Jung v. Skadden, Arps, Slate Meagher & Flom, LLP et al

Filing 10

Jung v. Skadden, Arps, Slate Meagher & Flom, LLP et al

Doc. 10

Case 2:05-cv-04286-CM

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ---------------------------------x - ONATHAN JUNG, J : Plaint iff, : - against : SKADDEN, ARPS, SLATE, MEAGHER & FLOM, LLP, : Defendant. : ---------------------------------x -

05-CV-4286 (MBM) ECF Case

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT'S MOTION TO COMPEL ARBITRATION AND STAY THIS ACTION

SKADDEN, ARPS, SLATE, MEAGHER & FLO M LLP
ATTORNEYS FOR DEFENDANT SKADDEN, ARPS, SLATE, MEAGHER & FLO M LLP FOUR TIMES SQUAR E BOROUGH OF MANHATTAN CITY OF NEW YORK NEW YORK 10036-6522 [phone]

Dockets.Justia.com

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TABLE OF CONTENTS TABLE OF AUTHORITIES ........................................................................................... ii PRELIMINARY STATEMENT ..................................................................................... 1 STATEMENT OF FACTS .............................................................................................. 3 A. B. C. D. E. ARGUMENT THIS COURT SHOULD COMPEL ARBITRATION OF MR. JUNG'S CLAIMS AND STAY THIS ACTION PENDING COMPLETION OF THE ARBITRATION PROCEEDING .............................................................................. 8 A. B. The FAA Policy Favors Arbitrat ion Of The Claims Presented Here ......... 8 Plaint iff Must Submit His Claims To Arbitration ..................................... 9 1. 2. 3. 4. C. The Arbitration Agreement Is A Valid Agreement To Arbitrate ..................................................................................... 10 Mr. Jung's Claims Are Wit hin The Scope Of The Arbitration Agreement ................................................................ 12 Mr. Jung's Statutory Discriminat ion Claims Are Arbitrable ........ 14 This Ent ire Act ion Should Be Stayed Because All Of Mr. Jung's Claims Are Arbitrable ...................................................... 15 Mr. Jung's Education And Emplo yment Background ................................ 3 Mr. Jung Was Informed Of The Arbitration Agreement Prior To Commencing Emplo yment Wit h The Firm ............................................... 4 The Unambiguous Terms Of The Arbitration Agreement Cover Mr. Jung's Claims ........................................................................................... 4 Plaint iff's Execution Of The Arbitrat ion Agreement Was Knowing And Vo luntary ......................................................................................... 6 Procedural History ................................................................................... 6

The Arbitrators Have "Exclusive Authority" To Determine The Applicabilit y And Enforceabilit y Of The Arbitration Agreement ........... 16

CONCLUSION ............................................................................................................. 17

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TABLE OF AUTHORITIES CASES PAGE(S)

Alemac Ins. Servs., Inc. v. Risk Transfer Inc., No. 03 Civ. 1162, 2003 WL 22024070 (S.D.N.Y. Aug. 28, 2003) .................................................................. 13 Beletsis v. Credit Suisse First Boston, Corp., No. 01 Civ. 6266, 2002 WL 2031610 (S.D.N.Y. Sept. 4, 2002) ..................................................................... 15 Chamo is v. Countrywide Ho me Loans, No. 02 Civ. 9550, 02 Civ. 9553, 2003 WL 23022033 (S.D.N.Y. Dec. 29, 2003).............................. 9, 10, 12, 14, 15 Cicchetti v. Davis Selected Advisors, No. 02 Civ 10150RMB, 2003 WL 22723015 (S.D.N.Y. Nov. 17, 2003) .................................................................. 14 Circuit Cit y Stores, Inc. v. Adams, 532 U.S. 105 (2001) .............................................. 2, 8 Desiderio v. Nat'l Ass'n o f Secs. Dealers, Inc., 191 F.3d 198 (2d Cir. 1999) ............ 14, 15 First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995) ................................ 10, 16 Fletcher v. Kidder, Peabody & Co., Inc., 81 N.Y.2d 623, 601 N.Y.S.2d 686 (1993)................................................................................................................ 14 Genesco, Inc. v. T. Kakiuchi & Co., Ltd., 815 F.2d 840 (2d Cir. 1987) ................. 2, 9, 12 Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991) .......................................... 2 Gruber v. Louis Hornick & Co., Inc., No. 02 Civ. 5092, 2003 WL 21222541 (S.D.N.Y. May 23, 2003)................................................................................... 10 HD Brous & Co., Inc. v. Mrzyglocki, No. 03 Civ. 8385, 2004 WL 376555 (S.D.N.Y. Feb. 26, 2004) ................................................................................... 16 Martens v. Smit h Barney, Inc., 238 F. Supp. 2d 596 (S.D.N.Y. 2002) ........................... 14 Martin v. SCI Mgmt. L.P., 296 F. Supp. 2d 462 (S.D.N.Y. 2003) .................................. 15 Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985)............. 9 Moorning-Brown v. Bear, Stearns & Co., Inc., No. 99 Civ. 4130 JSR HBP, 1999 WL 1063233 (S.D.N.Y. Nov. 23, 1999)............................................................. 14 Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983) ..................... 8 Oldro yd v. Elmira Sav. Bank, FSB, 134 F.3d 72 (2d Cir. 1998)............................... 12, 13 PaineWebber Inc. v. Bybyk, 81 F.3d 1193 (2d Cir. 1996).............................................. 16

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Perry v. New York Law Sch., No. 03 Civ. 9221, 2004 WL 1698622 (S.D.N.Y. July 28, 2004) ................................................................................................ 2, 15 Pilanski v. Metro. Life Ins. Co., No. 95 Civ. 10292, 1996 WL 622024 (S.D.N.Y. Oct. 28, 1996).............................................................................................. 11, 15 Prudential Lines, Inc. v. Exxon Corp., 704 F.2d 59 (2d Cir. 1983)................................. 12 Rice v. Brown Bros. Harriman & Co., No. 96 Civ. 6326, 1997 WL 129396 (S.D.N.Y. Mar. 21, 1997) ........................................................... 10, 12, 13, 14, 15 Schuetz v. CS First Boston Corp., No. 96 Civ. 5557, 1997 WL 452392 (S.D.N.Y. Aug. 8, 1997)..................................................................................................... 10 Tarulli v. Circuit Cit y Stores, Inc., 333 F. Supp. 2d 151 (S.D.N.Y. 2004) ...................... 11 Thomas James Assocs., Inc. v. Jameson, 102 F.3d 60 (2d Cir. 1996) ............................... 8 Thomson-CSF, S.A. v. Am. Arbitration Ass'n, 64 F.3d 773 (2d Cir. 1995) .................... 10 Tuskey v. Volt Info. Scis., Inc., No. 00 Civ. 7410DABGWG, 2001 WL 873204 (S.D.N.Y. Aug. 3, 2001) .................................................................................... 13 Williams v. Parkell Prods., Inc., 91 F. App'x 707 (2d Cir. 2003).................................... 11 Wright v. SFX Entm't Inc., No. 00 CIV 5354SAS, 2001 WL 103433 (S.D.N.Y. Feb. 7, 2001) ..................................................................................................... 15 STATUTES PAGE(S)

9 U.S.C. §§ 1-16 ................................................................................................ 1, 8, 9, 15

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Defendant Skadden, Arps, Slate, Meagher & Flo m LLP ("Skadden, Arps" or the "Firm") respect fully submit s this memorandum of law in support of its motion to compel arbitrat ion and stay the instant action pending co mpletion o f the arbitration proceeding, based upon the Mutual Agreement to Arbitrate Claims between Jonathan Jung ("Mr. Jung" or "Plaint iff") and Skadden, Arps dated September 8, 1998 along with a February 4, 2002 memorandum pertaining thereto (the "Arbitrat ion Agreement"), pursuant to the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq.1 PRELIMINARY STATEMENT Mr. Jung is attempt ing to avoid the unambiguous and enforceable Arbitration Agreement which he voluntarily executed upon the commencement of his emplo yment with Skadden, Arps by pursuing employment discriminat ion claims against the Firm in federal court.2 His attempt should be rejected by the Court, especially in light

1

A copy of the Amended Co mplaint, dated October 28, 2005 (the "Amended Complaint"), is attached as Exhibit A to the accompanying Declarat ion of David E. Schwartz dated November 9, 2005 (the "Schwartz Decl."); a copy of the Arbitrat ion Agreement is attached as Exhibits B and C thereto; a copy o f the Firm's Applicat ion for Emplo yment completed and signed by Mr. Jung on August 10, 1998 is attached as Exhibit D thereto; a copy of a letter from the Firm's counsel to Plaint iff's counsel dated October 20, 2005, requesting that Plaint iff comply wit h the Arbitration Agreement, is attached as Exhibit E thereto; a copy o f a letter from Plaint iff's counsel to the Firm's counsel dated October 28, 2005, stating Plaint iff's opposition to the Arbitration Agreement, is attached as Exhibit F thereto; a copy of a letter fro m the Firm's counsel to Plaint iff's counsel dated November 1, 2005, seeking Plaint iff's agreement to voluntarily dismiss his NYCHRL retaliat ion claim in the Amended Complaint, is attached as Exhibit G thereto; and a copy of a letter from Plaint iff's counsel to the Firm's counsel dated November 1, 2005, refusing to dismiss Plaint iff's NYCHRL retaliat ion claim, is attached as Exhibit H thereto. The Amended Complaint purports to allege discriminat ion based on Mr. Jung's nat ional origin and race and retaliat ion under the Administrative Code of the Cit y of New York, as amended §§ 8-101 et seq. (the "New York Cit y Human Rights Law" or "NYCHRL"), the New York State Executive Law, as amended, §§ 290 et seq. (the "New York State Human Rights Law" or "NYSHRL"), and Title VII of the Civil

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of the strong federal po licy favoring arbitration of emplo yment disputes. See Circuit Cit y Stores, Inc. v. Adams, 532 U.S. 105, 123 (2001) (ident ifying specific benefits of arbitration in the emplo yment context); see also Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 25 (1991) (noting, in an age discrimination case, that "provisio ns [of the FAA] manifest a 'liberal federal po licy favoring arbitration agreements'" (citation omitted)). Indeed, even absent this strong policy and the acco mpanying presumpt ion that arbitration agreements are enforceable, the claims asserted by Mr. Jung are clearly arbitrable given that: (1) Mr. Jung signed the Arbitrat ion Agreement as a condit io n of his emplo yment with the Firm;3 (2) By its terms, the Arbitration Agreement explicit ly covers all o f the claims asserted by Mr. Jung; and (3) Mr. Jung's Tit le VII, NYSHRL and NYCHRL claims are not subject to any congressional exceptions fro m arbitrabilit y. See Genesco, Inc. v. T. Kakiuchi & Co., Ltd., 815 F.2d 840, 844 (2d Cir. 1987) (setting forth the factors to be utilized when assessing a motion to compel arbitrat ion and stay proceedings); Perry v. New York Law Sch., No. 03 Civ. 9221, 2004 WL 1698622, at *2

Rights Act of 1964, as amended, 42 U.S.C. §§ 2000(e) et seq. ("Title VII"), respectively.
3

For purposes of this Memorandum of Law, both the Mutual Agreement to Arbitrate Claims between Mr. Jung and the Firm, signed by Mr. Jung on September 8, 1998, and the February 4, 2002 memorandum pertaining thereto are collect ively referred to as the Arbitrat ion Agreement. Skadden, Arps recognizes that Mr. Jung signed only the Mutual Agreement to Arbitrate Claims. The February 4, 2002 memorandum provides addit io nal benefits to emplo yees who arbitrate disputes with the Firm.

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(S.D.N.Y. July 28, 2004) (compelling arbitration of plaint iff's Tit le VII, NYSHRL and NYCHRL claims).4 Despite the unequivocal language of the Arbitration Agreement mandat ing that Mr. Jung's claims be reso lved by arbitration, the clear policy favoring arbitrat ion of emplo yment disputes and the Firm's request that Mr. Jung comply with the Arbitrat ion Agreement, Mr. Jung offers no explanat ion for his claim that the agreement is unenforceable and his refusal to submit his claims to arbitration. Accordingly, Skadden, Arps requests that this Court compel arbitration o f Mr. Jung's claims and stay this proceeding. STATEMENT OF FACTS A. Mr. Jung's Education And Employment Background Skadden, Arps emplo yed Mr. Jung in its Tax and Investments Department fro m September 8, 1998 through June 7, 2004. (Am. Co mpl. ¶¶ 13, 66.) In his posit ions with the Firm, first as Tax Coordinator and later as Tax Supervisor, Mr. Jung was supposed to manage and oversee quarterly tax payments for international partners, advise attorneys on the guidelines, policies, costs and compliance wit h respect to various tax issues and manage Skadden, Arps's expatriate tax issues. (Am. Compl. ¶¶ 13, 14, 19.) Mr. Jung has a degree in econo mics from the Universit y of Buffalo and was emplo yed by Price Waterhouse Coopers for several years prior to accepting emplo yment with Skadden, Arps. (Am. Co mpl. ¶ 45; Schwartz. Decl. Ex. D.) His emplo yment was ult imately terminated by the Firm for consistent poor performance.

4

For the Court's convenience, copies of all unreported decisio ns referred to herein are submitted in an acco mpanying "Compendium of Unreported Cases."

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B.

Mr. Jung Was Informed Of The Arbitration Agreement Prior To Commencing Employment With The Firm When Mr. Jung applied for a posit ion wit h Skadden, Arps, he co mpleted

and signed the Firm's Application for Emplo yment. (Schwartz Decl. Ex. D.) The Applicat ion for Emplo yment stated, in bo ld capital letters, as follows: IN THE EVENT THAT AN OFFER OF EMPLOYMENT IS MADE, THE OFFER WILL BE SUBJECT TO . . . SIGNING A MUTUAL AGREEMENT TO ARBITRATE CLAIMS. (Id.) C. The Unambiguous Terms Of The Arbitration Agreement Cover Mr. Jung's Claims Prior to the commencement of his emplo yment with Skadden, Arps, Mr. Jung signed the Arbitrat ion Agreement, in which he expressly agreed to: the resolut ion by final and binding arbitrat ion of all claims or controversies, whether or not arising out of [his] emplo yment (or its terminat ion), that the Firm may have against [him] or that [he] may have against the Firm or its partners, emplo yees or agents in their capacit y as such, including, but not limited to, . . . claims o f discriminat ion (including, but not limited to, claims based on race, sex, sexual preference, religio n, nat ional origin, age, marital status, medical condit io n, handicap or disabilit y) . . . and claims alleging a vio lat ion of any federal, state or other governmental law, statute, regulat ion or ordinance (co llect ively "Claims")....ll Claims shall A be arbitrated in accordance with the attached Arbit ration Rules and Procedures, which are expressly incorporated herein and made part of this Agreement. (Schwartz Decl. Ex. B at 1, ¶ 2.) Pursuant to the Arbitrat ion Agreement, including its incorporated Arbitration Rules and Procedures, the parties agreed that: any Claims would be submitted to final and binding arbitration under the auspices o f the American Arbitration Associat ion ("AAA") (id. at 4, ¶ A.);

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any Claims would be decided by a neutral panel o f three arbitrators who must be attorneys licensed to practice law in New York (id.); any arbitration would be conducted under the AAA's Commercial Arbitration Rules or National Rules for the Resolutio n of Emplo yment Disputes, which allow the parties to obtain full and adequate relief, including any remedy or relief that would have been available to the parties had the matter been heard in court (id. at 4, ¶ A and 5, ¶ F; see also Rule 34(d), National Rules for the Resolut ion of Emplo yment Disputes (eff. Sep. 15, 2005); Rule R-43, Commercial Arbit ration Rules (eff. Sep. 15, 2005)5; the parties would be entit led to conduct pre-hearing discovery, have the right to propound written requests for documents and take deposit ions of fact and expert witnesses (Schwartz Decl. Ex. B at 5, ¶ D; Schwartz Decl. Ex. C); the arbitrators would be empowered to award attorneys' fees to the prevailing party on a statutory or contractual claim that provides for such relief (Schwartz Decl. Ex. B at 5, ¶ F); and Skadden, Arps would be responsible for paying any portion of the AAA filing fee which would exceed applicable court filing fees and the ent ire fee of the arbitration panel (id. ; Schwartz Decl. Ex. C). The parties further agreed that the AAA arbitrators, "and not any federal,

state or local court," shall have "exclusive authority" to decide whether the Arbitration Agreement is enforceable as a matter of law: The [Arbitration] Panel, and not any federal, state or local court or agency, shall have exclusive authority to reso lve any dispute relating to the interpretation, applicabilit y, enforceabilit y or formation o f [the Arbitration] Agreement, including but not limited to any Claim that all or any part of [the Arbitration] Agreement is vo id or voidable. (Id. at 4, ¶ B.)

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The AAA's rules are published at www.adr.org/RulesProcedures.

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D.

Plaintiff's Execution Of The Arbitration Agreement Was Knowing And Voluntary Plaint iff's execut ion of the Arbitration Agreement was undeniably

knowing and vo luntary. The Firm's Applicat ion for Emplo yment states clearly and unambiguously that each applicant is required to execute the Arbitrat ion Agreement as a condit ion of emplo yment. (Schwartz Decl. Ex. D.) Understanding this requirement, Mr. Jung, a college graduate, signed the Arbitrat ion Agreement immediately beneath a statement which provides, in capital letters, as fo llows: I ACKNOWLEDGE THAT I HAVE CAREFULLY READ THE FOREGOING MUTUAL AGREEMENT TO ARBITRATE CLAIMS (THE "AGREEMENT"), THAT I UNDERSTAND ITS TERMS, THAT ALL UNDERSTANDINGS AND AGREEMENTS BETWEEN THE FIRM AND ME RELATING TO THE SUBJECTS COVERED IN THE AGREEMENT ARE CONTAINED IN IT, AND THAT I HAVE ENTERED INTO THE AGREEMENT VOLUNTARILY AND NOT IN RELIANCE ON ANY PROMISES OR REPRESENTATIONS BY THE FIRM OTHER THAN THOSE CONTAINED IN THIS AGREEMENT ITSELF. (Id. at 6.) E. Procedural History Despite having signed the Arbitrat ion Agreement, on April 29, 2005 Mr. Jung filed a Complaint with this Court alleging emplo yment discriminat ion claims under Tit le VII, NYSHRL and NYCHRL against the Firm and Susan Dornfeld, the Firm's Treasurer. Before answering the complaint, the Firm and Ms. Dornfeld filed a motion to dismiss Mr. Jung's Tit le VII and NYCHRL claims in which they expressly reserved their right to compel arbitration of Mr. Jung's claims. (See Mem. of Law in Supp. of Defs. ' Mot. to Dismiss the First, Third, Fourth and Sixth Causes of Action in Pl. 's Co mpl. at 1 n.2.) 6

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On October 20, 2005, this Court read its decisio n on the record, granting Skadden, Arps and Ms. Dornfeld's mot ion to dismiss Mr. Jung's Tit le VII and NYCHRL claims, and grant ing Plaint iff leave to file an amended complaint to cure the defects ident ified by the motion to dismiss. After the Court rendered its decisio n, the Firm reminded Plaint iff's counsel that any claims Plaint iff might have would be covered by the Arbitration Agreement.6 That same day, the Firm sent to Plaint iff's counsel a copy of the Arbitration Agreement, under cover of a letter citing relevant terms of the Arbitration Agreement and the controlling case law demo nstrating that Mr. Jung's Title VII, NYSHRL and NYCHRL claims are clearly arbitrable. (Schwartz Decl. Ex. E.) Plaint iff responded by serving the Amended Co mplaint on the Firm on October 28, 2005 together with a one-sentence rejection of the Firm's request that he comply with the Arbitrat ion Agreement.7 (Id. at Ex. F.)

6

The Firm had also advised Mr. Jung's prior counsel in or about April 2004 that Mr. Jung was required to pursue his claims through arbitration. The Amended Complaint purports to set forth a NYCHRL retaliat ion claim even though Mr. Jung's allegat ions show that he had been emplo yed in the Firm's White Plains, New York office for approximately one year before he complained about any alleged discriminat ion and for more than a year before his emplo yment was terminated. On November 1, 2005, the Firm wrote to Plaint iff's counsel and asked that Plaint iff vo luntarily dismiss this claim. (Schwartz Decl. Ex. G.) That same day, Plaint iff's counsel sent a two-line letter declining to dismiss this claim. (Id. at Ex. H.) For the reasons set forth in the Firm's November 1, 2005 letter, this NYCHRL retaliat ion claim should be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

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ARGUMENT THIS COURT SHOULD COMPEL ARBITRATION OF MR. JUNG'S CLAIMS AND STAY THIS ACTION PENDING COMPLETION OF THE ARBITRATION PROCEEDING A. The FAA Policy Favors Arbitration Of The Claims Presented Here In Circuit Cit y Stores, Inc. v. Adams, the United States Supreme Court held that arbitration agreements in the emplo yment arena, other than those agreements covering workers engaged in transportation, are covered by the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. (the "FAA"). 532 U.S. at 120-21. Accordingly, the instant motion to compel arbitrat ion and stay proceedings of Mr. Jung's claims is governed by the FAA. Section 2 of the FAA provides that an arbitration clause "shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equit y for the revocation of any contract." 9 U.S.C. § 2. The United States Supreme Court has emphasized that the FAA embodies a federal po licy strongly favoring arbitration and requires courts to compel arbitration unless there is no conceivable way in which a dispute could co me within an arbitration provisio n: Section 2 [of the FAA] is a congressio nal declaration of a liberal federal po licy favoring arbitrat ion agreements . . . . The Arbitrat ion Act establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegat ion of waiver, delay, or a like defense to arbitrabilit y. Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983) (citations omitted). The Second Circuit similarly has held that the strong presumpt ion in favor of arbitration requires a court to compel arbit ration "'unless it may be said with posit ive assurance that the arbitration clause is not suscept ible of an interpretation that covers the asserted dispute.'" Tho mas James Assocs., Inc. v. Jameson, 102 F.3d 60, 65 8

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(2d Cir. 1996) (citation omitted). In addit ion, the United States Supreme Court has held that there is no reason to depart from the strong policy favoring arbitrat ion where, as in this case, a party bound by an arbitrat ion agreement raises claims founded on statutory rights. Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626 (1985). Section 3 of the FAA provides for a stay of proceedings where the court is satisfied that the issue before it is arbitrable under a written agreement providing for arbitration, and Sect ion 4 of the FAA directs a federal court to compel arbitrat ion if there has been a "'failure, neglect, or refusal' of any party to honor an agreement to arbitrate." Genesco, 815 F.2d at 844 (quoting Scherk v. Alberto-Culver Co., 417 U.S. 506, 511 (1974)); 9 U.S.C. §§ 3-4. The Second Circuit has held that the FAA "'leaves no place for the exercise of discret ion by a district court, but instead mandates that district courts shall direct the parties to proceed to arbitration on issues as to which an arbitrat ion agreement has been signed.'" Genesco, 815 F.2d at 844 (quoting Dean Witter Reyno lds Inc. v. Byrd, 470 U.S. 213, 218 (1985) (emphasis in original)). B. Plaintiff Must Submit His Claims To Arbitration The Second Circuit in Genesco articulated the fo llowing criteria for a district court to assess in determining whether to compel arbitrat ion and stay proceedings: (1) whether the parties agreed to arbitrate; (2) whether the asserted claims fall within the scope of the arbitration agreement; (3) if federal statutory claims are at issue, whether Congress intended such claims to be non-arbitrable; and (4) if only so me of the claims are arbitrable, whether to stay the balance of the proceedings pending arbitration. 815 F.2d at 844; see also Chamo is v. Countrywide Home Loans, No. 02 Civ. 9550, 02 Civ. 9553, 2003 WL 23022033, at *2 n.3 (S.D.N.Y. Dec. 29, 2003) (Mukasey, J.) (noting that 9

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where, as here, all of the claims at issue are subject to arbitration, the court need not consider the fourth prong of the Genesco test). "If this inquiry yields a finding that the matter is arbitrable, the court must send the parties to arbitration; there is no room for discretion." Rice v. Brown Bros. Harriman & Co., No. 96 Civ. 6326, 1997 WL 129396, at *2 (S.D.N.Y. Mar. 21, 1997) (Mukasey, J.) (grant ing defendant's motion to compel arbitration of plaint iff's claims under the Age Discriminat ion in Emplo yment Act, the NYSHRL and the NYCHRL and stay the proceedings); see also Chamo is, 2003 WL 23022033, at *5 (granting defendant's motion to compel arbitrat ion of, inter alia, plaint iffs' Tit le VII and NYSHRL claims and staying plaint iffs' act ions pending the complet ion of arbitrat ion). 1. The Arbitration Agreement Is A Valid Agreement To Arbitrate Wit h respect to the first Genesco factor, when determining whether a contract to arbitrate has been established for the purposes of the FAA, federal courts should apply "ordinary state-law principles that govern the format ion of contracts" to decide "whether the parties agreed to arbitrate a certain matter." First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995); see also Thomson-CSF, S.A. v. Am. Arbitration Ass'n, 64 F.3d 773, 776-77 (2d Cir. 1995). New York courts take the position that a person who signs a contract is presumed to know its contents and assent to them. See Gruber v. Louis Hornick & Co., Inc., No. 02 Civ. 5092, 2003 WL 21222541 (S.D.N.Y. May 23, 2003). Thus, a person is "'bound by the terms of the [a]greement [he or she signs], including the arbitration provisio n, ' unless [he or] she can demo nstrate 'special, mit igating circumstances, such as duress or coercion. '" Schuetz v. CS First Boston Corp., No. 96 Civ. 5557, 1997 WL 452392, at *2 (S.D.N.Y. Aug. 8, 1997) (first

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alteration in original) (citation omitted); see also Pilanski v. Metro. Life Ins. Co., No. 95 Civ. 10292, 1996 WL 622024, at *3 (S.D.N.Y. Oct. 28, 1996). Here, it is clear that Mr. Jung executed the Arbitratio n Agreement as a condit ion of his emplo yment by the Firm. (See Schwartz Decl. Ex. B.) The Arbitration Agreement clearly requires Mr. Jung to arbitrate all claims against the Firm and its emplo yees and agents in their capacit y as such. (See id. at 1, ¶ 2.) Mr. Jung cannot show that his consent to the Arbitration Agreement was improperly obtained. In fact, the Application for Emplo yment which Mr. Jung signed emphasized in bo ld capital letters that his emplo yment with the Firm would be contingent upon him "SIGNING A MUTUAL AGREEMENT TO ARBITRATE ALL CLAIMS." (See Schwartz Decl. Ex. D.) Moreover, when Mr. Jung, a graduate of the Universit y of Buffalo, signed the Arbitration Agreement, he expressly acknowledged that he read it and understood its terms, and that he entered into the agreement vo luntarily. (See Schwartz Decl. Ex. B at 6.) The United States Supreme Court and the Second Circuit have both held that "condit ioning emplo yment on the acceptance of an agreement to arbitrate disputes, including those arising under civil rights laws, is not itself unlawfully coercive." Williams v. Parkell Prods., Inc., 91 F. App'x 707, 708 (2d Cir. 2003) (cit ing Circuit Cit y Stores, Inc. v. Adams, 532 U.S. at 123-24); see also Tarulli v. Circuit Cit y Stores, Inc., 333 F. Supp. 2d 151, 157 (S.D.N.Y. 2004) (reject ing plaint iff's argument that the arbitration agreement was unconscio nable because it provided she would not be considered for the job if she did not sign it). Mr. Jung made a calculated decisio n to accept emplo yment with Skadden, Arps, premised on the condit ion that emplo yment

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related disputes would be settled through arbitration, not lit igat ion. Accordingly, Mr. Jung is bound by the provisio ns of the Arbitration Agreement. 2. Mr. Jung's Claims Are Within The Scope Of The Arbitration Agreement The second area of inquiry is whether Plaint iff's claims fall wit hin the scope of the Arbitration Agreement. See Genesco, 815 F.2d at 844. "Because federal policy favors arbitration as an alternat ive to lit igat ion, [district courts are] required to construe arbitration agreements 'as broadly as possible' and to resolve 'any doubts concerning the scope of arbitrable issues . . . in favor of arbitrat ion.'" Chamo is, 2003 WL 23022033, at *3 (quoting Oldro yd v. Elmira Sav. Bank, FSB, 134 F.3d 72, 76 (2d Cir. 1998)). Accordingly, "[e]nforcement of an arbitratio n agreement in relat ion to a particular claim 'should not be denied unless it may be said with posit ive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.'" Rice, 1997 WL 129396, at *2 (quoting AT&T Techs., Inc. v. Commc'ns Workers of America, 475 U.S. 643, 650, (1986)). Mr. Jung will not be able to carry his burden of proving that the issues raised in the Amended Co mplaint are not covered by the Arbitration Agreement he signed in 1998.8 The Arbitration Agreement, by its terms, covers "all claims or controversies, whether or not arising out of [Mr. Jung's] emplo yment (or its termination) . . . that [he] may have against the Firm or its partners, emplo yees or agents

8

When there is a dispute over the scope of the arbitration clause, "[t]he burden is on the party resist ing arbitration to demonstrate that the disputed issue is collateral" to the arbitration clause. Prudential Lines, Inc. v. Exxon Corp., 704 F.2d 59, 64 (2d Cir. 1983).

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in their capacit y as such."9 (Schwartz Decl. Ex. B at 1, ¶ 2 (emphasis added).) A broad arbitration agreement -- requiring the arbitrat ion of all disputes between the parties -creates a presumpt ion that all claims must be submitted to arbitration. Oldro yd, 134 F.3d at 74 (holding that a clause requiring the arbitration of "any dispute, controversy or claim arising under or in connect ion with" plaint iff's emplo yment included a claim o f retaliatory discharge); see also Rice, 1997 WL 129396, at *2 ("[The Arbitration Agreement] is broad and therefore must be read to include all emplo yment disputes."). As this Court has held, when parties mutually agree to submit all claims or controversies between them to binding arbitration, "[i]t would be difficult to imagine a clearer and more specific agreement to arbitrate." Tuskey v. Volt Info. Scis., Inc., No. 00 Civ. 7410DABGWG, 2001 WL 873204, at *4 (S.D.N.Y. Aug. 3, 2001) (holding that a clause requiring arbitration of "[a]ny dispute, controversy or claim...arising out of, invo lving or related in any way to [plaint iff's] emplo yment...or the terminat ion of [plaint iff's] emplo yment" demonstrated an intent to arbitrate all claims); see also Alemac Ins. Servs., Inc. v. Risk Transfer Inc., No. 03 Civ. 1162, 2003 WL 22024070, at *4 (S.D.N.Y. Aug. 28, 2003) (describing the language "any dispute or controversy" as "the paradigm of an expansive clause" giving rise to a "strong presumption of arbitrabilit y"). Furthermore, the Arbitrat ion Agreement specifically covers "claims alleging a vio lat ion of any federal, state or other governmental law [or] statute" and "claims o f discriminat ion (including, but not limited to, claims based on race . . . [and] nat ional origin. " (Schwartz Decl. Ex. B. at 1, ¶ 2 (emphasis added).) When an arbitration agreement explicit ly references the claims alleged by Plaint iff, "there can be
9

The Arbitration Agreement similarly requires that the Firm submit to arbitration any claims which it might have against Mr. Jung.

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no issue that the claims asserted are within the scope of the arbitration agreement." Moorning-Brown v. Bear, Stearns & Co., Inc., No. 99 Civ. 4130 JSR HBP, 1999 WL 1063233, at *4 (S.D.N.Y. Nov. 23, 1999). Here, all o f Mr. Jung's claims o f alleged discriminat ion and retaliat ion under Tit le VII, NYSHRL and NYCHRL fall squarely within the specific parameters of the enumerated claims that are subject to binding arbitration. 3. Mr. Jung's Statutory Discrimination Claims Are Arbitrable Wit h respect to the third Genesco criterion, it is well settled that Mr. Jung's statutory discriminat ion claims raised in the Amended Co mplaint are arbitrable. Indeed, in Desiderio v. Nat'l Ass'n of Secs. Dealers, Inc., 191 F.3d 198, 204-05 (2d Cir. 1999), the Second Circuit expressly held that Tit le VII claims can be subject to a mandatory pre-dispute arbitration clause. Applying this ho lding, this Court routinely compels arbitration of Tit le VII claims. See, e.g., Cicchetti v. Davis Selected Advisors, No. 02 Civ 10150RMB, 2003 WL 22723015, at *3 (S.D.N.Y. Nov. 17, 2003) (compelling arbitration of Tit le VII claim); Martens v. Smith Barney, Inc., 238 F. Supp. 2d 596, 602 (S.D.N.Y. 2002) (denying certificat ion of interlocutory appeal where the court compelled arbitration of gender discriminat ion and retaliat ion claims under Tit le VII). In Fletcher v. Kidder, Peabody & Co., Inc., 81 N.Y.2d 623, 601 N.Y.S.2d 686 (1993), the New York Court of Appeals made clear that state law discriminat ion claims under NYSHRL also are arbitrable. 81 N.Y.2d at 623, 601 N.Y.S.2d at 686 (decided under the FAA), cited in Rice, 1997 WL 129396, at *3 (compelling arbitration of plaint iff's discriminat ion claims under the NYSHRL and staying further proceedings pending conclusio n of the arbitrat ion); see also Chamo is, 2003 WL 23022033, at *5 14

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(granting defendant's motion to compel arbitration of Title VII and NYSHRL claims); Martin v. SCI Mgmt. L.P., 296 F. Supp. 2d 462, 467 (S.D.N.Y. 2003) (holding plaint iff's claims under the NYSHRL were arbitrable); Wright v. SFX Entm't Inc., No. 00 CIV 5354SAS, 2001 WL 103433, at *3 (S.D.N.Y. Feb. 7, 2001) (holding statutory discriminat ion claims under the NYSHRL are arbit rable). Likewise, discriminat ion claims under NYCHRL are also clearly arbitrable. See Rice, 1997 WL 129396, at *3 (compelling arbitrat ion of plaint iff's claims under the NYCHRL, stating that "Fletcher's reasoning would apply also to local lawbased discriminat ion claims"); accord Perry, 2004 WL 1698622, at *2 (compelling arbitration of plaint iff's claims alleging vio lat ions of Title VII, the NYSHRL and the NYCHRL); Beletsis v. Credit Suisse First Boston, Corp., No. 01 Civ. 6266, 2002 WL 2031610, at *6 (S.D.N.Y. Sept. 4, 2002) (holding plaint iff's claims under Tit le VII, the NYSHRL and the NYCHRL were arbitrable); Pilanski, 1996 WL 622024 (compelling arbitration of Tit le VII, NYSHRL and NYCHRL claims). Based on this overwhelming weight of authority, Mr. Jung cannot carry his burden of establishing that Congress intended to exclude arbitrat ion of his claims. See Desiderio, 191 F.3d at 204. 4. This Entire Action Should Be Stayed Because All Of Mr. Jung's Claims Are Arbitrable All o f Mr. Jung's claims raised in the Amended Complaint are clearly arbitrable. Accordingly, there is no need to address the fourth Genesco, factor, i.e., whether, if only so me of the claims are arbitrable, to stay the balance of the proceedings pending arbitrat ion. See Chamo is, 2003 WL 23022033, at *2 n.3 (stating that where all of the claims at issue are subject to arbitration, the court need not consider the fourth

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prong of the Genesco test). Rather, this ent ire action should be stayed pending complet ion of the arbitration proceeding. 9 U.S.C. § 3. C. The Arbitrators Have "Exclusive Authority" To Determine The Applicability And Enforceability Of The Arbitration Agreement Even if there were a question about the validit y or applicabilit y o f the Arbitration Agreement in this case, which there is not, Plaint iff explicit ly agreed to have any such dispute resolved by the arbitrat ion panel, and not by the Court: The [Arbitration] Panel, and not any federal, state or local court or agency, shall have exclusive authorit y to resolve any dispute relat ing to the interpretation, applicabilit y, enforceabilit y or format ion of [the Arbitration] Agreement, including but not limited to any Claim that all or any part of this Agreement is vo id or vo idable. (Schwartz Decl. Ex. B at 4, ¶ B (emphasis added).) The United States Supreme Court and the Second Circuit have held that courts must honor an agreement to submit issues of arbitrabilit y and enforceabilit y to the arbitrator. See First Options, 514 U.S. at 943; PaineWebber Inc. v. Bybyk, 81 F.3d 1193, 1198 (2d Cir. 1996). As the Supreme Court explained in First Options: Just as the arbitrabilit y of the merits of a dispute depends upon whether the parties agreed to arbitrate that dispute, . . . so the question "who has the primary power to decide arbitrabilit y" turns upon what the parties agreed about that matter. Did the parties agree to submit the arbitrabilit y quest ion itself to arbitration? 514 U.S. at 943 (first emphasis in original); see also HD Brous & Co., Inc. v. Mrzyglocki, No. 03 Civ. 8385, 2004 WL 376555, at *10 (S.D.N.Y. Feb. 26, 2004) (noting that "parties may . . . provide that even thresho ld issues of arbitrabilit y are to be decided by arbitrators").

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Here, the parties expressly agreed that the arbitrators have "exclusive authority" to determine whether the Arbitration Agreement is valid, enforceable or applicable to the parties' dispute. This Court should honor that agreement. CONCLUSION For the foregoing reasons, Skadden, Arps respectfully requests that this Court compel Plaint iff to arbitrate all o f his claims against the Firm pursuant to the Arbitration Agreement, stay the instant action pending complet ion of the arbitrat ion proceeding and grant such other and further relief as this Court deems just and proper. Dated: New York, New York November 14, 2005 Respect fully submitted, /s/ David E. Schwartz Henry P. Baer (HB 1305) David E. Schwartz (DS 4473) SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP Four Times Square New York, New York 10036 [phone] Attorneys for Defendant Skadden, Arps, Slate, Meagher & Flo m LLP

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