Tantaros v. Fox News Network, LLC
12 F.4th 135
| 2d Cir. | 2021Background
- Andrea Tantaros, a former Fox News commentator, sued Fox and certain executives alleging sexual harassment, hostile work environment, and retaliation; her employment contract contained a mandatory arbitration clause.
- Fox initiated arbitration against Tantaros for an alleged contract breach; Tantaros then filed in New York state court seeking to enjoin arbitration under N.Y. C.P.L.R. § 7515.
- New York enacted C.P.L.R. § 7515 (Apr. 2018), which (as amended Oct. 2019) voids mandatory arbitration clauses for discrimination/sexual-harassment claims “except where inconsistent with federal law.”
- Defendants removed the § 7515 action to federal court, arguing the claim necessarily raises the federal question whether the Federal Arbitration Act (FAA) preempts § 7515; Tantaros moved to remand.
- The district court denied remand relying on the Grable/Gunn federal-question test; the Second Circuit affirmed, holding § 7515’s “except where inconsistent with federal law” phrase makes FAA-consistency a necessary, substantial federal issue properly heard in federal court.
- Judge Wesley dissented, arguing the question whether § 7515 requires plaintiffs to plead consistency with federal law is unsettled New York law better suited for certification to the New York Court of Appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the § 7515 claim “necessarily raises” a federal issue for removal | The federal preemption question is an anticipated defense, not an essential element of the plaintiff’s state-law claim | § 7515’s text (“except where inconsistent with federal law”) makes federal-consistency an element the plaintiff must plead, so the federal issue is necessarily raised | The court held the federal issue is necessarily raised because the statutory exception is an essential element of a § 7515 claim |
| Whether the federal issue is “substantial” to the federal system | Issue is not substantial and is mainly of state concern | Preemption of § 7515 by the FAA is a pure federal-law question implicating national arbitration policy and uniformity | The court held the FAA-preemption question is substantial and affects the federal system as a whole |
| Whether resolution in federal court would upset the federal-state balance | Federal adjudication would intrude on state law matters and certification to state high court is preferable | Federal courts are appropriate for significant federal-law questions about the FAA; state courts also play a role but concurrent jurisdiction is normal | The court held federal resolution would not disrupt the balance and federal forum is appropriate |
| Whether the question should be certified to New York Court of Appeals | Certification is warranted because the meaning of § 7515 is an unsettled question of New York law | No certification needed: statute’s text and legislative history answer the interpretive question | The majority declined certification; the dissent would have certified the question |
Key Cases Cited
- Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308 (2005) (establishes federal-question removal test for state claims that necessarily raise substantial federal issues)
- Gunn v. Minton, 568 U.S. 251 (2013) (refines Grable factors for federal-question jurisdiction)
- AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011) (articulates FAA’s national policy favoring arbitration; preemption of conflicting state rules)
- Vaden v. Discover Bank, 556 U.S. 49 (2009) (discusses concurrent federal-state enforcement role under the FAA)
- Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983) (federal policy favoring arbitration; federal courts may vindicate FAA policy)
- Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677 (2006) (addresses when a state-law cause of action presents a substantial federal issue)