Coinbase, Inc. v. Bielski/Opinion of Justice Jackson
SUPREME COURT OF THE UNITED STATES
No. 22–105
COINBASE, INC., PETITIONER v. ABRAHAM BIELSKI
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[June 23, 2023]
Justice Jackson, with whom Justice Sotomayor and Justice Kagan join, and with whom Justice Thomas joins as to Parts II, III, and IV, dissenting.
When a federal court of appeals conducts interlocutory review of a trial court order, the rest of the case remains at the trial court level. Usually, the trial judge then makes a particularized determination upon request, based on the facts and circumstances of that case, as to whether the remaining part of the case should continue unabated or be paused (stayed) pending appeal. This discretionary decisionmaking promotes procedural fairness because it allows for a balancing of all relevant interests. See Nken v. Holder, 556 U. S. 418, 434 (2009).
Today, the Court departs from this traditional approach. It holds that, with respect to an interlocutory appeal of a trial court order denying arbitration, a trial court must always “stay its pre-trial and trial proceedings while the interlocutory appeal is ongoing.” Ante, at 1. In other words, in this context, the Court sees fit to impose a mandatory general stay of trial court proceedings.
This mandatory-general-stay rule for interlocutory arbitrability appeals comes out of nowhere. No statute imposes it. Nor does any decision of this Court. Yet today’s majority invents a new stay rule perpetually favoring one class of litigants—defendants seeking arbitration. Those defendants will now receive a stay even when, according to the usual equitable analysis, there is no good reason for one. And, in reaching this result, the Court concludes for the first time that an interlocutory appeal about one matter (arbitrability) bars the district court from proceeding on another (the merits). That logic has such significant implications for federal litigation that the majority itself shies away from the Pandora’s box it may have opened.
I see no basis here for wresting away the discretion traditionally entrusted to the judge closest to a case. I respectfully dissent.
I
Congress did not impose the mandatory-general-stay rule that the majority adopts today.
Start with the governing statute. Congress addressed the kind of interlocutory appeals at issue here in 9 U. S. C. §16—the section of the Federal Arbitration Act it enacted to govern “Appeals.” 102 Stat. 4671 (amending the Federal Arbitration Act, 9 U. S. C. §1 et seq.). Section 16 provides that “[a]n appeal may be taken from” specified orders and decisions, and “an appeal may not be taken from” others. The appeals that §16 authorizes include interlocutory appeals of orders denying requests for arbitration. §§16(a)(1)(A)–(C).
But nowhere did Congress provide that such an interlocutory appeal automatically triggers a general stay of pre-trial and trial proceedings. As the majority opinion admits, §16 never even mentions a stay pending appeal. Ante, at 3.
Even beyond that, related provisions confirm that Congress imposed no mandatory general stay in §16 appeals. “Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Nken, 556 U. S., at 430 (alterations and internal quotation marks omitted). Congress did that here—twice.
First, Congress expressly mandated a general interlocutory stay in another provision of the same 1988 law that enacted §16. See 102 Stat. 4652, 4670–4671. Like §16, that other provision—codified at 28 U. S. C. §1292(d)(4)—authorizes interlocutory appeals. See §1292(d)(4)(A). But unlike §16, the text of that other provision specifies that, upon an interlocutory appeal, “proceedings shall be … stayed until the appeal has been decided.” §1292(d)(4)(B). This resembles the rule the majority adopts today for §16 appeals. Yet Congress omitted it from §16, while simultaneously imposing it in §1292(d)(4).
Second, Congress expressly mandated a general interlocutory stay in another provision of the Federal Arbitration Act. Section 3 pertains to a circumstance in which the trial court is “satisfied” that an issue should be referred to arbitration. 9 U. S. C. §3. In such a case, the statute expressly provides that the trial court “shall on application of one of the parties stay the trial of the action until such arbitration has been had.” Ibid. (emphasis added). Again, the contrast with §16 is stark. Congress specified a mandatory general stay of trial court proceedings in §3 (when the trial court determines that arbitration is warranted) but not §16(a) (when the court determines that arbitration is unwarranted).
The majority opinion waves away these mandatory-general-stay provisions by jerry-rigging explanations for why Congress mandated those stays expressly without doing so in §16. Ante, at 8–9. But the point remains: Congress focused on stays when crafting the 1988 law and the Federal Arbitration Act. And when it intended to mandate interlocutory stays, it said so expressly. Nothing stopped Congress from doing so in §16—yet it chose not to. This underscores that §16 does not mandate a stay.[1]
Given all this, it is no surprise that Congress’s enactments barely figure into the majority opinion. The mandatory-general-stay rule is so untethered from §16 that the statutory text has no role in the Court’s reasoning.
And when Congress’s work finally does take the stage near the end of the Court’s analysis, it plays a minor part. See ante, at 6–7. The Court notes that other statutes expressly provide that appeals do not automatically stay district court proceedings. Ante, at 7, and n. 6. From this, the Court tries to draw an across-the-board inference that, unless Congress expressly disavows the majority’s mandatory-general-stay rule, that rule applies.
The Court’s inference fails. The statutes that the majority points to have nothing to do with arbitration or §16 (unlike the two provisions discussed above, which were enacted in the same 1988 law as §16 and codified alongside §16 in the Federal Arbitration Act, respectively, supra, at 3).
Moreover, and in any event, the majority’s cited statutes do not support the majority’s mandatory-general-stay rule. The majority invokes statutes that expressly preclude automatic stays of all trial court proceedings. But if the majority is correct that Congress intended the opposite when a statute is silent, then stays of all trial court proceedings would be required. Yet, the majority’s own holding does not go that far. See ante, at 4, n. 2. Instead, the majority requires stays for some proceedings (those related to the merits) but not others (those related to costs and fees), ibid.—a line that appears nowhere in the majority’s cited statutes.
At the end of the day, the best the majority can do is point to a smattering of provisions that do not contain the rule that the majority adopts. And those provisions do not even relate to §16 or the majority’s rule (staying litigation generally but not proceedings on costs and fees). Neither those statutes, nor any other, imposes on arbitrability appeals the stay rule that the Court announces.
II
Unable to locate its rule in a statute, the majority opinion pivots to “background principle[s].” Ante, at 3. But there is no background mandatory-general-stay rule.
To the contrary, the background rule is that courts have case-by-case discretion regarding whether or not to issue a stay. “[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket.” Landis v. North American Co., 299 U. S. 248, 254 (1936). That power is discretionary—it “calls for the exercise of judgment, which must weigh competing interests” in each particular case. Id., at 254–255. One key to this discretionary-stay tradition is its “suppleness of adaptation to varying conditions.” Id., at 256. A stay “is not a matter of right” and cannot be imposed “reflexively.” Nken, 556 U. S., at 427 (internal quotation marks omitted).
That has long been the default rule. A court’s discretion “to grant a stay pending review” is “firmly imbedded in our judicial system, consonant with the historic procedures of federal appellate courts.” Ibid. (internal quotation marks omitted). It is “a power as old as the judicial system of the nation.” Ibid. (internal quotation marks omitted); see 28 U. S. C. §1651(a) (All Writs Act, originally enacted in 1789, 1 Stat. 81–82).
Significantly for present purposes, discretionary stays are the default for interlocutory appeals in particular—and this dates back to the first federal interlocutory-appeal statute in 1891. Judiciary Act of 1891, §7, 26 Stat. 828; see 15A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §3906, p. 346 (3d ed. 2022). There, Congress established that “proceedings … in the court below shall not be stayed unless otherwise ordered by that court during the pendency of such appeal.” §7, 26 Stat. 828 (emphasis added).
That statute cemented a background discretionary-stay rule that governed even where Congress was silent—as this Court has repeatedly recognized. Shortly after the 1891 Act, a case arose under conditions in which the Act was silent about whether a stay should issue. In re Haberman Mfg. Co., 147 U. S. 525, 530 (1893) (finding “no express provision” on point). This Court applied the background rule: “[T]he Circuit Court had a discretion to grant or refuse” a stay. Ibid. Another case of statutory silence arose a few years later. In re McKenzie, 180 U. S. 536, 550–551 (1901). Again, this Court reiterated federal courts’ “inherent power … to stay or supersede proceedings on appeal” from an interlocutory order. Id., at 551. As this Court summarized in yet another case, the rule is that the trial court has “authority” during an interlocutory appeal “to take further proceedings in the cause, unless in its discretion it orders them to be stayed, pending the appeal.” Smith v. Vulcan Iron Works, 165 U. S. 518, 525 (1897). That authority is “recognized” by the 1891 Act but existed already as a traditional matter, “often exercised by other courts of chancery.” Ibid.
This was the background against which Congress enacted §16. And—importantly—courts understood stays as discretionary with respect to interlocutory appeals concerning arbitrability. Before Congress enacted §16, parties brought interlocutory arbitrability appeals under other sources of appellate jurisdiction, and courts treated stays as discretionary, not mandatory.[2] Yet, according to the majority, Congress sought to displace that common understanding when it enacted §16—without saying anything at all about stays pending appeal.
Even setting all that aside, the majority opinion’s reliance on a “background” rule, ante, at 3, still fails. The majority has not shown that its own rule (the mandatory-general-stay rule) existed as a background matter when Congress enacted §16 in 1988. Indeed, the majority opinion does not identify a single case in which this Court imposed a mandatory general stay of pre-trial and trial proceedings pending an interlocutory appeal. Not in an arbitration case. Not in an analogous case about the proper adjudicatory forum for a dispute. Not in any interlocutory appeal at all.
III
Because neither the statute nor any background law states that an interlocutory appeal over arbitrability triggers a mandatory general stay of trial court proceedings, the majority opinion resorts to spinning such a rule from a single sentence in Griggs v. Provident Consumer Discount Co., 459 U. S. 56 (1982) (per curiam). But Griggs expresses a far narrower principle, and is thus insufficient to support the majority’s mandatory-general-stay rule.
Griggs stands for a modest proposition: Two courts should avoid exercising control over the same order or judgment simultaneously. The problem Griggs identifies is the “danger a district court and a court of appeals would be simultaneously analyzing the same judgment.” Id., at 59. The cure Griggs prescribes is that “[t]he filing of a notice of appeal … divests the district court of its control over those aspects of the case involved in the appeal.” Id., at 58.
And the reason is simple. Two courts simultaneously analyzing the same judgment could step on each other’s toes. It would interfere with the appellate court’s review of an order if the district court modified that order mid-appeal. Instead, an order should be reviewed by one court at a time.
This notion of “one order, one reviewing court” is all that was at issue in Griggs. Griggs concerned a party that tried to appeal a judgment while the District Court was still considering whether to alter that same judgment. Id., at 56. The Court held that the appeal needed to wait until after the District Court’s work on that judgment was done. Id., at 60–61. This result, which followed from the Federal Rules of Appellate Procedure, was necessary to “avoi[d]” the situation “in which district courts and courts of appeals would both have had the power to modify the same judgment.” Id., at 60 (emphasis added).
Properly understood and applied here, Griggs divests the district court of control over only a narrow slice of the case. The interlocutory appeal addresses an order declining to compel arbitration. Griggs merely prevents the district court from modifying that order—i.e., Griggs prevents the district judge from revisiting whether to compel arbitration while the appeal is pending. Griggs does not stop the district court from proceeding on matters other than arbitrability.
The majority opinion, however, transmogrifies Griggs into a sweeping stay of “pre-trial and trial proceedings” on not just arbitrability, but also the merits. Ante, at 1. According to the majority, if the question on appeal is “whether the litigation may go forward in the district court,” then the district court loses control over “the entire case.” Ante, at 3–4 (emphasis added; internal quotation marks omitted).
That rule far surpasses the statement in Griggs—the sole statement on which the majority relies—that a district court loses “control over those aspects of the case involved in the appeal.” 459 U. S., at 58; ante, at 3. Only the arbitrability order is on appeal, not the merits. And those matters are distinct. As this Court recognized (before Congress enacted §16), “arbitrability” is “easily severable from the merits of the underlying disputes.” Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U. S. 1, 21 (1983).
The majority cannot justify why it treats these “easily severable” matters as intertwined in an arbitrability appeal. “[T]he question on appeal,” as the majority opinion correctly identifies, is “whether the case belongs in arbitration.” Ante, at 3. But the questions remaining before the district court are different: whether the claims have merit, whether the parties are entitled to the discovery they seek, and so on. Proceedings on those questions would not interfere with the appellate court’s review of the arbitrability order. Those proceedings, in other words, do not implicate the Griggs principle, which addresses the “danger a district court and a court of appeals would be simultaneously analyzing the same judgment.” 459 U. S., at 59.
The Court today expands Griggs beyond what the Congress that enacted §16 could have foreseen, let alone silently incorporated. Indeed, the majority can identify no other time this Court wielded Griggs to mandate a stay of all merits proceedings just because a distinct procedural question was on appeal.
In fact, the majority’s supercharged version of Griggs contradicts its own account of Congress’s intent. Consider the statutes that the majority points to as models of how Congress would reject a mandatory-general-stay rule. Ante, at 6–7, and n. 6; see supra, at 4–5. Under those statutes, the majority says, Congress intends that an interlocutory appeal does “not … automatically stay district court proceedings.” Ante, at 7. Yet, the majority also seemingly accepts that under those statutes, “the Griggs principle applies.” Ante, at 5. And per “the Griggs principle” as the majority sees it, in some cases an interlocutory appeal does automatically stay district court proceedings. Ante, at 3–4. So a mandatory general stay is thus both prohibited (by the statutory text) and required (by the majority’s view of Griggs).[3] As this contradiction underscores, the majority’s holding is untethered from any statute and any existing conception of Griggs.
IV
To justify its new mandatory-general-stay rule, the majority ultimately rests on its assessment of what is “sensible.” Ante, at 5–6. But even the majority’s policy concerns do not support its rule.
The dispute here turns on a subset of cases—those in which a stay is not warranted under the usual discretionary standard. See Nken, 556 U. S., at 434. All agree that an interlocutory appeal should trigger a stay if that standard is met. But the majority goes further and requires a stay in all cases. Indeed, the majority mandates a stay even if none of the traditional stay prerequisites are present: likelihood of success on the merits, irreparable harm, favorable balance of equities, and alignment with the public interest. See ibid.
The majority offers no good reason for that result. The majority says that an automatic stay protects the party seeking arbitration and conserves resources in case the dispute “ultimately head[s] to arbitration” after appeal. Ante, at 6. But the concern fades if that scenario is unrealistic—i.e., if the party seeking arbitration is unlikely to succeed on appeal.
The majority’s concern is even weaker when a stay would harm the opposing party and the public interest much more than it would protect the party seeking arbitration. Take, for example, a case in which crucial evidence would be lost if discovery is delayed. Say a witness is on her deathbed. Under the majority’s rule, if an interlocutory arbitrability appeal under §16(a) is pending, discovery must be stayed and the evidence must be lost. That is apparently so even if the parties agree they wish to proceed with discovery.
The majority’s rule also prevents courts from crafting case-specific solutions to balance all the interests at stake. Under the traditional discretionary-stay rule, for instance, a judge could allow the parties to conduct only the forms of discovery that would also be permitted in arbitration. That would save time and leave nobody worse off even if, as the majority fears, the dispute ultimately heads to arbitration. But this kind of equitable resolution, which the court and the parties might consider “sensible,” ante, at 6, is forbidden under the majority’s mandatory-general-stay rule.
In addition, for each of the majority’s concerns favoring a mandatory stay, there are countervailing considerations. The majority professes interest in “efficiency.” Ibid. But forcing district court proceedings to a halt—for months or years while the appeal runs its course—is itself inefficient. The majority also fears losing other “asserted benefits of arbitration” without a stay. Ibid. But with a stay, the party opposing arbitration loses the benefits of immediate litigation. A plaintiff’s request for injunctive protection against imminent harm, for example, goes unanswered under the majority’s rule. Similarly, while the majority laments settlement pressure on parties seeking arbitration, ibid., the rule it announces imposes settlement pressure in the opposite direction. With justice delayed while the case is on hold, parties “could be forced to settle,” ibid., because they do not wish—or cannot afford—to leave their claims in limbo. Incongruously, the majority inflicts these burdens on the party that won the arbitrability issue before the district court (the party opposing arbitration).
In categorically resolving these conflicts in favor of the pro-arbitration party, the majority’s analysis comes down to this: Because the pro-arbitration party gets an interlocutory appeal, it should also get an automatic stay. Ibid.; see L. Numeroff, If You Give a Mouse a Cookie (1985). But Congress was entitled to give one without the other. And the right to interlocutory appeal is valuable on its own. It is, as the majority explains, “a rare statutory exception to the usual rule that parties may not appeal before final judgment.” Ante, at 3. Even without a stay, if the interlocutory appeal succeeds, the pro-arbitration party gets its wish and the dispute goes to arbitration.
Perhaps for those reasons, real-life parties do not agree with the majority that an interlocutory arbitrability appeal is pointless without an automatic stay. No stay was issued in this case, for example, yet Coinbase still pursued its interlocutory appeal. Nor did other parties stop bringing interlocutory arbitrability appeals in the Circuits that had interpreted §16 to impose no automatic stay.[4]
Yet this Court steps in to give the pro-arbitration party the additional right to an automatic stay that Congress withheld. Now, any defendant that devises a non-frivolous argument for arbitration can not only appeal, but also press pause on the case—leaving plaintiffs to suffer harm, lose evidence, and bleed dry their patience and funding in the meantime. To confer that power on a class of litigants, based on blanket judgments resolving competing policy concerns, is Congress’s domain, not ours. And where Congress is silent, the job of managing particular litigation, in light of the concrete circumstances presented, belongs to the judge closest to a case.
V
The Court today ventures down an uncharted path—and that way lies madness. Never before had this Court mandated a general stay simply because an interlocutory appeal poses the question “whether the litigation may go forward in the district court.” Ante, at 3 (internal quotation marks omitted). And a wide array of appeals seemingly fits that bill.
Indeed, any appeal over the proper forum for a dispute would arguably raise the same question. After all, “an arbitration agreement is ‘a specialized kind of forum-selection clause.’ ” Viking River Cruises, Inc. v. Moriana, 596 U. S. ___, ___ (2022) (slip op., at 11) (quoting Scherk v. Alberto-Culver Co., 417 U. S. 506, 519 (1974)). If arbitration appeals require stays of all pre-trial and trial proceedings, why not all appeals about forum-selection agreements? And why not appeals over non-contractual disputes over the proper adjudicator, like venue, personal jurisdiction, forum non conveniens, federal-court jurisdiction, and abstention?
For that matter, “virtually every right that could be enforced appropriately by pretrial dismissal might loosely be described as conferring a ‘right not to stand trial.’ ” Digital Equipment Corp. v. Desktop Direct, Inc., 511 U. S. 863, 873 (1994). “Such motions can be made in virtually every case.” Ibid. Does every interlocutory appeal concerning a case-dispositive issue now trigger a mandatory general stay of trial court proceedings?
Taken that broadly, the mandatory-general-stay rule the Court adopts today would upend federal litigation as we know it. Aware that any interlocutory appeal on a dispositive issue grinds the plaintiff’s case to a halt, defendants would presumably pursue that tactic at every opportunity. This would occur, for example, in interlocutory appeals available as of right under 28 U. S. C. §1292(a)(1) from orders granting preliminary injunctions. Any defense lawyer worth her salt would invoke the right to take that appeal and throw up some objection—to venue, jurisdiction, or a dispositive element of the merits—to trigger a mandatory stay. For plaintiffs, then, every preliminary-injunction motion becomes a trap: Even if the motion is granted, the defendant can take that opportunity to stop the trial court proceedings in their tracks.
Facing these destabilizing consequences, the majority stops short of following its own reasoning to that ominous conclusion. Today’s holding reaches only arbitration appeals under §16(a). Ante, at 1, 7. And it might well be that the concerns motivating today’s mandatory-general-stay rule do not extend beyond arbitration. So the majority will not commit, for example, to concluding that appeals over non-arbitration forum-selection clauses warrant the same mandatory stay. Ante, at 9.
I agree with that hesitation—even one step further down this path is much too far. The mandatory-general-stay rule that the Court manufactures is unmoored from Congress’s commands and this Court’s precedent. And the windfall that the Court gives to defendants seeking arbitration, preferencing their interests over all others, is entirely unwarranted. The Court now mandates that result no matter how unjust that outcome is, according to traditional equitable standards, in a given case. This endeavor is unfounded, unwise, and—most fundamentally—not our role.
- ↑ The majority’s explanation for why Congress mandated a stay in 28 U. S. C. §1292(d)(4) also makes no sense. According to the majority, Congress usually remains silent when it intends to mandate a stay. Ante, at 6–7, 8–9. Congress expressly imposed a mandatory stay in §1292(d)(4), the majority says, only because a pre-existing provision, §1292(d)(3), would otherwise have made stays in §1292(d)(4) appeals discretionary. Ante, at 8–9.
But that last point holds no water. Paragraph (3) has no bearing on paragraph (4), because these two provisions govern different kinds of appeals.
Specifically, paragraph (3) governs certain appeals by permission, while paragraph (4) governs a separate set of appeals as of right. Paragraph (3) addresses events unique to permissive appeals: “Neither the application for nor the granting of an appeal” stays trial court proceedings. §1292(d)(3) (emphasis added). Paragraph (3) thus corresponds to paragraphs (1) and (2), which authorize permissive appeals “if application is made” and granted. §§1292(d)(1)–(2). Meanwhile, paragraph (4) separately authorizes certain as-of-right appeals, §1292(d)(4)(A), and it imposes mandatory stays in such appeals, §1292(d)(4)(B). In an appeal as of right under paragraph (4), paragraph (3) never kicks in, because there is no “application for” or “granting of” an appeal, §1292(d)(3).
Thus, the majority’s story—that Congress needed express stay language to avoid overlap with paragraph (3)—turns on a red herring. There is no such overlap. Instead, only the more straightforward explanation remains: Congress imposed a mandatory general stay in §1292(d)(4)—but not 9 U. S. C. §16—because it intended such a stay under the former but not the latter.
- ↑ See, e.g., Pearce v. E. F. Hutton Group, Inc., 828 F. 2d 826, 829 (CADC 1987); Maxum Foundations, Inc. v. Salus Corp., 779 F. 2d 974, 977 (CA4 1985); Matterhorn, Inc. v. NCR Corp., 727 F. 2d 629, 630 (CA7 1984); Lummus Co. v. Commonwealth Oil Refining Co., 273 F. 2d 613, 613–614 (CA1 1959) (per curiam); Bernhardt v. Polygraphic Co. of Am., 235 F. 2d 209, 211 (CA2 1956) (per curiam).
- ↑ This contradiction arises, for example, under 28 U. S. C. §1292(b), one of the statutes that the majority cites as prohibiting mandatory general stays. See ante, at 7, n. 6 (citing Act of Sept. 2, 1958, Pub. L. 85–919, 72 Stat. 1770 (codified at §1292(b))). Section 1292(b) authorizes permissive interlocutory appeals from a wide range of orders involving “controlling question[s] of law”—including rulings on arbitrability. Arbitrability appeals under §1292(b) were commonplace when Congress enacted 9 U. S. C. §16 in 1988. See, e.g., Danford v. Schwabacher, 488 F. 2d 454, 457 (CA9 1973) (“Since 1958 interlocutory arbitration orders have been reviewable in accordance with the procedures prescribed by 28 U. S. C. §1292(b)”). And in a §1292(b) arbitrability appeal, the majority’s reading of §1292(b) would prohibit a mandatory general stay, while the majority’s view of Griggs would require one.
- ↑ For over a decade, the Second, Fifth, and Ninth Circuits have all held that a §16(a) appeal triggers no mandatory general stay. Motorola Credit Corp. v. Uzan, 388 F. 3d 39, 53–54 (CA2 2004); Britton v. Co-op Banking Group, 916 F. 2d 1405, 1412 (CA9 1990); Weingarten Realty Investors v. Miller, 661 F. 3d 904, 907–910 (CA5 2011). And those Circuits face no shortage of interlocutory §16(a) appeals. See, e.g., Palacios v. Alifine Dining, Inc., 2023 WL 2469765 (CA2, Mar. 13, 2023); Laurel v. Cintas Corp., 2023 WL 2363686 (CA9, Mar. 6, 2023); NATS, Inc. v. Radiation Shield Technologies, Inc., 2023 WL 2416160 (CA2, Mar. 9, 2023); Hill v. Xerox Bus. Servs., LLC, 59 F. 4th 457 (CA9 2023); Johnson v. Walmart Inc., 57 F. 4th 677 (CA9 2023); Noble Capital Fund Mgmt., LLC v. US Capital Global Inv. Mgmt., LLC, 31 F. 4th 333 (CA5 2022); Forby v. One Technologies, LP, 13 F. 4th 460 (CA5 2021); Soliman v. Subway Franchisee Adv. Fund Trust, Ltd., 999 F. 3d 828 (CA2 2021); Polyflow, LLC v. Specialty RTP, LLC, 993 F. 3d 295 (CA5 2021).