On March 27, 2014 in Huffman v. The Hilltop Companies, LLC, the US Court of Appeals for the Sixth Circuit held that an arbitration clause may survive the expiration of an agreement even if it is not one of the provisions enumerated in the agreement's survival clause (No. 13–3938, (6th Cir. Mar. 27, 2014)).

The plaintiffs, temporary employees of the defendant, brought suit alleging that they were not properly compensated for overtime work. The defendant employer moved to dismiss the action and compel arbitration because the employment agreement under which the plaintiffs had been engaged contained a clause mandating arbitration. However, the plaintiffs argued that they should not be forced to arbitrate because the employment agreement expired prior to commencement of the suit. They further asserted that, because the agreement's survival clause did not list the arbitration clause, the arbitration clause expired with the agreement. The district court denied the defendant's motion to dismiss and compel arbitration.

The Sixth Circuit reversed and explained that there is a strong presumption in favor of arbitration. The US Supreme Court held in Litton Financial Printing Division v. NLRB that there is a "presumption in favor of postexpiration arbitration of matters unless negated expressly or by clear implication [for] matters and disputes arising out of the relation governed by contract" (501 U.S. 190, 204 (1991)). The Sixth Circuit noted that if there is ambiguity in the contract, the strong presumption in favor of arbitration controls, rejecting the plaintiffs' argument that any ambiguities in the contract must be resolved against the drafter.

The Sixth Circuit also rejected the plaintiffs' argument that the omission of the arbitration provision from the survival clause demonstrated a "clear implication" that the arbitration clause was meant to expire. The court reasoned that the parties did not intend for the survival clause to serve as an exhaustive list of the provisions that would outlast the expiration of the agreement. As an example, the non-compete clause also was not listed in the survival clause, but it remained in effect for twelve months after the agreement's expiration. Since other clauses that remained in effect post-expiration were not listed in the survival clause, the court could not find that the omission of the arbitration clause clearly indicated that the clause expired with the agreement. The court noted, however, that it might have reached a different conclusion if the survival clause listed 23 out of the agreement's 24 provisions, omitting only the arbitration clause.

The Sixth Circuit further noted that it would not make sense for the arbitration clause to expire with the agreement because a plaintiff wanting to avoid arbitration could simply wait for an agreement to expire before bringing a claim.

Practitioners should be aware that overcoming the strong presumption in favor of arbitration is a difficult burden to meet.