Plaintiff was a member of ISM Advisors, LLC (the “LLC”), which was formed for the purpose of owning an interest in, and managing, an investment fund in the life insurance new issues market (the “Fund”). Planitiff was permitted to appoint one of two co-CEOs of the LLC, and caused its CEO to resign. Plaintiff did not replace its co-CEO. Defendants initiated arbitration proceedings against plaintiff pursuant to the terms of the LLC’s operating agreement and the Fund’s operating agreement. Plaintiff brought suit to enjoin arbitration proceedings brought by defendants. The Court held that pursuant to Delaware precedent in James & Jackson, LLC v. Willie Gary, LLC, 906 A.2d 76 (Del. 2006) and McLaughlin v. McCann, 942 A.2d 616 (Del. Ch. 2008), when the parties indicate in an agreement to arbitrate “any” disputes “arising under or relating to” the agreement, “so long as the defendants have a colorable argument that their claims are arbitrable, the arbitrator – not this court – must determine the ultimate question of substantive arbitrability.” Pursuant to Willie Gary, the Court also stated that “clear and unmistakable evidence” of the intent of the parties to arbitrate exists when “the contract generally refers all disputes to arbitration” and “the contract refers to a set of rules that would empower arbitrators to decide arbitrability.” Further, following the precedent of Willie Gary, the Court held that matters of procedural arbitrability were also to be decided by an arbitrator. Consequently, the Court dismissed the plaintiff’s complaint without prejudice, holding that it lacked subject matter jurisdiction.
