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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

VINCENT THOMAS and ALAN QUEEN, 

 Plaintiffs, 

v. Civil Case No. 15-10055 

 Honorable Linda V. Parker 

RIGHT CHOICE STAFFING GROUP, LLC, 

ADEPT SERVICES GROUP, INC., 

DOWNRIVER STAFFING GROUP, LLC, AUTOLINE 

TRANSPORTATION, INC., TIMOTHY SCHULTZ, 

and TRACY SHAFFER, 

 Defendants. 

__________________________________________/ 

OPINION AND ORDER DENYING PLAINTIFFS’ MOTION TO RENDER 

ARBITRATION CLAUSE UNENFORCEABLE 

 On July 6, 2015, this Court entered an opinion and order finding that 

employment agreements signed by Plaintiffs required them to arbitrate their Fair 

Labor Standards Act (“FLSA”) claims against Defendants, but only to the extent 

those claims arose after December 16, 2013 (the effective date of the agreements).1

 

(ECF No. 27.) Plaintiffs now ask the Court to find the arbitration clause in their 

employment agreements unenforceable because the American Arbitration 

Association (“AAA”), to which the parties agreed to submit Plaintiffs’ arbitrable 

claims, classified the dispute as subject to its commercial as opposed to its 

 

1 The Court stayed the matter with respect to Plaintiffs’ pre-December 16, 2013 

claims, pending the result of the arbitration. (ECF No. 27.) 

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employment rules. This resulted in AAA splitting the anticipated arbitration costs 

between the parties and invoicing Plaintiffs fees of $9,700. Rather than pursuing a 

challenge to this classification with AAA, Plaintiffs filed the pending motion. 

Because the arbitration agreement is silent as to arbitration costs and fees and the 

division of costs is based only on AAA’s decision-- which does not appear to be 

definitive-- the Court holds that AAA’s conduct is not a basis for declaring the 

arbitration clause unenforceable. 

Background 

 Plaintiffs indicate, and Defendants do not dispute, that after this Court 

ordered the parties to arbitrate Plaintiffs’ FLSA claims for work performed after 

December 16, 2013, they agreed to have AAA conduct the arbitration and 

Plaintiffs submitted a Demand for Arbitration to the AAA on September 15, 2015. 

(ECF No. 28 ¶¶ 6, 7.) Plaintiffs filed their demand as an employer-promulgated 

plan in an employment dispute to be governed by AAA’s employment rules. (Id. 

¶ 8.) Those rules required Plaintiff to pay a $200.00 filing fee. (Id.); see also

www.adr.org. Those rules further provide that the employer, alone, is obligated for 

the costs of arbitration. Id. 

 Defendants objected to the characterization of the matter as an employment 

dispute and requested arbitration under AAA’s commercial arbitration rules. (ECF 

No. 28 ¶ 9.) Under these rules, arbitration costs are split between the parties. (Id. 

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¶ 11); see also www.adr.org. AAA agreed with Defendants that the matter should 

be arbitrated under its commercial rules and sent Plaintiffs an invoice for $9,750, 

representing their portion of the actual or estimated arbitration costs. 2 (ECF No. 

28 ¶¶ 10, 12.) Upon receipt of the invoice, Plaintiffs’ counsel contacted AAA and 

challenged the commercial classification of the matter. (Id. ¶ 13.) 

 On February 9, 2016, the arbitrator conducted a telephone conference with 

the parties’ attorneys during which Plaintiffs’ counsel again argued that the matter 

is an employment dispute governed by AAA’s employment rules. (Id. ¶ 15.) The 

arbitrator requested briefing from the parties on the issue, and set a March 11, 2016 

deadline for Plaintiffs’ brief. (ECF No. 29 ¶ 20.) Instead of filing a brief with the 

AAA, Plaintiffs filed the instant motion asking the court to render the arbitration 

clause unenforceable. (ECF No. 28.) 

Parties’ Arguments 

 In their motion, Plaintiffs argue that the arbitration clause is unenforceable 

because the arbitration costs to be borne by Plaintiffs render arbitration unduly 

burdensome and would dissuade similarly situated plaintiffs from seeking to 

vindicate their FLSA rights. (Id.) 

 

2 According to Defendants, the arbitrator subsequently reduced this amount to 

$7,500 when the parties agreed that dispositive motions are unnecessary. (ECF 

No. 29 ¶¶ 12, 13.) Plaintiffs claim they never received a reduced invoice. (ECF 

No. 30 at Pg ID 317 n.1.) Whether the amount is $9,750 or $7,500 has no impact 

on the Court’s analysis. 

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 Defendants respond, contending first that the Court lacks subject matter 

jurisdiction to decide Plaintiffs’ motion. (ECF No. 29.) Defendants next urge the 

Court to deny Plaintiffs’ motion because it is untimely. Defendants classify 

Plaintiffs’ motion as a delayed motion for reconsideration of the Court’s decision 

ordering arbitration. As such, Defendants argue it is too late. Defendants 

alternatively argue that Plaintiffs filed their motion too early because they did not 

wait for the arbitrator to make a final decision regarding whether AAA’s 

commercial or employment rules will govern the matter. 

 Finally, in their response to Plaintiffs’ motion, Defendants argue that it is too 

speculative whether Plaintiffs will be required to pay any arbitration costs and 

whether those costs are prohibitive. Defendants point out that Plaintiffs submitted 

no evidence with their motion from which to gauge whether they can afford those 

costs. As such, Defendants contend that Plaintiffs do not satisfy their burden of 

showing that the commercial rules’ cost-shifting provision would have a chilling 

effect on their ability to pursue their FLSA claims. 

 Plaintiffs filed a reply brief addressing Defendants’ arguments. (ECF No. 

30.) Plaintiffs assert legal arguments supporting why the Court has jurisdiction to 

decide their motion and why their motion is timely (i.e., neither too late nor too 

early). In reply, Plaintiffs argue that the arbitration costs they will need to pay are 

not speculative and they submit information concerning their approximate annual 

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incomes ($20,000 for Thomas and $27,000 for Queens) to show why these costs 

are prohibitively expensive and would dissuade similarly situated litigants from 

vindicating their statutory rights. 

Applicable Law & Analysis

 The question of whether an arbitration agreement is enforceable is a question 

for a court to decide, as this Court’s July 6, 2015 opinion and order illustrates. 

Whether the costs of the arbitral forum effectively prevent a plaintiff from 

vindicating his or her statutory rights, thereby rendering an arbitration agreement 

unenforceable, also is a question for the court. See Green Tree Fin. Corp. v. 

Randolph, 531 U.S. 79 (2000), Morrison v. Circuit City Stores, Inc., 317 F.3d 646 

(6th Cir. 2003). As such, this Court has jurisdiction to decide Plaintiffs’ pending 

motion. 

 Plaintiffs did not file their motion too late for the Court to consider the relief 

sought.3

 The Court does not agree with Defendants that Plaintiffs’ motion is an 

untimely (i.e., late) request for reconsideration of the Court’s July 6, 2015 decision. 

When they responded to Defendants’ motion to compel arbitration, Plaintiffs had 

no reason to suspect that they would be responsible for any of the costs of 

arbitration, particularly as the parties’ arbitration agreement is silent with regard to 

those costs. 

 

3 Whether Plaintiffs filed their motion too early is addressed below. 

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 Moreover, Plaintiffs’ motion could be construed as a request for relief under 

Rule 60(b)(2) of the Federal Rules of Civil Procedure. Such motions must be 

brought within a reasonable time and at least one year after entry of the order. Fed. 

R. Civ. P. 60(c). Plaintiffs filed their motion soon after AAA sent them an invoice 

for their share of the arbitration costs and less than a year after the Court’s order 

finding the arbitration agreement enforceable. As such, the time of Plaintiffs’ 

filing in relation to the Court’s July 6, 2015 decision is not a reason for denying 

their request to find the arbitration agreement unenforceable due to the costs to 

them of arbitrating their claims. 

 In Randolph, the Supreme Court addressed the issue of “whether an 

arbitration agreement that does not mention arbitration costs and fees is 

unenforceable because it fails to affirmatively protect a party from potentially steep 

arbitration costs.” 531 U.S. at 82, 89-92. While the Court concluded that such 

silence does not render the agreement per se unenforceable, it did not foreclose the 

possibility “that the existence of large arbitration costs could preclude a litigant ... 

from effectively vindicating his or her federal statutory rights in the arbitral 

forum[]” and therefore provide a reason for a court to refuse to enforce it. Id. The 

Court held, however, that the plaintiff failed to meet her burden of showing a 

likelihood of incurring such costs. Id. at 91-92. Thus, the Randolph Court had no 

reason to articulate a standard for deciding when the costs of arbitration render an 

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agreement to arbitrate unenforceable. The Sixth Circuit adopted such a standard in 

Morrison v. Circuit City Stores, Inc., 317 F.3d 646 (2003) (en banc). 

 The arbitration agreements at issue in Morrison were not silent on arbitration 

costs but provided that the parties would split those costs. Id. at 654-55. The Sixth 

Circuit adopted a case-by-case approach to determine whether such a cost-splitting 

provision “effectively prevents the vindication of a plaintiff’s statutory rights” such 

that “those rights cannot be subject to mandatory arbitration under that agreement.” 

Id. at 658. Under this approach, a court must “look[] to the possible ‘chilling 

effect’ of the cost-splitting provision on similarly situated potential litigants, as 

opposed to its effect merely on the actual plaintiff in any given case.” Id. at 663. 

 The Sixth Circuit instructed courts engaging in this analysis to “define the 

class of such similarly situated potential litigants by job description and 

socioeconomic background ... tak[ing] the actual plaintiff’s income and resources 

as representative of this larger class’s ability to shoulder the costs of arbitration.” 

Id. The court further instructed, however, that this requires neither “ ‘a searching 

inquiry into an employee’s bills and expenses[]’ ” nor a “ ‘detailed analyses of the 

household budgets of low-level employees to conclude that arbitration costs in the 

thousands of dollars deter the vindication of employees’ claims in arbitral fora.’ ” 

Id. at 663-64 (quoting Giordano v. Pep Boys-Manny, Moe & Jack, Inc., No. CIV. 

A 99-1281, 2001 WL 484360, at *6 (E.D. Pa. Mar. 29, 2001)). With respect to the 

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costs of arbitration, the Morrison court indicated that “the reviewing court should 

look to average or typical arbitration costs” as potential litigants likely will look to 

those costs when deciding whether to submit their claims to arbitration. Id. at 664. 

Those costs should be compared to the costs of litigation, which should be weighed 

“in a realistic manner” (that is, recognizing that most plaintiffs bringing 

discrimination claims are represented by counsel on a contingency-fee basis and 

thus are faced with minimal costs in the judicial forum). Id. 

 The Sixth Circuit identified one important distinction between the judicial 

and arbitral fora: “In the arbitral forum, the litigant faces an additional expense-- 

the arbitrator’s fee and costs-- which are never incurred in the judicial forum.” Id. 

at 664. The court must consider whether the plaintiff will incur this additional 

expense. While there may be a possibility that the plaintiff will not be required to 

pay costs or arbitral fees if he or she succeeds on the merits, the Sixth Circuit 

instructed reviewing courts to discount this possibility. Id. The court explained: 

The issue is whether the terms of the arbitration agreement itself 

would deter a substantial number of similarly situated employees from 

bringing their claims in the arbitral forum, and thus the court must 

consider the decision-making process of these potential litigants. In 

many cases, if not most, employees considering the consequences of 

bringing their claims in the arbitral forum will be inclined to err on the 

side of caution, especially when the worst-case scenario would mean 

not only losing on their substantive claims but also the imposition of 

the costs of the arbitration. 

Id. at 664-65. 

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 The Sixth Circuit anticipated that the above analysis would “yield different 

results in different cases.” Id. at 665. More specifically: 

It will find, in many cases, that high-level managerial employees and 

others with substantial means can afford the costs of arbitration, thus 

making cost-splitting provisions in such cases enforceable. ... In the 

case of other employees, however, this standard will render costsplitting provisions unenforceable in many, if not most, cases. 

Id. (citations omitted). In other words, a cost-splitting provision may not deter an 

individual with a six-figure income from arbitrating his or her claims. Id. (citing 

Williams v. Cigna Fin. Advisors, Inc., 197 F.3d 752, 764-65 (5th Cir. 1999)). But 

for lower-paid litigants like the plaintiffs before it, the court found that arbitration 

fees of $1,622 would serve as a deterrence.4

 Id. (citing Shankle v. B-G 

Maintenance Mgmt. of Colorado, Inc., 163 F.3d 1230, 1234-35 (10th Cir. 1999). 

 The Sixth Circuit indicated that this amount “[i]n the abstract ... may not 

appear prohibitive, but it must be considered from the vantage point of the 

potential litigant in a case such as this.” Id. at 669. The court explained: 

 

4 The Morrison decision is a consolidation of two actions for en banc review: 

Morrison v. Circuit City Stores, Inc. and Shankle v. Pep Boys-Manny, Moe & Jack, 

Inc. 317 F.3d 646. The plaintiff in Morrison faced arbitration costs equal to three 

percent of her annual salary of $54,060, or $1,622. Id. at 669. In Shankle, the 

plaintiff presented evidence that the arbitrator’s fee was $150.00 per hour. Id. at 

676. Based on an earlier Tenth Circuit decision (coincidentally brought by a 

plaintiff with the same last name), the Sixth Circuit estimated that the plaintiff’s 

employment discrimination arbitration would involve between fifteen and forty 

hours of arbitrator time, resulting in costs between $2,250 and $6,000. Id. at 676 

(citing Shankle, 163 F.3d at 1234 n.5). 

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Recently terminated, the potential litigant must continue to pay for 

housing, utilities, transportation, food, and the other necessities of life 

in contemporary society despite losing her primary, and most likely 

only, source of income. Unless she is exceedingly fortunate, the 

potential litigant will experience at least a brief period of 

unemployment. 

Id. Moreover, the court added, “[m]inimal research will reveal that the potential 

costs of arbitrating ... dispute[s] usually far exceed this amount and easily reach 

thousands, if not tens of thousands, of dollars[.]” Id. at 669. Based on this 

information, and evidence of the plaintiff’s previous salary, the Sixth Circuit 

concluded that the cost-splitting provision in the parties’ “arbitration agreement 

would deter a substantial percentage of potential litigants from bringing their 

claims in the arbitral forum[]” and therefore was unenforceable. Id. at 669-70. 

 Having reached that conclusion, the court in Morrison turned to the question 

of whether the cost-splitting provision was “severable from the agreement as a 

whole or whether [it] render[s] the entire agreement unenforceable. Id. at 674-75. 

If severability is an option, the agreement to arbitrate is enforceable, but the costsplitting provision is not. See id. 

 The Sixth Circuit’s decision in Morrison compels the finding that the 

arbitration costs AAA invoiced Plaintiffs (whether the amount is $7,500 or $9,750) 

are substantial and, when considered in light of Plaintiffs’ annual salaries ($20,000 

or $27,000), would deter a substantial number of similarly situated potential 

litigants from seeking to vindicate their federal statutory rights in the arbitral 

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forum. Unlike Morrison, however, these costs are not imposed on Plaintiffs 

because of a provision in their employment agreements. The agreements are silent 

with respect to arbitration costs. The only reason Plaintiffs may be required to pay 

substantial arbitration costs is that AAA decided to classify their claims as a 

commercial rather than an employment dispute. The Sixth Circuit’s decision does 

not directly answer what a court should do when the prohibitive costs arise from 

third-party conduct rather than the arbitration agreement itself. This Court finds 

guidance, however, in the Morrison court’s response to conduct by AAA which it 

found threatened to deny the plaintiff an arbitral forum allowing for the pursuit of 

the plaintiff’s statutory right. 

 The district court in Morrison had ruled that the arbitration agreement was 

unenforceable because the procedures followed by AAA were inconsistent with 

several terms of the parties’ arbitration agreement.5

 317 F.3d at 678. While the 

Sixth Circuit agreed that the procedures followed by AAA were inconsistent with 

the parties’ agreement and found that those procedures could undermine the 

legitimacy of the arbitral forum, it held that the proper remedy was an order 

pursuant to Section 4 of the Federal Arbitration Act mandating that the arbitrator 

follow the terms of the arbitration agreement. Id. at 678-80. Under § 4, “[a] party 

 

5 Those inconsistencies involved the procedures for selecting an arbitrator, the 

applicability of the Federal Rules of Evidence and the Federal Rules of Civil 

Procedure, and whether AAA’s rules or the arbitration agreement’s rules govern 

when they are inconsistent. Morrison, 317 F.3d at 578. 

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aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a 

written agreement for arbitration may petition [the district court] ... for an order 

directing that such arbitration proceed in the manner provided for in such 

agreement.” 9 U.S.C. § 4. The dispute, the court held, still had to be arbitrated. 

 Section 4 does not provide a remedy in the current case because the written 

agreement fails to speak to the costs of arbitration. Nevertheless, if the arbitrator 

makes a decision with respect to the allocation of fees that undermines the 

legitimacy of the arbitral forum, there is support in case law for the court to modify 

that decision on post hoc review. The en banc court in Morrison acknowledged 

this support. 317 F.3d at 661 (citing Gilmer v. Interstate/Johnson Lane Corp., 500 

U.S. 20, 32 n.4 (1991); Boyd v. Town of Hayneville, 144 F. SUpp. 2d 1272, 1280-

81 (M.D. Ala. 2001)). The Sixth Circuit in fact cited several cases where courts 

found post hoc judicial review of arbitration awards to be a proper and adequate 

safeguard against the imposition of fees rendering the arbitral forum prohibitively 

expensive for the individual plaintiff. Id. at 661 (citing cases). Although the 

Morrison court identified two reasons for rejecting post hoc judicial review to 

address the imposition of costs on the plaintiff resulting from a cost-splitting 

provision in the arbitration agreements, those reasons do not apply here where the 

plaintiff’s costs arise from third-party conduct only. 

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 Specifically, the Sixth Circuit identified two problems which in its view 

rendered post hoc judicial review only “superficial[ly] attractive[].”6

 Id. 

According to the court, the first problem is that “judicial review of arbitration 

awards is very narrow.”7

 Id. at 662. As the court recognized, however, there is 

Supreme Court case law supporting “the view that courts reviewing arbitration 

awards may vacate or reduce the assessment of costs in appropriate 

circumstances.” Id. (citing Gilmer, 550 U.S. at 32 n.4.) The Supreme Court stated 

in Gilmer: “ ‘[A]lthough judicial scrutiny of arbitration awards necessarily is 

limited, such review is sufficient to ensure that arbitrators comply with the 

requirements of the statutes’ at issue.” 500 U.S. at 32 n.4 (quoting 

Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 232 (1987)). 

Similarly, the Circuit Court for the District of Columbia stated in addressing the 

potential imposition of arbitration fees on a plaintiff bringing employment 

discrimination claims under Title VII: “awards may be set aside [or modified] if 

they are contrary to ‘some explicit public policy’ that is ‘well defined and 

dominant’ and ascertained ‘by reference to the laws and legal precedents.’ ” Cole 

 

6 According to the Morrison court, post hoc judicial review appears attractive 

because it is easier to decide whether the costs of the arbitral forum are 

prohibitively expensive once costs are assessed. 317 F.3d at 661. 7 The Sixth Circuit noted that “review is made even more difficult where arbitrators 

do not explain their decisions.” Morrison, 317 F.3d at 662 (citing Dawahare v. 

Spencer, 210 F.3d 666, 669 (6th Cir. 2000)). No explanation is needed, however, 

for a court to analyze whether the costs assessed the plaintiff render the arbitral 

forum prohibitively expensive. 

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v. Burns Int’l Sec. Servs., 105 F.3d 1465, 1486 (1997) (quoting United 

Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 43 (1987)). 

 The second problem the Morrison court identified with post hoc judicial 

review is the “Catch-22” it poses for evaluating whether the arbitration costs deter 

plaintiffs from vindicating their statutory rights. As the court explained 

They [plaintiffs] cannot claim, in advance of arbitration, that the risk 

of incurring arbitration costs would deter them from arbitrating their 

claims because they do not know what the costs will be, but if they 

arbitrate and actually incur costs, they cannot then argue that the costs 

deterred them because they have already arbitrated their claims. Just 

as Yossarian could not escape flying combat missions by claiming 

that he was crazy because anyone wanting to be released from combat 

must be sane, under this approach potential litigants cannot escape 

arbitration by claiming that the costs are prohibitive until after 

arbitration, at which point the costs were not prohibitive, because the 

litigants actually arbitrated their disputes. 

Morrison, 317 F.3d at 663-63. The approach the court ultimately adopted, 

however, considers deterrence from the perspective not only of the plaintiff 

seeking to be relieved from an agreement to arbitrate, but all similarly situated 

individuals seeking to vindicate their federal statutory rights in the arbitral forum. 

See id. at 663. In other words, the fact that the plaintiff proceeded with arbitration 

despite the costs does not dictate the conclusion that the costs are not prohibitive 

when viewed from the perspective of similarly situated individuals. In that case, 

even though the plaintiff has proceeded with arbitration, on post hoc judicial 

review the Court still may conclude that the imposition of those costs is 

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unenforceable and that the arbitration award therefore must be modified as to the 

allocation of costs. 

 Moreover, a court evaluating the deterrence factor faces a very different 

scenario when the parties’ arbitration agreement is silent as to costs as opposed to 

when the agreement provides that the costs of arbitration will be shared equally 

between the plaintiff and employer. Where the agreement does not address 

arbitration costs, any risk of the plaintiff incurring arbitration costs is purely 

speculative. Declaring an arbitration agreement unenforceable under these 

circumstances-- where it is not at all evident that the arbitral forum will not permit 

the effective vindication of the plaintiff’s statutory rights-- seems contrary to the 

“liberal federal policy favoring arbitration agreements.” Moses H. Cone Mem’l 

Hosp. v. Mercury Constr. Corpo, 460 U.S. 1, 24 (1983). 

 In short, the Court declines to find the arbitration agreements Plaintiffs 

signed unenforceable where those agreements are silent regarding arbitration costs 

and fees, the imposition of any fees and/or costs on Plaintiffs results only from a 

decision by the arbitrator, and no final decision in this regard has been made. The 

imposition of substantial costs and fees on Plaintiffs will undermine the purpose of 

the FLSA. In the event such costs and fees are imposed, however, the Court can 

engage in post hoc review of the arbitrator’s award and modify it to conform to 

public policy. 

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 Accordingly, 

IT IS ORDERED that Plaintiffs’ Motion to Render Arbitration Clause 

Unenforceable (ECF No. 28) is DENIED. 

 s/ Linda V. Parker 

 LINDA V. PARKER 

 U.S. DISTRICT JUDGE 

Dated: November 2, 2016 

I hereby certify that a copy of the foregoing document was mailed to counsel of 

record and/or pro se parties on this date, November 2, 2016, by electronic and/or 

U.S. First Class mail. 

 s/ Richard Loury 

 Case Manager 

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