By George H. Friedman, SAA Publisher & Editor-in-Chief
Just a month out from oral argument, Servotronics has notified the Court that it is dismissing its Certiorari Petition. That leaves Badgerow v. Walters, No. 20-1143, which has been set for oral argument on November 2, as the only arbitration-centric case on the Court’s hearing docket.
One of the late Gilda Radner’s many characters was Emily Litella, who would give misguided editorial replies that were inevitably based on her misunderstanding of the facts. When the error was pointed out, she would exclaim, “Oh, that’s very different. Never mind!” Channeling Ms. Litella, with oral argument having been set for October 5, counsel for Servotronics has walked back its Petition for Certiorari in Servotronics, Inc. v. Rolls-Royce PLC and the Boeing Company, No. 20-794.
A Succinct Review
As reported in SAA 2021-11 (Mar. 25), the Court on March 22 agreed to resolve a major Circuit Court split on whether 28 U.S.C. § 1782 provides for discovery in aid of private, foreign, commercial arbitration or only covers cases administered by governmental arbitration forums (see Servotronics’ December 2020 Petition and page 1 of the Order List). We reported in SAA 2021-27 (Jul. 22) that: 1) the oral argument calendar for October shows that the case was set for Tuesday, October 5; and 2) on June 28, the Government filed an unopposed Motion for leave to participate in oral argument and for divided argument. The request was granted August 2 and on August 23, the Court issued an Order allocating the time for argument.
A Bolt from the Blue
Servotronics’ counsel on September 8 filed a letter with the Court, stating: “I am writing to report that Servotronics anticipates filing a dismissal motion pursuant to Rule 46 of the Rules of the Court within the next few days.” No reason is given, but we note that the underlying arbitration in London was concluded recently. The SCOTUS docket has two September 8 entries: “Letter of petitioner notifying the Clerk of intention to file a Rule 46 motion to dismiss filed. (Distributed); REMOVED from the October 2021 ARGUMENT CALENDAR.” Or, as Ms. Litella would say, “Never mind!”
What it Means: the Split Remains
The bottom line for now is that the split in the Circuits remains. To review, we covered in SAA 2020-13 (Apr. 8) Servotronics, Inc. v. The Boeing Co. and Rolls-Royce PLC, 954 F.3d 209 (4th Cir. Mar. 30, 2020), where, in a case involving a private commercial arbitration being held in England under Chartered Institute of Arbitrators Rules, the Court upheld a District Court decision ordering discovery from three Boeing employees residing in South Carolina. The more recent entry in the “no” camp was the Seventh Circuit, which in Servotronics, Inc. v. Rolls-Royce PLC, No. 19-1847, 2020 WL 5640466 (Sept. 22, 2020) – a dispute arising out of the same arbitration – held that section 1782 does not extend to private international commercial arbitration. As described in SAA 2020-37 (Oct. 7), the District Court had barred Servotronics from obtaining discovery documents located in Illinois for use in the same private arbitration pending in London, and the Seventh Circuit (ed: then-Judge Amy Coney Barrett was not on the Panel deciding the case) affirmed unanimously. Among the Court’s rationales was a perceived conflict between section 1782 and the Federal Arbitration Act: “The discovery assistance authorized by § 1782(a) is notably broader than that authorized by the FAA…. If § 1782(a) were construed to permit federal courts to provide discovery assistance in private foreign arbitrations, then litigants in foreign arbitrations would have access to much more expansive discovery than litigants in domestic arbitrations. It’s hard to conjure a rationale for giving parties to private foreign arbitrations such broad access to federal-court discovery assistance in the United States while precluding such discovery assistance for litigants in domestic arbitrations. In sum, what the text and context of § 1782(a) strongly suggest is confirmed by the principle of avoiding a collision with another statute: a ‘foreign or international tribunal’ within the meaning of § 1782(a) is a state-sponsored, public, or quasi-governmental tribunal.”
We’ll Always Have Badgerow
The only arbitration-centric case remaining on the Court’s docket is Badgerow v. Walters, No. 20-1143. As reported in SAA 2021-19 (May 2), the Supreme Court on May 17 agreed to review (see p. 2 of the Order List) Badgerow v. Walters, 975 F.3d 469 (5th Cir. 2020), a case we analyzed in SAA 2020-36 (Sep. 23). In the underlying case, the Fifth Circuit held that the District Court was correct when it applied the “look-through” standard to determine that it could remove a state court action to vacate an Award. The issue identified for review in the granted Petition for Certiorari: “Whether federal courts have subject-matter jurisdiction to confirm or vacate an arbitration award under Sections 9 and 10 of the FAA where the only basis for jurisdiction is that the underlying dispute involved a federal question.” The November 2021 calendar shows that the case is set for oral argument on November 2.
(ed: *We’re really curious as to why Servotronics was suddenly withdrawn. Mootness may be the cause, given this summer’s conclusion of the underlying arbitration. Meanwhile, the split remains. **The September 8 CPR blog has an excellent analysis of the dismissal. ***Speaking of oral arguments, the Court on September 8 announced that arguments scheduled for October, November, and December will be in-person. However: “Courtroom access will be limited to the Justices, essential Court personnel, counsel in the scheduled cases, and journalists with full-time press credentials issued by the Supreme Court. Out of concern for the health and safety of the public and Supreme Court employees, the Courtroom sessions will not be open to the public.” There will be live audio feeds. ****We’ll keep our eye on Badgerow.)