United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE.
before me is defendant Luxottica Retail North America's
motion to dismiss this case or in the alternative to stay
proceedings and compel arbitration. Plaintiff Kathleen
Olivastro brings this suit alleging age and sex
discrimination against Luxottica, her former employer.
Luxottica seeks to enforce the Dispute Resolution Agreement
that Olivastro and Luxottica entered into when she was their
employee. Olivastro initially opposed the motion based on the
argument that the agreement was not a valid contract under
Missouri law because it lacked consideration. Both sides
filed several supplemental briefs in light of
recently-decided Missouri cases, and the most recent briefs
focused on whether this issue had been delegated to the
arbitrator. I conclude that the dispute is covered by the
arbitration agreement and that the issue of consideration was
delegated to the arbitrator. I will therefore grant the
motion to compel arbitration.
2012, Luxottica hired Olivastro as regional manager; she was
employed in this role until her termination in June 2017. In
2015, Luxottica issued a revised Associate Guide, which
included the Dispute Resolution Agreement (DRA). ECF 10-1 at
pg. 2. On December 4, 2015, Olivastro agreed to the DRA via
the company's online web portal. Id. at 3. In
order to agree, she had to access the portal using her unique
login and password. Olivastro signed, via electronic
signature, the Luxottica Associate Guide Acknowledgement,
Absent the exercising of my right to opt-out of that Dispute
Resolution Agreement (by signing and returning the Opt-Out of
Dispute Resolution Agreement form within 30 days of receipt,
or selecting the opt-out checkbox if done electronically),
the Company and I agree to be bound by its terms.
Id. Further, after electronically signing the
Acknowledgment, Olivastro affirmatively chose to participate
in the DRA when she selected the “I wish to
participate” prompt. Id. at 4. She was also
notified that she could opt out by notifying the HR Solutions
Group within thirty days. There is no record of Olivastro
opting out of the DRA. Id.
states that the American Arbitration Association (AAA) rules
will govern arbitration proceedings. ECF 10-1 at 42. The DRA
sets forth the types of claims that the DRA covers, which
include claims related to termination, discrimination, or
harassment. Id. The DRA expressly states “the
Arbitration portion of the Dispute Resolution Agreement also
is intended to cover all legal disputes that the Company
could otherwise file in court against you.”
Id. Furthermore, the DRA states: “Any dispute
about the enforceability of the Dispute Resolution Agreement
shall be decided by a court.” Id. at 43. The
DRA also provides: “Failure to opt-out within the time
provided will demonstrate your intention, and the
Company's agreement, to be mutually bound by this
Agreement and specifically the arbitration provision
contained herein.” Id. at 44.
Federal Arbitration Act (FAA) established a strong policy
favoring arbitration and “any doubts concerning the
scope of arbitral issues should be resolved in favor of
arbitration.” Moses H. Cone Memorial Hosp. v.
Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983). The FAA
limits a district court's initial role in a challenge to
an arbitration agreement to deciding whether the
“making of the agreement for arbitration or the failure
to comply therewith is at issue.” Medcam, Inc. v.
MCMC, 414 F.3d 972, 974 (8th Cir. 2005) (quoting 9
U.S.C. § 4). Since “arbitration is a matter of
contract, ” state-law contract principles govern the
validity of an arbitration agreement; an arbitration
agreement maybe “invalidated by generally applicable
contract defenses.” Torres v. Simpatico, Inc.,
781 F.3d 963, 968 (8th Cir. 2015). “If a valid and
enforceable arbitration agreement exists under state-law
contract principles, any dispute that falls within the scope
of that agreement must be submitted to arbitration.”
Id. “Missouri law requires 1) an offer, 2)
acceptance, and 3) consideration to form a valid and
enforceable contract.” Shockley v.
PrimeLending, 929 F.3d 1012, 1017 (8th Cir. 2019).
expressly incorporates the AAA Employment Arbitration Rules.
ECF 10-1 at 42. The DRA states: “The American
Arbitration Association Employment Arbitration Rules
(“AAA Rules”) and this Dispute Resolution
Agreement will govern the proceedings.” Id.
The AAA Rules contain a delegation provision: “The
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.” Employment Arbitration Rules and Mediation
Procedures 6(a) (Am. Arb. Ass'n. 2009).
the FAA, parties can agree to arbitrate ‘gateway'
questions of arbitrability. Rent-A-Center West, Inc. v.
Jackson, 561 U.S. 63, 68 (2010). When the AAA Rules are
incorporated into the Agreement, “the parties agreed to
allow the arbitrator to determine threshold questions of
arbitrability.” Green v. SuperShuttle
International, Inc., 653 F.3d 766, 769 (8th Cir. 2011);
see also State ex rel. Pinkerton v. Fahnestock, 531
S.W.3d 36, 45 (Mo. banc 2017).
Missouri Supreme Court recently held that when plaintiffs
“contest the presence of consideration” they
raise issues of contract formation rather than
enforceability. State ex rel. Newberry v. Jackson,
575 S.W.3d 471, 475 (Mo. banc 2019). This case is directly
applicable because the plaintiffs in Newberry made
the same argument as Olivastro does here: that the agreements
lacked consideration. Id. at 472. Moreover, the
agreements in Newberry contained a similar
non-delegation clause exempting claims regarding the
enforceability of the agreement. Id. at 473.
Newberry held that an argument that a contract lacks
consideration is a challenge to the validity of an
arbitration agreement and was delegated to the arbitrator.
Id; see also Soars v. Easter Seals Midwest, 563
S.W.3d 111, 114-116 (Mo. banc 2018).
the DRA expressly incorporates the AAA Rules, thereby
allowing questions of validity to be decided by the
arbitrator. The “non-delegation” clause in the
DRA applies to issues of enforceability, not to issues of
validity. As consideration is a threshold issue going to
validity, it has been delegated to the arbitrator in this
therefore grant the defendant's motion to compel
arbitration. I will stay the case pending conclusion of the
arbitration, rather than dismiss ...