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Bosse v. New York Life Insurance Co.

United States District Court, D. New Hampshire

November 13, 2019

Ketler Bossé, Plaintiff
New York Life Insurance Company, New York Life Insurance and Annuity Corp., and New York Life Insurance Company of Arizona, Defendants


          Steven J. McAuliffe, United States District Judge.

         Plaintiff Ketler Bossé filed suit against defendants, New York Life Insurance Company, New York Life Insurance and Annuity Corp., and New York Life Insurance Company of Arizona (collectively, “New York Life”), asserting various federal and state employment-related claims arising out of Bossé's 14-year affiliation with New York Life. New York Life demands that the claims be arbitrated, based on an arbitration clause found in a 2004 employment contract. Pending arbitration, New York Life seeks to have this case dismissed or stayed. Failing that, New York Life moves to dismiss Count III of Bossé's complaint (conspiracy to interfere with Bossé's civil rights) for failure to state a claim. Bossé objects.


         Bossé was affiliated with New York Life in a variety of capacities for well over a decade. He began working as a soliciting agent in the company's New Hampshire office in 2001. At that time, Bossé signed an Agent's Contract, which authorized him to “solicit applications for individual life insurance policies, individual annuity policies, individual health insurance policies, group insurance policies, and group annuity policies” on the company's behalf. Compl., Exh. C. As an “agent, ” Bossé was an independent contractor. He earned commissions based on a percentage of first-year and renewal premiums generated from his sales of New York Life insurance products. The Agent's Contract did not include an agreement to arbitrate any disputes that might arise out of that contractual relationship.

         In 2004, Bossé became an employee of the company, entering into a “Partner's Employment Agreement” with New York Life (“Partner's Agreement”). Paragraph Five of the Partner's Agreement is an arbitration clause that reads as follows:

The Partner and New York Life agree that any dispute, claim or controversy arising between them, including those alleging employment discrimination (including sexual harassment and age and race discrimination) in violation of a statute (hereinafter “the Claim”), as well as any dispute as to whether such Claim is arbitrable, shall be resolved by an arbitration proceeding administered by the NASD in accordance with its arbitration rules.

Marquez Decl., Exh. A, at ¶ 5(a). The Partner's Agreement also provides that the arbitration obligation survives termination of the agreement itself. Id. at ¶ 10.

         New York Life says the arbitration provision was specifically drafted to take into account the “history between New York Life and its many employees and agents.” Defs.' Mem. in Supp. of Mot. to Dismiss at 6. New York Life explains that the company and its employees “contemplate an ongoing relationship” at the outset, that over the years “may take a variety of forms: agent, district agent, sales manager, registered representative, corporate employee.” Id. So, say defendants, to avoid a “patchwork resolution system, ” the Partner's Agreement provides for arbitration of all claims, including those claims that may arise in a later stage of the anticipated relationship. (It is not clear why, given that explanation, the earlier 2001 Agent's Contract did not include an obligation to arbitrate any disputes that may arise in later stages of an anticipated ongoing relationship.)

         In 2005, Bossé transitioned back to an Agent's position (no arbitration agreement). In 2013, Bossé became a District Agent and, again, his contract with New York Life contained no arbitration agreement. As a District Agent, Bossé could establish his own firm separate from the New Hampshire New York Life office, and hire his own agents. Whether the District Agent Agreement Bossé signed was ever executed by New York Life is unclear at this point.

         As a District Agent, Bossé opened his own office, at significant personal cost, and hired several other agents. Bossé was New York Life's first African-American District Agent. The agents he hired were racially diverse. According to Bossé, that racial diversity provoked a strong reaction of racial animus and discrimination from some New York Life associates. As a result, Bossé alleges that the company: failed to process and underwrite insurance applications submitted by Bossé and his agents; engaged in back billing that undermined Bossé and his agents; and “stole or drove away” agents Bossé hired to work in his office. Compl. ¶ 41. Bossé further alleges that the company treated him differently than similarly situated New York Life District Agents who were white, and failed to investigate the disparate treatment complaints he made.

         On January 15, 2016, New York Life terminated Bossé's District Agent Contract, purportedly based on inaccuracies found in the electronic application process related to a particular client. Bossé contends that the termination was retaliatory, that the reasons given by New York Life for termination were pretextual, and that his contract was actually terminated based on racial discrimination. He further contends that, following termination, New York Life defamed him to his New York Life clients, many of whom then ceased doing business with him.

         Bossé filed this suit, asserting claims for discrimination and retaliation under 42 U.S.C. § 1981, conspiracy to interfere with civil rights under 42 U.S.C. § 1985, and breach of contract under 42 U.S.C. § 1981. He also asserts a host of state law claims, including claims for breach of the covenant of good faith and fair dealing, fraud, wrongful termination, tortious interference with economic advantage, violation of New Hampshire's Consumer Protection Act (RSA 358-A), breach of fiduciary duty, unjust enrichment, quantum meruit, conversion, defamation per quod, and defamation per se.

         I. Motion to Compel Arbitration

         Relying on the 2004 Partner's Agreement, New York Life insists that Bossé's current claims be dismissed in favor of arbitration because, under the terms of that Agreement, and provisions of the Federal Arbitration Act, he is obligated to arbitrate all claims he might have against New York Life before the Financial Industry Regulatory Authority (“FINRA”).

         A. Discussion

         The Federal Arbitration Act “establishes ‘a liberal federal policy favoring arbitration agreements.'” Epic Sys. Corp. v. Lewis, 138 S.Ct. 1612, 1621 (2018) (quoting Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983)) (additional citations omitted). Accordingly, the Act “requires courts to enforce covered arbitration agreements according to their terms.” Lamps Plus, Inc. v. Varela, 139 S.Ct. 1407, 1412 (2019) (citations omitted).

         Because arbitration “is a matter of contract, ” “a party cannot be required to submit to arbitration any dispute which [it] has not agreed so to submit.” Hogan v. SPAR Grp., Inc.,914 F.3d 34, 38 (1st Cir. 2019) (quoting McCarthy v. Azure,22 F.3d 351, 354 (1st Cir. 1994)) (further quotations omitted). Thus, “[i]n deciding a motion to compel arbitration, a court must ascertain whether: ‘(i) there exists a written agreement to arbitrate' . . .” Gove v. Career Sys. Dev. Corp.,689 F.3d 1, 4 (1st Cir. 2012) (quoting Combined Energies v. CCI, Inc.,514 F.3d 168, 171 (1st Cir. 2008)). Finally, “[w]hen deciding whether the parties agreed to arbitrate a certain matter (including ...

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