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Petitioner, V No. _________ ================================================================ In The Supreme Court of the United States --------------------------------- --------------------------------- NORTHERN KENTUCKY AREA DEVELOPMENT DISTRICT, Petitioner, v. DANIELLE SNYDER, Respondent. --------------------------------- --------------------------------- On Petition For Writ Of Certiorari To The Supreme Court Of Kentucky --------------------------------- --------------------------------- PETITION FOR WRIT OF CERTIORARI --------------------------------- --------------------------------- JEFFREY C. MANDO, ESQ. (#43548) JENNIFER H. LANGEN (#87690) ADAMS, STEPNER, WOLTERMANN & DUSING, PLLC 40 West Pike Street Covington, KY 41012-0861 859.394.6200 859.392.7263 – Fax [email protected] Attorneys for Petitioner, Northern Kentucky Area Development District ================================================================ COCKLE LEGAL BRIEFS (800) 225-6964 WWW.COCKLELEGALBRIEFS.COM i QUESTION PRESENTED The question presented is: Whether the Federal Arbitration Act (FAA) preempts Ky. Rev. Stat. § 336.700(2), which in- validates arbitration agreements between an employer and an employee, or whether the statute instead presents a “generally ap- plicable contract defense” that can withstand preemption under the FAA. Ky. Rev. Stat. § 336.700(2) provides: “[N]o employer shall re- quire as a condition or precondition of employ- ment that any employee or person seeking employment waive, arbitrate, or otherwise di- minish any existing or future claim, right, or benefit to which the mployeee or person seek- ing employment would otherwise be entitled under any provision of the Kentucky Revised Statutes or any federal law.” The Supreme Court of Kentucky refused to enforce the par- ties’ arbitration agreement because it held that the statute – when applied to an arbitra- tion agreement between an employer and its employee – provided a generally applicable contract defense. The FAA provides that arbitration agreements “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2 (emphasis added). It establishes a rule of equal-treatment: A court may invalidate an arbitration agreement based on “generally applicable contract defenses” like fraud ii QUESTION PRESENTED – Continued or unconscionability, but not on legal rules that “apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue.” Kindred Nursing Ctrs. Ltd. P’ship v. Clark, 137 S. Ct. 1421 (2017) (citing AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011)). Only two years ago, the Kindred Nursing Court unanimously reversed a decision of the Kentucky Supreme Court holding that the FAA did not preempt a state rule that singled out arbitration agree- ments for less favorable treatment than other types of contracts. The Kentucky Supreme Court has again misapprehended this Court’s clear interpretation of the FAA, and again applied a state rule that disfavors arbitration agreements. Its decision is an untenable in- terpretation of the FAA, as a matter of law and logic. iii PARTIES Petitioner, Northern Kentucky Area Development District (NKADD), was the defendant-appellant below. Respondent, Danielle Snyder, was the plaintiff- appellee below. STATEMENT OF RELATED CASES The following cases are directly related to the Pe- tition before the Court: Snyder v. Northern Kentucky Area Develop- ment District, Kentucky Supreme Court, Case No. 2017-SC-000277-DG, Judgment entered on September 27, 2018, and Petition for Re- hearing denied on April 18, 2019. Snyder v. Northern Kentucky Area Develop- ment District, Kentucky Court of Appeals, Case No. 2015-CA-001167-MR, Judgment en- tered on May 12, 2017. Snyder v. Northern Kentucky Area Develop- ment District, Boone Circuit Court, Case No. 14-CI-01622, Order denying NKADD’s Motion to Stay the Proceedings and Compel Arbitra- tion entered on March 23, 2015, and Order denying NKADD’s Renewed Motion to Com- pel Arbitration entered on July 17, 2015. iv TABLE OF CONTENTS Page QUESTION PRESENTED ..................................... i PARTIES ................................................................. iii STATEMENT OF RELATED CASES ................... iii TABLE OF CONTENTS ........................................ iv TABLE OF AUTHORITIES ................................... vi PETITION FOR WRIT OF CERTIORARI ............ 1 OPINIONS BELOW ............................................... 1 JURISDICTION ..................................................... 1 RELEVANT CONSTITUTIONAL AND STATU- TORY PROVISIONS ........................................... 2 STATEMENT.......................................................... 3 A. STATEMENT OF THE CASE ..................... 5 B. PROCEEDINGS BELOW ............................ 7 REASONS FOR GRANTING WRIT OF CERTIO- RARI .................................................................... 11 I. THE KENTUCKY SUPREME COURT HAS AGAIN DECIDED AN IMPORTANT FAA ISSUE IN A MANNER THAT CONFLICTS WITH THIS COURT’S PRECEDENT ........ 11 II. SNYDER DEPARTS FROM THE LAW AP- PLIED IN KENTUCKY FEDERAL COURTS, THEREBY CREATING A SPLIT OF AU- THORITY ON A QUESTION OF FEDERAL LAW THAT GIVES RISE TO FORUM SHOP- PING AND OUTCOME-DETERMINATIVE DECISIONS BASED ONLY ON JURIS- DICTION ...................................................... 15 v TABLE OF CONTENTS – Continued Page III. EFFORTS TO UNDERMINE THE FAA CANNOT BE TOLERATED ........................ 18 IV. THE DECISION BELOW UNDERMINES THE LIBERAL FEDERAL POLICY FA- VORING ARBITRATION AND OPENS THE DOOR FOR OTHER STATES TO FOLLOW SUIT ............................................................. 21 CONCLUSION ....................................................... 24 APPENDIX Supreme Court of Kentucky, Opinion, Septem- ber 27, 2018 ...................................................... App. 1 Kentucky Court of Appeals, Opinion, May 12, 2017 ................................................................ App. 16 Kentucky Boone Circuit Court, Division I, Or- der, July 17, 2015 ........................................... App. 30 Kentucky Boone Circuit Court, Division III, Or- der, March 23, 2015 ........................................ App. 45 Supreme Court of Kentucky, Order Denying Pe- tition for Rehearing, April 18, 2019 ............... App. 51 vi TABLE OF AUTHORITIES Page CASES AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011) ................................................... 4, 5, 11, 13, 14 Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265 (1995) ................................................................ 20 Citizens Bank v. Alafabco, Inc., 539 U.S. 52 (2003) ....................................................................... 19 DirectTV, Inc. v. Imburgia, 577 U.S. ___, 136 S. Ct. 463 (2015) ............................................ 5, 12, 20 Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681 (1996) ................................................................... 5, 12 Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612 (2018) ........ 21 Johnson v. Career Sys. Devs./DJI J.V., 2010 U.S. Dist. LEXIS 4052 (W.D.Ky.) .................. 15, 16, 17, 18 KPMG LLP v. Cocchi, 132 S. Ct. 23 (2011) ................ 19 Kindred Nursing Centers Limited Partnership v. Clark, 137 S. Ct. 1421 (2017) .......................... passim Marmet Health Care Center, Inc. v. Brown, 132 S. Ct. 1201 (2012) .............................................. 18, 19 Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 103 S. Ct. 927 (1983) ............ 21, 22 Nitro-Lift Technologies, LLC v. Howard, 133 S. Ct. 500 (2012) ................................................ 18, 19 Perry v. Thomas, 482 U.S. 483 (1987) ......................... 12 Ritz-Carlton Development Co. v. Narayan, 136 S. Ct. 799 (2016) ...................................................... 21 vii TABLE OF AUTHORITIES – Continued Page Rivers v. Roadway Express, Inc., 511 U.S. 298 (1994) ....................................................................... 19 Scherk v. Alberto-Culver Co., 417 U.S. 506 (1974) ........ 22 Schumacher Homes of Circleville, Inc. v. Spencer, 136 S. Ct. 1157 (2016) ............................................. 21 Southland Corp. v. Keating, 465 U.S. 1 (1984) ........................................................... 16, 17, 18 CONSTITUTIONAL PROVISION Supremacy Clause of the Constitution, art. VI, cl. 2 ............................................................................. 2 Statutes Cal. Corp. Code § 31512 .............................................. 16 Ky. Rev. Stat. § 336.700 ........................................... 2, 15 Ky. Rev. Stat. § 336.700(2) .................................. passim 9 U.S.C. § 1 et seq. ......................................................... 7 9 U.S.C. § 2 ........................................................ 2, 11, 17 28 U.S.C. § 1257(a) ........................................................ 2 OTHER AUTHORITIES Article: A Comparative Analysis Of The Law Regulating Employment Arbitration Agree- ments In The United States And Canada, 23 Comp. Lab. L. & Pol’y J. 1007 ................................. 22 viii TABLE OF AUTHORITIES – Continued Page Samuel Estreicher, Saturns for Rickshaws: The Stakes in the Debate over Predispute Employ- ment Arbitration Agreements, 16 Ohio St. J. on Disp. Resol. 559 (2001) ............................................ 22 David Sherwyn, Samuel Estreicher & Michael Heise, Assessing the Case for Employment
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