Sanchez v. Nitro-Lift Technologies, L.L.C.

FILED
United States Court of Appeals
Tenth Circuit

August 8, 2014
Elisabeth A. Shumaker
PUBLISH Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MIGUEL SANCHEZ; SHANE
SCHNEIDER; EDDIE HOWARD, on
behalf of themselves and others similarly
situated,

Plaintiffs - Appellees,
Nos. 12-7046 and 12-7057
v.

NITRO-LIFT TECHNOLOGIES, L.L.C.,

Defendant - Appellant.

Appeal from the United States District Court
for the Eastern District of Oklahoma
(D.C. No. 6:12-CV-00128-RAW)

Kelli M. Masters (Kevin R. Donelson, Jay P. Walters, and Regina M. Marsh, with
her on the briefs) of Fellers, Snider, Blankenship, Bailey & Tippens, Oklahoma
City, Oklahoma, for Defendant-Appellant.

Mark Hammons of Hammons, Gowens & Hurst, Oklahoma City, Oklahoma, for
Plaintiffs-Appellees.

Before TYMKOVICH, SEYMOUR, and GORSUCH, Circuit Judges.

SEYMOUR, Circuit Judge.
 This appeal involves a dispute concerning the scope of an arbitration clause

between Nitro-Lift Technologies, L.L.C. (“Nitro-Lift”), and three of its former

employees, Miguel Sanchez, Shane Schneider, and Eddie Howard (collectively,

“plaintiffs”). Plaintiffs filed suit against Nitro-Lift, claiming it failed to pay

overtime wages in violation of both the Fair Labor Standards Act (“FLSA”), 29

U.S.C. § 201 et seq., and the Oklahoma Protection of Labor Act (“OPLA”), Okla.

Stat. tit. 40, § 165.1 et seq. Nitro-Lift appeals from two district court orders

denying its motions to dismiss and compel arbitration, or in the alternative to stay

the proceeding pending arbitration, arguing plaintiffs’ wage disputes fall within

the scope of the arbitration clause. We reverse.

I

Nitro-Lift is a Louisiana corporation that services oil rigs across the nation,

including in the state of Oklahoma. Nitro-Lift hired plaintiffs to work in and

around Johnston County, Oklahoma, where it has an office. Mr. Schneider

worked for Nitro-Lift from July 31, 2008, to June 11, 2010; Mr. Sanchez from

approximately December 2009 until February 27, 2012; and Mr. Howard from

approximately August 2008 until the end of May 2012. Their job duties included

connecting nitrogen generator units to oil rigs to allow nitrogen to be pumped into

the rigs, and monitoring the oil rigs to determine if and how much oil or natural

gas the wells produced.

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 At the beginning of their employment relationship with Nitro-Lift, each

plaintiff signed an identical document labeled “Confidentiality/Non-Compete

Agreement,” which contains the arbitration clause at issue in this case. As the

title of the agreement suggests, the language is generally limited to matters

involving confidentiality and competition. Section 1 of the agreement adds the

phrase “corporate property” to its subheading, and thereafter all the rights,

obligations, and duties set forth in section 1 concern confidentiality, competition,

and the return of corporate documents.

This is the only agreement between the parties and despite its title, Nitro-

Lift claims it is an employment agreement because it was “essential” to plaintiffs’

“relationship[] with Nitro-Lift,” that “Nitro-Lift would not have hired Plaintiffs

without their consent to the Agreements,” and that “Plaintiffs would not have

executed the Agreements without the assurance of employment by Nitro-Lift.”

Aplt. Br. at 6. But the only language in the contract that discusses compensation

states in section 1(k) that “[i]n consideration of the receipt of Confidential

Information during employment, the receipt of compensation, each element of

compensation being hereby acknowledged by the Employee as adequate,” the

employee agrees not to compete. Aplt. App. at 238. 1 Other than that specific

clause, section 1 contains no language dealing with wages, hours, overtime

1
We cite only Mr. Sanchez’s agreement for purposes of citation to the record
because each plaintiff signed identical agreements.

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compensation, or other rights, duties, and responsibilities regarding wages

generally found in an employment contract.

Section 1 also references a “Section 4” and “Section 4(k),” but the

agreement neither contains a section 4 nor explains what topics, rights,

restrictions, or duties section 4 sets forth. 2 Notably, section 1(m) explains that

only Nitro-Lift may seek remedies in court, including injunctive relief and “any

other remedies available to it . . . at law or in equity for any such breach or

threatened breach” by the employee. Id. at 239. Also, sections 1(k), (m), and (n)

2
For example, the agreement on page 3 states in section 1(k) “[t]he parties
agree and acknowledge that the limitations as to time, geographical area and
scope of activity to be restrained as set forth in section 4(k) are reasonable and do
not impose any greater restraint than is necessary to protect the legitimate
business interests of Nitro-Lift.” Aplt. App. at 238. This section further notes
that
[t]o the extent that any part of this Section 4(k) may be invalid,
illegal or unenforceable for any reason, it is intended that such part
shall be enforceable to the extent that a court of competent
jurisdiction shall determine that such part, if more limited in scope,
would have been enforceable, and such part shall be deemed to have
been so written and the remaining parts shall as written be effective
and enforceable in all events.
Id.
Section 1(l) explains that “[i]n the event of a breach by Employee of any
covenant set forth in section 4 of this Agreement, the term of such covenant will
be extended by the period of the duration of such breach.” Id. at 239. Section
1(m) states “[t]he parties hereto agree and acknowledge that Nitro-Lift would not
have an adequate remedy at law for the breach or threatened breach by the
Employee of the covenants and agreements set forth in this Section 4.” Id.
Section 1(n) also explains that “[a]ll of the covenants in this Section 4 shall be
construed as an agreement independent of any other provision in this Agreement
and the existence of any claim or cause of action of Employee against Nitro-Lift,
whether predicated on this Agreement or otherwise, shall not constitute a defense
to the enforcement by Nitro-Lift of such covenants.” Id.

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refer to section 4 self-referentially by stating “in this Section 4,” suggesting some

of the agreement contains boilerplate language copied from some other contract

or agreement. Id.

Section 2 of the agreement contains the arbitration clause at issue and states

in pertinent part in 2(a):

Any dispute, difference or unresolved question between Nitro-Lift
and the Employee (collectively, the “Disputing Parties”) shall be
settled by arbitration by a single arbitrator mutually agreeable to the
Disputing Parties in an arbitration proceeding conducted in Houston,
Texas in accordance with the rules existing at the date hereof of the
American Arbitration Association . . . and the costs (including,
without limitation, reasonable fees and expenses of counsel and
experts for the Disputing Parties) of such arbitration (including the
costs to enforce or preserve the rights awarded in the arbitration)
shall be borne by the Disputing Party whom the decision of the
arbitrator is against. If the decision of the arbitrator is not clearly
against one of the Disputing Parties or the decision of the arbitrator
is against more than one Disputing Party on one or more issues, the
costs of such arbitration shall be borne equally by the Disputing
Parties.

Id. at 239 (emphasis added). In addition, section 2(b) references “Section 4” as

well as “Section 18,” neither of which appear in the document, stating that

“[n]otwithstanding the foregoing, Nitro-Lift may apply to any court of competent

jurisdiction for injunctive relief to enforce its rights under this Agreement,

including, without limitation, its rights under Section 4, without breach of this

Section 18.” Id. Nitro-Lift offers no explanation for why the contract references

multiple sections that do not exist in the agreement.

In sworn affidavits, plaintiffs claim that when they were required to sign

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the contract, it was presented to them as an agreement specifically about

confidentiality and competition. They contend Nitro-Lift did not explain the

arbitration provision, did not allow them to read the document or the arbitration

clause it contained, and did not allow them to ask questions or consult an attorney

before signing the document. Plaintiffs allege they were never told that by

signing the agreement, they would be waiving their right to a jury trial for claims

of unpaid wages or that they would be required to arbitrate wage disputes.

Finally, plaintiffs claim they never agreed to arbitrate any wage disputes with

Nitro-Lift.

Plaintiffs allege that almost every week they worked for Nitro-Lift, they

each worked in excess of forty hours per week and Nitro-Lift refused to pay them

“overtime compensation for the hours they worked in excess of forty,” in

violation of the FLSA. Aplt. App. at 170. When Mr. Sanchez discussed the issue

with his supervisor, he was told that if he had a problem with the money, he

should quit. 3 Mr. Sanchez and Mr. Schneider initially filed suit against Nitro-Lift

in the Eastern District of Oklahoma on March 21, 2012, claiming the company

failed to pay overtime wages in violation of the FLSA and the OPLA. They

sought their “unpaid wages, prejudgment interest, attorney fees and costs,” a

declaration that Nitro-Lift’s “wage policy is unlawful” and an injunction against

3
Mr. Sanchez also asserts a claim for retaliation under both the FLSA and
Oklahoma law, alleging Nitro-Lift fired him after he complained of its failure to
pay overtime wages. This issue is not before us on appeal.

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its use and enforcement. Id. at 11-12. They also sought liquidated damages, and

class certification if other similarly situated employees were found.

In response, Nitro-Lift filed a motion to dismiss and compel arbitration, or

alternatively to stay the proceeding pending arbitration. It argued that the

arbitration clause contained in the agreement contractually obligated plaintiffs to

submit their FLSA claims to arbitration under the Federal Arbitration Act

(“FAA”) and the Oklahoma Uniform Arbitration Act (“OUAA”), citing the liberal

federal policy favoring arbitration, and the strong presumption in favor of

arbitration under Oklahoma law. Nitro-Lift asserted the wage disputes are clearly

within the scope of the arbitration clause, which mandates that “any dispute” be

submitted to arbitration under the rules of the American Arbitration Association

(“AAA”). In its motion, Nitro-Lift waived the originally agreed upon venue of

Houston for arbitration, suggesting arbitration should take place in the Eastern

District of Oklahoma.

Mr. Sanchez and Mr. Schneider filed a brief in opposition to Nitro-Lift’s

motion contending the arbitration provision is unenforceable with respect to their

FLSA claim for a variety of reasons. They contended their wage disputes do not

fall within the scope of the arbitration clause. 4 They also asserted that the

4
Plaintiffs also pointed out that the Oklahoma Supreme Court addressed the
same contract and arbitration clause in Howard v. Nitro-Lift Techs., L.L.C., 273
P.3d 20 (Okla. 2011), which involved a dispute concerning an issue of
competition unrelated to plaintiffs’ wage disputes in this appeal. Id. at 23. The
(continued...)

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arbitration clause’s fee-shifting provisions violate the substantive rights afforded

to employees by the FLSA because that statute specifically provides for awards of

attorneys fees and costs only to prevailing plaintiffs, not to prevailing defendants.

In addition, they argued that the forum selection clause and the attempted

application of commercial arbitration rules 5 make the arbitration agreement

unconscionable because these provisions would force employees to pay

substantial costs they cannot afford to arbitrate the dispute in an inconvenient

forum.

Before the district court ruled on the pending motion, plaintiffs filed an

amended complaint adding Mr. Howard as a plaintiff. Shortly thereafter, the

district court denied Nitro-Lift’s pending motion to compel arbitration, addressing

only the FLSA claims and the scope of the arbitration clause. The court reasoned

that despite the broad language of the arbitration clause, plaintiffs did not agree to

4
(...continued)
court held that the agreement’s non-competition covenants were void and
unenforceable as against Oklahoma’s public policy, that it could not judicially
modify the agreement, and that the entire contract was therefore void and
unenforceable. Id. at 30. However, the United States Supreme Court
subsequently granted certiorari and vacated the decision of the Oklahoma
Supreme Court, holding that the court assumed the role of the arbitrator in
deciding that the covenants not to compete were invalid under state law, which
was a decision for the arbitrator in the first instance once the state court
determined there was a valid arbitration clause. See Nitro-Lift Techs., L.L.C. v.
Howard, 133 S. Ct. 500, 502-04 (2012).
5
We note the AAA determined that Nitro-Lift’s Demand for Arbitration
would be administered under the Employment Arbitration Rules instead of the
Commercial Arbitration Rules.

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arbitrate wage disputes because the contract’s subject matter was only about

confidentiality and competition. The court did not address any of the other

arguments raised concerning the validity of the contract. Nitro-Lift immediately

filed an interlocutory appeal from the district court’s decision.

On the same day that Nitro-Lift filed its appeal, it filed a motion to dismiss

the amended complaint and to compel arbitration, essentially reiterating the

arguments it made in its first motion. It also pointed out that, in denying its first

motion to compel arbitration, the district court cited Cummings v. FedEx Ground

Package System, Inc., 404 F.3d 1258 (10th Cir. 2005), the controlling Tenth

Circuit case concerning the scope of an arbitration clause, but failed to apply

Cummings’ three-part test in determining the arbitration clause did not cover

plaintiffs’ wage disputes. It argued that because the arbitration clause is broad,

under Cummings there was a presumption of arbitrability and accordingly

plaintiffs’ claims were required to be submitted to arbitration. Plaintiffs filed a

second brief in opposition to arbitration, reiterating arguments from their first

brief.

The district court construed Nitro-Lift’s second motion to compel

arbitration as a Rule 60(b) motion to reconsider because Nitro-Lift had already

filed an interlocutory appeal from the court’s first order. The court again

reasoned that plaintiffs’ wage disputes fall outside the scope of the arbitration

clause. It explained that although the clause is broad in scope and “there of

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course arises a presumption of arbitrability,” Aplt. App. at 436, the presumption

was overcome because “the arbitration clause is nestled within a narrow contract

pertaining only to Plaintiffs’ promises regarding confidentiality and competition

with Defendant.” Id. Nitro-Lift timely appealed from the district court’s second

order, and we consolidated the two appeals for purposes of review.

II

We review de novo both the district court’s denial of a motion to compel

arbitration, Cummings, 404 F.3d at 1261, and the denial of a stay pending

arbitration, Chelsea Family Pharmacy, PLLC v. Medco Health Solutions, Inc.,

567 F.3d 1191, 1196 (10th Cir. 2009). When both parties dispute whether an

arbitration clause in a contract “applies to a particular type of controversy, [the

question] is for the court.” Cummings, 404 F.3d at 1261 (alteration in original)

(quoting Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84 (2002)).

The central issue raised on appeal is whether plaintiffs’ statutory wage

disputes fall within the scope of an arbitration clause contained in a contract

labeled Confidentiality/Non-Compete Agreement, that is, whether plaintiffs

agreed to submit their FLSA wage disputes to binding arbitration by signing the

agreement at issue. Nitro-Lift contends, as it did below, that the language in the

arbitration clause is broad and covers any disputes between it and plaintiffs,

including their current wage claims. Plaintiffs counter that because the contract

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relates solely to issues of confidentiality and competition and was presented to

them as such, the arbitration clause covers only disputes relating to the subject

matter of the contract. They contend they never agreed to arbitrate wage disputes

and to force them to do so would be contrary to the FAA and Supreme Court

precedent. Our task is therefore to determine the scope of the arbitration clause at

issue and whether plaintiffs’ FLSA “claims fall within its scope.” Nat’l Am. Ins.

Co. v. SCOR Reinsurance Co., 362 F.3d 1288, 1290 (10th Cir. 2004). To do so,

we first turn to the purpose of the FAA and the basic principles underlying

arbitration.

Congress enacted the FAA “in response to widespread judicial hostility to

arbitration.” Am. Express Co. v. Italian Colors Rest., 133 S. Ct. 2304, 2308-09

(2013). As is relevant here, section 2 of the FAA provides that arbitration

agreements “shall be valid, irrevocable, and enforceable, save upon such grounds

as exist at law or in equity for the revocation of any contract.” 6 9 U.S.C. § 2.

The Supreme Court has described “this provision as reflecting both a liberal

federal policy favoring arbitration and the fundamental principle that arbitration

is a matter of contract.” AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740,

1745 (2011) (internal quotation marks and citations omitted). Consistent with

6
“The FAA also provides for stays of proceedings in federal district courts
when an issue in the proceeding is referable to arbitration, § 3, and for orders
compelling arbitration when one party has failed, neglected, or refused to comply
with an arbitration agreement, § 4.” Gilmer v. Interstate/Johnson Lane Corp.,
500 U.S. 20, 25 (1991).

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these principles, the Court has stated that “courts must place arbitration

agreements on equal footing with other contracts,” id., and “‘rigorously enforce’

arbitration agreements according to their terms.” Italian Colors, 133 S. Ct. at

2309 (quoting Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 221 (1985)).

In line with its liberal policy favoring arbitration, the Court has noted that

“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,

24-25 (1983); see also Armijo v. Prudential Ins. Co. of Am., 72 F.3d 793 (10th

Cir. 1995) (“[Q]uestions of arbitrability must be addressed with a healthy regard

for the federal policy favoring arbitration, and thus, any doubts concerning the

scope of arbitrable issues should be resolved in favor of arbitration.” (quoting

Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626

(1985))). Indeed, the FAA and common law have created a presumption in favor

of arbitration. See Riley Mfg. Co. v. Anchor Glass Container Corp., 157 F.3d

775, 779 (10th Cir. 1998). “This presumption in favor of arbitrability also applies

where a party bound by an arbitration agreement raises claims founded on

statutory rights.” Armijo, 72 F.3d at 797 (internal quotation marks and citation

omitted).

Nevertheless, because “arbitration is a matter of contract” and the authority

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of an arbitrator arises only from the parties agreement to that forum in advance,

“a party cannot be required to submit to arbitration any dispute which [it] has not

agreed so to submit.” AT & T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S.

643, 648-49 (1986) (internal quotation marks and citations omitted). Federal law

“simply requires courts to enforce privately negotiated agreements to arbitrate,

like other contracts, in accordance with their terms.” Volt Info. Sciences, Inc. v.

Bd. of Trs. of Leland Stanford Junior Univ., 489 U.S. 468, 478 (1989).

Our circuit applies a three-part test when determining whether an issue falls

within the scope of an arbitration clause. Cummings, 404 F.3d at 1261.

First, recognizing there is some range in the breadth of arbitration
clauses, a court should classify the particular clause as either broad
or narrow. Next, if reviewing a narrow clause, the court must
determine whether the dispute is over an issue that is on its face
within the purview of the clause, or over a collateral issue that is
somehow connected to the main agreement that contains the
arbitration clause. Where the arbitration clause is narrow, a
collateral matter will generally be ruled beyond its purview. Where
the arbitration clause is broad, there arises a presumption of
arbitrability and arbitration of even a collateral matter will be
ordered if the claim alleged implicates issues of contract
construction or the parties’ rights and obligations under it.

Id. (second emphasis added) (quoting Louis Dreyfus Negoce S.A. v. Blystad

Shipping & Trading Inc., 252 F.3d 218, 224 (2d Cir. 2001)).

Applying Cummings’ first step, we agree with the district court that the

arbitration clause at issue here is broad. In fact, we have not found any case with

an arbitration clause as broad as this, stating that “[a]ny dispute, difference or

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unresolved question between” the parties must be arbitrated. Aplt. App. at 239

(emphasis added). This clause contains no limiting language, either restricting

arbitration to any specific disputes or to the agreement itself. Many courts have

concluded that an arbitration clause applying to disputes “arising under” or “in

connection with” the agreement constitutes a broad arbitration clause. See, e.g.,

Brown v. Coleman Co., 220 F.3d 1180, 1184 (10th Cir. 2000) (explaining that

arbitration clause stating “all disputes or controversies arising under or in

connection with this Agreement . . . will be settled exclusively by arbitration”

was “the very definition of a broad arbitration clause” (omission in original)); P

& P Indus., Inc. v. Sutter Corp., 179 F.3d 861, 871 (10th Cir. 1999) (stating that

arbitration clause covering “[a]ny controversy, claim, or breach arising out of or

relating to this Agreement . . . is a ‘broad’ one”); Louis Dreyfus, 252 F.3d at 225-

27 (noting that phrase “[a]ny dispute arising from the making, performance or

termination of this [agreement],” while containing limiting language, was “a

broad arbitration clause”); Collins & Aikman Prods. Co. v. Bldg. Sys., Inc., 58

F.3d 16, 20 (2nd Cir. 1995) (explaining that phrase “‘[a]ny claim or controversy

arising out of or relating to th[e] agreement,’ is the paradigm of a broad clause”).

We are not as convinced as the district court that the narrow context of the

contract rebuts the presumption of arbitrability because “the strong presumption

in favor of arbitrability applies with even greater force when such a broad

arbitration clause is at issue.” P & P Indus., 179 F.3d at 871 (internal quotation

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marks and citation omitted). In Cummings, we examined an arbitration clause

that covered only “acts to terminate this Agreement,” 404 F.3d at 1260, and

explained that “the parties clearly manifested an intent to narrowly limit

arbitration to specific disputes regarding the termination of the Operating

Agreement,” id. at 1262. Here, there is no manifestation of an intent to limit the

arbitration agreement.

Even so, a contract “must be considered as a whole so as to give effect to

all of its provisions without narrowly concentrating upon some clause or language

taken out of context.” Eureka Water Co. v. Nestle Waters N. Am., Inc., 690 F.3d

1139, 1151 (10th Cir. 2012) (quoting Mercury Inv. Co. v. F.W. Woolworth Co.,

706 P.2d 523, 529 (Okla. 1985)). Plaintiffs contend we cannot ignore the narrow

context of the agreement in which the arbitration clause is found and urge us not

to read the broad arbitration clause in isolation. Although we agree with

plaintiffs’ argument, at best this contention makes the arbitration clause

ambiguous. A contract “is ambiguous if it is reasonably susceptible to at least

two different constructions,” and to determine whether a contract is ambiguous

“we look to the language of the entire agreement.” Id. at 1149 (internal quotation

marks omitted). In our view, when the broad arbitration clause is considered

together with the entire language of the narrow contract, two reasonable

constructions emerge—either the parties agreed to arbitrate all disputes arising

between them, or they agreed to arbitrate all disputes concerning only those issues

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covered in the agreement.

We need not decide this difficult question, for we have stated that “to

acknowledge the ambiguity is to resolve the issue, because all ambiguities must

be resolved in favor of arbitrability.” Armijo, 72 F.3d at 798. As we explained in

Local 5-857 Paper, Allied-Industrial, Chemical & Energy Workers International

Union v. Conoco, Inc.:

[W]hen a contract contains an arbitration clause, there is a
presumption in favor of arbitrability; that is, an order to arbitrate the
particular grievance should not be denied unless it may be said with
positive assurance that the arbitration clause is not susceptible of an
interpretation that covers the asserted dispute. Doubts should be
resolved in favor of coverage. The Supreme Court has held that the
presumption is particularly applicable where, as in the case before us
now, there is a broad arbitration clause. In such cases, in the
absence of any express provision excluding a particular grievance
from arbitration, we think only the most forceful evidence of a
purpose to exclude the claim from arbitration can prevail.

320 F.3d 1123, 1126 (10th Cir. 2003) (emphasis added) (internal footnote,

citation, and quotation marks omitted).

Here, we cannot say the ambiguity created by the admittedly narrow

contract containing the broad arbitration clause provides “forceful evidence” to

support plaintiffs’ claim that their wage disputes do not fall within the scope of

the arbitration clause. While the fact that the contract discusses only issues

relating to competition, confidentiality, and retention of corporate documents

certainly raises doubts as to whether plaintiffs agreed to arbitrate their wage

disputes, “all doubts must be resolved in favor of coverage.” Id.; see also Moses,

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460 U.S. at 24-25 (“[A]ny doubts concerning the scope of arbitrable issues should

be resolved in favor of arbitration . . . .”). We therefore hold that plaintiffs’

FLSA wage disputes fall within the scope of the arbitration clause.

III

This does not end the matter, however. Notwithstanding the “liberal

federal policy favoring arbitration agreements,” Moses, 460 U.S. at 24,

agreements which require the arbitration of statutory claims are only enforceable

under the FAA so “long as the prospective litigant effectively may vindicate [his

or her] statutory cause of action in the arbitral forum,” Gilmer, 500 U.S. at 28

(alteration in original). The Court in Gilmer reasoned that by submitting statutory

claims to arbitration, a plaintiff does not lose the protection of the substantive

rights afforded by the statute, but rather submits their resolution to an alternative

forum. Id. at 26.

Plaintiffs contend the arbitration provision here does exactly what Gilmer

forbids, that is, it denies them the substantive rights afforded by the FLSA

because it specifically provides that “the costs (including, without limitation,

reasonable fees and expenses of counsel and experts for the Disputing Parties) of

such arbitration . . . shall be borne by [the losing party],” or, at a minimum,

requires the parties to split the costs of arbitration. Aplt. App. at 239. Contrary

to the arbitration provision, the FLSA provides: “The court in such action shall, in

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addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable

attorney’s fee to be paid by the defendant, and costs of the action.” 29 U.S.C. §

216(b). “The FLSA’s fee-shifting provision refers only to a prevailing plaintiff

. . . and says nothing of a prevailing defendant.” Mach v. Will Cnty. Sheriff, 580

F.3d 495, 501 (7th Cir. 2009). Indeed, the “FLSA entitles a prevailing defendant

to attorney’s fees only where the district court finds that the plaintiff litigated in

bad faith.” Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1437 (11th Cir.

1998).

Plaintiffs rely on several cases, including our decision in Shankle v. B–G

Maintenance Management of Colorado, Inc., 163 F.3d 1230 (10th Cir. 1999), for

the proposition that the fee- and cost-shifting provisions in the arbitration

provision are unenforceable. In Shankle, the arbitration agreement required the

employee to pay one-half of the arbitrator’s fees, which would have cost Mr.

Shankle “between $1,875 and $5,000 to resolve his claims.” Id. at 1234. We

noted that “Mr. Shankle could not afford such a fee, and it is unlikely other

similarly situated employees could either.” Id. at 1234-35 (emphasis added).

Accordingly, we explained:

The Agreement thus placed Mr. Shankle between the proverbial rock
and a hard place—it prohibited use of the judicial forum, where a
litigant is not required to pay for a judge’s services, and the
prohibitive cost substantially limited use of the arbitral forum.
Essentially, B–G Maintenance required Mr. Shankle to agree to
mandatory arbitration as a term of continued employment, yet failed
to provide an accessible forum in which he could resolve his

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 statutory rights. Such a result clearly undermines the remedial and
deterrent functions of the federal anti-discrimination laws. Given
this deficiency, we conclude the Agreement is unenforceable under
the Federal Arbitration Act.

Id. at 1235 (internal footnote and citations omitted). 7

Subsequent to our decision in Shankle, the Supreme Court recognized that

“the existence of large arbitration costs could preclude a litigant . . . from

effectively vindicating her federal statutory rights in the arbitral forum.” Green

Tree Fin. Corp.–Ala. v. Randolph, 531 U.S. 79, 90 (2000). However, in Green

Tree, although it was “undisputed that the parties agreed to arbitrate all claims

relating to their contract, including claims involving statutory rights,” id. at 90,

the arbitration agreement was silent on the allocation of fees between the parties,

id. at 91, unlike in Shankle or in this case. The Court concluded that silence on

the subject of fees was insufficient to render the arbitration provision

unenforceable because the risk that the employee would have been “saddled with

prohibitive costs [was] too speculative to justify the invalidation of [the]

arbitration agreement.” Id. The Court declined to decide “[h]ow detailed the

showing of prohibitive expense must be before the party seeking arbitration must

come forward with contrary evidence” because “neither during discovery nor

when the case was presented on the merits was there any timely showing at all on

7
We distinguished Shankle in Hill v. Ricoh Americas Corp., 603 F.3d 766,
779-80 (10th Cir. 2010), where the arbitration provision did not require that
attorneys fees be awarded to the losing party but left the matter to the discretion
of the arbitrator.

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the point.” Id. at 92. Nevertheless, the Court made it clear that a party resisting

arbitration had the initial burden of proof to demonstrate that arbitration would be

prohibitively expensive “by showing the likelihood of incurring such costs.” Id.

It is thus unclear from Green Tree “‘[h]ow detailed the showing of

prohibitive expense must be’ to support the conclusion that the provision, at a

minimum, is unenforceable.” Morrison v. Circuit City Stores, Inc., 317 F.3d 646,

660 (6th Cir. 2003) (en banc) (alteration in original) (quoting Green Tree, 531

U.S. at 92). In Morrison, the Sixth Circuit set forth a case-by-case approach to

determine whether fee- and cost-splitting provisions in employment arbitration

agreements are enforceable. Id. at 663-65. The court held that “potential litigants

must be given an opportunity, prior to arbitration on the merits, to demonstrate

that the potential costs of arbitration are great enough to deter them and similarly

situated individuals from seeking to vindicate their federal statutory rights in the

arbitral forum.” Id. at 663. Agreeing with Shankle, the court added, “if the

reviewing court finds that the cost-splitting provision would deter a substantial

number of similarly situated potential litigants, it should refuse to enforce the

cost-splitting provision in order to serve the underlying functions of the federal

statute.” Id.

In response to Nitro-Lift’s motion to compel arbitration, plaintiffs filed

affidavits claiming inability to pay the arbitration costs and fees. The district

court did not address this issue, however, because it determined that the FLSA

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claim was not within the arbitration provision. Given our reversal of the district

court, it will need to determine on remand the effect of the cost-shifting provision

in the arbitration clause in light of Shankle and Green Tree.

Plaintiffs further claim that Nitro-Lift’s attempt to waive the fee- and

cost-shifting provisions of the arbitration agreement makes the agreement

illusory. They argue, as they did below, that Nitro-Lift is unilaterally changing

the contract in an effort to make it enforceable. 8 Plaintiffs rely on Dumais v.

American Golf Corp., 299 F.3d 1216 (10th Cir. 2002), where we held that “an

arbitration agreement allowing one party the unfettered right to alter the

arbitration agreement’s existence or its scope is illusory.” 9 Id. at 1219. There,

8
Nitro-Lift counters that if any of these provisions are found to be
unlawful, the court should sever the provisions. Section 1(k) of the agreement
regarding non-competition and confidentiality contains a severance clause which
states: “[t]o the extent that any part of this Section 4(k) may be invalid, illegal or
unenforceable,” the court may strike the unenforceable provisions and enforce the
remaining parts. Aplt. App. at 238 (emphasis added). In context, however, it is
apparent that “this Section 4(k)” is intended to be “this Section 1(k).”
Accordingly, the severance clause is by its terms applicable only to the section 1
provision on non-competition and corporate property. Because the arbitration
provision at issue is in Section 2 of the agreement, the severance clause does not
apply to the arbitration provision.
9
In determining whether an agreement to arbitrate is illusory, a court
applies the state law of contracts. See Perry v. Thomas, 482 U.S. 483, 492 n.9
(1987) (“[S]tate law . . . is applicable if that law arose to govern issues
concerning the validity, revocability, and enforceability of contracts generally.”).
In Hardin v. First Cash Financial Services, Inc., 465 F.3d 470 (10th Cir. 2006),
applying Oklahoma law, we held that the arbitration agreement there was not
illusory because the employer’s right to unilaterally change its terms was not
unlimited. Id. at 478-79 (distinguishing Dumais).

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the employees’ handbook contained an arbitration clause requiring all

employment disputes to be arbitrated but on the page of the handbook where the

employees were required to sign, the employer reserved “the right to amend,

supplement, or revise everything in the Handbook with the exception of the

employees’ at-will status.” Id. at 1217. 10

Nitro-Lift argues that its willingness to waive the forum selection clause,

the fee-shifting provision, and the rules governing arbitration differ from the facts

in Dumais in that nothing in the contract in this case expressly allows “one party

the ‘unfettered right to alter the arbitration agreement’s existence or scope’

without notice.” Reply Br. at 20 (quoting Dumais, 299 F.3d at 1219). Plaintiffs

counter that Nitro-Lift’s conduct raises a question as to whether the necessity of

Nitro-Lift having to waive several provisions of the agreement in order to make it

enforceable effectively constitutes a unilateral right to change the agreement as it

sees fit. Plaintiffs contend Nitro-Lift should not get a free pass to draft an

unlawful contract, strategically waive unenforceable provisions, 11 and then count

10
While a different provision of the handbook stated the employer
“reserves the right to at any time change, delete, modify, or add to any of the
provisions contained in this handbook at its sole discretion,” except the
employees’ at-will status and the arbitration provision, Dumais, 299 F.3d at 1217,
we construed the ambiguity created by the conflicting provisions “as allowing
[the employer] to change the arbitration provision at will,” id. at 1219.
11
We note that Nitro-Lift did not offer to waive the provision requiring the
losing party to pay the other party’s attorney’s fees until its Reply Brief on
Appeal. Reply Br. at 17.

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on the court to bail it out. Aple. Br. at 29-31. See, e.g., Pérez v. Hospitality

Ventures–Denver LLC, 245 F. Supp. 2d 1172, 1173-75 (D. Colo. 2003) (applying

Green Tree, declining to sever fee-splitting provision in absence of severance

clause, and holding arbitration provision unenforceable under our decision in

Shankle because plaintiff presented evidence that she could not afford the costs,

notwithstanding that employer offered to waive costs); see also Gourley v. Yellow

Transp., LLC, 178 F. Supp. 2d 1196, 1203-05 (D. Colo. 2001) (noting that

because arbitration agreement contained no severance clause, court could not

entertain defendant’s offer to waive fee-shifting provision, which the court found

invalid under Shankle).

We decline to decide these issues for the first time on appeal. Because the

district court found the arbitration agreement did not cover plaintiffs’ FLSA

claims, it did not address any of these issues. Accordingly, we remand to the

district court for further consideration of these issues in light of this opinion.

IV

Because we are reversing the district court’s denial of the motion to dismiss

and remanding for further proceedings, we must address an additional issue raised

by plaintiffs claiming that the district court lacks jurisdiction to enforce the

arbitration provision here. This is so, plaintiffs argue, because the forum

selection clause requires arbitration in Houston and in Ansari v. Qwest

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Communications Corp., 414 F.3d 1214 (10th Cir. 2005), we held that section 4 of

the FAA requires district courts to compel arbitration in accordance with the

parties’ agreement but prohibits courts from ordering arbitration in other districts.

Id. at 1220-21. We said that “a district court lacks authority to compel arbitration

in other districts, or in its own district if another has been specified,” and that

“[a]ny other result renders meaningless the § 4 mandate that arbitration and the

order compelling arbitration issue from the same district.” Id. at 1220 (internal

quotation marks omitted). Relying on Ansari, plaintiffs contend there would not

be jurisdiction in the district court to compel arbitration if we reverse and remand.

In 1mage Software, Inc. v. Reynolds & Reynolds Co., 459 F.3d 1044 (10th

Cir. 2006), however, we held that the rule announced in Ansari is not

jurisdictional but “one of venue which the parties” waived “by not raising the

issue before the district court.” Id. at 1051-52. In that case, “the Colorado

district court granted Reynolds’s motion to compel arbitration in Ohio,” but

“neither party questioned the district court’s authority to do so.” Id. at 1052. The

key issue on appeal was “whether the rule announced in Ansari is jurisdictional;

that is, whether the district court was without any power to adjudicate Reynolds’s

motion to compel arbitration.” Id. After examining the language of section 4 and

how other courts have interpreted its meaning and the meaning of similar FAA

provisions, we concluded that section 4 is a venue provision and that parties may

waive objections to such venue provisions. Id. at 1052-54. Accordingly, we

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explained: “Ansari’s holding that a district court does not have authority to

compel arbitration in another district is a statement addressing venue under the

FAA. And the parties in this case have waived any objection to venue because

they failed to raise the issue in the district court.” Id. at 1055 (footnote omitted).

Here, as plaintiffs recognize, Nitro-Lift disclaimed the forum/venue

provisions of its agreement and moved the district court to order arbitration in the

Eastern District of Oklahoma. In any event, plaintiffs themselves waived any

issue of venue in the Eastern District of Oklahoma by failing to raise it in the

district court. See 1mage Software, 459 F.3d at 1055.

V

In sum, we REVERSE the district court’s denial of Nitro-Lift’s motion to

compel arbitration and REMAND for further proceedings.

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