Van Williams v. Voya Fin. Advisors, Inc.

O'DOLL VAN WILLIAMS, JR., MARCUS ROBINSON, GWENDOLYN ROBINSON,BRANDI WHITFIELD, KIMBERLY SAUNDERS, and JOHNNIE HALL, Plaintiffs, v. VOYA FINANCIAL ADVISORS, INC., Defendant.

Case No. 8:20-cv-2611-T-33JSS

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

January 6, 2021

ORDER

This matter comes before the Court upon consideration of Defendant Voya Financial Advisors, Inc.'s Motion to Compel Arbitration and Stay This Action (Doc. # 5), filed on November 13, 2020. Plaintiffs O'Doll Van Williams, Jr., Marcus Robinson, Gwendolyn Robinson, Brandi Whitfield, Kimberly Saunders, and Johnnie Hall responded on November 30, 2020. (Doc. # 17). For the reasons below, the Motion is granted.

I. Background

Plaintiffs are African American individuals who worked in some capacity for Voya Financial, a broker-dealer "that provides retirement, investing, and financial planning services." (Doc. # 1-4 at ¶¶ 3-8, 11). As part of their working relationship with Voya Financial, Plaintiffs signed three different written agreements. (Doc. # 5 at 7-9). Plaintiffs Williams, Whitfield, and Marcus Robinson signed a "Retail Agent Agreement," which includes the following arbitration clause:

9. Arbitration. Agent and Company shall settle by binding arbitration any dispute, claim, or controversy, including, without limitation, any claim alleged under any state or federal statute, (i) that Agent and Company are required or permitted to arbitrate under the rules, constitutions or by-laws of the NASD, as may be amended from time to time ("NASD Arbitration"), or (ii) that arises out of or is related in any way to this Agreement, the breach, termination, or validity of this Agreement, or the actions of Agent or Company with respect to one another during the term of this Agreement. Arbitration of any dispute, claim, or controversy that is not subject to NASD Arbitration shall be administered by the American Arbitration Association under its Commercial Arbitration Rules. Judgment on any arbitration award may be entered by any court having jurisdiction thereof. Agent and Company consent to arbitration in Hartford, Connecticut. Arbitration under this Agreement shall be governed by the Federal Arbitration Act.¹

(Doc. # 5-3 at 5-6; Doc. # 5-7 at 5-6; Doc. # 5-14 at 5-6) (emphasis in original). In addition to the Retail AgentAgreement, Williams signed an "Advisory Representative Agreement," which includes a lengthy agreement to arbitrate:

20. Binding Arbitration. It is understood that the following AGREEMENT TO ARBITRATE does not constitute a waiver of the right to seek a judicial forum to the extent that such waiver would be void under applicable law.

a. The parties each agree that, except as inconsistent with the preceding sentence, all claims or controversies, and any related issues, which may arise at any time between the parties (including their directors, officers, employees, representatives, or agents) with respect to any subject matter; any transaction, order, or direction; any conduct of the parties or their directors, of employees, representatives, or agents; any construction, performance, or breach of this or any other agreement between the parties, whether entered into prior to, on, or subsequent to the date hereof; any breach of any common law or statutory duty; or any violation of any federal or state law of any nature shall be resolved by binding arbitration rather than by lawsuit in a court of law or equity.

b. Any arbitration pursuant to this agreement shall be in accordance with, and governed by, a mutually agreeable arbitration forum, but, in the absence of such agreement, then the Code of Arbitration Procedure of the NASD, if the NASD accepts jurisdiction, and, if not, then the American Arbitration Association. There shall be at least three arbitrators unless otherwise agreed by the parties. The award of the arbitrators, or of the majority of them, shall be final and binding upon the parties, and judgment upon the award rendered may be entered in any federal or state court having jurisdiction. Any arbitration shall be commenced by delivery to the other party of awritten demand for arbitration setting forth in detail the claim or controversy to be arbitrated.

c. The arbitrators shall be entitled to order specific performance of the obligations imposed by this Agreement.

(Doc. # 5-4 at 8) (emphases in original). Lastly, Plaintiffs Saunders, Hall, and Gwendolyn Robinson signed a "Registered Representative Agreement," which includes a shorter arbitration provision:

i. Arbitration. Any controversy or claim between the parties will be settled by arbitration in accordance with the rules of the Financial Industry Regulatory Authority, and judgment upon the award may be entered in any court having jurisdiction. The arbitrators may award reasonable expenses, attorneys' fees and costs.

(Doc. # 5-11 at 7; Doc. # 5-18 at 7; Doc. # 5-21 at 6) (emphasis in original).

Plaintiffs allege that Voya Financial discriminated against them on the basis of race in a variety of ways. (Doc. # 1-4 at ¶ 18-19). Plaintiffs initiated this action in state court on September 22, 2020. (Doc. # 1-4). Thereafter, on November 6, 2020, Voya Financial removed the action to this Court on the basis of federal question jurisdiction. (Doc. # 1). The complaint includes claims against Voya Financial for racial discrimination (Counts I, III, V, VII, IX, XI) and retaliation (Counts II, IV, VI, VIII, X). (Doc. # 1-4).

On November 13, 2020, Voya Financial moved the Court to compel arbitration and stay the case pending completion of the arbitration. (Doc. # 5). Plaintiffs have responded (Doc. # 17), and the Motion is now ripe for review.

II. Legal Standard

Under the Federal Arbitration Act (FAA), a written arbitration provision in a "contract evidencing a transaction involving commerce . . . [is] valid, irrevocable, and enforceable," unless law or equity necessitates revocation of the contract. 9 U.S.C. § 2. Federal law favors arbitration agreements. Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983). Thus, "any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration." Id. However, "a party cannot be required to submit to arbitration any dispute which he [or she] has not agreed so to submit." United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582 (1960).

Before deciding whether a case should be referred to arbitration, "a court must determine: (1) whether there is a valid agreement to arbitrate; (2) whether a court or an arbitrator should decide if the dispute falls within the scope of the agreement to arbitrate; and (3) whether the dispute does fall within the scope - the question of arbitrability."Convergen Energy LLC v. Brooks, No. 20-cv-3746 (LJL), 2020 WL 5549039, at *13 (S.D.N.Y. Sept. 16, 2020) (citation omitted). "The question whether the parties have submitted a particular dispute to arbitration . . . is an issue for judicial determination unless the parties clearly and unmistakably provide otherwise." Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (2002) (citation omitted).

"A motion to compel arbitration is treated as a Rule 12(b)(1) motion to dismiss for lack of subject-matter jurisdiction." Babcock v. Neutron Holdings, Inc., 454 F. Supp. 3d 1222, 1228 (S.D. Fla. 2020) (citations omitted). Accordingly, "the Court may consider matters outside the four corners of the Complaint." Id. When determining the existence of an arbitration agreement, federal courts employ a "summary judgment-like standard," "conclud[ing] as a matter of law that parties did or did not enter into an arbitration agreement only if 'there is no genuine dispute as to any material fact' concerning the formation of such an agreement.'" Bazemore v. Jefferson Cap. Sys., LLC, 827 F.3d 1325, 1333 (11th Cir. 2016) (quoting Fed. R. Civ. P. 56(a)). "A dispute is not 'genuine' if it is unsupported by the evidence or is created by evidence that is 'merely colorable' or 'not significantly probative.'" Id. (quoting Baloco v.Drummond Co., 767 F.3d 1229, 1246 (11th Cir. 2014)).

III. Analysis

Voya Financial moves the Court to compel FINRA arbitration and stay the case pending such arbitration because Plaintiffs' "claims fall squarely within the broad scope of the parties' arbitration agreements." (Doc. # 5 at 1-2). Plaintiffs respond that because FINRA's Code of Arbitration Procedures does not require employment discrimination claims to be arbitrated unless the parties agreed to arbitrate such claims, they cannot be compelled to arbitrate the instant suit. (Doc. # 17 at 5).

A. Initial Question of Arbitrability

Generally, it is for the Court to determine the scope of an arbitration agreement. Betkowski v. Kelley Foods of Ala., 697 F. Supp. 2d 1296, 1298 (M.D. Ala. Mar. 23, 2010). However, "[w]hen the parties' contract delegates the arbitrability question to an arbitrator, a court may not override the contract." Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524, 529 (2019). Still, "there must be 'clear and unmistakable' evidence that the parties agreed to have an arbitrator decide such issues." Blanton v. Domino's Pizza Franchising LLC, 962 F.3d 842, 844 (6th Cir. 2020).

Here, none of the arbitration agreements expressly statethat the initial question of arbitrability must be submitted to arbitration. (Doc. ## 5-3; 5-4; 5-7; 5-11; 5-14; 5-18; 5-21). Although the agreements do incorporate either the NASD or FINRA rules, "incorporating the FINRA rules into an arbitration agreement is insufficient on its own to evidence the parties' clear intent for the arbitral panel to determine arbitrability."² Retina Consultants P.C. Defined Benefit Pension Plan v. Benjamin, No. CV-119-037, 2020 WL 1491756, at *5 (S.D. Ga. Mar. 19, 2020); see Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cohen, 62 F.3d 381, 384 (11th Cir. 1995) ("We conclude that, at most, section 35 [of the NASD Code] creates an ambiguity as to who...