The Supreme Court just released its decision in Henry Schein, Inc. v. Archer & White Sales, Inc., No. 17-1272 (Jan. 8, 2018) (click here for a copy of the decision). As to the narrow, technical legal issue in this case, the Court held that the “wholly groundless” exception to the delegation doctrine does not exist and is inconsistent with the Federal Arbitration Act. Under the delegation doctrine, parties can send threshold arbitrability questions to the arbitrator. For example, if there is a dispute about the scope of an arbitration clause, the court normally decides this dispute, but the parties can reverse this presumption and have an arbitrator decide this dispute about the scope of the clause. Lower courts had created a “wholly groundless” exception, under which courts would not have to send threshold arbitrability questions to the arbitrator if the arbitrability question is groundless. In today’s Henry Schein decision, the Supreme Court rejected the wholly groundless exception.
