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Applied Underwriters Captive Risk Assurance Company, Inc. v. Citizens of Humanity, LLC, et al.

Paid petition · Supreme Court of Nebraska, No. S-17-178 · judgment April 6, 2018


Certiorari denied · October 1, 2018
Pre-decision estimate: 5% cert probability

Before the decision, modestly above the 4.1% base rate. The model weighted this up for a circuit split argued in the petition, a business petitioner, and counsel who has filed here before, and down for a business respondent.

Question presented

“Congress adopted the [Federal] Arbitration Act in 1925” because “courts were unduly hostile to arbitration.” Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1621 (2018). Over 75 years later, “judicial antagonism toward arbitration” continues to “manifest[ ] itself in a great variety of devices and formulas.” Id. at 1623 (internal quotation marks omitted). In Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52 (1995), to prevent choice-of-law clauses from transforming into an anti-arbitration “device,” the Court held that, where a contract contains both a general choice-of-law clause and an arbitration provision, the choice-of-law clause “encompass[es] substantive principles that [the chosen state’s] courts would apply, but not . . . special rules limiting the authority of arbitrators.” Id. at 64. And in Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63 (2010), to avoid judicial hostility toward the delegation of questions of arbitrability to arbitrators, the Court held that the FAA requires a litigant to mount a challenge that is “specific to [an arbitration agreement’s] delegation provision” in order to avoid the enforcement of that provision. Id. at 74. The Court below contravened both of these mandates. The questions presented are: 1. Whether a general choice-of-law clause in a contract that contains an arbitration agreement should be read, consistent with the Federal Arbitration Act and this Court’s decisions, to import state substantive law without importing state rules impairing

Counsel of record

For petitioner
Clifford M. Sloan
Georgetown University Law Center

For respondent
Warren David Postman
Keller Postman LLC

Case

Subject area
Economic Activity (estimated from the questions presented, in the Supreme Court Database’s categories)

Conference history
Distributed for 1 conference

Linked docket
17A1378

Order
Order list, October 1, 2018 · Certiorari denied

Proceedings

  1. Oct 01 2018
    Petition DENIED.
  2. Sep 05 2018
    DISTRIBUTED for Conference of 9/24/2018.
  3. Sep 04 2018
    Reply of petitioner Applied Underwriters Captive Risk Assurance Company, Inc. filed.
  4. Aug 21 2018
    Brief of respondents Citizens of Humanity, et al. in opposition filed.
  5. Aug 06 2018
    Petition for a writ of certiorari filed. (Response due September 7, 2018)
  6. Jun 18 2018
    Application (17A1378) granted by Justice Gorsuch extending the time to file until August 4, 2018.
  7. Jun 15 2018
    Application (17A1378) to extend the time to file a petition for a writ of certiorari from July 5, 2018 to August 19, 2018, submitted to Justice Gorsuch.