Archer and White Sales, Inc. v. Henry Schein, Inc.

Cross-respondent wishes to present a question about delegation, but the arbitration agreement at issue here does not mention delegation at all. The only language that cross-respondent believes even indirectly creates delegation expressly carves out certain disputes, including “actions seeking injunctive relief,” which this case does. And even ignoring those initial defects, cross-respondent is not a signatory to any agreement with respondent, much less an arbitration agreement; the only signatory to the arbitration agreement that cross-respondent (as a nonsignatory) seeks to enforce settled during briefing on petition’s stay application, and is no longer a party to this case. The question presented in the original petition therefore is: Whether an arbitration agreement that makes no mention of delegation “clearly and unmistakably” delegates arbitrability with respect to actions that the agreement expressly carves out from both arbitration and any arguable delegation. While that question is unworthy of review, the Court should also decide the following two predicate questions if it decides to take up this case at all:

1. Whether an arbitration agreement that identifies a set of arbitration rules to apply if there is arbitration clearly and unmistakably delegates to the arbitrator disputes about whether the parties agreed to arbitrate in the first place.

2. Whether an arbitrator or a court decides whether a nonsignatory to an arbitration agreement can enforce the arbitration agreement through equitable estoppel. (I)