UPDATED: Scotus’s New Term Won’t Include New Arbitration Cases. But Wait.
The U.S. Supreme Court’s so-called long conference list of cert denials—catching up today with cases filed over the summer--included two of the three big arbitration cases before it.
The cases, previewed over the past two weeks here on CPR Speaks, covered hot topic arbitration matters, including what would have been the first case at the nation’s top Court on modern mass arbitration in the new 2025-2026 term, beginning today.
In that case, Live Nation v. Heckman, No. 24-1145, the Ninth U.S. Circuit Court of Appeals decision striking down the promoter/ticketing company’s consumer arbitration program on collecting now stands.
The Ninth Circuit held Live Nation’s mass arbitration program for customers of its Ticketmaster unit, implemented under the rules of Chicago-based web provider New Era ADR, to be procedurally and substantively unconscionable.
That decision now means that the Federal Arbitration Act does not preempt California’s prohibition, under Discover Bank v. Superior Court, 113 P.3d 1110 (Cal. 2005), of class action waivers contained in contracts of adhesion in large-scale/small-stakes consumer cases.
The ticketholders in the case will be able to proceed in litigation, or seek arbitration under individual terms.
For details see CPR Speaks’ preview, Bryan Ward, “A Review: The Scotus Papers in Live Nation v. Heckman, CPR Speaks (Updated 9/19) (Sept. 17) (available here).
The Court also rejected hearing a South Carolina Supreme Court case that will allow a state law prohibiting limits on filing arbitration claims to stand that held that as a public policy matter, the law doesn’t conflict with or violate the Federal Arbitration Act. For details, see Bryan Ward, “A Review: Scotus Weighs Taking a South Carolina Supreme Court Decision on Severability & Arbitration,” CPR Speaks (Sept. 24) (available at https://bit.ly/3WeTRCB).
One of the cases previewed on CPR Speaks went unmentioned in this morning’s Supreme Court order (which can be found here). Flowers Foods Inc. v. Brock, No. 24-935, a potential second Supreme Court arbitration case visit in two terms for the maker of Wonder Bread, will be held over for further consideration at a future conference, presumably, later this month. Details on the case can be found at Sasha Hill, "A Review: Supreme Court Considers Another FAA Sec. 1 Arbitration Exemption,” CPR Speaks (Sept. 22) (available at https://bit.ly/4gGvh7h). [UPDATE: Soon after the order list was posted, the Court revised the Flowers Foods docket page to note that it is scheduled for discussion at the conference this Friday, Oct. 10.]
Finally, the Court took action this morning in a case from last term--June’s CC/Devas (Mauritius) Ltd. v. Antrix Corp. Ltd., No. 23–1201 (June 5, 2025) (available at https://bit.ly/3ZmNfUM), which held that the Foreign Sovereign Immunities Act does not contain a statutory requirement that a foreign state or its agencies have minimum contacts with the United States.
The case involved enforcing a foreign arbitral award. Full details are available at Elliot Friedman, David Livshiz, Thomas Walsh, Christian Vandergeest & Amanda Huang, “SCOTUS: Foreign Sovereign Immunities Act Does Not Contain a Statutory Minimum Contacts Requirement,” CPR Speaks (June 9) (available here).
Today, the Court declined to revisit the case. It denied losing party Antrix’s motion to modify the decision. The company, the state-owned commercial arm of India’s space agency, claimed that it was immune from a suit to enforce a foreign arbitral award because it has no dispute-related contacts with the United States.
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The author edits Alternatives to the High Cost of Litigation for the CPR Institute.
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