Rajesh Gupta v. Morgan Stanley Smith Barney, L ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-3584
RAJESH GUPTA,
Plaintiff-Appellant,
v.
MORGAN STANLEY
SMITH BARNEY, LLC, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 17 C 8375 — Matthew F. Kennelly, Judge.
____________________
ARGUED APRIL 17, 2019 — DECIDED AUGUST 19, 2019
____________________
Before SYKES, BRENNAN, and SCUDDER, Circuit Judges.
BRENNAN, Circuit Judge. This appeal presents a question of
contract formation. After Rajesh Gupta sued his former em-
ployer Morgan Stanley for discrimination, retaliation, and
2 No. 18-3584
defamation, the company moved to compel arbitration.1
Morgan Stanley contends Gupta agreed to arbitrate these
claims after he did not opt out of the company’s arbitration
agreement. Gupta responds that during his employment he
neither saw an arbitration offer nor agreed to arbitrate em-
ployment-related disputes. The district court sided with
Morgan Stanley and sent the parties off to arbitration. Gupta
appeals this ruling, and we affirm.
I
Morgan Stanley hired Gupta as a financial advisor in 2013.
Upon joining the company, Gupta signed an employment
agreement containing an arbitration clause “agree[ing] to ar-
bitrate any dispute, claim, or controversy that may arise be-
tween you and Morgan Stanley … that is required to be
arbitrated … pursuant to any arbitration agreement to which
you are a party.” That agreement also contained a merger
clause providing:
All terms and conditions of your employment
with Morgan Stanley are contained in this
Agreement and other written agreements be-
tween you and Morgan Stanley, and the policies
and procedures of the Firm … This writing con-
stitutes the entire agreement of the parties with
respect to the subject matter recited in this
Agreement. This Agreement may be amended
only by a writing signed by both you and
Morgan Stanley.
1 Gupta sued Morgan Stanley Smith Barney, LLC and Morgan Stanley
Smith Barney Notes Holdings, FA, which we refer to collectively as
“Morgan Stanley” or “the company.”
No. 18-3584 3
Among the additional terms and conditions, Morgan Stan-
ley administered an employee dispute resolution program
called “CARE,” an acronym for “Convenient Access to Reso-
lutions for Employees.” CARE applied to all U.S. employees
of Morgan Stanley, and the company posted a “CARE guide-
book” explaining the program on its intranet site for em-
ployee access.
When Gupta joined Morgan Stanley, the CARE program
did not require employees to arbitrate employment discrimi-
nation claims. But it did specify that the program’s terms
“may change or be discontinued,” and that any such changes
would be “announced in advance” before becoming “equally
binding upon [the employee] and the Firm.” That change
came in 2015, when Morgan Stanley amended its CARE
program to compel mandatory arbitration for all employ-
ment-related disputes, including discrimination claims. To
announce the amended program, Morgan Stanley sent an
email to the account of each of its employees in the U.S.
Morgan Stanley emailed Gupta the new arbitration agree-
ment on September 2, 2015. The email’s subject line read “Ex-
pansion of CARE Arbitration Program,” and the email itself
explained that, effective October 2, 2015, “final and binding
arbitration” under the new “CARE arbitration program”
would be “mandatory for all employees” unless an employee
individually elected to opt out. The email included links to
the new arbitration agreement and Morgan Stanley’s revised
CARE guidebook, and it encouraged employees to “read and
understand” both documents because “they describe the
terms, features and details of this program.” The revised
CARE guidebook similarly explained that “employment dis-
crimination claims under … any federal … law (including
4 No. 18-3584
claims of harassment and retaliation under those laws) will be
resolved by final and binding arbitration.”
The final section of the company’s September 2 email to
Gupta, entitled “Next Steps,” attached a link to the arbitration
agreement opt-out form, explained instructions for submit-
ting that form, and again notified that Gupta had until Octo-
ber 2, 2015, to decline. The email twice cautioned that, if the
employee did not opt out, continued employment would re-
flect that the employee “consented and agreed to the terms”
of the arbitration agreement and CARE guidebook. The email
concluded with an assurance that opting out of the arbitration
agreement would not adversely affect Gupta’s employment
status. The one page opt-out form attached to the email prom-
inently placed the opt-out deadline in bold capital letters, al-
lowed for submission by email, and provided directions if
Morgan Stanley failed to confirm the employee’s rejection of
mandatory arbitration.
Over the next thirty days, Gupta had access via links on
the September 2 email to the arbitration agreement, CARE
guidebook, and arbitration opt-out form. During this period,
Morgan Stanley also maintained on its intranet page (accessi-
ble by all Morgan Stanley employees) a reminder notification
about the upcoming expansion to mandatory arbitration and
the deadline to opt out. The reminder encouraged employees
to “carefully review the September 2 email from Human Re-
sources” and once more instructed that, unless they chose to
opt out, continued employment would bind them to the terms
of the new arbitration agreement.
The October 2015 deadline to opt out came and went.
Gupta did not submit an opt-out form, respond to the Sep-
tember 2 email, or otherwise communicate with human
No. 18-3584 5
resources about the mandatory arbitration program. He con-
tinued to work at Morgan Stanley for two more years until,
he alleges, the company forced him to resign because of im-
minent military leave.2 Gupta sued Morgan Stanley for dis-
crimination and retaliation in violation of the Uniformed
Services Employment and Reemployment Rights Act, 38
U.S.C. §§ 4301–35, and a related defamation claim.
Morgan Stanley moved to compel arbitration under the
terms of the 2015 CARE arbitration program and agreement.
Gupta resisted, asserting he never agreed to arbitrate. He said
he first saw the September 2 email and arbitration agreement
when Morgan Stanley filed its motion to compel and filed a
declaration to that effect.3
The district court deferred ruling on Morgan Stanley’s mo-
tion to compel “pending a trial regarding whether an agree-
ment to arbitrate exists.” The court agreed with Morgan
Stanley that Illinois law permits an offeror to construe silence
as acceptance if circumstances make it reasonable to do so.
2 In addition to working as a financial advisor, Gupta is a member of
the Navy’s Judge Advocate General Corps reserves. He alleges Morgan
Stanley “effectively terminated” him after he notified the company that he
had been called for six months active duty. Morgan Stanley counters that
Gupta resigned after the company notified him of an internal investiga-
tion into his alleged corporate policy violations; according to Morgan
Stanley, Gupta recommended insurance products outside of Morgan
Stanley without prior notice or approval. Gupta’s appeal is limited to the
district court’s order compelling arbitration, and neither party asks us to
resolve their substantive disputes.
3 Gupta also declared “[a]s an attorney, I am familiar with arbitrations
and arbitration clauses … and am cautious to avoid them. … If I had seen
any email that referenced an arbitration clause, I would have reviewed it
and immediately opted out of the agreement.”
6 No. 18-3584
But it treated Gupta’s sworn statement that he had “never
seen” the September 2 email as a denial that he received the
email, not simply a denial that he read it. At that point, the
court found Morgan Stanley had not reliably demonstrated
that Gupta had received the email. Because Gupta said
Morgan Stanley never sent him an offer, the court reasoned,
“there [was] a genuine dispute about the existence of an
agreement to arbitrate.” See 9 U.S.C. § 4 (“If the making of the
arbitration agreement … be in issue, the court shall proceed
summarily to the trial thereof.”). After the parties’ submitted
pretrial evidence, however, Gupta could no longer dispute he
received the September 2 email in his work email account. As
a result, he stipulated “that the email arrived at his in-box,”
but he maintains he first saw the email only after this lawsuit
was filed.
With Gupta’s stipulation, the district court concluded no
genuine dispute of material fact required a trial. The court
found that Gupta’s receipt of the September 2 email, com-
bined with his continued employment and failure to opt out
of mandatory arbitration, gave rise to an agreement to arbi-
trate. So the court granted Morgan Stanley’s motion to compel
arbitration and stayed the litigation. The district court certi-
fied its ruling for interlocutory appeal under 28 U.S.C.
§ 1292(b), which we agreed to accept.
II
We review de novo a district court’s ruling on a motion to
compel arbitration. A.D. v. Credit One Bank, N.A., 885 F.3d
1054, 1059 (7th Cir. 2018).
Gupta’s appeal implicates the Federal Arbitration Act,
which reflects “both a liberal federal policy favoring
No. 18-3584 7
arbitration … and the fundamental principle that arbitration
is a matter of contract.” AT&T Mobility LLC v. Concepcion, 563
U.S. 333, 339 (2011) (citations omitted). Specifically, the act
mandates enforcement of valid arbitration agreements. 9
U.S.C. §§ 2, 4. Although it requires arbitration agreements to
be in writing, it does not require them to be signed. Id. § 3;
Tinder v. Pinkerton Sec., 305 F.3d 728, 736 (7th Cir. 2002). The
act also extends to employment contracts. Circuit City Stores,
Inc. v. Adams, 532 U.S. 105, 118–19 (2001). Even still, courts
cannot require a party to submit a dispute to arbitration un-
less he has agreed to do so. See A.D. v. Credit One Bank, 885
F.3d at 1060 (citations omitted); Int’l Bhd. of Elec. Workers Local
2150 v. NextEra Energy Point Beach, LLC, 762 F.3d 592, 594 (7th
Cir. 2014) (citations omitted) (holding a party seeking arbitra-
tion must present a claim that is, “on its face,” governed by an
arbitration clause).
Against this backdrop, we must resolve whether a valid
agreement to arbitrate exists between Gupta and Morgan
Stanley. If yes, we consider whether Gupta’s claims fall within
the scope of that agreement. We apply state-law principles of
contract formation to answer these questions. Gore v. Alltel
Commc’ns, LLC, 666 F.3d 1027, 1032 (7th Cir. 2012). “Our role
in interpreting a question of state law is to predict how the
highest court of the state would answer the question.” Cannon
v. Burge, 752 F.3d 1079, 1091 (7th Cir. 2014). “In the absence of
guiding decisions by the state’s highest court, we consult and
follow the decisions of intermediate appellate courts unless
there is a convincing reason to predict the state’s highest court
would disagree.” ADT Sec. Servs., Inc. v. Lisle-Woodridge Fire
Prot. Dist., 672 F.3d 492, 498 (7th Cir. 2012).
8 No. 18-3584
The parties agree Illinois contract law governs this law-
suit. But they dispute whether an agreement exists at all un-
der Illinois law, which “requires only a manifestation of
mutual assent on the part of two or more persons.” Zabinsky
v. Gelber Grp., Inc., 807 N.E.2d 666, 671 (Ill. App. Ct. 2004) (cit-
ing RESTATEMENT (SECOND) OF CONTRACTS § 3 (1981)).
When, as here, a “case concerns the application of the Fed-
eral Arbitration Act,” the Illinois Supreme Court has “base[d]
[its] analysis upon principles of fundamental contract law” to
determine the formation of an agreement. Melena v. Anheuser-
Busch, Inc., 847 N.E.2d 99, 103, 107 (2006). The court “appl[ies]
general contract doctrines” because “that approach is more
faithful to the [act].” Id. at 107–08. Applying these principles,
we start by evaluating the standard we must use under Illi-
nois law to ascertain the parties’ manifestation of mutual as-
sent (the proverbial meeting of the minds). After that, we
consider the elements of contract formation and whether they
exist here to create an enforceable arbitration agreement.
A
Illinois courts evaluate contract formation under an objec-
tive theory. Sgouros v. TransUnion Corp., 817 F.3d 1029, 1034
(7th Cir. 2016) (Illinois law) (citations omitted); Vill. of S. Elgin
v. Waste Mgmt. of Illinois, Inc., 810 N.E.2d 658, 670 (Ill. App. Ct.
2004) (“‘Intent’ refers to the objective manifestations of intent
in the words of the contract and the actions of the parties
… .”); J.F. McKinney & Assocs., Ltd. v. Gen. Elec. Inv. Corp., 183
F.3d 619, 622 (7th Cir. 1999) (“Illinois uses an objective theory
of contract … .”) (citations omitted).
Judge Learned Hand famously explained the objective
theory of contract: “A contract has … nothing to do with the
No. 18-3584 9
personal, or individual, intent of the parties. A contract is an
obligation attached by the mere force of law to certain acts of
the parties … which ordinarily accompany and represent a
known intent.” Hotchkiss v. Nat’l City Bank of New York, 200 F.
287, 293 (S.D.N.Y. 1911), aff’d, Ernst v. Mechanics’ & Metals Nat.
Bank of City of New York, 201 F. 664 (2d Cir. 1912), aff’d, Nat’l
City Bank of New York v. Hotchkiss, 231 U.S. 50 (1913). “Under
the objective theory, intent to manifest assent in Illinois is re-
vealed by ‘outward expressions such as words and acts.’”
Sgouros, 817 F.3d at 1034 (quoting Bank Computer Network
Corp. v. Cont’l Illinois Nat’l Bank & Tr. Co. of Chicago, 442 N.E.2d
586, 591 (Ill. App. Ct. 1982)). “Intent … does not encompass
one party’s … purely subjective understandings of which the
other party is unaware.” Vill. of S. Elgin, 810 N.E.2d at 670. We
evaluate these outward expressions through the lens of an ob-
jectively reasonable person. See Wigod v. Wells Fargo Bank,
N.A., 673 F.3d 547, 563 (7th Cir. 2012) (applying “objectively
reasonable person” standard to determine validity of contract
offer under Illinois law); Hotchkiss, 200 F. at 293–94 (holding
acts or words must be “reasonably interpreted” as they would
by “ordinary men” and that “whatever was the understand-
ing” of the parties “is of not the slightest consequence”); see
also Randy E. Barnett, The Sound of Silence: Default Rules and
Contractual Consent, 78 Va. L. Rev. 821, 858 (1992) (explaining
that the “objective theory of assent” holds persons to the rea-
sonable or normal meaning that their conduct conveys to oth-
ers). So the parties’ objective conduct, not their subjective
intent, determines whether Gupta agreed to mandatory arbi-
tration.
Gupta contends the Illinois Supreme Court’s decision in
Melena, 847 N.E.2d 99, requires an employee to have “actual
knowledge of an offer” and “a general understanding that a
10 No. 18-3584
binding agreement or contract has been entered into.” We do
not read Melena to create these requirements. In Melena the
Illinois Supreme Court recognized “that state … court deci-
sions cannot hold arbitration agreements to a standard any
different or higher than those applicable to other contracts in
general.” Id. at 108. On this ground, the court rejected a
“knowing and voluntary standard” because it “raise[s] arbi-
tration agreements to an elevated status not contemplated by
the [act]” and “means much more than a general understanding
that a binding agreement or contract is being entered into.”
Id. (emphasis added) (citation and internal quotations omit-
ted).4
Gupta’s reliance on Melena rests entirely on the Illinois Su-
preme Court’s use of the phrase “general understanding.” He
interprets that reference to mean contract formation is impos-
sible if the offeree lacks a “general understanding” that a con-
tract is being formed. He interprets “general understanding”
to mean “actual knowledge.” But this interpretation relies on
the subjective intent of the parties, and Illinois uses an objec-
tive theory. No part of Melena’s holding or its phrasing allows
courts to consider subjective intent to evaluate the existence
of a contract. Rather, Melena is consistent with an objective ap-
proach, emphasizing the employee’s conduct—receipt of the
employer’s agreement, and performance consistent with the
agreement’s terms—not the employee’s intent. 847 N.E.2d at
109.
4 The Appellate Court of Illinois had held an agreement to arbitrate
claims must be entered into knowingly and voluntarily to be enforceable.
Melena v. Anheuser-Busch, Inc., 816 N.E.2d 826, 834 (Ill. App. Ct. 2004),
rev’d, 847 N.E.2d 99 (2006).
No. 18-3584 11
Because the parties’ objective conduct governs our evalu-
ation—not any one party’s “general understanding” or “ac-
tual knowledge”—we consider whether an enforceable
agreement exists here.
B
“In Illinois, an offer, an acceptance and consideration are
the basic ingredients of a contract.” Melena, 847 N.E.2d at 109.
Gupta does not dispute that the September 2 email qualifies
as an offer, nor does he challenge that continued employment
constitutes consideration.5 Instead, Gupta argues he never ac-
cepted the offer.
Although Gupta acknowledges that Morgan Stanley de-
livered its arbitration offer to his work email, he argues “an
employer cannot form a contract by an employee’s silence
simply by proving email delivery of an offer and a failure to
opt out.“ The critical question, then, is whether Gupta’s si-
lence and inaction in the face of Morgan Stanley’s September
2 email constitute acceptance of its proposed arbitration
agreement.
“‘[A] party named in a contract may, by his acts and con-
duct, indicate his assent to its terms and become bound by its
provisions even though he has not signed it.’” Bauer v. Qwest
Commc’ns Co., LLC, 743 F.3d 221, 227 (7th Cir. 2014) (interpret-
ing Illinois law) (quoting Carlton at the Lake, Inc. v. Barber, 928
N.E.2d 1266, 1270 (Ill. App. Ct. 2010)); Landmark Properties, Inc.
5 Gupta’s concessions on these elements are sensible. See Melena, 847
N.E.2d at 109 (holding that the employer’s postal mailing of program-re-
lated materials to its employees constituted a valid offer and that “contin-
ued employment is sufficient consideration for the enforcement of
employment agreements”).
12 No. 18-3584
v. Architects Int’l-Chicago, 526 N.E.2d 603, 606 (Ill. App. Ct.
1988) (holding same). As a corollary, an offeror may construe
silence as acceptance if the circumstances make it reasonable
to do so. First Nat. Bank of Chicago v. Atl. Tele-Network Co., 946
F.2d 516, 519 (7th Cir. 1991) (interpreting Illinois law). For ex-
ample, “[s]ilence may be construed as acceptance where ‘be-
cause of previous dealings or otherwise, it is reasonable that
the offeree should notify the offeror if he does not intend to
accept.’” Bauer, 743 F.3d at 228 (quoting RESTATEMENT
(SECOND) OF CONTRACTS § 69(1)(c) (1981)); Ragan v. AT & T
Corp., 824 N.E.2d 1183, 1188–89 (Ill. App. Ct. 2005) (holding
plaintiffs’ silence and inaction upon receipt of mailed agree-
ment for telephone services, and their use of those services,
constituted acceptance of arbitration clause within agree-
ment); Fineman v. Citicorp USA, Inc., 485 N.E.2d 591, 595 (Ill.
App. Ct. 1985) (citing RESTATEMENT (SECOND) OF CONTRACTS
§ 69(1)(c)).
In the same vein, the relationship between parties may jus-
tify the offeror expecting a reply, and thus assuming that si-
lence is assent to its proposal. See 2 Williston on Contracts § 6:50
(4th ed. 2007); 1 Corbin on Contracts § 3:18 (rev. ed. 2018) (“Of-
ten … silence coupled with … expectations engendered by a
prior relationship can reasonably be understood by the offe-
ror as an acceptance.”); see also Rivera-Colon v. AT&T Mobility
Puerto Rico, Inc., 913 F.3d 200, 213–14 (1st Cir. 2019) (holding
employee’s silence operated as acceptance of employer’s ar-
bitration agreement transmitted by email); Circuit City Stores,
Inc. v. Najd, 294 F.3d 1104, 1109 (9th Cir. 2002) (holding em-
ployee’s failure to opt out of employer’s dispute resolution
agreement manifested consent to arbitration under that
agreement).
No. 18-3584 13
The pre-2015 CARE program explicitly stated its terms
were subject to change after an “announce[ment] in advance,”
so Gupta had to keep abreast of the company’s dispute reso-
lution policies upon announcement. Morgan Stanley emailed
the arbitration policy changes to Gupta personally, granted
him thirty days to review the new arbitration agreement, cir-
culated an opt-out form, conspicuously displayed the dead-
line to opt out, posted a continual company intranet reminder
of the new arbitration policy and opt-out date, and repeatedly
informed that it would construe silence as acceptance of man-
datory arbitration. All these actions bolstered the company’s
expectation of a response.
Gupta worked for Morgan Stanley for four years. That em-
ployment included regular email communication, and justi-
fied Morgan Stanley’s expectation of a reply, and its
assumption that Gupta’s silence indicated his acceptance of
mandatory arbitration. This case does not present an unsolic-
ited offer-by-email from a stranger when the expectation of
the offeree’s response is rare, if not baseless. Instead, employ-
ment includes the understanding that employees will act with
diligence in following an employer’s instructions and
responding to requests, whether transmitted by email or an-
other reasonable mode of communication. Here, Gupta sub-
mits no evidence, policy, or prior course of dealings from
which we can infer that Gupta was free as an employee to ig-
nore Morgan Stanley’s communications without repercus-
sion.
Instead, Gupta argues Morgan Stanley failed to provide
enough notice to trigger his response, pointing to Campbell v.
Gen. Dynamics Gov’t Sys. Corp., 407 F.3d 546 (1st Cir. 2005). In
Campbell, an employer sent a companywide email
14 No. 18-3584
announcing the implementation of a new dispute resolution
policy. Id. at 547–48. Yet the employer’s email failed to men-
tion several crucial facts about the policy: that it contained an
agreement to arbitrate and contractually binding terms;
treated continued employment as an acceptance of those
terms; and resulted in a waiver of an employee’s access to a
judicial forum. Id. at 547–48, 557–58. For those reasons, the
court held the employer’s email failed to provide “minimally
sufficient notice” of a contractual modification. Id. at 557, 559.
But unlike in Campbell, Morgan Stanley’s September 2
email to Gupta mentioned the new “arbitration agreement”
eight times; explained that arbitration would become the ex-
clusive forum for covered claims; informed that he was free
to opt out without consequence; instructed if he did not elect
to opt out that continued employment would be construed as
acceptance; and, in the agreement itself, explained in bold and
capitalized words that the parties were “giving up [their]
right to a jury trial in any forum.” Even more, Gupta attested
to the clarity of Morgan Stanley’s email when he declared un-
der oath, “[a]s an attorney … [i]f I had seen [the] email that
referenced an arbitration clause, I would have reviewed it and
immediately opted out.” Given these differences, Campbell
does not offer Gupta a lifeline.
The conduct of Morgan Stanley and Gupta indicated mu-
tual assent to mandatory arbitration. See Zabinsky, 807 N.E.2d
at 671. Morgan Stanley reasonably construed Gupta’s silence
as acceptance of the arbitration agreement after he was given
a clear offer, a reasonable opportunity to opt-out, and re-
peated instructions that silence and continued employment
reflected acceptance. See Ragan, 824 N.E.2d at 1188–89 (hold-
ing silence reflected acceptance of arbitration agreement
No. 18-3584 15
where plaintiff “had a reasonable opportunity to reject the of-
fer but failed to do so”); see also Boomer v. AT & T Corp., 309
F.3d 404, 415 (7th Cir. 2002) (holding same under Illinois law).
Similarly, the parties’ employment relationship made it rea-
sonable to expect Gupta would notify Morgan Stanley if he
intended to decline its offer, as well as that silence would
convey acceptance. Bauer, 743 F.3d at 228. When, as here, “in-
action is indistinguishable from overt acceptance,” Najd, 294
F.3d at 1109, we may infer the parties have agreed. For these
reasons, we conclude the district court reasonably construed
Gupta’s silence and continued employment as assent to the
arbitration agreement.
The next question is whether that agreement covers
Gupta’s claims for discrimination, retaliation, and defama-
tion. It does: § 2 of the arbitration agreement expressly desig-
nates each of these charges as a “covered claim.” Because
Gupta’s claims fall within the scope of the arbitration
agreement, NextEra Energy Point Beach, LLC, 762 F.3d at 594,
the district court did not err in compelling the parties to arbi-
trate those claims.
As a final line of defense, Gupta contends his employment
agreement prohibits Morgan Stanley from requiring manda-
tory arbitration without his written consent. This argument
fails to acknowledge that Gupta’s employment agreement
and the CARE arbitration program are separate, free-standing
agreements. No version of Morgan Stanley’s CARE program,
before or after 2015, required a signed agreement. So unless
the employment agreement incorporated the terms of the
CARE arbitration program, no signature was needed to mod-
ify that program, as Gupta claims.
16 No. 18-3584
As we relayed earlier, Gupta’s employment agreement
contained a merger clause. “The presence of a merger clause
is strong evidence that the parties intended the writing to be
the complete and exclusive agreement between them.”
Rosenblum v. Travelbyus.com Ltd., 299 F.3d 657, 665 (7th Cir.
2002) (interpreting Illinois law) (citations omitted). That the
parties here intended to exclude “other written agreements”
and “policies and procedures of the Firm” is supported by the
merger clause’s proviso “[t]his writing constitutes the entire
agreement … with respect to the subject matter recited in this
Agreement.” It also provides“[t]his Agreement” requires a
writing signed by the parties to amend terms.
“Mere reference to another contract or document is not
sufficient to incorporate its terms into a contract.” Id. at 666.
Instead, “there must be an express intent to incorporate,” id.,
and there is no such expression here. A fair reading of the
merger clause supports that it references “other” agreements
and policies to “assure[] the continued vitality” of those in-
struments, each of which are “necessary, but self-contained”
agreements in Gupta’s employment relationship. Id. at 663,
665. Gupta’s employment agreement is not susceptible to an
interpretation that it incorporated the terms of the CARE ar-
bitration program, such that any modification to the program
needed Gupta’s sign off.
Last, Gupta claims the parties had a “course of dealing”
requiring him to initial “each and every paragraph” of any
agreement between them. But the record does not support
this conclusion. Gupta entered several agreements with
Morgan Stanley, including for a $1.5 million loan. Yet he
points to only one contract, his employment agreement, to
prove a “course of dealing.” Even putting this imbalance
No. 18-3584 17
aside, Gupta fails to acknowledge that the source of his arbi-
tration obligation, the CARE program, specified its terms
“may change or be discontinued” after an “announce[ment]
in advance” before becoming “equally binding upon [the
employee] and the Firm.” No version of the CARE program
requires employees to initial policy modifications before tak-
ing effect. So here the absence of initialing poses no problems.
The employment agreement is relevant in another key re-
spect: its arbitration clause requires Gupta to honor any arbi-
tration agreement with Morgan Stanley. A valid arbitration
agreement exists that covers Gupta’s claims, so the district
court correctly compelled those claims to arbitration.
III
Because this case meets all three requirements to compel
arbitration under the Federal Arbitration Act—a written
agreement to arbitrate, a dispute within the scope of the arbi-
tration agreement, and a refusal to arbitrate—the district
court correctly compelled arbitration, and its judgment is
AFFIRMED.