Rochelle Broboff on the Supreme Court’s Nitro-Lift Decision and the Concern Over Supreme Court Unanimity in FAA Decisions

We posted in late November about the Supreme Court's unanimous per curiam Federal Arbitration Act (FAA) decision in Nitro-Lift Technologies v. Howard. There, the Justices held that, in light of an arbitration clause, only an arbitrator and not the Oklahoma courts could, in the first instance, hold contract provisions unenforceable.

Now, in this article, Rochelle Broboff of the Constitutional Accountability Center explains why the Supreme Court's decision in Nitro-Lift and, in particular, its unanimity concerns her. She doesn't argue that Nitro-Lift is at odds with any of the Court's precedents. Rather, her concern is that the current members of the Court may have accepted its recent FAA rulings, including those that, Broboff says, are at odds with the text and purpose of the 1925 act. She says that a willingness to buck the recent trend may be needed when the Court hears two more cases later this Term concerning the interaction between class actions and the FAA:

conservative majority's forced arbitration jurisprudence — once called
"an edifice of the Court's own creation" by former Justice Sandra Day
O'Connor — is encountering persistent resistance from state courts and
from lower federal courts. However, that fight should be far from over,
even if there are presently not five votes to reverse course. In the
past few weeks, the Supreme Court has granted certiorari in two FAA cases involving the availability of class-wide relief in arbitration: American Express Co. v. Italian Colors Restaurant and Oxford Health Plans LLC v. Sutter. In American Express,
the plaintiffs need an expert report the cost of which dwarfs the
financial interest of any individual plaintiff. If the class action
remedy is not available in the mandatory arbitration proceeding, then
there will be no means for injured parties to band together to pay for
the expenses of the expert. The arbitration remedy will, in fact,
provide no remedy at all. In Oxford, after the district court
held that a mandatory arbitration clause precluded a class action claim
in court, the arbitrator concluded that the class claim could proceed in
arbitration, based on the term "civil action" in the arbitration
agreement. The company challenges the arbitrator's interpretation of the
contract, arguing that the mandatory arbitration provision completely
eliminates any access to class-wide relief.


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