Contract Interpretation

Shannon Zoller sued her former employer, GCA Advisors LLC, for violations of the Equal Pay Act, California’s Fair Pay Act, and the Civil Rights Act of 1871, among other alleged violations. GCA moved to compel arbitration pursuant to the arbitration agreements contained in various documents that Zoller signed when she began her employment, but the district court denied the motion, finding that the “knowing waiver” doctrine applied to Zoller’s statutory claims and that she had not knowingly waived her right to bring her claims in a judicial forum.

The “knowing waiver” doctrine is a “judicially created requirement that narrows the [Federal Arbitration Act’s] scope when other federal statutes explicitly limit the enforcement of arbitration agreements. The standard requires a party to an arbitration agreement to waive knowingly and explicitly their right to judicial determination of their Title VII claims.” The Supreme Court has held that, while not all statutory claims may be appropriate for arbitration, if a party agreed to arbitration, the party will be held to that agreement unless the party could prove a congressional intent to preclude a waiver of judicial remedies for the statutory rights at issue. Such an intent would be found in the statutory text, legislative history, or an “inherent conflict” between arbitration and the statutes’ underlying purposes.

Rather than engage in such an analysis, the district court analogized the claims brought by Zoller to other types of “civil rights claims” to which the knowing waiver doctrine had been held to apply. The Ninth Circuit noted that this analysis was incorrect but nevertheless assumed, without deciding, that the doctrine applied to Zoller’s claims. The court held that the arbitration agreement’s “clear language encompassing employment disputes” and additional evidence of Zoller’s knowing waiver were sufficient to meet the doctrine’s requirements. The contractual agreements “included explicit language regarding employment disputes so that Zoller’s statutory claims [were] clearly encompassed by the [arbitration] agreement.” In addition, Zoller, who was an attorney before becoming an investment banker, was given “full access” to the documents providing for arbitration and an opportunity to consult with legal counsel of her choice before signing. As such, the Ninth Circuit reversed the district court, finding that Zoller had knowingly waived her right to a judicial forum and compelled the parties to arbitrate all of her claims.

Zoller v. GCA Advisors, LLC, No. 20-15595 (9th Cir. Apr. 14, 2021).

Two former Aon employees sued Aon, claiming restrictive covenants in agreements they entered into with the company were void, illegal, and unenforceable. Aon moved to compel arbitration per arbitration provisions in the relevant contracts. The plaintiffs argued that the arbitration provisions were both procedurally and substantively unconscionable, and thus unenforceable. In response, Aon pointed to “delegation clauses” in the provisions, pursuant to which disputes about gateway arbitrability issues are to be decided by an arbitrator. The plaintiffs claimed the delegation clauses were also unconscionable, but the U.S. District Court for the Northern District of California disagreed.

To successfully challenge a delegation clause, the court explained that a party cannot challenge the broader arbitration agreement in which the clause is contained; rather, it must be shown that the specific delegation language is itself invalid based on a general principle of contract law. Here, the court ruled initially that the delegation clauses at issue “clearly and unmistakably” delegated gateway questions to an arbitrator, rejecting the plaintiffs’ effort to argue otherwise. The plaintiffs also claimed the clauses were unconscionable, but the court disagreed. While finding the clauses “[were] — at most — minimally procedurally unconscionable” insofar as they were non-negotiable conditions of employment, the court found the clauses were in no way substantively unconscionable. Thus, applying the “sliding scale” approach, the court held that the clauses were valid, enforceable, and required granting Aon’s motion to compel arbitration.

Norris v. Aon PLC, No. 3:21-cv-00932 (N.D. Cal. Apr. 2, 2021)

The Fourth Circuit Court of Appeals upheld the enforceability of an employment agreement’s waiver of appellate review of an arbitration award. The waiver purported to waive both judicial and appellate review of the arbitrator’s decision. The district court held the waiver of all judicial review of the arbitration award was unenforceable under the Federal Arbitration Act, but nevertheless found the award was enforceable and dismissed the petition to vacate. On appeal, the Fourth Circuit appeared to agree, without deciding, that the complete waiver of all judicial review of an arbitration award was contrary to the FAA but found the waiver of appellate review to be consistent with the FAA’s policy objectives. In so doing, the court noted that arbitration awards are increasingly “reflexive[ly] appealed … leading to arbitration no longer being treated as an alternative to litigation, but as its precursor. The reflexive appeal of an arbitration award is all the more lamentable when the parties have expressly waived that right.” Finding no reason to reject the parties’ contractual agreement to waive appellate review, the court dismissed the appeal. 

Beckley Oncology Associates, Inc. v. Abumasmah, No. 19-1751 (4th Cir. Apr. 8, 2021).

The plaintiff alleged that she was a victim of an illegal predatory loan orchestrated by the defendant’s company. The loan allegedly charged excessive interest but was shielded from U.S. law by tribal sovereign immunity.

The plaintiff filed suit, alleging that the loan was illegal and that the defendant had committed RICO and other consumer protection violations. The loan contract, however, included an arbitration provision, providing that “any dispute … related to this agreement will be resolved through binding arbitration” under tribal law, subject to review in tribal court. The defendant moved to compel arbitration, contending that the plaintiff agreed to a delegation clause to arbitrate issues “concerning the validity, enforceability, or scope” of the arbitration agreement, but the district court denied the defendant’s motion. The court found that the enforceability of the arbitration agreement “has already been litigated, and decided against [the defendant], in a similar case commenced in Vermont.”

The Sixth Circuit reversed, finding that the district court exceeded its authority by resolving the issue of arbitrability and finding that the arbitration agreement was enforceable. The provision delegating the question of arbitrability to an arbitrator was invoked by the defendant but was never specifically challenged by the plaintiff or addressed by the district court. “Only a specific challenge to a delegation clause brings arbitrability issues back within the court’s province.” Accordingly, the “district court should have enforced [the delegation clause] and referred the case to arbitration.”

The Sixth Circuit was not persuaded by the plaintiff’s argument that the issue of arbitrability related to the defendant’s standing, and therefore could be adjudicated in court. In response, the Sixth Circuit noted that a “logical conundrum” exists because courts still must determine the existence of the contract even when a delegation clause exists in the underlying arbitration agreement. The court, however, relied on its prior decision in another case that “signaled” that a “nonsignatory’s ability to enforce an arbitration agreement concerned a question of arbitrability.” The court determined that it would “follow suit and find that whether [the defendant] can enforce the arbitration agreement against [the plaintiff] presents a question of arbitrability that [the] arbitration agreement delegated to an arbitrator.”

 Swiger v. Rosette, No. 19-2470 (6th Cir. Mar. 4, 2021).