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.

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Photo of Joan W. Feldman Joan W. Feldman

Chair of Shipman’s Health Law Practice Group, Joan W. Feldman delivers strategy, perspective, experience, and business acumen to the firm’s healthcare clients. Joan couples her healthcare experience, insight and legal prowess to serve as outside counsel or general counsel to hospitals, health systems…

Chair of Shipman’s Health Law Practice Group, Joan W. Feldman delivers strategy, perspective, experience, and business acumen to the firm’s healthcare clients. Joan couples her healthcare experience, insight and legal prowess to serve as outside counsel or general counsel to hospitals, health systems, academic medical centers; specialty hospitals, home health agencies, hospice, behavioral health, and substance use disorder providers; DME providers; clinical laboratories; and life sciences companies.

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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.

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