SCOTUS Appears to be Leaning Towards Finding an Arbitration Clause to be Ineffective

On Wednesday October 3, 2018, the Supreme Court heard oral argument in New Prime v. Oliveira (Docket No. 17-340), a case previously summarized here.  The Court’s decision will answer two open questions:

1. Can parties to an arbitration agreement delegate the question of whether an arbitration agreement is exempt from the Federal Arbitration Act (FAA) to an arbitrator; and

2. Do independent contractors fall under the FAA’s exemption for “contracts of employment” of transportation workers?

Scotusblog’s analysis showed that many of the justices felt skittish about requiring parties to use an arbitrator to decide if an arbitration agreement is covered by the FAA.  Also, the justices seemed inclined to accept Oliveira’s counsel’s argument that the FAA’s “contracts of employment” exemption for transportation workers applies to independent contractors.  The Scotusblog analysis of the argument is posted here.