In October 2011, Hilltop hired Cynthia Huffman and a number of other employees to review the files of mortgage loans originated by PNC Bank. Each employee executed an employment agreement that contained both a broad arbitration clause and a survival clause. The survival clause included clauses detailing services essential to the job, the term of employment, compensation, termination, and client confidentiality. While the survival clause listed half of the agreement’s 24 clauses, it did not list the arbitration clause. Other important clauses that were not referenced in the survival clause included the noncompete, severability, and integration clauses.

Huffman reviewed loan files to determine whether lawful procedures were followed during foreclosure and other proceedings. Until the end of her employment in January 2013, Huffman regularly worked in excess of 40 hours per week, but she was not compensated at the overtime rate because Hilltop had classified her as an independent contractor. Huffman asserted that Hilltop’s classification was in error, and that the failure to compensate her and other similarly situated employees at the applicable overtime rate constituted violations by Hilltop of the Fair Labor Standards Act and the Ohio Minimum Fair Wage Standards Act.

The work-related grievances led Huffman to file a class action in federal court. Hilltop filed a motion to dismiss and compel arbitration. The district court denied Hilltop’s motion, finding that the arbitration clause had no post-termination effect because the survival clause did not include the arbitration clause. The court based its decision on the doctrines of expressio unius est exclusion alterius, which provides that the express mention of certain contractual provisions is tantamount to intentional exclusion of the others, and contra proferentum, which provides that ambiguous terms should be interpreted against the drafter’s (Hilltop’s) interests. The decision was appealed.

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