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NCR Corp. v. Goh

United States District Court, W.D. Washington, Seattle

June 4, 2017

CHRIS GOH, Defendant.


          Barbara Jacobs Rothstein U.S. District Court Judge.


         This matter is before the Court on cross-motions for summary judgment, the second in a series of phased dispositive motions intended to resolve the central issue of this case; namely, does Defendant Goh's arbitration agreement with Plaintiff NCR (his former employer) permit him to assert the claims of a class of potential parties in an arbitration proceeding with Plaintiff NCR?

         The first phase of this litigation saw the parties disputing whether the arbitrator had the authority to decide the arbitrability construction issue. The Court granted Defendant Goh's motion for summary judgment in that regard, ruling that the arbitrator did have that authority. (Dkt. No. 55.) The arbitrator subsequently reviewed the arbitration agreement and construed it as permitting an employee to maintain a class action through arbitration. (See Dkt. No. 43-4; “Construction Award.”) Plaintiff NCR seeks to have this Court conduct an independent de novo review of the class arbitrability issue; alternatively, the company seeks to have the Court vacate the arbitrator's ruling. Having reviewed the parties' arguments, the relevant case law and relevant portions of the court record, the Court will deny Plaintiff NCR's motion for either de novo review or vacatur of the arbitrator's ruling. Defendant Goh's motion for summary judgment will be granted and the arbitrator's decision is confirmed; the Court's reasoning follows.


         In August of 2013, Plaintiff NCR Corporation (“NCR”) hired Defendant Chris Goh (“Goh”) as a customer engineer in Seattle, Washington. (Dkt. No. 43-1 at 7.) As a condition of his hiring, Plaintiff NCR and Defendant Goh entered into a “Mutual Agreement to Arbitrate All Employment Related Claims.” (“Agreement;” Dkt. No. 11-1.) The Agreement, which was drafted by Plaintiff NCR, contained the following provisions:

This agreement to arbitrate includes every possible claim (other than workers compensation claims or claims for benefits covered by the Employee Retirement Income Security Act) arising out of or relating in any way to my employment… The arbitration hearing will be conducted by the American Arbitration Association (the “AAA”) under the AAA's rules (except as those rules are modified by this Agreement…)
Any issue or dispute concerning the interpretation or enforceability of this Agreement shall be resolved by the arbitrator…
We intend for this Agreement to be interpreted broadly to allow arbitration of as many disputes as possible.


         In May 2014, Defendant Goh voluntarily terminated his employment with NCR. (Dkt. No. 29 at 14.) On June 25, 2015, he filed a demand for arbitration against NCR in Seattle, Washington, alleging that NCR had failed to provide the disclosure required under the Fair Credit Reporting Act prior to running a background check on employees and applicants. (Dkt. No. 43-2.) Besides his individual claims, Defendant Goh also sought to assert claims on behalf of all other persons on whom NCR had obtained background reports. (Id.) Although Plaintiff NCR initially indicated its objection to an arbitrator's authority to resolve the class arbitration issue (Dkt. No. 11-2 at 1), NCR eventually agreed to the appointment of a provisional arbitrator to resolve “only the issue of whether the agreement authorizes class arbitration.” (Dkt. No. 20 at 55.)

         The AAA announced the selection of Arbitrator James Paulson on December 8, 2015. (Id. at 66.) The parties were given a briefing schedule on the class arbitration issue, with January 29, 2016 established as the filing deadline. (Dkt. No. 11 at 2.) Two days before the deadline, NCR advised Defendant Goh and the AAA that it intended to file an action in this District requesting that the federal court determine whether the Agreement permitted class arbitration (Dkt. No. 11 at 3); on that same day, NCR filed this suit. (Dkt. No. 1.)

         The following day, Plaintiff NCR made an email request to the AAA and Defendant Goh's counsel that administration of the arbitration be suspended pending this Court's resolution of the class arbitration issue. (Dkt. No. 11-6.) The AAA declined to do so on the grounds that its Employment Arbitration Rules do not permit a stay when judicial intervention is sought more than thirty days after the arbitration process begins. (Dkt. No. 11-7.) NCR subsequently sought a temporary restraining order to enjoin Defendant Goh from pursuing a ruling from the arbitrator on the class arbitration issue. (Dkt. No. 9.) On February 4, 2016, NCR's motion was denied on the grounds that it had failed to demonstrate entitlement to the requested relief. (Dkt. No. 24.)

         The clause construction process moved forward and, on March 8, 2016, the arbitrator issued a “Partial Final Clause Construction Award” (Dkt. No. 43-4) in which he ruled that the parties' Agreement authorizes class arbitration. Following the arbitrator's decision, the parties filed cross-motions for summary judgment on whether the arbitrator was authorized to make that decision. (Dkt. Nos. 42, 44.) The presiding judge at the time, The Honorable Marsha J. Pechman[1], ruled that NCR had waived its objection to the arbitrator's authority and granted summary judgment in favor of Defendant Goh on the issue. (Dkt. No. 55.) The matter is now before the Court on the second round of cross-motions for summary judgment, intended to resolve the issue of whether to confirm the arbitrator's ruling that the Agreement permits class arbitration.


         Summary judgment is proper “if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In deciding a summary judgment motion, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 55 (1986).

         The moving party is only required to assert that the party with the burden of proof cannot carry that burden, and “that there is an absence of evidence to support the nonmoving party's case.” Celotex, 477 U.S. at 325. On those issues where he bears the burden of proof, Defendant Goh must present actual evidence to successfully oppose the motion and may not rest on allegations, speculations or opinion. Anderson, 477 U.S. at 248.

         The parties do not dispute the facts. The remaining issues presented by this controversy are strictly legal, therefore this matter is appropriate for resolution by means of summary judgment.


         The cross-motions for summary judgment in this second phase of dispositive briefing present two main arguments: (1) whether, under the standard of review set by the Federal Arbitration Act (“FAA;” see 9 U.S.C. § 10(a)) and the cases examining decisions under that statutory scheme, the arbitrator's ruling that the parties' Agreement contemplated class arbitration should be confirmed or vacated; and (2) whether Plaintiff NCR is entitled to independent de novo review of the class arbitrability issue. The Court will address the issue of de novo review first.

         A. Plaintiff NCR is not entitled to de novo review of ...

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