SCOTT M. MCELHANEY
Partner
Litigation, Appellate, Labor and
Employment
A.B., Dartmouth College
J.D., Harvard Law School
Scott M. McElhaney tries cases, handles appeals, and provides counsel for large and small companies as
well as business executives. His aim is to help clients cost-effectively resolve commercial disputes and
employment law matters.
He has over 25 years of experience in contract and commercial tort suits and trade secret and non-
competition agreement cases. He regularly advises businesses on employment disputes and handles
employment discrimination, ERISA and other labor claims. He focuses on the long-term commercial
needs of his clients by identifying risks and providing strategies for handling complex legal challenges.
Scott has had jury trials in both federal and state courts as well as arbitrations before panels of arbitrators.
He also uses his appellate experience to defend favorable trial court judgments and obtain reversal of
adverse results, and he has successfully handled multiple class actions at the trial and appellate level.
In addition to his practice, Scott is active in the Bar and legal community. In 2014, he served as the
President of the Dallas Bar Association. He currently serves as a trustee of the Dallas Bar Foundation. He
chaired the DBA’s Equal Access to Justice Campaign, and is a past Chair of the DBA’s Business
Litigation Section and Judiciary Committee. Scott has also served on the State Bar’s District 6 Grievance
Committee and as Vice Chair of the Dallas Committee for a Qualified Judiciary.
Scott has also been a Lecturer at SMU’s Dedman School of Law, where he taught Employment Law and
Legal Research and Writing.
After graduating from Harvard Law School, he was a Law Clerk to Judge Irving Goldberg of the U.S.
Court of Appeals for the Fifth Circuit and to Judge Barefoot Sanders of the U.S. District Court for the
Northern District of Texas.
REPRESENTATIVE CASES
Obtained and defended on appeal summary judgment for a title company that it did not owe
negligence and fiduciary duties to the party to a real estate transaction as alleged. IQ Holdings,
Inc. v. Stewart Title Guar. Co., 451 S.W.3d 861 (Tex. App. – Houston [1st Dist.] 2014, no pet.).
Overturned an over $2 million trial court judgment that had been entered against the client in a
breach of contract case on the grounds that the terms of the alleged contract were too indefinite to
be enforced. FFSS v. Corilant Financial, L.P., 376 S.W.3d 253 (Tex. App. – Dallas 2012, pet.
denied).
Defeated motion for class certification of putative Texas-based class after a contested hearing in a
class arbitration proceeding before the American Arbitration Association.
Secured a defense verdict from a federal court jury in an age discrimination case alleging
wrongful discharge.
Successfully settled attempted nationwide FLSA collective action for unpaid overtime
Won and successfully defended on appeal summary judgment in favor of client on ERISA
estoppel, waiver, and breach of fiduciary duty claims for $1 million in plan benefits.
MEMBERSHIPS
Mr. McElhaney has been elected to be a Fellow in the American Bar Foundation, a Fellow of the Texas
Bar Foundation, and a Life Fellow of the Dallas Bar Foundation.
COMMUNITY INVOLVEMENT
Apart from his work with the Dallas Bar Association and Dallas Bar Foundation, Mr. McElhaney is a
member of the Leadership Dallas Class of 2004.
AWARDS
Listed in The Best Lawyers in America under Commercial Litigation (2008-2018), Labor and
Employment Law (2008-2018), Litigation – ERISA and Labor & Employment (2012-2018)
Named a “Super Lawyer” by Thomson Reuters, 2004-2017
Selected as a “Best Lawyer in Dallas” in D Magazine
Selected as a “Best Lawyer in Dallas Under 40” in D Magazine
EDUCATION
Mr. McElhaney received his A.B. degree, summa cum laude, in History from Dartmouth College, where
he was elected to Phi Beta Kappa. He obtained his J.D. degree, cum laude, from Harvard Law School,
where he was Managing Editor of the Harvard Civil Rights –Civil Liberties Law Review.
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TABLE OF CONTENTS
Page
I. INTRODUCTION..............................................................................................................1
II. THE FEDERAL ARBITRATION ACT AND TEXAS ARBITRATION ACT ...........1
A. The Federal Arbitration Act. ....................................................................................1
1. Scope of the FAA: To the Furthest Reach of Congress’s
Commerce Power. ........................................................................................1
2. Neither Employment Agreements Nor Statutory
Employment Claims Are Exempt from the FAA. .......................................2
3. The FAA Applies in State Courts and Preempts State Law Hostile
to Arbitration, but Does Not Preempt Generally Applicable
Contract Law. ...............................................................................................2
4. Remedy Under the FAA: Judicial Enforcement of Arbitration
Agreements. .................................................................................................3
5. Invoking the FAA: Showing That the Agreement “Involves
Commerce.” .................................................................................................3
6. Invoking the FAA: Agreement of the Parties May Also Be
Sufficient. .....................................................................................................4
B. The General Texas Arbitration Act..........................................................................5
1. Scope of the TAA. .......................................................................................5
2. Exceptions to the TAA’s Coverage. ............................................................5
3. Remedy Under the TAA: Judicial Enforcement of Arbitration
Agreements. .................................................................................................5
4. Parties May Agree to Appellate Review ......................................................5
III. ENFORCING AND AVOIDING ARBITRATION AGREEMENTS ..........................6
A. Issues Surrounding the Creation and
Validity of a Purported Agreement to Arbitrate. .....................................................8
1. Is There an Agreement to Arbitrate? ...........................................................9
a. There Must Be an Agreement To Arbitrate. ....................................9
b. There is No Specific Requirement That the Agreement be
Signed. .............................................................................................9
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c. Arbitration Agreements Need Not Appear in Any Particular
Place. ..............................................................................................10
d. Enforceability Through Mutuality of Obligation. ..........................10
e. In the Employment Context, Promulgation of an
Arbitration Policy Coupled With Continued Employment
Can Be Sufficient to Create a Binding Agreement. .......................11
f. The Party Enforcing the Agreement Must Prove It Has the
Right to Do So. ..............................................................................12
g. Other Factors Relating to Creation of an Arbitration
Agreement. .....................................................................................13
h. In Some Circumstances, Non-Parties May
Be Covered by an Arbitration Agreement .....................................13
2. Is the Arbitration Agreement Subject to
Generally Applicable State Law Defenses? ...............................................19
a. Burden of Persuasion Rests With the Party Opposing
Arbitration. .....................................................................................19
b. Attacks on the Enforceability of a
Contract as a Whole Are for the Arbitrator. ..................................20
c. Material Breach of the Arbitration Agreement. .............................20
d. Waiver of the Right to Compel Arbitration. ..................................21
e. Condition Precedent to Arbitration ................................................24
f. Arbitration Agreements Procured by Duress. ................................24
g. Unconscionability of an Arbitration Agreement............................24
B. Issues Surrounding Whether a Dispute Falls
Within the Scope of an Arbitration Agreement. ....................................................34
1. The Presumption in Favor of Finding Disputes to be Covered. ................34
2. Arbitration Will be Ordered Even if Piecemeal Litigation Results. ..........35
3. An Opponent of Arbitration Has the Burden to Show No
Coverage. ...................................................................................................35
4. Focus of Inquiry is on Allegations of the Complaint and the
Language of the Arbitration Clause. ..........................................................36
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5. The Effect of “Broad” Arbitration Clauses. ...............................................36
6. Claims that Are Intertwined With Causes of Action That
Are Subject to Arbitration Are Themselves Arbitrable. ............................37
7. Arbitration Cannot Be Avoided by Recasting Claims. ..............................38
8. Specific Exceptions Will Be Enforced. .....................................................38
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ENFORCING AND AVOIDING ARBITRATION CLAUSES
I. INTRODUCTION
For a variety of reasons, many companies that face lawsuits on a regular basis have
sought to replace the supposed “uncertainty” of the courthouse with the supposed “certainty and
efficiency” of arbitration. Some of the asserted justifications for channeling disputes into
arbitration—such as reducing the time to resolution—are laudable. Other motivations for
requiring arbitration—such as a desire for secrecy—are more controversial.
Whatever the motivation for the use of arbitration agreements, conflicts over whether
legal claims should be subject to arbitration present a rich source for dispute. These disputes
often spill over into arguments about whether supposed agreements to arbitrate are enforceable.
This Paper attempts to survey the current state of many such arguments.
II. THE FEDERAL ARBITRATION ACT AND TEXAS ARBITRATION ACT
Common law courts historically resisted enforcing arbitration agreements. One reason
was that judges perceived arbitration to be an encroachment on their power. See, e.g., Allied-
Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 270-71 (1995) (discussing same). Congress
passed the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq., in 1925 to reverse this
sentiment and put arbitration agreements on the same footing as other contracts. Id. The Texas
Legislature later passed the Texas General Arbitration Act (“TAA”), Tex. Civ. Prac. & Rem.
Code §171.001 et seq., which largely tracks the FAA, but contains certain differences relating to
arbitration procedure.
A. The Federal Arbitration Act.
1. Scope of the FAA: To the Furthest Reach of Congress’s Commerce Power.
The Federal Arbitration Act (“FAA”) puts arbitration agreements on the same footing as
contracts generally. The principal substantive section of the Act sets out this rule:
A written provision in any . . . contract evidencing a transaction involving
commerce to settle by arbitration a controversy thereafter arising out of such
contract or transaction. . . shall be valid, irrevocable, and enforceable, save upon
such grounds as exist at law or in equity for the revocation of any contract.
9 U.S.C. § 2. Thus, an agreement to arbitrate is valid under the FAA if it meets the requirements
of the general contract law of a state. First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944
(1995); In re AdvancePCS Health L.P., 172 S.W.3d 603 (Tex. 2005). The United States Supreme
Court has explained that the phrase “involving commerce” was enacted with an intent “to
exercise Congress’s commerce power to the full.” Allied-Bruce Terminix Cos. v. Dobson, 513
U.S. 265, 277 (1995).
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2. Neither Employment Agreements Nor Statutory
Employment Claims Are Exempt from the FAA.
For a time, confusion arose out of the fact that FAA Section 1 excludes from the Act’s
coverage “contracts of employment of seamen, railroad employees, or any other class of workers
engaged in foreign or interstate commerce.” Some argued that this exemption applied to all
contracts of employment, given the sweep of the Supreme Court’s definition of interstate
commerce. In Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001), however, the Supreme
Court explained that the statutory exemption for worker engaged “in” interstate commerce
applied only to contracts of employment of workers actually engaged in the movement of goods
in interstate commerce, not other employment contracts.
Ten years earlier, the Supreme Court rejected the argument that statutory discrimination
claims were exempt from arbitration agreements. In Gilmer v. Interstate/Johnson Lane Corp.,
500 U.S. 20 (1991), the Court held that, where there is no inherent conflict between arbitration
and the underlying purposes of anti-discrimination statutes, such as was the case with the Age
Discrimination in Employment Act claim at issue in that suit, the FAA required enforcement of
agreements to arbitrate such claims. The Gilmer decision is widely viewed as being a catalyst for
the growth of the use of arbitration agreements to cover employment disputes.
The Fifth Circuit has expressly held that Title VII claims, like ADEA claims, are
arbitrable. Alford v. Dean Witter Reynolds, Inc., 939 F.2d 229, 230 (5th Cir. 1991). More
recently several cases have made clear that other employment-related claims are not immune
from arbitration. See, e.g., Carter v. Countrywide Credit Indus., Inc., 362 F.3d 294, 298 (5th Cir.
2004) (“We thus find unpersuasive the Carter Appellants’ contention that FLSA claims are not
subject to arbitration.”); Garrett v. Circuit City Stores, Inc., 449 F.3d 672 (5th Cir. 2006)
(provisions of USERRA do not preclude enforcement of agreement to arbitrate such disputes).
Also recall that in 14 Penn Plaza LLC v. Pyett, 556 U.S. 247 (2009), the Supreme Court
held that a provision in a collective-bargaining agreement that clearly and unmistakably requires
union members to arbitrate ADEA claims is enforceable.
3. The FAA Applies in State Courts and Preempts State Law Hostile to
Arbitration, but Does Not Preempt Generally Applicable Contract Law.
When it applies, the FAA governs proceedings in state courts and pre-empts state laws
hostile to arbitration or inconsistent with the provisions of the FAA. Fredericksburg Care Co.,
L.P. v. Perez, 461 S.W.3d 513, 517-18 (Tex. 2015); Jack B. Anglin Co. Inc. v. Tipps, 842 S.W.2d
266, 271 (Tex. 1992); Marmet Health Care Center, Inc. v. Brown, 565 U.S. 530 (2012).
However, generally applicable state contract law remains in place:
States may regulate contracts, including arbitration clauses, under general
contract law principles, and they may invalidate an arbitration clause “upon such
grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C.
§ 2 (emphasis added). What States may not do is decide that a contract is fair
enough to enforce all its basic terms (price, service, credit), but not fair enough to
enforce its arbitration clause. The Act makes any such state policy unlawful, for
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that kind of policy would place arbitration clauses on an unequal “footing,”
directly contrary to the Act’s language and Congress’ intent.
Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 281 (1995); see Iberia Credit Bureau Inc.
v. Cingular Wireless LLC, 379 F.3d 159, 166 (5th Cir. 2004) (noting same).
4. Remedy Under the FAA: Judicial Enforcement of Arbitration Agreements.
Section 4 of the FAA requires a court to order a party to arbitrate its claims upon a
showing that there is an enforceable agreement to arbitrate the claims at issue. 9 U.S.C. § 4.
Section 3 of the FAA requires a court to stay a case until arbitration has been completed.
9 U.S.C. § 3. Given these statutory commands, a court does not have the discretion to delay
compelling arbitration pending the completion of discovery. In re Champion Technologies, Inc.,
173 S.W.3d 595, 599 (Tex. App. – Eastland, orig. proceeding); see also In re Heritage Bldg.
Sys., Inc., 185 S.W.3d 539, 542 (Tex. App. – Beaumont 2006, orig. proceeding) (trial court had
no authority to compel mediation pending a ruling on a motion to compel arbitration). In fact, an
undue delay in ruling on a motion to compel arbitration may also be grounds for mandamus
relief. In re Shredder Co, LLC, 225 S.W.3d 676 (Tex. App. – El Paso 2006, orig. proceeding).
What if one party says that no arbitration should be compelled because a court does not
have jurisdiction to compel arbitration because the underlying dispute between two parties is not
ripe? Courts explain that they must “look through” the petition to compel arbitration in order to
determine whether the underlying dispute presents a sufficiently ripe controversy. In other
words, under § 4, courts assume that the arbitration agreement does not exist and ask whether it
would have jurisdiction over the underlying dispute. Vaden v. Discover Bank, 556 U.S. 49
(2009); Lower Colorado River Auth. v. Papalote Creek II, L.L.C., 858 F.3d 916 (5th Cir. 2017).
Note – Whether the FAA bars a court from entering a preliminary injunction pending
arbitration turns on whether the parties contemplated such relief pending arbitration. See RGI,
Inc. v. Tucker and Assoc., Inc., 858 F.2d 227, 228 (5th Cir. 1988); Metra United Escalante, L.P.
v. Lynd Co., 158 S.W.3d 535, 539-40 (Tex. App. – San Antonio 2004, no pet.); Feldman/Matz
Interests L.L.P. v. Settlement Capital Corp., 140 S.W.3d 879, 884 (Tex. App. – Houston [14th
Dist.] 2004, no pet.).
5. Invoking the FAA: Showing That the Agreement “Involves Commerce.”
To invoke the FAA, an applicant for an order compelling arbitration must show that the
agreement containing an arbitration clause involves interstate commerce. In re FirstMerit Bank,
N.A., 52 S.W.3d 749, 754 (Tex. 2001) (noting that the FAA extends to the furthest reaches of
Congress’s commerce power and that the issue is whether the contract “relates to interstate
commerce,” not whether the transaction was in interstate commerce).
This is not an onerous burden given the breadth of Congress’ power to regulate interstate
commerce. See, e.g., Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 252-253 (1964)
(finding Title II of the Civil Rights Act of 1964 to be a valid exercise of Congress’ commerce
power). Proof of practically any link to interstate commerce will suffice. In re Nexion Health,
173 S.W.3d 57 (Tex. 2005) (receipt and Medicare payments to pay for medical care for husband
at hospital sufficient connection to interstate commerce for wife’s wrongful death suit against
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hospital for death of husband); In re MP Ventures of South Texas, Ltd., 276 S.W.3d 524, 529
(Tex. App.—San Antonio 2008, orig. proceeding) (contract to purchase and install greenhouse
related to interstate commerce because materials used to construct greenhouse were transported
from out of state); American Medical Tech., Inc. v. Miller, 149 S.W.3d 265, 269 (Tex. App. –
Houston [14th Dist.] 2004, no pet.) (employment agreement calling for transfer of securities
listed on NASDAQ showed contract involved commerce); In re Tenet Healthcare Ltd., 84
S.W.3d 760, 765 (Tex. App. – Houston [1st Dist.] 2002, orig. proceeding) (employment
agreement between distribution clerk and hospital related to interstate commerce because
hospital treated out-of-state patients and received goods, services, and payments from out-of-
state entities); Palm Harbor Homes, Inc. v. McCoy, 944 S.W.2d 716, 719-20 (Tex. App. – Ft.
Worth 1997, orig. proceeding) (FAA applied where component part of mobile home at issue was
manufactured out of state).
Note – A reference to the applicability of Texas substantive law in a contract that
contains an arbitration clause does not affect application of the FAA in assessing arbitrability.
Mesa Operating L.P. v. Louisiana Intrastate Gas Corp., 797 F.2d 238, 243-44 (5th Cir. 1986);
McGrath v. FSI Holdings, Inc., 246 S.W.3d 796, 803 (Tex. App. – Dallas 2008, pet. denied);
American Medical Tech., Inc. v. Miller, 149 S.W.2d 265, 269 (Tex. App. – Houston [14th Dist.]
2004, no pet.); Cooper v. WestEnd Cap. Mgmt., 832 F.3d 534 (5th Cir. 2016) (choice of law
provision alone does not signal intent to depart from default FAA rules regarding vacatur).
Similarly, if an arbitration agreement does not specify whether the Texas General Arbitration Act
or the Federal Arbitration Act applies, then both laws may apply (if the dispute involves
interstate commerce). In re Devon Energy Corp., 332 S.W.3d 543, 547 (Tex. App. – Houston
[1st Dist.] 2009, orig. proceeding). However, one court has held that if an arbitration agreement
refers to the Texas General Arbitration Act alone, then it is deemed to exclude the FAA, and
motions to compel arbitration are deemed to arise under the Texas statute. Atlas Gulf-Coast, Inc.
v. Stanford, 299 S.W.3d 356, 358 (Tex. App. – Houston [14th Dist.] 2009, orig. proceeding).Yet
as to whether an arbitration clause applies to non-signatories, federal arbitration law can
nonetheless apply. Covington v. Aban Offshore Ltd., 650 F.3d 556, 559 n.1 (5th Cir. 2011).
Moreover, parties can agree to arbitrate under state arbitral rules alone. See Volt Info.
Scis., Inc. v. Bd. of Trs. of Leland Stanford Junior Univ., 489 U.S. 468, 479 (1989). Thus courts
have held that a generic Texas choice of law clause makes the TAA applicable. ASW Allstate
Painting & Constr. v. Lexington Ins. Co., 188 F.3d 307 (5th Cir. 1999). Ultimately, a court must
ascertain the intent of a choice of law clause. See In re Olshan Found. Repair Co., 328 S.W.3d
883, 889 (Tex. 2010); BDO Seidman, LLP v. J.A. Green Dev., 327 S.W.3d 852 (Tex. App. –
Dallas 2010, no pet.).
6. Invoking the FAA: Agreement of the Parties May Also Be Sufficient.
An agreement between the parties may also be sufficient to invoke the FAA. FirstLight
Fed. Credit Union v. Loya, 478 S.W.3d 157, 162 n.2 (Tex. App. – El Paso 2015, no pet.); In re
Pham, 314 S.W.3d 520 (Tex. App. – Houston [1st Dist.] 2010, orig. proceeding) (collecting
cases); Roy v. Ladyman, 318 S.W.3d 502 (Tex. App. – Dallas 2010, no pet.); In re HEB Grocery
Co., 299 S.W.3d 393, 397 (Tex. App. – Corpus Christi, 2009, orig. proceeding); In re Kellogg
Brown & Root, 80 S.W.3d 611, 617 (Tex. App. – Houston [1st Dist.] 2002, orig. proceeding)
(when “the parties agree to arbitrate under the FAA, they are not required to establish that the
transaction at issue involves or affects interstate commerce”); but see In re FirstMerit Bank, 52
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S.W.3d 749, 754 (Tex. 2001) (examining whether transaction at issue related to interstate
commerce even though agreement stated the parties agreement that the FAA applied).
B. The General Texas Arbitration Act.
1. Scope of the TAA.
In 1965, the Texas Legislature passed its own arbitration act. The Texas General
Arbitration Act (“TAA”) tracks the relevant substantive parts of the FAA. See Tex. Civ. Prac. &
Rem. Code § 171.001 (noting that a “written agreement to arbitrate is valid and enforceable” and
may be avoided “only on a ground that exists at law or in equity for the revocation of a
contract”).
2. Exceptions to the TAA’s Coverage.
The TAA excludes from its coverage several types of claims, including collective
bargaining agreements, claims for workers’ compensation benefits, and claim in which an
individual furnishes less than $50,000 consideration for goods or services and the agreement is
not in writing and signed by each party’s attorney. See Tex. Civ. Prac. & Rem. Code
§ 171.002(a). However, the FAA does not contain such exceptions, and whenever the FAA
applies, the Supremacy Clause ensures that it will trump the TAA. Marmet Health Care Center,
Inc. v. Brown, 565 U.S. 530 (2012); In re Nexion Health, 173 S.W.3d 67 (Tex. 2005).
3. Remedy Under the TAA: Judicial Enforcement of Arbitration Agreements.
Like the FAA, the TAA requires a court to order parties to arbitrate their claims upon a
showing that an agreement to arbitrate the claims exists and is enforceable. See Tex. Civ. Prac. &
Rem. Code § 171.021. As with the FAA, a trial court has no discretion to refuse to order
arbitration. See In re MHI Partnership, Ltd., 7 S.W.3d 918, 923 (Tex. App. – Houston [1st Dist.]
1999, orig. proceeding) (trial court had no authority to defer ruling on motion to compel
arbitration pending completion of discovery); cf. In re Houston Pipe Line Co., 311 S.W.3d 449
(Tex. 2009) (pre-arbitration discovery is expressly authorized under the TAA when a trial court
cannot fairly and properly make its decision on the motion to compel arbitration because it lacks
sufficient information regarding the scope of an arbitration provision or other issues of
arbitrability). Also like the FAA, the proper procedure after entry of an order referring a dispute
to arbitration is to stay the case. Tex. Civ. Prac. & Rem. Code § 171.025.
4. Parties May Agree to Appellate Review
Under the FAA, the grounds for vacating an arbitration award are “exclusive” and cannot
be supplemented by an arbitration agreement to allow for more plenary appellate review. Hall
Street Assoc., L.L.C. v. Mattel, Inc., 552 U.S. 576, 578 (2008). In contrast, the Supreme Court of
Texas has held that—because arbitrators derive their powers from the parties’ contract—an
arbitration agreement that provides that an arbitrator does not have the authority (a) to render a
decision that contains reversible error or (b) to apply a cause of action or remedy not provided
for by law may be enforced, and is not preempted by the FAA. In effect, this holding allows
parties to contract for appellate review of arbitral decision. See Nafta Traders, Inc. v. Quinn, 339
S.W.3d 84 (Tex. 2011).
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III. ENFORCING AND AVOIDING ARBITRATION AGREEMENTS
Whether analyzed under the Federal Arbitration Act (“FAA”) or the Texas Arbitration
Act (“TAA”), in order to determine whether a dispute is subject to arbitration, two overarching
questions must be analyzed: first, whether the parties entered into any arbitration agreement at
all, and second, whether the dispute in question is covered by the arbitration agreement. Archer
& White Sales, Inc. v. Henry Schein, Inc., 878 F.3d 488 (5th Cir. 2017) (FAA); G.T. Leach
Builders, LLC v. Sapphire V.P., L.P., 458 S.W.3d 502, 524 (Tex. 2015) (TAA).
The first overarching issue—whether the parties entered into any arbitration agreement at
all—is “one of pure contract formation, and it looks only at whether the parties ‘form[ed] a valid
agreement to arbitrate some set of claims.’” Archer & White Sales, Inc. v. Henry Schein, Inc.,
878 F.3d 488, 492 (5th Cir. 2017). This inquiry is for a court, and the court merely asks “did the
parties form a valid agreement to arbitrate some set of claims.” IQ Prods. Co. v. WD-40 Co., 871
F.3d 344, 348 (5th Cir. 2017).
Before deciding the second overarching issue—whether the dispute in question is
covered by the arbitration agreement— courts must ask who has the power to decide whether the
claim is arbitrable. That issue “turns on ‘whether the agreement contains a valid delegation
clause—“that is, if it evinces an intent to have the arbitrator decide whether a given claim must
be arbitrated.”’” Archer & White Sales, Inc. v. Henry Schein, Inc., 878 F.3d 488, 492 (5th Cir.
2017).
Through delegation clauses, parties may agree to arbitrate “gateway” issues of
arbitrability—i.e., issues such as whether an agreement is enforceable or whether the agreement
covers a particular controversy. An agreement to arbitrate these gateway issues “is simply an
additional, antecedent agreement the party seeking arbitration asks the federal court to enforce,
and the FAA operates on this additional arbitration agreement just as it does on any other.” Rent-
A-Center West, Inc. v. Jackson, 561 U.S. 63, 70 (2010); Lefoldt v. Horne, L.L.P., 853 F.3d 804
(5th Cir. 2016). Thus, “[j]ust as the arbitrability of the merits of a dispute depends upon whether
the parties agreed to arbitrate that dispute, so the question ‘who has the primary power to decide
arbitrability’ turns upon what the parties agreed about that matter.” First Options of Chicago,
Inc. v. Kaplan, 514 U.S. 938, 943 (1995) (citations omitted). Under this framework, if a party
asserts that an arbitration agreement contains a delegation clause, this court only asks (1)
whether the parties entered into a valid arbitration agreement and, if so, (2) whether the
agreement contains a valid delegation clause. Kubala v. Supreme Prod. Servs., Inc., 830 F.3d 199
(5th Cir. 2016). Courts thus note that “[i]f there is a delegation clause, the motion to compel
arbitration should be granted in almost all cases.” Id. The only caveat is that parties must clearly
and unmistakably agree to delegate such gateway issues to an arbitrator. Rent-A-Center, 561 U.S.
at 68-69; IQ Prods. Co. v. WD-40 Co., 871 F.3d 344 (5th Cir. 2017).
As explained more thoroughly below, when an arbitration agreement contains a
delegation provision the courts only have the authority to review a challenge to that specific
provision. However, the Fifth Circuit has carved out a narrow exception to the Rent-A-Center
rule: Where the argument for arbitration is “wholly groundless,” the Circuit refuses to enforce a
delegation clause. See Archer & White Sales, Inc. v. Henry Schein, Inc., 878 F.3d 488, 492 (5th
Cir. 2017); Douglas v. Regions Bank, 757 F.3d 460, 464 (5th Cir. 2014); but see Jones v. Waffle
House Inc., 866 F.3d 1257 (11th Cir. 2017) (rejecting this exception).
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Texas courts have also recognized the principle set out in Rent-A-Center. See Forest Oil
Corp. v. McAllen, 268 S.W.3d 51, 61 (Tex. 2008); McGehee v. Bowman, 339 S.W.3d 820 (Tex.
App. – Dallas 2011, no pet.); Schlumberger Tech. Corp. v. Baker Hughes Inc., 355 S.W.3d 791,
802-03 (Tex.App.--Houston [1st Dist.] 2011, no pet.).
Note that courts recognize that the delegation clause principle does not extend to the issue
of whether an agreement to arbitrate was ever formed. While parties can certainly agree to
delegate matters of validity (e.g., whether an agreement fails because the consideration provided
by a party is illusory) and enforceability (e.g., whether an arbitration agreement is subject to a
state law defense such as unconscionability), courts usually hold that they determine whether an
agreement to arbitrate was ever formed or concluded in the first place. Rent-A-Center, 561 U.S.
at 70. Thus, courts decide matters such as whether the alleged obligor ever signed the contract,
whether the signor lacked authority to commit the alleged principal, and whether the signor
lacked the mental capacity to assent. Lefoldt v. Horne, L.L.P., 853 F.3d 804 (5th Cir. 2016)
(noting these examples from Rent-A-Center).
However, some cases (albeit cases that did not involve delegation clause issues) have
suggested that parties can agree to arbitrate contract-formation issues. See FirstLight Fed. Credit
Union v. Loya, 478 S,W,3d 157 (Tex. App. – El Paso 2015, no pet.) (discussing cases).
Nonetheless, most courts recognized the distinction identified in Rent-A-Center. See In re
Morgan Stanley & Co., Inc., 293 S.W.3d 182, 189 (Tex. 2009) (“[W]here a party attacks the very
existence of an agreement, as opposed to its continued validity or enforcement, the courts must
first resolve that dispute.”); S.C. Maxwell Family Partnership v. Kent, 472 S.W.3d 341 (Tex.
App. – Houston [1st Dist. 2015) (same); Banc One Acceptance Corp. v. Hill, 367 F.3d 426, 429
(5th Cir. 2004) (where the very existence of a contract containing an arbitration provision is at
issue, federal courts have the authority and responsibility to decide the matter, and where no
valid arbitration agreement exists, arbitrator is without authority to decide anything); see also
Duarte v. Mayamax Rehab. Servs., 527 S.W.3d 249 (Tex. App. – El Paso 2016) (court decides
whether subsequent agreement released parties from obligation to arbitrate); Southwinds Express
Constr. v. D.H. Griffin of Texas, Inc., 513 S.W.3d 66 (Tex. App. – Houston [14th Dist.] 2016)
(whether arbitration clause in written contract applies to separate oral agreement between the
parties is a question of contract formation that a court must decide).
Note also that parties can agree by their conduct to arbitrate issues that might not
otherwise be arbitrable, such as whether any agreement was ever formed. See OMG L.P. v.
Heritage Auctions, Inc., 612 Fed. Appx. 207, No. 14-10403 (5th Cir. 2015) (parties, by their
conduct, consented to the arbitrator determining the meeting of the minds issue by submitting it
to the arbitrator and failing to object that he lacked authority to decide this issue).
Importantly, the Fifth Circuit has held that AAA Rule 7, which provides that “[t]he
arbitrator shall have the power to rule on his or her own jurisdiction, including any objections
with respect to the existence, scope, or validity of the arbitration agreement or to the arbitrability
of any claim or counterclaim” constitutes clear and unmistakable evidence that the parties agreed
to arbitrate arbitrability. Crawford Prof'l Drugs, Inc. v. CVS Caremark Corp., 748 F.3d 249, 263
(5th Cir. 2014). So, where an arbitration agreement incorporates the AAA rules, there is an
agreement to arbitrate these substantive arbitrability issues. The Fifth Circuit has reached the
same conclusion as to JAMS’s rules. Cooper v. WestEnd Cap. Mgmt., 832 F.3d 534 (5th Cir.
2016). Texas courts, however, have explained that incorporation of arbitration rules is only one
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factor to consider when deciding whether the parties agreed to arbitrate arbitrability. Lucchese
Boot Co. v. Lincon, 473 S.W.3d 390, 398 n.4 (Tex. App. – El Paso 2015, n.p.h.).
Note – The issues discussed in this section go to the substantive questions of whether
there is an agreement to arbitrate the dispute at issue and whether that agreement is valid and
enforceable. Procedural questions affecting whether arbitrable claims should go forward in
arbitration—such as compliance with notice, time limits, and similar prerequisites to
arbitration—are questions for an arbitrator to decide. BG Group, PLC v. Republic of Arg., 134 S.
Ct. 1198, 1206-07 (2014); Howsam v. Dean Witter Reynolds Inc., 537 U.S. 79, 83-85 (2002);
G.T. Leach Builders, LLC v. Sapphire V.P., L.P., 458 S.W.3d 502, 511 (Tex. 2015); Southwinds
Express Constr. v. D.H. Griffin of Texas, Inc., 513 S.W.3d 66 (Tex. App. – Houston [14th Dist.]
2016). In other words, there is a line between substantive arbitrability questions addressing the
existence, enforceability, and scope of an agreement to arbitrate (which courts decide, absent
some other agreement, as discussed below), and procedural arbitrability questions addressing the
construction and application of limits on that agreement (which only arbitrators decide). (There
is an exception to this rule. If a strictly procedural requirement has not been met and that
procedural requirement precludes arbitration, a court can deny a motion to compel arbitration.
Southwinds Express Constr., supra. Thus a trial court can “decide a gateway issue of whether
arbitration can be compelled in light of a condition precedent when there is no factual dispute
about whether the condition precedent has been satisfied.” Id.)
A. Issues Surrounding the Creation and
Validity of a Purported Agreement to Arbitrate.
As noted above, whether a valid agreement to arbitrate exists depends on whether the
parties entered into an arbitration agreement and whether the arbitration agreement is enforceable
under generally applicable state contract law. Issues related to whether a binding contract to
arbitrate has been formed and, if so, whether there are any viable defenses to the enforcement of
the arbitration agreement frequently arise under this inquiry and are generally determined by
state contract law. In re Dillard Dep’t Stores, Inc., 186 S.W.3d 514, 515 (Tex. 2006); In re
Kellogg Brown & Root, Inc., 166 S.W.3d 732, 738 (Tex. 2005) (“Under the FAA, ordinary
principles of state contract law determine whether there is a valid agreement to arbitrate.”). Of
course, under basic contract law, it generally does not matter if a person does not realize that he
or she is agreeing to arbitrate his or her claims. “Absent fraud, misrepresentation, or deceit, a
party is bound by the terms of the contract he signed, regardless of whether he read it or thought
it had different terms.” In re McKinney, 167 S.W.3d 833 (Tex. 2005).
Before proceeding, recall that, as explained in more detail below, a challenge to the
validity of a contract as a whole, and not specifically to an arbitration clause within it, must go
to the arbitrator, not to a court. Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440 (2006);
In re Labatt Food Service, L.P., 279 S.W.3d 640, 648 (Tex. 2009).
Also note that the often invoked “policy in favor of arbitration agreements” does not
apply when a court is examining the threshold question of whether an arbitration agreement
exists. Courts have expressly “recognized that the presumption favoring arbitration arises only
after the party seeking to compel arbitration proves that a valid arbitration agreement exists.” In
re Morgan Stanley & Co., Inc., 293 S.W.3d 182, 185 (Tex. 2009) (emphasis added); see Granite
Rock Co. v. Int’l Brotherhood of Teamsters, 561 U.S. 287, 302 (2010) (“[W]e have never held
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that this policy [favoring arbitration] overrides the principle that a court may submit to
arbitration ‘only those disputes . . . that the parties have agreed to submit.’”) (citation omitted);
Janvey v. Alguire, 847 F.3d 231, 239 (5th Cir. 2017) (same).
If a valid agreement to arbitration exists, and the analysis proceeds to an inquiry about
whether the dispute in question falls within the scope of that arbitration agreement, then—and
only then—a presumption favoring arbitration arises. Ellis v. Schlimmer, 337 S.W.3d 860, 862
(Tex. 2011). The presumption also counsels courts to resolve doubts as to the applicability of
state law defenses to the enforcement of an arbitration agreement in favor of arbitration. Id.; see
infra.
1. Is There an Agreement to Arbitrate?
Before a party to a dispute can attempt to compel arbitration, there must be a valid
agreement to arbitrate. Applying generally applicable contract analyses, several recent cases
highlight what is and what is not necessary and what is and is not sufficient to create a binding
contract to arbitrate a dispute.
a. There Must Be an Agreement To Arbitrate.
Preliminarily, there must be an agreement to arbitrate—i.e., to submit a dispute to
something courts recognize as arbitration. A Texas court has recently held that a policy requiring
that employment disputes be submitted to a pool of “arbitrators” that consisted solely of the
employer’s employees was not an arbitration mechanism because the parties could not select
their own arbitrators, as the definition of arbitration requires. In re Phelps Dodge Magnet Wire
Co., 225 S.W.3d 599 (Tex. App. – El Paso 2005, orig. proceeding). However, the mere fact that
the adjective “binding” does not accompany the word “arbitration” in an arbitration agreement
does not make the agreement invalid. Nabors Drilling USA, LP v. Carpenter, 198 S.W.3d 240,
247 (Tex. App. – San Antonio 2006, orig. proceeding).
b. There is No Specific Requirement That the Agreement be Signed.
There is no specific requirement that an arbitration agreement be signed, so long as it is
written and agreed to by the parties. See 9 U.S.C. § 3; Tex. Civ. Prac. & Rem. Code
§ 171.001(a); In re Macy’s Tex., Inc., 291 S.W.3d 418, 419 (Tex. 2009) (orig. proceeding); In re
Polymerica, LLC, 296 S.W.3d 74, 76 (Tex. 2009) (orig. proceeding). An exception exists under
the TAA for contracts of less than $50,000 and for personal injury claims. Tex. Civ. Prac. &
Rem. Code § 171.002, but these requirements can be preempted by the FAA, when it applies.
See In re AdvancePCS Health L.P., 172 S.W.3d at 606 n.5; In re MPVentures, 276 S.W.3d 524
(Tex. App. – San Antonio 2008, orig. proceeding). Where an arbitration agreement is not signed,
courts look to other evidence to establish the parties’ assent. See FirstLight Fed. Credit Union v.
Loya, 478 S.W.3d 157 (Tex. App. – El Paso 2015, no pet.) (discussing cases; also holding that
employee who did not sign arbitration agreement in the blank provided accepted arbitration
agreement because the agreement stated that continued employment constituted acceptance); see
also infra (discussing notice in the employment context).
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c. Arbitration Agreements Need Not Appear in Any Particular Place.
There is no requirement that an arbitration clause appear in each contract that may be
covered by an agreement to arbitrate. If the parties agree to arbitrate a given dispute, it does not
matter where that agreement is written. See In re AdvancePCS Health L.P., 172 S.W.3d 603, 606
(Tex. 2005). Similarly, arbitration agreements may be incorporated by reference to other
documents. In re D. Wilson Constr. Co., 196 S.W.3d 774, 781 (Tex. 2006); In re Bank One N.A.,
216 S.W.3d 825 (Tex. 2007).
d. Enforceability Through Mutuality of Obligation.
Proving that an agreement to arbitrate is enforceable can be accomplished by showing
mutuality of obligation. If two parties agree to submit their disputes with the other to arbitration,
courts typically find that the agreement to arbitrate is enforceable. If one side does not actually
obligate itself to arbitrate, and there is no other consideration, courts typically find that that party
has not promised to do anything and thus refuse to enforce the purported arbitration agreement.
Hence, in In re 24R, Inc., et al., 324 S.W.3d 564 (Tex. 2010), the Supreme Court found
that where the employer and employee both promised to arbitrate claims against the other and
where those promises could not unilaterally be rescinded by either party, there was sufficient
consideration to support the arbitration agreement. See also In re Polymerica, LLC, 296 S.W.3d
74, 76 (Tex. 2009) (per curiam); In re Dillard Dep’t Stores, Inc., 186 S.W.3d 514, 516 (Tex.
2006) (similar).
However, in Labor Ready Central III, L.P. v. Gonzalez, 64 S.W.3d 519 (Tex. App. –
Corpus Christi 2001, orig. proceeding), the Corpus Christi court of appeals found that where an
employer required employees to submit their claims to arbitration, but accepted no such
limitation itself, the employer “gave no consideration for the purported arbitration agreement.
Because there [was] no mutuality of obligation, no enforceable arbitration agreement exist[ed].”
Id. at 524. The same result applies where a company can unilaterally amend its obligations under
an arbitration agreement at any time. In that case, even a promise to arbitrate is illusory. Nelson
v. Watch House Int’l, LLC, 815 F.3d 190, 193 (5th Cir. 2016); In re C&H News Co., 133 S.W.3d
642 (Tex. App. – Corpus Christi 2003, orig. proceeding) (holding that if an employer can
unilaterally modify or terminate the purported agreement, without prior notice to an employee,
that agreement is based upon an illusory promise and thus not enforceable); Henry & Sons
Constr. Co. v. Campos, 510 S.W.3d 689 (Tex. App. – Corpus Christi 2016). Likewise, if a
promise to arbitrate is subject to change and the promise is silent as to whether such a change
may only be retroactive, then the promise is deemed to be illusory. Carey v. 24 Hour Fitness
USA, Inc., 669 F.3d 202 (5th Cir. 2012).
In J.M. Davidson, Inc. v. Webster, 128 S.W.3d. 223 (Tex. 2003), the Texas Supreme
Court synthesized these competing strands and explained that an employer’s promise to be
bound by the result of an arbitration is illusory if the employer reserves an unqualified right to
modify or terminate its promise to abide by an arbitration decision such that a decision to do so
could operate retroactively as well as prospectively. In effect, such a case simply presents a
straightforward application of basic contract principles. See 1 Williston on Contracts § 43, at 140
(3d ed.) (“Where a promisor retains an unlimited right to decide later the nature and extent of his
performance, the promise is too indefinite for legal enforcement.”). The Court found the
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agreement at issue to be ambiguous as to whether the reservation of the right to change the
employment agreement at issue applied to the arbitration provision. The Court thus remanded the
case for further proceedings. However, in In re Odyssey Healthcare, Inc., 310 S.W. 3d 419, 421,
424 (Tex. 2010), the Texas Supreme Court held that an arbitration clause in a workers’
compensation plan was not illusory where, although the employer reserved the right to amend,
modify, or terminate the plan at any time, the plan also provided no such change affected an
injury that occurred before the date of the change.
The relevant factors of prospective application of any changes and prior notice were
summarized by the Fifth Circuit in Nelson v. Watch House Int’l, LLC, 815 F.3d 190, 193 (5th
Cir. 2016). There the court noted that retaining termination or modification power does not make
an agreement illusory so long as that power (1) extends only to prospective claims, (2) applies
equally to both the employer’s and employee’s claims, and (3) so long as advance notice to the
employee is required before termination is effective). A Texas court of appeals has agreed with
this summary. Henry & Sons Constr. Co. v. Campos, 510 S.W.3d 689 (Tex. App. – Corpus
Christi 2016).
Note that where an arbitration clause is part of an underlying contract that is supported by
sufficient consideration, the rest of the parties’ agreement can provide the consideration for a
promise by one party to arbitrate. Royston, Rayzor, Vickery & Williams, LLP v. Lopez, 467
S.W.3d 494 (2015); In re AdvancePCS Health L.P., 172 S.W.3d 603, 607 (Tex. 2005).
Courts have also addressed situations where parties claim that there is no agreement to
arbitrate because an arbitration agreement contains language stating that, if there is a dispute, a
party “may request” arbitration. The Texas Supreme Court has rejected such arguments. The
Court “disagree[d] that [such language] render[ed] the contracts ambiguous. . . . While the
[clause containing the arbitration agreement] allowed either party to request arbitration, nothing
in it suggests arbitration was optional if either did; to the contrary, the clause constituted a
binding promise to arbitrate if either party requested it.” In re U.S. Home Corp., 236 S.W.3d 761,
765 (Tex. 2007). Ultimately, though , any question of interpretation of the agreement at issue
depends on the contract at issue See Travelers Indem. Co. v. Tex. Mun. League Joint Self-
Insurance Fund, No. 01-08-00062-CV, 2008 Tex. App. LEXIS 5297 (Tex. App. – Houston [1st
Dist.] July 17, 2008) (distinguishing U.S. Home Corp. because, if the court “were to hold that
arbitration was required once the requested it, [the court] would render meaningless the provision
that the parties could choose to reject a request to arbitrate.”).
e. In the Employment Context, Promulgation of an Arbitration Policy
Coupled With Continued Employment Can Be Sufficient to Create a
Binding Agreement.
The Texas Supreme Court has held that an employer’s promulgation of a policy requiring
arbitration of disputes between the employer and employee, coupled with the employee’s
continued work for the company was sufficient to create an enforceable agreement to arbitrate
disputes covered by the policy.
In In re Halliburton Co., 80 S.W.3d 566 (Tex. 2002), Halliburton notified employees that
it was adopting a “dispute resolution program.” Under the program, binding arbitration was
required to resolve disputes between the company and its employees. The notice of this program
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provided that any employee who continued to work after a given date would be deemed to have
accepted the new program. Changes to the arbitration policy could only be made prospectively
and with notice to the employees. James Myers, an at-will employee, was later demoted and sued
Halliburton, claiming that his demotion was caused by race and age discrimination. The Texas
Supreme Court found that the dispute was arbitrable. Relying on Hathaway v. General Mills,
Inc., 711 S.W.2d 227 (Tex. 1986), the court held that an employer may change the terms of an
at-will employment relationship without further consideration if the employee has notice of the
change and accepts the change by continuing employment after receiving notice. The
consideration given by Halliburton was not illusory, even in the context of at-will employment,
because even termination of an employee’s employment would not defeat Halliburton’s
obligation to arbitrate disputes already in existence. See also In re Dillard Dep’t Stores, Inc., 181
S.W.3d 370 (Tex. 2006) (same); Kubala v. Supreme Prod. Servs, Inc., 830 F.3d 199 (5th Cir.
2016). Note, though that where there is a promise that is otherwise illusory because it may be
modified, notice and acceptance by an employee will not make the enforceable simply because it
has been accepted. Carey v. 24 Hour Fitness, USA, Inc., 669 F.3d 202 (5th Cir. 2012); Weekly
Homes, LP v. Rao, 336 S.W.3d 413 (Tex. App. – Dallas 2011, pet. denied).
More recent cases have made it clear that the employer must show that the employee
received unequivocal notice of the arbitration policy. In re Dillard Dep’t Stores, Inc., 181
S.W.3d 370 (Tex. 2006); Doe v. Columbia North Hills Hosp. Sub., L.P., 521 S.W.3d 76 (Tex.
App. – Fort Worth 2017); Big Bass Towing Co. v. Akin, 409 S.W.3d 835 (Tex. App. – Dallas
2013, no pet.); Sporran Kbusco, Inc. v. Cerda, 227 S.W.3d 288 (Tex. App. – San Antonio 2007,
pet. denied). Electronic dissemination can be sufficient, but an employer must be able to prove
that an employee in fact received the notice. Doe v. Columbia North Hills Hosp. Sub., L.P., 521
S.W.3d 76 (Tex. App. – Fort Worth 2017) (merely posting arbitration policy on company
intranet insufficient, even where employee was instructed to familiarize herself with company
policies); cf. Campbell v. General Dynamics Gov’t Systems Corp., 407 F.3d 546 (1st Cir. 2005)
(new arbitration policy promulgated by e-mail sent from CEO was ineffective to notify employee
of policy to arbitrate future disputes with the company where employee did not read e-mail and
court found that the e-mail at issue insufficiently communicated the importance of the
information conveyed because the e-mail did not specifically explain that the arbitration policy
was binding or that the employee would not have a judicial forum; court also noted that although
e-mail could be an appropriate method of communicating an arbitration policy, e-mail features
such as the “accept” feature could have been used to show that employees read and understood
the policy) with FirstLight Fed. Credit Union v. Loya, 478 S.W.3d 157 (Tex. App. – El Paso
2015, no pet.) (proof that employee acknowledged employment policies (which included
arbitration agreement) by logging into human resources policies website was sufficient to show
notice). However, receipt by an employee of a summary of an arbitration agreement has been
held to be sufficient notice. In re Dallas Peterbilt, Ltd., L.L.P., 196 S.W.3d 161 (Tex. 2006).
f. The Party Enforcing the Agreement Must Prove It Has the Right to
Do So.
In a case that reminds attorneys to dot their “i”s and cross their “t”s, the First Court of
Appeals held in Mohamed v. AutoNation USA Corp., 89 S.W.3d 830, 835-37 (Tex. App. –
Houston [1st Dist.] 2002, orig. proceeding), that a company that claimed it had purchased an
employer failed to prove that it had done so such that it could assert the employer’s rights under
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an arbitration agreement. The plaintiff the case, Mohamed, worked for a car dealership that had
required him to sign an arbitration agreement covering employment disputes. AutoNation
purchased the auto dealership. Mohamed later sued, asserting discrimination on the basis of race
and national origin. AutoNation moved to compel arbitration, but Mohamed argued that the
arbitration agreement he signed was with his prior employer. The court of appeals held that
AutoNation did not prove that it was a proper party to the arbitration agreement.
In another recent case that reminds the parties to comply with the formalities of contract
formation, the El Paso Court of Appeals held that a district court did not abuse its discretion
when it refused an employer’s request to enforce an arbitration agreement that the employee, but
not the employer, had signed. The court explained that since the issue of whether a written
contract must be signed in order to be binding is a question of the parties intent, and since the
contract at issue in that case provided that it could not be modified unless the modification was
signed by the parties, the trial court could have concluded that the employer did not establish the
existence of an agreement to arbitrate. In re Bunzl USA, Inc., 155 S.W.3d 202 (Tex. App. – El
Paso 2004, orig. proceeding); but see Wright v. Hernandez, 469 S.W.3d 744 757-59 (Tex. App. –
El Paso 2015, n.p.h.) (employer’s conduct showed that it had agreed to arbitration clause,
although agreement not signed by the employer); In re Citgo Petrol. Co., 248 S.W.3d 769 (Tex.
App. – Beaumont 2008, orig. proceeding) (same).
g. Other Factors Relating to Creation of an Arbitration Agreement.
Of course, there can be many other factors that can determine whether an arbitration
agreement was ever concluded, such as whether an agent had the authority to commit a principal
to arbitrate and whether the signor had the capacity to assent to the agreement. See In re Morgan
Stanley & Co., 293 S.W.3d 182 (Tex. 2009) (issue of party’s mental capacity to assent to
contract); American Med. Tech., Inc. v. Miller, 149 S.W.3d 265 (Tex. App. – Houston [14th
Dist.] 2004, no pet.) (issue of agent’s authority); In re Mexican Restaurants, 2004 WL 2850151
(Tex. App. – Eastland 2004, orig. proceeding) (issue of child’s capacity to consent); In re SSP
Partners, 241 S.W.3d 162 (Tex. App. – Corpus Christi 2007, orig. proceeding) (issue of parent’s
authority to bind children); see also Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440,
444 n.l (2006) (noting same).
h. In Some Circumstances, Non-Parties May
Be Covered by an Arbitration Agreement
Although arbitration is generally a matter of contract between the particular signatories to
an agreement, there are situations in which courts will compel arbitration where the dispute is not
solely between the parties that entered into a contract with an arbitration clause. See Arthur
Andersen LLP v. Carlisle, 556 U.S. 624 (2009) (wherever relevant state law makes a contract to
arbitrate enforceable by a non-signatory, that person is entitled to seek to compel arbitration);
Hays v. HC Holdings, Inc., 838 F.3d 605, 609 n.1 (5th Cir. 2016) (same). Whether one of these
situations exists is in the first instance a question for a court, not an arbitrator, because it goes to
whether there is, in effect, an agreement to arbitrate. G.T. Leach Builders, LLC v. Sapphire V.P.,
L.P., 458 S.W.3d 502, 525 (Tex. 2015); Roe v. Ladyman, 318 S.W.3d 502, 515 (Tex. App. –
Dallas 2010, no pet.).
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Courts have recognized a variety of theories under which a non-signatory to a contract
that contains an arbitration clause can be compelled to arbitrate. These include (1) incorporation
by reference, (2) assumption, (3) agency, (4) veil-piercing/alter ego, (5) estoppel, and (6) third-
party beneficiary. G.T. Leach Builders, LLC v. Sapphire V.P., L.P., 458 S.W.3d 502, 524 (Tex.
2015); Bridas S.A.P.I.C. v. Government of Turkmenistan, 345 F.3d 347, 355-56 (5th Cir. 2003);
see also In re Rubiola, 334 S.W.3d 220 (Tex. 2011) (non-signatory who nonetheless had right
under arbitration agreement to compel arbitration could do so); In re Labatt Food Service, L.P.,
279 S.W.3d 640, 642-43 (Tex. 2009) (derivative nature of wrongful death beneficiaries’ claims
generally binds their claims to be arbitrated where decedent entered into contractual agreement
to arbitrate); In re Golden Peanut Company, 298 S.W.3d 629 (Tex. 2009) (same). Estoppel
theories have received the most attention in recent years.
To understand these cases it is useful to distinguish between (a) cases in which
signatories to an arbitration agreement bring claims against defendant non-signatories and
(b) cases in which non-signatories bring claims against defendant signatories.
i. Cases Involving Signatories to an Arbitration Agreement
Bringing Claims Against Defendant Non-Signatories.
Among the cases in which signatories to an arbitration agreement bring claims against
defendant non-signatories, one can further divide the cases into (i) those in which defendant non-
signatories seek to compel arbitration of claims asserted against them and (ii) those in which the
signatories seek to compel arbitration of claims they assert against defendant non-signatories.
Motions to Compel Brought by Defendant Non-Signatories. In the first situation –
cases in which defendant non-signatories seek to compel arbitration of the claims asserted
against them – principles of equitable estoppel have been used to force the signatory to arbitrate
the claims they assert. Traditionally, issues of equitable estoppel arise in three circumstances:
First, the doctrine has been discussed when a signatory to an arbitration agreement raises
allegations of substantially interdependent and concerted misconduct by both the non-signatory
and a signatory. However, in In re Merrill Lynch Trust Co. FSB, 235 S.W.3d 185 (Tex. 2007),
the Texas Supreme Court refused to compel a signatory to arbitration when non-signatories
claimed substantially interdependent and concerted misconduct required arbitration. The Texas
Supreme Court recognized that the theory of concerted-misconduct estoppel is “far from well-
settled in the federal courts.” Id. at 10. Further, the Court reasoned that nothing in contract law
allows concerted misconduct to bind a non-party to a contract. Id. at 13. “As other contracts do
not become binding on nonparties due to concerted misconduct, allowing arbitration contracts to
become binding on that basis would make them easier to enforce than other contracts, contrary to
the Arbitration Act’s purpose.” Id. Due to a lack of governing contract law and the conflict in
federal arbitration law, the Texas Supreme Court elected against requiring the signatory plaintiffs
to arbitrate their claims against the non-signatory defendants. Id; see also In re Merrill Lynch
Trust Co. FSB, 235 S.W.3d 217 (Tex. 2007) (same).
Second, the doctrine has been discussed and applied to estop a signatory plaintiff from
avoiding arbitration of claims with against a non-signatory when the claims are intertwined with
arbitrable claims against a signatory. After the Supreme Court of Texas rejected concerted
misconduct estoppel in Merrill Lynch, state courts have split on whether the Texas Supreme
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Court has recognized intertwined claims estoppel. Compare Cotton Commercial USA, Inc. v.
Clear Creek Indep. Sch. Dist., 387 S.W.3d 99, 105–06 (Tex. App.–Houston [14th Dist.] 2012, no
pet.) (stating that the Texas Supreme Court in Merrill Lynch recognized intertwined claims
estoppel) with Glassell Producing Co. v. Jared Res., Ltd., 422 S.W.3d 68, 82 (Tex. App.–
Texarkana 2014, no pet.) (describing direct benefits estoppel as “the only form of equitable
estoppel recognized in Texas”). The Fifth Circuit made an Erie guess that the Texas Supreme
Court would recognize “intertwined claims” estoppel and thus held that a signatory had to
arbitrate its claims against a non-signatory that had a close relationship to a signatory because,
otherwise, the signatory would be able to evade an arbitration obligation simply by suing
‘nonsignatory principals or agents for pulling the strings.” Hays v. HC Holdings, Inc., 838 F.3d
605 (5th Cir. 2016). The court noted that the “close relationship” requirement guarded against
“sweep[ing] independent entities and even complete strangers into arbitration agreements” thus
“limiting the exception to instances of strategic pleading. Id. A Texas appellate court applied
intertwined claims estoppel to require. See Cotton Commercial USA, supra.
Third, the doctrine has been applied when a party knowingly embraces or exploits a
contract containing an arbitration clause or when the nature of the underlying claims requires the
signatory to rely on the terms of the written agreement containing the arbitration clause in
asserting the signatory’s claims against the non-signatory. Noble Drilling Services, Inc. v. Certex
USA, Inc., 620 F.3d 469 (5th Cir. 2010); Grigson v. Creative Artists Agency, L.L.C., 210 F.3d
524, 527 (5th Cir. 2000); Hill v. G.E. Power Sys., Inc., 282 F.3d 343 (5th Cir. 2002)
(emphasizing that, for equitable estoppel to apply, the non-signatory must rely on the terms of
the underlying contract; it is insufficient that the dispute merely relate to the underlying
contract); G.T. Leach Builders, LLC v. Sapphire V.P., L.P., 458 S.W.3d 502, 527 (Tex. 2015)
(direct benefits estoppel applies when the claim depends on the contract’s existence and would
be “unable to ‘stand independently’ without the contract.”); Meyer v. WMCO-GP, L.L.C., 211
S.W.3d 302 (Tex. 2007).
As the Supreme Court of Texas has explained, a “person who has not agreed to arbitrate
may nevertheless be compelled to do so when the person ‘seeks, through the claim, to derive a
direct benefit from the contract containing the arbitration provision.’” In re Morgan Stanley &
Co., Inc., 293 S.W.3d 182, 184 n.2 (2009) (citation omitted). As the name of the doctrine
suggests, direct benefits equitable estoppel “is inapplicable, however, when the benefit is merely
indirect; that is, when the substance of the claim arises from general obligations imposed by state
law, including statutes, torts and other common law duties, or federal law.” Id. (citation omitted).
Thus, where a signatory-plaintiff alleged that its employees were corrupted by bribes by
employees of non-signatory defendants, the signatory-plaintiff’s claims were related to the
contract between the corporate parties, but the plaintiff was not trying seeking direct benefits
from the contract; liability was premised on general obligations of law, and thus arbitration was
not required. Rasheed Al Rushaid v. National Oilwell Varco, Inc., 814 F.3d 300 (5th Cir. 2016).
“Whether a claim seeks a direct benefit from a contract containing an arbitration clause turns on
the substance of the claim, not artful pleading.” G.T. Leach Builders, LLC v. Sapphire V.P., L.P.,
458 S.W.3d 502, 527 (Tex. 2015) (subcontractors on construction project who were sued by
owner could not compel arbitration under arbitration clause in contract between owner and
general contractor because owner asserted claims arising out of direct contracts between the
owner and the subcontractors).
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Thus, for example, in Grigson, the Fifth Circuit approved a district court’s application of
equitable estoppel to require a signatory to an agreement containing an arbitration clause to
arbitrate its claims against non-signatories because the signatory’s claims sought to hold the non-
signatories liable pursuant to duties imposed by the agreement that contained the arbitration
clause. The court reasoned that to refuse to require arbitration impermissibly would have allowed
the signatory plaintiff to “have it both ways”—i.e., rely upon one part of a contract but avoid the
arbitration clause in that same contract. Grigson, 210 F.3d at 528; see also Hays v. HC Holdings,
Inc., 838 F.3d 605 (5th Cir. 2016) (tortious interference with employment relationship depended
on reference to employment contract, which contained arbitration clause); The Muecke
Company, Inc. v. CVS Caremark Corp., No. 14-41213 (5th Cir. 2015) (signatory provider’s trade
secret misappropriation suit against non-signatory pharmacy company subject to arbitration
because only way to show misappropriation was to show use exceeded permissible uses under
provider’s agreements with others that contained arbitration clause); In re H&R Block Fin.
Advisors, Inc., 235 S.W.3d 177 (Tex. 2007) (same).
This situation has led to interesting results in some employment disputes. For example, in
In re Eagle Global Logistics, LP, 89 S.W.3d 761 (Tex. App.—Houston [1st Dist.] 2002, orig.
proceeding), an employee and an employer signed an agreement that contained, among other
things, an arbitration clause covering any legal dispute related to the employment arrangement.
The employee quit and began working for a competitor. When the employer sued the employee
(to enforce a non-competition agreement and to pursue various tort theories) and competitor
(under various tort theories), the competitor moved to compel arbitration and succeeded, even
though it was not a signatory to the arbitration agreement. The court explained that the
competitor was entitled to compel arbitration under the doctrine of equitable estoppel because
the employer’s claims against the employee and competitor were intertwined with and dependent
upon the employer’s employment agreement with the employee. Id. at 764.
Texas courts have refused to compel arbitration in the opposite situation—i.e., a situation
in which a plaintiff non-signatory who claims to have received the direct benefits of a contract
that contains an arbitration clause and who asserts claims against a defendant-signatory seeks to
compel the defendant signatory to arbitrate. In that situation, courts have held that the defendant
has done nothing that would estop it from denying that there is no arbitration agreement with the
plaintiff non-signatory. VanZanten v. Energy Transfer Partners, 320 S.W.3d 845 (Tex. App. –
Houston [1st Dist.] 2010, no pet.).
The Supreme Court of Texas has extended the doctrine of equitable estoppel to require a
signatory to an arbitration agreement to arbitrate claims against non-signatories who become
agents or affiliates of a signatory in suits for tortious interference with the contract that contains
an arbitration agreement. In In re Vesta Ins. Group, Inc., 192 S.W.3d 759 (Tex. 2006), the Texas
Supreme Court held that, although in general a signatory need not arbitrate a claim if liability
against the non-signatory defendant arises from general obligations imposed by law (as opposed
to liability arising from a contract that contains an arbitration clause), and although liability for
tortious interference derives from general legal obligations, a signatory will nevertheless be
compelled to arbitrate tortious interference claims against a non-signatory defendant where the
non-signatory is an agent or affiliate of a signatory.
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Many cases in which defendant non-signatories seek to compel arbitration of the claims
asserted against them asserts that agency principles allow the non-signatory to compel
arbitration. For example, in McMillan v. Computer Translation Sys. & Support, Inc., 66 S.W.3d
477, 482 (Tex. App. – Dallas 2001, no pet.), the Dallas Court of Appeals held that “[w]hen the
principal is bound under the terms of a valid arbitration clause, its agents, employees, and
representatives are covered by that agreement.” McMillan, 66 S.W.3d at 481. The McMillan
court noted other “cases in which nonsignatory defendants have received the benefit of an
arbitration agreement [where] the plaintiffs sued individuals who were working on behalf of the
signatory principals on matters covered by the agreements.” Id. Where “the individuals’
allegedly wrongful acts related to their behavior as agents of the signatory company, and those
acts were within the scope of the claims covered by the arbitration provisions for which the
principal signatory company would be liable,” id., the claims asserted against the individuals
were subject to arbitration. See also In re Houston Progressive Radiology Assoc., PLLC, 474
S.W.3d 435 (Tex. App. – Houston [1st Dist.] 2015, orig. proceeding) (“When a plaintiff’s claims
against a defendant are “in substance” claims against the defendant’s employer and the plaintiff
has agreed to arbitrate claims against the employer, the plaintiff must arbitrate the claims against
the employee”).
However, in Westmoreland v. Sadoux, 299 F.3d 462 (5th Cir. 2002), the Fifth Circuit
took issue with the broad reasoning of the cases on which the McMillan court had relied,
explaining that agents or employees of a signatory to an arbitration agreement cannot invoke the
arbitration clause “unless the parties intended to bring them into the arbitral tent.” Id. at 466. In
Westmoreland, the Fifth Circuit thus held that where the plaintiff sued two agents of a company
for defrauding him into selling his shares in the company, the agents could not invoke the
arbitration agreement that existed between the plaintiff and the company because the agreement
contained no suggestion that the agreement was intended to cover such acts of the agents. Id.
Of course, agency principles cannot be invoked by agents of signatories where
wrongdoing alleged by a signatory to an arbitration agreement does not relate to the agent’s
duties to the other signatory to the agreement. Thus, in Merrill Lynch Trust Co. FSB v. Alaniz,
159 S.W.3d 162, 169 (Tex. App. – Corpus Christi 2004), a Texas court of appeals rejected an
attempt by a broker to invoke an arbitration agreement that the plaintiffs entered into with the
broker’s employer, Merrill Lynch, because the conduct about which the plaintiffs complained did
not concern the brokers work for Merrill Lynch, but instead another entity with which the
plaintiff did not have an arbitration agreement. Thus, the reach of an arbitration agreement may
be extended to claims against agents of a principal that has an arbitration agreement with a
plaintiff, but only when the agent’s allegedly wrongful acts relate to its conduct as an agent of
the principal/signatory, and that conduct is within the scope of the claims covered by the
arbitration provision at issue.
The Supreme Court of Texas has explained that where a non-signatory seeks to compel a
plaintiff-signatory to arbitrate its claims, but the claims derive from general obligations of law
and not the contract containing an arbitration clause, there is no basis to compel arbitration,
because the plaintiff is not relying on the contract to support its claims. In re Morgan Stanley &
Co., Inc., 293 S.W.3d 182, 184 n.2 (Tex. 2009).
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Motions to Compel Brought by Signatories. In the second situation – cases in which
signatories seek to compel arbitration of the claims they assert against non-signatories – the same
theories by which a party can seek to compel arbitration are theoretically available; however,
principles of estoppel have not been as successful. See Bridas S.A.P.I.C., 345 F.3d at 355-56
(rejecting application of estoppel asserted by signatory to require non-signatory to arbitrate
claims asserted by signatory). Thus, efforts of a signatory to an arbitration agreement to assert
claims against the other signatory and also agents of that other signatory have not been
successful as to the agents of the other signatory where there is no suggestion that the agent was
to be bound to arbitrate if the agent did not wish to. DK Joint Venture 1 v. Weyand, 649 F.3d 310
(5th Cir. 2011); Covington v. Aban Offshore Ltd., 650 F.3d 556 (5th Cir. 2011); Elgohary v.
Herrera, 405 S.W.3d 785, 791 (Tex. App. – Houston [1st Dist. 2013] no pet.); see also In re
Merrill Lynch, Pierce, Fenner & Smith, 195 S.W.3d 807 (Tex. App. – Dallas 2006, orig.
proceeding).
ii. Cases Involving Non-Signatories Bringing
Claims Against Defendant Signatories.
Among the cases in which non-signatories to an arbitration agreement bring claims
against defendant signatories, one most frequently encounters disputes in which the defendant
signatory seeks to require the non-signatory to arbitrate its claims against the signatory. Several
recent cases illustrate this situation.
In In re Kellogg Brown & Root, Inc., 166 S.W.3d 732 (Tex. 2005), the Supreme Court of
Texas confronted a case in which Kellogg Brown & Root, Inc. (“KBR”) sued two other
companies – Unidynamics and MacGregor – under quantum meruit and breach of contract
theories. The dispute arose out of a construction project in which MacGregor subcontracted work
to Unidynamics, which in turn subcontracted work to KBR. The MacGregor-Unidynamics
contract had an arbitration clause, but the Unidynamics-KBR contract did not. When KBR sued,
Unidynamics and MacGregor sought to compel arbitration. The Court held that KBR could not
be compelled to arbitrate its claims against the defendants. The Court noted that KBR’s claims in
a sense related to the MacGregor-Unidynamics contract because the KBR contract would not
exist but for the preexisting MacGregor-Unidynamics contract; however, that relationship was
not sufficient to require arbitration. The Court explained that “a non-signatory should be
compelled to arbitrate a claim only if it seeks, through the claim, to derive direct benefit from the
contract containing the arbitration provision.” Id. at 741. Because KBR’s claims did not seek
direct benefits from the MacGregor-Unidynamics contract, KBR’s claims were not subject to
arbitration.
Similarly, in Janvey v. Alguire, 847 F.3d 231 (5th Cir. 2017), the Fifth Circuit held that
the receiver of Stanford Int’l Bank did not have to arbitrate fraudulent transfer claims it asserted
against former employees who had arbitration clauses in agreements with another entity,
Stanford Group Holdings. The court noted that the Bank was not a party to those other
agreements and that references to “affiliates” in the arbitration agreements were insufficient to
bind the bank because a mere corporate relationship is not sufficient to bind a non-signatory. Id.
at 242. The Circuit also rejected the employee’s invocation of alter ego, intertwined claims
estoppel, direct benefits estoppel, and a third-party beneficiary argument. Id.
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A case from the Supreme Court of Texas shows a situation under which the Supreme
Court will compel arbitration of claims brought by non-signatories. In In re Weekley Homes,
L.P., 180 S.W.3d 127 (Tex. 2005), the daughter of a man who purchased a house from Weekley
Homes sued Weekley for the asthma that she developed after living in the house. The house
purchase agreement that the father signed contained an arbitration agreement. The Supreme
Court held that Weekley was entitled to enforce the arbitration clause against the daughter (a)
because the daughter had “exercised contractual rights” under her father’s agreement by, for
example, demanding that repairs be done and that she be reimbursed for costs she personally
incurred in connection with having the repairs done and (b) because the daughter had “equitable
entitlement to other contractual rights” under the agreement because ownership of the house had
been transferred to a trust of which she was the sole beneficiary. Id. at 132-34. The Court held
that the daughter’s exercise of rights under and her entitlement to benefits of the contract
prevented her from avoiding the arbitration clause. Id. at 134; see also Stanford Dev. Corp. v.
Stanford Condo. Owners Ass’n, 285 S.W.3d 45, 51 (Tex. App. – Houston [1st Dist.] 2009, no
pet.) (subsequent purchasers of condominiums were bound by arbitration provisions in earnest
money contracts between original condominium owners and condominium developer in
condominium owners’ association’s action against developer; even though subsequent
purchasers were non-signatories, they consented to association bringing action on their behalf by
virtue of their membership in association, and association was bound by arbitration provisions).
2. Is the Arbitration Agreement Subject to
Generally Applicable State Law Defenses?
A court may refuse to enforce an arbitration clause without violating the FAA if the
arbitration clause is unenforceable under generally applicable state law contract defenses.
Doctor’s Assoc., Inc. v. Casarotto, 517 U.S. 681, 686-87 (1996). However, the Supreme Court
has cautioned that in considering whether an “agreement to arbitrate is unenforceable, [courts]
are [to be] mindful of the FAA’s purpose to ‘reverse the longstanding judicial hostility to
arbitration agreements . . . and to place arbitration agreements upon the same footing as other
contracts.’” Green Tree Fin. Corp. v. Randolph, 531 U.S. 79, 89-90 (2000) (noting that the Court
has “rejected generalized attacks on arbitration that rest on ‘suspicion of arbitration as a method
of weakening the protections afforded in the law to would-be complainants’”) (citation omitted).
Thus, a “court may invalidate an arbitration agreement based on ‘generally applicable contract
defenses’ like fraud or unconscionability, but not on legal rules that ‘apply only to arbitration or
that derive their meaning from the fact that an agreement to arbitrate is at issue.’” Kindred
Nursing Centers, L.P. v. Clark, 137 S. Ct. 1421 (2017) (Kentucky rule requiring powers of
attorney to specifically authorize attorneys-in-fact to enter into arbitration agreements unlawful
under FAA because the rule singles out arbitration agreements for disfavored treatment).
a. Burden of Persuasion Rests With the Party Opposing Arbitration.
The burden of proving a defense to arbitration is on the party opposing arbitration.
Royston, Rayzor, Vickery & Williams, LLP v. Lopez, 467 S.W.3d 494 (2015); In re FirstMerit
Bank, N.A., 52 S.W.3d 749 (Tex. 2001). This is not surprising; the defenses typically asserted are
in essence affirmative defenses to the enforcement of an agreement to arbitrate. See In re
AdvancePCS Health L.P., 172 S.W.3d 603 (Tex. 2005).
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b. Attacks on the Enforceability of a
Contract as a Whole Are for the Arbitrator.
In 1967, the United States Supreme Court held that if there is an agreement between the
parties containing an arbitration clause that requires arbitration of any dispute “arising out of or
relating to the agreement” and a party opposing arbitration contends that the agreement as a
whole was procured by fraud (as opposed to the arbitration clause alone being procured by
fraud), then the question of whether the agreement was fraudulently induced is for the arbitrator,
not the courts, to decide. Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 402-04
(1967). In Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440 (2006), the Supreme Court
reaffirmed its Prima Paint holding, explaining that that case established that, as a matter of
substantive federal arbitration law, an arbitration provision is severable from the remainder of the
contract and that, unless a party’s challenge is to the arbitration clause at issue itself, the issue of
a broader contract’s validity is considered by the arbitrator in the first instance. The Texas
Supreme Court recognized this rule in In re J.D. Edwards World Solutions Co., 87 S.W.3d 546,
551 (Tex. 2002). Thus, state law defenses to the enforcement of an agreement that contains an
arbitration clause “must specifically relate to the [arbitration clause] itself, not the contract as a
whole.” In re FirstMerit Bank, N.A., 52 S.W.3d 749, 756 (Tex. 2001); see Royston, Rayzor,
Vickery & Williams, LLP v. Lopez, 467 S.W.3d 494 (2015) (noting same).
It is important to distinguish between two different principles which can appear to be in
tension in certain cases. In general, where a party resisting arbitration argues that it never entered
into an agreement—because, for example, it did not sign the agreement—or whether any
agreement was even concluded—because, for example a party did not have the legal capacity to
consent—a court must first determine whether there is an agreement to arbitrate before a dispute
can be sent to arbitration. See In re Morgan Stanley & Co., 293 S.W.3d 182, 190 (Tex. 2009)
(trial court, rather than arbitrator, had authority to determine whether party lacked mental
capacity to assent to contract which contained arbitration provision). On the other hand, if parties
have entered into an agreement that contains an arbitration clause, an argument that the entire
agreement is not enforceable is for the arbitrator. See Will-Drill Resources, Inc. v. Samson
Resources Co., 352 F.3d 211 (5th Cir. 2003) (same); see also American Medical Tech., Inc. v.
Miller, 149 S.W.3d 265 (Tex. App. – Houston [14th Dist.] 2004, no pet.) (same).
Note – Do not be fooled by what the Texas Supreme Court admitted was a hiccup in its
explanation of the law in the late 1990s. In In re Oakwood Mobile Homes, Inc., 987 S.W.3d 571
(Tex. 1999), the Texas Supreme Court erroneously stated that the alleged substantive
unconscionability of an arbitration clause cannot be asserted to the court as a reason not to
compel arbitration, but had to be submitted to the arbitrator. In In re Halliburton Co., the court
explained that the statement in Oakwood Mobile Homes was dicta and was incorrect. The
Halliburton court “clarif[ied] that courts may consider both procedural and substantive
unconscionability of an arbitration clause in evaluating the validity of an arbitration provision.”
In re Halliburton Co., 80 S.W.3d 566, 572 (Tex. 2002).
c. Material Breach of the Arbitration Agreement.
A material breach of an arbitration agreement by the party attempting to enforce that
agreement can justify a refusal to compel arbitration. A good example of such a situation
occurred in Hooters of America, Inc. v. Phillips, 173 F.3d 933 (4th Cir. 1999). Hooters required
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its restaurant employees to sign arbitration agreements. Under those agreements, Hooters had the
obligation to promulgate adequate rules for arbitration. The Fourth Circuit found that the rules
Hooters promulgated were entirely one-sided and were calculated to produce biased proceedings.
For example, the rules required the employee to provide, at the outset, information describing
“the nature of the claim” and “the specific acts or omissions which are the basis of the claim,”
while Hooters had no such information disclosure requirement. The employee also had to
provide a list of all fact witnesses with a brief summary of the facts known by each; Hooters had
no such obligation. Perhaps most egregiously, the employee could only select an arbitrator from
a company-approved list. Hooters was allowed to expand the scope of the arbitration to any
matter, regardless of whether it related to the employee’s claim, but the employee could only
raise matters included in the notice of claim. The rules also gave the company the right to move
for a summary decision and the right to bring suit in court to vacate or modify an arbitral award
while the employee had no such rights. Finally, the company had the right to cancel the
agreement to arbitrate upon 30-days’ notice, and also had the right to modify the rules whenever
it wished, without any notice. The Fourth Circuit found that Hooters had materially breached its
obligations under the arbitration agreement and thus held that the food server plaintiffs were
excused from their obligation to arbitrate their claims. Id. at 940-41; see also Walker v. Ryan’s
Family Steak Houses, Inc., 400 F.3d. 370 (6th Cir. 2005) (following Hooters in case in which
defendant selected an arbitration provider for which it supplied 42% of the provider’s business).
The material breach principle was also applied in Brown v. Dillard’s Inc., 430 F.3d 1004
(9th Cir. 2005). There, Dillard’s required Brown to agree to arbitrate any employment-related
claims she had. After she was fired, Brown filed a notice of intent to arbitrate her wrongful
discharge claims. Dillard’s refused to participate in arbitration proceedings. Brown then sued
Dillard’s in court. When Dillard’s attempted to compel arbitration, the Ninth Circuit held that the
company could not do so because it was in material breach of the arbitration agreement by
failing to arbitrate earlier.
Texas courts have faced analogous cases. In Tri-Star Petrol. Co. v. Tipperary Corp., 107
S.W.3d 607 (Tex. App. – El Paso 2003, pet. denied), the court found that a party exercised undue
influence over an accounting firm that had been hired under an arbitration agreement to perform
an accounting of production on a natural gas project. The court found that the party’s
interference constituted a material breach of the arbitration agreement sufficient to justify (1)
vacation of the arbitration award based on the accounting and (2) a refusal to order re-arbitration.
d. Waiver of the Right to Compel Arbitration.
A party seeking to enforce an arbitration agreement can also lose the right to do so by
waiver through litigation conduct. However, the Texas Supreme Court has explained that there is
a “strong presumption against waiver” and that courts “will not find that a party has waived its
right to enforce an arbitration clause by merely taking part in litigation unless it has substantially
invoked the judicial process to the opponent’s detriment.” In re Service Corp. Int’l, 85 S.W.3d
171 (2002); RSL Funding, LLC v. Pippins, 499 S.W.3d 423 (Tex. 2016). A “party does not waive
a right to arbitration by mere delay; instead, the party urging waiver must establish that any delay
resulted in prejudice.” In re Service Corp. Int’l, 85 S.W.3d at 171; see also In re Fleetwood
Homes of Texas, L.P. , 257 S.W.3d 692 (Tex. 2008) (delay alone insufficient); In re Vesta Ins.
Group, Inc., 192 S.W.3d 759, 763 (Tex. 2006) (same); see also Salas v. GE Oil & Gas, 857 F.3d
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278 (5th Cir. 2017) (citing federal waiver law); Cooper v. WestEnd Cap. Mgmt., 832 F.3d 534
(5th Cir. 2016) (same).
Whether a party has substantially invoked the judicial process “must be decided on a
case-by-case basis” based on an examination of “the totality of the circumstances.” Perry Homes
v. Cull, 258 S.W.3d 580, 591-92 (Tex. 2008). “The analysis involves numerous factors,
including whether the party asserting the right to arbitrate was plaintiff or defend defendant in
the lawsuit, how long the party waited before seeking arbitration, the reasons for any delay in
seeking to arbitrate, how much discovery and other pretrial activity the party seeking to arbitrate
conducted before seeking arbitration, whether the party seeking to arbitrate requested the court to
dispose of claims on the merits, whether the party seeking to arbitrate asserted affirmative claims
for relief in court, the amount of time and expense the parties have expended in litigation, and
whether the discovery conducted would be unavailable or useful in arbitration.” RSL Funding,
LLC v. Pippins, 499 S.W.3d 423 (Tex. 2016). Whether a party opposing arbitration has been
prejudiced or suffered a detriment “relates to inherent unfairness—that is, a party’s attempt to
have it both ways by switching between litigation and arbitration to its own advantage.” Perry
Homes v. Cull, 258 S.W.3d at 597. Put another way, it “refers to the inherent unfairness in terms
of delay, expense, or damages to a party’s legal position that occurs when the party’s opponent”
litigates an issue “and later seeks to arbitrate that same issue.” Id. (citation omitted).
Initially, a party does not waive a right to seek arbitration by seeking a continuance or
agreeing to a trial date. G.T. Leach Builders, LLC v. Sapphire V.P., L.P., 458 S.W.3d 502, 511
(Tex. 2015).
A party does not necessarily substantially invoke the judicial process by taking pre-trial
actions in a suit brought against that party. Thus, filing a motion to transfer venue, mediating a
case, engaging in written discovery, and conducting depositions (at least where such discovery
was available in the arbitration or irrelevant to the arbitrable claims), designating responsible
third parties have all been held to be insufficient to waive the right to compel arbitration. G.T.
Leach Builders, LLC v. Sapphire V.P., L.P., 458 S.W.3d 502, 513 (Tex. 2015); Granite Constr.
Co. v. Beaty, 130 S.W.3d 362 (Tex. App. – Beaumont 2004, no pet.); see also In re MacGregor
(FIN) Oy, 126 S.W.3d 177, 184 (Tex. App. – Houston [1st Dist.] 2003) (no waiver where party
seeking to compel arbitration sought interim injunctive relief in court), vacated on other grounds
sub nom. In re Kellogg Brown & Root, Inc., 166 S.W.3d 732 (Tex. 2005); Wee Tots Pediatrics,
P.A. v. Morohunfola, 268 S.W.3d 784 (Tex. App. – Fort Worth 2008, no pet.) (seeking discovery
on claims not subject to arbitration does not constitute waiver); cf. In re Vesta Ins. Group, Inc.,
192 S.W.3d 759, 764 (Tex. 2006) (declining to find waiver on facts of the case, even though
party seeking to compel arbitration had engaged in discovery and filed a motion to dismiss for
lack of standing); but see Perry Homes, 258 S.W.3d at 596 (finding substantial invocation of the
judicial process where, among other things, “most of the discovery in the case had already been
completed” before arbitration was sought and trial was upcoming); Adams v. StaxxRing, Inc.,
344 S.W.3d 641, 651 (Tex. App. – Dallas 2011, pet. denied) (noting that “actions inconsistent
with a right to arbitrate include some combination of filing answer and counterclaim, conducting
extensive discovery, moving for continuance, and failing to timely request arbitration”); Cooper
v. WestEnd Cap. Mgmt., 832 F.3d 534 (5th Cir. 2016) (seeking TRO on ancillary matters not
directly related to merits of arbitrable claims does not substantially invoke judicial process).
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Moreover, seeking to vacate a default judgment does not substantially invoke the judicial
process, In re Bank One N.A., 216 S.W.3d 825 (Tex. 2007), nor does requesting a transfer of a
case to the federal MDL panel. In re Citigroup Global Mkts, Inc., 258 S.W.3d 623 (Tex. 2008);
cf. In re Automated Collection Techs, Inc., 156 S.W.3d 557 (Tex. 2004) (filing counterclaims
and serving discovery did not waive right to invoke forum-selection clause).
Substantially invoking the judicial process can occur “when the proponent of arbitration
actively tried, but failed, to achieve a satisfactory result in litigation before turning to
arbitration,” such as by moving for summary judgment or seeking final resolution of the dispute.
Williams Indus. Inc. v. Earth Development Sys. Corp., 110 S.W.3d 131, 139-40 (Tex. App. –
Houston [1st Dist.] 2003, no pet.). Indeed, in Petroleum Pipe Americas Corp. v. Jindal Saw, Ltd.,
575 F.3d 476 (5th Cir. 2009), the Fifth Circuit held that the defendant had substantially invoked
the judicial process by waiting to move to arbitrate until after the trial court made
pronouncements in a pretrial hearing that it favored the plaintiff’s interpretation of a contract at
issue in the case. Id. at 482. Similarly, the Dallas Court of Appeals held that a law firm had
substantially invoked the litigation process by filing a suit to collect unpaid fees, obtaining a
default judgment, attempting to collect, and resisting a bill of review. The firm was held to have
waived the right to compel arbitration when the client appeared and filed a counterclaim. Holmes
Woods & Diggs v. Gentry, 333 S.W.3d 650 (Tex. App. – Dallas 2009, no pet.). The Fifth Circuit
has also recognized that filing suit in itself substantially invokes the judicial process. Nicholas v.
KBR, Inc., 565 F.3d 904 (5th Cir. 2009). Likewise, seeking to collect on a debt by invoking the
criminal process by submitting affidavits to a district attorney has been held to invoke the
judicial process for later litigation over the same debt. Vine v. PLS Financial Services, No. 16-
50847 (5th Cir. May 17, 2017).
More recently, the Fifth Circuit has found that participating in discovery for three years
in a manner that entailed substantial litigation costs substantially invoked the judicial process.
Janvey v. Alguire, 847 F.3d 231, 243-44 (5th Cir. 2017).
Actual prejudice includes such things as (1) the movant’s access to information that is not
discoverable in arbitration and (2) the opponent’s incurring costs and fees due to the movant’s
actions or delay. G.T. Leach Builders, LLC v. Sapphire V.P., L.P., 458 S.W.3d 502, 515 (Tex.
2015); Southwind Group, Inc. v. Landwehr, 188 S.W.3d 730, 737 (Tex. App. – Eastland 2006,
orig. proceeding). Thus, in Republic Ins. Co. v. Paico Receivables, LLC, 383 F.3d 341 (5th Cir.
2004), the Fifth Circuit found that an insurance company had waived its right to arbitration by
litigating in the district court, seeking summary judgment, and waiting until days before trial to
seek to compel arbitration. Id. at 344-47 (also holding that no waiver clause did not overcome the
district court’s authority to find waiver); see Okorafor v. Uncle Sam & Assoc., Inc., 295 S.W.3d
27, 41 (Tex. App – Houston [1st Dist.] 2009, no pet.) (property owner prejudiced contractor by
pursuing an aggressive litigation strategy and abruptly switching to an arbitration strategy to seek
an advantage, thereby waiving any right to arbitrate); see also StaxxRing, Inc., 344 S.W.3d at
651 (“Prejudice is more easily shown when a party delays his request for arbitration and in the
meantime engages in pretrial activity inconsistent with an intent to arbitrate”; finding prejudice
where the party seeking arbitration “obtained thousands of pages of documents from [the
opponents of arbitration] under the rules of civil procedure, [and then] sought to apply the
arbitration rules to any further proceedings”).
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Without a showing of prejudice, however, a court should not find waiver. Texas
Residential Mortgage, L.P. v. Portman, 152 S.W.2d 861 (Tex. App. – Dallas 2005, no pet.).
e. Condition Precedent to Arbitration
In some situations, the failure of a condition precedent to an arbitration demand can
provide a defense to a motion to compel arbitration. Although procedural issues relating to
whether an arbitration should go forward (such as timeliness) are generally for an arbitrator to
decide, Howsam v. Dean Witter Reynolds Inc., 537 U.S. 79, 83-85 (2002), some courts have held
that where there are contractual prerequisites to invoking an arbitration agreement and it is
undisputed that those prerequisites have not been met, then the party seeking an order
compelling arbitration is not entitled to relief. See Southwinds Express Constr. v. D.H. Griffin of
Texas, Inc., 513 S.W.3d 66 (Tex. App. – Houston [14th Dist.] 2016) (noting same); In re Pisces
Foods, L.L.C., 228 S.W.3d 349 (Tex. App. – Austin 2007, orig. proceeding) (request for
mandamus denied where arbitration agreement required mediation as prerequisite to arbitration
and it was undisputed that no party had sought or refused to mediate dispute); see also In re
Rapid Settlements, Ltd., 202 S.W.3d 456 (Tex. App. – Beaumont 2006, orig. proceeding) (where
court order approving transfer of funds was condition precedent to enforcement of arbitration
agreement, arbitration could not proceed before such an order was entered). However, if a
prerequisite to arbitration (such as a mediation requirement) exists, and where one party initiates
litigation without complying, and the other party seeks to compel arbitration without complying
either, courts have held that the party that initiated litigation cannot avoid arbitration by noting
that his opponent failed to fulfill the prerequisite as well. LDF Constr., Inc. v. Bryan, 324 S.W.3d
137, 147 (Tex. App. – Waco 2010, no pet.).
f. Arbitration Agreements Procured by Duress.
Any generally applicable state law defense to the enforcement of a contract can be used
to avoid enforcement of an arbitration clause. Thus, an arbitration agreement procured by duress
may provide a valid defense to enforcement of an arbitration clause, but any such defense must
involve duress related to the arbitration clause itself, not duress to sign the entire agreement
(though such an argument may be presented to the arbitrator). In re RLS Legal Solutions, L.L.C.,
221 S.W. 3d 629 (Tex. 2007).
g. Unconscionability of an Arbitration Agreement.
Unconscionability is probably the most litigated defense to the enforcement of arbitration
clauses. Of course only generally applicable unconscionability standards can be employed to
deem an arbitration agreement unconscionable. If state laws or cases stand as an obstacle to the
accomplishment and execution of the purposes of the FAA or otherwise apply different rules for
arbitration clauses, then those rules cannot be given effect under the FAA. AT&T Mobility LLC
v. Concepcion, 131 S. Ct. 1740 (2011); Iberia Credit Bureau v. Cingular Wireless LLC, 379 F.3d
159, 164 (5th Cir. 2004).
i. There is No Good Definition of Unconscionability.
There is no precise definition on unconscionability. Generally, the test is whether the
clause at issue is so one-sided as to be unenforceable, judged in the light of the general
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commercial background and the needs of the parties in the circumstances existing at the time the
contract was made. In re Poly-America L.P., 262 S.W.3d 337 (Tex. 2008); In re Palm Harbor
Homes, Inc., 195 S.W.3d 672, 678 (Tex. 2006); In re FirstMerit Bank, N.A., 52 S.W.3d 749, 757
(Tex. 2001). Texas law recognizes, however, that courts should not lightly invalidate contractual
arrangements on unconscionability grounds. Venture Cotton Coop. v. Freeman, 435 S.W.3d 222,
228 (Tex. 2014); Wade v. Austin, 524 S.W.2d 79, 86 (Tex. Civ. App. – Texarkana 1975, no writ)
(“It has accordingly been said that, almost without limitation, what the parties agree upon is
valid, the parties are bound by the agreement they have made, and the fact that a bargain is a
hard one does not entitle a party to be relieved therefrom if he assumed it fairly and
voluntarily”); see also Bartley v. National Union Fire Ins. Co., 824 F. Supp. 624, 635 (N.D. Tex.
1992) (noting same).
ii. Procedural v. Substantive Unconscionability.
In any unconscionability inquiry, courts focus on two aspects of contract formation. First,
courts examine whether the party resisting enforcement of the contract was faced with an
absence of meaningful choice. This is often called “procedural unconscionability.” Procedural
unconscionability has also been said to concern the use of fine print, convoluted language, lack
of understanding by one of the contacting parties, and an inequality in bargaining power. Second,
courts look at whether the terms of the contract are unreasonably favorable to the other party.
This is often termed “substantive unconscionability.” Royston, Rayzor, Vickery & Williams, LLP
v. Lopez, 467 S.W.3d 494 (2015); In re Olshan Found. Repair Co., 328 S.W.3d 883, 892 (Tex.
2010); In re Halliburton Co., 80 S.W.3d 566, 571 (Tex. 2002); Pony Express Courier Corp. v.
Morris, 921 S.W.2d 817 (Tex. App. – San Antonio 1996, no writ) (procedural unconscionability
“is concerned with assent and focuses on the facts surrounding the bargaining process”;
substantive unconscionability “is concerned with the fairness of the resulting agreement” and the
“legitimate commercial reasons justifying the inclusion of the [challenged] terms).
iii. The Showing Required to Prove Unconscionability.
Under Texas law, a party attempting to avoid a contract on unconscionability grounds
“bears the burden of proving both procedural and substantive unconscionability.” In re Turner
Bros. Trucking Co., Inc., 8 S.W.3d 370, 376-77 (Tex. App. – Texarkana 1999, orig. proceeding);
Carter v. Countrywide Credit Indus., Inc., 362 F.3d 294 (5th Cir. 2004) (similar). Successful
unconscionability claims present both procedural and substantive difficulties, but it may be most
accurate to think of the required showing as a sliding scale: the more of one that is present, the
less of the other is required. See 15 Williston on Contracts § 1763A, at 226-27 (3d ed.) (noting
same).
(A) Procedural Unconscionability.
To determine whether procedural unconscionability is present, courts “examine (1) the
entire atmosphere in which the agreement was made; (2) the alternatives, if any, available to the
parties at the time the contract was made; (3) the non-bargaining ability of one party; (4) whether
the contract was illegal or against public policy; and (5) whether the contract is oppressive or
unreasonable.” See Delfingen US-Tex., L.P., v. Valenzuela, 407 S.W.3d 791, 798 (Tex.App.--El
Paso 2013, no pet.). The critical inquiry in reviewing an agreement for substantive
unconscionability “is whether the arbitral forum in a particular case is an adequate and accessible
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substitute to litigation, a forum where the litigant can effectively vindicate his or her rights.” In
re Olshan Found. Repair Co., L.L.C., 328 S.W.3d 883, 894 (Tex. 2010) (orig. proceeding). “That
inquiry is not satisfied by speculation but by specific proof in the particular case of the arbitral
forum’s inadequacy.” Venture Cotton Co-op. v. Freeman, 435 S.W.3d 222, 232 (Tex. 2014).
Claiming that an agreement is a contract of adhesion is alone insufficient to prove
procedural unconscionability under Texas law. The Texas Supreme Court has held that
“adhesion contracts are not automatically unconscionable.” In re AdvancePCS Health L.P., 172
S.W.3d 603(Tex. 2005); In re Olshan Found. Repair Co., 328 S.W. 3d 883, 892 (Tex. 2010)
(same); see also In re Halliburton Co., 80 S.W.3d 566, 572 (Tex. 2002) (noting that employers
may make a “take-it-or-leave-it” offer to at will employees). The United States Supreme Court
has expressed a similar sentiment. Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 33
(1991) (“[M]ere inequality in bargaining power is not a sufficient reason to hold that arbitration
agreements are never enforceable in the employment context”).
Other cases highlight the difficulty in establishing procedural unconscionability in any
context in Texas. In Fleetwood Enterprises, Inc. v. Gaskamp, 280 F.3d 1069, 1077 (5th Cir.
2002), the Fifth Circuit noted that “[t]he only cases under Texas law in which an agreement was
found procedurally unconscionable involve situations in which one of the parties appears to have
been incapable of understanding the agreement.” Texas courts have found that no procedural
unconscionability was present where the relevant terms of the agreement were conspicuously
noted and there was no evidence plaintiff was unaware of them when he signed agreement. In re
Palm Harbor Homes, Inc., 195 S.W.3d 672, 679 (Tex. 2006); In re H.E. Butt Grocery Co., 17
S.W.3d 360, 371-72 (Tex. App. – Houston [14th Dist.] 2000, orig. proceeding). Some Texas
courts have, however, found examples of procedural unconscionability. See Delfingen US-Tex.,
L.P., v. Valenzuela, 407 S.W.3d 791, 801-03 (Tex.App.--El Paso 2013, no pet.) (procedural
unconscionability found where company affirmatively misrepresented contents of English
language arbitration agreement to Spanish-speaking employee, obtained his signature on the
English-language agreement based on those misrepresentations, then never provided employee
with copy of agreement in either English or Spanish).
The law is not the same nationwide; California is a notable exception. Under that state’s
law, a “stark inequality of bargaining power” between a prospective employee and an employer
which prevents the employee from enjoying a “meaningful opportunity to negotiate” has been
found to render an arbitration agreement “procedurally oppressive.” Ingle v. Circuit City Stores,
Inc., 328 F.3d 1165, 1171 (9th Cir. 2003); see Carter v. Countrywide Credit Indus., Inc., 362
F.3d 294, 301 n.5 (5th Cir. 2004) (noting the difference between California and Texas
unconscionability law).
(B) Substantive Unconscionability.
A number of facets of arbitration agreements have been subject to challenges on
substantive unconscionability grounds. Since unconscionability is an imprecise, “know it when
you see it” inquiry, some of the cases described below find one factor insufficient in itself to
make an arbitration agreement unconscionable, but other courts find that, when combined with
others, that factor is sufficient to justify a finding of unenforceability. In the end, whether an
arbitration clause is unconscionable will turn on the facts of each case and the receptivity of the
court hearing the argument.
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Cost of Arbitration – A popular argument against the enforcement of arbitration
agreements has been that the cost associated with arbitrating a claim makes resort to arbitration
unaffordable for individual litigants. Courts and commentators have struggled to define
appropriate boundaries for the allocation of expenses associated with arbitration proceedings. See
generally Matthew T. Ballenger, The Price of Justice: The Role of Cost Allocation in the
Employment Arbitration Fairness Analysis, 18 Lab. Law 485 (2002). Most courts have made it
clear, though, that specific facts, not generalized complaints, are necessary to establish a claim
that the cost of arbitration renders an arbitration agreement unenforceable.
The seminal case in this area is Green Tree Fin. Corp. v. Randolph, 531 U.S. 79 (2000).
There, the United States Supreme Court noted that “[i]t may well be that the existence of large
arbitration costs could preclude a litigant . . . from effectively vindicating [her] rights in the
arbitral forum.” Id. at 90. However, the Court held that the mere “‘risk’ that [a plaintiff] will be
saddled with prohibitive costs is too speculative to justify the invalidation of an arbitration
agreement.” Id. at 91. Where “a party seeks to invalidate an arbitration agreement on the ground
that arbitration would be prohibitively expensive, that party bears the burden of showing the
likelihood of incurring such costs.” Id. at 92.
In Green Tree, the plaintiff had “failed to support [her] assertion” that “[a]rbitration costs
are high, and that she did not have the resources to arbitrate.” Id. at 90 n.6. The Court explained
that the plaintiff’s “discussion of costs relied entirely on unfounded assumptions” because,
among other things, she did not show that “she would be charged the filing fee or arbitrator’s fee
that she identified.” Id. The Court also rejected the plaintiff’s attempt to show that arbitration
costs were prohibitive by “list[ing] fees incurred in cases involving other arbitrations” because
such information did not “afford a sufficient basis for concluding that [the plaintiff] would in fact
have incurred substantial costs in the event her claim went to arbitration.” Id.
Since Green Tree v. Randolph, several federal courts of appeals have addressed the issue
of arbitration costs in the context of arbitration of employment disputes. These cases take
somewhat differing approaches to the showing required to invalidate an arbitration agreement on
cost-of-arbitration grounds.
The Ninth Circuit has taken the most aggressive stance. In Ingle v. Circuit City Stores,
Inc., 328 F.3d 1165 (9th Cir. 2003), the court held Circuit City’s employment dispute arbitration
agreement was substantively unconscionable where the agreement (1) required each party to pay
half of all costs of arbitration (including the arbitrator’s fees and expenses, filing and
administrative fees, court reporter fees, and room rental) and (2) provided for the possibility that
a losing employee could be saddled with all of the costs of arbitration was substantively
unconscionable. Id. at 1178. The court simply rejected the argument that, without hard estimates,
the cost issue was too speculative. Cf. Green Tree Fin. Corp. v. Randolph, 531 U.S. 79, 91
(2000).
In Blair v. Scott Specialty Gases, 283 F.3d 595 (3d Cir. 2002), the Third Circuit found
that cost splitting was potentially impermissible, but required a specific showing of harm. The
court held that an arbitration agreement that followed the default AAA rule that the parties to an
arbitration would pay the arbitrator’s compensation equally could be unconscionable because it
prevented a claimant from “effectively [] vindicat[ing his or her] statutory cause of action in the
arbitral forum. Id. at 605. The court wrote that such a requirement could “undermine Congress’s
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intent” in enacting civil rights statutes if it prevented “employees who are seeking to vindicate
statutory rights from gaining access to a judicial forum and then require[d] them to pay for a
judge in court.” Id. at 606. The court thus remanded the case for further proceedings regarding
the claimant’s ability to pay.
The Third Circuit’s a more particularized showing requirement appears to be the one
followed by most courts, although other courts take slightly differing approaches. See, e.g.,
Bradford v. Rockwell Semiconductor Sys., Inc., 238 F.3d 549 (4th Cir. 2001); Morrison v. Circuit
City Stores, Inc., 317 F.3d 646 (6th Cir. 2003) (en banc).
The Fifth Circuit has addressed a few cases in which plaintiffs have sought the
invalidation of arbitration agreement on costs grounds. In the first case it faced, the facts for
invalidation were not compelling. In Williams v. Cigna Financial Advisors, Inc., 197 F.3d 752
(5th Cir. 1999), a claimant brought a post-arbitration action to set aside an arbitrator’s decision.
The claimant asserted that being required to pay half of the arbitration costs (about $3,000) was
against public policy. Noting that the claimant’s income at the time of the arbitration was over
$100,000, the Fifth Circuit rejected this claim, reasoning that the claimant failed to show that that
sum prevented him from having a full opportunity to vindicate his claim. Id. at 763. (In Carter v.
Countrywide Credit Indus., Inc., 362 F.3d 294 (5th Cir. 2004), the Fifth Circuit confronted, but
(as will be discussed below) did not discuss in detail the underlying merits of another case
presenting this issue.) Recently, the Circuit rejected the claim that an arbitration agreement was
unconscionable on costs grounds where the arbitration would have cost almost $30,000 and
where the plaintiff was destitute at the time of the lawsuit. The Court explained that there was no
evidence of the plaintiffs financial condition at the time the arbitration agreement was made,
which was the relevant time under the applicable Georgia state law. Overstreet v. Contigroup
Cos., Inc., 462 F.3d 409 (5th Cir. 2006).
In 2001, the Texas Supreme Court adopted the Green Tree analysis and recognized “that
some specific information of future costs is required.” In re FirstMerit Bank, 52 S.W.3d 749, 756
(Tex. 2001). In the FirstMerit Bank case, the Texas Supreme Court reached a conclusion
analogous to the one reached in Green Tree. The Court explained that the plaintiffs “provided no
evidence that the AAA would actually charge” the filing and hearing fees plaintiffs identified
and further noted that “the most recent AAA commercial arbitration rules provide that ‘the AAA
may, in the event of extreme hardship on the part of any party, defer or reduce the administrative
fees.’” FirstMerit Bank, 52 S.W.3d at 757. The Court concluded that “without any specific
information on what the costs will be,” the plaintiffs’ evidence was “not evidence of
unconscionability.” Id.
Since FirstMerit Bank, the Texas Supreme Court has decided a few cases presenting an
argument for the invalidation of an arbitration agreement on cost grounds, but has not granted
relief to a challenger. In In re Halliburton Co., 80 S.W.3d 566 (Tex. 2002) the court held that an
arbitration agreement covering employment disputes was not unconscionable where the
employer agreed to pay expenses of arbitration other than a $50 filing fee and provided up to
$2,500 to for employee to consult with an attorney. In In re Poly-America L.P., 262 S.W.3d 337
(Tex. 2008), the Court discounted evidence that a fee-splitting provision in an arbitration
agreement would have precluded the assertion of the claim because, among other things, the
arbitrator could adjust the cost provision).
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Most recently, the Supreme Court clarified that a party seeking to avoid arbitration on
cost grounds must show that arbitration is not an adequate and accessible substitute to litigation,
and if the total cost of arbitration is comparable to the total cost of litigation, then the arbitral
forum is equally accessible. In re Olshan Found. Repair Co., 328 S.W.3d 883, 894 (Tex. 2010).
A plaintiff must prove the likely cost of arbitration, and plaintiff may have to show that requests
for fee waivers have been denied. Id.; see also TMI, Inc. v. Brooks, 225 S.W.3d 783 (Tex. App. –
Houston [14th Dist.] 2007) (orig. proceeding) (holding that evidence of AAA costs did not show
substantive unconscionability where matter could have been arbitrated without AAA
involvement); Aspen Tech. v. Shasha, 253 S.W.3d 857 (Tex. App. – Houston [14th Dist.] 2008,
orig. proceeding) (same, while discounting more specific evidence of costs).
– Remedy for Unreasonable Costs – Reformation and Enforcement – If a
party to an arbitration agreement shows that the cost of arbitration is too high to allow her to
effectively vindicate her rights, a court must still decide whether to invalidate the entire
agreement or to reform and enforce the agreement. This decision could turn on whether a
severability clause appears in the arbitration agreement. Even in the absence of such a clause,
courts have begun to excise offensive parts of arbitration agreements and then compel
arbitration. See Carter v. Countrywide Credit Indus., Inc., 362 F.3d 294 (5th Cir. 2004); see also
Hadnot v. Bay Ltd., 344 F.3d 474 (5th Cir. 2003) (affirming district court’s decision to sever
punitive damages prohibition and enforce arbitration agreement over employee’s argument that
entire arbitration agreement was unenforceable).
Not all cases, however, follow this path. See Iberia Credit Bureau, Inc. v. Cingular
Wireless, LLC, 379 F.3d 159, 171 (5th Cir. 2004) (noting that arbitration agreement that was
unconscionable because it was one sided could not be reformed).
– Possible Exception – Offering to Pay an Opponent’s Arbitration Costs –
Faced with a substantial showing that the cost of arbitrating a dispute would be prohibitive, some
parties that seek to enforce arbitration agreements have successfully avoided invalidation by
offering to cover any arbitration filing and administrative fees, and arbitrator’s fees associated
with an arbitration of the opponent’s claims. In Large v. Conseco Fin. Serv., Inc., 292 F.3d 49,
51 & 56-57 (1st Cir. 2002), a defendant offered to pay arbitration costs after filing a motion to
compel arbitration but before the district court’s ruling. The court of appeals then held that
defendant's “offer to pay the costs of arbitration and to hold the arbitration in the Larges’ home
state of Rhode Island mooted the issue of arbitration costs.” Following Large, the Fifth Circuit
and other circuits have reached the same result in similar circumstances. See Carter v.
Countrywide Credit Indus., Inc., 362 F.3d 294 (5th Cir. 2004); Livingston v. Associates Fin.,
Inc., 339 F.3d 553, 557 (7th Cir. 2003).
Insufficient Remedies – Insufficient remedies can also lead courts to refuse to enforce
arbitration agreements.
In Paladino v. Avnet Computer Tech., Inc., 134 F.3d 1054 (11th Cir. 1998), the Eleventh
Circuit affirmed a district court’s order refusing to compel arbitration of plaintiff’s Title VII
claim. The arbitration agreement stated that “the arbitrator is authorized to award damages for
breach of contract only, and shall have no authority whatsoever to make an award of other
damages.” The agreement was unenforceable because it did not allow the arbitrator to award
damages available under Title VII.
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Likewise in Ingle v. Circuit City Stores, Inc., 328 F.3d 1165 (9th Cir. 2003), the Ninth
Circuit found substantively unconscionable an employment dispute arbitration agreement that
provided for the remedies offered by Title VII, but limited back pay to one year, front pay to two
years, and punitive damages to the greater of $5,000 or the sum or a claimant’s front pay and
back pay. Id. at 1178-79.
The Texas Supreme Court found that a prohibition of an award of punitive damages
where such damages were available under the statutory claim asserted was unconscionable, but
then severed that clause and enforced the arbitration agreement. In re Poly-America L.P., 262
S.W.3d 337 (Tex. 2008); see also Venture Cotton Coop. v. Freeman, 435 S.W.3d 222, 228 (Tex.
2014) (same for contractual waiver of rights under the DTPA that did not comply with applicable
DTPA waiver requirements). The Fifth Circuit has also impliedly held that a prohibition on the
award of punitive damages in an employer-employee arbitration agreement was unconscionable.
Hadnot v. Bay Ltd., 344 F.3d 474 (5th Cir. 2003) (affirming district court’s decision to sever
punitive damages prohibition and enforce arbitration agreement over employee’s argument that
entire arbitration agreement was unenforceable); but see Investment Partners L.P. v. Glamour
Shots Licensing, Inc., 298 F.3d 314, 318 n.1 (5th Cir. 2002) (dicta in footnote stating that
provisions in arbitration agreements that prohibit punitive damages are generally enforceable).
Limited Statute of Limitations – Contractual statutes of limitations that limit what
claims can be brought in arbitration more than would be limited in court have been found to be
unconscionable.
For example, in Ingle v. Circuit City Stores, Inc., 328 F.3d 1165 (9th Cir. 2003), the
Ninth Circuit found that a one year contractual statute of limitations in an agreement to arbitrate
employment disputes that deprived claimants of the benefits of the continuing violation doctrine
was unconscionable. Id. at 1175; see also Alexander v. Anthony Int’l. L.P., 341 F.3d 256 (3d Cir.
2003) (same for 30 day statute of limitations); but see In re Poly-America L.P., 262 S.W.3d 337
(Tex. 2008) (shortening limitations period for wrongful discharge claim from two years to one
year not evidence of unconscionability where claimant filed claim within one year).
Precluding Class Actions – A fertile source of controversy in recent years has been
whether arbitration agreements that prohibit individuals from bringing or participating in class
actions are unconscionable.
Several courts had held that arbitration agreements that prohibited class arbitration were
unconscionable. For example, the California Supreme Court held that class action waivers are
effectively per se unconscionable where they arise in adhesion contracts, the amount of damages
for any claimant is small, and there is an allegation that the class action prohibition is part of a
scheme to defraud. Discover Bank v. Superior Court of Los Angeles, 113 P.3d 1100 (Cal. 2005).
The United States Supreme Court, however, held that California’s Discover Bank rule
was impermissible under the FAA. AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011).
Invoking the principle that state law rules may not either expressly disfavor arbitration
agreements or “stand as an obstacle to the accomplishment and execution of the full purposes
and objectives” of the Act, the Court held the Discover Bank rule violated that principle because
the FAA allowed the parties to agree limit the subjects of arbitration, select the rules of
arbitration, and (most importantly for the case at hand) limit with whom they would arbitrate.
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The Court found that “requiring the availability of class-wide arbitration interferes with
fundamental attributes of arbitration and thus creates a scheme inconsistent with the FAA.” Id. at
1748. (Texas courts had already held that the preclusion of class arbitration alone did not render
an arbitration agreement unconscionable. See Carter v. Countrywide Credit Indus., Inc., 362
F.3d 294, 301 (5th Cir. 2004), and Texas state courts as well, AutoNation USA Corp. v. Leroy,
105 S.W.3d 190 (Tex. App. – Houston [14th Dist.] 2003, no pet.).)
The United States Supreme Court has similarly held that a contractual waiver of class
arbitration of a federal claim is enforceable under the FAA even if the cost of proving an
individual claim in arbitration exceeds the potential recovery. American Express Co. v.
ItalianColors Restaurant, 133 S. Ct. 2304 (2013). The Court rejected the plaintiffs’ reliance on
the “effective vindication” doctrine recognized in Green Tree, see above, to hold that the FAA
required enforcement of an arbitration agreement that included a class arbitration waiver in a
case involving federal antitrust claims.
Note – A separate but fertile set of issues concerns whether an arbitration agreement
permits class arbitration and who decides whether class arbitration is permitted (a court or an
arbitrator). In Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662 (2010), the Supreme
Court held that arbitrators exceed their powers if they impose class arbitration on parties who did
not agree to class arbitration. In that case, the arbitration agreement was stipulated to be silent
(i.e., there was no agreement) as to whether class arbitration was permitted. The Court held that,
in that case, the defendant did not agree to arbitrate with a class of plaintiffs. The Court also
wrote that an implicit agreement to authorize class arbitration is not a term that an arbitrator may
infer solely from the fact that the parties agreed to arbitrate, because class arbitration changes the
nature of arbitration to such a degree that it cannot be presumed that the parties agreed to it.
Because, according to the Court, the arbitrators based their decision on public policy
considerations, and not applicable rules of law, the Court held that the arbitrators had exceeded
their powers and that their decision had to be vacated. Since Stolt Nielsen, the Fifth Circuit and
several other federal circuits have held that silence regarding class arbitration generally indicates
a prohibition. See, e.g., Reed v. Fla. Metro. Univ., Inc., 681 F.3d 630, 643−44 (5th Cir. 2012)
(finding that silence in an agreement does not “constitute[] consent to class arbitration” (internal
quotation marks omitted)), abrogated on other grounds by Oxford Health Plans LLC v. Sutter,
133 S. Ct. 2064 (2013); Eshagh v. Terminix Int’l Co., 588 F. App’x 703, 704 (9th Cir. 2014)
(affirming the district court’s grant of a motion to strike class allegations, where the arbitration
agreement did not mention class arbitration); Reed Elsevier, Inc. ex rel. LexisNexis Div. v.
Crockett, 734 F.3d 594, 599 (6th Cir. 2013) (“The principal reason to conclude that this
arbitration clause does not authorize classwide arbitration is that the clause nowhere mentions
it.”); Quilloin v. Tenet HealthSystem Philadelphia, Inc., 673 F.3d 221, 228 (3d Cir. 2012); see
also Opalinski v. Robert Half Int’l, No. 15-4001 (3d Cir. 2016) (unpublished).
So a class arbitration cannot proceed unless the parties have agreed that such a procedure
is permissible, but a question remains: who decides whether such a procedure is permissible?
While the Court has held that courts, not arbitrators, generally decide the issue of arbitrability
(i.e., whether the parties have agreed to arbitrate), the “Court has not yet decided whether the
availability of class arbitration is a question of arbitrability.” Oxford Health Plans LLC v. Sutter,
133 S. Ct. 2064, 2067–68 n.2 (2013). Some federal circuit courts have held that the availability
of class arbitration is an issue of arbitrability that is generally for a court to decide. See Robinson
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v. J&K Admin. Mgmt. Servs., Inc., 817 F.3d 193 (5th Cir. 2016); Opalinski v. Robert Half Int'l,
Inc., 761 F.3d 326, 332 (3d Cir. 2014); Reed Elsevier, Inc. v. Crockett, 734 F.3d 594, 599 (6th
Cir. 2013). Texas courts take the same approach. In re Wood, 140 S.W.3d 367, 368 (Tex. 2004).
However, some other courts have disagreed. See Marriott Ownership Resorts, Inc. v. Flynn,
2014 U.S. Dist. LEXIS 171722, at *31 (D. Haw. Dec. 11, 2014) (collecting cases).
But even if the issue of the availability of class arbitration is generally a decision for a
court, remember that—as explained above—the parties to an arbitration agreement can agree to
arbitrate arbitrability. And also recall that courts will find that parties have “clearly and
unmistakably” authorized the arbitrator to make such a decision where the arbitration agreement
selects governing rules (such as AAA rules) that permit the arbitrator to determine matters of
arbitrability.
In such situations, the arbitrator will decide whether class arbitration is permitted. If an
arbitrator decides that class arbitration is permitted, the only chance to reverse that decision is to
seek to vacate the ruling on the ground that the arbitrator “exceeded [his] powers” under
§ 10(a)(4) of the FAA. That is a deferential standard. A party seeking relief under that provision
bears a heavy burden. “It is not enough... to show that the [arbitrator] committed an error — or
even a serious error.” Stolt-Nielsen, 559 U.S. at 671. Because the parties “‘bargained for the
arbitrator’s construction of their agreement,’ an arbitral decision ‘even arguably construing or
applying the contract’ must stand, regardless of a court’s view of its (de)merits.” Oxford Health
Plans LLC, 133 S. Ct. at 2068 (citations omitted).
Also note that the NLRB has held that that class action waivers violate Section 7 of the
National Labor Relations Act (“NLRA”) because they inhibit an employee’s right to engage in
“concerted activities for the purpose of collective bargaining or other mutual aid or protection...”
D.R. Horton Inc., 357 N.L.R.B. 184 (2012). D.R. Horton had a practice of requiring its
employees to sign an arbitration agreement with a class action waiver. The NLRB stated that the
NLRA and the Norris-LaGuardia Act of 1932 protect employees’ ability to participate in class
actions as a form of “concerted activity” and that just as the substantive right to engage in
concerted activity allows unionized and non-unionized employees to join together in strikes or
mutual aid, it also allows them to bring court or arbitration claims as class or collective actions.
The NLRB noted that Concepcion involved conflict between FAA and state law – which was
governed by the Supremacy Clause – while in this particular employment context, two federal
statutes conflict and thus, the ultimate decision could differ.
The initial D.R. Horton decision was reversed by the Fifth Circuit on the grounds that the
NRLB’s rule stood as an impediment to the enforcement of the company’s arbitration agreement.
D.R. Horton, Inc. v. NLRB, 737 F.3d 344 (5th Cir. 2013). The Fifth Circuit has reaffirmed that
holding. See NLRB v. Murphy Oil USA, Inc., 808 F.3d 1013 (5th Cir. 2015). Other circuit courts
have reached the opposite result, holding among other things that the Fifth Circuit’s rule nullified
workers’ substantive right to engage in concerted activity. See Lewis v. Epic Systems Corp., 823
F.3d 1147 (7th Cir. 2016). The Supreme Court granted certiorari in Murphy Oil and Epic
Systems and heard argument in October of 2017.
Filing Fee – Employment dispute arbitration agreements that require a filing fee to be
paid to the employer and that do not account for possible indigence have been held to be
unconscionable. Ingle v. Circuit City Stores, Inc., 328 F.3d 1165, 1177 (9th Cir. 2003).
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Secrecy of Outcome – In Ting v. AT&T, 319 F.3d 1126 (9th Cir. 2003), the Ninth Circuit
also held that a secrecy provision in an AT&T customer service agreement that contained an
arbitration clause was substantively unconscionable. The court reasoned that only AT&T would
gain access to precedent and that the unavailability of arbitral decisions could prevent potential
plaintiffs from obtaining the information needed to build a case of intentional misconduct. Id. at
1151-52. The Fifth Circuit, however, rejected this reasoning in a case under Louisiana law.
Iberia Credit Bureau v. Cingular Wireless, LLC, 379 F.3d 159, 175-76 (5th Cir. 2004).
Limited Discovery – In In re Poly-America L.P., 262 S.W.3d 337 (Tex. 2008), the Texas
Supreme Court held that limiting discovery to one deposition per side, 25 interrogatories, and 25
requests for production did not, in the context of that case, render the arbitration agreement at
issue substantively unconscionable. But see Walker v. Ryan’s Family Steak Houses, Inc., 400 F.
3d 370 (6th Cir. 2005) (limiting discovery to at most one deposition created impermissible
unfairness to the plaintiffs).
Waiver of Jury – Courts have by and large rejected arguments that a person’s agreement
to arbitrate impermissibly waives a right to a jury trial.
In one case, the Fourth Circuit succinctly explained that the “loss of the right to a jury
trial is a necessary and fairly obvious consequence of an agreement to arbitrate.” Sydnor v.
Conseco Fin. Servs. Corp., 252 F.3d 302, 307 (4th Cir. 2001). Closer to home, in American
Heritage Life Ins. Co. v. Orr, 294 F.3d 702, 710-11 (5th Cir. 2002), the Fifth Circuit described
an argument that enforcement of an arbitration agreement would deprive the plaintiffs of their
constitutional right to a jury trial as “without foundation,” observing that “by agreeing to
arbitration [plaintiffs] have necessarily waived the following: (1) their right to a judicial forum,
and (2) their corresponding right to a jury trial.” Id. Texas state courts have reached the same
conclusion. Henry v. Gonzalez, 18 S.W.3d 684, 691 (Tex. App. – San Antonio 2000, pet. dism’d
by agr.) (same); but see Kloss v. Edward D. Jones & Co., 54 P.3d 1, 11 (Mont. 2002) (concurring
opinion signed by majority of justices stating that mandatory arbitration interferes with the right
to trial by jury and any waiver of that right must be knowing, intelligent, and voluntary).
Note also the distinct but related issue of whether contractual jury waivers are
enforceable. The Supreme Court of Texas has held that they are. In re Prudential Ins. Co., 148
S.W.3d 124 (Tex. 2004) (enforcing contractual jury waiver); see also In re Frank Kent Motor
Co., 361 S.W.3d 628 (Tex. 2012) (jury waiver not procured by coercion because at will
employee was threatened with termination if he did not agree to jury waiver); but see Grafton
Partners L.P. v. Superior Court of Alameda Co., 116 P.3d 479 (Cal. 2005) (finding pre-dispute
contractual jury waiver unenforceable under California statute regulating methods for waiving
jury trials); BankSouth, N.A. v. Howard, 444 S.E.2d 799 (Ga. 1994) (also invalidating a
contractual jury waiver).
One Sided Obligation to Arbitrate – In cases where a binding agreement has been
formed, but the terms of that agreement only require one side to arbitrate – such as an employee
alone in an agreement with her employer to arbitrate employment disputes – the absence of an
obligation of the other party to arbitrate has been found by some courts, but not others (including
Texas’ courts) to render the arbitration agreement substantively unconscionable.
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Thus in Ingle v. Circuit City Stores, Inc., 328 F.3d 1165 (9th Cir. 2003), the Ninth Circuit
found that Circuit City’s arbitration agreement was substantively unconscionable because it
lacked “the ‘modicum of bilaterality’” that California requires to be enforceable. Id. at 1173. The
Fifth Circuit confronted a similar situation under Louisiana law in Iberia Credit Bureau, Inc. v.
Cingular Wireless LLC, 379 F.3d 159, 169 n.10 (5th Cir. 2004). However, the Texas Supreme
Court has held that an arbitration clause in a law firm’s engagement letter that excepted from the
arbitration requirement claims for unpaid fees did not make the arbitration clause
unconscionable. Royston, Rayzor, Vickery & Williams, LLP v. Lopez, 467 S.W.3d 494 (2015).
Similarly, in In re Palm Harbor Homes, Inc., 195 S.W.3d 672, 678 (Tex. 2006), the Supreme
Court of Texas held that the right of a third party beneficiary of an arbitration agreement to opt
out of arbitration did not render the agreement unconscionable. More recently, a court of appeals
has held that one parties right to bypass mediation as a condition to arbitration did not make a
promise to arbitrate illusory. ); Southwinds Express Constr. v. D.H. Griffin of Texas, Inc., 513
S.W.3d 66 (Tex. App. – Houston [14th Dist.] 2016).
Timing of Implementation of Agreement – The United States District Court for the
Southern District of Texas confronted a case in which an employer implemented an arbitration
policy which provided that continued employment demonstrated agreement to the policy.
However, the arbitration requirement was implemented after an employee had filed a change of
discrimination with the EEOC (which alleged discriminatory failure to promote and harassment),
but before he filed suit. Judge Kent held that enforcing the arbitration agreement in those
circumstances would be unconscionable. The employee had limited alternatives to accepting the
arbitration requirement, and the Judge found that allowing the employer to bind the employee to
the arbitration requirement “after he had essentially initiated his lawsuit . . . was fundamentally
and manifestly unfair and contrary to public policy.” Wilcox v. Valero Refining Co., 256 F. Supp.
2d 687 (S.D. Tex. 2003). More recently, a Texas court of appeals construed an arbitration policy
promulgated after an employee’s claim accrued that did not specifically include pre-existing
claims not to reach such claims. The court also noted that, even if the agreement reached such
claims, the agreement could be unconscionable. In re Brookshire Bros., Ltd., 198 S.W.3d 381
(Tex. App. – Texarkana 2006, orig. proceeding).
Small Print – Small print alone will not render an arbitration agreement unenforceable
since the FAA prohibits states from requiring such agreements to be set out with special
prominence. Iberia Credit Bureau, Inc. v. Cingular Wireless LLC, 379 F.3d 159, 172 (5th Cir.
2004).
B. Issues Surrounding Whether a Dispute Falls
Within the Scope of an Arbitration Agreement.
Once a court concludes that a valid agreement to arbitrate exists, the court must then
conclude that the dispute at issue falls within the scope of the agreement to arbitrate. Although
this inquiry turns on the dispute at issue and the language of each arbitration agreement, certain
generalizations can be made.
1. The Presumption in Favor of Finding Disputes to be Covered.
Texas and federal courts have repeatedly recognized that the FAA evinces “an ‘emphatic
federal policy in favor of arbitral dispute resolution.’” In re American Homestar of Lancaster,
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Inc., 50 S.W.3d 480, 484 (Tex. 2001) (quoting Mitsubishi Motors Corp. v. Soler Chrysler
Plymouth, Inc., 473 U.S. 614, 631 (1985)); Safer v. Nelson Financial Group Inc., 422 F.3d 289
(5th Cir. 2005). As the Texas Supreme Court has held, “[t]he policy in favor of enforcing
arbitration agreements is so compelling that a court should not deny arbitration unless it can be
said with positive assurance that an arbitration clause is not susceptible of an interpretation
which could cover the dispute at issue.” Prudential Securities, Inc. v. Marshall, 909 S.W.2d 896,
899 (Tex. 1999) (emphasis in original) (citation omitted); In re Rubiola, 334 S.W.3d 220, 225
(Tex. 2011) (quoting same); In re First Texas Homes, Inc., 120 S.W.3d 868 (Tex. 2003)
(agreement to arbitrate “all disputes” covered all claims, even those arising after execution of
arbitration agreement); see also Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S.
1, 24-25 (1983) (“any doubts concerning the scope of arbitral issues should be resolved in favor
of arbitration, whether the problem at hand is the construction of the contract language itself or
an allegation of waiver, delay, or like defense to arbitrability”); Fleetwood Enters. Inc. v.
Gaskamp, 280 F.3d 1069, 1073 (5th Cir. 2002) (“ambiguities [are] resolved in favor of
arbitration”).
2. Arbitration Will be Ordered Even if Piecemeal Litigation Results.
The parties must arbitrate any claims that fall within the scope of the arbitration
agreement, even when other claims in a suit are not arbitrable and piecemeal litigation would
result. KPMG LLP v. Cocchi, 132 S. Ct. 23, 24 (2011); Helena Chem. v. Wilkins, 18 S.W.3d 744,
750 (Tex. App. – San Antonio 2000), aff’d, 47 S.W.3d 486 (Tex. 2001); see also Wee Tots
Pediatrics, P.A. v. Morohunfola, 268 S.W.3d 784 (Tex. App. – Fort Worth 2008, no pet.) (same).
The same rule applies where a plaintiff’s claims against some parties must be arbitrated, but that
plaintiff’s claims against other parties need not be arbitrated. Rasheed Al Rushaid v. National
Oilwell Varco, Inc., 814 F.3d 300 (5th Cir. 2016).
In fact, courts have held that where an issue between two parties must be arbitrated,
litigation involving that issue that may involve other parties must be stayed to allow the
arbitration to proceed. See In re Merrill Lynch Trust Co. FSB, 235 S.W.3d 185, 195 (Tex. 2007);
In re Ghanem, 203 S.W.3d 896 (Tex. App. – Beaumont 2006, orig. proceeding). The Fifth
Circuit has explained that, where claims of signatories are being arbitrated, a stay of litigation
involving non-signatory parties is subject to a district court’s discretion and is only warranted if:
(1) the arbitrated and litigated disputes involved the same operative facts; (2) the claims asserted
in the arbitration and litigation were “inherently inseparable”; and (3) the litigation had a “critical
impact” on the arbitration. Rainier DSC 1, LLC v. Rainier Capital Management, L.P., No. 15-
20375 (5th Cir. 2016).
3. An Opponent of Arbitration Has the Burden to Show No Coverage.
Texas courts have explained that parties seeking to avoid arbitration have the burden “to
show that [their] claims [fall] outside of the scope of the arbitration agreement.” Prudential
Securities, Inc. v. Marshall, 909 S.W.2d 896, 900 (Tex. 1999); Cantella & Co., Inc. v. Goodwin,
924 S.W.2d 943, 944 (Tex. 1996) (same).
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4. Focus of Inquiry is on Allegations of the Complaint and the Language of the
Arbitration Clause.
To determine whether a claim is covered by an arbitration agreement, courts are to “focus
on the factual allegations of the complaint.” Prudential Securities, Inc. v. Marshall, 909 S.W.2d
896, 900 (Tex. 1999) (holding that defamation claims premised on allegations that defendants
said plaintiffs were dishonest and thieves fell within scope of arbitration agreement covering
claims arising out of plaintiffs’ employment or termination of employment); In re Rubiola, 334
S.W.3d 220, 225 (Tex. 2011) (same); In re Dillard Dep’t Stores, Inc., 186 S.W.3d 514, 516
(Tex. 2006) (defamation claims covered by agreement requiring arbitration of claims for
“personal injuries arising from termination”).
5. The Effect of “Broad” Arbitration Clauses.
When the arbitration clause at issue requires arbitration of disputes using phrases such as
“any claims,” “arising out of,” “relating to,” and “in connection with,” courts characterize such
clauses “as broad arbitration clauses capable of expansive reach.” Pennzoil Explor. & Prod. Co.
v. Ramco Energy Ltd., 139 F.3d 1061, 1067 (5th Cir. 1998) (citing Prima Paint Corp. v. Flood &
Conklin Mfg. Co., 388 U.S. 395, 397-98 (1967)).
Such “broad” arbitration clauses “are not limited to claims that literally ‘arise under the
contract,’ but rather embrace all disputes between the parties having a significant relationship to
the contract regardless of the label attached to the dispute.” Id. at 1067 (emphasis added). The
Fifth Circuit has explained that when parties agree to an arbitration clause covering “[a]ny
dispute . . . arising out of or in connection with or relating to this Agreement,” they “intend the
clause to reach all aspects of the relationship.” Nauru Phosphate Royalties, Inc. v. Drago Daic
Interests, Inc., 138 F.3d 160, 164-65 (5th Cir. 1998) (emphasis added). Courts have similarly
noted that when examining arbitrability under a “broad” arbitration clause, claims that “touch
matters” enumerated by the clause are arbitrable. Mitsubishi Motors Corp. v. Soler Chrysler-
Plymouth, 473 U.S. 614, 625-26 n.13 (1985); McReynolds v. Elston, 222 S.W.3d 731 (Tex. App.
– Houston [14th Dist.] 2007, no pet.); Kirby Highland Lakes Surgery Center, L.L.P. v. Kirby,
183 S.W.3d 891 (Tex. App. – Austin 2006, no pet.) (extensively discussing same); see In re Swift
Transp. Co., Inc., 279 S.W.3d 403, 408 (Tex. App. – Dallas 2009, orig. proceeding) (holding that
agreement to arbitrate disputes “arising out of or relating to the relationship created by the
Agreement” includes within its scope plaintiff’s tort claims). Thus a claim that a person was
fraudulently induced into entering into an agreement that contains a broad arbitration clause is a
claim that falls within the scope of the arbitration clause. In re J.D. Edwards World Solutions
Co., 87 S.W.3d 546, 550 (Tex. 2002); In re Houston Progressive Radiology Assoc., PLLC, 474
S.W.3d 435 (Tex. App. – Houston [1st Dist.] 2015, orig. proceeding).
The effect of a “broad” arbitration clause can also reach disputes that more directly arise
out of contemporaneously-executed agreements that are part of the same transaction as the
agreement containing the arbitration clause, even where those separate agreements are executed
by related parties, where the agreements cannot be construed without reference to the other
agreements. In re Houston Progressive Radiology Assoc., PLLC, 474 S.W.3d 435 (Tex. App. –
Houston [1st Dist.] 2015, orig. proceeding).
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Similarly, in Pennzoil Exploration, the Fifth Circuit rejected a claim that an arbitration
clause in a joint operating agreement (“JOA”) did not reach a dispute arising under a subsequent
letter agreement between the parties. The court held that the claim based on the letter agreement
was subject to the JOA’s arbitration clause because it “related to” the JOA. Pennzoil
Exploration, 139 F.3d at 1067. “Bearing in mind the strong federal policy in favor of
arbitration,” the court held that the claim “related to” the JOA because the dispute “flow[ed]
from a series of interrelated agreements all of which centered around the [same] overriding
goal.” Id. at 1068. Although the court noted that “the dispute may not ‘arise under’ the JOA,” the
“interrelatedness and interdependency” of the JOA and the letter agreement made the claim
“‘relate to’ the JOA and therefore fall[] within the JOA’s broad arbitration provision.” Id. at
1069.
However, the reach of a broad arbitration clause is not limitless. A claim falls within the
scope of a broad arbitration clause if the claim “is so interwoven with the contract [containing an
arbitration clause] that it could not stand alone,” but a claim need not be arbitrated if it is
“completely independent of the contract and could be maintained without reference to the
contract.” Loy v. Harter, 128 S.W.3d 397, 403 (Tex. App. – Texarkana 2004, pet. denied); Ford
v. NYL Care Health Plans of Gulf Coast, Inc., 141 F.3d 243, 250 (5th Cir. 1998) (same). In Loy,
a Texas court of appeals found that a party’s claim against an individual for breach of his
fiduciary duty as a director of a corporation did not fall within the scope of a broad arbitration
clause contained in the individual’s contract of employment with the corporation. Id. at 402-405;
see also In re Great Western Drilling Ltd., 211 S.W.3d 828 (Tex. App. – Eastland 2006).
Similarly, the Fifth Circuit has found that broad “arising out of or relating to” language can be
limited by other language in the arbitration agreement. Tittle v. Enron Corp., 463 F.3d 410 (5th
Cir. 2006).
6. Claims that Are Intertwined With Causes of Action That
Are Subject to Arbitration Are Themselves Arbitrable.
Claims asserted in a lawsuit are also subject to arbitration if they are “factually
intertwined” with, “touch on,” have a “significant relationship with,” or are “inextricably
enmeshed” with claims that are subject to arbitration. Cotton Commercial USA, Inc. v. Clear
Creek Indep. School Dist., 387 S.W.3d 99, 108 (Tex. App. – Houston [14th Dist. 2012], no pet.).
In Jack B. Anglin Co. Inc. v. Tipps, 842 S.W.2d 266, 270-71 (Tex. 1992), the Texas
Supreme Court held that DTPA claims arising out of alleged misrepresentations regarding the
quality of defendants’ services and material used in its work were subject to arbitration because
the basis for those claims was “factually intertwined” with plaintiff’s breach of contract claim,
which was subject to arbitration.
Similarly, Gerwell v. Moran, 10 S.W.3d 28 (Tex. App. – San Antonio 1999, no writ) held
that “[a]s long as the asserted claims ‘touch upon matters covered by the [arbitration]
agreement, the claims are subject to arbitration.’” Id. at 31 (emphasis in original). The court
found that the plaintiff’s claims for breach of contract, breach of fiduciary duty, fraud, and unjust
enrichment based on contract in which he agreed to assign his interest in partnership to other
partners were subject to arbitration because the underlying partnership agreement contained
arbitration clause; the court noted that “but for [the partnership agreement, plaintiff] would not
have had a partnership interest to assign.” Id.
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More recently, in AutoNation USA Corp. v. Leroy, 105 S.W.3d 190 (Tex. App. – Houston
[14th Dist.] 2003, no pet.), the court summarized that Texas law provides that “if the facts
alleged ‘touch matters,’ have a ‘significant relationship’ to, are ‘inextricably enmeshed’ with, or
are ‘factually intertwined’ with the contract that is subject to the arbitration agreement, the claim
will be arbitrable. However, if the facts alleged are completely independent of the contract and
the claim could be maintained without reference to the contract, the claim is not subject to
arbitration.” Id. at 195; see also In re Sun Communications, Inc., 86 S.W.3d 313, 319 (Tex.
App. – Austin 2002, orig. proceeding) (plaintiff’s breach of fiduciary duty claims that were
based “on alleged deficiencies in the reports [plaintiff] was supposed to have received under the
contract” that contained arbitration clause were “inextricably intertwined with the contract” and
were thus subject to arbitration) (emphasis in original).
Courts have also compelled arbitration of disputes arising out of contracts that do not
contain arbitration clauses but were part of a transaction that involved other contracts that did
contain arbitration clauses. See Leroy, 105 S.W.3d 190 n.2 (finding a claim arising out of an
agreement that did not itself contain an arbitration clause by noting “the well-settled principle of
Texas contract law that ‘[when] several instruments, executed contemporaneously or at different
times, pertain to the same transaction, they will be read together although they do not expressly
refer to each other.’”) (quoting Fort Worth Indep. School Dist. v. Fort Worth, 22 S.W.3d 831,
840 (Tex. 2000)); see also Safer v. Nelson Financial Group Inc., 422 F.3d 289 (5th Cir. 2005)
(noting same).
7. Arbitration Cannot Be Avoided by Recasting Claims.
Finally, parties to an arbitration agreement cannot avoid arbitration simply by casting
their claims in tort rather than contract. Grigson v. Creative Artists Agency, L.L.C., 210 F.3d 524,
526 (5th Cir. 2000); Brown v. Anderson, 102 S.W.3d 245 (Tex. App. – Beaumont 2003, pet.
denied) (same).
8. Specific Exceptions Will Be Enforced.
If an arbitration agreement excepts certain types of disputes from arbitration, those
exceptions will generally be enforced (absent the applicability of some other state law defense).
Thus, in Lloyd v J.P. Morgan Chase, 791 F.3d 265 (2d Cir. 2015), the Second Circuit affirmed
the denial of an employer’s motion to compel arbitration of class and collective action claims
brought by certain financial advisors because the FINRA rules that applied to the dispute through
the parties’ employment agreement precluded the arbitration of class and collective action
claims, and there was no waiver by the employees of their ability to participate in class claims.
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