11th Cir. lacks jurisdiction to hear lower court's refusal to enjoin arbitration

In ConArt, Inc. v. Hellmuth, Slip Copy 2007 WL 2994001 (11th Cir. Oct. 16, 2007), the 11th Circuit found it was without jurisdiction to hear an appeal of an Alabama federal district court’s order refusing to enjoin arbitration. Under the FAA, an appeal may not be taken from an interlocutory order refusing to enjoin arbitration. 9 U.S.C. 16(b)(4). The Court rejected petitioner’s argument that 28 U.S.C. s 1292(a)(1), which authorizes interlocutory appeals generally of orders "refusing ... injunctions," trumps the FAA. Such an argument has “too much throw weight” according to the Court. Furthermore, the lower court had retained jurisdiction over the issues and, therefore, its order was not a final order subject to review. Pointing out that the order refusing to enjoin arbitration could be reviewed after final judgment on the award was entered following the conclusion of arbitration, the 11th Circuit accepted the possibility that the parties may have to adjudicate twice if the issues are subsequently found to be non-arbitrable. SH