Cobble v. 20/20 Communications, Inc. (TV1)REPLY to Response to Motion re MOTION to Stay re Expedited MOTION to Certify Class and Facilitate Notice to Potential Opt-In PlaintiffsE.D. Tenn.October 2, 2017UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT GREENEVILLE JAMES COBBLE, on behalf of himself and others similarly situated, Plaintiffs, v. 20/20 COMMUNICATIONS, INC., Defendant. ) ) ) ) ) ) ) ) ) ) Case No. 2:17-cv-00053 (Varlan/Corker) DEFENDANT’S REPLY IN SUPPORT OF ITS MOTION TO STAY BRIEFING AND ADJUDICATION OF PLAINTIFF’S MOTION FOR CONDITIONAL CERTIFICATION Nowhere in his Response in Opposition does Plaintiff Cobble address the question most critical to determination of 20/20’s instant motion: whether the Federal Arbitration Act’s mandate that arbitration issues be decided “summarily” requires that a motion to compel arbitration be decided at the onset of litigation. The answer to that question is yes; consequently, it makes no sense for the parties and the Court to spend additional time and resources on Plaintiff’s motion for conditional collective action certification before that threshold issue of arbitration is decided. Briefing and adjudication of Plaintiff’s motion for conditional collective action certification should be stayed. I. The FAA Requires Arbitrability to Be Decided Promptly and Summarily. Plaintiff Cobble’s insistence that his motion for conditional collective action certification be decided prior to 20/20’s motion to dismiss in favor of arbitration is directly contrary to the FAA’s “call[] for a summary and speedy disposition of motions or petitions to enforce arbitration clauses.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 29 (1983). Indeed, as the Middle District of Tennessee recently found under identical circumstances, “the Case 2:17-cv-00053-TAV-MCLC Document 84 Filed 10/02/17 Page 1 of 6 PageID #: 1652 2 question of arbitrability is a threshold issue that must be addressed before [a motion for conditional collective action].” Doe #1 v. Deja Vu Consulting Inc., 3:17-CV-00040, 2017 WL 3837730, at *7 (M.D. Tenn. Sept. 1, 2017). See also Gaffers v. Kelly Servs., Inc., 203 F. Supp. 3d 829 (E.D. Mich. 2016) (confronted with both a motion to compel arbitration and a motion for conditional certification, addressing the motion to compel arbitration first and, upon denying that motion, considering whether certification was appropriate); Redmond v. NPC Int'l Inc., No. 1:13- cv-01037-STA-egb (W.D. Tenn.) (Doc. Nos. 105, 115) (where the parties filed motions to compel arbitration and for conditional certification, addressing—and denying—the motion to compel arbitration first and then staying the motion for conditional certification pending resolution of the defendant's appeal of the denial of its motion to compel arbitration), aff'd in part sub nom Gunn v. NPC Int'l, Inc., 625 Fed. Appx. 261 (6th Cir. 2015); Opalinski v. Robert Half Int'l, Inc., No. 10-cv-2069, 2011 WL 4729009 (D.N.J. Oct. 6, 2011) (denying motion to defer ruling on motion to compel arbitration and to rule first on the motion for conditional certification and, instead, granting the motion to compel arbitration and denying as moot the motion for conditional certification), rev'd on other grounds, 761 F.3d 326 (3d Cir. 2014). To do otherwise would flip the strong federal policy in favor of arbitration on its head and violate the FAA’s instruction that arbitrability be decided “summarily.” 9 U.S.C. § 4. The cases cited by Plaintiff do not hold otherwise. In fact, in the Gaffers case cited by Plaintiff, the issue of arbitration was decided prior to the motion for certification. 203 F. Supp. 3d at 842. Similarly, in Brown v. Citicorp Credit Services, Inc., 1:12-CV-62-BLW, 2013 WL 1760267, at *1 (D. Idaho Apr. 24, 2013), the court had already denied Citicorp’s motion to compel arbitration before ruling on its motion to stay. Lewis v. Nevada Prop. 1, LLC, 2:12-CV- 01564-MMD, 2013 WL 237098, at *14 (D. Nev. Jan. 22, 2013) did not involve a motion to Case 2:17-cv-00053-TAV-MCLC Document 84 Filed 10/02/17 Page 2 of 6 PageID #: 1653 3 compel arbitration at all; rather, it involved a motion to dismiss on Colorado River Doctrine grounds. And the defendants in McKinley v. Genghis Grill, 2017 U.S. Dist. LEXIS 138479, *2 (W.D. Tenn. Aug. 11, 2017) never filed a motion to compel arbitration; rather, they filed a motion to stay the case pending resolution of the Supreme Court cases Epic Sys. Corp. v. Lewis, 137 S. Ct. 809, 196 L. Ed. 2d 595; Ernst & Young LLP v. Morris, 137 S. Ct. 809, 196 L. Ed. 2d 595; and Nat'l Labor Relations Bd. v. Murphy Oil USA, Inc., 137 S. Ct. 809, 196 L. Ed. 2d 595. Because there was no motion for arbitration, there was no need to reconcile its priority with a motion for certification in under § 4 of the FAA. Similarly, the ordinary running of the statute of limitations does not moot that FAA’s mandate that arbitrability be decided promptly and summarily. Indeed, taking Plaintiff’s limitations argument to its logical conclusion would require that the statute of limitations in FLSA cases to be tolled immediately after the filing of a putative collection action; but that is not the rule set forth in 29 U.S.C. § 216(b). Nor has Plaintiff pointed to a single case where the statute of limitations was tolled as to non-parties while the question of arbitrability was decided.1 II. The Parties’ Mutual Arbitration Agreement (MAA) Is Legal and Enforceable. As he has done in multiple pleadings in this matter, Plaintiff claims 20/20 has provided “no evidence” that he executed the MAA. In response, 20/20 once again directs Plaintiff to the uncontroverted evidence it has provided showing that it was impossible for him to become employed without completing 20/20’s electronic onboarding process. And it was impossible to complete the electronic onboarding process without executing the MAA. Notably, Plaintiff has 1 Notably, 20/20 agreed to toll non-party claims to the extent the Supreme Court finds that class and collective action waivers are unenforceable. See Exhibit 1. To the extent the Supreme Court upholds such waivers, however, there would be nothing to toll as Plaintiff and/or the other opt- ins would be unable to litigate their claims on anything other than a single plaintiff basis. Plaintiff has not sought such a stay. Case 2:17-cv-00053-TAV-MCLC Document 84 Filed 10/02/17 Page 3 of 6 PageID #: 1654 4 never claimed that he somehow became employed without going through this electronic onboarding process. Instead, he merely continues to repeat his false assertion that 20/20 has provided “no evidence” that he executed the MAA. Plaintiff also argues that the MAA is illegal because it contains a class and collective action waiver. But that argument implicitly seeks what 20/20 explicitly asks for in the instant motion: an early ruling on the threshold issue of arbitrability. Moreover, it fundamentally misunderstands the Sixth Circuit’s decision in NLRB v. Alt. Entm't, Inc., 858 F.3d 393 (6th Cir. 2017). Alternative Entertainment applies to labor disputes under the NLRA, not to private lawsuits under the FLSA. “[T]he holding in Alternative Entertainment [appears] to be limited to claims brought under the NLRA—that is, claims concerning unfair labor practices that fall within the purview of the NLRB. The facts of Alternative Entertainment arose from that particular arena. It was brought by the NLRB, seeking enforcement of a prior decision and order by the NLRB in a classic labor dispute, and the court was not called upon to address the confluence of the FLSA and the FAA.” Doe #1, 2017 WL 3837730, at *12. But this not a labor dispute. Additionally, in Alternative Entertainment, the Sixth Circuit held, “in the context of a labor dispute involving changes in certain employees' compensation and their ability to discuss their concerns about salary and wages with each other, that an arbitration provision expressly prohibiting collective actions violated Section 7 of the National Labor Relations Act (“NLRA”), 29 U.S.C. § 157.” Doe #1, 2017 WL 3837730, at *10 (emphasis added). But this case does not involve “employees” covered by the NLRA. Instead, Plaintiff Cobble is a former employee. [Doc. 1 at ¶¶ 24-25] Section 7 of the NLRA does not provide former employees with the right to engage in concerted activity. See 29 U.S.C. § 157. Indeed, former employees are wholly Case 2:17-cv-00053-TAV-MCLC Document 84 Filed 10/02/17 Page 4 of 6 PageID #: 1655 5 excluded from the definition of employee except to the extent their “work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice…” 29 U.S.C. § 152(3). Plaintiff Cobble makes no claim that he was fired in connection with a labor dispute or because of an unfair labor practice. Simply put, “[b]ecause the plaintiff is not an ‘employee covered by the NRLA,’ the holding in Alternative Entertainment does not extend to [his] arbitration agreement.” Doe #1, 2017 WL 3837730, at *10-11. Finally, as the Doe #1 court similarly concluded, “it is not apparent … that a collective action under the FLSA qualifies as ‘concerted activit[y]’ protected by the NLRA. … Pursuing litigation for the purpose of requiring an employer to comply with federal law is not the same as seeking more favorable terms or conditions of employment by contract.” Simply put, the MAA is not illegal. Plaintiff’s suggestions to the contrary, although erroneous, merely serve to underscore the importance of having all issues regarding arbitrability resolved before other motions. III. Conclusion Arbitrability is a threshold issue that must be decided promptly and summarily. Accordingly, 20/20 asks this Court to exercise its inherent authority to stay briefing and adjudication of Plaintiff’s motion for conditional certification while 20/20’s prior filed motions are decided. Case 2:17-cv-00053-TAV-MCLC Document 84 Filed 10/02/17 Page 5 of 6 PageID #: 1656 6 Submitted October 2, 2017. Respectfully submitted, s/ Elizabeth S. Washko Elizabeth S. Washko (BPR No. 019931) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 401 Commerce Street, Suite 1200 Nashville, Tennessee 37219 Telephone: (615) 254-1900 Facsimile: (615) 254-1908 E-mail: liz.washko@ogletree.com Attorney for Defendant 20/20 Communications, Inc. CERTIFICATE OF SERVICE I hereby certify that on October 2, 2017, the foregoing DEFENDANT’S REPLY IN SUPPORT OF ITS MOTION TO STAY BRIEFING AND ADJUDICATION OF PLAINTIFF’S MOTION FOR CONDITIONAL CERTIFICATION was filed electronically with the Clerk of Court to be served by operation of the Court’s electronic filing system upon the following: Andrew R. Frisch MORGAN & MORGAN, P.A. 600 N. Pine Island Road, Ste. 400 Plantation, Florida 33324 afrisch@forthepeople.com s/ Elizabeth S. Washko Elizabeth S. Washko (BPR No. 019931) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 401 Commerce Street, Suite 1200 Nashville, Tennessee 37219 Telephone: (615) 254-1900 Facsimile: (615) 254-1908 E-mail: liz.washko@ogletree.com Attorney for Defendant 20/20 Communications, Inc. 31410272.1 Case 2:17-cv-00053-TAV-MCLC Document 84 Filed 10/02/17 Page 6 of 6 PageID #: 1657
