Filing # 25491863 E-Filed 03/30/2015 05:00:01 PM

IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT

IN AND FOR SEMINOLE COUNTY, FLORIDA

MATTHEW NESTLER,
Plaintiff,
vs.

Case No. 2015-CA-000409

JEUNESSE, LLC a/k/a JEUNESSE

GLOBAL, and KEVIN GIGUERE,
Defendants.
/

MOTION TO COMPEL ARBITRATION AND DISMISS COMPLAINT,

OR, IN THE ALTERNATIVE, TO STAY ACTION PENDING ARBITRATION
Defendant JEUNESSE, LLC (Jeunesse), through its undersigned counsel, files this
Motion to Compel Arbitration And Dismiss the Complaint, or, in the alternative, to stay this
action pending arbitration.1 Pursuant to Jeunesses Policies and Procedures, which constitutes a
portion of the contractual agreement between plaintiff MATTHEW NESTLER (Plaintiff or
Nestler) and Jeunesse, the parties agreed to arbitrate all disputes and claims relating to
Jeunesse, the parties agreement, and any claims or causes of action related to the performance of
any distributor of Jeunesse, in accordance with the Federal Arbitration Act and the Commercial
Arbitration Rules of the American Arbitration Association. See, Affidavit of Phillip Wallace
(Wallace Aff.), Exh. 2, Section 11.6, at pp. 31-32.

This Motion only addresses the Complaint insofar as it alleged claims against Jeunesse. The lawsuit
names as an additional defendant, an individual named Kevin Giguere. Jeunesse has been informed by Mr.
Gigueres counsel that Mr. Giguere intends to file a joinder in this motion, and that he will also seek to have the
claims in the Complaint, as alleged against him, submitted to arbitration.

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Since the parties have agreed to arbitration as a dispute resolution mechanism, and
particularly given the federal and state public policies favoring arbitration, this lawsuit should be
dismissed and the parties should be ordered to arbitration with the American Arbitration
Association. In the alternative, this lawsuit should be ordered stayed pending completion of
arbitration.
STATEMENT OF FACTS
Jeunesse is a direct selling company that sells products to consumers through its network
of independent distributors. Plaintiffs complaint arises from Jeunesses decision to terminate
Mr. Nestler as a Jeunesse distributor. The complaint purports to state claims against Jeunesse
for: breach of contract; breach of the implied covenant of good faith and fair dealing; tortious
interference with plaintiffs business relationships; tortious civil conspiracy to interfere with
plaintiffs business relationships; and violations of Florida Deceptive and Unfair Trade Practices
Act.
Nestler enrolled as a Jeunesse distributor on February 28, 2014 and, as part of the
enrollment process, agreed to a series of contractual terms memorialized in four separate
standardized documents (the Jeunesse Standard Contractual Documents) which, together,
govern the contractual relationship between Jeunesse and all of its independent distributors. One
of those documents is entitled Jeunesse Global Policies and Procedures, and it is that document
that contains the Arbitration Clause which covers this dispute. See, Wallace Aff., 3-5, Exhs.
2, 5, & 6.
At the same time that Nestler enrolled as a Jeunesse distributor, he and Jeunesse began
negotiating the terms of a separate, specially negotiated Business Development Agreement (the
Nestler BDA or BDA); the BDA was finalized and signed by the parties on March 5, 2014.
The Nestler BDA imposes upon Mr. Nestler various contractual restrictions and obligations over
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and above those provided for in the Jeunesse Standard Contractual Documents (including a noncompete provision); conditional upon Mr. Nestlers remaining in good standing and achieving
certain delineated sales benchmarks, the Nestler BDA also provides for specially negotiated
financial support to be given by Jeunesse to Mr. Nestler. Among other things, the Nestler BDA
cross references the Policies and Procedures, and provides that the BDA can be terminated on a
number of enumerated bases, including if Mr. Nestler violates the Policies and Procedures or
commits a material breach of the BDA. See, Wallace Aff., 7.2
On October 24, 2014, Jeunesse terminated Mr. Nestlers distributor status based upon
what Jeunesse contends are breaches by Nestler of the Policies and Procedures, and of the
Nestler BDA. In his Complaint filed herein, Mr. Nestler alleges that Jeunesses terminaton of his
distributor status was without cause and wrongful, and further accuses Jeunesse of violating its
own Policies and Procedures. See, Complaint, 30, 34-35, 38, 45, 50, Exh . B.

I.

NESTLER SHOULD BE COMPELLED TO ARBITRATE HIS CLAIMS

A.

THE PARTIES AGREEMENT INCLUDES A BROAD ARBITRATION CLAUSE WHICH

ENCOMPASSES THIS DISPUTE.

The contents and chronology of the contractual relationship between the parties is set
forth at length in the Affidavit of Phillip Wallace which is being filed in support of this Motion,
so will not be set forth at length here. See, Wallace Aff., 3-5, 7; Exhs. 1-6.
Briefly, the terms of the contract between Jeunesse and Mr. Nestler are encompassed in
five separate documents that were signed (and, in one case, negotiated) between February 28,
2014 (when Nestler enrolled as a distributor and agreed to the four documents described in the

The Nestler BDA contains a confidentiality clause so, accordingly, the Nestler BDA will be filed with
this court separately under seal. (Among Mr. Nestlers numerous breaches of the BDA, Mr. Nestler violated the
confidentiality clause by attaching a copy of the BDA to his complaint, which was publicly filed to initiate this
lawsuit.) Wallace Aff., 7.

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Wallace Affidavit as the Jeunesse Standard Contractual Documents),3 and the specially
negotiated Business Development Agreement (which was negotiated between approximately
February 28, 2014 and March 5, 2014, when the BDA was actually signed).
The arbitration clause which encompasses this dispute, is contained in one of the four
standard documents, the Jeunesse Global Policies and Procedures (the Policies and
Procedures). The arbitration clause, which is very broad and encompassing in its language, is
contained in Section 11.6 of the Policies and Procedures, and provides, in pertinent part, as
follows:
All disputes and claims relating to Jeunesse, the
Agreement, or its products, the rights and obligations of a
distributor of Jeunesse, or any claims or causes of actions
relating to the performance of either a distributor or any Jeunesse
under the Agreement, and/or a distributors purchase of product(s)
shall be settled totally and finally by arbitration in Altamonte
Springs, Florida, or such other location as Jeunesse prescribes, in
accordance with the Federal Arbitration Act and the Commercial
Arbitration Rules of the American Arbitration Association. There
shall be one (1) arbitrator, an attorney at law, who shall have
expertise in business law transactions, with preference being an
attorney knowledgeable in the direct selling industry, selected from
a panel, which the American Arbitration Association approves.
Each party to the arbitration shall be responsible for its own costs
and expenses of arbitration, including legal and filing fees. If a
distributor files a claim or counterclaim against Jeunesse, a
distributor shall do so on an individual basis and not with any other
distributor or as part of a class action. The decision of the arbitrator
shall be final and binding on the parties and may, if necessary, be
reduced to a judgment in any court of competent jurisdiction. This
agreement for arbitration shall survive any termination or
expiration of the Distributor Agreement.
Notwithstanding the foregoing, the arbitrator shall have no
jurisdiction over disputes relating to the ownership, validity or
registration or any mark of other intellectual property or

The Jeunesse Standard Contractual Documents, all attached as exhibits to the Wallace Affidavit, consist
of: (a) the Distributor Agreement Terms and Conditions (attached as Exhibit 1); (b) the Jeunesse Global Policies
and Procedures (attached as Exhibit 2); (c) the Jeunesse Financial Rewards Plan (attached as Exhibit 3); and
(d) a Consent to Electronic Record (attached as Exhibit 4).

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proprietary or confidential information of Jeunesse, without

Jeunesses written consent. . . .
Nothing in this rule shall prevent Jeunesse from
terminating the Distributor Agreement or from applying to and
obtaining from any court having jurisdiction a writ of attachment, a
temporary injunction, preliminary injunction and/or other
injunctive or emergency relief available to safeguard and protect
Jeunesses interests prior to the filing of or during or following any
arbitration or other proceeding or pending the handing down of a
decision or award in connection with any arbitration or other
proceeding.
Nothing contained herein shall be deemed to give the
arbitrator any authority, power, or right to alter, change, amend,
modify, add to, or to subtract from any of the provisions of the
Policies or Procedures, Rewards Plan, or the Distributor
Agreement. . . .
Jeunesse Global Policies and Procedures, Section 11.6. at pp. 31-32 (attached as Exh. 2).
The enforceability of this Arbitration Clause, and its applicability to all aspects of the
relationship between Jeunesse and Mr. Nestler, is not affected by the fact that the contractual
terms between the parties is encompassed in five separate documents. All of these documents -including especially the Policies and Procedures and the Nestler BDA,4 must be construed
together under the contemporaneous instrument rule, which states that two documents that are
executed by the same parties, at or near the same time, and concerning the same subject matter

Plaintiff may attempt to argue that one of the provisions of the Nestler BDA, which provides for venue
in the District Court of Seminole County, somehow overrides or negates the applicability of the Arbitration Clause
contained in the Policies and Procedures. Jeunesse will address this argument at greater length in its Reply Brief
after it has an opportunity to review plaintiffs argument on this point but, briefly, any argument which plaintiff may
make in this regard is mistaken. The venue provision in the BDA is a permissive, rather than a mandatory, venue
clause. See Regal Kitchens, Inc. v. O'Connor Taylor Condominium Constr., Inc., 894 So.2d 288 (Fla. 3d DCA
2005). It constitutes nothing more than consent to jurisdiction and venue in the named forum, but does not exclude
jurisdiction or venue in any other forum. Id. Such a provision makes sense, and is in harmony with the Arbitration
Clause, particularly because any enforcement of an arbitration award would require court proceedings at some point
whether to compel arbitration or to enforce as a judgment any arbitration award. The Arbitration Clause also
provides that Jeunesse, without waiving its right to arbitrate, may apply to a court for a writ of attachment or
injunction, and it further provides that disputes regarding intellectual property are to incur in a judicial forum, and
not be submitted to arbitration. Furthermore, given the mandatory language of the arbitration clause and the BDAs
specific reference to, and incorporation of, the Policies and Procedures, and the consequences for a violation thereof,
the mandatory arbitration provision in the Policies and Procedures is controlling. See Turner Const. Co. v.
Advanced Roofing, 904 So.2d 466,468-469 (Fla. 3d DCA 2005).

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are generally construed together as a single contract. See, Wilson v. Terwillinger, 140 So.3d
1122, 1124 (Fla. 5th DCA 2014); Cohn v. Visual Health, 125 So.3d 860, 863 (Fla. 4th DCA
2013) (both citing, Citicorp Real Estate, Inc. v. Ameripalms 6B, 633 So.2d 47, 49 (Fla. 3d DCA
1994)).
B.

FEDERAL AND FLORIDA LAW ESTABLISH A STRONG PRESUMPTION IN FAVOR OF

ARBITRATION

Section 11.6 of the Policies and Procedures of Jeunesse clearly and unambiguously state
that the Federal Arbitration Act is the governing law for disputes regarding the rights and
obligations of Jeunesse distributors.
The Federal Arbitration Act, 9 U.S.C. 1 et seq. (FAA), creates a body of federal
substantive law of arbitrability, applicable to any arbitration agreement within the coverage of
the Act. Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 124 (1983). It
evinces the strong federal policy in favor of enforcing arbitration agreements, and requires that
the courts rigorously enforce such agreements. See Dean Witter Reynolds, Inc. v. Byrd, 470
U.S. 213, 217, 221 (1985). Consistent with the strong federal policy favoring arbitration, the
FAA requires that any doubts concerning the scope of arbitrable issues should be resolved in
favor of arbitration. Moses H. Cone, 460 U.S. at 24-25; see also Murphy v. Courtesy Ford,
L.L.C., 944 So. 2d 1131, 1133 (Fla. 3d DCA 2006) (providing that, under Florida law, [a]ll
doubts regarding the scope of all arbitration agreement must be resolved in favor of arbitration).
The FAA leaves no place for the exercise of discretion by a district court, but instead mandates
that district courts shall direct the parties to proceed to arbitration on issues as to which an
arbitration agreement has been signed. Dean Witter, 470 U.S. at 218 (emphasis added).
Section 2 of the FAA provides:
A written provision in . . . a contract evidencing a transaction
involving commerce to settle by arbitration a controversy
thereafter arising out of such contract or transaction, or the refusal
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to perform the whole or any part thereof, or an agreement in

writing to submit to arbitration an existing controversy arising out
of such a contract, transaction, or refusal, shall be valid,
irrevocable, and enforceable, save upon such grounds as exist at
law or in equity for the revocation of any contract.
9 U.S.C. 2 (Federal Arbitration Act).
Similarly, the Florida Code, like the FAA, provides that an agreement to arbitrate "shall
be valid, enforceable, and irrevocable." See Fla. Stat. 682.02. "Florida public policy favors
resolving disputes through arbitration when the parties have agreed to arbitrate." Murphy v.
Courtesy Ford, L.L.C., 944 So. 2d 1131, 1133 (Fla. 3d DCA 2006) (affirming the lower court's
ruling that the arbitration agreement was enforceable); Richmond Healthcare, Inc. v. Digati, 878
So. 2d 388, 390 (Fla. 4th DCA 2004) (noting that "arbitration agreements are now favored and
will be enforced whenever possible"). Florida policy favors termination of disputes with an
arbitration decision and limited review by the courts. Moser v. Barron Chase Securities, Inc.,
783 So.2d 231, 235 (Fla. 2001).
Moreover, as a general premise, arbitration is especially appropriate in situations
involving issues that are unique to certain industries and which require specialized knoweldge
for their resolution. See, e.g., K.P. Meiring Const., Inc. v. Northboy I & E, Inc., 761 So. 2d 1221,
1223 (Fla. 2d DCA 2000). Courts are required to indulge every reasonable presumption in
favor of arbitration, a favored means of dispute resolution. Id. As long recognized in Florida,
[a]rbitration is a preferred method of dispute resolution, so any doubt regarding the scope of an
arbitration clause should be resolved in favor of arbitration. BallenIsles Country Club, Inc. v.
Dexter Realty, 24 So. 3d 649, 652 (Fla. 4th DCA 2009).
Thus under both the FAA and the Florida Code, courts interpret arbitration provisions
liberally in favor of arbitration.

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C.

THE ARBITRATION PROVISION IN JEUNESSES POLICIES AND PROCEDURES IS

ENFORCEABLE

[T]here are three elements for courts to consider in ruling on a motion to compel
arbitration of a given dispute: (1) whether a valid written agreement to arbitrate exists; (2)
whether an arbitrable issue exists; and (3) whether the right to arbitration was waived. Jackson
v. Shakespeare Foundation, Inc., 108 So. 3d 587, 593 (Fla. 2013); see also Seifert v. U.S. Home
Corp., 750 So. 2d 633, 636 (Fla. 1999) citing Terminix Int'l Co. L.P. v. Ponzio, 693 So.2d 104,
106 (Fla. 5th DCA 1997). As all three factors are met here, the Complaint should be dismissed
or in the alternative stayed so that the parties can arbitrate their disputes as set forth in their
agreement.
1.

Jeunesses Policies & Procedures Contain a Valid Written Arbitration

Provision

Arbitration provisions are contractual in nature and remain a matter of contractual

interpretation. Id. Under Florida law, a contract is formed when there is an offer, acceptance,
consideration and sufficiently specific contractual terms so as to make clear the obligations under
the contract. See West Construction, Inc. v. Florida Blacktop, Inc., 88 So. 3d 301, 304 (Fla. 4th
DCA 2012).
Here, Plaintiff and Jeunesse entered into a contractual relationship which was evidenced
by several documents, including the BDA and the Policies and Procedures. In his Complaint,
Plaintiff expressly admits that the his relationship with Jenuesse as a distributor was governed, in
part, by the Policies and Procedures. See, e.g., Complaint 38, 35, 62, 75.) Similarly, Jeunesse
cites to plaintiffs violation of the Policies and Procedures as a basis for its termination of
Plaintiffs distributorship account. See , Complaint, Exh. B.

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2.

The Instant Dispute is Arbitrable

When a court must decide whether a particular dispute is subject to an arbitration

agreement, doubts about the scope of the agreement should be resolved in favor of arbitration.
See,e.g., Old Dominion Ins. Co. v. Dependable Reinsurance Co. Ltd., 472 So. 2d 1365, 1368
(Fla. 1st DCA 1985) (any doubts concerning the scope of arbitrable issues should have been
resolved in favor of arbitration.) see also Kolsky v. Jackson Square, LLC, 28 So.3d 965, 969
(Fla. 3d DCA 2010). Furthermore, given that arbitration provisions are no less contractual in
nature than other agreements between the parties, they remain subject to general principles of
contract interpretation. Jackson, supra, 108 So. 3d at 593. As such, when assessing whether a
certain claim falls within the purview of an arbitration clause, [t]he plain language of the
agreement containing the arbitration clause is the best evidence of the parties intent.
BallenIsles, 24 So. 2d at 652. The language of the contract is what binds the parties, no matter
how disadvantageous that language later proves for one party or the other. Ibis Lakes
Homeowners Assn, Inc. v. Ibis Isle Homeowners Assn, Inc., 102 So. 3d 722, 729 (Fla. 4th DCA
2012) (citations omitted). A claim is arbitrable if, "'at a minimum, [it] raise[s] some issue the
resolution of which requires reference to or construction of some portion of the contract itself
and there [is] some nexus between the claim and the contract containing the arbitration clause."
Kolsky, supra, 28 So.3d 969 (quoting Seifert, 750 So.2d at 638).
Arbitration provisions can be narrow or broad. See Jackson, 108 So. 3d at 593. An
arbitration provision is considered broad typically if it requires arbitration for claims arising
out of or relating to the subject contract. Id. Here, the arbitration provision in the Policies &
Procedures concerns all disputes and claims relating to Jeunesee, the Agreementthe rights
and obligations of a distributor of Jeunesse, or any claims or causes of action relating to the
performance of either a distributor or any[sic] Jeunesse shall be settled toally and finally by
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arbitrationin accordance with the Federal Arbitration Act.. (Policies and Procedures Section
11.6 (emphasis added).) As such, the arbitration provision is both broad and mandatory.
Florida courts have repeated held that the phrase "arising out of or relating to" the
contract has been interpreted broadly to encompass virtually all disputes between the contracting
parties, including related tort claims. Seifert, supra, 750 So. 2d at 637; citing Southland Corp. v.
Keating, 465 U.S. 1, 15 n. 7 (1984) (involving claims for fraud, misrepresentation, breach of
contract, breach of fiduciary duty, and violation of state franchise investment law); Prima Paint
Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 406 (1967) (holding that contractual language
"[a]ny controversy or claims arising out of or relating to this Agreement, or breach thereof" is
"easily broad enough to encompass" claim for fraud in inducement of contract); and American
Recovery Corp. v. Computerized Thermal Imaging, Inc., 96 F.3d 88, 93 (4th Cir. 1996)
(characterizing phrase "arise out of or related to" as broad arbitration clause "capable of an
expansive reach").
All of Plaintiffs claims unquestionably relate to the contractual relationship between
Plaintiff and Jeunesse and their resulting respective contractual rights and obligations. Given
that the breadth of the arbitration provision and its mandatory language, all of Plaintiffs claims
must therefore be arbitrated.
3.

Jeunesse Has Not Waived the Right to Arbitrate

The right to arbitrate a dispute may be waived if a party acts inconsistent with such right.
However, a party does not waive the right to arbitrate when the party asserts the right in the
partys first substantive pleading. See Price v. Fax Recovery Systems, Inc., 49 So.3d 835, 837
(Fla. 4th DCA 2010); see also O'Keefe Architects, Inc. v. CED Constr. Partners, Ltd., 944 So.2d
181, 185 n.4 (Fla. 2006).

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Here, Jeunesse has not taken any action that is inconsistent with its right to arbitrate
Plaintiff's claims. The first substantive action that Jeunesse has taken in this lawsuit is the filing
of this motion to compel arbitration. As such, under no scenario can Jeunesse be deemed to have
waived the right to arbitrate this matter.
4.

Arbitration Should Be Compelled

Here, all three of the requisites to arbitration are established. There is a written
arbitration clause that is part of a valid written contract. The claims at issue fall under the scope
of the arbitration clause. Jeunesse, at the first opportunity, has sought to compel arbitration,
meaning it has not waived its right to arbitrate. The inexorable conclusion is that this Court must
compel Nestler to submit his claims against Jeunesse for resolution in an arbitration proceeding.
II.

IN ADDITION TO COMPELLING ARBITRATION, THE COURT ALSO SHOULD DISMISS OR

STAY THIS MATTER
Section 3 of the Federal Arbitration Act directs courts to stay proceedings pending the

completion of arbitration. Floridas Arbitration Code similarly provides that litigation shall be
stayed in any case in which arbitration has been ordered. See Fla. Stat. 682.03(3) ([T]he order
for arbitration shall include such stay); see also Vista Healthplan v. HCA, 861 So. 2d 102 (Fla.
4th DCA 2003) ([O]nce arbitration has been ordered, arbitration proceeds and the lawsuit does
not.).
Florida law also authorizes dismissal in lieu of a stay when, as in this case, all of the
claims are arbitrable. See Fla. Keys Elec. Co-op. Assn v. A&G Baton of Fla., 574 So. 2d 1225
(Fla. 3d DCA 1991) (affirming dismissal); but see EMSA Ltd PShip v. Mason, 677 So. 2d 105,
107 (Fla. 4th DCA 1997) (acknowledging authority for dismissal, but holding the better practice
is to enter stay pursuant to Fla. Stat. 682.03(3)). Likewise, federal courts applying the FAA
recognize that dismissal is authorized where all the claims raised in an action must be submitted
to arbitration. See, e.g., Perera v. H & R Block E. Enterps., Inc., No. 12-cv-22367, 2012 WL
11.

5471942, at *5 (S.D. Fla. Nov. 9, 2012) (compelling arbitration and dismissing the case where
all claims were subject to arbitration); Alford v. Dean Witter Reynolds, Inc., 975 F.2d 1161, 1164
(5th Cir. 1992) (dismissing the action because all issues raised in this action are arbitrable and
must be submitted to arbitration, retaining jurisdiction and staying the action will serve no
purpose). Because the claims here all are subject to arbitration, this Court should dismiss this
action in its entirety. In the alternative, the Court should stay this action pending the completion
of arbitration. See 9 U.S.C. 3.

CONCLUSION
WHEREFORE, for the foregoing reasons, Jeunesse respectfully requests that that the
Court enters an order compelling Plaintiff to arbitrate all of his claims alleged in the Complaint
and dismissing this action. In the alternative, the Court should order that this action be stayed
pending completion of arbitration.

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 30th day of March, 2015 a copy hereof has been filed
electronically on the Florida Courts E-Portal system which will serve an electronic copy of the
foregoing to:
Michael C. Foley, Esq.
Joshua Magidson, Esq.
Todd A. Jennings, Esq.
MacFarlane Ferguson & McMullen
Post Office Box 1669 (33757)
625 Court Street, Suite 200
Clearwater, FL 33756
mcf@macfar.com
cao@macfar.com
taj@macfar.com
Attorneys for Plaintiff

Kevin Thompson (pending admission pro hac

vice)
Alexandria S. Fisher (pending admission pro
hac vice)
THOMPSON BURTON, PLLC
840 Crescent Centre Drive, Suite 260
Franklin, Tennessee 37067
(615) 465-6001
kevin@thompsonburton.com
Attorneys for Plaintiff

COLE, SCOTT & KISSANE, P.A.

By /s/ Christina Bredahl
Christina Bredahl
Florida Bar No. 0055462
Summit Tower, Suite 750
1900 Summit Tower Blvd.
Orlando, Florida 32810
Telephone: 321.972.0025
Facsimile: 321.972.0099
Christie.bredahl@csklegal.com
Jeanna.bond@csklegal.com
Co-Counsel for Jeunesse, LLC
Lawrence B. Steinberg
California Bar No. 101966
(admitted pro hac vice; PHV No. 114966)
Buchalter Nemer
1000 Wilshire Boulevard, Suite 1500
Los Angeles, CA 90017-2457
Telephone: (213) 891-0700
Fax: (213) 896-0400
LSteinberg@buchalter.com
Co-Counsel for Jeunesse, LLC

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