In Russell v. Citigroup, Inc., 748 F.3d 677 (6th Cir. 2014), the Sixth Circuit held that an employee who signed an arbitration agreement was not required to arbitrate a claim that arose before the agreement was executed. In reaching this determination, the court relied on the specific language in the agreement and the context in which the agreement was signed.

The Facts

Keith Russell worked for Citicorp Credit Services from 2004 to 2009. In January 2012, Russell filed a class action lawsuit against Citicorp for unpaid wages. While his case was still pending, Russell reapplied, and was hired, to work at Citicorp. At the time of his rehire, in January 2013, Russell signed what Citicorp was then using as its standard arbitration agreement.

Neither Russell’s nor Citicorp’s attorneys in the class action suit were aware that Russell had signed an arbitration agreement upon his rehire. When Citicorp’s counsel found out, they sought to compel arbitration of Russell’s pending class action claims. Russell argued, however, that the new arbitration agreement did not mandate arbitration of his previously filed claims. Both the district court and Sixth Circuit agreed.

The Analysis

The conjugation. The Sixth Circuit’s analysis in this matter reads like a grammar tutorial. Citicorp’s agreement stated that arbitration would cover disputes that “arise” between the employee and employer. As the court explains, “arise” is present-tense language, and the choice to use “arise” instead of “arose” (past tense) or “have arisen” (present perfect) suggests that the contract was, in fact, meant to cover disputes that arise in the future—not disputes that arose in the past.

Other language used in the agreement reinforced the court’s conclusion. For instance, the agreement’s preamble stated that “Citi . . . looks forward to good relations with, and among, all of its employees,” that “disagreements may arise,” and that “resolution of such disagreements will be best accomplished . . . by external arbitration.” Russell, 748 F.3d at 679–80 (emphasis added). All of this language pointed to a determination that “the parties signed this agreement to head off future lawsuits, not to cut off existing ones.” Russell, 748 F.3d at 680.

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