I came across an interesting ongoing case from Kentucky, Schnuerle v. Insight Communications Co., ___ S.W.3d ___,2010 WL 5129850 (Ky. Dec. 16, 2010). The issue that it now presents, based on supplemental briefing and the issues posed to the Kentucky Supreme Court are novel and interesting. Does Conception apply to state law?
Two days after the Supreme Court ruled on Conception, the Defendants filed a motion for leave to file supplemental authority. In the Plaintiffs’ briefing,Plaintiffs make the argument that Conception does not apply to state court cases.
The first argument the response brief makes (at pp. 2-5) is that Concepcion does not apply to cases pending in state court rather than in federal court. The brief points out that Justice Clarence Thomas has consistently held, in every case in which the issue has come up since 1995, that the FAA does not apply in state-court actions. Accordingly, had the Concepcion case itself been a state-court action rather than a federal case, his vote likely would have aligned him with the dissenters. (See this blog post for more on Justice Thomas’s concurrence.)
The Kentucky Supreme Court granted the defendants’ motion and accepted the supplemental filing. It stands to reason that both the supplemental filing and the response would be considered. It will be interesting to see how this case turns out.