ALF Amicus Brief Supports Primacy & Benefits of Arbitration Over Litigation

The Atlantic Legal Foundation (ALF) long has supported a contracting party’s right, as protected by the Federal Arbitration Act (“FAA”), 9 U.S.C. § 2, to enter into a binding, judicially enforceable arbitration agreement. Arbitration is an efficient, speedier, less expensive, and often confidential alternative to litigating disputes between corporations, between companies and individual consumers, and between employers and individual employees.

When a federal district court denies a defendant’s motion to compel arbitration, the FAA authorizes an interlocutory (i.e., immediate) appeal on the question of whether the parties’ dispute is subject to a valid and binding arbitration agreement. See 9 U.S.C. § 16(a). Federal courts of appeals have been divided, however, as to whether district court proceedings must be stayed while such an “arbitrability” appeal is being pursued. Some circuits have held that  discovery, class certification, and other trial-court proceedings must be stayed because a district court loses jurisdiction over the case while an appeal is pending. Other circuits have held that a stay is discretionary, but not mandatory.

The Supreme Court has granted certiorari in Coinbase, Inc. v. Bielski, No. 22-105, to address the issue of whether district court proceedings must be stayed while an interlocutory appeal of a denial of a motion to compel arbitration is being pursued.

ALF has submitted an amicus brief urging the Court to hold that a stay pending appeal is mandatory. The brief was authored by Felix Shafir, John Querio, and Scott Dixler of Horvitz & Levy LLP and ALF Executive Vice President & General Counsel Larry Ebner.

Issue Areas:

Civil Justice

Read the Amicus Brief:
Question(s) Presented:

Does a non-frivolous appeal of the denial of a motion to compel arbitration oust a district court’s jurisdiction to proceed with litigation pending appeal, as the Third, Fourth, Seventh, Tenth, Eleventh and D.C. Circuits have held, or does the district court retain discretion to proceed with litigation while the appeal is pending, as the Second, Fifth, and Ninth Circuits have held?

ALF’s Amicus Brief:

ALF’s amicus brief describes arbitration’s many benefits over traditional litigation. In addition to greater speed and lower costs, these benefits include, for example, the parties’ ability to choose expert adjudicators to resolve specialized disputes; to streamline discovery and other procedures; to maintain confidentiality, particularly regarding the arbitration award; and to avoid appeals except in rare cases of party or arbitrator misconduct. Avoiding excessively burdensome discovery and other litigation costs is particularly important in putative class actions, where they may compel a defendant to settle even frivolous claims.

The amicus brief explains, however, that “[a] defendant forced to litigate in the district court while an appeal from an order denying its motion to compel arbitration is pending suffers the very harm it contracted to avoid—litigation in court, with its attendant expenses and inefficiencies.”  As a result, “[o]nly a rule mandating that district court litigation is stayed pending a party’s appeal from an order denying a motion to compel arbitration honors the parties’ contractual bargain by preserving the benefits of arbitration.”


The Supreme Court issued a favorable opinion on June 23, 2023.


ALF Executive Vice President & General Counsel Lawrence Ebner

Date Originally Posted: January 27, 2023

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