Old Republic Home Protection Company, Inc. v. William B. Sparks, et al.

In Epic Systems, Corporation v. Lewis, 138 S. Ct. 1612 (2018), this Court “rejected efforts to conjure conflicts between the [Federal] Arbitration Act and other federal statutes[,]” as it has done with “every such effort to date[.]” Id. at 1627 (emphasis in original). The state supreme court in this case conjures a conflict, this time purporting to preempt the FAA based on the Oklahoma Arbitration Act and (mis)application of the McCarran–Ferguson Act. Its opinion deepens a split in authority involving other state courts of last resort and federal courts of appeals analyzing these same issues, and it is at odds with this Court’s precedent. The two-part question presented is: Whether, in a case involving interstate commerce and a written contract with an arbitration provision that expressly requires application of the FAA, a state arbitration statute that by its terms “shall not apply to *** contracts which reference insurance” (a) qualifies as a “law enacted by [a] State for the purpose of regulating the business of insurance” under the McCarran–Ferguson Act, and (b) can support reverse preemption of the FAA based on an asserted impairment of such a state law. (i)