Move, Inc. v. Citigroup Global Markets, Inc. , 840 F.3d 1152 ( 2016 )


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  •                        FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    MOVE, INC.,                                     No. 14-56650
    Plaintiff-Appellant,
    D.C. No.
    v.                        2:14-cv-04418-JFW-E
    CITIGROUP GLOBAL
    MARKETS, INC.,                                    OPINION
    Defendant-Appellee.
    Appeal from the United States District Court
    for the Central District of California
    John F. Walter, District Judge, Presiding
    Argued and Submitted October 4, 2016
    Pasadena, California
    Filed November 4, 2016
    Before: Dorothy W. Nelson and Richard A. Paez, Circuit
    Judges, and Elaine E. Bucklo,* Senior District Judge.
    Opinion by Judge D.W. Nelson
    *
    The Honorable Elaine E. Bucklo, Senior United States District Judge
    for the Northern District of Illinois, sitting by designation.
    2           MOVE V. CITIGROUP GLOBAL MARKETS
    SUMMARY**
    Arbitration
    The panel reversed in part the district court’s judgment
    dismissing an action and denying a motion to vacate an
    arbitration award pursuant to the Federal Arbitration Act.
    The plaintiff sought to vacate an arbitration award by a
    Financial Industry Regulatory Authority (FINRA) panel. The
    court of appeals panel held that the plaintiff’s motion was not
    untimely because the Federal Arbitration Act is subject to
    equitable tolling. The panel also held that the plaintiff’s right
    to a fundamentally fair hearing was prejudiced by the
    fraudulent misrepresentations of the arbitration panel’s
    chairperson, resulting in proceedings led by an arbitrator who
    should have been disqualified from the dispute under the
    rules and regulations of FINRA.
    The panel reversed the district court’s judgment in part
    and remanded for entry of judgment in favor of the plaintiff.
    **
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    MOVE V. CITIGROUP GLOBAL MARKETS                 3
    COUNSEL
    Susan J. Williams (argued), Hennelly & Grossfeld LLP,
    Marina del Rey, California, for Plaintiff-Appellant.
    Fred Anthony Rowley, Jr. (argued) and Marc T.G. Dworsky,
    Munger Tolles & Olson LLP, Los Angeles, California;
    Achyut J. Phadke, Munger Tolles & Olson LLP, San
    Francisco, California; for Defendant-Appellee.
    OPINION
    D.W. NELSON, Senior Circuit Judge:
    Move, Inc. (Move) appeals the district court’s order
    dismissing its action and denying its motion to vacate an
    arbitration award pursuant to the Federal Arbitration Act
    (FAA), 9 U.S.C. § 1 et seq. We have jurisdiction pursuant to
    9 U.S.C. § 16(a)(3) and 28 U.S.C. § 1291. We hold that
    Move’s motion was not untimely because the FAA is subject
    to equitable tolling. We also hold that Move’s right to a
    fundamentally fair hearing was prejudiced by the fraudulent
    misrepresentations of the arbitration panel’s chairperson,
    resulting in proceedings led by an arbitrator who should have
    been disqualified from the dispute under the rules and
    regulations of the Financial Industry Regulatory Authority
    (FINRA). Accordingly, we REVERSE the district court’s
    judgment in part and REMAND the case for entry of
    judgment in favor of Move.
    4         MOVE V. CITIGROUP GLOBAL MARKETS
    BACKGROUND
    Move maintained an investment account with Citigroup
    Global Markets, Inc. (Citigroup). In connection with its
    investments, Move entered into a “Client Agreement” with
    Citigroup stating, in relevant part, that “all claims or
    controversies . . . shall be determined by arbitration before,
    and only before, any self-regulatory organization or exchange
    of which [Citigroup] is a member.”
    On September 16, 2008, Move commenced arbitration
    proceedings before a three-member FINRA panel, alleging
    that Citigroup mismanaged $131 million of Move’s funds by
    investing in speculative auction rate securities. Before
    initiating the proceedings, FINRA required Move and
    Citigroup to sign a “Uniform Submission Agreement,” which
    stated that the dispute was submitted to arbitration “in
    accordance with the Constitution, By-Laws, Rules,
    Regulations, and/or Code of Arbitration Procedure of
    [FINRA].” FINRA’s Code of Arbitration Procedure for
    Customer Disputes, found in FINRA Rules 12000–12905,
    includes Rule 12401(c), which required Move’s claims to be
    arbitrated by a panel of three arbitrators.
    Pursuant to Rule 12403, FINRA provided the parties with
    a list of thirty proposed arbitrators and their employment
    histories, including ten proposed arbitrators from FINRA’s
    chairperson roster. Because the dispute involved a complex
    securities issue, it was important to Move that the person
    selected as chairperson be an experienced attorney. Move
    ranked “James H. Frank” first who, according to the FINRA
    Arbitrator Disclosure Report (ADR), received a law degree
    from Southwestern University in 1975 and was licensed to
    practice law in California, New York, and Florida. Pursuant
    MOVE V. CITIGROUP GLOBAL MARKETS                    5
    to FINRA rules and regulations, arbitrators must affirm that
    their ADR is accurate and up to date. FINRA also informs
    arbitrators that a failure to disclose material information in
    the arbitrator profile may result in permanent disqualification.
    Mr. Frank subsequently served as the chairperson of the
    panel along with Arthur T. Berggren, a licensed attorney, and
    Daniel R. Brush, a Certified Public Accountant and Certified
    Financial Planner. On December 8, 2009, after conducting
    six pre-hearing conferences and twenty hearing sessions, the
    FINRA panel issued a unanimous award denying Move’s
    claims.
    Over four years later, on March 26, 2014, Move learned
    from an article in The AmLaw Litigation Daily that Mr. Frank
    had lied about being a licensed attorney. It is now undisputed
    that Mr. Frank, who is “James Hamilton Hardy Frank,” was
    impersonating retired California attorney “James Hamilton
    Frank.” FINRA later confirmed that Mr. Frank lied about his
    qualifications in his ADR and subsequently removed him
    from all cases and from its roster.
    Move filed a complaint on June 9, 2014, and a motion to
    vacate the arbitration award on June 17, 2014. Move argued
    that vacatur was warranted under 9 U.S.C. § 10(a)(3) and (4)
    of the FAA because of Mr. Frank’s misrepresentations.
    Although 9 U.S.C. § 12 provides that notice of a motion to
    vacate an arbitration award must be served within three
    months after the award is delivered, Move argued the
    deadline should be equitably tolled. Citigroup moved to
    dismiss, arguing that equitable tolling is unavailable under the
    FAA and that, even if it were, Move failed to demonstrate
    tolling was justified. Citigroup further argued that, even if
    6         MOVE V. CITIGROUP GLOBAL MARKETS
    the limitations period were tolled, vacatur was unjustified on
    the merits.
    The district court denied Move’s motion to vacate and
    granted Citigroup’s motion to dismiss. Noting that equitable
    tolling under the FAA presented an “unsettled question of
    law” in this circuit, the court ruled that equitable tolling is
    available, but that Move failed to demonstrate an adequate
    ground for vacatur under the FAA. Specifically, the court
    explained that (1) Mr. Frank’s misbehavior did not prejudice
    Move’s rights to a fundamentally fair hearing as required by
    § 10(a)(3); and (2) the panel did not exceed its powers in
    violation of § 10(a)(4) because Mr. Frank’s deceit, if
    cognizable at all under that section, did not violate Move’s
    contractual rights under its Client Agreement with Citigroup.
    Move timely appealed.
    STANDARD OF REVIEW
    We review de novo a district court’s denial of a motion to
    vacate an arbitration award. See, e.g., United States v. Park
    Place Assocs., 
    563 F.3d 907
    , 918 (9th Cir. 2009). We also
    review de novo a district court’s dismissal of a complaint for
    failure to state a claim under Federal Rule of Civil Procedure
    12(b)(6). See, e.g., N.M. State Inv. Council v. Ernst & Young
    LLP, 
    641 F.3d 1089
    , 1094 (9th Cir. 2011).
    ANALYSIS
    The FAA requires that notice of a motion to vacate an
    arbitration award must be served within three months after
    the award is filed or delivered. 10 U.S.C. § 12. Because
    Move’s motion to vacate was filed over four years after the
    three month statutory window closed, we must first determine
    MOVE V. CITIGROUP GLOBAL MARKETS                     7
    whether the doctrine of equitable tolling applies to the FAA,
    such that the motion is not time-barred. We hold that it does.
    We also hold that Move’s right to a fundamentally fair
    hearing under § 10(a)(3) was prejudiced by the arbitral
    misconduct of the panel’s chairperson, Mr. Frank. The
    district court therefore erred in denying Move’s motion to
    vacate the award.
    A. Equitable Tolling
    Although this Court has not yet decided whether equitable
    tolling applies to the FAA, the district court held that it does.
    We agree.
    The closest we have come to deciding this issue was in
    Lafarge Conseils et Etudes, S.A. v. Kaiser Cement & Gypsum
    Corp., 
    791 F.2d 1334
    (9th Cir. 1986). There, we were
    presented with the narrow question of whether Kaiser could
    revive an unsuccessful motion to vacate an arbitration award
    “by way of a Rule 60(b) motion with a claim of newly
    discovered evidence.” 
    Id. at 1338.
    In affirming the denial of
    Kaiser’s motion, we observed that “the three-month notice
    requirement of section 12 . . . would be meaningless if a party
    to the arbitration proceeding could bring an independent
    action asserting such claims outside of the statutory time
    period provided in section 12.” 
    Id. (emphasis added)
    (internal citations, brackets, and quotation marks omitted).
    However, equitable tolling was neither raised nor specifically
    addressed in that case. Accordingly, Lafarge does not govern
    the outcome of the case now before us.
    Furthermore, as the district court noted, the case law from
    other circuits is conflicting and most circuits—including this
    circuit—have declined to definitively rule on whether
    8         MOVE V. CITIGROUP GLOBAL MARKETS
    equitable tolling applies to the FAA. See Garrett v. Merrill
    Lynch, Pierce, Fenner & Smith, Inc., 
    7 F.3d 882
    , 883 n.1 (9th
    Cir. 1993) (“[Petitioner] asks that we permit his late petition
    under the doctrine of equitable tolling. Because we find that
    the district court correctly dismissed the petition on a
    jurisdictional basis, we need not reach this issue.”); see also
    Fradella v. Petricca, 
    183 F.3d 17
    , 21 (1st Cir. 1999); Taylor
    v. Nelson, 
    788 F.2d 220
    , 225–26 (4th Cir. 1986); Piccolo v.
    Dain, Kalman & Quail, Inc., 
    641 F.2d 598
    , 601 (8th Cir.
    1981) (declining to decide if equitable tolling applies to the
    FAA); Pfannenstiel v. Merrill Lynch, Pierce, Fenner &
    Smith, 
    477 F.3d 1155
    , 1158 (10th Cir. 2007) (stating that
    equitable tolling suspends the running of a statute, unless
    Congress provides to the contrary, but finding equitable
    tolling inapplicable under the facts of the case); but see Cigna
    Ins. Co. v. Huddleston, No. 92-1252, 
    1993 WL 58742
    , at *11
    (5th Cir. Feb. 16, 1993) (per curiam) (unpublished) (holding
    that equitable tolling does not apply to the FAA). Deciding
    this question as a matter of first impression in this circuit, we
    now hold that the FAA is subject to equitable tolling.
    “It is hornbook law that limitations periods are
    customarily subject to equitable tolling . . . unless tolling
    would be inconsistent with the text of the relevant statute.”
    Young v. United States, 
    535 U.S. 43
    , 49 (2002) (internal
    citations and quotation marks omitted). Accordingly,
    “Congress must be presumed to draft limitations periods in
    light of this background principle,” 
    id. at 49–50,
    and the
    rebuttable presumption that limitations periods are subject to
    equitable tolling must be overcome by the text or purpose of
    a statute, see, e.g., Irwin v. Dep’t of Veterans Affairs,
    
    498 U.S. 89
    , 95–96 (1990); John R. Sand & Gravel Co. v.
    United States, 
    552 U.S. 130
    , 138 (2008). We agree with the
    district court and conclude that neither the text, nor the
    MOVE V. CITIGROUP GLOBAL MARKETS                            9
    structure, nor the purpose of the FAA is inconsistent with
    equitable tolling.
    First, the Supreme Court has instructed lower courts to
    consider several textual factors to determine whether
    Congress intended for tolling not to apply to a given statute.
    This includes whether a limitations period is set forth in
    “unusually emphatic form,” is “unusually generous,” or uses
    “highly detailed” and “technical” language, and whether the
    statute “reiterat[ed] the limitations period several times in
    several different ways.” Holland v. Florida, 
    560 U.S. 631
    ,
    646–47 (2010) (internal quotation marks omitted). None of
    these factors weigh in favor of foreclosing equitable tolling
    under the FAA.
    Here, the FAA’s instruction that notice of a motion to
    vacate “must be served” within three months is neither
    “unusually generous” nor “unusually emphatic.” See Socop-
    Gonzalez v. I.N.S., 
    272 F.3d 1176
    , 1191 (9th Cir. 2001)
    (recognizing that 8 C.F.R. § 3.2(c)(2) requiring a motion to
    reopen immigration proceedings “be filed no later than 90
    days” after a rendered decision is not unusually generous or
    emphatic); Kwai Fun Wong v. Beebe, 
    732 F.3d 1030
    , 1038
    (9th Cir. 2013) (holding that the phrase “forever barred” is
    not “unusually emphatic”); cf. United States v. Beggerly,
    
    524 U.S. 38
    , 48–49 (1998) (holding that a twelve-year
    limitations period is unusually generous).1 Furthermore, the
    1
    Citigroup makes an inapposite comparison to Hall Street Associates
    v. Mattel, Inc., where the Supreme Court explained that § 9 of the
    FAA—which states that a court “must grant” a motion to confirm an
    award within one year after the award is made—“carries no hint of
    flexibility.” 
    552 U.S. 576
    , 587 (2008). However, the equitable tolling of
    a limitations period was not at issue in that case. The Court only decided
    10         MOVE V. CITIGROUP GLOBAL MARKETS
    FAA’s limitations period is neither detailed nor technical and
    is not reiterated elsewhere in the statute. Accordingly, the
    text of the statute does not preclude equitable tolling.
    Second, the FAA’s structure is not incompatible with
    equitable tolling. Citigroup argues that the “interlocking
    structure” of the FAA precludes tolling, pointing to § 9 of the
    FAA, which provides one year for a party to file a motion to
    confirm an award. According to Citigroup, allowing vacatur
    more than a year after an award is issued would upset the
    statutory scheme by overturning a court’s decision to confirm
    that award. However, as the district court emphasized, a
    moving party would still need to meet the heavy burden of
    establishing its entitlement to equitable tolling for a court to
    vacate an award, and it would only be the rare case in which
    the three-month deadline for a motion to vacate would not
    apply. We therefore find that the structure of the FAA is
    compatible with equitable tolling.
    Finally, equitable tolling would not undermine the basic
    purpose of the FAA, which was enacted to make “valid and
    enforceable written provisions or agreements for arbitration
    of disputes.” 68 Cong. Ch. 213, 43 Stat. 883 (1925). While
    the FAA reflects the “national policy favoring arbitration with
    just the limited review” necessary to maintain finality in
    arbitral proceedings, Hall 
    Street, 552 U.S. at 581
    , “[t]he
    general pro-arbitration policy relies on the assumption that
    the forum is fair, and therefore cannot justify special
    deference to arbitration outcomes in the face of a colorable
    claim that the forum was unfair in a particular case.” Merrill
    Lynch, Pierce, Fenner & Smith, Inc. v. Berry, 92 Fed. Appx.
    whether a confirming court has the discretion to set aside an award for
    grounds outside of those enumerated in § 10 or § 11.
    MOVE V. CITIGROUP GLOBAL MARKETS                    11
    243, 246 (6th Cir. 2004) (unpublished). Thus, although
    Citigroup argues that equitable tolling would undermine the
    FAA’s goal of finality, § 10’s limited grounds for review
    were still “designed to preserve due process,” Kyocera Corp.
    v. Prudential-Bache Trade Servs., Inc., 
    341 F.3d 987
    , 998
    (9th Cir. 2003). Balancing the needs for both finality and due
    process, the arbitral process will not be disrupted if parties are
    permitted to satisfy the high bar of equitable tolling in limited
    circumstances. More importantly, permitting equitable
    tolling will enhance both the accuracy and fairness of arbitral
    outcomes.
    Accordingly, we hold that the FAA is subject to the
    established doctrine of equitable tolling. Because neither
    Move nor Citigroup addressed on appeal the separate
    question of whether Move satisfied the substantive
    requirements of equitable tolling, that issue has been waived.
    See, e.g., Edwards v. Marin Park, Inc., 
    356 F.3d 1058
    , 1066
    (9th Cir. 2004) (issue waived if not addressed in opening
    briefs). Regardless, we agree with the district court’s
    findings that (1) Move acted with due diligence in pursuing
    its claim, as it justifiably relied on the information provided
    by FINRA; and that (2) tolling would not prejudice Citigroup
    under the circumstances. We therefore conclude that Move
    is entitled to equitable tolling.
    B. Vacatur Under the FAA
    Because we find that Move’s motion is not time-barred,
    we turn to the merits of Move’s vacatur claim. Under
    § 10(a)(3) of the FAA, courts may vacate an arbitration award
    upon finding that “the arbitrators were guilty of . . . any . . .
    misbehavior by which the rights of any party have been
    prejudiced.” The district court held that Move failed to
    12        MOVE V. CITIGROUP GLOBAL MARKETS
    demonstrate its rights were prejudiced as a result of Mr.
    Frank’s deceit. We disagree.
    In determining whether an arbitrator’s misbehavior or
    misconduct prejudiced the rights of the parties, we ask
    whether the parties received a fundamentally fair hearing.
    See, e.g., U.S. Life Ins. Co. v. Superior Nat. Ins. Co., 
    591 F.3d 1167
    , 1177 (9th Cir. 2010) (“In short, perhaps [U.S. Life] did
    not enjoy a perfect hearing; but it did receive a fair hearing.
    It had notice, it had the opportunity to be heard and to present
    relevant and material evidence, and the decisionmakers were
    not infected with bias.”) (internal quotation marks omitted).
    For example, vacatur may be proper under § 10(a)(3) where
    an arbitrator’s ex parte receipt of evidence affected the
    outcome of the proceedings, Totem Marine Tug & Barge, Inc.
    v. N. Am. Towing, Inc., 
    607 F.2d 649
    , 653 (5th Cir. 1979), or
    where an arbitrator’s post-hearing consultation with an
    outside expert “tainted” the panel’s decision, M & A Elec.
    Power Co-op. v. Local Union No. 702, Int’l Bhd. of Elec.
    Workers, AFL-CIO, 
    977 F.2d 1235
    , 1237–38 (8th Cir. 1992).
    Although neither this Court nor our sister circuits have
    addressed whether vacatur is proper where an arbitrator’s
    purposeful and material deception resulted in his selection as
    chairperson of a panel, we agree with Move that such
    misbehavior constitutes grounds for vacatur under § 10(a)(3).
    Based on the facts of the case before us, we simply cannot
    conclude that Move received a fundamentally fair hearing.
    Upon submitting its claim to arbitration before a FINRA
    panel, Move made clear throughout the panel selection
    process that it was critical for an attorney to chair the
    proceedings. Specifically, Move believed that arbitration of
    a complex securities claim required a chairperson with the
    requisite experience to understand and interpret sophisticated
    MOVE V. CITIGROUP GLOBAL MARKETS                  13
    legal concepts. As a result, Move struck FINRA candidates
    from the proposed roster who were not experienced attorneys.
    Move then ranked Mr. Frank first on its chairperson list,
    relying on the ADR in which Mr. Frank falsified his
    credentials.
    Citigroup argues that there is no evidence that Mr. Frank
    influenced other members of the panel or that the outcome of
    the arbitration was affected by his participation. But there is
    simply no way to determine whether that was the case. Cf.
    Stivers v. Pierce, 
    71 F.3d 732
    , 747 (9th Cir. 1995)
    (“Particularly on a small board, . . . it is difficult if not
    impossible to measure the impact that one member’s views
    have on the process of collective deliberation. Each member
    contributes not only his vote but also his voice to the
    deliberative process.”) (citation omitted). In any event, Mr.
    Frank’s participation was itself prejudicial to Move. Under
    FINRA rules and regulations, such deceit would have
    permanently disqualified Mr. Frank from serving as a FINRA
    arbitrator. Indeed, once Mr. Frank’s lies were revealed,
    FINRA immediately removed him from its roster. However,
    because Mr. Frank’s fraudulent conduct was revealed only
    after the arbitration panel issued its award in favor of
    Citigroup, the parties received a hearing chaired by an
    imposter. Because Move and Citigroup agreed to arbitrate
    their multi-million dollar dispute before a panel of three
    qualified arbitrators as provided by FINRA’s rules and
    regulations, the parties’ rights to such a proceeding were
    prejudiced by the inclusion of an arbitrator as chairperson
    who should have been disqualified from arbitrating the
    dispute in the first place.
    Accordingly, under the unique set of facts of this case, we
    hold that Move was deprived of a fundamentally fair hearing
    14        MOVE V. CITIGROUP GLOBAL MARKETS
    and therefore was prejudiced by the fraudulent conduct of the
    panel’s chairperson, Mr. Frank. Because Move is entitled to
    vacatur under § 10(a)(3), we need not address the second
    question of whether vacatur is also warranted under
    § 10(a)(4).
    CONCLUSION
    We REVERSE the district court’s judgment in part and
    REMAND the case for entry of judgment in favor of Move.
    

Document Info

Docket Number: 14-56650

Citation Numbers: 840 F.3d 1152, 2016 U.S. App. LEXIS 19930, 2016 WL 6543522

Judges: Bucklo, Dorothy, Elaine, Nelson, Paez, Richard

Filed Date: 11/4/2016

Precedential Status: Precedential

Modified Date: 10/19/2024

Authorities (20)

United States v. Beggerly , 118 S. Ct. 1862 ( 1998 )

Louis R. Piccolo and Nancy M. Piccolo v. Dain, Kalman & ... , 641 F.2d 598 ( 1981 )

donald-f-taylor-v-willie-nelson-ta-willie-nelson-family-and-johnny , 788 F.2d 220 ( 1986 )

Steve Garrett v. Merrill Lynch, Pierce, Fenner & Smith, Inc.... , 7 F.3d 882 ( 1993 )

Oscar Socop-Gonzalez v. Immigration and Naturalization ... , 272 F.3d 1176 ( 2001 )

Pfannenstiel v. Merrill Lynch Pierce , 477 F.3d 1155 ( 2007 )

lafarge-conseils-et-etudes-sa-v-kaiser-cement-gypsum-corp , 791 F.2d 1334 ( 1986 )

m-a-electric-power-cooperative-v-local-union-no-702-international , 977 F.2d 1235 ( 1992 )

Totem Marine Tug & Barge, Inc. v. North American Towing, ... , 607 F.2d 649 ( 1979 )

United States Life Insurance v. Superior National Insurance , 591 F.3d 1167 ( 2010 )

Holland v. Florida , 130 S. Ct. 2549 ( 2010 )

Young v. United States , 122 S. Ct. 1036 ( 2002 )

kyocera-corporation-plaintiff-counter-defendant-appellant-v , 341 F.3d 987 ( 2003 )

Hall Street Associates, L. L. C. v. Mattel, Inc. , 128 S. Ct. 1396 ( 2008 )

Picciano v. Petricca , 183 F.3d 17 ( 1999 )

John R. Sand & Gravel Co. v. United States , 128 S. Ct. 750 ( 2008 )

United States v. Park Place Associates, Ltd. , 563 F.3d 907 ( 2009 )

priscilla-edwards-v-marin-park-inc-a-california-corporation-marin , 356 F.3d 1058 ( 2004 )

New Mexico State Investment Council v. Ernst & Young LLP , 641 F.3d 1089 ( 2011 )

95-cal-daily-op-serv-9034-95-daily-journal-dar-15866-martin-stivers , 71 F.3d 732 ( 1995 )

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