Case: 12-60877    Document: 00512688075     Page: 1   Date Filed: 07/07/2014




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                 No. 12-60877                           FILED
                                                                     July 7, 2014
                                                                   Lyle W. Cayce
                                                                        Clerk
SHIRLEY DOUGLAS, Successor in Interest of
Schwartz & Associates, P.A. and Interstate Fire & Casualty Company,

                                           Plaintiff–Appellee,

versus

REGIONS BANK,

                                           Defendant–Appellant.



                Appeal from the United States District Court
                  for the Southern District of Mississippi




Before SMITH, DENNIS, and HIGGINSON, Circuit Judges.
JERRY E. SMITH, Circuit Judge:


      In August 2002, Shirley Douglas opened a checking account with Union
Planters Bank and signed a signature card binding her to arbitration. The
arbitration provision included a clause (the “delegation provision”) delegating
the question of a dispute’s arbitrability to an arbitrator. Douglas’s account was
closed less than a year later. Union Planters Bank (“Union Planters”) merged
with Regions Bank (“Regions”) in June 2005.
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                               No. 12-60877
      In 2007, Douglas was injured in an automobile accident caused by the
negligence of the driver of another vehicle. She retained a lawyer, settled the
claim for $500,000, and hired a separate attorney, Vann Leonard, to get the
settlement approved in bankruptcy court, where she had filed under Chap-
ter 13.   Leonard allegedly embezzled Douglas’s portion of the settlement.
Douglas sued Regions and Trustmark National Bank (“Trustmark”), where
Leonard had maintained accounts, for negligence and conversion on the ground
that they had notice of the embezzlement and negligently failed to report that
activity, make reasonable inquiries, or prevent further diversions.
      Regions moved to compel arbitration based on the delegation provision
in the arbitration agreement Douglas had entered into with Union Planters,
Regions’ predecessor-in-interest. The district court denied the motion, and
Regions appealed. 1 Although the district court applied the incorrect law, we
affirm because the claim that this dispute is within the scope of the arbitration
provision is groundless.


                                          I.
      The district court denied Regions’ motion to compel arbitration on the
ground that no arbitration agreement existed between Douglas and Regions
because under Mississippi law, Union Planters’ successor-in-interest (Regions)
was not a party to the arbitration agreement. Significantly, Douglas does not
defend the district court’s reasoning on appeal. She admits that Regions was
a party to the original arbitration agreement under Mississippi law, and
indeed it appears that she never argued in response to the motion to compel
that Regions’ status as a successor did not bind it to the agreement. The




      1  The district court stayed proceedings with Trustmark pending conclusion of any
arbitration proceedings between Douglas and Regions.
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                                 No. 12-60877
district court apparently did not consider the applicable state law. 2
       An agreement did, in other words, exist. Douglas signed a signature card
with an arbitration agreement when she opened a checking account some num-
ber of years before the subject chain of events. The question is whether the
arbitration agreement and its delegation provision have anything to do with
the claim at issue here―that is, whether there is an arbitration agreement
relevant to the dispute at hand.
       A delegation provision is an “agree[ment] to arbitrate ‘gateway’ ques-
tions of ‘arbitrability,’ such as . . . whether [the parties’] agreement covers a
particular controversy.” Rent-A-Center, W., Inc. v. Jackson, 

,
2777 (2010). Parties may agree to arbitrate whether a particular claim is
subject to arbitration so long as they clearly and unmistakably do so in their
agreement. First Options of Chi., Inc. v. Kaplan, 

, 944 (1995).
Delegation provisions thus normally require an arbitrator to decide in the first
instance whether a dispute falls within the scope of the arbitration provision.
There is doubt that Douglas unmistakably intended to arbitrate gateway ques-
tions of arbitrability. 3


       2  “(a) When a merger becomes effective: . . . (3) All property owned by, and every con-
tract right possessed by, each corporation or eligible entity that merges into the survivor is
vested in the survivor without reversion or impairment[.]” MISS. CODE ANN. § 79-4-
11.07(a)(3); see also 

(“All the provisions of law relating to private corporations
operating in this state which are not inconsistent with this chapter or Chapters 1 and 3 of
Title 81, Mississippi Code of 1972, or with the proper business of depository institutions, shall
be applicable to all state banks.”).

       3   The agreement states that
    by using or maintaining your account, you agree that, in the event of any dispute,
    disagreement, claim or controversy . . . between you and us or any of our agents or
    employees, or our parent, subsidiary or sister corporations or their employees or
    agents, any such dispute will, at the election of you or us, be resolved through the
    process of binding arbitration . . . regardless of when the dispute arose.

It then defines “disputes” as follows (emphasis added):

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                               No. 12-60877
      The mere existence of a delegation provision in the checking account’s
arbitration agreement, however, cannot possibly bind Douglas to arbitrate
gateway questions of arbitrability in all future disputes with the other party,
no matter their origin.        Suppose the driver who injured Douglas was an
employee of Regions who was conducting bank business. Douglas would not
have to arbitrate the underlying tort, which is unrelated to her checking
account and its accompanying contract, just because she happens to have a
contract with Regions on a completely different matter. It follows that she does
not have to send such a claim for “gateway arbitration” merely because there
is a delegation provision in the completely unrelated contract.
      If it were otherwise, then every case involving an arbitration agreement
with a delegation provision must, with no exceptions, be submitted for such
gateway arbitration; no matter how untenable the argument that there is some
connection between the dispute and the agreement, an arbitrator must decide
first. Douglas would have to go to the arbitrator, who would flatly tell her that
this claim is not within the scope of the completely unrelated arbitration agree-
ment she signed many years earlier when opening a checking account and that
she must actually go to federal court after all.
      The law of this circuit does not require all claims to be sent to gateway
arbitration merely because there is a delegation provision. In Agere Systems,
Inc. v. Samsung Electronics Co., 

(5th Cir. 2009), we sent a dispute
to arbitration so the arbitrator could decide the gateway question of


   “Disputes” shall have the broadest possible meaning and shall include . . . any claim,
   controversy or dispute arising from or relating in any way to (i) this Agreement, (ii)
   any related agreement (iii) any agreement that this Agreement supercedes, [and]
   (iv) the relationships, accounts or balances on the accounts resulting from this Agree-
   ment or such other agreements, including the validity, enforceability, or scope of this
   Arbitration provision or any amendments or supplements to this Agreement[] . . . .
   Disputes include[] . . . any Disputes based on . . . tort . . . (including any claims of
   any injury or damage to person or property), claims for breach of fiduciary duty or
   wrongful acts.
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                                No. 12-60877
arbitrability because the agreement had a delegation provision. But we did so
only because there were plausible arguments that the dispute was covered by
the agreement as well as plausible arguments that it was not: “We adopt no
new standards of Fifth Circuit analysis of arbitration provisions today.” 

conclude that there is a legitimate argument that this arbitration
clause covers the present dispute, and, on the other hand, that it does not. The
resolution of these plausible arguments is left for the arbitrator.” 

court cited the test established by another circuit to decide
whether a particular dispute must go to gateway arbitration because of the
presence of a delegation provision:
   The Federal Circuit recently articulated an approach for handling such
   disputes, an approach the parties have addressed in this appeal. That
   court set out a two step process: (1) did the parties “unmistakably
   intend to delegate the power to decide arbitrability to an arbitrator,”
   and if so, (2) is the assertion of arbitrability “wholly groundless.”

Inc. v. Nokia Corp., 

, 1371 (Fed. Cir. 2006)).
The Federal Circuit elaborated on this test in a more recent opinion:
   In Qualcomm, we explained that the “wholly groundless” inquiry allows
   a court to stay an action based on an agreement among the parties to
   submit their disputes to arbitration, “while also preventing a party
   from asserting any claim at all, no matter how divorced from the par-
   ties’ agreement, to force an arbitration.” Accordingly, “even if the court
   finds that the parties’ intent was clear and unmistakable that they dele-
   gated arbitrability decisions to an arbitrator, the court may make a
   second more limited inquiry to determine whether a claim of arbitra-
   bility is ‘wholly groundless.’” Because the “wholly groundless” inquiry
   is supposed to be limited, a court performing the inquiry may simply
   “conclude that there is a legitimate argument that [the] arbitration
   clause covers the present dispute, and, on the other hand, that it does
   not” and, on that basis, leave “[t]he resolution of [those] plausible argu-
   ments . . . for the arbitrator.” Nevertheless, the “wholly groundless”
   inquiry “necessarily requires the courts to examine and, to a limited




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                                 No. 12-60877
    extent, construe the underlying agreement.”[ 4]

Although the Agere court did not explicitly adopt this two-part Qualcomm test,
its holding implicitly relied on it.
       The Qualcomm test is an attractive one and most accurately reflects the
law—that what must be arbitrated is a matter of the parties’ intent. See Rent-

. When Douglas signed the arbitration agreement con-
taining a delegation provision, did she intend to go through the rigmaroles of
arbitration just so the arbitrator can tell her in the first instance that her claim
has nothing whatsoever to do with her arbitration agreement, and she should
now feel free to file in federal court? Obviously not.
       If the argument that the claim at hand is within the scope of the arbi-
tration agreement is “wholly groundless,” surely Douglas never intended that
such arguments would see the light of day at an unnecessary and needlessly
expensive gateway arbitration. We conclude that when she agreed to arbitrate
“the validity, enforceability, or scope of this Arbitration provision,” Douglas did
not intend to bind herself for life to gateway arbitration for any and all claims
that ever might exist between her and Regions. She meant only to bind herself
to arbitrate gateway questions of arbitrability if the argument that the dispute
falls within the scope of the agreement is not wholly groundless.
       Because the events leading to Douglas’s claim—a car accident, a
settlement, and embezzlement of the funds through an account that a third
party held with the bank—have nothing to do with her checking account
opened years earlier for only a brief time, the notion that her claim falls within
the scope of the arbitration agreement is “wholly groundless.” Regions’ only
theory that its claim of arbitrability is not wholly groundless is that there is a


       4InterDigital Commc’ns, LLC v. Int’l Trade Comm’n, 

, 1346–47 (Fed.
Cir. 2013) (internal citations omitted) (brackets and ellipses in original), vacated on other
grounds, 

(2014) (vacating on mootness grounds).
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                               No. 12-60877
delegation provision. That is circular: The two-part Qualcomm/Agere test
demands that even if there is a delegation provision (step one), the court must
ask whether the averment that the claim falls within the scope of the arbitra-
tion agreement is wholly groundless (step two). Merely restating that there is
a delegation provision brings us back to step one.
      Because this matter should not be sent to gateway arbitration, the judg-
ment denying the motion to compel arbitration is AFFIRMED.




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                            No. 12-60877
JAMES L. DENNIS, Circuit Judge, dissenting:
      The majority adopts the “wholly groundless” test put forth by the Federal
Circuit, which has not been adopted by this circuit and appears to be contrary
to Supreme Court authority. Although I am sympathetic to the plight of
ordinary persons caught in the throes of commercial arbitration, I do not think
the Supreme Court’s decisions allow us this innovation.           Accordingly, I
respectfully dissent.
      I agree with the majority’s decision that an agreement to arbitrate
existed between the parties and that this agreement contained a delegation
provision. Douglas previously signed a “signature card” for a checking account
with Union Planters, which was later acquired by Regions. By signing the
card, Douglas indicated her consent to the Deposit Account Agreement and
Disclosure (“the Agreement”) and that she had been provided at least one copy
of this document. As the majority acknowledges, the Agreement provides that
disputes “including the validity, enforceability, or scope of this Arbitration
provision” are to be decided through arbitration. Specifically, the Agreement
states that
      by using or maintaining your account, you agree that, in the event
      of any dispute, disagreement, claim or controversy . . . between you
      and us or any of our agents or employees, or our parent, subsidiary
      or sister corporations or their employees or agents, any such
      dispute will, at the election of you or us, be resolved through the
      process of binding arbitration . . . regardless of when the dispute
      arose.
      The Agreement defines “disputes” as follows:
              “Disputes” shall have the broadest possible meaning and
       shall include . . . any claim, controversy or dispute arising from or
       relating in any way to (i) this Agreement, (ii) any related
       agreement (iii) any agreement that this Agreement supercedes,
       [and] (iv) the relationships, accounts or balances on the accounts
       resulting from this Agreement or such other agreements,
       including the validity, enforceability, or scope of this Arbitration

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                                  No. 12-60877
       provision or any amendments or supplements to this Agreement[]
       . . . . Disputes include[] . . . any Disputes based on . . . tort . . .
       (including any claims of any injury or damage to person or
       property), claims for breach of fiduciary duty or wrongful acts.
      The Agreement includes a separability provision; provides that “[t]his
Agreement shall be governed by and construed in accordance with all
applicable federal laws and all applicable substantive laws of the State of
Mississippi”; provides that “[t]his Arbitration Provision . . . shall be governed
by the Federal Arbitration Act” (“FAA”); and states that it “will remain in effect
if you close your account or accounts with us and is irrevocable.” Finally, the
Agreement provides that arbitration “will be administered according to this
agreement and the rules of the American Arbitration Association (‘AAA’) in
effect at the time of filing.”
      Douglas asserts, and the majority agrees, that her negligence and
conversion claims against Regions are not within the scope of the arbitration
clause because they do not relate to the Agreement’s arbitration provision.
Regardless of the merit of her argument, however, the issue is not for us to
decide. The Agreement contains a delegation clause, or, stated differently, an
“agree[ment] to arbitrate ‘gateway’ questions of ‘arbitrability,’ such as . . .
whether [the parties’] agreement covers a particular controversy.” Rent-A-
Center, W., Inc. v. Jackson, 

, 2777 (2010).          Consequently,
Douglas’s argument that her claims do not relate to the Agreement’s
arbitration provision—in essence, a scope-of-coverage dispute—must be
decided in the first instance by the arbitrator, not a court.
                                         I.
      Ordinarily, whether a claim is subject to arbitration must be decided in
the first instance by a court, not an arbitrator. AT&T Techs., Inc. v. Commc’ns
Workers of Am., 

, 649 (1986). Parties may agree, however, to
arbitrate whether a particular claim is subject to arbitration so long as they

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clearly and unmistakably do so in their agreement. First Options of Chi., Inc.
v. Kaplan, 

, 943-44 (1995). In this case, that standard is satisfied.
      First, the Agreement, by defining the claims subject to arbitration to
include “the validity, enforceability, or scope of th[e] Arbitration provision,”
includes what the Supreme Court has described as a delegation clause. See

. The Court explained that a delegation
clause “is an agreement to arbitrate threshold issues concerning the
arbitration agreement.” 

“ha[s] recognized that parties can agree
to arbitrate ‘gateway’ questions of ‘arbitrability,’ such as whether the parties
have agreed to arbitrate or whether their agreement covers a particular
controversy.” 

Court has also held that the existence of such
a delegation clause, by defining the claims subject to arbitration to include any
challenge to the validity, enforceability, or scope of the parties’ agreement to
arbitrate, is sufficiently clear and unmistakable evidence that the parties
agreed to arbitrate arbitrability. See 

Agreement incorporates
the AAA Rules—including the rule empowering the arbitrator “to rule on his
or her own jurisdiction, including any objections with respect to the existence,
scope or validity of the arbitration agreement”—which this court has deemed
sufficient to satisfy First Option’s test. See Petrofac, Inc. v. DynMcDermott
Petrol. Operations Co., 

, 675 (5th Cir. 2012). I therefore would
conclude that there is clear and unmistakable evidence that the parties to the
Agreement agreed to arbitrate arbitrability.
      Accordingly, Douglas’s argument that her negligence and conversion
claims against Regions are outside the scope of the Agreement raises “the
question ‘who has the primary power to decide arbitrability’ [which] turns upon
what the parties agreed about that matter.” See First 

.
Douglas admits that she entered into an agreement to arbitrate with Union
Planters. She does not challenge that Regions is Union Planter’s successor-in-

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                                No. 12-60877
interest, admitting that she cannot defend the district court’s ruling on this
point. Nor does she dispute that the Agreement contains a delegation clause
and incorporates the AAA Rules.             Nor does she specifically challenge the
delegation provision. 1       As such, whether particular claims—namely, her
negligence and conversion claims against Regions—are subject to arbitration
is a question of the arbitration clause’s scope and, under both the delegation
clause and the AAA rules, one for the arbitrator, not a court, to decide in the
first instance.     Although she could ultimately persuade the arbitrator to
conclude that her claim against Regions falls outside the scope of the
arbitration agreement, that dispute must be submitted in the first instance to
the arbitrator.
                                             II.
       Douglas’s arguments to the contrary are unavailing. First, she argues
that the text of the FAA requires a connection between her dispute with
Regions and the Agreement’s arbitration provision. FAA § 2 provides:
              A written provision in any . . . contract evidencing a
       transaction involving commerce to settle by arbitration a
       controversy thereafter arising out of such contract or transaction,
       or the refusal to perform the whole or any part thereof[] . . . shall
       be valid, irrevocable, and enforceable, save upon such grounds as
       exist at law or in equity for the revocation of any contract.
9 U.S.C. § 2 (emphasis added). By comparison, Douglas asserts that New
York’s arbitration statute, on which the FAA was modeled, Hall St. Assocs.,
L.L.C. v. Mattel, Inc., 

, 589 n.7 (2008), authorizes arbitration of
any subsequent dispute between the parties regardless of whether it is
connected to the contract containing the parties’ agreement to arbitrate, see



       1 If she had specifically challenged the validity of the Agreement’s delegation
provision, her challenge would have been for the court, and not the arbitrator, to decide. See

.

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                              No. 12-60877
N.Y. C.P.L.R. § 7501. On this basis, Douglas asserts that whereas the New
York law applies to any subsequent dispute between the parties, the FAA
requires that for a dispute to be arbitrable it must arise out of the contract
containing the parties’ agreement to arbitrate.
      Beyond citing the texts of the FAA and New York’s arbitration statute,
however, Douglas cites no authority for her interpretation and, moreover,
wholly ignores the Supreme Court’s interpretation of the FAA in cases such as
Rent-A-Center and First Options. More fundamentally, Douglas’s argument is
that, based on the language of the Agreement’s arbitration clause, her dispute
with Regions is not subject to arbitration. However, we are not authorized to
decide whether her dispute with Regions is arbitrable; rather, such a question
must be decided in the first instance by the arbitrator because she did not
specifically challenge the validity of the Agreement’s delegation provision. See

; First 

.
      Douglas’s objection to the conclusion that she must direct her scope-of-
coverage argument to the arbitrator in the first instance misapprehends the
relevant analysis. She complains that Regions’ argument is, essentially, that
if two parties ever agree to arbitration, then they are bound to arbitrate any
later dispute regardless of whether the dispute is related to the parties’
agreement to arbitrate. That is not the case. The foregoing analysis does not
require that parties arbitrate disputes unrelated to their agreement to
arbitrate. After all, such a dispute may well fall outside the scope of the
parties’ agreement. Rather, when the parties clearly and unmistakably agree
to arbitrate arbitrability, questions regarding the scope of the parties’
agreement to arbitrate must be addressed in the first instance by the
arbitrator, not a court. See 

; First 

.


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                                      No. 12-60877
                                           III.
      Despite the Agreement’s uncontested provision that questions of the
Agreement’s scope are to be decided by an arbitrator, the majority holds that
“the notion that [Douglas’s] claim falls within the scope of the arbitration
agreement is ‘wholly groundless.’” Although the majority refers to the “wholly
groundless” test as the “Qualcomm/Agere test,” it has not hitherto been the
law of this circuit, see Agere Sys., Inc. v. Samsung Elecs. Co. Ltd., 

,
340 (5th Cir. 2009) (“We adopt no new standards of Fifth Circuit analysis of
arbitration provisions today.”).
      In Agere Systems, Agere sued Samsung, alleging a breach of a patent
licensing agreement, and Samsung moved to compel arbitration. 

The district court denied Samsung’s motion, reasoning that although the
parties had agreed to arbitrate in a 2000 contract, that agreement was no
longer in effect because it had been superseded by a 2006 contract that did not
contain an arbitration clause. 

Based on the terms of the parties’
2000 agreement, the court determined that the parties had agreed to “confer
upon an arbitrator the power of determining what [disputes] ‘arise[] out of or
relate[] to’ the [relevant agreement to arbitrate].” 

That is, the court
concluded that the parties had agreed to arbitrate arbitrability.             See 

court concluded that there was both a legitimate argument that
the arbitration clause does and does not cover the dispute, it remanded the
case with instructions to allow an arbitrator to determine the arbitrability
issue. 

The Agere court recited the Federal Circuit’s “wholly
groundless” test, but it did so merely to acknowledge that the parties had
addressed the approach in their appeals and to note that the district court had
not applied the test. See 

Thus, the “wholly groundless” test has
never before been adopted by this court and, as in Agere, it was not considered
by the district court in this case.

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                             No. 12-60877
      Moreover, the “wholly groundless” test appears to be contrary to
Supreme Court precedent.       In AT&T, a labor arbitration case, the Court
reaffirmed the rule that, absent clear and unmistakable evidence to the
contrary, arbitrability is for the court to 

. The Court
admonished, however, that
      in deciding whether the parties have agreed to submit a particular
      grievance to arbitration, a court is not to rule on the potential
      merits of the underlying claims. Whether “arguable” or not, indeed
      even if it appears to the court to be frivolous, the union’s claim that
      the employer has violated the collective-bargaining agreement is
      to be decided, not by the court asked to order arbitration, but as
      the parties have agreed, by the arbitrator. The courts, therefore,
      have no business weighing the merits of the grievance, considering
      whether there is equity in a particular claim, or determining
      whether there is particular language in the written instrument
      which will support the claim. The agreement is to submit all
      grievances to arbitration, not merely those which the court will
      deem meritorious.

(internal quotation marks omitted). In First Options, the Court
relied on AT&T by analogy in stating that district courts must defer to an
arbitrator’s arbitrability decision upon finding clear and unmistakable
evidence that the parties so 

.
      In AT&T, arbitrability was for the court to decide, but the merits were
for the arbitrator, so the Supreme Court explained that a court deciding
arbitrability should leave the merits of the underlying dispute for the

. In other words, if a court decides that a dispute
is arbitrable but believes it to be completely frivolous, the court must still order
the parties to arbitrate the claim. See 

there is clear and
unmistakable evidence that the parties agreed to arbitrate arbitrability, the
court must direct the parties to submit arbitrability questions to the arbitrator
and may not pass on “the merits” of the dispute, which, in this posture, is
whether Douglas’s dispute with Regions is subject to arbitration. The “wholly

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                               No. 12-60877
groundless” test, however, requires a court to delve into the merits of the
dispute, which the AT&T Court said a district court may not do. Under the
reasoning of AT&T and First Options, if a court determines that there is clear
and unmistakable evidence that the parties agreed to arbitrate arbitrability
but nevertheless believes that an underlying claim is almost certainly not
subject to arbitration, the court must still order the parties to arbitrate
arbitrability. See 

; First 

.
Similarly, First Options and Rent-A-Center provide that an arbitration
agreement’s delegation provision requires sending questions of arbitrability to
the arbitrator absent a specific challenge to the validity of that provision
(which Douglas has not here asserted). See 

;
First 

.       These decisions further support the
conclusion that the Supreme Court would likely reject the majority’s approach
as being contrary to its previous decisions.
      For these reasons, I respectfully dissent.




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