CPR Panel Surveys a Season of Unanimous Supreme Court Arbitration Rulings, and Looks at the New Term
The CPR Institute's Arbitration Committee hosted a virtual U.S. Supreme Court 2025-2026 Arbitration Round-Up on Thursday, Sept. 24. The program walked through the arbitration cases the U.S. Supreme Court decided, and those it declined to take up, during its 2025-26 term. Today, the Court opened its 2026-2027 term.
Viva Dadwal, a New York-based senior associate at King & Spalding, moderated the hour-long program.
She was joined by Viren Mascarenhas, founding partner of Mascarenhas Law PLLC and chair of CPR's Arbitration Committee, and Prof. Angela Downes, a Dallas-based senior professor of practice at the University of North Texas at Dallas College of Law and a mediator and arbitrator with JAMS Inc. Downes also runs UNT Dallas's ADR program and teaches its mediation course, and is featured in Supreme Court arbitration jurisprudence discussions on the CPR YouTube Channel. Both Mascarenhas and Downes are members of the CPR Panel of Distinguished Neutrals managed by CPR Dispute Resolution Services.
The discussion ranged across two decided cases and roughly a half-dozen cert denials from the past year. A recurring theme: the Court consistently ruled unanimously, and consistently ruled narrowly. (Search on CPR Speaks for posts on three of at least four arbitration matters under consideration by the Court for the new term, none of which appeared on the Court's first order of the term this morning.)
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Jurisdiction to Confirm or Vacate:
Jules v. Andre Balazs Properties
Mascarenhas opened with a focus on Jules v. Andre Balazs Properties, 146 S. Ct. 1209 (2026), decided May 14, in a unanimous opinion written by Justice Sonia Sotomayor.
Adrian Jules had worked at the famous Hollywood hotel, Chateau Marmont, owned by the respondents until he was fired. He filed suit in federal court, and the respondents moved to compel arbitration. The district court agreed and stayed the case under Section 3 of the Federal Arbitration Act.
The arbitration did not go well for Jules. The arbitrator ruled for the employer and sanctioned Jules and his attorney about $34,000 for failing to participate in the proceeding he himself had triggered.
When Jules did not pay voluntarily, the employer went back to the same district court and moved to confirm the award under FAA Sections 9 and 10. Jules countered with his own motion to vacate, but he also argued the court had no jurisdiction to decide either motion, since neither side could show diversity jurisdiction or a live federal question at that point in the case.
The district court confirmed the award anyway, and the Second Circuit affirmed. (The opinion is available as an appendix to the petitioners' Supreme Court petition at https://bit.ly/4y7blBw.) The question for the Supreme Court was narrow but consequential: Does a federal court that already had jurisdiction to stay a case under FAA Section 3 keep that jurisdiction later, when a party comes back seeking confirmation or vacatur under Sections 9 and 10, even without an independent jurisdictional basis for that later motion?
The unanimous Court said yes. Viren Mascarenhas explained that the opinion leaned on Vaden v. Discover Bank, 556 U.S. 49 (2009), and specifically on FAA Section 4's "save for" clause, which asks whether a dispute could have been brought in federal court "save for" the arbitration agreement. If a court had jurisdiction to compel arbitration and stay the case in the first place, the Court reasoned, that same jurisdictional thread carries through to the later motions that close the case out.
Viva Dadwal highlighted a line from the opinion she found especially clean: the question, as she read it aloud, is not whether some new jurisdictional hook exists for the confirmation motion, but whether there is anything in the FAA that precludes the normal operation of federal jurisdiction over claims still alive in the same case. Angela Downes added that petitioner Jules had, in effect, availed himself of two forums and then tried to talk his way out of the one he started in, only after the arbitration went against him.
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The FAA Section 1 Exemption:
Flowers Foods v. Brock
Downes turned to Flowers Foods Inc. v. Brock, 146 S. Ct. 1358 (2026), decided May 28, also unanimously, in an opinion by Justice Neil Gorsuch.
Angelo Brock, a last-mile delivery driver, filed suit against Flowers Foods, alleging the company misclassified its distributors as independent contractors. Downes called that classification the detail to keep in mind throughout the case: it was the misclassification, she said, that drove the systematic underpayment Brock alleged, in violation of both the Fair Labor Standards Act and Colorado's wage and hour law.
Brock filed the case as a class action on behalf of similarly situated distributors. Rather than arbitrate individually, as his contract required, he invoked the FAA's Section 1 exemption for workers "engaged in interstate commerce."
Flowers Foods argued that a driver who never leaves his home state, and never personally handles a vehicle that crosses state lines, cannot be engaged in interstate commerce. The Court rejected that theory outright.
Downes called it a landmark result: a worker who handles only the intrastate leg of an interstate shipment can still qualify for the Section 1 exemption, without ever crossing a state line himself or touching a vehicle that does. She traced the ruling back through Southwest Airlines Co. v. Saxon, 596 U.S. 450 (2022), and Bissonnette v. LePage Bakeries Park St. LLC, 601 U.S. 246 (2024), describing Flowers Foods as another entry in a line of cases steadily narrowing employers' access to mandatory arbitration for transportation-adjacent workers. The effects, she said, will ripple well beyond one bakery's delivery fleet and into the broader gig and logistics economy.
Dadwal read what she said was her favorite line from the opinion: the Court's holding that Section 1 does not turn into a game of tag, whether played with state lines or with the vehicles that cross them. A worker can qualify for the exemption, the Court wrote, without satisfying either of the criteria Flowers Foods proposed.
Mascarenhas added a note on method. He credited the unanimity in part to Justice Gorsuch's characteristically originalist approach, working through period dictionary definitions of "engaged" and "interstate commerce" against the backdrop of the U.S. Constitution’s Commerce Clause, an approach that appears to have satisfied justices across the Court's ideological range.
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Severability and a Warning to Drafters:
Mungo Homes and Live Nation
Not every arbitration dispute made it onto the Court's merits docket in the last term. The panel spent the rest of the seminar hour on cases the Court declined to hear, starting with two on severability.
In the underlying dispute in Huskins v. Mungo Homes, LLC, the South Carolina Supreme Court struck down an entire arbitration agreement, not merely the offending clause, after finding that a 90-day limitations period buried in the arbitration provision violated South Carolina public policy against shortening a statutory limitations period.
Mascarenhas noted the state court's decision sat in some tension with the U.S. Supreme Court's own severability doctrine from Buckeye Check Cashing Inc. v. Cardegna, 546 U.S. 440 (2006). Mungo Homes petitioned for certiorari, framing the question as whether South Carolina's approach to severability is hostile to arbitration and preempted by the FAA. The Court denied cert at the beginning of last term, on Oct. 6, 2025.
The practical takeaway, in Mascarenhas's view, is a drafting lesson. The agreement at issue had no severability clause. A clause spelling out that the parties intended the rest of the agreement to survive even if one term failed, he said, could plausibly have changed the outcome.
Downes then took up Live Nation Entertainment Inc. v. Heckman, which centered on the enforceability of mass arbitration provisions, and specifically on whether such provisions can still preserve a party's right to arbitrate individually.
Live Nation, the world's largest concert promoter, merged with the ticketing company Ticketmaster in 2010. The plaintiffs had purchased tickets through the Ticketmaster subsidiary under terms that included an arbitration clause. After facing a wave of individual arbitration claims from consumers, Live Nation switched ADR administrators to a Chicago-based provider, New Era ADR, and adopted new mass arbitration rules, including a bellwether procedure (a process in which a small number of representative claims are arbitrated first, with the results applied to guide or bind the rest) that bound all claimants regardless of participation.
The Ninth U.S. Circuit Court of Appeals held that Live Nation's mass arbitration program was both procedurally and substantively unconscionable under California law. Heckman v. Live Nation Entertainment, 120 F.4th 170 (available at https://bit.ly/48tIewN). It declined to sever the offending provisions and found that FAA preemption did not override the state law doctrine.
At the Supreme Court, Live Nation argued that the Ninth Circuit's conception of arbitration rested on an unhistorical, narrower notion of "bilateral arbitration" that improperly excluded class procedures and bellwether structures like New Era ADR's. The Court denied certiorari on Oct. 6, 2025, leaving the Ninth Circuit's ruling intact.
Downes framed the case as a warning shot to companies designing mass arbitration programs. The ruling below found that Live Nation's rules stripped consumers of basic due process, concentrated too much power in a corporate-selected platform, and undercut the fairness the FAA is meant to preserve even in a mass context. Live Nation has since revised its consumer terms, switched back to JAMS from New Era ADR for its consumer arbitration program, but Downes noted the broader fallout is still unfolding, including renewed attention to state-law bans on class action waivers and openings for wider antitrust litigation against ticketing practices.
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Delegation to the Arbitrator:
Jump Trading and Feldman
Mascarenhas discussed two additional cert denials from the 2025-2026 Court term, both touching on delegation—that is, which decisionmaker gets to decide who decides, an arbitrator or a court.
In Jump Trading LLC v. Patterson, also denied a SCOTUS hearing Oct. 6, 2025, the underlying dispute traced back to the 2022 collapse of TerraUSD, a so-called "algorithmic" stablecoin that was designed to hold a steady $1 value through code and trading incentives rather than by holding cash reserves, and its sister token, Luna.
When TerraUSD lost its dollar peg in May 2022, tens of billions of dollars in value evaporated within days, and Luna's price collapsed to near zero. The plaintiff filed suit against Jump Trading, a proprietary trading firm and nonsignatory to the arbitration agreement between the plaintiff and the platform that hosted the stablecoin, alleging securities fraud.
The Ninth Circuit kept the case in court, finding no clear and unmistakable evidence that the underlying arbitration agreement delegated to the arbitrator the threshold question of whether a nonsignatory could compel arbitration in the first place. (The Ninth Circuits rulings are including as appendix to the petitioner's cert petition brief, here.)
Jump argued that once an agreement delegates arbitrability questions generally to the arbitrator, under the Court's precedent in Henry Schein Inc. v. Archer & White Sales Inc., 586 U.S. 63 (2019), that delegation should extend to the nonsignatory question too. Mascarenhas noted the petitioner devoted substantial briefing to a claimed circuit split on the issue. The Court was not persuaded enough to grant review.
Feldman v. Sullivan, denied Jan. 12, 2026, presented a related but distinct delegation question: whether an arbitrator, rather than a court, decides if a set of contracts authorizes class-wide arbitration.
The dispute involved a group of Louisiana doctors and related business entities that had contracted with the petitioners for administrative and insurance-related services. Their agreements incorporated the American Arbitration Association’s commercial arbitration rules. When an arbitrator certified a class of claimants under the AAA's supplementary class arbitration rules, the petitioners challenged whether the arbitrator had the authority to make that call at all.
Both the district court and the Fifth Circuit held that incorporating the AAA's commercial rules was itself clear and unmistakable evidence that the parties had delegated the class arbitrability question to the arbitrator. Mascarenhas flagged an unusual wrinkle: the Fifth Circuit's own opinion described itself as "reluctantly bound" to that conclusion under the Supreme Court's decision in Lamps Plus Inc. v. Varela, 587 U.S. 175 (2019), and seemed, in Mascarenhas's words, to be inviting Supreme Court review. But the Court declined the invitation.
Mascarenhas placed the case against a broader backdrop, particularly in California, of parties challenging class arbitration waivers as unconscionable on the theory that individual arbitration costs can dwarf the amount at stake in any one claim. The Supreme Court's own precedent nevertheless has treated a bare choice of institutional rules, such as the AAA's, as sufficient evidence of intent to delegate the class arbitrability question.
Dadwal added the broader lesson for institutions: incorporating a provider's standard rules by reference can resolve high-stakes procedural questions well before any dispute reaches an arbitrator, whether or not the parties turned their minds to it at signing.
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Tribal Sovereignty and Arbitration:
Flintco v. Choctaw Nation
Downes closed with two cases, starting with Flintco LLC v. Choctaw Nation of Oklahoma, a cert petition the Court denied Feb. 23, 2026.
The Choctaw Nation of Oklahoma, one of the largest tribal nations in the country, contracted with Flintco on a construction project tied to the tribe's gaming industry. The tribal nation later filed suit against Flintco for fraud, alleging the company knowingly concealed severe life-safety code violations during construction, including missing firewalls and fire stops.
Flintco moved to compel arbitration under the parties' contract. The Oklahoma district court denied the motion, and Flintco appealed.
Downes framed the core question as whether a broad commercial arbitration clause can compel a tribal nation to arbitrate allegations of severe, intentional fraud and public safety hazards rather than pursue accountability in open court. She noted the case's significance for tribal sovereignty specifically: the Choctaw Nation had to set aside its own sovereign immunity even to be heard on the question at all.
With cert denied, the lower court's refusal to compel arbitration stands, though Downes suggested the underlying tension between broad arbitration clauses and fraud claims involving tribal counterparties is likely to resurface.
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Commissioner as Arbitrator:
New York Football Giants v. Flores
Downes then turned to New York Football Giants, Inc. v. Flores, another cert denial, this one on May 26, in a high profile case involving the National Football League.
Brian Flores, now the Minnesota Vikings defensive coach, filed suit against the NFL and several teams, including the Giants, alleging racial discrimination in hiring. The Second Circuit affirmed denial of the league's motion to compel arbitration, and the case turned on an unusual feature of the NFL's employment arbitration system: its constitution designates the league commissioner as the default arbitrator, with the power to set his own procedures.
The question for the Supreme Court was whether an arbitration agreement in a professional sports league is categorically unenforceable under the FAA because it names the commissioner as arbitrator. Downes noted the ruling also puts a spotlight on the NFL's Rooney Rule, a league policy requiring teams to interview at least one minority candidate for head coaching and senior football operations openings, since Flores's claims include an allegation that a Giants interview for a head coaching position was a sham, because the new coaching candidate had already been decided before his interview. The Court denied cert, and the case is proceeding in federal court in New York’s Southern District.
Dadwal closed the case with what she said was her favorite line from the Second Circuit's opinion below, on the question of what counts as arbitration in the first place: the only form of alternative dispute resolution the FAA protects is arbitration, and as the panel put it, "neither a duel, nor a coin flip, nor a game of ping pong is an arbitration, even if it is labeled as one."
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A Broader Pattern:
Sovereign Immunity and Investment Arbitration
With the discussion running short on time, Mascarenhas summarized what he called a discernible trend: the Supreme Court, at least for now, seems to be growing weary of disputes over enforcing arbitral awards against sovereigns, whether those awards arise from ordinary commercial arbitrations or from investment treaties involving state-owned entities.
He pointed to the Court's back-to-back cert denials in Kingdom of Spain v. Blasket Renewable Investments LLC and Russian Federation v. Stabil LLC, both denied June 29. Those denials leave in place D.C. Circuit precedent, including Stileks v. Republic of Moldova, treating the scope of an arbitration agreement as a merits question rather than a jurisdictional one under the Foreign Sovereign Immunities Act, or FSIA. Practically, that makes it considerably harder for a foreign sovereign to defeat enforcement at the courthouse door.
Mascarenhas also flagged a related but distinct wrinkle from Amaplat Mauritius Ltd. v. Zimbabwe Mining Development Corp., a District of Columbia U.S. Circuit Court of Appeals decision issued July 15, 2025, with a cert petition denied April 27. There, mining investors had won a $47 million arbitral award, seated in Zambia, against Zimbabwean state entities, then let the FAA's three-year window to confirm a foreign award lapse. They instead confirmed the award in Zambian courts and came to Washington seeking recognition of that foreign judgment under the District of Columbia's judgment-recognition statute, which carries a considerably longer 15-year limitations period.
The D.C. Circuit held that neither of the FSIA's usual waiver exceptions, the arbitration exception under Section 1605A(6) or the implied-waiver exception under Section 1605A(1), reaches an action to recognize a foreign judgment rather than to confirm an arbitral award directly, even where the judgment simply confirms that same award. Mascarenhas noted the decision drew criticism from practitioners in the field, since it forecloses what had looked like a workable route for award creditors to sidestep the FAA's unusually short three-year clock on confirming a foreign arbitration award in a U.S. court under 9 U.S.C. § 207.
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Takeaways
Taken together, the panel's tour through the term left a consistent picture of a cautious, incrementalist Court. In both cases it decided on the merits, Jules and Flowers Foods, the Court ruled unanimously and narrowly, resolving the specific question presented without disturbing the broader architecture of arbitration law.
And in the roughly half-dozen cases it declined to hear, the common thread was deference: to state courts on severability and unconscionability, to the parties' own choice of institutional rules on delegation, and to sovereigns' immunity defenses in the enforcement context, at least until a cleaner vehicle comes along.
For advocates, the panelists suggested the practical lessons are less about predicting the next headline-grabbing decision and more about the drafting table: include a severability clause, think carefully about which institution's rules get incorporated by reference, and do not assume that naming an arbitrator, even a well-established one, guarantees an enforceable clause.
As Viren Mascarenhas put it in response to an audience question, sophisticated parties who spell out their intentions clearly still tend to get the benefit of the bargain they drafted, even as courts continue to work out where the FAA's a hundred-plus-year-old text runs up against newer questions of stablecoins, mass arbitration, and sovereign immunity.
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Except for Jump Trading LLC, Flintco LLC and Russian Federation—the official U.S. Supreme Court dockets of those cases are linked above—every matter discussed here has been the subject of extensive news reports on this CPR Speaks blog. (Legacy cases before February 2023 can be found covered on a predecessor CPR Institute blog at https://blog.cpradr.org.) Cases that the Court has heard have been previewed on CPR Speaks with highlights from amicus arguments as well as coverage of live arguments and reaction to decisions. Use the search function to locate the posts, which contain links to primary sources and precedents.
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The author, a third-year law student at the Northeastern University School of Law in Boston, is a CPR Institute fall intern.
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