Am. Inst. for Foreign Study v. Fernandez-Jimenez ( 2021 )

United States Court of Appeals
For the First Circuit
Nos. 20-1641
20-1692
AMERICAN INSTITUTE FOR FOREIGN STUDY, INC., d/b/a Au Pair in
America; WILLIAM L. GERTZ,
Plaintiffs, Appellees/Cross-Appellants,
v.
LAURA FERNANDEZ-JIMENEZ,
Defendant, Appellant/Cross-Appellee.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Lynch and Kayatta, Circuit Judges,
and Laplante,* District Judge.
Nicholas J. Rosenberg, with whom Gardner & Rosenberg P.C. was
on brief, for appellant/cross-appellee.
Robert M. Tucker, with whom Patrick M. Curran, Jr., Stephen
J. Macri, and Ogletree, Deakins, Nash, Smoak & Stewart, P.C. were
on brief, for appellee/cross-appellant.
July 9, 2021
* Of the District of New Hampshire, sitting by designation.
LYNCH, Circuit Judge. The American Institute for
Foreign Study, Inc. (the "Institute") places au pairs with host
families in the United States. In 2018, it entered a contract
(the "Agreement") with Laura Fernandez-Jimenez, an au pair from
Spain, which required the parties to arbitrate their disputes and
waived their rights to other forms of dispute resolution.
After Fernandez-Jimenez filed a class arbitration demand
against the Institute and its CEO William L. Gertz, they filed
suit in federal district court seeking to enjoin class arbitration.
The district court granted a preliminary injunction to the
Institute and denied relief to Gertz. Am. Inst. for Foreign Study,
Inc. v. Fernandez-Jimenez, 468 F. Supp. 3d 414, 425-26 (D. Mass.
2020).
Because the Agreement does not authorize class
arbitration and because Gertz's claim is moot, we affirm.
I.
The Agreement between Fernandez-Jimenez and the
Institute sets forth two provisions pertinent to this dispute.
The first requires the parties to the Agreement to arbitrate their
disputes: "I agree that any dispute with or claim against [the
Institute] . . . will be exclusively resolved by binding
arbitration, to be conducted in substantial accordance with the
commercial arbitration rules of the American Arbitration
Association [("AAA")]." The second waives the right to bring
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"claims, either in an individual capacity or as a member of any
class action, by any means and in any forum other than arbitration
conducted by the [AAA]." Together, as the parties now agree, the
provisions require Fernandez-Jimenez to submit any individual
claims to arbitration. Gertz is not a party to the Agreement.
II.
We review the district court's conclusions of law de
novo, its factual findings for clear error, and its ultimate
decision to grant or deny a preliminary injunction for abuse of
discretion. Bayley's Campground, Inc. v. Mills, 985 F.3d 153, 158
(1st Cir. 2021).
A.
Arbitrators may resolve disputes only to the extent and
under the rules agreed on by the parties. See Lamps Plus, Inc. v.
Varela, 139 S. Ct. 1407, 1416 (2019). Thus, in interpreting an
arbitration agreement, our task is to "give effect to the intent
of the parties."1 Id. (quoting Stolt-Nielsen S.A. v. Animal Feeds
Int'l Corp., 559 U.S. 662, 684 (2010)). In so doing, we must
presume that the parties have not agreed to class arbitration
1 Fernandez-Jimenez has doubly waived any argument that
the arbitrator should determine whether the Agreement permits
class arbitration by failing to raise the argument in her opening
brief on appeal or to the district court. See Bekele v. Lyft,
Inc., 918 F.3d 181, 186-87 (1st Cir. 2019); cf. Bossé v. N.Y. Life
Ins. Co., 992 F.3d 20, 27-31 (1st Cir. 2021). Indeed, she agreed
that the district court should decide the arbitrability of the
action.
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without "an affirmative 'contractual basis for concluding'"
otherwise. Id. (quoting Stolt-Nielsen, 559 U.S. at 684). Neither
silence nor ambiguity satisfies that standard. Id. at 1417;
Stolt-Nielsen, 559 U.S. at 687.
The Agreement does not provide an affirmative basis to
conclude that the parties agreed to class arbitration. The
arbitration clause is silent about class arbitration. And the
waiver clause only mentions class actions in precluding the parties
from litigating as a class. Fernandez-Jimenez points out that the
waiver clause waives "only" the right to litigate a class claim in
court. Hence, she reasons by negative inference that it was
intended to preserve a right excluded from that waiver -- the right
to arbitrate a class action. But that reasoning entirely begs the
question: Did she have a right to arbitrate as a class, which right
might then be preserved by exclusion from the waiver clause? And
as to that question, Fernandez-Jimenez is back to square one: She
can point to no "affirmative 'contractual basis for concluding'"
that the parties agreed to arbitrate class claims. Lamps Plus,
139 S. Ct. at 1407 (quoting Stolt-Nielssen, 559 U.S. at 684).2
2 Fernandez-Jimenez argues in her reply brief that in
substantially adopting the AAA's commercial rules, the Agreement
implicitly authorized class arbitration under the AAA's
supplementary rules for class arbitration. By not raising that
argument in her opening brief, she waived it. United States v.
Mayendía-Blanco, 905 F.3d 26, 32 (1st Cir. 2018).
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As Fernandez-Jimenez cannot prevail on the merits, the
district court did not err in granting a preliminary injunction to
the Institute. See Comcast of Me./N.H., Inc. v. Mills, 988 F.3d
607, 612, 617 (1st Cir. 2021).
B.
As to Gertz's claim, after this litigation began, Gertz
agreed to resolve any disputes with Fernandez-Jimenez through
arbitration. Gertz and Fernandez-Jimenez also agreed that she
would be able to arbitrate against him on a class or collective
basis only if she prevailed in her appeal against the Institute.
Because of that agreement, we would be unable to grant Gertz any
relief even if we ruled in his favor. Thus, his claim is moot.
See Town of Portsmouth v. Lewis, 813 F.3d 54, 58-59 (1st Cir.
2016).
III.
The decision of the district court is affirmed. No costs
awarded. See Fed. R. App. P. 39(a).
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