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The Federal Arbitration Act (FAA) grants a party the right to file an interlocutory appeal from the denial of a motion to compel arbitration.1 The FAA is silent, however, as to whether a district court may continue to adjudicate the merits of the underlying claims while the appeal is pending or whether the filing of a notice of appeal divests the district court of jurisdiction. Highlighting a split in the circuit courts, and siding with the U.S. Court of Appeals for the Second Circuit, last year the U.S. Court of Appeals for the Fifth Circuit held that a district court may adjudicate the merits pending appeal.2

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