FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEREMY REVITCH, on behalf of No. 18-16823
himself and all others similarly
situated, D.C. No.
Plaintiff-Appellee, 3:18-cv-01127-
JCS
v.
DIRECTV, LLC, OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Joseph C. Spero, Chief Magistrate Judge, Presiding
Submitted August 8, 2019 *
San Francisco, California
Filed September 30, 2020
Before: Diarmuid F. O’Scannlain, M. Margaret McKeown,
and Mark J. Bennett, Circuit Judges.
Opinion by Judge O’Scannlain;
Concurrence by Judge O’Scannlain;
Dissent by Judge Bennett
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 REVITCH V. DIRECTV
SUMMARY **
Arbitration
The panel affirmed the district court’s denial of
defendant DIRECTV, LLC’s motion to compel arbitration
pursuant to the Federal Arbitration Act in a putative class
action brought under the Telephone Consumer Protection
Act.
Plaintiff alleged that DIRECTV, a satellite television
services company, made calls to his cell phone in violation
of the TCPA. Plaintiff was a customer of AT&T Mobility,
LLC, a wireless service provider, with which he signed a
contract that included an arbitration clause extending to all
disputes between him and AT&T. As defined in the wireless
services contract, any reference to AT&T Mobility also
included its “affiliates.” Years later, DIRECTV was
acquired by AT&T, Inc., which became the parent company
of both DIRECTV and AT&T Mobility.
Disagreeing with the Fourth Circuit, the panel held that,
under California contract law, looking to the reasonable
expectation of the parties at the time of contract, a valid
agreement to arbitrate did not exist between plaintiff and
DIRECTV because DIRECTV was not an affiliate of AT&T
Mobility when the contract was signed. Distinguishing
Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407 (2019), the panel
held that the FAA does not preempt California’s “absurd
results” canon, which requires that courts interpret contracts
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
REVITCH V. DIRECTV 3
to avoid absurd results. The panel concluded that the correct
inquiry was whether a valid agreement to arbitrate existed
between plaintiff and DIRECTV, rather than asking first,
whether plaintiff and AT&T entered into a valid arbitration
agreement and second, whether the scope of that agreement
required plaintiff to arbitrate claims against entities like
DIRECTV that later became affiliates of AT&T.
Concurring, Judge O’Scannlain wrote separately to
expand upon the issue of contract scope, as distinguished
from contract formation. He wrote that, even if the panel
considered the question under the rubric of scope, it would
still affirm the denial of the motion to compel arbitration
based on the express language of the FAA because the
dispute did not “arise out of” plaintiff’s contract with AT&T
Mobility under 9 U.S.C. § 2.
Dissenting, Judge Bennett wrote that neither party
disputed the existence and validity of the arbitration clause.
Thus, the issues before the panel fell squarely within the
question whether the agreement encompassed the dispute at
issue. Judge Bennett concluded that the arbitration clause’s
express terms encompassed the parties’ dispute because
“affiliates” in the clause clearly included DIRECTV.
Moreover, under Lamps Plus, ambiguities about the scope of
an arbitration clause must be resolved in favor of arbitration.
Thus, even if some ambiguity existed, application of this rule
of construction led to the same conclusion, that DIRECTV
could compel arbitration.
4 REVITCH V. DIRECTV
COUNSEL
Evan M. Tager, Archis A. Parasharami, and Daniel E. Jones,
Mayer Brown LLP, Washington, D.C., for Defendant-
Appellant.
L. Timothy Fisher, Joel D. Smith, and Yeremy O.
Krivoshey, Bursor & Fisher P.A., Walnut Creek, California,
for Plaintiff-Appellee.
OPINION
O’SCANNLAIN, Circuit Judge:
An arbitration clause in a wireless services agreement
purports to include all affiliates of the wireless services
company. We must decide whether a satellite television
company, which became an affiliate years after the
agreement was signed, may use the wireless services
agreement to compel arbitration in a suit brought against it
under the Telephone Consumer Protection Act.
I
In 2018, Jeremy Revitch brought this putative class
action against DIRECTV, LLC (“DIRECTV”) under the
Telephone Consumer Protection Act, 47 U.S.C. § 227
(“TCPA”). He alleges that DIRECTV, a satellite television
services company, initiated multiple telephone calls to his
cell phone using a prerecorded message. Each time, the
message allegedly said:
This is an important announcement from
[DIRECTV]. We are now offering our most
popular viewing package for only $19.99 per
REVITCH V. DIRECTV 5
month. For a limited time, new customers
also receive a free flat-screen television, just
for signing up. Press 1 to speak with a
representative, or press 9 to be removed from
future offers.
Revitch avers that he had no previous contact with
DIRECTV, never provided DIRECTV with his telephone
number, and certainly did not give DIRECTV permission to
flood his cell phone with robocalls.
According to Revitch’s complaint, DIRECTV has a
history of conducting unsolicited telemarketing campaigns,
for which it has been sued numerous times and has paid
millions of dollars in fines to the Federal Trade Commission.
Apparently frustrated with such spam calls, Revitch decided
to make use of the TCPA’s private right of action under
47 U.S.C. § 227(b)(3). He brings this class action against
DIRECTV on behalf of all persons in the United States who
have received prerecorded messages from the company over
the last four years without prior express written consent.
A
Faced with this lawsuit, DIRECTV somehow uncovered
the fact that Revitch also happens to be a customer of AT&T
Mobility LLC (“AT&T Mobility”), a wireless services
provider, with which he signed a contract when he upgraded
his mobile device in 2011, seven years before. That contract
for mobile phone wireless services included an arbitration
clause extending to “all disputes and claims between”
Revitch and AT&T Mobility, “includ[ing], but . . . not
limited to . . . claims arising out of or relating to any aspect
of the relationship between” them. As defined in Revitch’s
wireless services contract, any references to AT&T Mobility
also include its “affiliates.”
6 REVITCH V. DIRECTV
So how did this class action morph into a compulsory
arbitration appeal? It turns out that DIRECTV was acquired
in 2015 by AT&T, Inc., which is now the parent company of
both DIRECTV and AT&T Mobility. Thus, DIRECTV
contends that it has become an “affiliate” of AT&T Mobility
within the meaning of the wireless services agreement and
should therefore be able to piggyback onto the arbitration
clause, notwithstanding that it was not an affiliate at the time
Revitch signed the wireless services contract with AT&T
Mobility four years earlier. Soon after Revitch filed his
complaint, DIRECTV filed a motion to compel arbitration
of Revitch’s putative class action pursuant to the Federal
Arbitration Act, 9 U.S.C. §§ 1–16 (“FAA” or “the Act”).
B
In a twenty-seven-page order entered on behalf of the
district court, Chief Magistrate Judge Joseph C. Spero
denied DIRECTV’s motion, concluding that the contract
between Revitch and AT&T Mobility did not reflect an
intent to arbitrate the claim that Revitch asserts against
DIRECTV.
DIRECTV now appeals the order denying its motion to
compel arbitration.
II
When a motion to compel arbitration is filed, a “court
shall hear the parties, and upon being satisfied that the
making of the agreement for arbitration or the failure to
comply therewith is not in issue . . . shall make an order
directing the parties to proceed to arbitration in accordance
with the terms of the agreement.” 9 U.S.C. § 4. Because “the
Act leaves no place for the exercise of discretion by a district
court,” Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213,
REVITCH V. DIRECTV 7
218 (1985), a federal court’s role is “limited to determining
(1) whether a valid agreement to arbitrate exists and, if it
does, (2) whether the agreement encompasses the dispute at
issue,” Chiron Corp. v. Ortho Diagnostic Sys., Inc., 207 F.3d
1126, 1130 (9th Cir. 2000). If the answer to both questions
is yes, then the FAA requires a court “to enforce the
arbitration agreement in accordance with its terms.” Id.; see
also Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S.
287, 299 (2010) (“[C]ourts should order arbitration of a
dispute only where the court is satisfied that neither the
formation of the parties’ arbitration agreement nor (absent a
valid provision specifically committing such disputes to an
arbitrator) its enforceability or applicability to the dispute is
in issue.” (emphasis in original)). 1
A
Does a valid agreement to arbitrate exist between
Revitch and DIRECTV? 2
1
The Revitch-AT&T Mobility wireless services agreement provides
that “issues relating to the scope and enforceability of the arbitration
provision are for the court to decide.” Thus, it is unquestionably the
responsibility of the court—not the arbitrator—to resolve this case.
2
The dissent argues that this is the “wrong question” to ask, and that
instead, we should proceed by asking first “[w]hether Revitch and AT&T
entered into a valid arbitration agreement,” then subsequently “[w]hether
the scope of that agreement requires Revitch to arbitrate claims against
entities (like DIRECTV) that later became affiliates of AT&T.” Dissent
at 28 n.6.
We respectfully disagree.
It is a longstanding maxim of California law that for a nonsignatory
party to enforce a contract as a third-party beneficiary, that party must
8 REVITCH V. DIRECTV
To answer the question, we look to state contract law.
Wolsey, Ltd. v. Foodmaker, Inc., 144 F.3d 1205, 1210 (9th
Cir. 1998). Because the wireless services agreement’s
choice-of-law provision states that the contract is governed
by the law of the state in which the customer’s billing
address is located, we apply the law of Revitch’s home state
of California.
In California, “[a] contract must be so interpreted as to
give effect to the mutual intention of the parties as it existed
at the time of contracting.” Cal. Civ. Code § 1636. We
normally determine the mutual intention of the parties “from
the written terms [of the contract] alone,” so long as the
“contract language is clear and explicit and does not lead to
absurd results.” Kashmiri v. Regents of Univ. of Cal., 67 Cal.
Rptr. 3d 635, 652 (Ct. App. 2007); see also Cal. Civ. Code
§§ 1638 (“The language of a contract is to govern its
do so on a theory that “the law [has] establishe[d] a privity, and
implie[d]” a mutual “promise and obligation,” between the nonsignatory
party and the signatory party against whom it seeks enforcement. Spinks
v. Equity Residential Briarwood Apartments, 90 Cal. Rptr. 3d 453, 470
(Ct. App. 2009) (emphasis added) (quoting Johnson v. Holmes Tuttle
Lincoln-Mercury, Inc., 325 P.2d 193, 197 (Cal. Ct. App. 1958) (citing
Washer v. Indep. Mining & Dev. Co., 76 P. 654, 657 (Cal. 1904))). In
other words, our determination of whether DIRECTV can avoid the
“general rule that one must be a party to an arbitration agreement to
invoke it,” DMS Servs., LLC v. Super. Ct., 140 Cal. Rptr. 3d 896, 901
(Ct. App. 2012), hangs precisely on the question of whether the
“operati[on]” of law has “establishe[d] a privity,” Spinks, 90 Cal. Rptr.
3d at 470, between Revitch and DIRECTV.
Moreover, it bears noting that in Mey v. DIRECTV, LLC—which is
relied upon heavily throughout the dissent—the Fourth Circuit expressly
framed the relevant question as whether a plaintiff (who had signed the
same AT&T wireless services contract as Revitch) could be said to have
“formed an agreement to arbitrate with DIRECTV.” __ F.3d __, 2020 WL
4660194, at *1 (4th Cir. 2020) (emphasis added).
REVITCH V. DIRECTV 9
interpretation, if the language is clear and explicit, and does
not involve an absurdity.”), 1639 (“When a contract is
reduced to writing, the intention of the parties is to be
ascertained from the writing alone, if possible . . . .”). The
relevant words of the wireless services agreement are:
“References to ‘AT&T,’ ‘you’ and ‘us’ include our
respective . . . affiliates . . . .”
We must thus decide whether DIRECTV qualifies as an
“affiliate” of AT&T Mobility, as the term is used in the
wireless services agreement. Because the word is not
elsewhere defined in the contract, we rely on the ordinary
definition. See Cal. Civ. Code § 1644 (“The words of a
contract are to be understood in their ordinary and popular
sense, rather than according to their strict legal meaning
. . . .”). An affiliate is normally understood as “a company
effectively controlled by another or associated with others
under common ownership or control.” Satterfield v. Simon
& Schuster, Inc., 569 F.3d 946, 955 (9th Cir. 2009) (quoting
Webster’s Third New International Dictionary 35 (2002));
see also Cal. Corp. Code § 150 (“A corporation is an
‘affiliate’ of . . . another specified corporation if it . . . is
under common control with the other specified
corporation.”). Because DIRECTV and AT&T Mobility are
under common ownership by AT&T, Inc. today, they are
affiliates.
DIRECTV would have us end the inquiry right here. It
does not matter, DIRECTV argues, that it was not an affiliate
at the time Revitch and AT&T Mobility entered into their
contract and that it became an affiliate years later following
a corporate acquisition that had nothing to do with Revitch
or his wireless services agreement. However, as we already
mentioned, we rely on the “written terms alone” when the
“contract language is clear and explicit and does not lead to
10 REVITCH V. DIRECTV
absurd results.” Kashmiri, 67 Cal. Rptr. 3d at 652 (emphasis
added). Here, absurd results follow from DIRECTV’s
preferred interpretation: Under this reading, Revitch would
be forced to arbitrate any dispute with any corporate entity
that happens to be acquired by AT&T, Inc., even if neither
the entity nor the dispute has anything to do with providing
wireless services to Revitch—and even if the entity becomes
an affiliate years or even decades in the future. The Eastern
District of New York, addressing a similar set of facts in
Wexler v. AT&T Corp., 211 F. Supp. 3d 500, 504 (E.D.N.Y.
2016), concluded that “no reasonable person would think
that checking a box accepting the ‘terms and conditions’
necessary to obtain cell phone service would obligate them
[sic] to arbitrate literally every possible dispute he or she
might have with the service provider, let alone all of the
affiliates under AT&T Inc.’s corporate umbrella—including
those who provide services unrelated to cell phone
coverage.” We agree.
“[W]e look to the reasonable expectation of the parties
at the time of contract.” Kashmiri, 67 Cal. Rptr. 3d at 652.
We also may explain a contract “by reference to the
circumstances under which it was made, and the matter to
which it relates.” Cal. Civ. Code § 1647. Here, when Revitch
signed his wireless services agreement with AT&T Mobility
so that he could obtain cell phone services, he could not
reasonably have expected that he would be forced to
arbitrate an unrelated dispute with DIRECTV, a satellite
television provider that would not become affiliated with
AT&T until years later. Accordingly, we are satisfied that a
valid agreement to arbitrate between Revitch and DIRECTV
does not exist.
Had the wireless services agreement stated that “AT&T”
refers to “any affiliates, both present and future,” we might
REVITCH V. DIRECTV 11
arrive at a different conclusion. However, absent this or
similar forward-looking language, we are convinced that the
agreement does not cover entities that became affiliated with
AT&T Mobility years after the contract was signed in an
unrelated corporate acquisition. See Unova, Inc. v. Acer Inc.,
363 F.3d 1278, 1282 (Fed. Cir. 2004) (interpreting
California law and holding that a release from liability
provision “written in the present tense . . . most naturally
does not refer to [a party’s] future parents”); VKK Corp. v.
Nat’l Football League, 244 F.3d 114, 130 (2d Cir. 2001)
(“The Release’s reference to ‘affiliates’ . . . [is] stated in the
present tense. Nothing . . . indicates the inclusion of future
rather than present members.”); Ellington v. EMI Music,
Inc., 21 N.E.3d 1000, 1004 (N.Y. 2014) (“Absent explicit
language demonstrating the parties’ intent to bind future
affiliates of the contracting parties, the term ‘affiliate’
includes only those affiliates in existence at the time that the
contract was executed.”).
Because it was not and is not now a party to the wireless
services agreement between Revitch and AT&T Mobility,
DIRECTV may not invoke the agreement to compel
arbitration. DMS Servs., 140 Cal. Rptr. 3d at 900.
B
DIRECTV contends that the FAA preempts the absurd-
results canon and, as a result, we must enforce the arbitration
clause. Although the FAA preserves generally applicable
contract defenses to arbitration agreements, 9 U.S.C. § 2, the
Supreme Court has held that even such defenses which
“have a disproportionate impact on arbitration agreements”
or “have been applied in a fashion that disfavors arbitration”
are preempted by the FAA, AT&T Mobility LLC v.
Concepcion, 563 U.S. 333, 341–42 (2011). Recently, in
Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407, 1418 (2019),
12 REVITCH V. DIRECTV
the Court held that the FAA preempts California’s contra
proferentem rule—requiring ambiguities in a contract to be
construed against the drafter—when the rule is used “to
impose class arbitration in the absence of the parties’
consent.” DIRECTV argues that Lamps Plus is dispositive
in this case because it stands for the proposition that
ambiguities must be resolved in favor of arbitration.
Consequently, DIRECTV claims, any ambiguity about
whether it is an “affiliate” of AT&T Mobility must be
resolved in favor of arbitration.
We disagree with DIRECTV’s interpretation of Lamps
Plus and its application to the present case. The problem
with contra proferentem, according to the Supreme Court, is
that it is a “default rule” that is “triggered only after a court
determines that it cannot discern the intent of the parties.”
Id. at 1417 (emphasis in original). The rule is distinguishable
from other “contract rules that help to interpret the meaning
of a term, and thereby uncover the intent of the parties.” Id.
By contrast, we use the absurd-results canon to discern the
mutual intent of the parties based on their reasonable
expectations at the time of contract.
DIRECTV fails to show that California’s absurd-results
canon disfavors arbitration agreements compared to other
contracts. The FAA’s savings clause was intended to “make
arbitration agreements as enforceable as other contracts, but
not more so.” Prima Paint Corp. v. Flood & Conklin Mfg.
Co., 388 U.S. 395, 404 n.12 (1967). Accordingly, we are not
persuaded that the FAA preempts California’s rule requiring
that courts interpret contracts to avoid absurd results. 3
3
Contrary to the dissent’s characterization, our conclusion that
DIRECTV’s preferred interpretation of the contract is absurd has nothing
REVITCH V. DIRECTV 13
C
The dissent agrees with DIRECTV that the question of
whether Revitch is an affiliate of AT&T Mobility under the
wireless services agreement is a matter of the contract’s
scope to be resolved at the second step of our FAA analysis,
not a matter of contract formation to be resolved at the first.
Dissent at 28–29.
We think that DIRECTV’s preferred framework for
resolving this case is a misreading of our precedents. We
determine “(1) whether a valid agreement to arbitrate exists”
and “(2) whether the agreement encompasses the dispute at
issue.” Chiron, 207 F.3d at 1130. Here, the question we must
answer is whether the arbitration clause in the Revitch-
AT&T Mobility wireless services contract is a valid
agreement between Revitch and DIRECTV to arbitrate their
disputes. Nothing in our precedents requires that we answer
that question at step two rather than step one.
We also think that DIRECTV’s preferred framework
would subvert the Supreme Court’s FAA jurisprudence,
which emphasizes that “[a]rbitration is strictly ‘a matter of
consent . . . .’” Granite Rock, 561 U.S. at 299 (quoting Volt
Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Junior
to do with the relative merits of arbitration compared to litigation.
Dissent at 30. We are merely following the Supreme Court’s command
that “a party cannot be required to submit to arbitration any dispute
which he has not agreed so to submit.” AT&T Techs., Inc. v. Commc’ns
Workers of Am., 475 U.S. 643, 648 (1986) (quoting United Steelworkers
of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582 (1960)).
Interpreting Revitch’s agreement to arbitrate a dispute with AT&T
Mobility as a consent to arbitrate any and all disputes with unknown
corporate entities to be acquired by AT&T, Inc. years in the future is
undoubtedly absurd. We are not persuaded by the dissent’s argument that
the absurd-results canon is inapplicable in this extreme case.
14 REVITCH V. DIRECTV
Univ., 489 U.S. 468, 479 (1989)). Because “any doubts
concerning the scope of arbitrable issues should be resolved
in favor of arbitration,” Moses H. Cone Mem’l Hosp. v.
Mercury Constr. Corp., 460 U.S. 1, 24–25 (1983) (emphasis
added), it follows that if we were always to treat the question
of who is a party to a contract as a matter of scope, then in
turn, we would be required always to err on the side of
accepting individuals or entities as parties who could invoke
an arbitration clause, even if the other party would never
have consented to such an arrangement when it entered into
the contract.
We are not persuaded by DIRECTV’s argument that we
must evaluate Revitch’s claim against it as a matter of the
scope of the contract between Revitch and AT&T Mobility.
D
We are aware that the Fourth Circuit, considering a
recent case presenting facts and issues substantially similar
to those presented here (including, most pertinently, an
arbitration clause identical to that signed by Revitch), has
arrived at the opposite conclusion. See Mey v. DIRECTV,
LLC, __ F.3d __, 2020 WL 4660194 (4th Cir. Aug. 7, 2020).
Moreover, we are aware that with our decision today, we are
opening a circuit split on this difficult issue: Can anything
less than the most explicit “infinite language” in a consumer
services agreement bind the consumer to arbitrate any and
all disputes with (yet-unknown) corporate entities that might
later become affiliated with the service provider—even
when neither the entity nor the dispute bear any material
relation to the services provided under the initial agreement?
See David Horton, Infinite Arbitration Clauses, 168 U. Pa.
L. Rev. 633, 670–78 (2020).
REVITCH V. DIRECTV 15
Much of the Fourth Circuit’s reasoning in Mey tracks
that of the dissent here, and as such is already addressed in
our foregoing analysis. There is, however, one particular
point in the Mey opinion which does merit additional
attention. Namely, the majority in Mey contends that in
evaluating the soundness of DIRECTV’s preferred
interpretation of the arbitration clause, it would be
inappropriate for a court to consider the “troubling
hypothetical scenarios” to which such an interpretation
could give rise. __ F.3d __, 2020 WL 4660194, at *7. For
that contention, the Fourth Circuit relies on Parm v.
Bluestem Brands, Inc., 898 F.3d 869, 878 (8th Cir. 2018),
which it characterizes as “rejecting interpretation by
hypothetical in favor of looking ‘to the underlying factual
allegations’” in the case at bar, Mey, __ F.3d __, 2020 WL
4660194, at *7. But we understand Parm to stand for a
narrower proposition, and one that is ultimately inapposite
here.
In Parm, it was uncontroverted that a valid agreement to
arbitrate had been formed between the parties; the issue
presented was limited to that of whether the “plaintiffs’
claims f[e]ll within the scope of [those] arbitration clauses.”
898 F.3d at 871 (emphasis added). In that context, the
“glaring issue” with the plaintiffs’ use of hypotheticals was
“that they in no way inform the question before the court
because we must ‘look ... to the underlying factual
allegations [in the case actually at bar] and determine
whether they fall within the scope of the arbitration clause.’”
Id. at 878 (quoting 3M Co. v. Amtex Sec., Inc., 542 F.3d
1193, 1199 (8th Cir. 2008)) (emphasis added). Because
“doubts concerning the scope of arbitrable issues should be
resolved in favor of arbitration,” Moses H. Cone Mem’l
Hosp., 460 U.S. at 24–25 (emphasis added), the Eighth
Circuit reasoned that it would be inappropriate to consider
16 REVITCH V. DIRECTV
hypothetical horribles in order to find “a way to interpret the
claims as falling outside the scope of the agreements,” Parm,
898 F.3d at 878. Yet here, as we have explained, the issue is
not one of agreement scope, but one of agreement formation.
Within this context, our consideration of hypotheticals
serves an altogether different purpose, and one which very
much does inform the question now before the court. Like
the court in Wexler, 211 F. Supp. 3d at 502–503, we employ
hypotheticals to discern whether the mutual intent of the
parties could have been to form an agreement to arbitrate any
and all disputes that might ever arise between Revitch and
yet-unknown affiliates such as DIRECTV, no matter how
unrelated to AT&T Mobility’s provision of cellular phone
service, including but not limited to the TCPA claim
presented here. Had that been the parties’ intent, as
DIRECTV argues it was, it would necessarily mean that the
parties intended to agree to arbitrate the “tort claim[s]” that
would arise “[i]f [Revitch] were hit by a [DIRECTV]
delivery van, or if [he] tripped over a dangerous condition in
a [DIRECTV] store,” or the “securities-fraud claim” that
would arise if Revitch “bought shares of stock in
[DIRECTV] and later claimed a decrease in share price was
the result of corporate malfeasance.” Id. at 503. These
hypotheticals merely serve to bolster our conclusion that the
parties’ intention—based on their reasonable expectations at
the time of contract—was not to form an arbitration
agreement of the kind that DIRECTV would now have us
read into the contract.
III
No one disputes that arbitration clauses subject to the Act
must be enforced in federal courts. But we are mindful that
arbitration is a matter of consent, and we conclude that
REVITCH V. DIRECTV 17
DIRECTV has failed to establish that Revitch consented to
arbitrate this pending dispute. 4
The district court’s denial of the motion to compel
arbitration is AFFIRMED.
O’SCANNLAIN, Circuit Judge, concurring:
I write separately to expand upon the issue of contract
scope, as distinguished from contract formation. Even if we
consider the question under the rubric of scope, I respectfully
suggest that we would still affirm the denial of the motion to
compel arbitration based on the express language of the
Federal Arbitration Act (“FAA,” or “the Act”) itself. The
dispute between DIRECTV and Revitch in this case simply
does not “aris[e] out of” Revitch’s contract with AT&T
Mobility. 9 U.S.C. § 2.
I
Although our “authority under the [Federal] Arbitration
Act to compel arbitration may be considerable, it isn’t
unconditional.” New Prime Inc. v. Oliveira, 139 S. Ct. 532,
537 (2019). We are bound by the terms of the Act, including
§ 2, which provides: “A written provision in any maritime
transaction or a contract evidencing a transaction involving
commerce to settle by arbitration a controversy thereafter
arising out of such contract or transaction . . . shall be valid,
irrevocable, and enforceable . . . .” 9 U.S.C. § 2 (emphasis
4
Whatever compulsory arbitration rights DIRECTV may have
under California law, see Cal. Civ. Proc. Code § 1281, they are irrelevant
to this appeal. DIRECTV brought its motion to compel arbitration under
federal law, not state law.
18 REVITCH V. DIRECTV
added). Significantly, the controversy that is to be settled by
arbitration must be one “arising out of” the contract or
transaction. By negative implication, the FAA does not
require the enforcement of an arbitration clause to settle a
controversy that does not arise out of the contract or
transaction.
What does it mean that a controversy must be one
“arising out of” the contract or transaction? 1
A
Remarkably, the “arising out of” language in § 2 has
generated little judicial attention. Indeed, in my research thus
far, I have been unable to find any case that explains it. 2 In
1
There may be some ambiguity in § 2’s requirement that the
controversy to be arbitrated must arise out of “such contract or
transaction.” Here, the word “transaction” might refer to a “maritime
transaction” and “contract” to a commercial transaction. However,
“transaction” could also be read to mean the commercial transaction that
is the subject of the contract. The latter interpretation suggests that the
FAA has a broader scope because it encompasses controversies that may
not arise out of the contract but do arise out of the underlying commercial
transaction. A leading paper on this subject argues for the narrower
reading. See Stephen E. Friedman, The Lost Controversy Limitation of
the Federal Arbitration Act, 46 U. Rich. L. Rev. 1005, 1041–44 (2012).
It suggests that if “transaction” referred to the commercial transaction,
“then there would be no reference to controversies arising from the
maritime transaction, even though Congress obviously intended to
include such controversies within the scope of the FAA.” Id. at 1043.
Such issue need not be resolved here, as it likely would not change the
outcome in this case.
2
One of our sister circuits has expressly stated—in direct
contradiction of the text of the statute—that a controversy need not
“aris[e] out of” the contract or transaction for the FAA to apply. In Zink
v. Merrill Lynch Pierce Fenner & Smith, Inc., 13 F.3d 330, 333 (10th
REVITCH V. DIRECTV 19
the absence of such guidance, I have no choice but to look to
other sources.
In the context of an insurance policy, one of our sister
circuits has interpreted “arising out of” to mean “originating
from,” “having its origin in,” “growing out of,” “flowing
from,” and “incident to, or having connection with.” Red
Ball Motor Freight, Inc. v. Emp’rs. Mut. Liab. Ins. Co. of
Wis., 189 F.2d 374, 378 (5th Cir. 1951); see also Rouse v.
Greyhound Rent-A-Car, Inc., 506 F.2d 410, 414 n.3 (5th Cir.
1975) (“The term ‘arising out of’ is ordinarily understood to
mean originating from, incident to, or connected with the
item in question.”). Our Court has relied on this definition
when construing a similar term, “arising from,” in insurance
policies, see Cont’l Cas. Co. v. City of Richmond, 763 F.2d
1076, 1080 (9th Cir. 1985); Underwriters at Lloyd’s of
London v. Cordova Airlines, Inc., 283 F.2d 659, 664 (9th
Cir. 1960), and in a provision of the U.S. Bankruptcy Code,
see In re Tristar Esperanza Props., LLC, 782 F.3d 492, 497
(9th Cir. 2015).
We have held that “arising from” is broad in scope—
broader, even, than the term “caused by.” Cont’l Cas. Co.,
763 F.2d at 1080. However, we have never interpreted either
“arising from” or “arising out of” so broadly such that there
need not be any relationship whatsoever between the original
contract or event and the resulting controversy. In
Mediterranean Enters., Inc. v. Ssangyong Corp., 708 F.2d
Cir. 1993), the Tenth Circuit held that the FAA “cover[s] agreements to
arbitrate a dispute not arising out of the contract containing the
arbitration agreement so long as the other requirements of the Act are
satisfied.” Because “we are obliged to give effect, if possible, to every
word Congress used,” I am not persuaded by the Tenth Circuit’s decision
to ignore the controversy limitation in the text of § 2. Reiter v. Sonotone
Corp., 442 U.S. 330, 339 (1979).
20 REVITCH V. DIRECTV
1458, 1463 (9th Cir. 1983), we held that an arbitration clause
using the language “arising under the contract” does not
encompass “matters or claims independent of the contract or
collateral thereto.” Instead, such an arbitration clause covers
only those disputes “relating to the interpretation and
performance of the contract itself.” Id. at 1464. We later
interpreted the phrase “arising out of” to have the same scope
as “arising under.” Tracer Research Corp. v. Nat’l Envtl.
Servs. Co., 42 F.3d 1292, 1295 (9th Cir. 1994).
Applying these principles to the language of § 2 of the
Act, when it requires that the controversy be one “arising out
of” the contract or transaction, it, at a minimum, must
exclude claims that are completely unrelated to the
underlying contract or transaction.
B
Because the Supreme Court has applied the FAA quite
frequently and in a variety of controversies without ever
addressing the “arising out of” language in § 2, one might
assume that the limitation has fallen into desuetude and that,
consequently, relying on it now would conflict with the
Court’s arbitration jurisprudence. However, in my research
thus far, I have not found that to be the case; instead, it
appears that there is always some relationship between the
controversy and the underlying contract.
For example, in some of the Court’s typical arbitration
cases, the controversy was a defect in contract formation.
The defendant moved to compel arbitration based on a
provision in that same contract. See CompuCredit Corp. v.
Greenwood, 565 U.S. 95, 97 (2012) (individuals who
applied for a credit card accused the credit card company and
bank of making misleading representations about the
benefits of obtaining the card); AT&T Mobility LLC v.
REVITCH V. DIRECTV 21
Concepcion, 563 U.S. 333, 337 (2011) (new customers
accused a wireless services company of false advertising and
fraud).
In other cases, one of the parties allegedly breached a
contract and, when faced with arbitration, asked a court to
declare that the arbitration clause in the contract was
unenforceable. See Nitro-Lift Techs., L.L.C. v. Howard,
568 U.S. 17, 18 (2012) (former employees allegedly violated
their employment contract by working for a competitor);
Preston v. Ferrer, 552 U.S. 346, 350 (2008) (plaintiff
allegedly did not pay fees due under a service contract).
Finally, in many of the Court’s arbitration cases, the
plaintiff sued the defendant for some type of foreseeable
misconduct that occurred during the course of performing
the contract. The defendant then moved to compel
arbitration based on an arbitration clause in that contract. See
Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1620 (2018)
(employer accused of violating the Fair Labor Standards Act
and California law by misclassifying and underpaying its
employees demanded arbitration pursuant to the
employment contracts); Kindred Nursing Ctrs. Ltd. P’ship v.
Clark, 137 S. Ct. 1421, 1425 (2017) (nursing home accused
of delivering substandard care that caused the deaths of
residents demanded arbitration pursuant to the nursing home
service contracts); DIRECTV, Inc. v. Imburgia, 136 S. Ct.
463, 466 (2015) (satellite television services company
accused of charging early termination fees in violation of
California law demanded arbitration pursuant to the service
contract); Am. Express Co. v. Italian Colors Rest., 570 U.S.
228, 231 (2013) (credit card company accused of violating
antitrust laws by forcing merchants to accept significantly
higher rates demanded arbitration pursuant to contracts with
those merchants); Marmet Health Care Ctr., Inc. v. Brown,
22 REVITCH V. DIRECTV
565 U.S. 530, 531–32 (2012) (nursing homes accused of
negligently causing injuries resulting in deaths of residents
demanded arbitration pursuant to nursing home service
contracts); Buckeye Check Cashing, Inc. v. Cardegna,
546 U.S. 440, 442–43 (2006) (lender accused of charging
usurious interest rates in violation of Florida lending and
consumer-protection laws demanded arbitration pursuant to
its loan agreements with the borrowers).
However, I have been unable to locate any case in which
the Supreme Court enforced an arbitration clause when the
underlying claim was wholly unrelated to the contract in
which the clause was contained. Functionally, the “arising
out of” language in § 2 appears to serve as a boundary to the
types of controversies that are covered by the FAA: Federal
courts are required to compel arbitration for those
controversies that actually stem from the contract containing
the arbitration clause. But when the dispute is wholly
unrelated to the contract, the FAA is silent; federal courts
have no power to compel arbitration. See David Horton,
Infinite Arbitration Clauses, 168 U. Pa. L. Rev. 633, 678–83
(2020); Friedman, supra n.1, at 1006.
Focusing on the “arising out of” language as a boundary
to the types of disputes that are covered by the FAA is in
keeping with other guidance that we have received from the
Supreme Court, as well as our own approach to statutory
construction. “Arbitration under the Act is a matter of
consent . . . .” Volt Info. Scis., Inc. v. Bd. of Trs. of Leland
Stanford Junior Univ., 489 U.S. 468, 479 (1989). A party
can hardly be said to consent to arbitrate disputes that have
nothing at all to do with the subject of the contract the party
signed or the provider-customer relationship the contract
creates, let alone a claim against an entity not even in parity
at the time.
REVITCH V. DIRECTV 23
II
So, is Revitch’s Telephone Consumer Protection Act
class action suit against DIRECTV one “arising out of”
Revitch’s wireless services contract with AT&T Mobility
within the meaning of § 2 of the Act? I conclude the answer
is no.
The AT&T Mobility arbitration clause is undoubtedly
written in broad terms, but it resides in the wireless services
form contract that it imposed on Revitch at the time he
upgraded his mobile device. Thus, the pertinent relationship
it covers is that by which AT&T Mobility (or its “affiliates”)
provides Revitch with wireless services. Within this
umbrella, the arbitration clause is indeed broad.
Undoubtedly, it requires arbitration of a host of disputes that
might arise between AT&T and Revitch, including, for
example, defective cell phone reception or failure to pay
monthly charges. But DIRECTV’s decision to send Revitch
unsolicited advertisements for its satellite television
products—thereby allegedly violating the Telephone
Consumer Protection Act—does not in any way involve the
formation or performance of a contract for wireless services
between Revitch and AT&T Mobility.
In my view, we can affirm the district court on the
separate ground that the controversy between DIRECTV and
Revitch does not come within the Federal Arbitration Act
since it does not “aris[e] out of” the contract between
Revitch and AT&T Mobility.
24 REVITCH V. DIRECTV
BENNETT, Circuit Judge, dissenting:
Neither party disputes the existence and validity of the
arbitration clause on which DIRECTV, LLC (“DIRECTV”)
relies. Thus, the issues before us fall squarely within the
second question we consider when analyzing an arbitration
agreement under the Federal Arbitration Act (“FAA”)—
“whether the agreement encompasses the dispute at issue.”
Chiron Corp. v. Ortho Diagnostic Sys., Inc., 207 F.3d 1126,
1130 (9th Cir. 2000). I respectfully dissent because the
arbitration clause’s express terms encompass the parties’
dispute. “Affiliates” in the arbitration clause clearly includes
DIRECTV, so DIRECTV may invoke it to compel
arbitration. Moreover, the Supreme Court has instructed
“that ambiguities about the scope of an arbitration agreement
must be resolved in favor of arbitration.” Lamps Plus, Inc. v.
Varela, 139 S. Ct. 1407, 1418 (2019). Even if some
ambiguity exists, applying this simple rule of construction
leads to the same conclusion—DIRECTV may compel
arbitration here.
I agree with the majority that (1) DIRECTV is currently
an affiliate of AT&T Mobility LLC (“AT&T”) and (2) our
inquiry into whether DIRECTV may enforce the arbitration
clause against Jeremy Revitch requires us to determine
whether the word “affiliates” includes entities who became
affiliates of AT&T after Revitch signed his wireless services
contract. This is where my agreement with the majority ends.
I start with the text of the arbitration clause: “AT&T and
you agree to arbitrate all disputes and claims between us.
This agreement to arbitrate is intended to be broadly
interpreted. It includes, but is not limited to . . . claims arising
out of . . . any aspect of the relationship between us, whether
based in . . . statute . . . or any other legal theory.” The
arbitration clause also provides: “References to ‘AT&T,’
REVITCH V. DIRECTV 25
‘you’ and ‘us’ include our respective subsidiaries, affiliates,
agents, employees, predecessors in interest, successors, and
assigns, as well as all authorized or unauthorized users or
beneficiaries of services or Devices under this or prior
Agreements between us.”
Nothing in the arbitration clause or in the dictionary
definition of the word “affiliate” confers any type of
temporal scope to the term so that “affiliates” should be read
to refer only to present affiliates. 1 DIRECTV is therefore an
affiliate within the explicit language of the arbitration
clause. 2 Because Revitch agreed to arbitrate “all disputes
and claims,” including statutory claims, between him and
DIRECTV, DIRECTV may compel arbitration under the
agreement. Our inquiry should end there. 3
1
See Maj. Op. at 9 (citing Satterfield v. Simon & Schuster, Inc.,
569 F.3d 946, 955 (9th Cir. 2009) (quoting Webster’s Third New
International Dictionary 35 (2002)) and Cal. Corp. Code § 150).
2
The Fourth Circuit recently came to this conclusion when
considering an identical arbitration clause in Mey v. DIRECTV, LLC, __
F.3d __, 2020 WL 4660194 (4th Cir. 2020): “Mey does not advance any
reason we should restrict the ordinary meaning of ‘affiliates’ here, nor
do we find any. The agreement contains no explicit limitation on the term
[affiliates].” Id. at *4.
3
The arbitration clause provides that “AT&T” (defined as including
affiliates like DIRECTV) “may commence an arbitration proceeding.”
Given this express contractual language, we need not resort to different
“operation[s] of law,” as suggested by the majority, to determine whether
DIRECTV may invoke the arbitration agreement. See Maj. Op. at 7–8,
n.2; cf. Spinks v. Equity Residential Briarwood Apts., 90 Cal. Rptr. 3d
453, 473 (Ct. App. 2009) (“Because resort to the contract language alone
does not resolve the question of plaintiff’s status, we look to the
circumstances surrounding the formation and performance of the
[contract].”).
26 REVITCH V. DIRECTV
But even were we to go further, other language in the
arbitration clause shows that the parties did not intend to
place a temporal limitation on “affiliates.” Indeed, the
arbitration clause expressly contemplates coverage of some
persons and entities that were unconnected with AT&T
when Revitch entered into the contract. “[P]redecessors in
interest” looks backward. “[S]uccessors” and “assigns” look
forward. The arbitration clause also refers to other types of
persons and entities that have no explicit temporal
limitations—“subsidiaries,” “agents,” and “employees.” No
one would suggest that the arbitration clause applied only to
those who were, for example, AT&T’s agents or employees
at the time of contracting, as opposed to those who became
AT&T’s agents or employees a week, a month, or several
years later. This language shows that the parties did not
intend for the arbitration clause to cover only entities
connected to AT&T at the time of contracting. 4 Other
language in the arbitration clause also counsels against
construing “affiliates” as temporally limited. Significantly,
the agreement provides: “This agreement to arbitrate is
intended to be broadly interpreted.” Restricting “affiliates”
to only current affiliates at the time of contracting would be
inconsistent with the parties’ express agreement to construe
the arbitration clause broadly. Current affiliates is obviously
less broad than affiliates. The arbitration clause also contains
4
Similar to Revitch, the plaintiff in Mey argued “that ‘affiliates’
should be limited to affiliates existing at the time the contract was
signed.” Mey, 2020 WL 4660194, at *4. The majority in Mey disagreed,
pointing to “successors” and “assigns” as entities “whose identities
cannot be known until some point in the future.” Id. at *5. It also noted
that the identities of affiliates, subsidiaries, agents, and employees “are
subject to change over the period in which a customer uses the service.”
Id. “In light of the forward-looking nature of the agreement, it is unlikely
the parties intended to restrict the covered entities to those existing at the
time the agreement was signed.” Id.
REVITCH V. DIRECTV 27
forward-looking provisions. The arbitration clause applies to
“claims that may arise after the termination of this
Agreement,” and the “arbitration provision shall survive
termination of this Agreement.” These forward-looking
provisions are entirely consistent with interpreting
“affiliates” to include entities like DIRECTV that associated
with AT&T after Revitch contracted with AT&T.
In sum, nothing in the contract language, including the
language surrounding the term “affiliates,” supports
rewriting the contract to import a temporal limit into the
meaning of “affiliates.” DIRECTV, as an affiliate of AT&T,
may therefore enforce the arbitration agreement.
But for argument’s sake, let’s assume that “affiliates”
does not clearly encompass AT&T’s future affiliates. 5 The
above analysis shows that, at the very least, it is reasonable
to read “affiliates” as including future affiliates, given the
ordinary meaning of the term and the context in which it is
used. Let’s then assume that it would also be reasonable to
interpret “affiliates” as referring to only those entities that
were affiliated with AT&T at the time of contracting. Under
this hypothetical, there are two or more reasonable
constructions of “affiliates,” rendering the scope of the term
ambiguous. See Benach v. County of Los Angeles, 57 Cal.
Rptr. 3d 363, 372 (Ct. App. 2007) (“Ambiguity exists when
a contractual provision is susceptible of two or more
reasonable constructions.”).
5
The Fourth Circuit did not address construction arguments related
to ambiguity, because the “ordinary meaning of ‘affiliates” and the
contractual context convince[d the majority] that the term includes
affiliates acquired after the agreement was signed.” Mey, 2020 WL
4660194, at *5.
28 REVITCH V. DIRECTV
The Supreme Court has made it clear that “as with any
other contract, the parties’ intentions control, but those
intentions are generously construed as to issues of
arbitrability.” Mitsubishi Motors Corp. v. Soler Chrysler-
Plymouth, Inc., 473 U.S. 614, 626 (1985). If “the problem at
hand is the construction of the contract language itself,” then
“any doubts concerning the scope of arbitrable issues should
be resolved in favor of arbitration.” Moses H. Cone Mem’l
Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24–25 (1983).
If “affiliates” is ambiguous, then these Supreme Court
commands would require us to construe “affiliates” broadly
as including entities that became affiliated with AT&T after
Revitch and AT&T entered into their contract. See Lamps
Plus, 139 S. Ct. at 1418 (“[A]mbiguities about the scope of
an arbitration agreement must be resolved in favor of
arbitration.”).
The majority avoids this result by incorrectly framing the
issue as one of contract existence and then invoking what it
calls the “absurd-results canon.” 6 First, Revitch does not
dispute the existence of the arbitration agreement, so the
issue before us is one of scope—“whether the agreement
encompasses the dispute at issue.” Chiron Corp., 207 F.3d
at 1130; see also Goldman, Sachs & Co. v. City of Reno,
747 F.3d 733, 742 (9th Cir. 2014) (“Where the arbitrability
of a dispute is contested, we must decide whether the parties
6
The majority asks and then answers the wrong question. It
essentially asks whether Revitch and DIRECTV are parties to a contract.
But DIRECTV never claims it entered into any contract with Revitch—
AT&T entered into the contract with Revitch. The right questions are:
1) Whether Revitch and AT&T entered into a valid arbitration agreement
(answer-Yes); and 2) Whether the scope of that agreement requires
Revitch to arbitrate claims against entities (like DIRECTV) that later
became affiliates of AT&T (answer-Yes).
REVITCH V. DIRECTV 29
are contesting the existence or the scope of an arbitration
agreement.”).
Second, the absurd-results canon cited by the majority
applies only if there is an ambiguity. In Kashmiri v. Regents
of Univ. of Cal., 67 Cal. Rptr. 3d 635 (Ct. App. 2007), the
case cited by the majority, the California Court of Appeal
cited California Civil Code §§ 1638 and 1639 to support its
statement that “[w]here contract language is clear and
explicit and does not lead to absurd results, we normally
determine intent from the written terms alone.” Id. at 652.
The majority also cites California Civil Code §§ 1638 and
1639 to support its application of the absurd-results canon. 7
But the code section immediately preceding those sections
provides: “For the purpose of ascertaining the intention of
the parties to a contract, if otherwise doubtful, the rules given
in this Chapter are to be applied.” Cal. Civ. Code § 1637
(emphasis added). Thus, under California law, the absurd-
results canon comes into play only if there is ambiguity. See
Eaton v. Thieme, 59 P.2d 638, 640 (Cal. Dist. Ct. App. 1936)
(“We emphasize the words of [section 1637] ‘if otherwise
doubtful’ since they plainly exclude the application of the
rules referred to if the intention of the parties to the contract
is plain upon its face.”); see also Kashmiri, 67 Cal. Rptr. 3d
at 660–63 (finding first that the disclaimer language was
ambiguous and then finding it necessary to turn to standard
rules of contract interpretation, including the absurd-results
rule, to determine the parties’ reasonable expectations).
7
California Civil Code § 1638 provides: “The language of a contract
is to govern its interpretation, if the language is clear and explicit, and
does not involve an absurdity.” California Civil Code § 1639 provides:
“When a contract is reduced to writing, the intention of the parties is to
be ascertained from the writing alone, if possible; subject, however, to
the other provisions of this Title.”
30 REVITCH V. DIRECTV
Because “affiliates” unambiguously includes DIRECTV, the
absurd-results canon is inapplicable.
Though I think there is no ambiguity here, even if there
were, we do not first look to California law, we first look to
the FAA and the Supreme Court’s direction: “[T]he FAA
provides the default rule for resolving certain ambiguities in
arbitration agreements. For example, we have repeatedly
held that ambiguities about the scope of an arbitration
agreement must be resolved in favor of arbitration.” Lamps
Plus, 139 S. Ct. at 1418.
The majority’s failure to acknowledge that the Supreme
Court’s direction trumps the California canon is problem
enough. But that is not the most fundamental problem with
the majority’s position. The absurd-results canon, of course,
requires absurdity. This is the supposed absurdity:
Here, absurd results follow from
DIRECTV’s preferred interpretation: Under
this reading, Revitch would be forced to
arbitrate any dispute with any corporate
entity that happens to be acquired by AT&T,
Inc., even if neither the entity nor the dispute
has anything to do with providing wireless
services to Revitch—and even if the entity
becomes an affiliate years or even decades in
the future.
Maj. Op. at 10. The “absurdity” identified by the majority is
being “forced to arbitrate.” Put differently, in the majority’s
view, the absurdity apparently results from Revitch being
forced to give up the rights and benefits of the “superior”
forum—the courtroom and the jury—and to litigate in the
“inferior” arbitral forum. Why else would it be “absurd” for
a party to have agreed to a very broad, forward-looking
REVITCH V. DIRECTV 31
arbitration clause? This application of California’s absurd-
results canon runs afoul of AT&T Mobility LLC v.
Concepcion, 563 U.S. 333 (2011), as the majority applies the
canon “in a fashion that disfavors arbitration.” Id. at 341. 8
In sum, the majority’s reliance on California’s absurd-
results canon is problematic for several reasons. First, the
canon applies only if there is an ambiguity. Because
“affiliates” clearly includes future affiliates, there is no
ambiguity, and the canon is inapplicable. Second, even
assuming “affiliates” is ambiguous, the canon is inapplicable
because the Supreme Court has instructed that “the FAA
provides the default rule” in construing ambiguities about
the scope of arbitration agreements and that we must
“resolve[] [those ambiguities] in favor of arbitration.” Lamps
Plus, 139 S. Ct. at 1418. Finally, the majority’s application
of the canon contravenes Supreme Court precedent as it
applies the rule in a way that disfavors arbitration. See
Concepcion, 563 U.S. at 341–42.
For these reasons, I respectfully dissent.
8
The majority’s discussion of hypotheticals confirms that it invokes
a canon of construction “in a fashion that disfavors arbitration,” running
afoul of Concepcion, 563 U.S. at 341. See Maj. Op. at 16. Indeed, the
conclusion that Revitch could not have intended to agree to a broad
arbitration clause must stem from the inappropriate view that Revitch
could not have agreed to a broad arbitration clause because the arbitral
forum is “inferior” to the courtroom.