United States District Court, D. Minnesota
William Shields, et al., for and in behalf of themselves and other persons similarly situated, Plaintiffs,
General Mills, Inc., Defendant.
C. Snyder, Craig A. Brandt, Snyder & Brandt, P.A., Lucas
J. Kaster, Michelle L. Kornblit, Stephen J. Snyder, Steven
Andrew Smith, Nichols Kaster, PLLP, counsel for plaintiffs
D. Van Oort, Jeffrey P. Justman, Peter Magnuson, Faegre Baker
Daniels LLP, Kathryn Mrkonich Wilson, Marko J. Mrkonich,
Susan K. Fitzke, Littler Mendelson, PC, Keith C. Hult,
Littler Mendelson, PC, counsel for defendant
REPORT AND RECOMMENDATION
Katherine Menendez United States Magistrate Judge
District Court referred the plaintiffs' Motion for
Temporary Restraining Order and Preliminary Injunction
(“Mot.”), ECF No. 109 to this Court for a Report
and Recommendation. The Court held a phone conference on
January 25, 2018, in which counsel for both sides
participated. The defendant, General Mills, Inc., filed
a letter brief at the Court's request following that
conference. Resp. in Opp., ECF No. 118. For the reasons set
forth below, the Court recommends that the motion be denied.
RELEVANT PROCEDURAL AND FACTUAL BACKGROUND
issue of the propriety of arbitration in this matter has been
the subject of extensive litigation, both in this case and in
the closely related McLeod litigation. On January 2,
2018, Judge Davis granted General Mills's Motion to
Compel Arbitration on an Individual Basis as to almost all of
the plaintiffs in this matter, dismissed one count without
prejudice, and stayed the remainder of the litigation pending
the completion of the arbitration proceedings. Ord., ECF No.
106. Although only recently issued, Judge Davis's Order
was likely not a surprise given that the ruling was compelled
by the Eighth Circuit's decision requiring arbitration in
the virtually indistinguishable McLeod case. See
McLeod v. General Mills, Inc., 856 F.3d 1160, 1166 (8th
Cir. 2017) (finding that the plaintiffs in that case signed
agreements requiring individual arbitration of their ADEA
claims and that General Mills's motion to compel
individual arbitration should have been granted). It is
against this backdrop of a clear determination that
arbitration should proceed that the Court must now consider
the plaintiffs' efforts to halt that ongoing process.
last fall, the parties began individual arbitration for
plaintiffs from the McLeod litigation. See
Snyder Dec., ¶ 10, ECF No. 112. On December 15, 2017, an
arbitrator in one of those cases, Ms. Linda Close, issued a
written decision in favor of General Mills which included
language that praised its business practices. Resp. in Opp.
at 12-27. The plaintiffs, prompted either by this positive
language or by the unwanted ruling itself, looked for and
discovered a connection, arguably a very tenuous one, between
Arbitrator Close and General Mills. Snyder Dec., ¶ 11.
Specifically, Arbitrator Close's husband previously
worked for a non-profit, for a time held a role that required
fundraising and General Mills's charitable arm had
donated to that nonprofit. Id. Also General
Mills's former Chief Marketing Officer, who was noticed
as a potential witness, had been a board member for the same
nonprofit. Id. Finally, the plaintiffs found
photographs indicating that Arbitrator Close and her husband
attended a gala that the former Chief Marketing Officer had
also attended. Id., ¶ 15.
Close has been appointed in at least ten yet-to-be-scheduled
other arbitrations relating to age-discrimination claims and
General Mills. Mem. in Supp. at 4, ECF No. 111. The scheduled
arbitration giving rise to the plaintiffs' emergency
motion is that of Michael Murray, one of the named plaintiffs
in this case. His arbitration is currently scheduled to begin
on January 29, 2018. Id.
Decision Regarding Arbitrator Close's Alleged
their investigation, the plaintiffs filed an objection with
the American Arbitration Association (“AAA”),
arguing that Arbitrator Close was plainly biased in favor of
General Mills and should not be allowed to preside over any
further planned arbitrations of age-discrimination claims
brought by the plaintiffs in this matter against General
Mills. Snyder Dec., ¶ 22, Ex. E. The objection prompted
the arbitrator to make a supplemental submission to the AAA
describing her complete lack of knowledge as to whether
General Mills ever donated to her husband's former
employer and suggesting that she had no idea who the chief
marketing officer was, much less of his connection to the
nonprofit at issue. Id., Ex. F.
plaintiffs were unsatisfied by this submission and argued
that the AAA should disqualify Arbitrator Close from
presiding over the planned age-discrimination arbitrations.
Id.. Ex. G. However, the AAA refused to disqualify
the arbitrator, finding no violation of the AAA's
Administrative Review Council's Review Standards.
Id., Ex. L. The plaintiffs “reject[ed] that
decision by the Council, ” asserting that it
“contradicts the express language of the arbitration
provision in these cases” and “has no effect on
these proceedings” because the parties never agreed to
be subject to the rules upon which the Administrative Review
Council relied. Id., Ex. M. Rather, the parties
agreed only to be governed by the AAA Employment Arbitration
Rules and Mediation Procedures. Id.
plaintiffs therefore requested that the AAA postpone the
arbitration proceeding scheduled for January 29 and any other
similar arbitration proceedings involving this particular
arbitrator until the plaintiffs obtained a court ruling on
their motions to disqualify her as an arbitrator.
Id. In response, the AAA noted the rules allowing it
to conclusively decide whether an arbitrator should be
disqualified and to “assign the administration of an
arbitration to its offices.” Id., Ex. N. The
AAA further explained that the Administrative Review Council
is one of its administrative offices. Id. Because
the AAA's previous determination to affirm the
arbitrator's appointment was conclusive and because the
plaintiffs did not offer any new reason as grounds for
disqualification, the AAA reaffirmed the arbitrator's
appointment. Id. The AAA then informed the
arbitrator that the plaintiffs sought a postponement to
“pursue administrative items in Court” and that
General Mills opposed the request. Id. The
arbitrator declined to postpone the arbitration proceedings.
for a Temporary ...