Prof. Tamar Meshel submits amicus brief to US Supreme Court

Associate Professor Tamar Meshel of the University of Alberta Faculty of Law submitted an amicus brief to the United States Supreme Court last month in the case of HomeServices of America, Inc., et al. v. Scott Burnett, et al.

An amicus brief — also called amicus curiae — is a document that provides expertise and insight regarding an aspect of a court case that might be useful in the proceedings. The expert who submits an amicus brief must not be a party to the case.

Meshel filed her brief in support of the petitioners, HomeServices of America, Inc., who are seeking leave to appeal an Eighth Circuit decision from August 2023. The decision denied HomeServices’ attempt to have members of a class action lawsuit against the company, which accused brokerages of artificially inflating commissions for home sales, arbitrate their antitrust claims. 

The specific aspect of the Eighth Circuit’s decision that the Supreme Court is asked to review concerns who should make the decision not to refer the dispute to arbitration. The company’s petition argues that this decision should have been made by an arbitrator, based on a contract the class members had signed with one of its subsidiaries, rather than by the court. 

“The critical federal-law question here is who decides whether the nonsignatory is a party to the arbitration agreement—the court or the arbitrator?” Meshel writes in her brief. “The lower courts are hopelessly divided.”

By granting the petition for leave to appeal, Meshel argues, the court has an opportunity to resolve this confusion – which commonly arises in federal and state trial courts – and eliminate any future conflict. 

“The Court should grant the petition and provide the clarity that litigants and lower courts need,” she writes, noting that the existing uncertainties not only affect domestic arbitration agreements but also threaten the stability of the international arbitration system.

Meshel wrote the brief with the assistance of attorney Kian J. Hudson of Barnes & Thornburg LLP. 

The case is currently distributed for conference on April 12, 2024, at which time the justices will review the case and decide whether to hear it.