Dealer Computer Services, Inc. v. Dub Herring Ford

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0330p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
Plaintiff-Appellant, -
DEALER COMPUTER SERVICES, INC.,
-
-
-
No. 09-1848
v.
,
>
-
-
DUB HERRING FORD, and 63 car dealerships

Defendants-Appellees. -
located across the country,
-
N
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 07-10263—Nancy G. Edmunds, District Judge.
Argued: August 4, 2010
Decided and Filed: October 14, 2010
Before: COLE and McKEAGUE, Circuit Judges; MAYS, District Judge.*

_________________

COUNSEL
ARGUED: John C. Allen, JOHN C. ALLEN, P.C., Houston, Texas, for Appellant.
Richard D. Faulkner, BLUME & FAULKNER, P.L.L.C., Richardson, Texas, for
Appellees. ON BRIEF: John C. Allen, JOHN C. ALLEN, P.C., Houston, Texas, for
Appellant. Richard D. Faulkner, BLUME & FAULKNER, P.L.L.C., Richardson, Texas,
for Appellees.
McKEAGUE, J., delivered the opinion of the court, in which COLE, J., joined.
MAYS, D. J. (pp. 17–23), delivered a separate dissenting opinion.

*
The Honorable Samuel H. Mays, Jr., United States District Judge for the Western District of
Tennessee, sitting by designation.

1
No. 09-1848 Dealer Computer Services v. Dub Herring Ford, et al. Page 2

_________________

OPINION
_________________

McKEAGUE, Circuit Judge. This case poses the question whether a district
court has jurisdiction to confirm an arbitration panel’s interim award denying class
arbitration. The district court, following guidance provided by this court in a closely
related earlier ruling in the same case, determined that the requisite ripeness is lacking
and dismissed the motion to confirm for lack of jurisdiction. Because we agree that
appellant has failed to demonstrate that it is subject to cognizable hardship if immediate
judicial review of the interim award is denied, we affirm.

I. BACKGROUND

Plaintiff-appellant Dealer Computer Services, Inc. (“DCS”) provides computer
hardware and software support to automobile dealers. It developed an electronic parts
catalog system known as a Computerized Publication Display (“CPD”) that enabled car
dealers to display then current automobile parts, prices, descriptive data and parts
visualizations. Defendant-appellee Dub Herring Ford, a Mississippi corporation, and
sixty-three other originally named Ford dealers are a group of dealerships that were
parties to written contracts with DCS for the provision of CPD systems and services.
They are also putative class representatives of a class of some 2,470 similarly situated
Ford dealerships across the country allegedly aggrieved by DCS’s breaches of the CPD
contracts. All of the CPD contracts contained an arbitration provision requiring that any
contract-related controversy be submitted to arbitration under the Commercial
Arbitration Rules of the American Arbitration Association. Dub Herring Ford, on behalf
of the dealers, commenced the arbitration proceedings and sought arbitration as a class
action.

In November 2006, the arbitration panel issued its Clause Construction Award,
concluding that the applicable CPD contracts permit the present arbitration to proceed
as a class arbitration. DCS moved the district court to vacate the clause construction
No. 09-1848 Dealer Computer Services v. Dub Herring Ford, et al. Page 3

award. The district court denied the motion on May 29, 2007. R. 23, Order; Dealer
Computer Services, Inc. v. Dub Herring Ford, 489 F.Supp.2d 772 (E.D. Mich. 2007).
The district court concluded that it had jurisdiction to review the award even though it
was not a final arbitration award, but denied the motion to vacate the award, concluding
that the arbitration panel did not exceed its powers or manifestly disregard the applicable
law. On appeal, we vacated the district court’s order, holding that DCS’s motion to
vacate was not ripe for judicial review and that the district court therefore lacked
jurisdiction. Dealer Computer Services, Inc. v. Dub Herring Ford, 547 F.3d 558 (6th
Cir. 2008) (“DCS - I”).

Next, in proceedings conducted from August to October 2008, the arbitration
panel considered evidence and arguments regarding class certification. In December
2008, the arbitration panel issued its 37-page Partial Final Class Determination Award,
denying class certification. DCS moved the district court to re-open the case and
confirm the class determination award. Taking its lead from our earlier opinion on
DCS’s motion to vacate the interim clause construction award, the district court applied
the prescribed three-factor ripeness test. The court determined that the arbitration panel’s
denial of class certification did not pose a likelihood of harm to DCS and that denial of
immediate judicial review of the interlocutory award would pose no hardship to DCS.
R. 43, Order; Dealer Computer Services, Inc. v. Dub Herring Ford, 2009 WL 1508210
(E.D. Mich., May 29, 2009) (unpublished). The district court therefore concluded that
the matter was still not ripe and dismissed DCS’s motion to confirm. In its appeal from
this ruling, DCS argues that the district court misconstrued our earlier ruling, applied the
wrong standard in assessing ripeness, and misapplied the standard that it did apply.

II. APPELLATE JURISDICTION

Although Dub Herring Ford has not moved to dismiss the appeal for lack of
appellate jurisdiction, it has questioned DCS’s asserted reliance on the collateral order
exception to the final judgment rule of 28 U.S.C. § 1291 as a basis for this court’s
appellate jurisdiction. Indeed, the district court’s dismissal order, essentially refusing to
finally determine the propriety of the arbitration panel’s class determination award, does
No. 09-1848 Dealer Computer Services v. Dub Herring Ford, et al. Page 4

not appear to meet the requirements of the collateral order exception. See In re Dow
Corning Corp., 86 F.3d 482, 488 (6th Cir. 1996) (recognizing that an interlocutory order
may be immediately reviewable under the collateral order exception if it:
“(1) conclusively determines the disputed question; (2) resolves an important question
completely separate from the merits of the action; and (3) is effectively unreviewable on
appeal from the final judgment.”).

In response, however, DCS has correctly noted that appeal is properly taken
under 9 U.S.C. § 16(a)(1)(D), expressly allowing appeals from orders confirming or
denying confirmation of arbitration awards and partial awards. See Bull HN Information
Systems, Inc. v. Hutson, 229 F.3d 321, 327-28 (1st Cir. 2000) (applying § 16(a)(1)(D)
as permitting appeal from an order denying confirmation of an interim partial award).
The district court’s order dismissing DCS’s motion to confirm the arbitration panel’s
class determination award is in effect an order denying confirmation of a partial award,
appealable under § 16(a)(1)(D). Accordingly, we have jurisdiction to hear this appeal.

III. ANALYSIS

A. Governing Standards

The district court’s determination that it lacked jurisdiction for lack of ripeness
is subject to de novo review. DCS - I, 547 F.3d at 560. In our earlier ruling, we
summarized the governing standards as follows:

The ripeness doctrine “focuses on the timing of the action.” . . .
“[It] is more than a mere procedural question; it is determinative of
jurisdiction. If a claim is unripe, federal courts lack subject matter
jurisdiction and the complaint must be dismissed.” . . . Ripeness
“draw[s] both from Article III limitations on judicial power and from
prudential reasons for refusing to exercise jurisdiction.” . . . Enforcing
ripeness requirements discourages “premature adjudication” of legal
questions and judicial entanglement in abstract controversies. . . . Thus,
the doctrine serves as a bar to judicial review whenever a court
determines a claim is filed prematurely.
The key factors to consider when assessing the ripeness of a
dispute are: (1) the likelihood that the harm alleged by a party will ever
come to pass; (2) the hardship to the parties if judicial relief is denied at
No. 09-1848 Dealer Computer Services v. Dub Herring Ford, et al. Page 5

this stage in the proceedings; and (3) whether the factual record is
sufficiently developed to produce a fair adjudication of the merits.

Id. at 560-61 (citations omitted). See also Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp.,
— U.S. —, 130 S.Ct. 1758, 1767 n.2 (2010) (“In evaluating a claim to determine
whether it is ripe for judicial review, we consider both ‘the fitness of the issues for
judicial decision’ and ‘the hardship of withholding court consideration.’” (citation
omitted)).

The ripeness inquiry is triggered by the fact that the instant interlocutory
arbitration award, like the one at issue in our earlier ruling, is not a final arbitration
award. A final award deciding the merits of the dealers’ breach of contract claims would
clearly be subject to confirmation under the Federal Arbitration Act, 9 U.S.C. § 9.1 But
the subject class determination award is clearly not final. In the earlier appeal of the
district court’s order refusing to vacate the similarly interlocutory arbitration panel’s
clause construction award, we implicitly accepted that the district court had jurisdiction
to consider DCS’s motion to vacate the award under 9 U.S.C. § 10—if it satisfied
ripeness requirements. See also Stolt-Nielsen, 130 S.Ct. at 1766 (silently accepting that
9 U.S.C. § 10 represents a proper jurisdictional vehicle, assuming ripeness, for a motion
to vacate an interlocutory clause construction award). Here too, the instant partial
award, denying the dealers’ motion for class arbitration proceedings, is clearly
interlocutory. It merely resolves the procedural question whether the individual named
claimants will be able to arbitrate their claims only on their own behalf or, alternatively,

1
The Federal Arbitration Act itself is not jurisdictional. Hall Street Associates, L.L.C. v. Mattel,
Inc., 552 U.S. 576, 581-82 (2008). Thus, the availability of confirmation under 9 U.S.C. § 9 is dependent
on some other independent jurisdictional basis. Id. Here, federal jurisdiction is premised on the Class
Action Fairness Act, 28 U.S.C. § 1332(d), prescribing diversity and amount-in-controversy requirements
for class actions. Early in the district court proceedings, the district court ordered DCS to show cause why
its initial motion to vacate the clause construction award should not be dismissed for lack of jurisdiction.
The court was satisfied by the response. R. 8, Order. Since then, DCS’s showing that the diversity and
amount-in-controversy requirements are met has not been challenged. In their appellate brief, the dealers
“question” (without specifically challenging jurisdiction) whether the requirements can be met after the
class certification denial is finalized. This subsequent development has no impact on jurisdiction. First
of all, the class action certification denial has not yet been finalized. Second, the amount claimed in the
pleadings when the action was commenced generally controls (as long as the amount was claimed in good
faith) and subsequent events which reduce the amount recoverable below the statutory limit do not divest
the court of jurisdiction. Charvat v. GVN Mich. Inc., 561 F.3d 623, 627-28 (6th Cir. 2009). Hence, we
have no reason to question the propriety of the district court’s fundamental exercise of jurisdiction under
the Class Action Fairness Act.
No. 09-1848 Dealer Computer Services v. Dub Herring Ford, et al. Page 6

on behalf of a nationwide class. It has no impact on the merits of any claim. It follows
that DCS must satisfy the ripeness requirements to obtain federal court relief.

B. Finality of Class Arbitration Determination

DCS concedes that the class determination award is an interim award, but argues
that it is nonetheless subject to judicial review because it resolves a “separate, discrete,
independent, severable issue” and therefore has sufficient “finality.” See Island Creek
Coal Sales Co. v. City of Gainesville, FL, 729 F.2d 1046, 1049 (6th Cir. 1984),
abrogated on other grounds by Cortez Byrd Chips, Inc. v. Bill Harbert Constr. Co., 529
U.S. 193 (2000). In Island Creek, the Sixth Circuit upheld the district court’s authority
to confirm an interim award that, far from merely deciding a procedural issue, granted
injunctive relief to maintain the status quo during the pendency of arbitration
proceedings. Specifically, the award “finally and definitively” resolved “a separate
independent claim,” i.e., the “self-contained issue” whether a party was required to
perform under the contract during the pendency of arbitration. Id., 729 F.2d at 1049.
In other words, the interim award directly and profoundly affected the parties’
substantive rights in their contractual relationship, even though it did not finally dispose
of all the claims submitted to arbitration. Id.

Here, in contrast, the interim class arbitration determination, albeit a significant
procedural step in the arbitration proceedings, has no impact on the parties’ substantive
rights or the merits of any claim. The denial of class arbitration proceedings arguably
disposes of a discrete, independent, severable issue, but it is a procedural issue—hardly
the sort of final decision that warrants immediate judicial review in disruption of
ongoing arbitration proceedings. Island Creek is thus distinguishable.2

2
Although ripeness was not expressly addressed in Island Creek, if it had been, the three ripeness
factors set forth in Computer Dealer Services, 547 F.3d at 561, would most assuredly have been deemed
satisfied. In other words, even though the term “ripeness” was not expressly used to explain why the
interim award was deemed subject to confirmation, it was implicitly considered as a factor. See also Hall
Steel Co. v. Metalloyd Ltd., 492 F.Supp.2d 715, 719-20 (E.D. Mich. 2007) (distinguishing Island Creek
and observing that federal courts generally overcome their usual resistance to piecemeal confirmation of
interim awards only where there is some compelling need for immediate relief).
No. 09-1848 Dealer Computer Services v. Dub Herring Ford, et al. Page 7

This very distinction is among the reasons why, in litigation (as opposed to
arbitration), class certification decisions by the district courts were traditionally not
deemed to have the requisite finality to warrant immediate appellate review. See
Coopers & Lybrand v. Livesay, 437 U.S. 463, 469-70 (1978). In 1998, however, Rule
23(f) of the Federal Rules of Civil Procedure was adopted, expressly providing the
circuit courts of appeals with discretion to permit an appeal from an order granting or
denying class certification. This change was designed to allow the circuit courts “to
develop standards for granting review that reflect the changing areas of uncertainty in
class litigation.” Fed. R. Civ. P. 23, Advisory Committee Notes, 1998 Amendments,
Subdivision (f). In developing such standards, the Sixth Circuit has eschewed any hard-
and-fast test, but has recognized that discretionary review should be “rarely granted,” in
recognition of “the unfortunately lengthy period necessary to complete an appeal.” In
re Delta Air Lines, 310 F.3d 953, 959-60 (6th Cir. 2002). Further, among those factors
identified by the court as potentially relevant to the exercise of discretion is the “death-
knell factor,” i.e., “recognition that the costs of continuing litigation for either a plaintiff
or defendant may present such a barrier that later review is hampered.” Id. at 960. In
other words, to the extent immediate review of a class certification ruling may now be
permitted under Rule 23(f), it is not because of the ruling’s “finality,” but because of
“hardship” that may otherwise result to one side or the other.

Hence, insofar as case law applying Rule 23(f) is relevant, by analogy, to
assessment of the district court’s jurisdiction to confirm the arbitration panel’s denial of
class arbitration in this case, it does not counsel in favor of a per se rule of appealability
because the denial is sufficiently “final.” Rather, it counsels in favor of requiring
consideration of the very sort of ripeness factors that the district court did consider in
accordance with our recent direction in DCS - I, 547 F.3d at 560-63.

DCS insists the DCS - I ruling expressly contemplated the immediate
reviewability of the arbitration panel’s class arbitration determination. DCS relies on
the following language from our opinion:
No. 09-1848 Dealer Computer Services v. Dub Herring Ford, et al. Page 8

The stay procedures set forth in [AAA Commercial Arbitration
Supplementary] Rule 5(d) enable a party to contest an unfavorable
decision on class certification in court before commencement of class
arbitration and resolution of the merits by the arbitration panel. Thus, if
the arbitrators in this case ultimately decide to certify Dealers’ class,
which is no certainty, Rule 5(d) would nonetheless provide DCS ample
opportunity to obtain judicial review of any arguments it may have
against class arbitration, including those challenging the soundness of the
arbitration panel’s prior Clause Construction Award. Given this
prospective opportunity for judicial review, it does not appear DCS will
suffer any material hardship if review is withheld at this preliminary
stage of arbitration.

Id. at 562-63 (bold-emphasis added).

DCS construes this language more broadly than warranted. DCS reads the
language as reflecting our determination that the motion to vacate the clause construction
award was not ripe because DCS would necessarily—i.e., irrespective of outcome—have
another opportunity to obtain interlocutory judicial review of the class determination
award. As indicated by the highlighted language, however, the contemplated judicial
review of the class determination award is clearly contingent on the eventuality of an
unfavorable award. Indeed, whether the arbitration panel ultimately decided to certify
the class or not, the decision would be interlocutory. An interlocutory award, we made
clear, is ripe for judicial review only if the three ripeness factors—i.e., likelihood of
harm, hardship, and factual development—are met. In most cases, an unfavorable class
certification decision would ordinarily be expected to create circumstances that would
justify the aggrieved side, whether claimants or respondent, in seeking and obtaining
judicial review under these ripeness factors. Hence, the court’s discussion of the
hardship posed to DCS is couched in terms of an award unfavorable to DCS. Naturally,
the hardship posed to a party by a favorable class determination award would not be
readily apparent. The cited language does not therefore support the inference urged by
DCS that either side would be entitled to judicial review of the interlocutory class
determination irrespective of any showing of hardship.

It is because of the importance of the hardship element to the ripeness assessment
that this favorable/unfavorable distinction is not merely one of semantics. And it is the
No. 09-1848 Dealer Computer Services v. Dub Herring Ford, et al. Page 9

hardship requirement that undermines DCS’s argument that because motions to confirm
and to vacate are two sides of the same coin, both forms of judicial review should be
mutually available. Yes, if Dub Herring Ford and the other dealers had moved the
district court to vacate the class determination award under 9 U.S.C. § 10, they may very
well have been able to establish the requisite hardship (e.g., in the form of the “death-
knell” factor) to justify the exercise of jurisdiction notwithstanding the non-final nature
of the award. In that case, yes, the district court would presumably be able to exercise
supplemental jurisdiction over “the flip side of the coin,” DCS’s anticipated reciprocal
motion to confirm the award. Yet, because the dealers have not moved to vacate the
award, DCS, as the winning party, is handicapped in its efforts to obtain judicial review.
Pursuant to DCS - I, which has newly been confirmed in material part by the Supreme
Court in Stolt-Nielsen, DCS must meet the requirements of ripeness to trigger federal
court jurisdiction.3

This result, requiring either a final award or a sufficiently ripe interlocutory
award, is consistent with the “national policy favoring arbitration.” Hall Street, 552 U.S.
at 588. It “maintain[s] arbitration’s essential virtue of resolving disputes straightaway”
and avoids “open[ing] the door to the full-bore legal and evidentiary appeals that can
‘render informal arbitration merely a prelude to a more cumbersome and time-consuming
judicial review process,’ . . . and bring arbitration theory to grief in post-arbitration
process.” Id. (citation omitted). See also Quixtar, Inc. v. Brady, 328 F. App’x 317, 320-
21 (6th Cir. 2009) (“A district court should not hold itself out as an appellate tribunal
during an ongoing arbitration proceeding, since applications for interlocutory relief result
only in a waste of time, the interruption of the arbitration proceeding, and . . . delaying
tactics in a proceeding that is supposed to produce a speedy decision.” (quoting Michaels
v. Mariforum Shipping, S.A., 624 F.2d 411, 414 (2d Cir. 1980))). Accordingly, because

3
In Stolt-Nielsen, the Court reached a conclusion on ripeness that appears to be at odds with our
ripeness ruling in DCS - I. Stolt-Nielsen, 130 S.Ct. at 1767 n.2. We address the merits of the ripeness
analysis below. For present purposes, we note simply that Stolt-Nielsen confirms that judicial review of
an interim arbitration award is available only if ripeness is established through the requisite showing of
hardship.
No. 09-1848 Dealer Computer Services v. Dub Herring Ford, et al. Page 10

the instant class determination award is undeniably an interim award, DCS has the
burden of showing ripeness to establish jurisdiction for judicial review.

C. Ripeness of DCS’s Motion to Confirm

1. Correctness of the Ripeness Standard Applied

The district court granted Dub Herring Ford’s motion to dismiss DCS’s motion
to confirm the class arbitration award for lack of ripeness. The court considered the
ripeness factors set forth in DCS - I:

(1) the likelihood that the harm alleged by the party will ever come to
pass; (2) the hardship to the parties if judicial relief is denied at this stage
of the proceedings; and (3) whether the factual record is sufficiently
developed to produce a fair adjudication of the merits.

R. 43, Order, p. 3-4 (quoting DCS - I, 547 F.3d at 560). The district court’s
determination that the factual record is sufficiently developed to permit judicial review
is not challenged. As to the other two factors, however, the court found that DCS could
“not establish that it would suffer harm or a hardship if judicial review is denied at this
stage of the proceedings.” Id. at 4. The court reasoned that because Dub Herring Ford
failed to obtain class certification, the potential harm to DCS involved in defending
against class arbitration would never occur. Id. at 5.

The district court’s analysis is faithful to the direction provided in DCS - I, where
we observed, in holding that DCS’s motion to vacate the clause construction award was
unripe, that the “absence of hardship for DCS at this juncture renders DCS’s motion to
vacate the sort of premature adjudication the ripeness doctrine seeks to avoid.” DCS - I,
547 F.3d at 563. The district court even parroted our reiteration of Judge Posner’s
colorful admonition that courts should remain “reluctant to invite a judicial proceeding
every time the arbitrator sneezes.” Id. (quoting Smart v. Int’l Bhd. of Elec. Workers,
Local 702, 315 F.3d 721, 725 (7th Cir. 2002)).

DCS contends the district court should not have applied this ripeness test, noting
that other circuits apply a less rigid standard and that the Supreme Court itself has
No. 09-1848 Dealer Computer Services v. Dub Herring Ford, et al. Page 11

applied a two-part ripeness test, sans the likelihood-of-harm factor. The three-factor test
set forth in DCS - I is essentially the law of the case and DCS has not presented any
persuasive reason to abandon it in favor of any other circuit’s standard. We
acknowledge, however, that the Supreme Court, in Stolt-Nielsen, applied a two-factor
ripeness test in a context practically identical to the situation faced in DCS - I. Is the
two-factor test materially different? If it were applied here, would it produce a different
result?

In Stolt-Nielsen, the Court reversed a Second Circuit decision. The Second
Circuit had ordered that the district court’s order vacating an arbitration panel’s clause
construction award be vacated. The Supreme Court ultimately held that the arbitration
panel exceeded its powers by imposing class arbitration on parties whose contractual
arbitration agreement was silent on the issue. Stolt-Nielsen, 130 S.Ct. at 1768-70. This
substantive holding is not relevant to the present appeal. However, the Court had the
occasion to consider the ripeness of the motion to vacate the clause construction award.
Responding to objection by the dissent, the Stolt-Nielsen majority summarily held the
matter was ripe based on two ripeness factors: “the fitness of the issues for judicial
decision,” and “the hardship of withholding judicial consideration.” Id. at 1767 n.2
(quoting National Park Hospitality Assn. v. Dep’t of Interior, 538 U.S. 803, 808 (2003)).

This test is nominally different from the three-factor standard we employed in
DCS - I, but in practical effect, the distinction is one without a difference. In Stolt-
Nielsen, the Court focused on the hardship element. The Court observed that “[t]he
arbitration panel’s award means that petitioners must now submit to class determination
proceedings before arbitrators who, if petitioners are correct, have no authority to require
class arbitration absent the parties’ agreement to resolve their dispute in that way.” Id.
(emphasis added). The Court went on to hold that it was “clear on these facts that
petitioners have demonstrated sufficient hardship.” Id. In other words, the Court found
sufficient hardship in the imminent reality that, as a result of the arbitration panel’s ultra
vires clause construction award, the petitioners would have to participate in class
determination proceedings. Although the Court did not explicitly mention the
No. 09-1848 Dealer Computer Services v. Dub Herring Ford, et al. Page 12

“likelihood” that the identified hardship would come to pass, the imminence of the
hardship was manifestly critical to the Court’s holding, distinguishing the majority’s
view of the issue from the dissent’s, which viewed the arbitrator’s partial award as the
most “preliminary” decision the Supreme Court had ever approved for immediate
judicial review. Id. at 1779 (Ginsburg, J., dissenting).

The facts and procedural posture of the case presented in Stolt-Nielsen are
materially indistinguishable from those presented in DCS - I. Yet, what Stolt-Nielsen
found to be ripe, we found not to be ripe. In this respect (i.e., the merits of the ripeness
determination), the two decisions may be deemed in conflict.4 What is important for

4
Considering that the Stolt-Nielsen Court implicitly considered likelihood of harm, along with
fitness and hardship, as we did in DCS - I, how are we to understand its different “ripeness” determination?
The answer may lie in the nature of the hardship identified by each court and the likelihood that that
hardship would come to pass. In each case, interestingly, the parties had not expressly argued hardship,
so the court had to presume the “asserted” hardship. See Stolt-Nielsen, 130 S.Ct. at 1767 n.2 (noting that
the ripeness issue was not pressed in or considered by the courts below); and DCS - I, 547 F.3d at 561 n.3
(noting that DCS did not address ripeness in its briefs). The Stolt-Nielsen Court presumed that the
petitioners sought to vacate the clause construction award to avoid even the expenses associated with
participating in preliminary class determination proceedings, irrespective of whether a class was ultimately
certified. Id. at 1767 n.2. This hardship, the Court observed, was imminent, its likelihood a certainty.
In contrast, we presumed in DCS - I that DCS “sought to avoid the ‘harm’ of increased time,
expense, complexity, and potential liability often associated with the defense against a class proceeding.”
DCS - I, 547 F.3d at 561. That is, we presumed that DCS was concerned about expenses and risks that
would potentially materialize only if and after the arbitration panel, in a later interim award, “conclusively
determine[d] that Dealers’ claims should proceed as a class arbitration.” Id. Because this hardship was
contingent on “future events that may not occur as anticipated, or at all,” we determined that “the
likelihood of harm factor strongly weigh[ed] against finding the Clause Construction Award ripe for
review.” Id. at 562. Further, because DCS would have a prospective opportunity for judicial review if an
unfavorable class determination award were forthcoming, we concluded that DCS would not “suffer any
material hardship if review is withheld at this preliminary stage of arbitration.” Id. at 563.
Thus, the difference in the two courts’ ripeness determinations may be attributable not to
application of two materially different ripeness standards, but to application of two substantially similar
ripeness standards to similar but not identical types of hardship whose imminence or likelihood of
occurrence was materially different. In light of this analysis, Stolt-Nielsen does not necessarily undermine
the district court’s ripeness ruling in this case. Also, in light of this analysis, it becomes apparent that
Stolt-Nielsen is not necessarily at odds with our ripeness ruling in DCS - I, but may be distinguishable on
the basis of the nature and imminence of the presumed hardship.
In assessing the significance of Stolt-Nielsen’s teaching on ripeness, moreover, it is important to
recognize that the majority’s entire discussion of ripeness is confined to one footnote. Stolt-Nielsen, 130
S.Ct. at 1767 n.2. The issue had not been argued by the parties or considered by the courts below. Id. The
majority was reluctantly compelled to address the issue at all only because the dissent raised it. The Court
had granted certiorari to decide “whether imposing class arbitration on parties whose arbitration clauses
are ‘silent’ on that issue is consistent with the Federal Arbitration Act.” Id. at 1764. The Court did not
grant certiorari in order to clarify the law of ripeness, but to clear up confusion stemming from its earlier
decision in Green Tree Financial Corp. v. Bazzle, 544 U.S. 444 (2003). The majority refused to be
deterred by the dissent’s suggestion that certiorari had been improvidently granted. This explains why the
majority’s ripeness discussion is summary and dismissive in nature, a fact that counsels against reading
the decision’s ripeness teaching more expansively than it deserves. See Levin, Tax Comm’r of Ohio v.
Commerce Energy, Inc., 130 S.Ct. 2323, 2335 (2010) (reversing the Sixth Circuit for having attributed
No. 09-1848 Dealer Computer Services v. Dub Herring Ford, et al. Page 13

present purposes, however, is that the two decisions are substantially consistent in their
determinations: (1) that an interim arbitration award is subject to judicial review under
the FAA, 9 U.S.C. §§ 9 and 10, only if jurisdictional requisites, including ripeness, are
otherwise satisfied; and (2) that the ripeness inquiry necessitates evaluation of the
hardship posed to the movant in the event immediate judicial review were to be denied.
It is therefore DCS’s burden to identify cognizable hardship—under either standard—to
establish its entitlement to immediate judicial review of the class determination award.

2. Correctness of the Ripeness Determination

In challenging the correctness of the district court’s ripeness determination, DCS
asserts a different form of harm or hardship than the district court considered. The
district court held that the potential harm to DCS involved in defending against class
arbitration would never occur and that therefore, DCS had failed to demonstrate that
withholding judicial review would pose any hardship. On appeal, DCS acknowledges
that it won the class determination battle and is no longer threatened, in this case, by the
specter of class arbitration expenses and liability. Adopting a new approach, DCS now
contends that the hardship posed by denial of immediate confirmation of the class
determination award resides in the (a) postponement of judicial confirmation until after
the arbitration panel renders its final award(s); and (b) the denial of repose and certainty
of preclusive effect that would accompany a confirmed award.

DCS did not assert this argument in the district court. The issue is therefore
forfeited. See In re Hood, 319 F.3d 755, 760 (6th Cir. 2003) (“It is well-settled that this
court will not consider arguments raised for the first time on appeal unless our failure to
consider the issue will result in a plain miscarriage of justice.”). A defect in the federal
court’s original jurisdiction is an issue that cannot be waived and must be raised sua
sponte when noticed. See Ku v. State of Tenn., 322 F.3d 431, 433 (6th Cir. 2003). Here,
however, DCS failed to carry its burden of establishing that the district court had
jurisdiction to consider its motion to confirm the interim award and now seeks to

unwarranted significance to an “unelaborated footnote” in an earlier Supreme Court opinion).
No. 09-1848 Dealer Computer Services v. Dub Herring Ford, et al. Page 14

rehabilitate its failed effort based on arguments never made to the district court. To
address the merits of DCS’s new appellate arguments would be to permit an undeserved
second bite at the apple under circumstances that do not implicate a miscarriage of
justice. Yet, even if we consider the merits of the forfeited arguments, the outcome is
unchanged.

DCS’s new arguments are only weakly supported. First, DCS argues that its
opportunity to obtain judicial review and confirmation of the class determination award
may be entirely foreclosed if the one-year period of limitation prescribed by 9 U.S.C. § 9
has run before the arbitration panel issues its final award. Yet, no court could
legitimately consider the one-year period to have begun running from the date of the
interim class determination award after having denied judicial review for lack of
ripeness. If the district court’s dismissal of the motion for lack of ripeness is affirmed,
then DCS’s recourse is to seek judicial review after entry of the final award. DCS has
neither argued nor cited any authority for the proposition that judicial review of the final
award would not afford opportunity for review of earlier issued interim awards integral
to the final award. DCS has thus failed to show that withholding of judicial review of
the arbitration panel’s favorable class determination award at this stage poses any
imminent risk of cognizable harm in this case.

Absent immediate confirmation of the class determination award, DCS further
contends, the award lacks the preclusive effect DCS needs to protect it from other
claimants’ potential efforts to obtain class arbitration of similar breach of contract claims
in other arbitration proceedings. In particular, DCS refers to another pending putative
class arbitration proceeding involving similar claims and commenced just four months
after the instant arbitration, Fox Valley Ford, et al. v. DCS, in which the claimants are
represented by the same counsel as the claimants in this case. DCS contends that
counsel for the Fox Valley Ford claimants have made clear their intentions to pursue
class arbitration proceedings in that case if the class determination award in this case is
not confirmed.
No. 09-1848 Dealer Computer Services v. Dub Herring Ford, et al. Page 15

In response, Dub Herring Ford contends that Fox Valley Ford involves dissimilar
breach of contract claims. Yet, in any event, we remain unpersuaded that such
“collateral hardship” (i.e., potentially incurring expenses in another case) is cognizable
in evaluating the ripeness of DCS’s motion for confirmation of an interim arbitration
award in this case. In evaluating ripeness, the Supreme Court has recognized that the
disadvantages of premature review ordinarily outweigh the burden created by the
additional costs of—even repetitive—litigation. See Ohio Forestry Ass’n, Inc. v. Sierra
Club, 523 U.S. 726, 735 (1998). The Ohio Forestry Court thus held that the possibility
of potential litigation costs in other cases was not sufficient hardship by itself to justify
immediate review of an otherwise unripe matter. Id. at 734-35. The Court observed that
a case-by-case approach, albeit potentially frustrating and inefficient, is the traditional
and normal mode of operation of the courts. Id. at 735.

Further, even if such collateral consequences could be considered “hardship,”
DCS’s showing of the likelihood of this harm coming to pass is sketchy and hardly
compelling. We note that the Fox Valley Ford case does appear to be on a parallel track.
When the arbitration panel issued a clause construction award permitting the Fox Valley
Ford claimants to pursue class arbitration, DCS’s motion to vacate the award was
assigned to and denied by the same district judge who denied both DCS’s motion to
vacate and motion to confirm in this case. See Dealer Computer Services v. Fox Valley
Ford, 2008 WL 1837229 (E.D. Mich. 2008). DCS’s appeal of that ruling was treated in
conformity with our ruling in DCS - I. See Dealer Computer Services v. Fox Valley
Ford, 310 F. App’x 749 (6th Cir. 2009) (vacating the order of the district court and
remanding for dismissal for lack of ripeness). Since then, it appears further proceedings
in the Fox Valley Ford case have been held in abeyance pending final resolution of the
class certification question in this case. Considering this parallel history and the
consistency with which the federal courts have treated both cases, DCS’s suggestion that
it is exposed to imminent hardship is not persuasive. The alleged hardship posed by the
possibility of unnecessary, duplicative expenses has not been shown to be substantial in
amount or likelihood. Nor has DCS shown that there is any substantial likelihood of an
inconsistent class determination award in Fox Valley Ford.
No. 09-1848 Dealer Computer Services v. Dub Herring Ford, et al. Page 16

In short, the new appellate arguments made by DCS in attempting to carry its
burden of showing ripeness—if they are considered at all—are no better than the old
arguments the district court rejected. The district court’s order dismissing the motion
to confirm for lack of ripeness must therefore be upheld.

IV. CONCLUSION

Despite DCS’s protestations that confirmation should be a simple procedure that
would ultimately enhance efficiency in managing and resolving the dealers’ arbitration
claims, this very judicial review experience, still pending eighteen months after the
arbitration panel’s interim class determination award was issued, and having seemingly
accomplished nothing but delay, starkly demonstrates why the courts should be vigilant
to safeguard arbitration proceedings from unwarranted judicial interference. For all the
foregoing reasons, the district court’s order of dismissal is AFFIRMED.
No. 09-1848 Dealer Computer Services v. Dub Herring Ford, et al. Page 17

_________________

DISSENT
_________________

SAMUEL H. MAYS, JR., District Judge, dissenting. Dealer Computer Services,
Inc. (“DCS”) appeals from the district court’s dismissal of its Motion to Confirm the
arbitrators’ award finding that Dub Herring Ford and the proposed class of automobile
dealers whom it represents (collectively, the “Dealers”) should not be allowed to go
forward with their arbitration as a class arbitration. The district court found that DCS’
action was not ripe, basing its conclusion on a prior published opinion of this court in
this case. See Dealer Computer Servs., Inc. v. Dub Herring Ford, 547 F.3d 558, 559
(6th Cir. 2008) (“DCS I”). Because, following the Supreme Court’s recent decision in
Stolt-Nielsen S.A. v. AnimalFeeds International Corp., 130 S. Ct. 1758 (2010), this
court’s prior holding in DCS I is no longer the law of this or any other circuit and DCS
has otherwise demonstrated that its Motion to Confirm is ripe, I respectfully dissent.

I.

DCS sells computer software systems to automobile dealerships around the
country. These systems allow Dealers to display currently available automobile parts
and prices to their customers. The Dealers allege that DCS breached its contracts with
them by failing to negotiate an extension of its agreement with Ford Motor Company
allowing Dealers to continue to view Ford parts and their prices on DCS’ system.
Dealers filed a series of arbitration actions against DCS and sought to proceed as a class
arbitration. The arbitrators ruled initially that the arbitration agreement found in all of
DCS’ form contracts with Dealers permitted the arbitrators to hear a class arbitration.
DCS sued in federal district court to vacate the arbitrators’ decision as exceeding their
powers under the arbitration agreement and as in “manifest disregard of the law.” DCS
I, 547 F.3d at 560. The district court declined to vacate the arbitrators’ decision, and
DCS appealed to this court. In a published opinion, a panel of this court vacated the
district court’s judgment and remanded with instructions to dismiss DCS’ suit on the
ground that it was unripe, depriving the federal courts of jurisdiction. Id. at 564.
No. 09-1848 Dealer Computer Services v. Dub Herring Ford, et al. Page 18

When the case returned, the arbitrators held, in a “Partial Final Class
Determination Award,” that the Dealers could not proceed with their claims as a class.
DCS then returned to federal district court, seeking to confirm the arbitrators’ class
determination. See 9 U.S.C. § 9 (providing that federal district courts may enter orders
confirming arbitration awards). The district court, following the ripeness analysis
employed by this court in the parties’ prior appeal, dismissed DCS’ Motion as unripe.
See Dealer Computer Servs., Inc. v. Dub Herring Ford Lincoln Mercury, Inc., No. 07-
10263, 2009 U.S. Dist. LEXIS 45325, at *9 (E.D. Mich. May 29, 2009). DCS timely
appealed.

II.

A.

In Stolt-Nielsen, a corporation that regularly ships liquids via tanker vessels
commenced an arbitration proceeding against Stolt-Nielsen, alleging that Stolt-Nielsen
had conspired to violate the antitrust laws through price fixing. 130 S. Ct. at 1764-65.
The corporation sought class arbitration status, and both parties agreed that their contract
was silent about whether they had agreed to allow class claims in arbitration. Id. at
1765-66. The arbitrators, after hearing evidence, determined that a silent contract allows
class arbitration. Id. at 1766. Stolt-Nielsen filed a motion in the district court seeking
to vacate the arbitrators’ construction of the arbitration agreement as 1) beyond their
power and 2) in manifest disregard of the law. Id.; see also 9 U.S.C. § 10(a)(4)
(allowing a court to vacate an award if the arbitrators “exceeded their powers”). The
Supreme Court held that, absent a contractual basis, arbitrators may not hear class
claims. Stolt-Nielsen, 130 S. Ct. at 1775. Where an agreement is silent, the arbitrators
lack the power to hear a class arbitration. Id.

Importantly for this case, the Court also responded to the dissent’s primary
argument that Stolt-Nielsen’s Motion to Vacate was premature because it was unripe.
See id. at 1777 (Ginsburg, J., dissenting). The majority held that the claim was ripe
because, if Stolt-Nielsen could not presently seek review, it “must now submit to class
No. 09-1848 Dealer Computer Services v. Dub Herring Ford, et al. Page 19

determination proceedings before arbitrators who . . . have no authority to require class
arbitration.” Id. at 1767 n.2 (majority opinion). The Court also viewed it as certain that,
had Stolt-Nielsen refused to abide by the arbitrators’ decision, it would be subject to a
motion to compel under 9 U.S.C. § 4 to force it to arbitrate the class claims. Id.
Responding to the dissent’s argument that the Court would allow parties to challenge
merely procedural decisions by arbitrators, the majority reasoned that a shift from
bilateral arbitration to class arbitration wrought “fundamental changes.” Id. at 1776.
Under the rules of the American Arbitration Association, participants in class
arbitrations no longer enjoy “the presumption of privacy and confidentiality” that applies
to bilateral arbitrations. Id. at 1776 (citing AAA Class Rule 9(a)). Class arbitrations “no
longer resolve[] a single dispute between the parties to a single agreement, but instead
resolve[] many disputes between hundreds or perhaps even thousands of parties.” Id.
Thus, parties must have the ability to seek court review of arbitrators’ construction of a
class clause in an arbitration agreement. Id.

Stolt-Nielsen arrived at the Supreme Court in the same procedural posture as
DCS in its prior appeal to this court. As in Stolt-Nielsen, DCS had filed a Motion to
Vacate under § 10(a)(4) of the Federal Arbitration Act (“FAA”), alleging that the
arbitrators’ determination that the arbitration agreement allowed for class arbitrations
exceeded their power and was in “manifest disregard of the law.”1 Compare id. at 1766,
with DCS I, 547 F.3d at 559. Similarly, a primary disagreement between the parties was
whether the controversy was ripe. Compare Stolt-Nielsen, 130 S. Ct. at 1767 n.2
(concluding that a suit challenging the construction of a class arbitration clause was
ripe), with DCS I, 547 F.3d at 564 (concluding that a suit challenging construction of a
class arbitration clause was not ripe). Although one may attempt to distinguish Stolt-
Nielsen by asserting that DCS faced a different hardship in its prior appeal, a hardship
that was less compelling, that argument fails because DCS faced the same possibility as
Stolt-Nielsen: a motion to compel arbitration if it refused to abide by the arbitrators’

1
Both challenged awards were termed “Partial Final” awards. See Stolt-Nielsen, 130 S. Ct. at
1779 (Ginsburg, J., dissenting); Dealer Computer Servs. v. Dub Herring Ford, 489 F. Supp. 2d 772, 777
(E.D. Mich. 2007), vacated by 547 F.3d at 559. Both cases addressed arbitrations under the rules of the
American Arbitration Association. See Stolt-Nielsen, 130 S. Ct. at 1776; DCS I, 547 F.3d at 563.
No. 09-1848 Dealer Computer Services v. Dub Herring Ford, et al. Page 20

award. Cf. Stolt-Nielsen, 130 S. Ct. at 1767 n.2. Indeed, the Stolt-Nielsen dissenters
explicitly acknowledged that the majority had abrogated this court’s prior decision in
this case. See id. at 1779 (Ginsburg, J., dissenting) (citing this court’s prior holding in
DCS I, 547 F.3d at 559, to demonstrate that the majority’s holding changed the law by
affirming the federal courts’ “[r]eceptivity to review . . . preliminary rulings rendered by
arbitrators”). Because the facts and procedural posture of DCS I are materially
indistinguishable from those in Stolt-Nielsen, the Supreme Court’s recent decision
abrogates this court’s prior holding. Therefore, that holding cannot support the
proposition that DCS’ current Motion is unripe; and citation to it for support is error.

B.

Without the support of this court’s prior holding, it is difficult to argue that a
procedurally later development is unripe for consideration when the Supreme Court has
held that an earlier procedural ruling is ripe for confirmation or vacatur. The arbitrators’
decision rejecting class arbitration disposes of “a separate, discrete, independent,
severable issue.” See Island Creek Coal Sales Co. v. City of Gainesville, 729 F.2d 1046,
1049 (6th Cir. 1984) (citation omitted). That is the standard this court has long applied
for entertaining motions to confirm interim arbitral decisions. Id. The Dealers argue that
a decision rejecting class arbitration is merely procedural and has no impact on the
substantive rights or merits of any claim. Their argument echoes the objections of the
Stolt-Nielsen dissenters, who argued that the Supreme Court’s holding that a decision at
an even earlier stage of class proceedings “was abstract and highly interlocutory.” Stolt-
Nielsen, 130 S. Ct. at 1778 (Ginsburg, J., dissenting). The Supreme Court majority
rejected that analysis, noting that the “fundamental changes” effected by class arbitration
status were enough to require federal court review when the issue of whether the
No. 09-1848 Dealer Computer Services v. Dub Herring Ford, et al. Page 21

arbitrators had the power to decide a class arbitration was in dispute.2 Id. at 1776
(majority opinion).

The concerns identified by the Supreme Court in Stolt-Nielsen apply all the more
to this case in its current, later procedural posture. First, the close of class certification
proceedings is such a “fundamental change” in the life-span of a lawsuit that the Federal
Rules of Civil Procedure expressly grant courts of appeal the authority to hear appeals
from district courts’ orders granting or denying certification. See Fed. R. Civ. P. 23(f).
This acknowledges that the grant or denial of class certification often has the effect of
a final ruling on the merits. If a court denies certification, plaintiffs will often drop their
claims; if a court grants it, the defendants may settle. See Fed. R. Civ. P. 23, Notes of
the Advisory Comm. on 1998 Amends. Class decisions in arbitration are no different.
The Stolt-Nielsen dissenters refused to extend their conclusion that a motion contesting
the ability of the arbitrators to decide class certification was unripe to motions filed after
the arbitrators had issued a final ruling on class certification. See 130 S. Ct. at 1778 &
n.4 (Ginsburg, J., dissenting) (citing Rule 23(f) and distinguishing Stolt-Nielsen’s
procedural posture from that of a party contesting arbitrators’ final ruling on whether to
certify a class). The dissenters thereby suggested that even they, when faced with the
situation now before this court, would entertain a motion to confirm or vacate.3

Second, the concession that a motion to vacate the present award by the Dealers
would be ripe effectively concedes that this court has jurisdiction over the present

2
Nor would it be correct to characterize the Supreme Court’s holding that it had jurisdiction as
summary or dismissive. “[F]ederal courts have a duty to consider their subject matter jurisdiction in regard
to every case and may raise the issue sua sponte.” Answers in Genesis of Ky., Inc. v. Creation Ministries
Int’l, Ltd., 556 F.3d 459, 465 (6th Cir. 2009) (citations omitted). Ripeness is a constitutional prerequisite
to a court’s proper exercise of its jurisdiction. Warshak v. United States, 532 F.3d 521, 525 (6th Cir. 2008)
(en banc). That the Supreme Court included its conclusion that Stolt-Nielsen’s Motion to Vacate was ripe
in a footnote is not material. See Stolt-Nielsen, 130 S. Ct. at 1767 n.2. That holding was a vital part of the
Court’s opinion because, absent its finding of jurisdiction, all that came after would have been an
unconstitutional advisory opinion. See U.S. Const. art. III, § 2, cl. 1 (limiting the jurisdiction of the federal
courts to “Cases” and “Controversies”).
3
To the extent that one can find any “discretion” in a court’s jurisdiction, this court should
exercise it in favor of DCS because this court denied DCS a hearing on the merits about the validity of the
class arbitration clause. Compare Stolt-Nielsen, 130 S. Ct. at 1767 n.2 (holding that motion to vacate the
arbitrators’ decision that the arbitration clause allowed for class arbitration was ripe), with DCS I, 547 F.3d
at 564 (concluding that such a claim was not ripe).
No. 09-1848 Dealer Computer Services v. Dub Herring Ford, et al. Page 22

Motion. The provisions of the FAA are not severable. See 9 U.S.C. §§ 9-10 (statutory
provisions conferring authority on the federal courts to confirm or vacate an arbitral
award). Had the Supreme Court refused to vacate the arbitrators’ decision in Stolt-
Nielsen, that refusal would have had the same effect as confirming it. The language of
the FAA makes this clear. A federal court “must grant [an order confirming an arbitral
award] unless the award is vacated, modified, or corrected.” 9 U.S.C. § 9 (emphasis
added). Where there is jurisdiction to vacate an award, there is of necessity jurisdiction
to confirm it. No authority – other than argument by analogy to this court’s prior,
abrogated decision – supports severing the FAA’s remedies. The Dealers concede that,
if this court concludes a motion to vacate by them would be ripe, DCS’ current Motion
to Confirm must also be ripe. Audio recording: Oral Argument at 21:30 - 22:11 (Aug.
4, 2010) (on file with the clerk of the court) [hereinafter “Oral Argument”].

The potential for an aggrieved party to vacate the award explains why failure to
confirm would harm DCS. See 9 U.S.C. § 9 (noting that the only two requirements for
confirmation are 1) an agreement “that a judgment of the court shall be entered upon the
award” and 2) an award); cf. Stolt-Nielsen, 130 S. Ct. at 1767 n.2 (holding that the ability
of the respondent to file a motion to compel Stolt-Nielsen to abide by the arbitrators’
decision that they could hear class claims constituted the harm necessary to make the
motion to vacate ripe). If there were any doubt about ripeness, the Dealers removed it
at oral argument when they confirmed that, if this court refuses to confirm the
arbitrators’ decision prohibiting the Dealers’ claims from moving forward as a class, the
Dealers will relitigate those claims on remand. Oral Argument at 17:05 - :44. The harm
is thus concrete and particularized, not potential or theoretical. See Warshak, 532 F.3d
at 525 (requiring that a claim arise from “a concrete factual context and concern[] a
dispute that is likely to come to pass” for a court to find ripeness). It is also the harm
confirmation is meant to address – that of endless relitigation of the same claims. Parties
to an arbitration proceeding are entitled to finality just as any party to court-based
litigation is. That is why Congress gave the federal courts the ability to confirm arbitral
awards; an unconfirmed award lacks finality. See 9 U.S.C. § 9; Island Creek Coal Sales,
729 F.2d at 1049 (confirming an interim arbitral award on a contract issue that, like the
No. 09-1848 Dealer Computer Services v. Dub Herring Ford, et al. Page 23

present dispute about class arbitration status, was “self-contained”). Victorious parties
in arbitration may invoke the jurisdiction of the federal courts. To suggest otherwise
would threaten the arbitral process.

Third, the Dealers appear to base much of their argument on the idea that
allowing piecemeal adjudication would serve to undermine the “national policy favoring
arbitration.” Hall St. Assocs., LLC v. Mattel, Inc., 552 U.S. 576, 588 (2008). The
Supreme Court undoubtedly had this policy preference in mind when considering its
decision in Stolt-Nielsen. Nonetheless, the Court considered the change class status
effects so “fundamental” as to require the possibility of federal court intervention
through vacatur or confirmation. 130 S. Ct. at 1776. A public-policy principle cannot
revive an abrogated case or overrule guidance from the Supreme Court. Moreover,
principles of public policy are for elected legislators to balance. Congress has spoken
on this policy: federal courts may confirm arbitral awards. 9 U.S.C. § 9.

III.

This court denied DCS a decision on its prior Motion to Vacate. See DCS I, 547
F.3d at 564, abrogated by Stolt-Nielsen, 130 S. Ct. at 1767 n.2; see also Stolt-Nielsen,
130 S. Ct. at 1779 (Ginsburg, J., dissenting) (noting that the Supreme Court majority
abrogated DCS I). It is entitled to an order of confirmation now that the arbitrators have
made their decision about whether class proceedings are appropriate. Because the court
concludes otherwise, I respectfully dissent.