Michele A. Cornelius v. Cvs Pharmacy Inc.

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 23-2961
____________
MICHELE A. CORNELIUS,
Appellant
v.
CVS PHARMACY INC.; NEW JERSEY CVS
PHARMACY, L.L.C.; SHARDUL PATEL
____________
On Appeal from the United States District Court
for the District of New Jersey
(District Court No. 2:23-cv-01858)
District Judge: Honorable Susan D. Wigenton
____________
Argued October 30, 2024
____________
Before: CHAGARES, Chief Judge, PORTER and CHUNG,
Circuit Judges
(Filed: April 2, 2025)

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Alex G. Leone [ARGUED]
P.O. Box 1274
Maplewood, NJ 07040
Counsel for Appellant
James Driscoll-MacEachron [ARGUED]
Equal Employment Opportunity Commission
Office of General Counsel
131 M Street NE
Washington, DC 20507
Counsel for Amicus Equal Employment Opportunity
Commission
Rohan Shetty
Public Justice
1620 L Street NW
Suite 630
Washington, DC 20036
Counsel for Amicus Public Justice
Kristine G. Derewicz [ARGUED]
Littler Mendelson
1601 Cherry Street
Three Parkway, Suite 1400
Philadelphia, PA 19102
Marcy A. Gilroy
Littler Mendelson
1085 Raymond Boulevard
One Newark Center, 8th Floor

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Newark, NJ 07102
Heather A. Pierce
Littler Mendelson
One Financial Plaza
Suite 2205
Providence, RI 02903
Tara Porterfield
Littler Mendelson
100 Congress Avenue
Suite 1400
Austin, TX 78701
Counsel for Appellees
Michael E. Kenneally [ARGUED]
Morgan Lewis & Bockius
1111 Pennsylvania Avenue NW
Suite 800 North
Washington, DC 20004
Counsel for Amici Retail Litigation Center, Inc. and
Chamber of Commerce of the United States of America
____________
OPINION OF THE COURT
____________
CHUNG, Circuit Judge.

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Michele Cornelius sued CVS, her former employer, and
Shardul Patel, her former supervisor, for creating a hostile
work environment. CVS moved to compel Cornelius to
arbitrate and to dismiss or stay her Complaint. The District
Court granted the motion to compel arbitration and dismissed
the complaint because it concluded that Cornelius’s claims
were not shielded from arbitration under the Ending Forced
Arbitration of Sexual Assault and Sexual Harassment Act of
2021 (“EFAA”) as her hostile work environment claim was not
a “sexual harassment dispute.” The District Court also ruled
that Cornelius and CVS entered into a valid arbitration
agreement and that the agreement was not unconscionable.
We agree with the District Court that the EFAA does
not cover Cornelius’s claims, but we reach that conclusion on
different grounds. We further conclude that the District Court
abused its discretion by failing to consider whether discovery
was necessary before deciding that Cornelius and CVS reached
a valid agreement to arbitrate.
We will therefore affirm in part, vacate judgment, and
remand to the District Court.
I. BACKGROUND1
1 We derive the following facts from Cornelius’s
Complaint unless otherwise noted. CVS’s motion to dismiss
was predicated on the arbitration agreement and did not
challenge the sufficiency of Cornelius’s Complaint. At this
stage, we take the factual allegations set forth in her Complaint
as true. See Coon v. Cnty. of Lebanon, 111 F.4th 273, 275 (3d

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A. Factual History
Michele Cornelius began working for CVS as a cashier
in 1982. Over the next forty years, Cornelius “built an
excellent reputation for operational discipline” and was
eventually promoted Store Manager of CVS Pharmacy store
2724 in June 2017 (“the Store”). App. at 6.
Beginning in 2018, Cornelius’s supervisor, Shardul
Patel, “began to target [Cornelius] with severe and pervasive
negative treatment, intentionally because she is a woman.” Id.
Patel unfairly denied her promotions and pay increases,
favored her male employees and counterparts, “abus[ed] [her]
with rude and unnecessary text messages,” overworked her,
and “undermin[ed]” her relationship with Store employees.
App. at 6-7.
Cornelius raised concerns about her treatment with CVS
in April 2019 during a meeting with Patel’s supervisor, Robert
Brauer. At the meeting, she informed Brauer of Patel’s
conduct toward her. Brauer, however, “simply dismissed” her
complaints and, to her knowledge, “neither [] Brauer, nor
anyone at CVS, took any action against” Patel. App. at 10.
Cornelius thereafter submitted many complaints to CVS, at
least six in writing, regarding Patel’s conduct between
September 2019 and June 2020. CVS, according to Cornelius,
“always arbitrarily and sexistly sided with [] Patel, dismiss[ed]
[Cornelius’s] complaints of discrimination, and utterly fail[ed]
to remedy” Patel’s conduct. App. at 11.
Cir. 2024) (“On [a] motion to dismiss, we take the complaint’s
factual allegations as true.”).

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Cornelius submitted two resignation notices to Patel in
October 2021, which he did not respond to. Patel fired
Cornelius on November 4, 2021.
B. The Arbitration Agreement2
In 2014, CVS introduced its Arbitration of Workplace
Legal Disputes policy (“Arbitration Policy”). Under the
Arbitration Policy, employees are informed that all “Covered
Claims” will be arbitrated. App. at 23. The Arbitration Policy
further provides that “[e]mployees accept this Policy by
continuing their employment after becoming aware of the
Policy.” Id. The Arbitration Policy does not describe how an
employee can opt out or explicitly state that employees will
forfeit their right to a trial.
Employees learned of the Arbitration Policy through a
PowerPoint training course (“Training Course”). App. at 18.
The third slide of the Training Course contains a hyperlink to
the CVS Health Colleague Guide to Arbitration (“Policy
Guide”). The Policy Guide contains a full copy of the
Arbitration Policy and explains how employees can accept the
terms of the Arbitration Policy and how to opt out. After
reviewing the Policy Guide, an employee must continue
through the rest of the slides and “acknowledge[e]” that,
among other things: the employee has “carefully read” the
Arbitration Policy and “understand[s] that it applies to [the
employee]”; the employee has “the opportunity, for a limited
2 Cornelius did not reference or include the Arbitration
Policy in her Complaint. We derive information about the
Arbitration Policy from CVS’s motion to compel arbitration
and its accompanying documents, including a declaration from
Robert Bailey, Director of Talent Management at CVS.

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time only, to opt out of the Policy”; and that to opt out, the
employee must send a written and signed letter to a specific
address. App. at 20-21, 42.
Cornelius completed the Training Course on October 8,
2014.
C. Procedural History
On August 22, 2022, Cornelius filed a charge of
discrimination with the Equal Employment Opportunity
Commission (“EEOC”) and received her right-to-sue letter on
February 15, 2023. Cornelius filed her Complaint in the
District of New Jersey on April 3, 2023. On May 23, 2023,
CVS moved to compel arbitration and dismiss or stay.
The District Court granted CVS’s motion. It concluded
that Cornelius could not avoid arbitration under the EFAA
because her claims did not constitute a “sexual harassment
dispute.” It further held that the parties voluntarily entered into
a valid and enforceable agreement to arbitrate and rejected
Cornelius’s unconscionability claim. Cornelius timely
appealed.
II. DISCUSSION3
Cornelius primarily raises two issues on appeal. She
argues that the District Court erred by (1) concluding that the
3 The District Court had jurisdiction under 28 U.S.C.
§§ 1331 and 1367. We have jurisdiction under 28 U.S.C.
§ 1291.

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EFAA does not shield her claims from arbitration4 and (2)
concluding that she entered into an agreement to arbitrate
without permitting discovery on the issue, despite looking
beyond the pleadings in considering the motion to dismiss.
We conclude that the EFAA does not apply to
Cornelius’s claims and will affirm as to this issue. We will
nonetheless remand as the District Court applied a Rule 56
4 Cornelius also argues that the District Court erroneously
held that the Arbitration Policy (and accompanying
documents) was not unconscionable. We do not reach that
issue here. See infra note 21.
Cornelius further argues that the District Court erred in
dismissing, rather than staying, the case after it compelled
arbitration. The Supreme Court has made clear that Section 3
of the FAA requires that, “when a dispute is subject to
arbitration, the court ‘shall on application of one of the parties
stay the trial of the action until [the] arbitration’ has
concluded.” Smith v. Spizzirri, 601 U.S. 472, 473 (2024)
(quoting 9 U.S.C. § 3). The defendants moved to dismiss, or
in the alternative to stay, the case. Accordingly, if the District
Court determines that Cornelius’s claims are subject to
arbitration, it must stay the case. See, e.g., Southward v.
Newcomb Oil Co., LLC, 7 F.4th 451, 453 (6th Cir. 2021)
(treating a “motion to dismiss, or in the alternative stay” as a
request to stay “because the FAA does not provide for
dismissal as a remedy”); Herra v. Cathay Pac. Airways Ltd.,
104 F.4th 702, 711 (9th Cir. 2024) (holding that Spizzirri
requires courts to stay a case sent to arbitration where the
defendants request to “dismiss or, in the alternative, stay the
action”).

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summary judgment standard, instead of the motion to dismiss
standard, without considering whether discovery on
arbitrability was warranted.
A. The EFAA Does Not Shield Cornelius’s
Claims from Arbitration5
In general, the Federal Arbitration Act (“FAA”)
requires courts to put arbitration agreements “on equal footing
with all other contracts.” Buckeye Check Cashing, Inc. v.
Cardegna, 546 U.S. 440, 443 (2006).6 Agreements to arbitrate
are thus as “valid, irrevocable, and enforceable” as any other
contract. 9 U.S.C. § 2.
Enacted on March 3, 2022, “[t]he EFAA is codified
directly into the FAA and limits the scope of this broad
mandate to enforce arbitration agreements.” Olivieri v. Stifel,
Nicolaus & Co., Inc., 112 F.4th 74, 84 (2d Cir. 2024). “[T]he
EFAA renders arbitration agreements invalid and
unenforceable, at the election of the complainant, in sexual
assault and sexual harassment cases.” Id. at 77. The EFAA
has two components: a substantive component and a timing
component. We address the latter and conclude that the EFAA
5 We review questions of statutory interpretation de novo.
Doe I v. Scalia, 58 F.4th 708, 714 (3d Cir. 2023).
6 The EFAA specifies that courts, rather than arbitrators,
shall determine whether it applies to a particular arbitration
agreement. 9 U.S.C. § 402(b) (“The applicability of this
chapter to an agreement to arbitrate and the validity and
enforceability of an agreement to which this chapter applies
shall be determined by a court, rather than an arbitrator[.]”).

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does not apply to Cornelius’s claims because her dispute with
CVS arose prior to the effective date of the Act.7
The EFAA “shall apply with respect to any dispute or
claim that arises or accrues on or after the date of enactment of
this Act,” March 3, 2022. Ending Forced Arbitration of Sexual
Assault and Sexual Harassment Act of 2021, Pub. L. 117-90,
§ 3, 136 Stat. 26, 28.8 The parties break this language down
into two separate timing inquiries: (1) when a
“dispute…arises”; and (2) when a “claim…accrues.” Id. We
adopt that organizational approach here.
Cornelius concedes that her “claim accrued” prior to her
separation from CVS on November 4, 2021, well before the
7 The District Court declined to address the EFAA’s
timing component, holding instead that Cornelius’s claims did
not constitute a “sexual harassment dispute” within the
meaning of the EFAA. Because “[w]e exercise plenary review
of a district court’s order granting a motion to dismiss,” Hassen
v. Government of Virgin Islands, 861 F.3d 108, 114 (3d Cir.
2017), and because CVS’s timing argument was preserved and
meritorious, we address only whether Cornelius’s dispute
arose prior to the effective date of the Act.
8 This language is contained in a “statutory note” and is
not reflected in the published version of the U.S. Code.
Statutory notes are congressionally enacted and constitute
binding law. Olivieri, 112 F.4th at 84 n.4 (“It makes no legal
difference that this provision is codified in a statutory note, not
the main body, of the United States Code.”); Ruiz-Perez v.
Garland, 49 F.4th 972, 975 n.1 (5th Cir. 2022) (“Statutory
notes are binding law.”).

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effective date of the EFAA. Accordingly, the EFAA shields
Cornelius’s claims from arbitration only if her dispute arose on
or after March 3, 2022.
The parties offer two competing readings of what it
means for a “dispute” to “arise” under the Act. We are not
persuaded to adopt either interpretation.
1. “Dispute” is not Equivalent to “Injury”
We begin and end with the text. See Octane Fitness,
LLC v. ICON Health & Fitness, Inc., 572 U.S. 545, 553 (2014).
We give “dispute” its ordinary meaning, since there is no
statutory definition. Murphy v. Millennium Radio Grp. LLC,
650 F.3d 295, 302 (3d Cir. 2011). “We may refer to legal and
general dictionaries to ascertain the ordinary meaning of” an
undefined statutory term. United States v. Poulson, 871 F.3d
261, 269 n.7 (3d Cir. 2017). Black’s Law Dictionary defines
“dispute” as a “conflict or controversy, esp[ecially] one that
has given rise to a particular lawsuit.” Dispute, BLACK ’ S LAW
D ICTIONARY (11th ed. 2019). The Oxford English Dictionary
defines “dispute” as “[t]he act of disputing or arguing against;
active verbal contention, controversy, debate.” Dispute,
Oxford English Dictionary (3d ed. 2016). In short, giving the
word its ordinary meaning, a “dispute” requires some aspect of
opposition or disagreement.
CVS argues though that a dispute arises “when the
conduct…occurs.” CVS Br. at 14-15 (internal quotations
omitted). “A claim necessitates an underlying dispute. In this
way, a dispute sparks the potential for a later claim and is, in a
sense, the inception of a cause of action.” Id. (internal
quotations omitted). Under CVS’s interpretation, the dispute

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arose, at the latest, when Cornelius was fired on November 4,
2021, because that is when “the alleged conduct that gave rise
to the claimed sexual harassment…ended.” Id. at 16. In other
words, CVS effectively equates “dispute” with injury. But
“injury” lacks the essential quality of disagreement that the
term “dispute” signifies. Compare Dispute, BLACK ’ S L AW
D ICTIONARY (11th ed. 2019) with Injury, BLACK ’ S LAW
D ICTIONARY (11th ed. 2019) (defining “injury” as “[t]he
violation of another’s legal right, for which the law provides a
remedy; a wrong or injustice”).
The Eighth Circuit rejected a similar attempt to reduce
“dispute” to “injury” in interpreting the EFAA. See Famuyide
v. Chipotle Mexican Grill, Inc., 111 F.4th 895, 898 (8th Cir.
2024). In that case, Chipotle asserted that “a ‘dispute’
necessarily arises when the underlying conduct occurs” and
argued that a dispute arose in that case “when [the plaintiff’s]
co-worker sexually assaulted her in the restroom at the
restaurant.” Id. The Court rejected that view because, at the
time of the sexual assault, the plaintiff “had not asserted any
right, claim, or demand against Chipotle, and Chipotle had not
registered disagreement with any position of [the plaintiff’s].”
Id. We agree with the Eighth Circuit and decline to apply such
an irregular definition to “dispute.” The text of the EFAA uses
the word “dispute,” and the ordinary meaning of that word
involves some opposition or disagreement between the parties.
2. A Dispute Does Not Arise Only at the
Filing of an External Complaint
Cornelius and amicus Public Justice advance a different
interpretation of when a “dispute…arises[.]” 9 U.S.C. § 401(a).
Unlike CVS, they acknowledge that an essential component of

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a “dispute” is the registration of disagreement. See Pub. Just.
Br. at 12 (“[A] dispute comes into being when a person asserts
a right, claim, or demand and is met with disagreement on the
other side.” (internal quotations omitted)). Public Justice
argues that such a dispute arises “when a plaintiff submits an
external complaint alleging employer liability,” such as
through an EEOC charge or by filing a complaint in district
court. Pub. Just. Br. at 12; see also Br. at 26 (“[T]he instant
dispute arose when [Cornelius] filed a charge with the EEOC
on August 2, 2022 (or timely filed this lawsuit thereafter).”
(emphasis omitted)). Cornelius, on the other hand, argues that
the statutory phrase “any dispute,” Pub. L. 117-90, § 3, 136
Stat. 26, 28 (emphasis added), signifies that “disputes are
possible at multiple points in sexual harassment matters.”
Reply at 5, 7-8. She asserts that “the most significant and
obviously identifiable dispute occur[s] upon the filing of” an
external complaint. Id. Under this logic, her August 2022
EEOC charge falls within the EFAA’s broad inclusion of “any
dispute” because it created a dispute and is, therefore, a
“dispute” that “arose” after March 3, 2022. Accordingly,
Public Justice and Cornelius argue that the EFAA can be
applied here because at least one dispute “arose when []
Cornelius filed a charge of discrimination with the EEOC in
August 2022.” Id. at 13. Neither Public Justice’s overly
narrow, nor CVS’s overly broad, interpretation of when a
“dispute…arises” is persuasive.
Public Justice’s interpretation is an unnatural reading of
the text. There is no compelling reason to limit the term
“dispute” to the filing of an “external complaint alleging
employer liability.” Id. at 12. That reading would result in
excluding many conflicts that we could call “disputes” under
its ordinary meaning, and Public Justice offers no good reason

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to do so.
Perhaps recognizing this problem, Cornelius posits that
“disputes are possible at multiple points in sexual harassment
matters” (although she maintains that “the most significant and
obviously identifiable dispute occur[s] upon the filing of” an
external complaint). Reply at 5. In other words, an ongoing
disagreement is a series of separate disputes. This approach
undersells the importance of the statutory term “arise” and
requires Cornelius to maintain that there cannot be, or was not
here, an ongoing “dispute.” As described in more detail below,
that is a difficult position to hold: Cornelius submitted over a
dozen internal complaints about Patel’s conduct, all of which
CVS denied. It is much more natural—at least in this case—
to understand Cornelius’s EEOC charge as one of the later
events in an ongoing dispute, not as a new dispute “arising” at
that time. We therefore reject Cornelius’s and Public Justice’s
interpretations of “dispute…arises.” 9 U.S.C. § 401(a).
In our view, a “dispute…arises” when an employee
registers disagreement—through either an internal complaint,
external complaint, or otherwise—with his or her employer,
and the employer expressly or constructively opposes that
position. See Famuyide, 111 F.4th at 898 (noting that a dispute
had not arisen where the plaintiff “had not asserted any right,
claim or demand against Chipotle, and Chipotle had not
registered disagreement with any position of” the plaintiff’s).
This is an intermediate approach between the positions
advanced by the parties. It requires some opposition between
the employer and employee but is not tethered to a particular
process. Thus, a dispute can arise upon the filing of an internal
complaint, so long as the employer expressly or constructively
disagrees with the employee’s position. This interpretation
hews to the ordinary meanings of both “dispute” and “arise”

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and accounts holistically for the EFAA’s language.9
Applying this understanding, we have no trouble
concluding that Cornelius’s dispute arose prior to March 3,
2022. According to Cornelius’s Complaint, she submitted at
least six written, internal complaints to CVS between
September 2019 and June 2020. Moreover, as Cornelius
alleged, “CVS always arbitrarily and sexistly sided with
[Patel], dismiss[ed her] complaints of discrimination, and
utterly fail[ed] to remedy [the] hostile work environment.”
App. at 11. This is enough to say that CVS disagreed with
Cornelius’s position as to Patel’s conduct. Accordingly, a
“dispute” “arose” while Cornelius was employed at CVS, long
before the EFAA’s March 3, 2022, effective date, and
Cornelius’s claims are not shielded from arbitration.
We will therefore affirm the District Court’s holding
that the EFAA does not apply to Cornelius’s Title VII claim.
B. Whether a Valid and Enforceable Agreement
to Arbitrate Existed
Under New Jersey law, no meeting of the minds to
arbitrate exists when an agreement provides insufficient notice
of the waiver of trial rights. Garfinkel v. Morristown
Obstetrics & Gynecology Assocs., P.A., 773 A.2d 665, 671
(N.J. 2001). In addition to finding that the EFAA did not bar
arbitration of Cornelius’s claims, the District Court also
9 We recognize that it may not always be easy to tell when
an employee first registers disagreement with his or her
employer or when an employer disagrees with a position of an
employee. See, e.g., Famuyide, 111 F.4th at 898.

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considered whether an agreement to arbitrate existed between
Cornelius and CVS. It found that CVS “made an offer to enter
an arbitration agreement by notifying [Cornelius] of the
Arbitration Policy through the Arbitration Training Course,”
that Cornelius “acknowledged electronic receipt of the
arbitration agreement and relevant material,” that she did not
opt-out, and that she entered the agreement voluntarily.
Cornelius, 2023 WL 6876925, at *4. On that basis, the District
Court held that the parties entered a valid agreement to
arbitrate. Cornelius challenges this conclusion.
The parties agree, as do we, that despite acknowledging
the Rule 12(b)(6) standard, the District Court applied the Rule
56 summary judgment standard because it considered facts and
evidence outside Cornelius’s Complaint. Guidotti v. Legal
Helpers Debt Resol., L.L.C., 716 F.3d 764, 776 (3d Cir. 2013)
(applying the Rule 56 summary judgment standard when “the
complaint and its supporting documents are unclear regarding
the agreement to arbitrate” or “the plaintiff has responded to a
motion to compel arbitration with additional facts sufficient to
place the agreement to arbitrate in issue”).
The disagreement between the parties centers on
whether the District Court’s use of the Rule 56 standard also
required it to allow Cornelius an opportunity for discovery.
Specifically, Cornelius contends that this Court’s decision in
Guidotti requires the trial court to give her an opportunity to
conduct discovery before determining whether she agreed to
arbitrate. See id. at 774-76. CVS counters that, even under
Guidotti, discovery “is not always warranted before deciding a
motion to compel arbitration under a Rule 56 standard” and

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that Cornelius failed to show that discovery was necessary.10
CVS Br. at 45.
We recently clarified the scope of our holding in
Guidotti. See Young v. Experian Information Solutions, Inc.,
119 F.4th 314 (3d Cir. 2024). In Young, we noted that the
seemingly mandatory language of Guidotti “is more
prescriptive than is helpful or accurate” and that its “call for
limited discovery into arbitrability is best understood as being
itself limited.” Id. at 319. We explained that Guidotti should
“be read as encouraging factual discovery when such discovery
is warranted, which will often be the case.” Id. Nonetheless,
discovery is not required “when no factual dispute exists as to
10 CVS also argues that Cornelius failed to request
discovery altogether. We disagree. In her opposition to CVS’s
motion to compel, Cornelius asserted that the District Court
“‘must [] give[] [her] the opportunity to conduct limited
discovery on the narrow issue concerning the validity’ of the
purported arbitration agreement.” App. 67 n.43 (quoting
Guidotti, 716 F.3d at 774). Any technical defect with this
request is excusable because the District Court converted
CVS’s motion to dismiss without notice. See Miller v.
Beneficial Mgmt. Corp., 977 F.2d 834, 846 (3d Cir. 1992)
(excusing plaintiff’s “fail[ure] to file a Rule 56[(d)] affidavit”
where plaintiff “repeatedly argued in her district court briefs
that consideration of [defendant’s] summary judgment motion
should be postponed”); Ford Motor Co. v. Summit Motor
Prods., Inc., 930 F.2d 277, 284 (3d Cir. 1991) (holding that
district court erroneously converted motion to dismiss into one
for summary judgment without giving a reasonable
opportunity to conduct discovery).

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the existence or scope of the arbitration agreement.” Id. at 320.
Notably, Young post-dates the order on review and the District
Court and parties were not privy to its holding.
In light of Young, we must consider whether factual
disputes must be resolved to determine whether CVS and
Cornelius agreed to arbitrate. Id. at 320 (discovery is
warranted unless “the movant show ‘there is no genuine
dispute as to any material fact’” (quoting Fed. R. Civ. P. 56(a)).
A non-movant is generally entitled to discovery if he or she
surmounts Rule 56(d)’s modest procedural threshold. See Fed.
R. Civ. P. 56(d) (“If a nonmovant shows by affidavit or
declaration that, for specified reasons, it cannot present facts
essential to justify its opposition, the court may,” among other
things, “allow time…to take discovery”); Doe v. Abington
Friends Sch., 480 F.3d 252, 257 (3d Cir. 2007) (“District courts
usually grant properly filed Rule 56[(d)] motions as a matter of
course.” (internal quotations omitted)). “This is particularly so
when…relevant facts are under the control of the moving
party.” Id.11
Cornelius argues that she surmounted the Rule 56(d)
threshold for discovery. She points to “dozens of factual
disputes” that she raised in her opposition to CVS’s motion to
compel. Br. at 33. She summarizes these disputes into three
groups. First, she “cited facts establishing…that [CVS’s]
confusing arbitration[-]related-documents could easily…be
11 We emphasize that even if a non-movant satisfies this
burden, discovery should be “limited” to “the narrow issue
concerning the [existence and] validity of the arbitration
agreement.” Guidotti, 716 F.3d at 775.

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misconstrued as a routine component of a training program.”
Br. at 36 (internal quotations omitted). Second, Cornelius
asserts that the “training documents confusingly and
unpredictably shift[] between inconsistent propositions on
important arbitration-related provisions, including the right to
legal counsel[.]” Br. at 36-37 (internal quotations and footnote
omitted). Finally, she alleged that there were “multiple
material misrepresentations by [CVS] in their
arbitration-related documents.” Br. at 39 (internal quotations
omitted). She also argues that the District Court did not make
a finding as to what documents—the Arbitration Policy, Policy
Guide, and/or Training Course—constituted the arbitration
agreement. In her view, the District Court either “resolv[ed]
all of these disputes against [her] in the absence of discovery[]
or fail[ed] to acknowledge them at all.” Br. at 33 (footnote
omitted).12
Some of Cornelius’s disputes—whether factual or
legal—appear to go to the heart of the agreement’s validity
under New Jersey law.13 See Aliments Krispy Kernels, Inc. v.
Nichols Farms, 851 F.3d 283, 288 n.18 (3d Cir. 2017) (“When
deciding whether the parties agreed to arbitrate a certain
12 We review a District Court’s discovery orders for abuse
of discretion. See United States v. Collins, 36 F.4th 487, 494
(3d Cir. 2022).
13 Although the arbitration agreement delegates to the
arbitrator threshold questions regarding the validity and
enforceability of the Arbitration Policy, questions regarding
the formation of the arbitration agreement must be resolved in
federal court. Young, 119 F.4th at 321.

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matter, courts generally should apply ordinary state-law
principles that govern the formation of contracts.” (internal
quotations and ellipses omitted)). She argues, for example,
that important language is spread across the Arbitration Policy,
Arbitration Guide, and Training Course, precluding any “clear
and unmistakable” agreement to arbitrate or effective waiver
of her right to trial. 14 Br. at 40 (emphasis and internal
quotations omitted); Skuse v. Pfizer, Inc., 236 A.3d 939, 949
(N.J. 2020) (“Our jurisprudence has stressed that when a
contract contains a waiver of rights—whether in an arbitration
or other clause—the waiver must be clearly and unmistakably
established.” (internal quotations omitted)). She accurately
notes that CVS’s Arbitration Policy makes no mention of the
right to legal counsel, that being found only in the Training
Course. Compare App. at 23-26 with App. at 45. Similarly,
the procedures for opting out are found only in the Policy
Guide. And while CVS’s Arbitration Policy states that future
covered disputes will be arbitrated, it does not affirmatively
state whether any right is being relinquished. Finally, the
presentation of the arbitration agreement as a “training” may
14 The extent to which the location of information matters
depends on which documents comprise the agreement to
arbitrate. We agree with Cornelius that it is not entirely clear
which materials the District Court determined comprise the
agreement to arbitrate. The District Court appeared to draw
from the Arbitration Policy, Training Course, and Policy Guide
in rendering its decision. From our review of its opinion,
however, it is not clear to us that the District Court determined
which, or what combination of, these documents constituted
the agreement to arbitrate. Accordingly, we do not address
Cornelius’s argument regarding unconscionability here.

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also be relevant to whether the parties agreed to arbitrate. See
Skuse, 236 A.3d at 954 (affirming introduction of an arbitration
agreement during training only where the “content and tone”
of defendant’s “communication could not be misconstrued as
a routine component of a training program”).
CVS contends that Cornelius merely presents “a series
of legal arguments regarding the content of the arbitration
documents,” which cannot satisfy Rule 56(d)’s threshold for
discovery. CVS Br. at 40 (emphasis omitted). CVS also
asserts that these “legal arguments” are meritless. CVS Br. at
40-43.
CVS may or may not be correct. Were Cornelius’s legal
challenges to the arbitration agreement, especially under Skuse,
squarely addressed, we might be more inclined to agree with
CVS’s argument that we need only consider that legal
question. See Cornelius Opp’n Dist. Ct. Dkt. 11 at 10-21. The
District Court, however, did not appear to consider New
Jersey’s waiver-of-rights law or whether there were any factual
disputes warranting discovery under Rule 56(d). In light of a
district court’s broad discretion to order and control the scope
of discovery, we decline to address, in the first instance,
whether discovery is warranted.15 See Lloyd v. HOVENSA,
15 For instance, Cornelius appears to argue that any waiver
under the Arbitration Policy is invalid under New Jersey law
because employees could not obtain copies of the Policy or
Policy Guide after the training and the record is not clear to
what extent employees could access such materials. The
District Court may or may not find that this assertion is relevant
to determining waiver under Skuse and related cases and, if so,

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LLC, 369 F.3d 263, 274 (3d Cir. 2004) (“It is well established
that the scope and conduct of discovery are within the sound
discretion of the trial court.” (internal quotations omitted)); see
also Ray v. Robinson, 640 F.2d 474, 478 (3d Cir. 1981) (“A
failure to recognize the existence of authority to exercise
discretion does not amount to its exercise. If a district court
fails to exercise its discretion, that is itself an abuse of
discretion.” (internal citation omitted)). While the District
Court intended to resolve CVS’s motion under Rule 12(b)(6),
which would give no occasion for the District Court to consider
whether discovery was warranted, its consideration of
materials outside of the Complaint placed its analysis within
the realm of Rule 56 and the possible need for discovery.
We will therefore vacate the District Court’s dismissal
order and remand for consideration of whether discovery into
the validity of the arbitration agreement is warranted under
Rule 56(d) and for consideration of Cornelius’s legal
challenges to the arbitration agreement under New Jersey law.
III. CONCLUSION
For the reasons set forth above, we will affirm in part,
vacate judgment, and remand for further proceedings
consistent with this opinion.
may or may not also find that discovery is necessary to resolve
such dispute.

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