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
In deciding where to commence an action or whether to file a notice of appeal, attorneys should be mindful of this circuit split and the ramifications that appeal may have on the district court’s jurisdiction. This article addresses this split and summarizes the legal justifications and the practical considerations underlying each of the respective viewpoints.
