Wilmington Trust, N.A., et al. v. Marlow Henry, on Behalf of the BSC Ventures Holding, Inc. Employee Stock Ownership Plan

The question presented in this case is whether the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), prohibits individual arbitration of claims brought under that statute pursuant to a binding arbitration provision. The petition for a writ of certiorari in Argent Trust Co., et al. v. Robert Harrison, No. 23-30 (Docketed July 11, 2023), currently pending before the Court presents a similar question. This Court has never held that a federal statute is exempt from individual arbitration under the Federal A rbitration Act (“FA A”). Instead, the Court has consistently rejected all attempts to avoid individual arbitration of numerous federal statutes because there was no clear intention by Congress to override the FAA in those statutes and arbitration would not preclude the assertion of the federal statutory right under the judgemade “effective vindication” (or “prospective waiver”) exception. The Third Circuit, however, joined the Tenth and Seventh Circuits in concluding that ERISA is the first federal statute that can circumvent both the FAA’s clear mandate to enforce arbitration agreements as written and this Court’s clear instruction to harmonize statutes with the FAA. These decisions, if left in place, not only exempt ERISA claims from individual arbitration but also create a circuit split with the Ninth Circuit, which has compelled individual arbitration of ERISA claims. The Court should grant this petition to review and reverse the Third Circuit’s decision below, along with