Aviagames, Inc. v. Andrew Pandolfi, et al.

The Federal Arbitration Act (“FAA”) requires courts to “place arbitration agreements on an equal footing with other contracts” and to “enforce them according to their terms.” AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011). This “equal-treatment rule” prohibits contractual “defenses that apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue.” Epic Sys. Corp. v. Lewis, 584 U.S. 497, 507 (2018). The rule also prohibits defenses that “have a disproportionate impact on arbitration agreements,” even if they “presumably” apply in other limited circumstances. Concepcion, 563 U.S. at 342. The questions presented are:

1. Whether the FAA’s equal-treatment requirement is violated by a rule deeming arbitration agreements procedurally unconscionable when they incorporate the American Arbitration Association’s rules because those rules are “subject to change”— even though changeable procedural rules are routinely enforced in courts and non-arbitration contracts.

2. Whether California’s arbitration-specific severability doctrine—under which the Ninth Circuit refused to enforce the severance provision in the parties’ arbitration agreement—violates the FAA’s equal-treatment rule.