ORDER DENYING WITHOUT PREJUDICE DEFENDANT'S MOTION TO COMPEL ARBITRATION; GRANTING IN PART DEFENDANT'S MOTION TO DISMISS

JAMES WARE, Chief Judge.

I. INTRODUCTION

Plaintiffs1 bring this putative class action against Apple, Inc. ("Defendant") alleging violations of Section 2 of the Sherman Act, 15 U.S.C. § 2. Plaintiffs allege that Defendant violated the Sherman Act by conspiring with non-party AT & T Mobility, LLC ("ATTM") to monopolize an alleged aftermarket for voice and data services for iPhones, and also by monopolizing or attempting to monopolize an alleged aftermarket for software applications for iPhones.

Presently before the Court are Defendant's Motion to Compel Arbitration2 and Motion to Dismiss.3 The Court conducted a hearing on June 18, 2012. Based on the papers submitted to date and oral argument, the Court DENIES without prejudice Defendant's Motion to Compel Arbitration and GRANTS in part Defendant's Motion to Dismiss.

II. BACKGROUND

A. Factual Allegations

In a Consolidated Class Action Complaint4 filed on March 21, 2012, Plaintiffs allege as follows:

On the basis of the allegations outlined above, Plaintiffs assert three causes of action: (1) Unlawful Monopolization of the Applications Aftermarket, in Violation of Section 2 of the Sherman Act; (2) Attempted Monopolization of the Applications Aftermarket, in Violation of Section 2 of the Sherman Act; and (3) Conspiracy to Monopolize the iPhone Voice and Data Services Aftermarket, in Violation of Section 2 of the Sherman Act.

B. Procedural History

On December 29, 2011, Robert Pepper, Stephen H. Schwartz, Edward W. Hayter and Harry Bass (collectively, "Pepper Plaintiffs") filed a Class Action Complaint. (See Docket Item No. 1.) The Pepper Plaintiffs are represented by Wolf Haldenstein. (Id.) On January 17, 2012, Eric Terrell, James Blackwell and Crystal Boykin (collectively, "Terrell Plaintiffs") filed a substantially identical Class Action Complaint.6 The Terrell Plaintiffs were represented by the Terrell Law Group. (Id.) On March 20, 2012, the Court ordered that the two cases be consolidated.7 On March 21, 2012, Plaintiffs filed their Consolidated Class Action Complaint. (See Complaint.) On March 29, 2012, the Court issued an order requesting motions for appointment of interim class counsel.8 On April 9, 2012, 2012 WL 1514828, on the basis of its finding that Wolf Haldenstein could adequately represent the interests of the class, and insofar as no other representative sought appointment as class counsel, the Court appointed Wolf Haldenstein as class counsel.9

Presently before the Court are Defendant's Motion to Compel Arbitration and Motion to Dismiss.

III. STANDARDS

A. Motion to Compel Arbitration

It is fundamental that "a party cannot be required to submit to arbitration any dispute which [it] has not agreed so to submit." Samson v. NAMA Holdings, LLC, 637 F.3d 915, 923 (9th Cir. 2011) (citations omitted). However, it is also well established that "[arbitration provides a forum for resolving disputes more expeditiously and with greater flexibility than litigation." Lifescan, Inc. v. Premier Diabetic Servs., Inc., 363 F.3d 1010, 1011 (9th Cir.2004) (citation omitted). Congress created the Federal Arbitration Act ("FAA") to "overrule the judiciary's longstanding refusal to enforce agreements to arbitrate ... and place such agreements on the same footing as other contracts." Id. (citation omitted). "A party to a valid arbitration agreement may `petition any United States district court for an order directing that such arbitration proceed in the manner provided for in such agreement.'" Id. at 1012 (quoting 9 U.S.C. § 4). The district court's "role is limited to determining whether a valid arbitration agreement exists and, if so, whether the agreement encompasses the dispute at issue." See id.; see also Chiron Corp. v. Ortho Diagnostic Sys., Inc., 207 F.3d 1126, 1130 (9th Cir.2000). A court interpreting the scope of an arbitration provision should apply ordinary state law principles of contract construction. See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). "[A]ny doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration." Moses H. Cone Mem'l Hosp. v. Mercury Const. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). Thus, arbitration should only be denied where "it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute." AT & T Tech., Inc. v. Commc'n Workers, 475 U.S. 643, 650, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) (quoting United Steelworkers v. Warrior & Gulf Navigation Corp., 363 U.S. 574, 582-83, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960)).

B. Motion to Dismiss

Under Fed.R.Civ.P. 12(b)(7), a party may bring a motion to dismiss for "failure to join a party under Rule 19." Fed.R.Civ.P. 19 provides that a party "must be joined" if, in that party's absence, the court "cannot accord complete relief among existing parties." Fed. R.Civ.P. 19(a). Under Rule 19, courts undertake a three-step analysis to determine whether an absent party should be joined. See E.E.O.C. v. Peabody W. Coal Co., 400 F.3d 774, 779 (9th Cir.2005). First, the court must determine whether the absent party is "necessary." See Takeda v. Northwestern Nat'l Life Ins. Co., 765 F.2d 815, 819 (9th Cir.1985). A party is "necessary" if, inter alia, "complete relief cannot be accorded among those already parties" in that party's absence. Id. (citing Fed. R.Civ.P. 19(a)). Second, if the absent party is a "necessary party under Rule 19(a)," the court must determine "whether it is feasible to order that the absentee be joined." Peabody W. Coal Co., 400 F.3d at 779. Third, "if joinder is not feasible," the court must determine "whether the case can proceed without the absentee, or whether the absentee is an `indispensable party' such that the action must be dismissed." Id.

IV. DISCUSSION

A. Motion to Compel Arbitration

Defendant moves to compel Plaintiffs to arbitrate their claims, on the grounds that: (1) the claims in this action are "identical" to the claims brought against Defendant in a previous case brought by Plaintiffs' counsel; and (2) the Court granted Defendant's motion to compel arbitration in the previous case, which means that arbitration is also appropriate in this case.10 Plaintiffs respond that the Court should not compel them to arbitrate their claims, on the grounds that: (1) the "legal basis upon which the Court relied in the prior action to compel those plaintiffs to arbitrate their claims against [Defendant] no longer applies," because the Ninth Circuit opinion upon which the Court relied "is no longer valid";11 and (2) even if the legal basis upon which the Court relied in the prior action does still apply, arbitration should not be compelled in this case, as neither of the tests required for arbitration to be compelled are applicable.12 The Court considers each ground in turn.

1. Continuing Validity of Mundi

At issue is whether the Ninth Circuit opinion — i.e., Mundi — on which the Court relied in determining that a non-signatory defendant may compel arbitration against a signatory plaintiff is still valid.

"Circuit law ... binds all courts within a particular circuit, including the court of appeals itself." Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir.2001). "Thus, the first panel to consider an issue sets the law not only for all the inferior courts in the circuit, but also future panels of the court of appeals." Id. "Once a panel resolves an issue in a precedential opinion, the matter is deemed resolved, unless overruled by the court itself sitting en banc, or by the Supreme Court." Id.

Here, as discussed above, the Court relied upon the Ninth Circuit's opinion in Mundi v. Union Security Life Insurance Company in reaching its decision regarding the applicability of equitable estoppel in this context. However, Plaintiffs contend that the Ninth Circuit has "recently... declar[ed] that Mundi ... is no longer valid." (Arbitration Opp'n at 2.) For this proposition, Plaintiffs rely upon an unpublished opinion issued by the Ninth Circuit on March 5, 2012, in which the Ninth Circuit stated that another district court had erred by following Mundi rather than a Supreme Court decision that was issued several months after Mundi.13 Upon review, however, the Court finds that Plaintiffs' contention is misguided. First, it is clear as a matter of Ninth Circuit law that Mundi, which is a precedential opinion, may only be overruled by the Ninth Circuit itself sitting en banc or by the Supreme Court. Hart, 266 F.3d at 1171. Thus, the Ninth Circuit's unpublished opinion in Allianz cannot have "declared" Mundi invalid, as a matter of Ninth Circuit law. Id. Second, the Court finds that it is not clear that the Supreme Court's opinion in Arthur Andersen "overruled" Mundi. In Arthur Andersen, the Supreme Court held that state law "is applicable to determine which contracts" are binding and enforceable, under the Federal Arbitration Act, "if that [state] law arose to govern issues concerning the validity, revocability, and enforceability of contracts generally." Arthur Andersen, 556 U.S. at 630-31, 129 S.Ct. 1896 (emphasis in original).14 Thus, Arthur Andersen does not state categorically that courts must always apply state law, rather than federal common law, in this type of situation. Rather, it states only that courts should apply state law if that law "arose to govern [certain] issues."15 Id.

Further, the Court observes that it is unclear that the Ninth Circuit, in Mundi, was expounding "federal common law." It is true that the FAA created a "federal common law of arbitrability which preempts state law disfavoring arbitration." See, e.g., Circuit City Stores, Inc. v. Adams, 279 F.3d 889, 892 (9th Cir.2002) (citations omitted). Nonetheless, courts have long recognized that in "determining the validity of an agreement to arbitrate, federal courts should apply ordinary state-law principles that govern the formation of contracts." Id. (citation and internal quotations omitted). Indeed, the court in Mundi expressly recognized this principle.16 The court went on to explain that "[g]eneral contract and agency principles" — in particular, the principle of equitable estoppel — "apply in determining the enforcement of an arbitration agreement by or against nonsignatories." Mundi, 555 F.3d at 1045-46. In the course of its elaboration of the principle of equitable estoppel in the arbitration context, the court in Mundi looked to the decisions of other circuit courts. See id. However, those other decisions were themselves grounded in "ordinary state-law principles," rather than in a freestanding "federal common law" governing the validity of contracts.17 Thus, the mere fact that the court in Mundi referred to other federal court opinions in formulating its holding regarding equitable estoppel does not mean that Mundi was stating "federal common law."

In sum, the Court declines to adopt Plaintiffs' interpretation of Allianz. In reaching this conclusion, the Court is mindful of the Ninth Circuit's admonition that its non-precedential opinions are "not written in a way that will be fully intelligible to those unfamiliar to the case," and in particular its admonition that the "rule of law [in non-precedential opinions] is not announced in a way that makes it suitable for governing future cases." Hart, 266 F.3d at 1178. As the Ninth Circuit explained in Hart, the advantage of issuing non-precedential opinions is that the appellate court may thereby conserve judicial time and effort, freeing it to "spend the requisite time drafting precedential opinions in [other] cases." Id. The court went on to observe that, given the nature of nonprecedential opinions, it would be inefficient to allow parties to cite them, insofar as the absence of "precisely crafted holdings" in such opinions would tempt "zealous counsel ... to seize upon superficial similarities between their clients' cases and unpublished dispositions." Id. It is true that, following Hart, the Ninth Circuit revised its rule regarding citation of unpublished dispositions and allowed them to be cited to the courts of the Ninth Circuit in certain circumstances. See 9th Cir. R. 36-3. However, the Court finds that the reasoning in Hart applies to this case, especially given the fact that the court in Allianz did not announce a "rule of law" regarding the relation of Arthur Andersen to Mundi that is "fully intelligible to those unfamiliar with [Allianz]." Hart, 266 F.3d at 1178.18

Accordingly, the Court finds that the Ninth Circuit's opinion in Mundi is still valid with regard to the issue of whether a non-signatory defendant may compel arbitration against a signatory plaintiff.

2. Whether Equitable Estoppel May Be Applied in This Case

At issue is whether Defendant satisfies the requirements to invoke the doctrine of equitable estoppel against Plaintiffs to compel arbitration.

A defendant that is a non-signatory to an agreement providing for arbitration may compel arbitration of claims by a plaintiff that is a signatory to such an agreement on the basis of equitable estoppel, so long as two requirements are met: (1) the subject matter of the dispute must be "intertwined with the contract providing for arbitration"; and (2) there must be a "relationship among the parties of a nature that justifies a conclusion that the party which agreed to arbitrate with another entity should be estopped from denying an obligation to arbitrate a similar dispute with the adversary which is not a party to the arbitration agreement." In re Apple & AT & TM Antitrust Litig., 826 F.Supp.2d at 1177 (citing Mundi, 555 F.3d at 1045-46).

Upon review, the Court finds that Defendant does not satisfy both requirements to invoke the doctrine of equitable estoppel in this case. In particular, the Court finds that Defendant has not shown that the subject matter of this dispute is "intertwined with the contract providing for arbitration," insofar as two of Plaintiffs' three causes of action-namely, their causes of action involving an alleged aftermarket for applications for the iPhone-might pertain solely to Defendant's solitary actions with regard to applications for its iPhones, and thus might not be judged to be "intertwined with" the service agreement issued by ATTM.19

The Court rejects Defendant's contention that the Court should order Plaintiffs to arbitrate their claims in this case because these claims are "the same" as the claims that were subjected to arbitration in the In re Apple & AT & TM Antitrust Litigation. (Motion to Compel at 2-3.) In the earlier case, Apple moved to compel arbitration of all of the plaintiffs' claims, including claims relating to an alleged aftermarket for applications, on the grounds that: (1) the plaintiffs in that case had "sought to certify a single class ... to pursue both [their] voice and data aftermarket claims and [their] applications aftermarket claims"; and (2) the Court had granted plaintiffs' motion for class certification and "certified a unified class, adopting plaintiffs' proposed class definition, to pursue both sets of claims."20 In its order compelling arbitration, the Court specifically found that the plaintiffs' claims in that case were "intertwined" with the contract at issue, insofar as: (1) "[the plaintiffs] themselves have contended throughout [that case] that their antitrust and related claims against [ATTM and Apple] arise from their respective ATTM service contracts"; and (2) the Court had "certified a single unified class," at the plaintiffs' request, comprising "[a]ll persons who purchased or acquired an iPhone in the United States and entered into a two-year agreement with [ATTM] for iPhone voice and data service [at] any time from June 29, 2007, to the present." In re Apple & AT & TM Antitrust Litig., 826 F.Supp.2d at 1178 (citations omitted) (emphasis added). Here, by contrast, Plaintiffs have not contended that any of their claims arise from ATTM service contracts.21 Moreover, the Court has not yet certified any class in this case. Thus, the Court finds that its decision to compel arbitration, under the doctrine of equitable estoppel, of the claims in the In re Apple & AT & TM Antitrust Litigation is not apposite to the present Motion.

Below, the Court finds that ATTM is a necessary party, at least as to any claims relating to voice and data services. Plaintiffs are given leave to file an amended complaint adding ATTM should they wish to continue to pursue those claims. Because the disposition of the Motion to Compel Arbitration might be affected by the claims and parties in the Amended Complaint, the Court DENIES without prejudice Defendant's Motion to Compel Arbitration.

B. Motion to Dismiss

Defendant moves to dismiss the Complaint under Fed.R.Civ.P. 12(b)(7), on the grounds that: (1) the Complaint fails to name ATTM as a Defendant; but (2) ATTM is both a necessary and an indispensable party, pursuant to Fed.R.Civ.P. 19. (Motion to Dismiss at 5-13.) Plaintiffs respond that ATTM is neither a necessary nor an indispensable party, pursuant to Rule 19.22 The Court considers in turn the issues of whether ATTM is a necessary party and whether, if ATTM is a necessary party, it is feasible for ATTM to be joined.

1. Is ATTM a Necessary Party?

At issue is whether ATTM is a necessary party, pursuant to Fed.R.Civ.P. 19(a).

As a general rule, it "is not necessary for all joint tortfeasors to be named as defendants in a single lawsuit." Temple v. Synthes Corp., Ltd., 498 U.S. 5, 7, 111 S.Ct. 315, 112 L.Ed.2d 263 (1990). However, if a plaintiff's antitrust claims require a court to evaluate the conduct of an absent party that is alleged to be an antitrust co-conspirator with a defendant, thereby "substantially implicating [the] interests" of that party, the absent party is necessary pursuant to Rule 19(a).23

Here, Plaintiffs allege in pertinent part:

Based on the allegations above, the Court finds that ATTM is a necessary party pursuant to Rule 19(a). In particular, the Court finds that in order to evaluate Plaintiffs' antitrust claims in regard to the alleged conspiracy to monopolize the alleged iPhone Voice and Data Services Aftermarket, the Court will be required to evaluate ATTM's conduct, insofar as Plaintiffs allege, inter alia, that ATTM unlawfully achieved market power in that Aftermarket due to the conspiracy and thereby foreclosed other companies from entering the market. (Complaint ¶ 98.) Such an evaluation of ATTM's conduct would necessarily implicate the interests of ATTM, which means that ATTM is a necessary party pursuant to Rule 19(a). Laker Airways, 182 F.3d at 847-48.

Plaintiffs' contention that the Court should not rely upon Laker Airways because it is an "outlier that has not been accepted in the Ninth Circuit" is misguided. (Dismiss Opp'n at 12-15.) First, Plaintiffs cite no case in which the Ninth Circuit has disapproved of the rule regarding antitrust co-conspirators enunciated in Laker Airways; nor is the Court aware of any such case. Second, the court in Laker Airways itself relied upon a decision from the Ninth Circuit in formulating its statement of that rule,24 which belies Plaintiffs' contention that the rule is not "accepted" in the Ninth Circuit. Finally, the Court observes that several other district courts within the Ninth Circuit have recently cited with approval the rule enunciated in Laker Airways.25

Accordingly, the Court finds that ATTM is a necessary party.

2. Is It Feasible for ATTM to Be Joined?

At issue is whether it is feasible for ATTM to be joined.

If an absent party is a necessary party under Rule 19(a), the court must determine whether it is "feasible" to order that the absent party be joined. Peabody W. Coal Co., 400 F.3d at 779. There are three circumstances "in which joinder is not feasible": (1) "when venue is improper"; (2) "when the absentee is not subject to personal jurisdiction"; and (3) "when joinder would destroy subject matter jurisdiction." Id.

Here, the Court finds that it is feasible for ATTM to be joined, insofar as this is a proper venue, ATTM is subject to the Court's personal jurisdiction, and joinder would not destroy the Court's subject matter jurisdiction.26 Peabody W. Coal Co., 400 F.3d at 779.

Plaintiffs contend that joinder of ATTM is not feasible because: (1) ATTM "will immediately move to compel arbitration of the claims against it"; (2) the Court is "practically certain" to grant such a motion; and (3) in that case, ATTM would be "dismissed for improper venue." (Dismiss Opp'n at 15.) However, the Court finds that each aspect of this contention is misguided. Plaintiffs cite no case for the proposition that courts should consider the possibility that an absent party will move to compel arbitration when conducting a feasibility analysis under Rule 19; nor is the Court aware of any case standing for that proposition. Plaintiffs' other contentions are premature and speculative.

Accordingly, the Court finds that it is feasible for ATTM to be joined.

In sum, because the alleged conspiracy is with ATTM to monopolize or attempt to monopolize the aftermarket for voice and data services, the Court finds that ATTM is a necessary party which can, and therefore must, be joined. Therefore, the Court GRANTS Defendant's Motion to Dismiss for failure to join a necessary party under Fed.R.Civ.P. 12(b)(7).27

V. CONCLUSION

The Court DENIES without prejudice Defendant's Motion to Compel Arbitration and GRANTS in part Defendant's Motion to Dismiss. The Court finds that ATTM is a necessary party and therefore must be joined as a party under Fed.R.Civ.P. 12(b)(7). All other grounds for dismissal are DENIED as premature.28

The Court ORDERS that ATTM be made a party to this action.29 On or before July 31, 2012, Plaintiffs shall file an Amended Complaint consistent with the terms of this Order.

The Court previously vacated the Case Management Conference in this case in light of the pending Motions. The Court now sets September 24, 2012 at 10 a.m. as the new Conference date. On or before September 14, 2012, the parties shall file a Joint Case Management Statement with a proposed schedule on how this case should proceed.