Case 3:22-cv-06857-JD Document 52 Filed 01/13/23 Page 1 of 5
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`EMMANUEL CORNET, et al.,
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`Plaintiffs,
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`v.
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`TWITTER, INC.,
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`Defendant.
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`Case No. 3:22-cv-06857-JD
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`ORDER RE ARBITRATION
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`Named plaintiffs Emmanuel Cornet, Justine De Caires, Grae Kindel, Alexis Camacho, and
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`Jessica Pan sued defendant Twitter, Inc., on behalf of themselves and a putative class of other
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`Twitter employees, alleging that recent layoffs by Twitter violated federal and state laws. Dkt.
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`No. 1 (original complaint); Dkt. No. 40 (second amended complaint). Twitter asks for an order
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`compelling the individual claims of these named plaintiffs to arbitration pursuant to the parties’
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`arbitration agreements and the Federal Arbitration Act (FAA). Dkt. No. 18.1 Plaintiffs filed an
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`opposition. Dkt. No. 37. Arbitration is granted.
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`BACKGROUND
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`The salient facts are undisputed. Plaintiffs signed arbitration agreements as part of their
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`employment contracts with Twitter, which date from September 2017 to April 2021. Dkt. No. 18-
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`1, Ex. A (Kindel), Ex. B (Camacho), Ex. C (De Caires), Ex. D (Pan), Ex. E (Cornet). The
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`1 After Twitter filed its motion, plaintiffs amended their complaint to add three named plaintiffs
`who say that they opted out of Twitter’s arbitration agreement. Dkt. No. 40 ¶ 14-16. The claims
`of these three individuals are not at issue in this motion. For ease of reference, “plaintiffs” refers
`only to the five named plaintiffs who are the subject of Twitter’s motion.
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`Case 3:22-cv-06857-JD Document 52 Filed 01/13/23 Page 2 of 5
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`agreements state in bold that “[a]rbitration is not a mandatory condition of Employee’s
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`employment at [Twitter],” and provided plaintiffs with an opportunity to opt out. Id. at ECF pp.
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`25, 35, 44. Plaintiffs did not opt out. See id. at ECF p. 7 ¶ 8 (Callaghan declaration).
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`Twitter has identified three versions of the agreements, see Dkt. No. 18 at 3, but the
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`relevant provisions are materially the same. The arbitration agreements all expressly state that
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`they are governed by the FAA. See Dkt. No. 18-1 at ECF pp. 23, 33, 42. They cover disputes
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`“arising out of or related to” plaintiffs’ employment with Twitter, including the termination of
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`their employment. Id. Each agreement states that it applies to “disputes arising out of or relating
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`to [the] interpretation or application of this Agreement, including the enforceability, revocability
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`or validity of the Agreement or any portion of the Agreement.” Id. Each agreement also contains
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`a class action waiver, the validity and enforceability of which can only be determined by a “court
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`of competent jurisdiction and not by an arbitrator.” Id. at ECF pp. 24-25, 34, 43. The waiver
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`requires the parties “to bring any dispute in arbitration on an individual basis only, and not on a
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`class, collective, or private attorney general representative action basis.” Id.
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`LEGAL STANDARDS
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`The arbitration demand is governed by the FAA. The Court has discussed the governing
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`standards in several prior orders, which are incorporated here. See Louis v. Healthsource Glob.
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`Staffing, Inc., No. 22-cv-02436-JD, 2022 WL 4960666 (N.D. Cal. Oct. 3, 2022); Williams v. Eaze
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`Sols., Inc., 417 F. Supp. 3d 1233 (N.D. Cal. 2019). In pertinent part, the FAA’s “overarching
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`purpose . . . is to ensure the enforcement of arbitration agreements according to their terms so as to
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`facilitate streamlined proceedings.” AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 344
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`(2011). Under Section 4 of the FAA, the Court’s role “is limited to determining whether a valid
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`arbitration agreement exists and, if so, whether the agreement encompasses the dispute at issue.”
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`Lifescan, Inc. v. Premier Diabetic Servs., Inc., 363 F.3d 1010, 1012 (9th Cir. 2004). If the party
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`seeking to compel arbitration establishes both factors, the district court “must order the parties to
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`proceed to arbitration only in accordance with the terms of their agreement.” Id. “Any doubts
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`about the scope of arbitrable issues should be decided in favor of arbitration.” Williams, 417 F.
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`Supp. 3d at 1239; see also Louis, 2022 WL 4960666, at *2.
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`Case 3:22-cv-06857-JD Document 52 Filed 01/13/23 Page 3 of 5
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`Unless the parties provide otherwise, the validity and scope of an agreement to arbitrate are
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`determined by the Court. See Oracle Am., Inc. v. Myriad Grp. A.G., 724 F.3d 1069, 1072 (9th Cir.
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`2013); Alonso v. AuPairCare, Inc., No. 3:18-cv-00970-JD, 2018 WL 4027834, at *1 (N.D. Cal.
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`Aug. 23, 2018). The validity inquiry usually involves a determination of whether the arbitration
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`agreement is unenforceable because it is unconscionable. See Concepcion, 563 U.S. at 339.
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`Alternatively, parties may delegate “gateway” questions of arbitrability to an arbitrator.
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`See Alonso, 2017 WL 4551484, at *1. A delegation clause is enforceable when it manifests a clear
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`and unmistakable agreement to arbitrate arbitrability, and is not invalid as a matter of contract law.
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`See Brennan v. Opus Bank, 796 F.3d 1125, 1130 (9th Cir. 2015). Challenges to the validity of a
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`delegation clause may be directed to (1) “the validity of the delegation clause itself,” or (2) “the
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`validity of the agreement to arbitrate or to the contract as a whole.” McLellan v. Fitbit, Inc., No.
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`3:16-cv-00036-JD, 2017 WL 4551484, at *1 (N.D. Cal. Oct. 11, 2017) (citing Buckeye Check
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`Cashing, Inc. v. Cardegna, 546 U.S. 440, 444 (2006)). “[T]he Court retains authority to determine
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`any validity challenges directly addressed to delegation.” Alonso, 2018 WL 4027834, at *1 (citing
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`Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 72 (2010)). But “[i]f a party challenges the
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`overall agreement to arbitrate, without specifically challenging the delegation clause, the questions
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`of validity and enforceability will go to the arbitrator.” Id. (citing McLellan, 2017 WL 4551484,
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`at *1).
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`DISCUSSION
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`Plaintiffs’ main objection is that the arbitration agreements are unconscionable. See Dkt.
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`No. 37 at 5-6. They do not raise any contract formation issues. Twitter provided signed copies of
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`the agreements, and they are all clear and straightforward. See generally Dkt. No. 18-1. Because
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`each arbitration agreement has a delegation clause, plaintiffs must show that the clause is invalid
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`or otherwise does not encompass their unconscionability claims in order to litigate in this forum.
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`They have not done so. Plaintiffs relegated this threshold issue to a footnote, and say only
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`that the delegation clauses “are not clear and unmistakable” because they do not “actually state
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`that questions of arbitrability are delegated to the arbitrator.” Dkt. No. 37 at 5 n.3.
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`The point is not well taken. To start, the delegation clauses in all three versions of the
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`agreement state quite clearly that disputes about the enforceability and validity of the arbitration
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`agreement are “to be resolved only by an arbitrator through final and binding arbitration.” Dkt.
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`No. 18-1 at ECF pp. 23, 33, 42. This is just the kind of language which establishes that “the
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`parties clearly and unmistakably agreed to arbitrate the question of arbitrability.” Momot v.
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`Mastro, 652 F.3d 982, 988 (9th Cir. 2011) (finding adequate a delegation clause that gave
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`“arbitrators the authority to determine ‘the validity or application of any of the provisions of’ the
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`arbitration clause”); see also Mohamed v. Uber Techs., Inc., 848 F.3d 1201, 1209 (9th Cir. 2016)
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`(upholding delegation clause that provided arbitrators with “the authority to decide issues relating
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`to the ‘enforceability, revocability, or validity of the’” arbitration agreements).
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`The second and third versions of the agreement, which are applicable to De Caires, Pan,
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`and Cornet, provide even more support for delegation. In addition to the plain delegation
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`language discussed above, these agreements expressly provide that the parties “agree to bring any
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`claim in arbitration before Judicial Arbitration and Mediation Services (‘JAMS’), pursuant to the
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`then-current JAMS Rules.” Dkt. No. 18-1 at ECF pp. 34, 43. “JAMS procedures for employment
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`arbitration delegate gateway issues to the arbitrator,” Alonso, 2018 WL 4027834, at *5, and so the
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`second and third versions have two independent grounds on which to delegate the question of
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`arbitrability to the arbitrator.
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`The only remaining issue here is the enforceability of the class action waiver, which the
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`parties reserved for the Court. Plaintiffs challenge only the portion of the waiver that precludes
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`them from bringing “representative actions under the Private Attorneys General Act of 2004
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`[PAGA].” Dkt. No. 37 at 2; see also id. at 11. The grounds for this objection are unclear because
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`the operative complaint does not allege a PAGA claim. Dkt. No. 40. Plaintiffs made a passing
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`reference to “their anticipated PAGA claims,” Dkt. No. 37 at 13, but the Court can only address
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`what is presently in the record, see Hodges v. Comcast Cable Commc’ns, LLC, 21 F.4th 535, 541
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`(9th Cir. 2021) (rejecting “argument that courts should stretch to invalidate contracts based on
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`hypothetical issues that are not actually presented in the parties’ dispute”). At this time, the
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`PAGA waiver has no bearing on going to arbitration.
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`Case 3:22-cv-06857-JD Document 52 Filed 01/13/23 Page 5 of 5
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`The claims of plaintiffs Cornet, De Caires, Kindel, Camacho, and Pan are ordered to
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`CONCLUSION
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`arbitration on an individual basis. The effect of this order on the putative class in the second
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`amended complaint will be taken up later as warranted by developments in the case.
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`IT IS SO ORDERED.
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`Dated: January 13, 2023
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`JAMES DONATO
`United States District Judge
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