On May 20, 2020, the International Institute of Conflict Protection and Resolution (“CPR”) interviewed our good friend and fellow arbitration attorney Richard D. Faulkner and Loree & Loree partner Philip J. Loree Jr. about a two-part article we wrote about the Schein case for the May 2020 and June 2020 issues of Alternatives to the High Cost of Litigation, CPR’s international ADR newsletter published by John Wiley & Sons, Inc. To watch and listen to the video-conference interview,CLICK HERE.
Steps and columns on the portico of the United States Supreme Court in Washington, DC.
If you’ve been following our posts on Henry Schein Inc. v. Archer & White Sales Inc., 139 S. Ct. 524 (Jan. 8, 2019) (available at ) (“Schein I”), and the U.S. Court of Appeals for the Fifth Circuit decision on remand, Archer and White Sales Inc. v. Henry Schein Inc., 935 F.3d 274 (5th Cir. 2019) (available at ) (“Schein II”), then you know that the arbitration proponent, Henry Schein, Inc. (“Schein”), petitioned for rehearing en banc. (See here, here, here, and here.)
Well, unfortunately, the Fifth Circuit denied that petition on December 6, 2019. But apparently Schein was at least as disappointed with that ruling as we were, and so Schein filed on January 30, 2020 a petition for certiorari, asking the U.S. Supreme Court to review the Fifth Circuit’s Schein II ruling. A copy of the Petition is here.
We were delighted—not because we get to write still more articles and posts about Schein I and Schein II, but because, with all due respect to the Fifth Circuit, we think that Schein II was wrongly decided, and that consequently, Schein has been denied the benefit of the arbitration agreement and Delegation Agreement for which it freely bargained. And we hope that the U.S. Supreme Court grants Schein’s petition, reverses the Fifth Circuit decision, and directs the Fifth Circuit to compel arbitration of the parties’ arbitrability dispute as required by the parties’ Delegation Agreement.
On February 19, 2020, our friends at CPR Speaks, the blog of the International Institute for Conflict Prevention and Resolution (“CPR”), published a post we authored about this development, entitled Schein Returns: Scotus’s Arbitration Remand Is Now Back at the Court, which you can review here.
The post discusses the background of Schein I and Schein II, the events leading up to the petition for certiorari, some of the reasons why we believe Schein II was wrongly decided, and how we believe that it should be decided if SCOTUS grants the petition.
Many thanks to our good friend, Russ Bleemer—a New York attorney who is the editor of CPR’s Alternatives, an international ADR newsletter published by John Wiley & Sons, Inc., for his very helpful edits. And a shout-out also to CPR’s Tania Zamorsky, who, among other things, is the blog master of CPR Speaks.
About the Author
Philip J. Loree Jr. is a partner and founding member of Loree & Loree. He has nearly 30 years of experience handling matters arising under the Federal Arbitration Act and in representing a wide variety of clients in arbitration, litigation, and arbitration-related litigation. He is a former partner of the litigation departments of the New York City firms of Cadwalader, Wickersham & Taft LLP and Rosenman & Colin LLP (now known as Katten Munchin Rosenman LLP).
Loree & Loree represents private and government-owned-or-controlled business organizations, and persons acting in their individual or representative capacities, and often serves as co-counsel, local counsel or legal adviser to other domestic and international law firms requiring assistance or support.
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Disclaimer: The content of this blog is not intended to be legal advice and should not be construed as such. The views expressed in this blog are solely those of the author and do not necessarily reflect those of The Loree Law Firm or any of its current or former clients.
