MEMORANDUM & ORDER
In thе wake of the District Court’s most recent decision reaffirming its earlier denial of defendant’s motion to compel arbitration of the putative class representative’s wages-and-hours claim (see Op. & Order dated Jan. 13, 2012), defendant Ernst & Young has moved to stay all proceedings in this case during the pendency of its appеal of that ruling. Plaintiff opposes. For the reasons that follow, the motion is granted in part.
The determination whether to enter a stay pending an interlocutory appeal is within the discretion of the District Court. Nken v. Holder,
The first two questions — addressing likely success and irreparable harm to the movant — are the most salient concerns. Id. We accordingly address those first.
Defendant asserts that it is likely to prevail on appeal, but offers little basis to justify this contention. The governing standard, as most recently elucidated by the Second Circuit in In re American Express Merchants’ Litig.,
Defendant argues that it will prevail on appeal primarily because plaintiff has not made a sufficiently clear showing of unfeasibility in view of the assertedly rigorous standard recognized in the American Express decision. We need not rehash the reasoning of the District Court in denying reargument to defendant on its motion to compel arbitration. That decision suffices to demonstrate the basis for our conclusion, in agreement with Judge Wood, that plaintiffs proffer on the issue of financial unfeasibility was more than adequate. 0See Jan. 13, 2012 Op. & Order at 4-6).
Defendant alternatively suggests thаt it will likely prevail because the Second Circuit’s American Express decision will probably not survive Supreme Court scrutiny or, perhaps, en banc review.
All of this said, we also do not conclude that defendant’s appeal is necessarily futile, that is, that it fails potentially to raise substantial issues. In this respect it is fair to note that the proffer made by plaintiff to demonstrate non-class unfeasibility is not as overwhelming as that presented in American Express.
In short, we determine that defendant has a non-frivolous appeal, but one that is fraught with problems in light of governing precedent and the state of the record. At best, then, it raises issues that are potentially substantial but hardly promising.
As fоr defendant’s assertion of irreparable harm, it amounts to the argument that, absent a stay, “Ernst and Young will be deprived of the arbitral forum for which it bargained, and will be forced to spend substantial time and resources opposing class certification, and, if a class is certified, litigating a clаss action”, thus depriving it of its bargained-for guarantee of “arbitration of individual claims only.” (Def.’s Stay Mem. of Law at 19). Although plaintiff notes that if defendant prevails on its arbitration argument, it will be afforded that remedy regardless of what occurs in the trial court, defendant responds that such a result would nоnetheless deny it “the advantages of arbitration — speed and economy.” (Def.’s Reply Mem. of Law at 8 (quoting Alascom, Inc. v. ITT North Elec. Co.,
This argument requires some parsing. There is no dispute that one motive for resorting to arbitration is that it is generally assumed to be a speedier and less expensive alternative compared to civil litigation in the courts. See AT & T Mobility v. Concepcion, — U.S. -,
Ultimately, then, dеfendant’s claim of irreparable harm reduces to the assertion that allowing court proceedings to continue during the pendency of its appeal will cost it money and what its counsel referred to at oral argument as “disruption”. (Tr. 27). In response, plaintiff relies heavily on a sеt of decisions that have held in various settings that the expense of litigation is not, in itself, irreparable harm for injunctive purposes. (See Pl.’s Opp’n at 10-11 (citing Emery Air Freight Corp. v. Local Union 295,
We are not persuaded that this aspect of the harm cited by defendant is not cognizable in the current context. None of the cases cited by plaintiff involved denials of arbitration, much less non-class arbitration, and hence they do not directly address defendant’s point — that failure to grant a stay may irrevocably deprive it of at least a portion of that which it unquestionably bargained for, a proceeding designed (at least in theory if not always in practice) to avoid the far greater expenses and other burdens attendant on class litigation (or even class-wide arbitration). We view that potential loss as at least cognizable, regardless of how we view its severity. See, e.g., Alascom, Inc.,
As for plaintiffs potential harm from the granting оf a stay, it appears to be less than overwhelming and fully reparable. As her counsel candidly conceded at oral argument, the only harm to her from a stay is delay in achieving a final resolution of her claim, and that harm may be fully remedied by an award of pre-judgment interest. (Tr. 58-59). It bears еmphasis in this respect that plaintiff is not contending that the delay in receiving an award will cause her additional practical harm, as might be the case if she were currently in extremely ' straitened financial circum
Since defendant demonstrates only serious issues going to the merits, we are required to compare the parties’ respective claimed harms that would flow from the granting or denial of a stay. Given the paucity of the cited harm — none irreparable — to plaintiff and the cognizable, if arguably limited, irreparable harm to defendant, we view the injury to defеndant of the loss of a significant part of the benefit of its bargain as notably outweighing the frustration to plaintiff of a delayed resolution of her claims.
That still leaves us with the consideration of the public interest. Both the FAA and the FLSA can be viewed as freighted with public-policy consideratiоns, and deserving of enforcement to the extent that they do not conflict. How to resolve that question, however, is a matter now for the appellate courts that will review the District Court’s decision. We discern, however, two policy concerns worthy of our attention in the presеnt context. First, considerations of judicial economy counsel, as a general matter, against investment of court resources in proceedings that may prove to have been unnecessary. See, e.g., Payne v. Jumeirah Hosp. & Leisure (USA) Inc.,
Given these considerations, we conclude that the optimal resolution here is to stay discovery in this case pending resolution of defendant’s appeal
Notes
. An additional reason to question defendant's prospects on appeal is the recent decision of the National Labor Relations Board to the effect that imposing a non-class arbitration provision in a lаbor contract violates section 7 of the National Labor Relations Act and is unenforceable under the Norris-Laguardia Act. D.R. Horton, Inc. and Michael Cuda, NLRB Case No. 12-CA-25764 at 4, 5,
. We were advised at oral argument that defendants in American Express had requested en banc reconsideration of the panel’s decision. (Feb. 27, 2012 Tr. 5).
. In Green Tree the High Court recognized that a non-class arbitration agreement could be set аside if its implementation would be unfeasible for a party who is seeking to assert a federal statutory claim. As defendant notes, the Court there focused on the financial burden imposed by costs unique to the arbitral
. In American Express, the plaintiffs offered evidence that the cost of hiring an expert by an individual plaintiff in arbitration would likely range from several hundred thousand dollars to over $1 million. See American Express,
. Defendant's point takes its significance from the fact that, even if plaintiff prevаiled in arbitration, she would not necessarily be entitled to an award of expert fees. (See, e.g., Jan. 13, 2012 Op. & Order at 4-5) (noting that expert fees may be "largely not compensable because 'when a prevailing party seeks reimbursement for fees paid to its own expert witnesses, a federal court is bound by the limit of 28 U.S.C. § 1821(b),’ which is currently $40 per day.”) (quoting Italian Colors Rest. v. Am. Express Travel Related Servs. Co.,
. Plaintiff’s counsel did not suggest that delay for the class would separately cause harm. Also we note that defendant has agreed to waive the running of the statute of limitations for all class members for thе period during which the arbitration issue is pending. (See Def.’s Stay Mem. of Law at 3).
. As we understand the matter, the only basis for the District Court's denial of arbitration is that it must be a non-class individual proceeding. If a class were not certified here, that rationale would no longer apply.
. We note that defendant has declined to produce documents in this case, apparently in anticipation of a stay until resolution of the arbitration question, but that plaintiff has obtained a quantity of relevant documents produced by Ernst & Young in a parallel California lawsuit.
. From oral argument we understand that defendant's initial appellate brief is due some time in April, but with a fairly loose schedule for subsequent briefing. We are not certain that the circuit court will grant a tighter schedule if asked, but defendant must make that request as the cost of its stay.
. In the event that the court certifies a class and the appeal is still pending, defendant will be free to seek a' stay of implementation of that order.