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Shen v. CMFG Life Ins. Co.

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS
Mar 4, 2016
CIVIL ACTION NO. 15-11593-MLW (D. Mass. Mar. 4, 2016)

Opinion

CIVIL ACTION NO. 15-11593-MLW

03-04-2016

SWAN SHEN, Plaintiff, v. CMFG LIFE INSURANCE COMPANY, CUNA BROKERAGE SERVICES, INC., TIM HALEVAN and STEPHEN MICHAEL COLLINS, Defendants.


REPORT AND RECOMMENDATION RE: DEFENDANTS' MOTION TO COMPEL ARBITRATION AND STAY PROCEEDINGS
(DOCKET ENTRY # 18) BOWLER, U.S.M.J.

In this employment termination dispute, defendants CMFG Life Insurance Company ("CMFG"), CUNA Brokerage Services, Inc. ("CBSI"), Tim Halevan ("Halevan"), CBSI's chief compliance officer, and Stephen Michael Collins ("Collins"), a sales manager at CMFG, (collectively "defendants") seek to compel plaintiff Swan Shen ("Shen") to arbitrate counts III through VII in a seven count complaint and to stay this litigation during the pendency of the arbitration proceedings under the Federal Arbitration Act ("FAA"), 9 U.S.C. §§ 3-4. (Docket Entry # 18). Shen opposes the motion both as to arbitration and a stay. (Docket Entry # 23). After conducting a hearing, this court took the motion (Docket Entry # 18) under advisement.

Defendants limit the motion "to compel arbitration of Counts III-VII" (Docket Entry # 18) and acknowledge that "Shen is not required to arbitrate Counts I and II" (Docket Entry # 19, p. 12).

PROCEDURAL BACKGROUND

Shen, a Massachusetts resident, originally filed the complaint in the Massachusetts Superior Court Department (Suffolk County). The claims all arise under state law. The first two counts consist of employment discrimination claims under Massachusetts General Laws chapter 151B based on "national origin, color, ancestry and/or race" (Count I) and gender (Count II). (Docket Entry # 8). The remaining counts allege: (1) a failure to pay wages in violation of the Massachusetts Wage Act, Massachusetts General Laws chapter 149 ("the Wage Act") (Count III); (2) a breach of the covenant of good faith and fair dealing (Count IV); (3) defamation (Count V); (4) an intentional infliction of emotional distress (Count VI); and (5) an intentional interference with contractual relations (Count VII).

On the basis of diversity jurisdiction, defendants removed this action to the United States District Court for the District of Massachusetts and filed an answer. Without engaging in any significant discovery (Docket Entry # 20), defendants filed the motion to compel.

Briefly summarized, the complaint alleges that defendants discriminated against Shen, an Asian female born in China, during her employment as a financial advisor with CMFG. (Docket Entry # 8, ¶¶, 11-14, 95-108). She was also a registered representative under the Financial Industry Regulatory Authority ("FINRA") with CBSI. (Docket Entry # 8, ¶ 11). After a successful career as a top financial advisor at CMFG, the company terminated her employment in August 2013 and refused to pay her previously earned incentive pay. (Docket Entry # 8, ¶¶ 11, 14-18, 53, 60, 61, 83-86). Halevan then drafted and CBSI filed a Uniform Termination Notice for Securities Industry Registration required by FINRA ("Form U-5") containing purportedly false and defamatory reasons for the termination, namely, copying and pasting client signatures, altering forms and using consolidated customer statements without pre-approval. (Docket Entry # 8, ¶¶ 65, 69-73, 126, Ex. A). During her employment, CMFG repeatedly denied her a full-time assistant even though advisors at her level typically had one, if not two, full-time assistants. (Docket Entry # 8, ¶¶ 19-22). After her termination, CMFG replaced her "with two white male employees" having either more customer complaints or less job stability than Shen. (Docket Entry # 8, ¶ 58).

During oral argument, Shen clarified that CMFG was her employer, a position also taken in her memorandum opposing the motion (Docket Entry # 23, pp. 1-2).

Under FINRA and its predecessor, the National Association of Securities Dealers ("NASD"), "whenever a broker is terminated, the member firm that employed him must fill out and submit to the association a termination notice form (form U-5)." Baravati v. Josephthal, Lyon & Ross, Inc., 28 F.3d 704, 705 (7th Cir. 1994); accord Galarneau v. Merrill Lynch, Pierce, Fenner & Smith Inc., 504 F.3d 189, 197 (1st Cir. 2007) (noting that, "Merrill Lynch filed a Uniform Termination Notice for Securities Industry Registration (Form U-5) with the NASD as required by NASD rules whenever a registered stockbroker leaves a firm"); Rosenberg v. MetLife, Inc., 493 F.3d 290, 290 (2nd Cir. 2007) (per curiam) (NASD "requires its members to file a termination form ('Form U-5') whenever they terminate a registered employee" and "form contains the employer's statement of the reasons for the termination"); Lobaito v. Financial Industry Regulation Authority, Inc., 2014 WL 4470423, at *4 (S.D.N.Y. Sept. 9, 2014) ("[w]henever a securities firm terminates a registered employee, the firm must file a Form U-5 with FINRA, stating the reason for termination (FINRA By-Laws, Article V, Sec. 3"), aff'd, 599 Fed.Appx. 400 (2nd Cir. 2015) (unpublished), cert. denied, 136 S.Ct. 570 (2015).

BACKGROUND

In March 2001, Shen began working in Waltham, Massachusetts as a financial advisor at a credit union for CMFG. (Docket Entry # 8, ¶¶ 11, 13) (Docket Entry # 8, p. 30). CMFG requires its financial advisors to register with CBSI, "a FINRA-registered broker/dealer that . . . provides brokerage services to credit union members." (Docket Entry # 8, ¶¶ 7, 11) (Docket Entry # 21, ¶ 7). FINRA, the successor entity to NASD, "is a self-regulatory organization and national securities association that is registered with the Securities and Exchange Commission." WC Capital Mgmt., LLC v. UBS Securities, LLC, 711 F.3d 322, 326 n.2 (2nd Cir. 2013); (Docket Entry # 21, ¶¶ 3, 4). As a FINRA-registered broker/dealer (Docket Entry # 8, ¶ 7) (Docket Entry # 21, ¶¶ 3, 4), CBSI was a "member" of FINRA. See FINRA Rule 13100(o), http://www.finra.org/industry/finra-rules (henceforth "FINRA Rules" or "FINRA Rule") (defining a "member" as "any broker or dealer admitted to membership in FINRA").

Unless otherwise noted, page numbers refer to the docketed page number as opposed to the actual document's page number.

All persons engaged "in the investment banking or securities business of a member" must register with NASD or its successor, FINRA. See FINRA Rule 1031(a) ("[a]ll persons engaged or to be engaged in the investment banking or securities business of a member who are to function as representatives shall be registered as such with NASD"); (Docket Entry # 21, ¶ 5). As part of her employment with CMFG, Shen therefore became "a FINRA-registered representative with [CBSI]." (Docket Entry # 8, ¶ 11).

The registration process entailed completing a Uniform Application for Securities Industry Registration or Transfer form ("Form U-4"), which contains an arbitration clause. (Docket Entry # 21, ¶ 8) (Docket Entry # 21-3). Prior to completing the form, Shen authorized CBSI to review her record with the central licensing and registration depository for the United States securities industry and its regulators ("CRD"). See http://www.finra.org/industry/crd (FINRA operates "central licensing and registration system for the U.S. securities industry and its regulators," which contains "qualification, employment and disclosure histories of more than 643,320 active registered individuals"); (Docket Entry # 21, ¶ 8). On January 22, 2001, Shen signed an NASD/CRD Authorization form ("CRD Form"). (Docket Entry # 21-2). The CRD Form includes the following language advising Shen that the Form U-4 contained an arbitration clause:

Before signing the U-4, you should understand the following: (1) You are agreeing to arbitrate any dispute, claim or controversy that may arise between you and your firm, or a customer, or any other person, that is required to be arbitrated under the rules of the self-regulatory organizations with which you are registering. This means you are giving up the right to sue a member, customer, or another associated person in court, including the right to a trial by jury, except as provided by the rules of the arbitration forum in which a claim is filed.
(Docket Entry # 21-2). The form additionally advised Shen that an employment discrimination claim "is not required to be arbitrated under NASD rules." (Docket Entry # 21-2).

On March 21, 2001, Shen signed the Form U-4. (Docket Entry # 21-3, pp. 10-11). The form, signed by Shen and submitted by CBSI to NASD, includes the following arbitration clause: "I agree to arbitrate any dispute, claim or controversy that may arise between me and my firm, or a customer, or any other person, that is required to be arbitrated under the rules, constitutions, or by-laws of the [self-regulatory organizations] indicated in Item 11 as may be amended from time to time." (Docket Entry # 21-3, pp. 1, 9) (Docket Entry # 21, ¶ 11). Shen identified NASD as the applicable self-regulatory organization ("SRO"). NSAD "changed its name to FINRA in 2007, but otherwise maintained its function and rules as a self-regulatory organization." (Docket Entry # 21, ¶ 4). FINRA Rule 13201 excludes employment discrimination claims from mandatory arbitration, i.e., counts I and II.

Plaintiff does not consent to arbitrate counts I and II and the parties agree that these counts are therefore not subject to arbitration. FINRA Rule 13201(a) provides as follows:

(a) Statutory Employment Discrimination Claims

A claim alleging employment discrimination, including sexual harassment, in violation of a statute, is not required to be arbitrated under the Code. Such a claim may be arbitrated only if the parties have agreed to arbitrate it, either before or after the dispute arose. If the parties agree to arbitrate such a claim, the claim will be administered under Rule 13802.
Furthermore, under the arbitration clause, Shen agreed to arbitrate disputes under the NASD rules "as may be amended from time to time." (Docket Entry # 21-3, p. 9, ¶ 5). Likewise, in another of the ten paragraphs immediately preceding Shen's signature in Form U-4, she agreed "to comply with all" of the rules of the SRO with which she sought registration, i.e., NASD, "as they are or may be adopted, or amended from time to time." (Docket Entry # 21-3, p. 9, ¶ 2). She therefore agreed not only to the above-quoted FINRA arbitration rule but also to the arbitration rules of NASD and thereafter FINRA, including FINRA Rules 13200(a) and 13803(f).

Notwithstanding Shen's status as a FINRA-registered representative with CBSI, she was an employee of CMFG. (Docket Entry # 8, ¶¶ 11, 13) (Docket Entry # 21, ¶ 6). Throughout her employment at CMFG, she "was one of the top financial advisors at" the company. (Docket Entry # 8, ¶ 14). Indeed, she built a customer base at the credit union with assets totaling approximately $163 million. (Docket Entry # 8, ¶ 15). During her tenure, she had only one customer complaint, which CMFG denied as without merit. (Docket Entry # 8, ¶ 16).

During her employment, Shen was a member of the senior advisor leadership team ("SALT") based on her seniority and annual performance. As a member of SALT, She was "entitled to receive annual business stipends." (Docket Entry # 8, ¶¶ 27-28) (Docket Entry # 21-1, p. 16). A registered representative agreement sets out the calculation. (Docket Entry # 21-1, p. 16). Although eligible for SALT in 2009, 2010 and 2011, "Collins prevented her membership." (Docket Entry # 8, ¶ 31).

Shen was the only Asian female financial advisor working for CMFG throughout the "country out of nearly 500 financial advisors." (Docket Entry # 8, ¶ 23). Typically, financial advisors have one or two full-time assistants. (Docket Entry # 8, ¶ 21). Shen had only a single part-time assistant. (Docket Entry # 8, ¶ 19).

Eight months before the termination, "CUNA," i.e., CBSI or CMFG, issued "a Corrective Action Notice and Letter of Concern" to Shen "because of signature concerns and form alterations." (Docket Entry # 8, n.2). Shen promptly admitted to the conduct and thereafter "obtained [the] affected clients' signatures on the proper forms." (Docket Entry # 8, n.2). In early August 2013, FINRA sent Shen a letter dated August 2, 2013 regarding her use of a document she had created for client meetings captioned "Periodic Review Meeting Agenda." (Docket Entry # 8, ¶ 32). Shen had stopped using the document and providing it to clients in December 2012. (Docket Entry # 8, ¶ 47). On or about August 4, 2013, she quickly resolved the matter with FINRA "by agreement." (Docket Entry # 8, n.3).

The complaint refers to "CUNA," a term it defines as CBSI and CMFG. (Docket Entry # 8, n.1).

On August 28, 2013, Collins and his supervisor came into Shen's office, handed her a termination letter and "informed her that they had removed her registration with" CBSI. (Docket Entry # 8, ¶¶ 53-55). After Shen's termination, Halevan drafted and CBSI filed the Form U-5 with the aforementioned reasons for the termination. (Docket Entry # 8, ¶¶ 65, 69-70, 126 & Ex. A) (Docket Entry # 21, ¶ 14). After terminating her employment, CBSI replaced Shen with two white male employees.

Under the registered representative agreement, "Shen was entitled to receive" certain incentive pay. (Docket Entry # 8, ¶¶ 78, 80) (Docket Entry # 21-1). Shen earned incentives based on procuring new business as well as retaining existing accounts. Upon her termination, she had completed all of the work to earn the incentive pay. Collins, however, informed her she would not receive it because she no longer worked for the company.

Collins and Halevan each signed Form U-4s requesting registration with NASD, the identified SRO in the forms. (Docket Entry ## 21-4, 21-5). Like Collins, Halevan is also an employee of CMFG. (Docket Entry # 21, ¶ 13).

DISCUSSION

In addition to a number of subsidiary arguments, defendants contend that: (1) CBSI, Halevan and Collins are entitled to invoke the arbitration clause and compel arbitration; (2) Shen is bound by the arbitration clause; and (3) counts III through VII fall within the scope of the arbitration clause. (Docket Entry ## 19, 31). Shen seeks to deny the motion to compel arbitration in its entirety. She agrees, however, that she signed Form U-4 and that CBSI is a "member" and she is an "associated person" under FINRA rules. (Docket Entry # 23). The parties also agree that counts I and II are not subject to mandatory arbitration. (Docket Entry # 19, pp. 5, 12) (Docket Entry # 23, pp. 4-5) (Docket Entry # 31, n.1). Defendants additionally assert that CMFG may join in the arbitration that the foregoing defendants can compel.

See fn. one.

I. Compelling Arbitration of Counts III to VII

Ordinarily, whether the parties agreed to submit a dispute to arbitration is "an 'issue for judicial determination.'" Granite Rock Co. v. Int'l Bhd. of Teamsters, 561 U.S. 287, 296 (2010) ("whether parties have agreed to 'submi[t] a particular dispute to arbitration' is typically an '"issue for judicial determination"'"); Dialysis Access Ctr., LLC v. RMS Lifeline, Inc., 638 F.3d 367, 375 (1st Cir. 2011); cf. Awuah v. Coverall N.Am., Inc., 554 F.3d 7, 10 (1st Cir. 2009) (where parties "'clearly and unmistakably agreed' that the arbitrator should decide whether an issue is arbitrable, the Supreme Court has held that this issue is to be decided by the arbitrator"). Arbitration is a matter of contract, see Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 67 (2010) ("FAA reflects the fundamental principle that arbitration is a matter of contract"); Dialysis Access Ctr., LLC v. RMS Lifeline, Inc., 638 F.3d at 376, and, as accurately pointed out by Shen, it "'is strictly a matter of consent.'" Granite Rock Co. v. Int'l Bhd. of Teamsters, 561 U.S. at 299. Thus, arbitration is a way to resolve "only those disputes that the parties have agreed to submit to arbitration." Id. (hyphen omitted and emphasis in original); Dialysis Access Ctr., LLC v. RMS Lifeline, Inc., 638 F.3d at 376.

In order to compel arbitration in this circuit, "defendants 'must demonstrate that a valid agreement to arbitrate exists, that they are entitled to invoke the arbitration clause, that the other party is bound by that clause, and that the claim asserted comes within the clause's scope.'" Grand Wireless, Inc. v. Verizon Wireless, Inc., 748 F.3d 1, 6 (1st Cir. 2014) (quoting Soto-Fonalledas v. Ritz-Carlton San Juan Hotel Spa & Casino, 640 F.3d 471, 474 (1st Cir. 2011)) (internal quotation marks and brackets omitted). The third requirement is satisfied because Shen is a signatory to Form U-4, which contains the arbitration clause. She therefore agreed to be bound by the clause. See Thomas James Associates, Inc. v. Jameson, 102 F.3d 60, 65 n.2 (2nd Cir. 1996) ("Jameson is bound by the Form U-4 because his signature manifests his assent"). Although Shen repeatedly points out that the form is 14 years old, there is no evidence that Shen rescinded the form or that it does not apply under the circumstances. Accordingly, this court turns to the remaining requirements. A. Validity

"'[P]rinciples of state contract law control the determination of whether a valid agreement to arbitrate exists.'" Gove v. Career Sys. Dev. Corp., 689 F.3d 1, 4 (1st Cir. 2012). Defendants cite and rely on Massachusetts law and Shen does not dispute its applicability.

Form U-4 identifies Shen's residence as located in Massachusetts. She also worked in Waltham, Massachusetts. In light of the parties' apparent agreement and the reasonable relationship of Massachusetts to the dispute, this court applies Massachusetts contract law where appropriate. See Danny B. ex rel. Elliott v. Raimondo, 784 F.3d 825, 831 (1st Cir. 2015) (citing Borden v. Paul Revere Life Ins. Co., 935 F.2d 370, 375 (1st Cir. 1991), as "holding that federal court sitting in diversity may accept parties' reasonable agreement concerning choice of law"); Barclays Bank PLC v. Poynter, 710 F.3d 16, 21 (1st Cir. 2013) (using Massachusetts law chosen by parties given "at least a reasonable relationship between this dispute and Massachusetts"); see, e.g., Campbell v. Gen. Dynamics Gov't Sys. Corp., 407 F.3d 546, 555 n.6 (1st Cir. 2005) (addressing Form U-4 and explaining that, "parties do not dispute the district court's seemingly reasonable application of Massachusetts law, and we are free to accept their implicit concession").

Validity addresses the validity of the arbitration agreement or clause as opposed to the entire contract in which it appears. See Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 449 (2006) ("challenge to the validity of the contract as a whole, and not specifically to the arbitration clause, must go to the arbitrator"); Farnsworth v. Towboat Nantucket Sound, Inc., 790 F.3d 90, 96 (1st Cir. 2015) (distinguishing validity challenge to entire contract from validity challenge to "specific agreement to resolve the dispute through arbitration" with latter being resolved by court); Garcia v. E.J. Amusements of New Hampshire, Inc., 103 F.Supp.3d 168, 169 (D.Mass. 2015). Validity encompasses the formation of the parties' arbitration agreement. See Granite Rock Co. v. Int'l Bhd. of Teamsters, 561 U.S. at 296 ("where the dispute at issue concerns contract formation, the dispute is generally for courts to decide"); see also BG Group PLC v. Republic of Argentina, 134 S.Ct. 1198, 1206-07 (2014) (paraphrasing Granite Rock Co. v. Int'l Bhd. of Teamsters, 561 U.S. at 299-300). Because arbitration is a matter of contract, a valid arbitration agreement requires plaintiff's assent. Campbell v. Gen. Dynamics Gov't Sys. Corp., 407 F.3d at 552 (addressing validity in context of waiver of federal statutory claim and stating, there is no agreement "in the absence of an agreement signifying an assent").

A valid and enforceable contract under Massachusetts law exists when the parties agree to "the material terms" and "have a present intention to be bound by that agreement." Situation Management Sys., Inc. v. Malouf, Inc., 724 N.E.2d 699, 703 (Mass. 2000); see Cyganiewicz v. Sallie Mae, Inc., 2013 WL 5797615, at *3 (D.Mass. Oct. 24, 2013) (determining validity of arbitration agreement under Massachusetts law and explaining that valid "contract is formed if there is an agreement between the parties on the material terms of the agreement and the parties have a present intention to be bound by that agreement"). In other words, there must be a meeting of the minds to create a valid arbitration agreement. See Marino v. Tagaris, 480 N.E.2d 286, 290 (Mass. 1985); see also Vadnais v. NSK Steering Sys. Am., Inc., 675 F.Supp.2d 205, 207 (D.Mass. 2009) (in Massachusetts, "essential elements of a contract are an offer, acceptance, and an exchange of consideration or meeting of the minds"); see generally Soto-Fonalledas v. Ritz-Carlton San Juan Hotel Spa & Casino, 640 F.3d at 475 (examining validity of arbitration agreement under Puerto Rico law, namely, a bilateral obligation based on mutual promises exchanged).

Here, Form U-4 contains ten, separately numbered paragraphs immediately above Shen's signature. (Docket Entry # 21-3, pp. 9-10). Paragraph five contains the arbitration clause. (Docket Entry # 21-3, p. 9, ¶ 5). The clause begins with the language, "I agree to arbitrate" thereby evidencing a present intention to be bound by the agreement to arbitrate. See Targus Group Int'l, Inc. v. Sherman, 922 N.E.2d 841, 851 (Mass.App.Ct. 2010) (use of verb "'agree'" in "the present tense . . . . embodies a current intent of all signatories" to be bound). As a condition of her employment as a financial advisor with CMFG, Shen had to apply for registration with NASD through CBSI. (Docket Entry # 21, ¶ 8) (Docket Entry # 8, ¶ 11). In agreeing to the arbitration clause in Form U-4, she obtained the benefits of registration with NASD thus providing consideration for her agreement to arbitrate disputes. Viewed as an agreement between Shen and NASD, see In re Prudential Ins. Co. of America Sales Practice Litigation, 133 F.3d 225, 230 (3rd Cir. 1998), or the firm, CBSI, see Marciano v. MONY Life Ins. Co., 470 F.Supp.2d 518, 532 (E.D.Pa. Jan. 22, 2007), Shen's agreement to arbitrate is valid and enforceable. B. CBSI, Halevan and Collins' Entitlement to Invoke Arbitration Clause

Defendants maintain that CBSI, Halevan and Collins may each invoke the arbitration clause and that CMFG may join in the arbitration proceeding. They submit that CBSI, Halevan and Collins are third-party beneficiaries of Form U-4 and, as to CBSI, additionally contend that CBSI can enforce the arbitration clause as a "member" of FINRA. They also maintain that Halevan and Collins, as registered agents of CBSI, can invoke the clause under principles of agency. Shen asserts that Halevan and Collins were neither third-party beneficiaries of the arbitration clause in Form U-4 nor agents of CBSI.

The latter argument is addressed in Roman numeral II.

Defendants do not argue that CBSI was a signatory of Form U-4 and, as such, entitled to invoke the arbitration clause.

"In order to compel arbitration of the claims against" them, CBSI, Halevan and Collins "must establish that" that they are "'entitled to invoke the arbitration clause.'" Grand Wireless, Inc. v. Verizon Wireless, Inc., 748 F.3d at 9 (quoting Soto-Fonalledas v. Ritz-Carlton San Juan Hotel Spa & Casino, 640 F.3d at 474). In this diversity action, state law governs the enforceability of the agreement to arbitrate in Form U-4. See id. at 12 n.26 (applying the state law that "governs the contract" as opposed to "general principles of state contract law"); cf. InterGen N.V. v. Grina, 344 F.3d 134, 143 (1st Cir. 2003) (applying federal common law in federal question case involving motion to compel arbitration among foreign and domestic companies).

Thus, with respect to defendants' argument that CBSI, Halevan and Collins were third-party beneficiaries of the agreement to arbitrate in Form U-4, Massachusetts law applies. See Grand Wireless, Inc. v. Verizon Wireless, Inc., 748 F.3d at 12 ("Carlisle holds that, at least as a general principle, state law governs the inquiry as to whether a non-party to an arbitration agreement can assert the protection of the agreement"). As further noted in Carlisle, "'traditional principles' of state law allow a contract to be enforced by . . . nonparties to the contract through . . . third-party beneficiary theories . . .." Grand Wireless, Inc. v. Verizon Wireless, Inc., 748 F.3d at 12 (quoting Carlisle, 556 U.S. at 631). Under Massachusetts law, "a plaintiff seeking to enforce a contract as a third-party beneficiary must demonstrate from the language and circumstances of the contract that the parties to the contract clearly and definitely intended the beneficiaries to benefit from the promised performance.'" Alicea v. Machete Music, 744 F.3d 773, 784 (1st Cir. 2014) (emphasis added and internal citation omitted); Cumis Ins. Soc'y, Inc. v. BJ's Wholesale Club, Inc., 918 N.E.2d 36, 44 (Mass. 2009); Restatement (Second) of Contracts § 304 (1981).

Arthur Andersen LLP v. Carlisle, 556 U.S. 624 (2009).

Turning to the relevant language in Form U-4 and whether Shen intended to give CBSI, Halevan and Collins the benefit of her promise to arbitrate certain disputes, she "agree[d]" to arbitrate any dispute "that may arise between me and my firm," i.e., CBSI, "or any other person," i.e., Halevan and Collins, "that is required to be arbitrated under the rules" of NASD and FINRA. (Docket Entry # 21-3, p. 9, ¶ 5). As noted above, CBSI, a FINRA-registered broker/dealer (Docket Entry # 8, ¶ 7) (Docket Entry # 21, ¶¶ 3, 4), was a "member" of FINRA. See FINRA Rule 13100(o). Halevan and Collins, both registered representatives of CBSI (Docket Entry ## 21-4, 21-5) (Docket Entry # 21, ¶ 13), were "[a]ssociated [p]erson[]." See FINRA Rule 13100(a), (r). Shen was also an "associated person." Under FINRA Rule 13803(f), "If a . . . current or former associated person[,]" i.e., Shen, "files in court a claim against a member or a current or former associated person that includes matters that are subject to mandatory arbitration, . . . by the rules of FINRA . . ., the defending party may, upon motion, compel arbitration of the claims that are subject to mandatory arbitration." FINRA Rule 13200(a) sets out the claims that are subject to such mandatory arbitration. Captioned "Required Arbitration," the rule states that "a dispute must be arbitrated" if it "arises out of the business activities of a member or an associated person and is between or among: Members; Members and Associated Persons; or Associated Persons." FINRA Rule 13200(a) (emphasis added and bullet points omitted).

As explained in footnote five, she therefore agreed not only to FINRA Rule 13201(a) but also to the arbitration rules of NASD and thereafter FINRA, including FINRA Rules 13200(a) and 13803(f). In a separate paragraph, she reiterated her agreement "to comply with" NASD Rules "as they are or may be adopted, or amended from time to time" thereby lending further support to the intended reach of her agreement as encompassing a compliance with the FINRA arbitration rules at issue here. (Docket Entry # 21-3, p. 9, ¶ 2).

FINRA Rule 13100(o) defines a "member" as "any broker or dealer admitted to membership in FINRA."

FINRA Rule 13100(r) defines a "person associated with a member" as "[a] natural person who is registered or has applied for registration under the Rules of FINRA."

FINRA Rule 13802 also addresses options available to a defendant when an associated person, such as Shen, files statutory discrimination claims in court and related claims in arbitration at FINRA. See FINRA Rule 13803(a), (d). Neither subsection (a) nor (d) apply because Shen did not file any related claims in arbitration at FINRA.

The foregoing language of the arbitration provision in Form U-4 and in FINRA Rules 13200(a) and 13803(f) therefore lead to the conclusion that CBSI, Halevan and Collins are third-party beneficiaries of Shen's promise to arbitrate claims between her and her "firm" (CBSI) "or any other person" (Halevan and Collins) under FINRA Rules. (Docket Entry # 21-3). The FINRA Rules under which Shen agreed to arbitrate allow a member (CBSI) or an associated person (Halevan and/or Collins) named as a defendant in court to compel arbitration of claims subject to mandatory arbitration, i.e., non-employment discrimination claims that arise out of the business activities of an associated person (Shen) and other associated persons or members. See FINRA Rules 13200, 13803(f). The language therefore evidences a clear intent by Shen to give these defendants the benefit of the promised performance of submitting mandatory arbitration claims to arbitration.

Although Shen relies on InterGen N.V. v. Grina, 344 F.3d at 146, as a means to avoid third-party beneficiary status, the language of the arbitration clauses in InterGen applied to disputes "'between Buyer and Seller'" and conferred buyer's rights on "the 'Owner.'" Id. at 146-47. The documents containing the arbitration clauses defined the entities that comprised these terms and the definitions did not include InterGen N.V. Id. In contrast, the far broader language of the arbitration clause in Form U-4 extends to "any other person" and includes NASD rules as "amended from time to time." (Docket Entry # 21-3).

Indeed, applying a similar NASD Rule in Weston Securities Corp. v. Aykanian, 703 N.E.2d 1185 (Mass.App.Ct. 1998), which allowed the non-signatory defendant customers to demand arbitration, see id. at 1187, 1190, in the context of the defendants' agreement to arbitrate disputes in Form U-4s, the Weston court deemed the customers third-party beneficiaries. Id. at 1190; see also In re Prudential Ins. Co. of America Sales Practice Litigation, 133 F.3d at 229-30 (applying same reasoning to find that nonsignatory employer "'firm'" under Form U-4 was intended beneficiary). Thus, like the plaintiffs in Weston who, by signing Form U-4 "agreed to arbitrate 'any dispute, claim or controversy that may arise between me and . . . a customer . . . that is required to be arbitrated' under the NASD code," Weston Securities Corp. v. Aykanian, 703 N.E.2d at 1190, Shen, by signing Form U-4, agreed to arbitrate "any dispute, claim or controversy that may arise between me and my firm [CBSI], or . . . any other person [Halevan and Collins], that is required to be arbitrated" under FINRA Rules. (Docket Entry # 21-3). Similar to the NASD Rule which required arbitration of "'[a]ny dispute, claim, or controversy . . . between a customer and a member and/or associated person arising in connection with the business of such member or in connection with the activities of such associated person . . . upon the demand of the customer'" in Weston, id. (emphasis omitted), FINRA Rule 13200(a) mandates arbitration of a dispute that "arise[s] out of the business activities of . . . an associated person and is between . . . Members and Associated Persons" or "Associated Persons" and FINRA Rule 13803(f) states that the member (CBSI) or the associated person (Halevan or Collins) may compel arbitration of claims that are subject to mandatory arbitration, i.e., those claims set out in FINRA Rule 13200(a).

The Third Circuit in Prudential adhered to similar reasoning in concluding that Form U-4 intended to benefit the non-signatory employer of the plaintiff, which was also a member of NASD. See In re Prudential Ins. Co. of America Sales Practice Litigation, 133 F.3d at 229-30. The relevant portion of the decision reads as follows:

As stated in Form U-4, the plaintiffs agreed to arbitrate any dispute not only with Pruco, but also with "any other person" where the claim itself would be subject to arbitration under the NASD Code. Pursuant to section 8 of the NASD Code, plaintiffs agreed to arbitrate certain disputes "between or among members and/or associated persons . . .." There is no question that Prudential is a member of the NASD, and the plaintiffs are associated persons within
the meaning of the Code. Thus, we conclude, as did the district court, there is a clear and unequivocal intent to arbitrate claims with third parties such as Prudential, and not just Pruco, to the extent they are eligible for arbitration under § 1 . . ..

Moreover, it is clear from the text and purpose of Form U-4, that the parties to the agreement intended to benefit such non-signatory, third parties as Prudential . . . The intention, as Form U-4 unambiguously indicates, was not limited to arbitrating disputes between the NASD and the applicant or member "firms" explicitly recognized in the text. Rather, the arbitration agreement and the NASD Code of Arbitration establish certain classes of individuals-member firms of the NASD, customers, and so on—who would benefit from the applicant's agreement with the NASD.

Id.

In sum, the language and the circumstances manifest a clear intent by Shen to confer the benefit of arbitration directly to members and associated persons for mandatory arbitration claims arising out of Shen's business activities between herself and a member and/or associated person. Shen therefore intended to give the benefit of the promised performance of arbitration for such claims to members and associated persons, namely, CBSI, Halevan and Collins. CBSI, Halevan and Collins are therefore intended beneficiaries under Massachusetts law of Shen's agreement to arbitrate those disputes. Accordingly, this court turns to the fourth requirement. C. Counts III to VII as Subject to Arbitration

The disputes are not limitless. For example, Shen did not intend to confer the benefit of arbitration for claims that did not arise out of business activities thus excluding private disputes or hobbies. See generally Osborne v. Wells Fargo Advisors, LLC, 2012 WL 2952533, at *3 (M.D.Fla. July 19, 2012).

It is therefore not necessary to address defendants' argument that Halevan and Collins acted as agents of CBSI or their alternative argument with respect to CBSI.

Defendants next maintain that the claims in counts III through VII fall within the scope of the arbitration clause. According to defendants, the factual allegations supporting these claims implicate the business activities of CBSI, Halevan, Collins and/or Shen. (Docket Entry # 19).

The final requirement for CBSI, Halevan and Collins to compel arbitration is that the claims must fall within the scope of the arbitration clause. See Grand Wireless, Inc. v. Verizon Wireless, Inc., 748 F.3d at 6 ("[t]o compel arbitration, the defendants 'must demonstrate . . . that the claim asserted comes within the clause's scope'"); Dialysis Access Ctr., LLC v. RMS Lifeline, Inc., 638 F.3d at 379. "To determine whether" the "claims fall within the scope of the arbitration clause," the proper focus is "'on the factual allegations underlying the claims in the complaint.'" Grand Wireless, Inc. v. Verizon Wireless, Inc., 748 F.3d at 7 (brackets omitted).

Ambiguities about whether the terms of an arbitration clause cover a dispute are resolved in favor of arbitration. See Grand Wireless, Inc. v. Verizon Wireless, Inc., 748 F.3d at 7 ("'"ambiguities as to the scope of the arbitration clause itself [must be] resolved in favor of arbitration"'"); Dialysis Access Ctr., LLC v. RMS Lifeline, Inc., 638 F.3d at 379. More specifically, in the event of an ambiguity, the "presumption in favor of arbitration applies unless the party opposing arbitration rebuts it." Grand Wireless, Inc. v. Verizon Wireless, Inc., 748 F.3d at 7; see also Dialysis Access Ctr., LLC v. RMS Lifeline, Inc., 638 F.3d at 379 (presumption applies if "Arbitration Clause 'is ambiguous about whether it covers the dispute at hand'" and "'only where the presumption is not rebutted'") (quoting Granite Rock Co. v. Int'l Bhd. of Teamsters, 561 U.S. at 301). At a minimum, rebutting an ambiguity requires Shen to show an intent to exclude the type of dispute at issue from the scope of the arbitration clause. See Grand Wireless, Inc. v. Verizon Wireless, Inc., 748 F.3d at 8-9. Under Massachusetts law, an "ambiguity arises only if a reasonable person could read the provision more than one way." HSBC Realty Credit Corp. (USA) v. O'Neill, 745 F.3d 564, 574 (1st Cir. 2014) (citing Brigade Leveraged Capital Structures Fund Ltd. v. PIMCO Income Strategy Fund, 995 N.E.2d 64, 69 (Mass. 2013)); see also Dialysis Access Ctr., LLC v. RMS Lifeline, Inc., 638 F.3d at 379 (applying Puerto Rico law to define what constitutes an ambiguity).

Examining the factual allegations of the complaint, Shen alleges that she earned incentive pay and, upon terminating her employment, defendants refused to pay her the earned incentive pay. These allegations form the basis of the Wage Act claim and the breach of good faith and fair dealing claim, which alleges that defendants terminated Shen "to avoid paying her compensation earned" (Docket Entry # 8, ¶ 119). To state the obvious, payment or non-payment of compensation is a fundamental aspect of "business activities." See, e.g., Hawkins v. Toussaint Capital Partners, LLC, 2010 WL 2158332, at *5 (S.D.N.Y. May 27, 2010); accord Osborne v. Wells Fargo Advisors, LLC, 2012 WL 2952533, at *4 (M.D.Fla. July 19, 2012) ("[d]isputes concerning employee compensation are an arbitrable dispute arising out of a business activity"). The factual allegations that defendants failed to pay Shen past earned compensation thus invariably constitute "business activities" of "associated persons," i.e., Shen, Collins and/or Halevan, within the meaning of FINRA Rule 13200(a). The terms of the arbitration clause adhere to disputes "required to be arbitrated under the rules" of NASD as "amended from time to time" (Docket Entry # 21-3, p. 9, ¶ 5) and FINRA Rule 13200(a) sets out the disputes that "must be arbitrated." FINRA Rule 13200(a) (captioned "Required Arbitration"). Hence, there is little doubt that the factual allegations underlying the claims in counts III and IV fall within the scope of the arbitration clause. See, e.g., French v. Wells Fargo Advisors, LLC, at *5 (D.Vt. Feb. 14, 2012); Hawkins v. Toussaint Capital Partners, LLC, 2010 WL 2158332, at *5 (interpreting scope of Form U-4 arbitration clause and finding that, "Hawkins's factual allegations that Toussaint refused to pay him commissions earned during his employment and discharged him for requesting these commissions form the factual bases" for, inter alia, wilful failure to pay commissions claim and "clearly fall within the scope of the parties' 'business activities'").

The factual allegations of the complaint also depict that Collins drafted Form U-5 and that defendants knew that the reasons for the termination stated in the form were not true. Instead, the true reasons for the termination consisted of "discriminatory and unlawful reasons." (Docket Entry # 8, ¶¶ 70, 72). Thus, "rather than have FINRA conduct further inquiry with" CBSI and CMFG, "[d]efendants 'offered up' their Asian female advisor to FINRA." (Docket Entry # 8, ¶ 74). As a result of the false reasons for the termination in Form U-5, Shen "has been unable to work as an advisor since August 2013" and "lost all of her clients." (Docket Entry # 8, ¶¶ 76-77). The false statements in Form U-5 provide the underlying basis for the defamation claim in Count V. (Docket Entry # 8, ¶ 126). They also support the intentional infliction of emotional distress claim in Count VI and the intentional interference of contract claim in Count VII. (Docket Entry # 8, ¶ 143) ("Collins and Halevan knowingly induced CUNA to break that employment relationship when they decided to intentionally falsify the reasons for Plaintiff's termination").

Publishing false reasons for an employee's termination "arises out of the business activities" of a member (CBSI) and/or an associated person (Collins, Halevan and/or Shen). The false reasons (cutting and pasting client signatures, altering forms and creating customer statements and providing them to clients) all depict alleged conduct that took place during Shen's employment. The factual allegations regarding the true as well as the false reasons for the termination are "between or among" a member and associated persons or "between or among" associated persons within the meaning of FINRA Rule 13200(a). The factual allegations underlying the defamation claim in Count V, the intentional infliction of emotional distress claim in Count VI and the interference with contractual relations claim in Count VII therefore fall within the scope of the arbitration clause. See, e.g., Kouromihelakis v. Hartford Fire Ins. Co., 48 F.Supp.3d 175, 185 (D.Conn. 2014) (defamation claim based on filing Form U-5 with false statements about terminated employee fell within scope of Form U-4's arbitration clause and FINRA Rule 13200); Johnson v. Charles Schwab & Co., Inc., 2010 WL 678126 (S.D.Fla. Feb. 25, 2010) (defamation and intentional infliction of emotional distress claims based on false statements by former employer, a FINRA member, describing former employee fell within scope of arbitration clause in Form U-4).

Finding no ambiguity as to the scope of the arbitration clause vis-à-vis the claims in counts III through VII, they are subject to arbitration. Even assuming dubitánte the existence of an ambiguity, Shen fails to rebut it.

In sum, having demonstrated all four requirements, CBSI, Halevan and Collins may compel Shen to arbitrate the claims in counts III through VII.

II. CMFG's Joinder

Turning to CMFG, defendants do not argue that CMFG is entitled to invoke and therefore compel arbitration. Rather, they maintain that CMFG may join in the arbitration that CBSI can compel because CMFG is "closely affiliated with the other defendants" and "all of Shen's claims against CMFG are intertwined with her claims against the other defendants." (Docket Entry ## 19, 31).

To support the joinder argument in the initial supporting memorandum, defendants cited: (1) Ladd v. Scudder Kemper Investments, Inc., 741 N.E.2d 47, 51 n.5 (Mass. 2001); (2) a 1999 district court case that allowed joinder for non-signatory defendants which were "closely affiliated" with the NSAD member and the claims against both groups were "inextricably intertwined," Paul Revere Variable Annuity Ins. Co. v. Thomas, 66 F.Supp.2d 217, 225 (D.Mass. 1999), aff'd, Paul Revere Variable Annuity Ins. Co. v. Kirschhofer, 226 F.3d 15, 18, 20-21 (1st Cir. 2000); and (3) Marciano v. MONY Life Ins. Co., 470 F.Supp.2d at 527. (Docket Entry # 19).

In response, Shen correctly posits that CMFG, as a corporation, is not an "associated person." CMFG is not a "natural person" and, as a corporate entity, falls outside the plain language of FINRA Rule 13100(r) limiting an associated person to a natural person. Case law confirms this interpretation. See Ladd v. Scudder Kemper Investments, Inc., 741 N.E.2d at 49-50 (interpreting "associated person" to exclude corporate employer of plaintiff under NASD rule using language similar to FINRA Rule 13100(r)); see also Paul Revere Variable Annuity Ins. Co. v. Kirschhofer, 226 F.3d at 19-21.

Beyond asserting the fact that CMFG is not an "associated person" and can therefore not compel arbitration, Shen's opposition does not address defendants' argument that CMFG can join in the arbitration that CBSI can compel. (Docket Entry # 23). Moreover, in a reply brief, defendants pointed out that Shen did not dispute that the other defendants, including CMFG, can join in the arbitration CBSI can compel. (Docket Entry # 31). Defendants also noted, correctly, that Shen did not attempt to distinguish Paul Revere Variable Annuity Ins. Co. v. Thomas, 66 F.Supp.2d at 225. Having had notice that she did not dispute or oppose the joinder argument, Shen did not address the argument as to CMFG at the hearing. Shen's decision not to oppose the joinder argument as to CMFG therefore appears, to a degree, deliberate and intentional. Accordingly, solely on the basis of a deliberate waiver by Shen, CMFG may join the arbitration that CBSI, as well as Halevan and Collins, can compel. See Vallejo v. Santini-Padilla, 607 F.3d 1, 7 & n.4 (1st Cir. 2010) ("[p]laintiffs have not cited a single authority in support of their assertion that their failure to timely oppose the motion to dismiss did not constitute waiver" and noting that the decision was deliberate); Coons v. Industrial Knife Co., Inc., 620 F.3d 38, 44 (1st Cir. 2010) ("district court was 'free to disregard' the state law argument that was not developed in Coons's brief"); Federal Deposit Ins. Corp. v. Caporale, 931 F.2d 1, 3 (1st Cir. 1991) ("FDIC argued explicitly that the Caporales were personally liable due to their failure to specify the capacity in which they had signed the promissory notes" and, in opposing summary judgment, Caporales "failed to argue that Elizabeth signed in her capacity as trustee" or offer evidence that capacity was a factual dispute); Collins v. Marina-Martinez, 894 F.2d 474, 481 & n.9 (1st Cir. 1990) ("issues mentioned in a perfunctory manner, unaccompanied by some effort at developed augmentation, are deemed waived"); Paterson-Leitch Co., Inc. v. Massachusetts Mun. Wholesale Elec. Co., 840 F.2d 985, 990 (1st Cir. 1988) ("party has a duty to put its best foot forward before the magistrate: to spell out its arguments squarely and distinctly").

Shen adds that, "Defendants even admit in their motion that CMFG cannot compel Ms. Shen to arbitrate her claims but that CMFG can merely join in an arbitration of such claims. This admission demonstrates that, as to CMFG, Defendants' Motion to Compel Arbitration and Stay Proceedings is entirely without merit." (Docket Entry # 23). The admission, if any, that CMFG can merely join in the arbitration, however, does not address defendants' actual argument regarding joinder on the basis of closely affiliated defendants and intertwined claims.

At best, Shen globally asserted that, except for CBSI, none of the other defendants can or should be subject to arbitration. This global argument does not address the specific argument as to joinder of CMFG.

III. Stay

As a final matter, defendants move to stay litigation on counts I and II during the pendency of the arbitration proceeding. Shen objects to a stay and maintains that concurrent proceedings will not hinder arbitration and will avoid later, duplicative proceedings. She also points to the "substantial burdens of proof," particularly with respect to the employment discrimination claims, and that delaying these proceedings will increase those burdens due to the passage of time. (Docket Entry # 23).

Section three of the FAA governs the availability of a stay and reads as follows:

If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.
9 U.S.C. § 3. Section three therefore "'requires a federal court in which suit has been brought "upon any issue referable to arbitration under an agreement in writing for such arbitration" to stay the court action pending arbitration once it is satisfied that the issue is arbitrable under the agreement.'"• Large v. Conseco Fin. Servicing Corp., 292 F.3d 49, 52 (1st Cir. 2002) (quoting Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 400 (1967) (quoting 9 U.S.C. § 3)); see also HIM Portland, LLC v. DeVito Builders, Inc., 317 F.3d 41, 43 (1st Cir. 2003) ("[t]o facilitate arbitration agreements, the FAA provides that when a federal court reviews an issue that is subject to an arbitration agreement the court shall, on the motion of one of the parties, stay its proceedings until 'arbitration has been had in accordance with the terms of the agreement'") (quoting 9 U.S.C. § 3)); Baggesen v. Am. Skandia Life Assurance Corp., 235 F.Supp.2d 30, 32 (D.Mass. 2002) (to stay proceedings, "Court must find that a written agreement to arbitrate exists between the parties, the dispute in question falls within the scope of that agreement, and the party seeking arbitration has not waived its right to arbitration").

Here, there was a written agreement to arbitrate. The disputes regarding counts III through VII are arbitrable and fall within the scope of the arbitration agreement. See generally Puerto Rico Tel. Co., Inc. v. U.S. Phone Mfg. Corp., 427 F.3d 21, 28 n.4 (1st Cir. 2005) (section three "has been interpreted to require a stay of litigation between the parties to the arbitration agreement when the subject of the litigation is within the scope of the agreement"), abrogated on other grounds by Hall St. Associates, L.L.C. v. Mattel, Inc., 552 U.S. 576 (2008).

There is also no "default" within the meaning of section three. A "'default'" is "generally" viewed "as including a 'waiver.'"• Marie v. Allied Home Mortg. Corp., 402 F.3d 1, 13 (1st Cir. 2005); see also Cutler Associates, Inc. v. Palace Constr., LLC, 2015 WL 5569987, at *6 (D.Mass. Sept. 22, 2015) (whether "party has waived its right to arbitrate by litigation conduct is a question for the court, not the arbitrator"). "In determining whether a conduct-based waiver has occurred," the court examines "whether there has been an undue delay in the assertion of arbitral rights and whether, if arbitration supplanted litigation, the other party would suffer unfair prejudice." Joca-Roca Real Estate, LLC v. Brennan, 772 F.3d 945, 948 (1st Cir. 2014). The inquiry is informed by various factors. See In re Citigroup, Inc., 376 F.3d 23, 26 (1st Cir. 2004) (setting out relevant factors to assess in determining waiver of arbitration); Cutler Associates, Inc. v. Palace Constr., LLC, 2015 WL 5569987, at *6 (outlining various factors to consider in deciding a litigation conduct waiver).

Here, defendants promptly sought to compel arbitration and stay the non-arbitrable claims after they removed the action to this court. Defendants did not engage in any meaningful discovery before moving to compel arbitration. They also did not delay in exercising their arbitral rights. The lack of any delay or meaningful discovery detracts from any showing of prejudice. Cf. Joca-Roca Real Estate, LLC v. Brennan, 772 F.3d at 950 ("[t]he longer the delay and the more extensive the litigation-related activities that have taken place, the stronger the inference of prejudice becomes"). Accordingly, defendants are "not in default" within the meaning of section three.

Finally, Shen's assertion that proceeding concurrently will avoid later duplicative proceedings and save the parties time and money does not avoid a stay. First, as a means to show prejudice, it is not convincing. Any added costs of proceeding in the arbitral forum and thereafter litigating the discrimination claims in this forum were bargained for by Shen. See Commercial Union Ins. Co. v. Gilbane Bldg. Co., 992 F.2d 386, 391 (1st Cir. 1993) ("any added costs that Gilbane would incur to arbitrate its counterclaim were bargained for by Gilbane"). Even if it is inefficient to proceed in one forum and thereafter another, avoiding later duplicative proceedings does not warrant a denial of the requested stay under the FAA. See id. at 391 & n.8 ("considerations of judicial efficiency are not a sufficient basis on which to affirm the district court's denial of the motion to stay" and citing Second Circuit case holding that court may not deny stay pending arbitration based on judicial economy). In the alternative, it is not inefficient to stay these proceedings during the pendency of arbitration because of the overlapping nature of the issues, as pointed out by defendants. (Docket Entry # 19, p. 15). Indeed, concurrent proceedings may be duplicative and risk inconsistent adjudications. See United States v. Consigli Constr. Co., Inc., 873 F.Supp.2d 409, 417-18 (D.Me. 2012) (stating "[i]t would be duplicative and risk inconsistent adjudications to allow Maverick to pursue its Miller Act claim against FIC in this Court simultaneously with its claims against Consigli in arbitration").

CONCLUSION

In accordance with the forgoing discussion, this court RECOMMENDS that the motion to compel arbitration of counts III through VII and stay the proceedings on counts I and II (Docket Entry # 18) be ALLOWED and that this case be stayed during the pendency of the arbitration.

Any objections to this Report and Recommendation must be filed with the Clerk of Court within 14 days of receipt of the Report and Recommendation to which objection is made and the basis for such objection should be included. See Fed.R.Civ.P. 72(b). Any party may respond to another party's objections within 14 days after service of the objections. Failure to file objections within the specified time waives the right to appeal the order.

/s/ Marianne B. Bowler

MARIANNE B. BOWLER

United States Magistrate Judge

Separately, citing a First Circuit case, Sourcing Unlimited, Inc. v. Asimoco Int'l, Inc., 526 F.3d 38, 47 (1st Cir. 2008), defendants' reply brief alludes to the equitable estoppel doctrine. Although this court expresses no opinion on the doctrine's application (nor does Shen), Form U-4 containing the arbitration agreement is not the same contract that Shen presumably relies on (Docket Entry # 21-1, p. 16) in bringing the Wage Act and breach of good faith and fair dealing claims. See Machado v. System4 LLC, 28 N.E.3d 401, 409-11 (Mass. 2015); see also InterGen N.V. v. Grina, 344 F.3d at 145.


Summaries of

Shen v. CMFG Life Ins. Co.

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS
Mar 4, 2016
CIVIL ACTION NO. 15-11593-MLW (D. Mass. Mar. 4, 2016)
Case details for

Shen v. CMFG Life Ins. Co.

Case Details

Full title:SWAN SHEN, Plaintiff, v. CMFG LIFE INSURANCE COMPANY, CUNA BROKERAGE…

Court:UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

Date published: Mar 4, 2016

Citations

CIVIL ACTION NO. 15-11593-MLW (D. Mass. Mar. 4, 2016)

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