ANDRESEN v. INTEPROS FEDERAL, INC

Filing 25

MEMORANDUM OPINION. Signed by Judge Emmet G. Sullivan on 02/27/2017. (lcegs3)

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

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 employeeemployer 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.
1

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.

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.
2

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

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
3

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 35; 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 FeeSharing 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, postGreen 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

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.
5

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 employeremployee 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

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.
6

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 wellestablished 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

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.”).
7

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 effective21

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 costprohibitiveness 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

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 costprohibitiveness 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
8

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 costprohibitiveness 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

The 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
10

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 costprohibitive 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

Even 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.
12

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 12; 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

Dr. 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.

13

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 45; 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 costprohibitive 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 costprohibitiveness 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 costprohibitiveness 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
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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
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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

As 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
14

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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 expenseshifting 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.
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February 27, 2017

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