broad strokes in Corrigan v. Domestic Linen Supply Co., No. 12 C 0575, 2012 WL 2977262, at
*5 (NLD. IIL. July 20, 2012). Corrigan cited Stolt-Nielsen for the proposition that “it is
appropriate for the court to determine whether the parties have agreed to class arbitration,” a
contention that this Court simply concludes is not supported by Stolt-Nielsen.

This Court’s interpretation of Stolt-Nielsen instead follows our colleague’s Judge
Lefkow’s decision in Collier v. Real Time Staffing Services, Inc., in which the court held that
whether an arbitration agreement allows parties to arbitrate class claims is a procedural issue to
be resolved by an arbitrator. No. 11 C 6209, 2012 WL 1204715, at *5 (N.D. Ill. Apr. 11, 2012)
(Lefkow, J.). The Court’s decision is consistent with our colleague Judge Chang’s decision in
State Farm Fire & Casualty Co. v. Pentair, Inc., in which the court referred to an arbitrator the
question of whether claims could be aggregated under the parties’ arbitration agreement. No. 11
C 6077, 2012 WL 3904104, at *3 (N.D. Ill. Sept. 7, 2012) (Chang, J.). Citing Howsam and
Wausau, Judge Chang noted that the interpretation of an arbitration agreement is a question of
procedural arbitrability for the arbitrator to resolve. Jd. The Court finds Pentair’s treatment of
Wausau and Howsam persuasive and in accordance with Seventh Circuit precedent regarding
consolidated arbitration, as well as with other circuits’ holdings on class arbitration. See also
Collier, 2012 WL 1204715, at *4-*5 (examining Stolt-Nielsen, Wausau, and BCBS). Because
the question of whether the Agreement at issue here implicitly permits class arbitration is not a
question of whether the Agreement is valid or whether it covers the parties’ underlying dispute, it
is a question of procedural arbitrability for the arbitrator to decide. See Wausau, 443 F.3d at 576.

I. The parties agreed that an arbitrator should interpret the Agreement.

14



Under the FAA, federal district courts may compel arbitration and stay proceedings when
there is: (1) a written agreement to arbitrate; (2) a dispute within the scope of the arbitration
agreement; and (3) a refusal to comply with the arbitration agreement. Zurich Am. Ins. Co. v.
Watts Indus., Inc. (Zurich I), 417 F.3d 682, 687 (7th Cir. 2005); see also E.E.O.C. v. Waffle
House, Inc., 534 U.S. 279, 289 (2002). Parties may only be compelled to arbitrate issues they
have agreed to arbitrate. Mastrobuono, 514 U.S. at 57. If the Court is satisfied that the parties
agreed to arbitrate, it must promptly compel arbitration. 9 U.S.C. § 4. The party opposing
arbitration bears the burden of establishing why the arbitration provision should not be enforced.
Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 91-92 (2000).

ANALYSIS

The parties do not dispute that the Agreement is enforceable. Nor do the parties dispute
that the types of claims Plaintiff brings fall within the scope of the Agreement. (R. 12, Def.’s
Mot. at 2; R. 20, Pl.’s Resp. at 1.) Rather, the issue is whether the Court should compel Plaintiff
to arbitrate only his individual claims, or whether he may also arbitrate his class claims. (R. 21,
Def.’s Reply at 3; R. 26, Pl.’s Sur-Reply at 1.) Defendant argues that because the Agreement is
silent as to class arbitration, the parties did not agree to arbitrate class claims, and therefore the
Court may only refer Plaintiff’s individual claims to arbitration. (R. 21, Def.’s Reply at 4) (citing
Stolt-Nielsen S.A. v. AnimalFeeds Int'l, 130 S. Ct. 1758, 1775 (2010)). Plaintiff argues that the
Agreement explicitly allows him to arbitrate class claims because it calls for the arbitration of
“every possible claim” arising out of his employment. (R. 26, Pl.’s Sur-Reply at 3.) In the
alternative, Plaintiff argues that the Agreement implicitly authorizes class arbitration by not

explicitly prohibiting it. (/d. at 4-5.)


Dated: December 10, 2012

ENTERED: Caen (<2 PES

Judge Ruben Castillo
United States District Court


determine whether a contract provides that arbitration proceedings should be consolidated.”).
With no clear guidance from either the Supreme Court or the Seventh Circuit on who should
determine the arbitrability of class claims under arbitration agreements, the Court is guided by
Wausau and BCBS.

Although the Seventh Circuit has not directly addressed the question of whether the
arbitrability of class claims is a question for a court or an arbitrator to decide, the Second and
Third Circuits have. Courts of Appeals in both circuits have interpreted Stolt-Nielsen in the
context of parties who submitted the question of whether their arbitration agreements allowed for
class arbitration to the arbitrator and subsequently sought to vacate the arbitrator’s decision that
they did. In Sutter v. Oxford Health Plans LLC, the Third Circuit held that although the relevant
arbitration clause did not refer to class arbitration, it was not “silent” in the Stolt-Nielsen sense.
675 F.3d 215, 217-18 (3d Cir. 2012) (affirming the district court’s denial of the motion to vacate
the arbitrator’s decision), cert. granted, 81 U.S.L.W. 3070 (U.S. Dec. 7, 2012) (No. 12-135).
The court held that the arbitrator’s reliance on the sweeping language of the arbitration clause
supported his finding that the agreement implicitly authorized class arbitration. Id. at 222-24
(“[W]here, as here, the parties’ intent with respect to class arbitration is in question, the breadth
of their arbitration agreement is relevant to the resolution of that question.”); see also Bazzle, 539
USS. at 451-52 (finding that the parties’ dispute about what the arbitration agreement meant fell
within the broad scope indicated by the language in the agreement that “[a]ll disputes, claims, or
controversies arising from or relating to this contract or the relationships which result from this

contract” would be “resolved by binding arbitration”); Fantastic Sams, 683 F.3d at 25-26 (citing

10



Howsam, 537 U.S. at 84-85; Gore v. Alltel Commce’ns, LLC, 666 F.3d 1027, 1032-33 (7th Cir.

2012).

I. Whether the Agreement permits class arbitration is a question of procedural
arbitrability for an arbitrator to decide.

The Supreme Court addressed the question of whether a court or an arbitrator should
determine whether an arbitration agreement allows class arbitration in Green Tree Financial
Corp. v. Bazzle, 539 U.S. at 451, although it produced no controlling majority opinion. A
plurality of the Justices in Bazzle determined that the issue was a question of procedural
arbitrability, and thus concluded that an arbitrator, not a court, should decide whether an
arbitration agreement permits class arbitration. Id. at 452-53. Because there was no majority
opinion, Bazzle left open the question of whether a court or an arbitrator should determine the
arbitrability of class claims. Stolt-Nielsen, 130 S. Ct. at 1771-72.

The question arose again in Stolt-Nielsen S.A. v. AnimalFeeds International, 130 S. Ct.
1758, 1771-72 (2010). The arbitration agreement at issue there was silent as to class claims. The
parties stipulated, however, that the silence in the agreement meant that they had not reached a
consensus as to whether the terms of their arbitration agreement allowed class arbitration, and the
parties agreed to submit the question to the arbitrators. Jd. at 1765-66. The Supreme Court held
that the arbitration panel’s determination that the agreement authorized class arbitration
improperly rested on “its own view of sound policy.” Jd. at 1767-68. According to the Court,

the arbitration panel should instead have identified and applied governing law from the FAA or

either federal maritime or New York state law. Id. at 1768.



The FAA “establishes that, as a matter of federal law, any doubts concerning the scope of
arbitrable issues should be resolved in favor of arbitration.” Moses H. Cone Mem’l Hosp. v.
Mercury Const. Corp., 460 U.S. 1, 24-25 (1983). When the parties have signed an arbitration
agreement, the only questions that are properly decided by a court are threshold questions of
substantive arbitrability—whether the parties agreed to arbitrate a particular issue. Howsam v.
Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (2002). These “gateway disputes” of substantive
arbitrability that a court may resolve include: “1) a dispute regarding whether the parties are
bound by a given arbitration clause; and 2) a disagreement about whether an arbitration clause in
a concededly binding contract applies to a particular type of controversy.” Emp’rs Ins. Co. of
Wausau v. Century Indem. Co., 443 F.3d 573, 576 (7th Cir. 2006) (quoting Howsam, 537 U.S. at
84) (internal quotation marks omitted); accord Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444,
452 (2003) (plurality opinion); see also Fantastic Sams Franchise Corp. v. FSRO Ass’n Ltd., 683
F.3d 18, 25 (1st Cir. 2012) (holding that whether an arbitration agreement permitted associational
arbitration was a question for the arbitrator to resolve because it was not a dispute as to the
validity of the agreement or as to whether the underlying claims were covered by the agreement).
Questions of procedural arbitrability—which include disputes concerning prerequisites and
conditions precedent to arbitration; allegations of waiver, delay, or other similar defenses to
arbitrability; the preclusive effect of state court judgments; and the construction of the contract
language itself—are reserved for an arbitrator. Howsam, 537 U.S. at 84-85; Moses H. Cone, 460
US. at 24-25; Zurich Am. Ins. Co. v. Watts Indus., Inc. (Zurich Il, 466 F.3d 577, 581 (7th Cir.

2006). Therefore, once a court resolves any questions of substantive arbitrability and determines

that the parties agreed to arbitrate the underlying issues, it must compel arbitration. See



In Blue Cross Blue Shield of Massachusetts, Inc. v. BCBS Insurance Co., the Seventh
Circuit reaffirmed its Wausau holding that arbitrators have the discretion to interpret an
arbitration contract and determine whether consolidated arbitration is permitted. 671 F.3d 635,
640 (7th Cir. 2011). Although the BCBS court drew distinctions between consolidated
arbitration and class arbitration, id., prior Seventh Circuit precedent has looked to consolidated
arbitration cases to guide its analysis regarding class arbitration. Champ v. Siegel Trading Co.,
55 F.3d 269, 274-75 (7th Cir. 1995), abrogated on other grounds by Bazzle, 539 U.S. 452 (2003)
(finding “no meaningful basis to distinguish between” class arbitration and consolidated
arbitration for purposes of seeking guidance from other circuits’ decisions regarding consolidated
arbitration).? The Third Circuit has also analogized class arbitration and consolidated arbitration.

Certain Underwriters at Lloyd’s London v. Westchester Fire Ins. Co., 489 F.3d 580, 587-88 (3d
Cir. 2007) (citing Bazzle, a class arbitration case, in support of its decision that arbitrators should
determine whether consolidated arbitration is appropriate); see also 1 Thomas H. Oemke,
Commercial Arbitration § 20:44 (3d ed. 2012) (“As the issue of consolidation in arbitration is
analogous to class arbitration, [Bazzle’s] holding that arbitrators, not courts, decide whether an

agreement provides for class arbitration would control; thus, the arbitrator (not the court) should

3 In Champ v. Siegel Trading Co., the Seventh Circuit held that absent an express
provision for class arbitration in the arbitration agreement, the district court did not have
authority to certify a class for arbitration. 55 F.3d at 277. Bazzle abrogated the holding in
Champ. The decision in Champ rested on the finding “that section 4 of the FAA forbids federal
judges from ordering class arbitration where the parties’ arbitration agreement is silent on the
matter.” Jd. at 275. The Bazzle plurality concluded that the FAA allows an arbitrator to
determine whether an arbitration agreement implicitly prohibits class arbitration, see 539 U.S. at
453, and Justice Stevens’ concurrence stated that nothing in the FAA precludes class arbitration
when the arbitration agreement is silent on the matter, id. at 454-55. Nevertheless, the Seventh
Circuit’s analysis and application of caselaw concerning consolidated arbitration to address
questions concerning class arbitration remains instructive.

9



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
MARK PRICE, individually and on y
behalf of all others similarly situated, )
)
Plaintiffs, y
) No. 12 C 3413

v. )

) Judge Ruben Castillo
NCR CORPORATION, )
)
Defendant. y

MEMORANDUM OPINION AND ORDER

Mark Price (“Plaintiff”) brings this class action against NCR Corporation (“Defendant”)
alleging violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 ef seq.; the
Illinois Minimum Wage Law (“IMWL”), 820 Ill. Comp. Stat. 105/1 et seq.; and the Illinois Wage
Payment and Collection Act (IWPCA”), 820 III. Comp. Stat. 115/1 et seq. (R. 1, Compl.)
Presently before the Court is Defendant’s motion to compel arbitration and stay these
proceedings pursuant to the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 ef seq. (R. 12, Def.’s
Mot.) For the reasons set forth herein, the Court grants Defendant’s motion.!

RELEVANT FACTS

Defendant provides computer products and services throughout the nation, including

Illinois. (R. 1, Compl. 7.) Defendant keeps track of employee wages and hours and maintains

employee compensation policies for all employees. (Jd. { 9.) Plaintiff and putative class

' The Court also grants Plaintiff's first and second motions for leave to supplement. (R.
31; R. 35.) While the Court has taken the supplemental material into consideration, the material
does not affect the Court’s decision.



An arbitrator’s decision on a motion to vacate, such as those in Sutter and Jock, is
reviewed with a higher degree of deference than an initial determination of whether an arbitrator
has the authority to make the decision in the first instance. See Sutter, 675 F.3d at 219-20.
Nonetheless, Sutter and Jock are instructive in their narrow interpretations of Stolt-Nielsen and
the distinctions they draw between contractual “silence” and the lack of express authorization of
class arbitration. Here, unlike in Stolt-Nielsen, the parties genuinely disagree as to whether the
Agreement covers class arbitration. Given this disagreement, the parties’ failure to mention class
arbitration in the Agreement is not “silence” in the Stolt-Nielsen sense. See Sutter, 675 F.3d at
222-23 (holding that because the parties disputed their intent regarding class arbitration, the
arbitrator had authority to order class arbitration “so long as it [stood] on a contractual basis”).
Relying on Stolt-Nielsen, Defendant argues that class arbitration is not permitted unless the
Agreement expressly allows it. (R. 21, Def.’s Reply at 3-4.) Defendant contends that the
Agreement is silent because it does not mention class arbitration. (/d. at 4.) Therefore,
Defendant argues, the Court only has the authority to send Plaintiff's individual claims to
arbitration. (/d.) (citing Stolt-Nielsen, 130 S. Ct. at 1775). Defendant overestimates the support
Stolt-Nielsen provides for its position. “Stolt—Nielsen did not establish a bright line rule that
class arbitration is allowed only under an arbitration agreement that incants ‘class arbitration’ or
otherwise expressly provides for aggregate procedures.” Sutter, 675 F.3d at 222; accord Jock,
646 F.3d at 121 (noting that “the [Stolt-Nielsen] Court declined to hold that an arbitration
agreement must expressly state that the parties agree to class arbitration”); Fantastic Sams, 683
F.3d at 22 (finding that the narrow holding in Stolt-Nielsen did not apply to the issue before it

because the parties in Fantastic Sams failed to stipulate that the agreement’s silence meant that

12



the “sweeping language of the arbitration clauses” to support its decision that the arbitrators
should decide if the agreement authorized associational arbitration).

On December 7, 2012, the Supreme Court granted certiorari in Sutter, but this Court
notes that the Supreme Court only certified the circuit conflict* question concerning the scope of
an arbitrator’s power to authorize class arbitration. There is no clear indication that the Supreme
Court plans to address whether a district court should refer this decision to an arbitrator. In Jock
v, Sterling Jewelers Inc., the Second Circuit held that the arbitrator did not exceed her authority
in relying on state law and the terms of the agreement to determine that an arbitration agreement
that did not explicitly mention class arbitration implicitly authorized it. 646 F.3d 113, 125-27
(2d Cir. 2011) (reversing the district court’s vacatur of the arbitrator’s determination), cert.
denied, 132 S. Ct. 1742 (2012). The court reasoned that “[the employees] implicitly agreed that
they may seek to [arbitrate their disputes] as a class, and [the defendant] is certainly not being
forced to arbitrate with anyone whom it did not require to arbitrate with it.” Jd. at 127 n.2. The
Second Circuit distinguished between the Stolt-Nielsen sense of “silence” and the lack of an
express agreement to arbitrate class claims, holding that “[t]he plaintiffs’ concession that there
was no explicit agreement to permit class arbitration, however, is not the same . . . as stipulating
that the agreement is ‘silent’ on the issue of class arbitration in the sense that ‘silent’ was used by

the Stolt-Nielsen majority.” Id. at 123.

* The petition for certiorari explicitly asked the Supreme Court to resolve the current
conflict between the view held by the Third and Second Circuits in Sutter and Jock v. Sterling
Jewelers Inc., 646 F.3d 113, 125-27 (2d Cir. 2011), cert. denied, 132 S. Ct. 1742 (2012), and the
more narrow view held by the Fifth Circuit in Reed. Petition for Writ of Certiorari at 3-4, Sutter,
675 F.3d 215 (No. 12-135).

11



The Supreme Court later clarified that its narrow holdings in Stolt-Nielsen were: (1) that
the arbitration panel allowed class arbitration for improper reasons; and (2) that the particular
agreement at issue in Stolt-Nielsen could not be interpreted to allow class arbitration.
Concepcion, 131 S. Ct. at 1750 (citing Stolt-Nielsen, 130 S. Ct. at 1773-76). The Stolt-Nielsen
Court stated that it had “no occasion to decide what contractual basis may support a finding that
the parties agreed to authorize class-action arbitration.” 130 S. Ct. at 1776 n.10. It only
reiterated the general rule that “a party may not be compelled under the FAA to submit to class
arbitration unless there is a contractual basis for concluding that the party agreed to do so.” Id. at
1775. The question of whether a court or an arbitrator should determine whether an agreement
authorizes class arbitration remains open at the Supreme Court level. Reed v. Fla. Metro. Univ.,
Inc., 681 F.3d 630, 633-34 (Sth Cir. 2012) (discussing Bazzle and Stolt-Nielsen).

The question also remains open at the Seventh Circuit, which has not addressed the
question of who should decide whether an arbitration agreement permits class arbitration when
the agreement is silent on the issue. Its caselaw addressing consolidated arbitration, however, is
instructive. In Employers Insurance Co. of Wausau v. Century Indemnity Co., the Seventh
Circuit held that “the question of whether an arbitration agreement forbids consolidated
arbitration is a procedural one, which the arbitrator should resolve.” 443 F.3d at 577. Relying on
Howsam, the Seventh Circuit found that the dispute about consolidated arbitration was not a
dispute about substantive arbitrability—the parties agreed that the arbitration clause was valid
and that their underlying dispute was subject to arbitration—but rather about procedural

arbitrability, or “the kind of arbitration proceeding the parties agreed to.” Id. at 578-79 (quoting

Bazzle, 539 U.S. at 453-53) (citing Howsam, 537 U.S. at 85).



in arbitration. (R. 26, Pl.’s Sur-Reply at 1.) Plaintiff argues that the Agreement is broadly
drafted and allows arbitration of class claims, not just his individual claims. (Jd. at 3-4.)
LEGAL STANDARD

The FAA governs questions of arbitrability in both federal and state courts. Jain v. de
Mere, 51 F.3d 686, 688 (7th Cir. 1995). The FAA “declare[s] a national policy favoring
arbitration,” Nitro-Lift Techs., L.L.C. v. Howard, — 8. Ct.—, No. 11-1377, 2012 WL 5895686,
at *2 (Nov. 26, 2012) (quoting Southland Corp. v. Keating, 465 U.S. 1, 10 (1984)), and reflects
“the fundamental principle that arbitration is a matter of contract,” AT&T Mobility, LLC v.
Concepcion, 131 S. Ct. 1740, 1745 (2011) (internal citations and quotation marks omitted). The
FAA provides that an arbitration clause in “a contract evidencing a transaction involving
commerce . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law
or in equity for revocation of any contract.” 9 U.S.C. § 2.2 The purpose of the FAA “is to ensure
that private agreements to arbitrate are enforced according to their terms.” Mastrobuono v.
Shearson Lehman Hutton, Inc., 514 U.S. 52, 53-54 (1995). “[W]Jhen a contract contains an
arbitration clause, a strong presumption in favor of arbitration exists and courts have no choice
but to order arbitration ‘unless it may be said with positive assurance that the arbitration clause is
not susceptible of an interpretation that covers the asserted dispute.” CK Witco Corp. v. Paper
Allied Indus., 272 F.3d 419, 421-22 (7th Cir. 2001) (quoting AT&T Techs., Inc. v. Commc’ns

Workers of Am., 475 U.S. 643, 649 (1986)).

? Employment contracts, with the exception of those involving transportation workers,
are covered by Section 2 of the FAA. Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 113, 119
(2001).



The Court finds support for its determination that the arbitrator should decide whether the
Agreement permits class arbitration within the Agreement itself. Recently, in Reed v. Florida
Metropolitan University, Inc., the Fifth Circuit found that an arbitration agreement that was
executed in 2008 and explicitly adopted the American Arbitration Association (“AAA”)
Commercial Rules had implicitly adopted the Supplementary Rules for Class Arbitrations, which
the AAA enacted in October 2003 in response to Bazzle. 681 F.3d at 633-35 (affirming the
district court’s referral of the issue of class arbitration to the arbitrator). The Fifth Circuit noted
that AAA Supplementary Rule 3 explicitly states that “the arbitrator shall determine as a
threshold matter . .. whether the applicable arbitration clause permits the arbitration to proceed
on behalf of or against a class.” AAA Supp. R. 3 (Oct. 8, 2003); Reed, 681 F.3d at 635. The
Fifth Circuit then concluded that “[t]he parties’ consent to the Supplementary Rules, therefore,
constitute[d] a clear agreement to allow the arbitrator to decide whether the part[ies’] agreement
provide[d] for class arbitration.” Jd. at 635-36; see also Fantastic Sams, 683 F.3d at 25-26
(citing the provision within the arbitration agreement, requiring that any interpretation of the
agreement be settled through arbitration in accordance with AAA Rules, to support its conclusion
that the arbitrators should determine whether the parties agreed to authorize associational
arbitration).

Similarly, the present Agreement specifies that arbitration hearings are to proceed “under
the AAA’s rules.” (R. 14, Def.’s Mem., Ex. B-1, Agreement.) The Agreement was signed by
Plaintiff on December 14, 2007, long after the AAA enacted the Supplementary Rules for Class
Arbitrations in 2003. Therefore, the parties’ agreement to proceed “under the AAA’s rules”

incorporates the Supplementary Rules for Class Arbitrations. Reed, 681 F.3d at 635 (“[C]onsent

15



“{I]n the absence of any express provision excluding a particular grievance from arbitration, . . .
only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail,”
especially when the arbitration clause is broadly inclusive. AT&T Techs., Inc., 475 U.S. at 650
(internal citations and quotation marks omitted). The Agreement here makes no mention of class
arbitration, and the only claims specifically omitted are those relating to worker’s compensation
and ERISA. (R. 14, Def.’s Mem., Ex. B-1, Agreement.) Therefore, whether the agreement
permits class arbitration is a question that “concerns contract interpretation and arbitration
procedures. Arbitrators are well situated to answer that question.” Bazzle, 539 U.S. at 452-53.
Accordingly, the Court finds that the question of whether the parties’ Agreement permits class
arbitration is one of procedural arbitrability and thus refers the question to an arbitrator.
CONCLUSION

For the reasons stated above, Defendant’s motion to compel arbitration and stay the
proceedings (R. 12) is GRANTED. The Court does not indicate whether Plaintiff may arbitrate
his class claims or only his individual claims. The parties are instructed to pursue arbitration and
to exhaust all settlement possibilities for any issues that remain after arbitration. During the stay,
this lawsuit will be administratively closed with full leave to reinstate upon the completion of the

arbitration. The Clerk of the Court is directed to administratively close this action.

17



On May 4, 2012, Plaintiff filed his complaint with the Court in his individual capacity
and on behalf of similarly situated individuals. (R. 1, Compl.) Plaintiff brings three claims
against Defendant. In Counts I and II, brought on behalf of himself and others similarly situated,
Plaintiff alleges that Defendant violated the FLSA and the IMWL by failing to maintain accurate
records and pay overtime wages of one-and-a-half times his hourly wage. (Id. {{ 37-41, 50-52.)
In Count II], Plaintiff alleges that Defendant violated the [WPCA by failing to pay him and
putative class members on a timely basis, taking improper deductions for meal breaks, and
failing to pay overtime wages and other benefits. (/d. {{] 58-62.) Plaintiff requests judgment
against Defendant for willfully violating the FLSA, the IMWL, and the WPCA. (Id. J E.)

On June 13, 2012, Defendant moved to compel arbitration and stay these proceedings.
(R. 12, Def.’s Mot.) Defendant asserts that the Agreement requires Plaintiff to submit to binding
arbitration and eliminates the Court’s subject matter jurisdiction during the pendency of the
arbitration. (R. 14, Def.’s Mem. at 2-3.) On July 12, 2012, Plaintiff filed a response stating that
he “does not oppose Defendant’s motion and agrees to pursue all claims through arbitration.” (R.
20, Pl.’s Resp.) Defendant filed a reply on July 16, 2012, arguing that “Plaintiff's response is
misleading and constitutes an improper end-run around having this Court determine the scope of
arbitration.” (R. 21, Def.’s Reply at 1.) Defendant requests that the Court specifically exclude
Plaintiff's class claims from arbitration, arguing that because the Agreement is silent as to class
arbitration, class arbitration is prohibited. (/d.) On July 24, 2012, Plaintiff filed a sur-reply
requesting that the Court grant Defendant’s motion to compel arbitration and permit the

arbitrator to determine whether Plaintiff may bring his class claims or, alternatively, grant

Defendant’s motion and specify that Plaintiff may pursue both his individual and his class claims



members were employed by Defendant and classified by Defendant as “non-exempt customer
engineers” or “technicians.” (/d. 5-6.) Plaintiff and putative class members had similar job
descriptions, responsibilities, and compensation plans. (/d. J 8.) Plaintiff alleges that Defendant
violated the FLSA, the IMWL, and the IWPCA by failing to: (1) maintain correct records of the
hours he and putative class members worked; and (2) compensate Plaintiff and putative class
members appropriately for scheduled overtime hours, extra hours worked before and after
scheduled shifts, and meal breaks. (/d. {J 11-13.) Plaintiff also alleges that Defendant
consciously acted in this manner in order to reduce its labor and payroll costs. (Id. { 14-15.)
According to Defendant, Plaintiff and Defendant entered into a “Mutual Agreement to
Arbitrate All Employment Related Claims” (“Agreement”) in December 2007. (R. 14, Def.’s
Mem. at 2; R. 14, Def.’s Mem., Ex. B-1, Agreement.) Pursuant to the Agreement, the parties
must submit to binding arbitration to resolve any dispute that cannot be resolved through
“voluntary internal processes.” (R. 14, Def.’s Mem., Ex. B-1, Agreement.) Issues that proceed
to binding arbitration include “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 [Plaintiff's] employment” with Defendant. (/d.) According to the terms of
the Agreement, arbitration hearings “will by conducted by the American Arbitration Association
(the “AAA”) under the AAA’s rules.” (/d.) The Agreement instructs that “[a]ny issue or dispute
concerning the interpretation or enforceability of this Agreement shall be resolved by the
arbitrator.” (/d.) Additionally, the Agreement states that the parties “intend for this Agreement

to be interpreted broadly to allow arbitration of as many disputes as possible.” (Id.)

PROCEDURAL HISTORY



they had not reached an agreement and thus, even though it made no express reference to class
arbitration, the agreement was not “silent” in the Stolt-Nielsen sense). Stolt-Nielsen
acknowledged that arbitration agreements may implicitly authorize class arbitration, even though
class arbitration may not be “infer[red] solely from the fact of the parties’ agreement to
arbitrate.” 130 S. Ct. at 1775. Defendant’s argument that class arbitration is not available
because the Agreement does not explicitly authorize it is not supported by Stolt-Nielsen. The
Court does not read Stolt-Nielsen to require express authorization of class arbitration in the
parties’ agreement.

The Court notes that there is no judicial consensus on the instant question within this
District. In Goodale v. George S. May International Co., the court interpreted Stolt-Nielsen as
“squarely foreclos[ing] the possibility that class claims are arbitrable.” No. 10 C 5733, 2011 WL
1337349, at *2 (N.D. Ill. Apr. 5, 2011). This Court disagrees with Goodale’s reading of Stolt-
Nielsen and finds that the Agreement presently at issue is not “silent” in the same way the
agreement in Stolt-Nielsen was silent. While Goodale determined that the distinction between
“silent” as the Stolt-Nielsen majority meant it and “silent” by way of not expressly authorizing
class arbitration “split the finest of hairs,” id., this Court finds that distinction crucial to
understanding the holding of Stolt-Nielsen.’ See Jock, 646 F.3d at 120 (“The [Stolt-Nielsen]
Court’s interpretation of the parties’ ‘silence’ is key” to the holding.). Relying on Goodale,

another court in the District painted Stolt-Nielsen, and, specifically, the meaning of “silent,” with

> Relying on Goodale, Defendant argues that in a similar situation, “this Court”
determined that it could order only the plaintiffs’ individual claims to arbitration. (R. 21, Def.’s
Reply at 4.) However, contrary to Defendant’s argument, the decisions of other courts in this
District are not binding upon this Court and have no precedential value. Townsel v. DISH
Network L.L.C., 668 F.3d 967, 970 (7th Cir. 2012) (“(D]istrict courts’ decisions are not
authoritative, even in the rendering district (other district judges may disagree).”).

13



to any of the AAA’s substantive rules also constitutes consent to the Supplementary Rules.”).
The Supplementary Rules for Class Arbitrations apply to:

any dispute arising out of an agreement that provides for arbitration pursuant to any

of the rules of the [AAA] where a party submits a dispute to arbitration on behalf of

or against a class or purported class . .. These Supplementary Rules shall also apply

whenever a court refers a matter pleaded as a class action to the AAA for

administration.
AAA Suppl. R. 1(a) (Oct. 8, 2003). Thus, the AAA Supplementary Rules for Class Arbitrations
will govern the arbitration that this Court is required to compel. By adopting AAA
Supplementary Rule 3 in their Agreement, the parties agreed that an arbitrator, and not this
Court, would determine whether the Agreement authorizes class arbitration. Id. This finding is
consistent with basic principles of contract law, which require courts to enforce contracts
according to their terms. Kim v. Carter’s Inc., 598 F.3d 362, 364 (7th Cir. 2010) (holding that
courts are to give contract terms their plain meaning); see also Mastrobuono, 514 U.S. at 53-54;
Concepcion, 131 S. Ct. at 1745-46 (requiring courts to “enforce [arbitration agreements]
according to their terms”); Kiefer Specialty Flooring, Inc. v. Tarkett, Inc., 174 F.3d 907, 909-10
(7th Cir. 1999) (holding that broad arbitration agreements similar to the instant Agreement create
a presumption of arbitrability and should be interpreted broadly).

As the parties do not dispute the validity of the Agreement or its applicability to the
underlying claims, the FAA mandates that this Court enforce the Agreement according to its
terms by promptly staying these proceedings and compelling arbitration. 9 U.S.C. § 4;
Concepcion, 131 S. Ct. at 1752; see also Howsam, 537 U.S. at 83; Wausau, 443 F.3d at 576;

Gore, 666 F.3d at 1032-33. Defendant has failed to meet its burden to establish why the

Agreement should not be enforced according to its terms. See Randolph, 531 U.S. at 91-92.

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