Whether the Federal Arbitration Act prohibits courts from relabeling a state law contract challenge as relating to contract formation, as opposed to enforceability, thereby nullifying the parties' delegation of questions of arbitrability to an arbitrator

QUESTIONS PRESENTED Under the Federal Arbitration Act (FAA), arbitration agreements “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. The FAA “preempts any state rule discriminating on its face against arbitration” and “displaces any rule that covertly accomplishes the same objective by disfavoring contracts that (oh so coincidentally) have the defining features of arbitration agreements.” Kindred Nursing Ctrs. Ltd. P’ship v. Clark, 1378. Ct. 1421, 1426 (2017). “When the parties’ contract delegates the arbitrability question to an arbitrator, the courts must respect the parties’ decision as embodied in the contract.” Henry Schein, Inc. v. Archer & White Sales, Inc., 1389 S. Ct. 524, 531 (2019). The Supreme Court of Mississippi here refused—twice—to require arbitration pursuant to the parties’ arbitration agreements in related cases arising from the same contracts. In the first, it applied a judicially-created state contract rule to find that the contracts between the parties were unenforceable, despite a delegation clause referring enforceability questions to the arbitrators. Eighty-four days later, post-Henry Schein, the same court ruled in the second case that the same contracts, on the same facts and based on the same rule, were never formed in the first place, even though written contracts were negotiated, signed, performed, paid, and ultimately sued upon. The questions presented are: 1. Whether the Federal Arbitration Act prohibits courts from relabeling a state law contract il challenge as relating to contract formation, as opposed to enforceability, thereby nullifying the parties’ delegation of questions of arbitrability to an arbitrator. 2. Whether the Federal Arbitration Act permits courts to determine that the making of an arbitration agreement is at issue where plaintiffs’ claims depend upon the existence of a contract that delegates gateway issues of arbitrability to the arbitrator.