No, not the Federal Aviation Administration, the Federal Arbitration Act. The NY Court of Appeals ruled this year that almost every arbitration comes under its umbrella. Cusimano v Schnurr
2015 NY Slip Op 09232 [26 NY3d 391] December 16, 2015 Lippman, Ch. J. Court of Appeals. Plaintiffs played a dangerous game. Did they win or lose?
“The issues presented by this appeal are whether the Federal Arbitration Act (FAA) is applicable to disputes arising under the agreements at issue and, if so, whether plaintiffs Rita and Dominic Cusimano waived their right to arbitrate by pursuit of this litigation. We hold that the FAA does apply, but that plaintiffs waived their right to arbitrate.{**26 NY3d at 395}”
“The United States Supreme Court has interpreted the reach of the FAA extremely broadly, characterizing the act’s basic purpose as “overcom[ing] courts’ refusals to enforce agreements to arbitrate” (Allied-Bruce Terminix Cos. v Dobson, 513 US 265, 270 [1995]). In Allied-Bruce, the Supreme Court held that the term “involving commerce” was meant to be the functional equivalent of “affecting commerce,” which typically signals Congress’s intent to invoke the full extent of its powers under the Commerce Clause (see 513 US at 273-274).
In particular, the Court addressed the scope of the statutory language, “evidencing a transaction involving commerce.” The Court observed that there were conflicting interpretations of the phrase—whether it meant that the parties had contemplated substantial interstate activity at the time they had entered the agreement, or whether the transaction at issue must have turned out, in fact, to have involved interstate commerce (see 513 US at 277). The [*5]Court concluded that the “commerce in fact” interpretation was more in keeping with the statute, pointing out that the “contemplation of the parties” test appeared contrary to congressional intent, as it would invite litigation about what the parties had been thinking when they executed the agreement (see 513 US at 278). “[W]e accept the ‘commerce in fact’ interpretation, reading the Act’s language as insisting that the ‘transaction’ in fact ‘involv[e]’ interstate commerce, even if the parties did not contemplate an interstate commerce connection” (513 US at 281).
More recently, the United States Supreme Court indicated that it was “perfectly clear that the FAA encompasses a wider range of transactions than those actually ‘in commerce’—that is, ‘within the flow of interstate commerce’ ” (Citizens Bank v Alafabco, Inc., 539 US 52, 56 [2003]). The Court clarified that{**26 NY3d at 399} it is not necessary for the individual transaction to have a substantial effect on interstate commerce, so long as the type of activity at issue has the requisite substantial effect (see 539 US at 56).”
“Although this interpretation is undeniably broad, the Supreme Court has made it abundantly clear that the FAA’s{**26 NY3d at 400} reach is expansive. The idea that the intrafamilial nature of the agreements has some bearing on whether the FAA is applicable finds no support in the case law. Nor does the fact that these agreements do not themselves evidence the commercial transactions appear to be significant. The ultimate purpose of the agreements was to authorize participation in the business of commercial real estate and that is, in fact, what the entities did. In determining whether the FAA applies, the emphasis is meant to be on whether the particular economic activity at issue affects interstate commerce—and, here, it does.”