Bosse v. New York Life Insurance Co.

992 F.3d 20

• Court: Court of Appeals for the First Circuit
• Decided: March 30, 2021
• Docket: 19-2240P
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 19-2240

KETLER BOSSÉ,

Plaintiff, Appellee,

v.

NEW YORK LIFE INSURANCE COMPANY; NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION; NEW YORK LIFE INSURANCE COMPANY OF ARIZONA,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

Before*

Howard, Chief Judge, Lynch and Barron, Circuit Judges.

Michael L. Banks, with whom David C. Dziengowski and Morgan, Lewis & Bockius LLP were on brief, for appellants. Robert M. Fojo, with whom Fojo Law, P.L.L.C. was on brief, for appellee.

* Judge Torruella heard oral argument in this matter and participated in the semble, but he did not participate in the issuance of the panel's opinion in this case. Chief Judge Howard was substituted for Judge Torruella on the panel pursuant to Internal Operating Procedure VII(D)(4). Chief Judge Howard read the briefs, reviewed the record, and listened to the audio recording of oral argument. March 30, 2021 LYNCH, Circuit Judge. The district court refused to

enforce arbitration clauses in the Employment Agreement between

Ketler Bossé and New York Life, which expressly require that any

disputes about arbitrability be referred to the arbitrator to

decide. The Supreme Court decisions in Henry Schein, Inc. v.

Archer & White Sales, Inc., 139 S. Ct. 524 (2019), First Options

of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995), and other cases

result in our reversing that decision because the decision on

whether the dispute is arbitrable belongs to the arbitrator and

not to the court.

Bossé had a continuous business relationship with New

York Life for about fifteen years, during which time he worked

both as an independent contractor and, from 2004 to 2005, as an

employee. In 2016, New York Life terminated its business

relationship with Bossé.

Bossé brought this action in federal court alleging race

discrimination by New York Life in violation of 42 U.S.C. §§ 1981

and 1985 and other claims under state law. In response, New York

Life invoked the arbitration clauses contained in Bossé's

Employment Agreement, which state "[t]he Partner and New York Life

agree that any dispute, claim or controversy arising between them,

including those alleging employment discrimination (including

sexual harassment and age and race discrimination) in violation of

a statute (hereinafter 'the Claim'), as well as any dispute as to

- 3 - whether such Claim is arbitrable, shall be resolved by []

arbitration." New York Life said the arbitration clauses survived

under an explicit "Survival" clause in the parties' Employment

Agreement and asked the court to compel arbitration and stay or

dismiss the lawsuit.

The district court refused to do either. We hold that

the district court's reasoning contravened the holdings in Supreme

Court decisions. The clause delegating all disputes about

arbitrability is clear, unmistakable, and unambiguous. It should

have been enforced on those terms. And even if there were any

ambiguity, and we see none, the presumption in favor of

arbitrability would lead to the same result. Reversal is required

under the Federal Arbitration Act ("FAA") and Supreme Court

opinions interpreting the FAA, and none of Bossé's other arguments

would permit affirmance.

I.

A. Facts

Because this appeal arises from an order on a motion to

stay proceedings and to compel arbitration in connection with a

motion to dismiss, "we draw the relevant facts from the complaint

and the parties' submissions to the district court on the motion."

Biller v. S-H OpCo Greenwich Bay Manor, LLC, 961 F.3d 502, 505 n.2

(1st Cir. 2020) (internal quotation marks omitted) (quoting Bekele

v. Lyft, Inc., 918 F.3d 181, 184 (1st Cir. 2019)).

- 4 - 1. Bossé Is Hired as an Agent

Bossé began his business relationship with New York Life

in 2001 when he was hired as an agent. Bossé believes he was the

first black agent hired by New York Life in New Hampshire and

remained the only black agent working in New Hampshire as late as

2012.

Under the terms of the Agent's Contract, which he

executed with New York Life on November 15, 2001, Bossé was

authorized to solicit applications for various life and health

insurance and annuity policies, for which he earned commissions.

He, however, did not remain an agent but was promoted.

2. The Partner's Employment Agreement

On March 25, 2004, Bossé entered into a Partner's

Employment Agreement ("the Employment Agreement" or "the

Agreement") with New York Life.1 It is the terms of this Employment

Agreement that are at issue. The first line in the Employment

Agreement specifically identifies "KETLER BOSSE" as "PARTNER," and

below that the Agreement states "NEW YORK LIFE INSURANCE COMPANY

hereby authorizes the employment of the person named above as

Partner." The signature line at the end of the Agreement, on which

Bossé signed, is designated as "Partner Signature." It is

1 The Agreement contains a choice-of-law provision stating that it "shall be governed by and interpreted in accordance with" New York state law.

- 5 - undisputed that when Bossé entered the Employment Agreement, he

was a Partner. Under that Agreement, Bossé was paid a salary and

given the responsibility to recruit, to train, and to supervise

agents under the direction of a Managing Partner.

The Employment Agreement included an arbitration clause,

which specifies that

[t]he Partner and New York Life agree that any dispute, claim or controversy arising between them, including those alleging employment discrimination (including sexual harassment and age and race discrimination) in violation of a statute (hereinafter "the Claim"), as well as any dispute as to whether such Claim is arbitrable, shall be resolved by an arbitration proceeding administered by the [National Association of Securities Dealers ("NASD")] in accordance with its arbitration rules.

The arbitration clause also provides that

[i]n the event that the NASD refuses to arbitrate the Claim, the Partner and New York Life agree that the Claim, as well as any dispute as to whether such Claim is arbitrable, shall be resolved by an arbitration proceeding administered by the American Arbitration Association [("AAA")] in accordance with its National Rules for the Resolution of Employment Disputes [("NRRED")].

As specified in the text, such disputes must be resolved

under certain specified rules. We highlight those rules. The

NASD referenced in the arbitration clause has been succeeded by

the Financial Industry Regulatory Authority ("FINRA") and it is

undisputed that the reference to the NASD rules should be read as

- 6 - incorporating the FINRA rules. FINRA Rule 13413 provides that

"[t]he panel has the authority to interpret and determine the

applicability of all provisions under the Code [of Arbitration

Procedure for Industry Disputes]."2 Rule 6 of the AAA Employment

Arbitration Rules and Mediation Procedures (formally named the

NRRED) states 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" and shall also "have the power to determine the

existence or validity of a contract of which an arbitration clause

forms a part."3

Finally, the Agreement contains a "Survival" clause,

which provides that various provisions of the contract "shall

survive termination of this . . . Employment Agreement by either

party for any reason." The arbitration clause is one of those

2 13413. Jurisdiction of Panel and Authority to Interpret the Code, FINRA (Dec. 15, 2008), https://www.finra.org/rules- guidance/rulebooks/finra-rules/13413. 3 Am. Arb. Ass'n, Employment Arbitration Rules and Mediation Procedures 12 (2009), https://www.adr.org/sites/ default/files/EmploymentRules_Web2119.pdf. Rule 1 notes that "[a]ny arbitration agreements providing for arbitration under [the NRRED] shall be administered pursuant to these Employment Arbitration Rules and Mediation Procedures." Id. at 10. In addition, the introduction to these rules and procedures states that they were developed for arbitration agreements contained in employment agreements, independent contractor agreements, and other types of workplace agreements. Id. at 9.

- 7 - provisions the parties expressly provided would survive

termination of the Agreement.

3. Bossé's Subsequent Work as an Agent and District Agent and the Alleged Race Discrimination

At some point in 2005, Bossé transitioned back to working

as a contractor with New York Life under the Agent's Contract.

That contract did not contain an arbitration clause. He worked

with New York Life in that capacity until 2013, when he became a

District Agent.

Under the District Agent Agreement, Bossé was authorized

to establish his own firm separate from New York Life's general

office, at his own expense, and to hire his own agents, and he had

other responsibilities in addition to his normal duties as an

agent. The District Agent Agreement explicitly stated that

District Agents are "independent contractor[s] for all purposes"

and that it "does not and will not be construed to create the

relationship of employer and employee between New York Life and

[the] District Agent." The District Agent Agreement did not

contain an arbitration clause.

On January 15, 2016, Bossé was terminated from his

business relationship with New York Life pursuant to the at-will

employment provision in his Agent's Contract. He alleges he was

told he was being terminated because he had provided false or

inaccurate information in processing an electronic life insurance

- 8 - application for his ex-wife. Bossé denies any such misconduct and

asserts that the purported reason for his termination was

pretextual and that the real reason for his termination was his

race.

Generally, Bossé contends that New York Life and

specific employees undermined his relationships with his customers

and his agents in various ways. Bossé claims that he complained

of this misconduct to New York Life employees on several occasions

from 2013 to 2015, but that no action was taken to address it. He

asserts that white agents were not subject to this mistreatment

and that it constituted a pattern and practice of discrimination

because of his race and because he had recruited many minority

agents to his unit. Bossé alleges that he was the first and only

black District Agent hired by New York Life at the time his

business relationship with the defendants ended and that New York

Life generally failed to hire black agents.

B. Procedural History

On February 12, 2016, Bossé filed a charge of racial

discrimination and retaliation with the New Hampshire Commission

for Human Rights ("the Commission"). New York Life defended that

charge by producing to the Commission a copy of the Agent's

Contract, which established that Bossé was an independent

contractor, rather than an employee, at the time of the alleged

misconduct. The Commission thus dismissed the charge for lack of

- 9 - jurisdiction. New York Life did not argue to the Commission that

the charge of discrimination was subject to binding arbitration

and should have been dismissed on that basis.

On January 7, 2019, Bossé filed a complaint against New

York Life Insurance Company, New York Life Insurance and Annuity

Corporation, and New York Life Insurance Company of Arizona

(collectively "New York Life") in federal court in New Hampshire.

He brought claims for race discrimination and retaliation under 42

U.S.C. §§ 1981 and 1985, as well as various claims under New

Hampshire state law. In response to that complaint, New York Life

requested that Bossé dismiss the federal case and proceed to

arbitration. Bossé refused.

On April 9, 2019, New York Life filed a motion to dismiss

or, in the alternative, to stay proceedings and to compel

arbitration pursuant to Sections 3 and 4 of the FAA.4 9 U.S.C.

§§ 3-4. It argued that New York Life and Bossé had a valid

agreement "that any dispute, claim or controversy arising between

them, . . . as well as any dispute as to whether such Claim is

arbitrable, shall be resolved by [] arbitration." New York Life

argued that the arbitration clauses survived the termination of

4 New York Life's motion also sought to dismiss Count III of the complaint for "Conspiracy to Interfere with Civil Rights" in violation of 42 U.S.C. § 1985. The district court's decision as to that portion of the motion is not before us on appeal.

- 10 - the Employment Agreement and that Bossé's claims fell within the

scope of the broad arbitration clauses. We refer to the

arbitration clauses rather than a single clause because under the

"Arbitration" heading in the Agreement there are separate

provisions in separate paragraphs. New York Life argued that under

the clauses, any disputes about the scope of the agreement to

arbitrate were explicitly assigned to the arbitrator to determine.

Bossé opposed New York Life's motion.

On November 13, 2019, the district court denied New York

Life's motion to stay proceedings and to compel arbitration. Bossé

v. N.Y. Life Ins. Co., No. 19-cv-016-SM, 2019 WL 5967204, at *6

(D.N.H. Nov. 13, 2019). The district court determined that the

question of whether these disputes fell within the arbitration

clauses was for it to resolve and not the arbitrator. See id. at

*4-5. It concluded that the language of the arbitration agreement

presented an issue of contract formation under New York state law.

See id. It also held that Section 2 of the FAA "itself requires

that an arbitration clause have some relationship to, some

connection with, the agreement or contract, as a condition of

federal enforcement." Id. at *5. Finding no such relationship

between the Employment Agreement and Bossé's claims here, the

- 11 - district court refused to enforce the arbitration clauses.5 Id.

at *6.

New York Life timely appealed.

II.

We have jurisdiction over an interlocutory appeal of a

denial of a motion to stay proceedings or to compel arbitration.

Marie v. Allied Home Mortg. Corp., 402 F.3d 1, 6 (1st Cir. 2005)

(citing 9 U.S.C. § 16(a)(1)). Given the legal nature of the issues

involved, we review the denial of the motion to stay proceedings

and to compel arbitration de novo. Id. at 9. "To compel

arbitration, the defendants 'must demonstrate [(1)] that a valid

agreement to arbitrate exists, [(2)] that the[y are] entitled to

invoke the arbitration clause, [(3)] that the other party is bound

by that clause, and [(4)] that the claim asserted comes within the

clause's scope.'" Grand Wireless, Inc. v. Verizon Wireless, Inc.,

748 F.3d 1, 6 (1st Cir. 2014) (third alteration in original)

(quoting Soto-Fonalledas v. Ritz-Carlton San Juan Hotel Spa &

Casino, 640 F.3d 471, 474 (1st Cir. 2011)).

5 The district court also concluded that New York Life's interpretation of the survival clause contravened public policy by impermissibly extending the statute of limitations. Id. at *6. Bossé does not defend this aspect of the district court's decision on appeal. Nor is the district court's reasoning on that point persuasive. The survival clause does not change the limitations period for any particular claim, but rather provides that all claims must be brought in a specific forum, even after termination of the Employment Agreement. And there is no statute of limitations for enforcement of an arbitration agreement.

- 12 - A. The District Court Erred in Not Referring Disputes as to the Arbitrability of the Claims to the Arbitrator

1. Disputes as to the Arbitrability of the Claims Are Clearly, Unmistakably, and Unambiguously Delegated to the Arbitrator

It is well-settled that arbitration is a matter of

contract.6 See, e.g., Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407,

1415-16 (2019); Granite Rock Co. v. Int'l Brotherhood of Teamsters,

561 U.S. 287, 296-97, 299 (2010); First Options, 514 U.S. at 943.

The Supreme Court has made clear that where the parties have agreed

to arbitrate, the FAA requires "courts [to] 'rigorously enforce'

arbitration agreements according to their terms." Am. Express Co.

v. Italian Colors Rest., 570 U.S. 228, 233 (2013) (quoting Dean

Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 221 (1985)); see also

Lamps Plus, 139 S. Ct. at 1412, 1416.

That applies to the enforcement of delegation clauses.7

In Henry Schein, the Supreme Court emphasized that where the

6 "When deciding whether the parties agreed to arbitrate a certain matter (including arbitrability), courts generally . . . should apply ordinary state-law principles that govern the formation of contracts." First Options, 514 U.S. at 944. 7 We refer to an agreement to submit issues of arbitrability to the arbitrator -- like the agreement at issue here -- as a "delegation clause." A delegation clause "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." Henry Schein, 139 S. Ct. at 529 (quoting Rent-A-Center, W., Inc. v. Jackson, 561 U.S. 63, 70 (2010)).

- 13 - parties "by clear and unmistakable evidence" delegate issues of

arbitrability to the arbitrator, "the courts must respect the

parties' decision as embodied in the contract" and send the issue

to the arbitrator to decide. 139 S. Ct. at 528, 530 (internal

quotation marks omitted) (quoting First Options, 514 U.S. at 944);

see also AT & T Techs., Inc. v. Commc'ns Workers of Am., 475 U.S.

643, 649 (1986). It held that a court cannot decide the

arbitrability question in such circumstances because that court

"thinks that the argument that the arbitration agreement applies

to a particular dispute is wholly groundless." Henry Schein, 139

S. Ct. at 529. Where there is a clear and unmistakable delegation

of arbitrability issues, the court's proper inquiry "before

referring a dispute to an arbitrator" is limited to "determin[ing]

[(1)] whether a valid arbitration agreement exists . . . [b]ut

[(2)] if a valid agreement exists, and if the agreement delegates

the arbitrability issue to an arbitrator, a court may not decide

the arbitrability issue." Id. at 530 (citing 9 U.S.C. § 2).8

Henry Schein builds on the Supreme Court's earlier

decisions, which reinforce this rule. "[C]ourts should order

8 The Court in Henry Schein remanded for the court of appeals to determine whether there was clear and unmistakable evidence of delegation in that case. See id. at 531. The Fifth Circuit on remand concluded there was no such clear and unmistakable evidence of delegation. Archer & White Sales, Inc. v. Henry Schein, Inc., 935 F.3d 274, 281-82 (5th Cir. 2019).

- 14 - arbitration of a dispute only where the court is satisfied that

neither [(1)] the formation of the parties' arbitration agreement

nor [(2)] (absent a valid provision specifically committing such

disputes to an arbitrator) its enforceability or applicability to

the dispute is in issue." Granite Rock, 561 U.S. at 299 (second

emphasis added) (citing First Options, 514 U.S. at 943); see also

id. at 301, 303.

Bossé does not argue that the arbitration agreement was

invalidly formed. Nor does he challenge the validity or formation

of the delegation clause specifically.9 Rather, he asserts that

the arbitration agreement and the delegation clause do not apply

to his particular claims. The district court reasoned that the

issue was for it, not the arbitrator, to decide and then determined

the issue, in agreement with Bossé.10 See Bossé, 2019 WL 5967204,

at *4-5.

9 The dispute about the delegation clause clearly does not undermine the formation or the validity of the agreements to arbitrate. See Grand Wireless, 748 F.3d at 8 (enforcing an arbitration agreement with broad language); see also Lamps Plus, 139 S. Ct. at 1412, 1416; Italian Colors Rest., 570 U.S. at 233. 10 The district court's reliance on Wexler v. AT & T Corp., 211 F. Supp. 3d 500 (E.D.N.Y. 2016), in support of the proposition that there was no enforceable agreement to arbitrate these particular claims is misplaced. The court in Wexler held that an unlimited arbitration clause presents an issue of contract formation for lack of mutual intent to be bound and that the arbitration agreement at issue was not enforceable for that reason. Id. at 504-05. Bossé does not contend that the arbitration agreement or the delegation clause were not validly formed or that they are generally unenforceable.

- 15 - We hold that the text of the parties' agreement clearly,

unmistakably, and unambiguously delegates the arbitrability

dispute at issue here to the arbitrator. The district court erred

in not enforcing that agreement according to its own language and

in not referring the dispute about whether Bossé's claims are

arbitrable to the arbitrator.

First, the text of the arbitration agreement contains an

express delegation clause. The arbitration agreement states that

"[t]he Partner and New York Life agree that any dispute, claim or

controversy arising between them, including those alleging

employment discrimination (including . . . race discrimination) in

violation of a statute [(]'the Claim'), as well as any dispute as

to whether such Claim is arbitrable, shall be resolved by []

arbitration." The term "such Claim" is a defined term which refers

to "any dispute, claim or controversy arising between them." Thus,

the delegation clause provides that "any dispute as to whether

[any dispute, claim or controversy arising between them] is

arbitrable, shall be resolved by [] arbitration." There is no

language in that text that carves out from its application a

Moreover, the situation in Wexler is quite different from that here. Unlike the customers who "check[ed] a box accepting the 'terms and conditions' necessary to obtain cell phone service," id. at 504, Bossé is a sophisticated party who had an ongoing business relationship with New York Life and who submitted no evidence that he did not understand the terms of the arbitration agreement, the delegation clause, or the survival clause.

- 16 - particular type of claim or dispute. It is not the role of the

court to rewrite the parties' contract. See Lamps Plus, 139 S.

Ct. at 1412, 1416; Italian Colors Rest., 570 U.S. at 233.

Second, the Employment Agreement also contains other

text indicating the parties' clear and unmistakable intent in

addition to the text of the express delegation clause. The

arbitration clauses provide that "[t]he Partner and New York Life

agree that any dispute, claim or controversy arising between them,

. . . as well as any dispute as to whether such Claim is arbitrable,

shall be resolved by an arbitration proceeding administered by the

NASD in accordance with its arbitration rules" and that "[i]n the

event that the NASD refuses to arbitrate the Claim, the Partner

and New York Life agree that the Claim, as well as any dispute as

to whether such Claim is arbitrable, shall be resolved by an

arbitration proceeding administered by the [AAA] in accordance

with its [arbitration rules]." Rule 6(a) of the AAA Employment

Arbitration Rules and Mediation Procedures explicitly gives the

issue of whether claims are arbitrable to the arbitrator to decide.

That rules states 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." This Court is clear that incorporation of the AAA

arbitration rules constitutes clear and unmistakable evidence of

the parties' intent to delegate arbitrability issues to the

- 17 - arbitrator. Awuah v. Coverall N. Am., Inc., 554 F.3d 7, 11-12

(1st Cir. 2009).

Other text in the Employment Agreement mandates our

result. The survival clause reinforces the parties' intent that

issues of arbitrability be decided by an arbitrator even after

that Agreement was terminated. See Breda v. Cellco P'ship, 934

F.3d 1, 7 (1st Cir. 2019); see also Litton Fin. Printing Div. v.

NLRB, 501 U.S. 190, 205-06 (1991). Bossé largely ignores the

survival clause in his briefing, instead arguing that the clause

is "irrelevant." The clause is not irrelevant.11

The cases which Bossé cites in support of his argument

that there is no clear and unmistakable evidence of delegation of

the arbitrability dispute here are factually distinguishable.

None involves an express delegation clause, and several involve

11 Bossé does not explicitly argue that there was a novation which superseded the Employment Agreement and the issue is waived. Even if we were to bypass that waiver, we conclude the argument fails. Under New York law, "[t]he party claiming a novation has the burden of proof of establishing that it was the intent of the parties to effect a novation." Grimaldi v. Sangi, 113 N.Y.S.3d 771, 774 (N.Y. App. Div. 2019) (quoting Warberg Opportunistic Trading Fund L.P. v. GeoResources, Inc., 58 N.Y.S.3d 1, 8 (N.Y. App. Div. 2017)). Bossé has presented no evidence that the parties intended to extinguish the obligations under the Employment Agreement when they entered into the two subsequent agreements, and the inclusion of the survival clause in the Employment Agreement belies the notion that New York Life intended the subsequent agreements between it and Bossé to terminate the earlier arbitration agreement.

- 18 - arbitration agreements that had only an incorporation of an

arbitral forum's arbitration rules or included a provision

expressly carving out certain types of claims or disputes. See

First Options, 514 U.S. at 940-41 (no express delegation clause);

Archer & White Sales, Inc. v. Henry Schein, Inc., 935 F.3d 274,

277-82 (5th Cir. 2019) (no express delegation clause, only an

incorporation of AAA arbitration rules, carve-out provision for

certain actions and disputes); NASDAQ OMX Grp., Inc. v. UBS Sec.,

LLC, 770 F.3d 1010, 1016, 1031-32 (2d Cir. 2014) (same); Turi v.

Main St. Adoption Servs., LLP, 633 F.3d 496, 506-07, 510 (6th Cir.

2011) (very narrow arbitration agreement, no express delegation

clause, only an incorporation of AAA arbitration rules), abrogated

by Henry Schein, 139 S. Ct. at 529.12

Bossé also argues that the court must assess whether the

particular dispute falls within the scope of the arbitration

12 Turi, one of the cases on which Bossé relies -- and which was explicitly abrogated by Henry Schein -- applied a version of the "wholly groundless exception" that is quite similar to the reasoning the district court applied in this case. See Turi, 633 F.3d at 511 (holding "that even where the parties expressly delegate to the arbitrator the authority to decide the arbitrability of the claims related to the parties' arbitration agreement, this delegation applies only to claims that are at least arguably covered by the agreement"), abrogated by Henry Schein, 139 S. Ct. at 529. The other cases Bossé cites are inapposite because they do not involve nor discuss the applicability of a survival clause to an arbitration agreement. See Bogen Commc'ns, Inc. v. Tri- Signal Integration, Inc., 227 F. App'x 159, 160-62 (3d Cir. 2007); Vantage Techs. Knowledge Assessment, LLC v. Coll. Entrance Examination Bd., 591 F. Supp. 2d 768, 770-72 (E.D. Pa. 2008).

- 19 - agreement to determine whether the arbitrability of that dispute

was delegated to the arbitrator. He argues the question of the

scope of the delegation clause is distinct from but related to the

scope of the arbitration agreement. His attempted atomization of

the arbitrability question is prohibited by the Supreme Court's

reasoning in Henry Schein. The question of the scope of the

delegation clause cannot be separated from the question of the

scope of the arbitration agreement as a whole here. His argument

has it backwards.

The delegation clause uses the term "such Claim," which

is a defined term that refers to "any dispute, claim or controversy

arising between them." That term also establishes the scope of

the arbitration agreement as a whole. Because of the incorporation

of this defined term into the delegation clause, any decision as

to whether a dispute falls within the scope of the delegation

clause necessarily decides whether it falls within the scope of

the arbitration agreement. Bossé's reasoning is thus circular: it

requires the court to consider for itself whether a particular

claim falls within the scope of the arbitration agreement and

delegation clause in order to determine whether the dispute should

be submitted to the arbitrator to determine its arbitrability. At

that point, the arbitrability question has already been answered

by the court, and the delegation clause here is rendered

- 20 - meaningless.13 This is precisely the type of "short-circuit[ing]

[of] the process" which concerned the Supreme Court in Henry

Schein. 139 S. Ct. at 527. It is merely an application of the

"wholly groundless exception" under a different guise. See id. at

528-31.

Finally, Bossé contends, and the district court

determined, that Section 2 of the FAA requires that an arbitration

clause have some relationship or connection to the underlying

contract to be enforceable, which the clauses purportedly lacked

with respect to Bossé's claims here.14 We have found no Supreme

Court or circuit case law -- and Bossé has not directed us to any

13 Not only does this reasoning contravene the Supreme Court's holding in Henry Schein, but it also violates the principle of New York state contract law that a "contract should be construed so as to give full meaning and effect to all its provisions." PaineWebber Inc. v. Elahi, 87 F.3d 589, 600 (1st Cir. 1996) (quoting Am. Express Bank Ltd. v. Uniroyal, Inc., 562 N.Y.S.2d 613, 614 (N.Y. App. Div. 1990), leave to appeal denied, 572 N.E.2d 52 (N.Y. 1991)). 14 Section 2 of the FAA provides that

[a] written provision in . . . a 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.

- 21 - -- which supports his contention regarding the "arising out of"

language in Section 2 of the FAA.15

2. Even Were There Some Purported Ambiguity, the Presumption in Favor of Arbitrability Also Requires that This Dispute as to the Arbitrability of the Claims Be Referred to the Arbitrator to Decide

The FAA reflects a "liberal federal policy favoring

arbitration agreements," Oliveira v. New Prime, Inc., 857 F.3d 7,

12 (1st Cir. 2017) (quoting Moses H. Cone Mem'l Hosp. v. Mercury

Constr. Corp., 460 U.S. 1, 24 (1983)), in which there is a

presumption that "any doubts concerning the scope of arbitrable

issues should be resolved in favor of arbitration," Moses H. Cone

Mem'l Hosp., 460 U.S. at 24-25; see also Granite Rock, 561 U.S. at

15 This Court has dealt with cases involving arbitration agreements which explicitly include language requiring the claim or dispute to "arise out of" or "relate to" the underlying contract of which the arbitration agreement is a part. See, e.g., Biller, 961 F.3d at 506; Breda, 934 F.3d at 5; Grand Wireless, 748 F.3d at 4. But in those cases, the limitation on the sorts of arbitrable disputes covered by the arbitration agreement was the result of contract rather than Section 2 of the FAA. This Court has also discussed the effect of Section 2's language indirectly in dicta, but has not explicitly held that language imposes an independent requirement on the federal enforceability of arbitration agreements. See Local 205, United Elec., Radio & Mach. Workers of Am. (UE) v. Gen. Elec. Co., 233 F.2d 85, 98 (1st Cir. 1956) (suggesting, in dicta, that a collective bargaining agreement may fall outside the scope of Section 2 of the FAA if the arbitration clause in the collective bargaining agreement were not limited to controversies "arising out of such contract or transaction"), aff'd by 353 U.S. 547 (1957); see also Kristian v. Comcast Corp., 446 F.3d 25, 33 (1st Cir. 2006) (holding that, as a matter of contract interpretation, an arbitration clause applied retroactively to a dispute over services provided which did not arise out of the agreement, but not considering the separate FAA issue).

- 22 - 301-03; First Options, 514 U.S. at 944-45. The Supreme Court in

First Options made clear that where an agreement to arbitrate some

issues exists, and there is a dispute over the scope of the

arbitration agreement, the law requires that those matters be

presumed to be arbitrable "unless it is clear that the arbitration

clause has not included them." 514 U.S. at 945 (internal quotation

marks omitted) (quoting G. Wilner, 1 Domke on Commercial

Arbitration § 12.02, at 156 (rev. ed. Supp. 1993)).

Even if there were some ambiguity, under First Options

we apply the presumption in favor of arbitrability in determining

the scope of the delegation clause. Given the broad language of

the arbitration agreement and delegation clause, together with the

survival clause, there is enough of a textual hook to conclude

that Bossé certainly has not made it clear the delegation clause

here does not include this particular arbitrability dispute. See

First Options, 514 U.S. at 945. This dispute as to the

arbitrability of his claims should have been referred to the

arbitrator for this additional reason.16

16Even if there were ambiguity about whether the term "Partner" encompasses Bossé specifically, or merely refers generally to a person then in the position of "Partner," or whether the arbitration agreement is limited to claims arising out of Bossé and New York Life's employment relationship, those disputes also go to the arbitrator because they involve a question of the scope of the arbitration agreement.

- 23 - B. New York Life Did Not Forfeit Its Rights Under Either the Doctrine of Judicial Estoppel or Waiver

Bossé also asserts that New York Life forfeited its right

to arbitrate his claims as a result of both judicial estoppel and

waiver. The district court did not address these arguments. We

address them because they are quintessentially legal issues and no

further development of the record is needed to resolve them. See

United States v. Kin-Hong, 110 F.3d 103, 116 (1st Cir. 1997). We

find neither argument persuasive.

Bossé argues that New York Life should be judicially

estopped from and that it has waived any ability to compel

arbitration because it did not assert its right to arbitrate during

the proceedings before the New Hampshire Commission for Human

Rights. New York Life defended those proceedings by submitting a

copy of Bossé's Agent's Contract to support its argument that he

was not an employee at the time of the alleged misconduct and the

Commission lacked jurisdiction over his claims.

"[T]he doctrine of judicial estoppel prevents a litigant

from pressing a claim that is inconsistent with a position taken

by that litigant either in a prior legal proceeding or in an

earlier phase of the same legal proceeding." InterGen N.V. v.

Grina, 344 F.3d 134, 144 (1st Cir. 2003) (citing Pegram v.

Herdrich, 530 U.S. 211, 227 n.8 (2000)). It "is designed to ensure

that parties proceed in a fair and aboveboard manner, without

- 24 - making improper use of the court system." Id. (citing New

Hampshire v. Maine, 532 U.S. 742, 749-50 (2001)). There are two

elements to a claim of implied waiver of the right to arbitrate

through inaction: (1) "undue delay" and (2) "a modicum of prejudice

to the other side." Rankin v. Allstate Ins. Co., 336 F.3d 8, 12

(1st Cir. 2003); see also Marie, 402 F.3d at 15.

There is no inconsistency and no undue delay from New

York Life asserting the jurisdictional defense to the Commission,

rather than invoking the arbitration agreement. The Commission

was a third party not bound by the terms of the arbitration

agreement. See Marie, 402 F.3d at 15. There is no issue before

us as to whether the Commission had jurisdiction, and it certainly

was not unfair or improper for New York Life to assert this

jurisdictional defense.

III.

On remand, the district court must enter an order

compelling arbitration and issue a stay upon sending the matter to

the arbitrator pursuant to 9 U.S.C. §§ 3 and 4. See Marie, 402

F.3d at 17.

Reversed and remanded. No costs are awarded.

-Dissenting Opinion Follows-

- 25 - BARRON, Circuit Judge, dissenting. Under the terms of

the "Employment Agreement," "[t]he Partner and New York Life"

plainly agreed that "any dispute, claim or controversy arising

between them, including those alleging employment discrimination

(including sexual harassment and age and race discrimination) in

violation of a statute (hereinafter 'the Claim') . . . shall be

resolved by [] arbitration." Thus, they agreed that "the

Claim" -- defined as "any dispute, claim or controversy arising

between them" -- "shall be resolved by [] arbitration." (emphasis

added). But, what does "the Claim" encompass? Does it encompass

even a lawsuit that seeks recovery based on alleged actionable

misconduct by New York Life that first occurred only after the

Partner who signed the Employment Agreement was no longer a Partner

at all?

If the Employment Agreement said nothing more than what

I have just quoted from it, then it would be clear that the parties

had left the answer to that question about the meaning of "the

Claim" -- and, thus, about the scope of the arbitration agreement

that they had reached -- to a court to resolve. But, the majority

points out, the Employment Agreement also contains what is known

as a delegation clause, which operates as an ancillary agreement

to arbitrate certain specified matters concerning arbitrability.

See Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct.

524, 529 (2019). And, that delegation clause provides that "[t]he

- 26 - Partner and New York Life agree that . . . any dispute as to

whether such Claim is arbitrable[] shall be resolved by []

arbitration."

The majority holds that the inclusion of this delegation

clause in the Employment Agreement is dispositive of this appeal,

because that clause is best construed to delegate to an arbitrator

the question of the meaning of "Claim" in the arbitration agreement

itself and thus the question of whether that term covers the race

discrimination suit that Ketler Bossé brings. Thus, the majority

concludes that the District Court erred in construing the scope of

the arbitration agreement not to encompass Bossé's suit, because

the question of whether the arbitration agreement encompasses that

suit was for an arbitrator and not for the District Court to

decide.

I cannot agree with that conclusion. It derives from a

superficially plausible but, in my view, ultimately textually

untenable construction of the delegation clause. Nor can I agree

with New York Life's contention that, even if the parties to the

Employment Agreement did not agree to delegate the question

regarding the scope of the arbitration agreement to an arbitrator

to resolve, the District Court erred in resolving that question as

it did. I thus write separately to explain why I would affirm the

District Court's ruling.

- 27 - I.

There is no doubt that it would have been possible for

Bossé and New York Life to have drafted an employment contract

back in 2004 that would have contained both a delegation clause

and an arbitration agreement that would have, in combination,

sought to ensure that an arbitrator rather than a court would

decide whether any future lawsuit between them -- no matter how

far in the future the actionable conduct on which it would be based

would have first occurred -- was the type of lawsuit that they had

agreed to resolve through arbitration. But, the Employment

Agreement that they actually wrote does not contain a delegation

clause that assigns such a question of the scope of the arbitration

agreement to an arbitrator.

In concluding otherwise, the majority describes the

delegation clause as if it were one that "expressly

require[s] . . . any disputes about arbitrability [to] be referred

to the arbitrator to decide." Maj. Op. at 3. I do not dispute

that if this were what the delegation clause required, then the

question of the arbitration agreement's scope would have been

delegated to an arbitrator such that a court could not decide

it -- just as the majority holds. The words "any disputes about

arbitrability" in the majority's restated version of the

delegation clause plainly encompass disputes about the scope of

the arbitration agreement.

- 28 - But, the words that the delegation clause actually uses

are not the ones that the majority deploys in its shorthand account

of what that clause "expressly require[s]." And, that shorthand

account fails properly to account for the words "such Claim" that

figure so prominently in the delegation clause.

That is not to say that the majority makes no attempt to

account for those two words in explaining why its paraphrase of

the delegation clause is accurate. It explains that the paraphrase

is revealed to be accurate if one substitutes for the words "such

Claim" in the delegation clause the definition of "the Claim" that

the arbitration agreement sets forth: "any dispute, claim or

controversy arising between them." See id. at 16-17.

According to the majority, such a substitution produces

a delegation clause that provides that "any dispute as to whether

arbitrable, shall be resolved by [] arbitration." Id. at 16. For

that reason, the majority concludes, the plain text of the

delegation clause ensures that "any dispute" between the parties

to the Employment Agreement over the meaning of the scope of the

arbitration agreement is for an arbitrator and not a court to

decide. After all, the majority contends, a "dispute" over the

meaning of "the Claim" in the arbitration agreement is itself

obviously a "dispute" between the parties, such that the plain

- 29 - text of the delegation clause necessarily encompasses it once the

substitution described above is made. See id.

But, this purportedly plain text reading of the

delegation clause fails to grapple with the use in that clause of

the word "such," which modifies the key word "Claim." This failure

is of concern, because the word "such," as a matter of grammar,

ensures that the word in the delegation clause that it

modifies -- "Claim" -- can be no more encompassing than the word

"Claim" in the arbitration agreement to which the word "such"

refers. See, e.g., United States v. Bowen, 100 U.S. 508, 512

(1879) (finding that "the qualifying word such . . . restricted"

the referent to the "class" of individuals "described in the

sentence which immediately precede[d] it"); Littlefield v. Mashpee

Wampanoag Indian Tribe, 951 F.3d 30, 37 (1st Cir. 2020) (quoting

Webster's New International Dictionary, according to which the

word "such" means among other things "of the sort or degree

previously indicated or contextually implied," and concluding that

"[n]ormal usage in the English language would read the word 'such'

as referring to the entire antecedent phrase" (emphasis added));

United States v. Ahlers, 305 F.3d 54, 59-61 (1st Cir. 2002)

(finding that the use of the word "such" in 18 U.S.C. § 3553(e)

"plainly refers back to" the entire antecedent phrase and thus

"retains . . . a reference point" that is "specific[ and]

carefully circumscribed").

- 30 - Thus, the simple substitution that the majority makes,

in which it swaps out the words "such Claim" in the delegation

clause for the words that the arbitration agreement uses to define

"the Claim" in that clause, is more than a mere substitution. It

is an alteration -- subtle but crucial -- in the meaning of the

delegation clause.

The arbitration agreement in using the words "any

dispute, claim or controversy arising between them" to define "the

Claim" is necessarily referring only to the class of "dispute[s],

claim[s] or controvers[ies]" that the arbitration agreement itself

encompasses. And, that is a class of "disputes" -- to use a

shorthand for what it includes -- that obviously does not itself

encompass disputes about the arbitrability of those disputes.

Indeed, were that not the case, the delegation clause that is the

majority's focus would be superfluous. Thus, that class does not

itself encompass the particular dispute over arbitrability that is

at issue here, which concerns the scope of that very class, because

the arbitration agreement is not the place to look for an agreement

to arbitrate about arbitrability -- only the delegation clause is,

as the majority's own focus on that delegation clause to determine

whether it encompasses this dispute over arbitrability implicitly

acknowledges.

It is no objection to this more modest construction of

the delegation clause's scope, in my view, that it limits the range

- 31 - of disputes about arbitrability that the clause encompasses to

fewer than all possible disputes about arbitrability. A delegation

clause need not delegate every issue of arbitrability, as the

parties are free to decide between themselves which, if any, issues

of arbitrability they wish for an arbitrator to resolve.

Nor is this a case in which a limited reading of the

delegation clause renders that clause useless. Although the word

"such" plainly limits the reach of the delegation clause for the

reasons that I have explained, the clause still clearly and

unmistakably assigns to an arbitrator the resolution of disputes

over whether the class of "dispute[s], claim[s] or

controvers[ies]" that the arbitration agreement covers -- whatever

that class encompasses in terms of scope -- are "arbitrable." And,

those delegated questions of arbitrability are hardly trivial

ones. They concern such potentially dispositive questions

regarding the enforceability of the arbitration agreement as

whether it is valid in the face of defenses like unconscionability

or mutual mistake.

Thus, the supposedly plain text reading of the

delegation clause that undergirds the majority's holding is in my

view simply mistaken, because the text refutes it. Indeed, if, as

the majority concludes, the parties had intended the question of

the arbitration agreement's scope to be itself decided through

arbitration, then the delegation clause would have had to provide

- 32 - for a delegation along the lines of: "The Partner and New York

Life agree that any dispute as to whether such Claim is arbitrable

as well as any dispute as to what constitutes 'such Claim' shall

be resolved by arbitration." Or it could have used the more

economical phrasing that the majority's shorthand account of the

delegation clause uses. But, of course, the delegation clause was

not written in a manner that uses either formulation, and so does

not expressly require that a dispute over the scope of "Claim" in

the arbitration agreement be resolved by an arbitrator. Instead,

it expressly requires only that "any dispute as to whether such

Claim is arbitrable[] shall be resolved by [] arbitration."

The majority does suggest that the more limited

construction of the delegation clause that I conclude is required

renders the arbitral provisions of the Employment Agreement

hopelessly circular. See Maj. Op. at 20-21. But, I do not see

how that is so.

I quite agree that it is sensible to presume that the

parties who draft contracts do so more after the fashion of Bob

Ross than M.C. Escher. There is nothing circular, however, about

a delegation clause that requires a court to first determine the

scope of "the Claim" in the arbitration agreement before enforcing

the putative delegation clause. Contrary to the majority's

assertion, such a delegation clause simply reflects the fact that

the parties who drafted it intended that it would encompass only

- 33 - those disputes that concern the arbitrability of the class of

"dispute[s], claim[s] or controvers[ies]" that the arbitration

agreement itself encompasses and not disputes over what that class

encompasses.

The majority does also attempt to support its

construction of the delegation clause by pointing to the fact that

the Employment Agreement incorporates the American Arbitration

Association's ("AAA's") National Rules for the Resolution of

Employment Disputes ("NRRED"). It contends that this

incorporation "constitutes clear and unmistakable evidence of the

parties' intent to delegate arbitrability issues to the

arbitrator." Maj. Op. at 17-18. That is so, according to the

majority, because Rule 6(a) of the NRRED 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." See

id. at 17.

But, the Employment Agreement is clear that the AAA will

only administer the arbitration proceeding "[i]n the event that

the [Financial Industry Regulatory Authority ("FINRA")] refuses to

arbitrate the Claim," and New York Life does not assert that this

antecedent condition is met in this case. See id. at 6-7. Thus,

for our purposes, the Employment Agreement incorporates only the

FINRA rules and not the NRRED, and nothing in the FINRA rules

- 34 - purports to speak to the delegation question that we are facing.

See id. For that reason, the Employment Agreement's reference to

the NRRED does not indicate that a separate and broader delegation

provision that would encompass the scope question is operative for

our purposes. And, of course, the fact that the NRRED contemplate

that such a broader delegation provision would be operative if a

condition that has not been satisfied were satisfied cannot itself

expand the scope of the only delegation clause that otherwise is

in place.

The majority also invokes the Employment Agreement's

survival provision to support its construction of the delegation

clause. See id. at 18. But, here, too, I do not see how this

provision is of help, as that provision is just as consistent with

my construction of the delegation clause as it is with the

majority's.

The survival provision states that the arbitration

agreement and delegation clause "shall survive termination of

this . . . Employment Agreement by either party for any reason."

It thus ensures that the arbitration that the parties have agreed

to conduct -- whether with respect to the merits of a legal claim

or its arbitrability -- remains the required process for them to

use even after the Employment Agreement is terminated with respect

to those "dispute[s], claim[s] or controvers[ies]" that the

arbitral provisions encompass. But, the survival provision does

- 35 - not purport to address the scope of those arbitral provisions. It

simply ensures that any dispute within their scope is still subject

to arbitration after the Employment Agreement has terminated.

Thus, per the survival provision, the arbitration

agreement and delegation clause would bind Bossé in a lawsuit in

which he sought recovery for racial discrimination that he alleged

he suffered while he was still a Partner but that he brought only

after he had left New York Life's employ. And the same is true if

he sought to challenge the enforceability of the arbitration

agreement as to that suit on the ground of unconscionability. For,

there is no question that such an employment-related suit and such

a dispute about its arbitrability would fall within the scope of

both the arbitration agreement and the delegation clause, and the

survival provision ensures that both that agreement and that clause

remain fully operative even once the employment relationship that

occasioned the Employment Agreement that contains them has ended.

What the survival provision does not do is address whether a suit

by Bossé that did not arise out of the employment relationship

between him and New York Life -- because it was grounded in alleged

misconduct by New York Life that first occurred after he had left

New York Life's employ -- would be subject to the delegation

clause. Thus, it has no bearing on the issue of the scope of the

delegation clause in that regard.

- 36 - For all these reasons, then, I would construe the

delegation clause to mean just what it plainly says. And, thus,

I would read it to delegate only issues of arbitrability about

"such Claim" and not issues concerning what "Claim" means.

Accordingly, I conclude that the interpretive dispute before

us -- which regards the scope of the term "Claim" in the

arbitration agreement -- is an interpretive dispute that the

parties have left to a court and not an arbitrator to resolve.17

Turning, then, to that dispute: Is Bossé's claim that

he was discriminated against based on his race in his role as an

independent contractor for New York Life -- and thus only after he

was no longer employed by the company -- a "Claim" within the

meaning of the arbitration agreement? I do not think it is, even

presuming a broad construction of the arbitration agreement. See

Granite Rock Co. v. Int'l Brotherhood of Teamsters, 561 U.S. 287,

302 (2010).

Because I conclude that the delegation clause is plainly 17

narrower than the majority reads it to be, I do not address here whether the "clear and unmistakable" requirement that pertains to the interpretation of delegation clauses means that we must construe delegation clauses that clearly and unmistakably exist narrowly insofar as they are ambiguous as to their scope. Henry Schein, 139 S. Ct. at 530 (quoting First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944 (1995)). Nor do I understand New York Life to argue in support of such a position, despite the fact that it is the appellant, and so I would wait to address that interpretive question until we have the adversary briefing on it that we have not yet had.

- 37 - New York Life itself concedes that the parties to the

Employment Agreement could not reasonably be thought to have

contemplated that the arbitration agreement would encompass even

a lawsuit between them that involved an injury that Bossé suffered

as a result of being hit by a New York Life vehicle only decades

after he had stopped being a "Partner" or even a New York Life

employee. Such a suit would not merely be accruing late. It would

not arise from their employment relationship at all.

For that reason, there is force in my view to the

District Court's observation that we ought to be wary of reading

the arbitration agreement in the Employment Agreement to be so

disconnected from the employment relationship that brought it

about that it may be read to encompass literally "any . . . claim"

(emphasis added) -- as those terms appear in a dictionary -- and

thus even such a late-occurring traffic accident. See PaineWebber

Inc. v. Elahi, 87 F.3d 589, 600 (1st Cir. 1996) (construing

contractual terms in the context of the entire agreement). As the

District Court observed, and as New York Life apparently agrees,

"a reasonable person signing the [Employment] Agreement would

hardly think that a slip and fall injury suffered by [the]

plaintiff on New York Life property 30 years in the future, and 25

years after any work or other relationship terminated, would be

subject to arbitration under that particular [arbitration]

clause." Bossé v. N.Y. Life Ins. Co., No. 19-cv-016-SM, 2019 WL

- 38 - 5967204, at *4 (D.N.H. Nov. 13, 2019); see also Smith v. Steinkamp,

318 F.3d 775, 777-78 (7th Cir. 2003) (Posner, J.) (rejecting a

reading of an arbitration clause in a loan agreement that would

apply to other loan agreements to which the parties subsequently

agreed because such a reading contained no "limiting principle"

and would therefore lead to "absurd results," such as the

conclusion that the parties had agreed to arbitrate any future

claim stemming from the borrower's hypothetical murder at the hands

of the lender).

Of course, if the text of the arbitration agreement were

plainly all-encompassing and thus irreconcilable with the more

modest intention of the parties just described, then we would face

the unenviable task of squaring the two. But, fortunately, the

text of the Employment Agreement is comfortably read to spare us

that exercise, as it readily supports a construction of the scope

of the arbitration agreement that excludes disputes that even the

party arguing for the broadest construction concedes could not

have been intended.

Notably, and contrary to New York Life's assertion, the

Employment Agreement does not define "Claim" in the arbitration

agreement broadly to encompass "'any dispute, claim or controversy

arising between' Mr. Bossé and New York Life." (emphasis shifted).

It refers instead to only disputes, claims, and controversies that

"aris[e] between" "[t]he Partner and New York Life." (emphasis

- 39 - added). That is significant, in my view, because Bossé was not a

"Partner" when the alleged misconduct by New York Life that grounds

his lawsuit against that company is claimed to have first occurred.

Rather, Bossé contends that he was an independent contractor --

and so not an employee of New York Life at all -- at the time of

the actionable legal conduct by that company for which he seeks

recompense. In other words, his suit no more "aris[es]" out of an

employment relationship with New York Life than do the hypothetical

traffic accident and slip-and-fall suits that New York Life itself

acknowledges were beyond the contemplation of the contracting

parties precisely because they plainly do not arise out of that

relationship.

To be sure, Bossé is the "Partner" to whom the contract

means to refer. But, given that the contract is by its terms an

"Employment Agreement" between a "Partner" and his employer, and

given that the claim for liability at issue here does not concern

Bossé's status as either a "Partner" or even an employee of New

York Life any more than the hypothetical cases just mentioned do,

there is nothing strange in concluding that Bossé's claim for

liability arising solely out of that alleged post-employment

mistreatment by New York Life is not a "dispute, claim or

- 40 - controversy" that has "aris[en] between" "[t]he Partner and New

York Life." (emphases added).18

This more modest reading of the Employment Agreement's

scope also draws support from other aspects of the text. For

example, the arbitration agreement singles out as the sole type of

"Claim" expressly covered by it one that alleges "employment

discrimination (including sexual harassment and age and race

discrimination)." (emphasis added). It would be surprising for

the parties to have felt the need specifically to clarify that

this one species of legal claim for recovery constitutes a "Claim"

in the arbitration agreement if New York Life's expansive reading

of "Claim" in that agreement were correct. After all, if there

were indeed no question that the arbitration agreement encompasses

"any" legal claim for recovery no matter its connection to the

employment relationship between the contracting parties, then

there would be no need to clarify that the arbitration agreement

also encompasses employment-related claims for recovery that

18 Of course, the delegation clause also sets forth an agreement between the Partner and New York Life to arbitrate the arbitrability of "the Claim," and it surely contemplates that the arbitration of those disputes regarding arbitrability will arise at a time when the Partner is no longer employed by that company. But, precisely because those disputes will concern the arbitrability of "the Claim," they will also necessarily be tied to the employment relationship on the reading of "the Claim" that I embrace.

- 41 - concern discrimination, as such claims would hardly be at the edges

of what "the Claim" would cover.

By contrast, the specific reference to "employment

discrimination" claims in the arbitration agreement is much less

surprising if the contracting parties understood themselves to

have been agreeing to arbitrate only legal claims for recovery by

one against the other arising from their employment relationship.

On that understanding, it makes sense that they would have wished

to make clear that legal claims for recovery pertaining to

discrimination arising out of that employment relationship would

still be subject to arbitration, given that, unlike many types of

employment-related claims for recovery, those seeking recovery for

discrimination against a protected class are often statutorily

based and so might raise a question as to whether they, too, were

to be arbitrated like legal claims for recovery that are premised

only on the breach of the Employment Agreement itself.

Moreover, this more modest reading of "Claim" in the

arbitration agreement -- which construes that word to be limited

by the employment context that gave rise to the Employment

Agreement -- accords with the provision in the Employment Agreement

that provides that "[i]n the event that the [FINRA] refuses to

arbitrate the Claim, . . . the Claim . . . shall be resolved by an

arbitration proceeding administered by the [AAA] in accordance

with its National Rules for the Resolution of Employment Disputes."

- 42 - (emphasis added). At the time at which the parties entered into

the Employment Agreement, the NRRED characterized the "[t]ypes of

[d]isputes" they "[c]overed" by stating that "[t]he dispute

resolution procedures . . . can be inserted into an employee

personnel manual, an employment application of an individual

employment agreement, or can be used for a specific dispute." Am.

Arb. Ass'n, National Rules for the Resolution of Employment

Disputes 7 (2004), https://www.adr.org/sites/default/files/

National%20Rules%20for%20the%20Resolution%20of%20Employment%20Di

sputes%20Jan%2001%2C%202004.pdf (emphases added). And, the NRRED

further provided that "[t]hese rules have been developed for

employers and employees who wish to use a private alternative to

resolve their disputes." Id. at 3 (emphases added). In fact, at

the time at which the parties entered into the Employment

Agreement, the NRRED made no reference to independent contractors,

even though subsequent versions of those rules expanded their scope

to apply to independent contractor agreements. See Am. Arb. Ass'n,

Employment Arbitration Rules and Mediation Procedures 9 (2009),

https://www.adr.org/sites/default/files/EmploymentRules_Web2119.

pdf.

I do realize that New York Life puts much weight on the

Employment Agreement's inclusion of the survival provision in

pressing for its all-encompassing reading of the arbitration

agreement. But, just as the survival provision -- contrary to the

- 43 - majority's contention -- does not cut against the more limited

construction of the delegation clause that I embrace, it also does

not cut against the more limited reading of the arbitration

agreement's scope.

The survival provision ensures that arbitration remains

the required process for adjudicating "Claim[s]" that arise even

after the Employment Agreement is terminated. But, as I have

explained, claims arising out of the employment relationship

between Bossé and New York Life could accrue or be brought after

the termination of that relationship, for instance because they

might concern the termination itself, involve late-discovered

evidence, or simply have been brought post termination. Thus, the

inclusion of the survival provision tells us nothing about the

scope of "the Claim" in the arbitration agreement, as it concerns

only questions of timing regarding the class of suits that "the

Claim" encompasses. Thus, the survival provision continues to

perform a perfectly useful clarifying function even under the more

limited reading of the arbitration agreement's scope that the

District Court adopted.

I recognize as well that New York Life advances the

contention that, even if the hypothetical slip-and-fall and car-

accident suits noted above might lie outside the contemplation of

the parties to the Employment Agreement, the legal claim for

recovery at hand -- which concerns alleged mistreatment of Bossé

- 44 - in his role as an independent contractor for New York Life -- is

somehow different. New York Life suggests that such a claim is

more tethered to the employment relationship that gave birth to

the Employment Agreement, because employees often become

independent contractors for the company. And, on that basis, New

York Life contends that such a claim should be understood to fall

within the arbitration agreement's scope even if those other less

work-related claims should not.

But, I cannot see any way to read the arbitration

agreement to permit us to engage in such sorting among what, in

the end, are all non-employment-based legal claims for recovery.

For the reasons I have given, I can see a textual basis for

construing the arbitration agreement to exclude from its scope

suits that arise from conduct by New York Life toward Bossé that

only occurred after he was no longer a Partner of New York Life.

I can see no similar textual basis, however, for construing the

arbitration agreement such that it would cover some such suits,

including this one seeking recovery for race discrimination, and

not others, such as one stemming from the hypothesized late-

occurring slip-and-fall or traffic accident. The word "Claim" may

not be self-defining, but it is simply not capable of being read

to encompass the former suit but not the latter two without

importing into that word some hazy standard of relatedness that is

fine for parties to ask courts to apply but that is hardly one

- 45 - that a court should try to conjure for them post hoc. See Paterson-

Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 991-

92 (1st Cir. 1988) (calling on courts "no[t] . . . to rewrite

contracts freely entered into between sophisticated business

entities" (quoting RCI Ne. Servs. Div. v. Bos. Edison Co., 822

F.2d 199, 205 (1st Cir. 1987))).

Thus, given how unlikely it would be that -- as New York

Life readily concedes -- the parties to this employment contract

would have agreed to arbitrate any and all lawsuits between them

no matter what the parties' relationship was when the conduct

giving rise to the future lawsuit first occurred, I, like the

District Court, would construe the parties' handiwork in a manner

that would ensure that their arbitration agreement remains

tethered to the employment relationship that occasioned its

signing.19

19I note that Bossé also contends and the District Court held that Section 2 of the Federal Arbitration Act ("FAA") supports the conclusion that the Employment Agreement may not be construed to require arbitration of all legal claims for recovery between the parties, rather than of only employment-related ones. See Bossé, 2019 WL 5967204, at *5. That Section provides that the FAA applies to any "contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction." 9 U.S.C. § 2 (emphasis added). Bossé argues, and the District Court agreed, that his suit alleging race discrimination did not arise out of his Employment Agreement with New York Life because it arose instead out of their subsequent contractual relationship once Bossé had become an independent contractor for New York Life. See Bossé, 2019 WL 5967204, at *5.

- 46 - III.

The Supreme Court has made clear that the Federal

Arbitration Act reflects a policy in favor of arbitration. See,

e.g., Granite Rock, 561 U.S. at 302. But, courts have rightly

stayed true to the usual principles of contractual interpretation

even when construing arbitration agreements. See, e.g., Smith,

318 F.3d at 777-78; Bogen Commc'ns, Inc. v. Tri-Signal Integration,

Inc., 227 F. App'x 159, 160-62 (3d Cir. 2007). Following their

sensible approach in construing the arbitral provisions at hand,

I conclude that the District Court correctly interpreted the

Because Bossé's argument is limited to the interpretive import of Section 2 for construing the scope of the arbitration agreement, we have no occasion to decide whether a federal court could properly consider New York Life's motion to compel arbitration under the FAA if Bossé's suit alleging race discrimination failed to constitute a "controversy" as defined by Section 2. And, because I agree with the District Court's reading of the scope of the arbitration agreement for reasons unrelated to Bossé's argument about the influence that Section 2 might be thought properly to exert on our construction of the scope of that agreement, I see no reason to address Bossé's Section 2 argument here. I do note, though, that it is hard for me to see how the arbitration agreement -- as opposed to the delegation clause -- could be read to fall within Section 2 (at least with respect to the arbitration agreement's full scope) if it did encompass Bossé's suit, given that his suit concerns conduct by New York Life that only occurred when they were no longer in the employment relationship that occasioned the Employment Agreement that contains the agreement to arbitrate. And I note as well that, while the majority finds no Section 2 problem here, I understand its analysis of Section 2 to be limited to that provision's bearing on the proper construction of the delegation clause and so not to address the relationship between Section 2 and the arbitration agreement itself or any other issue relating to that provision.

- 47 - arbitration agreement in this case. Accordingly, I respectfully

dissent.

- 48 -