United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge.
are again. More than two years after the court ordered the
parties to arbitrate their dispute, defendant LCC
International, Inc. (“LCC”) again applies for
relief from the court's earlier decision compelling the
parties to arbitrate the dispute whether their arbitration
agreement authorizes collective arbitration. And, LCC again
asks the court to vacate the arbitrator's decision that
plaintiffs can assert Fair Labor Standards Act
(“FLSA”) collective action claims on behalf of
themselves and all others similarly situated in an
arbitration proceeding against LCC. LCC's newest filing-a
Motion to Vacate Class Determination Award (Doc.
105)-doesn't provide any reason for the court to change
its earlier rulings or vacate the arbitrator's decision.
The court thus denies the Motion to Vacate Class
Determination Award (Doc. 105). It explains why, below.
Richard Torgerson, Robert Hall, Shelley Gordon, Bryon Hughes,
and Moses Boye-Doe worked for LCC as Migration Analysts. On
February 3, 2016, plaintiffs filed this lawsuit, on behalf of
themselves and others similarly situated, alleging that LCC
had violated the FLSA by improperly classifying all LCC
employees working in a Migration Analyst position as
employees exempt from the FLSA's overtime requirements.
Plaintiffs' Complaint seeks to recover unpaid overtime
compensation under the FLSA on behalf of themselves and
other, similarly situated Migration Analysts.
condition of their employment with LCC, each plaintiff signed
an Employee Agreement (“Agreement”). Among other
things, the Agreement contains the following arbitration
5.4 Arbitration: Any controversy or claim arising
ou[t] of or relating to this Agreement, the breach or
interpretation thereof or Employee's employment with LCC
shall be settled by arbitration in Arlington, Virginia in
accordance with the then prevailing rules of the American
Arbitration Association, and judgment upon the award shall be
final, conclusive and binding. All costs of arbitration shall
be borne by the losing party, unless the arbitrators decide
such costs should be allocated between the parties in
particular proportions. Notwithstanding the foregoing, LCC
shall be entitled to seek injunctive or other equitable
relief pursuant to the provisions of Section 5.1 hereof in
any federal or state court having jurisdiction.
Doc. 106-2 at 5.
on this Agreement, LCC filed a Motion to Dismiss or, in the
Alternative, to Stay Proceedings and Compel Arbitration. Doc.
28. On August 10, 2016, the court granted in part
and denied in part defendants' Motion to Dismiss or, in
the Alternative, to Stay Proceedings and Compel Arbitration.
Doc. 62. The court concluded that plaintiffs had
signed an employment agreement that requires them to
arbitrate their FLSA claims. Id. at 5. The court
thus granted defendants' request to stay the case and
compelled the parties to proceed to arbitration. Id.
at 6. Also, the court denied the portion of defendants'
motion asking the court to decide whether the employment
agreement permits collective arbitration because, the court
ruled, the arbitrator must decide that issue. Id. at
8. And, for the same reasons, the court declined to decide
plaintiffs' Motion for Conditional Certification of Class
Claims Under § 216(b) of the FLSA without prejudice to
their right to present this request to an arbitrator.
January 17, 2017, Mr. Torgerson submitted a Demand for
Arbitration to the American Arbitration Association
(“AAA”). Doc. 106-4 at 2. Mr. Torgerson's
demand sought to assert a collective action on behalf of
himself and others similarly situated. Id.
2, 2017, LCC filed a Motion for Clause Construction in the
arbitration asking the arbitrator to dismiss the collective
action claims. Doc. 106-7. On June 30, 2017, the arbitrator
issued an Order on Threshold Matters and on Respondent's
Motion for Clause Construction Award. Doc. 106-8. The
arbitrator's Order determined that the arbitration
provisions in plaintiffs' Agreement were valid and
enforceable and that plaintiffs' FLSA claims fall within
the scope of the Agreement's arbitration provisions.
Id. at 7-8. Also, the arbitrator concluded that the
Agreement authorizes plaintiffs to proceed on a collective
basis. Id. at 11-13. Thus, the arbitrator dismissed
LCC's Motion for a Final Clause Construction Award.
Id. at 13.
response to the arbitrator's decision, LCC filed a
Petition to Vacate the Arbitrator's Final Clause
Construction Award in the Eastern District of Virginia.
Petition to Vacate, LCC Int'l, Inc. v. Richard
Torgerson, No. 17-00860 (E.D. Va. July 28, 2017), ECF 1.
After the parties entered a Joint Stipulation to transfer
LCC's Petition to the District of Kansas, the Eastern
District of Virginia transferred the action to our
court. On January 25, 2018, the court denied
LCC's Petition to Vacate. LCC Int'l, Inc. v.
Torgerson, No. 17-2508-DDC-TJJ, 2018 WL 558141 (D. Kan.
Jan. 25, 2018). Among other things, the court held that the
arbitrator had not exceeded his authority when he concluded
that the parties' Agreement authorizes plaintiffs to
assert FLSA claims on a collective basis. Id. at
*10-11. The court thus denied LCC's Petition to Vacate.
arbitration, LCC again moved the arbitrator to dismiss the
collective action claims by filing a Motion to Decertify FLSA
Collective Arbitration on May 1, 2019. Doc. 106-10. Among
other things, LCC's motion argued that the Supreme
Court's recent decision in Lamps Plus, Inc. v.
Varela, 139 S.Ct. 1407 (2019), required the arbitrator
to decertify the collective arbitration. Id. at 4,
8, 2019, the arbitrator denied LCC's Motion to Decertify
Collective Arbitration. Doc. 106-13. In response to LCC's
argument about Lamps Plus, the arbitrator explained
that the Supreme Court held in that case:
“‘Courts may not infer from an ambiguous
agreement that parties have consented to arbitrate on a
classwide basis.'” Id. at 2 (quoting
Lamps Plus, 139 S.Ct. at 1419). The arbitrator
explained that the Lamps Plus holding does not apply
to the Agreement at issue in the arbitration because
“Varela's holding was explicitly limited
to the question of whether ‘an ambiguous
agreement can provide the necessary “contractual
basis” for compelling class arbitration.'”
Id. (quoting Lamps Plus, 139 S.Ct. at 1415)
(emphasis added). In contrast, the arbitrator found that the
Agreement at issue here is “unambiguous.”
Id. And, based on the “unambiguous, express
words of the parties' arbitration agreement, ” the
arbitrator already had concluded that the parties had agreed
to arbitrate their claims on a collective basis. Id.
The arbitrator thus denied LCC's Motion to Decertify FLSA
Collective Arbitration based on Lamps Plus.
Id. at 2-3.
undaunted, LCC applies to the court for relief again-this
time from the arbitrator's latest ruling. LCC asks the
court to vacate the arbitrator's Order denying LCC's
Motion to Decertify FLSA Collective Arbitration. And it seeks
an order requiring plaintiffs to arbitrate their FLSA claims
on an individual basis. The court addresses LCC's
arguments for vacatur, below.
Federal Arbitration Act (“FAA”) provides that
courts may vacate an arbitrator's decision but
“only in very unusual circumstances.” Oxford
Health Plans LLC v. Sutter, 569 U.S. 564, 568 (2013)
(quoting First Options of Chi., Inc. v. Kaplan, 514
U.S. 938, 942 (1995)). “That limited judicial review .
. . ‘maintain[s] arbitration's essential virtue of
resolving disputes straightaway.'” Id.
(quoting Hall St. Assocs., LLC v. Mattel, Inc., 552
U.S. 576, 588 (2008)). Because “[i]f parties could take
‘full-bore legal and evidentiary appeals,'
arbitration would become ‘merely a prelude to a more
cumbersome and time-consuming judicial review
process.'” Id. (quoting Hall St.
Assocs., 552 U.S. at 588). And, “by agreeing to
arbitrate, a party ‘trades the procedures and
opportunity for review of the courtroom for the simplicity,
informality, and expedition of arbitration.'”
Gilmer v. Interstate/Johnson Lane Corp., 500 U.S.
20, 31 (1991) (quoting Mitsubishi Motors Corp. v. Soler
Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (1985)).
with this governing standard, our Circuit has explained that
“[j]udicial review of arbitration panel decisions is
extremely limited[.]” Dominion Video Satellite,
Inc. v. Echostar Satellite LLC, 430 F.3d 1269, 1275
(10th Cir. 2005). The Circuit even has described it as
“‘among the narrowest known to law.'”
Id. (quoting Bowen v. Amoco Pipeline Co.,
254 F.3d 925, 932 (10th Cir. 2001)). The court must
“afford maximum deference to the arbitrator's
decision” because “[a]ny less deference would
risk improperly substituting a judicial determination for the
arbitrator's decision that the parties bargained