*1 ROSENBERG, M. Susan

Plaintiff, Appellee, LYNCH, PIERCE,

MERRILL FENNER SMITH, Wyllys,

& INC. and John

Defendants, Appellants.

No. 98-1246. Appeals,

United States Court of

First Circuit. July

Heard

Decided Feb.

McGuinn, Palefsky & Hillsman on brief for amici curiae Employment National Lawyers Association, Legal NOW Defense and Edu- Fund, cation Center, National Women’s Law *3 and National- Partnership for Women and Families. Brooks,

Russell E. Stacey J. Rappaport, Milbank, Tweed, and Hadley McCloy & on for brief amicus curiae New York Stock Ex- change, Inc.

Jody Forchheimer, E. Rinchelle S. Kenne- dy, Bingham and Dana LLP brief on for amicus curiae The Industry Securities Asso- ciation.

Susan Von Struensee on for brief amicus curiae Susan Von Struensee. Dinkoff, Allan Christopher with whom P. Sydelle Pittas and Koenig Pittas on brief Litterio, Weiner, Barry Y. Shapiro, Israel & for amicus The Women’s Bar Associa- curiae.

Weiner, P.C., Dichter, Joseph Mark K. J. (of Massachusetts). Costello, Marifrances Dant Bolger, and Mor- Lewis, gan, brief, & Bockius LLP on were BOUDIN, Before Judge, Circuit appellants. for WELLFORD, Senior Judge,* Circuit and LYNCH, Judge. Circuit Redlieh, Marc with whom Merle Ruth Hass, Redlieh, Law Offices of Marc and LYNCH, Judge Circuit Judge. Circuit brief, Richard P. Goodkin were on for appel- lees. question Congress raised is whether prohibit intended to enforcement of pre-dis- Sally Dunaway, Cathy Ventrell-Monsees, pute covering em- AARP Litigation, Foundation G. Ra- Melvin ployment discrimination claims under Title dowitz, and American Association of Retired VII and the Age Employ- Discrimination in Persons on brief for amicus curiae American ment Act as a matter of law in cases or at all Association of Retired Persons. least under certain present facts said Roche, Eigerman, Joel Z. Carens & DeGia- Every here. circuit that has considered the como, P.C., Jeffrey and M. Friedman on upheld issue save one the use of such brief for amicus curiae American Jewish agreements. here, The case in which the Congress. district court compel plaintiff refused to Quinn Gery, Erin Reesman, Ann Elizabeth arbitrate such claims when employer Williams, Bokat, McGuiness & Stephen A. wished to arbitrate under a Conrad, Mahallati, Robin S. Sussan L. and agreement, has also drawn much attention in Center, National Litigation Chamber Inc. on the form of nine briefs amici curiae. brief for curiae Equal Employment amici plaintiff, Susan Rosenberg, signed a Advisory and The Council Chamber Com- form, industry standard securities the “U-4 merce of the United States. Form,” agreeing arbitrate certain claims Gregory, Robert J. Gregory C. whom being Pierce, after hired Lynch, Stewart, Sklover, Philip B. Lorraine C. & Fenner Smith as a trainee financial consul- brief, Davis were on Equal amicus curiae tant. The itself form did not state which Employment Opportunity Commission. arbitrated, claims were to be rather re- but Rubin, Altshuler, Berzon, Michael Nuss- to the organizations ferred rules various baum, Rubin, Berzon Palefsky, & Cliff and with which Rosenberg registering. was * Of Appeals, the Sixth sitting by Court of designation. Circuit terminated, undisputed material essential facts was later her

When should, necessary, age gender court if resolve alleging that this Rosenberg filed suit claims. Merrill not resolved the district court: and related an issue discrimination parties’ agreement met the to enforce whether the stan- Lynch moved system enforcing the arbitration CRA for set forth in the 1991 compel arbitration dard Exchange. Stock appropriate York clauses “where of the New hold, law.” We the extent authorized bias found no actual The district this standard presented, facts was Nonetheless, arbitral forum. the NYSE met, compel the motion to and thus that tension between the by perceived troubled properly denied. favoring of civil vindication policies federal arbitration, favoring rights and those *4 compel. to In a the

court denied motion I based its rea- thoughtful opinion, the court Rosenberg, prior experience whose had first, that the 1991 soning grounds: two on engineering, accounting product and been CRA”) (“1991 amendments Rights Act Civil January by on was hired Merrill pre- preclude enforcement to Title VII years forty-five old and 1992. She was held agreements concerning dispute arbitration degree accounting. a Bachelor of Science second, claims,1 the discrimination experience in the securities in- She had no involved, by the rules of up set arbitral forum dustry Lynch’s when she entered NYSE, adequate an forum the was not due twenty-four training program for fi- month the court called “structural to what district consultants. nancial Pierce, Lynch, Rosenberg v. Merrill bias.” Smith, Inc., 190, 203, Rosenberg required to fill out a was stan- Fenner & (D.Mass.1998). registration generally required form dardized industry. employees securities agree that the motion In the end we to form, Application That Uniform Secu- on the facts of compel properly denied was Transfer, Industry Registration or rities case, for reasons different particular but Form, commonly referred to as the U-4 in- by the district than those advanced court. following language cluded ground the first relied dis- As to heading MUST “THE APPLICANT READ court, hold a matter of law that trict we as THE VERY CAREFULLY”: FOLLOWING agree- pre-dispute arbitration application of any agree dispute, to arbitrate claim or I arising under ments to federal claims Title controversy may arise between me precluded the ADEA not VII and is firm, customer, my any or other or Protection Act Older Benefit Workers person, required to be (“OWBPA”) arbitrated to the ADEA or amendments rules, constitutions, by-laws under the or by the 1991 CRA Title as As VII amended organizations indicated in Item 10 ground, the district to the second we disavow may be amended from time to time is not court’s conclusion that any award rendered bias” in enforceable due to “structural against me be entered as a forum, judge- a conclusion that NYSE arbitral any competent jurisdic- ment court of and fact. based on errors law We tion. showing of actual that there has been no bias and that a refusal

in the forum selected to Item 10 included for various securities boxes grant compel a motion to arbitration there- jurisdictions organizations and with which ground. may not be on that fore based might registered. On applicant be Rosen- CBOE, ASE, berg’s form the marked conclude that there is an boxes We nonetheless NASD, NYSE, signi- and MA were independent ground requiring affirmance checked — Exchange, Chicago compel fying the American Stock denying motion arbi- order agreed Exchange, National Association of parties have Board tration. The decision, employer, perhaps out of a desire to tant save of the court’s 1. Under the rationale preserve privacy, money pre- and time or plaintiff employee wished enforce who doing so. against precluded dispute agreement a reluc- also to arbitrate Dealers, Wyllys New York Stock Ex- met with perfor- Securities discuss her work ASE, change, Wyllys and Massachusetts. mance. suggested she tender her NASD, apparently- resignation, saying and NYSE boxes were up that her work was not January prior 1992. expected checked on day levels. The next and MA boxes checked Wyllys The CBOE were called to invite him to have dinner January January between 10 and her, sometime her discuss his evaluation of Rosenberg’s supervisor, Wyllys, John accepted he April the invitation on 27. At January dinner, signed the form on but Rosen- Rosenberg said she resign. would not berg sign January the form until did Her was terminated within although form days. was back-dated to 24— January memory no form,

reading signing although she II hers, signature admits that and she July In Rosenberg filed an adminis- says she not herself check did complaint trative with the Massachusetts Wyllys in turn boxes. certified that Rosen- Against Commission Discrimination berg familiar applicable would be with the (“MCAD”) alleging age gender discrimi- rules, rules, including the at the time NYSE nation. October the MCAD found *5 approval of her U-4 Form. That certifica- probable later, no year cause. One Rosen- tion was untrue. berg brought suit in state asserting Rosenberg says that given she was not a claims,against and tort discrimination Merrill rules, copy any of the or amendments to the Lynch Wyllys.2 and John The defendants rules, NYSE, NASD, any of the or removed the case to federal court. organizations other referred to in Item 10 of Lynch Merrill does dispute U-4. Lynch Merrill compel moved to arbitration claim. stay and to pending the matter arbitration. Lynch originally Merrill to compel moved 5, 1992, May Rosenberg given On was arbitration in accordance with the rules of Consultant, title of Financial and she worked NASD, Lynch argued which Merrill re- Lynch May for Merrill until when quired claim, any arbitration “of dispute, employment her by was terminated John controversy ... arising employ- out of the Wyllys. given The reason for the termi- ment or employment termination of of associ- inadequate performance. nation was person(s) any ated member [of Rosenberg alleges performed that she bet- Manual, NASD NASD].” Code of Arbitration ter than at least four male during consultants 1996). Procedure (July Rule 10101 Rosen- tenure, two-year she, her but that and not berg contended that this was not in them, any was terminated in mid-1994. U-4, signed force at the time she and says She among also that those with two that the NASD rules effect at that time years of tenure her office she only was the apply employment did not Merrill claims. age forty. consultant who was over Lynch disputed this, argued and that subse- Rosenberg alleges also that on March quent applied modifications the rules .of termination, a few months before her Rosenberg, given the U-4’s reference to Wyllys sexually John by her harassed acti- “may rules that be amended from time to vating handing and phallus-shaped her a Lynch argued time.” Merrill also that re- vibrator when she went into his office to gardless of whether the NASD re- rules obtain a (Wyllys document. denies this and quired the employment arbitration of dis- says only unusual apparatus electrical putes, clearly require NYSE Rules did buster.”) his office a Rosenberg was “stress Rosenberg’s arbitration of claim. The dis- did not file a complaint internally harassment court, however, trict only the discussed Lynch. with Merrill Lynch’s, arguments NYSE rules. Merrill April On allegedly the next similarly time this court have focused on the 1994— Wyllys spoke Rosenberg NYSE rules. — Lynch.” Both defendants bewill referred to as "Merrill distinguish the attempted 212. The court the time rules at The NYSE of all required arbitration Court’s decision brought her claim pre-dispute Rule 347 stated: employment disputes. had held valid by signed Form a securities clause in a U-4 registered rep- controversy between a Any industry employee compelled any or mem- member resentative The district court rea- arising out of the of an ADEA claim. organization ber VII, employ- termination of that in Title in contrast to employment or soned first registered representa- ADEA, Congress such ment of intended clauses, second, by with such member tive shall be settled organization member provided as a factual matter the NYSE arbitration, at the instance of inadequate an arbitral forum vindicate with the party, in accordance such Rosenberg’s Title and ADEA claims. VII procedure prescribed else- inadequate, the court con- The forum was in these rules. where cluded, because of “the extent to which the system NYSE arbitration is dominated explained one to Rosen- NYSE R. 347. No is, industry, the securities em- Form to arbi- berg that the U-4 ployment dispute.” side of this Id. at 207. signed encompassed em- trate that she had analysis The heart of the court’s was its might she have with her ployment disputes identity there given copy conclusion was close employer. Merrill She NYSE, handbook, and the Lynch’s between “voluminous” argument process, that the handbook the NYSE dominated the arbitral but there is no disputes process are to be and that the therefore favored Mer- states Lynch. Specifically, arbitrated. rill the district court Arbitration, the Director of found Rosenberg also said an affidavit that if *6 NYSE, employee appoints panel of the informed that her to she had been pools. pools, arbitrators various Those any poten- claims included arbitrate certain arbitrators,” including pool “public are discrimination claims she employment tial by appointed recommended and the Chair- questions might would have raised man of the NYSE Board. The Director of Lynch sought advice. Merrill re- outside his Arbitration and staff also decide some signing of these forms is an sponded that the pre-hearing procedural matters. See id. employment, or at absolute condition least 210-11. The court was concerned with such was at that time. by employees, involvement NYSE because it initially opin issued an The district Lynch helps govern found that “Merrill ... stay deferring ion decision on the motion to Id. at the NYSE.” district court briefing ordering “additional and discov considered that these deficiencies were not ery legal application issues —the on certain by allowing party cured a rule each to use Corp., Lane [v. Gilmer Interstate/Johnson challenge peremptory one and unlimited 500 U.S. 114 L.Ed.2d 26 challenges for cause to remove arbitrators (1991)] statutory particular to the schemes panel. from the here, gender at issue discrimination and sex VII, age ual Title harassment under discrimi decision, After the district court’s Merrill ADEA], adequacy nation ... [the Lynch policy requiring abandoned its em of the arbitral scheme in the securities indus ployees employment to arbitrate try age gender to enforce discrimination claims; however, change discrimination claims, legal standard for waiver of the policy applies only to claims filed after judge representa III to an Article 1, 1998, July Rosenberg. and thus not to jury, finally, particular tive circum Pursuant to a class action settlement in Cre stances of in this case.” waiver Pierce, Lynch, min v. Merrill Fenner & Pierce, Smith, Inc., Lynch, Merrill Fenner & (N.D.Ill. Smith, Inc., Sept. No. 96 C (D.Mass.1997). 190, 192 F.Supp. 1998), that, Lynch agreed regard Merrill Form, Later, the U-4 em the district court denied the motion less of claims after compel. Rosenberg, ployees See who file discrimination 1,1998 July bring will be able to changes their those made retroactive and thus Employees with discrimination Rosenberg court. be compelled cannot to arbitrate claims filed before that date still be forum, will her claims in the NYSE arbitral Mer- arbitration, required to their submit claims to Lynch rill may still be compél able to arbitra- required but will not be to do so in the tion in one of the other fora listed on the U- Instead, system. NYSE’s arbitration arbi- including the NASD.3 This is because the organi- will be conducted outside trations change rule will alter NYSE Rules 347 and zations, before arbitrators who are trained in 600 to create exception employment Rosenberg opted law issues. disputes; change the rule has no effect on settlement, out choosing of the instead the U-4 Form. The in this case would issues pursue the case is before this apply court. See with equal force attempt by id. compel arbitration in the Thus, NASD. the case is not moot. proposed

The NYSE has a rule change that will exclude dis Ill scope claims from the crimination of cases to Self-Regulatory Organi arbitrated. Congressional A. Intent In Title VII and zations; Filing Proposed Notice of Rule the OWBPA Changes by the New York Stock Exchange, 1. Title VII and Agreements Arbitration Relating Rules, Inc. to Arbitration 63 Fed. (1998). 52,782 Reg. yet The SEC has Title Rights the Civil VII Act of approve change, but it recently approved CRA, not, amended the 1991 does change in the law, similar NASD’s rules. See as a matter of prohibit pre-dispute arbi Self-Regulatory Organizations; agreements, National As tration contrary holding to the Dealers, Inc.; of Securities sociation Order legal district court. This is a issue Granting Approval Proposed Change which Rule we review de novo. See Bercovitch Relating Employment School, Inc., (1st to the Arbitration of Baldwin 133 F.3d Cir.1998). Claims, 35,299 Fed.Reg. Discrimination (1998). pre-dispute agreements Whether pro- argues pro- the NYSE’s hibited Title question VII is a of whether posed moot; change rule makes this case Congress intended to their use. It *7 say defendants it is not now and will question moot not a of resolving lively cur- not Although become moot. change the rule public policy rent debate about whether use may approved, proposed arbitration, court, rules are rather than a to resolve silent as to whether the rule change claims of discrimination hinders apply retroactively existing claims. The or advances the vindication of basic civil change NASD rule was not rights. retroactive. arguments Good have been on made Even if the NYSE changed rules are both sides of policy this debate.4 The EEOC Lynch 3. has not waived its Repeat Player Effect, Merrill to -com- Employee tion: The &Rts. pel system: (1997); in the NASD Employment Pol’y arbitration arbitration Coving- J. ton, Lynch argued to Employment Merrill the district court that it Arbitration Gilmer: Have After compel States?, could also arbitration in accordance with Labor Courts Come to the United 15 Hofs- rules. (1998). NASD Thus this case moot. Employment tra Lab. St L.J. 345-46 Critics of the use of arbitration in Any arbitration rules claim based on NASD disputes argue discrimination that arbitration by opinion. claim is resolved this procedures inherently against employ- are biased provided any has gave evidence that ees, that arbitrators themselves are not neutral or rules, Rosenberg copy signifi- of the NASD trained, availability are not that reduced of dis- cance of which we discuss later. covery employers, in arbitration favors and that urged parties attempt This to settle may availability limit the of certain light developments. They case in of these remedies, especially punitive damages. See De- reported they that to do so. unable velopments Employment in the Discrimina- Law— Controversy mandatory Mandatory 4. over Statutory Employ- arbitration has Arbitration tion— grown 1670, 1674-75, employers requiring Disputes, as the number of ment Harv. L.Rev. employees (1996). mandatory argue judicial arbitration has 1680-82 Critics also limited, Bingham, Employment increased. review Arbitra- of arbitration awards is due in language between the discouraging find no conflict We policy statement issued VII, amended, purposes of Title agree- pre-dispute the use question congressional arbitration. (July 915.002 Notice No. See EEOC ments. by primarily in this case is resolved intent Excerpts Text: 1997), reprinted Congress chose to looking language at the Binding Employ- Mandatory Rejects EEOC which, CRA, at section use in the 1991 Arbitration, Disp. Resol. J. ment provides: (1997). of arbi- supporters surprisingly, Not [wjhere appropriate and to the extent au- the EEOC statement. tration have criticized law, by the use of alter- thorized Johnstone, A See, & Con: e.g., Oppenheimer resolution, dispute means of native Mandatory Arbi- Management Perspective: arbitration, including ... is en- An Alter- Agreements Are tration Effective couraged disputes to resolve aris- Litigation, Disp. Employment native ing provisions the Acts or (1997). 19,19-20 Resol. J. Federal law amended this title. Gilmer, Supreme Court held 102-166, Rights Act of Pub.L. No. Civil (“FAA”) re- Act the Federal Arbitration (1991). 118,105 1071, 1081 § Stat. quired the enforcement Relying language, on this the district court clause in a U-4 Form mandatory arbitration language legislative found that the histo- signed by Rosenberg. the one identical to ry “unambiguously reject man- of section age claim of discrimination involved a Gilmer datory agreements.” Rosenberg, Court, noting ADEA The brought under the F.Supp. at The court focused in which it had held numerous other contexts language appropriate “where and to the subject statutory could be the extent authorized law.” The court ac- pre-dis- ruled that agreements, passed knowledged Congress the 1991 should be enforced pute arbitration clauses after the deci- amendments Court’s congressional plaintiff could show unless Gilmer, specific but that the sion noted preclude arbitration. See intent to prior was drafted to the Gilmer To 111 S.Ct. 1647. determine 500 U.S. legis- The court concluded that the decision. intent, to look to a courts were directed history lative of the amendments made clear history legislative and to statute’s text that “to the extent authorized law” re- a conflict prior whether there was be- ascertain ferred to the law as it existed to Gil- mer, goals. congressional the statute’s “in- arbitration and and thus evidenced tween mandatory arbitration.” Id. tent See id. many subject dispute. part arbitration decisions matter of the See id. at to the fact that 33; Delikat, Although supra. prefer id. crit- Each side also are not written. See argue compelling confidentiality also arbi- ics of arbitration arbitration because of the and fi- claiming employees discrimination nality Motley, tration denies that comes with arbitration. See *8 judged by jury their claim Compulsory Agreements Employ- Arbitration in peers, most of the criticisms of arbitra- of their Gardner-Denver to Austin: ment Contracts from perceptions regarding how arbi- tion stem from Legal Uncertainty Why Employers The operates practice, rather than from tration in Preemployment Not Should Choose to Use Arbitra- in inherent faults arbitration. 687, Agreements, tion 51 Vand. L.Rev. 714 Johnstone, (1998); Oppenheimer & Con: A Man- arguments also in favor of arbitra- There are Mandatory agement Perspective: Arbitration tion, safeguards especially procedural where are Agreements An Alternative to Are Em- may costly place. be far less than Arbitration Effective 19, ployment Litigation, Disp. 52 Resol. J. 22 (cid:127) litigation disputes quickly. and resolve more See (1997). Delikat, Mandatory Siege The Continues: Arbitra- employ- Claims, may be attractive to Such benefits also Litigating Employment Em- plaintiff employees ap- (PLI ees. Statistics show that ployment Cases 1998 Discrimination likely pear awards in arbitration more obtain Litig. & Admin. Practice Course Handbook Indeed, litigation, H0-001C, 1998). than in albeit with a reduced likeli- Series No. the number receiving large damages. hood of amounts of employment-related cases in the courts has in- Delikat, supra. advocates also past See Arbitration dramatically two decades. creased al., argue may improve employee that arbitration Bompey et See The Attack Arbitration by providing an accessible and fair mech- Employment Disputes, Lab. Law. morale Mediation (1997). Moreover, resolving disputes. Oppenheimer anism for See also Johnstone, expertise supra, at parties allow with & 22. to select arbitrators particular, In that Congress court ruled requiring ment Bercovitch, arbitration.” had intended revisions to be consistent F.3d at Examining ADA, text of the Co., Alexander Gardner-Denver 415 we found that the statute’s language, “far U.S. (1974), 94 S.Ct. 39 L.Ed.2d 147 evidencing from an preclude intention to ar- in which Supreme held bitration, that an only can be interpreted as favoring clause in a collective bargaining it.” Id. at 150. Additionally, language in the agreement did not preclude an employee Report Committee accompanying the 1991 bringing from a Title VII claim in CRA, court. See cited in Rosenberg’s brief as evidence Rosenberg, 995 F.Supp. at 201-04. congressional preclude intent to mandato- ry arbitration, is identical to language in the reviewing In the district legal court’s de- Committee Report accompanying the ADA.5 termination, we have the benefit of having Bercovitch, however, we found that identical construed in the Ameri- legislative history of the ADA did not “rebut cans (“ADA”), with Disabilities Act 42 U.S.C. presumption in favor of arbitration” (1994). § seg. Bercovitch, et by made manifest the clear language of the F.3d at Compare § U.S.C. statute. Id. at 150. We reach the same (ADA) (1991 CRA). with 105 Stat. at 1081 conclusion here. The apparently district court did not consid- er this opinion Bercovitch, court’s Rosenberg and her present amici addition- shortly decided before the district court argument al that Congress intended to pre- issued order refusing its to compel Rosen- clude berg to arbitrate her claims. Bercovitch held the Title VII context.6 For example, Con- plaintiff compelled could be to arbi- gress rejected a proposed amendment to the trate brought under the ADA “where 1991 CRA that have explicitly would permit- the plaintiff had voluntarily signed agree- an ted pre-dispute mandatory agree- Judiciary 5. The House Report, Committee incor- This encourages section the use of alterna- porated by reference into the House Conference tive dispute resolution, means of where appro- Report, discusses the ADA dispute alternative priate to the extent by authorized law. resolution section as follows: These methods include ... arbitration. This encourages section the use of alternative resolution, dispute means of appropri- where however, The emphasizes, Committee ate extent authorized law. These the use dispute of alternative resolution mech- methods include ... arbitration. anisms is intended to supplement, sup- ... The emphasize, Committee wishes to plant, Thus, provided by remedies Title VII. however, that the use of dispute alternative example, for the Committee believes that resolution ment, mechanisms intended supple- agreement to disputed submit issues to arbitra- supplant, provided remedies tion, whether in the context of a collective Thus, this Act. example, the Committee bargaining agreement or in any agreement believes that disputed submit contract, preclude does not person the affected arbitration, issues to whether in the context of seeking from relief under the pro- enforcement bargaining collective agreement or in an visions of Title VII. This view is consistent with contract, does not Supreme interpretation Court’s of Title VII person affected seeking relief under the Co., Alexander v. Gardner-Denver provisions enforcement of this Act. This view is (1974). 39 L.Ed.2d 147 consistent with the interpre- Court’s Committee does not intend for the tation of title inclusion Rights VII of the Civil Act of this section be used to preclude rights [sic] provisions whose remedial incorpo- remedies that rated otherwise be reference available. in title I. Committee *9 H.R.Rep. 102-40(11), (1991), No. believes that approach reprinted the 41 articulated 694, Supreme in 1991 U.S.C.C.A.N. Alexander v. Gardner-Denver applies equally Co. to the ADA and does not intend that the and amicus attempt inclusion of curiae also Section 513 to [the distinguish ADA this section] be case preclude by arguing used to from Bercovitch rights and that remedies that here the would otherwise to be arbitrate was not persons to voluntary. available Although question disabilities. of voluntari- 101-485(III), H.R.Rep. (1990), No. one, important ness is 76-77 re it is not relevant to printed 445, 1990 (foot U.S.C.C.A.N. determining 499-500 Congress whether to pre- intended omitted). note clude mandatory agreements. We Judiciary House Report Committee question consider the of separately voluntariness 1991 similarly CRA states: below. 10 4981, 1994, S. H.R. Act of Protection rejecting the dures majority report

ments, and that “under 2405,103d stated Cong. amendment proposed re- could employers amendment] [proposed held that the have courts circuit Numerous they signed a unless hire workers fuse to applies reasoning in Gilmer Court’s rights all waiving file binding statement pre-dispute and declared and in court to Title VII claims complaints” Title VII forced not be should workers claims are that “American Title VII to arbitrate agreements civil jobs and their their between to choose See, John Nuveen e.g., Seus v. permissible. 102-40(1), at 104 H.R.Rep. No. rights.” Cir.1998), (3d 175, 179, Co., 182-83 F.3d & 146 549, 1991 U.S.C.C.AN. (1991), reprinted — U.S. -, denied, 119 S.Ct. rt. ce addition, Rosenberg and her. amici 642. In (1999); v. 1028, Paladino 38 143 L.Ed.2d 118 “con- that section to a statement point 1054, Techs., Inc., F.3d 134 Computer Avnet voluntary arbitration use templates the (11th Cir.1998); Neighbor Gibson 1062 they aris- after have disputes specific resolve 1126, Inc., Clinics, F.3d 121 Health hood employees force attempts to en, not coercive (7th Cir.1997); v. Tenet Patterson 1130 rights.” 137 statutory forego in advance (8th 832, Inc., Cir. Healthcare, 837 113 F.3d H9505-01, (daily Nov. ed. H9530 Cong. Rec. Edwards). Servs., 1997); 105 v. Burns Int’l Sec. (statement Rep. Cole 7,1991) (D.C.Cir.1997); 1465, Austin 1467-68 F.3d to over- are insufficient statements Such Inc., Container, 78 Owens-Brockway Glass of arbitration in favor presumption come the (4th Cir.1996); 875, v. Merrill amici Metz As other 882 establishes. F.3d which Gilmer Lynch, Smith, Inc., additional of Merrill support Pierce, 39 note in & Lynch, Fenner Congress ex- by members statements (10th Cir.1994); 1482, Willis v. 1487 F.3d section 118 did the view pressed 305, Inc., F.2d Reynolds, Dean Witter 948 Cong. See 137 binding arbitration. (6th Cir.1991); 308, v. Dean Wit- Alford 30, (daily S15,472-01, ed. Oct. Rec. S15.478 (5th Inc., Reynolds, 939 F.2d ter Dole) (“This 1991) (statement provi- of Sen. Cir.1991). has disa- Only the Ninth Circuit means of alternative encourages the use sion below. greed, as described resolution, binding including arbi- dispute knowingly vol- tration, parties and where courts, However, appears, appellate few light In methods. untarily to use these elect precise issue of whether dealt with country facing this and crisis litigation congressional CRA demonstrates reliability increasing sophistication to arbi to ban intent there is reason litigation, no alternatives claims. employment discrimination trate forums.”). Con- of such the use to disfavor Co.,& Stephens v. Robertson Duffield legislation rejected repeatedly gress has — denied, (9th Cir.), U.S. cert. F.3d mandatory agreements bar explicitly would -, 142 L.Ed.2d employment discrimination to arbitrate - -, (1998), Protec- Rights Procedures See Civil claims. (1998) Cong, 105th to en H.R. S. the court refused tion Act L.Ed.2d ADEA VII (proposing to revise Title clause. the U-4 force Form “[notwithstanding Federal to state statement section 118’s found Duffield general applicability that statute ap encouraged “[w]here powers procedures modify any of the the extent propriate and authorized arising claim applicable expressly looked to the ambiguous, and to be thus law” title, shall procedures powers such legislative CRA and purposes procedures ap- powers exclusive meaning. history phrase’s to elucidate claim after to such claim unless such plicable The court concluded id. at 1198. voluntarily into an enters claimant arises the context, history, and text of legislative through claim ar- resolve agreement to such *10 Congress “that 1991 CRA demonstrated Civil procedure”); or another bitration arbitration compulsory preclude intended 1996, of Act Rights Protection Procedures at Id. of VII claims.” 3748, Rights Proce- Title H.R. Civil Cong.; 104th

11 have, discussion, rum, Two courts without held the statute will continue to serve both that the supports 1991 CRA enforcement of its remedial and deterrent function.” Gil pre-dispute agreements mer, Title arbitrate VII 28, (second 500 U.S. at 111 S.Ct. 1647 Patterson, (stat- claims. See 113 F.3d at 837 alteration in original) (quoting Mitsubishi ing arbitrability that “the Title of VII claims Corp. Motors v. Soler Chrysler-Plymouth, support finds in the Rights Inc., Civil Act of 614, 637, U.S. 3346, 473 105 S.Ct. 87 1991”); Austin, (“The 78 F.3d 881 (1985)) at lan- (internal L.Ed.2d 444 quotation guage of the any omitted). statutes could not be more marks Bercovitch held that showing Congressional clear in favor towards “[t]here is no reason to think that the ADA arbitration.”). presents stronger policy against case arbi tration than Bercovitch, [the] ADEA” 133 The interpreted Third Circuit has section F.3d at 150. 118’s reference to “the extent authorized law” to Act, refer to the Federal Arbitration It is why difficult to see the purposes not to case law as it stood at the time Con present Title VII stronger reject case for gress Sens, drafted the 1991 CRA See 146 ing arbitration than do the purposes either F.3d at (disagreeing Duffield, 144 the ADEA the ADA. In finding that was 1194-98). F.3d at Like court in Bercov- plausible “not ... the ... Act would itch, the Third Circuit first looked to the have ... undermined plaintiffs private [a 118, plain meaning of section stating that attorney general] role endorsing private section 118’s endorsement of arbitration mandatory pre-dispute agree “simply ‘interpreted’ cannot be to mean that ments,” Rosenberg, at impliedly FAA repealed with respect district court overlooked Gilmer’s statement to agreements to Title arbitrate VII and public rights may be through enforced ADEA claims that will arise in the future.” arbitration. The district court’s comment Seus, agree. F.3d at 182. We that an endorsement of arbitration would be at odds with the hold We that neither CRA’s creation of a right jury trial, to a legislative 205-06, statute nor the id. history see at similar demon- ly ignores Gilmer’s strates an intent 1991 CRA to endorsement of arbitra under the agreements. ADEA —which also provides Under Gilmer, jury for trials. It remaining question also evince a distrust whether “compulsory arbitration that Supreme arbitration of Court [Title VII] long pursuant to since disavowed. people may While would be reasonably do disagree statutory inconsistent with about pre- whether framework dispute purposes Gilmer, arbitration agreements of’ Title VII. are a wise 500 U.S. way ADEA). resolving claims, 111 S.Ct. (discussing discrimination there is no “inherent conflict” goals district found between the mandatory court arbi- Title goals FAA, VII and the tration be at odds with the as Gil- “structure mer used that phrase. Gilmer, purpose” of the 1991 500 U.S. CRA and with 26, 111 (quoting S.Ct. 1647 CRA’s jury creation to a trial Shearson/Ameri Express, McMahon, can Inc. v. plaintiffs. Title Rosenberg, VII U.S. (1987)) 107 S.Ct. F.Supp. at 96 L.Ed.2d 204-06. (internal omitted). quotation marks Resolving this requires issue determining whether meaningful there is distinction very Court’s recent decision VII, amended, between Title Wright either v. Universal Maritime Service - ADEA, was construed Corp., Su- -, preme ADA, (1998), which L.Ed.2d 361 reinforces this conclu- by this construed Wright Bercovitch. sion. the issue addressed of waiver Gilmer no clash found between judicial of a forum for ADA claims by virtue ADEA, and the purposes of the noting general in- language in bargaining a collective stead that long as prospective (“CBA”). “[s]o liti- The Court did not gant effectively may vindicate [his or her] reach the issue of whether a “clear and un- statutory of action cause in the arbitral fo- mistakable” waiver in a CBA would be en- *11 voluntary. Except knowing and position a on waivers waiver did it take nor

forced: (2), may paragraph waiver provided in bargaining.” collective Id. “in outside areas voluntary knowing and not be considered nothing opinion & n. 2. But at 396-97 law; unless at minimum— good is not still suggests that Gilmer rather, contrary is true. the (C) rights waive the does not individual Agree- OWBPA Arbitration 2. The may claims after the date or that arise ments the waiver is executed[.] Having Congress found that intended 626(f)(1). Rosenberg § her U.S.C. pre-dispute agree preclude argue that the reference “waiver” amici CRA, the court did ments in the 1991 district the U-4 interpreted be to include should Rosenberg’s argu and amici’s not consider that the refer- Form’s clause and independently the ment OWBPA interpreted “right[ should ence to be ]” explicitly pre-dispute makes jury trial on right include the to bench or age agreements inapplicable to discrimina point legislative his- ADEA claims. Amici apparently The district court tion claims. tory Congress partic- suggests issue, stating the felt that controlled Gilmer ularly losing concerned about older workers only “Congress clearly has not ex jury to a trial for ADEA claims. pressed enforcement of its intent However, only language speaks the cited pre-dispute arbitration under the ensuring that older workers are able to ob- Rosenberg, ADEA.” 206. We legal tain and does not mention arbitra- relief that ADEA with the district judicial or of a waiver forum. See subject may 101-263, (1990), S.Rep. reprint- No. at 31-36 agreements, although the issue 1509, 1537-1541; ed in 1990 U.S.C.C.AN. be resolved reference cannot Gilmer (1990), H.R.Rep. No. 101-664 available alone. 200383. WL argue and her amici argues EEOC as amicus curiae OWBPA, which district court did its views OWBPA entitled to ground for analyze, provides alternative recently deference. Yet the issued EEOC’s Lynch’s upholding the of Merrill mo- denial Rights on the rules “Waiver and Claims Congress compel enacted tion to arbitration. Age Employ Under Discrimination Although in 1990. OWBPA ment Act” include no of the discussion defini Congress’s pas- after Court decided Gilmer “claim,” “right” tion of see C.F.R. OWBPA, sage Gilmer involved a con- of the (effective 1998), § July 1625.22 and do not OWBPA, prior to the thus signed tract say that mean “waivers” arbitration clauses. the effect of did not consider the act.7 espoused only We do not defer to views Rosenberg signed her U-4 Form in litigation. the context of See Massachusetts became effective.

well after OWBPA Co., Valley Blackstone Elec. F.3d OWBPA, ADEA As modified (1st Cir.1995). This is true particularly provides: the agency gone through where has rule (1) may any right making conspicuously ignored An individual not waive chapter topic under this unless the its rules. See id.8 or claim did, however, Notwithstanding Age 7. note the "re- of the The Gilmer section 9 Discrimi- (29 Employment nation in § Act of 1967 U.S.C. cently OWBPA. U.S. at 29 enacted” 628), Equal Employment Opportunity was not The OWBPA retro- n. may regula- Commission issue such rules and See Older Workers Benefit Protection active. tions as the Commission consider neces- 101-433, Act, § 104 Stat. No. Pub.L. title, sary carrying appropriate out this 984(1990). title, only and the amendments made Secretary after consultation with the EEOC, agencies, other consultation with Treasury Secretary and the of Labor. Act, 104, promulgate under the § rules authorized Older Workers Benefit Protection provides: Stat. at 981. OWBPA OWBPA. Section 104 *12 Most courts which have considered the preclude pre-dispute agreements. issue interpreted have OWBPA’s reference argues The EEOC that court Duffield “any right” to apply to to rights, suggested substantive that the OWBPA reference to or, rate, any at to the proceed not right “rightfs]” in applies to right judicial to a See, rather However, than e.g., arbitration. forum. court did not Duffield Seus, 181-82; 146 F.3d at issue, Cigna Williams v. consider the merely commenting that Advisors, Inc., 656, (5th Fin. 56 F.3d “current may 660-61 ADEA require different Cir.1995). Courts that treatment” interpreted those the Supreme Court apply OWBPA to considered waivers in Gilmer. substantive See Duffield, 144 F.3d rights have part relied in at 1190 on dicta in n. 5. Gilmer commenting “Congress ... did ex We hold that Congress did not intend to

plicitly preclude nonjudi arbitration or other preclude pre-dispute agreements claims, cial resolution of even its recent when it enacted the OWBPA. Other circuits Gilmer, amendments to ADEA.” 500 U.S. have noted that: 1647; at Seus, see at F.3d enacting OWBPA, [i]n Congress’ pri- 181-82; Cigna Advisors, Fin. 56 F.3d at mary concern was with releases and volun- (“There 660-61 is no that Congress indication tary separation agreements in which em- intended the OWBPA to affect ployees were forced to waive their arbitrate disputes.”). The re rights.... [T]he protects OWBPA Wright cent decision reaffirms what was said against the waiver of a right claim, in Gilmer: that an employee’s statutory against the waiver judicial of a forum.... right judicial to a forum for claims of employ recognize We Congress, through ment discrimination “is not a substantive OWBPA, protected terminated em- right.” Wright, 119 S.Ct. at 396. ployees who waive their rights substantive Rosenberg and her point amici to the Su under ADEA in exchange for more fa- preme Court’s decision Oubre v. Entergy vorable severance package; however, we Operations, Inc., 522 U.S. 118 S.Ct. find no clear indication Congress (1998), 139 L.Ed.2d 849 in which the Court likewise concerned with protecting employ- commented that “[t]he implements OWBPA ees who to arbitrate may claims that Congress’ policy strict, avia unqualified stat during arise the course of their employ- utory waivers, stricture on and we are bound ment. to take Congress at its word.” Id. at 841. Seus, (alterations 146 F.3d at 181 original) These comments are not particularly rele (quoting Cigna Advisors, Inc., Fin. 56 F.3d vant they here because go do not to the issue 660-61) (internal quotation marks omit- of whether the term “waiver” was meant to ted). Nothing in the language history apply to agreements. the OWBPA shows an intent impliedly to Indeed, while Oubre did not consider wheth repeal the FAA for Congress such claims. er the OWBPA applies waivers of proce certainly may act to arbitration, but dural as well as rights, substantive the Court its failure to clearly do so here means there did state that the OWBPA “is clear: An nowas such intent. ” employee ‘may not waive’ any ADEA claim To interpret the OWBPA’s reference to 626(f) unless requirements §of are satis “right” to procedural include rights —and added). fied. (emphasis Id. To the degree judicial to a forum particular —would has any here, Oubre relevance the refer ignore be to repeated Court’s ence to “claim” suggests waiver statements that judicial arbitral and fora are provisions refer to substantive claims. A both give able to effect to the policies substantive claim ADEA presented underlie legislation. party A agrees who in an judicial arbitral or a forum. See Gil arbitrate “does not forgo the substantive mer, 500 U.S. at 111 S.Ct. 1647. rights statute; afforded only sub- Neither Rosenberg nor amicus curiae the mits to their arbitral, resolution in an rather EEOC points court that has held that judicial, than forum.” 500 U.S. at the OWBPA evinces congressional intent to 111 S.Ct. 1647 (quoting Mitsubishi, 473 3346) (internal inadequate ensure fair quota- procedures were *13 omitted). adjudication Rosenberg, 995 of her claims. Interpreting the OWB-

tion marks conclusion, reaching In agree- at 206. this pre-dispute arbitration PA to however, gen- engaged in a the the district court presumption run afoul of ments would pre- inquiry of adequate a fair eralized the sort Gilmer provides that arbitration particular, the court found that enforcing statutory rights. cludes. In for mechanism system is dominated “the NYSE arbitration industry.” Id. at 207. This the securities Exchange’s Arbi- The New York B. Stock First, findings. two conclusion was based on System tration Lynch the district court found that Merrill Congress, in finding In to addition NYSE, was a member firm of the and that CRA, clearly preclud- had enacting the 1991 “‘govern’ the NYSE’s member firms the arbitrate, agreements to the ed part self-regulating [its] of [NYSE] ground court found an additional district Id. scheme.” it de- refusing compel arbitration: what explicitly found The district court bias” in the NYSE’s scribed as “structural bias, there was no conclusive evidence The found that procedures. arbitration court manner NYSE arbitra- either in the in which process the arbitration was “inade- NYSE makeup in the tions are conducted or the Rosenberg’s quate to vindicate ADEA and pre- panels. arbitration Limited evidence rights.” Rosenberg, F.Supp. at Title VII that, anything, suggests sented in this case if conclusion, reaching 212. In this the district likely more to win awards in women are types court two of errors. committed brought through arbi- discrimination claims First, misinterpret the court district they brought tration in claims in than are post-Gilmer the for chal ed window available court. in this case also Evidence submitted lenges specific arbitral forum. The dis shows that in most discrimination cases trict found' actual in court no bias the brought proce- NYSE’s arbitration system, but nevertheless NYSE’s dures, at least one of the arbitrators is a alleged compel refused to arbitration due to taken number of woman. The NYSE has showing Absent structural infirmities. steps Gilmer—including since the decision in actual bias—and we with the district training law and arbitrators showing court there no such expanding pool its make of arbitrators—to required the court case—Gilmer district system fairer than that which the Gilmer Second, compel arbitration. the district Court endorsed. description court erred in its of the NYSE’s Second, the court found that “[f]rom procedures. procedure, through govern rules that arbitral Gilmer, the Court noted that “the arbitrators, of the to the selection details provide protec- NYSE ... arbitration rules system discovery practice, is dominat- against panels,” tions biased and held that ed the NYSE Id. at 210. For itself.” plaintiff Gilmer had not shown actual bias. instance, [of “the Chairman of Board Gilmer, See at S.Ct. 1647. appoints the arbi- NYSE] recommends and rejected arguments The Court that arbitra- pools tration individual arbitra- inappropriate tion was for ADEA claims due chosen, including the pool tors are non- discovery lack to limitations arbitrators,” industry ‘public’ securities 31-32, opinions. id. at written See selects the NYSE’s Director of Arbitration However, Gilmer also noted that fu- any replace- “the initial panel entire plaintiffs might ture be able demonstrate ments.” Id. The court concluded district “procedural specific ... inadequacies system by arbitral of an “[d]ominance Gilmer, at cases.” 500 U.S. dispute comport one side does any regard- impartiality,” model of arbitral “Rosenberg “competence or fairness of individ- district court found that less challenge” participate ual who [in] risen to the Court’s arbitrators system.” NYSE Id. at 211. demonstrate that the NYSE arbitration noted, misinterpreted certain mer NYSE’s protect The district own rules regarding against the structure NYSE’s panels. facts biased See 500 U.S. system. In particular, the court 111 S.Ct. 1647. Panel members Lynch’s both Merrill role miseharacterized required possible disclose conflicts proce NYSE and NYSE interest, system and the designed en- court stated dures. district sure that employee no Merrill could majority of board “in NYSE members were serve as an arbitrator dustry representatives.” n. Id. 22. dispute brought against company. *14 However, representatives of the securities NYSE R. 610. industry actually occupy minority a of seats The district court commented addition, on the NYSE’s board. In “provision NYSE for one peremptory chal- SEC, subject regulation by NYSE is lenge challenges and unlimited for ... cause regulation and such includes NYSE’s ar cannot correct the fundamental imbalance in procedures. bitration system a in which the panel entire initial Express, noted this Shear son/American any replacements appointed by are Di- pos Inc. when it commented that the SEC rector of Rosenberg, Arbitration.” 995 “expansive power ensure sesses the ade However, at 210. the Director of quacy procedures employed of the arbitration NYSE, Arbitration serves the not the securi- by” self-regulating organizations such as the industry. ties Inc., Express, NYSE. Shearson/American 233, 107 482 U.S. at S.Ct. 2332. than Rather Rosenberg’s supporting argue amici being industry, controlled securities NYSE’s arbitration procedures are plays significant role in NYSE a monitor inadequate for Title VII claims because arbi ing disciplining exchange members for statutory trators often refuse to award attor its non-compliance with rules. neys’ plaintiffs charged fees and because are fees, may $3,000 high forum which be as as descrip- The district court also erred its day per per and tens of thousands of dollars specific procedures, tion of includ- Cole, rely case. Amici on ing which the court description pool potential of the of its arbitrators, held that requiring equating ap- and in the NYSE’s plaintiffs pay pointment forum fees in order to appointment of arbitrators with vindi statutory rights impermissible. cate are arbitrators a ex- trade association.9 For Cole, ample, range come a 105 F.3d at 1484-85. arbitrators from or- ganizations backgrounds. disputes First, responses. There are three non-members, between NYSE members and may arbitrators sometimes do undesirable including employment discrimination dis- things in individual cases does not mean the putes, majority “a shall [the arbitrators] system structurally arbitral inadequate. industry, not be from the securities unless Nothing in the choice of arbitration mandates requests panel the ... non-member a con- outcomes, these nor such outcomes nec- sisting majority of at least the securi- essary concomitants the NYSE arbitral industry.” Additionally, ties R. NYSE system. The NYSE rules limit do not avail- provision NYSE Rules pro- include detailed provides able relief. Rule 627 that arbitra- persons industry hibiting with links from may “damages tors award re- other and/or serving public as arbitrators. See Guide- 627(e); Gilmer, R. lief.” NYSE see also 500 Arbitrators, lines for Classification of 32, at 111 U.S. S.Ct. 1647. Exchange Dep’t New York Stock of Arbitra- tion, 33, (Sept.1995). appear Arbitration Rules 33 The second is that it does not may plaintiff Parties NYSE arbitrations to be the usual that a exercise situation peremptory one challenge support chal- asked to bear forum fees. Amici in unlimited lenges cause against arbitrators. As Gil- cite arbitration decisions out, 632, points pool disputes As amicus curiae the NYSE arbitrator used for members, apparently district court confused the among Lynch, NYSE’s such Merrill Arbitration, disputes handles non-members, Board among which Rosenberg. such as exchange, members see NYSE R. Gilmer, pay at issue.” required to ments of the statute’ been plaintiffs (quoting Lynch replies that the record U.S. at n. 111 S.Ct. 1647 costs. thirty- Inc., Express, this claim: in Shear support does son/American 2332). 232, 107 Rosenberg placed in cases S.Ct. three arbitration record, prevailed only plaintiff who one Contrary Rosenberg’s arguments, fees and statutory grounds denied often far more affordable arbitration is possess discretion costs. NYSE arbitrators pursu plaintiffs and defendants alike than is they decide a and fees when to award costs Gilmer, U.S. at ing a in court. claim Cf. U.S. at S.Ct. dispute. Cf. arbi (noting although applica- (stating that “the NYSE rules discovery “procedures might tration relief an types not restrict the

ble here do courts, by as in the federal as extensive award”); Code arbitrator Uniform arbitrate, agreeing party ‘trades Industry § in Securities Arbitration procedures opportunity for review of Report on Arbitration # Conference *15 informality, simplicity, courtroom for the and (June 1996); Con- Securities Indus. 22-24 ” expedition (quoting Mitsubi of arbitration’ Arbitration, The on Arbitrator’s ference 3346)).10 shi, 628, 105 473 U.S. at (Oct.1996) (stating “[gjener- Manual 29 not Gilmer does mandate enforcement ally, parties responsible to arbitration are agreements. all are not Plaintiffs personal costs associated with for their required panels to to take their claims biased action,” bringing defending an arbitration procedures. through biased But the evi- exist, noting exceptions including but dence here establishes no basis to invalidate statutory there is a for attor- where basis the NYSE arbitral scheme. fees); neys’ (stating id. at 111 S.Ct. 1647 although required, they fees are forum IV waived); may be v. see also Kuehner Dickin- Cir.1996) (9th Co.,& 320 son 84 F.3d did not The district court reach “have the (stating that securities arbitrators arguments Rosenberg’s particular that her legal power provide equitable full to U^4 arbitration clause was Form unenforcea statutes). Indeed, remedies available” under ble was an because the contract unconsciona in Cole the D.C. Circuit enforced an arbitra- contract, signing ble or because her adhesion agreement part “under because agreement knowing was not and volun rules, NYSE rules and NASD it is standard tary scope or otherwise not within the practice industry in the securities for em- Rosenberg, Congress’s intention. See 995 ployers pay all to of the arbitrators’ fees.... Rosenberg F.Supp. at 212. these renews Gilmer, the Supreme [I]n Court endorsed a arguments appeal. parties agree on system employees of arbitration in which are that all material facts are before this court required pay for the arbitrator as- and that should resolve issue if we we statutory Cole, signed to hear their claims.” possesses reach it. This the discretion 105 F.3d 1483-84. issues, parties these as the resolve opportunity present argu a their Third, had full if fees unreasonable were be Hamp ments district See imposed particular employee, argu- to the court. New on a Transp. Flynn, shire Ass’n 751 ment that this was Motor inconsistent with (1st Cir.1984). reject F.2d Rosen presented by CRA We employee could Cole, berg’s argument that the U-4 Form was an reviewing 105 F.3d at court. Cf. presented issue contract of adhesion. How That is not this unconscionable ever, said, judicial un “‘although specific presented case. As facts Gilmer on CRA, necessarily scrutiny awards der the of the 1991 we hold limited, Rosenberg compelled to arbi such is sufficient to ensure cannot be review require- comply that arbitrators with the trate her discrimination argu- Rosenberg that a lack of make additional ed the law and written amici follow dispos- regarding alleged inadequacy of review difficult. Gilmer ments decisions makes arguments. U.S. at procedures. particular, es of NYSE's arbitration In these 31-32, they obligat- argue that arbitrators are not 111 S.Ct. 1647. NYSE Lynch.11 question, Our resolution of that the against disputed provisions bearing on so this case has no whatsoever the were onesided to be oppressive.” Id. (quoting enforceability to arbitrate con- Stebok American Gen. &Life Co., addition, Accident Ins. disputes. nothing in sumer (W.D.Pa.), (3d Cir.1989)) aff'd, 888 F.2d enforceability opinion provi- concerns the (internal omitted). quotation marks And sec or the sions the U-4 Form NYSE Rules (Second) tion 211 of the Restatement of Con not related to the tracts states that term in a standardized disputes. discrimination agreement party enforceable one unless “has reason Rosenberg’s Agreement party to believe that the A. Was to Arbi- mani festing ... assent would not so if he trate Because It do knew Invalid Was An Un- the writing contained a particular term.” conscionable Contract Adhesion? (Second) § Restatement of Contracts argue and amici that the (1979); Ltd., see also Waters v. Min should not be enforced (1992) (“Un- Mass. 587 N.E.2d because it is unconscionable and because it is eonseionability must be on determined gross disparity the result of a of bargaining basis, case-by-case with particular attention power. reject arguments, these We to whether challenged provision could frivolous, because long the law has oppression result surprise and unfair imposed heavy who burden those make party disadvantaged and not to allocation arguments such has not met ‘superior of risk because of bargaining pow proof. her burden of *16 ” Zapatha Mart, (quoting Dairy Inc., er.’ v. signing The district court found that 284, 1370, 381 Mass. 408 N.E.2d 1375 prerequisite U-4 Form was employ- a for (1980))). Rosenberg has made no such show broker, ment as a securities and Merrill ing. acknowledged has that it would not addition, Gilmer, stated “employ promote or financial consultants who inequality bargaining that power “is not a sign refuse to Form U-4.” Securities sufficient reason to hold that arbitration industry similarly officials confirmed that fi- agreements are never enforceable em- permitted nancial consultants were not to Gilmer, ployment 33, context.” U.S. at 500 excise the clause from the U-4 Gilmer, all, 111 S.Ct. 1647. after involved argues Rosenberg imposition Form. that the the same U-4 Form arbitration clause at requirement of a such renders the U-4 Form here. showing issue Absent a of fraud or clause invalid as unenforceable oppressive conduct—which does contract of adhesion. allege not occurred—the contract is not un- grounds.12 enforceable on these We Third Circuit that the U-4 Form not arbitration clause is unen- Rosenberg’s Agreement B. Was to Arbi- grounds. Seus, forceable on these 146 trate Appropriate By and Authorized Seus, F.3d at 184. In the court found that Meaning Law Within the 1991 of agreement if the even U-4 Form arbitration CRA? plaintiff were a contract adhesion of meaningful still need to “both a lack of show repeat Rosenberg’s We what U-4 accept provision choice about whether to say. Form said and not U-4 did The Form reject arguments No claim that the 11. is made is We also unen from that the amici compulsory impos because falls arbitration of Title VII claims forceable within the FAA exclu es seamen, an "unreasonable on the to restriction for of sion "contracts of living," earn a and that the SEC's involvement in employees, any railroad or other class of workers approving triggers the NYSE rules unconstitu engaged foreign or interstate commerce." 9 tional conditions doctrine. These claims are ut 1; 2, § U.S.C. 500 U.S. at 25 see also n. terly without merit. See v. National Desiderio (discussing provision); S.Ct. 1647 this 111 Dick Dealers, Inc., 516, F.Supp.2d Ass’n 2 Sec. 519 of 783, duPont, (1st 1971); v. F.2d 785 stein Cir. (S.D.N.Y.1998) (finding & 2n. the NASD is that Estreicher, Agreements Predispute to Arbitrate actor); Lynch, not state Cremin v. Merrill Claims, Statutory Employment 72 N.Y.U. L.Rev. Pierce, Smith, Inc., 1460, Fenner & (1997). 1363-72 (N.D.Ill.1997) (rejecting similar to claims case). those of amici curiae this voluntary and ... was consent ployee’s arbitrate Rosenberg agreed stated knowing. controversy that claim or “any dispute, arbitrated to be n. Gardner-Denver, required is U.S. at ... arise constitutions, by-laws rules, of S.Ct. 10” in Item indicated organizations un- voluntary” “knowing and The added). agreement did (emphasis thinking of arbitration doubtedly comes all arbitrate agreed state Mitsubi- judicial remedies.” of “a waiver agree- dispute. The even disputes, or (emphasis 105 S.Ct. shi, 473 U.S. Rosenberg to arbitrate only required ment of waivers added). commonplace that is It rules, constitu- the NYSE’s any dispute rights, substantive particularly rights, certain organi- (or any of the tion, bylaws those knowing and they only if are enforceable 10) required to in item listed zations similar a standard voluntary. Whether Co. Amer- Ins. Prudential arbitrated. rights Cf. such as applies one Cir.1994) (9th 1299, 1302 Lai, 42 F.3d ica Zerbst, 304 counsel, Johnson right to cf. provi- U-4 Form arbitration (noting that 82 L.Ed. appellants itself bind in and “does not sion judicial of a (1938), apply waivers should It dispute”). any particular to arbitrate open question. is an forum Rosenberg’s execution undisputed noted, this if Circuit As the Seventh employ- her awas condition provision this meant voluntary” standard “knowing and Lynch. with Merrill ment layer protection another add required Rosen- ... in turn whether Rules it is clear “[l]ess then employee, NYSE controversy aris- ... “[a]ny deter- berg arbitrate federal have one’s right to or termination an arbitration than in ing judicially [her] out of rather mined protec- 347. Merrill NYSE R. added for this employment.” qualifies proceeding [her] Rosenberg’s state- Gibson, 1129. On dispute F.3d at Lynch does tion.” copy level heightened received never there is that she ment of whether issue *17 no evidence provided Su- split. are The has the NYSE rules circuits protection of one available the copy directly a made gave her decided it has not preme employment, time of the Rosenberg at the issue. even later. approval, time of NYSE the at adopted a expressly has Circuit Ninth The it Lynch provided evidence has Nor Merrill for such arbitration “knowing” standard required Rosenberg that the clause told even as the standard has described clauses and any employment discrimina- to arbitrate her v. Renteria one. See heightened being a arbi- provided U-4 Had claims. the America, F.3d 113 Co. Ins. Prudential of explicit given notice disputes, or of all tration (9th Cir.1997); at 42 F.3d 1104, 1105-06 Lai subject disputes were any rejected Third has Circuit 1305. The arbitration, little difficul- have had we would Seus, at 146 F.3d standard. heightened agreed to Rosenberg had ty finding that in appears to Eighth Circuit & 2. The n. 183-84 discrimination her arbitrate See Pat- Patterson. the same done have CRA. meaning the 1991 of the claims within The Seventh Circuit terson, at 113 F.3d Gibson, found but the recognized issue CRA, parties the 1991 of the purposes For Gibson, F.3d 121 it. unnecessary to resolve ana- adopted the the district at was agreement the rubric of whether lytical the voluntary” to examine “knowing and this unnecessary to resolve find it alsoWe see, common, usage is This agreement.13 Rather, lan- on the we focus general issue. (dicta), and Bercovitch, F.3d at 151 133 e.g., CRA, the terms 1991 which of the guage Gardner-Denver: from footnote stems appear. voluntary” do not “knowing and language is: operative any of effectiveness determining the extent au- to the appropriate [w]here have to waiver, a court would such ... is en- law, ... arbitration by thorized em- outset that the determine Law, supra, at 1677-78. Developments supra, 1346; Estreicher, 13. Cf. disputes arising Similarly, question under

couraged resolve of scope agreement of an arbitration under [these laws]. just law, FAA is a matter not of of state but 118, § Stat. at 1081. There 1991 CRA general federal arbitration law. See Moses meaning little case law on been Hosp. Mercury H. Cone Mem’l v. Constr. these terms. 1, 24, Corp., 460 U.S. (1983). here, often, L.Ed.2d 765 There is At “to the a minimum words predecessor question whether there by must extent authorized law” mean agreement an at all to arbitrate. See MCI agreements that are arbitration unenforcea Indus., Inc., Corp. Telecomms. v. Exalon ble under FAA also unenforceable Cir.1998). (1st F.3d 428-29 Reference when Title applied to claims under VII and be made principles should to standard FAA, ADEA. Under making contract law such a determination. agreements upon are enforceable “save such See id. at 429-30. We need not resolve here grounds equity as exist at law or in for the whether the “to the extent authorized any § revocation of contract.” U.S.C. 2. In meaning law” clause has a greater than

Mitsubishi, gave example the Court an reference to the FAA. sorts are unenforceable While principles provide background, such under the FAA: the resolution of the case on does turn CRA; them but of the 1991 course, Of courts should remain attuned to is, facts, whether under these the arbi- agreement well-supported claims that Thus, “appropriate.” tration clause was to arbitrate resulted from the sort of fraud implicate any case does not ques- broader power or overwhelming economic enforceability tions of of the arbitration provide grounds “for the revocation clause when 1991 CRA or ADEA are not contract.” involved. Mitsubishi, 473 U.S. at 105 S.Ct. 3346 Rosenberg’s setWe the context. 2). question § (quoting 9 U.S.C. Lynch’s and Merrill agree- FAA whether range itself did define the of claims generally ment is enforceable determined arbitration, subject though even principles reference common-law of Lynch expressly represented that she would general Perry Thomas, applicability. See only advised rules. It referred n. required such claims as were (1987); Corp. Southland L.Ed.2d *18 be arbitrated the NYSE But rules. those 1, 19-20, 852, Keating, 465 U.S. 104 S.Ct. given Rosenberg rules not de were (1984). deciding L.Ed.2d 1 When whether question to her.15 then scribed becomes agreed parties the under the FAA to arbi- party igno should bear the risk of her matter, “generally trate a certain courts ... Congress’s agree rance. Given that concern ordinary apply principles should state-law ments to arbitrate discrimina govern that the formation contracts.” only tion claims should be enforced where Chicago, First Options Kaplan, Inc. 514 “appropriate,” expressed the concern not law, 131 L.Ed.2d Lynch FAA or at common Merrill (1995).14 should, believe, we bear that risk.16 is no that parties explicitly parties provide There contention here the invited the agreed questions briefing discovery” par- an arbitrator should decide "additional and on "the arbitrability; parties the contend that issue the ticular circumstances of in this case.” waiver event, Rosenberg Lynch Rosenberg, is court. for this In did at 192. Merrill clearly agree questions argued giv- Rosenberg not to submit the of arbi- has never either was arbitrator, trability to Rosenberg’s an and so the issue is en or had access to rules. claim the Options, indeed the court. First 514 U.S. that she never the is thus not in received rules 944-45, dispute. at 115 S.Ct. 1920. Lynch argues may argued that we have us a be con- Merrill before 16.It other doctrines of record, law, here, acknowledges complete directly applicable sup- and that it "had tract port placing also argue Lynch. Although opportunity a full the issue risk on Merrill [of validity generally of the contract] below.” The district adhesion contracts are enforceable. Cir.1971) (1st (stating pre- that the with employment agreement of its part As integral an Form “was decessor to the U-4 Lynch required her

Rosenberg, Merrill employ- binding part [the] mutually and The U- of the U-4 Form. agree to the terms employee an arrangement” between Rules, ment Form, the NYSE under prepared house). The NYSE brokerage and a NYSE being asked to exe- requires employees certify Lynch contemplated that Merrill rules given copy of be cute the U-4 Form that, of the time of NYSE at least as the same ef- or information to NYSE rules application, Rosen- Rosenberg’s approval of fect, approval. time of at least including rules berg be “familiar” with contemplated explicitly Form thus U-4 disputes be that all the rules steps Lynch take the neces- Merrill failure, Lynch’s we be- Merrill arbitrated. sary was aware of to ensure that lieve, to enforce the inappropriate makes it The same U-4 Form that the NYSE rules. provision. register Rosenberg signed with NYSE Wyllys by John on behalf of Ra signed holding also is accordance with This Airlines, heading, Lynch. Under “THE Merrill v. American mirez-De-Arellano (1st Cir.1997), Inc., employee THE COMPLETE FOLLOW- FIRM MUST 133 F.3d 89 ING,” suggested stated: this court the U-4 Form handbook case in which that an to “waive the to a belief, my knowledge To the best claims, rights ... judicial forum for civil currently applicant is bonded where employment or continued em exchange for and, approval, the time of will required, ployment, express.” must at be Id. least statute(s), constitu- be familiar with Cyprus Bagdad (quoting 91 n. 2 Nelson tions(s), by-laws agency, rules and Cir.1997), (9th Copper Corp., 119 F.3d 761-62 jurisdiction self-regulatory organization — U.S. -, rt. denied filed, ce 1511, application being is with which (internal (1998)) quota 140 L.Ed.2d 665 registered per- governing the rules omitted); Paladino, tion marks see also sons, fully qualified for the and will be (refusing to enforce the F.3d at application being position for which claims, judge of Title one VII made herein. ground that the of the arbitra follows this Wyllys’ signature statement. notice, provide clause fair tion did Wyllys’ certification was false: Merrill But judges ground that two on the clause copy Lynch provided never with foreclosed Title remedies and VII provided of the rules Merrill hefty required the to bear arbitra claimant Rosenberg familiar with no it made evidence fees). Lynch’s the rules as to arbitration. short, circumstances, these afoul the mutual failure runs understand- requirement compelling “appro would not be ings. Since the arbitration approach priate” Rules and the under the CRA. Our stems from the NYSE U-4 employee close to that taken requires Form “famil- require- Wright. thus There the court declined to man iar the rules with” *19 claims, arbitration of ADA claim date where ment for arbitration Lynch’s judicial inaction under- waiver of forum set forth in a think that Merrill CBA we require- Wright, not “clear unmistakable.” of an arbitration was imposition cuts duPont, sure, Wright be v. 443 F.2d 119 S.Ct. at 396-97. To ment. See Dickstein terms, tice, strictly against being even on its own rather than they construed drafter.” "are 2.2, Practice, ambiguous, non-explicitness § of that Bishop, Massachusetts risk R. 17 (4th ed.1997). Lynch just Lynch as the did not draft should be on Merrill risk Merrill Form, Rosenberg sign ambiguity drafting party. requiring is on the Mastro U-4 but Cf. Hutton, Inc., buono v. Shearson Lehman 514 U.S. as a condition of the U-4 Form 52, 62, (1995) clearly assuming 115 S.Ct. 131 L.Ed.2d 76 Lynch the role of Merrill par- (noting of contract interpretation is rule inter drafting party. rule of "common-law This here, ambiguous pretation that a should construe ticularly where had no relevant language against party negotiate the interest of the ability the terms of to choose even ’ not, however, it”). We decide the agreement. contract drafted do While the the arbitration grounds. put on case on common law contract sufficiently explicit to no- distinguished carefully private ployment disputes available to Rosenberg as agreement agreement from an in the collec- do, it committed itself to it would have been tive bargaining context. id. at 397 n. 2. able to compel Rosenberg to arbitration. There are sound recognize reasons to such This case does not concern the enforceability distinction and a lesser standard than “clear Form U-4 agreements with and unmistakable” applies private agree- customers. Nor it does concern the enforce- ments. See id. at 396. Wright But also ability of employment disputes where the teaches that the “appropriate” language of involved not employment discrimi- CRA, parallels that of the nation claims under the federal civil rights ADA, some teeth: laws.

Our conclusion that a union waiver of em- Affirmed.

ployee rights judicial to a federal forum for employment discrimination claims must be Costs to Rosenberg. dear that, and unmistakable means absent waiver, a clear is not ‘appropriate’ ... WELLFORD, Senior Circuit Judge, find an to arbitrate. concurring part and dissenting in part. Id. at 397 n. 2. In recognizing that “the judidal a federal forum is of sufficient I entirely concur with Judge Lynch’s ex- importance protected,” id. at analysis cellent of the issues in this case and Wright conclusion, leads to think, we opinion in her on those issues out in set Parts there be some minimal level of notice to the I, III, II and which reverse the decision of employee that statutory claims are subject to the district Furthermore, court. I concur in arbitration.17 Part Judge IVA Lynch’s analysis concern- ing whether the contract involved was an V unenforceable, “unconscionable adhesion con- This requires case applying the Supreme tract.” Rosenberg’s agreement to arbitrate holding Court’s in Gilmer to Title as VII invalid, was not and this case is not moot. amended the 1991 CRA and the ADEA as general, I amended OWBPA concur with This case does conclusion not involve v. policies evaluation of the Gilmer in favor Lane Interstate/Johnson against Corp., litigation opposed U.S. arbi- tration. (1991), We hold L.Ed.2d that there was congres- good no still ap law and sional intent to plies to the issues in arbitra- this controversy. The manifested rationale of School, 1991 CRA v. Bercovitch Baldwin or the Inc., (1st OWBPA We also hold F.3d 141 Cir.1998), the evi- is also dence does not support a finding persuasive there is the claims presented by “structural bias” or that NYSE Rosenberg, arbitral as is Co., Seus John Nuveen & rules “procedural (3d create inadequacies” Cir.1998). 146 F.3d suffi- See also Patter cient to be an exception to Gilmer. son v. Healthcare, Inc., Our Tenet 113 F.3d 832 holding (8th here that Cir.1997). Rosenberg cannot be com- I also rejec pelled to arbitrate her claims is limited. As tion of Co., Stephens Robertson & Duffield above, stated had Lynch Merrill — (9th taken the Cir.), F.3d 1182 denied, cert. modest required effort to make -, relevant in- 142 L.Ed.2d 399 formation regarding the arbitrability (1998), of em- as unpersuasive. would, short, I If provided had *20 the rules to Developments Law, But supra, at 1683- cf. Rosenberg them, but she did not read that would (arguing Indeed, standard). a such not save her. Tiffany Sturbridge Camping would be odd an result if the 1991 CRA to were Club, Inc., Mass.App.Ct. 587 N.E.2d be interpreted based on assumption (1992) 240 n. 5 (stating the traditional rule of minorities, women and competent otherwise to contract law that party a to a contract is as- contracts, enter were somehow disabled and in sumed to have read and understood the terms of special need of protections such where the sub- signs). a contract she opinion This also does not ject of the agreement contract was an to arbi- suggest subjective utilization of a standard which trate. focuses on employee what the actually knew. expres- using the Congress, in in this case. reasoning of the reject the Lynch, Judge

like “[wjhere appropriate” is] [arbitration sion this case. court in district de- some threshold intended have well however, respectful in separately, I write employee-em- type termination in Part the conclusions with disagreement to resolution amenable dispute be ployer concerning non-enforce- analysis The IVB.1 Wright in arbitration. not agreement, because parties’ ment of the — U.S. Corp., Maritime Serv. v. Universal under law” and authorized “appropriate (1998), -, L.Ed.2d 361 this diffi- CRA, departure in my point and to appropriate interpreted “[w]here cult case. language of the authorized law” extent cut number facts are a There deciding in single a unit Rights Act as Civil Lynch’s by Judge reached against the result nego- agreement bargaining collective a First, court found the district opinion. not be enforced by a union would tiated mature, a well-educated Rosenberg to be employee under the cir- against affected an began her career she when businesswoman That situation that case. was cumstances Lynch. with Merrill a financial as consultant employee-employ- private different from Second, even discovery this case not was Wright limited agreement er here involved. compel to defendant moved completed before where a labor union holding to the context its agreement and the U-4 statutory rights. a member’s federal waived Third, rules. exchange/securities applicable motion, the district court denying by Rosenberg signed indicated form signed agreement, Rosenberg found that and directed her agreement to arbitrate an any applicable not receive allegedly but did carefully agreement specific with to read that she was asserted exchange She rules. Exchange York Stock to New reference about, the of, ignorant and was not advised circumstances, I all the would Rules. Under court, The district arbitration documents. court to remand to the district to be inclined however, reference to Merrill no makes to Rosen- develop fully the facts whether advice, furnishing Lynch’s position vis-a-vis opportunity a berg afforded reasonable was documentation, Rosenberg to or information implications of appreciate signed Rosenberg at or before —or after — agreement. Did she have her Judge Lynch arbitrate. agreement familiar, or did she to be opportunity Lynch dispute” “does not notes that Merrill herself, with the arbitra- duty to familiarize Rosenberg given copy was not undertaking? tion any organization referred rules of applicable not consider Ramirez-De-Arellano I do U-4, I do conclude in Item 10 of but not Airlines, Inc., 133 F.3d 89 (1st American Lynch record that Merrill from the available Ra- Cir.1997), majority support the view. not copy of the rules was concedes that “brought primarily mirez an action un- upon pertinent at all times available to her (FLSA) Act Fair Labor Standards der the do I find a in the record request. Nowhere Puerto Rico law.” Id. at 89. It did about such asked contention that claim, court rights and the involve a civil sought advice information rules summary for defendant judgment upheld meaning and effect about Merrill plaintiff. The Ramirez discharge signed. agreement which she We of the U-4 pursue simply plaintiff held that could what, anything, if know do not in federal court because his action did, fur- said or Lynch’s representatives aspects of Ameri- court’s dissatisfaction with the ar- Rosenberg in connection with nished procedures akin can Airlines’ response agreement, bitration and/or dispute. involved in the instant those regard- any inquiry or actions agreement. ing the said however, my disagree- important, More part Lynch’s conclusion in Judge ment with ques- find the arbitration clause I would “appropri- not be “inappropriate” as the issues IVB that not to be However, scope Judge Lynch’s ty is for this I would *21 finding and not the arbitrator. arbitrabili- 14 that the issue of footnote because, avers, 'plaintiff ate” tion, as light Merrill authorities, of these that Rosen- Lynch not furnish did with a copy berg put was on notice and should have made rules, of the pertinent and because Merrill prompt inquiry in connection with her exe- Lynch falsely certified that Rosenberg was cuting the agreement as to the “familiar with” the rules. scope and nature of the exchange rules. I am join reluctant to finding that Merrill I would therefore REVERSE grant and Lynch, representative, its Wyl- John and/or the defendant’s motion for arbitration. lys, falsely certified Rosenberg’s qualifica- tions, fitness, and knowledge as a financial

representative familiarity and her with the however,

rules. assuming, Even incorrect,

certification was I disagree with

the conclusion reached Part IVB. Judge

Unlike Lynch, I would hold that presumed understand, and by, to be plain bound terms of her U-4 Commonwealth of MASSACHUSETTS agreement even if she were not furnished its DIVISION OF MARINE FISH copies the exchange rules at the time of ERIES, Plaintiff, Appellee, signing. I believe was broad plain and put and that it Rosenberg on notice agreed she to arbitrate at the outset DALEY, William M. in his Official Capac “any dispute, claim- or controversy” with ity Secretary as of Commerce of the exchange under rules.2 If she States; United Baker, James in his Offi “did not make herself aware existence Capacity cial as Secretary Under and scope of [the arbitration] clause [in U- Administrator for the National Oceanic agreement], she did so at peril.” her own Atmospheric Administration; Beauchamp v. Co., Great West Assur. Life National Atmospheric Oceanic and Ad F.Supp. (E.D.Mich.1996). ministration; Schmitten, Roland A. She is “presumed to know the contents of the Capacity his Official as Director of the signed agreement” as well as its reasonable National Service; Marine Fisheries import. Cremin Lynch Pierce, v. Merrill America, United States of Defen F.Supp. (N.D.Ill.1997) (citing dants, Appellants.

Beauchamp, 1097-98). No. 98-1917. Ludwig Equitable Assurance Soci Life ety U.S., 978 F.Supp. United States Court Appeals, (D.Kan. 1997), puts it even specifically more First Circuit. under facts and contentions similar to those in this “regardless case: plaintiff whether Heard Feb. 1999. Code, received potential NASD Decided Feb. breadth of the provision immedi ately put her on notice that and all employment disputes subject were to manda

tory 1382; arbitration.” Id. at see also Her Metropolitan

ko v. Co., Ins. 978 F.Supp. Life 141, 147 (W.D.N.Y.1997).

All these district court cited cases herein

involve by plain- contentions

tiffs similar to those made in this case

Rosenberg. I would hold to the presump- I part would not add inquiry circumstances, of our in this voluntary knowing was a any heightened case determining Seus, standard one. See 146 F.3d at 183-84 and n. Rosenberg’s agreement, whether or not Patterson, also 113 F.3d at 838.