DENNIS JACOBS, Circuit Judge:
Eliot Cohen, a financial advisor employed by UBS Financial Services, Inc. ("UBS"), consented by contract to arbitrate "claims concerning compensation, benefits or other terms or conditions of employment" before the Financial Industry Regulatory Authority ("FINRA"), and to waive "any right to commence, be a party to or an actual or putative class member of any class or collective action arising out of or relating to [his] employment with UBS."
Cohen nevertheless initiated a putative class and collective action against UBS, asserting wage-and-hour claims under the Fair Labor Standards Act ("FLSA") and California law, including claims under California's Labor Code Private Attorneys General Act ("PAGA"). UBS moved to stay the action and compel arbitration. Without disputing that the arbitration agreement covered his claims, Cohen argued that enforcement of it was barred by Rule 13204 of the FINRA Code of Arbitration Procedure for Industry Disputes ("Industry Code"). The district court granted UBS's motion and denied Cohen's motion for reconsideration.
On appeal, Cohen argues that Rule 13204 must be treated as a "contrary congressional command" that overrides the enforceability of the arbitration agreement under the Federal Arbitration Act
Cohen argues that, under California law, his PAGA claims cannot be arbitrated. See Iskanian v. CLS Transp. Los Angeles, LLC, 59 Cal.4th 348, 173 Cal.Rptr.3d 289, 327 P.3d 129, 145 (2014), cert. denied, ___ U.S. ___, 135 S.Ct. 1155, 190 L.Ed.2d 911 (2015). We need not consider that argument because Cohen's PAGA claims are in any event time-barred.
We affirm.
The decisive facts are undisputed.
Cohen, a resident of California, was employed by UBS as a financial advisor. He entered into a contract (the "Compensation Plan"), which provided as follows:
A. 48 (emphases added).
FINRA is a self-regulatory organization that (among other things) sponsors an arbitration forum. See generally Securities and Exchange Commission Release No. 34-56145, 72 Fed.Reg. 42169, 42188-89 (Aug. 1, 2007). Use of that forum to adjudicate disputes between FINRA members and "associated persons" is governed by the Code of Arbitration Procedure for Industry Disputes ("Industry Code"). See FINRA Rule 13200(a). UBS is a FINRA member, and Cohen (a financial advisor registered with FINRA) is an associated person. See FINRA Rule 13100(a), (o), (r).
In 2011, Cohen sued UBS and its parent company, UBS AG, in the United States District Court for the Central District of California, asserting wage-and-hour claims under the FLSA and California state law. The case was transferred to the Southern District of New York, and the complaint was amended to add plaintiffs, each of whom had also entered into the Compensation Plan.
Following amendments, the operative complaint alleged: (1) an FLSA overtime claim on behalf of a putative nationwide collective of current and former UBS financial advisors, see 29 U.S.C. § 216(b), and (2) claims under the California Labor Code ("CLC") and the California Unfair Competition Law on behalf of a putative California-wide Rule 23 class, see Fed.
The defendants moved to stay the case and compel arbitration pursuant to the Federal Arbitration Act ("FAA"), 9 U.S.C. § 2 et seq., arguing that the claims were covered by the arbitration agreements executed by each of the plaintiffs. In opposition, the plaintiffs argued that Rule 13204 of the Industry Code prohibited UBS from enforcing those arbitration agreements during the pendency of a putative class or collective action.
To facilitate appeal, the parties agreed to dismissal of the case with prejudice and stipulated that the plaintiffs would not pursue FINRA arbitration. See 9 U.S.C. § 16. Cohen then appealed the district court orders compelling arbitration and denying reconsideration.
We review de novo the grant of a motion to compel arbitration, Cap Gemini Ernst & Young, U.S., L.L.C. v. Nackel, 346 F.3d 360, 364 (2d Cir.2003); denial of a motion for reconsideration is reviewed for abuse of discretion, RJE Corp. v. Northville Indus. Corp., 329 F.3d 310, 316 (2d Cir.2003).
Under the FAA, "[a] written provision in ... a contract ... to settle by arbitration a controversy thereafter arising out of such contract ... 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. Courts may compel arbitration of "only those disputes ... that the parties have agreed to submit," Granite Rock Co. v. Int'l Bhd. of Teamsters, 561 U.S. 287, 302, 130 S.Ct. 2847, 177 L.Ed.2d 567 (2010) (internal quotation marks omitted), and "as with any other contract, the parties' intentions control," Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 559 U.S. 662, 682, 130 S.Ct. 1758, 176 L.Ed.2d 605 (2010) (internal quotation marks omitted). If the parties intended to arbitrate a dispute, courts are generally required to "enforce [such] agreements ... according to their terms." CompuCredit Corp. v. Greenwood, ___ U.S. ___, 132 S.Ct. 665, 669, 181 L.Ed.2d 586 (2012). However, enforceability can be "overridden by a contrary congressional command." Id. (internal quotation marks omitted).
Cohen must therefore establish both that enforcement of the arbitration clause (including the class and collective action waivers) would be "contrary" to Rule 13204, and that Rule 13204 qualifies as a "congressional" command. CompuCredit, 132 S.Ct. at 669. We reject the first premise and need not reach the second.
Enforcement of the UBS Compensation Plan would not be "contrary" to Rule 13204 because the Rule bars neither the enforcement of pre-dispute waivers of class and collective action procedures nor the arbitration of Cohen's individual claims.
Rule 13204 says nothing about class action and collective action waivers, and cannot be read to bar enforcement of them. True, the Rule bars arbitration of a claim so long as it is embedded in a class action or collective action; but it does not preserve the right to assert a claim in class or collective form notwithstanding a contractual waiver. Section (a) of the Rule, which governs class actions, provides in relevant part:
FINRA Rule 13204. Section (b) sets forth nearly identical provisions as to collective action claims:
Id.
Subsections (a)(1) and (b)(1) have no application here. They make the FINRA arbitration forum unavailable for class and collective action claims; but UBS does not seek to compel class or collective arbitration of Cohen's claims. Subsections (a)(2) and (b)(2) are likewise inapplicable. They bar FINRA arbitration of claims that are the subject of parallel proceedings in judicial or other (i.e. non-FINRA) arbitral fora. Here, there is no risk of duplicative proceedings: UBS seeks FINRA arbitration in lieu of federal litigation.
Cohen rests entirely on subsections (a)(4) and (b)(4), which bar the enforcement of arbitration agreements under certain circumstances. He contends that these subsections render unenforceable the agreement to arbitrate and the class and collective action waivers.
Cohen conflates an agreement to arbitrate with a waiver of the right to assert claims in class or collective form. Subsections (a)(4) and (b)(4) bar the enforcement of arbitration agreements under certain circumstances; but neither subsection has anything to say about the enforceability of the waivers. Although such waivers are often found in arbitration agreements (and are so incorporated in this case), the two contract terms are conceptually distinct.
Cohen argues that subsection (a)(4)'s use of the word "withdraws" implies that class and collective action waivers are enforceable only when made after a dispute arises, and that pre-dispute waivers are unenforceable. However, the Rule also provides that parties in Cohen's position may "elect[]" not to participate in a class and collective action; clearly, one may "elect" to forgo a procedural right before a dispute arises.
For the foregoing reasons, we conclude that Rule 13204 does not prohibit the enforcement of pre-dispute waivers of class and collective action procedures.
Because Cohen waived the right to bring his claims on a class or collective basis (and because those waivers are enforceable), only his individual claims remain. Rule 13204 presents no barrier to the arbitration of those individual claims, which are clearly covered by the arbitration agreement. Under the FAA, that agreement can — and therefore must — be enforced. 9 U.S.C. § 2.
Finally, Cohen argues that, even if his other claims must be arbitrated, California law bars the arbitration of his PAGA claims. Since Cohen concedes that his claims under PAGA are untimely, we need not decide whether this doctrine of California law is consistent with the FAA. See Iskanian v. CLS Transp. Los Angeles, LLC, 59 Cal.4th 348, 173 Cal.Rptr.3d 289, 327 P.3d 129, 145 (2014), cert. denied, ___ U.S. ___, 135 S.Ct. 1155, 190 L.Ed.2d 911 (2015). Cohen asserts that one of the plaintiffs below — Charles Shoemaker — had timely PAGA claims; but Shoemaker has not joined this appeal. See supra footnote 3. Accordingly, we lack jurisdiction to consider any appellate argument he may have had. See Gusler, 700 F.3d at 648-49.
For the foregoing reasons, the orders of the district court are affirmed.