Dimitri Shivkov v. Artex Risk Solutions, Inc., 974 F.3d 1051

Background:

Between 2009–2012 plaintiffs retained Artex and Tribeca to form and manage captive insurance companies; plaintiffs paid premiums and claimed tax deductions for those payments.
The IRS audited plaintiffs, assessed liabilities/penalties, plaintiffs settled with the IRS, then filed a putative class action alleging the captives were abusive tax shelters and defendants failed to disclose/advice (fraud, RICO, negligence, breach of fiduciary duty, etc.).
The client agreements contained an arbitration clause requiring mediation then binding arbitration in Mesa, Arizona (with AAA as fallback) and some agreements had a limited "survival" provision in a Termination and Withdrawal section.
The district court granted defendants’ motion to compel arbitration, ordered individual arbitration (denying class arbitration), and dismissed the complaint without prejudice; plaintiffs appealed.
On appeal the Ninth Circuit considered: enforceability of the arbitration clause (fiduciary/fraud and survival post-termination), scope of arbitrability (including tax/legal-advice claims), whether class arbitration is a court gateway question and whether the clause permits/delegates class arbitration, and whether non‑signatory defendants may compel arbitration.

Issues:

Issue	Plaintiff's Argument	Defendant's Argument	Held
Enforceability based on alleged fiduciary duty/fraud	Plaintiffs: Artex/Tribeca breached a fiduciary duty to point out/explain the arbitration clause so the clause is unenforceable (fraud basis).	Defendants: No Arizona authority creates a fiduciary duty to call out arbitration clauses; FAA/savings clause governs enforceability.	Court: Plaintiffs failed to identify Arizona law imposing such a duty; clause enforceable.
Survival of arbitration clause after contract termination	Plaintiffs: Survival clause excludes arbitration so arbitration obligations do not survive termination.	Defendants: Presumption favors post‑termination arbitration unless expressly/clearly negated; clause does not negate presumption.	Court: Applied Litton presumption; survival clause was not comprehensive—arbitration obligations survive.
Scope — do non‑contract claims (e.g., tax/legal advice, RICO) fall within clause?	Plaintiffs: Agreements disclaim providing tax/legal advice, so such claims lie outside arbitration scope.	Defendants: Clause covers "any dispute" relating to services/obligations; ambiguities resolved for arbitration.	Court: Clause is broad; any ambiguity resolved in favor of arbitration; all claims encompassed.
Class arbitration — who decides availability and is class arbitration permitted?	Plaintiffs: Clause allows arbitration before AAA (and AAA rules delegate class availability to arbitrator); or parties agreed to arbitrate class claims.	Defendants: Whether class arbitration is available is a gateway question for the court; clause is silent and does not clearly delegate or permit class arbitration.	Court: Joined circuits holding class arbitration is presumptive gateway for courts; clause did not clearly and unmistakably delegate the issue; silence means no class arbitration — individual arbitration only.
Non‑signatory defendants compelling arbitration (alternative estoppel)	Plaintiffs: Non‑signatories cannot compel arbitration of plaintiffs’ claims.	Defendants: Arizona alternative‑estoppel permits nonsignatories to compel arbitration where claims presuppose or rely on the written agreement.	Court: Plaintiffs’ claims presume and intimately rely on the agreements; all non‑signatory defendants may compel arbitration.

Key Cases Cited

Litton Fin. Printing Div. v. NLRB, 501 U.S. 190 (presumption in favor of post‑expiration arbitration unless expressly/clearly negated)
Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79 (distinguishes gateway arbitrability questions for courts from procedural questions for arbitrators)
Stolt‑Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662 (class arbitration changes the nature of arbitration; cannot be presumed)
AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (federal policy favoring arbitration and limits on state defenses)
Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407 (silence or ambiguity in agreement is insufficient to allow class arbitration)
Brennan v. Opus Bank, 796 F.3d 1125 (incorporation of AAA Rules can clearly and unmistakably delegate arbitrability in some contexts)
Huffman v. Hilltop Cos., LLC, 747 F.3d 391 (analysis of survival clause and post‑termination arbitration presumption)
Sun Valley Ranch 308 Ltd. P’ship v. Robson, 294 P.3d 125 (Ariz. Ct. App. recognizing alternative estoppel allowing nonsignatory to compel arbitration)
Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681 (state law defenses to arbitration agreements are governed by general contract defenses)