Fedor v. UnitedHealthcare, Inc.: Answering Brief Filed by UHC in Tenth Circuit Court of Appeals

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CASE NO. 19-2066 IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT DANA FEDOR, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v.

UNITEDHEALTHCARE, INC., and UNITED HEALTHCARE SERVICES, INC., Defendants-Appellees.

On Appeal from the United States District Court For the District of New Mexico Case No. 1:17-CV-13-MV-KBM

APPELLEES’ ANSWERING BRIEF

ORAL ARGUMENT IS REQUESTED Mark Ogden; AZ Bar No. 017018 mogden@littler.com Cory G. Walker; AZ Bar No. 027853 cgwalker@littler.com Littler Mendelson, P.C. 2425 East Camelback Road, Suite 900 Phoenix, AZ 85016 602.474.3600 Attorneys for Defendants-Appellees

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DISCLOSURE STATEMENT Under Federal Rules of Appellate Practice Rule 26.1, Defendant-Appellee UnitedHealthcare, Inc. states it is a wholly owned subsidiary of Defendant-Appellee United Healthcare Services, Inc. Defendant-Appellee United Healthcare Services, Inc. states it is a wholly owned subsidiary of UnitedHealth Group Incorporated.

UnitedHealth Group Incorporated is a publicly held corporation that has no parent corporation, and no publicly held entity owns 10% or more of its stock.

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TABLE OF CONTENTS PAGE DISCLOSURE STATEMENT ...................................................................................i TABLE OF AUTHORITIES ....................................................................................iv STATEMENT OF PRIOR OR RELATED APPEALS............................................. x GLOSSARY............................................................................................................... x I.

INTRODUCTION ........................................................................................... 1

II.

STATEMENT OF THE ISSUES .................................................................... 2

III.

STATEMENT OF THE CASE AND STATEMENT OF THE FACTS ........ 2 A.

Statement of the Case ............................................................................ 2

B.

Statement of the Facts ........................................................................... 7 1.

Each Plaintiff Accepted Employment on the Condition That He or She Arbitrate Any Employment-Related Claims. ... 7

2.

Additionally, Each Plaintiff Also Separately Agreed to and Acknowledged He or She Understood UnitedHealthcare’s Arbitration Policy........................................................................ 8

3.

The 2006, 2012, 2015, and 2016 Arbitration Policies Are Governed by the Federal Arbitration Act and Cover the Employment-Related Disputes at Issue Here. ............................ 9

4.

The Arbitration Policy Expressly Precludes Class Claims. ...... 13

5.

Plaintiff Brought this Statewide Class and Collective Action, Refusing UnitedHealthcare’s Demand to Arbitrate Her Claims on An Individual Basis. ......................................... 14

IV.

SUMMARY OF ARGUMENT ..................................................................... 14

V.

STANDARD OF REVIEW ........................................................................... 16

VI.

ARGUMENT ................................................................................................. 17 A.

This Court Should Disregard the Issues and Arguments That Were Never Raised in the District Court and Which Are Being Raised for the First Time on Appeal ................................................... 17 1.

Plaintiff Failed to Preserve These New Arguments for Appeal. ...................................................................................... 17

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TABLE OF CONTENTS PAGE 2.

B.

C.

D.

By Failing to Provide Any Standard of Review, Plaintiff Has Waived Any Right to Argue Plain Error Before this Court.......................................................................................... 21

The District Court’s Order Should Be Affirmed Because It Properly Compelled Plaintiff to Individually Arbitrate Her Claims Against UnitedHealthcare ....................................................... 24 1.

The District Court Properly Found that the Delegation Clause Was Clear and Unmistakable. ....................................... 24

2.

The District Court Properly Found that Plaintiff Failed to Directly Challenge the Delegation Clause.. .............................. 27

3.

The District Court Made the Necessary Findings to Support the Order Compelling Plaintiff’s Claims to Arbitration Under the 2016 Arbitration Policy ......................... 30

4.

No Law Binding on this Court Precludes the Arbitrator from Considering Formation. ........................................................... 32

In the Alternative, the District Court’s Order Should Be Affirmed on the Additional Ground that the Prior 2006, 2012, and 2015 Versions Require the Parties to Individually Arbitrate Their Claims ........................................................................................ 36 1.

The Determination of the Enforceability of the 2006, 2012, and 2015 Versions Is for the Arbitrator, Not the Court. ........... 37

2.

The 2006, 2012, and 2015 Versions Are Not Illusory Because They Are Supported by the Consideration of New Employment. .................................................................... 39

In the Alternative, the District Court’s Order Should Be Affirmed on the Additional Ground that Plaintiff and Opt-In Plaintiffs Separately Agreed to Arbitrate this Dispute as Memorialized by the Offer Letters .................................................................................. 44

VII. CONCLUSION.............................................................................................. 48 STATEMENT OF RELATED CASES ................................................................... 50 CERTIFICATE OF COMPLIANCE ....................................................................... 51 CERTIFICATE OF DIGITAL SUBMISSION ....................................................... 52 iii

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TABLE OF CONTENTS PAGE CERTIFICATE OF SERVICE ................................................................................ 53 ATTACHMENT 1 - DE 42 – 2019-03-18 – MEMORANDUM OPINION AND ORDER .............................................. 54 ATTACHMENT 2 - DE 43 – 2019-03-18 – JUDGMENT ..................................... 64

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TABLE OF AUTHORITIES Page(s) Cases A. Kershaw, P.C. v. Shannon L. Spangler, P.C., 703 F. App’x 635 (10th Cir. 2017) (unpublished).............................................. 22 Am. Exp. Co. v. Italian Colors Rest., 570 U.S. 228 (2013) ......................................................................................36, 48 AT&T Mobility LLC v. Concepcion, 563 U.S. 339 (2011) ......................................................................................36, 37 Ballard v. Chavez, 1994-NMSC-007, 868 P.2d 646 (N.M. 1994) .................................................... 20 Belnap v. Iasis Healthcare, 844 F.3d 1272 (10th Cir. 2017) ........................................................16, 26, 34, 35 BG Grp. PLC v. Republic of Arg., 134 S. Ct. 1198 (2014) ........................................................................................ 34 Boyd v. Springleaf Financial Services, Inc., No. 16cv0814, 2016 WL 5946912 (D.N.M. Sept. 9, 2016) (unpublished) ...................................................................................................... 41 Buckeye Check Cashing v. Cardenga, 546 U.S. 440 (2006) ......................................................................................33, 39 Cavlovic v. J.C. Penney Corp., 884 F.3d 1051 (10th Cir. 2018) .......................................................................... 16 Clark v. UnitedHealth Grp., Inc., No. CV 13-0372, 2018 WL 2932735 (D.N.M. June 12, 2018) ...................41, 42 Comm’n Workers of America v. Avaya, Inc., 693 F.3d 1295 (10th Cir. 2012) .......................................................................... 26 In re Cox Enters., Inc. Set-top Cable Television Box Antitrust Litig., 835 F.3d 1195 (10th Cir. 2016) ........................................................15, 33, 39, 40 v

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Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213 (1985) ............................................................................................ 37 Dean Witter Reynolds, Inc. v. Howsam, 261 F.3d 956 (10th Cir. 2001), rev’d on other grounds 537 U.S. 79 (2002) ............................................................................................................15, 26 Dish Network L.L.C. v. Ray, 900 F.3d 1240 (10th Cir. 2018) .......................................................................... 38 Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018) ................................................................................4, 5, 48 Evangelical Lutheran Good Samaritan Soc’y v. Moreno, 277 F. Supp. 3d 1191 (D.N.M. 2017) ...........................................................25, 28 Felts v. CLK Mgmt., Inc., No. 33,011, 2012 WL 12371462 (N.M. Aug. 23, 2012) (unpublished) ...................................................................................................... 28 Flemma v. Halliburton Energy Servs., Inc., 303 P.3d 814 (N.M. 2013) ............................................................................38, 39 Fundamental Admin. Servs., LLC v. Cohen, 709 F. App’x 516 (10th Cir. 2017) (unpublished).............................................. 33 Gidding v. Fitz, No. 17-CV-01334-RM-NYW, 2018 WL 480607 (D. Colo. Jan. 19, 2018), aff’d, 2018 WL 5815985 (10th Cir. Nov. 6, 2018) (unpublished) ...................................................................................................... 34 Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287 (2010) ............................................................................................ 33 Green Tree Fin. Corp.-Alabama v. Randolph, 531 U.S. 79 (2000) .............................................................................................. 46 Henry Schein, Inc. v. Archer & White Sales, Inc., --U.S.--, 139 S. Ct. 524 (2019) ........................................................................... 31 Hicks v. Gates Rubber Co., 928 F.2d 966 (10th Cir. 1991) ............................................................................ 17 vi

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Howsam v. Dean Witter Reynolds, 537 U.S. 79 (2002) .............................................................................................. 24 Jimenez v. Cintas Corporation, 475 S.W. 3d 679 (Mo. Ct. App. E.D. 2015) ....................................................... 42 Lamps Plus, Inc. v. Varela, -- U.S. --, 139 S. Ct. 1407 (2019) ....................................................................... 47 Laurich v. Red Lobster Restaurants, LLC, 295 F. Supp. 3d 1186 (D.N.M. 2017) ...........................................................15, 41 Luginbuhl v. City of Gallup, 302 P.3d 751 (N.M. Ct. App. 2013) .......................................................19, 21, 46 Mantooth v. Bavaria Inn Rest., No. 17-CV-1150-WJM-MEH, 2018 WL 2241130 (D. Colo. May 16, 2018) (unpublished) ...................................................................................... 28 Matthews v. Ultimate Sports Bar, LLC, 621 F. App’x 569 (11th Cir. 2015) (unpublished).............................................. 47 McKissick v. Yuen, 618 F.3d 1177 (10th Cir. 2010) ........................................................14, 16, 19, 23 Medina v. Sunstate Realty, 1995-NMSC-002, 119 N.M. 136, 889 P.2d 171 ....................................20, 43, 46 Morris v. Ernst & Young, LLP, 834 F. 3d 975 (9th Cir. 2016) ............................................................................... 4 Moses H. Cone Mem’l Hosp. v Mercury Constr. Corp., 460 U.S. 1 (1983) ................................................................................................ 37 Parker Excavating, Inc. v. Lafarge W, 863 F.3d 1213 (10th Cir. 2017) .......................................................................... 21 Parrish v. Valero Retail Holdings, Inc., 727 F. Supp. 2d 1266 (D.N.M. 2010) .....................................................40, 41, 46 Perez v. Qwest Corp., 883 F. Supp. 2d 1095 (D.N.M. 2012) ................................................................. 26 vii

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Piano v. Premier Distributing Co., 2005-NMCA-018, 137 N.M. 57, 107 P.3d 11 (N.M. Ct. App. Dec. 20, 2004) ............................................................................................................. 40 Presbyterian Healthcare Servs. v. Goldman, Sachs & Co., 122 F. Supp. 3d 1157 (D.N.M. 2015) ................................................................ 26 Prima Paint Corp. v. Flood and Conklin Mfg Co., 388 U.S. 395 (1967) ............................................................................................ 39 In re Refco, Inc. Sec. Litig., No. 07 CIV. 11604 (GEL), 2008 WL 2185676 (S.D.N.Y. May 21, 2008) ...................................................................................................................47 Rent–A–Ctr., West v. Jackson, 561 U.S. 63 (2010) .......................................................................................passim Richison v. Ernest Grp., 634 F.3d 1123 (10th Cir. 2011) ...................................................................passim Riley Mfg. Co., Inc. v. Anchor Glass Container Corp., 157 F.3d 775 (10th Cir. 1998) ............................................................................ 26 S.E.C. v. Chenery Corp., 318 U.S. 80 (1943) .............................................................................................. 36 Schrock v. Wyeth, 727 F.3d 1273 (10th Cir. 2013) .......................................................................... 18 South Alabama Pigs, LLC v. Farmer Feeders, Inc., 305 F. Supp. 2d 1252 (M.D. Ala. 2004) ............................................................. 47 Spahr v. Secco, 330 F.3d 1266 (10th Cir. 2003) ....................................................................29, 30 Stieber v. Journal Pub. Co., 1995-NMCA-068, 120 N.M. 270, 901 P.2d 201 (1995) ..............................44, 46 Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662 (2010) ............................................................................................ 48

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Talbott v. Roswell Hosp. Corp., 2005-NMCA-109, 138 N.M. 189, 118 P.3d 194 (N.M. Ct. App. June 22, 2005) .....................................................................................................39 United States v. Davis, 339 F.3d 1223 (10th Cir. 2003) .......................................................................... 36 United States v. Wright, 848 F.3d 1274 (10th Cir. 2017), cert. denied, 138 S. Ct. 115 (2017) ..........19, 22 Williamson v. Grano, No. 1:18-CV-00432-WJ-SCY, 2019 WL 211684 (D.N.M. Jan. 16, 2019) .............................................................................................................35, 38 Statutes Fair Labor Standards Act, 29 U.S.C. §§ 201-219 ..............................................11, 14 Federal Arbitration Act .............................................................................................. 9 Federal Arbitration Act, 9 U.S.C. § 2 ..........................................................27, 36, 37 Federal Arbitration Act, 9 U.S.C. §§ 3 and 4 .......................................................... 27 Other Authorities American Arbitration Association Rule 6 .........................................................35, 38 Fed. R. App. P. Rule 28 .....................................................................................21, 22 10TH Cir. R. 28.2(C)(2) ............................................................................................ 22 JAMS Rule 11(b) ..................................................................................................... 35

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STATEMENT OF PRIOR OR RELATED APPEALS There are no prior or related appeals.

GLOSSARY A.

Appellant Dana Fedor’s Appendix

UHC A.

Appellees UnitedHealthcare, Inc. and United Healthcare Services, Inc.’s Supplemental Appendix

Order

Memorandum Opinion and Order, DE 42, United States District Court, District of New Mexico, Case No. 17-cv-00013-MV-KBM, filed August 23, 2019

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INTRODUCTION Raising arguments never presented to the District Court and parsing out-of-

circuit law, Appellant-Plaintiff Dana Fedor 1 (“Plaintiff”) argues that the District Court’s Order granting Defendants’ Motion to Dismiss, Strike Class and Collective Action Claims, and Compel Arbitration should be reversed. In that Motion, UnitedHealthcare moved to enforce the 2016 Arbitration Policy, demonstrating that Plaintiff and each Opt-In Plaintiff had signed earlier versions of the Policy and then, in accordance with the terms of the earlier versions, accepted the 2016 Policy by continuing their employment after it went into effect. Now, for the first time, Plaintiff argues that the District Court erred by failing to make a preliminary finding of formation before enforcing the delegation clause in the 2016 Arbitration Policy and compelling the parties to arbitration. Not only is Plaintiff wrong on her underlying premise regarding contract formation, she has waived the ability to make such an argument here. In her briefing to the lower court, Plaintiff did not even

1

UnitedHealthcare has no record of a current or former employee named Dana Fedor. A. 16 (Defendants’ Motion to Dismiss, Strike Class and Collective Action Claims, and Compel Arbitration, DE 16, at 1 n.2); A. 39 (Sprau Decl., DE 16-1, at ¶ 5.) It did locate a former employee named Donna M. Fedor, whose job title, location, and work history are consistent with the allegations in the complaint. A. 39-40 (Sprau Decl., DE 16-1, at ¶¶ 5-8); see also A. 7, 9 (First Amended Complaint, DE 3, at ¶ 1-3, 16.) Thus, for purposes of the underlying Motion and this appeal, United Healthcare assumes that former employee Donna M. Fedor is the named Plaintiff in this action. See A. 16.

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mention the delegation clause, and she merely dismissed the 2016 Arbitration Policy as “irrelevant,” presenting no actual argument as to formation to the District Court, thereby failing to preserve any such arguments for appeal. In fact, Plaintiff raised no substantive arguments regarding the 2016 Arbitration Policy at all, resting instead on the assumption that UnitedHealthcare had failed to meet its burden to demonstrate that an agreement to arbitrate existed. Plaintiff, who has also made no showing regarding the standard of review that applies to her new arguments, cannot raise those arguments now having never raised them below, and the District Court’s Order should be affirmed.

II.

STATEMENT OF THE ISSUES (1) Whether Plaintiff waived the arguments she raises for the first time on

appeal, where Plaintiff failed to cite law or make any substantive legal arguments before the District Court regarding the 2016 Arbitration Policy.

(2) Whether the District Court correctly compelled Plaintiff to individually arbitrate her claims, when Plaintiff failed to challenge the delegation clause in the 2016 Arbitration Policy, and when Plaintiff and the other Opt-In Plaintiffs are undisputedly bound by the prior 2006, 2012, and 2015 versions of the Arbitration Policy, which are also enforceable.

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III.

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STATEMENT OF THE CASE AND STATEMENT OF THE FACTS A.

Statement of the Case

On May 6, 2017, UnitedHealthcare moved to compel Plaintiff and Opt-In Plaintiffs to individual arbitration under the 2016 Arbitration Policy. A. 16 (Motion to Dismiss, DE 16). When Plaintiff and Opt-In Plaintiffs were hired, they were sent offer letters explaining that, as a condition of employment, they were each required to arbitrate any employment-related claim they might have with UnitedHealthcare.

A. 38-44 (Sprau Decl., DE 16-1, ¶¶ 6, 9,12, 15, 18, 21, 24, 27, 30, Exs. A, C, E, G, I, K, M, O, Q), 48-56 (Ex. A (Fedor offer letter and mailed 2012 Policy)), 67-91 (Ex. C Davis offer letter and mailed 2006 Policy), 92-112 (Ex. E (Davison offer letter and mailed 2012 Policy)), 113-129 (Ex. G (Whitesell offer letter and mailed 2012 Policy), 130-50 (Ex. I (Hays offer letter and mailed 2015 Policy)), 151-169 (Ex. K (Rice offer letter and mailed 2015 Policy)), 170-91 (Ex. M (Beauchamp offer letter and mailed 2011 Policy), 192-212 (Ex. M (Snyder offer letter and mailed 2012 Policy)), 213 -21 (Ex. Q (Salopek offer letter and mailed 2012 Policy)). With the offer letters they were also sent a copy of the Arbitration Policy in effect when they each were hired. Id. In addition, each Plaintiff signed either the 2006, 2012, or 2015 version of the Arbitration Policy; no Plaintiff signed the 2016 Arbitration Policy. A. 38-44 (Sprau Decl., DE 16-1, at ¶¶ 7, 10, 13, 16, 19, 22, 25, 28, 31), 57-63 (Ex. B (Fedor signed 2006 Policy)), 83-88 (Ex. D (Davis signed 2006 Policy)), 102-09 (Ex. 3

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F (Davison signed 2006 Policy)), 122-26 (Ex. H (Whitesell signed 2012 Policy)), 141-47 (Ex. J (Hays signed 2015 Policy)), 161- 67 (Ex. L (Rice signed 2015 Policy), 181 – 88 (Ex. N (Beauchamp signed 2006 Policy)), 201- 08 (Ex. P (Snyder signed 2006 Policy)), 222 – 29 (Ex. R (Salopek signed 2006 Policy)). Each version of the Arbitration Policy was materially the same as the others regarding their relevant terms, except that the 2006, 2012, and 2015 versions had a provision allowing UnitedHealthcare to amend or terminate the Policy. Id. at § D. The 2016 Arbitration Policy deleted this provision and included an express clause delegating to the arbitrator the exclusive authority to hear any disputes about the Policy, including those related to the Policy’s arbitrability or formation. A. 43, 232 (Sprau Decl., DE 16-1, at ¶ 33, Ex. S (2016 Arbitration Policy) at § B).

Plaintiff’s sole ground in opposition to UnitedHealthcare’s Motion was that the 2016 Arbitration Policy was unenforceable under Morris v. Ernst & Young, LLP, 834 F. 3d 975 (9th Cir. 2016) (reversed by Epic Systems v. Lewis, --U.S.--, 138 S. Ct. 1612, 1632 (2018)). See UHC A. 008. 2 (Plaintiff’s Response and NonOpposition to Stay, DE 22, at 2 (“Rather than rehash and restate the arguments and authorities supporting Plaintiff’s view in opposition to Defendants’ Motion, Plaintiff refers the Court to the arguments and authorities in Morris, Lewis, and Alternative

2

UnitedHealthcare refers to Appellees’ Supplemental Appendix, which was filed simultaneously with this Answering Brief, as “UHC A.” 4

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Entertainment and incorporates them by reference here as if fully set forth.”).) The District Court stayed its ruling pending the United States Supreme Court’s consideration of the enforceability of class and collective action waivers. DE 28. On May 21, 2018, the United States Supreme Court ruled that class and collective waivers like the one at issue here are enforceable. See Epic Sys., 138 S. Ct. at 1632.

After a fifteen-month stay pending the Supreme Court’s ruling in Epic Systems, on August 7, 2018, Plaintiff filed a Notice of Request for Clarification, seeking leave to reopen the briefing. UHC A. 011-15 (Plaintiff’s Notice of Request for Clarification, DE 30). Though Plaintiff had previously raised only the class action waiver in opposition to enforcement, Plaintiff represented to the District Court she wished to raise new arguments that the right to amend or terminate in the earlier versions of the Arbitration Policy were unenforceable. Id. at 012-13 (DE 30 at 2-3).

In that Request, Plaintiff did not mention the 2016 Arbitration Policy, which does not contain that language. See id.

After the Court granted Plaintiff permission, Plaintiff filed a Supplemental Response to Defendants’ Motion to Dismiss on September 8, 2018. A. 238-54 (Plaintiff’s Supplemental Response to Defendants’ Motion to Dismiss, DE 33); see also DE 32 (Order setting briefing schedule). All of Plaintiff’s legal argument and analysis was directed at the signed 2006, 2012, and 2015 versions of the Arbitration Policy, which Plaintiff argued were illusory and therefore unsupported by 5

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consideration. A. 245-54. (Plaintiff’s Supplemental Response to Defendants’ Motion to Dismiss, DE 33, at 9-18). Plaintiff dismissed the 2016 Arbitration Policy as “irrelevant,” and noted there was “no evidence” that Plaintiff “signed, acknowledged, glanced, or even knew about the 2016 version of the agreement.” A. 239, 241, 243-45 (DE 33, at 3, 5, 7-9). Plaintiff did not cite to any law in connection with her conclusions that the 2016 Arbitration Policy was irrelevant or that UnitedHealthcare’s evidence was insufficient, or otherwise substantively address the 2016 Policy at all. See A. 239-54 (DE 33).

In UnitedHealthcare’s Reply to Plaintiff’s Supplemental Response, UnitedHealthcare disputed that the 2006, 2012, and 2015 versions of the Policy were unenforceable, and reiterated that it was moving to compel under the 2016 Arbitration Policy. A. 255-65 (Defendants’ Reply to Plaintiff’s Supplemental Response, DE 40). Given Plaintiff’s shift in strategy, UnitedHealthcare asked the District Court to enforce the delegation clause and compel Plaintiff to arbitrate any dispute regarding the enforceability of the 2016 Arbitration Policy. Id. at 258-59 (DE 40, at 4-5). UnitedHealthcare also reiterated that it had established that the 2016 Arbitration was an enforceable contract under New Mexico law. Id. at 259-63 (DE 40, at 5-9).

On March 18, 2019, the District Court issued an Order compelling Plaintiff to individually arbitrate her claims. A. 266-74. (Order, DE 42.) The District Court 6

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found that the 2006, 2012, and 2015 versions of the Arbitration Policy were illusory.

A. 269-72 (DE 42, at 4-7). It also acknowledged Plaintiff’s statement that there was no evidence she had signed or seen the 2016 Arbitration Policy, but it cited UnitedHealthcare’s arguments establishing that the agreement stood as a contract between the parties, and correctly concluded that a determination of whether the 2016 Arbitration Policy was “applicable or enforceable” as to Plaintiff and Opt-In Plaintiffs was for the arbitrator to determine. Id. The District Court compelled the parties to arbitration and dismissed the case. Id. B.

Statement of the Facts 1.

Each Plaintiff Accepted Employment on the Condition That He or She Arbitrate Any Employment-Related Claims.

In the offer letter to Plaintiff and each Opt-In Plaintiff, UnitedHealthcare included a copy of its Arbitration Policy, and specifically highlighted the nature and effect of the Arbitration Policy. A. 38-44 (Sprau Decl., DE 16-1, at ¶¶ 6, 9,12, 15, 18, 21, 24, 27, 30), 46-55 (Ex. A (Fedor offer letter and 2012 Policy)), 65-81 (Ex. C (Davis offer letter and 2006 Policy)), 90-100 (Ex. E (Davison offer letter and 2012 Policy)), 111- 20 (Ex. G (Whitesell offer letter and 2012 Policy)), 128-39 (Ex. I (Hays offer letter and 2015 Policy)), 149-59 (Ex. K (Rice offer letter and 2015 Policy)), 169- 79 (Ex. M (Beauchamp offer letter and 2011 Policy)), 190 – 99 (Ex. O (Snyder offer letter and 2012 Policy)), 210 – 20 (Ex. Q (Salopek offer letter and 2012 Policy)). Under the clear heading “What UnitedHealth Group Needs From 7

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You” and the subheading “Conditions of Your Employment with UnitedHealth Group,” each offer letter provided: Included with this letter is UnitedHealth Group’s Employment Arbitration Policy. This Policy is a binding contract between you and UnitedHealth Group to resolve through arbitration all employment-related disputes that are based on a legal claim, and mutually waive the right to a trial before a judge or jury in court in favor of final and binding arbitration. Your agreement to be bound by the terms of the Policy is a condition of your employment.

Once you are on board, you will be required to electronically acknowledge in Employee Self Service your understanding of the Policy.

Id. (emphasis added). Each offer letter also included a copy of the most current Arbitration Policy. Id. Each Plaintiff accepted the offer of employment and began to work for UnitedHealthcare under the express condition he or she arbitrate any employment-related disputes. See id.

2.

Additionally, Each Plaintiff Also Separately Agreed to and Acknowledged He or She Understood UnitedHealthcare’s Arbitration Policy.

Each Plaintiff also agreed to, and executed, a materially similar arbitration agreement, the specific version of which depended on the version in effect when he or she was hired. A. 38-44 (Sprau Decl., DE 16-1, at ¶¶ 7, 10, 13, 16, 19, 22, 25, 28, 31), 57-63 (Ex. B (Fedor signed 2006 Policy)), 83-88 (Ex. D (Davis signed 2006 Policy)), 102-09 (Ex. F (Davison signed 2006 Policy)), 122- 26 (Ex. H (Whitesell signed 2012 Policy)), 141-147 (Ex. J (Hays signed 2015 Policy)), 161- 67 (Ex. L 8

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(Rice signed 2015 Policy), 181 – 88 (Ex. N (Beauchamp signed 2006 Policy)), 20108 (Ex. P (Snyder signed 2006 Policy)), 222 – 29 (Ex. R (Salopek signed 2006 Policy)).

3.

The 2006, 2012, 2015, and 2016 Arbitration Policies Are Governed by the Federal Arbitration Act and Cover the Employment-Related Disputes at Issue Here.

UnitedHealthcare periodically revises its Arbitration Policy. A. 44 (Sprau Decl., DE 16-1, at ¶ 33). Plaintiff and Opt-In Plaintiffs Davis, Davison, Beauchamp, Snyder, and Salopek signed the 2006 version of the arbitration policy, Opt-In Plaintiff Whitesell signed the 2012 version, and Opt-In Plaintiffs Hays and Rice signed the 2015 version. A. 38-44 (Sprau Decl., DE 16-1, at ¶¶ 7, 10, 13, 16, 19, 22, 25, 28, 31), 57-63 (Ex. B (Fedor signed 2006 Policy)), 83-88 (Ex. D (Davis signed 2006 Policy)), 102-09 (Ex. F (Davison signed 2006 Policy)), 122- 26 (Ex. H (Whitesell signed 2012 Policy)), 141-47 (Ex. J (Hays signed 2015 Policy)), 161- 67 (Ex. L (Rice signed 2015 Policy), 181 – 188 (Ex. N (Beauchamp signed 2006 Policy)), 201- 08 (Ex. P (Snyder signed 2006 Policy)), 222 – 29 (Ex. R (Salopek signed 2006 Policy)).

Each signed version made clear that UnitedHealthcare would periodically update its Arbitration Policy, and notice of the revised version would be distributed via the company’s internal intranet. A. 38-44 (Sprau Decl., DE 16-1, at ¶¶ 7, 10, 13, 16, 19, 22, 25, 28, 31, Exs. B, D, F, H, J, L, N, P, R at § D), A. 63 (Fedor), 88 (Davis), 9

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108 (Davison), 125-26 (Whitesell), 146 (Hays), 16 (Rice), 187 (Beauchamp), 207 (Snyder), 228 (Salopek). Each version provided that it superseded any prior version.

Id. at § E; see also A. 44 at ¶ 33, Ex. S (2016 Arbitration Policy) at § E. On January 1, 2016, UnitedHealthcare issued the current Arbitration Policy, which is substantially similar to the previous versions (“2016 Arbitration Policy”). See id.

(Sprau Decl., DE 16-1, at ¶ 33, Ex. S.) The 2016 Arbitration Policy and each of the previous versions also makes clear that new or continued employment would be deemed to be acceptance of the Policy: This Policy is a contract between UnitedHealth Group and its employee. Acceptance of employment or continuation of employment with UnitedHealth Group is deemed to be acceptance of this Policy.

Id. (Ex. S at § A (emphasis in original); see also A. 38-44 (Sprau Decl., DE 16-1, at ¶¶ 7, 10, 13, 16, 19, 22, 25, 28, 31), A. 57-63, 83-88, 102-109, 122- 126, 141-147, 161- 167, 181 – 188, 201- 208 , 222 – 229 (signed policies) at § A. Each Plaintiff continued working after January 1, 2016. A. 38-44 (Sprau Decl., DE 16-1, at ¶¶ 8, 11, 14, 17, 20, 23, 26, 29, 32.)

The scope of arbitrable claims is similarly broad under the 2016 Arbitration Policy and each prior version: This Policy creates a contract between UnitedHealth Group and employees requiring both parties to resolve most employment-related disputes (excluded disputes are listed below) that are based on a legal claim through final and 10

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binding arbitration. Arbitration is the exclusive forum for the resolution of such disputes, and the parties mutually waive their right to a trial before a judge or jury in federal or state court in favor of arbitration under the Policy.

UnitedHealth Group and employee mutually consent to the resolution by arbitration of all claims and controversies, past, present, or future, that employee may have against UnitedHealth Group or UnitedHealth Group may have against employee, which arise out of or relate to employee’s employment, application for employment, and/or termination of employment. ... . . . [T]he claims covered by the Policy include, but are not limited to: . . . claims for wages or other compensation due (including but not limited to, minimum wage, overtime, meal and rest breaks, waiting time penalties, vacation pay and pay on separation); . . .and claims for violation of any federal, state . . . law [or] statute.

A. 231 (2016 Arbitration Policy at § B) (emphasis in original); see also A. 38-44 (Sprau Decl., DE 16-1, at ¶¶ 7, 10, 13, 16, 19, 22, 25, 28, 31, Exs. B, D, F, H, J, L, N, P, R, S), A. 57-63, 83-88, 102-109, 122- 126, 141-147, 161- 167, 181 – 188, 201208 , 222 – 229 (signed policies) at § B (providing that they covered “most employment-related disputes,” including “a claim under any federal, state, or local statute . . . or common law doctrine regarding or relating to . . . terms and conditions of employment . . ., including but not limited to . . . the Fair Labor Standards Act”).)

In addition, the 2016 Arbitration Policy and the prior versions provide that the agreement is governed by the Employment Dispute Resolution Rules of the American Arbitration Association (“AAA Rules”). A. 233 (2016 Arbitration Policy) at § D; see also id. at A. 38-44 (Sprau Decl., DE 16-1, at ¶¶ 7, 10, 13, 16, 19, 22, 25,

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28, 31), A. 57-63, 83-88, 102-109, 122- 126, 141-147, 161- 167, 181 – 188, 201208 , 222 – 229 (signed policies) at § C. The 2016 Arbitration Policy also expressly states that except for the enforceability of the Class and Collective Action Waiver, questions regarding formation or enforceability must be decided by the arbitrator and not the Court: “Covered claims include any disputes regarding the Policy or any portion of the Policy or its interpretation, enforceability, applicability, unconscionability, arbitrability or formation, or whether the Policy or any portion of the Policy is void or voidable, with the exception noted in the Class and Representative Actions Waivers section below.” A. 43 (Sprau Decl., DE 16-1, at ¶ 33), 232 (2016 Arbitration Policy) at § B (emphasis added).

The only other material difference between the 2016 Arbitration Policy and the prior versions is the prior 2006, 2012, and 2015 versions have a provision stating that “UnitedHealth Group reserves the right to amend, modify, or terminate the Policy effective on January 1 of any year” after providing at least 30-days of notice of its intent to do so on the UnitedHealth Group internal website. A. 38-44 (Sprau Decl., DE 16-1, at ¶¶ 7, 10, 13, 16, 19, 22, 25, 28, 31), A. 57-63, 83-88, 102-109, 122- 126, 141-147, 161- 167, 181 – 188, 201- 208 , 222 – 229 (signed policies) at § D. This provision was omitted from the 2016 Arbitration Policy. See A. 231-36 (2016 Arbitration Policy).

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The Arbitration Policy Expressly Precludes Class Claims.

The 2016 Arbitration Policy and all of the prior versions expressly preclude class and collective actions: C. CLASS AND REPRESENTATIVE ACTION WAIVERS There will be no right or authority for any dispute to be brought, heard or arbitrated as a class or collective action, or in a representative capacity on behalf of any other person. Nor shall the Arbitrator have any authority to hear or arbitrate any such dispute. Accordingly, 1. There will be no right or authority for any dispute to be brought, heard or arbitrated as a class or collective action (“Class Action Waiver”). The Class Action Waiver shall not be severable from this Policy in any case in which (1) the dispute is filed as a class or collective action and (2) a civil court of competent jurisdiction finds the Class Action Waiver is invalid, unenforceable, unconscionable, void or voidable. In such instances, the class action must be litigated in a civil court of competent jurisdiction . . . . ...

Regardless of anything else in this Policy and/or any rules or procedures that might otherwise be applicable by virtue of this Policy or by virtue of any arbitration organization rules or procedures that now apply or any amendments and/or modifications to those rules, the interpretation, enforceability, applicability, unconscionability or formation of the class Action Wavier . . . may be determined only by a court and not by an arbitrator.

A. 38-44 (Sprau Decl., DE 16-1, ), 232-33 (2016 Arbitration Policy) at § C; see A. 57-63, 83-88, 102-109, 122- 126, 141-147, 161- 167, 181 – 188, 201- 208 , 222 – 229 (signed policies) at § C. 13

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Plaintiff Brought this Statewide Class and Collective Action, Refusing UnitedHealthcare’s Demand to Arbitrate Her Claims on An Individual Basis.

Despite agreeing to arbitrate any disputes related to her employment on an individual basis, on January 7, 2017, Plaintiff filed an original complaint against Defendant UnitedHealthcare, Inc., asserting class and collective claims on behalf of herself and those similarly situated, including: (1) Violations of the Fair Labor Standards Act (“FLSA”) and (2) Violations of the New Mexico Wage Law. See DE 1. At the same time, Plaintiff filed her Consent to join the action as a party plaintiff.

See DE. 1-1. On March 28, 2017, Plaintiff filed a First-Amended Complaint, asserting the same claims from her original Complaint, but adding UnitedHealthcare Services, Inc. as an additional Defendant. See A. 6 (First-Amended Complaint, DE 3.) Then Plaintiff filed “Opt-in Consents” for eight putative opt-in plaintiffs seeking to join the action. DE 9, 10, 13, 14, 15.

IV.

SUMMARY OF ARGUMENT (1) This Court should disregard Plaintiff’s arguments that were never raised

in the District Court and that are being raised for the first time on appeal, including the argument that the issue of contract formation cannot be delegated to the arbitrator and the substantive arguments that no agreement was formed under the 2016 Arbitration Policy. McKissick v. Yuen, 618 F.3d 1177, 1189 (10th Cir. 2010).

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argument that UnitedHealthcare did not meet its burden to demonstrate the existence of the 2016 Arbitration Policy. Because Plaintiff failed to preserve these arguments below and because she makes no showing that her arguments can survive plain error review, they are waived. Richison v. Ernest Grp., 634 F.3d 1123, 1130 (10th Cir. 2011) (2) This Court should affirm the District Court’s Order compelling Plaintiff to individually arbitrate her claims under the 2016 Arbitration Policy. After Plaintiff failed to challenge the delegation provision in the lower court, the District Court found that the delegation clause in the 2016 Arbitration Policy was clear and unmistakable. Rent–A–Ctr., West v. Jackson, 561 U.S. 63, 71-72 (2010). Therefore, under the delegation clause, the District Court compelled the parties to individual arbitration so the arbitrator could determine the “applicability and enforceability” of the 2016 Arbitration Policy to Plaintiffs. See Dean Witter Reynolds, Inc. v. Howsam, 261 F.3d 956, 968 (10th Cir. 2001), rev’d on other grounds 537 U.S. 79 (2002).

The Court should affirm the District Court’s Order compelling the parties to arbitration for the additional reason that the 2006, 2012, and 2015 versions of the Arbitration Policy were supported by the consideration of the Plaintiff’s and Opt-In Plaintiffs’ new employment, and therefore, they too are enforceable. See In re Cox Enters., Inc. Set-top Cable Television Box Antitrust Litig., 835 F.3d 1195, 1212 (10th Cir. 2016); Laurich v. Red Lobster Restaurants, LLC, 295 F. Supp. 3d 1186 (D.N.M. 15

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2017).

V.

STANDARD OF REVIEW An order granting a motion to compel arbitration is reviewed de novo, (Belnap

v. Iasis Healthcare, 844 F.3d 1272, 1279 (10th Cir. 2017)), and any findings of fact underlying the order are to be accepted unless they are clearly erroneous. See Cavlovic v. J.C. Penney Corp., 884 F.3d 1051, 1056 (10th Cir. 2018). Arguments not raised before the District Court are waived for appeal. McKissick v. Yuen, 618 F.3d 1177, 1189 (10th Cir. 2010). Arguments forfeited before the District Court are affirmed unless there is plain error. Id. While a district court’s order may only be reversed based on arguments raised below, it may be affirmed on any grounds supported by the record. Richison v. Ernest Grp., 634 F.3d 1123, 1130 (10th Cir. 2011) (noting an appellant’s “heavy burden” because “they must come ready both to show the district court’s error and, when necessary, to explain why no other grounds can support affirmance of the district court’s decision. And this burden is rightfully all the higher when the argument for reversal wasn't even presented to the lower court.”).

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ARGUMENT A.

This Court Should Disregard the Issues and Arguments That Were Never Raised in the District Court and Which Are Being Raised for the First Time on Appeal 1.

Plaintiff Failed to Preserve These New Arguments for Appeal.

It is a widely accepted and general rule that an appellate court will not consider an issue raised for the first time on appeal. Hicks v. Gates Rubber Co., 928 F.2d 966 970-71 (10th Cir. 1991). Plaintiff argues that the District Court erred by failing to make a preliminary finding of formation regarding the 2016 Arbitration Policy before enforcing the delegation clause. But notably, Plaintiff failed to (1) substantively raise the issue of formation before the District Court, or (2) challenge the delegation clause at all. In fact, in three pleadings filed after UnitedHealthcare’s motion to dismiss, except for the enforceability of the class action waiver in Plaintiff’s initial opposition, Plaintiff mounted no defense to 2016 Arbitration Policy. See UHC A. 008-009 (Plaintiff’s Response and Nonopposition to Stay, DE 22, at 2-3).

Plaintiff’s next pleading, the Request for Clarification, did not mention the 2016 Arbitration Policy; it requested permission to file a supplemental brief to argue that the prior signed versions of the Policy were unenforceable. UHC A. 012-014 (Plaintiff’s Request for Clarification, DE 30, at 2-4). And in Plaintiff’s Supplemental Response filed in opposition to the motion to dismiss, all of Plaintiff’s legal 17

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arguments and analysis focused on the “actually signed” 2006, 2012, and 2015 versions, which Plaintiff argued were illusory, and therefore, unsupported by consideration. A. 245-54 (Plaintiff’s Supplemental Response to Motion to Dismiss, DE 33, at 9-18). In the “Introduction” and “Background” sections of the Supplemental Response, Plaintiff acknowledged that the 2016 Arbitration Policy was enforceable, but she dismissed it as “irrelevant.” Id. at 239-41, 243-44. Plaintiff noted there was “no evidence” that Plaintiff “signed, acknowledged, glanced, or even knew about the 2016 version of the agreement.” A. 239, 241, 243-45. But Plaintiff did not cite to any law in connection with her conclusion that the 2016 Arbitration Policy was irrelevant, or otherwise substantively address it. See A. 23954. In fact, Plaintiff did not even mention the 2016 Arbitration Policy in the “Arguments & Authorities” section.3 A. 245-54.

This is insufficient to preserve Plaintiff’s substantive arguments regarding formation or the enforceability of the delegation clause for appeal. See Schrock v.

Wyeth,, 727 F.3d 1273, 1284 (10th Cir. 2013) (finding a failure to preserve argument for appeal when a “litigant changes to a new theory on appeal that falls under the same general category as an argument presented at trial or presents a theory that was

3

Plaintiff refers to the “2016 Agreement” in the argument section, but this is apparently a typographical error, as it is clear from the text of the paragraph that she is referring to the 2015 Arbitration Policy. A. 252 (referring to language that is in the 2015 Arbitration Policy but not the 2016 Arbitration Policy).

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discussed in a vague and ambiguous way”) (quoting Bancamerica Comm. Corp. v.

Mosher Steel of Kan., 100 F.3d 792, 798–99 (10th Cir.1996)); see also United States v. Wright, 848 F.3d 1274, 1281 (10th Cir. 2017), cert. denied, 138 S. Ct. 115 (2017) (“Even though Wright objected generally, he didn’t object on Pinkerton grounds and never presented his current argument to the district court.”); McKissick, 618 F.3d at 1189 (defenses to summary judgment mentioned in footnote of opposition brief were insufficient to preserve the arguments for appeal).

Before the District Court, Plaintiff did not respond substantively to UnitedHealthcare’s specific arguments or evidence regarding the enforceability of the 2016 Arbitration Policy. See Luginbuhl v. City of Gallup, 2013-NMCA-053, ¶ 15, 302 P.3d 751, 775 (N.M. Ct. App. 2013) (under New Mexico law, a legally enforceable contract requires the existence of an offer, an acceptance, consideration, and mutual assent). When Plaintiff and Opt-In Plaintiffs signed the Arbitration Policy applicable at the time of their hire, they were each put on notice that (1) they agreed to arbitrate any employment-related claims against UnitedHealthcare; (2) new or continued employment constituted acceptance of the Policy; (3) UnitedHealthcare would periodically update the Policy with at least 30 days’ notice before January 1 of any given year; and (4) UnitedHealthcare would post the most up-to-date version of the Arbitration Policy on the company’s intranet. A. 38-44 (Sprau Decl., DE 16-1, at ¶¶ 7, 10, 13, 16, 19, 22, 25, 28, 31), A. 57-63, 83-88, 10219

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109, 122- 126, 141-147, 161- 167, 181 – 188, 201- 208 , 222 – 229 (signed policies) at § A, D, E; see also A. 231-236 (2016 Arbitration Policy) at §§ A, D, E. See Ballard v. Chavez, 1994-NMSC-007, ¶ 8, 868 P.2d 646, 648 (N.M. 1994) (fundamental tenet of contract law “that each party to a contract has a duty to read and familiarize himself with the contents of the contract, each party generally is presumed to know the terms of the agreement, and each is ordinarily bound thereby”). Consistent with these terms, on November 25, 2015, over 30 days before January 1, 2016, UnitedHealthcare posted the slightly updated 2016 Arbitration Policy on the front page of the internal intranet, a hub of daily life at UnitedHealthcare that is accessed regularly by all employees, for reasons as varied as filling out Personal Time Off forms to checking to see what is for lunch at the cafeteria. See AB 261 (Defendants’ Reply to Plaintiff’s Supplemental Response, DE 40, at 7). Also consistent with the language in each Policy, after 30 days’ notice, the 2016 Arbitration Policy was enacted on January 1, 2016. A. 231-236 (2016 Arbitration Policy). Plaintiff presented no evidence or argument to dispute this, responding only with unsupported rhetoric that the 2016 Arbitration Policy is “irrelevant.”

Consistent with the terms of each version of the Arbitration Policy, Plaintiff and Opt-In Plaintiffs accepted the minimally revised 2016 Arbitration Policy by their continued employment after being notified of the updated version. See Medina v.

Sunstate Realty, 1995-NMSC-002, ¶ 14, 119 N.M. 136, 139, 889 P.2d 171, 174 20

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(acceptance may be express or implied by conduct). Each Plaintiff continued his or her employment with UnitedHealthcare beyond January 1, 2016. A. 38-44 (Sprau Decl., DE 16-1, at ¶¶ 8, 11, 14, 17, 20, 23, 26, 29, 32.) Finally, as Plaintiff conceded, the 2016 Arbitration Policy is supported by consideration and mutual assent.

Luginbuhl, 302 P.3d at 775-76; A. 236 (2016 Arbitration Policy) at § E (“The mutual obligations by UnitedHealth Group and by employee to arbitrate differences provide consideration for each other.”).)

Plaintiff’s silence in the face of UnitedHealthcare’s arguments in support of the 2016 Arbitration Policy failed to preserve her right to object on these grounds to the District Court’s ruling on appeal.

2.

By Failing to Provide Any Standard of Review, Plaintiff Has Waived Any Right to Argue Plain Error Before this Court.

In violation of Federal Rule of Appellate Procedure 28(a)(8)(B), Plaintiff does not provide this Court with the applicable standard of review. Moreover, in her opening brief, Plaintiff fails to explain how her previously unraised arguments survive the plain error standard and, as a result, waives them in this Court as well. 4

4

Given the lack of Tenth Circuit law in support of Plaintiff’s arguments, it is doubtful that Plaintiff could have satisfied the standard for plain error even if she had timely raised it. See, e.g., Parker Excavating, Inc. v. Lafarge W, 863 F.3d 1213, 1223 n.8 (10th Cir. 2017) (where there is no Tenth Circuit case or the law is “unsettled” “will generally preclude a finding of plain error”) (quoting United States v. Turrietta, 696 F.3d 972, 981 (10th Cir. 2012)).

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A. Kershaw, P.C. v. Shannon L. Spangler, P.C., 703 F. App’x 635, 640 (10th Cir. 2017) (unpublished) (quoting McKissick, 618 F.3d at 1189). This Court has “repeatedly declined to consider arguments under the plain-error standard when the [party] fails to argue plain error.” Wright, 848 F.3d at 1281; Richison, 634 F.3d at 1130-31 (noting that failure to argue for plain error on appeal “surely marks the end of the road” for forfeited argument).

Here, Plaintiff has wholly omitted the standard of review to be applied to her appeal. She has also provided no support for why her arguments could survive a plain error review and has not even explained why these arguments brought now for the first time on appeal are not simply waived altogether. Under these circumstances Plaintiff has waived these arguments for appeal: But her opening appellate brief neither identifies which standard of review she thinks pertains to her argument nor provides any defense of that standard's application. This despite our longstanding rules requiring parties to identify where in the record they raised the point of error they seek to correct on appeal, 10th Cir. R. 28.2(C)(2), to state what standard of review they think applies to our review of that point of error, Fed. R. App. P. 28(a)(9)(B), and to develop any argument for reversal in their opening appellate brief or risk having it held waived. . . .

In these circumstances, even if Ms. McKissick’s duress arguments were merely forfeited before the district court, her failure to explain in her opening appellate brief why this is so and how they survive the plain error

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standard waives the arguments in this court. A party cannot count on us to pick out, argue for, and apply a standard of review for it on our own initiative, without the benefit of the adversarial process, and without any opportunity for the adversely affected party to be heard on the question.

McKissick, 618 F.3d at 1189–90.

This result is necessary under “[o]ur adversarial system,” which “endows the parties with the opportunity—and duty—to craft their own legal theories for relief in the district court. It is the significant but limited job of our appellate system to correct errors made by the district court in assessing the legal theories presented to it, not to serve as ‘a second-shot forum ... where secondary, back-up theories may be mounted for the first time.’” Richison, 634 F.3d at 1130 (quoting Tele– Communications v. C.I.R., 104 F.3d 1229, 1233 (10th Cir. 1997).

Plaintiff cannot second guess the District Court for failing to rule on arguments Plaintiff never made. “Affording plenary appellate review to newly raised legal theories would do much to undermine this adversarial and appellate order. It would force the judicial system to permit costly ‘do-overs’ in the district court anytime a party can conceive a new winning argument on appeal—even when the district court answered perfectly every question of law the parties bothered to put before it. It would also work unfairness on appellees who, no doubt, thought they knew the legal questions at issue in the case by the time of appeal, only to be 23

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surprised when a new threat to their victory in the district court emerges from nowhere for the first time in the pages of an appellate brief.” Richison, 634 F.3d at 1130.

Because Plaintiff failed to raise her arguments before the District Court and because she has failed to explain how such arguments could possibly satisfy plain error review in this Court, she has waived them.

If the Court nonetheless considers Plaintiff’s arguments, they fail on the merits.

B.

The District Court’s Order Should Be Affirmed Because It Properly Compelled Plaintiff to Individually Arbitrate Her Claims Against UnitedHealthcare 1.

The District Court Properly Found that the Delegation Clause Was Clear and Unmistakable.

Normally, in deciding whether to compel arbitration, a court is charged with determining two “gateway” issues: (1) whether there is a valid agreement to arbitrate between the parties; and (2) whether the agreement covers the dispute. Howsam v.

Dean Witter Reynolds, 537 U.S. 79, 84 (2002). But there is an exception to this general rule when, like here, there is “clear and unmistakable” evidence the parties intended to delegate that authority to the arbitrator. Rent–A–Ctr., 561 U.S. at 69 n. 1 (quoting First Options of Chicago v. Kaplan, 514 U.S. 938, 944 (1995)).

Here, the 2016 Arbitration Policy provides that, except for the enforceability of the Class Action Wavier, the parties agree to arbitrate any dispute related to the 24

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Policy, specifically including formation: “Covered claims include any disputes regarding the Policy or any portion of the Policy or its interpretation, enforceability, applicability, unconscionability, arbitrability or formation, or whether the Policy or any portion of the Policy is void or voidable, with the exception noted in the Class and Representative Actions Waivers section below.” A. 42 (Sprau Decl., DE 16-1, at ¶ 33), A. 232 (2016 Arbitration Policy) at § B. The District Court found that whether the 2016 Arbitration Policy was “applicable and enforceable” to Plaintiff and Opt-In Plaintiffs “falls squarely within this delegation provision.” A. 272-73 (Order, DE 42).

In determining whether to enforce a delegation clause, the court examines the underlying contract to determine if the parties have agreed to commit these preliminary issues to the arbitrator. Rent-A-Ctr, 561 U.S. at 70 (“An agreement to arbitrate a gateway issue is simply an additional antecedent agreement the party seeking arbitration asks the court to enforce, and the FAA operates on this additional arbitration agreement just as it does on any other.”); see also Evangelical Lutheran Good Samaritan Soc’y v. Moreno, 277 F. Supp. 3d 1191, 1222 (D.N.M. 2017).

Plaintiff cites to two out-of-circuit district court cases for the proposition that a court should not look to the text of the agreement itself to determine whether the delegation clause was clear and unmistakable, but this Circuit has, to the contrary (and correctly), stated that such language in the clause itself is often the best evidence 25

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of such clarity: “Of course, the most ‘clear and unmistakable’ agreement to arbitrate the issue of arbitrability would be an express statement to that effect in the parties' contractual agreement to arbitrate disputes arising between them.” Dean Witter Reynolds, Inc. v. Howsam, 261 F.3d 956, 968 (10th Cir. 2001), rev’d on other grounds 537 U.S. 79 (2002). Therefore, the clear-and-unmistakable test often turns on the text within the agreement. See Riley Mfg. Co., Inc. v. Anchor Glass Container Corp., 157 F.3d 775, 780 (10th Cir. 1998) (concluding there is no clear-andunmistakable evidence where “there is no hint in the text of the clause or elsewhere in

the

contract

that

the

parties

expressed

a

specific

intent”

to

arbitrate); Comm’n Workers of America v. Avaya, Inc., 693 F.3d 1295, 1303 (10th Cir. 2012); Presbyterian Healthcare Servs. v. Goldman, Sachs & Co., 122 F. Supp.

3d 1157, 1197–98 (D.N.M. 2015) (collecting Courts’ of Appeals opinions); Perez v.

Qwest Corp., 883 F. Supp. 2d 1095, 1107 (D.N.M. 2012).

Here, the language in the 2016 Arbitration Policy is clear and unmistakable evidence of the intent to arbitrate gateway issues. Compare, e.g., Belnap, 844 F.3d at 1281 (emphasis omitted) (finding the following clear and unmistakable: “Jurisdictional and arbitrability disputes, including disputes over the formation, existence, validity, interpretation or scope of the agreement under which Arbitration is sought, and who are proper Parties to the Arbitration, shall be submitted and ruled on by the Arbitrator. The Arbitrator has the authority to 26

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determine jurisdiction and arbitrability issues as a preliminary matter.”).

2.

The District Court Properly Found that Plaintiff Failed to Directly Challenge the Delegation Clause.

Plaintiff argues that the District Court erred by finding that her failure to challenge the delegation clause specifically required enforcement under sections 3 and 4 of the FAA, leaving any challenge to the agreement as a whole for the arbitrator. A. 272-74 (Order, DE 42) (citing Rent-A-Ctr, 561 U.S. at 72).) Again, Plaintiff ignores settled in-circuit law to cite out-of-circuit authority in an attempt to excuse her failure to even mention the delegation clause, much less substantively challenge it. In fact, Plaintiff’s argument is affirmatively contradicted by the Supreme Court’s holding in Rent-A-Center. In that case, after the plaintiff sued RentA-Center for employment-discrimination claims, Rent-A-Center moved to enforce the parties’ arbitration agreement, including a clause delegating authority to resolve “any dispute relating to the interpretation, applicability, enforceability or formation of this Agreement” to the arbitrator. Rent–A-Ctr, 561 U.S. at 66. The plaintiff argued that the arbitration agreement was unconscionable, and therefore, unenforceable. Id. But the Court held that this defense went to the contract as a whole, and therefore it must treat the separate delegation clause as valid: “Unless [plaintiff] challenged the delegation provision specifically, we must treat it as valid under § 2, and must enforce it under §§ 3 and 4, leaving any challenge to the validity of the Agreement 27

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as a whole for the arbitrator.” Id. at 72. Clarifying that it did not matter that the delegation clause was in a standalone arbitration agreement rather than a container agreement, because the plaintiff’s unconscionability challenge was directed at the contract as a whole—the Court repeatedly noted that the plaintiff did not “even mention the delegation provision”—the challenge was for the arbitrator. Id. at 7273.

The result here is the same. Even if Plaintiff can be said to have challenged the 2016 Arbitration Agreement at all, it was directed to the 2016 Arbitration Policy as a whole. As was fatal in Rent-A-Center, she did not even mention the delegation clause in any of her briefing. Therefore, she must raise her defenses to the 2016 Arbitration Policy to the arbitrator. See also, e.g., Mantooth v. Bavaria Inn Rest., No. 17-CV-1150-WJM-MEH, 2018 WL 2241130, at *4 (D. Colo. May 16, 2018) (unpublished) (“While the Court has serious concerns about the circumstances under which the Agreements were signed, each of Plaintiffs’ challenges are directed to the contract as a whole, rather than the arbitration and delegation provisions.”); Evangelical Lutheran Good Samaritan Soc’y, 277 F. Supp. 3d at 1228 (applying Rent-A-Ctr and rejecting plaintiff’s argument that guardian’s lack of authority to enter into the arbitration agreement also challenged the delegation clause because plaintiff did not specifically direct the argument to the delegation provision); see also Felts v. CLK Mgmt., Inc., No. 33,011, 2012 WL 12371462, at *2 (N.M. Aug. 28

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23, 2012) (unpublished) (“In short, when an arbitration agreement includes a delegation clause, Rent–A–Center precludes courts from deciding threshold issues of arbitrability unless the delegation clause itself is challenged.”).

The only Tenth Circuit case Plaintiff cites for this proposition, Spahr v. Secco, 330 F.3d 1266 (10th Cir. 2003), is distinguishable. In Spahr, the plaintiff claimed that the arbitration provision was unenforceable because she did not have the mental capacity to enter into the contract. Id. at 1273. The Tenth Circuit held that the challenge went to the entire contract and not just the specific agreement to arbitrate because “a mental capacity challenge can logically be directed only at the entire contract.” Id. Plaintiff suggests Spahr excuses her failure to specifically challenge the delegation clause, but it does not. Notably, the Court of Appeals in Spahr explicitly limited its holding to challenges based on the status of the party opposing arbitration, such as capacity. Id. at 1273 n.8. The Court of Appeals explained that courts are more protective of certain classes of persons “in order to shield them from consequences of unwise bargains.” Id. Challenges to contracts based on the conduct of the parties, on the other hand, focuses on how the parties acted during the bargaining process, and technically, challenges based on the conduct of the parties, like fraud in the inducement, for instance, can be directed at individual provisions in a contract. Id. at 1273. Here, Plaintiff does not contend that she lacked the mental capacity to form a contract, so she is not entitled to the protection the Court of 29

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Appeals granted in Spahr.

Further, even if it were not directly contracted by Rent-A-Center, Plaintiff’s argument that her “challenge” to the contract as a whole encompasses the challenge to the delegation clause itself is not supported by the facts either. As discussed above, Plaintiff did not substantively address the 2016 Arbitration Policy at all. Instead, Plaintiff called it “irrelevant” and assumed that UnitedHealthcare had not met its burden. This is not a substantive challenge to that agreement, and it is certainly not a challenge to the separate delegation clause. Moreover, because technically a party could assent to an individual provision in a contract, Plaintiff’s cursory argument cannot be read as a challenge to the delegation clause specifically.

3.

The District Court Made the Necessary Findings to Support the Order Compelling Plaintiff’s Claims to Arbitration Under the 2016 Arbitration Policy.

Though Plaintiff disputes that the District Court applied the wrong standard compelling Plaintiff to arbitration so the arbitrator could determine whether the 2016 Arbitration Policy was “applicable and enforceable,” a review of the Order demonstrates that the District Court did make factual findings regarding the existence of the 2016 Arbitration Policy. Under the heading “Enforceability of the 2016 Arbitration Policy,” the District Court repeated Plaintiff’s bare contention that the 2016 Arbitration Policy is not enforceable against Plaintiff and Opt-In Plaintiffs “because there is no evidence that any of them ‘signed, read or even knew about this 30

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Policy.’” A. 269 (Order, DE 42). Acknowledging Plaintiff’s argument that the prior 2006, 2012, and 2015 versions are the operative versions, the Court analyzed those Polices and concluded that they are void for lack of valid consideration. A. 269-272.

The District Court noted, however, that such a conclusion “does not end the inquiry,” and the District Court then cited to the same facts UnitedHealthcare cited in their motion to demonstrate formation: Defendants represent that, on January 1, 2016, while Plaintiff and Opt-in Plaintiffs were still employed with Defendants, Defendants “issued” the 2016 Arbitration Policy. The 2016 Arbitration Policy states that it is a “binding contract between UnitedHealth Group and its employee,” that “[a]cceptance of employment or continuation of employment with UnitedHealth Group is deemed to be acceptance of this Policy,” and that it “supersedes any and all prior versions and has been revised effective January 1, 2016.”

A. 272. The District Court stated that “[t]he relevant question thus remaining is whether, despite the unenforceability of the prior versions of Defendants’ arbitration policies to which Plaintiff and Opt-In Plaintiffs agreed, the 2016 Arbitration Policy is applicable and enforceable as to Plaintiff and Opt-in Plaintiffs.” Id. Because the parties delegated the gateway issues of validity and enforceability to the arbitrator, the District Court was right to refuse to make other findings regarding the 2016 Arbitration Policy. Henry Schein, Inc. v. Archer & White Sales, Inc., --U.S.--, 139 S. Ct. 524, 525 (2019) (“When the parties’ contract delegates the arbitrability 31

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question to an arbitrator, a court may not override the contract. In those circumstances, a court possesses no power to decide the arbitrability issue.”) (emphasis added).

In short, the District Court considered every argument Plaintiff put forth. It substantively responded to her argument that the prior versions of the Policy were unenforceable, but she did not ask the District Court to conduct a similar analysis of the 2016 Arbitration Policy. UnitedHealthcare put forth facts demonstrating the existence and formation of the 2016 Arbitration Policy. Because Plaintiff did not substantially address these facts before the District Court, she cannot now argue that the District Court’s citation to them in support of enforcing the delegation clause was in error.

4.

No Law Binding on this Court Precludes the Arbitrator from Considering Formation.

Even if the District Court can be seen to have delegated the issue of formation to the arbitrator, Plaintiff cites no law binding on this Court to support the argument that this was in error. For instance, Plaintiff points to some out-of-circuit cases in support of her argument that a district court must make a preliminary finding of formation before enforcing a delegation clause, but they are not binding on this Court. 5 Plaintiff also points to some general propositions in Supreme Court cases,

5

Plaintiff cites an unpublished case that cites the Fifth Circuit’s standard with 32

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but none supports the argument that the District Court’s Order enforcing the delegation clause was in error. For example, Plaintiff cites a footnote in Buckeye Check Cashing v. Cardenga, 546 U.S. 440, 444 n.1 (2006), that states that a “contract’s validity” is different from the issue of whether any agreement . . . was ever concluded.” Buckeye does not, however, support the argument that an arbitration agreement that specifically delegates the authority to determine “formation” issues to the arbitrator alone may not be enforced. To the contrary, the footnote merely confirms that the opinion does not address that issue. Moreover, though the issue in Rent-A-Center involved unconscionability, the Court specifically identified arbitrable “‘gateway’ questions of ‘arbitrability,’” including “whether the parties have agreed to arbitrate.” Rent-A-Ctr, 561 U.S. at 68-79 (citing Howsam, 537 U.S., at 83–85).

Similarly, Plaintiff relies heavily on Granite Rock Co. v. Int'l Bhd. of Teamsters, 561 U.S. 287, 297 (2010), but Granite Rock discussed when a collective bargaining agreement was ratified, and notably did not (as Plaintiff concedes) involve a delegation clause. Thus, it involves the usual case of when a court decides issues of arbitrability, and any discussion of delegation clauses in such a case is dicta, and the case does not support Plaintiff’s argument. See In re Cox Enters., 835 F.3d

approval. See Fundamental Admin. Servs., LLC v. Cohen, 709 F. App’x 516, 520 (10th Cir. 2017) (unpublished).

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at 1212 (“An opinion is not binding precedent on an issue not addressed in the opinion.”).

Notably, the courts of this Circuit have repeatedly looked to the text of the arbitration agreement to find clear and unmistakable evidence of the intent to arbitrate gateway issues, and the approved language has included the explicit delegation of formation or the existence of an agreement between the parties. See, e.g., Rent-A-Ctr, 561 U.S. at 66 (providing that “[t]he [a]rbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this [a]greement including, but not limited to any claim that all or any part of this [a]greement is void or voidable.”); Belnap, 844 F.3d at 1281 (emphasis omitted) (“Jurisdictional and arbitrability disputes, including disputes over the formation, existence . . . of the agreement under which Arbitration is sought . . . shall be submitted and ruled on by the Arbitrator.”); Gidding v. Fitz, No. 17-CV-01334-RMNYW, 2018 WL 480607, at *6 (D. Colo. Jan. 19, 2018), aff'd, No. 18-1106, 2018 WL 5815985 (10th Cir. Nov. 6, 2018) (unpublished) (finding the following clear and unmistakable: “[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”); see also BG Grp. PLC v. Republic of Arg., 134 S. Ct. 1198, 1206, (2014) (stating that arbitrability disputes “include questions such as 34

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‘whether the parties are bound by a given arbitration clause’”) (quoting Howsam, 537 U.S. at 84); Williamson v. Grano, No. 1:18-CV-00432-WJ-SCY, 2019 WL 211684, at *7 (D.N.M. Jan. 16, 2019) (holding that defenses such as whether the arbitration agreement lacked mutual assent was a gateway issue delegated to the arbitrator).

Supporting this view, the Employment Arbitration Rules under both the AAA and JAMS specifically delegate to the arbitrator the authority to consider an agreement’s existence or formation. AAA Rule 6(a) (“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.”) (emphasis added); JAMS Rule 11(b) (“Jurisdictional and arbitrability disputes, including disputes over the formation, existence, validity, interpretation or scope of the agreement under which Arbitration is sought, and who are proper Parties to the Arbitration, shall be submitted to and ruled on by the Arbitrator.”) (emphasis added). Incorporation of these Rules, as is the case here, has been held to be clear and unmistakable evidence of the intent to arbitrate arbitrability. Belnap, 844 F.3d at 1284.

Plaintiff’s argument that formation can never be delegated does not find support under the law of this Circuit.

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In the Alternative, the District Court’s Order Should Be Affirmed on the Additional Ground that the Prior 2006, 2012, and 2015 Versions Require the Parties to Individually Arbitrate Their Claims

While a district court’s order may only be reversed when the arguments were raised below, it may be affirmed on any basis supported by the record. Richison, 634 F.3d at 1130; see United States v. Davis, 339 F.3d 1223, 1227 (10th Cir. 2003); see also S.E.C. v. Chenery Corp., 318 U.S. 80, 88 (1943) (“[I]n reviewing the decision of a lower court, it must be affirmed if the result is correct although the lower court relied upon a wrong ground or gave a wrong reason.”) (internal quotation omitted). “Because of the cost and risk involved anytime we upset a court’s reasoned judgment, we are ready to affirm whenever the record allows it.” Richison, 634 F.3d at 1130 (an appellant must demonstrate both the district court’s error and that no other grounds support affirmance).

It is well settled that the FAA was enacted “in response to widespread judicial hostility to arbitration.” Am. Exp. Co. v. Italian Colors Rest., 570 U.S. 228, 232 (2013) (citing AT&T Mobility LLC v. Concepcion, 563 U.S. 339 (2011)).

Accordingly, the FAA’s “principal purpose . . . is to ensure that private arbitration agreements are enforced according to their terms.” Concepcion, 563 U.S. at 344.

Section 2 of the FAA provides that “[a] written provision in any . . . contract . . . involving commerce to settle by arbitration a controversy thereafter arising . . . shall 36

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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. This provision reflects “both a liberal federal policy favoring arbitration . . . and the fundamental principle that arbitration is a matter of contract.” Concepcion, 563 U.S. at 339 (internal citations and quotations omitted).

“In line with these principles, courts must place arbitration agreements on an equal footing with other contracts” and “enforce them according to their terms.” Id. (internal citations and quotations omitted). “By its terms, the Act leaves no place for the exercise of discretion by a district court, but instead mandates that district courts shall direct the parties to proceed to arbitration on issues as to which an arbitration agreement has been signed.” Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218 (1985). Under the FAA, an arbitration agreement must be enforced, as written, where a valid, written agreement exists and the claims made are within the scope of the agreement. Id. at 217, 221. Any doubts are resolved in favor of arbitration. Moses H. Cone Mem’l Hosp. v Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983).

1.

The Determination of the Enforceability of the 2006, 2012, and 2015 Versions Is for the Arbitrator, Not the Court.

Though UnitedHealthcare moved to compel arbitration under the 2016 Arbitration Policy, the District Court found that the 2006, 2012, and 2015 Arbitration Policies were unenforceable for lack of valid consideration. A. 269-72 37

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(Order, DE 42). Specifically, under Flemma v. Halliburton Energy Servs., Inc., 303 P.3d 814 (N.M. 2013), the District Court found that the phrase allowing UnitedHealthcare the right to amend or terminate the Arbitration Policy on January 1 of any year after at least 30 days’ notice was an illusory promise. A. 269-72.

But the validity and enforceability of the 2006, 2012, and 2015 versions is for the arbitrator, not the District Court. As UnitedHealthcare noted in its opening motion, those versions provide that the agreement is governed by the AAA Rules.

A. A. 38-44 (Sprau Decl., DE 16-1, at ¶¶ 7, 10, 13, 16, 19, 22, 25, 28, 31), A. 57-63, 83-88, 102-109, 122- 126, 141-147, 161- 167, 181 – 188, 201- 208 , 222 – 229 (signed policies) at § C. Rule 6 of the AAA Rules provides that 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.” This Circuit has concluded that incorporation of the AAA Rules “provides clear and unmistakable evidence that the parties intended to delegate matters of arbitrability to the arbitrator.” Dish Network L.L.C. v. Ray, 900 F.3d 1240, 1248 (10th Cir. 2018). Therefore, even under the 2006, 2012, and 2015 versions of the Arbitration Policy, the parties have clearly and unmistakably delegated the authority to consider Plaintiff’s argument that the promise is illusory to the arbitrator. See Williamson, 2019 WL 211684, at *7 (whether the arbitration agreement was illusory was a gateway issue delegated to the 38

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arbitrator).

This argument must be decided by the arbitrator for the additional separate reason that this argument goes to the contract as a whole. See In re Cox Enters., 835 F.3d at 1212 (under the “clear commands of the Supreme Court,” holding that plaintiffs’ argument that the contract was illusory was for the arbitrator); see Buckeye, 546 U.S. at 449; Prima Paint Corp. v. Flood and Conklin Mfg Co., 388 U.S. 395, 406-07 (1967).

Therefore, even if the 2016 Arbitration Policy is found to be unenforceable, the District Court’s Order compelling the parties to arbitration should be affirmed.

2.

The 2006, 2012, and 2015 Versions Are Not Illusory Because They Are Supported by the Consideration of New Employment.

The District Court’s Order compelling Plaintiff to individually arbitrate her claims should be affirmed for the additional separate reason that the prior versions of the Arbitration Policy are supported by the consideration of Plaintiffs’ new employment.

Consideration is “a promise to do something that a party is under no legal obligation to do or to forbear from doing something he has a legal right to do.” Talbott v. Roswell Hosp. Corp., 2005-NMCA-109, ¶ 16, 138 N.M. 189, 118 P.3d 194, 198 (N.M. Ct. App. June 22, 2005). Applying Flemma, 303 P.3d 814, the District Court concluded that UnitedHealthcare’s promise to arbitrate was illusory, 39

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and therefore the agreements were not supported by consideration. A. 269-72 (Order, DE 42). However, the District Court did not consider that the agreements were supported by other forms of consideration. Significantly, even an illusory promise will not render an agreement unenforceable if it is supported by another form of consideration: It is important to keep in mind, however, that a contract may be supported by adequate consideration, and hence be enforceable, even if one of the promises by a party is illusory. If that party provides other consideration, such as a nonillusory promise, the fact that one promise is illusory is immaterial. That consideration may appear in a totally distinct provision of the contract as a whole.

In re Cox Enterprises, 835 F.3d at 1211. Further, “where the agreement to arbitrate is integrated into a larger unitary contract, the consideration for the contract as a whole covers the arbitration clause as well.” Id. In Piano v. Premier Distributing Co., 2005-NMCA-018, ¶ 8, 137 N.M. 57, 107 P.3d 11, 14 (N.M. Ct. App. Dec. 20, 2004), the Court of Appeals of New Mexico held that continued at-will employment is insufficient consideration to sustain an agreement. But the district courts of this Circuit have concluded that the result is different when parties enter into arbitration agreements as a condition of new employment. “The bargained-for exchange is the offer of employment in exchange for signing an agreement to participate in the [arbitration agreement]. Such an agreement is not illusory.” Parrish v. Valero Retail Holdings, Inc., 727 F. Supp. 2d 40

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1266, 1278 (D.N.M. 2010) (collecting cases).

For instance, in Laurich v. Red Lobster Restaurants, LLC, 295 F. Supp. 3d 1186 (D.N.M. 2017), Red Lobster required the plaintiff to agree to an arbitration agreement soon after Red Lobster acquired the restaurant where plaintiff worked.

Id. at 1217. The plaintiff understood that she could not work at Red Lobster if she did not enter into the agreement. Therefore, the district court concluded that the agreement was supported by the consideration of the new employment. Id. Similarly, in Boyd v. Springleaf Financial Services, Inc., No. 16cv0814 WPL/KK, 2016 WL 5946912 (D.N.M. Sept. 9, 2016) (unpublished), the district court distinguished new at-will employment from continued at-will employment.

The court found that the employment relationship “placed adequate constraints on [the employer’s] future conduct to render the agreement supported by consideration and not illusory.” Id. at *6; see also Parrish v. Valero Retail Holdings, Inc., 727 F. Supp.

2d

1266,

1278

(D.N.M.

2010)

(finding

“an

application

for

employment containing an agreement to arbitrate if offered employment is fundamentally

different

than

an

arbitration

agreement

introduced

after employment has started and based on consideration of continued atwill employment”). 6

6

In Clark v. UnitedHealth Grp., Inc., No. CV 13-0372 MV/CG, 2018 WL 2932735, at *6 (D.N.M. June 12, 2018), the Magistrate Judge came to the contrary conclusion, 41

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At some time prior to their first day of work, Plaintiff and each putative optin plaintiff were sent substantially similar offer letters, which offered them a position with UnitedHealthcare. Under the clear subheading “Conditions of Your Employment with UnitedHealth Group,” each Offer Letter provided: Included with this letter is UnitedHealth Group’s Employment Arbitration Policy. This Policy is a binding contract between you and UnitedHealth Group to resolve through arbitration all employment-related disputes that are based on a legal claim, and mutually waive the right to a trial before a judge or jury in court in favor of final and binding arbitration. Your agreement to be bound by the terms of the Policy is a condition of your employment.

Once you are on board, you will be required to electronically acknowledge in Employee Self Service your understanding of the Policy.

A. 38-44 (Sprau Decl., DE 16-1, at ¶¶ 6, 9, 12, 15, 18, 21, 24, 27, 30), 46-55 (Ex. A (Fedor offer letter and 2012 Policy)), 65-81 (Ex. C (Davis offer letter and 2006 Policy)), 90-100 (Ex. E (Davison offer letter and 2012 Policy)), 111- 120 (Ex. G (Whitesell offer letter and 2012 Policy)), 128-139 (Ex. I (Hays offer letter and 2015 Policy)), 149-159 (Ex. K (Rice offer letter and 2015 Policy)), 169- 179 (Ex. M (Beauchamp offer letter and 2011 Policy)), 190 – 199 (Ex. O (Snyder offer letter and

rejecting these cases in favor of the reasoning by a Missouri state court in Jimenez v. Cintas Corporation, 475 S.W. 3d 679 (Mo. Ct. App. E.D. 2015). The District Court adopted the Magistrate Judge’s report and recommendation in Clark after no party objected. 2018 WL 3539817 (D.N.M. July 23, 2018).

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2012 Policy)), 210 – 220 (Ex. Q (Salopek offer letter and 2012 Policy)). Then, generally on the first day of employment, but sometimes a few days later, each plaintiff agreed to and executed a material similar arbitration policy. A. 38-44 (Sprau Decl., DE 16-1, at ¶¶ 7, 10, 13, 16, 19, 22, 25, 28, 31), 57-63 (Ex. B (Fedor signed 2006 Policy)), 83-88 (Ex. D (Davis signed 2006 Policy)), 102-109 (Ex. F (Davison signed 2006 Policy)), 122- 126 (Ex. H (Whitesell signed 2012 Policy)), 141-147 (Ex. J (Hays signed 2015 Policy)), 161- 167 (Ex. L (Rice signed 2015 Policy), 181 – 188 (Ex. N (Beauchamp signed 2006 Policy)), 201- 208 (Ex. P (Snyder signed 2006 Policy)), 222 – 229 (Ex. R (Salopek signed 2006 Policy)). But acceptance of an agreement need not be in writing, and even before Plaintiff and Opt-In Plaintiffs actually signed the agreements, they agreed to the Arbitration Policy that was mailed to them by reporting to work under the condition that they agree to arbitrate any employment-related claims. A. 38-44 (Sprau Decl., DE 16-1, ¶¶ 6, 9,12, 15, 18, 21, 24, 27, 30), 48 (Fedor offer letter), 49 (Fedor mailed 2012 Policy), 67 (Davis offer letter), 72 (Davis mailed 2006 Policy), 92 (Davison offer letter), 95 (Davison mailed 2012 Policy), 113 (Whitesell offer letter), 114 (Whitesell mailed 2012 Policy), 13031 (Hays offer letter), 132-33 (Hays mailed 2015 Policy), 151 (Rice offer letter) 153 (Rice mailed 2015 Policy), 170 (Beauchamp offer letter), 181 (Beauchamp mailed 2011 Policy), 192 (Snyder offer letter), 194 (Snyder mailed 2012 Policy), 213 (Salopek offer letter), 214 (Salopek mailed 2012 Policy). See Medina, 889 P.2d at 43

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174 (acceptance may be express or implied); Stieber v. Journal Pub. Co., 1995NMCA-068, ¶ 9, 120 N.M. 270, 273, 901 P.2d 201, 204 (employment constituted acceptance of contract).

Accordingly, since Plaintiff and Opt-In Plaintiffs accepted these mailed 2006, 2011, 2012, and 2015 Arbitration Policies as a condition of their employment when they reported to work on the first day, they are supported by the consideration of new at-will employment, and therefore, the provision allowing for amendment or termination should be severed, and those agreements enforced. E.g., A. 49 (2012 Policy at § C(23)) (“If any portion or provision of this Policy is held to be void or unenforceable, the remainder of this Policy will be enforceable and any part may be severed from the remainder as appropriate.”), 153 (2015 Policy at § C(23) (same).

D.

In the Alternative, the District Court’s Order Should Be Affirmed on the Additional Ground that Plaintiff and Opt-In Plaintiffs Separately Agreed to Arbitrate this Dispute as Memorialized by the Offer Letters

Even if the Court finds that neither the 2006, 2012, 2015 Arbitration Policies nor the 2016 Arbitration Policy is enforceable, Plaintiff and Opt-In Plaintiffs are bound to arbitrate this dispute for the additional reason that they accepted the position with UnitedHealthcare on the express condition they submit any employment-related disputes to binding arbitration. This promise, which is memorialized in each Offer Letter, is enforceable even if the separate Arbitration 44

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Policies are not.

As discussed above, Plaintiff and Opt-In Plaintiffs were sent substantially similar offer letters, offering them a position with UnitedHealthcare. Each offer letter made clear that the requirement to arbitrate was a condition of employment with UnitedHealthcare. A. 38-44 (Sprau Decl., DE 16-1, at ¶¶ 6, 9,12, 15, 18, 21, 24, 27, 30), 48 (Fedor offer letter), 67 (Davis offer letter), 92 (Davison offer letter), 113 (Whitesell offer letter), 130-31 (Hays offer letter), 151 (Rice offer letter), 170 (Beauchamp offer letter), 192 (Snyder offer letter), 213 (Salopek offer letter). Then, generally on the first day of employment, but sometimes a few days later, each plaintiff agreed to and executed a material similar arbitration policy. A. 38-44 (Sprau Decl., DE 16-1, at ¶¶ 7, 10, 13, 16, 19, 22, 25, 28, 31), 57-63 (Ex. B (Fedor signed 2006 Policy)), 83-88 (Ex. D (Davis signed 2006 Policy)), 102-109 (Ex. F (Davison signed 2006 Policy)), 122- 126 (Ex. H (Whitesell signed 2012 Policy)), 141-147 (Ex. J (Hays signed 2015 Policy)), 161- 167 (Ex. L (Rice signed 2015 Policy), 181 – 188 (Ex. N (Beauchamp signed 2006 Policy)), 201- 208 (Ex. P (Snyder signed 2006 Policy)), 222 – 229 (Ex. R (Salopek signed 2006 Policy)). But significantly, even before signing the actual Arbitration Policy, under the plain language of the Offer Letter, Plaintiff and Opt-In Plaintiffs accepted the requirement of binding arbitration by accepting employment from UnitedHealthcare. That is, by showing up at work on their first day, which was identified in the Offer Letter, Plaintiff and Op-In 45

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Plaintiffs accepted UnitedHealthcare’s offer of employment, which was conditioned on the requirement “to resolve through arbitration all employment-related disputes that are based on a legal claim, and mutually waive the right to a trial before a judge or jury in court in favor of final and binding arbitration.” A. 38-44 (Sprau Decl., DE 16-1, ¶¶ 6, 9, 12, 15, 18, 21, 24, 27, 30), 48 (Fedor offer letter), 67 (Davis offer letter), 92 (Davison offer letter), 113 (Whitesell offer letter), 130-31 (Hays offer letter), 151 (Rice offer letter), 170 (Beauchamp offer letter), 192 (Snyder offer letter), 213 (Salopek offer letter); see Medina, 889 P.2d at 174; Stieber, 901 P.2d at 204.

Besides a clear offer and acceptance, this promise is supported by consideration and mutual assent. The language of the Offer Letter makes clear that the agreement to arbitrate all employment-related claims is mutual; both the employee and UnitedHealthcare “mutually waive” their right to bring a claim in court in favor of binding arbitration. The mutual promise to arbitrate is sufficient consideration. See Luginbuhl, 302 P.3d at 775-76; see also Parrish, 727 F. Supp. 2d at 1278 (requirement to arbitrate as a condition of new employment supported by consideration).

The fact that the Offer Letters do not contain terms other than the mutual requirement to arbitrate does not make the agreement to arbitrate any less enforceable. See, e.g., Green Tree Fin. Corp.-Alabama v. Randolph, 531 U.S. 79, 91 46

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(2000) (arbitration agreement’s silence on who bears costs and fees did not render it unenforceable); Matthews v. Ultimate Sports Bar, LLC, 621 F. App’x 569, 572-73 (11th Cir. 2015) (unpublished) (holding “incompleteness” an insufficient basis to invalidate an arbitration clause); South Alabama Pigs, LLC v. Farmer Feeders, Inc., 305 F. Supp. 2d 1252, 1261-63 (M.D. Ala. 2004) (rejecting argument that an arbitration agreement was unenforceable because it failed to include “material terms” such as the manner for selecting an arbitrator and whether arbitration would be binding, and only specified that arbitration shall be “in the manner as allowed”); In re Refco, Inc. Sec. Litig., No. 07 CIV. 11604 (GEL), 2008 WL 2185676, at *5 (S.D.N.Y. May 21, 2008) (holding that “as a matter of law, if the parties’ intent to arbitrate is clear from the text of the [agreement], whether the Attachment setting forth the specific procedures was actually included with the [agreement] has no bearing on the validity of the arbitration agreement”). Any missing terms related to the specifics of arbitration can be negotiated in good faith by the parties or supplied by the court or arbitrator under the FAA. Finally, because the Offer Letter does not expressly authorize class or collective arbitration, Plaintiff must individually arbitrate her claims. Lamps Plus, Inc. v. Varela, -- U.S. --, 139 S. Ct. 1407, 1416 (2019) (“courts may not infer consent to participate in class arbitration absent an affirmative contractual basis for concluding that the party agreed to do so”) (internal citation and punctuation 47

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omitted); see Stolt-Nielsen S.A, 559 U.S. 662, 684 (2010) (“a party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so”); see also Epic Sys., 138 S. Ct at 1632 (reinforcing a long line of precedent requiring arbitration agreements “be enforced as written”); Italian Colors, 133 S. Ct. at 2309 (“consistent with [the FAA’s] text, courts must rigorously enforce arbitration agreements according to their terms . . . including terms that specify with whom the parties choose to arbitrate their disputes . . . and the rules under which that arbitration will be conducted.”) (internal citations and quotations omitted); Rent-A-Ctr, 561 U.S. at 67 (“The FAA reflects the fundamental principle that arbitration is a matter of contract.”).

The District Court’s Order compelling the parties to arbitration should also be affirmed on the alternative ground that the offer letters, which Plaintiff and Opt-In Plaintiffs accepted by reporting to work, memorialize the requirement to arbitration.

VII. CONCLUSION The District Court properly granted UnitedHealthcare’s motion to compel arbitration. Accordingly, UnitedHealthcare respectfully requests that the Court affirm the District Court’s judgment.

Oral Argument Is Requested To the extent Appellant-Plaintiff Fedor continues to make arguments that she has already waived, UnitedHealthcare respectfully requests oral argument in order 48

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to respond to them and aid the Court in its consideration. Oral argument will also allow United HealthCare to respond to any and all arguments raised by AppellantPlaintiff Fedor.

RESPECTFULLY SUBMITTED this 13th day of December, 2019.

/s/ Cory G. Walker Mark Ogden; AZ Bar No. 017018 mogden@littler.com Cory G. Walker; AZ Bar No. 027853 cgwalker@littler.com LITTLER MENDELSON, P.C. 2425 East Camelback Road, Suite 900 Phoenix, AZ 85016 Telephone: 602.474.3600 Attorneys for Defendants-Appellees

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STATEMENT OF RELATED CASES There are no known related cases pending in the Tenth Circuit Court of Appeals.

DATED: December 13, 2019

/s/ Cory G. Walker Mark Ogden; AZ Bar No. 017018 mogden@littler.com Cory G. Walker; AZ Bar No. 027853 cgwalker@littler.com LITTLER MENDELSON, P.C. 2425 East Camelback Road, Suite 900 Phoenix, AZ 85016 Telephone: 602.474.3600 Attorneys for Defendants-Appellees

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CERTIFICATE OF COMPLIANCE 1.

This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(C) because this brief contains 11,865 words, excluding parts of the brief exempted by Fed. R. App. P. 32(f) and 10th Cir. R. 32(B).

2.

This brief complies with the typeface requirements of Fed. R. App. 32(a)(5)

and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally-spaced typeface, in 14-point Times New Roman.

DATED: December 13, 2019 /s/ Cory G. Walker Mark Ogden; AZ Bar No. 017018 mogden@littler.com Cory G. Walker; AZ Bar No. 027853 cgwalker@littler.com Littler Mendelson, P.C. 2425 East Camelback Road, Suite 900 Phoenix, AZ 85016 Telephone: 602.474.3600 Attorneys for Defendants-Appellees

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CERTIFICATE OF DIGITAL SUBMISSION I hereby certify that with respect to the foregoing document: 1. All required privacy redactions have been made per 10th Circuit Rule 25.5.

2. Any required paper copies to be submitted to the court are exact copies of the version submitted electronically; and 3. The electronic version of this brief was scanned for viruses using Windows Defender and, according to the program, is free of viruses.

DATED: December 13, 2019 /s/ Cory G. Walker Mark Ogden; AZ Bar No. 017018 mogden@littler.com Cory G. Walker; AZ Bar No. 027853 cgwalker@littler.com LITTLER MENDELSON, P.C. 2425 East Camelback Road, Suite 900 Phoenix, AZ 85016 Telephone: 602.474.3600 Attorneys for Defendants-Appellees

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Document: 010110274997

Date Filed: 12/13/2019

Page: 64

CERTIFICATE OF SERVICE I hereby certify that on December 13, 2019, I electronically filed the foregoing Appellees’ Answering Brief with the Clerk of the Court for the United States Court of Appeals for the Tenth Circuit by using the appellate CM/ECF System.

I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF System.

DATED: December 13, 2019

/s/ Cory G. Walker Mark Ogden; AZ Bar No. 017018 mogden@littler.com Cory G. Walker; AZ Bar No. 027853 cgwalker@littler.com LITTLER MENDELSON, P.C. 2425 East Camelback Road, Suite 900 Phoenix, AZ 85016 Telephone: 602.474.3600 Attorneys for Defendants-Appellees 4850-1610-5390.6 047515.135

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Attachment 1

Case 1:17-cv-00013-MV-KBM Document 42 Filed 03/18/19 Page 1 of 9 Appellate Case: 19-2066 Document: 010110274997 Date Filed: 12/13/2019 Page: 66

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO DANA FEDOR, AND ALL OTHERS SIMILARLY SITUATED, Plaintiff, v.

CV 17-13 MV/KBM

UNITED HEALTHCARE, INC., and UNITED HEALTHCARE SERVICES, INC., Defendants.

MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Court on Defendants’ Motion to Dismiss, Strike Class and Collective Action Claims, and Compel Arbitration, or, in the Alternative, Stay Proceedings [Doc. 16].

The Court, having considered the motion, briefs, and relevant law, and being

otherwise fully informed, finds that the motion is well-taken and will be granted.

BACKGROUND Plaintiff Dana Fedor worked for Defendants as a “Care Coordinator” from in or about November 2013, until on or about November 25, 2016.

Doc. 16-1 at ¶¶ 7-8.

Opt-in Plaintiffs

Susan Davis, Donah E. Davison, Juliana J. Whitesell, Cindy L. Hays, Michelle Rios Rice, Ann E. Beauchamp, William E. Snyder, and Lisa Anne Salopek also formerly worked for Defendants as Care Coordinators. Id.

at ¶¶ 9-32.

Consistent with Defendants’ policies, along with his or

her offer letter, Defendants provided Plaintiff and Opt-in Plaintiffs with a copy of Defendants’ then-current arbitration policy. Id. at ¶¶ 6, 9, 12, 15, 18, 21, 24, 27, 30.

Plaintiff and Opt-in

Plaintiffs each logged onto Defendants’ PeopleSoft Human Resources Management System and

1

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electronically acknowledged receipt of, and agreement to, that arbitration policy, by clicking on the “I accept” button. Id. at ¶ 7, 10, 13, 16, 19, 22, 25, 28, 31.

Defendants periodically revise their arbitration policy, and on January 1, 2016, while Plaintiff and Opt-in Plaintiffs were still employed with Defendants, Defendants “issued” the most recent version of their arbitration policy (the “2016 Arbitration Policy”).

11, 14, 17, 20, 23, 26, 29, 32, 33.

Id. at ¶¶ 33, 8,

The 2016 Arbitration Policy states that it is a “binding

contract between UnitedHealth Group and its employee,” that “[a]cceptance of employment or continuation of employment with UnitedHealth Group is deemed to be acceptance of this Policy,” and that it “supersedes any and all prior versions and has been revised effective January 1, 2016.”

Doc. 16-2.

On March 28, 2017, Plaintiff commenced the instant action by filing her First Amended Class and Collective Action Complaint to recover overtime compensation from Defendants.

Doc. 3.

Plaintiff brings collective claims under the Fair Labor Standards Act and class action

claims under New Mexico law, on behalf of herself and Opt-in Plaintiffs, who have consented to join the action. Id. at ¶¶ 34-35; Docs. 9-15. Arguing that this lawsuit violates the 2016 Arbitration Policy, which requires arbitration of the claims set forth in the Amended Complaint and which prohibits collective and class claims, Defendants filed the instant motion to compel Plaintiff and Opt-in Plaintiffs to individually arbitrate their claims.

Plaintiff opposes the

motion.

LEGAL STANDARD The Federal Arbitration Act (“FAA”) applies to arbitration provisions in “a contract evidencing a transaction involving commerce.”

9 U.S.C. § 2.

Under the FAA, such

arbitration provisions “are valid, irrevocable, and enforceable, save upon such grounds as exist at 2

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law or in equity for the revocation of any contract.” 9 U.S.C. § 2. Section 2 of the FAA creates “a substantive rule applicable in state as well as federal courts.”

Keating, 465 U.S. 1, 16 (1984).

Southland Corp. v.

To implement this substantive rule, “a party aggrieved by the

alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition” the federal district court “for an order directing that such arbitration proceed in the manner provided for in such agreement.”

9 U.S.C. § 4.

Describing the FAA as “a liberal

federal policy favoring arbitration,” the Supreme Court has emphasized “the fundamental principle that arbitration is a matter of contract,” and, accordingly, that “courts must place arbitration agreements on an equal footing with other contracts . . . and enforce them according to their terms.” AT&T Mobility LLC v. Conception, 131 S. Ct. 1740, 1745 (2011).

The FAA, however, “was not enacted to force parties to arbitrate in the absence of an agreement.” Avedon Eng’g, Inc. v. Seatex, 126 F.3d 1279, 1286 (10th Cir. 1997).

Rather,

Congress’ concern “was to enforce private agreements into which parties had entered.”

Id.

Accordingly, “[t]he existence of an agreement to arbitrate is a threshold matter which must be established before the FAA can be invoked.”

Id. at 1287.

DISCUSSION Under the FAA, Defendants move to compel Plaintiff and Opt-in Plaintiffs to individually arbitrate the claims alleged in the Amended Complaint.

In support of their motion,

Defendants argue that the 2016 Arbitration Policy is valid and enforceable against Plaintiff and Opt-in Plaintiffs, that the claims alleged in the Amended Complaint fall within the scope of the 2016 Arbitration Policy, and that the 2016 Arbitration Policy prohibits Plaintiff and Opt-in Plaintiffs from pursuing class and collective claims.

Plaintiff does not appear to dispute that her

claims fall within the scope of the 2016 Arbitration Policy or that the 2016 Arbitration Policy 3

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prohibits class and collective claims.

Plaintiff does, however, dispute that the 2016 Arbitration

Policy is valid and enforceable as to her and Opt-in Plaintiffs.

I.

Enforceability of the 2016 Arbitration Policy as to Plaintiff and Opt-in Plaintiffs Plaintiff argues that the 2016 Arbitration Policy is not enforceable against her or Opt-in

Plaintiffs because there is no evidence that any of them “signed, read or even knew about this Policy.”

Doc. 38 at 7. Rather, Plaintiff explains, each of them indicated acceptance only to

prior versions of Defendants’ arbitration policy.

It is those prior versions, Plaintiff argues, that

are the operative documents here and, because each of those prior versions lacked valid consideration under New Mexico law, neither Plaintiff nor Opt-in Plaintiffs are bound by any valid, enforceable agreement to submit their claims to arbitration.

Plaintiff is correct that she and Opt-in Plaintiffs electronically agreed to prior versions of Defendants’ arbitration policies.

Specifically, Plaintiff and Opt-in Plaintiffs Davidson,

Whitesell, and Snyder agreed to Defendant’s 2012 arbitration policy; Opt-in Plaintiffs Davis and Salopek agreed to Defendant’s 2006 arbitration policy; Opt-in Plaintiff Beauchamp agreed to Defendant’s 2011 arbitration policy; and Opt-in Plaintiffs Hays and Rice agreed to Defendants’ 2015 arbitration policy. Doc. 38 at 4.

The Court agrees that, under New Mexico law, each of

those prior versions contained provisions that would render those policies unenforceable for lack of valid consideration.

Specifically, the 2006, 2011, and 2012 arbitration policies each contain an identical provision entitled “Amendment or Termination of Arbitration Policy,” stating that “UnitedHealth Group reserves the right to amend, modify, or terminate the Policy effective on January 1 of any year after providing at least 30 days’ notice of its intent and the substance of any amendment, modification or termination of the Policy.”

Doc. 16-2.

4

These policies contain a second

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identical provision entitled “Effective Date,” stating that “[a]ll arbitrations shall be conducted in accordance with the Policy in effect on the date the Corporate Employee Relations Department receives the Demand for Arbitration.”

Id. By giving Defendants the right to unilaterally

amend or terminate the policy, while at the same time mandating that an employee’s claim be arbitrated in accordance with the policy in effect on the date that the claim was filed, these policies entitled Defendants to unilaterally amend or terminate the policies after an employee’s claim had accrued.

In Flemma v. Halliburton Energy Servs., Inc., the New Mexico Supreme Court held that an arbitration agreement that allows an employer to unilaterally amend or terminate the agreement after an employee’s claim has accrued fails for lack of consideration, because the employer’s promise to arbitrate is illusory.

303 P.3d 814, 822 (N.M. 2013).

The arbitration

agreement at issue in Flemma allowed the employer to unilaterally amend or terminate it with 10 days’ notice to current employees, and provided that no amendment or termination would apply to a dispute for which a proceeding had been initiated.

Id. The terms of the agreement thus

allowed Halliburton to amend the agreement after a claim had accrued, but before arbitration proceedings were initiated, a period during which “Halliburton [could] decide that it [did] not want to use alternative dispute resolution, or [might] alter the terms on which alternative dispute resolution is based.”

Id. The Court held that the agreement “fail[ed] for lack of consideration

. . . because Halliburton’s promise to arbitrate [was] illusory since Halliburton retain[ed] the right to unilaterally amend the agreement’s terms after an employee’s claim ha[d] accrued.” Id. Here, Defendant’s 2006, 2011, and 2012 arbitration policies allowed Defendants to unilaterally amend or terminate the policy with 30 days’ notice to current employees, and provided that no amendment or termination would apply to a dispute for which a demand for 5

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arbitration had been filed.

Accordingly, as in Flemma, Defendants’ prior policies left “a period

of time between when a claim accrue[d] and when a proceeding [was] initiated, during which [Defendants] retain[ed] the authority to unilaterally amend the agreement.” Id. at 823.

Under

Flemma, Defendants’ 2006, 2011, and 2012 policies thus fail for lack of consideration because Defendants’ promise to arbitrate was illusory.

While the provision entitled “Effective Date” was changed slightly in Defendants’ 2015 arbitration policy, the modification was not sufficient to create a non-illusory promise to arbitrate. The 2015 arbitration policy contains the same “Amendment or Termination of Arbitration Policy” provision as did the 2006, 2011, and 2012 policies, reserving to Defendants “the right to amend, modify, or terminate the Policy effective on January 1 of any year after providing at least 30 days’ notice of its intent and the substance of any amendment, modification or termination of the Policy.”

Doc. 16-2.

The “Effective Date” provision in the 2015 policy

was modified to provide that “[a]ll arbitrations shall be conducted in accordance with the Policy in effect on the date the Corporate Employee Relations Department receives the Demand for Arbitration, except that any amendments to the Policy made after a claim arises will not be applied to proceedings related to that claim.”

Id. (emphasis added).

By adding the limiting language to the “Effective Date” provision, Defendants partially fixed the deficiency of their prior policies by ensuring that no amendments could be made after an employee’s claim arose.

The 2015 policy, however, did not equally limit Defendants’

otherwise unfettered right to unilaterally terminate the policy after an employee’s claim arose.

Accordingly, as was the case in Flemma, the terms of the 2015 policy continued to allow Defendants to terminate the policy after a claim had accrued, but before arbitration proceedings were initiated, a period during which Defendants “[could] decide that [they did] not want to use 6

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alternative dispute resolution.” Flemma, 303 P.3d at 822. Defendant’s 2015 policy thus also fails for lack of consideration because Defendants’ promise to arbitrate was illusory.

This Court’s conclusion that the versions of Defendants’ arbitration policies to which Plaintiff and Opt-in Plaintiffs agreed are unenforceable for lack of valid consideration does not end the inquiry.

Defendants represent that, on January 1, 2016, while Plaintiff and Opt-in

Plaintiffs were still employed with Defendants, Defendants “issued” the 2016 Arbitration Policy.

The 2016 Arbitration Policy states that it is a “binding contract between UnitedHealth Group and its employee,” that “[a]cceptance of employment or continuation of employment with UnitedHealth Group is deemed to be acceptance of this Policy,” and that it “supersedes any and all prior versions and has been revised effective January 1, 2016.”

The relevant question thus

remaining is whether, despite the unenforceability of the prior versions of Defendants’ arbitration policies to which Plaintiff and Opt-in Plaintiffs agreed, the 2016 Arbitration Policy is applicable and enforceable as to Plaintiff and Opt-in Plaintiffs.

The Court, however, may not answer this question, because the 2016 Arbitration Policy specifically delegates this threshold issue of arbitrability to the arbitrator. The 2016 Arbitration Policy contains a “delegation provision” stating that the claims covered by the Policy “include any disputes regarding the Policy or any portion of the Policy or its interpretation, enforceability, applicability, unconscionability, arbitrability or formation, or whether the Policy or any portion of the Policy is void or voidable.” Doc. 16-2.

The controversy over whether the 2016

Arbitration Policy is applicable and enforceable as to Plaintiff and Opt-in Plaintiffs falls squarely within this delegation provision.

Defendants ask the Court to enforce the delegation provision

and, in keeping with that provision, compel Plaintiff to arbitrate the issue of the applicability and enforceability of the 2016 Arbitration Policy. Doc. 40 at 4-5.

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The Supreme Court has consistently “held that parties may agree to have an arbitrator decide not only the merits of a particular dispute but also ‘gateway’ questions of ‘arbitrability,’ such as whether the parties have agreed to arbitrate or whether their agreement covers a particular controversy.” Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524, 529 (2019).

An “agreement to arbitrate a gateway issue 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.” Id. Accordingly, when the parties’ agreement contains a provision that delegates the arbitrability question to an arbitrator “by ‘clear and unmistakable evidence,’” the “court may not override the contract,” and “possesses no power to decide the arbitrability issue.” Id. at 529-30.

Importantly, unless the

party opposing arbitration “challenge[s] the delegation provision specifically,” as opposed to “challeng[ing] only the validity of the contract as a whole,” this Court “must enforce it under §§ 3 and 4 [of the FAA], leaving any challenge to the validity of the Agreement as a whole for the arbitrator.” Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 72 (2010).

Here, the 2016 Arbitration Policy clearly and unmistakably delegates to the arbitrator any dispute as to the applicability and enforceability of the 2016 Arbitration Policy. In her opposition, Plaintiff does not challenge this delegation provision and, indeed does not “even mention the delegation provision.” Id. contract as a whole.”

Id.

Rather, Plaintiff challenges “only the validity of the

As a result, this Court is constrained to treat the delegation provision

as valid and enforce it, leaving any challenge to the applicability and enforceability of the 2016 Arbitration Policy – due to the unenforceability of Defendants’ prior policies to which Plaintiff and Opt-in Plaintiffs agreed or otherwise – for the arbitrator. See id.

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II.

Dismissal of this Action Defendants request that this Court compel Plaintiff and Opt-in Plaintiffs to arbitrate their

claims and dismiss this action.

Because the Court agrees that Plaintiff and Opt-in Plaintiffs

must submit their claims to arbitration, and because neither party has requested a stay rather than dismissal of this action, the Court finds that dismissal is proper. Armijo v. Prudential Ins. Co. of Am., 72 F.3d 793, 797 (10th Cir. 1995) (finding that district court did not err in dismissing action where defendant moved to compel arbitration and instead of requesting a stay pending such arbitration, requested dismissal of plaintiff’s claims).

CONCLUSION For the reasons set forth above the issue of whether the 2016 Arbitration Policy is enforceable as to Plaintiff and Opt-in Plaintiffs is for the arbitrator, rather than this Court, to determine, and the Court must defer that decision to the arbitrator.

Accordingly, no basis exists

for the Court to deny Defendants’ motion to compel arbitration and dismiss this action.

IT IS THEREFORE ORDERED that Motion to Dismiss, Strike Class and Collective Action Claims, and Compel Arbitration, or, in the Alternative, Stay Proceedings [Doc. 16] is GRANTED and this case is DISMISSED. DATED this 18th day of March, 2019.

MARTHA VÁZQUEZ United States District Judge

9

Attachment 2

Case 1:17-cv-00013-MV-KBM Document 43 Filed 03/18/19 Page 1 of 1 Appellate Case: 19-2066 Document: 010110274997 Date Filed: 12/13/2019 Page: 76

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO DANA FEDOR, AND ALL OTHERS SIMILARLY SITUATED, Plaintiff, v.

CV 17-13 MV/KBM

UNITED HEALTHCARE, INC., and UNITED HEALTHCARE SERVICES, INC., Defendants.

JUDGMENT The Court, having by separate Memorandum Opinion and Order entered contemporaneously with this Judgment, granted Defendants’ Motion to Dismiss, Strike Class and Collective Action Claims, and Compel Arbitration, or, in the Alternative, Stay Proceedings [Doc. 16], now enters judgment.

IT IS HEREBY ORDERED that this action is DISMISSED.

DATED this 18th day of March, 2019.

__________________________________________ MARTHA VÁZQUEZ United States District Judge