PRELIMINARY PRINT

Volume 602 U. S. Part 1 Pages 143–153

OFFICIAL REPORTS OF

THE SUPREME COURT May 23, 2024

Page Proof Pending Publication

REBECCA A. WOMELDORF reporter of decisions

NOTICE: This preliminary print is subject to formal revision before the bound volume is published. Users are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D.C. 20543, [email protected], of any typographical or other formal errors. OCTOBER TERM, 2023 143

Syllabus

COINBASE, INC. v. SUSKI et al.

certiorari to the united states court of appeals for the ninth circuit No. 23–3. Argued February 28, 2024—Decided May 23, 2024 The dispute here involves a confict between two contracts executed by petitioner Coinbase, Inc., operator of a cryptocurrency exchange plat- form, and respondents, who use Coinbase. The frst contract—the Coinbase User Agreement that respondents agreed to when they cre- ated their accounts—contains an arbitration provision with a delegation clause. Per this provision, an arbitrator must decide all disputes under the contract, including whether a given disagreement is arbitrable. The second contract—the Offcial Rules for a promotional sweepstakes respondents entered—contains a forum selection clause providing that California courts “shall have sole jurisdiction of any controversies re- garding the [sweepstakes] promotion.” Respondents ultimately fled a class action in the U. S. District Court for the Northern District of Cali- fornia, alleging that the sweepstakes violated various California laws. Page Proof Pending Publication Coinbase moved to compel arbitration based on the User Agreement's delegation clause. The District Court determined that the Offcial Rules' forum selection clause controlled the parties' dispute and accord- ingly denied the motion. The Ninth Circuit affrmed. Held: Where parties have agreed to two contracts—one sending arbitra- bility disputes to arbitration, and the other either explicitly or implicitly sending arbitrability disputes to the courts—a court must decide which contract governs. Pp. 147–152. (a) The Federal Arbitration Act “refects the fundamental principle that arbitration is a matter of contract.” Rent-A-Center, West, Inc. v. Jackson, 561 U. S. 63, 67. Given that arbitration agreements are simply contracts, the frst question in any arbitration dispute must be: What have these parties agreed to? Parties can form multiple levels of agreements concerning arbitration, and thus can have different kinds of disputes. At a basic level, parties can agree to send the merits of a dispute to an arbitrator. The merits of a dispute is a frst-order disagree- ment. The parties may also have a second-order dispute—“whether they agreed to arbitrate the merits”—as well as a third-order dispute—“who should have the primary power to decide the second matter.” First Options of Chicago, Inc. v. Kaplan, 514 U. S. 938, 942. Pp. 147–149. (b) This case involves a fourth kind of dispute: What happens if par- ties have multiple agreements that evidence a confict over the answer 144 COINBASE, INC. v. SUSKI

Syllabus

to the third-order question of who decides arbitrability? That question can be answered as to these parties only by determining which contract applies. Homing in on the confict between the delegation clause in the frst contract and the forum selection clause in the second, the question becomes whether the parties agreed to send the given dispute to arbi- tration. And that question must be answered by a court. Coinbase asks the Court to revisit the Ninth Circuit's bottom-line conclusion below, but its arguments are unpersuasive. First, Coinbase argues that the Ninth Circuit should have applied the so-called sever- ability principle—under which “an arbitration [or delegation] provision is severable from the remainder of the contract,” Buckeye Check Cash- ing, Inc. v. Cardegna, 546 U. S. 440, 445–446—and considered only argu- ments specifc to the User Agreement's delegation provision. But the severability rule does not require that a party challenge only the arbitra- tion or delegation provision. Rather, where a challenge applies “equally” to the whole contract and to an arbitration or delegation provision, a court must address that challenge. Rent-A-Center, 561 U. S., at 71. Coinbase next contends that, as a matter of California state law, the Ninth Circuit erroneously held that the Offcial Rules' forum selection clause superseded the User Agreement's delegation provision. That issue is outside the scope of the question presented, and the Court does Page Proof Pending Publication not address it. Finally, the Court does not believe its ruling here will invite chaos by facilitating challenges to delegation clauses. Regardless, where the parties have agreed to two contracts, a court must decide which contract governs. To hold otherwise would be to impermissibly elevate a dele- gation provision over other forms of contract. See ibid. Pp. 149–152.

55 F. 4th 1227, affrmed.

Jackson, J., delivered the opinion for a unanimous Court. Gorsuch, J., fled a concurring opinion, post, p. 152.

Jessica L. Ellsworth argued the cause for petitioner. With her on the briefs were Neal Kumar Katyal, Nathaniel A. G. Zelinsky, Kathleen Hartnett, and Bethany Lobo. David J. Harris, Jr., argued the cause for respondents. With him on the briefs was Gerilyn R. Harris.*

*Briefs of amici curiae urging reversal were fled for the Atlantic Legal Foundation by Lawrence S. Ebner, Felix Shafr, John F. Querio, and Scott Cite as: 602 U. S. 143 (2024) 145

Opinion of the Court

Justice Jackson delivered the opinion of the Court. The parties in this case executed two contracts. The frst contained an arbitration provision with a delegation clause; per that provision, an arbitrator must decide all disputes under the contract, including whether a given disagreement is arbitrable. The second contract contained a forum selec- tion clause, providing that all disputes related to that con- tract must be decided in California courts. Coinbase insists that the frst contract's delegation clause established the terms by which all subsequent disputes were to be resolved, so the arbitrability of a contract-related dispute between these parties is a matter for the arbitrator to decide. But respondents maintain—and the Ninth Circuit held—that the second contract's forum selection clause superseded that prior agreement. This case thus presents the following question: When two such contracts exist, who decides the arbitrability of a contract-related dispute between the par- Page Proof Pending Publication ties—an arbitrator or the court? Basic legal principles establish the answer. Arbitration is a matter of contract and consent, and we have long held that disputes are subject to arbitration if, and only if, the parties actually agreed to arbitrate those disputes. Here, then, before either the delegation provision or the forum selection clause can be enforced, a court needs to decide what the parties have agreed to—i. e., which contract con- trols. Accordingly, we affrm the judgment of the Ninth Circuit. P. Dixler; for the Chamber of Commerce of the United States of America et al. by Andrew J. Pincus, Archis A. Parasharami, Daniel E. Jones, Jennifer B. Dickey, Jonathan D. Urick, Thomas Pinder, and Anastasia P. Boden; and for Anthony Michael Sabino, pro se. Briefs of amici curiae urging affrmance were fled for the American Association for Justice by Robert S. Peck, Sean Domnick, and Jeffrey R. White; for Legal Scholars by Glenn E. Chappell, Hassan A. Zavareei, and Spencer S. Hughes; and for Public Citizen by Scott L. Nelson and Allison M. Zieve. 146 COINBASE, INC. v. SUSKI

Opinion of the Court

I Coinbase, Inc., operates a cryptocurrency exchange plat- form. Respondents are users of Coinbase. To buy and sell cryptocurrency on the platform, users create accounts. The frst relevant contract is the Coinbase User Agree- ment that respondents agreed to when they created their accounts. The User Agreement contains a provision that the contract calls the Arbitration Agreement. 1 App. 218. The Arbitration Agreement includes a delegation clause: “This Arbitration Agreement includes, without limita- tion, disputes arising out of or related to the interpreta- tion or application of the Arbitration Agreement, includ- ing the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbi- tration Agreement. All such matters shall be decided by an arbitrator and not by a court or judge.” Ibid. (emphasis added). Page Proof Respondents Pending each agreed Publication to the User Agreement, com- plete with the above-quoted arbitration language. If that were the only contract at issue, we would not be deciding this case, since the Arbitration Agreement quite clearly sends to arbitration disputes between Coinbase and its users, including disputes about arbitrability. These parties, though, agreed to a second contract. Coin- base offered a sweepstakes that users could enter for a chance to win a cryptocurrency called Dogecoin. Respond- ents each submitted entries in June 2021, and in doing so, agreed to the Offcial Rules of the sweepstakes. Unlike the User Agreement, the Offcial Rules contained a forum selec- tion clause, which provided: “The California courts (state and federal) shall have sole jurisdiction of any controversies regarding the [sweep- stakes] promotion and the laws of the state of California shall govern the promotion. Each entrant waives any and all objections to jurisdiction and venue in those Cite as: 602 U. S. 143 (2024) 147

Opinion of the Court

courts for any reason and hereby submits to the jurisdic- tion of those courts.” Id., at 108 (capitalization altered). Thus, after respondents entered the sweepstakes, the par- ties had executed two contracts: the User Agreement, which sent disputes about arbitrability to arbitration, and the Off- cial Rules, which appeared to send disputes to California courts. Once the sweepstakes concluded, the confict between these contracts came to a head. Respondents fled a class- action complaint in the U. S. District Court for the Northern District of California, alleging that the sweepstakes violated California's False Advertising Law, Unfair Competition Law, and Consumer Legal Remedies Act. Invoking the User Agreement and its delegation clause, Coinbase moved to compel arbitration. The District Court denied Coinbase's motion. It reasoned that deciding which contract governed was a question for Page Proof Pending Publication the court; that the User Agreement's arbitration provision conficted with the forum selection clause in the Offcial Rules; and that, under California contract law, the Offcial Rules superseded the User Agreement. The District Court therefore determined that the Offcial Rules' forum selection clause controlled, so the parties' sweepstakes-related dispute was not subject to arbitration. The Ninth Circuit affrmed. 55 F. 4th 1227 (2022). We granted certiorari to answer the question of who—a judge or an arbitrator—should decide whether a subsequent contract supersedes an earlier arbitration agreement that contains a delegation clause. 601 U. S. ––– (2023). II The Federal Arbitration Act (FAA) “refects the funda- mental principle that arbitration is a matter of contract.” Rent-A-Center, West, Inc. v. Jackson, 561 U. S. 63, 67 (2010). As a result, arbitration agreements are “valid, irrevocable, and enforceable, save upon such grounds as exist at law or 148 COINBASE, INC. v. SUSKI

Opinion of the Court

in equity for the revocation of any contract.” 9 U. S. C. § 2. If a court is “satisfed that the making of the agreement for arbitration . . . is not in issue,” it must send the dispute to an arbitrator. § 4. “The FAA thereby places arbitration agreements on an equal footing with other contracts. ” Rent-A-Center, 561 U. S., at 67. Given that arbitration agreements are simply contracts, “ `[t]he frst principle that underscores all of our arbitration decisions' is that `[a]rbitration is strictly a matter of con- sent.' ” Lamps Plus, Inc. v. Varela, 587 U. S. 176, 184 (2019) (quoting Granite Rock Co. v. Teamsters, 561 U. S. 287, 299 (2010); some alterations in original). Arbitration is “a way to resolve those disputes—but only those disputes—that the parties have agreed to submit to arbitration.” First Op- tions of Chicago, Inc. v. Kaplan, 514 U. S. 938, 943 (1995). Consequently, the frst question in any arbitration dispute must be: What have these parties agreed to? Page Proof Pending Publication As relevant here, parties can form multiple levels of agree- ments concerning arbitration. At a basic level, parties can agree to send the merits of a dispute to an arbitrator. They can also “agree by contract that an arbitrator, rather than a court, will resolve threshold arbitrability questions as well as underlying merits disputes.” Henry Schein, Inc. v. Ar- cher & White Sales, Inc., 586 U. S. 63, 65 (2019). An agree- ment to allow an arbitrator to decide whether a dispute is subject to arbitration—i. e., its arbitrability—“is simply an additional, antecedent agreement . . . , and the FAA operates on this additional arbitration agreement just as it does on any other.” Rent-A-Center, 561 U. S., at 70. From these different kinds of agreements, it follows that parties can also have different kinds of disputes. A contest over “the merits of the dispute” is a frst-order disagree- ment, First Options, 514 U. S., at 942 (emphasis deleted), the resolution of which depends on the applicable law and rele- vant facts. The parties may also have a second-order dis- pute—“whether they agreed to arbitrate the merits”—as Cite as: 602 U. S. 143 (2024) 149

Opinion of the Court

well as a third-order dispute—“who should have the primary power to decide the second matter.” Ibid. (emphasis de- leted). Under contract principles, these second- and third- order questions are also matters of consent. “Just as the arbitrability of the merits of a dispute depends upon whether the parties agreed to arbitrate that dispute, so the question `who has the primary power to decide arbitrability' turns upon what the parties agreed about that matter.” Id., at 943 (citations omitted). We ask who has the power to decide arbitrability because “a party who has not agreed to arbitrate will normally have a right to the court's decision about the merits of its dispute.” Id., at 942. Thus, we have explained that “[c]ourts should not assume that the parties agreed to arbitrate arbitrability unless there is `clea[r] and unmistakabl[e]' evidence that they did so.” Id., at 944 (quoting AT&T Technologies, Inc. v. Communications Workers, 475 U. S. 643, 649 (1986); some alterations in original). “[B]efore referring a dispute to Page Proof Pending Publication an arbitrator,” therefore, “the court determines whether a valid arbitration agreement exists.” Henry Schein, 586 U. S., at 69. III In prior cases, we have addressed three layers of arbitra- tion disputes: (1) merits, (2) arbitrability, and (3) who decides arbitrability. This case involves a fourth: What happens if parties have multiple agreements that confict as to the third-order question of who decides arbitrability? As al- ways, traditional contract principles apply. Coinbase says the User Agreement's delegation clause controls. Respondents counter that the Offcial Rules' forum selection clause superseded that agreement. If Coin- base is right that the User Agreement's delegation clause was meant to govern all agreements moving forward, then the parties agreed to arbitrate all subsequent arbitrability disputes. If respondents are correct that the Offcial Rules' forum selection clause superseded the User Agreement's del- 150 COINBASE, INC. v. SUSKI

Opinion of the Court

egation clause, then the parties meant to send sweepstakes disputes—including those over arbitrability—to California courts. Thus, the question whether these parties agreed to arbi- trate arbitrability can be answered only by determining which contract applies. In other words, “the substance of the parties' supersession dispute is `whether there is an agreement to arbitrate.' ” Field Intelligence Inc. v. Xylem Dewatering Solutions Inc., 49 F. 4th 351, 356 (CA3 2022). When we home in on the confict between the delegation clause in the frst contract and forum selection clause in the second, the question is whether the parties agreed to send the given dispute to arbitration—and, per usual, that ques- tion must be answered by a court. Coinbase seems to concede this point. See Reply Brief 12 (“Coinbase agrees that the Court can and should assess whether the offcial rules displaced the parties' consent to Page Proof Pending Publication have an arbitrator decide arbitrability”). Nevertheless, it offers a slew of reasons why we should revisit the Ninth Circuit's bottom-line conclusion. None of these reasons per- suades us to do so. First, Coinbase invokes the so-called severability princi- ple. Under the severability principle, “an arbitration [or delegation] provision is severable from the remainder of the contract,” and “unless the challenge is to the arbitration [or delegation] clause itself, the issue of the contract's validity is considered by the arbitrator in the frst instance.” Buckeye Check Cashing, Inc. v. Cardegna, 546 U. S. 440, 445–446 (2006). Coinbase argues that, pursuant to this principle, the Ninth Circuit should have isolated the User Agreement's del- egation provision and considered only arguments specifc to that provision. Assuming without deciding that the severability principle is implicated here, it is nonetheless satisfed. The severabil- ity principle establishes that a party seeking to avoid arbi- tration must directly challenge the arbitration or delegation Cite as: 602 U. S. 143 (2024) 151

Opinion of the Court

clause, not just the contract as a whole. But this rule does not require that a party challenge only the arbitration or delegation provision. Rather, where a challenge applies “equally” to the whole contract and to an arbitration or dele- gation provision, a court must address that challenge. Rent-A-Center, 561 U. S., at 71. Again, basic principles of contract and consent require that result. Arbitration and delegation agreements are simply contracts, and, normally, if a party says that a contract is invalid, the court must ad- dress that argument before deciding the merits of the con- tract dispute. So too here. “If a party challenges the va- lidity . . . of the precise agreement to arbitrate at issue, the federal court must consider the challenge before ordering compliance with that [arbitration] agreement.” Ibid. (em- phasis added).* Next, Coinbase contends that, as a matter of California law, the Ninth Circuit was wrong to hold that the Offcial Rules' forum selection clause superseded the User Agree- Page Proof Pending Publication ment's delegation provision. That issue is outside the scope of the question presented, and we do not address it. We took this case to decide whether, under the FAA, a court or an arbitrator decides which of the two contractual provisions controls. We decline to consider auxiliary questions about whether the Ninth Circuit properly applied state law.

*Coinbase's argument that respondents failed to challenge the delega- tion provision in the District Court is itself forfeited. Coinbase did not raise that argument before the Ninth Circuit, and the Ninth Circuit did not address it. That argument is also meritless: When opposing Coin- base's motion to compel arbitration in the District Court, respondents pointed out that “courts can refer the question of arbitrability to an arbi- trator only `if a valid [arbitration] agreement exists,' ” and, “since Offcial Rules ¶10 `superseded' the parties' prior arbitration agreements, any prior agreement to arbitrate Sweepstakes-related disputes no longer exists.” 2 App. 451 (alteration in original). Respondents' District Court challenge was “directed specifcally to” the delegation provision. Rent-A-Center, 561 U. S., at 71. Thus, this case is not like Rent-A-Center, where the plaintiff “did [not] even mention the delegation provision.” Id., at 72. 152 COINBASE, INC. v. SUSKI

Gorsuch, J., concurring

Finally, Coinbase contends that our approach will invite chaos by facilitating challenges to delegation clauses. We do not believe that such chaos will follow. In cases where parties have agreed to only one contract, and that contract contains an arbitration clause with a delegation provision, then, absent a successful challenge to the delegation provi- sion, courts must send all arbitrability disputes to arbitra- tion. But, where, as here, parties have agreed to two contracts—one sending arbitrability disputes to arbitration, and the other either explicitly or implicitly sending arbitra- bility disputes to the courts—a court must decide which con- tract governs. To hold otherwise would be to impermissibly “ `elevate [a delegation provision] over other forms of con- tract.' ” Ibid. (quoting Prima Paint Corp. v. Flood & Con- klin Mfg. Co., 388 U. S. 395, 404, n. 12 (1967)). * * * We conclude that a court, not an arbitrator, must decide Page whether theProof Pending parties' frst agreement wasPublication superseded by their second. The Ninth Circuit's judgment is affrmed. It is so ordered. Justice Gorsuch, concurring. Often, parties choose to send disputes arising from their contracts to an arbitrator instead of a court. Ante, at 148; see 9 U. S. C. § 2. Just as often, it seems, parties later wind up disagreeing about whether a particular dispute is subject to that arbitration agreement. Sometimes a court can re- solve their disagreement about the “arbitrability” of a partic- ular dispute. But sometimes not. For parties can agree to send arbitrability questions to an arbitrator too, through what this Court calls a delegation clause. Ante, at 148–149; Henry Schein, Inc. v. Archer & White Sales, Inc., 586 U. S. 63, 65 (2019). What happens when (as in this case) the parties have two contracts, one with a delegation clause, a second without, and Cite as: 602 U. S. 143 (2024) 153

Gorsuch, J., concurring

a dispute later arises? Like everything else in this area, it depends on what the parties have agreed. Ante, at 148. Sometimes, a court may conclude that the parties' agree- ments are best read as leaving for the court the task of re- solving the arbitrability of the dispute at hand. But some- times, the parties' agreements may be best read as vesting that power in an arbitrator. Just imagine a master contract providing that “all disputes arising out of or related to this or future agreements between the parties, including questions concerning whether a dispute should be routed to arbitra- tion, shall be decided by an arbitrator.” Absent some later amendment, a provision like that would seem to require a court to step aside. See ante, at 152. It is not clear to me whether the Ninth Circuit appreciated this point. But nor does that matter. Our decision today recognizes—and stresses—that “[a]rbitration is a matter of contract,” ante, at 145, and parties can “ `agree by contract that an arbitrator, rather than a court, will resolve threshold Page Proof Pending Publication arbitrability questions as well as underlying merits dis- putes,' ” ante, at 148 (quoting Henry Schein, 586 U. S., at 65). Notably, too, the Court does not endorse the reasoning in the Ninth Circuit's opinion, let alone its state contract law analy- sis of the parties' agreements. See ante, at 151. Instead, the Court simply reaffrms well-established principles about the primacy of the parties' agreements when it comes to ar- bitration, ante, at 148, and the Ninth Circuit's “bottom-line conclusion” that a court had to decide whether and to what extent the parties here reached “an agreement” to have an arbitrator resolve the question of arbitrability, ante, at 145, 150. With that understanding, I am pleased to concur. Reporter’s Note

The attached opinion has been revised to refect the usual publication and citation style of the United States Reports. The revised pagination makes available the offcial United States Reports citation in advance of publication. The syllabus has been prepared by the Reporter of Decisions Page Proof Pending Publication for the convenience of the reader and constitutes no part of the opinion of the Court. A list of counsel who argued or fled briefs in this case, and who were members of the bar of this Court at the time this case was argued, has been inserted following the syllabus. Other revisions may include adjustments to formatting, captions, citation form, and any errant punctuation. The following additional edits were made:

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