Diggs brief - Outsourcing Justice

APPEAL NO. 13-10138IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

SAMANTHA DIGGS,Plaintiff - Appellant,

v.

CITIGROUP, INC.,Defendant - Appellee.

BRIEF OF APPELLANTSAMANTHA DIGGS

On Appeal From The United States District CourtFor The Northern District of Texas

Dallas Division

John H. CrouchKILGORE & KILGORE, PLLC3109 CarlisleDallas, Texas 75204

ORAL ARGUMENT (214) 969-9099 - TelephoneREQUESTED (214) 953-0133 - Fax

ATTORNEYS FORPLAINTIFF-APPELLANTSAMANTHA DIGGS

Case: 13-10138 Document: 00512239891 Page: 1 Date Filed: 05/13/2013

CERTIFICATE OF INTERESTED PERSONS

Plaintiff-Appellant hereby certifies that the following list of persons have an

interest in the outcome of this case. These representations are made in order that the

Judges of this Court may evaluate possible disqualification or other recusal:

Plaintiff-Appellant: Samantha Diggs

Counsel for Plaintiff-Appellant: John H. Crouch, IVKilgore & Kilgore, LLPC3109 Carlisle St.Dallas, Texas 75204

Defendant-Appellee: Citigroup, Inc. (Parent company ofCiticorp Credit Services, Inc.

Citicorp Credit Services, Inc.

Counsel for Defendant-Appellee: Kristin SnyderOgletree, Deakins, Nash, Smoak, &

Stewart, P.C.

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STATEMENT REGARDING ORAL ARGUMENT

Plaintiff-Appellant Samantha Diggs would show that because the legal issuespresented with respect to Appellant’s appeal claim are significant, oral argument isrequested.

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TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

I. STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. STATEMENT OF ISSUES PRESENTED FOR REVIEW . . . . . . . . . . . . . 2

Issue No. 1: The trial court erred in ordering arbitrationbecause state law defenses preclude anEnforceable agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Issue No. 2: The trial court erred in refusing to allow discovery regarding the fairness of AAAproceedings involving Citibank. . . . . . . . . . . . . . . . . . . . . . . . 36

III. STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

IV. STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

A. Underlying Case Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

B. The Arbitration Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

C. Evidence Shows AAA ArbitrationHas Repeatedly Proved Unfair . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

V. SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

VI. ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Issue No. 1: The Trial court erred in ordering arbitration

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because state law defenses preclude an enforceable agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

A. Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

B. The Trial Court Erred in ExcludingDr. Colvin’s Report . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

C. The Trial Court Erred in Adopting a Conclusive Federal Presumption to theFormation of the Underlying Contract . . . . . . . . . . . . . 21

D. The Agreement is Unenforceable dueto Fraud, Mistake, or Prior Breach . . . . . . . . . . . . . . . . 23

E. The Arbitration Policy isUnconscionable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

F. Mandatory AAA Employment ArbitrationViolates Public Policy . . . . . . . . . . . . . . . . . . . . . . . . . 31

Issue No. 2: The Trial Court Erred in Refusing to AllowDiscovery Regarding the Fairness of AAAProceedings Involving Citibank . . . . . . . . . . . . . . . . . . . . . . . 36

A. Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

B. The Trial Court Abused Its DiscretionIn Denying Discovery . . . . . . . . . . . . . . . . . . . . . . . . . 36

VII. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

SIGNATURE PAGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

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TABLE OF AUTHORITIES

FEDERAL CASES:

Adams v. Philip Morris, Inc., 67 F.3d 580,584 (6th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Ambrosini v. Labarraque, 101 F.3d 129(D.C. Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Am. Heritage Life Ins. Co. V. Lang, 321 F.3d533, 637 (5th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Am. Heritage Life Ins. Co. v. Orr, 294 F.3d702, 708 (5th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Anderson v. City of Bessemer City, N.C.,470 U.S. 564, 105 S. Ct. 1504, 1511, 84 L. Ed. 2d 518 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Andros Compania Maritima, S.A. v. Marc Rich& Co., 579 F.2d 691, 702 (2nd Cir. 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Bazemore v. Friday, 478 U.S. 385, 106 S.Ct. 3000, 3009, 92 L. Ed. 2d315 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Brown v. Pac. Life Ins. Co., 4621 F.3d 384, 391 (5th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Citigroup Global Markets, Inc. v. North CarolinaEastern Municipal Power Agency, Cause No. 13-01703 (S.D.N.Y.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Citigroup Global Markets, Inc. v. Abhar, CauseNo. 11-06993 (S.D.N.Y) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Claar v. Burlington N.R.R., 29 F.3d 499 (9th

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Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Cole v. Burns Int’l Sec. Servs., 105 F. 3d1465, 1473 (D.C. Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 34

Daubert v. Merrell Dow Pharmaceuticals,509 U.S. 579 (1993) . . . . . . . . . . . . . . . . . . . . . . 9, 12, 13, 14, 15, 16, 17, 20, 23, 38

Doctor’s Assocs., Inc. v. Casarotto, 517U.S. 681, 687 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

EEOC v. Waffle House, Inc., 534 U.S. 279,293, 122 S. Ct. 754, 151, L.Ed. 2d 755 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Fidelity Federal Bank, FSB v. Durga Ma Corp.,386 F. 3d 1306, 1310 (9th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

First Options of Chicago, Inc. v. Kaplan,514 U.S. 938, 944, 131 L.Ed. 2d 985, 115 S. Ct. 1920 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Floss v. Ryan’s Family Steak Houses, Inc., 211 F.3d 306, 313 (6th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Ford Motor Co. v. Woods, 165 Fed. Appx.(5th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Furnco Construction Corp. v. Waters, 438US 567, 98 S.Ct. 2943, 57 L.Ed. 2d 957(1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 24

Geiserman v. MacDonald, 893 F.2d 787, 789 (5th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

General Elec. Co. V. Joiner, 522 U.S. 135,146 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Granite Rock Co. v. Int’l Brotherhood of

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Teamsters, 130 S. Ct. 2847 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Hazelwood School District v. United States,433 U.S. 299, 307-08 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 24

Hooters of America, Inc. v. Phillips, 173 F.3d 933 (4th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 28

In re: Paoli R.R. Yard PCB Litigation, 35 F.3d717, 744 (3d Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Italian Colors Rest. v. Am. Express Travel Related Servs. Co., 667 F.3d 204, 216 (2nd Cir.2012) cert. Granted, 133 S. Ct. 594, 184 L. Ed2d 390 (U.S. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Kendall v. Watkins, 998 F.2d 848, 851(10th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Kumho Tire Co. v. Carmichael, 526 U.S. 137(1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12, 13, 14

Lucent Technologies Inc. v. Tatung Co., 379F.3d 24, 31 (2nd Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

MC Asset Recovery LLC v. Castex Energy, Inc.(In re Mirant Corp.), 613 F.3d 584, 588(5th Cir. Tex. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Moore v. Ashland Chem ical, Inc., 151 F.3d296 (5th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Morrison v. Amway Corp., 517 F.3d 248,254 (5th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Mukhar v. Cal. State Univ., 319 F.3d 1073, 1074(9th Cir. 2003), amending 299 F.3d 1053, 2066(9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

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Munoz v. Orr, 200 F.3d 291, 300 (5th Cir. Tex2000), cert denied, 531 U.S. 812 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Paladino v. Avnet Computer Techs., Inc., 134F.3d 1054, 1060 (11th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Prima Paint Corp. v. Flood & Conklin Mfg.Co., 388 U.S. 395, 404 N. 12, 87 S.Ct.1801, 18 L.Ed. 2d 1270 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Republic Ins. Co. V. PAICO Receivables,LLC, 383 F.3d 341, 344 (5th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Ruiz-Troche v. Pepsi Cola, 161 F.3d 77,85 (1st Cir., 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Shankle v. B-G Maint. Mgmt. Of Colo., Inc.,163 F.3d 1230, 1234 (10th Cir. 1990 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Sheehan v. Daily Racing Form, Inc., 104F.3d 940, 942 (7th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Sterling v. Velsicol Chem. Corp., 855 F.2d118 (6th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Tyler v. Union Oil Co., 304 F.3d 379,392-393 (5th Cir. Tex. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 20

United States v. United States Gypsum Co., 333 U.S. 364, 394-95, 92 L.Ed. 746, 68S.Ct. 525 (1948) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Volt Info. Scis., Inc.v. Bd. of Trs. of Leland Stanford Junior Univ., 489 U.S.468, 479, 109 S.Ct. 1248, 103 L.Ed 2d488 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Walker v. Ryan’s Family Steak Houses,

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Inc., 400 F.3d 370 (6th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 28, 34

Washington Mutual Fin. Group v. Bailey,364 F.3d 260, 266 n.4 (5th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 31

Watson v. Fort Worth Bank and Trust, 487U.S. 977, 987, 101 L.Ed. 2d 827, 108 S.Ct.2777 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 24

Williams v. Cigna Fin. Advisors, 197 F.3d752, 760-761 (5th Cir. Tex. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

STATE CASES:

Associated Milk Producers v. Nelson, 624 S.W.2d920, 926 (Tex. Civ. App. – Houston [14th Dist.]1981, writ ref’d n.r.e.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Currey v. Lone Star Steel Co., 676 S.W.2d205, 213 (Tex. App.–Ft. Worth 1984, no writ) . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Goudie v. HNG Oil Co., 711 S.W.2d 716,718 (Tex. App.– El Paso 1986, writ ref’d n.r.e.) . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Hazelwood v. Mandrell Indus. Co., 596 S.W.2d 204, 206 (Tex. Civ. App.–Houston [1st

Dist.] 1990, writ ref’d n.r.e.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

In re: Advances PCS Health L.P., 172 S.W.3d 603,605 (Tex. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

In re: Dillard Dep’t. Stores, Inc., 186 S.W.3d 514,515 (Tex. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

In re: First Merit Bank, N.A., 52 S.W.3d 749, 757(Tex. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

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In re: Halliburton Co., 80 S.W.3d 566, 571(Tex. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 30, 33

In re: Merrill Lynch Trust Co. FSB, 235 S.W.3d 185,192 (Tex. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

In re: Morgan Stanley & Co., 293 S.W.3d 182,185 (Tex. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

In re: Poly-America, L.P., 262 S.W.3d 337,352-353 (Tex. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 32, 33

Myrad Props., Inc. V. LaSalle Bank Nat’l Ass’n,300 S.W.3d 746, 751 (Tex. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Pony Express Courier Corp. v. Morris, 921 S.W.2d 817, 821 (Tex. App.– San Antonio 1996, no writ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Southwestern Bell Tel. Co. v. DeLanney, 809 S.W.2d493, 498 (Tex. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Tri-Star Petrol. Co. v. Tipperary Corp., 107 S.W.3d 607 (Tex. App. – El Paso 2003, pet. denied) . . . . . . . . . . . . . . . . . . . . . . . 27, 28

FEDERAL STATUTES:

9 U.S.C. § 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 28

9 U.S.C. §16(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. §1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

29 C.F.R. §825.220(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

29 U.S.C. §626(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Family and Medical Leave Act of 1993,29 U.S.C. §2601, et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 32

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Federal Arbitration Act, 9 U.S.C. §1et seq . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

In re: Currency Conversion Fee AntitrustLitigation, Cause No. 05 Civ. 7116 (S.D.N.Y. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Title VII, 42 U.S.C. 2000e, et seq . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 32

STATE STATUTES:

Texas Civil Practice & Remedies Code §171.001(b) . . . . . . . . . . . . . . . . . . . . . . 29

OTHER AUTHORITIES:

“Banks vs. Consumers (Guess WhoWins),” Business Week, June 5, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 35

Fed. R. Evid. 702 Committee Notes on Rules-2000 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 15, 16

Feldman, Cris, The Consumer Pitfalls of BindingArbitration, a Report by the Texas Watch Foundation . . . . . . . . . . . . . . . . . . . . . 21The Journal of Empirical Legal Studies,Volume 8, Issue 1, 1-23, March 20111 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Internet Article, “Judge Blocks Auction RateArbitration against Citigroup,” at: http://www.reuters.com/article/2013/05/06/us-citigroup-arbitration-idUSBRE9450RB20130506 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Policy Statement on Mandatory BindingArbitration of Employment Discrimination Disputes, EEOC Notice No. 915.00 (July 10, 1997) . . . . . . . . . . . . . . . . . . . . . . . 30

Testimony offered by Cathy Ventrell-Monseesto the House Judiciary Committe on October 25, 2007 - available online athttp://judiciary.house.gov/hearings/pdf/


Ventrell-Monsees071025.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

West Virginia Chief Justice Richard Neeley, “Arbitration andthe Godless Bloodsuckers,” The West Virginia Lawyer . . . . . . . . . . . . . . . . . . . . 21


I.

STATEMENT OF JURISDICTION

Plaintiff-Appellant Samantha Diggs brought this action in the District Court

below on May 24, 2012 for alleged violations of the Family and Medical Leave Act

of 1993, 29 U.S.C. §2601, et seq. (the “FMLA”) and Title VII, 42 U.S.C. 2000e, et

seq., concerning termination of her employment for complications related to her

pregnancy. R 7. The trial court had jurisdiction because these matters related to a

question of federal law. 28 U.S.C. §1331.

The trial court did not reach the underlying merits of the case because he

granted a motion to compel binding arbitration, and thereafter dismissed the case with

prejudice by order dated January 8, 2013. R. 284. A Judgment was entered the same

day compelling the parties to arbitration in accordance with the Defendant’s

Arbitration Policy, which requires use of the American Arbitration Association. R

290.

The Final Judgment was “a final decision with respect to an arbitration” subject

to appeal. 9 U.S.C. §16(a)(3); Am. Heritage Life Ins. Co. v. Orr, 294 F.3d 702, 708

(5th Cir. 2002) (holding that the district court's decision was final and appealable

where it ordered arbitration, stayed proceedings, and closed the case); Brown v. Pac.

Life Ins. Co, 462 F.3d 384, 391 (5th Cir. 2006)(final order where “the district court

-1-


granted the sole remedy sought by the plaintiffs in the Federal Actions--an order

compelling arbitration. Although the district court did not dismiss the case, there was

nothing left for the court to do but execute the judgment.”). This Court has held that

failure to appeal from a final order regarding arbitration forfeits appellate rights. See

Ford Motor Co. v. Woods, 165 Fed. Appx. 345 (5th Cir. 2006).

Diggs timely filed a Notice of Appeal on February 7, 2013. R 291.

II. STATEMENT OF THE ISSUES

Issue No. 1: The trial court erred in ordering arbitration because state law

defenses preclude an enforceable agreement.

Issue No. 2: The trial court erred in refusing to allow discovery regarding the

fairness of AAA proceedings involving Citigroup.

III. STATEMENT OF THE CASE

Plaintiff-Appellant Samantha Diggs brought this action in the District Court

below on May 24, 2012 for alleged violations of the Family and Medical Leave Act

of 1993, 29 U.S.C. §2601, et seq. (the “FMLA”) and Title VII, 42 U.S.C. 2000e, et

seq., concerning termination of her employment for complications related to her

pregnancy. R 7. Process was quickly served the following day on May 25, 2013, and

proof thereof was filed with the Court. R 20.

-2-


Defendant-Appellee Citigroup, Inc. filed an answer on June 14, 2012, and

indicated therein that the correct name of the immediate employer was a subsidiary

named Citicorp Credit Services, Inc. R 81. It also responded by filing a Motion to

Dismiss and Compel Arbitration on June 14, 2012 on the basis of a pre-suit mandatory

arbitration policy which required arbitration before the American Arbitration

Association (the “AAA”). R 22. The Motion was referred to United States Magistrate

Judge Renee Harris Toliver for proposed findings and recommendations on June 18,

2012. R 91. Plaintiff timely responded to the Motion with competent evidence that

mandatory employment arbitrations before the AAA were systematically biased in

favor of large employers such as Citigroup, and that the agreement was therefore

unenforceable under the state law defenses of fraud and/or mistake. R 92. Plaintiff-

Appellant relied on an affidavit and report by Dr. Alexander Colvin showing that the

expected value of Plaintiff’s claim in AAA arbitration was only 16% of the expected

value in federal court. The magistrate recommended arbitration without holding a

hearing to evaluate the evidence, and without allowing Plaintiff any discovery as to

Citigroup’s actual track record in arbitration on September 13, 2012. R 14.

Plaintiff timely objected to the magistrate’s recommendations. R 246. The trial

court overturned the magistrate’s groundless recommendation of sanctions, but

otherwise affirmed the recommendations, and dismissed the case. R 284-90.

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IV. STATEMENT OF FACTS

A. Underlying Case Background.

Plaintiff is a young African American woman who worked for either

Defendant-Appellee or its subsidiary, Citicorp Credit Services, Inc. (USA)("CCSI").

She filed this action complaining of FMLA violations and pregnancy discrimination

following various acts leading up to her termination immediately upon returning to

work after a hospitalization for a fall and pregnancy complications. Original

Complaint, ¶¶4.01-12. Her manager told her she was under orders to fire her if she

missed any more work due to herself or her children. Original Complaint, ¶4.12.

B. The Arbitration Agreement.

Defendant-Appellee moved to dismiss and to compel arbitration before the

AAA based on a collection of compulsory arbitration policies contained in its

evolving Employee Handbook. The original Handbook provides in relevant part:

2. Appointment of neutral arbitrator

The AAA shall appoint one neutral arbitrator from itsEmployment Dispute Resolution Roster unless both partiesrequest that a panel of three (3) arbitrators be appointed. Ifthe parties can't agree on the number of arbitrators, theAAA shall have the authority to determine the number ofarbitrators. In the event a panel of arbitrators is appointed,all decisions of the panel must be by a Majority and the useof the word "arbitrator" shall refer to the panel. It's theintent of the Company that the prospective arbitrators bediverse, experienced, knowledgeable with respect to

-4-


employment-related claims, neutral, and duly qualified toserve as arbitrators under the AAA's Rules.

Defendant's Appendix at 6 (emphasis added), R 40. The expectation of the parties

that the arbitrator should actually be neutral and fair is further emphasized in ¶3,

which provides in relevant part:

3. Qualifications of neutral arbitrator

No person shall serve as a neutral arbitrator in any matterin which that person has any financial or personal interestin the result of the proceeding. Prior to acceptingappointment the prospective arbitrator shall disclose anycircumstance likely to prevent a prompt hearing or to createa presumption of bias. Upon receipt of such information,the AAA either will replace that person or communicate theinformation to the parties for comment. Thereafter, theAAA may disqualify that person and its decision shall beconclusive.

Defendant's Appendix at 6, R40. Later versions of the Arbitration Policy contain

similar provisions, and defer the arbitrator selection procedure completely to AAA

rules. Defendant's Appendix at 12, ¶¶ 2-3, R 46.

C. Evidence Shows AAA Arbitration Has Repeatedly Proved Unfair.

Courts have enforced mandatory arbitration policies under Texas law and under

the Federal Arbitration Act, 9 U.S.C. §1 et seq., on the assumption that arbitration

offers a fair and faster alternative to traditional litigation. Recent litigation and

statistical evidence have uncovered powerful evidence to the contrary.

-5-


Plaintiff submitted an unrebutted affidavit to demonstrate the systematic bias

of AAA proceedings. R 115-21. Using national information obtained through the

AAA by virtue of disclosures mandated under California law, Cornell University

Professor and lawyer Alex Colvin has reviewed thousands of AAA employment

arbitrations, and previously offered affidavit testimony in another case filed in the

Northern District. His complete opinions are contained in his affidavit, which sets

forth his qualifications as an expert witness. R 115-21. Briefly, however, Dr. Colvin

confirmed through statistics that AAA employment arbitrations and arbitrators

through compelled agreements are systematically biased against employees, with the

effect being magnified in the case of “repeat” litigators. Summarizing his research

findings, which have been peer reviewed, Dr. Colvin has found:

• The employee win rate in arbitrations was only 21.4%, compared to winrates of 36.4% in federal court, or 43.8% in state court for discriminationcases.

• In cases where a recovery was obtained, the mean award in arbitrationwas only $109,858, versus $394,223 for federal litigation, or $595,594for state cases.

• Combining win rates and damage awards, the expected outcome inarbitration was only $23,548, versus an expected outcome of $143,497for federal court, and $260,871 for state court.

• Thus, an employee required to use AAA employment arbitration canexpect to recover only 9% of the amount she could get for her claims instate court, or 16.4% of her expected recovery in federal court.

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• These results are statistically significant, so that Dr. Colvin can say with99% certainty that AAA arbitrations are biased against employees inboth their outcomes and damage awards.

• Independent studies have shown employment arbitrators to besignificantly less likely to side with employees than other decisionmakers, including former jurors.

• Arbitrator bias is particularly likely where there is a "repeat player" asthe employer. In such situations, the employee win rate drops to 16.9%,versus 31.6% against “one-shot” employers.

• Where the employer had used an arbitrator before, the employee win ratefell to 12.0%, showing statistical significance at a 95% confidence level.

• In such cases, the damage expectation also fell, so that the expectedrecovery for an employee fell to $7,451, or about 5% of the expectedrecovery in federal court, or 2.9% of the expected recovery in state court.

• Dr. Colvin's conclusion is that the evidence supports the argument thatthere is a danger of arbitrator bias out of hopes of being selected as thearbitrator for multiple cases.

R 115-21.

Dr. Colvin's report comes at a time when consumer credit card arbitration has

also come under scrutiny by the Attorney General of Minnesota. Diggs requests the

Court take judicial notice that similar statistical studies have shown bias by the

National Arbitration Forum in the context of credit card consumer disputes, where

consumers win just .2% of the time. See "Banks vs. Consumers (Guess Who Wins),"

Business Week, June 5, 2008, R 161-90. The NAF was sued by the Attorney General

for the State of Minnesota for its handling of consumer disputes, and how it promoted

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its services to credit card companies and their attorneys. In response, the NAF has

agreed to a consent decree by which it will no longer handle credit card consumer

arbitration disputes. The AAA has announced it will no longer handle such claims as

well, apparently under threat of being added to that suit.

There is substantial reason to believe that Defendant-Appellee was aware of the

strong bias of the AAA in finding for employers and large companies that frequent

AAA arbitration. In fact, Defendant is currently the subject of an antitrust lawsuit

alleging it conspired with other credit card companies to universally require

arbitration of credit card disputes, virtually assuring it would win all such disputes.

The trial court in In re: Currency Conversion Fee Antitrust Litigation, Cause No. 05

Civ. 7116 (S.D. N.Y. 2012) denied summary judgment to Defendant on these claims.

A copy of this decision is included in the Record at 201. The matter was tried to the

court, and final arguments are set on May 7, 2013 according to the docket on PACER.

Based on the statistical findings of Dr. Colvin and the practices uncovered by

the Attorney General for Minnesota, Plaintiff believes Citigroup, Inc. and/or CCSI

knew, or had reason to know, that arbitration under the AAA would be substantially

biased against Diggs both at the time when it sought to contract for arbitration, and

when it filed its motion to compel arbitration. Plaintiff requested in its original

Response at 6 to the magistrate, and again to the district court, the right to conduct

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discovery on the track record of Defendant in arbitration,1 as well as its knowledge of

AAA overall statistics to further develop this issue before the trial court issued its

decision. R 263. The Magistrate ignored this request, declined to hold any kind of

evidentiary hearing on the merits of Dr. Colvin's findings, and did not conduct the

traditional analysis required under Daubert v. Merrell Dow Pharmaceuticals, 509 U.S.

579 (1993) to consider the reliability of Dr. Colvin's testimony. The trial court did

review Dr. Colvin’s report, and summarily rejected it without explaining any

deficiencies in the report’s methodology. R 285-86. The trial court also declined to

allow any discovery of Citigroup’s track record in AAA arbitrations, or its knowledge

as to systemic bias against employees.

V. SUMMARY OF THE ARGUMENT

1This information can be probative. For example, according to testimony offered by CathyVentrell-Monsees to the House Judiciary Committee on October 25, 2007, Pfizer won 97% of allAAA employment arbitrations, while Halliburton won 82% of its arbitrations. The testimony isavailable online at http://judiciary.house.gov/hearings/pdf/Ventrell-Monsees071025.pdf.

-9-


The cartoon at left summarizes

the injustice described below. The

trial court erred in ordering

arbitration to a forum which

Plaintiff-Appellant demonstrated

through statistical evidence is

systemically biased against

employees subjected to mandatory

employment arbitration policies. The

statistical findings are particularly

significant in cases where the employer is a large corporation, which is a “repeat

player” within the context of arbitrations. The trial court erred in ignoring competent

statistical evidence showing bias to a 99% level of certainty both as to findings of

liability and lower damage amounts. The combined effects lower Plaintiff-

Appellant’s expected recovery in arbitration to only 13-16% of what she could expect

in federal court. This evidence is a defense to formation of an agreement to arbitrate

under Texas law, and violates federal policy. The trial court further erred in denying

any discovery to further bolster the statistical findings, and refine them for this case.

VI. ARGUMENT

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Issue No. 1: The trial court erred in ordering arbitration because state lawdefenses preclude an enforceable agreement.

A. Standard of Review.

The Court generally reviews a district court's grant or denial of a motion to

compel arbitration de novo. Am. Heritage Life Ins. Co. v. Lang, 321 F.3d 533, 536 (5th

Cir. 2003). However, although the determination is reviewed de novo, the standard

of review for any factual findings underlying that determination is “clear error.”

Republic Ins. Co. v. PAICO Receivables, LLC, 383 F.3d 341, 344 (5th Cir.

2004)(reviewing factual finding of detriment and prejudice for clear error). MC Asset

Recovery LLC v. Castex Energy, Inc. (In re Mirant Corp.), 613 F.3d 584, 588 (5th Cir.

Tex. 2010). A finding is clearly erroneous “when although there is evidence to

support it, the reviewing court on the entire evidence is left with a definite and firm

conviction that a mistake has been committed.” Anderson v. City of Bessemer City,

N.C., 470 U.S. 564, 105 S. Ct. 1504, 1511, 84 L. Ed. 2d 518 (1985) (quoting United

States v. United States Gypsum Co., 333 U.S. 364, 394-95, 92 L. Ed. 746, 68 S. Ct.

525 (1948)).

B. The Trial Court Erred in Excluding Dr. Colvin’s Report.

The trial court erred by summarily excluding the affidavit and report of Dr.

Alexander Colvin under its purported analysis using Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993) and Kumho Tire Co. v. Carmichael, 526

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U.S. 137 (1999) to evaluate the admissibility of expert testimony under Rule 702. R

285-86.

Rule 702 of the Federal Rules of Evidence provides:

Rule 702. Testimony by Expert Witnesses

A witness who is qualified as an expert by knowledge, skill,experience, training, or education may testify in the form ofan opinion or otherwise if:

(a) the expert’s scientific, technical, or otherspecialized knowledge will help the trier of fact tounderstand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principlesand methods; and

(d) the expert has reliably applied the principles andmethods to the facts of the case.

Fed. R. Evid. 702. Daubert set forth a non-exclusive checklist for trial courts to use

in assessing the reliability of scientific expert testimony. The specific factors

explicated by the Daubert court are (1) whether the expert's technique or theory can

be or has been tested—that is, whether the expert's theory can be challenged in some

objective sense, or whether it is instead simply a subjective, conclusory approach that

cannot reasonably be assessed for reliability; (2) whether the technique or theory has

been subject to peer review and publication; (3) the known or potential rate of error

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of the technique or theory when applied; (4) the existence and maintenance of

standards and controls; and (5) whether the technique or theory has been generally

accepted in the scientific community. The court in Kumho held that these factors

might also be applicable in assessing the reliability of nonscientific expert testimony,

depending upon “the particular circumstances of the particular case at issue.” 526 U.S.

at 151.

As noted in the Committee Notes to the 2000 rule changes, courts have found

other facts relevant in determining whether expert testimony is sufficiently reliable to

be considered by the trier of fact. These factors include:

(1) Whether experts are “proposing to testify about mattersgrowing naturally and directly out of research they haveconducted independent of the litigation, or whether theyhave developed their opinions expressly for purposes oftestifying.” Daubert v. Merrell Dow Pharmaceuticals, Inc.,43 F.3d 1311, 1317 (9th Cir. 1995).

(2) Whether the expert has unjustifiably extrapolated froman accepted premise to an unfounded conclusion. SeeGeneral Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)(noting that in some cases a trial court “may conclude thatthere is simply too great an analytical gap between the dataand the opinion proffered”).

(3) Whether the expert has adequately accounted forobvious alternative explanations. See Claar v. BurlingtonN.R.R., 29 F.3d 499 (9th Cir. 1994) (testimony excludedwhere the expert failed to consider other obvious causes forthe plaintiff's condition). Compare Ambrosini v.Labarraque, 101 F.3d 129 (D.C.Cir. 1996) (the possibility

-13-


of some uneliminated causes presents a question of weight,so long as the most obvious causes have been consideredand reasonably ruled out by the expert).

(4) Whether the expert “is being as careful as he would bein his regular professional work outside his paid litigationconsulting.” Sheehan v. Daily Racing Form, Inc., 104 F.3d940, 942 (7th Cir. 1997). See Kumho Tire Co. v.Carmichael, 119 S.Ct. 1167, 1176 (1999) (Daubert requiresthe trial court to assure itself that the expert “employs in thecourtroom the same level of intellectual rigor thatcharacterizes the practice of an expert in the relevantfield”).

(5) Whether the field of expertise claimed by the expert isknown to reach reliable results for the type of opinion theexpert would give. See Kumho Tire Co. v. Carmichael, 119S.Ct. 1167, 1175 (1999) (Daubert's general acceptancefactor does not “help show that an expert's testimony isreliable where the discipline itself lacks reliability, as, forexample, do theories grounded in any so-called generallyaccepted principles of astrology or necromancy.”); Moorev. Ashland Chemical, Inc., 151 F.3d 269 (5th Cir. 1998) (enbanc) (clinical doctor was properly precluded fromtestifying to the toxicological cause of the plaintiff'srespiratory problem, where the opinion was not sufficientlygrounded in scientific methodology); Sterling v. VelsicolChem. Corp., 855 F.2d 1188 (6th Cir. 1988) (rejectingtestimony based on “clinical ecology” as unfounded andunreliable).

Fed. R. Evid. 702 Committee Notes on Rules - 2000 Amendment.

As the court stated in In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 744

(3d Cir. 1994), proponents “do not have to demonstrate to the judge by a

preponderance of the evidence that the assessments of their experts are correct, they

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only have to demonstrate by a preponderance of evidence that their opinions are

reliable. . . . The evidentiary requirement of reliability is lower than the merits

standard of correctness.” See also Daubert v. Merrell Dow Pharmaceuticals, Inc., 43

F.3d 1311, 1318 (9th Cir. 1995) (scientific experts might be permitted to testify if they

could show that the methods they used were also employed by “a recognized minority

of scientists in their field.”); Ruiz-Troche v. Pepsi Cola, 161 F.3d 77, 85 (1st Cir.

1998) (“Daubert neither requires nor empowers trial courts to determine which of

several competing scientific theories has the best provenance.”). The Supreme Court

in Daubert declared that the “focus, of course, must be solely on principles and

methodology, not on the conclusions they generate.” 509 U.S. at 595. The Committee

Notes also explain:

The amendment does not alter the venerable practice ofusing expert testimony to educate the factfinder on generalprinciples. For this kind of generalized testimony, Rule 702simply requires that: (1) the expert be qualified; (2) thetestimony address a subject matter on which the factfindercan be assisted by an expert; (3) the testimony be reliable;and (4) the testimony “fit” the facts of the case.

Fed. R. Evid. 702 Committee Notes on Rules - 2000 Amendment.

This Court should reject the trial court’s summary dismissal of Dr. Colvin’s

findings. R. 285-86. The trial court notably fails to address any specific deficiency

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in Dr. Colvin’s methodology, which should be the focus of any proper Daubert

analysis.

It is well settled that statistical evidence is routinely considered by courts in the

context of discrimination litigation. See Furnco Construction Corp. v. Waters, 438

US 567, 98 S.Ct. 2943, 57 L.Ed. 2nd 957 (1978). The Supreme Court and the Fifth

Circuit have noted that claims of disparate impact under Title VII must, of necessity,

rely heavily on statistical proof. See Watson v. Fort Worth Bank and Trust, 487 U.S.

977, 987, 101 L. Ed. 2d 827, 108 S. Ct. 2777 (1988); Munoz v. Orr, 200 F.3d 291,

300 (5th Cir. Tex. 2000), cert denied, 531 U.S. 812 (2000). Where gross statistical

disparities can be shown, they alone may in a proper case constitute prima facie proof

of a pattern or practice of discrimination. Hazelwood School District v. United States,

433 U.S. 299, 307-08 (1977). Thus, it is appropriate to demonstrate through statistics

that expected recoveries in compelled employment arbitration using the AAA results

in drastically reduced expectations of recovery.

Defendant has not rebutted Dr. Colvin’s affidavit with a competent expert

witness, and the trial court has not identified any flaws in his findings or

methodologies. The trial court declined an offer from Dr. Colvin to testify in support

of his research in this case, and seemingly ignored that his research has been accepted

-16-


by peer review publications, most recently in The Journal of Empirical Legal Studies.2

R 262. Such a publication is precisely where one would expect serious academic

studies of this nature to be published.

Dr. Colvin’s report clearly passes muster under the traditional Daubert tests for

reliability. Dr. Colvin is both a lawyer and a professor at Cornell University, a well

regarded academic institution. R 115. The statistical analysis used by Dr. Colvin is

a mainstay of modern academic research. His research was developed initially for

academic purposes independent of the litigation, and has been subjected to peer

review. R 115. His findings are based principally on a 99% level of statistical

certainty, and he notes where findings are only significant to a 95% level of certainty.

R 117-20. Dr. Colvin addresses various potential alternative reasons for the findings.

R 118-20. Even if his review of alternative explanations were not fully exhaustive,

it should be noted that: “Omission of variables may render an analysis less probative

than it might otherwise be, but, absent some other infirmity, an analysis that accounts

for the major factors will be admissible.” Bazemore v. Friday, 478 U.S. 385, 106 S.

Ct. 3000, 3009, 92 L. Ed. 2d 315 (1986) (Brennan, J., joined by all other members of

the Court, concurring in part); Tyler v. Union Oil Co., 304 F.3d 379, 392-393 (5th Cir.

Tex. 2002).

2Volume 8, Issue 1, 1-23, March 2011.

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Dr. Colvin’s statistics are specifically addressed to the AAA, which is the

exclusive organization identified in the arbitration policy in this case. R 115-16. His

statistics were taken from published data relating to employment litigation under

mandatory policies, such as the one at issue in this case. R 115-16. Citigroup is

precisely the type of “repeat party” which his research indicates is likely to benefit

most from arbitration. R 115-21. The trial court ignored Plaintiff’s request to conduct

discovery specifically tailored to Defendant-Appellee’s win rate in arbitration, and to

its knowledge as to the advantages AAA arbitration was giving it over its employees.

R 263.

Further, it should be noted that other writers, researchers and even former

judges have expressed concern about the practical effects of the “repeat player”

phenomena. As noted in a report by the Texas Watch Foundation:

Arbitrators must also grapple with the "repeat player"phenomena, where one arbitrator is repeatedly chosen tohear a company's disputes. Once a company wins a disputebefore a certain arbitrator, the company may repeatedlychoose the arbitrator.30 This gives the arbitrator thefinancial incentive to rule for the company. According toMichael Young, co-chair of JAM's Committee onProfessional Standards and Public Policy, "the risks of therepeat player advantage are real and can be disturbing."31

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Feldman, Cris, The Consumer Pitfalls of Binding Arbitration, A Report by the Texas

Watch Foundation.3 The referenced footnotes explain:

30 The inverse is true as well. When an arbitratorrules for a plaintiff the defendant will not rehire thearbitrator. In a study of HMO disputes in California,arbitrators who awarded damages exceeding $1 million forthe plaintiff did not hear additional HMO cases. MarcusNieto & Margaret Hosel, Arbitration In California ManagedHealth Care Systems, 22-23 (2000).

31 Id.

Id.

Similar comments were noted by former West Virginia Chief Justice Richard

Neely in his article entitled “Arbitration and the Godless Bloodsuckers” printed in The

West Virginia Lawyer recounting his experience as an arbitrator when he limited his

award of costs to credit card companies on two occasions.4 Simply stated, he was

never picked again.

Thus, the trial court has clearly erred in excluding Dr. Colvin’s affidavit and

report under Daubert without a hearing, and without so much as mentioning any

infirmity in his methodology. See, Mukhtar v. Cal. State Univ., 319 F.3d 1073, 1074

3Article available on the Internet at the following website:http://www.texaswatch.org/wordpress/wp-content/uploads/2009/12/Abitrationreportfinal-2.pdf.

4Neely, Richard, “Arbitration and the Godless Bloodsuckers”, The West Virginia Lawyer,September/October 2006, available on the Internet at the following website:http://educationcenter2000.com/debt_collectors/bloodsuckers.pdf.

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(9th Cir. 2003), amending 299 F.3d 1053, 2066 (9th Cir. 2002)(holding some

reliability determination must be apparent from the record before a decision can be

upheld); see also Tyler v. Union Oil Co. of Cal., 304 F.3d 379 (5th Cir. 2002)(trial

court affirmed in admitting statistical data, noting that “Omission of variables may

render an analysis less probative than it might otherwise be, but, absent some other

infirmity, an analysis that accounts for the major factors will be admissible.”).

C. The Trial Court Erred in Adopting a Conclusive FederalPresumption to the Formation of the Underlying Contract.

The trial court erroneously applied the federal policy of favoring arbitration

agreements to disregard Plaintiff’s defenses to the formation of an agreement to

arbitrate. R 287. A party attempting to compel arbitration must establish a valid

arbitration agreement whose scope includes the claims asserted. In re AdvancePCS

Health L.P., 172 S.W.3d 603, 605 (Tex. 2005). Under the FAA, an agreement to

arbitrate is valid if it meets the requirements of the general contract law of the

applicable state. First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 131 L.

Ed. 2d 985, 115 S. Ct. 1920 (1995); In re AdvancePCS Health L.P., 172 S.W.3d 603,

606 (Tex. 2005). Under the FAA, an arbitration agreement may be invalidated and

deemed unenforceable “upon such grounds as exist at law or in equity for the

revocation of any contract.” 9 U.S.C. § 2. Typical contract defenses, “such as fraud,

duress, or unconscionability, may be applied to invalidate arbitration agreements

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without contravening § 2 [of the FAA].” Doctor's Assocs., Inc. v. Casarotto, 517 U.S.

681, 687 (1996). Issues related to whether a binding contract to arbitrate has been

formed and, if so, whether there are any viable defenses to the enforcement of the

arbitration agreement are generally determined by state contract law. In re Dillard

Dep’t Stores, Inc., 186 S.W.3d 514, 515 (Tex. 2006).

Notably, the often invoked “policy in favor of arbitration agreements” upon

which the trial court and magistrate relied does not apply under state or federal law

when a court is examining the threshold question of whether an arbitration agreement

exists. Granite Rock Co. v. Int’l Brotherhood of Teamsters, 130 S. Ct. 2847 (2010);

Morrison v. Amway Corp., 517 F.3d 248, 254 (5th Cir. 2008); In re Morgan Stanley

& Co., 293 S.W.3d 182, 185 (Tex. 2009). As the Texas Supreme Court has explained:

... the United States Supreme Court has ... repeatedlyemphasized that arbitration “is a matter of consent, notcoercion,” that the Act “does not require parties to arbitratewhen they have not agreed to do so,” and its purpose is tomake arbitration agreements “as enforceable as othercontracts, but not more so.”

In re Merrill Lych Trust Co. FSB, 235 S.W.3d 185, 192 (Tex. 2007), citing Volt Info.

Scis., Inc. v. Bd. of Trs. of Leland Stanford Junior Univ., 489 U.S. 468, 479, 109 S.

Ct. 1248, 103 L. Ed. 2d 488 (1989), EEOC v. Waffle House, Inc., 534 U.S. 279, 293,

122 S. Ct. 754, 151 L. Ed. 2d 755 (2002) (quoting Volt, 489 U.S. at 478), and Prima

Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 404 n.12, 87 S. Ct. 1801, 18

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L. Ed. 2d 1270 (1967). Thus, the trial court erred in applying a supposed federal

policy to ignore evidence of fraud, mistake, or unconscionability, which are defenses

to the formation of a contract.

D. The Agreement is Unenforceable due to Fraud, Mistake, or PriorBreach.

The trial court erred by enforcing an alleged agreement to arbitrate despite

competent expert statistical evidence of fraud or mistake which was not contradicted

by testimony from the Defendant. He did so without holding any hearings, listening

to any testimony, or identifying any specific deficiencies under Daubert to discredit

the reliability of Dr. Colvin’s testimony.

Plaintiff presented competent evidence in support of her contention the

agreement to arbitrate should be set aside due to fraud or mistake. In light of the

findings of Dr. Colvin which were presented in a competent affidavit, the agreement

to arbitrate is unenforceable due to fraud or mistake which touches directly upon the

agreement to arbitrate itself. See Washington Mutual Fin. Group v. Bailey, 364 F.3d

260, 266 n.4 (5th Cir. 2004). The Employment Arbitration Policy clearly calls for the

appointment of a neutral arbitrator, with the apparent expectation of the parties that

any proceedings be a fair substitute for rights litigated in court. R 40, 223. Defendant

retained the right to modify the rules of arbitration, and had a duty of good faith and

fair dealing to promulgate or adopt rules which would lead to a fair and neutral

-22-


proceeding. R 40; see Goudie v. HNG Oil Co., 711 S.W.2d 716, 718 (Tex. App.-El

Paso 1986, writ ref'd n.r.e.) (employment contract containing provisions that make

employer's determination final and binding may be attacked by showing bad faith);

Associated Milk Producers v. Nelson, 624 S.W.2d 920, 926 (Tex. Civ. App.-Houston

[14th Dist.] 1981, writ ref'd n.r.e.) (same).

As noted above, statistical evidence is routinely considered by courts in the

context of discrimination litigation. See Furnco Construction Corp. v. Waters, 438

US 567, 98 S.Ct. 2943, 57 L.Ed. 2nd 957 (1978). Where gross statistical disparities

can be shown, they alone may in a proper case constitute prima facie proof of a pattern

or practice of discrimination. Hazelwood School District v. United States, 433 U.S.

299, 307-08 (1977). Indeed, in disparate impact cases, statistical evidence is the

norm. See Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 987, 101 L. Ed. 2d

827, 108 S. Ct. 2777 (1988); Munoz v. Orr, 200 F.3d 291, 300 (5th Cir. Tex. 2000),

cert denied, 531 U.S. 812 (2000). In this case, use of statistics is virtually the only

practical way to show systemic organizational bias against employees by an

arbitration organization.

Dr. Colvin’s statistics show the promises and/or expectations of fairness were

simply false, in that AAA arbitrations are and have been systematically biased in favor

of large employers such as Defendant. R 115-21. Indeed, his affidavit demonstrates

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Plaintiff’s claims in AAA arbitration would be worth, on average, only 16.4% as

much if she were allowed to bring them in federal court. R 118. By requiring

arbitration using rules and arbitrators which have proven so substantially biased in its

favor, Defendant essentially sought to steal Plaintiff’s claims, and leave her with a tip.

When the “repeat player” effect of Defendant as a large corporation using AAA on

multiple occasions is factored in, the expected recovery drops even further, to 13.3%

of a federal court expected recovery.5 Pl. App. pp. 3-6, R 117-20. Thus, at a

minimum, Defendant has breached its duty to provide rules leading to fair arbitration

results.

Based on Dr. Colvin’s findings, and in light of the pending litigation alleging

a conspiracy by major banks to force arbitration agreements upon credit card holders,

Plaintiff-Appellant believes Defendant knows, and has known, that it is substantially

more likely to win in AAA employment arbitration, and that this is why it has

continued to promulgate its policy both in the context of employment agreements and

in connection with its credit card business. Notably, Defendant has not been bashful

in seeking to escape other arbitral forums such as FINRA, where it believes there is

a substantial risk of a sizeable award against it. See e.g., Citigroup Global Markets,

Inc. v. North Carolina Eastern Municipal Power Agency, Cause No. 13-01703

5Expected recovery of $19,146 vs. $143,497 in federal court.

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(S.D.N.Y. 2013); Citigroup Global Markets, Inc v. Abbar, Cause No. 11-06993

(S.D.N.Y. 2013).6

Plaintiff was unaware of the systematic bias of AAA in favor of large

employers, and relied on the representation of neutrality in her decision to enter the

contract. R 223-24. It was never her intention to simply waive her statutory right to

work in a discrimination free workplace. R 224.

Even if Defendant was not aware that its arbitration policy was fundamentally

flawed through systematic AAA bias, an agreement must be set aside under Texas law

where there is a mutual material mistake of fact. Myrad Props., Inc. v. LaSalle Bank

Nat’l Ass’n, 300 S.W.3d 746, 751 (Tex. 2009). A mutual mistake occurs when both

parties to an agreement were under a misconception or ignorance of a material fact.

Id. Given the repeated assurances of neutrality and fairness in the Policy as well as the

84-87% reduction in the value of her claims, the Court must find that such

misconceptions were material, and set aside the agreement.

The trial court erred in disregarding competent Circuit and state appellate

authority in support of Plaintiff’s contention that Courts have repeatedly refused to

enforce arbitration agreements where either the rules of arbitration or evidence shows

6See also Internet article “Judge Blocks Auction Rate Arbitration against Citigroup” at:http://www.reuters.com/article/2013/05/06/us-citigroup-arbitration-idUSBRE9450RB20130506.

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systematic bias in favor of the employer. For example, the court in Hooters of

America, Inc. v. Phillips, 173 F.3d 933 (4th Cir. 1999) refused to enforce an

arbitration agreement where Hooters failed to promulgate adequate rules of

arbitration, choosing instead to make one-sided rules more burdensome to plaintiffs,

and then providing that the employee could only pick an arbitrator from a company-

approved list. The result was a system which the court denounced as one where “the

selection of an impartial decision maker would be a surprising result.” 173 F.3d at

939. Finding that the plaintiff in that case could legitimately expect that arbitration

would entail procedures so wholly one-sided as to present a “stacked deck,” the court

rescinded the agreement. 173 F.3d at 940.

The court in Walker v. Ryan’s Family Steak Houses, Inc., 400 F.3d. 370 (6th

Cir. 2005) followed the decision in Hooters, supra, and declined to enforce an

arbitration agreement where the defendant selected an arbitration provider for which

it supplied 42% of the provider’s business, thereby exercising an undue influence over

the selection of arbitrators.

In Tri-Star Petrol. Co. v. Tipperary Corp., 107 S.W.3d 607 (Tex. App. – El

Paso 2003, pet. denied), the court found that a party exercised undue influence over

an accounting firm that had been hired under an arbitration agreement to perform an

accounting of production on a natural gas project. The court found that the party’s

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interference constituted a material breach of the arbitration agreement sufficient to

justify (1) vacation of the arbitration award based on the accounting and (2) a refusal

to order re-arbitration.

If anything, Dr. Colvin’s extensive analysis of actual data is stronger than the

conclusions reached in Hooters, Walker, and Tri-Star Petrol, which were based

merely on the surmise that stacked rules and selection procedures or financial

influence would result in unfair outcomes. Dr. Colvin’s research involves the review

of actual outcomes, and has concluded that forced AAA arbitrations have actually

resulted in a biased forum with skewed results in favor of employers. As in Hooters,

supra, the statistics suggest Plaintiff’s chance of getting a truly neutral arbitrator under

AAA proceedings would be a statistical fluke, since Dr. Colvin shows statistical bias

to a 99% level of confidence. Accordingly, the trial court’s decision to order

arbitration must be reversed.

E. The Arbitration Policy is Unconscionable.

The trial court erred in failing to set aside the arbitration agreement as

unconscionable. Because arbitration agreements are only valid if they are enforceable

under general contract principles, they may be set aside when they are

unconscionable. 9 U.S.C. § 2 (arbitration agreements under FAA are “valid,

irrevocable, and enforceable, save upon such grounds as exist at law or in equity for

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the revocation of any contract”); Tex. Civ. Prac. and Rem. Code § 171.001(b)

(arbitration agreements can be revoked “on a ground that exists at law or in equity for

the revocation of a contract”). While the term “unconscionable” has no precise legal

definition, see Southwestern Bell Tel. Co. v. DeLanney, 809 S.W.2d 493, 498 (Tex.

1991), it generally describes a “contract that is unfair because of its overall

one-sidedness or the gross one-sidedness of its terms.” Pony Express Courier Corp.

v. Morris, 921 S.W.2d 817, 821 (Tex. App.–San Antonio 1996, no writ) (Gonzales,

J., concurring) (citing Currey v. Lone Star Steel Co., 676 S.W.2d 205, 213 (Tex.

App.–Ft. Worth 1984, no writ)). The basic test for unconscionability is whether,

considering the parties’ general commercial background and commercial needs of the

particular case or trade, the clause at issue is so one-sided that it is unconscionable

under the circumstances existing at the time the contract was made. In re First Merit

Bank, N.A., 52 S.W.3d 749, 757 (Tex. 2001) (orig. proceeding).

Unconscionability includes two aspects: (1) procedural unconscionability,

which refers to the circumstances surrounding the adoption of the arbitration

provision, and (2) substantive unconscionability, which refers to the fairness of the

arbitration provision itself. In re Halliburton Co., 80 S.W.3d 566, 571 (Tex. 2002).

Courts may consider both procedural and substantive unconscionability of an

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arbitration clause in evaluating the validity of an arbitration provision. In re

Halliburton Co., 80 S.W.3d 566, 571-572 (Tex. 2002).

In this case, the arbitration policy was mandatory, non-negotiable, and made a

condition of employment by its express terms. R 57, 223. Although the EEOC has

expressed concern about such policies in the past, courts have allowed employers to

use such policies. Policy Statement on Mandatory Binding Arbitration of Employment

Discrimination Disputes, EEOC Notice No. 915.00 (July 10, 1997); In re Halliburton

Co., 80 S.W.3d 566, 571 (Tex. 2002). Nevertheless, the Court may consider the

procedural aspect of the policy when reviewing the substantive unconscionability of

the claim.

An arbitration agreement covering statutory claims is valid so long as “the

arbitration agreement does not waive substantive rights and remedies of the statute

and the arbitration procedures are fair so that the employee may effectively vindicate

his statutory rights.” In re Halliburton, 80 S.W.3d at 572; In re Poly-America, L.P.,

262 S.W.3d 337, 352 (Tex. 2008). Where an arbitration policy incorporates a scheme

to limit an employer’s damages or risk of liability in a fashion where the scales of

justice are “tipped so that the employee’s benefits under the statute are substantially

reduced,” the policy cannot be enforced. In re Poly-America, L.P., 262 S.W.3d 337,

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352-353 (Tex. 2008), quoting Hazelwood v. Mandrell Indus. Co., 596 S.W.2d 204,

206 (Tex. Civ. App.--Houston [1st Dist.] 1990, writ ref'd n.r.e.).

Dr. Colvin’s statistical evidence demonstrates that mandatory employment

arbitration polices requiring use of the AAA are, in fact, substantively unconscionable

because they systematically tip the scales in favor of employers. His affidavit

concludes with 99% statistical certainty that mandatory employment claims are more

likely to be decided in favor of the employer than in state or federal courts, and that

even if a plaintiff is able to recover in arbitration, her damages will be less. His

analysis of thousands of AAA cases establishes that the expected recovery for an

employee in mandatory arbitration is only 16% of that expected in federal court, or

9% versus state court. R 115-21. The expected recovery drops even more to

approximately 12.9% of the expected federal recovery where, as here, Defendant is

a large corporation likely to be viewed as a “repeat player” before the AAA. R 119.

Defendant’s arbitration policy has essentially stolen Plaintiff’s claims, and left her a

tip. Such a result is unconscionable, and should not be enforced by the Court.

F. Mandatory AAA Employment Arbitration Violates Public Policy.

Even if the Court finds that the parties agreed to arbitrate, it must consider

whether any federal statute or policy renders the claims nonarbitrable. Wash. Mut.

Fin. Group, LLC v. Bailey, 364 F.3d 260, 263 (5th Cir. Miss. 2004). In light of Dr.

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Colvin’s statistical findings, it is clear that enforcing mandatory AAA employment

arbitration policies is undermining the public policies of enforcing employment

statutes. See, In re Poly-America, L.P., 262 S.W.3d 337, 352 (Tex. 2008). Whether a

contract violates public policy is a question of law. Id.

The public policy of enforcing employment discrimination laws is well known,

and is frequently protected by statutes or regulations which expressly prevent their

substantive waiver. See, e.g. 29 C.F.R. §825.220(d)(“Employees cannot waive, nor

may employers induce employees to waive, their rights under FMLA.”); 29 U.S.C.

§626(f)(ADEA non-waiver provision); see also, In re: Poly-America, L.P., 262

S.W.3d 337 (noting courts view anti-retaliation provisions of Worker’s Compensation

laws to be non-waivable). Case law also confirms an employee may not be required

to waive Title VII rights as a condition of employment. See e.g. Adams v. Philip

Morris, Inc., 67 F.3d 580, 584 (6th Cir. 1995) (“It is the general rule in this circuit that

an employee may not prospectively waive his or her rights under either Title VII or

the ADEA.”); Kendall v. Watkins, 998 F.2d 848, 851 (10th Cir. 1993)(same).

In cases involving statutory rights, blind enforcement of arbitration agreements

in the fashion the trial court undertook would undermine congressional intent as

reflected in Title VII and the FMLA. See Cole v. Burns Int'l Sec. Servs., 105 F.3d

1465, 1473 (D.C. Cir. 1997). As the Fifth Circuit explained in Williams v. Cigna Fin.

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Advisors, 197 F.3d 752, 760-761 (5th Cir. Tex. 1999), the whole argument in allowing

arbitration of employment disputes rests upon the assumption that arbitrations will be

a fair alternative to litigation in the courts. As the Texas Supreme Court recently

concurred in In re: Poly-America, L.P., 262 S.W.3d 337 (Tex. 2008):

An arbitration agreement covering statutory claims is validso long as “the arbitration agreement does not waivesubstantive rights and remedies of the statute and thearbitration procedures are fair so that the employee mayeffectively vindicate his statutory rights.”

Id., quoting In re Halliburton Co., 80 S.W.3d 566 (Tex. 2002).

As the Tenth Circuit explained along similar lines:

Thus, Gilmer reaffirmed the Arbitration Act's presumptionin favor of enforcing agreements to arbitrate-even wherethose agreements cover statutory claims. While werecognize this presumption, we conclude that it is notwithout limits. As Gilmer emphasized, arbitration ofstatutory claims works because potential litigants have anadequate forum in which to resolve their statutory claimsand because the broader social purposes behind the statuteare adhered to. This supposition falls apart, however, if theterms of an arbitration agreement actually prevent anindividual from effectively vindicating his or her statutoryrights.

Shankle v. B-G Maint. Mgmt. of Colo., Inc., 163 F.3d 1230, 1234 (10th Cir. 1990)

(citations omitted); see also Paladino v. Avnet Computer Techs., Inc., 134 F.3d 1054,

1060 (11th Cir. 1998) (holding that arbitration agreement which proscribed award of

Title VII damages was unenforceable because it was fundamentally at odds with the

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purposes of Title VII); Cole v. Burns Int'l Sec. Servs.,105 F.3d 1465, 1468, 323 U.S.

App. D.C. 133 (D.C. Cir. 1997) (“We do not read Gilmer as mandating enforcement

of all mandatory agreements to arbitrate statutory claims; rather we read Gilmer as

requiring the enforcement of arbitration agreements that do not undermine the relevant

statutory scheme.”). The Second Circuit recently relied on this rationale in setting

aside a class action waiver of anti-trust claims, holding that it would essentially

frustrate the ability of plaintiffs to enforce their rights. See Italian Colors Rest. v. Am.

Express Travel Related Servs. Co., 667 F.3d 204, 216 (2d Cir. 2012), cert. granted,

133 S. Ct. 594, 184 L. Ed. 2d 390 (U.S. 2012). Oral argument before the Supreme

Court occurred in February, and a decision is expected this term.

Thus, a court cannot enforce an agreement to arbitrate if the specific arbitral

forum provided under the agreement does not “allow for the effective vindication of

that claim.” Floss v. Ryan's Family Steak Houses, Inc., 211 F.3d 306, 313 (6th Cir.

2000); Walker, 400 F.3d at 313. “At a minimum, statutory rights include both a

substantive protection and access to a neutral forum in which to enforce those

protections.” Cole, 105 F.3d at 1482. Thus, where the forum is not neutral, the

agreement to arbitrate is unenforceable. Walker, 400 F.3d at 313.

Professor Colvin’s statistical research shows that despite the notoriety of the

AAA, employment arbitrations with the AAA under mandatory policies are inherently

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unfair to employees. By hoodwinking employees such as Diggs into accepting

arbitration, the statistics show with a 99% level of confidence she is prejudiced in

arbitration both in terms of her likelihood to win and her expected total recovery.

Indeed, her expected total recovery in arbitration against any employer is only 16.4%

of what she could expect in federal court, and 9% of what she could expect in state

court. R 118. Where, as here, she is pitted against an obvious repeat player so that

the arbitrator is tempted by the potential fruit of repeat business, her expected

recovery drops even further to 12.9% of her expected recovery in federal court.

Further, were the Court to adopt the trial court and magistrate’s approach of

simply ignoring any statistical evidence of unfairness, it would effectively allow

employers to “opt out” of civil rights altogether. The Defendant and its consortium

of banks succeeded in doing this within the realm of credit card disputes by driving

the win rate for consumers all the way to .2% before the Attorney General for

Minnesota stopped them. See “Banks vs. Consumers (Guess Who Wins),” Business

Week, June 5, 2008. R 161-90. Such a result in employment litigation would

effectively make all of Plaintiff’s federal civil rights economically unenforceable.

Indeed, one could argue that the expected recovery from AAA arbitrations is already

so low as to seriously inhibit the ability to enforce her rights.

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Since Diggs has shown by competent evidence that the agreement to arbitrate

in this case has substantively impaired her ability to enforce her statutory employment

rights, the Court should reverse the trial court, and remand this case for trial on the

merits.

Issue No. 2: The trial court erred in refusing to allow discovery regardingthe fairness of AAA proceedings involving Citigroup.

A. Standard of Review.

The Court generally reviews a district court's grant or denial of discovery under

a deferential abuse of discretion standard. See Geiserman v. MacDonald, 893 F.2d

787, 789 (5th Cir. 1990); see also Hodges v. United States, 597 F.2d 1014, 1018 (5th

Cir. 1979).

B. The Trial Court Abused its Discretion in Denying Discovery.

The trial court abused its discretion in refusing to allow Plaintiff to conduct

discovery regarding the specific record of Defendant-Appellee in past AAA

arbitrations, as well as its knowledge of bias in favor of large employers. Plaintiff

timely made this request in her response to the original Motion, and again in her

objections to the Magistrate’s recommendations. R 102, 104, 263.

At least limited discovery has been allowed by other circuit courts into the

related issue of evident partiality following an adverse award. For example, the Ninth

Circuit allowed limited discovery on such issues in Fidelity Federal Bank, FSB v.

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Durga Ma Corp., 386 F.3d 1306, 1310 (9th Cir. 2004). The Second Circuit has held

that “clear evidence of impropriety” must be presented before post-award discovery

into potential arbitrator bias will be permitted. Lucent Technologies Inc. v. Tatung

Co., 379 F.3d 24, 31 (2d Cir. 2004), citing with approval, Andros Compania

Maritima, S.A. v. Marc Rich & Co., 579 F.2d 691, 702 (2d Cir. 1978). However, even

under the Second Circuit’s more restrictive “clear evidence of impropriety,” Dr.

Colvin’s findings of systemic bias to a 99% statistical level of certainly are sufficient

to justify an examination of the specific track record of Defendant-Appellee in

employment arbitrations before the AAA. Discovery would further be warranted in

light of the pending anti-trust litigation alleging a conspiracy to impose binding

arbitration of credit card disputes. Thus, the trial court abused its discretion by

denying the requested discovery, and this Court should reverse and remand to the trial

court to allow discovery into the track record and knowledge of Defendant-Appellee.

VII. CONCLUSION

This Court should reverse the trial court’s judgment, and remand this case to the

district court for trial on the merits. Alternatively, the Court should reverse and remand

for further development of the record, including a full Daubert hearing, and full

discovery on the track record of Defendant-Appellee in employment arbitration before

the AAA, as well as its knowledge of systemic bias.

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Respectfully submitted,

KILGORE & KILGORE, PLLC

By: /s/ John H. Crouch, IV JOHN H. CROUCH, IVState Bar No. 00783906

Kilgore Law Center3109 Carlisle, Suite 200Dallas, Texas 75204Telephone: 214/969-9099Telecopier: 214/953-0133

ATTORNEYS FOR PLAINTIFF-APPELLANT SAMANTHA DIGGS

Certificate of Service

The undersigned attorney hereby certifies that on May 13, 2013, a true and correctcopy of the foregoing document was filed with the ECF system, so that an electroniccopy of the document was automatically transmitted to counsel for the opposing party.

Kristin M. SnyderOgletree Deakins8117 Preston Road, Suite 500Dallas, Texas 75225

/s/ John H. Crouch, IV John H. Crouch, IV

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Certificate of Compliance

1. EXCLUSIVE OF THE EXEMPTED PORTIONS IN 5TH Cir. R. 32.2, THEBRIEF CONTAINS (select one):

A. 8,398 words, OR

B. N/A lines of text in monospaced typeface.

2. THE BRIEF HAS BEEN PREPARED (select one):

A. in proportionally spaced typeface using:

Software Name and Version: WordPerfect X6

in (Typeface Name and Font Size): Times New Roman - 14 , OR

B. in monospaced (nonproportionally spaced) typeface using:

Typeface name and number of characters per inch:

N/A

3. THE UNDERSIGNED UNDERSTANDS A MATERIALMISREPRESENTATION IN COMPLETING THIS CERTIFICATE, ORCIRCUMVENTION OF THE TYPE-VOLUME LIMITS IN Fed. R. App. P.IMPOSING SANCTIONS AGAINST THE PERSON SIGNING THE BRIEF.

/s/ John H. Crouch, IV John H. Crouch, IV

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Documents

Diggs brief - Outsourcing Justice