J.P. Morgan Chase Bank, N.A. v. Jeffrey McDonald , 760 F.3d 646 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-2635
J.P. MORGAN CHASE BANK, N.A.
and J.P. MORGAN SECURITIES, LLC,
Plaintiffs-Appellants,
v.
JEFFREY B. MCDONALD
and SHELLI A. MCDONALD,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11 CV 6902 — James B. Zagel, Judge.
____________________
ARGUED DECEMBER 9, 2013 — DECIDED JULY 25, 2014
____________________
Before WILLIAMS, SYKES, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. Businesses often seek to bind
customers to arbitration agreements because they view arbi-
tration as more efficient and predictable than going to court.
In an unusual role reversal, this case features a large compa-
ny trying its best to avoid arbitration with two of its former
customers. That company, J.P. Morgan Chase Bank, has sued
2 No. 13-2635
its former investment account holders, Jeffrey and Shelli
McDonald, in federal district court to stop them from arbi-
trating a dispute against an affiliate of the Bank and two
Bank employees, but not against the Bank.
The district court dismissed the Bank’s case, finding (a)
that the Bank lacked standing to block the arbitration to
which it was not a party and (b) that the two Bank employ-
ees named in the arbitration were indispensable parties to
the federal lawsuit. (One of the employees could not be
joined without defeating the court’s diversity jurisdiction.)
We reverse and remand. The Bank has standing to sue be-
cause the arbitration would violate a forum-selection clause
in the relevant contract with the McDonalds. The McDonalds
cannot avoid that forum-selection clause by the tactic of
naming only an affiliate of the Bank and the two Bank em-
ployees as respondents in the arbitration. We also find that
the two employees are not required parties to this federal
lawsuit. Our decision should not be understood as touching
the merits of the McDonalds’ substantive claims. This appeal
is limited to forum selection.
I. Factual and Procedural Background
This case stems from investment losses the McDonalds
suffered during the recent financial crisis. The couple
opened two accounts with J.P. Morgan entities in July 2007:
an investment account with J.P. Morgan Chase Bank itself
(we call it “the Bank” here) and a brokerage account with J.P.
Morgan Securities (“JPMS”), the Bank’s affiliated securities
dealer. Different contracts governed the two accounts, and
those contracts specified different means of resolving dis-
putes about each account. Those differences control the out-
come of this appeal.
No. 13-2635 3
The Bank managed the money in the McDonalds’ in-
vestment account with the Bank itself, while the McDonalds
directed the funds in their JPMS brokerage account. By the
end of 2008, the McDonalds had lost approximately $1.5 mil-
lion, about a quarter of their initial nest egg. The losses came
entirely from the investment account run by the Bank. The
small portion of their money that the McDonalds held in
their brokerage account with JPMS seems to have actually
produced a profit.
The McDonalds filed an arbitration demand in August
2011 alleging breach of fiduciary duty, self-dealing, and oth-
er forms of misrepresentation and mismanagement. They
did not name the Bank as a respondent in the arbitration. In-
stead, they named only JPMS and two employees of the
Bank, Erin Ohlms and John Perry, who set up and oversaw
the McDonalds’ accounts. The McDonalds claimed that
Ohlms and Perry ignored their stated investment goals by
putting nearly all their money in an illiquid proprietary
hedge fund from which they could not withdraw it until
months after the financial markets plummeted in September
2008. The arbitration claim charged JPMS (not the Bank)
with vicarious liability for failing to supervise its agents.
The parties agree that arbitration is appropriate for dis-
putes stemming from the McDonalds’ brokerage account
with JPMS, which is registered with the Financial Industry
Regulatory Authority, as are Ohlms and Perry for that mat-
ter. FINRA is an industry self-regulatory organization, and
under its rules JPMS, Ohlms, and Perry were subject to arbi-
tration at the McDonalds’ request. See FINRA Rule 12200,
available at http://finra.complinet.com (“Parties must arbi-
trate a dispute” if customer requests arbitration and “dis-
4 No. 13-2635
pute arises in connection with the business activities” of
FINRA member or registered representative); see generally
Aslin v. FINRA, Inc., 704 F.3d 475, 476 (7th Cir. 2013) (describ-
ing scope and origins of FINRA’s authority). This obligation
is reiterated in the contract governing the McDonalds’ JPMS
brokerage account, which provided that disputes “arising
out of or relating to” the account were to be arbitrated. That
same section of the contract, however, began with a promi-
nent warning that the arbitration language applied only to
accounts held with JPMS and “not to any other account at
JPMorgan Private Bank.” The Bank itself is not a member of
FINRA and is not subject to its arbitration rules.
The McDonalds’ separate investment account with the
Bank was governed by a separate set of contracts. They did
not provide for arbitration. They included a forum-selection
clause. The clause stated that the parties would “submit to
the exclusive jurisdiction of any federal or state court located
in the county where the office holding my Account is situat-
ed for all legal proceedings arising out of this Agreement.”
Because the account with the Bank was managed from Chi-
cago, this language required the McDonalds to litigate any
dispute concerning their account with the Bank in a state or
federal court located in Cook County, Illinois.
After the McDonalds made their demand for arbitration,
the Bank sought to enforce the forum-selection clause by fil-
ing this suit against the McDonalds in federal district court
in Chicago. JPMS was also a plaintiff, but Ohlms and Perry
were not. If Perry were a plaintiff, he would have defeated
diversity jurisdiction because he, like the McDonalds, is a
citizen of Indiana. The Bank asked the district court for a
declaration that it had not breached any duty to the McDon-
No. 13-2635 5
alds and was not liable for the losses to their account with
JPMS. Both plaintiffs also sought an injunction prohibiting
the McDonalds from pursuing their ongoing arbitration ac-
tion against JPMS, Ohlms, and Perry.
The district court initially granted a preliminary injunc-
tion blocking the arbitration. Six months later, however, the
district court dismissed the Bank’s claim for declaratory re-
lief. The court found that any case or controversy between
the Bank and the McDonalds over losses to the investment
account was not sufficiently imminent or concrete to warrant
a declaratory judgment. See MedImmune, Inc. v. Genentech,
Inc., 549 U.S. 118, 127 (2007). At that time, the McDonalds
had not brought an action against the Bank itself. They did
so shortly afterward, in an Illinois state court, although that
case has since been dismissed. The McDonalds have also
sued JPMS, Ohlms, and Perry in an Indiana state court to
compel arbitration. That case remains pending.
After dismissing the Bank’s claim for declaratory relief,
the court dismissed the Bank for lack of standing, finding
that it could not seek to halt an arbitration to which it was
not a party. The court then dismissed the rest of the lawsuit
on the ground that the Bank and JPMS had failed to join
Ohlms and Perry, who the court held were both required
and indispensable parties under Federal Rule of Civil Proce-
dure 19 because it could not enjoin the arbitration in their
absence. The Bank and JPMS have appealed.
II. Analysis
A. Standing to Enforce the Forum-Selection Clause
We begin with the issue of the Bank’s Article III standing
to bring this suit. Standing requires that the plaintiff estab-
6 No. 13-2635
lish an “injury in fact” caused by the defendant and redress-
able by the court. Sprint Communications Co. v. APCC Servs.,
Inc., 554 U.S. 269, 273–74 (2008). This showing is not meant
to be a difficult one, particularly at the pleading stage, but
the injury in fact must be particular to the plaintiff and either
“actual or imminent.” Lujan v. Defenders of Wildlife, 504 U.S.
555, 560 (1992). The district court reasoned that even if the
McDonalds’ attempt to arbitrate with JPMS, Ohlms, and Per-
ry violated their contract with the Bank, the Bank did not
suffer any injury in fact because it was not itself named as a
party to the arbitration.
Before considering this reasoning, we first address the
McDonalds’ threshold argument that the arbitration did not
concern a dispute “arising out of” their agreement with the
Bank so that the forum-selection clause is not implicated at
all and the Bank has suffered no injury. The McDonalds im-
plausibly assert that the arbitration concerns only the re-
spondents’ duties as FINRA members and is entirely unre-
lated to the investment account they held with the Bank. But
the McDonalds’ FINRA claim concerns $1.5 million in losses
in that account with the Bank. The phrase “arising out of”
easily encompasses that dispute. See Abbott Labs. v. Takeda
Pharm. Co., 476 F.3d 421, 424 (7th Cir. 2007) (claim for breach
of fiduciary duty arose out of parties’ contract); Omron
Healthcare, Inc. v. Maclaren Exports Ltd., 28 F.3d 600, 603 (7th
Cir. 1994) (“all disputes the resolution of which arguably de-
pend on the construction of an agreement ‘arise out of’ that
agreement” for purposes of a forum-selection clause). The
forum-selection clause controls where the McDonalds can
bring their claim.
No. 13-2635 7
The McDonalds’ attempt to arbitrate appears to have vio-
lated the clause of their contract with the Bank, and the
Bank’s claim of the violation is enough to give the Bank
standing to bring this action to enforce the clause. Formation
of a bilateral contract requires each party to take on one or
more legally binding obligations in exchange for the other
party doing the same. When one party fails to honor its
commitments, the other party to the contract suffers a legal
injury sufficient to create standing even where that party
seems not to have incurred monetary loss or other concrete
harm. E.g., Hydrite Chem. Co. v. Calumet Lubricants Co., 47
F.3d 887, 891 (7th Cir. 1995) (noting that a victim of breach
can sue for nominal damages); 3 E. Allan Farnsworth,
Farnsworth on Contracts § 12.8, p. 189 (2004).
In this respect, breach of a forum-selection clause is no
different from breach of other contractual provisions. See
Northwestern Nat’l Ins. Co. v. Donovan, 916 F.2d 372, 375–76
(7th Cir. 1990) (courts should “treat a forum selection clause
basically like any other contractual provision” and enforce it,
absent ordinary contract defenses such as fraud or mistake).
As the Supreme Court recently emphasized, a forum-
selection clause “may have figured centrally in the parties’
negotiations and may have affected how they set monetary
and other contractual terms; it may, in fact, have been a criti-
cal factor in their agreement to do business together in the
first place. In all but the most unusual cases, therefore, ‘the
interest of justice’ is served by holding parties to their bar-
gain.” Atlantic Marine Constr. Co. v. U.S. Dist. Court for West-
ern Dist. of Texas, 134 S. Ct. 568, 583 (2013); see also Carnival
Cruise Lines, Inc. v. Shute, 499 U.S. 585, 595 (1991). The Bank’s
allegation that the McDonalds violated the terms of this bar-
gain when they chose a forum other than a court in Cook
8 No. 13-2635
County to litigate a dispute arising out of their account with
the Bank is sufficient to give the Bank standing.
In this case, the question is not one of abstract principle.
The Bank has a very real financial interest in the arbitration
for a simple reason. It will ultimately foot the bill. The Bank
will have to indemnify its employees Ohlms and Perry for all
costs resulting from the arbitration. This obligation is both
written into the Bank’s bylaws and imposed externally by
state statute, see 805 Ill. Comp. Stat. 5/8.75 (requiring indem-
nification where employee successfully defends suit; permit-
ting it in other cases); Ind. Code § 23-1-37-13 (requiring in-
demnification for corporate directors and officers; permitting
it for employees), as well as by background principles of
agency law, see Admiral Oriental Line v. United States, 86 F.2d
201, 202 (2d Cir. 1936) (L. Hand, J.); Restatement (Third) of
Agency § 8.14 cmt. b (principal has duty to indemnify agent
for “litigation-related expenses”).
The McDonalds accept the general proposition that a fo-
rum-selection clause can be invoked by a contracting party
when that party itself has been hauled into the wrong court.
The defendant in such cases can move the court to dismiss or
transfer the action to the appropriate venue. See Atlantic Ma-
rine, 134 S. Ct. at 579–80; IFC Credit Corp. v. Aliano Bros. Gen.
Contractors, Inc., 437 F.3d 606, 610 (7th Cir. 2006). The
McDonalds argue that their case is different because they are
not seeking to force their contractual counterpart, the Bank,
into the wrong forum. They have instead pursued other par-
ties—employees and an affiliated company—who did not
themselves sign the contract with the forum-selection clause.
This distinction makes no difference to the Bank’s stand-
ing. As explained above, the dispute “arises out of” the in-
No. 13-2635 9
vestment account agreement with the Bank because that ac-
count was the source of the McDonalds’ financial losses. The
McDonalds were contractually obligated to resolve that dis-
pute in the proper forum.
The Bank does not lose standing to enforce this obliga-
tion simply because other persons arguably played a role in
the alleged breach. That will often be the case, for example,
in suits to enforce non-compete or exclusivity clauses, see,
e.g., Outsource International, Inc. v. Barton, 192 F.3d 662, 665–
66 (7th Cir. 1999) (enforcing non-compete clause against
former employee who started competing business and hired
away former co-workers); Walgreen Co. v. Sara Creek Property
Co., 966 F.2d 273, 274 (7th Cir. 1992) (enjoining mall land-
lord’s lease with new commercial tenant that violated exclu-
sivity clause), or suits to block the sale of land or unique
goods that the defendant has promised to another buyer, see,
e.g., Kalinowski v. Yeh, 847 P.2d 673, 676 (Haw. App. 1993) (en-
forcing condominium sales contract despite seller having
contracted with second buyer); R. L. Kimsey Cotton Co. v. Fer-
guson, 214 S.E.2d 360, 363 (Ga. 1975) (ordering specific per-
formance for sale of unique goods).
This case for standing is even stronger. A forum-selection
clause with a company would be worth little if it could be
avoided by merely pursuing the company’s affiliate or its
employees as individuals. Our decision in American Patriot
Insurance Agency, Inc. v. Mutual Risk Management, Ltd., 364
F.3d 884 (7th Cir. 2004), makes clear that the McDonalds’ ob-
ligations could not be so easily avoided. That case involved a
number of affiliated insurance companies that entered into a
web of contracts with the plaintiff. The plaintiff sued some
but not all of the insurers. We allowed the named defendants
10 No. 13-2635
to enforce a forum-selection clause contained in one of the
contracts even though none of the defendants were signato-
ries to that particular document. The contracts, we ex-
plained, functioned as a package. If a plaintiff could “defeat
a forum-selection clause by its choice of provisions to sue on,
of legal theories to press, and of defendants to name in the
suit,” then “such clauses would be empty.” Id. at 888; see al-
so Frietsch v. Refco, Inc., 56 F.3d 825, 827–28 (7th Cir. 1995);
Hugel v. Corp. of Lloyd’s, 999 F.2d 206, 209–10 (7th Cir. 1993).
That reasoning is equally applicable here, where the Bank
signed the particular contract at issue but was not itself
named as a respondent in the McDonalds’ arbitration de-
mand.
The Second Circuit dealt with an even more closely anal-
ogous situation in Wachovia Bank, N.A. v. VCG Special Oppor-
tunities Master Fund, Ltd., 661 F.3d 164 (2d Cir. 2011). VCG, a
hedge fund, entered into a credit default swap with Wa-
chovia Bank. VCG later initiated FINRA arbitration against a
bank subsidiary, claiming the subsidiary had fraudulently
induced it to make the deal. Wachovia Bank and its subsidi-
ary sued to enforce a “non-reliance” clause in the bank’s con-
tract with VCG prohibiting VCG from claiming reliance on
representations by the subsidiary. VCG argued that the bank
had no standing to enforce the clause because it was not it-
self named in the arbitration. Not surprisingly, the district
court held, in reasoning adopted by the Second Circuit, that
the bank had standing because “VCG deprived Wachovia
Bank of the benefit of a bargained-for provision of their cred-
it default swap agreement” when it sought to arbitrate
against the subsidiary. Wachovia Bank, 888 F. Supp. 2d 380,
383 (S.D.N.Y. 2012), aff'd, 518 F. App'x 44 (2d Cir. 2013). This
No. 13-2635 11
reasoning is sound and every bit as applicable to this con-
tract between the McDonalds and the Bank.
B. Bank Employees are Not Required Parties
The Bank and JPMS also challenge the district court’s de-
cision to dismiss the rest of the suit under Federal Rule of
Civil Procedure 12(b)(7) for failure to join Ohlms and Perry
as plaintiffs under Rule 19. The court concluded that the two
employees were required parties under Rule 19(a) because it
could not enjoin the arbitration against them absent their
presence in the lawsuit, and thus could not “accord complete
relief among existing parties.” Rule 19(a)(1)(A). Continuing
on to Rule 19(b), the court determined that Ohlms and Perry
were indispensable parties and thus the litigation should not
be allowed to proceed without them. We do not reach the
district court’s reasoning on Rule 19(b). We hold that Ohlms
and Perry were not required parties under Rule 19(a).
Nothing prevented the district court from according
complete relief between the parties before it in the form of an
injunction against the McDonalds not to arbitrate any claim
for losses to their account with the Bank. That such an in-
junction might incidentally affect persons who are not par-
ties to this litigation (such as employees of the party) is of
course unremarkable. The rule that courts limit the scope of
injunctive relief to the case or controversy actually before
them, see Hills v. Gautreaux, 425 U.S. 284, 293–94 (1976)
(sketching “basic limitations on the exercise of the equity
power of the federal courts”); PepsiCo, Inc. v. Redmond, 54
F.3d 1262, 1272 (7th Cir. 1995), will not be broken in this in-
stance by an injunction preventing one party from violating
its contractual obligation to the other party.
12 No. 13-2635
A person may also be considered a required party if “that
person claims an interest relating to the subject of the action”
and that interest will either be endangered by going forward
in her absence or else will threaten to whipsaw an existing
party with inconsistent obligations. Rule 19(a)(1)(B). The dis-
trict court did not cite these grounds in its opinion, and nei-
ther applies to Ohlms and Perry. To the extent the employees
have an interest in the present lawsuit, it is identical to their
employer’s: an end to the arbitration. This interest will there-
fore be protected whether or not the individual employees
are parties to this suit. See Washington v. Daley, 173 F.3d 1158,
1167 (9th Cir. 1999) (“As a practical matter, an absent party’s
ability to protect its interest will not be impaired by its ab-
sence from the suit where its interest will be adequately rep-
resented by existing parties to the suit.”); see also Dixon v.
Edwards, 290 F.3d 699, 714 (4th Cir. 2002).
Counsel for the McDonalds suggested at oral argument
that the employees’ interests may differ from their employ-
er’s in that Ohlms and Perry might prefer confronting the
McDonalds in arbitration rather than in federal court. (The
features of arbitration that make it attractive to corporate de-
fendants facing consumer claimants are many and can in-
clude the presence of an industry representative among the
arbiters, secrecy, limits on discovery and evidence, and
speed.) But that is not the choice Ohlms and Perry face. If the
arbitration is enjoined, they won’t have to arbitrate or liti-
gate, at least in federal court. The sole forum in which Ohlms
and Perry will have to appear is the parallel state court suit
brought by the McDonalds in Indiana—where the employ-
ees, like their employer here, are fighting attempts to compel
arbitration.
No. 13-2635 13
In short, there is no reason the individual employees
need to be named parties to this lawsuit between their em-
ployer and its customers. The McDonalds remain free to
pursue claims concerning the losses to their investment ac-
count with the Bank, but they will have to do so in a state or
federal court in Cook County. They can also seek arbitration
of any claims they have arising from their brokerage account
with JPMS. But under the terms of the separate contracts
they signed with the separate companies—the Bank and
JPMS—the McDonalds cannot confuse the two. The district
court’s decisions dismissing the Bank for lack of standing
and dismissing the rest of the action for failure to join re-
quired and indispensable parties are REVERSED and the
case is REMANDED for further proceedings consistent with
this opinion, including possible reinstatement of injunctive
relief against the arbitration demanded by the McDonalds.