Marcus & Millichap Real Estate Investment Services v. Weiler

In 2006, Rae Weiler and her husband hired Marcus & Millichap Real Estate Investment Services and Marcus & Millichap Capital Corporation to represent them in a real estate transaction. As a result of that transaction—which involved exchanging two properties in Nevada for a Red Robin restaurant in Texas—the couple lost a significant portion of their investment. Ms. Weiler later brought several claims against the companies, including for breach of fiduciary duty and negligence. She pursued these claims in arbitration for nearly three years, and then, on the verge of insolvency, asked the arbitration panel to order the company to advance her share of the arbitration costs or waive its right to arbitration and allow her to proceed in court. The arbitration panel ordered the parties back to court for a determination whether a California law regarding inability to pay arbitration fees applied. The California Court of Appeal ruled that if Ms. Weiler could prove she was unable to afford continuing arbitration fees, the companies must be given a choice between either advancing her fees and continuing in arbitration, or proceeding in court.

The companies filed a petition for a writ of certiorari in the U.S. Supreme Court, arguing that the Federal Arbitration Act preempts the California law. Serving as Supreme Court co-counsel for Ms. Weiler, Public Citizen prepared the brief in opposition to the petition. The brief explained that the Supreme Court lacks jurisdiction because the decision below is not final and, in any event, that the companies waived the federal preemption issue. In addition, the brief explained that the case does not present a question of federal law over which there is any disagreement among courts of appeals.

The Supreme Court denied the petition.