Page:Lamps Plus, Inc. v. Frank Varela.pdf/42

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Cite as: 587 U. S. ___ (2019)

7

Kagan, J., dissenting

equity for the revocation of any contract”). So any state rule treating arbitration agreements worse than other contracts “stand[s] as an obstacle” to achieving the Act’s purposes—and is preempted. Concepcion, 563 U. S., at 343. That means the FAA displaces any state rule discriminating on its face against arbitration. See id., at 341. And the Act likewise preempts any more subtle law “disfavoring contracts that (oh so coincidentally) have the defining features of arbitration agreements.” Kindred Nursing, 581 U. S., at ___ (slip op., at 5). What matters, as this Court reiterated last Term, is whether the state law in question “target[s]” arbitration agreements, blatantly or covertly, for substandard treatment. Epic Systems, 584 U. S., at ___ (slip op., at 7).^[1] When the law does so, it cannot operate; when, conversely, it treats arbitration agreements the same as all other contracts, the FAA leaves it alone.

Here, California’s anti-drafter rule is as even-handed as contract rules come. It does not apply only to arbitration contracts. Nor does it apply (as the rule we rejected in Concepcion did) only a tad more broadly to “dispute-resolution contracts,” pertaining to both arbitration and litigation. 563 U. S., at 341 (holding that a ban on collective-action waivers in those contracts worked to “disfavor[] arbitration”). Instead, the anti-drafter rule, as even the majority admits, applies to every conceivable type of
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↑ In its many decades of FAA caselaw, the Court has preempted state law in just one other, “narrow” circumstance: Whatever state law might say, courts must find “clear and unmistakable evidence” before deciding that an agreement authorizes an arbitrator to decide a so-called “question of arbitrability.” Green Tree Financial Corp. v. Bazzle, 539 U. S. 444, 452 (2003) (plurality opinion) (internal quotation marks and alterations omitted); Oxford Health Plans LLC v. Sutter, 569 U. S. 564, 569, n. 2 (2013). As the majority acknowledges, that requirement is not at issue here because Varela and Lamps Plus agreed that a judge should decide the availability of class arbitration (even assuming that question is one of arbitrability). See ante, at 9, n. 4.

[1] In its many decades of FAA caselaw, the Court has preempted state law in just one other, “narrow” circumstance: Whatever state law might say, courts must find “clear and unmistakable evidence” before deciding that an agreement authorizes an arbitrator to decide a so-called “question of arbitrability.” Green Tree Financial Corp. v. Bazzle, 539 U. S. 444, 452 (2003) (plurality opinion) (internal quotation marks and alterations omitted); Oxford Health Plans LLC v. Sutter, 569 U. S. 564, 569, n. 2 (2013). As the majority acknowledges, that requirement is not at issue here because Varela and Lamps Plus agreed that a judge should decide the availability of class arbitration (even assuming that question is one of arbitrability). See ante, at 9, n. 4.

[1]