Jeremy Revitch v. Directv, LLC
977 F.3d 713
| 9th Cir. | 2020Background
- Plaintiff Jeremy Revitch sued DIRECTV under the TCPA for unsolicited prerecorded calls to his cell phone.
- Revitch had signed an AT&T Mobility wireless-service agreement in 2011 containing a broad arbitration clause that defined “AT&T” to include its “affiliates.”
- In 2015 AT&T, Inc. acquired DIRECTV, making DIRECTV an AT&T affiliate after Revitch signed the wireless contract.
- DIRECTV moved to compel arbitration under the Federal Arbitration Act, asserting it qualified as an affiliate entitled to invoke the contract.
- The district court denied the motion; the Ninth Circuit affirmed, holding (majority) that the contract did not reasonably bind Revitch to arbitrate disputes with entities that became affiliates after contracting.
- A concurrence invoked an independent §2 FAA argument that the TCPA claim does not “aris[e] out of” the wireless contract; a dissent argued the term “affiliates” includes future affiliates and ambiguities must be resolved for arbitration.
Issues
| Issue | Plaintiff's Argument (Revitch) | Defendant's Argument (DIRECTV) | Held |
|---|---|---|---|
| Whether DIRECTV (acquired after contracting) may invoke the AT&T Mobility arbitration clause as an affiliate | Revitch: “Affiliates” should be limited to entities existing at contracting; he never agreed to arbitrate with future, unrelated affiliates | DIRECTV: “Affiliates” is unqualified and includes successors/future affiliates; clause is broadly drafted to cover all disputes | Held: No — under California contract principles the parties’ mutual intent at formation did not include future, unrelated affiliates; DIRECTV cannot compel arbitration |
| Whether California’s “absurd-results” interpretive canon is preempted by the FAA (relying on Concepcion/Lamps Plus) | Revitch: Interpreting the clause to bind future unrelated affiliates would produce absurd, unforeseeable results; canon is a neutral interpretive tool | DIRECTV: Supreme Court precedent preempts state rules applied to disfavor arbitration; ambiguities must be resolved for arbitration | Held: FAA does not preempt California’s rule here; the court used the absurd-results canon to determine intent and avoid an interpretation that would force arbitration of unrelated future disputes |
| Whether the FAA applies when the dispute does not “aris[e] out of” the contract (separate concurrence) | Revitch: The TCPA claim against DIRECTV is unrelated to his wireless-services contract | DIRECTV: FAA compels arbitration under the contract terms (focus on scope) | Held (concurrence): The TCPA dispute does not arise out of the wireless contract, so §2 does not compel arbitration; (majority outcome affirmed on consent/formation grounds) |
Key Cases Cited
- Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213 (1985) (district courts have limited role under the FAA and must enforce valid arbitration agreements)
- Chiron Corp. v. Ortho Diagnostic Sys., Inc., 207 F.3d 1126 (9th Cir. 2000) (two-step framework: existence of a valid arbitration agreement and whether it encompasses the dispute)
- Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287 (2010) (arbitration is a matter of consent and courts should not compel arbitration absent agreement)
- AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011) (FAA preempts state rules that operate to disfavor arbitration)
- Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407 (2019) (ambiguities cannot be used to impose class arbitration absent party consent)
- Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983) (ambiguities concerning scope of arbitration are generally resolved in favor of arbitration)
- AT&T Techs., Inc. v. Communications Workers, 475 U.S. 643 (1986) (arbitration depends on parties’ consent)
- Unova, Inc. v. Acer Inc., 363 F.3d 1278 (Fed. Cir. 2004) (contract language in the present tense normally does not include future parents/affiliates)
- Parm v. Bluestem Brands, Inc., 898 F.3d 869 (8th Cir. 2018) (distinguishing scope inquiries from formation and cautioning against disposal by unrelated hypotheticals)
- Tracer Research Corp. v. Nat’l Envtl. Servs. Co., 42 F.3d 1292 (9th Cir. 1994) (interpreting “arising out of/under” clauses as covering disputes relating to interpretation/performance of the contract)