Since the California Court of Appeal decided Cook v. University of Southern California, employers using “including but not limited to” language to define covered claims in their arbitration agreements have faced a familiar argument from the plaintiffs’ bar: that the phrase renders the agreement’s scope unconscionably limitless, and that overbreadth also taints the agreement’s duration and mutuality. The Ninth Circuit’s decision in Cocom v. ABM Aviation, Inc. gives employers an answer to that argument, one that federal district courts within the circuit will now have to follow.

Robert Cocom worked as an airport janitor for ABM Aviation between 2020 and 2024 and, at the outset of his employment, signed a three-page Mutual Arbitration Agreement. The agreement’s covered-claims definition used the phrase “including but not limited to,” followed by a list of specific employment-related examples such as wage and hour violations, discrimination, and wrongful termination. After his employment ended, Cocom filed a putative wage-and-hour class action, and ABM moved to compel arbitration. The district court denied the motion. It found the agreement both procedurally unconscionable and, relying heavily on Cook, substantively unconscionable in scope, duration, and mutuality, and it declined to sever any of the offending provisions. ABM appealed.

The Ninth Circuit reversed. Interpreting the verbiage through the legal principle of ejusdem generis, the court held that general terms like “all disputes” and “any claim” are narrowed by the specific, uniformly employment-related examples that follow them in the agreement. That distinguished this case from both Cook and the more recent Stoker v. Blue Origin, LLC, where the enumerated examples included tort claims unrelated to employment, such as a “botched surgery” years after termination or an automobile accident between former coworkers. ABM’s agreement listed only employment-related examples, so there was no comparable basis to interpret the language more broadly. The court found the arbitration agreement’s incorporation of the AAA’s Employment Arbitration Rules consistent with that reading, and it applied the general principle that an ambiguous agreement should be read to preserve its validity rather than construed against the drafter.

The duration and mutuality findings followed from the same premise. Employment-related claims stop accruing when the employment relationship ends. Since the applicable statute of limitations for each claim supplies a natural outer boundary, the agreement’s duration was not indefinite. On mutuality, the court’s held that, because the agreement was limited to employment-related disputes, the asymmetry between Cocom and the third parties named in the agreement was not the kind Cook found problematic, as Cook’s agreement reached claims were wholly unrelated to employment. The court also rejected Cocom’s challenge to the arbitration agreement’s bar on giving arbitration awards preclusive or precedential effect, holding that the provision was consistent with California’s existing default rule on collateral estoppel under Vandenberg v. Superior Court.

Finally, the court addressed the arbitration agreement’s waivers of representative PAGA actions and of public injunctive relief, provisions the district court never reached. The Ninth Circuit did not decide whether those waivers were substantively unconscionable, holding instead that they would be severable in any event: the parties’ central purpose in signing the agreement was to arbitrate employment-related disputes, the waivers were collateral to that purpose, severing them required no augmentation of the agreement, and the agreement’s severability clause reflected the parties’ intent that defective provisions be excised rather than allowed to sink the entire agreement. Because the substantive unconscionability findings failed, the panel did not need to reach any issue of procedural unconscionability.

Cocom offers useful drafting guidance for the “including but not limited to” language that Cook put at risk. Specifically, employers should keep the enumerated examples of covered claims limited to the employment relationship. Including tort or personal injury claims among those examples is what led the courts in Cook and Stoker to read the agreements more broadly than the employer likely intended. Incorporating employment-specific arbitral rules supports that limitation, and a severability clause continues to be worth including even for provisions an employer believes are fully enforceable, since it gives a reviewing court a textual basis to preserve the agreement if any single provision is later found wanting. Unfortunately, it is also worth noting that, although Cocom is a Ninth Circuit decision applying California law, it does not bind California’s state courts, which remain free to consider Cook, as appropriate.

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