                  UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF COLUMBIA
________________________________
                                 )
JENSINE ANDRESEN,                )
                                 )
               Plaintiff,        )
                                 )
          v.                     ) Civil Action No. 15-446 (EGS)
                                 )
INTEPROS FEDERAL, INC.,          )
                                 )
               Defendant.        )
________________________________)

                       MEMORANDUM OPINION

     Dr. Jensine Andresen brings this lawsuit against defendant

IntePros Federal, Inc. Dr. Andresen asserts various federal and

District of Columbia statutory claims, including claims under

the Age Discrimination in Employment Act of 1967; Title VII of

the Civil Rights Act of 1964; the Fair Labor Standards Act; the

District of Columbia Human Rights Act; and the District of

Columbia Wage Payment and Collection Law. Pending before the

Court is IntePros’ renewed motion to compel arbitration and to

stay this litigation pending arbitration. Upon consideration of

the motion, the response and reply thereto, the parties’

supplemental filings, the applicable law, and the entire record,

the Court GRANTS IntePros’ renewed motion to compel arbitration

and STAYS this action during the pendency of the arbitration.

IntePros will be responsible for arbitral fees and expenses in

the manner specified herein.


                                1
I.      Background

        On June 13, 2013, Dr. Andresen entered into a written

contract with IntePros entitled “Sub Contractor Agreement IT

Consulting” (“the Agreement”), wherein Dr. Andresen contracted

with IntePros to perform work on a government contract with

TRICARE Management Activity, which has since become the Defense

Health Agency (“DHA”). Am. Compl., ECF No. 10-1 ¶ 13; Sub

Contractor Agreement IT Consulting (“Agreement”), Ex. 2, ECF No.

12-1. The Agreement contains an arbitration clause that reads in

full:

             Any and all disputes, controversies and claims
             arising out of or relating to this Agreement
             or concerning the respective rights or
             obligation [sic] hereunder of the parties
             hereto shall be settled and determined by
             arbitration before the Commercial Panel of the
             American     Arbitration     Association    in
             accordance with the Commercial Arbitration
             Rules. The arbitrators shall have the power to
             award specific performance or injunctive
             relief and reasonable attorneys’ fees and
             expenses to any party in any such arbitration.
             However, in any arbitration proceeding arising
             under this Agreement, the arbitrators shall
             not have the power to change, modify or alter
             any express condition, term or provision
             hereof, and to that extent the scope of their
             authority is limited. The arbitration award
             shall be final and binding upon the parties
             and judgment thereon may be entered in any
             court having jurisdiction thereof.

Agreement, Provision 9(f), Ex. 2, ECF No. 12-1 at 4. Dr.

Andresen worked for IntePros pursuant to the Agreement as an

“Information Technology Analyst I” at DHA until she was

                                   2
terminated on June 16, 2014. Am. Compl., ECF No. 10-1 ¶¶ 15,

174.

       On March 26, 2015, Dr. Andresen filed a complaint against

IntePros in this Court alleging age discrimination, sex

discrimination, unlawful retaliation, and failure to pay

overtime compensation. Compl., ECF No. 1 ¶¶ 204-31. IntePros

subsequently filed a motion to compel arbitration. Def.’s Mot.

to Compel Arbitration, ECF No. 5. Prior to the Court resolving

that motion, on November 25, 2015, Dr. Andresen filed a motion

to amend the complaint, seeking to add two additional claims of

unlawful termination. See Mot. to Amend Compl., ECF No. 10.

IntePros opposed the motion to amend the complaint and filed a

renewed motion to compel arbitration. See Def.’s Renewed Mot. to

Compel Arbitration, ECF No. 11; Def.’s Mem. in Supp. of Renewed

Mot. to Compel Arbitration and Opp. to Mot. to Amend Compl.

(“Def.’s Mem. Supp.”), ECF No. 12. The parties briefed the

motion to amend and the renewed motion to compel arbitration.

See Def.’s Mem. Supp., ECF No. 12; Pl.’s Opp. to Renewed Mot. to

Compel Arbitration and Reply to Opp. to Mot. to Amend Compl.

(“Pl.’s Opp.”), ECF No. 13; Def.’s Reply, ECF No. 15. On March

29, 2016, the Court granted Dr. Andresen’s motion to amend her

complaint and, in light of the renewed motion to compel

arbitration, denied as moot IntePros’ initial motion to compel

arbitration. See Minute Entry of March 29, 2016. Upon review of

                                  3
the parties’ briefing of IntePros’ renewed motion, the Court

concluded that supplemental briefing would greatly aid in the

resolution of that motion.1 Having received that supplemental

briefing, IntePros’ renewed motion is ready for adjudication.

II.   Standard of Review

      A motion to compel arbitration is examined under the

summary judgment standard of Federal Rule of Civil Procedure

56(c), as if it were “‘a request for summary disposition of the

issue of whether or not there had been a meeting of the minds on

the agreement to arbitrate.’” Mercadante v. XE Servs., LLC, 78

F. Supp. 3d 131, 136 (D.D.C. 2015) (quoting Aliron Int’l, Inc.

v. Cherokee Nation Indus., Inc., 531 F.3d 863, 865 (D.C. Cir.

2008)). Under Rule 56(c), summary judgment is appropriate only

if “‘there is no genuine issue as to any material fact and . . .

the moving party is entitled to a judgment as a matter of law.’”

Id. (quoting Aliron Int’l, 531 F.3d at 865). “‘The party seeking




1 The Court directed the parties to respond to the following:
“(1) whether Cole v. Burns Int’l Sec. Servs., 105 F.3d 1465
(D.C. Cir. 1997) announces a per se rule invalidating employee-
employer arbitration agreements that permit arbitral fee- and
cost-sharing, and, if it does, whether that rule applies in the
context of a challenge to a delegation provision in light of
Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79 (2000), and
(2) assuming the multi-factor analysis contemplated by Green
Tree applies to the challenge to the delegation provision in
this case, brief Dr. Andresen’s likelihood of incurring
burdensome expenses that would prohibit her from vindicating her
statutory claims in an arbitral forum.” Minute Entry of
September 14, 2016.
                                 4
to compel arbitration must present evidence sufficient to

demonstrate an enforceable agreement to arbitrate.’” Id.

(quoting Haire v. Smith, Currie & Hancock LLP, 925 F. Supp. 2d

126, 129 (D.D.C. 2013)). “The burden then shifts to plaintiffs

to show that there is a genuine issue of material fact as to the

making of the agreement.” Id. (internal quotation marks

omitted). “The Court will compel arbitration if the pleadings

and the evidence show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment

as a matter of law.” Id. (internal quotation marks omitted).

III. Analysis

     Congress enacted the Federal Arbitration Act (“FAA”) to

counteract “widespread judicial hostility to arbitration.” Am.

Express Co. v. Italian Colors Rest., 133 S. Ct. 2304, 2308-09

(2013). Section 2 is “the primary substantive provision of the

[FAA].” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460

U.S. 1, 24 (1983). It provides that “[a] written provision in .

. . a contract evidencing a transaction involving commerce to

settle by arbitration a controversy thereafter arising out of

such contract . . . shall be valid, irrevocable, and

enforceable, save upon such grounds as exist at law or in equity

for the revocation of any contract.” 9 U.S.C. § 2. The FAA “also

establishes procedures by which federal courts implement § 2’s

substantive rule.” Rent-A-Center, West, Inc. v. Jackson, 561

                                5
U.S. 63, 68 (2010). “Under § 3, a party may apply to a federal

court for a stay of the trial of an action ‘upon any issue

referable to arbitration under an agreement in writing for such

arbitration.’” Id. (quoting 9 U.S.C. § 3). “Under § 4, a party

‘aggrieved’ by the failure of another party ‘to arbitrate under

a written agreement for arbitration’ may petition a federal

court ‘for an order directing that such arbitration proceed in

the manner provided for in such agreement.’” Id. (quoting 9

U.S.C. § 4).

      The “question whether the parties have submitted a

particular dispute to arbitration”——that is, the gateway

“question of arbitrability”——is usually “an issue for judicial

determination.” Howsam v. Dean Witter Reynolds, Inc., 537 U.S.

79, 83 (2002) (internal quotation marks omitted). That usual

rule is upended, however, when the parties “clearly and

unmistakably” agree that the question of arbitrability should be

reserved for arbitral resolution. Id. A written agreement

memorializing the parties’ agreement to arbitrate the threshold

question of arbitrability has come to be known as a “delegation

provision.” See Rent-A-Center, 561 U.S. at 68. A delegation

provision “is simply an additional, antecedent agreement the

party seeking arbitration asks the federal court to enforce, and

the FAA operates on this additional arbitration agreement just

as it does on any other.” Id. at 70.

                                6
     Thus, when a valid and enforceable delegation provision is

in place, a court is prohibited from reaching the gateway

question of arbitrability and must reserve that question for

arbitral resolution. See id.; Howard v. Rent-A-Center, Inc., No.

10-103, 2010 WL 3009515, at *3 (E.D. Tenn. July 28, 2010) (“If

the court concludes the parties intended such a delegation and

concludes that delegation is enforceable, the court must compel

arbitration on issues relating to arbitrability along with the

underlying dispute.”). However, when a delegation provision is

invalid or unenforceable, that opens the door for judicial

resolution of the question of arbitrability. Thus “before an

arbitrator can determine the question of arbitrability, the

Court must consider any challenges to the validity of the

delegation provision.” Mercadante, 78 F. Supp. 3d at 137. If the

challenges of a party opposed to arbitration are directed at the

“primary” arbitration clause generally——as opposed to being

directed at the delegation provision specifically——the

delegation provision must be treated as valid and enforceable

and, accordingly, the question of arbitrability must be reserved

for an arbitrator. Rent-A-Center, 561 U.S. at 72. Thus, in sum,

where a primary arbitration clause and a delegation provision

are both in place, a party opposed to arbitration must overcome

two hurdles to entirely avoid arbitration: (1) She must

demonstrate that the delegation provision, separate and apart

                                7
from the primary arbitration clause, is invalid or unenforceable

such that the threshold question of arbitrability should be

subject to judicial, rather than arbitral, resolution; and, once

she has cleared that first hurdle, (2) she must demonstrate that

the primary arbitration clause is invalid or unenforceable such

that the merits question——that is, the underlying substantive

claims——should be subject to judicial, rather than arbitral,

resolution.

     Here, Dr. Andresen does not dispute that the Agreement

includes a delegation provision. See Pl.’s Opp., ECF No. 13 at

3. The first sentence of the Agreement’s arbitration clause

states that “[a]ny and all disputes, controversies and claims

arising out of or relating to this Agreement or concerning the

respective rights or obligation [sic] hereunder of the parties

hereto shall be settled and determined by arbitration before the

Commercial Panel of the American Arbitration Association in

accordance with the Commercial Arbitration Rules.” Agreement,

Provision 9(f), Ex. 2, ECF No. 12-1 at 4. The parties agree that

the arbitration clause’s incorporation of the American

Arbitration Association (“AAA”) rules——which, in turn, empower

an arbitrator to rule on the question of arbitrability, see AAA

Commercial Arbitration Rules and Mediation Procedures (effective




                                8
October 1, 2013), Rule 72——constitutes clear and unmistakable

evidence that they intended to delegate the question of

arbitrability to an arbitrator. Def.’s Mem. Supp., ECF No. 12 at

4-6; Pl.’s Opp., ECF No. 13 at 3. “While the D.C. Circuit has

not addressed the issue, courts both within and outside this

jurisdiction have held that an arbitration clause adopting the

rules of the AAA makes the issue of arbitrability one for the

arbitrator, not the court.” W & T Travel Servs., LLC v. Priority

One Servs., Inc., 69 F. Supp. 3d 158, 167-68 (D.D.C. 2014)

(collecting cases). Thus, the parties are on solid ground in

agreeing that their Agreement includes a delegation provision

that delegates the question of arbitrability to an arbitrator.


2 Both parties appear to rely upon the current version of the AAA
Commercial Arbitration Rules that became effective October 1,
2013 rather than the previous version, applicable at the time
that they entered the Agreement in June 2013, that were
effective as of June 1, 2009. See, e.g., Def.’s Reply, ECF No.
15 at 2 (citing AAA Commercial Arbitration Rule 47 as pertaining
to apportionment of fees; Rule 47 under the October 2013 Rules
concerns the apportionment of fees, whereas the analogous Rule
under the June 2009 Rules is Rule 43); AAA Commercial
Arbitration Rules and Mediation Procedures, (effective October
1, 2013), Rules 47-57, Ex. 3, ECF No. 18-1 at 1-4. The Rules
relevant to this case do not appear to have undergone any
meaningful substantive changes, so the Court will follow the
parties’ lead in relying upon the Rules that became effective
October 1, 2013. The parties also both rely upon the
Administrative Fee Schedules of the AAA Commercial Arbitration
Rules that became effective July 1, 2016. See AAA Commercial
Arbitration Rules and Mediation Procedures, Administrative Fee
Schedules, (effective July 1, 2016), Ex. 1, ECF No. 18-1 at 1-3;
Def.’s Suppl. Br., ECF No. 16 at 18. Because the parties agree
that those July 2016 fee schedules are the operative ones, the
Court applies them.
                                9
     Seeking to avoid arbitration of her claims despite the

Agreement’s delegation provision and primary arbitration clause,

Dr. Andresen launches the requisite two-step attack: She first

argues that the delegation provision is unenforceable such that

the question of arbitrability is subject to judicial resolution,

see Pl.’s Opp., ECF No. 13 at 3-5; Pl.’s Suppl. Br., ECF No. 17

at 2-13, and then, assuming that she has prevailed on that

argument, she argues that the arbitration clause is

unenforceable such that her substantive claims are subject to

judicial resolution. See Pl.’s Opp., ECF No. 13 at 6-9. The

Court can only reach the second prong of this attack if Dr.

Andresen prevails on the first.

     As to that first prong, Dr. Andresen argues that the

delegation provision is unenforceable under the effective

vindication of statutory rights doctrine of the federal common

law. First, she states that the arbitration clause here contains

no express statement regarding the allocation of arbitral

expenses and fees, “making the AAA rules controlling authority

for the arbitrator’s compensation and other arbitration fees.”

Pl.’s Opp., ECF No. 13 at 4.3 She asserts that those Rules


3 Contrary to Dr. Andresen’s position, the arbitration clause
here does have an express statement regarding fees and expenses:
“The arbitrators shall have the power to award . . . reasonable
attorneys’ fees and expenses to any party in any such
arbitration.” Agreement, Provision 9(f), Ex. 2, ECF No. 12-1 at
4. But the discretion given to the arbitrator by this express
                                  10
provide that the “‘arbitrator may apportion such fees, expenses

and compensation among the parties in such amounts as the

arbitrator deems appropriate.’” Id. at 4-5 (quoting AAA

Commercial Arbitration Rules and Mediation Procedures, Rule 47). 4

Relying on Cole v. Burns International Security Services, 105

F.3d 1465, 1483-86 (D.C. Cir. 1997), she argues that the

possibility that she might have to pay some portion of arbitral

fees and expenses to resolve the threshold question of

arbitrability runs afoul of Cole’s per se prohibition of an

employee having “to pay any of the arbitrator’s fees when

pursuing federal statutory claims.” Pl.’s Opp., ECF No. 13 at 3-

5; see also Pl.’s Suppl. Br., ECF No. 17 at 2-3. She further

argues that Cole’s per se rule remains viable——at least where

federal statutory claims in the employer-employee context are

concerned——after Green Tree Financial Corp.-Alabama v. Randolph,

531 U.S. 79 (2000). See Pl.’s Suppl. Br., ECF No. 17 at 3-9. In

Green Tree, the Supreme Court rejected a cost-prohibitiveness




provision does not appear to differ from the same discretion
called for by the incorporated AAA Commercial Arbitration Rules,
so the fact that Dr. Andresen has overlooked this express term
does not impact the relevant analysis.
4 Dr. Andresen conveys the proper substance of the Rule but the

actual wording is as follows: “The arbitrator may apportion such
fees, expenses, and compensation among the parties in such
amounts as the arbitrator determines is appropriate.” AAA
Commercial Arbitration Rules and Mediation Procedures,
(effective October 1, 2013), Rule 47(c), Ex. 3, ECF No. 18-1 at
2.
                                11
unenforceability challenge to an arbitration clause in a case

involving a claim under the federal Truth in Lending Act,

announcing that “where . . . a party seeks to invalidate an

arbitration agreement on the ground that arbitration would be

prohibitively expensive, that party bears the burden of showing

the likelihood of incurring such costs.” 531 U.S. at 92. Second,

Dr. Andresen argues that even if Cole’s per se rule does not

apply in this case, she has carried her burden under Green Tree

of demonstrating that arbitrating arbitrability would be

prohibitively expensive. Pl.’s Suppl. Br., ECF No. 17 at 9-13.

The Court turns now to an assessment of these arguments.

     A.   Cole Announced a Per Se Rule Prohibiting Arbitral Fee-
          Sharing Between an Employee and an Employer But,
          Assuming that Per Se Rule Remains Viable, It Does Not
          Apply in the Context of a Challenge to a Delegation
          Provision

     In Cole, an employee had filed a Title VII discrimination

claim against his employer, and the employer sought to compel

arbitration under an arbitration agreement between the parties.

105 F.3d at 1467. The arbitration agreement was silent when it

came to who would pay the arbitrator’s fees and thus

contemplated that the employee would have to shoulder some share

of arbitral expenses. See id. at 1485. “The court reasoned that

requiring an employee to pay arbitration fees, other than

‘reasonable costs’ analogous to federal court ‘filing fees and

other administrative expenses,’ would be ‘prohibitively

                               12
expensive’ and deter the employee from ‘pursu[ing] his statutory

claims.’” Fox v. Comput. World Servs. Corp., 920 F. Supp. 2d 90,

100-01 (D.D.C. 2013) (quoting Cole, 105 F.3d at 1484).

Accordingly, the court was only willing to find the arbitration

agreement valid and enforceable as to the Title VII claim by

reading it as allocating all of the costs of arbitration to the

employer, in turn giving rise to a per se rule invalidating

arbitration agreements that require an employee “to pay all or

part of the arbitrator’s fees and expenses.” See 105 F.3d at

1485. Thus, the court held, “an employee can never be required,

as a condition of employment, to pay an arbitrator’s

compensation in order to secure the resolution of statutory

claims.” Id. at 1468.

     There is little doubt that Cole announced a per se rule

that arbitration agreements that contemplate an employee paying

arbitral expenses other than those analogous to federal court

filing fees and administrative expenses are unenforceable unless

the arbitrator’s fees are paid by the employer. See Bradford v.

Rockwell Semiconductor Sys., Inc., 238 F.3d 549, 554 (4th Cir.

2001) (describing Cole as announcing a per se rule); Fox, 920 F.

Supp. 2d at 101 (same); Toledano v. O’Connor, 501 F. Supp. 2d

127, 148 (D.D.C. 2007) (same); Nelson v. Insignia/Esg, Inc., 215

F. Supp. 2d 143, 154 (D.D.C. 2002) (same). But the Supreme

Court’s post-Cole decision in Green Tree puts Cole’s per se rule

                               13
under serious strain. In Green Tree, the Court considered

whether an arbitration agreement that was silent as to

arbitration costs and fees was unenforceable as to a federal

statutory claim because the agreement failed to affirmatively

protect a party from potentially steep arbitration costs. 531

U.S. at 82. The Court held that the agreement was not

unenforceable on the ground that the “risk” of prohibitive costs

was “too speculative” to justify invalidation of the arbitration

agreement. Id. at 91. Thus, the Court concluded, when “a party

seeks to invalidate an arbitration agreement on the ground that

arbitration would be prohibitively expensive, that party bears

the burden of showing the likelihood of incurring such costs.”

Id. at 92.

     This Court is not the first to recognize that, in light of

Green Tree, “which eschews any per se ban on fee shifting in the

arbitral context,” Cole’s per se rule is “on shaky ground.” See

Shatteen v. Omni Hotels Mgmt. Corp., 113 F. Supp. 3d 176, 182

n.3 (D.D.C. 2015). The D.C. Circuit has not definitively

pronounced Cole’s per se rule a dead letter, but “[f]ollowing

the Green Tree decision, [it] has placed limits on the per se

application of its holding in Cole.” Nelson, 215 F. Supp. 2d at

155. In Brown v. Wheat First Securities, Inc., 257 F.3d 821

(D.C. Cir. 2001), the Circuit Court “assume[d]” that Green Tree

“leaves Cole fully intact” but still concluded that Cole’s per

                               14
se invalidation rule did not extend to the context of common law

claims in large part because the “opinion in Cole is limited at

vital points to statutory rights.” 257 F.3d at 824-26. In

LaPrade v. Kidder, Peabody & Co., Inc., 246 F.3d 702 (D.C. Cir.

2001), the Circuit Court, in the course of upholding an

arbitration award requiring an employee “to pay a portion of the

forum fees for arbitration of her statutory and non-statutory

claims against her former employer,” 246 F.3d at 704, indicated

that non-federal statutory claims were beyond the purview of

Cole’s per se rule. See id. at 708; see also Nelson, 215 F.

Supp. 2d at 156-57. And even when a plaintiff has asserted

federal statutory claims, courts in this jurisdiction, post-

Green Tree, have been reluctant to apply Cole’s per se rule.

See, e.g., Shatteen, 113 F. Supp. 3d at 182 & n.3 (recognizing

the “shaky ground” on which Cole’s per se rule now rests and

refusing to apply it in the context of an employee’s claim under

the Family Medical Leave Act of 1993); Toledano, 501 F. Supp. 2d

at 148 (recognizing that the “continuing vitality of Cole’s ‘per

se’ rule . . . is in some doubt” and refusing to apply it “in

light of Green Tree” outside the employer-employee context even

though the plaintiff had asserted federal statutory claims).

     The teaching of these post-Green Tree cases is that even if

Green Tree leaves a per se rule from Cole “fully intact,” Brown,

257 F.3d at 824, what is left intact is a per se rule exactly as

                               15
it applied under Cole’s facts: that requiring an (1) employee to

pay part or all of the arbitral expenses that would not

otherwise arise in the judicial context and that arise from the

arbitration of (2) federal statutory claims makes (3) a primary

arbitration agreement unenforceable as to those federal

statutory claims. Here, Dr. Andresen was an employee of IntePros 5

and certain of her claims are federal statutory claims but,

critically, she seeks to apply Cole’s per se rule to the context

of a delegation provision. Although a delegation provision is a

type of arbitration agreement, see Rent-A-Center, 561 U.S. at

70, it is subtly different from a primary arbitration clause——of

the sort at issue in Cole——that mandates the arbitration of

substantive claims. See id. at 72 n.3 (explaining that the

primary agreement to arbitrate substantive claims is severable

from an agreement to arbitrate arbitrability). Although it might

seem like the Court is splitting hairs here, not applying Cole’s

per se rule in the context of a challenge to a delegation

provision specifically——as opposed to in the context of a

challenge to a primary arbitration clause——is consistent with

the post-Green Tree reluctance of both the D.C. Circuit and


5 To the extent that Dr. Andresen was an independent contractor,
see Agreement, Provision 8, Ex. 2, ECF No. 12-1 at 3-4, her
status vis-à-vis IntePros is sufficiently analogous to the
status of the employee in Cole vis-à-vis his employer to
categorize Dr. Andresen as an “employee” as that term was
understood in Cole.
                                16
District Courts in this Circuit to expand whatever remains of

Cole’s per se rule beyond its original reach.

     Dr. Andresen’s arguments to the contrary are unavailing.

Dr. Andresen suggests that Green Tree should not be understood

to compel a narrow construal of Cole’s per se rule because Green

Tree concerned federal statutory claims outside of the employer-

employee context and that employer-employee context was so

central to the decision in Cole. See Pl.’s Suppl. Br., ECF No.

17 at 4. This argument is unpersuasive, however, because the

D.C. Circuit decisions strongly counseling narrow construal of

Cole’s per se rule in light of Green Tree involved claims made

in the employer-employee context. See, e.g., Brown, 257 F.3d at

823 (“Appellant Ronald Brown was employed by the Washington,

D.C. office of Wheat First Securities . . . .”); LaPrade, 246

F.3d at 704 (“Linda E. LaPrade appeals the confirmation of an

arbitration award requiring her to pay a portion of the forum

fees for arbitration of her statutory and non-statutory claims

against her former employer.”).

     Dr. Andresen also argues that she is seeking to enforce, at

least in part, her federal statutory rights and courts to-date

have only narrowly construed the reach of Cole’s per se rule to

forbid that rule from applying in the context of non-federal

statutory and common law claims. See Pl.’s Suppl. Br., ECF No.

17 at 4-6. But Dr. Andresen’s line of reasoning here overlooks

                                  17
the cases where plaintiffs made federal statutory claims and

Cole’s per se rule still did not apply, see, e.g., Shatteen, 113

F. Supp. 3d at 182;6 Toledano, 501 F. Supp. 2d at 148, and, more

importantly, overlooks the broader proposition, elucidated

above, that emerges from the post-Green Tree cases: that Cole’s

per se rule should be applied only when the circumstances

exactly match those in Cole. Those circumstances include a

challenge to a primary arbitration clause as opposed to a

challenge to a delegation provision. The Court fully recognizes

that some of the rights Dr. Andresen ultimately seeks to enforce

are federal rights and, accordingly, is unconvinced by IntePros’

argument that “the discrete antecedent issue of whether the

Agreement can be arbitrated is separate from the actual

arbitration of [Dr. Andresen’s] statutory rights.” See Def.’s

Suppl. Br., ECF No. 16 at 12. That Dr. Andresen ultimately seeks

to enforce federal statutory rights does make her situation

similar to the situation of the plaintiff in Cole. But, contrary

to her assertion otherwise, see Pl.’s Suppl. Br., ECF No. 17 at


6 Dr. Andresen argues that the arbitration agreement in Shatteen
only required the plaintiff to pay a $125.00 filing fee and to
split the cost of the first arbitral hearing day and so the
agreement there did not contemplate disproportionate fee sharing
and thus was consistent with Cole. Pl.’s Suppl. Br., ECF No. 17
at 8. But the Shatteen court’s assessment of whether arbitration
was cost-prohibitive based on the relevant facts and
circumstances is the antithesis of the application of a per se
rule and, instead, is consistent with the case-by-case analysis
contemplated by Green Tree.
                               18
6 n.1, the difference between a challenge to a primary

arbitration clause (as was the case in Cole) and a challenge to

a delegation provision (as is the case here) is a difference

that is dispositive in concluding that Cole’s per se rule should

not apply in this case.

     Two additional considerations bolster the Court’s

conclusion here. First, Cole’s per se rule was grounded in a

concern that “prohibitively expensive” arbitration costs would

deter an employee from “pursu[ing] his statutory claims.” See

105 F.3d at 1484. Such prohibitive costs are less likely to

arise in the relatively straightforward context of arbitrating

arbitrability than in the context of arbitrating the underlying

“more complex and fact-related aspects of the alleged employment

discrimination.” See Rent-A-Center, 561 U.S. at 74. Thus Cole’s

concern with not deterring employment discrimination claims will

not likely be frustrated over the run of cases by not extending

whatever remains of Cole’s per se rule to a challenge to a

delegation provision. Second, the Court is guided by the well-

established principle that “‘any doubts concerning the scope of

arbitrable issues should be resolved in favor of arbitration.’”

Dowley v. Dewey Ballantine, LLP, No. 05-622, 2006 WL 1102768, at

*2 (D.D.C. Apr. 26, 2006) (quoting Moses H. Cone Mem’l Hosp.,

460 U.S. at 24-25). In light of that principle, any doubts the

Court has about the reach of Cole’s per se rule should be

                               19
resolved by narrowly construing that rule. Accordingly, for all

of these reasons, Cole’s per se rule does not apply in the

context of Dr. Andresen’s challenge to the Agreement’s

delegation provision.7

     B.   The Delegation Provision is Enforceable as to Dr.
          Andresen’s District of Columbia Statutory Claims But,
          Under Green Tree, the Delegation Provision is
          Unenforceable as to Her Federal Statutory Claims

     Having concluded that whatever remains of Cole’s per se

rule does not apply in the context of a challenge to a

delegation provision, the Court turns to assessing whether Dr.

Andresen carries her burden under Green Tree of demonstrating

that arbitrating arbitrability would be prohibitively expensive,

thereby frustrating the effective vindication of her statutory

rights. See 531 U.S. at 92. At the outset, the Court notes that

whether or not the Green Tree analysis applies in the context of

a cost-prohibitiveness challenge to a delegation provision where

Dr. Andresen’s claims under federal statutes are concerned, the

Green Tree analysis is foreclosed where her claims under

District of Columbia statutes——which are “akin to state




7 Even if Cole’s per se rule could be understood to apply in the
context of a challenge to a delegation provision where federal
statutory claims are at issue, it still would not apply in the
context of Dr. Andresen’s District of Columbia statutory claims.
See Nelson, 215 F. Supp. 2d at 157 (“[T]he per se invalidation
rule announced in Cole does not apply to this case since only
District of Columbia statutory and common law claims are being
pursued.”).
                               20
statutes,” Nelson, 215 F. Supp. 2d at 157 n.12——are concerned.

To be sure, in the past District Courts in this Circuit have

taken conflicting approaches when deciding whether effective

vindication of statutory rights doctrine——of which Green Tree is

a part——applies in the context of state and District of Columbia

law claims. Compare Toledano, 501 F. Supp. 2d at 147, 150 & n.8

(refusing to apply the Green Tree analysis in the context of

state law claims but applying it to federal statutory claims

because “the two types of claims implicate different bodies of

legal precedent”), with Fox, 920 F. Supp. 2d at 101-02 (applying

Green Tree in the context of District of Columbia statutory and

common law claims). And in Booker v. Robert Half International,

Inc., 413 F.3d 77 (D.C. Cir. 2005), the D.C. Circuit applied

effective vindication doctrine in the context of a District of

Columbia statutory claim. See 413 F.3d at 79-86. But Booker was

decided before AT&T Mobility LLC v. Concepcion, 563 U.S. 333

(2011), where the Supreme Court impliedly clarified that

effective vindication doctrine does not apply where state law is

concerned. See Italian Colors, 133 S. Ct. at 2319-20 (explaining

that AT&T Mobility held that the FAA preempted a state law

conditioning enforcement of arbitration on the availability of

class procedure but did not cite the Court’s effective

vindication precedents because “AT&T Mobility involved a state

law, and therefore could not possibly implicate the effective-

                               21
vindication rule.”) (Kagan, J., dissenting); see also Torres v.

CleanNet, U.S.A, Inc., 90 F. Supp. 3d 369, 378 & n.6 (E.D. Pa.

2015) (distinguishing Booker because it pre-dated AT&T Mobility

and Justice Kagan’s explanation of AT&T Mobility’s implication

and holding that effective vindication doctrine does not apply

where state statutes are concerned). Accordingly, an effective

vindication analysis under Green Tree is inapposite where Dr.

Andresen’s District of Columbia statutory claims are concerned.

The delegation provision as to those claims is thus enforceable.

     Having determined that Green Tree, as part of the effective

vindication doctrine, can only apply where federal statutory

claims are concerned, the Court must next determine whether

Green Tree applies in the context of a challenge to a delegation

provision even when the underlying claims are federal ones.

IntePros argues that the analysis under Green Tree is

inapplicable in the context of a challenge to a delegation

provision. See Def.’s Suppl. Br., ECF No. 16 at 13-15; Def.’s

Suppl. Reply Br., ECF No. 19 at 6-7. It argues that the Green

Tree analysis “only applies . . . where a party is directly

seeking to vindicate statutory rights.” Def.’s Suppl. Br., ECF

No. 16 at 13-14 (emphasis added). In other words, IntePros’

position is that the Green Tree analysis only applies when the

challenge is to a primary arbitration clause as opposed to a

delegation provision. Because an effective vindication of

                               22
statutory rights argument under Green Tree is foreclosed in the

delegation provision context, IntePros reasons, the only cost-

prohibitiveness argument available to Dr. Andresen is one

sounding in the doctrine of state law substantive

unconscionability and she failed to make any such argument. See

id. at 14-15.

     The Court is not convinced that the Green Tree analysis is

inapposite where the underlying claims are federal statutory

ones and the cost-prohibitiveness challenge is posed to a

delegation provision. IntePros has not pointed to a case where a

court has held that the Green Tree analysis is foreclosed where

a plaintiff has made federal statutory claims and has mounted a

challenge to a delegation provision,8 and the small amount of


8 IntePros points to Mercadante as supporting the conclusion that
Green Tree only applies when a challenge is made to a primary
arbitration clause, as opposed to when a challenge is made to a
delegation provision. See Def.’s Suppl. Reply Br., ECF No. 19 at
7. In that case, the plaintiffs had asserted state common law
and federal statutory claims and one of their challenges to the
delegation provision at issue was cost-prohibitiveness stemming
from the arbitration agreement’s shifting of attorneys’ fees and
expenses from the defendants to the plaintiffs. 78 F. Supp. 3d
at 133, 143-44. According to IntePros, that the court there did
not apply——or even mention——Green Tree even though there were
federal statutory claims and the plaintiffs had asserted a cost-
prohibitiveness challenge to a delegation provision indicates
that the Green Tree analysis is inapposite in the context of a
delegation provision. See Def.’s Suppl. Reply Br., ECF No. 19 at
7. But the reason the Mercadante court did not apply Green Tree
seems to be because the plaintiffs there did not rely on it
under a federal common law effective vindication of statutory
rights theory and, instead, put all of their eggs in a state law
unconscionability basket. If the Mercadante court had meant to
                               23
relevant authority seems to suggest otherwise. See, e.g.,

Mohamed v. Uber Techs., Inc., Nos. 15-16178, 15-16181, 15-16250,

2016 WL 7470557, at *6-7 (9th Cir. Sept. 7, 2016) (indicating

that application of the effective vindication of federal

statutory rights doctrine in the context of a cost-

prohibitiveness challenge to a delegation provision is

appropriate but concluding that such application was unnecessary

given that the defendant had promised to pay the full costs of

arbitration).9

     The Court is also not convinced by IntePros’ reasoning that

when the issue is merely arbitrability the connection to

statutory rights is too attenuated to implicate the effective




suggest that the Green Tree analysis is foreclosed in the
context of a challenge to a delegation provision, it likely
would have said so explicitly.
9 Although IntePros does not rely upon Italian Colors in its

argument that Green Tree does not apply in the context of a
delegation provision, the Court notes that even if IntePros had
made such an argument the Court would have found it unavailing.
As noted by the Ninth Circuit when it indicated that it would
apply effective vindication doctrine in the context of a
delegation provision, in Italian Colors the Supreme Court
acknowledged that effective vindication may “‘cover filing and
administrative fees attached to arbitration that are so high as
to make access to the forum impracticable.’” Mohamed, 2016 WL
7470557, at *6 (quoting Italian Colors, 133 S. Ct. at 2310-11).
Filing and administrative fees that are so high that they bar
access to arbitrating arbitrability have the same effect as fees
that are so high that they bar access to arbitrating substantive
claims. It follows, then, that Green Tree is applicable in the
context of a challenge to a delegation provision just as much as
it is applicable in the context of a challenge to a primary
arbitration clause.
                               24
vindication of federal statutory rights doctrine and the

analysis under Green Tree that is part of that doctrine. Even

when the question at issue is the antecedent question of

arbitrability, federal statutory rights are still implicated

when a plaintiff has asserted federal statutory claims; the

federal statutory rights are just one step removed, so to speak,

when the issue is the question of arbitrability. Accordingly, it

is appropriate to apply the Green Tree analysis to Dr.

Andresen’s cost-prohibitiveness challenge to the delegation

provision as concerns her federal statutory claims.10


10The Court is of the view that it is doctrinally consistent not
to apply Cole’s per se rule in the context of a challenge to a
delegation provision but to apply the Green Tree analysis in
that same context. Although the Court recognizes that both Cole
and Green Tree are part of the federal common law doctrine of
effective vindication of statutory rights, their differing
treatment seems warranted for two reasons. First, part of the
rationale for the per se rule in Cole was a fear that arbitral
expenses would deter the bringing of federal employment
discrimination claims over the run of cases. See 105 F.3d at
1484. As already explained, that fear is lessened in the context
of arbitrating arbitrability as compared to the context of
arbitrating substantive claims. See supra Part III.A. That
difference has bolstered the Court’s conclusion that even if a
per se rule could apply in the context of a challenge to a
primary arbitration clause, a per se rule should not apply in
the context of a challenge to a delegation provision. See id.
The Green Tree Court, unlike the Cole court, did not heavily
rely on a deterrence-of-claims rationale and, instead, explained
that “even claims arising under a statute designed to further
important social policies may be arbitrated.” See 531 U.S. at
90. Thus there does not appear to be the same opening to
distinguish the primary arbitration clause and delegation
provision contexts when it comes to the Green Tree analysis.
Second, Cole has been subject to a consistent treatment of
narrow construal by both the D.C. Circuit and other District
                               25
     Green Tree requires that “where . . . a party seeks to

invalidate an arbitration agreement on the ground that

arbitration would be prohibitively expensive, that party bears

the burden of showing the likelihood of incurring such costs.”

531 U.S. at 92. “The majority of courts that have had occasion

to apply Green Tree’s burden-shifting approach to claims of

prohibitively expensive arbitration fees have . . . adopted a

case-by-case analysis.” Toledano, 501 F. Supp. 2d at 148; see

also Dowley, 2006 WL 1102768, at *6; Nelson, 215 F. Supp. 2d at

155. This case-specific inquiry “focuses, among other things,

upon the claimant’s ability to pay the arbitration fees and

costs, the expected cost differential between arbitration and

litigation in court, and whether that cost differential is so

substantial as to deter the bringing of claims.” Bradford, 238

F.3d at 556.

     Dr. Andresen has adequately demonstrated that arbitrating

arbitrability as to her federal statutory claims would be cost-

prohibitive for her.11 In her complaint, Dr. Andresen seeks



Courts in this Circuit since Green Tree was decided. That
continued whittling of Cole’s reach counsels extreme caution
when applying Cole’s per se rule. No similar caution seems
warranted where Green Tree is concerned.
11 Along with her supplemental brief requested by the Court, Dr.

Andresen filed various exhibits to support her assertion that
arbitrating arbitrability would be prohibitively expensive. One
of those exhibits is her Financial Status Declaration. See
Financial Status Decl., Ex. 4, ECF No. 18-1 at 1-4. Subsequent
to the filing of IntePros’ supplemental reply brief, Dr.
                               26
$300,000 in compensatory damages, in addition to unpaid overtime

wages, liquidated damages, double back pay, interest on lost

wages, punitive damages, and attorneys’ fees and costs. Am

Comp., ECF No. 10-1 at 113. Her claim amount thus appears to

fall in the $300,000 to $500,000 range, which calls for a $4,000

initial arbitration filing fee and a $3,500 final fee under the

applicable AAA Commercial Arbitration Rules. AAA Commercial

Arbitration Rules and Mediation Procedures, Administrative Fee

Schedules, (effective July 1, 2016), Ex. 1, ECF No. 18-1 at 1.

Thus arbitral filing fees alone sum to $7,500. The filing fee in

this court is $400. Fee Schedule, Ex. 8, ECF No. 18-1 at 1. The

total arbitral filing fee in this case thus is just a shade

under 19 times more expensive than the judicial filing fee.




Andresen filed a motion for leave to submit a Supplemental
Financial Status Declaration. See Pl.’s Mot. for Leave to Submit
Suppl. Financial Status Decl., ECF No. 21. IntePros argues that
the Court should not consider Dr. Andresen’s supplemental
declaration because it was not sworn or signed under penalty of
perjury. Def.’s Opp. to Mot. for Leave to Submit Suppl.
Financial Status Decl., ECF No. 22 at 1-4. In light of these
deficiencies, the Court DENIES Dr. Andresen’s motion for leave
to file and will not consider her supplemental declaration. See
Malik v. Equifax Info. Servs., LLC, No. 16-10477, 2016 WL
3900829, at *5 n.6 (E.D. Mich. July 19, 2016) (explaining that
although the court “accepted” the plaintiff’s declaration that
was unsworn and not signed under penalty of perjury when ruling
on a motion to compel arbitration, it “was not required to do
so” because “[t]he standard for resolution of a motion to compel
arbitration is the summary-judgment standard, and an unsworn
affidavit cannot be used to support or oppose a motion for
summary judgment”) (internal quotation marks and alteration
omitted).
                               27
Total arbitral cost must, however, also account for the

arbitrator’s compensation. IntePros suggests that an arbitrator

might demand $400 per hour, see Def.’s Suppl. Br., ECF No. 16 at

18, and Dr. Andresen, relying on the AAA Consumer Arbitration

Rules, suggests that an arbitrator serving on a case with a

hearing would demand $1,500 per day and that an arbitrator

serving on a case with a desk arbitration would demand $750 for

the whole case. AAA Consumer Arbitration Rules, Costs of

Arbitration, (effective January 1, 2016), Ex. 2, ECF No. 18-1 at

2.12 Even assuming the very low estimate of $750 is accurate,

arbitral compensation plus filing fees sum to $8,200. Additional

fees——hearing room rental fees, AAA Commercial Arbitration Rules

and Mediation Procedures, Administrative Fee Schedules,

(effective July 1, 2016), Ex. 1, ECF No. 18-1 at 2, and travel

and other expenses of the arbitrator, AAA Commercial Rules and

Mediation Procedures, (effective October 1, 2013), Rule 54, Ex.

3, ECF No. 18-1 at 3-4——must be added on top. Thus, at a very




12Even though the parties’ arbitration agreement incorporates
the AAA Commercial Arbitration Rules, Dr. Andresen relies on the
compensation scheme under the AAA Consumer Arbitration Rules as
her best estimate of compensation rates because the Commercial
Arbitration Rules do not specify compensation rates and instead
call for each arbitrator to be compensated at his or her “stated
rate of compensation.” See Pl.’s Suppl. Br., ECF No. 17 at 7
n.2. There is every reason to think that the arbitrator’s fee
under the Consumer Arbitration Rules are lower than the rates
that are typical under the Commercial Arbitration Rules that are
applicable in this case.
                               28
conservative minimum, arbitral fees and expenses in this case

are $8,200.

     But acknowledging that a minimum of $8,200 in expenses that

would not arise in the judicial context will arise in the

arbitral context does not end the Court’s analysis; it is

necessary to measure a possible share of this cost against Dr.

Andresen’s ability to pay. See Bradford, 238 F.3d at 556.

Between credit cards and her mortgage, Dr. Andresen has

$379,780.14 in debt, Financial Status Decl., Ex. 4, ECF No. 18-1

at 1, and her recurrent monthly expenses total $2,780.62. 13 Id.

She is currently making $3,791.14 per month after taxes, and has

$5,043.10 in savings and checking accounts and $70,706.84 in

retirement accounts. Id. at 1-2. She also has a condominium in

Washington, D.C.——from which she moved upon accepting her

current job in New York——listed for sale at $439,000. Id. at 1-

2; Zillow Listing, Ex. C, ECF No. 19-3 at 1.

     That Dr. Andresen is currently earning a monthly income

that marginally exceeds her monthly outlays, has some money in

savings and retirement accounts, and has a real property asset

that——if there is a willing buyer——might offset her debt does

not convince the Court that a share of at least $8,200 in




13Dr. Andresen included $1,468.52 in monthly mortgage payments
in her monthly expenses, but that mortgage debt has already been
accounted for in her total debt calculation.
                                29
arbitral expenses would not be cost-prohibitive. It appears that

Dr. Andresen, thankfully, is not completely destitute. But to

prevail on the cost-prohibitiveness analysis under Green Tree

does not require a party to prove abject poverty. Instead, it

only requires a party to demonstrate, under all the facts and

circumstances, “prohibitive expense.” Green Tree, 531 U.S. at

92. Dr. Andresen has demonstrated that she has to pay rent, pay

a mortgage, pay credit card debt, and pay for utilities, while

relying on a modest monthly salary and modest savings and

retirement accounts. Anyone who has ever been in her shoes can

attest that a potential multi-thousand dollar expense is

prohibitive. To demand that someone sell her one valuable asset

and run the risk of depleting her savings and dipping into her

modest retirement funds as the price of merely determining

whether her federal discrimination, retaliation, and unpaid

wages claims should be subject to judicial or arbitral

resolution is, quite simply, preposterous.

     None of IntePros’ arguments otherwise are convincing.

First, IntePros alleges that Dr. Andresen has not sufficiently

established the total costs of arbitration. Def.’s Suppl. Reply

Br., ECF No. 19 at 8-9. Not so. Dr. Andresen does not need to

exactly specify the costs of arbitration and, in any event, the

undisputed $7,500 filing fee, standing alone, is more than



                               30
sufficient to demonstrate cost-prohibitiveness when measured

against Dr. Andresen’s modest financial circumstances.

     Second, IntePros argues that because the arbitrator

ultimately gets to allocate arbitral fees and expenses and can

allocate those fees and expenses in interim or interlocutory

orders, any claim of cost-prohibitiveness is foreclosed at the

outset as too speculative. Def.’s Reply, ECF No. 15 at 2-3;

Def.’s Suppl. Br., ECF No. 16 at 17; Def.’s Suppl. Reply Br.,

ECF No. 19 at 9-10. Fox adopted just such a line of argument,

reasoning that “[s]ince the Agreement gives the arbitrator

discretion to apportion the arbitrator’s fees between the

parties, Fox’s speculation regarding the costs that he might

incur from the arbitration is insufficient to render it

unenforceable.” 920 F. Supp. 2d at 102. Although it is true that

a party’s “mere speculation” about how an arbitrator might

interpret or apply an arbitration agreement is not enough to

demonstrate cost-prohibitiveness, see Booker, 413 F.3d at 81,

there is no such speculation here and, accordingly, this Court

parts ways with Fox. The parties agree that under the Agreement

and under the incorporated AAA Commercial Arbitration Rules the

arbitrator would be allowed to allocate fees and expenses as he

or she deems appropriate in an interim or interlocutory order

and as part of the final award. See Pl.’s Opp., ECF No. 13 at 4-

5; Def.’s Suppl. Br., ECF No. 16 at 17. Even so, Dr. Andresen

                               31
would be forced to immediately front the $4,000 filing fee just

to get her foot in the arbitral door. See AAA Commercial

Arbitration Rules and Mediation Procedures, (effective October

1, 2013), Rule 53, Ex. 3, ECF No. 18-1 at 3 (“The filing fee

shall be advanced by the party or parties making a claim or

counterclaim, subject to final apportionment by the arbitrator

in the award.”). And, given that arbitration is expeditious——a

reality that IntePros itself emphasizes, see Def.’s Suppl. Br.,

ECF No. 16 at 16 (explaining that a party chooses arbitration to

benefit from “simplicity, informality, and expedition”)

(internal quotation marks omitted)——an arbitral hearing would

likely soon follow on the heels of Dr. Andresen’s payment of the

$4,000 filing fee. But the mere scheduling of that hearing would

require Dr. Andresen to advance the additional $3,500 final fee.

See Commercial Arbitration Rules and Mediation Procedures,

Administrative Fee Schedules, (effective July 1, 2016), Ex. 1,

ECF No. 18-1 at 2 (“The Final Fee . . . is payable in advance at

the time the first hearing is scheduled.”). There is thus no

speculation that Dr. Andresen will have to advance, at a

minimum, $4,000——but, more likely, $7,500——as soon as she

proceeds to arbitration and, all the while, have her fingers

crossed that she gets any of that money back at some point

during the arbitration or when all is said and done. In short,

even assuming that Dr. Andresen’s condominium is sold and the

                               32
proceeds are enough to offset her sizable debt, there is no

speculation that it is cost-prohibitive for someone making

$3,791.14 per month with monthly outlays of $2,780.62 and just

over $5,000 in the bank and modest retirement savings to advance

$4,000 to $7,500 in an arbitration.

     Third, IntePros argues that finding arbitration cost-

prohibitive now would be unfair because when Dr. Andresen’s

relationship with IntePros concluded in June 2014, Dr. Andresen

had the financial means to pay the expenses of arbitration.

Def.’s Suppl. Reply Br., ECF No. 19 at 11-12. Although IntePros

can point to cases where courts have weighted a party’s

“financial condition when the contract was formed or during the

intervening time when [it] was eligible to file for arbitration”

more heavily than its “present financial condition” in the cost-

prohibitiveness analysis, see, e.g., Zumpano v. Omnipoint

Commc’ns, No. 00-595, 2001 WL 43781, at *11 (E.D. Pa. Jan. 18,

2001), this Court is of the view that that approach is misguided

and that the better approach is to assess a party’s “current

ability to pay.” Toledano, 501 F. Supp. 2d at 149 (citing

Bradford, 238 F.3d at 558 n.7). The last thing a typical person

is going to be thinking about at the time of contract formation

is asserting federal statutory claims, and even when someone

becomes “eligible” to file for arbitration, it often takes some

time for that person to assess her options and to decide how to

                               33
proceed. Accordingly, looking to present financial condition

makes the most sense. IntePros’ assertion that looking to Dr.

Andresen’s current strained financial situation will incentivize

others to wait to file claims at the time of a “preferred,

tactical financial situation,” see Def.’s Suppl. Reply Br., ECF

No. 19 at 11, is totally unconvincing. It strains credulity to

think that someone would purposely subject himself to financial

strain in order to potentially avoid the costs of arbitration in

the future.

     Fourth, IntePros points to Koridze v. Fannie Mae Corp., 593

F. Supp. 2d 863 (E.D. Va. 2009) to support the position that Dr.

Andresen’s “current financial condition is insufficient to make

a showing of inability to pay any arbitration costs and fees.”

Def.’s Suppl. Reply Br., ECF No. 19 at 12-13. In Koridze, even

though the plaintiff had demonstrated that, among other indicia

of financial strain, she was unemployed and was not receiving an

income, had minimal bank account and retirement funds, had over

$3,000 in monthly expenses, had negligible equity in her

condominium, and was supporting her children and extended

family, the court held she had not demonstrated cost-

prohibitiveness because, in part, she had the “ability to obtain

gainful employment” and had “exemplary employment

qualifications.” 593 F. Supp. 2d at 869-70. IntePros reasons

that because Dr. Andresen is in better financial shape than the

                               34
plaintiff in Koridze and, like the plaintiff in Koridze, has

educational and employment qualifications, it follows that Dr.

Andresen fails to demonstrate cost-prohibitiveness. Not so. This

Court parts ways with Koridze’s suggestion that a hypothetical

possibility of a better financial future forecloses a

demonstration of cost-prohibitiveness. An assessment of “the

claimant’s ability to pay the arbitration fees and costs,”

Bradford, 238 F.3d at 556 (emphasis added), must mean a

claimant’s present and actual ability to pay arbitral fees and

costs because the effective vindication doctrine places a

premium on avoiding “speculative” assessments. See Green Tree,

531 U.S. at 91; Booker, 413 F.3d at 81. Accordingly, what income

Dr. Andresen might make given her credentials is of little

moment in this analysis. In any event, what the Koridze court

found “most important[ ]” in its own analysis was that the

plaintiff there had not provided any evidence of the baseline

cost of litigation. See 593 F. Supp. 2d at 870-71. Here, Dr.

Andresen has demonstrated that the filing fee in this Court is

$400 and that she would have to advance at a minimum $4,000 and,

more likely, $7,500 in the arbitral forum. That discrepancy,

standing alone, is sufficient to demonstrate that arbitrating

arbitrability is cost-prohibitive.

     Fifth, IntePros argues that the Court should give little

weight to Dr. Andresen’s Financial Status Declaration. Def.’s

                               35
Suppl. Reply Br., ECF No. 19 at 13-16. It first asserts that, as

a general rule, unsupported declarations should be afforded

little weight in this context. Id. at 13-14. But that argument

ignores that courts do indeed rely on such declarations when

considering cost-prohibitiveness. See, e.g., Nesbitt v. FCNH,

Inc., 74 F. Supp. 3d 1366, 1374 (D. Colo. 2014), aff’d, 811 F.3d

371 (10th Cir. 2016) (“Ms. Nesbitt has filed an affidavit

establishing that she cannot afford the costs of proceeding

under the Commercial Rules.”). IntePros then argues that Dr.

Andresen failed to indicate in her Declaration that she has a

Washington, D.C. condominium listed for sale at $439,000 and

that she has failed to explain why she has not rented that

condominium if she is not living in it. Def.’s Supply Reply Br.,

ECF No. 19 at 14-16. But the virtue of a burden-shifting

framework is that it has given IntePros the opportunity “to come

forward with contrary evidence” to try to demonstrate that

arbitral “expenses are not, in fact, prohibitive,” Nelson, 215

F. Supp. 2d at 157 (internal quotation marks and alteration

omitted), and, by bringing Dr. Andresen’s condominium to the

Court’s attention, IntePros has done well to take advantage of

that opportunity. But what IntePros has presented does not lead

the Court to waiver in its conclusion that the costs of

arbitrating arbitrability would be cost-prohibitive for Dr.

Andresen. Regarding possible rent, Dr. Andresen did not start

                               36
her current job in New Yok until July 2016, see Financial Status

Decl., Ex. 4, ECF No. 18-1 at 1, so, assuming she were able to

obtain a tenant, given the limited amount of time that elapsed

between June 2016 and the filing of her Declaration in October

2016, it does not appear that her financial situation would have

markedly changed due to any rent received during that period.

Regarding the sale of the condominium, assuming that a sale were

to occur, the proceeds would essentially offset her debt of

approximately $380,000, leaving her to rely on about $5,000 in

savings and modest retirement funds to advance a $4,000 to

$7,500 arbitral filing fee. Again, even if Dr. Andresen has not

been reduced to abject poverty, the arbitral costs here are

prohibitive. Accordingly, given this cost-prohibitiveness, the

delegation provision is unenforceable as to Dr. Andresen’s

federal statutory claims.

     C.   The Delegation Provision is Made Enforceable as to Dr.
          Andresen’s Federal Statutory Claims by Severing the
          Offensive Cost- and Fee-Shifting Provisions
          in the Agreement by Allocating to IntePros the Costs
          of Arbitrating Arbitrability as to the Federal
          Statutory Claims

     Having concluded that the delegation provision is

unenforceable as to Dr. Andresen’s federal statutory claims, the

Court cannot necessarily proceed to answering the question of

arbitrability as concerns those claims. A delegation provision,

after all, is just a specific version of an arbitration


                               37
agreement. See Rent-A-Center, 561 U.S. at 70. And when a primary

arbitration agreement is deemed unenforceable as written, the

subsequent question a court must answer is whether to “decline

to enforce the agreement and allow the statutory claims to

proceed in court, or sever the offensive provision and require

arbitration under the remainder of the agreement[.]” Booker, 413

F.3d at 79. Accordingly, when a delegation provision is deemed

unenforceable as written, the subsequent question a court must

answer is whether to decline to enforce the delegation provision

and allow the question of arbitrability to proceed in court, or

sever the offensive portion of the delegation provision and

require the parties to arbitrate arbitrability under what

remains of the delegation provision.

     “When an arbitration agreement contains invalid terms but

the overarching contract has a severability clause, the FAA

requires that we turn to state law to determine whether the

contract’s severability clause may be used to remove the

offending terms in the arbitration agreement.” Bodine v. Cook’s

Pest Control Inc., 830 F.3d 1320, 1325 (11th Cir. 2016); see

Booker, 413 F.3d at 83 (noting that District of Columbia law

permits courts “to sever provisions in violation of public

policy, while enforcing the remainder of the agreement”). If the

severability clause is enforceable under the relevant state law,

“any invalid provisions in the arbitration agreement are

                               38
severable.” Bodine, 830 F.3d at 1325 (internal quotation marks

and alteration omitted).

     Here, the Agreement contains the following severability

clause: “The provisions of this Agreement and the covenants

herein contained shall be construed independently of each other,

it being the express intent of the parties hereto that the

obligation of, and restrictions on, the parties as provided

herein shall be enforced and given effect to the fullest extent

legally permissible.” Agreement, Provision 9(d), Ex. 2, ECF No.

12-1 at 4. To determine whether this severability clause can be

given effect, the Court turns to Virginia law because the

Agreement specifies that it “shall be governed by and construed

in accordance with the laws of the State in which the services

are provided hereunder,” Agreement, Provision 9(e), Ex. 2, ECF

No. 12-1 at 4, and Dr. Andresen performed her services in

Virginia. See Am. Compl., ECF No. 10-1 ¶¶ 13-14. Under Virginia

law, the parties’ intent controls. See Schuiling v. Harris, 286

Va. 187, 192-93 (2013). Here, the ordinary meaning of the

severability provision indicates their intent to permit the

severance of offensive provisions. See id. at 194 (explaining

that the parties intended to permit the severance of offensive

provisions because of “the severability provision itself”);

Bodine, 830 F.3d at 1328 (“[T]he Contract contains an express

severability provision, applicable to all portions of the

                               39
Contract, reflecting the parties’ clear intent to remove any

invalid or unenforceable terms and apply the remainder.”);

Booker, 413 F.3d at 85 (“By invoking the severability clause to

remove a discrete remedial provision, the district court honored

the intent of the parties . . . .”). The arbitration clause here

does state that “in any arbitration proceeding arising under

this Agreement, the arbitrators shall not have the power to

change, modify or alter any express condition, term or provision

hereof.” Agreement, Provision 9(f), Ex. 2, ECF No. 12-1 at 4.

But that provision has the effect of forbidding the arbitrators

from severing or otherwise modifying the delegation provision,

arbitration clause, or any other portion of the Agreement and,

when read against the severability clause in Provision 9(d),

only underscores the parties’ intent to permit a court of

competent jurisdiction to sever unenforceable provisions.

     Additionally, arbitration clauses are generally struck

entirely when, rather than “one readily severable illegal

provision,” they are “instead pervasively infected with

illegality.” Booker, 413 F.3d at 84. Here, the only portion of

the delegation provision that is unenforceable is the express

expense-shifting term and the incorporation of the provisions of

the AAA Commercial Arbitration Rules that mandate exorbitant

advance filing expenses and run the risk of saddling Dr.

Andresen with prohibitive costs. By removing these offending

                               40
provisions, the Court can appropriately defer to the arbitrator

on the question of arbitrability.

     To effectuate this severance, the Court directs that

IntePros cover the cost of the initial filing fee and final fee

applicable in the arbitral forum, less the $400 that is

analogous to the filing fee in this Court. Further, the

compensation due to the arbitrator for resolving the question of

arbitrability as to the federal statutory claims and the various

miscellaneous fees that would not otherwise arise in the

judicial context——like the arbitrator’s travel expenses and

hearing room rental fees——as those fees relate to the federal

statutory claims shall be borne by IntePros. See Jones v.

Fujitsu Network Commc’ns, Inc., 81 F. Supp. 2d 688, 693 (N.D.

Tex. 1999) (using a severability clause to strike an

unenforceable fee-splitting provision and allocate the

prohibitive arbitral fees and expenses to the employer). Having

cured the delegation provision of its cost-prohibitive

provision, the question of arbitrability is properly reserved

for arbitral resolution.14


14As previously indicated, Dr. Andresen has not demonstrated
that the delegation provision is unenforceable as to her
District of Columbia statutory claims because she has only
advanced effective vindication of statutory rights theories to
challenge the delegation provision and effective vindication
doctrine is inapplicable to District of Columbia statutory
claims. Supra Part III.B. Thus there is no offensive portion of
the delegation provision to remedy when it comes to her District
                               41
IV. Conclusion

     For the foregoing reasons, IntePros’ renewed motion to

compel arbitration is GRANTED, and this action is STAYED during

the pendency of the arbitration. IntePros will be responsible

for arbitral fees and expenses in the manner specified herein.

If an arbitrator determines that all claims in this case are

arbitrable, IntePros may at that time seek dismissal. An

appropriate Order accompanies this Memorandum Opinion.

  SO ORDERED.

Signed:   Emmet G. Sullivan
          United States District Judge



of Columbia statutory claims. Accordingly, IntePros is not
responsible for the compensation due to the arbitrator for
resolving the question of arbitrability as to the District of
Columbia statutory claims nor is it responsible for
miscellaneous fees as they relate to the District of Columbia
statutory claims. Instead, pursuant to the express expense-
shifting term and the incorporated AAA Commercial Arbitration
Rules, the allocation of that compensation and those fees is
left to the arbitrator’s discretion. Such a neat division
between federal and District of Columbia statutory claims in the
context of the initial filing fee and the final fee, however,
does not seem to be available. That is because the filing fee is
based on the monetary amount sought via the claims, not the
number or type of claims. See AAA Commercial Arbitration Rules
and Mediation Procedures, Administrative Fee Schedules,
(effective July 1, 2016), Ex. 1, ECF No. 18-1 at 1. Dr. Andresen
appears to be seeking $300,000 to $500,000 pursuant to all of
her claims. That amount is not claim dependent. In other words,
she is seeking that same amount even if she prevails only on her
federal statutory claims and loses on all of her District of
Columbia statutory claims. Accordingly, IntePros is responsible
for the entirety of the initial filing and final fees (less
$400), even if that payment incidentally covers Dr. Andresen’s
District of Columbia statutory claims in addition to her federal
statutory claims.
                               42
February 27, 2017




                    43
