WASHINGTON, D.C. (November 12, 2008) — On November 7, 2008, the Supreme Court of the United States granted certiorari on behalf of Firm client Arthur Andersen in Arthur Andersen, LLP v. Carlisle, No. 08-146. an important case involving the Federal Arbitration Act (FAA). The specific issue is whether the FAA can be used to stay claims against non-signatories to the relevant arbitration agreement. The case will be argued in March 2009.
With this most recent grant of certiorari by the Supreme Court on behalf of a Firm client, McDermott has or will have appeared in one or more cases decided on the merits in eight of the nine most recent Supreme Court terms, including the current term.
In Arthur Andersen v. Carlisle, the Sixth Circuit held that the FAA does not apply as a matter of law to claims involving non-signatories to the arbitration agreement, even if the non-signatories have rights under the arbitration agreement under principles of contract law. Based on that conclusion, the Sixth Circuit held that it lacked appellate jurisdiction over Arthur Andersen's, a non-signatory, appeal of the district court's denial of its motion to stay pending arbitration, and never reached whether Arthur Andersen was entitled to enforce the arbitration agreement. The Second Circuit and several other circuits have reached the contrary conclusion regarding the applicability of the FAA to claims involving non-signatories. Three circuits have unresolved intra-circuit conflicts on this issue. McDermott's petition for certiorari demonstrated the "chaos" in the federal courts of appeals on this important and recurring question of federal arbitration law.
McDermott's team on the petition stage briefing in the case included partners Jeffrey Stone, M. Miller Baker, Douglas E. Whitney, Paul M. Thompson and Jocelyn D. Francoeur, and associate Jeffrey W. Mikoni. Assistance was also provided by associates Joshua D. Rogaczewski and Rahul Rao.
McDermott's nationally recognized Appellate Practice Group, headed by M. Miller Baker and Rory K. Little, consists of highly experienced lawyers in our U.S. offices who have successfully handled hundreds of appeals. Our group includes more than 20 partners who have successfully argued appeals in the U.S. Supreme Court, the 13 regional circuits of the U.S. courts of appeals and numerous state appellate courts. Members of this group have served as judicial law clerks at the Supreme Court of the United States, the U.S. courts of appeals and U.S. district courts. In addition to representing our own clients in their appeals, lawyers in our group have also been retained to file friend of court briefs in cases of national importance in the Supreme Court of the United States and various other appellate courts.
In 2008, The National Law Journal included our Appellate Practice Group on its "Appellate Hot List" of firms demonstrating "unqualified excellence" in appellate litigation. In addition, Chambers USA - 2008 nationally rated our appellate practice, indicating that our team "demonstrates 'impressive advocacy and full technical understanding' in numerous appeal cases."