On January 27, 2023, WLF urged the Supreme Court to reverse a Ninth Circuit decision that forces a company to proceed with costly and burdensome litigation while its arbitrability appeal is pending. As WLF explains in its amicus brief, the intolerable risk of bearing that burden upends the core policies animating the Federal Arbitration Act (FAA). Under the FAA, when a district court refuses to compel arbitration as the parties agreed, Section 16 allows an immediate appeal as of right from that decision. In its amicus brief urging reversal, WLF argues that Section 16 makes sense only if an interlocutory appeal from the trial court’s refusal to compel arbitration automatically stays litigation in the district court. Congress never would have granted defendants the right to an immediate appeal if it had contemplated that litigation would continue apace while the appeal was pending. On the contrary, Congress crafted Section 16 against the background principle that an appeal divests a district court of jurisdiction over the case being appealed. And Congress recognized that the main virtues of arbitration—avoiding the cost and burden of litigation—would be lost if the case proceeds simultaneously in litigation and appeal only to be ultimately decided in arbitration.
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