The EFAA Blocks Arbitration of a Negligence Claim Against a Defendant That Did Not Commit the Assault

New York's Appellate Division, Second Department held on Wednesday 23 September 2026 that the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act strips a defendant of its Arbitration Clause even where that defendant is not accused of committing the assault. In C.N. v. Sigma Delta Tau Society, 2026 NY Slip Op 05405, No. 2025-13523, the court treated the question as one of first impression and answered it plainly: an EFAA arbitration negligence claim against a national sorority, pleaded as a failure to protect a member from a foreseeable assault by a third party, "relates to" the underlying sexual assault dispute within the meaning of 9 U.S.C. § 402(a), and the sorority's Motion to Compel Arbitration therefore fails.

That is a consequential sentence for anyone who drafts consumer, membership, ticketing, platform or venue terms. The EFAA has, until now, been litigated almost entirely as an employment statute, and almost entirely against the person or entity said to have done the harassing. The Second Department has decoupled the statute from both assumptions. What triggers § 402 is not the defendant's culpability but the case's logical connection to a sexual assault dispute — and the defendant that loses its arbitration rights may be a contracting counterparty three steps removed from the conduct.

What the Second Department decided in C.N. v. Sigma Delta Tau Society

The plaintiff, identified in the record by initials, was a student at the State University of New York at Cortland and a member of the local chapter of Sigma Delta Tau Society, a sorority incorporated in Indiana. Her membership relationship with the national organization contained a predispute arbitration provision. Her complaint alleges that the sorority "expected and obligated" her to attend a mixer held off campus in Cortland in September 2023 by a fraternity chapter that had, according to the pleading, previously been removed from campus for inappropriate and dangerous conduct; that alcohol and other intoxicating substances were provided to those attending; that she became impaired; and that a fraternity member took her to a nearby location and sexually assaulted her.

Nobody contends that the sorority assaulted her. The causes of action against it sound in negligence: the organization created and directed her exposure to a known risk. The sorority moved to compel arbitration on the strength of the membership agreement. The plaintiff elected the protection of the EFAA.

The Second Department held that she was entitled to it. The court first satisfied itself that the pleading adequately alleged conduct constituting a "sexual assault dispute" as 9 U.S.C. § 401(3) defines that term. It then read § 402(a)'s "relates to" language for what it says rather than what defendants would prefer it to say. Justice Carl Landicino's formulation is the line that will be quoted in briefs for years: "when an action has a logical connection to conduct by a defendant in the action that in some way concerns sexual assault or sexual harassment, the EFAA will apply and arbitration will be prevented." Because the plaintiff's entire theory of liability rested on the sorority having placed her in the circumstance that produced the assault, the court found a clear logical nexus between the cause of action pleaded and the alleged assault. That was enough.

Does the EFAA block arbitration against a defendant that did not commit the sexual assault?

Yes — in the Second Department, and on this reasoning, wherever a court follows the statutory text. The holding is that the EFAA's operative bar is keyed to the relationship between the case and the sexual assault dispute, not to the identity or fault of the party invoking the Arbitration Agreement.

This is the part of the decision that defense-side practitioners will find hardest to absorb, because it inverts the intuition that a statute aimed at protecting victims of sexual misconduct must operate against perpetrators. Section 402(a) contains no such limitation. It says that no predispute arbitration agreement is valid or enforceable with respect to a qualifying case; it does not say "no predispute arbitration agreement with the person who committed the conduct." The EFAA is a rule about cases, and the sorority's misfortune was to be a defendant in one.

The practical reach is wide. Premises owners, franchisors, hotel and short-term-rental operators, transportation and rideshare platforms, gyms, camps, cruise lines, universities, youth-serving organizations, staffing agencies and social platforms all commonly pair a mandatory arbitration provision with a relationship in which a third party may assault a user, member, guest or passenger. In every one of those relationships, the negligence theory — you knew, you should have known, you sent me there, you let them in — supplies exactly the logical connection the Second Department described.

The statutory machinery: what sections 401 and 402 actually say

Practitioners arguing about the EFAA are really arguing about two sentences of the United States Code, enacted as Public Law 117-90 and signed on 3 March 2022 as an amendment to the Federal Arbitration Act (FAA).

Section 402(a) is the operative provision: "Notwithstanding any other provision of this title, at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct, no predispute arbitration agreement or predispute joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute."

Four features of that text do the work in C.N.:

• "At the election of the person alleging." The bar is not self-executing and not available to the defendant. It is a one-way option held by the claimant, which is why an EFAA argument can be held in reserve and deployed after a defendant has committed to an arbitral strategy.
• "No predispute arbitration agreement or predispute joint-action waiver." The Class Action Waiver falls with the arbitration promise. A respondent cannot keep the aggregation bar while conceding the forum.
• "With respect to a case." Not "with respect to a claim." That word is the engine of the whole-case holdings discussed below.
• "Relates to." The connector the Second Department construed. "Relates to" is the broadest linking phrase in the federal drafting vocabulary, and courts have consistently declined to narrow it to "arises out of" or "is asserted against the person who committed."

Section 402(b) adds that whether the chapter applies to a dispute "shall be determined under Federal law," which is how a New York state appellate court comes to be construing a federal arbitration statute without deference to state severability or Unconscionability doctrine. And § 401(3) defines a "sexual assault dispute" as a dispute involving a nonconsensual sexual act or sexual contact as those terms are defined in 18 U.S.C. § 2246 or similar applicable Tribal or state law, expressly including where the victim lacks capacity to consent — a definitional detail that matters in facts like these, where intoxication is pleaded.

What does "relates to" mean under the EFAA?

It means a logical connection or nexus between the case and the sexual assault dispute, and nothing more demanding. The Second Department did not require that the claim be brought against the assailant, that the defendant's conduct be intentional, that the theory of liability sound in tort rather than contract, or that the assault be an element of the cause of action. It required a nexus, found one on the face of the pleading, and stopped.

Two consequences follow for how motions will now be litigated in New York. First, the battleground moves from "does the EFAA reach this claim" to "has the plaintiff adequately alleged a sexual assault dispute at all" — a fight about pleading sufficiency, on which federal courts are split between a Rule 12-style plausibility standard and a more forgiving nonfrivolous-allegation standard. Second, the nexus inquiry is performed on the complaint, which gives claimants' counsel a drafting advantage: the same facts can be pleaded in ways that make the connection to the assault dispute either central or incidental, and only one of those versions is worth writing.

How the nexus holding compounds the whole-case rule

The Second Department's reading is significant standing alone. It becomes something closer to structural when read with the line of decisions holding that the EFAA takes out the entire proceeding rather than the qualifying claim.

The Sixth Circuit reached that conclusion this year in Bruce v. Adams and Reese, LLP, No. 25-5210, holding that "case" in § 402 means the plaintiff's whole civil proceeding, so that a viable sexual harassment claim rendered the employer's arbitration agreement unenforceable as to the plaintiff's disability discrimination and wrongful termination claims as well. The California Court of Appeal has taken the same view — that one EFAA-qualifying claim makes the agreement unenforceable as to all claims in the action — and the Supreme Court declined to resolve the question when it denied certiorari in Liu v. Miniso Depot CA, Inc.

Put the two propositions together. "Case" is the whole proceeding, and "relates to" needs only a logical nexus. A single adequately pleaded sexual assault allegation in a multi-defendant, multi-count complaint can therefore carry every count against every contracting defendant into court, including counts and defendants with no connection to the assault beyond the nexus the pleader has created. That is a materially larger hole in an arbitration program than the 2022 commentary anticipated, and it is a hole that cannot be closed by clause language, because § 402 operates notwithstanding the agreement.

The EFAA appellate record, 2024 to 2026

The statute has now been construed by three federal circuits and two state appellate courts on five distinct questions. The direction of travel is one-way.

Decision	Court and date	Question	Holding
Olivieri v. Stifel, Nicolaus & Co., 112 F.4th 74	Second Circuit, 2024	When does a claim "accrue" for EFAA purposes?	Continuing-violation doctrine applies; pre-enactment conduct can be part of a claim accruing after the effective date, so the agreement is voidable
Liu v. Miniso Depot CA, Inc.	California Court of Appeal; certiorari denied 2025	Whole case or qualifying claim only?	Agreement unenforceable as to all claims; Supreme Court declined review
Bruce v. Adams and Reese, LLP, No. 25-5210	Sixth Circuit, 2026	Meaning of "case" in § 402(a)	"Case" is the entire civil proceeding, not a single cause of action
Ding v. Structure Therapeutics, Inc., No. 25-1532	Ninth Circuit, 19 August 2026	Is the EFAA election waived by first filing in arbitration?	No categorical waiver; a claimant who discovers a qualifying basis during arbitration may elect to end it and sue, subject to ordinary waiver principles
C.N. v. Sigma Delta Tau Society, 2026 NY Slip Op 05405	New York App. Div., Second Department, 23 September 2026	Does § 402 reach a negligence claim against a non-perpetrator?	Yes; "relates to" requires only a logical connection or nexus

Alongside these, the pleading-standard divide remains unresolved: some courts test the qualifying allegation for plausibility, others ask only whether it is nonfrivolous. That is now the most valuable open question on the defense side, because after C.N. and Bruce the pleading is the only remaining gate.

Does the EFAA apply outside employment cases?

It does, and C.N. is the cleanest illustration yet. The statute's text is not limited to employment: § 402(a) speaks of any "case which is filed under Federal, Tribal, or State law," and § 401 defines the qualifying disputes by reference to criminal-law definitions of sexual acts and contact and to substantive harassment law, not to an employment relationship. The employment center of gravity in the existing case law reflects where arbitration clauses were most often litigated in 2022 and 2023, not a limit in the statute.

The membership relationship in C.N. is neither employment nor a classic consumer purchase. It is closer to the participation agreements that govern amateur sport, fraternal and alumni organizations, volunteer programs, congregational life, subscription communities and platform creator programs — a category that has quietly absorbed arbitration provisions over the past decade without the drafting scrutiny given to consumer terms of service. Those agreements are now exposed.

What an EFAA carve-out does to a mass filing program

For respondents managing Mass Arbitration exposure, the decision adds a new and awkward asymmetry. Modern provider regimes are built to make volume tractable: a Mass Filing Threshold triggers a protocol, Batching moves claims through in tranches, a Process Arbitrator resolves administrative disputes, and a Bellwether Provision (Arbitration) staggers outcomes. None of that machinery has anything to say about a claimant who exits arbitration entirely under a federal statute.

Two effects are worth modeling now. The first is selection. Where a portfolio of claims against a single respondent includes some claims involving sexual assault or harassment allegations and some that do not, the qualifying claimants can leave for court while the rest remain in the arbitral regime. The respondent keeps the batching economics for the low-value residue and loses them precisely for the claims with the highest verdict variance. The second is pleading pressure. Coordinated Counsel with a large intake now have a lawful route out of a batching regime for any claim that can be connected, logically, to a sexual assault dispute — and after C.N., the connection need not run through the respondent's own conduct.

Neither effect is a drafting problem, which is the uncomfortable part. Section 402 applies notwithstanding any other provision of the FAA and notwithstanding the parties' agreement. A Severability Clause does not save the arbitration promise; a Delegation Clause does not send the question to the arbitrator, because § 402(b) makes applicability a question of federal law for the court and because the election belongs to the claimant; and a narrowed Arbitration Carve-Out merely concedes in advance what the statute would take anyway.

Does the C.N. ruling affect pending motions to compel arbitration in New York?

Directly, yes. Any pending motion in the Second Department's territory that seeks to compel arbitration of a case in which a claimant has pleaded a sexual assault or sexual harassment allegation and elected the EFAA now faces binding intermediate appellate authority on the nexus question, whatever the moving defendant's relationship to the alleged conduct. Because the Appellate Division's departments follow a decision of any department in the absence of contrary authority from their own, the reasoning will govern motions across New York until another department or the Court of Appeals says otherwise.

The indirect effect is on posture. A defendant that loses an EFAA motion in New York is in state practice, where an appeal from an order denying arbitration does not carry the automatic federal stay that follows an interlocutory appeal in the federal system. The realistic choice is to litigate the merits while appealing, or to abandon the forum fight. That calculation, more than any doctrinal question, is what will keep these cases in court.

What it means for clause drafters, respondents, and claimants' counsel

For drafters. Treat the EFAA as an unremovable carve-out and draft around its consequences rather than against its text. That means, concretely: audit every agreement that pairs arbitration with an obligation to attend, travel, participate or be supervised, and identify which counterparties can be sued in negligence for a third party's conduct; stop relying on a Delegation Clause to keep the § 402 question away from a court; assume the Class Action Waiver disappears with the arbitration promise in any qualifying case; and separate the aggregation protections that survive the EFAA — consolidation mechanics, fee allocation, a Tolling Provision — from those that do not.

For respondents and their insurers. Re-price the tail. An exposure model that assumed sexual assault claims would be resolved in a confidential bilateral proceeding should now assume a public docket, jury risk, and discovery into what the organization knew about the venue, the host or the third party. In the C.N. facts, the allegation that the fraternity had already been removed from campus is the kind of institutional-knowledge fact that arbitration used to keep out of the newspapers and that will now be litigated in open court.

For claimants' counsel. The election is a pleading decision and should be treated as one. The nexus is found on the complaint, so the connection between the institutional defendant's conduct and the assault should be pleaded as the spine of the negligence theory rather than as background. Where a portfolio spans qualifying and non-qualifying claims, the two groups now have materially different forum economics and should be worked separately.

For funders. A claim that was worth financing as a batched arbitral demand at a modest expected value is a different asset once the EFAA moves it to court. Duration lengthens, cost rises, and variance widens in both directions. The Third-Party Litigation Funding question is no longer only whether the claim is good but which forum the claimant can elect into.

Frequently asked questions

What did the court decide in C.N. v. Sigma Delta Tau Society?

The Appellate Division, Second Department held on 23 September 2026, as an issue of first impression, that the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act prevents enforcement of an arbitration provision against a plaintiff bringing a negligence claim connected to a sexual assault, even though the defendant sorority did not commit the assault.

Does the EFAA void the whole arbitration agreement or only the sexual assault claims?

The weight of authority is that it takes out the entire case. The Sixth Circuit held in Bruce v. Adams and Reese, LLP that "case" in 9 U.S.C. § 402(a) means the plaintiff's whole civil proceeding, and the California Court of Appeal reached the same result in Liu v. Miniso Depot CA, Inc., where the Supreme Court denied certiorari. Combined with the nexus reading in C.N., one qualifying allegation can remove every claim in the action from arbitration.

Who decides whether the EFAA applies, and when?

A court decides, and it decides under federal law: § 402(b) provides that whether the chapter applies to a dispute "shall be determined under Federal law." The bar operates only at the election of the person alleging the conduct, so the claimant chooses whether to invoke it, and the Ninth Circuit held in Ding v. Structure Therapeutics, Inc. that simply having started an arbitration on other claims does not categorically waive the election.

Can a plaintiff plead a sexual assault allegation just to escape arbitration?

Courts screen the allegation, but they have not agreed on how hard. Some apply a plausibility standard to the qualifying claim; others ask only whether the allegation is nonfrivolous. That divide is unresolved, and after C.N. and Bruce it is the main remaining line of defense, because once the allegation clears the gate the nexus and whole-case doctrines do the rest.

Does the EFAA apply to consumer and membership agreements, not just employment contracts?

Yes. Nothing in 9 U.S.C. §§ 401 or 402 limits the statute to employment. C.N. involved a sorority membership relationship, and the same analysis reaches platform terms, venue and ticketing terms, participation agreements, transportation and lodging terms, and any other contract whose counterparty can be sued in negligence for a third party's sexual misconduct.

How should arbitration clauses be redrafted after this ruling?

Not by attempting to contract out of § 402, which applies notwithstanding the agreement. The realistic responses are structural: assume a carve-out exists, keep the aggregation mechanics that survive it, stop routing arbitrability of the EFAA question to the arbitrator, and re-examine any program whose economics depend on sexual assault and harassment claims staying inside the arbitral forum.