Burton v. Class Counsel (In re Wal-Mart Wage & Hour Emp't Practices Litig.)

• Decision Date: 17 December 2013
• Docket Number: 11–17778.,Nos. 11–17718,s. 11–17718
• Parties: In re WAL–MART WAGE AND HOUR EMPLOYMENT PRACTICES LITIGATION. Carolyn Beasley Burton; Robert Mills; The Mills Law Firm, Appellants, v. Class Counsel and Party to Arbitration; Arbitrator, Appellees. In re Wal–Mart Wage and Hour Employment Practices Litigation. Carolyn Beasley Burton; Robert Mills; The Mills Law Firm, Appellants, v. Class Counsel and Party to Arbitration; Arbitrator, Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

737 F.3d 1262

In re WAL–MART WAGE AND HOUR EMPLOYMENT PRACTICES LITIGATION.

Carolyn Beasley Burton; Robert Mills; The Mills Law Firm, Appellants,

v.Class Counsel and Party to Arbitration; Arbitrator, Appellees.

In re Wal–Mart Wage and Hour Employment Practices Litigation.

Carolyn Beasley Burton; Robert Mills; The Mills Law Firm, Appellants,

v.Class Counsel and Party to Arbitration; Arbitrator, Appellees.

Nos. 11–17718, 11–17778.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 8, 2013.

Filed Dec. 17, 2013.

Joshua D. Boxer (argued) and Robert W. Mills, The Mills Law Firm, San Rafael, CA; Carolyn Beasley Burton, San Ramon, CA, pro se, for Appellants Burton et al.

Carol P. LaPlant (argued), Berkeley, CA, pro se Appellant.

Robert J. Bonsignore (argued), Bonsignore & Brewer, Belmont, NH, for Appellees.

Appeal from the United States District Court for the District of Nevada, Philip M. Pro, Senior District Judge, Presiding. D.C. No. 2:06–cv–00225–PMP–PAL.

Before: DOROTHY W. NELSON, MILAN D. SMITH, JR., and SANDRA S. IKUTA, Circuit Judges.

OPINION

M. SMITH, Circuit Judge:

Appellants Carolyn Burton, Robert Mills, the Mills Law Firm, and Carol LaPlant (collectively, the Burton Group) appeal from the district court's confirmation of an arbitration award allocating attorneys' fees. The Burton Group contends that the district court erred in declining to vacate the arbitration award pursuant to § 10(a) of the Federal Arbitration Act (FAA), 9 U.S.C. § 10(a). Appellee Robert Bonsignore counters that we lack jurisdiction to hear this appeal because the parties agreed to binding, non-appealable arbitration. Alternatively, Bonsignore argues that the district court correctly found that there was no basis for vacatur under the FAA.

This appeal presents a question of first impression in this circuit: Is a non-appealability clause in an arbitration agreement that eliminates all federal court review of arbitration awards, including review under § 10 of the FAA, enforceable? ¹ We conclude that it is not. Accordingly, we proceed to the merits of the Burton Group's claims, and affirm the district court's confirmation of the arbitration award in a memorandum disposition filed contemporaneously with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

This appeal arises out of a protracted dispute over attorneys' fees awarded in the Wal–Mart wage and hour multidistrict litigation, MDL 1735, in the United States District Court for the District of Nevada (the Wal–Mart Litigation). On April 25, 2006, the district court appointed Robert Bonsignore and Carolyn Burton as plaintiffs' co-lead counsel. Carol LaPlant was named liaison counsel for the Wal–Mart Litigation.

On December 14, 2008, the parties to the Wal–Mart Litigation participated in a mediation with the Honorable Layn R. Phillips (retired). The parties agreed to a global settlement (Settlement Agreement) whereby Wal–Mart agreed to pay up to $85 million to settle all claims against it. The parties also agreed that any fee disputes among plaintiffs' counsel would be arbitrated by Phillips (the Arbitrator).

The district court preliminarily approved the Settlement Agreement on May 28, 2009, and granted final approval on November 2, 2009. On November 20, 2009, the district court awarded plaintiffs approximately $28 million in attorneys' fees. The district court's approval of the settlement was unanimously affirmed by a different panel of our court on August 10, 2010.

During the course of the Wal–Mart Litigation, the relationships among plaintiffs' counsel deteriorated. Plaintiffs' counsel quarreled concerning the proper allocation of the $28 million fee award, and were unable to resolve their dispute. Consequently, the fee dispute was submitted to “binding, non-appealable arbitration” before the Arbitrator, as provided in the Settlement Agreement.

On January 10, 2011, the Arbitrator handed down an opinion and order allocating the $28 million fee award amongst plaintiffs' counsel. The Arbitrator allocated over $6 million to the Burton Group, over $11 million to Bonsignore, and over $730,000 to LaPlant. Bonsignore moved to confirm the Arbitrator's award on January 26, 2011, while the Burton Group filed a motion to vacate the award on April 11, 2011. The district court granted Bonsignore's motion on October 11, 2011, and found no legal basis for vacating the Arbitrator's award. The district court entered judgment on October 19, 2011, and this appeal followed.

DISCUSSION

We ordinarily have jurisdiction pursuant to 28 U.S.C. § 1291 and 9 U.S.C. § 16(a)(1)(D) to review a district court order confirming an arbitration award. However, Bonsignore questions whether we have jurisdiction in the present action because § 22.9 of the Settlement Agreement contains a non-appealability clause.² Specifically, § 22.9 provides, in relevant part:

Class Counsel agree on behalf of themselves, their clients, and all Class Counsel to submit any disputes concerning fees (including, but not limited to, disputes concerning the fee allocation to any Class Counsel as recommended by Co–Lead Counsel, and disputes between Co–Lead Counsel regarding the determination of appropriate fee allocations) to binding, non-appealable arbitration to the Honorable Layn Phillips within fourteen (14) days of the fee allocations set forth by and/or recommended by Co–Lead Counsel.

Courts have construed non-appealability clauses like that in § 22.9 in two different ways. First, as the district court concluded, the phrase “binding, non-appealable arbitration” may be understood to preclude only federal court review of the merits of the Arbitrator's decision, and not to eliminatethe parties' right to appeal from the Arbitrator's decision under § 10 of the FAA, which provides grounds for the vacatur of an arbitration award. The district court's reasoning tracks that employed by some of our sister circuits, which have held that a contract provision stating that arbitration is non-appealable signifies that the parties only waive review of the merits of the arbitration. See Southco, Inc. v. Reell Precision Mfg. Corp., 331 Fed.Appx. 925, 927–28 (3d Cir.2009) (citing Tabas v. Tabas, 47 F.3d 1280, 1288 (3d Cir.1995) (en banc)); Rollins, Inc. v. Black, 167 Fed.Appx. 798, 799 n. 1 (11th Cir.2006); cf. Dean v. Sullivan, 118 F.3d 1170, 1171 (7th Cir.1997).

A second possible construction of the “binding, non-appealable arbitration” clause is that the arbitration clause divests both the district court and our court ³ of jurisdiction to review the Arbitrator's fee allocation on any ground, including those enumerated in § 10 of the FAA.⁴See Hoeft v. MVL Grp., Inc., 343 F.3d 57, 63–64 (2d Cir.2003), overruled on other grounds by Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 128 S.Ct. 1396, 170 L.Ed.2d 254 (2008).⁵

Thus, the arbitration clause is ambiguous. We need not resolve the question of which interpretation is correct if we conclude that the second possible construction is unenforceable because it eliminates judicial review under § 10 of the FAA.

The FAA provides for expedited judicial review of arbitration awards. 9 U.S.C. § 1 et seq.⁶ However, federal court review of arbitration awards is almost entirely limited to the grounds enumerated in the FAA, under which a court may vacate, modify, or correct an arbitration award. Id. §§ 10–11; Bosack v. Soward, 586 F.3d 1096, 1102 (9th Cir.2009). Specifically, a district court may vacate an arbitration award upon the application of any party to the arbitration:

(1) where the award was procured by corruption, fraud, or undue means;

(2) where there was evident partiality or corruption in the arbitrators, or either of them;

(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or

(4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.

9 U.S.C. § 10(a).⁷ The Supreme Court has already clarified that the statutory grounds for judicial review in the FAA are exclusive, and may not be supplemented by contract. Hall St. Assocs., 552 U.S. at 578, 128 S.Ct. 1396. But since Bonsignore's contention is that we lack jurisdiction to review the Arbitrator's award on any ground, we must also determine whether the statutory grounds for vacatur in the FAA may be waived or eliminated by contract.

Congress enacted the FAA to promulgate a “national policy favoring arbitration and [to] place[ ] arbitration agreements on equal footing with all other contracts....” Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 443, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006); see also Hall St. Assocs., 552 U.S. at 581, 128 S.Ct. 1396. Although parties may tailor certain aspects of arbitration through private contract, and “courts must ... enforce [such contracts] according to their terms,” AT & T Mobility LLC v. Concepcion, –––U.S. ––––, 131 S.Ct. 1740, 1745, 179 L.Ed.2d 742 (2011) (internal citations omitted), the Supreme Court has articulated limits on parties' freedom to modify judicial review of arbitration awards. See Hall St. Assocs., 552 U.S. at 578, 128 S.Ct. 1396 (holding that the statutory grounds for vacatur and modification of arbitration awards may not be supplemented by contract); see also Kyocera Corp. v. Prudential–Bache Trade Servs., Inc., 341 F.3d 987, 1000 (9th Cir.2003) (en banc) (“Private parties' freedom to fashion their own arbitration process has no bearing whatsoever on their inability to amend the statutorily prescribed standards governing federal court review.”).

In Hall Street Associates, for example, Hall Street argued that the arbitration clause in its contract, which expanded judicial review beyond what is provided for in the FAA, was enforceable...