IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 01-16542 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, SAM DARMO, AMER DARMO and SAMUEL EINHORN, Intervenors-Appellees, v. PINNACLE NISSAN, INC., Defendant-Appellant. On Appeal from the United States District Court for the District of Arizona BRIEF OF THE PLAINTIFF-APPELLEE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ROBERT J. GREGORY Senior Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, NW Washington. D.C. 20507 (202) 663-4059 STATEMENT OF JURISDICTION The Jurisdictional Statement of Appellant Pinnacle Nissan(“Pinnacle”) is incomplete. This is a public enforcement action brought by the Equal Employment Opportunity Commission (“EEOC”) pursuant to Section 706 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”). Supplemental Excerpts of Record of the Equal Employment Opportunity Commission(“SER-EEOC”) at 1. The district court had jurisdiction of the case under 28 U.S.C. §§ 1331,1337,, 1343, and 1345. Three individuals, Sam Darmo, Amer Darmo, and Samuel Einhorn, intervened in the EEOC's action, Excerpts of Record (“ER”) at Tab 1, p.2, as authorized under Section 706 (f)(1) of Title VII, 42 U.S.C. § 2000e-5(f)(1). .Pinnacle moved to compel arbitration of the Intervener' claims pursuant to arbitration agreements that these individuals were required to sign as a condition of employment with Pinnacle. SER-EEOC at7; ER at Tab1, p. 6. In its motion, Pinnacle sought to stay the EEOC's action, pursuant to Section 3 of the Federal Arbitration Act, 9 U.S.C. § 3 (“FAA”).<1> SER at . On June 15, 2001, the district court entered an order denying Appellant's motion to compel and stay. Excerpts of Record (“ER”) at Tab 1. The district court's order, although interlocutory in nature, is appealable under the FAA, which authorizes appeals from orders “refusing a stay of any action under section 3 of this title.”9 U.S.C.§ 16(a) (1)(A).<2> Pinnacle had 60 days from the date of entry of the district court's order to file its notice of appeal. See F.R.A.P. 4(a)(1) (in cases in which “the United States or an officer thereof is a party,” notice of appeal must be filed within 60 days “after the entry of the judgment or order appealed from”).Pinnacle filed its notice of appeal, titled “Defendant's Notice of Appeal from Order Denying Amended Motion To Compel Arbitration and Motion to Stay,” on July 13, 2001, ER at Tab 2, well within the 60-day deadline. ER at Tab 2. The appeal, therefore, is properly before this Court. STATEMENT OF THE ISSUE The district court denied Pinnacle's motion to compel and stay, ruling that the arbitration agreements between the Intervener and Pinnacle were unenforceable. In reaching that conclusion, the court relied on Duffield v. Robertson Stephens & Co., 144 F.3d 1182 (9th Cir. 1998) the then-controlling precedent of this Court, ER at Tab 1, pps.6-8 a precedent that this Court has since set aside. See EEOC v. Luce, Forward, Hamilton. & Scripps, 303 F.3d 483 (6th Cir. 2001).<3> The issue is whether the Supreme Court's intervening decision in EEOC v. Waffle House, Inc.,534 U.S. 279 (2002), which addresses a point not at issue in Dufffield –- the impact of private arbitration agreements on the EEOC's enforcement authority -- provides an alternative legal ground for affirming the district court's decision to deny the motion to compel and stay. COUNTER STATEMENT OF THE CASE The EEOC commenced this public enforcement action in September 2000, charging Pinnacle with multiple violations of Title VII. SER-EEOC at 1. The EEOC sued at the behest of three charging parties, Sam Einhorn, Sam Darmo, and Amer Darmo, but also claimed discrimination of the same kind against a “class of employees.” Id. at . The EEOC first claimed that Pinnacle “has engaged in unlawful employment practices at its Scottsdale, Arizona location in violation of Section 703(a) of Title VII, 42 U.S.C.2000e-2(a), by “subjecting charging party Sam Einhorn to discrimination based on his national origin and subjecting both Darmo charging parties and a class of middle-eastern employees to a hostile work environment due to national origin.” SER-EEOC at 2-3. The EEOC cited as examples of the discrimination “[m]anagement officials referring to charging parties as ‘sand nigger,' ‘terrorist,' and ‘camel jockey'” and “[m]anagement officials ridiculing Assyrian cultural practices and speech.” Id. at 3. The EEOC also claimed that Pinnacle engaged in unlawful religious discrimination in violation of section 703 of Title VII. This discrimination, the Commission alleged, included “subjecting Sam Einhorn to discrimination based on his religion, as well as “[m]anagement officials referring to persons of the Jewish faith as ‘kikes' and to charging party Einhorn as a ‘fat Jew bastard.'” SER at . The EEOC further alleged that Pinnacle presented “to Mr. Einhorn , the son of concentration camp survivors, a pay stub with the designation ‘HEAVY HITLER.'” Finally, the EEOC claimed that Pinnacle “has engaged in and is continuing to engage in “unlawful employment practices,” in violation of Section 704 of Title VII, 42 U.S.C. §2000e-3(a), “by retaliating against a class of employees, which includes charging parties, for opposing practices and participating in an investigation into the unlawful practices.” SER-EEOC at 4. The EEOC cited as one example of the retaliatory conduct “threatening current and former employees with legal action because of their involvement in protected activity.” Id. at 5. In its complaint, the EEC sought to enjoin Pinnacle “from engaging in discrimination on the basis of national origin, religion, or retaliation.” Id. at 4-5. The EEC also sought an order requiring Pinnacle “to institute and carry out policies, practices, and programs which provide equal employment opportunities for employees and which eradicate the effects of their past and present unlawful employment practices.” Id. at 5. Finally, the EEC sought to recover monetary damages (including punitive damages) for the victims of Pinnacle's illegal conduct. This included the charging parties and a “class” of similarly-situated employees. Id. The EEC “respectfully requested] a trial by jury on all appropriate claims for Relief set forth in [its] complaint.” Id. at 6. Although the EEC sought relief for the three charging parties and a “class of employees,” none of these individuals had party status in the EEC's suit. That changed, in December 2000, when Sam Darmo, Amer Dharma, and Sam Einhorn exercised their right under Title VII (42 U.S.C. § 2000e-5(f)(1)) to intervene in the EEC's existing action. ER at Tab 4, p. 4 (Docket Entries). Pinnacle responded to this development by moving, in December 2000, to compel arbitration of the Intervener' claims and stay the EEC's action. SER-EEC at 7-21. The EEC argued that its action could not be stayed, even assuming the enforce ability of the arbitration agreements because the EEC's “enforcement authority is independent of any private agreement to arbitrate” and the EEC “is not a party to any compulsory arbitration agreement which may have been executed in this case.” Id. at 26. Pinnacle acknowledged the EEC's argument on this point but urged the court to reject the argument “because it disregards the fact that the EEC is prosecuting claims in this lawsuit on behalf of three Charging Parties . . . who signed Agreements to arbitrate their claims against Defendant. Id. at 43 (Emphasis in original). Pinnacle relied, in part, on the Fourth Circuit's Waffle House decision in urging that the “EEC's public interest argument is far from persuasive and is no ground for wasting the resources of the parties and the Court by going forward with this litigation while duplicative arbitration is taking place.” Id. at 45 (citing “EEC v. Waffle House, Inc., 193 F.3d 805, 812-13 (4th Cir. 1999), cert. granted, 121 S.C. 1401 (U.S. Mar. 26, 2001)”). In a similar vein, Pinnacle dismissed the EEC's argument that “the Court should not stay this action because it is entitled to ‘fully litigate this case to recover specific relief (including monetary recovery for alleged discrimination) –- notwithstanding the existence of the Arbitration agreements.” SEA-EEC at 45. Pinnacle assailed this argument as being “in direct conflict with almost every appellate-level decision that has addressed the issue.” Id. (citing, e.g., Waffle House, Inc., 193 F.3d at 812-13). The EEC also argued, in the alternative, that the arbitration agreements at issue were unenforceable, even as a private matter. At the time, controlling Ninth Circuit precedent prohibited the enforcement of agreements that mandated arbitration of Title VII claims as a condition of employment. See Duffield,144 F.3d at 1185. In arguing against the enforce ability of the arbitration agreements, the EEC relied, in part, on the then-controlling Duffed precedent. SEA-EEC at 33-34. The EEC, however, also pointed to a number of defects in the arbitration agreements at issue. Id. at 35-37. So, too, did the Intervener.<4> The Intervener, for example, argued that the agreements at issue were “lopsided” in nature, granting Pinnacle “the exclusive power to create the list of arbitrators from which both parties subsequently select their choice of proposed arbitrator.” The Intervener also maintained that the arbitration agreements contained “crippling ‘cost-sharing' provision],” including provisions that required the Intervener to pay half of the arbitrator's fees, which “would make the process so costly that Intervening Plaintiffs would be forced to abandon their claims altogether.” Id. at . Finally, the Intervener asserted that they “did not knowingly agree to waive their statutory right under Title VII to a judicial forum, because [Pinnacle] affirmatively misled them of the nature of the agreements] it directed them to sign.” Id. at . In ruling that the arbitration agreements were unenforceable and, thus, incapable of supporting an order to compel and stay under Section 3 of the FAA, the district court relied solely on the Duffed precedent. ER at Tab 1,pps.6-8. The court acknowledged, however, that the Intervener had asserted “numerous [other] arguments as to why the Arbitration Agreements are unenforceable.” Id.,p. 8. The court felt no “need” to address those arguments in light of its reliance on Duffed. Id. Upon filing its notice of appeal, Pinnacle sought and obtained a series of “procedural” stay orders in this Court, premised on the view that this appeal turned solely on the continued viability of the Duffed precedent. Pinnacle claimed the right to wait out the appeal until the Duffed issue was resolved in one of the pending Ninth Circuit cases that was set to consider the issue. Meanwhile, Pinnacle continued to seek enforcement of the arbitration agreements in the district court. ER at Tab 3 (Docket Entries). During this same period of time, the Supreme Court heard argument in the Waffle House case. The Court issued its opinion on January 15, 2002, see EEC v. Waffle House, Inc., 534 U.S. 279 reversing the very Fourth Circuit decision on which Pinnacle relied in support of the stay portion of its motion to compel. SUMMARY OF ARGUMENT Pinnacle's attempt to reduce this case to a referendum (or requiem) on the Duffed precedent is misplaced. Although the district court relied upon Duffed in denying Pinnacle's motion to compel and stay, other arguments against enforce ability were advanced in the district court, and the Supreme Court decided a case, in the interim, EEC v. Waffle House, Inc., 534 U.S. 279 (2002), that provides an alternative legal ground for affirming the district court's decision. This Court's review of the district court's decision is not confined to the narrow legal ground on which the court relied in ruling against Pinnacle. Pinnacle claims to have enforceable arbitration agreements with the Intervener. If true, the proper remedy is to dismiss the Intervener from the case, not to compel arbitration of the Intervener' claims and stay the EEC's action, pending those arbitrations, the remedy sought by Pinnacle. A dismissal would force the Intervener to either forgo their claims altogether or assert them in the arbitral forum, as per the agreements. It would not, however, impermissibly interfere with the EEC's enforcement authority. The FAA's compel and stay procedure may not be used, in this context, because the EEC is not a party to any arbitration agreement with Pinnacle and may not have its enforcement authority curtailed by the private arbitration agreements. If the Supreme Court's Waffle House, decision means anything, it means that. A remand is not necessary in this case. This Court can and should affirm on the basis of Waffle House, leaving in place the district court's decision denying Pinnacle's motion to compel and stay. The Intervener, moreover, have a number of arguments, rooted in the unconscionability doctrine, for denying enforcement of the arbitration agreements. The Intervener claim that at least some of these arguments can be taken up by this Court, in the first instance, on appeal. By resolving these arguments now, this Court can avoid the piecemeal appeals that would be engendered by Pinnacle's strategy of forcing the Court into a posture of single-issue review. ARGUMENT THE DISTRICT COURT'S DECISION SHOULD BE AFFIRMED ON THE ALTERNATIVE LEGAL GROUND SUPPLIED BY THE SUPREME COURT'S INTERVENING DECISION IN THE WAFFLE HOUSE CASE. Pinnacle claims that “[t]his appeal presents the very narrow issue of whether the district court's decision to deny the motion to compel arbitration due to Duffed should be reversed because of its reliance on Duffed, which is no longer valid.” Pinnacle Br. at 6. In fact, this appeal is not nearly so narrow. The Intervener have lodged a number of objections to the arbitration agreements in this case, based on Arizona's unconscionability doctrine. The district court took note of these arguments in its written order but opted to decide Pinnacle's motion on the basis of Duffed, ER at Tab 1, p. 8. which was then the controlling precedent of this Court. Moreover, in the interim, the Supreme Court decided EEC v. Waffle House, Inc., 534 U.S. 279 (2002), which resolved an issue not addressed in Duffed –- the effect of private arbitration agreements on the EEC's public enforcement authority. Because this Court “may affirm the judgment on grounds on which the district court has not ruled, “ Western Ctr. for Journalism v. Cederquist, 235 F.3d 1153, 1157 (9th Cir. 2000), all of these issues are in play. A. Under Waffle House, The EEC Has A Statutory Right To Carry Out Its Public Enforcement Role Unhindered By Any Private Arbitration Agreements Between Individuals And Their Employers. In EEC v. Waffle House, Inc., 534 U.S. 279 (2002), the Supreme Court granted certiorari to determine “whether an agreement between an employer and an employee to arbitrate employment-related disputes bars the EEC from pursuing victim-specific judicial relief (such as back pay, reinstatement, and damages), in an enforcement action alleging that the employer has violated Title I of the American with Disabilities Act (ADA).” Id. at 282.The Court held that a private arbitration agreement to which the EEC is not a party does not have such a limiting effect. The EEC may sue in its own name and recover full make whole relief (and other monetary damages) for the individual or individuals victimized by the discrimination. Id. at 289-300. The Court based its holding on a number of subsidiary rulings. The Court first ruled that, under Title VII”s enforcement scheme,<5> the EEC has independent suit authority that it can exercise in the public interest as it sees fit. The EEC is not a mere “proxy for the employee,” nor does it “stand in the employee's shoes. Id. at 297-98. The statute makes the EEC “the master of its own case and confers on the agency the authority to evaluate the strength of the public interest at stake.” Id. at 291. It is “the agency's province – not that of a court – to determine whether public resources should be committed to the recovery of victim-specific relief. And if the agency makes that determination, the statutory text unambiguously authorizes it to proceed in a judicial forum.” Id. at 291-92. The Supreme Court was persuaded that, “whenever the EEC chooses from among the many charges filed each year to bring an enforcement action in a particular case, the agency may be seeking to vindicate a public interest.” Id. at 296. This “public interest” role vested the EEC with the”authority to pursue victim-specific remedies regardless of the forum that the employer and employee have chosen to resolve their disputes.” Id. To hold otherwise, the Court opined, “would undermine the detailed enforcement scheme created by Congress simply to give greater effect to an agreement between private parties that does not even contemplate the EEC's statutory function.” Id. at 296. The Supreme Court had no difficulty reconciling this view of the EEC's enforcement role with the provisions of the FAA. The Court ruled that placing the EEC outside the reach of a private arbitration agreement to which it is not a party is perfectly consistent with the FAA. That Act "does not mention enforcement by public agencies; it ensures the enforce ability of private agreements to arbitrate, but otherwise does not purport to place any restriction on a nonparty's choice of judicial forum." Id at 289. "[N]othing in the statute authorizes a court to compel arbitration of any issues, or by any parties, that are not already covered by the agreement." Id. Nothing suggests that "the existence of an arbitration agreement between private parties materially changes the EEC's statutory function or the remedies otherwise available." Id. at 280. B. An Order Staying The EEC's Action, Pending The Arbitration Of The Intervener' Claims, As Sought By Pinnacle, Would Impermissibly Interfere With The EEC's Statutory Right To Carry Out It's Public Enforcement Role Pinnacle has not sought to compel the EEC to arbitrate. It has, however, sought to stay the EEC's action pending the arbitration of the Intervener' claims. The stay remedy would subordinate the EEC's public enforcement role to the private arbitral process, thus resulting in a "materia[l] change in the EEC's "statutory function," one that is neither consistent with Title VII's detailed enforcement scheme, nor required by the FAA. Waffle House, 534 U.S. at 280. The obvious purpose of the FAA's compel and stay procedure is to stay a party's court action while that party's claims are resolved in arbitration. The "mandatory stay provision [of the FAA] does not apply to those who are not contractually bound by the arbitration agreement." Nederlandse Eris Erts-Tankersmaatschappij N.V. v. Ibrandsten Co. 339 F.2d 440, 441. (2d Cir.1964); accord Zimmerman v. Intern Co. and Consulting, 107 F.3d 344, 346 (5th Cir. 1997); Matter of Talbott Big Foot, Inc. 887 F.2d 611, 614 (5th Cir. 1989); see also Waffle House, 534 U.S. at 289 (nothing in the FAA “authorizes a court to compel arbitration of any issues, or by any parties, that are not already covered in the agreement). Pinnacle acknowledged this point in the district court but urged that this case was distinguishable because it implicated “[g]overnmental agency representation and prosecution, . . .where the EEC is representing Charging Parties, prosecuting a lawsuit on behalf of Charging Parties." SEA at 43-44. This is the very view of the EEC's enforcement authority that the Supreme Court rejected in Waffle House,534 U.S. at 288 (“EEC does not function simply as a vehicle for conducting litigation on behalf of charging parties”). Contrary to Pinnacle's claim in the district court, SEA at 45, it is now clear that the EEC is "entitled to 'fully litigate' this case to recover specific relief (including monetary recovery for alleged discrimination) -- notwithstanding the existence of the Arbitration Agreements." Although, under Waffle House, that alone would be enough to render a stay inappropriate, in this case, the EEC claims pervasive discrimination of the ugliest kind against a "class" of employees. SEA at . The private breach of an arbitration agreement, if that is what occurred here,<6> does not justify a bar (for an indefinite period of time) on the prosecution of a public enforcement action of this magnitude.<7> That being said, an employer that enters into an enforceable arbitration agreement with an individual who later intervenes in an EEC action has a legitimate interest in seeing that the Intervener is not permitted to pursue his individual claim in court in violation of the agreement. The proper remedy, however is not stay the EEC's action, pending the arbitration of the Intervener's claim, but to dismiss the Intervener from the EEC's action, thereby holding the Intervener to the terms of the arbitration agreement,<8> while leaving the EEC free to pursue its action in court, unfettered by the private arbitration agreement.<9> C. The Court Should Affirm on Alternative Grounds, Not Reverse and Remand, as Proposed by Pinnacle Pinnacle asks this Court to reverse “the district court's decision to deny arbitration because of Duffed” and “summarily remand this case to the district court for consideration of the ‘numerous' fact-based state law challenges to the arbitration agreement that it did not have the opportunity to decide previously.”Pinnacle Br. at 5. A remand is not necessary in this case. This Court can and should affirm on the basis of the Supreme Court's intervening decision in the Waffle House case. Irrespective of Duffed, Pinnacle is not entitled to an order staying the EEC's action pending arbitration of the Intervener' claims. The district court's decision, denying Pinnancle's request for the compel and stay order was correct, even if the narrow legal ground on which the district court relied was not. That supports an affirmance, not a reversal and remand, as proposed by Pinnacle. No doubt, affirming the district court's decision on that basis would not resolve the enforce ability issues that surround the private arbitration agreements; Pinnacle, therefore, would remain free to pursue the dismissal remedy in the district court, thus leaving the door open for further litigation of the non-Duffed enforce ability issues. But those issues would become far less important to the case once it was made crystal clear that the EEC's action, which seeks full victim-specific for all concerned, cannot be stayed or otherwise subordinated to the arbitral process. The Intervener, moreover, have preserved a number of arguments against the enforcement of these arbitration agreements, grounded in the unconscionability doctrine. If this Court wants to seal the deal in this appeal, it can choose from among these arguments and hold that the arbitration agreements at issue are unconscionable. That approach, on efficiency grounds alone, is preferable to the reverse and remand procedure proposed by Pinnacle, and accords with this Court's decision in Circuit City Stores, Inc. v. Adams, 279 F.3d 889, 892-95(9th Cir. 2002) (ruling on remand from the Supreme Court, without any further factual findings by the district court, that an arbitration agreement with some of the same features as the agreement in this case, was unconscionable under California law and, thus, unenforceable). Pinnacle correctly points out that there are “well-established federal judicial policies disfavoring piecemeal reviews.” Pinnacle Br. at 6. Yet, Pinnacle's argument makes a mockery of these policies by attempting to force this Court into a posture of limiting its review to the single legal theory on which the district court based its decision. That approach, although it might “conserve this Court's resources”today id, will almost surely tax them at some future point, as more single-issue appeals wend their way back to this Court in piecemeal fashion. CONCLUSION The decision of the district court, denying Pinnacle's motion to compel arbitration of the Intervener' claims and stay the EEC's action, should be affirmed on the alternative legal ground supplied by the Supreme Court's intervening decision in EEC v. Waffle House, Inc.,534 U.S. 279(2002). Respectfully Submitted, NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ROBERT J. GREGORY Senior Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, NW Washington, D.C. 20507 202-663-4059 STATEMENT OF RELATED CASES The EEC is aware of one related case pending in this Court: EEC v. Luce,Forward, No. 00-57222. That case is related because Pinnacle's entire appeal is based on the fact that, in Luce,Forward, this Court set aside the Duffed decision, the Ninth Circuit precedent on which the district court relied in denying Pinnacle's motion to compel and stay. That being said, Luce,Forward has little relevance to the EEC's central argument in this appeal. 1 Section 3 provides for a “mandatory” stay in cases in which a party's claim is referred to arbitration, the stay to remain in effect pending the outcome of the arbitration. See Adams v. Georgia Gulf Corp., 237 F.3d 538,539-40 (5th Cir. 2001). 2 Although Pinnacle invoked Section 3 in its district court filings, it also moved, outside the Section 3 framework, for a “discretionary” stay of the district court proceedings, a stay that would be put in place irrespective of how the court ruled on the motion to compel SER at (“The Court should still stay this case, even if this motion [to compel] is denied, under the Court's inherent power to control its docket and calendar given that there is no real benefit in going forward with court procedures.”). Pinnacle's appeal focuses solely on the FAA's compel and stay procedure. Pinnacle makes no argument in its appellate brief that the district court erred in denying Pinnacle's request for a discretionary stay. Indeed, the denial of a request for a discretionary stay, as opposed to the “mandatory” stay provided under Section 3 of the FAA, is not appealable. See Adams v. Georgia Gulf Corp., 237 F.3d at 541-42 (the denial of a discretionary stay, outside “the auspices of the FAA,” is not appealable under 9 U.S.C. § 16, “is not a final decision under the final judgment rule,” and is not considered an injunction appealable under 28 U.S.C. § 1292 (a )(1)); see also Gulfstream Aerospace Corp. v. Mayaacamas Corp., 485 U.S. 271, 279 (1988) (an “order by a federal court that relates only to the progress or conduct of litigation before that court ordinarily is not considered an injunction and therefore is not appealable under 28 U.S.C. 1292(a)(1)”). 3 That, in any event, was the ruling of the three-judge panel. The court, sua sponte, has since expressed an interest in having the matter reheard by the en banc court. See 9th Cir. Docket Sheet, Case No. 00-57222. 4 The Intervener' arguments, they appear below, were itemized in the “Opposition of the Plaintiff-Appellee Equal Employment Opportunity Commission to the Appellant Pinnacle Nissan, Inc.'s Motion for Procedural Order Staying Appeal,” filed with this Court on October 16, 2001. That document, in turn, quoted from the“Intervening Plaintiffs' Response in Opposition to Defendant's Motion to Compel Arbitration,” Docket Entry # 97. 5 The Court examined Title VII's enforcement scheme, even though Waffle House involved a claim under Title I of the ADA, because “Congress has directed the EEC to exercise the same enforcement powers, remedies and procedures that are set forth in [Title VII] when it is enforcing the ADA's prohibition against employment discrimination on the basis of disability.” Id. at 285. 6 It is worth remembering that at the time of intervention, Ninth Circuit precedent rendered these agreements unenforceable, at least with respect to Title VII claims. The Intervenors, moreover, have a number of other arguments against the enforceability of these agreements, including the argument that the agreements contain “crippling ‘cost-sharing' provision[s],” provisions that would have made the process so costly that the Intervenors would have been “forced to abandon their claims altogether.” 7 Even before the Supreme Court's Waffle House, decision, it was well-established in the circuit courts that the EEC was free to pursue a claim for broad injunctive relief, a private arbitration agreement notwithstanding. See EEC v. Waffle House, Inc., 193 F.3d 805, 811-13 (4th Cir. 1999); EEC v. Frank's Nursery & Crafts, Inc., 177 F.3d 448, 455-59 (6th Cir. 1999); EEC v. Kidder, Peabody & Co., 156 F.3d 298, 301-03 (2d Cir. 1998); cf. EEC v. Goodyear Aerospace Corp., 813 F.2d 1539, 1542-43 (9th Cir. 1987) (private settlement of a Title VII claim does not prevent the Commission from pursuing a claim for a broad injunction against future discrimination). The disagreement concerned the EEC's ability to obtain full victim-specific relief for individuals who had entered into enforceable arbitration agreements with their employer. 8A dismissal would prevent the Intervener from asserting his claim in court, thereby forcing him either to forgo his claim altogether or assert it in an arbitral forum, as per the arbitration agreement. 9Although deprived of his party status (as an Intervener), the individual would be entitled to participate fully in the EEC's action and to benefit fully from the relief obtained in that action, as per the Waffle House decision.