Fedor v. United Healthcare, 976 F.3d 1100

Dana Fedor (and eight former employees) sued UnitedHealthcare (UHC) in 2017 alleging FLSA and New Mexico wage-law violations. UHC moved to dismiss and compel arbitration.
Four versions of UHC’s arbitration policy are relevant: 2006, 2012, 2015 (each signed by some plaintiffs and contained an amendment clause), and 2016 (none of the plaintiffs signed it; it lacked the amendment clause but added a delegation clause).
The district court found the 2006/2012/2015 policies illusory but nonetheless compelled arbitration based on the 2016 policy without first determining whether plaintiffs had agreed to that 2016 policy.
The district court relied on Rent-A-Center, reasoning that because Fedor did not specifically challenge the 2016 delegation clause, the delegation clause had to be treated as valid and an arbitrator should decide arbitrability.
The Tenth Circuit vacated and remanded, holding that questions of whether an arbitration agreement was formed must be decided by a court (not an arbitrator), even when a delegation clause exists and even if the delegation clause was not specifically challenged below.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Who decides whether the 2016 arbitration agreement was formed?	Fedor: formation is a gateway issue for the court and must be decided by the court (she never saw/signed the 2016 policy).	UHC: because Fedor didn’t specifically challenge the delegation clause, the delegation clause is valid and arbitrator should decide arbitrability.	Court: formation questions must be decided by a court; a delegation clause cannot be enforced where no agreement was formed.
Was Fedor’s challenge to formation waived or forfeited?	Fedor: she preserved the argument below by asserting she never signed/read the 2016 policy.	UHC: Fedor failed to substantively raise formation or specifically challenge the delegation clause.	Court: Fedor preserved the formation challenge; no waiver.
May the appellate court affirm on alternate grounds (e.g., prior policies were valid or plaintiffs implicitly agreed) without a cross-appeal by UHC?	—	UHC: asks affirmance on those alternate grounds.	Court: cannot affirm on grounds that would enlarge UHC’s rights absent a cross-appeal; declines to review those alternate arguments.

Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63 (2010) (delegation clauses generally enforceable unless specifically challenged; doctrine of severability)
Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287 (2010) (courts must resolve whether an arbitration clause was formed before ordering arbitration)
Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440 (2006) (severability permits courts to enforce arbitration clauses separate from contract challenges to the whole agreement)
Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395 (1967) (fraud-in-the-inducement claims directed at entire contract do not automatically prevent enforcement of arbitration clause)
First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995) (parties must clearly and unmistakably agree to arbitrate arbitrability)
Tesone v. Empire Marketing Strategies, 942 F.3d 979 (10th Cir. 2019) (issue preservation when lower court applied relevant law to facts)
Housing Authority of Kaw Tribe v. City of Ponca City, 952 F.2d 1183 (10th Cir. 1991) (cross-appeal required where affirmance would enlarge appellee’s rights)
United States v. Madrid, 633 F.3d 1222 (10th Cir. 2011) (same principle on cross-appeal requirement)