Whether a non-signatory corporate parent can compel arbitration under an arbitration agreement signed by its wholly-owned subsidiary when the agreement incorporates AAA arbitration rules

No question identified. : TO THE HONORABLE BRETT M. KAVANAUGH, ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES AND CIRCUIT JUSTICE FOR THE EIGHTH CIRCUIT: Pursuant to this Court’s Rule 13.5, HomeServices of America, Inc., BHH Affiliates, LLC, and HSF Affiliates, LLC (collectively, “HomeServices”)! respectfully request a 59-day extension of time, to and including Friday, February 2, 2024, within which to file a petition for a writ of certiorari to the United States Court of Appeals for the Eighth Circuit. The Eighth Circuit issued its decision on August 2, 2023. Burnett v. National Association of Realtors, 75 F.4th 975 (11th Cir. 2023). The Eighth Circuit denied HomeServices’ timely petition for rehearing en banc (with panel rehearing) on September 6, 2023. The jurisdiction of this Court will be invoked under 28 U.S.C. § 1254(1). Unless extended, the time within which to file a petition for a writ of certiorari will expire on December 5, 2023. A copy of the Eighth Circuit’s opinion is attached hereto as Exhibit A. A copy of the Eighth Circuit’s order denying rehearing en banc (with panel rehearing) is attached hereto as Exhibit B. 1 Pursuant to Rule 29.6 of this Court, undersigned counsel state that BHH Affiliates, LLC, is a subsidiary of HSF Affiliates, LLC, which is a subsidiary of HS Franchise Holding, LLC, which is a subsidiary of HomeServices of America, Inc., which is a subsidiary of Berkshire Hathaway Energy Company, which is a subsidiary of Berkshire Hathaway Inc. No publicly traded entity owns 10% or more of the stock of HomeServices of America, Inc., HSF Affiliates, LLC, or BHH Affiliates, LLC. 1. This appeal arises from a class action filed by Scott Burnett, Rhonda Burnett, and others (collectively, “the plaintiffs”) seeking leave to represent a class of home sellers alleging that the National Association of Realtors and certain national real estate brokerage franchisors, including HomeServices, engaged in anticompetitive conduct. The district court granted the plaintiffs’ motion for class certification, Burnett v. National Association of Realtors, 2022 WL 1203100, at *1 (W.D. Mo. Apr. 22, 2022), and HomeServices moved to compel arbitration. As part of their agreements with two non-party real estate brokerage companies, Reece & Nichols Realtors, Inc., and BHH KC Real Estate, LLC d/b/a/ Berkshire Hathaway HomeServices Kansas City Realty (BHH KC), the class members agreed 0. to arbitrate any “controversy or claim between the parties” “under the rules of the American Arbitration Association ... or such other neutral arbitrator agreed to by the parties.” Burnett, 75 F.4th at 978 (emphasis omitted). HomeServices argued that this agreement required the unnamed class members’ to arbitrate their disputes with HomeServices and, because of the adoption of the rules of the American Arbitration Association, required the arbitrator to decide the issue of arbitrability in the first instance. See Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524, 528 (2019). 2 In a separate, prior appeal, the Eighth Circuit concluded that the named plaintiffs’ claims were not subject to arbitration, resting on fact-specific issues that did not form part of the Eighth Circuit’s holding in the appeal giving rise to this motion. See Sitzer v. National Association of Realtors, 12 F.4th 853, 857 (8th Cir. 2021). The district court denied the motion to compel arbitration, Burnett v. National Association of Realtors, 615 F. Supp. 3d 948 (W.D. Mo. 2022), and the Eighth Circuit affirmed, Burnett, 75 F.4th at 984. The Eighth Circuit acknowledged that Missouri law, which governs the contract, “unquestionably permits contracting parties to make arbitration agreements that commit [arbitrability] to their chosen arbitrator.” Id. at 982 (quotation marks omitted). And it further noted both that “[a] delegation provision is an additional, severable agreement to arbitrate threshold issues that is valid and enforceable unless a specific c