Upon reconvening in October 2018, the Supreme Court will take up an interesting question involving the familiar rules of First Options v. Kaplan: Who is to decide whether a claim is subject to arbitration — a court or the arbitrator? The peculiar facts giving rise to that concern in Archer and White Sales Inc. v. Henry Schein Inc. broaden, rather than limit, the case’s interest.
Archer, a distributor and seller of dental equipment, brought a suit against Schein, a manufacturer, alleging violations of the Sherman Antitrust Act through a pattern of conduct including price-fixing and anti-competitive agreements that were continuing. The suit sought both money damages and an injunction prohibiting the continuing conduct.
