The Indigo Group USA, Inc. v. Polo Ralph Lauren Corporation ( 2019 )

FILED
NOT FOR PUBLICATION
JAN 25 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
THE INDIGO GROUP USA, INC., a No. 14-55579
California corporation,
DC No. 11-5883 MWF
Plaintiff-counter-
defendant-Appellant,
MEMORANDUM*
v.
POLO RALPH LAUREN
CORPORATION, a Delaware corporation,
Defendant-counter-claimant-
Appellee.
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Submitted January 7, 2019**
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
Before: TASHIMA and WATFORD, Circuit Judges, and ZOUHARY,***
District Judge.
Plaintiff-Appellant Indigo Group USA, Inc. (“Indigo”) appeals the district
court’s denial of Indigo’s motion for attorneys’ fees, arguing that the district court
erred when it determined that the indemnity provisions in Exhibits 2 and 9 to the
Vendor Compliance Packet (“VCP”) do not contain attorney’s fees clauses that
cover disputes between the contracting parties. We have jurisdiction pursuant to
28 U.S.C. § 1291, and we review de novo “any elements of legal analysis and
statutory interpretation underlying the district court’s attorneys’ fees decision.”
P.N. v. Seattle Sch. Dist. No. 1, 474 F.3d 1165, 1168 (9th Cir. 2007). We affirm.
We interpret the VCP under New York law, which directs that we “should
not infer a party’s intention to waive the benefit of the rule” that parties are
responsible for their own attorneys’ fees “unless the intention to do so is
unmistakably clear from the language of the promise.” Hooper Assocs., Ltd. v.
AGS Computs., Inc., 548 N.E.2d 903, 905 (N.Y. 1989) (citations omitted). “In
applying this standard of unmistakeable clarity, the courts have generally declined
to infer indemnification obligations arising from an indemnitee/indemnitor suit if
the contractual language does not expressly refer to or explicitly contemplate such
***
The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
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circumstances and the context does not suggest that the contracting parties were
specifically concerned with prospective litigation between themselves.” Luna v.
Am. Airlines, 769 F. Supp. 2d 231, 244 (S.D.N.Y. 2011) (construing and applying
New York law).
1. Exhibit 2 does not explicitly reference attorneys’ fees in litigation
between the parties, and its language can fairly be read as an indemnity provision
against third party claims. See, e.g., Bridgestone/Firestone, Inc. v. Recovery Credit
Servs., Inc., 98 F.3d 13, 21 (2d Cir. 1996) (holding that intraparty fees are not
indemnified where the indemnification clause is not “unmistakably clear” that it
covers attorneys’ fees in a breach-of-contract action and “may easily be read as
limited to third party actions”). Accordingly, the district court correctly ruled that
Indigo had not rebutted the “presumption against a finding of indemnification of
attorney fees in a suit between the contracting parties,” and that Indigo was
therefore not entitled to attorneys’ fees under Exhibit 2. See Krys v. Aaron (In re
Refco Sec. Litig.), 890 F. Supp. 2d 332, 341 (S.D.N.Y. 2012); Luna, 769 F. Supp.
2d at 245 (“[I]f the contracting parties could have anticipated that they would be
subject to third-party claims, courts apply a presumption against concluding that
their indemnification clause covers litigation costs incurred in the course of
resolving claims between those contracting parties.” (citations omitted)).
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2. As with Exhibit 2, the language in Exhibit 9 does not communicate an
“unmistakably clear” intent to cover attorneys’ fees between the contracting
parties. See Hooper, 548 N.E.2d at 905. In fact, Exhibit 9 explicitly contemplates
indemnification limited to third party claims, and even then it does not cover the
type of claims at issue here because Indigo’s claims are not related to the resale or
use of merchandise. See id. (finding no intraparty fees clause where “agreement
d[id] not contain language clearly permitting plaintiff to recover from defendant
the attorney’s fees incurred in a suit against defendant” but rather was “typical of
those which contemplate reimbursement when the indemnitee is required to pay
damages on a third-party claim”). The district court correctly found that the
indemnification provision in Exhibit 9 does not extend to litigation between the
contracting parties and does not cover the type of claims at issue in this case.
• ! •
The district court correctly ruled that Indigo is not entitled to recover
attorneys’ fees under either Exhibit 2 or Exhibit 9 to the VCP.
AFFIRMED.
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