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Russell v. Citigroup, Inc. - 748 F.3d 677 (6th Cir. 2014)

Rule:

One party's lawyer may not communicate about a pending case with an opposing litigant he knows has legal representation. Ky. Sup. Ct. R. 3.130.

Facts:

When Keith Russell accepted a job with Citicorp Credit Services, he agreed to arbitrate "all employment-related disputes" with the company. The agreement covered individual claims but not class actions. In January 2012, Russell filed a class action against the company. He claimed that the company did not pay its employees for time spent logging into and out of their computers at the beginning and end of each workday. Because the arbitration agreement with Russell did not reach class claims, Citicorp did not seek arbitration. At this point, a confluence of improbable circumstances complicated this once-simple case. In late 2012, with the lawsuit still in progress, Russell applied to work once more at Citicorp's call center in Florence. The call center agreed to rehire him. By this time, Citicorp had updated its standard arbitration contract to cover class claims as well as individual ones. Russell signed the new contract, and in January 2013 he began work in the call center. Russell did not consult with his lawyers before signing the new contract. And the lawyers directly representing Citicorp in this case, an outside law firm, did not know that Russell had applied to work at the call center. About a month after Russell began his new job, they found out. Relying on the new contract, Citicorp sought to compel Russell to arbitrate the class action, which by then had begun discovery. The district court concluded that the new arbitration agreement did not cover lawsuits commenced before the agreement was signed. Citicorp appealed this interlocutory decision, as it may under 9 U.S.C. § 16(a)

Issue:

Does an agreement to arbitrate “all employment-related disputes” with the company include cases already pending in court when the employee signed the arbitration agreement?

Answer:

No

Conclusion:

A call center supervisor's agreement to arbitrate all employment-related disputes with his company did not include a case already pending in court when he signed the agreement because neither party expected the contract to cover the case. A sophisticated company would not allow a supervisor at a local call center to sign away rights in a pending case without first speaking to the lawyers representing it in that case. Ky. Sup. Ct. R. 3.130 provided that one party's lawyer could not communicate about a pending case with an opposing litigant he knew had legal representation. The fact that the company sent the contract to the supervisor rather than to his lawyer suggested that it was not intended to cover the pending lawsuit.

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