Rajesh Gupta v. Morgan Stanley Smith Barney, L

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.