Laryssa Jock, Christy Chadwick, Maria House, Denise Maddox, Lisa McConnell, Gloria Pagan, Judy Reed, Linda Rhodes, Nina Shahmirzadi, Leighla Smith, Marie Wolf, Dawn Souto-Coons, Plaintiffs-Counter-Defendants - Appellants,
v.
Sterling Jewelers Inc., Defendant-Counter-Claimant - Appellee. Jacquelyn Boyle, Lisa Follett, Khristina Rodriguez, Kelly Contreras, Plaintiffs-Counter-Defendants,
Argued: May 7, 2018
Appeal
from the United States District Court for the Southern
District of New York No. 08-cv-2875, Rakoff, Judge.
The
arbitrator certified a class of Sterling Jewelers Inc.
employees that included employees who did not affirmatively
opt in to the arbitration proceeding. The District Court held
that the arbitrator exceeded her authority in purporting to
bind those absent class members to class arbitration because
the arbitrator erred in determining that the arbitration
agreement permits class arbitration. We hold that the
arbitrator was within her authority in purporting to bind the
absent class members to class proceedings because, by signing
the operative arbitration agreement, the absent class
members, no less than the parties, bargained for the
arbitrator's construction of their agreement with respect
to class arbitrability. We therefore reverse the judgment of
the District Court. Because the issue of whether the
arbitrator exceeded her authority in certifying an opt-out,
as opposed to a mandatory, class is not before us in this
appeal, we remand the case to the District Court to reexamine
that issue in the first instance.
Joseph
M. Sellers, Kalpana Kotagal, Shaylyn Cochran, Cohen Milstein
Sellers & Toll PLLC, Washington, DC; Sam J. Smith, Loren
B. Donnell, Burr & Smith LLP, St. Petersburgh, FL; Thomas
A. Warren, Thomas A. Warren Law Offices, P.L., Tallahassee,
FL; Jessica Ring Amunson, Benjamin M. Eidelson, Jenner &
Block LLP, Washington, DC, for
Plaintiffs-Counter-Defendants-Appellants.
Gerald
L. Maatman, Jr., David Bennet Ross, Lorie E. Almon, Daniel B.
Klein, Seyfarth Shaw LLP, New York, NY; Jeffrey S. Klein,
Gregory Silbert, Weil, Gotshal & Manges LLP, New York,
NY, for Defendant-Counter-Claimant-Appellee.
Before: Hall and Carney, Circuit Judges, and Koeltl, District
Judge. [*]
Hall,
Circuit Judge
This is
an appeal from the District Court's January 15, 2018
opinion and order vacating the arbitrator's certification
of a class of Defendant-Counter- Claimant-Appellee's
employees insofar as the class included employees who did not
affirmatively opt in to the specific arbitration proceeding
before the arbitrator. The District Court held that the
arbitrator, Kathleen A. Roberts, exceeded her authority in
purporting to bind those absent class members to class
arbitration because the arbitrator erred in determining that
the arbitration agreement permits class arbitration. We hold
that the arbitrator's determination that the agreement
permits class arbitration binds the absent class members
because, by signing the RESOLVE Agreement, they, no less than
the parties, bargained for the arbitrator's construction
of that agreement with respect to class arbitrability. We
therefore reverse the judgment of the District Court. The
issue of whether the arbitrator exceeded her authority in
certifying an opt-out, as opposed to a mandatory, class is
not before us in this appeal, however. We therefore remand
this case to the District Court to decide that issue in the
first instance after allowing the parties an opportunity to
present their renewed arguments with respect to that issue.
I.
Laryssa
Jock ("Jock") and her
co-Plaintiffs-Counter-Defendants-Appellants (collectively,
"Appellants") are a group of current and former
retail sales employees of Defendant-Counter-Claimant-Appellee
Sterling Jewelers Inc. ("Sterling").[1] Jock filed the
instant suit in 2008, alleging that she and other female
employees were paid less than their male counterparts, on
account of their gender, in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq., and the Equal Pay Act, 29 U.S.C. § 206(d).
All
Sterling employees were required, as a condition of
employment, to sign a "RESOLVE Program" agreement
("RESOLVE Agreement") mandating that they
participate in arbitration. J. App. 129. Under the RESOLVE
Agreement, employees "waiv[e] [their] right to obtain
any legal or equitable relief . . . through any government
agency or court, and . . . also waiv[e] [their] right to
commence any court action. [They] may, however, seek and be
awarded equal remedy through the RESOLVE Program."
Id. The RESOLVE Agreement also provides that
"[t]he Arbitrator shall have the power to award any
types of legal or equitable relief that would be available in
a court of competent jurisdiction[, ]" and that any
claim arising thereunder will be arbitrated "in
accordance with the National Rules for the Resolution of
Employment Disputes of the American Arbitration
Association." Id.
II.
This is
the fourth time this case has come before this Court. See
Jock v. Sterling Jewelers Inc., 646 F.3d 113 (2d Cir.
2011) ("Jock I"); Jock v. Sterling
Jewelers Inc., 703 Fed.Appx. 15 (2d Cir. 2017) (summary
order) ("Jock II"); Jock v. Sterling
Jewelers Inc., 691 Fed.Appx. 665 (2d Cir. 2017) (summary
order) ("Jock III").
In
Jock I, the arbitrator issued an award in favor of
the then-named plaintiffs, construing the RESOLVE Agreement
to permit classwide arbitration. The District Court vacated
that award, concluding that under Stolt-Nielsen S.A. v.
AnimalFeeds Int'l Corp., 559 U.S. 662 (2010),
"the arbitrator's construction of the RESOLVE
agreements as permitting class certification was in excess of
her powers." Jock I, 646 F.3d at 118 (quoting
Jock v. Sterling Jewelers, Inc., 725 F.Supp.2d 444,
448 (S.D.N.Y. 2010)). We reversed, holding that the District
Court impermissibly substituted its own legal analysis for
that of the arbitrator instead of focusing its inquiry on
whether the arbitrator was permitted to reach the question of
class arbitrability that had been submitted to her by the
parties. Id. at 123-24. We explained, furthermore,
that the arbitrator had a colorable justification under the
law to reach the decision she did. We distinguished
Stolt-Nielsen on the ground that the parties in
Stolt-Nielsen stipulated that their arbitration
agreement contained "no agreement" ...