United States District Court, W.D. Washington, Seattle
ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
Barbara Jacobs Rothstein U.S. District Court Judge.
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?
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.
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
We intend for this Agreement to be interpreted broadly to
allow arbitration of as many disputes as possible.
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.)
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.
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.
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, 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.
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,
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.
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
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.
Plaintiff NCR is not entitled to de novo review of