15‐2513‐cv(L)
Moss v. First Premier Bank
15‐2513‐cv(L)
Moss v. First Premier Bank
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3 ____________________
4
5 August Term, 2015
6
7 (Argued: April 8, 2016 Decided: August 29, 2016)
8
9 Docket Nos. 15‐2513‐cv(L); 15‐2667‐cv(CON)
10
11 ____________________
12
13 DEBORAH MOSS, on behalf of herself and
14 all others similarly situated,
15
16 Plaintiff‐Appellee,
17
18 v.
19
20 FIRST PREMIER BANK, a South Dakota
21 state‐chartered bank, and BAY CITIES BANK,
22 a Florida state‐chartered bank,
23
24 Defendants‐Appellants.1
25
26 ____________________
27
28 Before: POOLER, LIVINGSTON, and LOHIER, Circuit Judges.
29
1 The Clerk of Court is respectfully directed to amend the caption as above.
1 Appeal from a July 16, 2015 order of the United States District Court for
2 the Eastern District of New York (Bianco, J.), vacating a prior order compelling
3 arbitration. The parties agreed to arbitrate their disputes before the National
4 Arbitration Forum (“NAF”), which no longer accepts consumer arbitrations. The
5 district court held that it could not appoint a substitute arbitrator because the
6 language of the arbitration agreement contemplated arbitration only before NAF.
7 We agree with the district court and therefore AFFIRM.
8 Affirmed.
9 __________________
10 ERIC RIEDER, Bryan Cave LLP (Megan Awerdick
11 Pierson, on the brief), New York, NY, for Defendant‐
12 Appellant Bay Cities Bank.
13
14 Bryan R. Freeman, Lindquist & Vennum LLP,
15 Minneapolis, MN; Bryan Craig Meltzer, Herrick,
16 Feinstein LLP, for Defendant‐Appellant First PREMIER
17 Bank.
18
19 J. AUSTIN MOORE, Stueve Siegel Hanson LLP
20 (Norman E. Siegel, Steve N. Nix, Stueve Siegel Hanson
21 LLP; Darren T. Kaplan, New York, NY; Hassan
22 Zavareei, Jeffrey D. Kaliel, Tycko & Zavareei,
23 Washington, D.C., on the brief), Kansas City, MO, for
24 Plaintiff‐Appellee.
25
2
1 POOLER, Circuit Judge:
2 Deborah Moss signed an arbitration agreement providing that any
3 disputes between her and her payday lender would be resolved by arbitration
4 before the National Arbitration Forum (“NAF”). When she tried to take her case
5 to arbitration, however, NAF refused to accept it pursuant to a consent decree
6 that prohibited NAF from accepting consumer arbitrations. The district court
7 (Bianco, J.) construed the arbitration agreement as contemplating arbitration only
8 before NAF and declined to compel Moss to arbitrate before a different
9 arbitrator. We agree with the district court’s construction of the agreement and
10 accordingly affirm.
11 BACKGROUND
12 Deborah Moss took out three payday loans from an online payday lender,
13 SFS, Inc. (“SFS”). When a payday lender such as SFS agrees to loan a customer
14 money, it relies on banks to serve as middlemen to debit the customer’s account.
15 These banks are known as “Originating Depository Financial Institutions,” or
16 “ODFIs.” First Premier Bank and Bay Cities Bank each served as an ODFI for one
17 of Moss’s payday loans with SFS.
3
1 When Moss applied for the loans, she electronically signed an application
2 that included an arbitration clause. The arbitration clause on one of the
3 applications provided,
4 Arbitration of All Disputes: You and we agree that any and all
5 claims, disputes or controversies between you and us, any claim by
6 either of us against the other . . . and any claim arising from or
7 relating to your application for this loan, regarding this loan or any
8 other loan you previously or may later obtain from us, this Note,
9 this agreement to arbitrate all disputes, your agreement not to bring,
10 join or participate in class actions, regarding collection of the loan,
11 alleging fraud or misrepresentation . . . including disputes regarding
12 the matters subject to arbitration, or otherwise, shall be resolved by
13 binding individual (and not joint) arbitration by and under the Code
14 of Procedure of the National Arbitration Forum (“NAF”) in effect at
15 the time the claim is filed. . . . Rules and forms of the NAF may be
16 obtained and all claims shall be filed at any NAF office, on the
17 World Wide Web at aww.arb‐forum.com, by telephone at 800‐474‐
18 2371, or at “National Arbitration Forum, P.O. Box 50191,
19 Minneapolis, Minnesota 55405.” Your arbitration fees will be waived
20 by the NAF in the event you cannot afford to pay them.
21 App’x at 168. The following notice is printed directly beneath the arbitration
22 provision: “NOTICE: YOU AND WE WOULD HAVE HAD A RIGHT OR
23 OPPORTUNITY TO LITIGATE DISPUTES THROUGH A COURT AND HAVE
24 A JUDGE OR JURY DECIDE THE DISPUTES BUT HAVE AGREED INSTEAD
25 TO RESOLVE DISPUTES THROUGH BINDING ARBITRATION.” App’x at 168.
26 The other applications Moss signed contained similar arbitration clauses.
4
1 Moss filed a putative class action against First Premier Bank and Bay Cities
2 Bank in federal court, alleging violations of the Racketeer Influenced and
3 Corrupt Organizations Act, 18 U.S.C. § 1962, and state law. In short, Moss
4 alleged that the banks unlawfully facilitated high‐interest payday loans that have
5 been outlawed in several states.
6 The banks moved to compel arbitration on the basis of the arbitration
7 agreements that Moss signed when she applied for the loans. Although the banks
8 were not parties to those agreements, they argued that they were entitled to
9 enforce the agreements against Moss under principles of estoppel. The district
10 court agreed and initially granted the banks’ motion to compel arbitration and
11 stayed the proceedings.
12 After the district court ordered the parties to arbitrate, Moss sent a letter to
13 NAF indicating her intent to arbitrate her claims. NAF responded that it was
14 unable to accept Moss’s dispute pursuant to a consent judgment that it had
15 entered into with the Minnesota Attorney General. In 2009, the Minnesota
16 Attorney General had sued NAF for consumer fraud, deceptive trade practices,
17 and false advertising. The complaint alleged that, although NAF represented
18 itself as an independent and impartial arbiter, the forum was in fact “work[ing]
5
1 alongside creditors behind the scenes . . . to convince [them] to place mandatory
2 pre‐dispute arbitration clauses in their customer agreements and to appoint
3 [NAF] as the arbitrator of any disputes that may arise in the future.” App’x at
4 455‐56. NAF also allegedly “ma[de] representations that align[ed] itself against
5 consumers” to solicit creditors to use its arbitration services. App’x at 457. To
6 settle the lawsuit, NAF entered into a consent decree that prohibited it from
7 accepting consumer arbitrations such as Moss’s.
8 After NAF declined to accept her dispute, Moss returned to federal court
9 and moved to vacate the district court’s order compelling arbitration, arguing
10 that she could not arbitrate her claims because NAF declined to arbitrate her
11 case. The district court granted the motion. See Moss v. BMO Harris Bank, N.A.,
12 114 F. Supp. 3d 61, 63 (E.D.N.Y. 2015). The court concluded that the language of
13 the arbitration agreements reflected the parties’ intent to arbitrate exclusively
14 before NAF. Id. at 66. The court further concluded that, under this Court’s
15 decision in In re Salomon Inc. Shareholders’ Derivative Litigation, 68 F.3d 554 (2d Cir.
16 1995), a district court may not appoint a substitute arbitrator under such
17 circumstances. Moss, 114 F. Supp. 3d at 66. The court vacated its prior order and
18 lifted its stay of the proceedings, holding that Moss “cannot be compelled to
6
1 arbitrate her claims against Bay Cities Bank and First Premier Bank.” Id. at 68.
2 This appeal followed.
3 DISCUSSION
4 We have jurisdiction to review an order “refusing a stay of any action
5 under section 3” of the Federal Arbitration Act. 9 U.S.C. § 16(a)(1)(A). Here, the
6 order appealed from lifted a prior stay under Section 3 and vacated a prior order
7 compelling arbitration. Because the order appealed from “was effectively one
8 ‘refusing a stay,’” we have jurisdiction to review it. Pre‐Paid Legal Servs., Inc. v.
9 Cahill, 786 F.3d 1287, 1290 (10th Cir.), cert. denied, 136 S. Ct. 373 (2015); see also
10 Dobbins v. Hawkʹs Enters., 198 F.3d 715, 716 (8th Cir. 1999) (holding that court had
11 jurisdiction to review order lifting stay of arbitration because it was an “order
12 refusing to compel arbitration”); Corpman v. Prudential‐Bache Sec., Inc., 907 F.2d
13 29, 30 (3d Cir. 1990) (same). We review the district court’s order de novo. See
14 Mediterranean Shipping Co. S.A. Geneva v. POL‐Atl., 229 F.3d 397, 402 (2d Cir.
15 2000).
16 Section 2 of the Federal Arbitration Act (FAA) provides that “[a] written
17 provision in . . . a contract . . . to settle by arbitration a controversy thereafter
7
1 arising out of such contract . . . shall be valid, irrevocable, and enforceable.”
2 9 U.S.C. § 2.
3 This text reflects the overarching principle that arbitration is a
4 matter of contract. And consistent with that text, courts must
5 rigorously enforce arbitration agreements according to their terms,
6 including terms that specify with whom the parties choose to
7 arbitrate their disputes and the rules under which that arbitration
8 will be conducted.
9 Am. Exp. Co. v. Italian Colors Rest., 570 U.S. __, 133 S. Ct. 2304, 2309 (2013)
10 (alterations, emphasis, citations, and internal quotation marks omitted). As with
11 any contract, “the parties’ intentions control.” Stolt‐Nielsen S.A. v. AnimalFeeds
12 Intʹl Corp., 559 U.S. 662, 682 (2010) (internal quotation marks omitted). To discern
13 the parties’ intentions, we look to the language of the agreement. PaineWebber Inc.
14 v. Bybyk, 81 F.3d 1193, 1199 (2d Cir. 1996).
15 The arbitration agreement in this case provides that any disputes shall be
16 resolved “by binding individual (and not joint) arbitration by and under the
17 Code of Procedure of the National Arbitration Forum (“NAF”) in effect at the
18 time the claim is filed.” App’x at 168. The agreement does not address how the
19 parties should proceed in the event that NAF is unable to accept the dispute. The
8
1 question is whether a court may compel arbitration when the designated
2 arbitrator is unavailable.
3 We addressed that question in In re Salomon Inc. Shareholders’ Derivative
4 Litigation, 68 F.3d 554 (2d Cir. 1995). There, a group of shareholders brought a
5 derivative suit against former executives of Salomon Brothers. Id. at 555. The
6 executives had signed arbitration agreements with Salomon Brothers providing
7 that “any controversy . . . arising out of [the employee’s] employment . . . shall be
8 settled by arbitration at the instance of any such party in accordance with the
9 Constitution and rules then obtaining of the [New York Stock Exchange].” Id. at
10 558. The executives moved to compel arbitration, and the district court granted
11 the motion, referring the matter to the New York Stock Exchange (“NYSE”). Id. at
12 555. NYSE declined to arbitrate the dispute, invoking its discretion under its
13 constitution to decline to arbitrate cases referred to it. Id. at 555‐56. The
14 executives then returned to the district court and requested that the court
15 appoint a substitute arbitrator pursuant to Section 5. Id. at 557. The court denied
16 the motion. Id.
17 We affirmed. We held that where “the parties ha[ve] contractually agreed
18 that only [one arbitrator] could arbitrate any disputes between them,” a district
9
1 court must “decline[] to appoint substitute arbitrators and compel arbitration in
2 another forum.” Id. at 559. This is because
3 [a]lthough the federal policy favoring arbitration obliges us to
4 resolve any doubts in favor of arbitration, we cannot compel a party
5 to arbitrate a dispute before someone other than the [designated
6 arbitrator] when that party had agreed to arbitrate disputes only
7 before the [arbitrator] and the [arbitrator], in turn, exercising its
8 discretion . . . , has refused . . . to arbitrate the dispute in question.
9 Id. at 557‐58. Once the designated arbitrator refuses to accept arbitration, there is
10 “no further promise to arbitrate in another forum.” Id. at 557.
11 Thus, under Salomon, the question in this case is whether the language of
12 the parties’ agreement contemplates arbitration before only NAF, or whether it
13 contemplates the appointment of a substitute arbitrator should NAF become
14 unavailable. In Salomon, we concluded that the parties’ agreement to arbitrate “in
15 accordance with the Constitution and rules then obtaining of the NYSE” evinced
16 their intent to “designat[e] . . . an exclusive arbitral forum.” Id. at 558, 561
17 (alteration omitted).
18 The same is true here. The arbitration agreement in this case contains
19 numerous indicators that the parties contemplated one thing: arbitration before
20 NAF. The agreement provides that disputes “shall be resolved by binding
10
1 individual (and not joint) arbitration by . . . the National Arbitration Forum.”
2 App’x at 168. It provides that the arbitration shall be conducted “under the Code
3 of Procedure of the National Arbitration Forum.” App’x at 168. It requires that
4 claims “shall be filed at any NAF office.” App’x at 168. And it provides that, if
5 the claimant is unable to pay the costs of the arbitration, fees may be waived
6 “by . . . NAF.” App’x at 168. Further, the agreement makes no provision for the
7 appointment of a substitute arbitrator should NAF become unavailable. In view
8 of this mandatory language, the pervasive references to NAF in the agreement,
9 and the absence of any indication that the parties would assent to arbitration
10 before a substitute forum if NAF became unavailable, we conclude that, as in
11 Salomon, the parties agreed to arbitrate only before NAF.
12 Appellants contend that the district court was required to appoint a
13 substitute arbitrator pursuant to Section 5 of the FAA. Section 5 provides,
14 If in the agreement provision be made for a method of naming or
15 appointing an arbitrator or arbitrators or an umpire, such method
16 shall be followed; but if no method be provided therein, or if a
17 method be provided and any party thereto shall fail to avail himself
18 of such method, or if for any other reason there shall be a lapse in
19 the naming of an arbitrator or arbitrators or umpire, or in filling a
20 vacancy, then upon the application of either party to the controversy
21 the court shall designate and appoint an arbitrator or arbitrators or
22 umpire, as the case may require, who shall act under the said
11
1 agreement with the same force and effect as if he or they had been
2 specifically named therein . . . .
3 9 U.S.C. § 5. Appellants contend that NAF’s inability to accept this case
4 constitutes a “lapse” within the meaning of Section 5 such that the district court
5 was required to appoint a substitute arbitrator.
6 In Salomon, we held that the “lapse” referred to in Section 5 “means a lapse
7 in time in the naming of the arbitrator or in the filling of a vacancy on a panel of
8 arbitrators or some other mechanical breakdown in the arbitrator selection
9 process.” Id. at 560 (citations and internal quotation marks omitted). A district
10 court may not, however, “use [Section] 5 to circumvent the parties’ designation
11 of an exclusive arbitral forum.” Id. at 561. We concluded that because the district
12 court “promptly referred the matter to the NYSE for arbitration,” there “was no
13 lapse or breakdown in selecting the arbitrator.” Id.
14 Under Salomon, there was no “lapse in the naming of an arbitrator” in this
15 case. Here, as in Salomon, the parties designated an exclusive arbitral forum, the
16 district court compelled the parties to arbitrate before that forum, and the forum
17 declined to accept the case. In Salomon, we held that, under such circumstances, a
12
1 court cannot use Section 5 to circumvent the clear text of the parties’ agreement
2 and appoint a substitute arbitrator.
3 Appellants try to distinguish Salomon on the ground that, in that case,
4 NYSE “exercise[d] its discretion” not to accept the arbitration, whereas, here,
5 NAF is unavailable because it cannot accept consumer arbitrations pursuant to a
6 consent decree. Appellants’ Br. at 18. We do not find this to be a meaningful
7 distinction. Under Salomon, the dispositive factor is not why the designated
8 arbitral forum is unavailable, but rather whether the designated forum was
9 “exclusive.” Where the forum is exclusive, the district court may not “use
10 [Section] 5 to circumvent the parties’ designation of an exclusive arbitral forum.”
11 Salomon, 68 F.3d at 561.
12 Appellants also rely on two pre‐Salomon cases in support of their position
13 that Section 5 required the district court to appoint a substitute arbitrator in this
14 case. See Astra Footwear Indus. v. Harwyn Int’l, Inc., 442 F. Supp. 907 (S.D.N.Y.
15 1978); Erving v. Virginia Squires Basketball Club, 468 F.2d 1064 (2d Cir. 1972). But
16 Salomon considered and distinguished both of these cases. 68 F.3d at 560‐61.
17 Moreover, Astra was a district‐court decision. It was affirmed in a one‐word,
18 unpublished opinion. Astra Footwear Indus. v. Harwyn Intʹl Inc., 578 F.2d 1366 (2d
13
1 Cir. 1978). Thus, to the extent the district court’s reasoning in Astra conflicts with
2 Salomon, we are bound to follow Salomon. And in Erving, the arbitration
3 agreement provided that disputes would be arbitrated before a designated
4 arbitrator or that person’s designee, undercutting the notion that the parties
5 intended to arbitrate exclusively before the designated arbitrator. 468 F.2d at
6 1066 n.1. Further, the court in Erving did not analyze the language of Section 5 or
7 address whether a “lapse” within the meaning of Section 5 had occurred in that
8 case. Thus, like the district court, we find Salomon to be more instructive on the
9 applicability of Section 5 than either Astra or Erving.
10 Finally, we acknowledge that there is a difference of opinion among the
11 circuits on this issue. Compare Flagg v. First Premier Bank, No. 15‐14052, 2016 WL
12 703063, at *4 (11th Cir. Feb. 23, 2016) (unpublished opinion) (holding that
13 “[b]ecause the choice of the NAF as the arbitral forum was an integral part of the
14 agreement to arbitrate, we conclude that the district court properly denied First
15 Premier’s motion to compel arbitration and appoint a substitute for NAF”), and
16 Ranzy v. Tijerina, 393 Fed. Appx. 174, 176 (5th Cir. 2010) (unpublished opinion)
17 (following Salomon to conclude that district court properly denied motion to
18 compel arbitration given NAF’s unavailability), with Green v. U.S. Cash Advance
14
1 Ill., LLC, 724 F.3d 787, 793 (7th Cir. 2013) (holding that Section 5 required court to
2 appoint substitute arbitrator), and Khan v. Dell Inc., 669 F.3d 350, 356 (3d Cir.
3 2012) (finding Salomon “unpersuasive” and holding that NAF’s unavailability
4 constituted a lapse within the meaning of Section 5). Like the district court,
5 however, we are bound by Salomon. Thus, while some circuits have chosen to
6 follow Salomon and others have not, we are not free to make that choice. The only
7 question that we can decide is whether, applying Salomon, the district court
8 correctly declined to compel Moss to arbitrate her claims before a forum to which
9 she did not agree. We hold that it did.
10 CONCLUSION
11 For the foregoing reasons, we AFFIRM the order of the district court and
12 REMAND for further proceedings.
13
15