UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 9:22-CV-81137-Cannon

JOSHUA BAXTER and SANDRA SUMMERS, 

individually and on behalf of all others similarly 

situated,

Plaintiffs,

v.

CROSS COUNTRY HEALTHCARE, INC. and 

TRAVEL STAFF, LLC,

Defendants.

PLAINTIFFS’ RESPONSE IN OPPOSITION

TO DEFENDANTS’ MOTION TO COMPEL ARBITRATION

AND REQUEST FOR JURY TRIAL UNDER THE FEDERAL ARBITRATION ACT

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TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................................... ii

I. INTRODUCTION .............................................................................................................. 1

II. STATEMENT OF FACTS ................................................................................................. 2

III. THE ARBITRATION AGREEMENT DOES NOT COVER PLAINTIFF BAXTER’S 

CLAIMS ............................................................................................................................. 5

A. The arbitration agreement does not apply to Plaintiff Baxter’s third

employment with Cross Country. ........................................................................... 6

1. Plaintiff Baxter’s first assignment in California did not require

execution of any arbitration agreement....................................................... 6

2. Plaintiff Baxter’s second assignment in Texas included an arbitration 

agreement.................................................................................................... 7

3. Plaintiff Baxter did not execute an arbitration agreement in connection 

with his third assignment for Cross Country in Florida, which is the 

assignment at issue in this litigation. .......................................................... 8

B. Cross Country’s form contract shows that the arbitration agreement

is assignment specific. ............................................................................................ 9

IV. The ARBITRATION AGREEMENTS ARE VOID AND UNENFORCEABLE 

BECAUSE THERE WAS NO MEETING OF THE MINDS ON THEIR TERMS ........ 10

A. While harboring an undisclosed intention to breach its contractual pay

obligations to Plaintiffs, Cross Country asks them to sign away their

rights to take collective action in a public forum.................................................. 11

B. The “agreements” to arbitrate where not validly formed contracts, as there

was no meeting of the minds on their terms. ........................................................ 13

V. THE ARBITRATION AGREEMENT AND ITS DELEGATION PROVISION ARE 

VOID AND UNENFORCEABLE BECAUSE THEY WERE FRAUDULENTLY 

INDUCED......................................................................................................................... 17

A. This Court must decide Plaintiffs’ claims that the arbitration agreements

and their delegation provisions were fraudulently induced. ................................. 18

B. Cross Country fraudulently induced Plaintiffs to sign the “agreements” to 

arbitrate. ................................................................................................................ 18

C. At a minimum, Plaintiffs are entitled to discovery and a jury trial on the

validity of the “agreements” to arbitrate under the Federal Arbitration Act. ....... 23

VI. CONCLUSION................................................................................................................. 24

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TABLE OF AUTHORITIES

Cases

Armendariz v. Found. Health Psychcare Servs., Inc.,

24 Cal.4th 83 (Cal. 2000).................................................................................................... 11, 21

AT&T Mobility LLC v. Concepcion,

563 U.S. 333 (2011).................................................................................................................. 11

Attix v. Carrington Mortgage Servs.,

35 F.4th 1284 (11th Cir. 2022) ........................................................................................... 11, 18

Bazemore v. Jefferson Capital Sys., LLC,

827 F.3d 1325 (11th Cir. 2016) ......................................................................................... passim

Buckeye Check Cashing v. Cardegna,

546 U.S. 440 (2006)............................................................................................................ 17, 18

Burch v. P.J. Cheese, Inc.,

861 F.3d 1338 (11th Cir. 2017) ................................................................................................ 24

Business Specialists, Inc. v. Land & Sea Petroleum, Inc.,

25 So.3d 693 (Fla. 4th DCA 2010)........................................................................................... 14

Butler v. Yusem,

44 So.3d 102 (Fla. 2010)........................................................................................................... 19

Dahdouh v. Rd. Runner Moving & Storage Inc.,

No. 20-CV-61936-RAR, 2020 WL 7481546 (S.D. Fla. Dec. 3, 2020) .................................... 24

Dahdouh v. Rd. Runner Moving & Storage Inc.,

No. 20-CV-61936-RAR, 2020 WL 7480817 (S.D. Fla. Dec. 18, 2020) .................................. 24

Dasher v. RBC Bank (USA),

745 F.3d 1111 (11th Cir. 2014) ................................................................................................ 13

Granite Rock Co. v. Int’l Bhd. of Teamsters,

561 U.S. 287 (2010).................................................................................................................. 13

HTP, Ltd. v. Lineas Aereas Costarricenses, S.A.,

685 So. 2d 1238 (Fla. 1996)...................................................................................................... 23

In re Annicott Excellence, LLC,

259 B.R. 782 (M.D. Fla. 2001)................................................................................................. 16

IT Strategies Group, L.L.C. v. Allday Consulting Group, L.L.C.,

975 F.Supp.2d 1267 (S.D. Fla. 2013) ....................................................................................... 14

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Jenkins v. First Am. Cash Advance of Georgia, LLC,

400 F.3d 868 (11th Cir. 2005) .................................................................................................. 18

Jimenez v. ViaCord, LLC,

No. 21-61805, 2022 WL 4271337 (S.D. Fla. Sept. 15, 2022).................................................. 10

Johnson v. Davis,

480 So.2d 625 (Fla. 1985)................................................................................................... 19, 22

JPay, Inc. v. Kobel,

904 F.3d 923 (11th Cir. 2018) .................................................................................................. 18

Kantner v. Boutin,

624 So. 2d 779 (Fla. 4th DCA 1993).......................................................................................... 6

Kardonick v. Citigroup, Inc.,

No. 10-23023, 2012 WL 3594359 (S.D. Fla. Aug. 12, 2012) .................................................. 24

Knapke v. PeopleConnect, Inc.,

38 F.4th 824 (9th Cir. 2022) ..................................................................................................... 24

Linafelt v. Bev., Inc.,

662 So.2d 986 (Fla. 1st DCA 1995) ......................................................................................... 16

Martin v. Jack Yanks Construction Co.,

650 So.2d 120 (Fla. 3d. DCA 1995)......................................................................................... 16

Masias-Pena v. Auto Wax of South Florida, Inc.,

No. 19-cv-24559, 2020 WL 874262 (S.D. Fla. Feb. 12, 2020)................................................ 23

Mejia v. Jurich,

781 So.2d 1175 (Fla. 3d. DCA 2001)....................................................................................... 20

Muller v. Stromberg Carlson Corp.,

427 So.2d 266 (Fla. 2d. DCA 1983)......................................................................................... 16

Prieto v. Smook, Inc.,

97 So.3d 916 (Fla. 4th DCA 2012)........................................................................................... 19

Prima Paint Corp. v. Flood & Conklin Mfg. Co.,

388 U.S. 395 (1967).................................................................................................................. 18

QBE Ins. Corp. v. Chalfonte Condominium Apartment Ass’n Inc.,

94 So.3d 541 (Fla. 2012)........................................................................................................... 20

Ramel v. Chasebrook Const. Co.,

135 So. 2d 876 (Fla. 2d. DCA 1961)........................................................................................ 21

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Regency Group, Inc. v. McDaniels,

647 So.2d 192 (Fla. 1st DCA 1994) ........................................................................................... 5

Rent-A-Center, West, Inc. v. Jackson,

561 U.S. 63 (2010).................................................................................................................... 18

Seaboard Coast Line R.R. v. Trailer Train Co.,

690 F.2d 1343 (11th Cir.1982) ................................................................................................... 5

Seifert v. U.S. Home Corp.,

750 So. 2d 633 (Fla. 1999).......................................................................................................... 5

TransPetrol, Ltd., v. Radulovic,

764 So. 2d 878 (Fla. 4th DCA 2000)........................................................................................ 21

Woods v. On Baldwin Pond, LLC,

634 F. App’x 296 (11th Cir. 2015) ..................................................................................... 19, 22

Statutes

9 U.S.C. § 4................................................................................................................................... 24

Rules

Fed. R. Civ. P. 56.................................................................................................................... 17, 23

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I. INTRODUCTION

Cross Country’s motion should be denied for three reasons. First, as to Plaintiff Baxter, the 

proffered arbitration agreement does not apply to his claims. Indeed, Plaintiff Baxter entered into 

three separate and distinct fixed-term employment contracts with Cross Country. Each contract 

related to a specific travel assignment and contained its own set of materials, terms, and conditions. 

The arbitration agreement proffered by Cross Country relates to Plaintiff Baxter’s second fixedterm employment, which is not at issue in this case. Plaintiff Baxter did not execute an arbitration 

agreement in connection with his third travel assignment, which forms the basis of this lawsuit.

Second, the arbitration agreements are void for lack of mutual assent.

1 At the time Cross 

Country required Plaintiffs to sign the proffered standalone agreements to arbitrate all claims 

arising out of their employment with the company, it had not yet made them a written offer of 

employment. Absent a definitive agreement—or even offer—as to the terms of employment, the 

parties could not have understood the scope of an agreement to arbitrate certain claims arising out 

of that not-yet-defined employment, nor could they have assessed the sufficiency of the 

consideration offered. Because there was no “meeting of the minds” as to the essential terms of 

the arbitration agreement—including its delegation provision—a valid agreement was not formed. 

Finally, the arbitration agreements are unenforceable because they were induced by fraud. 

Plaintiffs were asked to sign a standalone arbitration agreement before they entered into 

employment contracts for their at-issue assignments. At the time Cross Country asked Plaintiffs to 

agree to arbitration, Cross Country fraudulently concealed the fact that it did not intend to honor 

their subsequent employment contracts or pay the compensation the parties agreed upon—as was 

1 The second and third arguments only apply to Plaintiff Baxter if the Court determines that the 

proffered arbitration agreement applies to his claims, an application Plaintiffs vigorously contest.

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Cross Country’s pattern and practice. As Plaintiffs attest, they signed these arbitration agreements

with the understanding that Cross Country would, in good faith, attempt to honor any subsequent

employment contracts. Had Cross Country disclosed its intention to change their pay rates midcontract—thus making a dispute arising out of that employment a near certainty—Plaintiffs would 

not have accepted an arbitration process for their fixed-term employment with Cross Country that 

permitted Cross Country to shield its improper practices from public view by prohibiting 

employees from aggregating claims and restricting Plaintiffs’ right of access to a public, judicial 

forum, including their right to have a court determine threshold questions of arbitrability.

For these reasons, Plaintiffs urge the Court to deny the Motion outright. If, however, the 

Court declines to outright deny the Motion, Plaintiffs have at the very least raised genuine issues 

of material fact as to the formation of the arbitration agreements, which preclude granting the 

Motion. In circumstances like this, Section 4 of the Federal Arbitration Act requires the Court to 

proceed to a jury trial on the issue of contract formation and enforceability. Thus, if at this stage 

the Court decides that it cannot deny Cross Country’s motion in full, Plaintiffs respectfully request 

limited arbitration-related discovery and a jury trial on the issue of contract formation.

II. STATEMENT OF FACTS

Travel nurses serve a valuable role in our country’s healthcare system. When a hospital is 

short-staffed and in need of assistance to provide quality healthcare, particularly when there is a 

shortage of skilled healthcare workers in their community, they use a staffing agency to hire a 

travel nurse for a short-term assignment. See Doc. 11, First Amended Complaint (“Compl.”), ¶ 1. 

Generally, the hospital is willing to pay a higher hourly rate knowing the assistance will only be 

temporary and the staffing agency is responsible for providing employment benefits. The all-in 

rate the hospital is willing to pay is called the “bill rate.” The staffing agency working with the 

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hospital takes its cut and then advertises the amount it is willing to pay to a travel nurse in exchange 

for short, fixed-term employment. Id., ¶ 15.

Travel nursing is a major commitment. To accept a travel assignment, many nurses must 

give up their current employment, move to the location of the facility (oftentimes out-of-state), 

secure short-term housing, and incur other travel and housing related costs at their own expense. 

Id., ¶¶ 18, 21, 28. As such, accepting a travel assignment can take weeks or months of preparation. 

Among other things, it may require filling out forms, securing licensing, passing a physical, getting 

vaccinations, taking drug tests, satisfying continuing education requirements, and completing 

training modules. See Exhibit 1, Declaration of Joshua Baxter (“Baxter Decl.”), at ¶¶ 2–3, 6; 

Exhibit 2, Declaration of Sandra Summers (“Summers Decl.”), at ¶ 3.

Cross Country operates in the healthcare staffing space. It describes itself as “a true market 

leader” of healthcare staffing agencies that is “dedicated to recruiting and placing highly qualified 

healthcare professionals in virtually every specialty and area of expertise.” Compl., ¶ 14. Plaintiffs 

Sandra Summers and Joshua Baxter are both travel nurses and former employees of Cross Country. 

Cross Country offered each of them short, fixed-term employment in connection with accepting 

an out-of-state travel assignment. Id., ¶¶ 19, 26. 

For Plaintiff Baxter, Cross Country offered a 13-week assignment at a hospital in 

Gainesville, Florida that would pay him $102.78 per hour for a minimum of 36 scheduled hours 

per week, with an overtime rate of $187.31 per hour. The job required him to travel to Florida, 

secure short-term housing, and forego other employment opportunities. Id., ¶¶ 20, 21.

For Plaintiff Summers, Cross Country offered a 13-week assignment at a hospital in 

Walnut Creek, California that would pay her $76.42 per hour for a minimum of 36 scheduled hours 

per week, with an overtime rate of $114.53 per hour. The job required her to travel from Baltimore, 

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Maryland to California, secure short-term housing, and forego other employment opportunities.

Id., ¶¶ 27, 28.

About five days into his assignment, Cross Country informed Plaintiff Baxter that it was 

changing the terms of their agreement. Apparently under the auspices of being an “at will”

employee, Cross Country demanded that Plaintiff Baxter accept a 20% pay cut or otherwise face 

immediate termination. Id., ¶ 23. Having already spent substantial time and money securing the 

assignment and taking the steps necessary to ensure compliance with his obligations under the 

agreement, and unable to find comparable employment in such a short period of time, Plaintiff 

Baxter had no choice but to continue working the assignment at the lower rate. Id., ¶ 24.

Plaintiff Summers suffered a similar fate. About one month into her California assignment, 

Cross Country made Plaintiff Summers a “take-it-or-leave-it” demand to accept a 22% pay 

reduction or be terminated. Id., ¶ 30. Like Plaintiff Baxter, it was not economically feasible for 

Plaintiff Summers to walk away from the assignment after picking up and moving across the 

country, incurring expenses and obligations along the way.2Id., ¶ 31.

Unfortunately, Plaintiffs Baxter and Summers are not the only victims of Cross Country’s

bait-and-switch. Hundreds, if not thousands, of traveling nurses and other healthcare workers 

employed by Cross Country have reported experiencing similar “take-it-or- leave it” pay cuts in 

the middle of their fixed-term contracts. Id., ¶ 33; Summers Decl. ¶ 5. Plaintiffs filed suit seeking 

to put an end to these predatory practices, asserting 11 causes of action against Cross Country and 

2 Plaintiffs also assert that Cross Country is violating the Fair Labor Standards Act and various 

state wage payment laws by underpaying its travel employees for overtime hours work. Plaintiffs 

allege that Cross Country miscalculated their regular rate of pay by failing to account for stipends 

and allowances that function as a form of compensation but are not calculated as such. Id., ¶¶ 4, 

37–57.

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seeking recovery for the pay losses experienced by Plaintiffs and other similarly situated 

employees. Compl., ¶¶ 59-138.

III. THE ARBITRATION AGREEMENT DOES NOT COVER PLAINTIFF 

BAXTER’S CLAIMS

Cross Country’s motion insists that the arbitration agreements “clearly cover all claims.”

Doc. 21 at 9. But to reach this conclusion, Cross Country’s motion omits the key facts establishing 

that the arbitration agreement does not apply to Plaintiff Baxter’s claims. “[T]he determination of 

whether an arbitration clause requires arbitration of a particular dispute necessarily ‘rests on the 

intent of the parties.’” Seifert v. U.S. Home Corp., 750 So. 2d 633, 636 (Fla. 1999) (quoting 

Seaboard Coast Line R.R. v. Trailer Train Co., 690 F.2d 1343, 1348 (11th Cir.1982)), and citing 

Regency Group, Inc. v. McDaniels, 647 So.2d 192, 193 (Fla. 1st DCA 1994) (“The agreement of 

the parties determines the issues subject to arbitration.”)). “A natural corollary of this rule is that 

no party may be forced to submit a dispute to arbitration that the party did not intend and agree to 

arbitrate.” Seifert, 750 So. 2d at 636. “[T]he determination of whether a particular claim must be 

submitted to arbitration necessarily depends on the existence of some nexus between the dispute 

and the contract containing the arbitration clause.” Id. at 638.

Cross Country’s motion incorrectly suggests, among other things, that Plaintiff Baxter only 

“worked in Florida,” Doc. 21 at 2, and that he worked as an employee for Cross Country 

continuously under one employment contract. See generally Doc. 21. In fact, as detailed herein, 

Plaintiff Baxter entered into three separate and distinct fixed-term employment contracts with 

Cross Country that each contained their own terms and conditions. The proffered arbitration 

agreement applied only to Plaintiff Baxter’s second assignment with Cross Country, which took 

place in Texas and ended in July 2021. Plaintiff Baxter did not sign an arbitration agreement 

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relating to his subsequent travel assignment in Florida that givesrise to this dispute. For this reason, 

as to Plaintiff Baxter, the Motion should be denied.

A. The arbitration agreement does not apply to Plaintiff Baxter’s third 

employment with Cross Country.

1. Plaintiff Baxter’s first assignment in California did not require 

execution of any arbitration agreement.

On January 15, 2021, Plaintiff Baxter entered into his first fixed-term employment contract 

with Cross Country for an 8-week travel assignment at PIH Health Hospital in Whittier, California 

from January 25, 2021 to March 20, 2021.3See Baxter Decl. ¶ 2, Ex. A. For purposes of this 

assignment, Plaintiff Baxter was required to execute a contract that included the “terms and 

conditions” stated in it, as well as the “terms and conditions . . . contained in the Cross Country 

Nurses Employment Terms and Conditions Booklet.”

4

See Baxter Decl. ¶ 2, Ex. A. This contract 

included no reference to or incorporation by reference of any arbitration agreement5; however, it 

did require completion of “required documentation” to perform the assignment, which included 

various tests, tasks, and forms (e.g., licensing, meal waiver form, etc.). See Baxter Decl. ¶ 2. 

3 Cross Country’s motion neither attached this contract nor mentioned any of its terms. Indeed, the 

Motion referenced only Plaintiffs’ purported arbitration agreements, ignoring each of their 

contracts and the terms in them.

4 Cross Country never provided the Booklet to Plaintiff Baxter for any of his assignments, despite 

the fact each of Plaintiff Baxter’s contracts expressly reference the Booklet. See Baxter Decl. ¶¶ 

2, 3, 6. There is no indication that the Booklet includes or references the arbitration agreement.

Cross Country’s motion does not address this.

5

“[T]he doctrine [of incorporation by reference] requires that there must be some expression in 

the incorporating document (as here, [this or any of Plaintiff Baxter’s separate employment 

contracts]) of an intention to be bound by the collateral document (as here, the [arbitration] 

agreement). A mere reference to another document is not sufficient to incorporate that other 

document into a contract, particularly where the incorporating document makes no specific 

reference that it is ‘subject to’ the collateral document.” Kantner v. Boutin, 624 So. 2d 779, 781 

(Fla. 4th DCA 1993).

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Plaintiff Baxter did not complete an arbitration agreement in connection with this assignment. See

Baxter Decl. ¶ 2, Ex. B (email from Cross Country).

This contract, including these documents—which did not include an arbitration 

agreement—constituted the terms and conditions of Plaintiff Baxter’s first employment with Cross 

Country, which ended on March 20, 2021.

2. Plaintiff Baxter’s second assignment in Texas included an arbitration 

agreement.

On March 17, 2021, as his first assignment was ending, Plaintiff Baxter entered into a 

second fixed-term employment contract with Cross Country for a 13-week travel assignment at 

University Medical Center in El Paso, Texas starting April 5, 2021 and ending July 5, 2021. See

Baxter Decl. ¶ 3, Ex. C. Cross Country’s motion again virtually ignores this assignment, giving it 

merely a passing reference in a parenthetical stating, “(and other) assignments.” Doc. 21 at 3. But 

this assignment is important to understanding the limited application of the arbitration agreement. 

This contract, like the contract for his first assignment, also included the “terms and 

conditions” stated in it, as well as the “terms and conditions . . . contained in the Cross Country 

Nurses Employment Terms and Conditions Booklet.” See Baxter Decl. ¶ 3, Ex. C. And this

contract also required completion of “required documentation” to perform the assignment, but—

unlike the contract for the first assignment—this contract required completion of an arbitration 

agreement (along with other documents including licensing, fit test, drug test, and a background 

check). See Baxter Decl. ¶ 3, Ex. D (email from Cross Country).

This contract, including these documents—which included an arbitration agreement—

constituted the terms and conditions of Plaintiff Baxter’s second employment with Cross Country, 

which ended around July 5, 2021. Following completion of this assignment, Plaintiff Baxter 

accepted employment with another employer—not Cross Country. See Baxter Decl. ¶ 5.

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3. Plaintiff Baxter did not execute an arbitration agreement in connection 

with his third assignment for Cross Country in Florida, which is the 

assignment at issue in this litigation.

Following his time away from Cross Country, in August 2021, Plaintiff Baxter entered into 

his third fixed-term employment contract with Cross Country for a 13-week travel assignment at 

UF Health Shands Hospital in Gainesville, Florida. See Baxter Decl. ¶ 6, Ex. E; see also Baxter 

Decl. ¶ 7, Exs. F–H. The initial term was from August 30, 2021 to November 27, 2021, which was 

subsequently extended by the parties to July 9, 2022. See Baxter Decl. ¶ 6, Ex. E; see also Baxter 

Decl. ¶ 7, Exs. F–H. Cross Country’s motion misleadingly suggests that the arbitration agreement 

Plaintiff Baxter signed for his Texas assignment on March 25, 2021 applies to his later assignment 

in Florida. Doc. 21 at 3. Not so. At no point did Plaintiff Baxter sign any arbitration agreement 

relating to either his first assignment in California or his third assignment (including extensions)—

which is the assignment at issue in this litigation—in Florida. Baxter Decl. ¶ 7.

Like the contracts for his first and second assignments, this contract also included the 

“terms and conditions” stated in it, as well as the “terms and conditions . . . contained in the Cross 

Country Nurses Employment Terms and Conditions Booklet.” See Baxter Decl. ¶ 6, Ex. E. And it 

also required completion of “required documentation” to perform the assignment. But—unlike for 

his second assignment—the onboarding documents for this assignment did not include any

arbitration agreement. See Baxter Decl. ¶ 6. Nor did this contract include any reference or 

incorporation by reference of the previously executed arbitration agreement.6 As a result, this

contract did not include an agreement to arbitrate claims arising from it.

6

See above footnote 5.

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B. Cross Country’s form contract shows that the arbitration agreement is 

assignment specific.

Cross Country’s motion fails to acknowledge that the company enters into separate 

employment contracts for each assignment, that each contract constitutes a separate employment

relationship, and that each includes its own terms and conditions, including certain required 

documentation (see above Section III.A.). If the traveler later contracts to accept a new 

assignment, Cross Country requires a new contract for each separately entered, numbered, and 

documented assignment. The terms of previous employment agreements do not survive.

To be sure, Cross Country itself treats each assignment as a separate employment. For 

example, Cross Country enters into a separate employment contract for each assignment, which 

includes an option to enroll in certain benefits like 401K and health insurance that only last until 

the end of the assignment. See Baxter Decl. ¶ 8; Summers Decl. ¶ 6. Cross Country itself refers to

the employment as “temporary,” using terms such as “temporary placement” (Doc. 21 at 2), 

“temporary staffing contract” (Doc. 21 at 3), “temporary travel nurse” (Doc. 21 at 3), “temporary 

assignment” (Doc. 21 at 3–4), or “temporary assignments” (Doc. 21 at 4, 6, 8). This nomenclature 

supports the individual, fixed-term nature of each assignment. Cross Country also numbers each 

assignment individually, showing again that these are separate, independent, and non-consecutive 

employment relationships (Plaintiff Baxter’s employment numbers were 45683, 51294, and 

68620). See Baxter Decl. ¶¶ 2–3, 6, Exs. A, C, E; see also Summers Decl. ¶ 3. So, while Cross 

Country insists that the arbitration agreement covers all claims “arising out of or in any way related 

to [Plaintiff Baxter’s] employment,” Doc. 21 at 4, it fails to identify the correct employment.

Simply put, each of Plaintiff Baxter’s assignments in California, Texas, and Florida were 

separate employment relationships governed by separate employment contracts comprised of

different terms and conditions—only one of which included an arbitration agreement. Cross 

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Country does not address this fact and, instead, argues implicitly and inaccurately that the 

arbitration agreement he signed in connection with his second assignment covers every assignment 

forever into the future. But neither the facts nor the language of the arbitration agreement supports 

this position. As to the scope of its application, the arbitration agreement merely states (in relevant 

part) that “binding arbitration shall be the exclusive means of resolving all claims between them, 

whether or not arising out of or in any way related to Employee’s employment with Company or 

the termination thereof . . . .” Doc 21-2, at 2. Notably, there is no language broadening employment 

to future or other potential employments or providing for application to multiple assignments, nor 

can it be reasonably interpreted to mean this given the facts—including Cross Country’s own 

treatment of employment by labeling each employment contract “temporary.”

As shown above, Cross Country only required Plaintiff Baxter to sign an arbitration 

agreement as part of required documentation for his second assignment, which is not at issue in 

this litigation. As a result, Plaintiff Baxter’s claims against Cross Country are not subject to 

arbitration and, therefore, the Motion should be denied as to him.

IV. THE ARBITRATION AGREEMENTS ARE VOID AND UNENFORCEABLE 

BECAUSE THERE WAS NO MEETING OF THE MINDS ON THEIR TERMS

It is “the party moving to compel arbitration”—here, Cross Country—that “bears the 

burden of proving” that an arbitration contract “is a valid and enforceable agreement.” Jimenez v. 

ViaCord, LLC, No. 21-61805, 2022 WL 4271337, at *2 (S.D. Fla. Sept. 15, 2022) (citing Bazemore 

v. Jefferson Capital Sys., LLC, 827 F.3d 1325, 1330 (11th Cir. 2016)). And before enforcing a 

purported agreement to arbitrate a dispute, Section 2 of the Federal Arbitration Act (the “FAA”) 

requires a court to determine whether “there are any ‘grounds as exist at law or in equity for the 

revocation of any contract that ‘invalidates the arbitration agreement or permits it to be declared 

unenforceable.’” Attix v. Carrington Mortgage Servs., 35 F.4th 1284, 1294 (11th Cir. 2022) (citing 

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AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011)) (cleaned up). Two such grounds 

exist here: the “agreements” to arbitrate were void because there was no meeting of the minds on 

their terms, and they are voidable because they were fraudulently induced.

A. While harboring an undisclosed intention to breach its contractual pay 

obligations to Plaintiffs, Cross Country asks them to sign away their rights to 

take collective action in a public forum.

“[A]greements to arbitrate are typically nested within the parties’ larger contract, which 

may involve employment, goods or services, insurance, or another type of transaction.” Attix, 35 

F.4th at 1295. That “typical” arrangement, however, is not how Cross Country proceeded in 

seeking to secure consent to arbitrate from the Plaintiffs. Rather, prior to even making the at-issue 

written offers of employment to Plaintiffs, Cross Country asked them to sign standalone 

agreements to arbitrate “all claims between them, whether or not arising out of or in any way 

related to Employee’s employment” with the company. Doc. 21-1, at 2; Doc. 21-2, at 2.7 Further, 

Cross Country asked Plaintiffs—again, before even identifying the consideration therefore or 

making them a written offer of employment—to agree that “[f]inal and binding arbitration . . . shall 

be the exclusive remedy” for resolving their covered claims against the company. Doc. 21-1, at 2; 

Doc. 21-2, at 2; see also Armendariz v. Found. Health Psychcare Servs., Inc., 24 Cal.4th 83, 115 

(Cal. 2000) (“Moreover, in the case of preemployment arbitration contracts, the economic pressure 

7 Plaintiff Summers signed Cross Country’s arbitration agreement on March 6, 2022. Doc. 21-2, 

at 4. This was nearly two weeks before her revised written offer of employment from Cross 

Country, which Plaintiff Summers both received and executed on March 23, 2022. See Compl. ¶¶ 

26-28. As to Plaintiff Baxter, and as explained in detail above (see above Section III), the record 

demonstrates that the only arbitration agreement that he signed was on March 25, 2021, which was 

nearly one year before he signed the at-issue employment contract with Cross Country for the 

Florida assignment on March 11, 2022. Doc. 21-1, at 4; Compl., ¶¶ 19-21. Therefore, this Court 

need only reach this argument as to Plaintiff Baxter if it concludes that the arbitration agreement

he signed in connection with his second assignment in Texas applies to his third assignment, in 

Florida. 

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exerted by employers on all but the most sought-after employees may be particularly acute, for the 

arbitration agreement stands between the employee and necessary employment.”).

In addition to requiring binding arbitration of any covered dispute, 8 Cross Country’s thenproposed arbitration agreement imposed significant limits on how Plaintiffs could seek redress 

against Cross Country. First, it required them to waive their right to a “trial by jury or judge,” along 

with “the right to bring, maintain, participate in, or receive money from, any class, collective, or 

representative proceeding, whether in arbitration or otherwise.” Doc. 21-1, at 2; Doc. 21-2, at 2. 

Further, two provisions of the Agreement would act in concert to entirely shield a covered claim 

from public view. The first is the provision that seeks to delegate to the arbitrator “exclusive 

authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this 

Agreement” (the “delegation provision”). Doc. 21-1, at 2; Doc. 21-2, at 2. This provision, if validly 

entered, would deprive a court of the jurisdiction to consider even threshold issues regarding the 

validity of the Arbitration Agreement. The second is a provision requiring that any mediation or 

arbitration be treated as “confidential.” Doc. 21-1, at 3; Doc. 21-2, at 3.

While the terms of their employments were not yet set, in considering Cross Country’s 

proposed arbitration agreement, the Plaintiffs believed that Cross Country intended, in good faith, 

to honor its obligations under any employment agreement they subsequently entered. See Baxter 

8 Covered claims include: “any claim (except a claim that by law is non-arbitrable or that is 

specifically exempted . . . below) now existing or arising in the future, including but not limited to 

a claim for: breach of contract; violation of any provision of the state labor and employment laws; 

unpaid expenses or wages; unpaid compensation or penalties for missed meal or rest breaks; 

wrongful termination; unfair competition; discrimination, harassment or unlawful retaliation; 

slander or libel[;] intentional interference with contractual relations or prospective economic 

advantage; breach of the duty of loyalty; intentional or negligent infliction of emotional distress; 

conversion; and/or violation of any other federal, state or local statute, ordinance or regulation or 

constitutional, contract, tort or common law theory.” Doc. 21-1, at 2; Doc. 21-2, at 2 (with minor 

differences).

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Decl. ¶ 9; Summers Decl. ¶ 7. Based on that understanding, Plaintiffs executed these agreements 

without any indication that Cross Country’s actions would by design implicate this agreement. See

Baxter Decl. ¶ 9; Summers Decl. ¶ 7. But while asking the Plaintiffs to commit to binding, final, 

and confidential arbitration, to forego all right of access to a judicial forum, and to waive the right 

to bring collective or class proceedings, Cross Country withheld a critical, material fact: Cross 

Country did not intend, in good faith, to honor its obligations under its subsequent employment 

contracts with the Plaintiffs. Rather, at the time it was requiring plaintiffs to enter into these 

standalone dispute resolution provisions, Cross Country had already formulated a pattern and 

practice of paying its employees less than their contracted-for amount, as it had done with 

numerous other employees, thus giving rise to a certain material dispute with them. Compl., ¶¶ 33-

35; see also Summers Decl. ¶ 5. Cross Country never disclosed that intention to the Plaintiffs. 

Baxter Decl. ¶ 9; Summers Decl. ¶ 7. 

B. The “agreements” to arbitrate where not validly formed contracts, as there 

was no meeting of the minds on their terms.

While “the FAA creates a ‘presumption of arbitrability’” such that “‘doubts concerning the 

scope of an arbitration clause should be resolved in favor of arbitration, the presumption does not 

apply to the determination of whether an agreement to arbitrate has been made.” Dasher v. RBC 

Bank (USA), 745 F.3d 1111, 1115-16 (11th Cir. 2014) (citations omitted) (emphasis added); see 

also Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287, 301 (2010). And “[t]he threshold 

question of whether an arbitration agreement exists at all is ‘simply a matter of contract,’” which 

is governed by the relevant state law; here, that is Florida law. Bazemore v. Jefferson Capital Sys., 

827 F.3d at 1329 (citation omitted).9

9 Cross Country has its principal place of business in Florida (Compl., ¶ 7) and relied on Florida 

law in its Motion. See Doc. 21 at 7–13. 

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Under Florida law, “it is axiomatic that a binding and enforceable contract requires ‘mutual 

assent to certain and definitive contractual terms; without a meeting of the minds on all of the 

essential contract terms, no enforceable contract arises.” IT Strategies Group, L.L.C. v. Allday 

Consulting Group, L.L.C., 975 F.Supp.2d 1267, 1280 (S.D. Fla. 2013). In other words, “[w]hen 

essential terms are left open for negotiation, there is no meeting of the minds.” Business Specialists, 

Inc. v. Land & Sea Petroleum, Inc., 25 So.3d 693, 695 (Fla.4th Dist. Ct. App. 2010) (citation 

omitted).

Here, the parties did not form a valid agreement to arbitrate their disputes. That is because 

the standalone arbitration agreements that Cross Country seeks to enforce against Plaintiffs neither 

included nor referenced one such set of essential terms, without which there could be no “meeting 

of the minds”: the terms of Plaintiffs’ employment. Indeed, the arbitration agreements—which 

purport to bar Plaintiffs from bringing judicial action on any dispute arising out of their 

“employment” (Doc. 21-1, at 2; Doc. 21-2, at 2)—were signed before Cross Country made 

Plaintiffs the at-issue written offers of employment. Absent definite information as to the terms of 

their employment or even a definitive offer as to the terms of employment, Plaintiffs and Cross 

Country’s “minds” could not have “met” on the arbitration agreements that purported to set out 

the dispute resolution process for that yet-undefined employment. In other words, Plaintiffs could 

not have understood the scope of what they were agreeing to arbitrate, because “employment” had 

not yet been defined.

For example, Plaintiff Summers was asked to, and did, sign the arbitration agreement on 

March 6, 2022. Doc. 21-2, at 4. In that “agreement,” Cross Country asked her to agree that “binding 

arbitration shall be the exclusive means of resolving all claims between them, whether or not 

arising out of or in any way related to Employee’s employment.” Id., at 2. It then specifies a list 

Case 9:22-cv-81137-AMC Document 25 Entered on FLSD Docket 10/07/2022 Page 19 of 31
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of “Covered Claims,” most of which would only arise out of some future, yet-to-be-set 

employment, including, “breach of contract; violation of any provision of the state labor and 

employment laws; unpaid expenses or wages; unpaid compensation or penalties for missed meals 

or rest breaks; wrongful termination; unfair competition’; discrimination, harassment, or wrongful 

termination.” Id. But it was not until March 23, 2022, that Cross Country made the revised written 

offer to Plaintiff Summers that would define the scope and terms of her employment. Compl., ¶ 

21. This was the agreement that set terms of employment such as the rate of pay, location and 

length of employment, and other critical provisions, such as those for meal breaks, overtime pay, 

and other stipends and allowances. Id. 

The disparity in timing of the two agreements is even more stark as to Plaintiff Baxter. 

Cross Country seeks to enforce the arbitration agreement that Baxter signed nearly one year before 

Cross Country even offered him the at-issue extension of his Florida assignment. Indeed, at the 

time he signed the arbitration agreement, his Florida assignment was not and could have even been 

in the Parties’ contemplation. See Baxter Decl. ¶ 8. 

In sum, the terms of the employment were essential to the arbitration agreements, because 

absent those terms, the scope of what had to be arbitrated could not be clear. This is demonstrated 

by reference to just one “Covered Claim” under the terms of the arbitration agreement: “breach of 

contract.” Plaintiffs could not have validly assented to arbitrate claims for “breach of contract”

that would arise out of a contract that did not yet exist, and whose terms, in fact, had not even been 

provided in a written offer. As another example, the arbitration agreement asked Plaintiffs to 

commit to arbitrate disputes arising out of claims for “unpaid expenses or wages,” when they had 

not yet reached agreement as to what those wages were, and what wages and expenses it would 

cover as part of the employment. This extends to the delegation provision: the parties could not 

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have “met minds” on the issue of delegating authority to the arbitrator to resolve “any dispute 

relating to the interpretation, applicability, or enforceability of this Agreement” when the scope of 

the “agreement” was not clear. In other words, the terms of employment are essential to the 

arbitration agreement—and its delegation provision—because they, at least in part, define its 

scope. 

This conclusion naturally flows from well-settled principles of Florida contract law. Under 

that jurisprudence, for example, “an employment contract will be unenforceable for lack of mutual 

assent if compensation or the method of determining compensation for the employment is to be 

negotiated later or is left entirely to the discretion of one of the parties.” In re Annicott Excellence, 

LLC, 259 B.R. 782 (M.D. Fla. 2001) (citing Martin v. Jack Yanks Construction Co., 650 So.2d 

120, 121 (Fla. 3d. DCA 1995)); see also Muller v. Stromberg Carlson Corp., 427 So.2d 266, 268 

(Fla. 2d. DCA 1983) (adhering to “long established principle[] that an employment contract 

requires definiteness and certainty in its terms.”); Linafelt v. Bev., Inc., 662 So.2d 986, 989 (Fla.

1st. DCA 1995) (noting that policy and procedure manual did not qualify as an employment 

contract without “express reference in the statement to a period of employment and the benefits to 

accrue therefrom.”). Thus, an employment agreement that lacked a key term of employment, such 

as rate of pay, would be void. Like the rate of pay in an employment agreement, the defined terms 

of employment are essential to the parties’ arbitration agreement, as they serve to define its scope. 

This is demonstrated by the fact that Plaintiffs are characterized in the arbitration agreement as the 

“Employee”—which, of course, they were not, at least yet, and certainly not on a continuing basis 

as defined by Cross Country itself. Doc. 21-2, at 2. 

The FAA requires courts to place arbitration agreements “on equal footing with all other 

contracts.” Buckeye Check Cashing v. Cardegna, 546 U.S. 440, 443 (2006). To do so means that 

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this Court may not enforce an agreement that lacks a “meeting of the minds” or “mutual assent,”

as required by Florida law. At a minimum, Plaintiffs have raised genuine issues of material fact as 

to whether the arbitration agreements and their delegation provisions were validly formed 

contracts. See Bazemore v. Jefferson Cap. Sys., LLC, 827 F.3d 1325, 1333 (11th Cir. 2016) (court 

“may compel arbitration only if it concludes that ‘there is no genuine dispute as to any material 

fact’’” as to formation of arbitration agreements) (quoting Fed. R. Civ. P. 56(a)). 

V. THE ARBITRATION AGREEMENT AND ITS DELEGATION PROVISION ARE 

VOID AND UNENFORCEABLE BECAUSE THEY WERE FRAUDULENTLY 

INDUCED

Cross Country fraudulently induced each Plaintiffs’ purported consent to the arbitration 

agreement. At the time Plaintiffs were required to sign an arbitration agreement, Cross Country 

withheld from them a critical and material fact: it did not intend to honor their subsequent 

employment contracts or pay the compensation the parties agreed upon—as was Cross Country’s 

pattern and practice. And with the undisclosed knowledge that it intended to breach its contractual 

obligations to them if the opportunity arose, Cross Country asked these Plaintiffs to enter into 

broad standalone arbitration agreements that severely restricted how, where, and in what format 

they could seek redress for their future injuries—injuries Cross Country (but not Plaintiffs) knew 

were nearly certain to occur. As Plaintiffs attest, had Cross Country disclosed that it engaged in a 

practice of reducing rates of pay mid-contract, they would not have accepted an assignment with 

Cross Country or entered into an arbitration agreement that so limited their ability to access a 

public, judicial forum, including by delegating to the arbitrator even the threshold issue of whether 

the arbitration agreement was enforceable.

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A. This Court must decide Plaintiffs’ claims that the arbitration agreements and 

their delegation provisions were fraudulently induced. 

“Arbitration is a matter of contract and of consent.” JPay, Inc. v. Kobel, 904 F.3d 923, 928 

(11th Cir. 2018). Thus, while “plac[ing] arbitration agreements on equal footing with all other 

contracts,” Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 443 (2006), the FAA 

recognizes that an arbitration provision (and its delegation clause) may be defeated by “generally 

applicable contract defenses,” such as, among others, fraudulent inducement. Rent-A-Center, West, 

Inc. v. Jackson, 561 U.S. 63, 67-68 (2010). 

And where, as here, a party specifically challenges the “making” of the purported 

“agreement” to arbitrate and its delegation provision, the question of whether Cross Country 

fraudulently induced Plaintiffs’ agreement to those provisions is firmly in the jurisdiction of this 

Court. See Jenkins v. First Am. Cash Advance of Georgia, LLC, 400 F.3d 868, 876-77 (11th Cir. 

2005) (quoting Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 403-04 (1967) 

(“[I]f the claim is fraud in the inducement of the arbitration clause itself—an issue which goes to 

the ‘making’ of the agreement to arbitrate—the federal court may proceed to adjudicate it.”)); Attix 

v. Carrington Mortgage Servs., 35 F.4th 1284, 1294-95 (11th Cir. 2022) (“[A] court must always 

consider a validity or enforceability challenge that is ‘specific’ to the delegation agreement before 

enforcing it.”) (citing Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 70-71 (2010)).

B. Cross Country fraudulently induced Plaintiffs to sign the “agreements” to 

arbitrate.

Here, the question is whether Cross Country fraudulently induced Plaintiffs to enter both 

the standalone arbitration agreement and its delegation provision by withholding from them the 

material and critical fact that it engaged in a pattern of changing travelers’ rates of pay midcontract. This question is governed by the applicable state law, see Bazemore v. Jefferson Cap.

Sys., LLC, 827 F.3d 1325, 1329 (11th Cir. 2016); as noted above, that is Florida law.

Case 9:22-cv-81137-AMC Document 25 Entered on FLSD Docket 10/07/2022 Page 23 of 31
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Under Florida law, “[t]he elements of a claim for fraudulent inducement are: ‘a false 

statement of material fact; (2) the maker of the false statement knew or should have known of the 

falsity of the statement; (3) the maker intended that the false statement induce another’s reliance; 

[and] (4) the party . . . relied on the false statement to its detriment.” Prieto v. Smook, Inc., 97 

So.3d 916, 917 (Fla. 4th DCA 2012); see also Butler v. Yusem, 44 So.3d 102, 105 (Fla. 2010) 

(finding that the fourth element of a fraudulent misrepresentation claim does not require 

“justifiable reliance,” but simply “injury by the party acting in reliance on the misrepresentation.”) 

(emphasis in original). A “false statement of material fact” is not limited to an affirmative 

misstatement; rather, a material omission may satisfy that element. See Woods v. On Baldwin 

Pond, LLC, 634 F. App’x 296, 297–98 (11th Cir. 2015) (recognizing that under Florida law, a 

claim for “fraudulent inducement” may be “in the form of fraud by omission). That is because 

where “failure to disclose a material fact is calculated to induce a false belief, the distinction 

between concealment and affirmative representations is tenuous.’” Id. at 298 (quoting Johnson v. 

Davis, 480 So.2d 625, 628 (Fla. 1985)). Both fraudulent statements and omissions “proceed from 

the same motives and are attended with the same consequences; both are violative of the principles 

of fair dealings and good faith; both are calculated to produce the same result; and, in fact, both 

essentially have the same effect.” Woods, 634 F. App’x at 298 (quoting Johnson, 480 So.2d at 

628)). 

Here, each element of a claim for fraudulent inducement of the arbitration agreement and 

the delegation provision is satisfied. First, as alleged in the Complaint, while asking Plaintiffs to 

enter the agreement to arbitrate, Cross Country withheld a critical fact: it routinely reduced its 

travelers’ pay rates mid-contract. See Mejia v. Jurich, 781 So.2d 1175, 1177 (Fla. 3d. DCA 2001) 

(“[I]f the plaintiff can demonstrate that the person promising future action does so with no intention 

Case 9:22-cv-81137-AMC Document 25 Entered on FLSD Docket 10/07/2022 Page 24 of 31
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of performing or with a positive intention not to perform, such a promise may also constitute a 

fraudulent misrepresentation.”). Certainly, and as Plaintiffs attest, the knowledge of this fact would 

have been material at a time they were considering whether to enter into an agreement that would 

require them to commit to “binding” and “confidential” arbitration of any claim “arising out of or 

in any way related to Employee’s employment with Company.” Baxter Decl. ¶ 9; Summers Decl.

¶ 7.

Indeed, at the time that they signed the arbitration agreements, the Plaintiffs held a 

reasonable expectation that Cross Country would attempt in good faith to honor its obligations 

under their subsequent employment agreements. See QBE Ins. Corp. v. Chalfonte Condominium 

Apartment Ass’n Inc., 94 So.3d 541, 548 (Fla. 2012) (noting that “Florida contract law does 

recognize an implied covenant of good faith and fair dealing in every contract” that is “intended 

to protect ‘the reasonable expectations of the contracting parties in light of their express 

agreement.’”) (citation omitted); see also Baxter Decl. ¶ 9; Summers Decl. ¶ 7. That reasonable—

and legally supported—expectation naturally informed the Plaintiffs’ decision as to whether to 

enter into a dispute resolution agreement that would impose serious restrictions on how and where 

they may seek redress for their injuries, including, via the delegation provision, by attempting to 

entirely deprive them of any access to a public forum. Baxter Decl. ¶ 9; Summers Decl. ¶ 7. 

In other words, knowledge that a dispute with their employer was a substantial likelihood, 

rather than a mere possibility, would have been material to Plaintiffs’ consideration of Cross 

Country’s offered dispute resolution provisions. See id. This is because “[w]hile arbitration may 

have its advantages in terms of greater expedition, informality, and lower cost, it also has, from 

the employee’s point of view, potential disadvantages: waiver of a right to a jury trial, limited 

discovery, and limited judicial review.” Armendariz v. Found. Health Psychcare Servs., Inc., 24 

Case 9:22-cv-81137-AMC Document 25 Entered on FLSD Docket 10/07/2022 Page 25 of 31
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Cal. 4th 83, 115 (Cal. 2000). Further, “[v]arious studies show that arbitration is advantageous to 

employers not only because it reduces the cost of litigation, but also because it reduces the size of 

the award that an employee is likely to get, particularly if the employer is a ‘repeat player’ in the 

arbitration system.” Id. (citing Bingham, Employment Arbitration: The Repeat Player Effect

(1997) 1 Employee Rts. & Employment Policy J. 189). This is particularly true where many other 

Cross Country employees were being victimized by the same practice, which Plaintiffs could not 

have known at the time the arbitration agreement was presented.

In fact, Plaintiffs attest that had they known of Cross Country’s undisclosed intention to 

change their pay rates mid-contract—thus giving rise to a certain material dispute under the terms 

of their employment agreement—they would not have entered into arbitration agreements (or its 

delegation provisions) that so restricted how and where they could seek redress for their injuries. 

Baxter Decl. ¶ 9; Summers Decl. ¶ 7. And because Cross Country was in sole possession of 

knowledge as to its (lack of) intention to perform under its future employment contracts—and that 

knowledge was indisputably relevant to Plaintiffs’ consideration of an arbitration provision that 

would require them to confidentially and individually arbitrate all disputes “arising out of or in 

any way related to Employee’s employment” with the company—it was obligated to disclose that 

information to Plaintiffs. See TransPetrol, Ltd., v. Radulovic, 764 So. 2d 878, 880 (Fla. 4th DCA

2000) (noting that “an action for fraud exists where one party has superior knowledge and 

intentionally fails to disclose a material fact”); Ramel v. Chasebrook Const. Co., 135 So. 2d 876, 

882 (Fla. 2d. DCA 1961) (“nondisclosure of a material fact may be deemed fraudulent where the 

other party does not have equal opportunity to become apprised of the fact.”). 

The second element of a fraudulent inducement claim is that the maker of the false 

statement knew or should have known of the falsity of the statement. Where, as here, the fraudulent 

Case 9:22-cv-81137-AMC Document 25 Entered on FLSD Docket 10/07/2022 Page 26 of 31
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inducement claim is premised on a material omission rather than an affirmative statement, this 

element requires that the omitted fact was “calculated to induce a false belief.” Woods, 634 F. 

App’x at 298 (quoting Johnson, 480 So.2d at 628). That is satisfied here. In their First Amended 

Complaint, Plaintiffs specifically allege that Cross Country knowingly engaged in coercive “baitand-switch” tactics, and that it did not intend to honor its pay obligations under the Plaintiffs’

contracts. See Compl. ¶¶ 3, 33–35 (“Cross Country is knowingly engaging in these coercive ‘baitand-switch practices to maintain the significant profit margins it had become accustomed to during 

the COVID-19 pandemic.”). In asking Plaintiffs to sign its arbitration agreements, Cross Country 

knew that they would hold a reasonable, legally supported belief that it would attempt in good 

faith to honor their subsequent employment agreements, and that that belief was relevant to their 

consideration of its restrictive dispute resolution provision. But despite knowing that Plaintiffs’

belief was false, Cross Country did not correct their understanding. Its omission was therefore 

calculated to induce a false belief. 

As to the third and fourth elements of a fraudulent inducement claim, Cross Country 

intended for the Plaintiffs to rely on this false omission, and the Plaintiffs reasonably did so. First, 

that Cross Country intended to induce reliance is supported by the evidentiary record. The record 

thus far shows that Cross Country asked the Plaintiffs to enter into the arbitration agreement before 

it had even made them a written offer of employment. This eagerness to secure a sweeping 

arbitration agreement even before it had made a firm offer of employment demonstrates the 

importance of the arbitration agreement to the company in shielding its intended contract breaches 

from public view and in isolating and insulating its employees’ claims from one another. 

And as Plaintiffs attest, they did rely on Cross Country’s material omission. Had they 

known that Cross Country engaged in a practice of changing their and others’ pay rates midCase 9:22-cv-81137-AMC Document 25 Entered on FLSD Docket 10/07/2022 Page 27 of 31
23

contract, they would not have agreed to an arbitration agreement that entirely deprived them of 

access to a public, judicial forum, including by delegating threshold issues of arbitrability to the 

arbitrator. Baxter Decl. ¶ 9; Summers Decl. ¶ 7.

Therefore, Cross Country fraudulently induced Plaintiffs to sign both the arbitration 

agreement and its delegation provision, so those agreements are not enforceable. See HTP, Ltd. v.

Lineas Aereas Costarricenses, S.A., 685 So. 2d 1238, 1240 (Fla. 1996) (“‘Fraud in the inducement 

presents a special situation where parties to a contract appear to negotiate freely ... but where in 

fact the ability of one party to negotiate fair terms and make an informed decision is undermined 

by the other party’s fraudulent behavior.’”) (citation omitted). At a minimum, Cross Country has 

not met its burden of demonstrating the existence of valid and enforceable agreements to arbitrate

with Plaintiffs. See Bazemore v. Jefferson Capital Sys., LLC, 827 F.3d 1325, 1330 (11th Cir. 2016) 

(citation omitted).

C. At a minimum, Plaintiffs are entitled to discovery and a jury trial on the 

validity of the “agreements” to arbitrate under the Federal Arbitration Act.

This Court may compel arbitration only if it concludes that “‘there is no genuine dispute as 

to any material fact’” as to whether the arbitration agreements and their delegation provisions were 

validly formed. See Bazemore v. Jefferson Capital Sys., LLC, 827 F.3d 1325, 1333 (11th Cir. 2016) 

(quoting Fed. R. Civ. P. 56(a)). Plaintiffs contend their attestations are sufficient to establish they 

were fraudulently induced to sign the arbitration agreements and their delegation provisions, 

warranting denial of the motion to compel arbitration. At a minimum, however, Plaintiffs’ 

attestations raise a genuine issue of material fact as to the validity of the arbitration agreements 

and their delegation provisions. See, e.g., Masias-Pena v. Auto Wax of South Florida, Inc., No. 19-

cv-24559, 2020 WL 874262, at *2 (S.D. Fla. Feb. 12, 2020) (finding that Plaintiffs’ affidavits 

attesting that they did not sign the arbitration agreements created a “genuine issue” as to whether 

Case 9:22-cv-81137-AMC Document 25 Entered on FLSD Docket 10/07/2022 Page 28 of 31
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they had agreed to arbitrate); Dahdouh v. Rd. Runner Moving & Storage Inc., No. 20-CV-61936-

RAR, 2020 WL 7481546, at *1 (S.D. Fla. Dec. 3, 2020) (recommending a jury trial pursuant to 9

U.S.C. § 4 where Plaintiffs’ affidavits raised a genuine issue of material fact as whether they had 

agreed to arbitration provision, and resolution of that issue “will ultimately turn on a credibility 

determination”) (R&R adopted in full at 2020 WL 7480817, at *1 (S.D. Fla. Dec. 18, 2020)). 

Section 4 of the FAA provides that “[i]f the making of the arbitration agreement . . . be in 

issue, the court shall proceed summarily to the trial thereof.” 9 U.S.C. § 4. Thus, in the event the 

Court declines to outright deny the motion to compel arbitration at this stage, Plaintiffs respectfully 

request limited arbitration-related discovery, and, if necessary, a jury trial on the issue of contract 

formation, as required by the FAA. See, e.g., Knapke v. PeopleConnect, Inc., 38 F.4th 824, 833 

(9th Cir. 2022) (“[T]he FAA’s procedure mirrors the three phases of federal civil lawsuits: a 

motion to compel arbitration akin to a motion to dismiss; followed by optional discovery before 

summary judgment; if the motion is denied; followed by a mini-trial, if necessary.”); Burch v. P.J. 

Cheese, Inc., 861 F.3d 1338, 1347 (11th Cir. 2017) (“[B]ecause [plaintiff’s] denial put the making 

of the arbitration agreement at issue, he had a statutory right under 9 U.S.C. § 4 to try that disputed 

issue to a jury”). 

Specifically, Plaintiffs request 60 days to pursue limited arbitration-related discovery and, 

should factual issues persist after discovery, a jury trial shortly thereafter. See, e.g., Kardonick v. 

Citigroup, Inc., No. 10-23023, 2012 WL 3594359, at *2 (S.D. Fla. Aug. 12, 2012) (after denying 

motion to compel arbitration, granting motion to conduct limited arbitration-related discovery and 

setting schedule for same).

VI. CONCLUSION

For the reasons set forth herein, Defendants’ motion should be denied in full.

Case 9:22-cv-81137-AMC Document 25 Entered on FLSD Docket 10/07/2022 Page 29 of 31
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Dated: October 7, 2022 Respectfully submitted:

SHAVITZ LAW GROUP, P.A.

/s/ Gregg I. Shavitz

Gregg I. Shavitz 

Fla. Bar No. 11398

gshavitz@shavitlzlaw.com

Alan L. Quiles

Fla. Bar No. 62431 

aquiles@shavitzlaw.com

SHAVITZ LAW GROUP, P.A. 

951 Yamato Road, Suite 285

Boca Raton, Florida 33431

Tel: (561) 447-8888 

Fax: (561) 447-8831

STUEVE SIEGEL HANSON LLP

J. Austin Moore*

Alexander T. Ricke*

K. Ross Merrill*

* Admitted pro hac vice

460 Nichols Road, Suite 200

Kansas City, Missouri 64112

Telephone: (816) 714-7100

Facsimile: (816) 714-7101

moore@stuevesiegel.com

ricke@stuevesiegel.com

merrill@stuevesiegel.com

Attorneys for Plaintiffs and the Putative Class and 

Collective

Case 9:22-cv-81137-AMC Document 25 Entered on FLSD Docket 10/07/2022 Page 30 of 31
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CERTIFICATE OF SERVICE

The undersigned hereby certifies that on October 7, 2022, the foregoing was electronically 

filed with the Clerk of the Court using the CM/ECF system which sends notification of such filing

to all counsel of record.

s/ Gregg I. Shavitz . 

Gregg I. Shavitz

Case 9:22-cv-81137-AMC Document 25 Entered on FLSD Docket 10/07/2022 Page 31 of 31