Earlier this month, an appeal was filed regarding a district court’s order compelling arbitration. Diggs v. Citigroup, Inc., No. 13-10138 (5th Cir. May 13, 2013). (Click on the following link to see a copy of the appellant’s brief: Diggs brief.) The case involves an employee who filed a lawsuit in federal court against her employer Citigroup for alleged violations of Title VII and the Family and Medical Leave Act because her employer terminated her for complications related to her pregnancy. The district court enforced an arbitration agreement and dismissed the plaintiff’s case.
As I discuss in my book, the Federal Arbitration Act was never intended to cover employment disputes, and thus Ms. Diggs should not have to litigate the enforceability of the arbitration agreement.
In the lower court, Ms. Diggs submitted the affidavit of Alexander Colvin, a Cornell University professor of labor relations and conflict resolution. Through this affidavit, Professor Colvin testified that based on his research, employment arbitrations conducted by the American Arbitration Association were systematically biased against employees, and employees recovered significantly less in arbitration as compared to state or federal court litigation. The plaintiff used this affidavit to argue that the arbitration agreement was not enforceable due to fraud and mistake because the agreement required a fair, neutral arbitrator. However, the lower court excluded the affidavit under a purported Daubert analysis, and the plaintiff is arguing on appeal that the lower court erred in excluding this affidavit under Daubert.
Also, the plaintiff is arguing on appeal that the lower court erred in refusing to allow discovery regarding the fairness of American Arbitration Association proceedings involving Citigroup.
It would be FASCINATING to conduct discovery regarding the American Arbitration Association’s interactions with some of its biggest repeat users. In my book about the history of the arbitration reform movement and the enactment of the Federal Arbitration Act, I explore some of the roots of the AAA’s formation during the 1920s, and based on archival material I discovered, the story of the AAA’s formation involves secret, emergency meetings, deception, jealously, and tremendous mistrust between the business and legal communities. There was an overheated tension at the time between business interests desiring to avoid courts and the intricacies of law and lawyers who did not want to lose control over resolving disputes. It would be very interesting to engage in discovery today of any possible tensions between business interests and providers of arbitration services.
Also, the brief in this Diggs case is a great read. The brief cites an arbitration article involving one of the best titles ever, “Arbitration and the Godless Bloodsuckers.” Also, I have never seen a cartoon used in an appellate brief before, and this brief includes a cartoon about arbitration.