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DAMON™. OTT, Bar No. 215392
dott@litiler.com
LITTLER MENDELSON, P.C.
333 Bush Street, 34th Floor
San Francisco, CA 94104
Tel me: 415.433.1940
Fax No.: 415.399.8490
SARAH R. BOXER, Bar No. 322393
sboxer@littler.com
ROBERT GEIGER, Bar No. 322914
rgeiger@litiler.com
LITTLER MENDELSON, P.C.
501 W. Bi , Suite 900
San Dit , Califomia 92101.3577
Telephone: 619.232.0441
Fax No.: 619.232.4302
10 Attol for Defendant
VANGUARD CLEANING SY STEMS, INC.
11
12 THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
13 IN AND FOR THE COUNTY OF SAN MATEO
14 ALIDA MAZARIEGOS, PAULA Case No. 20-CIV-04267
GONZALEZ, andJAIME AMAYA,
15 COMPLEX ACTION
Plaintiffs, on behalf of themselves
16 and all others similarly situated, ASSIGNED FOR ALL PURPOSESTO
HONORABLE NANCY L. FINEMAN,
17 Vv. DEPT. 4
18 VANGUARD CLEANING SYSTEMS, INC.; DECLARATION OF DAMON M. OTT
RR FRANCHISING, INC., D/B/A INSUPPORT OF DEFENDANT WINE
19 VANGUARD CLEANING SY STEMS OF COUNTRY VENTURES, INC. AND
SOUTHERN CALIFORNIA AND D/B/A VANGUARD CLEANING SYSTEMS,
20 VANGUARD CLEANING SY STEMS OF INC.’S MOTIONTO COMPEL
NORTHERN CALIFORNIA; BUDDHA ARBITRATION OF A. TELLO
21 CAPITAL CORPORATION, D/B/A
VANGUARD CLEANING SY STEMS OF
SACRAMENTO, D/B/A VANGUARD Date: December 5, 2023
CLEANING SYSTEMS OF THECENTRAL. Time: 2:00 p.m.
VALLEY, AND D/B/A 4
VANGUARD CLEANING SY STEMS OF Courtroom: G
24 THE CENTRAL COAST; AND WINE
COUNTRY VENTURES, INC. D/B/A Complaint Filed: October 1, 2020
25 VANGUARD CLEANING Trial Date: None Set
SYSTEMS OF THE NORTH BAY, AND
26 DOES 1 THROUGH 10,
INCLUSIVE,
27
Defendants.
CASE NO. 20-CIV-04267
DECLARATION OF DAMON ™. OTT IN SUPPORT OF MOTION TO COMPEL ARBITRATION OF A. TELLO
DECLARATION OF DAMON M. OTT
I, Damon M. Ott, hereby declare and state:
1 I am an attorney admitted to practice in the State of California and I am a shareholder
with the law firm of Littler Mendelson, a Professional Corporation, counsel of record for
VANGUARD CLEANING SYSTEMS, INC. (“Defendant”). I am familiar with the documents and
pleadings on file in this action and have personal knowledge of the facts stated herein. Further, if
called and sworn as a witness, I could and would competently testify thereto.
2. On or around June 26, 2023, I emailed Plaintiffs counsel, directing Plaintiff's
counsel’s attention to the Arbitration Provision contained within the Franchise Agreement Plaintiff
10 Tello assumed and requested that Plaintiff stipulate to arbitration pursuant to the terms of the
11 Arbitration Agreement. Plaintiff's counsel responded that day and confirmed that Plaintiff Tello
12 refused to stipulate to arbitration. Attached hereto as Exhibit A is a true and correct copy of the
13 email correspondence.
14 3 Attached hereto as Exhibit B is a true and correct copy of AAA Commercial
15 Arbitration Rules, available at https://adr.org/sites/default/files/Commercial%20Rules.pdf (last
16 accessed October 2, 2023).
17
18 I declare under penalty of perjury pursuant to the laws of the United States of America and
19 the State of California that the foregoing is true and correct.
20 Executed on October 2, 2023 at San Francisco, California.
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DAMON. OTT
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2 CASE NO. 20-CIV-04267
DECLARATION OF DAMON M. OTT IN SUPPORT OF MOTION TO COMPEL ARBITRATION OF A. TELLO
Exhibit A
From: Jessica Riggin
Sent: Monday, June 26, 2023 6:47 PM
To: Ott, Damon M.; Brome, Daniel; Helland, Matthew
Ce: Lounsbury, Adam L. (Richmond); Hood, Michael A. (Orange County); Geiger, Robert
Subject: Re: Mazariegos v. Vanguard: Joint Demand for Arbitration, Request for Dismissal and
Notice of Intent to Compel Arbitration if Necessary
Counsel:
Thank you for your email. Our clients do not agree to submit their claims to arbitration and, as stated previously, unless
Defendant is willing to stipulate to an extension of the 5-year rule, Plaintiffs are not willing to delay the hearing on their
renewed class certification motion. We are open to simultaneous briefing if Defendant is willing to stipulate to an
earlier briefing schedule, subject to Court approval, and on the condition that it would not extend the currently
scheduled date for Plaintiffs’ motion. We understand that if the parties stipulate to an earlier schedule it is possible that
the motion may be heard earlier. Please let us know if you agree.
Thanks,
Jessica
Get Outlook for iOS
From: Ott, Damon M.
Sent: Monday, June 26, 2023 3:38 PM
To: Jessica Riggin ; Brome, Daniel ; Helland, Matthew
Cc: Lounsbury, Adam L. (Richmond) ; Hood, Michael A. (Orange County)
; Geiger, Robert
Subject: Mazariegos v. Vanguard: Joint Demand for Arbitration, Request for Dismissal and Notice of Intent to Compel
Arbitration if Necessary
[EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the content is safe.
Counsel,
We write to you in your capacity as counsel for Adriana Tello and Ryne Bass, the two named plaintiffs/class
representatives added to the Mazariegos case through the recently filed Third Amended Complaint (“TAC”). The
purpose of this correspondence is to: (1) formally notify you (and your clients) that Adriana Tello and Ryne Bass are
subject to arbitration agreements covering the claims they assert in the TAC; (2) request that Adriana Tello and Ryne
Bass comply with their agreements to arbitrate, including by voluntarily dismissing their claims in the TAC and resolving
their disputes in arbitration; and (3) notify you of defendants’ intent to move to compel their claims to arbitration
should they reject the foregoing request and continue to pursue their claims in court. Because Adriana Tello and Ryne
Bass are subject to different arbitration agreements and differ factually, we address them separately below.
ADRIANA TELLO (Wine Country Ventures/VCS)
As you’re aware, Adriana Tello operated a Vanguard unit franchise pursuant to a Franchise Agreement entered into by
Gina’s Janitorial Services/Georgina Tello Bugarin and Wine Country Ventures, Inc. (WCV), which Franchise Agreement
was transferred/assigned to Adriana Tello pursuant to a separate three-party agreement between WCV, Georgina Tello
1
and Adriana Tello. Adriana Tello is subject to the arbitration agreement contained primarily in Section 34 of the
assigned Franchise Agreement (executed by Georgina Tello Bugarin with an execution date of August 16 ,2013). If your
client does not have a copy of the Franchise Agreement or is unable to provide a copy to you, please let us know and we
will email you a copy.
If Adriana Tello refuses to comply with the arbitration agreement contained in the Franchise Agreement, Wine Country
Ventures will move (as a party to the agreement) to compel her claims to arbitration, and VCS will similarly move to
compel as a third party beneficiary.
Additional Clarifications
As you may be aware, the arbitration agreement to which Adriana Tello is subject requires the parties to engage ina
face-to-face meeting to discuss the dispute before a party may proceed to arbitration. (See Franchise Agreement,
Section 34.A.) It is WCV’s and VCS’s position that this requirement has been satisfied by the two mediations conducted
in the Mazariegos case, thereby clearing the way for Adriana Tello to proceed to arbitration without need for an
additional meeting (subject to her agreement to same). Should Adriana Tello still wish to engage in mediation as
specified in Section 34.4, WCV and VCS will do so.
Additionally, consistent with the agreement’s provisions specifying that one party may advance the costs of arbitration,
and granting the arbitrator authority to allocate the cost of arbitration between the parties as necessary “if required by
applicable law”, WCV and VCS agree to advance the costs of arbitration subject to possible reimbursement to the extent
permitted by law, as determined by the arbitrator.
RYNE BASS (RR Franchising/VCS)
As you may be aware, RNL, LLC entered into a Franchise Agreement with RR Franchising, Inc. dated August 17, 2017,
which Agreement Ryne Bass executed in his capacity as a member of RNL, LLC. The Franchise Agreement includes an
arbitration agreement that covers, inter alia, the claims Mr. Bass asserts in the TAC. If your client does not have a copy
of the Franchise Agreement or is unable to provide one to you, please let us know and we will email you a copy.
If Mr. Bass refuses to comply with the arbitration agreement by continuing to assert his claims in court, RR Franchising
will move (as a party to the agreement) to compel his claims to arbitration, and VCS will similarly move to compel as a
third party beneficiary.
Additional Clarifications
As you may be aware, the arbitration agreement covering Mr. Bass’s claims requires the parties to first attempt to
resolve the dispute through a non-binding mediation lasting at least four hours. (See Franchise Agreement, Section
34.A.) It is RR Franchising’s and VCS’s position that this mediation requirement has been satisfied by the two mediations
conducted in the Mazariegos case, thereby clearing the way for Mr. Bass to proceed to arbitration without need for an
additional mediation (subject to his agreement to same). Should Mr. Bass still wish to engage in mediation as specified
in Section 34.A, RR Franchising and VCS will do so.
Additionally, consistent with the agreement’s provisions specifying that one party may advance the costs of arbitration,
and granting the arbitrator authority to apply “all applicable law”, including with respect to damages and allocation of
the cost of arbitration between the parties, RR Franchising and VCS agree to advance the costs of arbitration subject to
possible reimbursement to the extent permitted by law, as determined by the arbitrator.
REQUEST FOR RESPONSES
Please let us know as soon as practicable whether your clients Adriana Tello and Ryne Bass intend to dismiss the claims
asserted in the TAC and instead pursue their adjudication through arbitration, as required by the relevant
2
agreements. If your clients refuse to agree to arbitrate, the relevant parties will file motions to compel their claims to
arbitration. Should it be necessary for the court to rule on such motions, it will obviously impact the date of the next
hearing on plaintiffs’ class certification motion, and also preclude discovery relating to Adriana Tello and Ryne Bass until
after a ruling on the motions. Accordingly, we request that you do not propound any discovery relating to the two new
plaintiffs while we prepare the motions to compel (since responses will be stayed pending the outcome of the motions).
We are aware of your email to the court requesting a hearing date for plaintiffs’ class certification motion, as well as
your request for a stipulated briefing schedule. If your clients Adriano Tello and Ryne Bass voluntarily agree to arbitrate
their claims, defendants are open to discussing a stipulated briefing schedule. If not, the class certification motion and
related briefing will need to occur after the court rules upon defendants’ motions to compel arbitration, making
selection of a class certification hearing date premature at this time.
If you would like to discuss the above by phone, please let us know your availability and a call will be scheduled.
[This message was reviewed and approved by counsel for WCV and RRF.]
Damon M. Ott
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415.677.3173 direct, 415.250.5977 mobile, 415.743.6663 fax
DOtt@littler.com
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Exhibit B
Employment
Arbitration Rules and Mediation Procedures
Gp) 22001 ansranow assocrtos
Available online at adr.org/employment
Rules Amended and Effective November 1, 2009
Introduction Revised October 1, 2017
States: Delaware, District of Columbia, Maryland, States: Alaska, Arizona, California, Hawaii, Idaho,
New Jersey, Pennsylvania Nevada, Oregon, Utah, Washington
Kenneth Egger Patrick Tatum
Vice President Vice President
Phone: 215.731.2281 Phone: 559.490.1905
Email: EggerK@adr.org Email: TatumP@adr.org
States: Colorado, Illinois, lowa, Kansas, Michigan, States: Alabama, Florida, Georgia, Louisiana,
Minnesota, Missouri, Montana, Nebraska, Mis: sippi, Texas
New Mexico, North Dakota, South Dakota, Charles Dorsey
Wisconsin, Wyoming Assistant Vice President
Jan Holdinski Phone: 866.686.6024
Vice President Email: DorseyC@adr.org
Phone: 248.352.5509
Email: HoldinskiJ@adr.org States: Rhode Island
Heather Santo
States: Connecticut, Maine, Massachusetts, Assistant Vice President
New Hampshire, New York, Vermont Phone: 866.293.4053
Ann Lesser, Esq Email: SantoH@adr.org
Vice President
Phone: 212.484.4084
Email: LesserA@adr.org
States: Arkansas, Indiana, Kentucky, North Carolina,
Ohio, Oklahoma, South Carolina, Tennessee,
Virginia, West Virginia
Aaron Schmidt
Vice President
Phone: 440.596.3789
Email: SchmidtA@adr.org
Southeast Case Management Center Western Case Management Center
Charles Dorsey Patrick Tatum
Assistant Vice President Vice President
Phone: 866.686.6024 Phone: 559.490.1905
Email: DorseyC@adr.org Email: TatumP@adr.org
Administers cases in Alabama, Arkansas, Florida, Administers cases in Alaska, Arizona, California,
Georgia, Kentucky, Louisiana, Mississippi, Hawaii, Idaho, Nevada, Oregon, Utah, Washington
North Carolina, Ohio, Puerto Rico, South Carolina,
Tennessee, US Virgin Islands, Virginia Central Case Management Center
Charles Dorsey
Northeast Case Management Center Assistant Vice President
Heather Santo Phone: 866.686.6024
Assistant Vice President Email: DorseyC@adr.org
Phone: 866.293.4053 Administers cases in Colorado, Illinois, Indiana,
Email: SantoH@adr.org lowa, Kansas, Minnesota, Missouri, Montana,
Administers cases in Connecticut, Delaware, Nebraska, New Mexico, North Dakota, Oklahoma,
District of Columbia, Maine, Maryland, South Dakota, Texas, Wisconsin, Wyoming
Massachusetts, Michigan, New Hampshire,
New Jersey, New York, Pennsylvania, Rhode Island,
Vermont, West Virginia
2 RULES AND MEDIATION PROCEDURES American Arbitration Association
Table of Contents
Introduction
The Employment Due Process Protocol
AAAs Employment ADR Rules
AAA‘s Policy on Employment ADR
Notification
Designing an ADR Program
Types of Disputes Covered
Employment Arbitration Rules and Mediation Procedures 10
1 Applicable Rules of Arbitration 10
2 Notification 10
3 AAA as Administrator of the Arbitration 11
Initiation of Arbitration 11
Changes of Claim 12
Jurisdiction 12
Administrative and Mediation Conferences . . 12
8 Arbitration Management Conference 13
9 Discovery 14
10. Fixing of Locale (the city, county, state, territory, and/or country of the Arbitration). 14
11. Date, Time and Place (the physical site of the hearing within the designated locale)
of Hearing. . 14
12. Number, Qualifications and Appointment of Neutral Arbitrators 15
13. Party Appointed Arbitrators . . 16
14. Appointment of Chairperson by Party-Appointed Arbitrators or Parties 16
15. Disclosure 16
16. Disqualification of Arbitrator 17
17. Communication with Arbitrator 17
18. Vacancies 18
19 Representation 18
20. Stenographic Record 18
21. Interpreters... . 18
22. Attendance at Hearings 18
23. Confidentiality 19
24. Postponements 19
25. Oaths 19
Rules Amended and Effective November 1, 2009. Introduction Revised October 1, 2017. EMPLOYMENT RULES 3
26 Majority Decision 19
27 Dispositive Motions 19
28 Order of Proceedings . 19
29 Arbitration in the Absence of a Party or Representative 20
30 Evidence 21
31 Inspection... 21
32 Interim Measures . 21
33, Closing of Hearing 22
34 Reopening of Hearing 22
35 Waiver of Oral Hearing 22
36 Waiver of Objection/Lack of Compliance with These Rules 22
37 Extensions of Time 23
38 Serving of Notice 23
39 The Award 23
40 Modification of Award. 24
41 Release of Documents for Judicial Proceedings 24
42 Applications to Court 24
43 Administrative Fees 25
44 Neutral Arbitrator’s Compensation 25
45, Expenses 25
46 Deposits 26
47 Suspension for Non-Payment 26
48 Interpretation and Application of Rules. 26
26
27
0-1 . Applicability. . 27
0-2 . Appointment of Emergency Arbitrator 27
0-3. . Schedule 27
O-4 . Interim Award 27
0-5. . Constitution of the Panel ... 28
0-6 . Security. ... 28
O-7 . Special Master 28
0-8. Costs. 28
4 RULES AND MEDIATION PROCEDURES American Arbitration Association
29
M-1. Agreement of Parties 29
M-2. Initiation of Mediation 29
M-3. Fixing of Locale (the city, county, state, territory and, if applicable, country of the
mediation) . . 30
M-4. Representation 30
M-5. Appointment of the Mediator 30
M-6. Mediator's Impartiality and Duty to Disclose 31
M-7. Vacancies 31
M-8. Duties and Responsibilities of the Mediator 31
M-9. Responsibilities of the Parties 32
M-10. Privacy 32
M-11. Confidentiality 33
M-12. No Stenographic Record 33
M-13. Termination of Mediation. . 33
M-14. Exclusion of Liability 34
M-15. Interpretation and Application of Procedures 34
M-16. Deposits 34
M-17. Expenses . . 34
M-18. Cost of the Mediation 34
Rules Amended and Effective November 1, 2009. Introduction Revised October 1, 2017.
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Introduction
Federal and state laws reflecting societal intolerance for certain workplace
conduct, as well as court decisions interpreting and applying those statutes, have
redefined responsible corporate practice and employee relations. Increasingly,
employers and employees face workplace disputes involving alleged wrongful
termination, sexual harassment, or discrimination based on race, color, religion,
sex, sexual orientation, national origin, age and disability.
As courts and administrative agencies become less accessible to civil litigants,
alternative dispute resolution (ADR) procedures have become more common
in contracts of employment, personnel manuals, and employee handbooks as
a means of resolving workplace disputes privately, promptly and economically.
Millions of workers are now covered by employment ADR clauses administered
by the American Arbitration Association (AAA).
The American Arbitration Association, a not-for-profit, public service organization,
offers a broad range of dispute resolution services to business executives,
attorneys, individuals, trade associations, unions, management, consumers, and
all levels of government. Services are available through AAA headquarters in
New York City and offices in major cities throughout the United States and
internationally. Hearings may be held at locations convenient for the parties and
are not limited to cities with AAA offices. In addition, the AAA serves as a center
for education and training, issues specialized publications, and conducts research
on various forms of alternative dispute resolution.
The Employment Due Process Protocol
The Employment Due Process Protocol was developed in 1995 by a special Task
Force composed of individuals representing management, labor, employment,
civil rights organizations, private administrative agencies, government, and the
American Arbitration Association. The Due Process Protocol, which was endorsed
& RULES AND MEDIATION PROCEDURES American Arbitration Association
by the Association in 1995, seeks to ensure fairness and equity in resolving
workplace disputes. It encourages mediation and arbitration of statutory
disputes, provided there are due process safeguards. It conveys the hope that
ADR will reduce delays caused by the huge backlog of cases pending before
ja
administrative agencies and the courts. The Due Process Protoco recognizes
the dilemma inherent in the timing of an agreement to mediate and/or arbitrate
statutory disputes” but does not take a position on whether an employer can
require a pre-dispute, binding arbitration program as a condition of employment
The Due Process Protocol has been endorsed by organizations representing a
broad range of constituencies. They include the American Arbitration
Association, the American Bar Association Labor and Employment Section, the
American Civil Liberties Union, the Federal Mediation and Conciliation Service,
the National Academy of Arbitrators, and the National Society of Professionals in
Dispute Resolution. The National Employment Lawyers Association has endorsed
the substantive provisions of the Due Process Protocol.
lt has been incorporated into the Report of the United States Secretary of Labor's
Task Force in Excellence in State and Local Government and cited with approval
in numerous court opinions.
On June 1, 1996, the Association issued National Rules for the Resolution of
Employment Disputes (now known as the Employment Arbitration Rules and
Mediation Procedures). The rules reflected the guidelines outlined in the
Due Process Protocol and were based upon the AAA's California Employment
Dispute Resolution Rules, which were developed by a committee of employment
management and plaintiff attorneys, retired judges and arbitrators, in addition to
Association executives. The revised rules were developed for employers and
employees who wish to use a private alternative to resolve their disputes and
included procedures which ensure due process in both the mediation and
arbitration of employment disputes. The rules enabled parties to have complaints
heard by an impartial person of their joint selection, with expertise in the
employment field.
The AAAs policy on employment ADR is guided by the state of existing law, as
well as its obligation to act in an impartial manner. In following the law, and in
the interest of providing an appropriate forum for the resolution of employment
Rules Amended and Effective November 1, 2009. Introduction Revised October 1, 2017.
disputes, the Association administers dispute resolution programs which meet
the due process standards as outlined in its Employment Arbitration Rules
and Mediation Procedures and the Due Process Protocol. If the Association
determines that a dispute resolution program on its face substantially and
materially deviates from the minimum due process standards of the Employment
Arbitration Rules and Mediation Procedures and the Due Process Protocol, the
Association may decline to administer cases under that program. Other issues
will be presented to the arbitrator for determination.
If an employer intends to utilize the dispute resolution services of the Association
in an employment ADR plan, it should at least 30 days prior to the planned
effective date of the program: (1) notify the Association of its intention to do so;
and (2) provide the Association with a copy of the employment dispute
resolution plan. If an employer does not comply with this requirement, the
Association reserves the right to decline its administrative services. Copies of all
plans should be sent to the American Arbitration Association, 1101 Laurel Oak
Road, Suite 100, Voorhees, NJ 08043; Email: casefiling@adr.org.
The guiding principle in designing a successful employment ADR system is that it
must be fair in fact and perception.
The American Arbitration Association encourages employers to consider the
wide range of legally-available options to resolve workplace disputes outside
the courtroom. A special emphasis is placed by the Association on encouraging
the development of in-house dispute resolution procedures, such as open door
policies, ombuds, peer review and internal mediation. The Association
recommends an external mediation component to resolve disputes not settled
by the internal dispute resolution process.
Programs which use arbitration as a final step may employ:
pre-dispute, voluntary final and binding arbitration;
pre-dispute, mandatory nonbinding arbitration;
pre-dispute, mandatory final and binding arbitration; or
post-dispute, voluntary final and binding arbitration
8 RULES AND MEDIATION PROCEDURES American Arbitration Association
Although the AAA administers binding arbitration systems that have been
required as a condition of initial or continued employment, such programs must
be consistent with the Association’s Employment Arbitration Rules and Mediation
Procedures and the Employment Due Process Protocol.
Specific guidance on the responsible development and design of employment
ADR systems is contained in the Association's publication, Resolving Employment
Disputes: A Practical Guide, which is available from the AAA's website,
www.adr.org.
These dispute resolution procedures were developed for arbitration agreements
contained in employee personnel manuals, an employment application of an
individual employment agreement, independent contractor agreements for
workplace disputes and other types of employment agreements or workplace
agreements, or can be used for a specific dispute. They do not apply to disputes
arising out of collective bargaining agreements.
Rules Amended and Effective November 1, 2009. Introduction Revised October 1, 2017.
The parties shall be deemed to have made these rules a part of their arbitration
agreement whenever they have provided for arbitration by the American
Arbitration Association (hereinafter “AAA”) or under its Employment Arbitration
Rules and Mediation Procedures or for arbitration by the AAA of an employment
dispute without specifying particular rules’. If a party establishes that an adverse
material inconsistency exists between the arbitration agreement and these rules,
the arbitrator shall apply these rules.
If, within 30 days after the AAA's commencement of administration, a party seeks
judicial intervention with respect to a pending arbitration and provides the AAA
with documentation that judicial intervention has been sought, the AAA will
suspend administration for 60 days to permit the party to obtain a stay of
arbitration from the court. These rules, and any amendment of them, shall apply
in the form in effect at the time the demand for arbitration or submission is
received by the AAA.
The National Rules for the Resolution of Employment Disputes have been re-named the Employment Arbitration
Rules and Mediation Procedures. Any arbitration agreements providing for arbitration under its National Rules for
the Resolution of Employment Disputes shall be administered pursuant to these Employment Arbitration Rules
and Mediation Procedures.
An employer intending to incorporate these rules or to refer to the dispute
resolution services of the AAA in an employment ADR plan, shall, at least 30 days
prior to the planned effective date of the program:
i notify the Association of its intention to do so and,
ii. provide the Association with a copy of the employment dispute resolution plan
Compliance with this requirement shall not preclude an arbitrator from
entertaining challenges as provided in Section 1. If an employer does not
comply with this requirement, the Association reserves the right to decline its
administrative services.
10 RULES AND MEDIATION PROCEDURES American Arbitration Association
When parties agree to arbitrate under these rules, or when they provide for
arbitration by the AAA and an arbitration is initiated under these rules, they
thereby authorize the AAA to administer the arbitration. The authority and duties
of the AAA are prescribed in these rules, and may be carried out through such of
the AAA‘s representatives as it may direct. The AAA may, in its discretion, assign
the administration of an arbitration to any of its offices.
Arbitration shall be initiated in the following manner.
a The parties may submit a joint request for arbitration.
b. In the absence of a joint request for arbitration:
(i) The initiating party (hereinafter “Claimant[s]") shall:
(1) File a written notice (hereinafter “Demand”) of its intention to arbitrate at
any office of the AAA, within the time limit established by the applicable
statute of limitations. Any dispute over the timeliness of the demand
shall be referred to the arbitrator. The filing shall be made in duplicate,
and each copy shall include the applicable arbitration agreement. The
Demand shall set forth the names, addresses, and telephone numbers of
the parties; a brief statement of the nature of the dispute; the amount in
controversy, if any; the remedy sought; and requested hearing location
(2) Simultaneously provide a copy of the Demand to the other party
(hereinafter “Respondent[s]").
(3) Include with its Demand the applicable filing fee, unless the parties agree
to some other method of fee advancement.
(ii) The Respondent(s) may file an Answer with the AAA within 15 days after the
date of the letter from the AAA acknowledging receipt of the Demand. The
Answer shall provide the Respondent's brief response to the claim and the
issues presented. The Respondent(s) shall make its filing in duplicate with the
AAA, and simultaneously shall send a copy of the Answer to the Claimant.
If no answering statement is filed within the stated time, Respondent will be
deemed to deny the claim. Failure to file an answering statement shall not
operate to delay the arbitration.
(iii) The Respondent(s):
(1) May file a counterclaim with the AAA within 15 days after the date of the
letter from the AAA acknowledging receipt of the Demand. The filing
shall be made in duplicate. The counterclaim shall set forth the nature of
the claim, the amount in controversy, if any, and the remedy sought.
Rules Amended and Effective November 1, 2009. Introduction Revised October 1, 2017. 1
(2) Simultaneously shall send a copy of any counterclaim to the Claimant
(3) Shall include with its filing the applicable filing fee provided for by these
rules.
(iv) The Claimant may file an Answer to the counterclaim with the AAA within
15 days after the date of the letter from the AAA acknowledging receipt of
the counterclaim. The Answer shall provide Claimant's brief response to the
counterclaim and the issues presented. The Claimant shall make its filing in
duplicate with the AAA, and simultaneously shall send a copy of the Answer
to the Respondent(s). If no answering statement is filed within the stated time,
Claimant will be deemed to deny the counterclaim. Failure to file an answering
statement shall not operate to delay the arbitration
c. The form of any filing in these rules shall not be subject to technical pleading
requirements
Before the appointment of the arbitrator, if either party desires to offer a new or
different claim or counterclaim, such party must do so in writing by filing a written
statement with the AAA and simultaneously provide a copy to the other party(s),
who shall have 15 days from the date of such transmittal within which to file an
answer with the AAA. After the appointment of the arbitrator, a party may offer a
new or different claim or counterclaim only at the discretion of the arbitrator.
The arbitrator shall have the power to rule on his or her own jurisdiction, including
any objections with respect to the existence, scope or validity of the arbitration
agreement.
The arbitrator shall have the power to determine the existence or validity of a
contract of which an arbitration clause forms a part. Such an arbitration clause
shall be treated as an agreement independent of the other terms of the contract.
A decision by the arbitrator that the contract is null and void shall not for that
reason alone render invalid the arbitration clause.
A party must object to the jurisdiction of the arbitrator or to the arbitrability of a
claim or counterclaim no later than the filing of the answering statement to the
claim or counterclaim that gives rise to the objection. The arbitrator may rule on
such objections as a preliminary matter or as part of the final award.
Before the appointment of the arbitrator, any party may request, or the AAA, in
its discretion, may schedule an administrative conference with a representative
12 RULES AND MEDIATION PROCEDURES American Arbitration Association
of the AAA and the parties and/or their representatives. The purpose of the
administrative conference is to organize and expedite the arbitration, explore
its administrative aspects, establish the most efficient means of selecting an
arbitrator, and to consider mediation as a dispute resolution option. There is no
administrative fee for this service.
At any time after the filing of the Demand, with the consent of the parties, the
AAA will arrange a mediation conference under its Mediation Procedures to
facilitate settlement. The mediator shall not be any arbitrator appointed to the
case, except by mutual written agreement of the parties. There is no additional
filing fee for initiating a mediation under the AAA Mediation Procedures for
parties to a pending arbitration.
As promptly as practicable after the selection of the arbitrator(s), but not later
than 60 days thereafter, an arbitration management conference shall be held
among the parties and/or their attorneys or other representatives and the
arbitrator(s). Unless the parties agree otherwise, the Arbitration Management
Conference will be conducted by telephone conference call rather than
in person. At the Arbitration Management Conference the matters to be
considered shall include, without limitation:
the issues to be arbitrated;
ii the date, time, place, and estimated duration of the hearing;
iii. the resolution of outstanding discovery issues and establishment of discovery
parameters,
iv. the law, standards, rules of evidence and burdens of proof that are to apply to
the proceeding;
the exchange of stipulations and declarations regarding facts, exhibits,
witnesses, and other issues;
vi the names of witnesses (including expert witnesses), the scope of witness
testimony, and witness exclusion;
vii. the value of bifurcating the arbitration into a liability phase and damages phase;
viii. the need for a stenographic record;
ix. whether the parties will summarize their arguments orally or in writing;
the form of the award;
xi. any other issues relating to the subject or conduct of the arbitration;
xii. the allocation of attorney's fees and costs;
Rules Amended and Effective November 1, 2009. Introduction Revised October 1, 2017. 13
xiii. the specification of undisclosed claims;
xiv. the extent to which documentary evidence may be submitted at the hearing;
XV. the extent to which testimony may be admitted at the hearing telephonically,
over the internet, by written or video-taped deposition, by affidavit, or by any
other means;
xvi. any disputes over the AAA's determination regarding whether the dispute
arose from an individually-negotiated employment agreement or contract, or
from an employer plan (see Costs of Arbitration section).
The arbitrator shall issue oral or written orders reflecting his or her decisions on
the above matters and may conduct additional conferences when the need arises.
There is no AAA administrative fee for an Arbitration Management Conference.
The arbitrator shall have the authority to order such discovery, by way of
deposition, interrogatory, document production, or otherwise, as the arbitrator
considers necessary to a full and fair exploration of the issues in dispute,
consistent with the expedited nature of arbitration.
The AAA does not require notice of discovery related matters and communications
unless a dispute arises. At that time, the parties should notify the AAA of the
dispute so that it may be presented to the arbitrator for determination.
If the parties disagree as to the locale, the AAA may initially determine the place
of arbitration, subject to the power of the arbitrator(s), after their appointment to
make a final determination on the locale. All such determinations shall be made
having regard for the contentions of the parties and the circumstances of the
arbitration.
The arbitrator shall set the date, time, and place for each hearing. The parties
shall respond to requests for hearing dates in a timely manner, be cooperative in
scheduling the earliest practicable date, and adhere to the established hearing
schedule. The AAA shall send a notice of hearing to the parties at least 10 days in
advance of the hearing date, unless otherwise agreed by the parties.
14 RULES AND MEDIATION PROCEDURES American Arbitration Association
If the arbitration agreement does not specify the number of arbitrators or the
parties do not agree otherwise, the dispute shall be heard and determined by one
arbitrator.
Qualifications
i Neutral arbitrators serving under these rules shall be experienced in the field
of employment law.
il Neutral arbitrators serving under these rules shall have no personal or
financial interest in the results of the proceeding in which they are appointed
and shall have no relation to the underlying dispute or to the parties or their
counsel that may create an appearance of bias.
iii. The roster of available arbitrators will be established on a non-discriminatory
basis, diverse by gender, ethnicity, background, and qualifications.
iv. The AAA may, upon request of a party within the time set to return their list or
upon its own initiative, supplement the list of proposed arbitrators in disputes
arising out of individually-negotiated employment contracts with persons
from the Commercial Roster, to allow the AAA to respond to the particular
need of the dispute. In multi-arbitrator disputes, at least one of the arbitrators
shall be experienced in the field of employment law.
If the parties have not appointed an arbitrator and have not provided any method
of appointment, the arbitrator shall be appointed in the following manner:
i Shortly after it receives the Demand, the AAA shall send simultaneously to
each party a letter containing an identical list of names of persons chosen
from the Employment Dispute Resolution Roster. The parties are encouraged
to agree to an arbitrator from the submitted list and to advise the AAA of
their agreement
ii If the parties are unable to agree upon an arbitrator, each party to the dispute
shall have 15 days from the transmittal date in which to strike names objected
to, number the remaining names in order of preference, and return the list
to the AAA. If a party do
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DAMON™. OTT, Bar No. 215392 dott@litiler.com LITTLER MENDELSON, P.C. 333 Bush Street, 34th Floor San Francisco, CA 94104 Tel me: 415.433.1940 Fax No.: 415.399.8490 SARAH R. BOXER, Bar No. 322393 sboxer@littler.com ROBERT GEIGER, Bar No. 322914 rgeiger@litiler.com LITTLER MENDELSON, P.C. 501 W. Bi , Suite 900 San Dit , Califomia 92101.3577 Telephone: 619.232.0441 Fax No.: 619.232.4302 10 Attol for Defendant VANGUARD CLEANING SY STEMS, INC. 11 12 THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 13 IN AND FOR THE COUNTY OF SAN MATEO 14 ALIDA MAZARIEGOS, PAULA Case No. 20-CIV-04267 GONZALEZ, andJAIME AMAYA, 15 COMPLEX ACTION Plaintiffs, on behalf of themselves 16 and all others similarly situated, ASSIGNED FOR ALL PURPOSESTO HONORABLE NANCY L. FINEMAN, 17 Vv. DEPT. 4 18 VANGUARD CLEANING SYSTEMS, INC.; DECLARATION OF DAMON M. OTT RR FRANCHISING, INC., D/B/A INSUPPORT OF DEFENDANT WINE 19 VANGUARD CLEANING SY STEMS OF COUNTRY VENTURES, INC. AND SOUTHERN CALIFORNIA AND D/B/A VANGUARD CLEANING SYSTEMS, 20 VANGUARD CLEANING SY STEMS OF INC.’S MOTIONTO COMPEL NORTHERN CALIFORNIA; BUDDHA ARBITRATION OF A. TELLO 21 CAPITAL CORPORATION, D/B/A VANGUARD CLEANING SY STEMS OF SACRAMENTO, D/B/A VANGUARD Date: December 5, 2023 CLEANING SYSTEMS OF THECENTRAL. Time: 2:00 p.m. VALLEY, AND D/B/A 4 VANGUARD CLEANING SY STEMS OF Courtroom: G 24 THE CENTRAL COAST; AND WINE COUNTRY VENTURES, INC. D/B/A Complaint Filed: October 1, 2020 25 VANGUARD CLEANING Trial Date: None Set SYSTEMS OF THE NORTH BAY, AND 26 DOES 1 THROUGH 10, INCLUSIVE, 27 Defendants. CASE NO. 20-CIV-04267 DECLARATION OF DAMON ™. OTT IN SUPPORT OF MOTION TO COMPEL ARBITRATION OF A. TELLO DECLARATION OF DAMON M. OTT I, Damon M. Ott, hereby declare and state: 1 I am an attorney admitted to practice in the State of California and I am a shareholder with the law firm of Littler Mendelson, a Professional Corporation, counsel of record for VANGUARD CLEANING SYSTEMS, INC. (“Defendant”). I am familiar with the documents and pleadings on file in this action and have personal knowledge of the facts stated herein. Further, if called and sworn as a witness, I could and would competently testify thereto. 2. On or around June 26, 2023, I emailed Plaintiffs counsel, directing Plaintiff's counsel’s attention to the Arbitration Provision contained within the Franchise Agreement Plaintiff 10 Tello assumed and requested that Plaintiff stipulate to arbitration pursuant to the terms of the 11 Arbitration Agreement. Plaintiff's counsel responded that day and confirmed that Plaintiff Tello 12 refused to stipulate to arbitration. Attached hereto as Exhibit A is a true and correct copy of the 13 email correspondence. 14 3 Attached hereto as Exhibit B is a true and correct copy of AAA Commercial 15 Arbitration Rules, available at https://adr.org/sites/default/files/Commercial%20Rules.pdf (last 16 accessed October 2, 2023). 17 18 I declare under penalty of perjury pursuant to the laws of the United States of America and 19 the State of California that the foregoing is true and correct. 20 Executed on October 2, 2023 at San Francisco, California. a 21 22 DAMON. OTT 23 24 25 26 27 28 2 CASE NO. 20-CIV-04267 DECLARATION OF DAMON M. OTT IN SUPPORT OF MOTION TO COMPEL ARBITRATION OF A. TELLO Exhibit A From: Jessica Riggin Sent: Monday, June 26, 2023 6:47 PM To: Ott, Damon M.; Brome, Daniel; Helland, Matthew Ce: Lounsbury, Adam L. (Richmond); Hood, Michael A. (Orange County); Geiger, Robert Subject: Re: Mazariegos v. Vanguard: Joint Demand for Arbitration, Request for Dismissal and Notice of Intent to Compel Arbitration if Necessary Counsel: Thank you for your email. Our clients do not agree to submit their claims to arbitration and, as stated previously, unless Defendant is willing to stipulate to an extension of the 5-year rule, Plaintiffs are not willing to delay the hearing on their renewed class certification motion. We are open to simultaneous briefing if Defendant is willing to stipulate to an earlier briefing schedule, subject to Court approval, and on the condition that it would not extend the currently scheduled date for Plaintiffs’ motion. We understand that if the parties stipulate to an earlier schedule it is possible that the motion may be heard earlier. Please let us know if you agree. Thanks, Jessica Get Outlook for iOS From: Ott, Damon M. Sent: Monday, June 26, 2023 3:38 PM To: Jessica Riggin ; Brome, Daniel ; Helland, Matthew Cc: Lounsbury, Adam L. (Richmond) ; Hood, Michael A. (Orange County) ; Geiger, Robert Subject: Mazariegos v. Vanguard: Joint Demand for Arbitration, Request for Dismissal and Notice of Intent to Compel Arbitration if Necessary [EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the content is safe. Counsel, We write to you in your capacity as counsel for Adriana Tello and Ryne Bass, the two named plaintiffs/class representatives added to the Mazariegos case through the recently filed Third Amended Complaint (“TAC”). The purpose of this correspondence is to: (1) formally notify you (and your clients) that Adriana Tello and Ryne Bass are subject to arbitration agreements covering the claims they assert in the TAC; (2) request that Adriana Tello and Ryne Bass comply with their agreements to arbitrate, including by voluntarily dismissing their claims in the TAC and resolving their disputes in arbitration; and (3) notify you of defendants’ intent to move to compel their claims to arbitration should they reject the foregoing request and continue to pursue their claims in court. Because Adriana Tello and Ryne Bass are subject to different arbitration agreements and differ factually, we address them separately below. ADRIANA TELLO (Wine Country Ventures/VCS) As you’re aware, Adriana Tello operated a Vanguard unit franchise pursuant to a Franchise Agreement entered into by Gina’s Janitorial Services/Georgina Tello Bugarin and Wine Country Ventures, Inc. (WCV), which Franchise Agreement was transferred/assigned to Adriana Tello pursuant to a separate three-party agreement between WCV, Georgina Tello 1 and Adriana Tello. Adriana Tello is subject to the arbitration agreement contained primarily in Section 34 of the assigned Franchise Agreement (executed by Georgina Tello Bugarin with an execution date of August 16 ,2013). If your client does not have a copy of the Franchise Agreement or is unable to provide a copy to you, please let us know and we will email you a copy. If Adriana Tello refuses to comply with the arbitration agreement contained in the Franchise Agreement, Wine Country Ventures will move (as a party to the agreement) to compel her claims to arbitration, and VCS will similarly move to compel as a third party beneficiary. Additional Clarifications As you may be aware, the arbitration agreement to which Adriana Tello is subject requires the parties to engage ina face-to-face meeting to discuss the dispute before a party may proceed to arbitration. (See Franchise Agreement, Section 34.A.) It is WCV’s and VCS’s position that this requirement has been satisfied by the two mediations conducted in the Mazariegos case, thereby clearing the way for Adriana Tello to proceed to arbitration without need for an additional meeting (subject to her agreement to same). Should Adriana Tello still wish to engage in mediation as specified in Section 34.4, WCV and VCS will do so. Additionally, consistent with the agreement’s provisions specifying that one party may advance the costs of arbitration, and granting the arbitrator authority to allocate the cost of arbitration between the parties as necessary “if required by applicable law”, WCV and VCS agree to advance the costs of arbitration subject to possible reimbursement to the extent permitted by law, as determined by the arbitrator. RYNE BASS (RR Franchising/VCS) As you may be aware, RNL, LLC entered into a Franchise Agreement with RR Franchising, Inc. dated August 17, 2017, which Agreement Ryne Bass executed in his capacity as a member of RNL, LLC. The Franchise Agreement includes an arbitration agreement that covers, inter alia, the claims Mr. Bass asserts in the TAC. If your client does not have a copy of the Franchise Agreement or is unable to provide one to you, please let us know and we will email you a copy. If Mr. Bass refuses to comply with the arbitration agreement by continuing to assert his claims in court, RR Franchising will move (as a party to the agreement) to compel his claims to arbitration, and VCS will similarly move to compel as a third party beneficiary. Additional Clarifications As you may be aware, the arbitration agreement covering Mr. Bass’s claims requires the parties to first attempt to resolve the dispute through a non-binding mediation lasting at least four hours. (See Franchise Agreement, Section 34.A.) It is RR Franchising’s and VCS’s position that this mediation requirement has been satisfied by the two mediations conducted in the Mazariegos case, thereby clearing the way for Mr. Bass to proceed to arbitration without need for an additional mediation (subject to his agreement to same). Should Mr. Bass still wish to engage in mediation as specified in Section 34.A, RR Franchising and VCS will do so. Additionally, consistent with the agreement’s provisions specifying that one party may advance the costs of arbitration, and granting the arbitrator authority to apply “all applicable law”, including with respect to damages and allocation of the cost of arbitration between the parties, RR Franchising and VCS agree to advance the costs of arbitration subject to possible reimbursement to the extent permitted by law, as determined by the arbitrator. REQUEST FOR RESPONSES Please let us know as soon as practicable whether your clients Adriana Tello and Ryne Bass intend to dismiss the claims asserted in the TAC and instead pursue their adjudication through arbitration, as required by the relevant 2 agreements. If your clients refuse to agree to arbitrate, the relevant parties will file motions to compel their claims to arbitration. Should it be necessary for the court to rule on such motions, it will obviously impact the date of the next hearing on plaintiffs’ class certification motion, and also preclude discovery relating to Adriana Tello and Ryne Bass until after a ruling on the motions. Accordingly, we request that you do not propound any discovery relating to the two new plaintiffs while we prepare the motions to compel (since responses will be stayed pending the outcome of the motions). We are aware of your email to the court requesting a hearing date for plaintiffs’ class certification motion, as well as your request for a stipulated briefing schedule. If your clients Adriano Tello and Ryne Bass voluntarily agree to arbitrate their claims, defendants are open to discussing a stipulated briefing schedule. If not, the class certification motion and related briefing will need to occur after the court rules upon defendants’ motions to compel arbitration, making selection of a class certification hearing date premature at this time. If you would like to discuss the above by phone, please let us know your availability and a call will be scheduled. [This message was reviewed and approved by counsel for WCV and RRF.] Damon M. Ott Shareholder 415.677.3173 direct, 415.250.5977 mobile, 415.743.6663 fax DOtt@littler.com Littler Fueled by ingenuity. Inspired by you. Labor & Employment Law Solutions | Local Everywhere 333 Bush Street, 34th Floor, San Francisco, CA 94104 - aan ans This email may contain confidential and privileged material for the sole use of the intended recipient(s). Any review, use, distribution or disclosure by others is strictly prohibited. If you are not the intended recipient (or authorized to receive for the recipient), please contact the sender by reply email and delete all copies of this message. Littler Mendelson, P.C. is part of the international legal practice Littler Global, which operates worldwide through a number of separate legal entities. Please visit www.littler.com for more information. Exhibit B Employment Arbitration Rules and Mediation Procedures Gp) 22001 ansranow assocrtos Available online at adr.org/employment Rules Amended and Effective November 1, 2009 Introduction Revised October 1, 2017 States: Delaware, District of Columbia, Maryland, States: Alaska, Arizona, California, Hawaii, Idaho, New Jersey, Pennsylvania Nevada, Oregon, Utah, Washington Kenneth Egger Patrick Tatum Vice President Vice President Phone: 215.731.2281 Phone: 559.490.1905 Email: EggerK@adr.org Email: TatumP@adr.org States: Colorado, Illinois, lowa, Kansas, Michigan, States: Alabama, Florida, Georgia, Louisiana, Minnesota, Missouri, Montana, Nebraska, Mis: sippi, Texas New Mexico, North Dakota, South Dakota, Charles Dorsey Wisconsin, Wyoming Assistant Vice President Jan Holdinski Phone: 866.686.6024 Vice President Email: DorseyC@adr.org Phone: 248.352.5509 Email: HoldinskiJ@adr.org States: Rhode Island Heather Santo States: Connecticut, Maine, Massachusetts, Assistant Vice President New Hampshire, New York, Vermont Phone: 866.293.4053 Ann Lesser, Esq Email: SantoH@adr.org Vice President Phone: 212.484.4084 Email: LesserA@adr.org States: Arkansas, Indiana, Kentucky, North Carolina, Ohio, Oklahoma, South Carolina, Tennessee, Virginia, West Virginia Aaron Schmidt Vice President Phone: 440.596.3789 Email: SchmidtA@adr.org Southeast Case Management Center Western Case Management Center Charles Dorsey Patrick Tatum Assistant Vice President Vice President Phone: 866.686.6024 Phone: 559.490.1905 Email: DorseyC@adr.org Email: TatumP@adr.org Administers cases in Alabama, Arkansas, Florida, Administers cases in Alaska, Arizona, California, Georgia, Kentucky, Louisiana, Mississippi, Hawaii, Idaho, Nevada, Oregon, Utah, Washington North Carolina, Ohio, Puerto Rico, South Carolina, Tennessee, US Virgin Islands, Virginia Central Case Management Center Charles Dorsey Northeast Case Management Center Assistant Vice President Heather Santo Phone: 866.686.6024 Assistant Vice President Email: DorseyC@adr.org Phone: 866.293.4053 Administers cases in Colorado, Illinois, Indiana, Email: SantoH@adr.org lowa, Kansas, Minnesota, Missouri, Montana, Administers cases in Connecticut, Delaware, Nebraska, New Mexico, North Dakota, Oklahoma, District of Columbia, Maine, Maryland, South Dakota, Texas, Wisconsin, Wyoming Massachusetts, Michigan, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, West Virginia 2 RULES AND MEDIATION PROCEDURES American Arbitration Association Table of Contents Introduction The Employment Due Process Protocol AAAs Employment ADR Rules AAA‘s Policy on Employment ADR Notification Designing an ADR Program Types of Disputes Covered Employment Arbitration Rules and Mediation Procedures 10 1 Applicable Rules of Arbitration 10 2 Notification 10 3 AAA as Administrator of the Arbitration 11 Initiation of Arbitration 11 Changes of Claim 12 Jurisdiction 12 Administrative and Mediation Conferences . . 12 8 Arbitration Management Conference 13 9 Discovery 14 10. Fixing of Locale (the city, county, state, territory, and/or country of the Arbitration). 14 11. Date, Time and Place (the physical site of the hearing within the designated locale) of Hearing. . 14 12. Number, Qualifications and Appointment of Neutral Arbitrators 15 13. Party Appointed Arbitrators . . 16 14. Appointment of Chairperson by Party-Appointed Arbitrators or Parties 16 15. Disclosure 16 16. Disqualification of Arbitrator 17 17. Communication with Arbitrator 17 18. Vacancies 18 19 Representation 18 20. Stenographic Record 18 21. Interpreters... . 18 22. Attendance at Hearings 18 23. Confidentiality 19 24. Postponements 19 25. Oaths 19 Rules Amended and Effective November 1, 2009. Introduction Revised October 1, 2017. EMPLOYMENT RULES 3 26 Majority Decision 19 27 Dispositive Motions 19 28 Order of Proceedings . 19 29 Arbitration in the Absence of a Party or Representative 20 30 Evidence 21 31 Inspection... 21 32 Interim Measures . 21 33, Closing of Hearing 22 34 Reopening of Hearing 22 35 Waiver of Oral Hearing 22 36 Waiver of Objection/Lack of Compliance with These Rules 22 37 Extensions of Time 23 38 Serving of Notice 23 39 The Award 23 40 Modification of Award. 24 41 Release of Documents for Judicial Proceedings 24 42 Applications to Court 24 43 Administrative Fees 25 44 Neutral Arbitrator’s Compensation 25 45, Expenses 25 46 Deposits 26 47 Suspension for Non-Payment 26 48 Interpretation and Application of Rules. 26 26 27 0-1 . Applicability. . 27 0-2 . Appointment of Emergency Arbitrator 27 0-3. . Schedule 27 O-4 . Interim Award 27 0-5. . Constitution of the Panel ... 28 0-6 . Security. ... 28 O-7 . Special Master 28 0-8. Costs. 28 4 RULES AND MEDIATION PROCEDURES American Arbitration Association 29 M-1. Agreement of Parties 29 M-2. Initiation of Mediation 29 M-3. Fixing of Locale (the city, county, state, territory and, if applicable, country of the mediation) . . 30 M-4. Representation 30 M-5. Appointment of the Mediator 30 M-6. Mediator's Impartiality and Duty to Disclose 31 M-7. Vacancies 31 M-8. Duties and Responsibilities of the Mediator 31 M-9. Responsibilities of the Parties 32 M-10. Privacy 32 M-11. Confidentiality 33 M-12. No Stenographic Record 33 M-13. Termination of Mediation. . 33 M-14. Exclusion of Liability 34 M-15. Interpretation and Application of Procedures 34 M-16. Deposits 34 M-17. Expenses . . 34 M-18. Cost of the Mediation 34 Rules Amended and Effective November 1, 2009. Introduction Revised October 1, 2017. Taal Cy awe ice els) Tare muC=YeUF- 1a (eam ag mekecsve [Ol aot Introduction Federal and state laws reflecting societal intolerance for certain workplace conduct, as well as court decisions interpreting and applying those statutes, have redefined responsible corporate practice and employee relations. Increasingly, employers and employees face workplace disputes involving alleged wrongful termination, sexual harassment, or discrimination based on race, color, religion, sex, sexual orientation, national origin, age and disability. As courts and administrative agencies become less accessible to civil litigants, alternative dispute resolution (ADR) procedures have become more common in contracts of employment, personnel manuals, and employee handbooks as a means of resolving workplace disputes privately, promptly and economically. Millions of workers are now covered by employment ADR clauses administered by the American Arbitration Association (AAA). The American Arbitration Association, a not-for-profit, public service organization, offers a broad range of dispute resolution services to business executives, attorneys, individuals, trade associations, unions, management, consumers, and all levels of government. Services are available through AAA headquarters in New York City and offices in major cities throughout the United States and internationally. Hearings may be held at locations convenient for the parties and are not limited to cities with AAA offices. In addition, the AAA serves as a center for education and training, issues specialized publications, and conducts research on various forms of alternative dispute resolution. The Employment Due Process Protocol The Employment Due Process Protocol was developed in 1995 by a special Task Force composed of individuals representing management, labor, employment, civil rights organizations, private administrative agencies, government, and the American Arbitration Association. The Due Process Protocol, which was endorsed & RULES AND MEDIATION PROCEDURES American Arbitration Association by the Association in 1995, seeks to ensure fairness and equity in resolving workplace disputes. It encourages mediation and arbitration of statutory disputes, provided there are due process safeguards. It conveys the hope that ADR will reduce delays caused by the huge backlog of cases pending before ja administrative agencies and the courts. The Due Process Protoco recognizes the dilemma inherent in the timing of an agreement to mediate and/or arbitrate statutory disputes” but does not take a position on whether an employer can require a pre-dispute, binding arbitration program as a condition of employment The Due Process Protocol has been endorsed by organizations representing a broad range of constituencies. They include the American Arbitration Association, the American Bar Association Labor and Employment Section, the American Civil Liberties Union, the Federal Mediation and Conciliation Service, the National Academy of Arbitrators, and the National Society of Professionals in Dispute Resolution. The National Employment Lawyers Association has endorsed the substantive provisions of the Due Process Protocol. lt has been incorporated into the Report of the United States Secretary of Labor's Task Force in Excellence in State and Local Government and cited with approval in numerous court opinions. On June 1, 1996, the Association issued National Rules for the Resolution of Employment Disputes (now known as the Employment Arbitration Rules and Mediation Procedures). The rules reflected the guidelines outlined in the Due Process Protocol and were based upon the AAA's California Employment Dispute Resolution Rules, which were developed by a committee of employment management and plaintiff attorneys, retired judges and arbitrators, in addition to Association executives. The revised rules were developed for employers and employees who wish to use a private alternative to resolve their disputes and included procedures which ensure due process in both the mediation and arbitration of employment disputes. The rules enabled parties to have complaints heard by an impartial person of their joint selection, with expertise in the employment field. The AAAs policy on employment ADR is guided by the state of existing law, as well as its obligation to act in an impartial manner. In following the law, and in the interest of providing an appropriate forum for the resolution of employment Rules Amended and Effective November 1, 2009. Introduction Revised October 1, 2017. disputes, the Association administers dispute resolution programs which meet the due process standards as outlined in its Employment Arbitration Rules and Mediation Procedures and the Due Process Protocol. If the Association determines that a dispute resolution program on its face substantially and materially deviates from the minimum due process standards of the Employment Arbitration Rules and Mediation Procedures and the Due Process Protocol, the Association may decline to administer cases under that program. Other issues will be presented to the arbitrator for determination. If an employer intends to utilize the dispute resolution services of the Association in an employment ADR plan, it should at least 30 days prior to the planned effective date of the program: (1) notify the Association of its intention to do so; and (2) provide the Association with a copy of the employment dispute resolution plan. If an employer does not comply with this requirement, the Association reserves the right to decline its administrative services. Copies of all plans should be sent to the American Arbitration Association, 1101 Laurel Oak Road, Suite 100, Voorhees, NJ 08043; Email: casefiling@adr.org. The guiding principle in designing a successful employment ADR system is that it must be fair in fact and perception. The American Arbitration Association encourages employers to consider the wide range of legally-available options to resolve workplace disputes outside the courtroom. A special emphasis is placed by the Association on encouraging the development of in-house dispute resolution procedures, such as open door policies, ombuds, peer review and internal mediation. The Association recommends an external mediation component to resolve disputes not settled by the internal dispute resolution process. Programs which use arbitration as a final step may employ: pre-dispute, voluntary final and binding arbitration; pre-dispute, mandatory nonbinding arbitration; pre-dispute, mandatory final and binding arbitration; or post-dispute, voluntary final and binding arbitration 8 RULES AND MEDIATION PROCEDURES American Arbitration Association Although the AAA administers binding arbitration systems that have been required as a condition of initial or continued employment, such programs must be consistent with the Association’s Employment Arbitration Rules and Mediation Procedures and the Employment Due Process Protocol. Specific guidance on the responsible development and design of employment ADR systems is contained in the Association's publication, Resolving Employment Disputes: A Practical Guide, which is available from the AAA's website, www.adr.org. These dispute resolution procedures were developed for arbitration agreements contained in employee personnel manuals, an employment application of an individual employment agreement, independent contractor agreements for workplace disputes and other types of employment agreements or workplace agreements, or can be used for a specific dispute. They do not apply to disputes arising out of collective bargaining agreements. Rules Amended and Effective November 1, 2009. Introduction Revised October 1, 2017. The parties shall be deemed to have made these rules a part of their arbitration agreement whenever they have provided for arbitration by the American Arbitration Association (hereinafter “AAA”) or under its Employment Arbitration Rules and Mediation Procedures or for arbitration by the AAA of an employment dispute without specifying particular rules’. If a party establishes that an adverse material inconsistency exists between the arbitration agreement and these rules, the arbitrator shall apply these rules. If, within 30 days after the AAA's commencement of administration, a party seeks judicial intervention with respect to a pending arbitration and provides the AAA with documentation that judicial intervention has been sought, the AAA will suspend administration for 60 days to permit the party to obtain a stay of arbitration from the court. These rules, and any amendment of them, shall apply in the form in effect at the time the demand for arbitration or submission is received by the AAA. The National Rules for the Resolution of Employment Disputes have been re-named the Employment Arbitration Rules and Mediation Procedures. Any arbitration agreements providing for arbitration under its National Rules for the Resolution of Employment Disputes shall be administered pursuant to these Employment Arbitration Rules and Mediation Procedures. An employer intending to incorporate these rules or to refer to the dispute resolution services of the AAA in an employment ADR plan, shall, at least 30 days prior to the planned effective date of the program: i notify the Association of its intention to do so and, ii. provide the Association with a copy of the employment dispute resolution plan Compliance with this requirement shall not preclude an arbitrator from entertaining challenges as provided in Section 1. If an employer does not comply with this requirement, the Association reserves the right to decline its administrative services. 10 RULES AND MEDIATION PROCEDURES American Arbitration Association When parties agree to arbitrate under these rules, or when they provide for arbitration by the AAA and an arbitration is initiated under these rules, they thereby authorize the AAA to administer the arbitration. The authority and duties of the AAA are prescribed in these rules, and may be carried out through such of the AAA‘s representatives as it may direct. The AAA may, in its discretion, assign the administration of an arbitration to any of its offices. Arbitration shall be initiated in the following manner. a The parties may submit a joint request for arbitration. b. In the absence of a joint request for arbitration: (i) The initiating party (hereinafter “Claimant[s]") shall: (1) File a written notice (hereinafter “Demand”) of its intention to arbitrate at any office of the AAA, within the time limit established by the applicable statute of limitations. Any dispute over the timeliness of the demand shall be referred to the arbitrator. The filing shall be made in duplicate, and each copy shall include the applicable arbitration agreement. The Demand shall set forth the names, addresses, and telephone numbers of the parties; a brief statement of the nature of the dispute; the amount in controversy, if any; the remedy sought; and requested hearing location (2) Simultaneously provide a copy of the Demand to the other party (hereinafter “Respondent[s]"). (3) Include with its Demand the applicable filing fee, unless the parties agree to some other method of fee advancement. (ii) The Respondent(s) may file an Answer with the AAA within 15 days after the date of the letter from the AAA acknowledging receipt of the Demand. The Answer shall provide the Respondent's brief response to the claim and the issues presented. The Respondent(s) shall make its filing in duplicate with the AAA, and simultaneously shall send a copy of the Answer to the Claimant. If no answering statement is filed within the stated time, Respondent will be deemed to deny the claim. Failure to file an answering statement shall not operate to delay the arbitration. (iii) The Respondent(s): (1) May file a counterclaim with the AAA within 15 days after the date of the letter from the AAA acknowledging receipt of the Demand. The filing shall be made in duplicate. The counterclaim shall set forth the nature of the claim, the amount in controversy, if any, and the remedy sought. Rules Amended and Effective November 1, 2009. Introduction Revised October 1, 2017. 1 (2) Simultaneously shall send a copy of any counterclaim to the Claimant (3) Shall include with its filing the applicable filing fee provided for by these rules. (iv) The Claimant may file an Answer to the counterclaim with the AAA within 15 days after the date of the letter from the AAA acknowledging receipt of the counterclaim. The Answer shall provide Claimant's brief response to the counterclaim and the issues presented. The Claimant shall make its filing in duplicate with the AAA, and simultaneously shall send a copy of the Answer to the Respondent(s). If no answering statement is filed within the stated time, Claimant will be deemed to deny the counterclaim. Failure to file an answering statement shall not operate to delay the arbitration c. The form of any filing in these rules shall not be subject to technical pleading requirements Before the appointment of the arbitrator, if either party desires to offer a new or different claim or counterclaim, such party must do so in writing by filing a written statement with the AAA and simultaneously provide a copy to the other party(s), who shall have 15 days from the date of such transmittal within which to file an answer with the AAA. After the appointment of the arbitrator, a party may offer a new or different claim or counterclaim only at the discretion of the arbitrator. The arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the arbitration agreement. The arbitrator shall have the power to determine the existence or validity of a contract of which an arbitration clause forms a part. Such an arbitration clause shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitrator that the contract is null and void shall not for that reason alone render invalid the arbitration clause. A party must object to the jurisdiction of the arbitrator or to the arbitrability of a claim or counterclaim no later than the filing of the answering statement to the claim or counterclaim that gives rise to the objection. The arbitrator may rule on such objections as a preliminary matter or as part of the final award. Before the appointment of the arbitrator, any party may request, or the AAA, in its discretion, may schedule an administrative conference with a representative 12 RULES AND MEDIATION PROCEDURES American Arbitration Association of the AAA and the parties and/or their representatives. The purpose of the administrative conference is to organize and expedite the arbitration, explore its administrative aspects, establish the most efficient means of selecting an arbitrator, and to consider mediation as a dispute resolution option. There is no administrative fee for this service. At any time after the filing of the Demand, with the consent of the parties, the AAA will arrange a mediation conference under its Mediation Procedures to facilitate settlement. The mediator shall not be any arbitrator appointed to the case, except by mutual written agreement of the parties. There is no additional filing fee for initiating a mediation under the AAA Mediation Procedures for parties to a pending arbitration. As promptly as practicable after the selection of the arbitrator(s), but not later than 60 days thereafter, an arbitration management conference shall be held among the parties and/or their attorneys or other representatives and the arbitrator(s). Unless the parties agree otherwise, the Arbitration Management Conference will be conducted by telephone conference call rather than in person. At the Arbitration Management Conference the matters to be considered shall include, without limitation: the issues to be arbitrated; ii the date, time, place, and estimated duration of the hearing; iii. the resolution of outstanding discovery issues and establishment of discovery parameters, iv. the law, standards, rules of evidence and burdens of proof that are to apply to the proceeding; the exchange of stipulations and declarations regarding facts, exhibits, witnesses, and other issues; vi the names of witnesses (including expert witnesses), the scope of witness testimony, and witness exclusion; vii. the value of bifurcating the arbitration into a liability phase and damages phase; viii. the need for a stenographic record; ix. whether the parties will summarize their arguments orally or in writing; the form of the award; xi. any other issues relating to the subject or conduct of the arbitration; xii. the allocation of attorney's fees and costs; Rules Amended and Effective November 1, 2009. Introduction Revised October 1, 2017. 13 xiii. the specification of undisclosed claims; xiv. the extent to which documentary evidence may be submitted at the hearing; XV. the extent to which testimony may be admitted at the hearing telephonically, over the internet, by written or video-taped deposition, by affidavit, or by any other means; xvi. any disputes over the AAA's determination regarding whether the dispute arose from an individually-negotiated employment agreement or contract, or from an employer plan (see Costs of Arbitration section). The arbitrator shall issue oral or written orders reflecting his or her decisions on the above matters and may conduct additional conferences when the need arises. There is no AAA administrative fee for an Arbitration Management Conference. The arbitrator shall have the authority to order such discovery, by way of deposition, interrogatory, document production, or otherwise, as the arbitrator considers necessary to a full and fair exploration of the issues in dispute, consistent with the expedited nature of arbitration. The AAA does not require notice of discovery related matters and communications unless a dispute arises. At that time, the parties should notify the AAA of the dispute so that it may be presented to the arbitrator for determination. If the parties disagree as to the locale, the AAA may initially determine the place of arbitration, subject to the power of the arbitrator(s), after their appointment to make a final determination on the locale. All such determinations shall be made having regard for the contentions of the parties and the circumstances of the arbitration. The arbitrator shall set the date, time, and place for each hearing. The parties shall respond to requests for hearing dates in a timely manner, be cooperative in scheduling the earliest practicable date, and adhere to the established hearing schedule. The AAA shall send a notice of hearing to the parties at least 10 days in advance of the hearing date, unless otherwise agreed by the parties. 14 RULES AND MEDIATION PROCEDURES American Arbitration Association If the arbitration agreement does not specify the number of arbitrators or the parties do not agree otherwise, the dispute shall be heard and determined by one arbitrator. Qualifications i Neutral arbitrators serving under these rules shall be experienced in the field of employment law. il Neutral arbitrators serving under these rules shall have no personal or financial interest in the results of the proceeding in which they are appointed and shall have no relation to the underlying dispute or to the parties or their counsel that may create an appearance of bias. iii. The roster of available arbitrators will be established on a non-discriminatory basis, diverse by gender, ethnicity, background, and qualifications. iv. The AAA may, upon request of a party within the time set to return their list or upon its own initiative, supplement the list of proposed arbitrators in disputes arising out of individually-negotiated employment contracts with persons from the Commercial Roster, to allow the AAA to respond to the particular need of the dispute. In multi-arbitrator disputes, at least one of the arbitrators shall be experienced in the field of employment law. If the parties have not appointed an arbitrator and have not provided any method of appointment, the arbitrator shall be appointed in the following manner: i Shortly after it receives the Demand, the AAA shall send simultaneously to each party a letter containing an identical list of names of persons chosen from the Employment Dispute Resolution Roster. The parties are encouraged to agree to an arbitrator from the submitted list and to advise the AAA of their agreement ii If the parties are unable to agree upon an arbitrator, each party to the dispute shall have 15 days from the transmittal date in which to strike names objected to, number the remaining names in order of preference, and return the list to the AAA. If a party do