The Federal Arbitration Act; Whether there was an “agreement to arbitrate”; The Ending Forced Arbitration of Sexual Assault & Sexual Harassment Act (EFAA or the Act); Whether the EFAA allowed plaintiff to take her claim to the courts; 9 USC § 402(a); § 401 application note; When the claim “accrued”; When the “dispute” arose; Olivieri v Stifel, Nicolaus & Co (2d Cir); Famuyide v Chipotle Mexican Grill, Inc (8th Cir); United Wholesale Mortgage (UWM)

[This appeal was from the ED-MI.] In a matter of first impression in this circuit, the court held that “the EFAA applies to claims that accrue after its date of enactment and to disputes, understood as controversies between the parties, that arise after that date.” It reversed the district court’s ruling compelling arbitration and remanded. Plaintiff-Memmer sued her prior employer, defendant-UWM, alleging discrimination, including sexual harassment. UWM moved to dismiss and compel arbitration under their employment agreement. The district court granted the motion. Memmer argued that she had the right to sue under the EFAA regardless of the agreement. UWM argued that her claims accrued before the EFAA was enacted. The court first found that “the district court correctly concluded that Memmer and UWM agreed to arbitrate[,]” and that her claims fell within the scope of that agreement. However, it explained that Congress’s recently enacted EFAA “allows an individual claiming sexual harassment or assault to elect judicial resolution, rather than arbitral resolution of their claims, even if the individual previously agreed to arbitrate such claims if they arose.” In § 401’s application note, Congress stated that this Act “‘shall apply with respect to any dispute or claim that arises or accrues on or after the date of enactment of this Act,’ which was” 3/3/22. After examining the EFAA’s language, the court held that “the EFAA applies to claims that accrue and disputes that arise on or after” 3/3/22. It concluded that each of these clauses has a separate meaning, citing a Second Circuit case, Olivieri, and an Eighth Circuit case, Famuyide, in support. It then considered whether Memmer’s sexual harassment “claim” accrued, or the “dispute” arose, on or before 3/3/22. It held that her “claim accrued before the date of enactment . . . because she quit her job several months prior, and any injury, therefore, preceded that date. However, all subsequent events, including the filing of a charge with the EEOC, took place after the date of enactment. When the dispute—the controversy between the parties—arose under the facts of this case is a question best answered in the first instance by the district court.” Thus, the court remanded “for the district court to decide and, if needed, obtain a factual record on which to do so.”