Bernstein, Shur, Sawyer & Nelson, P.A., et al. v. Susan R. Snow

The Federal Arbitration Act (“FAA”) provides that arbitration agreements “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. That provision forbids States from “adopt[ing] a legal rule hinging on the primary characteristic of an arbitration agreement—namely, a waiver of the right to go to court and receive a jury trial.” Kindred Nursing Ctrs. Ltd. P’ship v. Clark, 137 S. Ct. 1421, 1427 (2017). The Maine Supreme Judicial Court here refused to enforce an arbitration provision contained in an attorney-client retention agreement because the attorney did not obtain the client’s “informed consent.” Pet. App. 12a – 13a. The Court stated that its “heightened standard” of informed consent was “required” because an arbitration agreement “waive[s] a fundamental right”: “Maine’s ‘broad constitutional guarantee of a right to a jury’ trial in civil matters.” Pet. App. 12a. The question presented is: Whether the FAA preempts a state-law rule applying a heightened standard to attorney-client arbitration agreements because they waive the right to a jury trial.