                            NOT RECOMMENDED FOR PUBLICATION
                                   File Name: 16a0516n.06

                                                 No. 16-1027
                                                                                                    FILED
                                                                                            Sep 02, 2016
                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT                                 DEBORAH S. HUNT, Clerk

ALIXPARTNERS, LLP,                                               )
                                                                 )
        Plaintiff-Appellee,                                      )
                                                                 )
v.                                                               )        ON APPEAL FROM THE
                                                                 )        UNITED STATES DISTRICT
CHARLES BREWINGTON,                                              )        COURT FOR THE EASTERN
                                                                 )        DISTRICT OF MICHIGAN
        Defendant-Appellant.                                     )
                                                                 )
                                                                 )



BEFORE:          MOORE, ROGERS, and SENTELLE,* Circuit Judges.

        SENTELLE, Senior Circuit Judge. AlixPartners, LLP (“Alix”) hired Charles Brewington

(“Brewington”), a resident of Texas, as a Talent Acquisitions Director in Alix’s Dallas office.

After he was terminated by Alix, Brewington filed a demand for arbitration on behalf of himself

and a purported class of current, former, and potential Alix employees. Alix filed an action in

the Eastern District of Michigan, seeking a declaratory judgment that Brewington was precluded

from pursuing claims in arbitration on behalf of any purported class. Brewington moved to

dismiss Alix’s complaint for lack of personal jurisdiction under Federal Rule of Civil Procedure

12(b)(2). The district court, finding that Brewington’s contacts with the State of Michigan were

sufficient to establish personal jurisdiction, denied the motion. Alix filed a motion for summary

judgment, arguing that the arbitration clause in Brewington’s employment agreement did not

*
        The Honorable David B. Sentelle, Senior Circuit Judge for United States Court of Appeals for the District
of Columbia Circuit, sitting by designation.
No. 16-1027, AlixPartners v. Brewington


authorize him to pursue classwide arbitration. The district court granted Alix’s motion for

summary judgment and enjoined Brewington from pursuing claims in arbitration on behalf of

any absent individual or purported class. For the reasons set forth below, we affirm.

                                    I.     BACKGROUND

       Alix is a global consulting and business advisory firm with offices around the world,

including one in Southfield, Michigan. Alix’s Michigan office processes and administers payroll

and benefits for employees in the United States and is directly involved in the hiring of new

personnel in the United States. In early 2013, Alix hired Brewington, a Texas resident, to serve

as a Talent Acquisitions Director and a member of Alix’s Corporate Services team in its Dallas,

Texas office. The employment agreement contains two provisions relevant to this case. First,

the agreement provides that it “will be construed and interpreted in accordance with the laws of

the State of Michigan.” Second, it contains the following arbitration clause:

               Except for any action by the Company seeking any injunctive
               relief or other equitable relief against you, any dispute arising out
               of or in connection with any aspect of this Agreement and/or any
               termination of employment thereunder . . ., shall be exclusively
               subject to binding arbitration under the National Rules for the
               Resolution of Employment Disputes of the American Arbitration
               Association (“AAA”), provided all substantive rights and remedies
               including any applicable damages provided under any pertinent
               statute(s) related to such claims . . . shall be available in the AAA
               forum. Any decision of the arbitrator shall be final and binding as
               to both parties, and enforceable by any court of competent
               jurisdiction. . . .

       In March 2014, Brewington was terminated. He responded by filing a demand for

arbitration with the AAA, asserting claims under Title VII of the Civil Rights Act of 1964, 42

U.S.C. §§ 2000e et seq. Brewington filed the demand not only on behalf of himself, but also on

behalf of a purported nationwide class of current, former, and potential Alix employees. Alix


                                               -2-
No. 16-1027, AlixPartners v. Brewington


responded by filing an action in the United States District Court for the Eastern District of

Michigan under the Declaratory Judgment Act, 28 U.S.C. §§ 2201–2202, seeking a declaration

that Brewington was precluded from pursuing claims in arbitration on behalf of any purported

class or absent individuals.

       Brewington moved to dismiss Alix’s action, pursuant to Federal Rule of Civil Procedure

12(b)(2), for lack of personal jurisdiction. Alix responded by submitting declarations and record

evidence concerning Brewington’s contacts with Michigan. The record shows that, although

Brewington lives in Texas, Alix’s Michigan-based personnel were involved in his hiring. As

part of the candidate evaluation process, for example, Brewington communicated with Dr. Leslie

Evola, an on-staff psychologist in the Michigan office, and completed a personality and skills

assessment that was reviewed by Dr. Evola. After Alix extended an offer to Brewington, Alix’s

Director of Human Resources signed the proposed agreement in Michigan and sent it to

Brewington in Texas to be signed and returned. Brewington sent the completed agreement,

which included the Michigan choice-of-law provision, back to Alix’s Michigan office. In late

April 2013, Brewington travelled to Alix’s Michigan office to attend a mandatory orientation

program before beginning his full-time work in Texas.

       While working in Dallas, Brewington maintained a substantial connection with Alix’s

Michigan office. As a member of the Talent Acquisition Team, Brewington was responsible for

recruiting candidates for Alix’s Financial Advisory Services (“FAS”) group, which required him

to communicate directly with Alix’s Michigan-based personnel.         He worked directly with

Patricia Diefenbacher, Alix’s Director of Talent Management for FAS, who was based in the

Michigan office.      According to Diefenbacher, she had numerous email and telephone

communications with Brewington concerning candidates and available positions in the FAS



                                               -3-
No. 16-1027, AlixPartners v. Brewington


group. On at least one occasion, Brewington worked with Ray Kantor, an Internal Audit

Director based in the Michigan office, to recruit and network with Michigan candidates for

Alix’s “Detroit Internal Audit Manager” position.

        Based on these facts, the district court denied Brewington’s motion to dismiss.

AlixPartners, LLP v. Brewington, 133 F. Supp. 3d 947 (E.D. Mich. 2015). Relying on “factually

similar cases,” the district court found that Brewington “established connections with Michigan

and availed himself of the forum.”                  Id. at 957–58.         The district court emphasized:

(1) Brewington’s “semi-regular” email and telephone contact with his supervisors in Michigan;

(2) the agreement’s Michigan choice-of-law provision; (3) Brewington’s visit to Michigan for an

orientation session; and (4) Brewington’s work in recruiting Michigan candidates to fill positions

in the Michigan office.1 Id. at 958. The district court also determined that the cause of action

had a “‘substantial connection’” with Brewington’s in-state activities, id. at 959 (quoting S.

Mach. Co. v. Mohasco Indus., Inc., 401 F.2d 374, 384 (6th Cir. 1968)), and concluded that the

forum was “a reasonable one” for Brewington, “given that the contract was formed, and partly

carried out, in Michigan,” id. at 960.

        While the motion to dismiss was pending, Alix filed its motion for summary judgment.

Relying on our decision in Reed Elsevier, Inc. ex rel. LexisNexis Division v. Crockett, 734 F.3d

594 (6th Cir. 2013), Alix argued that Brewington’s arbitration agreement did not authorize him

to pursue arbitration on behalf of a class. In Reed Elsevier, we held that “the question whether

an arbitration agreement permits classwide arbitration is a gateway matter, which is reserved ‘for



1
         The district court also found that the fact that Brewington “sent and received e-mails contained on servers
located entirely in Michigan” supported the conclusion that Brewington had sufficient minimum contacts with the
forum. AlixPartners, 133 F. Supp. 3d at 958. Brewington may not be haled into court in Michigan based on Alix’s
unilateral activity. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985). Therefore, Alix’s decision to store
its emails on servers located in Michigan, without more, does not support the exercise of personal jurisdiction over
Brewington.

                                                        -4-
No. 16-1027, AlixPartners v. Brewington


judicial determination unless the parties clearly and unmistakably provide otherwise.’” Id. at

599 (quoting Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (2002)). The district court

granted Alix’s motion. AlixPartners, LLP v. Brewington, No. 14-CV-14942, 2015 WL 8538089

(E.D. Mich. Dec. 10, 2015). The district court found that the arbitration clause did not “clearly

and unmistakably” provide that class arbitrability was a question left for the arbitrator, id. at *4–

5, and after finding no “material distinction” between Reed Elsevier and the instant case, the

district court granted Alix’s motion and enjoined Brewington from “pursuing claims in

arbitration on behalf of any absent individual or purported class arising out of the events giving

rise to this suit . . . .” Id. at *5–6. This appeal followed.

        We have jurisdiction pursuant to 28 U.S.C. § 1291.

                                        II.     DISCUSSION

        We review de novo both the district court’s denial of Brewington’s motion to dismiss for

lack of personal jurisdiction, Air Prods. & Controls, Inc. v. Safetech Int’l, Inc., 503 F.3d 544,

549 (6th Cir. 2007), and the district court’s grant of Alix’s motion for summary judgment, Reed

Elsevier, 734 F.3d at 596–97 (citing Grden v. Leikin Ingber & Winters PC, 643 F.3d 169, 171

(6th Cir. 2011)).

                                                   A.

        The plaintiff bears the burden of establishing the existence of personal jurisdiction.

Serras v. First Tenn. Bank Nat’l Ass’n, 875 F.2d 1212, 1214 (6th Cir. 1989) (citations omitted).

When the district court resolves a Rule 12(b)(2) motion solely on written submissions, the

plaintiff’s burden is “relatively slight,” and “the plaintiff must make only a prima facie showing

that personal jurisdiction exists in order to defeat dismissal[.]” Air Prods., 503 F.3d at 549

(citations and quotation marks omitted).         The plaintiff meets this burden by setting forth



                                                   -5-
No. 16-1027, AlixPartners v. Brewington


“specific facts showing that the court has jurisdiction.” Serras, 875 F.2d at 1214 (citation and

quotation marks omitted). “[T]he pleadings and affidavits submitted must be viewed in a light

most favorable to the plaintiff, and the district court should not weigh ‘the controverting

assertions of the party seeking dismissal.’” Air Prods., 503 F.3d at 549 (quoting Theunissen v.

Matthews, 935 F.2d 1454, 1459 (6th Cir. 1991)).

       When a federal court’s subject-matter jurisdiction is based on a federal question, the

court’s exercise of personal jurisdiction must be both authorized by the forum State’s long-arm

statute and in accordance with the Due Process Clause of the Fourteenth Amendment. Bird v.

Parsons, 289 F.3d 865, 871 (6th Cir. 2002) (quoting Mich. Coalition of Radioactive Material

Users, Inc. v. Griepentrog, 954 F.2d 1174, 1176 (6th Cir. 1992)). Michigan’s long-arm statute

allows a court to exercise “general” personal jurisdiction, Mich. Comp. Laws § 600.701, as well

as “limited” personal jurisdiction, id. § 600.705. Here, Alix alleges that limited jurisdiction

exists pursuant to § 600.705(1), which allows a court to exercise jurisdiction over a nonresident

for claims “arising out of an act” which constitutes “[t]he transaction of any business within the

state.” Section 600.715(1) is satisfied by “‘the slightest act of business in Michigan,’” Neogen

Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 888 (6th Cir. 2002) (quoting Lanier v. Am. Bd.

of Endodontics, 843 F.2d 901, 906 (6th Cir. 1988)), and Brewington does not appear to contest

that his conduct falls within the statute. Moreover, Michigan’s long-arm statute “extends to the

limits imposed by federal constitutional due process requirements and thus, the two questions

become one.” Mich. Coalition, 954 F.2d at 1176 (citing Chandler v. Barclays Bank PLC, 898

F.2d 1148, 1150–51 (6th Cir. 1990)). We must therefore determine whether the exercise of

personal jurisdiction over Brewington comports with constitutional due process.




                                               -6-
No. 16-1027, AlixPartners v. Brewington


       “The Due Process Clause of the Fourteenth Amendment constrains a State’s authority to

bind a nonresident defendant to a judgment of its courts.” Walden v. Fiore, 134 S. Ct. 1115,

1121 (2014) (citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980)). For

a nonresident defendant to be subject to personal jurisdiction, he must have “certain minimum

contacts [with the forum State] such that the maintenance of the suit does not offend traditional

notions of fair play and substantial justice.” Id. (citations, quotation marks, and ellipsis omitted).

As noted, Alix asserts that limited, or specific, jurisdiction is present. Therefore, focusing on

“the relationship among the defendant, the forum, and the litigation,” id. (citations and quotation

marks omitted); see also Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472–73 (1985), we

employ a three-part test to determine whether the exercise of personal jurisdiction over

Brewington comports with constitutional due process:

               First, the defendant must purposefully avail himself of the
               privilege of acting in the forum state or causing a consequence in
               the forum state. Second, the cause of action must arise from the
               defendant’s activities there. Finally, the acts of the defendant or
               consequences caused by the defendant must have a substantial
               enough connection with the forum state to make the exercise of
               jurisdiction over the defendant reasonable.

Air Prods., 503 F.3d at 550 (emphasis added) (quoting Mohasco, 401 F.2d at 381).

                                                  1.

       Brewington argues that the purposeful availment test is not met. “Purposeful availment”

is “the constitutional touchstone of personal jurisdiction,” and it exists “where the defendant’s

contacts with the forum state proximately result from actions by the defendant himself that create

a substantial connection with the forum State . . . and where the defendant’s conduct and

connection with the forum are such that he should reasonably anticipate being haled into court

there.” Neogen, 282 F.3d at 889 (citations and quotation marks omitted). “This purposeful

                                                 -7-
No. 16-1027, AlixPartners v. Brewington


availment requirement ensures that a defendant will not be haled into a jurisdiction solely as a

result of random, fortuitous, or attenuated contacts, . . . or of the unilateral activity of another

party or a third person[.]” Burger King, 471 U.S. at 475 (citations and quotation marks omitted).

Thus, a nonresident who deliberately engages in “significant activities within a State” or creates

“continuing obligations between himself and residents of the forum” satisfies this requirement.

Id. at 475–76 (citations and quotation marks omitted).

       Alix alleges that Brewington purposefully availed himself of Michigan by: (1) pursuing

employment through email and telephone communications with personnel in Alix’s Michigan

office; (2) signing an employment agreement with a Michigan choice-of-law provision and

returning it to Alix’s Michigan office; (3) attending a mandatory orientation session in Michigan;

(4) communicating with his Michigan-based supervisors over the course of his employment; and

(5) recruiting Michigan candidates for a position in Alix’s Michigan office.          Viewing the

evidence in the light most favorable to Alix, we conclude that Alix has made the required prima

facie showing. See Air Prods., 503 F.3d at 549; Neogen, 282 F.3d at 887.

       Despite the fact that Alix is not headquartered in Michigan, a number of the company’s

business and personnel departments, including Human Resources, Benefits, and Payroll, are

housed in its Michigan office. Accordingly, Brewington secured employment with Alix through

the company’s Michigan office and attended the mandatory orientation session in Michigan.

Furthermore, Brewington’s duties required him to report to and conduct business with his

Michigan-based colleagues throughout his employment with Alix. In addition to his connection

with Alix’s Michigan-based personnel, the record shows that Brewington’s official duties

included recruiting Michigan candidates to fill job openings in Michigan. Because Brewington

accepted a job in which his duties were purposefully aimed at, and tied to, Michigan and its



                                                -8-
No. 16-1027, AlixPartners v. Brewington


residents, Michigan was, at least in part, the focus of Brewington’s employment and the parties’

relationship. Compare Lanier, 843 F.2d at 911 (holding that personal jurisdiction existed where

“the real object” of nonresident’s contacts was to have “ongoing, far-reaching consequences” in

the forum State), with Kerry Steel, Inc. v. Paragon Indus., Inc., 106 F.3d 147, 151 (6th Cir. 1997)

(holding that plaintiff failed to make prima facie showing where it “alleged no facts connecting

either the subject matter of the contract or its performance to the State of Michigan”). The fact

that Brewington voluntarily executed an employment agreement with a Michigan choice-of-law

provision reinforces the conclusion that he “deliberate[ly] affiliate[ed]” himself with the forum.

Burger King, 471 U.S. at 480–82; see also LAK, Inc. v. Deer Creek Enters., 885 F.2d 1293, 1295

(6th Cir. 1989).

       The facts of this case establish that Brewington knowingly “created a connection” with

Alix’s Michigan office that was “intended to be ongoing in nature,” as opposed to “a ‘one-shot

affair.’” See CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1263–65 (6th Cir. 1996) (quoting

Mohasco, 401 F.2d at 385).        Accordingly, his contacts with Michigan are not “random,

fortuitous, or attenuated, but are the result of deliberate conduct that amounts to purposeful

availment.” Air Prods., 503 F.3d at 551 (quotation marks omitted); see also Burger King, 471

U.S. at 480–81 (concluding that nonresident’s “continuous course of direct communications”

with plaintiff in Florida confirmed that nonresident “knew that he was affiliating himself with an

enterprise based primarily in Florida”); Kelly Servs. v. Eidnes, 530 F. Supp. 2d 940, 947 (E.D.

Mich. 2008) (finding that nonresident’s “semi-regular contact with Michigan-based supervisors

during the course of her employment” supported finding of purposeful availment).

       Brewington’s reliance on Aysling, L.L.C. v. Mejia, No. 13-13027, 2014 WL 545816 (E.D.

Mich. Feb. 11, 2014), and Calphalon Corp. v. Rowlette, 228 F.3d 718 (6th Cir. 2000), is



                                                -9-
No. 16-1027, AlixPartners v. Brewington


misplaced. For the reasons identified by the district court, we find that there are “several

distinctions that limit the applicability of [Aysling] here.” See AlixPartners, 133 F. Supp. 3d at

958 n.7. In Calphalon, unlike the instant case, the quality of the parties’ relationship revealed

that the nonresident defendant’s contacts with the forum State were “purely ‘fortuitous’ and

‘attenuated.’” 228 F.3d at 722. Notably, the parties’ relationship “centered” on the defendant’s

work outside the forum State and the defendant’s communications and physical visits to the

forum “occurred solely because [the plaintiff] chose to be headquartered in [the forum], not

because [the defendant] sought to further its business and create ‘continuous and substantial’

consequences there.” Id. at 723. Based on the fact that the defendant “did not make a deliberate

affiliation with th[e] state nor could [it] reasonably foresee possible litigation there,” the

agreement’s Ohio choice-of-law provision was not decisive. Id. In contrast, Brewington’s

contacts with Michigan are not purely fortuitous and attenuated.            He made a deliberate

connection with the forum State and its residents that was centered in part on his work in

Michigan.    Moreover, the Michigan choice-of-law provision in Brewington’s employment

agreement, when combined with his relationship with Alix’s Michigan office, “reinforce[s] his

deliberate affiliation with the forum State . . . .” Burger King, 471 U.S. at 482.

       Brewington’s primary argument is that, in light of the fact that Alix is not a Michigan

resident, the Court must determine whether Alix’s connection with Michigan is sufficient for

Brewington to have anticipated being haled into court there. Brewington’s argument misses the

mark. The minimum contacts analysis focuses on “the defendant’s contacts with the forum State

itself, not the defendant’s contacts with persons who reside there.” Walden, 134 S. Ct. at 1122

(citations omitted).   Thus, the “plaintiff’s residence in the forum State is not a separate

requirement, and lack of residence will not defeat jurisdiction established on the basis of



                                                -10-
No. 16-1027, AlixPartners v. Brewington


defendant’s contacts.” Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 780 (1984); see also

Walden, 134 S. Ct. at 1124–25 (noting that the plaintiff’s contacts with the defendant and the

forum cannot “drive the jurisdictional analysis”).        We agree with the district court that

“[r]egardless of [Alix’s] status as a forum resident, [Brewington’s] actions established

connections with Michigan,” AlixPartners, 133 F. Supp. 3d at 959, and therefore, Alix’s

purported “lack of ‘contacts’” with Michigan “will not defeat . . . jurisdiction,” Calder v. Jones,

465 U.S. 783, 788 (1984) (citing Keeton, 465 U.S. at 779–81).

                                                 2.

       We next consider whether Alix’s action arises from Brewington’s contacts with

Michigan. “We have articulated the standard for this prong in a number of different ways, such

as whether the causes of action were made possible by or lie in the wake of the defendant’s

contacts, or whether the causes of action are related to or connected with the defendant’s contacts

with the forum state[.]” Air Prods., 503 F.3d at 553 (citations and internal quotation marks

omitted). It is clear, however, that this is a “‘lenient standard’” and “the cause of action need not

‘formally’ arise from defendant’s contacts.” Id. (quoting Bird, 289 F.3d at 875). At a minimum,

this factor is satisfied if “‘the cause of action, of whatever type, ha[s] a substantial connection

with the defendant’s in-state activities.’” Bird, 289 F.3d at 875 (quoting Third Nat’l Bank v.

Wedge Grp., Inc., 882 F.2d 1087, 1091 (6th Cir. 1989)).

       Alix brought a declaratory judgment action seeking to determine the parties’ rights under

Brewington’s employment agreement, which, as explained above, was centered in part on

Brewington’s activities in Michigan. Prior to and during his employment, Brewington frequently

communicated with Alix’s Michigan-based personnel concerning the negotiation, execution, and

performance of the agreement.        Pursuant to that agreement, which contains a Michigan



                                                -11-
No. 16-1027, AlixPartners v. Brewington


choice-of-law provision, Brewington agreed to resolve “any dispute” through arbitration, and the

scope of that arbitration clause is at issue in the instant action. “Especially given that this prong

is a ‘lenient standard,’ that the cause of action need not ‘formally’ arise from [Brewington’s]

contacts, and that [Alix] need only make a prima facie showing of jurisdiction under the

procedural posture of this case, this prong is satisfied in this case.” Air Prods., 503 F.3d at 554.

                                                 3.

       The final requirement is “whether exercising personal jurisdiction over [Brewington]

would be reasonable, i.e., whether it would comport with traditional notions of fair play and

substantial justice.” CompuServe, 89 F.3d at 1267–68 (citations and internal quotation marks

omitted). Where, as here, “the first two criteria are met . . . only the unusual case will not meet

this third criterion.” Theunissen, 935 F.2d at 1461) (citations and quotation marks omitted). In

analyzing this requirement, we consider a number of factors, including: “(1) the burden on the

defendant; (2) the interest of the forum state; (3) the plaintiff’s interest in obtaining relief; and

(4) other states’ interest in securing the most efficient resolution of the policy.” Air Prods., 503

F.3d at 554–55 (citation omitted).

       Brewington argues that it would be unreasonable to subject him to personal jurisdiction

in Michigan because “the current dispute has only a tenuous connection with the State of

Michigan.”    As explained above, however, Brewington deliberately affiliated himself with

Michigan and its residents, and the fact that Brewington lives in Texas does not overcome the

inference of reasonableness. See, e.g., Youn v. Track, Inc., 324 F.3d 409, 420 (6th Cir. 2003)

(“We have also upheld specific jurisdiction in cases where doing so forced the defendant to

travel.”). “Because there is an inference of reasonableness when the first two Southern Machine

prongs are satisfied, and because there are no considerations put forward by [Brewington] to



                                                -12-
No. 16-1027, AlixPartners v. Brewington


overcome or contradict that inference, the exercise of jurisdiction is reasonable under the

circumstances of this case.” Air Prods., 503 F.3d at 555; see also AlixPartners, 133 F. Supp. 3d

at 960 (“While this Court may not be the most convenient forum for Defendant, it is a reasonable

one given that the contract was formed, and partly carried out, in Michigan.”).

       Finding that Brewington is subject to personal jurisdiction in Michigan, we next review

the district court’s grant of Alix’s motion for summary judgment.

                                                B.

       Brewington concedes that our review of Alix’s motion for summary judgment is

controlled by Reed Elsevier, Inc. ex rel. LexisNexis Division v. Crockett, in which we held that

“the question whether an arbitration agreement permits classwide arbitration is a gateway matter,

which is reserved for judicial determination unless the parties clearly and unmistakably provide

otherwise.” 734 F.3d at 599 (citation and quotation marks omitted); see also Huffman v. Hilltop

Cos., LLC, 747 F.3d 391, 398 (6th Cir. 2014).

       Brewington argues that the broadly-worded arbitration clause in his employment

agreement “clearly and unmistakably” establishes that the parties agreed to submit the question

of whether the agreement permits classwide arbitration to the arbitrator. But the arbitration

clause is “silent as to whether an arbitrator or a court should determine the question of classwide

arbitrability, meaning the determination lies with this court.” Huffman, 747 F.3d at 398 (citing

Reed Elsevier, 734 F.3d at 599). Given this silence, the clause’s broad language covering “any

dispute” is insufficient evidence that the parties intended for the arbitrator to decide this

question, Reed Elsevier, 734 F.3d at 599, as is the incorporation of the AAA’s rules, see

Huffman, 747 F.3d at 393–94, 398; Reed Elsevier, 734 F.3d at 599-600. We must therefore

decide whether the parties agreed to arbitrate. Reed Elsevier, 734 F.3d at 599 (citation omitted).



                                                -13-
No. 16-1027, AlixPartners v. Brewington


       An agreement must expressly include the possibility of classwide arbitration for us to

conclude that the parties agreed to it. Id. at 600; see also Huffman, 747 F.3d at 398–99. This

arbitration clause is silent on the availability of classwide arbitration, and we may not presume

from “mere silence” that the parties consented to it. See Stolt-Nielsen S.A. v. AnimalFeeds Int’l

Corp., 559 U.S. 662, 687 (2010). Further, the clause limits its scope to claims “arising out of or

in connection with any aspect of this Agreement,” as opposed to other employees’ and/or

potential employees’ agreements, and states that the arbitrator’s decision “shall be final and

binding as to both parties.” The mere incorporation of the AAA’s rules is not sufficient

evidence that the parties agreed to classwide arbitration. See Huffman, 747 F.3d at 393–94, 398–

99; Reed Elsevier, 734 F.3d at 599–600. We therefore conclude that the parties’ arbitration

clause does not authorize classwide arbitration, and hold that Brewington must proceed on an

individual basis.


                                       III.    CONCLUSION

       For the foregoing reasons, the orders of the district court are affirmed.


       So ordered.




                                               -14-
