York’s legislature did so to overcome

longstanding judicial hostility to the enforcement of

arbitration agreements and awards. See William

Catron Jones, Three Centuries of Commercial Arbitration

in New York: A Brief Survey, 1956 Wash. U. L.Q. 193

(1956). Like the FAA, New York’s arbitration law

granted courts the power to stay judicial proceedings

pending arbitration. Compare 1920 New York Law

§§ 3, 5 with 9 U.S.C. §§ 3-4.

In the years immediately following New York’s

enactment, its courts confronted a spate of interpretive questions. An important early decision, rendered

only three years before the FAA’s enactment, was thenJudge Cardozo’s opinion for the New York Court of

Appeals in Berkovitz. Berkovitz entailed constitutional

and other challenges to New York’s new arbitration

law. In rejecting those challenges, Judge Cardozo,

speaking for a unanimous court, addressed the issue

of judicial jurisdiction:

If [the arbitration agreement] has been made

and is valid, the court will stay its hand till

the extrinsic fact is ascertained, and the

condition thus fulfilled. That done, its doors

are open for whatever measure of relief the

situation may exact. Hamlyn & Co. v. Talisker

Distillery, 1894, A. C. 202; Wilson v. Glasgow

Tramways & O. Co., 5 Session Cases (Scot.)

Fourth Series, 981, 992, quoted by Cohen,

Commercial Arbitration and the Law, pp. 262,

263. The award will be enforced if valid,

and for cause will be annulled. ‘In common

language where no attempt is made at logical

accuracy,’ it is sometimes said that the

contract of arbitration ‘ousts the jurisdiction’

of the judges. Wilson v. Glasgow Tramways &

O. Co., supra. ‘In strictness, however, it does

not oust the jurisdiction, but merely introduces a new plea into the cause’ on which the

judge as at common law is under a duty to

decide. Wilson v. Glasgow Tramways & O. Co.,

supra. The situation is the same in substance

as when effect is given to a release or to a

covenant not to sue. Jurisdiction is not

renounced, but the time and manner of its

exercise are adapted to the convention of the

parties restricting the media of proof. Long

before the statute there was a like withholding of relief whenever the subject-matter of

arbitration, instead of extending to all differences, was limited to some. Prest., etc., D. & H.

C. Co. v. Pa. Coal Co., 50 N. Y. 250; Scott v.

Avery, [1855] 5 H. L. 811; Hamilton v.

Liverpool & L. & G. Ins. Co., 136 U. S. 242, 255,

10 Sup. Ct. 945, 34 L. Ed. 419. There was a

like refusal to permit the litigation of the

merits when the contract, though general,

was no longer executory but had ripened into

an award. The change resulting from the

statute is one of measure and degree.

130 N.E. at 291-92 (emphasis added).

In announcing that broad rule of judicial jurisdiction, Berkovitz tracked contemporaneous developments

in English law. Already in the late nineteenth century,

England had modernized its arbitration act in 1889,

and English courts had begun to overthrow the

ancient judicial hostility to enforcing agreements and

awards. See English Arbitration Act 1889, 52 & 53

Vict. c. 49. Characteristic of the jurisprudential shift

was Hamlyn & Co. v. The Talisker Distillery, [1894

H.L.] A.C. 202, a decision by the House of Lords relied

upon by the New York Court of Appeals in Berkovitz.

In relevant part, Lord Watson explained that, under

English law, “[t]he jurisdiction of the Court is not

wholly ousted by such a[n] [arbitration] contract. It

deprives the Court of jurisdiction to inquire into and

decide the merits of the case, whilst it leaves the Court

free to entertain the suit, and to pronounce a decree in

conformity with the award of the arbiter.” Id. at 211

(emphasis supplied). Thus, during the time between

New York’s enactment of its arbitration law and

Congress’ adoption of the FAA, New York courts,

drawing on English jurisprudence, understood that a

court seized with jurisdiction to decide whether to

enforce an arbitration agreement retained jurisdiction

over post-award proceedings.

Sabra A. Jones,

Historical Development of Commercial Arbitration in

the United States, 12 Minn. L. Rev. 240, 246 (1928)

(noting that the English Arbitration Act of 1889 “has

been instrumental in bringing about the passage of the

New York law of 1920 and our federal Act of 1925”).

Fresh against this backdrop, Congress adopted the

FAA. When it did so, New York’s law, including

Berkovitz, was central to its drafting decisions.

Arbitration of Interstate Commercial Disputes: Joint

Hearings on S. 1005 and H.R. 646 before the

Subcomms. of the Comms. On the Judiciary, 68th Cong.

1st Sess. 38, 40 (1924) (hereinafter “1924 Hearing”)

(“The proposed federal statute follows the form of the

successful New York and New Jersey statutes with

only such changes as seem necessary for the federal

statute.”); Federal Commercial Arbitration: Hearings

on S. 4213 and S. 4214 Before the Subcomm. of the S.

Comm. On the Judiciary, 67th Cong. 4th Sess. 18-23

(1923) (hereinafter “1923 Hearing”) (entering Berkovitz

into the legislative record). Witnesses at multiple

congressional hearings about the proposed federal

legislation discussed the experience with New York

law and specifically Berkovitz. 1923 Hearing at 14, 21;

1924 Hearing at 34. Unsurprisingly, then, the two

laws bear significant structural similarities.

On the heels of the FAA’s enactment, federal courts

endorsed this integrated view of federal subjectmatter jurisdiction. See Marine Transit Corp., 284 U.S.

at 275-276. Marine Transit addressed a difficulty that

had arisen in the wake of New York’s 1920 enactment,

namely whether that enactment applied to federal

courts in New York that were sitting in admiralty.

While this Court had rejected a constitutional challenge to the application of New York’s arbitration law

in New York state courts, Red Cross Line v. Atlantic

Fruit Co., 264 U.S. 109, 124 (1924), federal courts sitting

in admiralty held that it did not apply, see Atlantic

Fruit Co. v. Red Cross Line, 276 Fed. 319 (S.D.N.Y.

1921). Marine Transit made clear that the FAA cured

the difficulty and, in doing so, expressly held that a

federal court with jurisdiction to stay an action

pending arbitration retains the power to confirm any

ensuing arbitral award. 284 U.S. at 275-76.

The Second Circuit took a similar view that

agreement-stage and award-stage proceedings were

one integrated case for purposes of federal subjectmatter jurisdiction. See Marchant, 29 F.2d 40. In

Marchant, a defendant sought to remove a case from

New York courts at the agreement-enforcement stage

and then, following an order remanding the case to

state court, renewed its removal petition at the awardenforcement stage. Holding that removal jurisdiction

would not lie, the Second Circuit held that the

entire matter constituted a single, integrated case. It

rejected the view that effort to remove the awardenforcement proceeding constituted an independent

case or controversy that could circumvent the bar on

reviewability of remand orders. Thus, Marine Transit

and Marchant reflect a consistent, contemporaneous

understanding at the time of the FAA’s enactment

that, under the principle announced in Berkovitz, the

agreement-enforcement and award-enforcement stages

represented a single “case” for purposes of federal

subject-matter jurisdiction.3

Thus, the FAA’s “statutory history” supports the

view that if a federal court concludes that an arbitration agreement “is valid” and “stay[s] its hand” until

the conclusion of the arbitration, “its doors are open for

whatever measure of relief the situation may exact,”

including cross-applications to confirm and to vacate

the award. Berkovitz, 130 N.E. at 291-92.

New York practice was not to the contrary. Marchant claimed

to see some tension between its view about integrated cases and

the conclusion reached by the New York Court of Appeals in

Hosiery Mfrs. Corp. v. Goldston, 143 N.E. 779 (N.Y. 1924).

Goldston addressed an entirely distinct issue, namely the

appellate jurisdiction of the New York courts under New York’s

“special proceeding” rule. But federal courts already wellestablished rules governing appellate jurisdiction, obviating any

need to import unique principles of New York appellate procedure

into federal practice.

B. Petitioner’s Reading Would Upset Expectations Around International Arbitrations

Not Governed By The New York

Convention Or Panama Convention.

While this case concerns domestic arbitration,

Chapter 1 of the FAA sweeps more broadly. Indeed, at

the time of its original enactment, the FAA also

governed most international commercial arbitrations;

in 1925, the United States was not a party to the

then-prevailing multilateral treaties governing the

subject like the Geneva Protocol of 1923. See I Born

§ 1.01[C][1] at 62-63. Given the legal landscape at that

time, the FAA’s implications for international

arbitration represented an important consideration

for Congress. Both the FAA’s text, especially Section

1’s reference to “foreign commerce,” and the legislative

history and contemporaneous commentaries reflect

this recognition. 1924 Hearing at 16-18 (Cohen testimony), 27-28 (Rose statement), 32-33 (Nichols testimony); Paul L. Sayre, Development of Commercial

Arbitration Law, 37 Yale L.J. 595, 616 (1928); Richard

C. Curtis, A Comparison of the Recent Arbitration

Statutes, 13 A.B.A. J. 567 (1927).

While the United States has ratified several

multilateral international arbitration treaties over the

intervening century, Chapter 1 continues to carry

implications for international arbitration. As this

Court recognized in Cortez, Chapter 1 covers a slice of

international commercial arbitrations that fall outside

the New York Convention (Chapter 2) and the Panama

Convention (Chapter 3). I Born at 160 & nn. 1156-57

(3d ed. 2021); Restatement (Third) U.S. Law of

International Commercial Arbitration § 4.3 (2019).

That awareness of Chapter 1’s importance beyond

the domestic sphere informed this Court’s decision in

Cortez. Cortez addressed how to interpret Chapter 1’s

venue provision, see 9 U.S.C. § 9, in light of the general

federal venue statute, see 28 U.S.C. § 1391. To support

its conclusion that Chapter 1’s venue provision was

permissive, the Court hinged part of its analysis on the

consequences for international cases falling outside

the New York and Panama Conventions. It noted that

Chapters 2 and 3 of the FAA, the implementing

legislation for the New York Convention and the

Panama Convention, contained “liberal choice of venue”

provisions. Interpreting Chapter 1’s venue provisions

as mandatory would, in the Court’s view, have created

a venue gap, contrary to Congress’ purposes in creating

a federal forum for the enforcement of international

arbitration awards, including those falling outside the

ambit of the two international conventions.

The same analysis can be applied to the jurisdictional question presented here. Chapters 2 and 3

contain express grants of federal subject-matter

jurisdiction to support confirmation of awards falling

under those treaties. See 9 U.S.C. §§ 203, 302. But

Petitioner’s view would make it more difficult for

parties seeking confirmation of international arbitration awards not falling under those treaties to obtain

a federal forum under Chapter 1. Given that choice, it

makes more sense to interpret Chapter 1 to avoid

creating this jurisdictional gap.

Cortez recognized as much when it observed that

actions to confirm international awards in non-treaty

arbitrations “would not necessarily be barred for lack

of jurisdiction.” 529 U.S. at 203. Indeed, elsewhere in

the opinion, the Cortez Court reaffirmed its longstanding interpretation of the FAA that a “court with the

power to stay the action under § 3 has the further

power to confirm any ensuing arbitration award.” 529

U.S. at 202 (citing Marine Transit, 284 U.S. at 275-276).

While Marine Transit announced this principle in the

context of an admiralty proceeding, Cortez extended it

to a garden-variety commercial dispute, undercutting

Petitioner’s effort (Br. at 37-39) to give Marine Transit

a crabbed interpretation. In short, as in Cortez, “the

fallout” for non-treaty international arbitration,

“underscores the implausibility of the [Petitioner’s]

interpretation [of Chapter 1]. It is ‘extra icing on a

cake already frosted.’” Van Buren v. United States, 593

U.S. 374, 394 (2021) (quoting Yates v. United States, 574

U.S. 528, 557 (2015) (Kagan, J., dissenting)).

C. Petitioner’s Reading Ignores The EntryOf-Judgment Clause Contained In The

Parties’ Agreement.

Petitioner’s reading would also impose an improper

limitation on the district court’s ability to enforce

parties’ arbitration agreements. Litigation over the

enforceability of an agreement is not limited to

requiring the parties to engage in the arbitration

simpliciter. Rather, as this Court has recognized, the

role for the federal courts envisioned by the FAA is to

enforce arbitration agreements “according to their

terms.” See Concepcion, 563 U.S. at 339; Varela, 587

U.S. at 183-84 (quoting Lewis, 584 U.S. at 506).

The “terms” of this arbitration agreement, like most

contemporary ones, include a series of institutional

rules, not limited to the bare bilateral agreement to

arbitrate. Here, those rules were the institutional

rules issued by JAMS and incorporated by reference

into the parties’ agreement. Critical here is JAMS

Rule 25 under which both parties agreed to the “entry

of judgment upon and in any court with jurisdiction.”

That entry-of-judgment clause is important. It

tracks language in Section 9 of the FAA specifying that

a federal court can confirm the award “[i]f the parties

in their agreement have agreed that a judgment of the

court shall be entered upon the award made pursuant

to the arbitration.” 9 U.S.C. § 9. Section 9’s “entry of

judgment” language is no accident. Like other provisions of the FAA, it was enacted in 1925 and modeled

upon New York’s arbitration law to correct a preenactment practice. Under the pre-enactment practice,

award creditors (that is, the parties prevailing in the

arbitration) could not easily enforce an award when

the award debtor (that is, the losing party) failed to

honor it. See generally III Born § 25.10 at 3684.

Rather, “the only recourse of the successful party was

to sue in a court of law upon the award” where the

award creditor was “subject to the delay always

incident to any action at law and to defeat in proving

the award itself.” Cohen, 12 Va. L. Rev. at 272. Indeed,

if the award debtor renounced the agreement before

the award was rendered, the award could be void. See

Park Const. Co. v. Independent Sch. Dist. No. 32, 296

N.W. 475, 479-80 (Minn. 1941) (Peterson, J., dissenting) (extensively discussing common-law history of

arbitration agreements and awards).

By including the entry-of-judgment clause, the FAA

(and the New York legislation on which it was

modeled) changed course. It empowered the award

creditor to apply to confirm the award, effectively

obligating the court to treat the award as if it had been

a judgment rendered by the same court unless the

award debtor proved one of the limited exceptions set

forth in the arbitration law. See Marine Transit, 284

U.S. at 276. In the wake of the FAA’s enactment,

periodically, but rarely, courts encounter awards (or

awards pursuant to rules) lacking the entry-of-

judgment language, thereby denying the party the

benefit of the FAA’s protections. III Born § 25.10 at

3684-85 & n. 1455.

Here, however, JAMS Rule 25 offered that protection

to both parties. So when the District Court stayed

litigation pending arbitration (Pet. 8, 12a), it was not

simply requiring the parties to arbitrate but it also

was requiring the parties to observe their bilateral

agreement to an entry of judgment pursuant to Rule

25. Thus, when Respondents, as the award creditors,

returned to court following the successful arbitration,

the District Court naturally retained jurisdiction to

confirm the award as part of its previous decision to

hold the parties to all aspects of their arbitral

commitment, including the bilateral consent to entry

of judgment.

D. Federal Jurisdiction Effectuates The FAA’s

Purpose To Counteract State Hostility To

Arbitration.

Petitioner’s view also fails to fulfill the purposes of

the FAA—to overcome state-court hostility to arbitration and facilitate the speedy and inexpensive resolution

of disputes out of court. This Court has recognized

that arbitration confers many advantages over litigation. Allied-Bruce Terminix Cos., 513 U.S. at 280; see,

e.g., Concepcion, 563 U.S. at 345 (arbitration “reduc[es]

the cost and increas[es] the speed of dispute resolution”); Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp.,

559 U.S. 662, 685 (2010) (“lower costs” and “greater

efficiency and speed”); Mitsubishi Motors Corp. v.

Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (1985)

(emphasizing arbitration’s “simplicity, informality, and

expedition”). It was to ensure that parties could enjoy

these benefits and avoid judicial “‘hostility to arbitration’ that led Congress to enact the FAA.” Kindred

Nursing Ctrs. Ltd. P’ship v. Clark, 581 U.S. 246, 254

(2017) (citation omitted).

Nonetheless, state courts have continued to skirt the

FAA’s command. Concepcion, 563 U.S. at 342; Kindred

Nursing Ctrs., 581 U.S. at 254; DIRECTV, Inc. v.

Imburgia, 577 U.S. 47 (2015). These rifts between state

and federal courts regarding the arbitrability of

disputes have arisen across the country in numerous

forms despite this Court repeatedly reversing statecourt decisions hostile to arbitration. See Note, State

Courts and the Federalization of Arbitration Law, 134

Harv. L. Rev. 1184, 1194 (2021) (collecting cases and

noting eight different ways state courts have

attempted to avoid application of the FAA); Salvatore

U. Bonaccorso, Note, State Court Resistance to Federal

Arbitration Law, 67 Stan. L. Rev. 1145, 1156-65 (2015);

James Dawson, Contract After Concepcion: Some

Lessons from the State Courts, 124 Yale L.J. 233, 23540 (2014). They include:

(1) open defiance4; (2) finding that an

arbitration agreement does not “involve”

interstate commerce5; (3) permitting private

State judges in Montana, Alabama, and West Virginia

explicitly opposed this Court’s interpretation of FAA § 2. See State

Courts and the Federalization of Arbitration Law, 134 Harv. L.

Rev. at 1194 (noting that even after the Montana Supreme Court’s

opinion upholding a state law regulating arbitration agreements

was reversed, two justices refused to sign a remand order stating

this Court’s opinion was “legally unfounded, socially detrimental

and philosophically misguided”).

Despite this Court’s holding in Citizens Bank v. Alafabco, 539

U.S. 52 (2003), that FAA § 2 extends to the full reach of Congress’s

Commerce Clause power and therefore applies to a debt-structing

deal in Alabama between an Alabama lender and construction

company, state courts have still held that arbitration agreements

do not involve interstate commerce. See e.g. Favara v. Regent

parties to evade arbitration by initiating qui

tam or analogous actions6; (4) holding that a

choice-of-law clause in an arbitration agreement incorporates state law contrary to the

FAA7; (5) defining “arbitration” under § 2

narrowly under state law8; (6) holding

Aerospace Corp., No. B246718, 2013 WL 5832391, at *2 (Cal. Ct.

App. Oct. 30, 2013) (holding that an employer did not prove an

employment agreement involved interstate commerce within the

meaning of § 2 even where the plaintiff’s job description involved

responsibilities “in . . . other states, and other countries”).

Some state courts may use their regulatory power to correct

legal wrongs even where an arbitration agreement would bar the

victimized private party from suing. See e.g. EEOC v. Waffle

House, Inc., 534 U.S. 279, 293-96 (2002). However, California

extends this principle to employees that are allowed to bring

private suits on behalf of the state for violations of the civil labor

code—thereby allowing employees to work around arbitration

agreements in their employment contracts. See e.g. Adolph v. Uber

Techs., Inc., 532 P.3d 682, 691-92 (Cal. 2023) (holding that a

plaintiff that filed a private attorneys’ general claim comprised of

individual and non-individual claims could continue to litigate

non-individual claims in court even where an order compelling

arbitration of individual claims was validly entered).

Numerous state courts have overextended this Court’s

holding in Volt Info. Scis., Inc. v. Board of Trustees of Leland

Stanford Junior University, 489 U.S. 468, 470 (1989), that the

FAA does not preempt state law where the arbitration agreement

includes a choice-of-law clause selecting state procedural law. See

e.g. Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52,

58 (1995) (rejecting the argument that contracting parties that

agreed to include claims for punitive damages within the issues

to be arbitrated could waive that right to arbitrate the issue via

state law).

State courts graft procedural requirements onto the

definition of “arbitration” in Section 2 and conclude that the FAA

is inapplicable. See e.g. Cheng-Canindin v. Renaissance Hotel

Assocs., 57 Cal. Rptr. 2d 867, 874 (Cal Ct. App. 1996) (finding that

arbitration agreements void for unconscionability or duress9[;] . . . (7) state courts’

unfaithful application of the Supreme Court’s

separability precedents10[;] and (8) state

a proceeding with a biased arbitrator was not an “arbitration” and

therefore the FAA was inapplicable).

State courts have continued to invalidate arbitration

agreements as unconscionable in a manner distinct from other

contracts despite this Court’s instruction in Concepcion. See e.g.

Brewer v. Mo. Title Loans, 364 S.W.3d 486, 503 (Mo. 2012) (Price,

J. dissenting) (explaining how the en banc majority decision

ignores Concepcion); Glob. Client Sols., LLC v. Ossello, 367 P.3d

361, 371 (Mont. 2016).

Although many state courts have held that defenses to

arbitration clauses must challenge the arbitration clause

separately as required by this Court’s decision in Buckeye Check

Cashing, Inc., 546 U.S. 440, some state supreme courts have

ignored the separability issue and invalidated arbitration clauses

on grounds that apply more generally to the contract containing

the clause. See Narayan v. Ritz-Carlton Dev. Co., 400 P.3d 544,

549-51 (Haw. 2017); Brewer, 364 S.W.3d at 492-96 (Mo. 2012).

Further, even after this Court extended its separability doctrine

to delegation clauses in Rent-A-Center, West, Inc. v. Jackson, 561

U.S. 63 (2010), several state courts nonetheless held that the

delegation clauses were insufficiently clear to allow an arbitrator

to decide the arbitrability of the dispute. See e.g. Ossello, 367 P.3d

at 375-76 (Mont. 2016); (McKinnon, J., dissenting) (arguing the

majority “manufacture[d] an ambiguity” in the delegation clause

and pointing to other contractual language evidencing an

agreement to arbitrate arbitrability); Pinela v. Neiman Marcus

Grp., Inc., 190 Cal. Rptr. 3d 159, 169 (Cal. Ct. App. 2015) (holding

an arbitration agreement invalid despite a delegation clause

providing that “[a]ny dispute concerning this Agreement . . . is

subject to arbitration under this Agreement and shall be

determined by the arbitrator”).

court-created procedural requirements for

entry into a valid arbitration agreement11.

State Courts and the Federalization of Arbitration

Law, 134 Harv. L. Rev. at 1194.

Denying federal courts the authority to enforce

awards in cases where they already have properly

exercised jurisdiction would frustrate commercial

parties’ ability to rely on federal-court protection when

structuring contractual agreements. It will also

expose them to the risk of anti-arbitration sentiment

in state court and invite gratuitous and wasteful

litigation by which parties file extraneous actions and

motions to destroy federal-court jurisdiction. The

added costs, complexities, and risks of denying a federal

forum for the enforcement of arbitral awards when a

federal court already has properly exercised jurisdiction would undermine the FAA’s benefits and harm the

commercial interests it was designed to advance.

E. The Jurisdictional-Anchor Theory Has Not

Produced Petitioner’s Parade Of Horribles.

Finally, Petitioner argues that the jurisdictionalanchor theory will trigger a race to the courthouse to

establish federal jurisdiction for the confirmation of

arbitral awards (Br. at 33-36). This argument is flawed

in several respects.

This Court has struck down several states’ attempts to

impose unique formation requirements on arbitration agreements. See e.g. Schumacher Homes of Circleville, Inc. v. Spencer,

577 U.S. 1129 (2016) (mem.). Nonetheless, some states still have

statutes that impose similar requirements. See e.g. Ohio Rev.

Code Ann. § 2711.23 (West). Others continue to impose differing

formation requirements. See e.g. Chilutti v. Uber Techs., Inc., 300

A.3d 430 (Pa. Super. 2023), rev’d on other grounds, No. 58 EAP

2024, 2026 WL 156181 (Pa. Jan. 21, 2026).

First, Petitioner’s argument lacks any empirical

evidence despite years of applications of the jurisdictionalanchor theory both pre- and post-Badgerow. Petitioner

cites no proof that its fears have come to fruition in any

of the jurisdictions that employ the jurisdictionalanchor theory. Meanwhile, the cases that have

assessed the jurisdictional-anchor theory do not reflect

Petitioner’s concerns.

Petitioner only explicitly discusses the Second

Circuit’s application of the jurisdictional-anchor

theory in its brief (at 36-40), but the pro-anchor

jurisdictions include the Second, Third, Fifth, Seventh,

Eighth, Ninth, Tenth, and Eleventh Circuits. See

Dodson Int’l Parts, Inc., 12 F.4th at 1227-28 (collecting

cases). The Third and Seventh Circuits also approved

of the jurisdictional-anchor theory after Badgerow. See

George v. Rushmore Serv. Ctr., LLC, 114 F.4th 226, 238

n. 16 (3d Cir. 2024); Kinsella v. Baker Hughes Oilfields

Operations, LLC, 66 F.4th 1099, 1103 (7th Cir. 2023).

Yet Petitioner has failed to identify a single case,

article, or treatise validating its concerns.

Experience in the Seventh Circuit is especially

instructive. That Circuit’s opinion in Kinsella is the

oldest post-Badgerow case that approved of the

jurisdictional-anchor theory and therefore created the

longest test period for Petitioner’s hypothetical race to

the courthouse.

But since that time, only seven cases have cited

Kinsella’s jurisdictional-anchor theory. Five endorsed

its holding and allowed the federal court to retain

jurisdiction. See Jules v. Andre Balazs Props., Nos. 231253(L), 23-1283(Con), 2025 WL 1201914 (2d Cir.

Apr. 25, 2025); George, 114 F.4th at 238; McConnell

& Malek Enters. v. Proof Mark, Inc., No. 23-cv00010-LJC, 2025 WL 2430610, at *2-4 (N.D. Cal. Aug.

22, 2025); Teleport Mobility, Inc. v. Sywula, Case No.

21-cv-00874-SI, 2025 WL 860498, at *5-6 (N.D. Cal.

Mar. 18, 2025); Rubash v. Volkswagen Grp. of Am., Inc.,

No. 21-cv-447-wmc, 2023 WL 5424098, at *1 (W.D. Wisc.

Aug. 18, 2023). One case mentioned the jurisdictionalanchor theory in a footnote, but only in the context

of the amount-in-controversy requirement for jurisdiction. See Shelton v. Fed. Sav. Bank, No. CV-25-00108PHX-KML, 2025 WL 395290 (D. Ariz. Jan. 22, 2025)

(dismissing a standalone complaint filed by pro se

plaintiff to vacate an arbitration award they lost for

failure to establish jurisdiction). The only case that

disagreed with Kinsella is the Fourth Circuit in

SmartSky Networks LLC v. DAG Wireless Ltd., 93

F.4th 175 (4th Cir. 2024).

Notably, the SmartSky court also did not raise

Petitioner’s parade of horribles and hypotheticals. See

id. Of the seven cases that cite SmartSky related to

its holding on the question presented in this petition,

none reasoned or found that the jurisdictional-anchor

theory was unwieldy, led to docket congestion, or

involved a party filing a preemptive action to secure

federal jurisdiction.12

Two cases cited SmartSky and instead accepted the rationale

in Kinsella. See McConnell & Malek Enters., 2025 WL 2430610,

at *2-4 (N.D. Cal. Aug. 22, 2025); Sywula, 2025 WL 860498, at *56 (N.D. Cal. Mar. 18, 2025). One case found no question that the

court’s subject-matter jurisdiction existed, declined to extend

Badgerow and SmartSky to a motion to transfer, and noted it was

“rather curious” for the plaintiff to raise Badgerow and SmartSky

when plaintiff was the party that sought the federal forum in

the first place and bore the burden to establish subjectmatter jurisdiction. See France v. Bernstein, No. 1:24-cv-448

(RDA/WEF), 2025 WL 350236, at *3-4 (E.D. Va. Jan. 30, 2025). In

the four other cases that approved of SmartSky’s rationale, none

involved or discussed any of the activities raised in Petitioner’s

Second, Petitioner relies on Justice Breyer’s dissent

in Badgerow to argue that the jurisdictional anchor

theory would promote gamesmanship and needless

litigation being brought to secure federal jurisdiction.

See Br. at 35-36. But Petitioner largely ignores the

critical distinction between this case and Badgerow—

that the federal court already had properly exercised

jurisdiction and stayed the case pending arbitration.

Put another way, Badgerow involved an independent

proceeding whereas SmartSky incorrectly extended

Badgerow to an embedded proceeding. See Philip J.

Loree Jr., The Fourth Circuit Weighs the Post-Badgerow

Jurisdictional Anchor—and Finds It Won’t Set, 142

Alternatives 73, 75 (May 2024) (noting that nothing in

Badgerow foreclosed subject-matter jurisdiction in the

embedded proceeding in SmartSky); Dodson Int’l Parts,

Inc., 12 F.4th at 1227-28 (noting the same distinction and

holding that because the case before it involved an

embedded proceeding it retained subject-matter jurisdiction to confirm the award). In embedded proceedings

where the federal court already has jurisdiction, the

jurisdictional-anchor theory is the most appropriate

and efficient route. It prohibits parties like Petitioner

from wasting judicial resources by converting a simple

confirmation proceeding in a federal court into a state

parade of horribles. See Marine Club Manager, Inc. v. RB Com.

Mortg. LLC, No. 23-1841, 2024 WL 3617552 at *1, n.1 (4th Cir.

Aug. 1, 2024) (first federal-court filings were post-arbitration

applications); Hopper v. CarMax Auto Superstores, Inc., No. 3:24MC-00110-KDB-SCR, 2024 WL 4530304, at *2 (W.D.N.C. Oct. 18,

2024) (same); Griffin v. Santander Consumer USA, No. 6:23-cv6366-TMC, 2024 WL 1652567, at *3 n.1 (D.S.C. Apr. 17, 2024)

(same); United Steel, Paper & Forestry, Rubber, Mfg., Energy,

Allied Indus. & Serv. Workers Int’l Union, AFL-CIO/CLC v.

Huntington Ingalls Inc., No. 4:24-CV-19, 2024 WL 3823992 (E.D.

Va. Aug. 13, 2024) (same).

court action to relitigate jurisdiction and the merits of

an arbitral award.

If anything, Petitioner’s proposed approach offers a

recipe for wasting resources. Rather than harnessing

the investment of time by a federal court that has

already scrutinized the case when deciding to issue a

Section 3 stay, Petitioner’s approach squanders that

investment by forcing both parties to start anew in a

different court when filing cross-applications to vacate

or to confirm the award. This Court should close the

door on such tactics and embrace the jurisdictionalanchor theory to allow a federal court to retain

jurisdiction to confirm or vacate an arbitral award

under Sections 9 and 10 in embedded proceedings.

CONCLUSION

For the foregoing reasons, in addition to those

advanced by Respondents, the judgment of the lower

court should be affirmed.

Respectfully submitted,

JENNIFER B. DICKEY

PETER B. RUTLEDGE

JONATHAN D. URICK

Counsel of Record

U.S. CHAMBER LITIGATION NATHAN R. MILES

CENTER

TAFT STETTINIUS &

HOLLISTER LLP

1615 H Street NW

3343 Peachtree Road, NE

Washington, DC 20062

1600 Atlanta Financial Center

Atlanta, GA 30326

(404) 233-7000

Brutledge@taftlaw.com

Counsel for Amicus Curiae

February 24, 2026

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.