Gordon v. Wilson Elser Moskowitz Edelman & Dicker LLP

Background

Robert W. Gordon, a civil litigator, sued his former law firm, Wilson Elser Moskowitz Edelman & Dicker LLP, and Wilson Elser partners Stuart Miller and Rory L. Lubin. Gordon alleged interference with his rights under the Family and Medical Leave Act, breach of contract, and disability discrimination under the New York State Human Rights Law and New York City Human Rights Law.

Gordon’s employment was governed by an “Of Counsel Agreement.” Its dispute-resolution provision covered any claim arising from or relating to the employment relationship, including discrimination and contract claims, with narrow exceptions for workers’ compensation, state disability insurance, and unemployment insurance benefits. The agreement required informal negotiations and mediation before arbitration, and required unresolved disputes to be arbitrated under the American Arbitration Association’s employment-dispute rules.

Gordon alleged that he had physical and mental impairments, requested workplace accommodations, did not receive them, and was later terminated. He also alleged that Wilson Elser did not provide the written termination notice required by the agreement.

Motion to Compel Arbitration

The defendants moved to compel arbitration or, alternatively, to dismiss the complaint. The court applied New York contract law, as specified in the agreement. It found that the parties had entered into a valid arbitration agreement and rejected Gordon’s challenges based on unconscionability, public policy, contract breach, and the cost of arbitration.

The defendants agreed to waive the agreement’s provisions making each party responsible for its own attorney’s fees and waiving punitive, exemplary, or treble damages. The court held that this waiver could preserve the arbitration agreement. It also held that Gordon had not shown that the requirement to share arbitration fees would prevent him from pursuing his rights.

The court further held that the agreement clearly and unmistakably delegated questions about “arbitrability”—whether a dispute falls within the arbitration agreement—to the arbitrator. The agreement’s broad coverage, combined with its incorporation of American Arbitration Association rules that authorize an arbitrator to decide arbitrability, supported that conclusion. The narrow exceptions in the agreement did not create ambiguity because none applied to Gordon’s claims.

The court also ruled that arguments about whether the required negotiations or mediation had occurred were procedural questions for the arbitrator, not reasons for the court to refuse to order arbitration. Because Gordon had filed the lawsuit, the court found that he had refused to arbitrate.

Ruling and Effect

The court granted the defendants’ motion to compel arbitration and ordered Gordon to participate in arbitration. It stayed the case pending the outcome of arbitration rather than dismissing it. The parties were ordered to submit a status letter within fourteen days after the arbitrator’s final judgment, and the Clerk of Court was directed to close the motion and stay the case. Judge John P. Cronan signed the opinion and order on February 21, 2023.