United States District Court, D. Delaware
R. Wood Jr., BLANK ROME LLP, Wilmington, Delaware; Adam V.
Orlacchio, BLANK ROME LLP, Wilmington, Delaware; Thomas P.
Gies, CROWELL & MORING LLP, Washington, D.C., Counsel for
S. Brooks, GUTTMAN, BUSCHNER & BROOKS PLLC, Greenville,
Delaware; Samuel T. Hirzel, II, HEYMAN ENERIO GATTUSO &
HIRZEL LLP, Wilmington, Delaware; Melissa N. Donimirski,
HEYMAN ENERIO GATTUSO & HIRZEL LLP, Wilmington, Delaware
Counsel for Respondent
HONORABLE COLM F. CONNOLLY, UNITED STATES DISTRICT JUDGE.
me is a Petition to Compel Arbitration brought by Flexa
Network Inc. pursuant to Section 4 of the Federal Arbitration
Act (FAA), 9 U.S.C. § 1 et seq., against Scott
Mandel. D.I. 1.
Under § 4 of the FAA, "[a] party aggrieved by the
... refusal of another to arbitrate under a written agreement
for arbitration may petition any United States district
court... for an order directing that such arbitration proceed
in the manner provided for in such agreement." 9 U.S.C.
2018, Flexa and Mandel executed an "Employment
Agreement." D.I. 1, Ex. A. Section 6.11 of the
Employment Agreement, titled "Arbitration," states:
Except to enforce the restrictive covenants in Section
5, or in such other instances where either party seeks
injunctive relief, any dispute, controversy or claim arising
out of or related to the Agreement or the breach of the
Agreement, or out of any other aspect of [Mandel's]
employment or separation therefrom, including but not limited
to compensation, discrimination, and/or retaliation claims of
any type, whether such claims arise by contract, statute,
common law, equity, or otherwise, shall be administered
exclusively by the American Arbitration Association and shall
be conducted consistent with the rules, regulations and
requirements thereof as well as any requirements impose by
state Law. Any arbitral award determination shall be
final and binding upon the parties to the Agreement.
Ex. A § 6.11 Arbitration (emphasis added). Thus, by its
express terms, § 6.11 of the Employment Agreement
requires Flexa and Mandel to arbitrate all their employment
disputes that do not involve the restrictive covenants set
forth in Section 5 of the Employment Agreement or a claim for
July 19, 2019 Flexa submitted a dispute with Mandel to the
American Arbitration Association. D.I. 1 ¶ 20; D.I. 1,
Ex. B. Mandel refused to participate in the arbitration. D.I.
1 ¶ 21.
October 10, 2019, Flexa filed its petition to compel
arbitration. D.I. 1. Mandel opposes that petition and argues
that he does not have to participate in the arbitration
because the Employment Agreement as a whole is unenforceable.
See D.I. 6.
FAA "reflects the fundamental principle that arbitration
is a matter of contract." Rent-A-Center, W., Inc. v.
Jackson, 561 U.S. 63, 67 (2010).
Section 2 of the FAA is the "primary substantive
provision of the Act." Moses H. Cone Mem 7
Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24
(1983). It provides:
A written provision in ... a contract evidencing a
transaction involving commerce to settle by arbitration a
controversy thereafter arising out of such contract... shall
be valid, irrevocable, and enforceable, save upon such
grounds as ...