This week, the U.S. Supreme Court unanimously reversed an earlier Fifth Circuit Court of Appeals decision and held that courts may not decide a question of arbitrability when parties have contractually delegated that question to an arbitrator. Henry Schein, Inc. v. Archer & White Sales, Inc., No. 17-1272 (U.S. January 8, 2019).

While on its face it looks like the matter is settled, this decision left several open questions on remand.  In effect, the Court underlined that the arbitration clause should always control, but did not provide guidance on what that clause should look like.

Therefore, careful consideration should be given to developing arbitration provisions in contracts in order to protect your preferred options for dispute resolution. Whether you prefer to avoid arbitration wherever possible by striking such provisions or are seeking to make sure your arbitration clauses are ironclad or limited in scope, your choice of language will make all the difference to the ultimate resolution of the dispute.

To read a more detailed discussion of this ruling and its impact, click here.

Photo of Joan W. Feldman Joan W. Feldman

Joan W. Feldman is Chair of the Health Law Practice Group and a member of the firm’s Management Committee. She regularly advises her clients on corporate governance, corporate and business issues and combinations (e.g., mergers, acquisitions, affiliations, joint ventures and physician/hospital strategic alliances); state and federal regulatory issues, Medicare and Medicaid reimbursement, qui tam actions, fraud and abuse, corporate compliance (e.g., False Claims Act, Anti-kickback and Stark); data privacy and HIPAA, state and federal privacy matters; information technology and software licensing; medical staff governance and credentialing matters; medical ethics and end-of-life issues; and quality of care regulatory matters, developing quality improvement and assessment programs; clinical research matters; and state and federal licensure matters.


Photo of Stephanie Gomes-Ganhão Stephanie Gomes-Ganhão

Stephanie Gomes-Ganhão focuses her privacy practice on health care and insurance privacy matters, including counseling clients regarding compliance with HIPAA/HITECH, the federal regulations governing the confidentiality of substance use disorder patient records (42 C.F.R. Part 2), the Gramm-Leach-Bliley-Act (GLBA), the Telephone Consumer Protection Act (TCPA), and the Payment Card Industry Data Security Standard (PCI DSS).

Stephanie is also somewhat of a data breach response nerd and stays up to date on security breach trends. She regularly assists clients with establishing compliance programs for the early detection of data privacy concerns and guides clients through the data breach investigation and notification process when a breach has occurred. Stephanie’s complete biography can be found here.

Photo of Alexander Cox Alexander Cox

Alexander Cox is involved in a wide range of privacy issues, but focuses on cybersecurity issues and how to communicate opaque technical information and challenges with clients and regulators.  In order to help clients comply with the patchwork of privacy laws,  Alex combines his technical and legal knowledge to create user-friendly compliance tools that put privacy issues into practice.  In his downtime Alex is a computer enthusiast who enjoys tinkering with various operating system/hardware configurations, donating his computing resources to various distributed computing projects. Alex’s complete biography can be found here.