     10-829-cv
     Arrigo v. Blue Fish Commodities, Inc.


                                       UNITED STATES COURT OF APPEALS
                                           FOR THE SECOND CIRCUIT

                                                  SUMMARY ORDER

     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
     SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
     FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
     CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
     EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
     “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
     PARTY NOT REPRESENTED BY COUNSEL.

 1         At a stated term of the United States Court of Appeals for the Second Circuit, held at
 2   the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
 3   York, on the 7th day of February, two thousand eleven.
 4
 5   PRESENT: GUIDO CALABRESI,
 6            RICHARD C. WESLEY,
 7            GERARD E. LYNCH,
 8                          Circuit Judges.
 9
10   ------------------------------------------------------------------
11
12   ANTHONY ARRIGO, individually and on behalf of all others similarly situated,
13
14                                                 Plaintiff-Appellant,
15
16                                   v.                                            No. 10-829-cv
17
18   BLUE FISH COMMODITIES, INC., ANDREW FISHER,
19
20                                                 Defendants-Appellees.
21
22   --------------------------------------------------------------------
23
24   FOR APPELLANT:                          Erik H. Langeland, New York, New York.
25
26   FOR APPELLEES:                          Joseph B. Cartafalsa, Putney Twombly Hall & Hirson LLP,
27                                           New York, New York.
28
29             Appeal from the United States District Court for the Southern District of New York

30   (Victor Marrero, Judge).
 1          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

 2   DECREED that the judgment of the district court is AFFIRMED.

 3          Plaintiff-appellant Anthony Arrigo brought this putative class action against

 4   defendants-appellees Blue Fish Commodities and Andrew Fisher (collectively, “Blue Fish”),

 5   asserting federal and state law claims for unpaid overtime. The district court granted Blue

 6   Fish’s motion to compel arbitration and dismissed the complaint. Arrigo appeals. We

 7   assume the parties’ familiarity with the facts and record of prior proceedings, which we

 8   reference only as necessary to explain our decision.

 9          On July 14, 2008, three months into his employment at Blue Fish, Arrigo signed a

10   comprehensive employment agreement. The district court concluded that the agreement

11   contained a provision requiring the arbitration of Arrigo’s claims. “We review the district

12   court’s determination of the arbitrability of [Arrigo’s claims] de novo, while accepting the

13   court’s factual determinations unless clearly erroneous.” Garten v. Kurth, 265 F.3d 136, 141-

14   42 (2d Cir. 2001).

15          “[A]rbitration is a matter of contract.” AT & T Techs., Inc. v. Commc’ns Workers

16   of America, 475 U.S. 643, 648 (1986) (internal quotation marks omitted). Therefore, “a

17   court may not compel arbitration until it has resolved the question of the very existence of

18   the contract embodying the arbitration clause,” Specht v. Netscape Commc’ns Corp., 306

19   F.3d 17, 26 (2d Cir. 2002) (internal quotation marks omitted), nor may it require parties “to

20   arbitrate issues that they have not specifically agreed to submit to arbitration,” Shaw Group,

21   Inc. v. Triplefine Int’l Corp., 322 F.3d 115, 120 (2d Cir. 2003). However, “any doubts



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 1   concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether

 2   the problem at hand is the construction of the contract language itself or an allegation of

 3   waiver, delay, or a like defense to arbitrability.” Moses H. Cone Mem’l Hosp. v. Mercury

 4   Constr. Corp., 460 U.S. 1, 24-25 (1983).

 5          In this case, the parties’ signed agreement contains language authorizing an arbitrator

 6   “to resolve all federal and state statutory claims.” The parties further memorialized their

 7   understanding of that arbitration provision in a separate paragraph that reads: “[t]he parties

 8   understand that by entering this [a]greement to arbitrate, they are agreeing to substitute one

 9   legitimate dispute resolution forum (arbitration) for another (judic[i]al), and thereby are

10   waiving their right to have their disputes, except as set forth herein, resolved in court.”

11   Arrigo’s unpaid overtime claims arise under federal and state statutes, and therefore fit

12   comfortably within the jurisdiction that the parties have assigned to the arbitrator. As a

13   result, arbitration is the proper forum for Arrigo’s claims.

14          Arrigo’s argument that the arbitration provision does not apply to claims that accrued

15   prior to his signing of the employment agreement was not raised below and is therefore

16   waived. Baker v. Dorfman, 239 F.3d 415, 423 (2d Cir. 2000). In any event, nothing in the

17   arbitration provision places a temporal limitation on arbitrability. In fact, the provision

18   encompasses “all federal and state statutory claims” and “any other . . . basis of action

19   pertaining to [Arrigo’s] employment.” (emphasis added.) Furthermore, the agreement “to

20   substitute” arbitration for judicial resolution of disputes indicates that the parties anticipated

21   arbitration as the primary method of dispute resolution. As a result, the agreement is at least



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 1   “susceptible of an interpretation” that it covers preexisting disputes between the parties. See

 2   Peerless Imps., Inc. v. Wine, Liquor & Distillery Workers Union Local One, 903 F.2d 924,

 3   928 (2d Cir. 1990) (internal quotation marks omitted). “And if there is doubt about that

 4   matter – about the ‘scope of arbitrable issues’ – we should resolve that doubt ‘in favor of

 5   arbitration.’” Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444, 452 (2003), quoting Mitsubishi

 6   Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626 (1985); see also Vera v.

 7   Saks & Co., 335 F.3d 109, 117 (2d Cir. 2003). We therefore conclude that the parties agreed

 8   to arbitrate all of Arrigo’s unpaid overtime claims, including those accruing prior to the

 9   creation of the arbitration agreement.

10          Arrigo argues that a portion of the employment agreement is “incomprehensible” and

11   therefore the entire contract is unenforceable. Arrigo is correct that the agreement contains

12   an ungrammatical indemnification provision* that directly precedes, and partially blends

13   with, the arbitration clause. Nevertheless, even a wholly nonsensical indemnification

14   provision would have no effect on the arbitrability of Arrigo’s claims. “[A]n arbitration

15   provision is severable from the remainder of the contract” and so “a party’s challenge to

16   another provision of the contract, or to the contract as a whole, does not prevent a court from


            *
              Arrigo argues that the indemnification provision is unconscionable because it could
     be interpreted so as to require Arrigo to indemnify Blue Fish for the full cost of this, or any
     other, dispute between the parties. However, Blue Fish’s briefing expressly “waived any
     entitlement to indemnification . . . and . . . attorneys’ fees, other than in the very limited, and
     reasonable, circumstances of ‘frivolous’ or ‘bad faith’ claims.” (emphasis in original.) We
     have relied on Blue Fish’s concessions in reaching our decision in this case. As a result,
     Blue Fish would be judicially estopped from later seeking indemnification or attorneys’ fees
     in any manner inconsistent with the position that they have taken in this Court. See Mitchell
     v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 6 (2d Cir. 1999).

                                                     4
 1   enforcing a specific agreement to arbitrate.” Rent-A-Center, West, Inc. v. Jackson, 130 S.

 2   Ct. 2772, 2778 (2010) (internal quotation marks omitted). As a result, “unless the challenge

 3   is to the arbitration clause itself, the issue of the contract’s validity is considered by the

 4   arbitrator in the first instance.” Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440,

 5   445-46 (2006). While the indemnification provision is somewhat garbled, its opacity does

 6   not render ambiguous the clear, unequivocal, broad and emphatic arbitration provision.

 7   Therefore, we must treat the arbitration provision as valid and leave the unscrambling of the

 8   indemnification provision to the arbitrator.

 9          Arrigo’s claim that the employment agreement is procedurally unconscionable

10   because Blue Fish forced him to choose between signing it or losing his job is also for the

11   arbitrator to decide. The parties agreed that “[t]he Arbitrator, and not any federal, state, or

12   local[] court or agency, shall have exclusive authority to resolve any dispute relating to the

13   . . . enforceability or formation of this Agreement . . . .” In interpreting identical language

14   in another arbitration agreement, the Supreme Court recently held that such a provision

15   reserves for the arbitrator procedural unconscionability arguments challenging the validity

16   of the agreement as a whole. Rent-A-Center, 130 S. Ct. at 2779.

17          We have considered all of Arrigo’s remaining arguments and find them to be without

18   merit. Accordingly, the judgment of the district court is AFFIRMED.

19                                       FOR THE COURT:
20                                       Catherine O’Hagan Wolfe, Clerk of Court
21




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