King Cole Foods, Inc. v. SuperValu, Inc.

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 11-3768
___________________________
In re: Wholesale Grocery Products Antitrust Litigation
------------------------------
King Cole Foods, Inc.; JFM Market, Inc.; MJF Market, Inc.
lllllllllllllllllllll Plaintiffs - Appellants
v.
SuperValu, Inc.; C&S Wholesale Grocers, Inc.
lllllllllllllllllllll Defendants - Appellees
------------------------------
The Chamber of Commerce of the United States of America
lllllllllllllllllllllAmicus on Behalf of Appellees
___________________________
No. 11-3773
___________________________
In re: Wholesale Grocery Products Antitrust Litigation
------------------------------
Blue Goose Super Market, Inc.; Millennium Operations, Inc., doing business as
R.C. Dick’s Market
lllllllllllllllllllll Plaintiffs - Appellants
v.
SuperValu, Inc.; C&S Wholesale Grocers, Inc.
lllllllllllllllllllll Defendants - Appellees
------------------------------
The Chamber of Commerce of the United States of America
lllllllllllllllllllllAmicus on Behalf of Appellee
____________
Appeal from United States District Court
for the District of Minnesota - Minneapolis
____________
Submitted: November 13, 2012
Filed: February 13, 2013
____________
Before MURPHY, BENTON, and SHEPHERD, Circuit Judges.
____________
SHEPHERD, Circuit Judge.
Appellants are five retail grocers (“the Retailers”), each attempting to bring
class-action antitrust claims against one of two wholesale grocers (“the Wholesalers”).
Each Retailer is a customer of only one of the Wholesalers, has an arbitration
agreement with only that Wholesaler, and is attempting to use an antitrust conspiracy
theory to bring suit against the Wholesaler with whom it neither does business nor has
an arbitration agreement (“the non-signatory Wholesaler”). The district court
dismissed the Retailers’ claims and struck their allegations from the complaint in the
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ongoing1 lawsuit, holding that equitable estoppel bars the Retailers from bringing suit
against the non-signatory Wholesaler and allows the non-signatory Wholesaler to
compel arbitration. The district court certified this as a final judgment under Federal
Rule of Civil Procedure 54(b). In re Wholesale Grocery Prods. Antitrust Litig., No.
09-MD-2090 ADM/AJB, 2011 WL 3837107, at *4 (D. Minn. Aug. 30, 2011)
(unpublished). We have jurisdiction under 28 U.S.C. § 1291. We reverse the district
court’s ruling that equitable estoppel bars the Retailers from asserting antitrust claims
in federal court, and we remand for further proceedings.
I.
Appellants Blue Goose Super Market, Inc. (“Blue Goose”), Millennium
Operations, Inc. (“Millennium”), and King Cole Foods, Inc. (“King Cole”) all have
supply and arbitration agreements with Appellee SuperValu, Inc. (“SuperValu”).
Appellants JFM Market, Inc. and MJF Market, Inc. (collectively “the Village
Markets”) both have supply and arbitration agreements with Appellee C&S Wholesale
Grocers, Inc. (“C&S”).2 The parties all agree that the Retailers’ supply agreements
1
After the Retailers were dismissed from the lawsuit and filed this appeal, the
district court denied class certification to the plaintiffs remaining in the lawsuit. In re
Wholesale Grocery Prods. Antitrust Litig., No. 09-MD-2090 ADM/AJB, 2012 WL
3031085, at *17 (D. Minn. July 25, 2012) (unpublished). The district court later
granted summary judgment in favor of the Wholesalers on the remaining plaintiffs’
claims. In re Wholesale Grocery Prods. Antitrust Litig., No. 09-MD-2090 ADM/AJB,
2013 WL 140285, at *16 (D. Minn. Jan. 11, 2013) (unpublished). As of February 7,
2013, one of these plaintiffs has filed a notice of appeal of both orders.
2
The district court noted that the Village Markets actually executed arbitration
agreements with SuperValu, that those agreements later were assigned to C&S, and
that the Village Markets disputed the validity of the assignment. In re Wholesale
Grocery Prods. Antitrust Litig., No. 09-MD-2090 ADM/AJB, slip op. at 4 n.3 (D.
Minn. July 5, 2011). On appeal, the Village Markets have stated that their contracts
“were transferred to C&S, as the District Court found.” King Cole Br. 11. Whether
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with the Wholesalers do not specify price terms. Millennium’s supply agreement with
SuperValu specifies Millennium will purchase a certain percentage of its requirements
from SuperValu. The other Retailers’ supply agreements do not contain requirements
provisions, but rather generally state that the Wholesaler named in the agreement will
make products available and that the Retailer named in the agreement will pay the
prices stated on any future sales documents. The arbitration agreements
accompanying3 the supply agreements all generally specify that the signatories will
arbitrate any disputes between them.
In September 2003, C&S and SuperValu entered into an Asset Exchange
Agreement (“AEA”) in which they exchanged certain business assets, including some
customer contracts, and agreed not to do business with or solicit any of the exchanged
customers for a certain time period. Some, but not all, of the Retailers’ supply and
arbitration agreements were among the contracts exchanged as part of the AEA.
After the AEA, all of the Retailers purchased goods from the Wholesaler with
whom they had a supply and arbitration agreement (“the signatory Wholesaler”).
Each Retailer subsequently brought class-action antitrust claims in federal district
court. In an effort to avoid arbitration, each Retailer brought claims only against the
Wholesaler with whom they did not have a supply and arbitration agreement. Thus,
Blue Goose, Millennium, and King Cole, who had contracts and did business only
the transfer constituted a valid assignment is a separate issue that we do not address
on this appeal.
3
The parties agree that the supply agreements and the arbitration agreements are
actually separate documents—i.e., that each Retailer is a signatory both to a supply
agreement and to an arbitration agreement. The Wholesalers state this in their brief,
Appellees’ Br. 7, 11-13, as do Blue Goose and Millennium, Blue Goose Br. 6-7. King
Cole and the Village Markets imply the same in their brief, see King Cole Br. 10-12
(referring to “arbitration agreements” rather than to “arbitration clauses”), and in any
event, they do not dispute the Wholesalers’ assertion.
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with SuperValu during the class period, brought antitrust claims only against C&S.
Likewise, the Village Markets, who had contracts and did business only with C&S
during the class period, brought antitrust claims only against SuperValu. The
Retailers alleged that the AEA amounted to an illegal antitrust conspiracy between the
Wholesalers in violation of the Sherman Act, 15 U.S.C. § 1, artificially inflating prices
and causing each Retailer to overpay for their wholesale grocery purchases.
The Wholesalers moved to dismiss the Retailers’ antitrust claims. The
Wholesalers argued that the doctrine of either equitable estoppel or successor-in-
interest allowed the non-signatory Wholesaler to enforce the signatory Wholesaler’s
arbitration agreements with the Retailers, thus requiring the Retailers to arbitrate their
antitrust claims against the non-signatories. The Retailers responded that neither the
equitable estoppel doctrine nor the successor-in-interest doctrine compelled them to
arbitrate, and further argued that even if one of those doctrines did apply, the
arbitration agreements were unenforceable for public policy reasons.
The district court granted the Wholesalers’ motion to dismiss the Retailers’
claims from the putative class action. In re Wholesale Grocery Prods. Antitrust Litig.,
No. 09-MD-2090 ADM/AJB, slip op. at 11 (D. Minn. July 5, 2011). First, the court
held that the non-signatory Wholesaler could invoke equitable estoppel to compel the
Retailers to arbitrate their antitrust claims. Id. at 6. Second, the court held that the
arbitration agreements were enforceable. Id. at 10. Because the district court held the
Wholesalers could use equitable estoppel to compel arbitration, the court did not
address the Wholesalers’ argument that they could enforce the arbitration agreements
as successors-in-interest. The Retailers brought the present appeal.
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II.
A.
The first issue on appeal is whether the non-signatory Wholesalers can use
equitable estoppel to compel the Retailers to arbitrate their antitrust claims. “Where
a district court grants arbitration, its application of equitable estoppel presents at least
mixed questions of law and fact. In this circuit, mixed questions of law and fact are
reviewed de novo.” Donaldson Co. v. Burroughs Diesel, Inc., 581 F.3d 726, 731 (8th
Cir. 2009). Upon de novo review, we hold that the non-signatory Wholesalers cannot
use equitable estoppel to compel arbitration.
As a preliminary matter, “state contract law governs the ability of
nonsignatories to enforce arbitration provisions.” PRM Energy Sys., Inc. v.
Primenergy, L.L.C., 592 F.3d 830, 833 (8th Cir. 2010) (internal quotation marks
omitted). The parties agree that Minnesota law applies here.4 The only Minnesota
Supreme Court case mentioning equitable estoppel in the arbitration context is Onvoy,
Inc. v. SHAL, LLC, 669 N.W.2d 344 (Minn. 2003). In that case, the court stated the
general rule that “arbitration clauses are contractual and cannot be enforced by
persons who are not parties to the contract.” Id. at 356. The court then explained that
equitable estoppel is an exception to the rule and “prevents a signatory from relying
on the underlying contract to make his or her claim against the nonsignatory.” Id.
The court did not reach the issue of whether equitable estoppel applied, however,
because it remanded the case on other grounds. Id. at 357. One unpublished
Minnesota Court of Appeals case has evaluated when equitable estoppel applies in the
4
C&S, SuperValu, Blue Goose, and Millennium explicitly state that Minnesota
law applies. See Appellees’ Br. 21; Blue Goose Br. 18. King Cole and the Village
Markets seem to agree, see King Cole Reply Br. 7 (referencing Minnesota law), and
in any event, they do not dispute the assertion.
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arbitration context,5 but Minnesota law specifies that unpublished cases are not
precedential. Minn. Stat. § 480A.08(3)(c). Minnesota appears to follow federal law
regarding equitable estoppel. See Onvoy, 669 N.W.2d at 356 (“Federal cases have set
out at least three principles on which a nonsignatory to a contract can compel
arbitration: equitable estoppel, agency, and third-party beneficiary.” (citing MS Dealer
Serv. Corp. v. Franklin, 177 F.3d 942, 947 (11th Cir. 1999), abrogated on other
grounds by Arthur Anderson LLP v. Carlisle, 556 U.S. 624, 631 (2009))). Since we
do not have any published Minnesota cases applying equitable estoppel, and since
Minnesota appears to follow federal law regarding equitable estoppel, we look to
federal law here.6
5
In ev3, Inc. v. Collins, No. A08-1816, A08-1901, 2009 WL 2432348, at *1
(Minn. Ct. App. Aug. 11, 2009) (unpublished), the Minnesota Court of Appeals
upheld a trial court’s denial of a motion to compel arbitration based on equitable
estoppel. The dissent suggests we follow ev3’s analytical approach because “it
provides a persuasive indication of how the Minnesota Supreme Court would apply
equitable estoppel.” Infra at 17. It is true that we may look to intermediate appellate
court decisions as persuasive authority “when they are the best evidence of what state
law is.” Minn. Supply Co. v. Raymond Corp., 472 F.3d 524, 534 (8th Cir. 2006). As
explained in section II(A) of our opinion, however, our circuit has developed an
approach to equitable estoppel that is based on a different interpretation of the same
case analyzed in ev3 and cited in the Minnesota Supreme Court’s Onvoy
opinion—namely, MS Dealer Serv. Corp. v. Franklin, 177 F.3d 942 (11th Cir. 1999),
abrogated on other grounds by Arthur Anderson LLP v. Carlisle, 556 U.S. 624, 631
(2009)). See infra at 10 n.8. Moreover, while the ev3 court did state that “the
principles of equitable estoppel could be applied” to compel arbitration in that case,
the court ultimately upheld the district court’s decision not to compel arbitration due
to the standard of review. ev3, 2009 WL 2432348, at *6-7. Thus, given the
Minnesota Supreme Court’s explicit reference in Onvoy to federal law on this issue,
a single non-precedential case which did not ultimately compel arbitration is not a
persuasive predictor of how the Minnesota Supreme Court would rule.
6
Several cases cited in the parties’ briefs explicitly apply the law of states other
than Minnesota and thus are inapposite. See Simmons Foods, Inc. v. H. Mahmood J.
-7-
We addressed the doctrine of equitable estoppel in PRM Energy Systems. In
that case, we explained:
[Equitable] estoppel7 typically relies, at least in part, on the claims being
so intertwined with the agreement containing the arbitration clause that
it would be unfair to allow the signatory to rely on the agreement in
formulating its claims but to disavow availability of the arbitration clause
of that same agreement.
PRM Energy Sys., 592 F.3d at 835 (footnote added). A non-signatory can “force a
signatory into arbitration under the [equitable] estoppel theory when the relationship
of the persons, wrongs and issues involved is a close one.” CD Partners, LLC v.
Grizzle, 424 F.3d 795, 799 (8th Cir. 2005). For example, as relevant to the instant
case, equitable estoppel applies when a complaint involves “allegations of pre-
arranged, collusive behavior demonstrating that the claims are intimately founded in
and intertwined with the agreement at issue.” PRM Energy Sys., 592 F.3d at 835(internal quotation marks omitted). In contrast, merely alleging that a non-signatory
conspired with a signatory is insufficient to invoke equitable estoppel, absent some
Al-Bunnia & Sons Co., 634 F.3d 466, 469 (8th Cir. 2011) (Arkansas law); Lawson v.
Life of the S. Ins. Co., 648 F.3d 1166, 1171 (11th Cir. 2011) (Georgia law);
Donaldson, 581 F.3d at 732 (Mississippi law).
7
In cases such as PRM Energy Systems, we have used the term “alternative
estoppel” to refer to the “intertwined with the agreement” theory of when a non-
signatory can compel arbitration. See PRM Energy Sys., 592 F.3d at 834-35. We did
so to distinguish this theory from a theory that “relies on agency and related principles
to allow a nonsignatory to compel arbitration when, as a result of the nonsignatory’s
close relationship with a signatory, a failure to do so would eviscerate the arbitration
agreement.” Id. at 834. Since the district court, the parties’ briefs, and the Minnesota
Supreme Court use the term “equitable estoppel,” see Onvoy, 669 N.W.2d at 356, we
use that term here.
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“intimate[] . . . and intertwined” relationship between the claims and the agreement
containing the arbitration clause. PRM Energy Systems, 592 F.3d at 835.
Examining the facts of cases applying our equitable estoppel test is instructive.
First, in CD Partners, CDWI and C.D. Partners signed franchise agreements
containing arbitration clauses. 424 F.3d at 797. C.D. Partners later sued three of
CDWI’s chief executives for negligence, negligent misrepresentation, and fraudulent
misrepresentation in connection with their operation of the franchises. Id. The three
executives moved to compel arbitration, and the district court denied their motion. Id.
at 798. We reversed, holding, in relevant part, that the “dispute between signatory
C.D. Partners and [the three non-signatory chief executives] arises out of and relates
directly to the contractual agreement between the signatories, where the core of the
dispute is the conduct of the three nonsignatories in fulfilling signatory CDWI’s
promises.” Id. at 800.
Second, in PRM Energy Systems, PRM had a contract with Primenergy that
granted Primenergy a license to use some of PRM’s technology and also allowed
Primenergy to enter into sublicense agreements with third parties. 592 F.3d at 832.
The contract contained an arbitration clause. Id. Primenergy allegedly conspired with
a third party, the Japan-based company Kobe Steel, to violate the terms of that
contract. Id. More specifically, although the contract specified Primenergy could not
sublicense PRM’s technology to companies in Japan, Primenergy and Kobe Steel
allegedly entered into such a sublicense agreement. Id. PRM brought suit against
non-signatory Kobe Steel for tortious interference and conspiracy, and Kobe Steel
moved to compel arbitration. Id. at 833. The district court granted Kobe Steel’s
motion on the basis of equitable estoppel, and we affirmed. Id. We explained that
equitable estoppel applied because the case involved allegations of violation of the
terms of the agreement containing the arbitration clause, and because that agreement
“anticipated that an entity such as Kobe Steel might enter into a licensing relationship
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with Primenergy, and the [agreement] attempted to govern that expected relationship.”
Id. at 836.
Applying this precedent, we hold that the Retailers’ claims against the non-
signatory Wholesalers are not “so intertwined with the agreement containing the
arbitration clause that it would be unfair to allow the signatory to rely on the
agreement in formulating its claims but to disavow availability of the arbitration
clause of that same agreement.” Id. at 835. In both PRM Energy Systems and CD
Partners, the plaintiffs’ claims arose directly from violations of the terms of a contract
containing an arbitration clause. See PRM Energy Sys., 592 F.3d at 832-33; CD
Partners, 424 F.3d at 797. Without the contracts in those cases, the plaintiffs would
not have had a cause of action. In contrast, the Retailers are bringing antitrust
conspiracy claims against the non-signatory Wholesalers. These statutory claims exist
independent of the supply and arbitration agreements. See 15 U.S.C. § 1 (“Every . .
. conspiracy[] in restraint of trade or commerce among the several States, or with
foreign nations, is declared to be illegal.”); 15 U.S.C. § 15 (“[A]ny person who shall
be injured in his business or property by reason of anything forbidden in the antitrust
laws may sue therefor . . . .”). Moreover, the Retailers’ antitrust claims are premised
on paying artificially inflated prices, but since none of the Retailers’ contracts with the
Wholesalers specify price terms, the Retailers’ claims do not involve alleged violation
of any terms of those contracts. Nor is there any evidence, as there was in PRM
Energy Systems, that the contracts explicitly anticipated a signatory would enter into
the type of relationship with a non-signatory—here, the relationship being that of
antitrust co-conspirators—that ultimately gave rise to the claims. Under these
circumstances, we cannot say that the Retailers’ claims “rely on”8 and have an
8
The Wholesalers argue that it is irrelevant whether the Retailers’ antitrust
claims rely on the terms of the contracts containing the arbitration clause. Appellees’
Br. 31-34. Specifically, they argue that under MS Dealer, the Eleventh Circuit case
cited in the Minnesota Supreme Court’s Onvoy opinion, see Onvoy, 669 N.W.2d at
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“intimate[] . . . and intertwined” relationship with the contracts such that equitable
estoppel should apply. See PRM Energy Sys., 592 F.3d at 835 (internal quotation
marks omitted).
In holding that equitable estoppel permits the non-signatory Wholesaler to
compel arbitration here, the district court reasoned, “The agreements to arbitrate . . .
are a fundamental component of the entire wholesaler-retailer relationship between
the signatories . . . . This is precisely the relationship that is at issue in this litigation.”
In re Wholesale Grocery Prods. Antitrust Litig., No. 09-MD-2090 ADM/AJB, slip op.
at 6 (D. Minn. July 5, 2011). The court further reasoned that “the existence of the
agreements to arbitrate is presumed by the claims asserted by the [Retailers] because
without the agreements no wholesaler-supplier relationship would exist to be
exploited by the alleged anti-trust conspiracy . . . .” Id. at 7. This analysis, however,
focuses too much on the relationship between the signatories, rather than on the
relationship between the signatory’s claims against the non-signatory and the contract
containing the arbitration clause.9 As explained above, these antitrust conspiracy
356, reliance is unnecessary when the complaint involves allegations of concerted
misconduct between a signatory and non-signatory. Appellees’ Br. 31-32 (citing MS
Dealer, 177 F.3d at 947). However, in both PRM Energy Systems and CD Partners,
we relied heavily on MS Dealer. See PRM Energy Sys., 592 F.3d at 834-36; CD
Partners, 424 F.3d at 798. Thus, CD Partners and PRM Energy Systems involved our
interpretation of MS Dealer, and we do not believe a different result would be
warranted under that case.
9
Similarly, the dissent’s analysis erroneously focuses on the terms of the
contractual relationship established between the signatories to the arbitration
agreements. See infra at 14-16. The issue in this case, however, is not the contractual
relationship between the signatories. Rather, the issue is whether the signatory’s
claims against the non-signatory are of such a nature that the non-signatory should be
able to compel arbitration pursuant to the terms of the contract between the
signatories, even though the non-signatory was not a party to that contract.
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claims do not involve violation of the terms of the contract, the face of the contract
does not provide the basis for the alleged injuries, and there is no evidence that the
contract anticipated the precise type of relationship giving rise to the claims. Thus,
the requisite relationship is lacking here.
B.
Although we hold that the non-signatory Wholesalers cannot use equitable
estoppel to compel the Retailers to arbitrate their antitrust claims, this does not fully
resolve the question of whether the non-signatory Wholesalers can compel any of the
Retailers to arbitrate. The non-signatory Wholesalers also argue they can enforce
Millennium’s and the Village Market’s arbitration agreements as successors-in-
interest because those agreements were exchanged as part of the AEA.10 Since the
district court found the equitable estoppel issue dispositive, it did not address the
successor-in-interest argument. Accordingly, we remand for the district court to
consider this argument in the first instance. See Alliant Techsystems, Inc. v. Marks,
465 F.3d 864, 873 (8th Cir. 2006) (“Because the district court did not decide the
merits of these claims, which are heavily fact-based, we decline to consider them in
the first instance.”).
C.
Finally, King Cole and the Village Markets argue that even if the non-signatory
Wholesaler can compel arbitration, the arbitration agreements are unenforceable for
10
The Wholesalers do not make this argument with respect to Blue Goose or
King Cole.
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public policy reasons.11 With respect to King Cole, this argument is moot because we
have held that C&S cannot use equitable estoppel to compel arbitration, and C&S
does not make the alternative argument that it can enforce the arbitration agreement
as a successor-in-interest. With respect to the Village Markets, this argument is
relevant only if the district court finds that SuperValu can enforce the arbitration
agreement as a successor-in-interest. Since we are remanding for the district court to
consider the successor-in-interest argument, we decline to reach the Village Markets’
public policy argument as we would risk issuing an advisory opinion. See United
States v. Tyerman, 641 F.3d 936, 936 n.2 (8th Cir. 2011) (declining to reach
remaining issues “because it is unknown if and how this case will proceed on
remand”).
III.
Accordingly, we reverse the district court’s holding that the non-signatory
Wholesalers can enforce the Retailers’ arbitration agreements based on the doctrine
of equitable estoppel. We remand for further proceedings consistent with this opinion.
BENTON, Circuit Judge, dissenting.
Because Minnesota equitable-estoppel law and the text of the arbitration
agreements compel arbitration, I respectfully dissent from the court’s opinion. The
opinion has two, independent, flaws. First, the court misreads the arbitration
11
Neither Millennium nor Blue Goose makes this argument. In any event, the
argument would be moot with respect to Blue Goose since we have held C&S cannot
use equitable estoppel to compel arbitration, and C&S does not make the alternative
argument that it can enforce the arbitration agreement as a successor-in-interest.
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agreement. Second, the court incorrectly applies choice-of-law principles, thereby
omitting an important component of equitable-estoppel doctrine in Minnesota.
I.
The court asserts that this court’s precedents preclude equitable estoppel, ante
at 8-11, citing PRM Energy Sys., Inc. v. Primenergy, L.L.C., 592 F.3d 830, 833 (8th
Cir. 2010); CD Partners, LLC v. Grizzle, 424 F.3d 795, 799 (8th Cir. 2005). The
court correctly describes the factual circumstances of PRM Energy and CD Partners.
The lynchpin of this court’s holding here, however, is that the Retailers’ claims “exist
independent of the supply and arbitration agreements,” ante at 10. That statement has
no basis in the record, misreads the arbitration agreement, and leads to an incorrect
result in this case.
The arbitration agreements in this case apply to any dispute arising between the
parties, not solely those arising under a single contract:
Any controversy, claim or dispute of whatever nature arising
between Retailer and SUPERVALU or any other SUPERVALU Entity,
as defined below, including but not limited to those arising out of or
relating to any agreement between the parties or the breach, termination,
enforceability, scope or validity thereof, whether such claim existed prior
to, or arises on or after, the Execution Date (a “Dispute”), shall be
resolved by mediation or, failing mediation, by binding arbitration. A
“SUPERVALU Entity” is defined as SUPERVALU INC. or any other
entity that, directly or indirectly, owns or controls, is owned or
controlled by, or is under common ownership or control with,
SUPERVALU INC.
Although executed on the same date as the Retail Agreements, the arbitration
agreement is a separate document. It does not make any reference to the Retail
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Agreement. By its terms, it applies to any dispute between the parties, whether or not
it involves the Retail Agreement. Nevertheless, the court apparently concludes that
this arbitration agreement is limited to disputes under the Retail Agreement.
This arbitration agreement is not like the arbitration clauses in PRM Energy and
CD Partners. There, the arbitration clauses applied only to disputes related to the
contract containing the clause. PRM Energy, 592 F.3d at 837 (Beam, J., dissenting)
(“The arbitration clause tangentially at issue here purports to cover ‘all disputes
arising under’ a technology licensing agreement between PRM and Primenergy.”); CD
Partners, 424 F.3d at 797 (“Each franchise agreement contained an identical
arbitration clause which stated, in relevant part: ‘Except as provided in this
Agreement, Franchisor and Franchisee agree that any claim, controversy or dispute
arising out of or relating to Franchisee’s operation of the Franchised business under
the Agreement . . . which cannot be amicably settled shall be referred to Arbitration
. . . .’”). The arbitration clauses in both cases were limited to disputes arising under
a specific contract. Therefore, the appropriate inquiry for equitable estoppel was
whether the claims were sufficiently “intertwined” with the contract. See PRM
Energy, 592 F.3d at 835.
Not so in this case. The arbitration agreement here covers all disputes
“including but not limited to those arising out of or relating to any agreement between
the parties.” As the district court correctly ruled, this arbitration agreement covers the
entire relationship and course of dealing, and would include, for example, later
purchase contracts and purchase transactions. The antitrust claims from the Retailers
– that purchase prices were inflated – are certainly “intertwined” with and “rely on”
the terms of those transactions and the course of dealing between the parties. See id.The court states: “In both PRM Energy Systems and CD Partners, the plaintiffs’
claims arose directly from violations of the terms of a contract containing an
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arbitration clause,” ante at 10. Precisely. This case presents a broader arbitration
agreement that is not tied solely to claims arising under a specific contract. Yet the
court treats them the same. I would hold that the arbitration agreement here compels
arbitration based on equitable estoppel.
II.
The court correctly notes that state law determines whether nonsignatories can
enforce arbitration provisions. PRM Energy, 592 F.3d at 833 (8th Cir. 2010), citing
Arthur Anderson v. Carlisle, 556 U.S. 624, 630-31 (2009). Minnesota has recognized
equitable estoppel as one method to enforce an arbitration agreement against a
nonsignatory. Onvoy, Inc. v. SHAL, LLC, 669 N.W.2d 344, 356 (Minn. 2003), citing
MS Dealer Serv. Corp. v. Franklin, 177 F.3d 942, 947 (11th Cir. 1999), abrogated
on other grounds by Carlisle, 556 U.S. at 631. The Minnesota Supreme Court’s only
discussion of equitable estoppel – in its entirety – is as follows:
Federal cases have set out at least three principles on which a
nonsignatory to a contract can compel arbitration: equitable estoppel,
agency, and third-party beneficiary. MS Dealer Serv. Corp. v. Franklin,
177 F.3d 942, 947 (11th Cir. 1999). Equitable estoppel prevents a
signatory from relying on the underlying contract to make his or her
claim against the nonsignatory. See id.; Gabriel M. Wilner, Domke on
Commercial Arbitration § 10.07 (1983).
Id. Not in Onvoy – or in any other case – does the Minnesota Supreme Court apply
equitable estoppel, announce the appropriate test(s) for it, or provide any further
insight into Minnesota equitable-estoppel law. Nevertheless, this court holds that
“Minnesota appears to follow federal law regarding equitable estoppel,” ante at 7.
Because the Minnesota Supreme Court has not addressed how to apply
equitable estoppel, this court must predict how the court would rule. Progressive N.
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Ins. Co. v. McDonough, 608 F.3d 388, 390 (8th Cir. 2010) (“If the highest state court
has not decided an issue we must attempt to predict how the highest court would
resolve the issue, with decisions of intermediate state courts being persuasive
authority.”). Based on the discussion in Onvoy, the only appropriate prediction is that
the Minnesota Supreme Court would apply equitable estoppel as expressed in MS
Dealer – the only case that court cites.
MS Dealer articulates two separate inquiries for equitable estoppel. “First,
equitable estoppel applies when the signatory to a written agreement containing an
arbitration clause ‘must rely on the terms of the written agreement in asserting [its]
claims’ against the nonsignatory.” MS Dealer, 177 F.3d at 947 (alteration in
original), quoting Sunkist Soft Drinks, Inc. v. Sunkist Growers, Inc., 10 F.3d 753,
757 (11th Cir. 1993). “Second, ‘application of equitable estoppel is warranted . . .
when the signatory [to the contract containing the arbitration clause] raises allegations
of . . . substantially interdependent and concerted misconduct by both the
nonsignatory and one or more of the signatories of the contract.’” Id. (alterations in
original), quoting Boyd v. Homes of Legend, Inc., 981 F. Supp. 1423, 1432 (M.D.
Ala. 1997).
Further, the one Minnesota case applying equitable estoppel is dispensed with
by the court because it is unpublished and therefore “not precedential,” ante at 6-7 &
n.5, citing ev3, Inc. v. Collins, No. A08-1816, A08-1901, 2009 WL 2432348, at *1
(Minn. Ct. App. Aug. 11, 2009) (unpublished); Minn. Stat. § 480A.08(3)(c). While
it may not be precedential, it provides a persuasive indication of how the Minnesota
Supreme Court would apply equitable estoppel. See Marvin Lumber & Cedar Co.
v. PPG Indus., Inc., 223 F.3d 873, 888 (8th Cir. 2000) (relying, in part, on an
unpublished Minnesota Court of Appeals case to justify a predicted outcome of the
Minnesota Supreme Court); Friedberg v. Chubb & Son, Inc., 832 F. Supp. 2d 1049,
1059 n.7 (D. Minn. 2011) (“Bloom is an unpublished opinion of the Minnesota Court
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of Appeals, but the court finds Bloom persuasive in predicting how the Minnesota
Supreme Court would interpret the instant policy.”). The Minnesota Court of Appeals
followed the exact approach I suggest – equitable estoppel as articulated in MS
Dealer. ev3, 2009 WL 2432348, at *3 (“[I]n MS Dealer Serv. Corp. v. Franklin, cited
by the supreme court in Onvoy, the Eleventh Circuit stated that equitable estoppel
allows a nonsignatory to compel arbitration in two different situations . . . .”); see also
In re Petters Co., Inc., 480 B.R. 346, 361-62 (Bankr. D. Minn. 2012) (explaining that
Minnesota courts have adopted these two, separate inquiries for equitable estoppel).
The “relies on” test and the “concerted misconduct” test are separate grounds
for equitable estoppel in Minnesota. Under either test, I believe equitable estoppel
compels arbitration of the claims in this case.
As discussed in Part I, the Retailers’ claims rely on the course of dealing
between the parties and the purchase transactions – all of which are governed by the
arbitration agreement. But the court’s analysis should not stop there.
This court should also consider the “concerted misconduct” test of equitable
estoppel. See MS Dealer, 177 F.3d at 947. The court claims to have addressed
concerted misconduct by discussing PRM Energy and CD Partners because “in both
PRM Energy Systems and CD Partners, we relied heavily on MS Dealer,” ante at 10
n.8. Even so, this court should be concerned with what the Minnesota Supreme
Court’s view would be, and not what this court’s interpretation has been. See
McDonough, 608 F.3d at 390.
The Minnesota Court of Appeals held that concerted misconduct is grounds for
equitable estoppel. ev3, 2009 WL 2432348, at *6. This test is met when the plaintiff
alleges “substantially interdependent and concerted misconduct by both the
nonsignatory and one or more of the signatories of the contract.” MS Dealer, 177
F.3d at 947. That is what happened here. The Retailers allege that Supervalu and
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C&S acted in concert through the Asset Exchange Agreement to establish separate
territories, eliminate competition, and raise prices.
The PRM Energy case supports this conclusion: “PRM specifically allege[d]
coordinated behavior between a signatory and a non-signatory” and “[c]ollusive
conduct between Kobe Steel and Primenergy allegedly arose from this potential
relationship.” PRM Energy, 592 F.3d at 836. Further, even if concerted misconduct
requires the claims to be intertwined with the contract(s) subject to arbitration, that
nexus is present, as discussed in Part I.
I would hold that the concerted misconduct alleged in this case also establishes
equitable estoppel and compels arbitration.
III.
Finding that equitable estoppel compels arbitration would require this court to
address King Cole’s and the Village Markets’ argument that the arbitration
agreements are unenforceable on public-policy grounds because arbitration would be
prohibitively expensive. This argument is foreclosed by the Supreme Court. AT&T
Mobility LLC v. Concepcion, 131 S. Ct. 1740, 1748 (2011). But see In re Am.
Express Merchants’ Litig., 667 F.3d 204, 217-18 (2d. Cir.), cert. granted sub nom.
Am. Express Co. v. Italian Colors Restaurant, 133 S. Ct. 594 (2012).
*******
I respectfully dissent from the court’s opinion, and would affirm the judgment
of the district court.
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