Comer v. Salomon Smith Barney

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

KEVIN COMER, 
Plaintiff-Appellee,
v.
MICOR, INC.; KENNETH C. SMITH; No. 03-16560
ELLIOT H. WAGNER; BARBARA
ARBUCCI,  D.C. No.
CV-03-00818-SBA
Defendants, OPINION
and
SALOMON SMITH BARNEY, INC.,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of California
Saundra B. Armstrong, District Judge, Presiding

Argued and Submitted
October 18, 2005—San Francisco, California

Filed February 1, 2006

Before: Alex Kozinski and Ferdinand F. Fernandez,
Circuit Judges, and Terry J. Hatter, Jr.,* District Judge.

Opinion by Judge Kozinski

*The Honorable Terry J. Hatter, Jr., Senior United States District Judge
for the Central District of California, sitting by designation.

1233
1236 COMER v. SALOMON SMITH BARNEY
COUNSEL

Peter R. Boutin and Benjamin W. White, Keesal, Young &
Logan, P.C., San Francisco, California, for the defendant-
appellant.

Daniel Feinberg and Thuy T. Le, Lewis & Feinberg, P.C.,
Oakland, California, for the plaintiff-appellee.

OPINION

KOZINSKI, Circuit Judge:

We consider whether an ERISA-plan participant can be
compelled to arbitrate an ERISA claim brought on behalf of
the plan where the plan—but not the participant—has signed
an arbitration agreement.

Facts

Kevin Comer was a participant in two ERISA plans oper-
ated by Micor, Inc. The plan trustees retained Salomon Smith
Barney, Inc. (Smith Barney) to provide investment advice.
The relationship between Smith Barney and the trustees is
governed by investment management agreements. The agree-
ments contain arbitration clauses, pursuant to which “all
claims or controversies” between the trustees and Smith Bar-
ney “concerning or arising from” any of the trustees’ accounts
managed by Smith Barney must be submitted to binding arbi-
tration.

From 1999 through 2002, Smith Barney allegedly concen-
trated the plans’ assets in high-tech and telecom stocks. Even
after the bubble burst in early 2000, Smith Barney allegedly
maintained its concentrated positions. The plans suffered
heavy investment losses.
 COMER v. SALOMON SMITH BARNEY 1237
Comer sued Smith Barney under the Employee Retirement
Income Security Act of 1974, 29 U.S.C. §§ 1001-1461
(ERISA), for breach of fiduciary duty. See id. §§ 1104(a)(1)
(A)(i), 1109(a), 1132(a)(2).1 As the district court explained,
“by bringing suit under 29 U.S.C. § 1132(a)(2), Plaintiff is
seeking relief available under 29 U.S.C. § 1109 [for breach of
fiduciary duty], which provides for the making good to the
Plans—not to Plaintiff himself—of any losses incurred as a
result of [Smith Barney’s] alleged breach of fiduciary duty.”
Comer v. Micor, Inc., 278 F. Supp. 2d 1030, 1038 (N.D. Cal.
2003); see also Parker v. BankAmerica Corp., 50 F.3d 757,
768 (9th Cir. 1995) (“Although individual beneficiaries may
bring a breach of fiduciary duty claim against an ERISA plan
administrator, they must do so for the benefit of the plan.
‘Any recovery for a violation of [§ 1132(a)(2)] must be on
behalf of the plan as a whole, rather than inuring to individual
beneficiaries.’ ” (alteration in original) (quoting Horan v. Kai-
ser Steel Ret. Plan, 947 F.2d 1412, 1418 (9th Cir. 1991))).2

Smith Barney unsuccessfully petitioned the district court to
stay the proceedings against Smith Barney and compel arbi-
tration, and it now appeals.3

Discussion

We have, in the past, expressed skepticism about the
arbitrability of ERISA claims, see Amaro v. Cont’l Can Co.,
1
Smith Barney is a fiduciary under ERISA because it provided invest-
ment advice to the plans for a fee. See 29 U.S.C. § 1002(21)(A)(ii).
2
Smith Barney does not challenge Comer’s Article III standing, proba-
bly because Comer, as a plan participant, has alleged sufficient “injury in
fact” on account of Smith Barney’s investment advice and because Comer
would share in any recovery by the plans. See Friends of the Earth, Inc.
v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000).
3
Comer’s complaint also names Micor and the trustees as defendants.
The trustees joined in Comer’s opposition to Smith Barney’s petition to
compel arbitration. Comer, 278 F. Supp. 2d at 1032. Neither Micor nor the
trustees are parties to this appeal.
1238 COMER v. SALOMON SMITH BARNEY
724 F.2d 747, 750 (9th Cir. 1984), but those doubts seem to
have been put to rest by the Supreme Court’s opinions in
Shearson/American Express Inc. v. McMahon, 482 U.S. 220,
226 (1987) (“[The] duty to enforce arbitration agreements is
not diminished when a party bound by an agreement raises a
claim founded on statutory rights.”), and Rodriguez de Quijas
v. Shearson/American Express, Inc., 490 U.S. 477, 481
(1989) (enforcing agreement to arbitrate claims arising under
the Securities Act of 1933 and stating that prior decisions
holding such clauses unenforceable had “fallen far out of step
with our current strong endorsement of the federal statutes
favoring this method of resolving disputes”). In fact, on the
force of McMahon, we have held other statutory claims arbi-
trable. See, e.g., Simula, Inc. v. Autoliv, Inc., 175 F.3d 716,
724 (9th Cir. 1999) (antitrust and Lanham Act claims). Curi-
ously, however, we have echoed the doubts expressed in
Amaro without taking account of the intervening Supreme
Court cases. See Graphic Commc’ns Union, Dist. Council No.
2 v. GCIU-Employer Ret. Benefit Plan, 917 F.2d 1184, 1187
(9th Cir. 1990); Johnson v. St. Frances Xavier Cabrini Hosp.,
910 F.2d 594, 596 (9th Cir. 1990).

We need not resolve this tension in our caselaw because the
parties seem to agree that ERISA claims are arbitrable. Nor
need we consider whether the scope of this particular arbitra-
tion clause, which does not mention statutory claims or
ERISA, is sufficiently broad to cover Comer’s claim. We
assume, as do the parties, that were this claim brought by the
trustees, rather than by Comer, it would have to be submitted
to arbitration.4

[1] We turn, then, to the single issue that was briefed and
argued by the parties: whether the arbitration agreements
apply to Comer’s ERISA claim against Smith Barney. In
Letizia v. Prudential Bache Securities, Inc., 802 F.2d 1185
4
We do not express any opinion as to litigation that might ensue
between the trustees and Smith Barney.
 COMER v. SALOMON SMITH BARNEY 1239
(9th Cir. 1986), we explained that “nonsignatories of arbitra-
tion agreements may be bound by the agreement under ordi-
nary contract and agency principles.” Id. at 1187-88.5 Among
these principles are “1) incorporation by reference; 2)
assumption; 3) agency; 4) veil-piercing/alter ego; and 5)
estoppel.” Thomson-CSF, S.A. v. Am. Arbitration Ass’n, 64
F.3d 773, 776 (2d Cir. 1995). In addition, nonsignatories can
enforce arbitration agreements as third party beneficiaries. See
E.I. DuPont de Nemours & Co. v. Rhone Poulenc Fiber &
Resin Intermediates, 269 F.3d 187, 195 (3d Cir. 2001).

Smith Barney argues that Comer is bound by the arbitration
clauses as a matter of equitable estoppel and as a third party
beneficiary. Equitable estoppel “precludes a party from claim-
ing the benefits of a contract while simultaneously attempting
to avoid the burdens that contract imposes.” Wash. Mut. Fin.
Group, LLC v. Bailey, 364 F.3d 260, 267 (5th Cir. 2004). In
the arbitration context, this principle has generated two lines
of cases.

[2] Under the first of these lines, nonsignatories have been
held to arbitration clauses where the nonsignatory “knowingly
exploits the agreement containing the arbitration clause
despite having never signed the agreement.” DuPont, 269
F.3d at 199 (citing Thomson-CSF, 64 F.3d at 778). Under the
second line of cases, signatories have been required to arbi-
trate claims brought by nonsignatories “at the nonsignatory’s
insistence because of the close relationship between the enti-
5
Our holding in IT Corp. v. General American Life Insurance Co., 107
F.3d 1415 (9th Cir. 1997), is not to the contrary. There, we held that “a
fiduciary’s contract with an employer cannot get it off the hook with the
employees who participate in the ERISA plan. They did not sign a con-
tract exonerating the fiduciary.” Id. at 1418 (emphasis added). Unlike an
exoneration clause—which has the drastic effect of extinguishing a claim
entirely—an arbitration clause merely determines where, not whether, a
claim will be heard. We do not read IT Corp. as casting doubt on Letizia’s
core holding that a nonsignatory can be bound by an arbitration agreement
under ordinary contract and agency principles.
1240 COMER v. SALOMON SMITH BARNEY
ties involved.” Id. (quoting Thomson-CSF, 64 F.3d at 779
(quoting Sunkist Soft Drinks, Inc. v. Sunkist Growers, Inc., 10
F.3d 753, 757 (11th Cir. 1993))) (internal quotation marks
omitted).

[3] Because Smith Barney is invoking equitable estoppel
against a nonsignatory, it is the first line of cases that is rele-
vant. The insurmountable hurdle for Smith Barney, however,
is that there is no evidence that Comer “knowingly exploit[ed]
the agreement[s] containing the arbitration clause[s] despite
having never signed the agreement[s].” Id. at 199. Prior to his
suit, Comer was simply a participant in trusts managed by
others for his benefit. He did not seek to enforce the terms of
the management agreements, nor otherwise to take advantage
of them. Nor did he do so by bringing this lawsuit, which he
bases entirely on ERISA, and not on the investment manage-
ment agreements. Smith Barney’s attempt to shoehorn
Comer’s status as a passive participant in the plans into his
“knowing[ ] exploit[ation]” of the investment management
agreements fails.

[4] Smith Barney argues an alternate theory—that Comer
is bound by the arbitration clauses as a third party beneficiary.
“To sue as a third-party beneficiary of a contract, the third
party must show that the contract reflects the express or
implied intention of the parties to the contract to benefit the
third party.” Klamath Water Users Protective Ass’n v. Patter-
son, 204 F.3d 1206, 1211 (9th Cir. 2000). Smith Barney has
not produced any evidence that the signatories to the invest-
ment management agreements intended to give every benefi-
ciary of the plans, such as Comer, the right to sue under the
agreements.6 It follows that Comer cannot be bound to the
terms of a contract he didn’t sign and is not even entitled to
enforce. A third party beneficiary might in certain circum-
6
We note, once again, that Comer’s lawsuit is not based on contract law,
but on a statutory provision that allows him to bring suit under ERISA on
behalf of the plans.
 COMER v. SALOMON SMITH BARNEY 1241
stances have the power to sue under a contract; it certainly
cannot be bound to a contract it did not sign or otherwise
assent to. See Motorsport Eng’g, Inc. v. Maserati SPA, 316
F.3d 26, 29 (1st Cir. 2002); Abraham Zion Corp. v. Lebow,
761 F.2d 93, 103 (2d Cir. 1985).7

[5] Finally, we consider the Third Circuit’s position that
“whether seeking to avoid or compel arbitration, a third party
beneficiary has been bound by contract terms where its claim
arises out of the underlying contract to which it was an
intended third party beneficiary.” DuPont, 269 F.3d at 195
(emphasis added).8 One problem with the Third Circuit’s
approach is that it is not grounded in “ordinary contract and
agency principles.” Letizia, 802 F.2d at 1187. As discussed
above, neither principles of equitable estoppel nor third party
beneficiary apply here. Nor can the Micor trustees be said to
have acted as Comer’s agents in entering into the investment
management agreements. See Restatement (Second) of Trusts
§ 8 (“An agency is not a trust.”). Similarly, there is no evi-
dence that Comer’s “subsequent conduct indicates that [he] is
assuming the obligation to arbitrate.” Thomson-CSF, 64 F.3d
at 777. Nor has Comer “entered into a separate contractual
relationship with [Smith Barney] which incorporates the
existing arbitration clause.” Id. And theories of veil-piercing
7
Trust law provides a similar answer. Under trust law, the beneficiary
of a trust “is not personally liable upon contracts made by the trustee in
the course of the administration of the trust.” Restatement (Second) of
Trusts § 275 (1959). In contrast to agents—who can subject their princi-
pals to personal liability—“a trustee cannot subject the beneficiary to such
liabilities.” Id. § 8 cmt. c (emphasis added).
8
This principle, or something like it, was applied by a New Jersey dis-
trict court in Bevere v. Oppenheimer & Co., 862 F. Supp. 1243 (D.N.J.
1994), a case that involved facts quite similar to our own. There, the dis-
trict court held that “individuals who are not direct signatories to an arbi-
tration agreement may nevertheless be bound by it when their claims arise
from the very contract that contains the arbitration clause.” Id. at 1249
(emphasis added). For the reasons discussed below, we do not consider
Bevere’s holding persuasive.
1242 COMER v. SALOMON SMITH BARNEY
and alter ego are inapplicable, given the absence of either
fraud or a failure to observe corporate formalities. Because
the Third Circuit’s “arises out of” test is not grounded in any
principle of contract or agency law of which we are aware, we
are precluded by Letizia from adopting it.

[6] Even if the Third Circuit’s test were grounded in ordi-
nary principles of contract or agency law, it appears to have
been superseded by EEOC v. Waffle House, Inc., 534 U.S.
279 (2002). In Waffle House, the Supreme Court held that “an
agreement between an employer and an employee to arbitrate
employment-related disputes [did not bar] the Equal Employ-
ment Opportunity Commission . . . from pursuing victim-
specific judicial relief.” Id. at 282, 294. The EEOC’s suit in
Waffle House, on behalf of a Waffle House employee, “arose
from” an employment agreement containing an arbitration
clause. Nevertheless, the EEOC was not required to arbitrate
its claim. Id. at 294.

[7] Smith Barney tries in vain to distinguish Waffle House
by arguing that, whereas Comer is suing in an entirely deriva-
tive capacity, the EEOC was suing in a non-derivative capac-
ity. We agree that the EEOC in Waffle House was not suing
in a wholly derivative capacity. See, e.g., id. at 297 (“[I]t sim-
ply does not follow from the cases holding that the employ-
ee’s conduct may affect the EEOC’s recovery that the
EEOC’s claim is merely derivative. We have recognized sev-
eral situations in which the EEOC does not stand in the
employee’s shoes.”); id. at 298 (“The fact that ordinary prin-
ciples of res judicata, mootness, or mitigation may apply to
EEOC claims does not . . . render the EEOC a proxy for the
employee.”). But that doesn’t help Smith Barney because our
own precedents hold that an ERISA claimant also sues in a
non-derivative capacity. See Landwehr v. DuPree, 72 F.3d
726, 732-33 (9th Cir. 1995).

In Landwehr, we considered whether the statute of limita-
tions for an ERISA claim ran from when the individual plain-
 COMER v. SALOMON SMITH BARNEY 1243
tiff, rather than the plan, became aware of the claim. Citing
the “unfairness” that would result from a rule that extin-
guished a plaintiff’s claim where the plan became aware of
the claim—and did nothing—long before the individual plain-
tiff had notice of it, we held that the statute of limitations ran
from the time when the individual plaintiff had actual knowl-
edge of the claim. Id. at 732. In so holding, we expressly
declined to treat the “real plaintiff” as the plan. See id. Even
though money recovered on the ERISA claim would go to the
plan, we held that the cause of action belonged to the individ-
ual plaintiff.9 Comer’s cause of action is materially indistin-
guishable from the EEOC’s suit in Waffle House, which
appears to have overruled the Third Circuit’s approach.

* * *

[8] Because Smith Barney’s petition comes within the gen-
eral rule that a nonsignatory is not bound by an arbitration
clause,10 Comer is not required to arbitrate his ERISA claim
9
The Court in Waffle House relied on a similar precedent in determining
that the EEOC was not suing in a wholly derivative capacity. See Waffle
House, 534 U.S. at 287 (“[W]e recognized the difference between the
EEOC’s enforcement role and an individual employee’s private cause of
action in Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S. 355 (1977)
. . . . Occidental presented the question whether EEOC enforcement
actions are subject to the same statutes of limitations that govern individu-
als’ claims.”).
10
We note in passing that Waffle House made a number of categorical
statements that cannot be taken at face value. For example, the Court’s
statement that “[i]t goes without saying that a contract cannot bind a non-
party,” Waffle House, 534 U.S. at 294, and its statement that “[t]he [Fed-
eral Arbitration Act] directs courts to place arbitration agreements on
equal footing with other contracts, but it ‘does not require parties to arbi-
trate when they have not agreed to do so,’ ” id. at 293 (quoting Volt Info.
Scis., Inc. v. Bd. of Trs. of Leland Stanford Junior Univ., 489 U.S. 468,
478 (1989)), would, if taken literally, jettison hundreds of years of com-
mon law under which nonparties can be contractually liable under ordi-
nary contract and agency principles. See pp. 1238-39 supra. We thus join
many of our sister circuits who, in the wake of Waffle House, have recog-
1244 COMER v. SALOMON SMITH BARNEY
against Smith Barney.11

AFFIRMED.

nized that contract and agency principles continue to bind nonsignatories
to arbitration agreements. See, e.g., CD Partners, LLC v. Grizzle, 424 F.3d
795, 799 (8th Cir. 2005); Zurich Am. Ins. Co. v. Watts Indus., Inc., 417
F.3d 682, 687 (7th Cir. 2005); Wash. Mut. Fin. Group, LLC, 364 F.3d at
267; Intergen N.V. v. Grina, 344 F.3d 134, 145 (1st Cir. 2003); Merrill
Lynch Inv. Managers v. Optibase, Ltd., 337 F.3d 125, 129 (2d Cir. 2003)
(per curiam); Javitch v. First Union Sec., Inc., 315 F.3d 619, 629 (6th Cir.
2003). But cf. Miles v. Naval Aviation Museum Found., Inc., 289 F.3d
715, 720 (11th Cir. 2002) (holding that, under Waffle House, nonsignatory
could not be bound by contractual exculpation clause).
11
Although we agree with Smith Barney that the Federal Arbitration Act
reflects “a liberal federal policy favoring arbitration agreements,” that pol-
icy is best understood as concerning “the scope of arbitrable issues.”
Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25
(1983). The question here is not whether a particular issue is arbitrable,
but whether a particular party is bound by the arbitration agreement.
Under these circumstances, the liberal federal policy regarding the scope
of arbitrable issues is inapposite. See Fleetwood Enters., Inc. v. Gaskamp,
280 F.3d 1069, 1073 (5th Cir. 2002) (“[The] federal policy favoring arbi-
tration does not apply to the determination of whether there is a valid
agreement to arbitrate between the parties; instead ‘[o]rdinary contract
principles determine who is bound.’ ” (second alteration in original) (quot-
ing Daisy Mfg. Co. v. NCR Corp., 29 F.3d 389, 392 (8th Cir. 1994))).