“Eleventh Circuit Judge Suggests Substantive Canon of Interpretation Favoring Arbitration Conflicts With Textualism”

Matthew Allen of Carlton Fields has this article, available in JD Supra, discussing the Eleventh Circuit’s recent decision in Calderon v. Sixt Rent A Car, LLC, in which the court held that a customer’s agreement with orbitz.com to arbitrate disputes related to “any services or products provided,” did not extend to the customer’s dispute with the provider of the rental car that was secured through the Orbitz website. As the court held, “the phase ‘any services or products provided’ is most naturally read to refer to services and products provided by Orbitz rather than those provided by anyone.”

Perhaps most interesting, Mr. Allen describes in the article the unusual step that the opinion’s author, Judge Kevin Newsom, took in issuing a concurrence to his own opinion, the purpose of which was to question the appropriateness of the United States Supreme Court’s decades long admonition that “any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.” Reviewing this judicial canon, articulated by the Supreme Court in Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 24-25 (1983), Judge Newsom observed that “So far as I can tell, the Moses H. Cone canon is just made up. We should rethink it.” Emanating from current judicial views advocating a more textual reading of statutes, Judge Newsom urges courts to bring the same rigor to its review of arbitration provisions under the Federal Arbitration Act: “Rather than employing the traditional tools of textual interpretation, courts are made to forgo meaningful interpretation in the name of, among other things, reducing court congestion.”

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