In Kay v. The Minacs Group, Inc., No. 13-1974 (6th Cir. Sept. 5, 2014) (click here for a copy of the decision), the plaintiff employee filed an age discrimination suit against his employer, and the employer moved to dismiss the action and compel arbitration pursuant to a purported arbitration policy. In support of the request to compel arbitration, the employer submitted a receipt, signed by the plaintiff, indicating that the employee had agreed to arbitrate disputes arising out of the “Policies and Procedures” of a PREDECESSOR company which the defendant employer had purchased. However, the employer did not submit a copy of the predecessor’s policies and procedures, and the plaintiff employee submitted evidence that the defendant employer’s current policies had superseded its predecessor’s policies.
The district court compelled arbitration, but the Sixth Circuit reversed, finding that the defendant employer had engaged in “troubling litigation behavior.” The Sixth Circuit stated it had no idea what the predecessor’s policies involved because the defendant employer had failed to submit a copy of these policies, and without a copy, it was uncertain whether the predecessor’s arbitration clause covered the plaintiff’s age discrimination claims. Moreover, the Sixth Circuit was troubled by the defendant’s failure to submit a copy of its own current policies and procedures. According to the Sixth Circuit, the employer’s failure suggested the employer knew its own current policies superseded the predecessor’s policies.
Two basic points from this case: Over the last few months, I’ve noticed other similar cases where a motion to compel is denied because of the moving party’s failure to introduce into the record the arbitration agreement between the parties. For moving parties, it is fundamental to introduce evidence of the agreement into the record, and resisting parties of course should point out any lack of such evidence. Second, with mergers and acquisitions, there are many moving pieces and issues to take care of, but dispute resolution policies should not be overlooked. To prevent any confusion, it seems that new dispute resolution policies should be clearly implemented to supersede any older, and possibly inconsistent, policies.