20-3413-cv

Tantaros v. Fox News Network, LLC

In the

United States Court of Appeals

For the Second Circuit ________

AUGUST TERM 2020

ARGUED: MAY 19, 2021

DECIDED: AUGUST 27, 2021

No. 20-3413-cv

ANDREA K. TANTAROS,

Plaintiff-Appellant,

v.

FOX NEWS NETWORK, LLC, THE ESTATE OF ROGER AILES, WILLIAM 

SHINE, SUZANNE SCOTT, DIANNE BRANDI, and IRENA BRIGANTI,

Defendants-Appellees.

________

Interlocutory Appeal from the United States District Court for 

the Southern District of New York.

________

Before: WALKER, CABRANES, and WESLEY, Circuit Judges.

________

Plaintiff Andrea K. Tantaros commenced this action in the New 

York Supreme Court pursuant to New York Civil Practice Law and 

Rule § 7515 (C.P.L.R. § 7515), challenging arbitration of her sexual 
2 No. 20-3413

harassment, hostile work environment, and retaliation claims against 

Fox News Network, LLC and certain senior executives. C.P.L.R. 

§ 7515 prohibits mandatory arbitration clauses covering employment 

discrimination claims, “[e]xcept where inconsistent with federal law.” 

Following removal to federal court, the district court (Andrew L. 

Carter, J.) denied Tantaros’s motion to remand on the basis that the 

action necessarily raises an issue of federal law: whether her claim is 

preempted by the Federal Arbitration Act. On appeal, Tantaros 

argues (1) that her claim does not necessarily raise an issue of federal 

law because the federal issue is an anticipated defense, (2) that the 

federal issue is not substantial, and (3) that it cannot be resolved in 

federal court without disrupting the federal-state balance. For the 

reasons that follow, we AFFIRM the district court’s December 17, 

2019 order.

Judge Wesley dissents in a separate opinion.

________

BRUCE FEIN, Fein & DelValle, PLLC, Washington, 

D.C., for Plaintiff-Appellant.

C. HARKER RHODES IV, Kirkland & Ellis LLP, 

Washington, D.C. (Matthew W. Lampe, New 

York, NY; Anthony J. Dick, Alexandra Zabrierek, 

Washington, D.C., Jones Day, on the brief), for 

Defendants-Appellees.

________
3 No. 20-3413

JOHN M. WALKER, JR., Circuit Judge:

Plaintiff Andrea K. Tantaros commenced this action in the New 

York Supreme Court pursuant to New York Civil Practice Law and 

Rule § 7515 (C.P.L.R. § 7515), challenging arbitration of her sexual 

harassment, hostile work environment, and retaliation claims against 

Fox News Network, LLC and certain senior executives. C.P.L.R. 

§ 7515 prohibits mandatory arbitration clauses covering employment 

discrimination claims, “[e]xcept where inconsistent with federal law.” 

Following removal to federal court, the district court (Andrew L. 

Carter, J.) denied Tantaros’s motion to remand on the basis that the 

action necessarily raises an issue of federal law: whether her claim is 

preempted by the Federal Arbitration Act (FAA). On appeal, 

Tantaros argues (1) that her claim does not necessarily raise an issue 

of federal law because the federal issue is an anticipated defense, (2) 

that the federal issue is not substantial, and (3) that it cannot be 

resolved in federal court without disrupting the federal-state balance. 

For the reasons that follow, we AFFIRM the district court’s December 

17, 2019 order.

BACKGROUND

Andrea K. Tantaros was employed at Fox News Channel, LLC

(Fox News) as a political commentator. In May 2016, Fox News 

initiated an arbitration against Tantaros alleging that she breached

her employment agreement by publishing a book without prior 

approval. The employment agreement contained an arbitration 

clause providing that “[a]ny controversy, claim or dispute arising out 

of or relating to . . . [Tantaros’s] employment shall be brought before 
4 No. 20-3413

a mutually selected three-member arbitration panel.”1 In August 

2016, Tantaros filed a complaint against Fox News and certain of its 

senior executives (Defendants) in the New York Supreme Court, 

alleging sexual harassment, hostile work environment, tortious 

interference with business expectancy, and retaliation for her 

complaints of sexual harassment. In February 2017, the New York 

Supreme Court granted Defendants’ motion to compel arbitration of 

the sexual harassment claims, and the claims of both parties 

proceeded in arbitration through discovery.

A little more than a year later, New York passed the law that is 

at the heart of this appeal. On April 10, 2018, the New York State 

Legislature enacted C.P.L.R. § 7515 which, as relevant here, declares

void any mandatory arbitration clause covering sexual harassment 

claims:

(b)(i) Prohibition. Except where inconsistent with federal 

law, no written contract, entered into on or after the 

effective date of this section shall contain a prohibited 

clause [e.g., any mandatory arbitration clause]. . . .

(iii) Mandatory arbitration clause null and void. Except 

where inconsistent with federal law, the provisions of such 

prohibited clause [e.g., any mandatory arbitration clause]

shall be null and void. . . .2

1 J. App. 17. 

2 C.P.L.R. § 7515(a)(2), (b)(i), (b)(iii) (emphases added).
5 No. 20-3413

On October 11, 2019, the law was amended to extend beyond sexual 

harassment claims to all employment discrimination claims.3

In July 2019, Tantaros brought a claim pursuant to C.P.L.R. 

§ 7515 in the New York Supreme Court seeking a temporary 

restraining order, preliminary injunction, and permanent injunction 

against continuing arbitration of her employment claims, and a 

declaratory judgment that § 7515 prohibits enforcement of the 

arbitration agreement. Defendants removed the action to the District 

Court for the Southern District of New York contending that the case

necessarily raises an issue of federal law: whether Tantaros’s claim is 

consistent with the FAA. Tantaros moved to remand. Pending 

adjudication of this § 7515 claim, the parties and arbitrators agreed to 

stay the arbitration.

On December 17, 2019, the district court denied Tantaros’s

motion to remand, concluding that the case arises under federal law 

pursuant to Gunn v. Minton4 and Grable & Sons Metal Products, Inc. v. 

Darue Engineering & Manufacturing.5 The district court certified the 

order for interlocutory appeal and, on October 6, 2020, we granted 

immediate review pursuant to 28 U.S.C. § 1292(b).

DISCUSSION

The sole issue on appeal is whether Tantaros’s claim was 

properly removed on the basis that C.P.L.R. § 7515 arises under 

3 Act of Aug. 12, 2019, 2019 N.Y. Sess. Laws Ch. 160 (A. 8421)

(McKinney) (effective October 11, 2019).

4 568 U.S. 251 (2013).

5 545 U.S. 308 (2005).
6 No. 20-3413

federal law pursuant to 28 U.S.C. § 1331. Tantaros argues: (1) the 

action does not necessarily raise an issue of federal law because 

preemption is an anticipated defense; (2) any federal issue is not 

substantial; and (3) the exercise of federal jurisdiction here would 

upset the federal-state balance.

We review the district court’s denial of a motion to remand de 

novo.6

I. Tantaros’s Suit Arises Under Federal Law

“Federal courts are courts of limited jurisdiction, possessing 

only that power authorized by Constitution and statute.”7 Under 28 

U.S.C. § 1331, federal district courts have subject-matter jurisdiction

over “all civil actions arising under the Constitution, laws, or treaties 

of the United States.” While federal question jurisdiction is typically 

invoked by a plaintiff pleading a federal cause of action,8 it also 

extends to a “special and small category” of cases brought under state 

law that implicate a federal issue.9 In determining whether a state law

claim warrants the exercise of federal jurisdiction, we apply the fourfactor test set forth in Gunn and Grable: “[F]ederal jurisdiction over a 

state law claim will lie if a federal issue is: (1) necessarily raised, (2) 

actually disputed, (3) substantial, and (4) capable of resolution in 

federal court without disrupting the federal-state balance approved 

6 Bounds v. Pine Belt Mental Health Care Res., 593 F.3d 209, 214 (2d Cir. 

2010).

7 Gunn, 568 U.S. at 256 (internal quotation marks omitted).

8 Grable, 545 U.S. at 312.

9 Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 699 

(2006).
7 No. 20-3413

by Congress.”10 The Grable-Gunn test reflects the “commonsense 

notion that a federal court ought to be able to hear” state law claims

that “turn on substantial questions of federal law, and thus justify 

resort to the experience, solicitude, and hope of uniformity that a 

federal forum offers on federal issues.”11

The removing defendant has the burden of establishing federal 

jurisdiction.12 Here, the parties agree that the federal issue is 

contested, but they dispute the first, third, and fourth steps of the

Grable-Gunn analysis. We conclude that because § 7515 requires a 

threshold showing that the plaintiff’s claim complies with the FAA, it

necessarily raises a substantial federal issue that may be resolved in 

federal court without threatening the federal-state balance.

A. Necessarily Raised

The first step of the Grable-Gunn test concerns whether the state 

law claim necessarily raises a question of federal law. This element is 

met where “the plaintiff’s right to relief necessarily depends on 

resolution of a . . . question of federal law.”13 In other words, federal 

jurisdiction exists if a court must apply federal law to the plaintiff’s 

10 Gunn, 568 U.S. at 258; see also Grable, 545 U.S. at 314 (“[T]he question 

is, does a state-law claim necessarily raise a stated federal issue, actually 

disputed and substantial, which a federal forum may entertain without 

disturbing any congressionally approved balance of federal and state 

judicial responsibilities.”).

11 Grable, 545 U.S. at 312.

12 United Food & Com. Workers Union, Local 919 v. CenterMark Props. 

Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir. 1994).

13 Empire Healthchoice Assurance, 547 U.S. at 690 (internal quotation 

marks omitted).
8 No. 20-3413

claim in order to decide the case.14 “[A] mere speculative possibility

that a federal question may arise at some point in the proceeding” is 

insufficient to establish jurisdiction in federal court.15

Based on these principles, courts derived the so-called wellpleaded complaint rule as “a quick rule of thumb” for discerning the 

presence of a federal question.16 Focusing on “what necessarily 

appears in the plaintiff’s statement of his own claim,”17 a district court 

may exercise federal jurisdiction only if “a right or immunity created 

by the Constitution or laws of the United States . . . [is] an element, 

and an essential one, of the plaintiff’s cause of action.”18 The inquiry 

must be “unaided by anything alleged in anticipation or avoidance of 

defenses which it is thought the defendant may interpose.”19 This is 

true “even if the defense is anticipated in the plaintiff’s complaint, and 

even if both parties admit that the defense is the only question truly 

at issue in the case.”20

The New York Court of Appeals has yet to construe the 

essential elements of a prima facie case under § 7515. When faced 

with an unsettled interpretation of state law, we proceed by “carefully 

predict[ing] how the state’s highest court would resolve the 

14 See Gunn, 568 U.S. at 259 (acknowledging that a legal malpractice 

claim “necessarily require[d] application of [federal] patent law”).

15 Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 493 (1983).

16 Franchise Tax Bd. v. Constr. Laborers Vacation Tr. for S. Cal., 463 U.S. 

1, 11 (1983).

17 Taylor v. Anderson, 234 U.S. 74, 75 (1914).

18 Gully v. First Nat’l Bank, 299 U.S. 109, 112 (1936).

19 Taylor, 234 U.S. at 75-76.

20 Franchise Tax Bd., 463 U.S. at 14.
9 No. 20-3413

uncertainty or ambiguity.”21 Our predictive inquiry is guided by 

decisions of the state’s lower courts, decisions on the same issue in

other jurisdictions, and “other sources the state’s highest court might 

rely upon in deciding the question.”22 Imprecise as this undertaking

may be, it is “our job” to complete this “necessary task.”23

Applying this guidance, we consider how the New York Court 

of Appeals would decide the instant issue: whether the condition

“except where inconsistent with federal law” is an essential element 

of § 7515.24

New York principles of statutory interpretation provide that

the “primary consideration is to ascertain and give effect to the 

21 In re Thelen LLP, 736 F.3d 213, 219 (2d Cir. 2013), certified question 

answered, 24 N.Y.3d 16 (2014) (internal quotation marks and alteration

omitted).

22 DiBella v. Hopkins, 403 F.3d 102, 112 (2d Cir. 2005).

23 Id. at 111.

24 We conclude that there is no need to certify this question to the 

New York Court of Appeals. Certification is appropriate only “in those 

cases where there is a split of authority on the issue, where [a] statute’s plain 

language does not indicate the answer, or when presented with a complex 

question of New York common law for which no New York authority can 

be found.” DiBella, 403 F.3d at 111 (internal quotation marks omitted). As 

Judge Leval has recently reminded us, “there are drawbacks to 

certification,” which “almost invariably results in substantial increase to the 

expenses the parties incur and ‘inevitably delays the resolution of the case, 

sometimes for well more than a year.’” 53rd St., LLC v. U.S. Bank Nat’l Ass’n, 

No. 20-1804-cv, 2021 WL 3412063, at *5 (2d Cir. Aug. 5, 2021) (per curiam) 

(quoting Valls v. Allstate Ins. Co., 919 F.3d 739, 742 (2d Cir. 2019). As 

discussed below, the plain text of the statute compels the conclusion that to 

prevail under § 7515, Tantaros must show that her claim is consistent with 

federal law. Because the statutory language answers the interpretive 

question presented here, we decline to certify the issue. See, e.g., id.; Riordan 

v. Nationwide Mut. Fire Ins. Co., 977 F.2d 47, 52-54 (2d Cir. 1992).
10 No. 20-3413

intention of the Legislature.”25 Because “the clearest indicator of 

legislative intent is the statutory text, the starting point . . . must 

always be the language itself, giving effect to the plain meaning 

thereof.”26 All parts of the legislation should be “harmonized with 

each other as well as with the general intent of the whole statute.”27 

The court should avoid any construction that renders one part of the 

statute meaningless.28 While the plain text is generally determinative, 

New York law holds that the legislative history of the statute “may 

also be relevant and is not to be ignored, even if words [of the statute] 

be clear.”29

C.P.L.R. § 7515 provides, “Except where inconsistent with 

federal law,” no written contract shall contain a mandatory 

arbitration clause, and any such clause shall be null and void.30 The 

exception clause plainly implicates the federal question of whether 

Tantaros’s claim conflicts with a federal law. The exception is also an 

essential element of § 7515: as the prefatory clause to the provisions 

prohibiting mandatory arbitration clauses, the clause conveys a 

25 DaimlerChrysler Corp. v. Spitzer, 7 N.Y.3d 653, 660 (2006) (internal 

quotation marks omitted); see also N.Y. Stat. § 92.

26 People v. Pabon, 28 N.Y.3d 147, 152 (2016) (internal quotation marks 

omitted); see also MacNeil v. Berryhill, 869 F.3d 109, 113 (2d Cir. 2017) (“The 

starting point of statutory interpretation is, of course, plain meaning.” 

(quoting People v. Owusu, 93 N.Y.2d 398, 401 (1999)); N.Y. Stat. Law § 94 

(providing that the meaning of a statute is to be “ascertained from the 

words and language used,” which are “generally construed according to 

[their] natural and most obvious sense”).

27 Pabon, 28 N.Y.3d at 152 (quoting N.Y. Stat. Law § 98).

28 MacNeil, 869 F.3d at 113 (citing In re Springer v. Bd. of Educ. of City 

Sch. Dist. of N.Y., 27 N.Y.3d 102, 107 (2016)).

29 See Riley v. Cty. of Broome, 95 N.Y.2d 455, 463 (2000) (internal 

quotation marks omitted).

30 C.P.L.R. § 7515 (b)(i), (b)(iii).
11 No. 20-3413

necessary condition that the court must consider before further 

construing the scope of the prohibition. To disregard the exception 

would “render[] one part [of § 7515] meaningless” and circumvent

the plain text of the statute.31

Tantaros principally argues that the exception sets forth a 

defense to § 7515 which makes up no part of a well-pleaded 

complaint. Often, the argument that a federal law displaces a 

conflicting state law, also known as preemption, is invoked as a 

defense. In some such circumstances, the question of preemption

does not “necessarily arise[]” in the proceedings32 because the 

defendant may decline to assert the defense or a party may concede 

the issue.33 But this is no ordinary cause of action. By embedding the 

issue of preemption into the operative provision, § 7515 reflects the 

legislature’s deliberate choice to require the plaintiff, at the very

outset of bringing a claim under the statute, to plead consistency with 

federal law. For this reason, the exception does not simply state the 

obvious.34 While consistency with federal law and constitutionality 

under the Supremacy Clause are questions that “lurk[] in the 

31 MacNeil, 869 F.3d at 113 (quoting In re Springer, 27 N.Y.3d at 107).

32 Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 7 (2003) (internal 

quotation marks omitted).

33 See, e.g., Gustavsen v. Alcon Lab’ys, Inc., 903 F.3d 1, 10 (1st Cir. 2018)

(noting that the plaintiffs conceded that a federal regulation may preempt 

their state law claims); Ctr. For Legal Advoc. v. Hammons, 323 F.3d 1262, 1273

n.12 (10th Cir. 2003) (noting that the “defendants essentially concede that [a 

federal statute] preempts state laws”).

34 We respectfully disagree with the dissent that “[t]his is circular 

reasoning.” Dissenting Op. 3. The “consistency with federal law” 

condition does not simply state the obvious that federal law is supreme. It

converts the preemption issue from a defense that the defendant may

invoke, into an exception that a § 7515 plaintiff must plead as part and 

parcel of the plaintiff’s prima facie case.
12 No. 20-3413

background” of every state law claim, § 7515 transforms them from 

“doubtful and conjectural” issues into a concrete dispute ripe for 

judicial review.35

This reading is bolstered by the distinction between 

“exceptions” and “provisos” under New York law. An exception is 

the plaintiff’s burden to plead, being “generally a part of the 

enactment itself,” whereas a proviso functions as a defense, 

“avoid[ing] things by way of defeasance or excuse.”36 In 

distinguishing between the two, New York courts have considered: 

(1) whether the exclusion appears in the enacting clause, or arises by 

way of an amendment or external source;37 (2) whether the exclusion

calls for information uniquely within the defendant’s knowledge;38

and (3) whether pleading the exclusion “would impose an 

unreasonably onerous burden.”39 Based on these factors, we have no 

difficulty concluding that the condition in § 7515 is an exception that 

is Tantaros’s burden to plead.

First, the condition appears at the outset of the enacting clause 

of § 7515 itself and frames the restriction on mandatory arbitration 

clauses, rather than as an amendment or as part of a separate statute 

entirely. This is characteristic of an exception. By contrast, provisos 

35 Gully, 299 U.S. at 117.

36 N.Y. Stat. Law § 211 cmt.; 1A Norman J. Singer & J. D. Shambie 

Singer, Sutherland Statutes and Statutory Construction § 21:11 (7th ed. 2020) 

(“[O]ne who asserts a claim based upon a statute must negative, in 

pleadings and proofs, any exceptions in the provision on which the claim is 

based, whereas matter in a proviso can be left for the adversary as a 

defensive matter.”).

37 Rogers v. Phillips, 29 N.Y.S.3d 623, 625 (3rd Dep’t 2016).

38 People v. Davis, 13 N.Y.3d 17, 31-32 (2009).

39 People v. Tatis, 95 N.Y.S.3d 160, 162 (1st Dep’t 2019), leave to appeal 

denied, 124 N.E.3d 724 (2019).
13 No. 20-3413

are frequently not part of the enacting clause or “arise[]. . . by way of 

a statutory amendment.”40 Here such a subsection for provisos exists

at § 7515(a)(4)(b)(ii), and it would contain the condition in question if 

the legislature had intended that it be a defense. While that 

subsection is entitled “Exceptions,” the New York Court of Appeals 

has cautioned that “the fact that [the] qualifying language is 

introduced by ‘except’ is not determinative,”41 and New York courts 

have not hesitated to find the presence of provisos in subsections 

entitled “exceptions.”42

Second, federal preemption is a question of law and, as such, it 

does not turn on information uniquely in the defendant’s hands.

The third consideration, the pleading burden, is the only factor 

that could possibly support Tantaros’s reading of § 7515. Tantaros 

argues that the New York legislature could not have expected the 

40 Rogers, 29 N.Y.S.3d at 625; see also People v. Sylla, 792 N.Y.S.2d 764, 

768 (App. Term 2005) (“[I]f the exception is enacted later in the statute or in 

a subsequent statute, it is a proviso which the [plaintiff] need neither plead 

nor prove the negative of in order to make out a prima facie case.”); Rowell 

v. Janvrin, 151 N.Y. 60, 68-69 (1896) (“[A]n exception in a statute is 

something embodied in, and forming a part of, the enacting clause itself . . 

. . If words follow the enacting clause, or are subsequently attached to it or 

ingrafted upon it by way of amendment, which modify or change its scope 

and application, or take a particular case out of it, then such new matter or 

modifying words constitute . . . a ‘proviso,’ which the plaintiff was not 

bound to negative by pleading.”).

41 Davis, 13 N.Y.3d at 31; see also 1A Norman J. Singer & J. D. Shambie 

Singer, Sutherland Statutes and Statutory Construction § 21:11 (7th ed. 2020) 

(“The particular form of words used to introduce the applicable provision 

generally does not determine whether it should be classed a proviso or an 

exception.”).

42 See, e.g., People v. Abraham, 128 N.Y.S.3d 779 (App. Term 2020); 

People v. Macs, 953 N.Y.S.2d 552 (App. Term 2012).
14 No. 20-3413

plaintiff to negate a conflict between his or her claim and every single

federal law.43 We are not persuaded that the pleading burden is too 

onerous. It is quite evident that the § 7515 limitation is directed at one 

particular statute, the FAA, which significantly shapes the field of 

arbitration.44 The Supreme Court has reaffirmed in numerous cases 

that the FAA displaces any state law disfavoring arbitration of a 

particular type of claim.45 We do not address whether § 7515 is 

preempted here, because that question is for the district court at this 

stage. We have no trouble discerning, however, that a § 7515 plaintiff, 

in pleading consistency with federal law, must center that analysis on 

the FAA.

The legislative history confirms our conclusion that the plaintiff

must show that his or her claim is consistent with federal law, in 

particular the FAA, to prevail under § 7515. During consideration of 

the proposed legislation on the New York State Senate floor, the 

sponsor of the bill, Senator Catharine Young, recognized “that the 

Federal Arbitration Act generally preempts state law that treats 

arbitration less favorably than other arrangements.”46 In light of the 

FAA, Senator Young explained that the legislation was intended ”to 

43 See, e.g., People v. Santana, 7 N.Y.3d 234, 237 (2006) (“As a matter of 

common sense and reasonable pleading, we do not believe that the 

Legislature intended to require the People to negate each of the alternatives 

. . . .” (internal quotation marks and citation omitted)).

44 See generally 9 U.S.C. § 1 et seq.

45 See e.g., AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 341 (2011)

(“When state law prohibits outright the arbitration of a particular type of 

claim, the analysis is straightforward: The conflicting rule is displaced by 

the FAA.”); Kindred Nursing Ctrs. Ltd. P’ship v. Clark, 137 S. Ct. 1421, 1426-

27 (2017); DIRECTV, Inc. v. Imburgia, 577 U.S. 47, 58 (2015).

46 N.Y. State Senate, Stenographic Rec., 241st Leg., Reg. Sess., at 1851 

(Mar. 30, 2018) (question of Sen. Elizabeth Krueger and response of Sen.

Young).
15 No. 20-3413

acknowledge . . . that there may be some extra protections that would 

apply” to victims of sexual harassment.47 Accordingly, she confirmed 

that the first step in evaluating a challenge to arbitration premised on

§ 7515 would be to “check the federal rules.”48 Considered together, 

the statutory text and context make plain that a claim under § 7515 

requires the resolution of a federal question.

In sum, we conclude that Tantaros’s claim necessarily raises a 

federal question.

B. Substantial

The issue of federal law must also be substantial—that is, 

important not solely to the parties in the immediate case but also to 

“the federal system as a whole.”49 An issue tends to be substantial if 

it is “a nearly pure issue of law, one that could be settled once and for 

all and thereafter would govern numerous [similar] cases.”50 The 

Supreme Court and this court have found a significant federal interest 

in the interpretation of a federal law, such as in disputes over the

meaning of a federal tax law,51 the scope of an Internal Revenue Code 

regulation,52 and the duties imposed by the Securities Exchange Act.53

47 Id. (statement of Sen. Young). 

48 Id. at 1852-53 (statement of Sen. Young) (“What we would have to 

do, you know, if there was such a case brought forward [under § 7515], we 

would have to check the federal rules.”).

49 Gunn, 568 U.S. at 260.

50 Empire Healthchoice Assur., 547 U.S. at 700 (internal quotation marks

omitted).

51 Grable, 545 U.S. at 315.

52 New York ex rel. Jacobson v. Wells Fargo Nat’l Bank, N.A., 824 F.3d 

308, 318 (2d Cir. 2016).

53 NASDAQ OMX Grp., Inc. v. UBS Sec., LLC, 770 F.3d 1010, 1024 (2d 

Cir. 2014). 
16 No. 20-3413

We have no doubt that this case presents a substantial question 

of federal law. The federal question is a purely legal one concerning 

the preemptive effect of a federal statute. Being neither “fact-bound 

[nor] situation-specific,”54 the issue will inform all future claims 

brought under § 7515. Moreover, the case implicates the FAA and the 

“national policy favoring arbitration” established by Congress.

55 

“[The Supreme Court’s] cases place it beyond dispute that the FAA 

was designed to promote arbitration” and put in place a “federal 

policy favoring arbitration agreements, notwithstanding any state . . . 

policies to the contrary.”56 Whether the prohibition on mandatory 

arbitration clauses undermines that goal is a significant issue 

warranting uniform adjudication in the federal courts.

Tantaros’s argument that the issue would affect only the small 

subset of sexual harassment claims is undermined by the fact that § 

7515 was amended 18 months after its enactment to apply to 

mandatory arbitration clauses covering all discrimination claims. 

And in the three years since the law’s enactment, district courts have 

addressed the effect of § 7515 in no less than six cases.57 We conclude 

that Tantaros’s suit presents a substantial federal issue.

54 Empire Healthchoice Assur., 547 U.S. at 701.

55 Concepcion, 563 U.S. at 339 (internal quotation marks omitted).

56 Id. at 345-46 (internal quotation marks omitted).

57 See Wyche v. KM Sys., Inc., No. 19-CV-7202(KAM), 2021 WL 

1535529, at *2 (E.D.N.Y. Apr. 19, 2021); Rollag v. Cowen Inc., No. 20-CV-5138 

(RA), 2021 WL 807210, at *5 (S.D.N.Y. Mar. 3, 2021); Charter Commc’ns, Inc. 

v. Garfin, No. 20 CIV. 7049 (KPF), 2021 WL 694549, at *13-14 (S.D.N.Y. Feb. 

23, 2021); Gilbert v. Indeed, Inc., No. 20 Civ. 3826 (LJL), 2021 WL 169111, at 

*13-15 (S.D.N.Y. Jan. 19, 2021); White v. WeWork Cos., No. 20 Civ. 1800 (CM), 

2020 WL 3099969, at *5 (S.D.N.Y. June 11, 2020); Latif v. Morgan Stanley & 

Co., No. 18 Civ. 11528 (DLC), 2019 WL 2610985, at *3-4 (S.D.N.Y. June 26, 

2019).
17 No. 20-3413

C. Capable of Resolution in Federal Court Without 

Disrupting the Federal-State Balance

Even where the state action necessarily raises a disputed and 

substantial issue of federal law, federal jurisdiction lies only if 

adjudication in a federal forum would be consistent with the 

“congressionally approved balance of state and federal judicial 

responsibilities,” defined by “the nature of the claim, the traditional 

forum for such a claim, and the volume of cases that would be 

affected.”58 “Absent a special state interest in a category of litigation, 

or an express congressional preference to avoid federal adjudication,

federal questions that implicate substantial federal interests . . . 

‘sensibly belong[] in a federal court.’”59

We discern no threat to the balance of federal and state 

responsibilities that weighs against the exercise of federal jurisdiction 

here. The Supreme Court has recognized that the FAA established

concurrent federal-state jurisdiction and that “state courts have a 

prominent role to play as enforcers of agreements to arbitrate.”60 That 

said, the Court has also emphasized that, “although enforcement of 

the [Federal Arbitration] Act is left in large part to the state courts, it 

nevertheless represents federal policy to be vindicated by the federal 

courts where otherwise appropriate.”61 The enforceability of a 

specific arbitration agreement, and the validity of § 7515, are two 

distinct issues. While the former involves routine application of the 

FAA, the latter requires consideration of the preemptive impact of the

58 Jacobson, 824 F.3d at 316.

59 Id. (quoting Grable, 545 U.S. at 315).

60 Vaden v. Discover Bank, 556 U.S. 49, 59 (2009).

61 See Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 

25 n.32 (1983).
18 No. 20-3413

FAA, the scope of the state law, and the extent to which the two may

conflict. Such questions have precisely the sort of significance to the 

federal system that supports adjudication in a federal forum. While 

New York state has a competing interest in deciding the meaning of 

its own laws, the New York legislature drafted § 7515 clearly mindful 

of federal law and the possibility that such § 7515 claims may be 

removed to federal court.

Moreover, exercising federal jurisdiction over this case will not

divert many cases from state court. If federal courts conclude that the 

FAA preempts § 7515, future parties will less likely dispute the issue

and such cases will proceed directly to arbitration. If federal courts 

find § 7515 to accord with the FAA, future claims will remain in state 

court.

Finally, we note that today’s decision casts no doubt on the 

ability of state courts to carry out their “oblig[ation] to honor and 

enforce agreements to arbitrate.”62 State courts are familiar with the 

FAA and well-versed in resolving conflicts between state and federal 

law. That said, it is well established that substantial questions of 

federal law, absent a special state interest, may be heard in a federal 

court.63 Because resolution of a significant federal issue is necessary 

to Tantaros’s claim, we hold that it warrants “resort to the experience, 

solicitude, and hope of uniformity that a federal forum offers.”64 We 

therefore decline to disturb the district court’s refusal to remand this 

case to state court.

62 Vaden, 556 U.S. at 71.

63 See 53rd Street, LLC, 2021 WL 3412063, at *5 (noting the “inevitable 

additional burdens of cost and delay” in certifying a question to state court

and declining to do so where “no special concerns . . . favor certification”).

64 Grable, 545 U.S. at 312.
19 No. 20-3413

CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s 

December 17, 2019 order.
1

WESLEY, Circuit Judge, dissenting:

When there is an unsettled and important question of New York law that is 

determinative of an appeal, certification to the New York Court of Appeals is 

warranted. See, e.g., Pasternack v. Lab'y Corp. of Am. Holdings, 807 F.3d 14, 19 (2d 

Cir.), as amended (Nov. 23, 2015). Because it is far from “plain” that New York Civil 

Practice Law and Rule § 7515 (“§ 7515” or “Section 7515”) requires plaintiffs to 

plead “that [their] claim is consistent with federal law,” Maj. Op. at 14–15, this 

issue should be certified for consideration by the New York Court of Appeals.

Section 7515 provides “[e]xcept where inconsistent with federal law, no 

written contract . . . shall contain a prohibited clause” and “the provisions of such 

prohibited clause . . . shall be null and void.” N.Y. C.P.L.R. § 7515(a)(4)(b)(i), (iii). 

A “prohibited clause” is “any clause or provision in any contract which requires 

. . . that the parties submit to mandatory arbitration to resolve any allegation or 

claim of discrimination,” including sexual harassment claims. Id. § 7515(a)(2). A

federal court may exercise federal question jurisdiction “even where a claim finds 

its origins in state rather than federal law” if “a federal issue is: (1) necessarily 

raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal 
2

court without disrupting the federal-state balance approved by Congress.” Gunn 

v. Minton, 568 U.S. 251, 258 (2013). 

A state-law claim necessarily raises a federal issue where the federal issue is 

an element of the plaintiff’s claim; in other words, “where the claim is affirmatively

‘premised’ on a violation of federal law.” New York ex rel. Jacobson v. Wells Fargo 

Nat’l Bank, N.A., 824 F.3d 308, 315 (2d Cir. 2016) (quoting Grable & Sons Metal Prods., 

Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 314 (2005)). The Grable/Gunn test for 

federal question removal jurisdiction “typically fits cases . . . in which a state-law 

cause of action is ‘brought to enforce’ a duty created by [federal law] because the 

claim’s very success depends on giving effect to a federal requirement.” Merrill 

Lynch, Pierce, Fenner & Smith Inc. v. Manning, 136 S. Ct. 1562, 1570 (2016). 

Accordingly, for § 7515 to satisfy the “necessarily raises a federal issue” factor, it 

must require plaintiffs to plead as an element of their § 7515 claim that their claim is

not inconsistent with federal law.

Section 7515 does not condition the prohibition of mandatory arbitration 

clauses for discrimination claims on the satisfaction of federal law requirements. 

Instead, the “[e]xcept where inconsistent with federal law” clause in § 7515 states 
3

the obvious: all state statutes must be consistent with federal law under the 

Supremacy Clause of the Constitution; the Supremacy Clause principle exists 

independently of any statute. See U.S. Const. art. VI, cl. 2. The majority contends

§ 7515 “does not simply state the obvious” because “§ 7515 reflects the legislature’s 

deliberate choice to require the plaintiff, at the very outset of bringing a claim 

under the statute, to plead consistency with federal law.” Maj. Op. at 11. This is 

circular reasoning; the majority uses its conclusion that a federal law issue is an 

essential element of a plaintiff’s § 7515 claim to surmise that § 7515 does not simply 

state the obvious.1 

The majority’s “exception versus proviso” discussion also comes up short 

because it misses the premise that “[a]n exception takes out of the statute 

1 Section 7515 likewise does not “transform[]” federal preemption questions from 

“‘doubtful and conjectural’ issues into a concrete dispute ripe for judicial review.” Maj. 

Op. at 11 (quoting Gully v. First Nat. Bank, 299 U.S. 109, 117 (1936)). The issue of whether 

the Federal Arbitration Act (“FAA”) preempts § 7515 becomes concrete, for example, as 

soon as the defendant raises the defense in its answer or upon a motion to compel 

arbitration, both of which are insufficient for federal question removal jurisdiction. See 

Ten Taxpayer Citizens Grp. v. Cape Wind Assocs., LLC, 373 F.3d 183, 191 (1st Cir. 2004) (“It 

is hornbook law that a federal defense does not confer [federal question] jurisdiction, 

regardless whether that defense is anticipated in the plaintiff’s complaint. That is 

generally true even where the asserted defense is the preemptive effect of a federal 

statute.”) (citation omitted).
4

something that otherwise would be part of the subject matter.” N.Y. Stat. Law 

§ 211 (McKinney’s Notes). The “[e]xcept where inconsistent with federal law” 

clause does not create an exception that the plaintiff bears the burden of pleading 

because it does not “take[] out of the statute something that otherwise would be 

part” of the claim; § 7515 would not withstand inconsistency with federal law 

regardless of whether that is articulated in the text of the statute. See id. 

“A basic consideration in the interpretation of a statute is the general spirit 

and purpose underlying its enactment, and that construction is to be preferred 

which furthers the object, spirit and purpose of the statute.” N.Y. Stat. Law § 96. 

Section 7515 was intended “to get at serial sexual predators who have taken 

advantage of the system” and “deal[] with the scourge of sexual harassment.”2 

N.Y. State Senate, Stenographic Rec., 241st Leg., Reg. Sess., at 1853, 1855 (Mar. 30, 

2 The majority quotes excerpts from the New York State Senate floor hearing where 

Senator Catharine Young, the sponsor of the bill, discussed the possibility of federal 

preemption. See Maj. Op. at 14. Senator Young understood § 7515 as potentially 

providing “extra protections” for forms of discrimination other than sexual harassment 

“[i]f there’s a federal preemption” and explained that “we would have to check the 

federal rules” to determine if § 7515 would extend to a “gender harassment” case. See

N.Y. State Senate, Stenographic Rec., 241st Leg., Reg. Sess., at 1851–53 (Mar. 30, 2018). 

Nothing in that discussion indicates that the legislature’s intent was to require plaintiffs 

to plead that their § 7515 claim is not inconsistent with federal law.
5

2018). Requiring plaintiffs to plead a broad matter of law in the negative––that 

their claim is not inconsistent with federal law––strikes me as overly burdensome and 

contrary to the statute’s general spirit and purpose; what would such a pleading 

look like? Although “meaning and effect should be given to all . . . language, if 

possible,” N.Y. Stat. Law § 231, “when the intent is obvious a single word or 

expression may be disregarded as of no force,” id. (McKinney’s Notes). 

Construing the “[e]xcept where inconsistent with federal law” language as being

included as “a matter of form from an abundance of caution,” id., better accords 

with the statute’s aim than does transforming the obvious into an onerous 

pleading burden on the very individuals it is designed to protect.3

This case bears all the hallmarks that warrant certification to the New York 

Court of Appeals. There is no New York state court decision addressing this issue, 

it implicates important state policy concerns, and the plain text of the statute does 

not support the majority’s construction. See Pasternack, 807 F.3d at 22. Indeed, I 

3 The majority concedes “the pleading burden . . . could possibly support Tantaros’s 

reading of § 7515” but is unpersuaded that the burden is “too onerous” because “[i]t is 

quite evident that the § 7515 limitation is directed at one particular statute, the FAA.” 

Maj. Op. at 13. The majority’s assumption contravenes the plain text of the statute, which 

states “[e]xcept where inconsistent with federal law,” not just the FAA. N.Y. C.P.L.R. 

§ 7515(a)(4)(b)(i), (iii) (emphasis added).
6

am hard-pressed to believe the New York State Legislature intended to make 

virtually every § 7515 claim, a purely state-law right, removable to federal court. 

See N.Y. State Senate, Stenographic Rec., 241st Leg., Reg. Sess., at 1856 (Mar. 30, 

2018) (Senator Young explaining that “one of the reasons that we [codify certain 

parts of federal law]” is to “open[] the door so that someone can go to a state court

instead of having to go to a federal court”).4 

Because the New York Court of Appeals is the umpire better suited to make 

this call, I would reserve decision and certify the question of whether § 7515 

requires plaintiffs to plead that their claim is not inconsistent with federal law to 

the New York Court of Appeals.

4 The majority quotes a recent case observing that “there are drawbacks to certification” 

such as increased expenses for the parties and delays. Maj. Op. at 9 n.24; 18 n.63 (quoting 

53rd St., LLC v. U.S. Bank Nat’l Ass’n, No. 20-1804-CV, 2021 WL 3412063, at *5 (2d Cir. 

Aug. 5, 2021)). But unlike 53rd St., a diversity jurisdiction case where the panel’s decision 

relied on the application of an opinion by the New York Court of Appeals, see 2021 WL 

3412063, at *4, here there is no equivalent. Contrary to Judge Leval’s point that “New 

York’s highest court . . . does not lack opportunities to establish New York law in these 

matters,” id. at*5, the majority’s decision in effect deprives New York courts of the chance 

to apply its own statute by making virtually every § 7515 claim removable without 

seeking input from the judicial authority best equipped to interpret New York law. The 

“special concerns,” id., involved in this case bear no resemblance to the circumstances in 

53rd St.