[author: Whitney Fore - Law Clerk]

The Ninth Circuit held that an arbitration agreement between Opus Bank and its former executive vice president Carey Brennan should be interpreted under federal, not state, law unless the parties unambiguously agreed otherwise. While Brennan’s employment contract contained a California choice-of law clause, his arbitration agreement required any employment-related dispute be resolved “by binding arbitration in accordance with the Rules of the American Arbitration Association.” Brennan argued that the arbitration agreement’s clause was substantively and procedurally unconscionable, while Opus moved to compel arbitration under the Federal Arbitration Act.

The Ninth Circuit affirmed the district court’s finding that because the contract involves interstate commerce, the FAA applies. Further, because the arbitration agreement, did not incorporate California law expressly, federal law applies. “While the Employment Agreement is clear that California’s procedural rules, rights, and remedies apply during arbitration, it says nothing about whether California’s law governs the question whether certain disputes are to be submitted to arbitration in the first place. Further, the incorporation of the AAA rules constituted “clear and unmistakable” evidence that the parties intended to have an arbitrator decide the threshold question of arbitrability. Brennan v. Opus Bank, Nos. 13-35580, 13-35598 (9th Cir. Aug. 11, 2015).