Case 1:17-cv CMA-KLM Document 28-2 Filed 06/30/17 USDC Colorado Page 1 of 16

Transcription

1 Case 1:17-cv CMA-KLM Document 28-2 Filed 06/30/17 USDC Colorado Page 1 of 16 BEFORE THE AMERICAN ARBITRATION ASSOCIATION Employment and Class Arbitration Tribunal IN THE MATER OF THE INDIVIDUAL ) AND CLASS ARBITRATION BETWEEN: ) ) MICHAEL FINFROCK, ) MAURICIO GAMEZ, ) RONDA HARLAN, ) ALI SALEH, ) KIMBERLY SLY, and ) HELEN VACCHIO, ) On behalf of themselves and all ) AAA Case No others similarly situated, ) ) Claimants, ) ) AND ) ) DISH NETWORK, L.L.C., ) A Colorado limited liability company, ) ) Respondent. ) CLAIMAINTS BRIEF IN SUPPORT OF CLASS ARBITRATION Claimants, Michael Finfrock, Mauricio Gamez, Ronda Harlan, Ali Saleh, Kimberly Sly, and Helen Vacchio ( Claimants ), on behalf of themselves and all others similarly situated, by and through counsel, the Sawaya & Miller Law Firm, as their Brief in Support of Class Arbitration, state as follows: I. INTRODUCTION The arbitration agreements ( Agreements ) between Claimants and Respondent, Dish Network, L.L.C. ( Respondent ) should be construed as allowing Claimants to proceed with their class claims for the following reasons: Page 1 of 16

2 Case 1:17-cv CMA-KLM Document 28-2 Filed 06/30/17 USDC Colorado Page 2 of 16 First, Respondent litigated and lost the clause construction issue in Ray v. Dish, AAA Case No (Dec. 29, 2015) (Brewer, Arb.) (attached as Exhibit 1). The United States District Court for the District of Colorado upheld the arbitrator s decision in Ray on December 28, Ray v. Dish, No. 1:16-cv-00314, 2016 WL (D. Colo. Dec. 28, 2016) (Exhibit 2). Under the doctrine of collateral estoppel, Respondent is precluded from relitigating an issue on which it has already suffered an adverse determination. Second, the Agreements permit Claimants to proceed with class arbitration. The Agreements utilize extremely broad language, and incorporate the Employment Arbitration Rules of the American Arbitration Association ( AAA ), indicating that Claimants are entitled to seek all remedies available in court. The Agreements also include lists of enunciated exceptions, which do not mention class actions. The Agreements apply to employee claims under the Fair Labor Standards Act, 29 U.S.C. 201 et seq. ( FLSA ), including lawsuits brought by an employee for and in behalf of himself or themselves and other employees similarly situated. 29 U.S.C. 216(b). Moreover, any ambiguity in the Agreements must be construed against Respondent, who drafted the Agreements. Third, under the law of the Ninth Circuit, where this case was brought, arbitration agreements cannot require employees to waive their rights to pursue work-related claims on a class or collective basis. Morris v. Ernst & Young, LLP, 834 F.3d 975, 980 (9th Cir. 2016) cert. granted, 137 S. Ct. 809 (2017). Respondents claim that the Arbitrator does not have authority to decide the clause construction issue. Answer 2. In Ray, that claim was squarely rejected by the Arbitrator and the District Court, both of whom ruled that the Agreements reflect a clear intention to have the Page 2 of 16

3 Case 1:17-cv CMA-KLM Document 28-2 Filed 06/30/17 USDC Colorado Page 3 of 16 Arbitrator decide issues of arbitrability. See Exhibits 1 and 2. In addition, under Rule 3 of the Supplementary Rules for Class Arbitrations of the American Arbitration Association ( AAA ), the arbitrator shall determine whether the applicable arbitration clause permits the arbitration to proceed on behalf of or against a class. (emphasis added). As such, there can be no question that the Arbitrator has jurisdiction over this dispute. II. RELEVANT FACTS Claimants are former employees of Respondent who worked as Inside Sales Associates ( ISAs ) in Arizona, Colorado, and New Jersey. As a condition of employment, Claimants, and all ISAs who worked for Respondent, were required to sign Arbitration Agreements ( Agreements ). Exhibit 3: Agreements. 1 The Agreements include the following provisions: [T]he Employee and DISH agree that any claim, controversy, and/or dispute between them, arising out of, and/or in any way related to Employee s application for employment, employment, and/or termination of employment, whenever or wherever brought, shall be resolved by arbitration. [T]his Agreement is governed by the Federal Arbitration Act, 9 U.S.C. 1 et seq., and is fully enforceable. The arbitration shall be governed by and construed in accordance with the substantive law of the State in which the Employee performs services for DISH as of the date of the demand for arbitration, or in the event the Employee is no longer employed by DISH, the substantive law of the State in which the Employee last performed services for DISH. 1 Exhibit 3 was previously marked as Exhibit A to Claimants Amended Complaint. Page 3 of 16

4 Case 1:17-cv CMA-KLM Document 28-2 Filed 06/30/17 USDC Colorado Page 4 of 16 A single arbitrator engaged in the practice of law from the [AAA] shall conduct the arbitration under the then current procedures of the AAA s National Rules for Resolution of Employment Disputes... [T]his agreement to arbitrate all claims shall not apply to Employee claims for statutory unemployment compensation benefits, statutory worker s compensation benefits, and claims for benefits from an DISH-sponsored employee benefit plan as that term is defined in 29 U.S.C. 1002(3). Other than potential rights to a trial, a jury trial, and common law claims for punitive and/or exemplary damages, nothing in this agreement limits any statutory remedy to which the Employee may be entitled under law. Exhibit 3: Agreements at 1-8 (emphasis added). Finfrock Aff. The Agreements were drafted by Respondent, without any input from the ISAs. Exhibit 4 Claimants initiated this arbitration on December 23, 2016 by filing their Complaint in Mesa, Arizona. They then filed their Amended Complaint on January 26, Claimants allege that Respondent violated their rights, and the rights of similarly-situated employees, under the Fair Labor Standards Act ( FLSA ) and the wage and hour laws of Arizona, Colorado, and New Jersey, by failing to pay wages and overtime compensation due to them, and by making illegal deductions from their wages. Am. Compl Claimants FLSA claims have been brought as a collective action under 29 U.S.C. 216(b). Am. Compl Claimants claims have been brought as class claims under the Rule 23 of the Rules of Civil Procedure of Arizona, Colorado, and New Jersey. Id. Page 4 of 16

5 Case 1:17-cv CMA-KLM Document 28-2 Filed 06/30/17 USDC Colorado Page 5 of 16 Similar claims were brought on behalf of ISAs employed by Respondent in Colorado 2 in the case of Ray v. Dish. Exhibit 1: Ray Award. In that case, Respondent argued that the Agreement did not allow class arbitrations, and that the arbitrator lacked authority to decide the issue of clause construction. Id. at 5. Arbitrator Thomas Brewer rejected both arguments, holding that: (1) the Agreement clearly indicated that the parties intended the Arbitrator to decide arbitrability issues; (2) the Agreement s extremely broad language clearly encompassed Ray s FLSA and state wage and hour claims; (3) the Agreement s specific list of exceptions did not include class claims; (4) the Agreement s representation that Ray would not lose any statutory remedy, other than those listed, by signing the Agreement meant that Ray retained the right to file a collective action under 29 U.S.C. 216(b); and (5) to the extent that the Agreement was ambiguous, such ambiguity had to be interpreted against Respondent, who was the drafter. 3 The Agreement in Ray was identical to the Agreements in this case. See Exhibit 5: Ray Agreement. 4 III. ARGUMENT A. RESPONDENT IS COLLATERALLY ESTOPPED FROM RE-LITIGATING THE ISSUES OF JURISDICTION AND CLAUSE CONSTRUCTION. The doctrine of collateral estoppel, or issue preclusion, bars re-litigation of issues that were necessary to a determination in a different proceeding. Moss v. Kopp, 559 F.3d 1155, 1161 (10th Cir. 2009). Collateral estoppel applies when: (1) there was a full and fair opportunity to litigate an issue in a previous action; (2) the issue was actually litigated in that action; (3) the 2 Claimants maintain that the specific claims brought by the ISAs in Ray are distinct from the claims in this case. 3 The federal court upheld Arbitrator Brewer s decision on December 28, See Exhibit 2: Ray Appeal. 4 Exhibit 5 was filed by Respondent on February 9, 2016 as an attachment to its appeal to the U.S. District Court. Page 5 of 16

6 Case 1:17-cv CMA-KLM Document 28-2 Filed 06/30/17 USDC Colorado Page 6 of 16 issue was lost as a result of a final judgment in that action; and (4) the person against whom collateral estoppel is asserted in the present action was a party or in privity with a party in the previous action. In re Palmer, 207 F.3d 566, 568 (9th Cir. 2000); cf. Moss, 559 F.3d at 1161; In Re Estate of Dawson, 136 N.J. 1, (1994) (also requiring that the determination of the issue be essential to the prior judgment). Generally, mutuality/identity of parties is not necessary to invoke collateral estoppel. See Nevada v. United States, 463 U.S. 110, 143 (1983); Parklane Hosiery Co. v. Shore, 439 U.S. 322, 327 (1979); SIL-FLO, Inc. v. SFHC, Inc., 917 F.2d 1507, 1520 (10th Cir. 1990); Burlington N. R. Co. v. Hyundai Merch. Marine Co., 63 F.3d 1227, 1232 (3d Cir. 1995). 5 In Ray, Respondent had a full and fair opportunity to litigate, and did litigate through an appeal, the present issues of (a) the Arbitrator s jurisdiction and (b) whether the Agreements permit class arbitration of Claimants claims. See Exhibit 1: Ray Award at Respondent lost on both issues when Arbitrator Brewer issued a final clause construction award, holding that: (1) the parties intended the Arbitrator to decide arbitrability issues; (2) the Agreement s language permitted class claims; (3) class claims were omitted from the list of exceptions to arbitrability; (4) the ISA specifically retained the right to file collective claims under Section 216(b) of the FLSA; and (5) any ambiguity had to be construed against Respondent. Id. Respondent also lost its appeal to the District Court in Colorado. Exhibit 2: Ray 5 While some courts in Arizona have required identity of the parties to apply collateral estoppel, this element is not required if collateral estoppel is being used defensively, to prevent the other party from raising a previously litigated unsuccessful claim/defense. Campbell v. SZL Props., Ltd., 204 Ariz. 221, 223 (Ariz. Ct. App. 2003). Moreover, as the Supreme Court has noted, mutuality has been for the most part abandoned in cases involving collateral estoppel, even though it remains part of the doctrine of res judicata. Nevada v. United States, 463 U.S. 110, 143 (1983) (citations omitted); See also Restatement (Second) of Judgments 29 ( A party precluded from relitigating an issue with an opposing party is also precluded from doing so with another person unless the fact that he lacked full and fair opportunity to litigate the issue in the first action or other circumstances justify affording him an opportunity to relitigate the issue ). Page 6 of 16

7 Case 1:17-cv CMA-KLM Document 28-2 Filed 06/30/17 USDC Colorado Page 7 of 16 Appeal. The District Court upheld the Arbitrator s decision, ruling that (1) the parties intended to submit arbitrability questions to the Arbitrator, 6 and (2) there was no basis to vacate the Arbitrator s award. Id. Because Respondent is the same entity that lost in Ray, it is collaterally estopped from relitigating the issues of jurisdiction and class arbitrability in this action. Moreover, because Respondents have already litigated and appealed through all of the procedures in Rule 3 of the AAA s Supplementary Rules for Class Arbitration (i.e., a clause construction award, provision of 30 days for appeal, appeal to the U.S. District Court, and a final judgement from the Court), Respondent is no longer entitled to appeal to any court. Therefore, this arbitration should proceed immediately to the Class Certification Phase set forth in Rule 4 of the Supplementary Rules. B. THE AGREEMENTS PERMIT COLLECTIVE AND CLASS CLAIMS. A party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so. Stolt-Nielsen S.A. v AnimalFeeds International, 559 U.S. 662, 684 (2010) (emphasis in original). Such an agreement can be explicit or implicit, but the plain existence of an agreement to arbitrate cannot give rise to an inference that there was necessarily an agreement to arbitrate class as well as individual claims. Savaria et al. v. Steiner Leisure Ltd, AAA Case No Partial Final Clause Construction Award (Oct. 30, 2013) (Dinneen, Arb.) (citing Stolt-Nielsen, 559 U.S. at 684). The FAA requires enforcement of the Agreement according to its terms, and the analysis must begin with an examination and interpretation of the language actually used in the Agreement. McCullough et al. v. Terminal Trucking Co., LLC, AAA Case No The Supreme Court has held that parties can agree to arbitrate gateway questions of arbitrability, such as whether the parties have agreed to arbitrate or whether their agreement covers a particular controversy. Rent-a-Center, West Inc. v. Jackson, 561 U.S. 63, (2010). Page 7 of 16

8 Case 1:17-cv CMA-KLM Document 28-2 Filed 06/30/17 USDC Colorado Page 8 of Partial Final Clause Construction Award (Sept. 17, 2013) (Dinneen, Arb.) (quoting Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 221 (1985). [A]s 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 allegation of waiver, delay, or a like defense to arbitrability. Moses H. Cone Mem l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, (1983). As explained by Arbitrator Brewer in Ray, and based on universal principles of contract interpretation, the Agreements between Claimants and Respondent allow this arbitration to proceed as a class action. See Exhibit 1: Ray Award at The Parties Agreed to Arbitrate Any Claim, Controversy, or Dispute. The Agreements, drafted by Respondent, and signed by Claimants as a condition of employment, provide that the Employee and DISH agree that any claim, controversy, and/or dispute between them, arising out of, and/or in any way related to Employee s application for employment, employment, and/or termination of employment, whenever or wherever brought, shall be resolved by arbitration. Exhibit 3: Agreements at 1, 3, 5, 7, and 8. As Arbitrator Brewer stated in Ray, [t]his is extremely broad language. Exhibit 1: Ray Award at 9. The term any is used to modify claim controversy, and/or dispute, with no restriction or limitation, except for six specifically-enumerated exceptions (which do not include class actions). Id. These words are certainly broad enough to encompass the particular types of claims at issue here all of which unquestionably relate to Claimant s employment. Id. In particular, the language used plainly covers the FLSA and companion state law statutory claims alleged by Claimant. Id. Page 8 of 16

9 Case 1:17-cv CMA-KLM Document 28-2 Filed 06/30/17 USDC Colorado Page 9 of 16 In addition to using the word any, the Agreement also refers to itself as an agreement to arbitrate all claims. Exhibit 3: Agreements at 1, 3, and 5 (emphasis added). As this Arbitrator has previously held, [o]bviously, any means any; a controversy is a controversy; and a claim is a claim [o]ne does not need a dictionary to understand such words in their ordinary meaning. McCullough, AAA Case No at 11. This language is broad, expansive, and all-inclusive. Id. at 14; cf. Broach v. CK Franchising, Inc., AAA Case No Partial Final Clause Construction Award at 15 (Apr. 8, 2017) (Dinneen, Arb.) (holding that [t]he Agreement is a commitment by the employee to arbitrate any and all employment-related disputes, and the obligation does not change just because the dispute may involve more than one employee ). Like the employee claims in Ray, McCullough, and Broach, Claimants FLSA and state claims clearly fall into the category of any claim, controversy, and/or dispute between Claimants and Respondent, arising out of, and/or in any way related to Claimants employment. Such claims are therefore included in the extremely broad language of the Agreements. See Exhibit 1: Ray Award at The Agreements Entitle Claimants to Seek All Remedies Available in Court. The Agreements specifically incorporate the AAA Employment Arbitration Rules, stating that a single arbitrator engaged in the practice of law from the [AAA] shall conduct the arbitration under the then current procedures of the AAA s National Rules for Resolution of Employment Disputes. Exhibit 3: Agreements at 1, 3, and 5. The Agreements go on to declare that [o]ther than potential rights to a trial, a jury trial, and common law claims for punitive and/or exemplary damages, nothing in this agreement limits any statutory remedy to which the Employee may be entitled under law. Id. at 2, 4, and 6 (emphasis added). Page 9 of 16

10 Case 1:17-cv CMA-KLM Document 28-2 Filed 06/30/17 USDC Colorado Page 10 of 16 Rule 39(d) of the AAA s Employment Arbitration Rules provides that the arbitrator may grant any remedy or relief that would have been available to the parties had the matter been heard in court. (emphasis added). As this Arbitrator has noted in several decisions, Because a class action could obviously otherwise have been brought and resolved in court, the Agreement [incorporating the Rules] provides a contractual assurance of the possibility of pursuing an arbitration where the arbitrator has the authority to allow class arbitration as a remedy. Broach AAA Case No at 13; cf. Nordhaus v. Reichenbach Restaurant Grp., AAA Case No Partial Final Clause Construction Award at 7-8 (July 7, 2016) (Dinneen, Arb.); McCullough, AAA Case No at As Arbitrator Brewer held in Ray, Claimants option to bring a class or collective action is a remedy and a valuable right that is not waived by the Agreements. Exhibit 1: Ray Award at The provisions of the Agreements cited above would be problematical and misleading if they were construed to waive Claimants right to bring a collective action under the FLSA, or a class claim, when the language of the Agreement specifically includes a promise that the employee is not waiving any such statutory remedies or valuable rights. Id. Because the Agreements incorporate the AAA Rules, which explicitly allow Claimants to pursue class action remedies in court, and because the Agreements specifically provide that no remedies other than those enunciated in the Agreements have been waived, the Agreements clearly allow Claimants to proceed as a class. 3. Claimants Are Statutorily Entitled to Pursue FLSA Claims as a Class. The FLSA provides that an employee, or employees, may bring an action for and in behalf of himself or themselves and other employees similarly situated. 29 U.S.C. 216(b). Through this provision, the FLSA provides for collective arbitration as a matter of express Page 10 of 16

11 Case 1:17-cv CMA-KLM Document 28-2 Filed 06/30/17 USDC Colorado Page 11 of 16 statutory entitlement, and has done so since long before drafting or execution of the [Agreements] at issue here. Exhibit 1: Ray Award at 10 (citing Hoffman LaRoche v. Sperling, 493 U.S. 165, 170 (1989) and DeAscensio v. Tyson Foods, Inc., 342 F.3d 301, (3rd Cir. 2003)). Nothing in the broad language used [in the Agreements] to describe the scope of arbitrable claims shows any intent to make only a portion of an Employee s FLSA claim arbitrable, or to make only some portions of a claim arbitrable but not other provisions. Exhibit 1: Ray Award at 11. Because none of the Claimants waived their right to proceed on behalf of themselves and other employees under 29 U.S.C. 216(b) when they signed the Agreements, that right has been specifically retained. As such, the Agreements clearly indicate that Claimants are entitled to proceed with class claims against Respondent. 4. The Agreements Lists of Exceptions to Arbitrability Omit Class Actions. As Arbitrator Brewer held in Ray, the Agreements enumerate[] six specific exceptions to the broad description of arbitrable matters claims for unemployment compensation, workers compensation, and ERISA benefits. Exhibit 1: Ray Award at 11; See Exhibit 3: Agreements at 1, 3, 5, 7, and 8. No such exclusion is made for class or collective arbitration proceedings. Exhibit 1: Ray Award at 11. This omission, indicates that the parties did not intend such an exclusion for class or collective proceedings from the Agreement s broad description of arbitrable matters. Exhibit 1: Ray Award at 11. Page 11 of 16

12 Case 1:17-cv CMA-KLM Document 28-2 Filed 06/30/17 USDC Colorado Page 12 of 16 The Agreements also list four features of court proceedings that are of value and are waived, namely: potential rights to a trial, a jury trial, and common law claims for punitive and/or exemplary damages. Exhibit 3: Agreements at 1, 3, 5, 7 and 8. As stated in Ray, [a] reasonable employee reading this language would not reasonably construe [it] as also containing either an expressed seventh exclusion from arbitrable matters or as containing an unexpressed fifth exclusion from the list of valuable rights waived by the agreement. Exhibit 1: Ray Award at 11. Because the Agreements omit class actions from both lists of exceptions to arbitrability, the Agreements unquestionably allow Claimants to proceed as a class. 5. Any Ambiguity in the Agreements Must Be Construed Against Respondent. Based on the Agreements broad language encompassing any and all claims, controversies, and disputes, the Agreements inclusion of the AAA s Employment Arbitration Rules, the omission of class actions from the Agreements lists of exceptions, and based on Claimants statutory right to pursue an FLSA collective action, which is not waived through the Agreements, the Arbitrator should construe the Agreements as allowing class arbitration. Moreover, even if the Agreements are ambiguous in their terms, Claimants class claims must still be permitted under well-established rules of contract construction. Under the common law rule of contra proferentum, a court must construe ambiguous language in a contract against the interests of the party that drafted that language. Manstrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, (1995); Jones v. Bank of Am., N.A., 311 F.Supp.2d 828, 833 (D. Ariz. 2003); Restatement (Second) of Contracts 206; Exhibit 1: Ray Award at Page 12 of 16

13 Case 1:17-cv CMA-KLM Document 28-2 Filed 06/30/17 USDC Colorado Page 13 of 16 It is undisputed that Respondent drafted the Agreements, and required its ISAs to sign them as a condition of employment. Exhibit 4: Finfrock Aff. As Arbitrator Brewer held in Ray, a reasonable employee reviewing the agreement s language could have concluded that its expansive definition of the scope of arbitrable issues encompassed class proceedings that the list of six enumerated matters excluded from the scope of arbitrable issues was comprehensive [and] that the penultimate paragraph s list of valuable incidents of judicial proceedings was a complete list. Exhibit 1: Ray Award at 19. To the extent that any of these issues is viewed as an ambiguity in the Agreements, the Agreements must be construed against the interests of Respondent as a matter of law. C. THE AGREEMENTS CANNOT PROHIBIT CONCERTED ACTIVITY. The Ninth Circuit Court of Appeals has declared that employees have the right to pursue work-related legal claims together. Morris v. Ernst & Young, LLP, 834 F.3d 975, 980 (9th Cir. 2016) cert. granted, 137 S. Ct. 809 (2017). Under the National Labor Relations Act, 29 U.S.C. 157, employees have the right to engage in collective action, whether in court or arbitration. Morris, 834 F.3d at 980. An arbitration clause that requires employees to waive their right to proceed on a class or collective basis is therefore unenforceable. Id. at Under the law set forth in Morris, even if the Agreements between Claimants and Respondent could be construed to require Claimants and other ISAs to proceed without the benefits of class treatment, such a requirement would be illegal and unenforceable. As such, the Arbitrator should construe the agreements in favor of Claimants class claims. IV. CONCLUSION WHEREFORE, Claimants respectfully ask the Arbitrator to construe the Agreements as allowing this Arbitration to proceed on a class basis. Page 13 of 16

14 Case 1:17-cv CMA-KLM Document 28-2 Filed 06/30/17 USDC Colorado Page 14 of 16 Dated this 1 st day of June, Respectfully submitted, MICHAEL FINFROCK, MAURICIO GAMEZ, RONDA HARLAN, ALI SALEH, KIMBERLY SLY, and HELEN VACCHIO, on behalf of themselves and all others similarly situated By: /s/ Adam M. Harrison Adam M. Harrison David H. Miller SAWAYA & MILLER 1600 Ogden Street Denver, Colorado (Phone) (Fax) aharrison@sawayalaw.com dmiller@sawayalaw.com Counsel for Claimants EXHIBITS Exhibit 1: Ray Clause Construction Award Exhibit 2: District Court Decision in Ray Appeal Exhibit 3: Claimants Arbitration Agreements Exhibit 4: Michael Finfrock Affidavit Exhibit 5: Ray Arbitration Agreement AUTHORITIES CITED 1. Morris v. Ernst & Young, LLP, 834 F.3d 975, 980 (9th Cir. 2016) 2. Moss v. Kopp, 559 F.3d 1155, 1161 (10th Cir. 2009) 3. In re Palmer, 207 F.3d 566, 568 (9th Cir. 2000) 4. In Re Estate of Dawson, 136 N.J. 1, (1994) Page 14 of 16

15 Case 1:17-cv CMA-KLM Document 28-2 Filed 06/30/17 USDC Colorado Page 15 of Nevada v. United States, 463 U.S. 110, 143 (1983) 6. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 327 (1979) 7. SIL-FLO, Inc. v. SFHC, Inc., 917 F.2d 1507, 1520 (10th Cir. 1990) 8. Burlington N. R. Co. v. Hyundai Merch. Marine Co., 63 F.3d 1227, 1232 (3d Cir. 1995) 9. Campbell v. SZL Props., Ltd., 204 Ariz. 221, 223 (Ariz. Ct. App. 2003) 10. Restatement (Second) of Judgments Rent-a-Center, West Inc. v. Jackson, 561 U.S. 63, (2010) 12. Stolt-Nielsen S.A. v AnimalFeeds Int l, 559 U.S. 662, 684 (2010) 13. Savaria et al. v. Steiner Leisure Ltd, AAA Case No Partial Final Clause Construction Award (Oct. 30, 2013) (Dinneen, Arb.) 14. McCullough et al. v. Terminal Trucking Co., LLC, AAA Case No Partial Final Clause Construction Award (Sept. 17, 2013) (Dinneen, Arb.) 15. Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 221 (1985) 16. Moses H. Cone Mem l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, (1983) 17. Broach v. CK Franchising, Inc., AAA Case No Partial Final Clause Construction Award at 15 (Apr. 8, 2017) (Dinneen, Arb.) 18. Nordhaus v. Reichenbach Restaurant Grp., AAA Case No at 7-8 (July 7, 2016) (Dinneen, Arb.) 19. Hoffman LaRoche v. Sperling, 493 U.S. 165, 170 (1989) 20. DeAscensio v. Tyson Foods, Inc., 342 F.3d 301, (3rd Cir. 2003) 21. Manstrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, (1995) 22. Jones v. Bank of Am., N.A., 311 F.Supp. 2d 828, 833 (D. Ariz. 2003) Page 15 of 16

16 Case 1:17-cv CMA-KLM Document 28-2 Filed 06/30/17 USDC Colorado Page 16 of Restatement (Second) of Contracts 206 CERTIFICATE OF SERVICE I certify that on this 1 st day of June, 2017, I delivered true and accurate copies of the foregoing Claimants Brief in Support of Class Arbitration, and its corresponding Exhibits, to the Arbitrator, the American Arbitration Association and Respondent s counsel via electronic mail at the addresses listed below. Edith Dinneen, Arbitrator American Arbitration Association ediedinneen@aol.com Jonathan Weed, ADR Manager American Arbitration Association JonathanWeed@adr.org Christian Antkowiak, Esq. David Laurent, Esq. Buchanan Ingersoll & Rooney, PC christian.antkowiak@bipc.com david.laurent@bipc.com Counsel for Respondent /s/ Adam M. Harrison Page 16 of 16