King Cole Foods, Inc. v. SuperValu, Inc.

pass- that customers returned false asserted government argument, if ports for reuse. Even others were more Wang accountable court held the district clearly by culpable, the court did not err activity associated criminal only for the denying minor-participant reduction. Wang admitted people the three McKee, v. See United States F.3d period time he conspired with he (7th Cir.2004) (“where person each Wang conspiracy. did involved in the was an in component’ was ‘essential length and argue Given the not otherwise. involvement, spiracy, the fact that other members of the district Wang’s of nature conspiracy were more involved does not it found that clearly did not err when entitle a a reduction the of- Wang that defendant reasonably it was foreseeable level”). fense And the district court than involved more one conspiracy noted, Wang’s argument in favor of the hundred documents. only

minor-participant reduction shows did Declining Apply the Minor- that his level of involvement not war- B. Participant Was Not aggra- rant an increase for an Reduction offense-level vating in the See Error conspiracy. role U.S.S.G. § 3B1.1. minor-par seeking A a defendant 3B1.2(b) under

ticipant reduction Section III. CONCLUSION of preponderance a prove “must substantially was less cul that he evidence above, For the reasons set forth average participant than the pable Wang’s sentence. Affirm v. Lo enterprise.” criminal United States Cir.2008). 515, 516 pez, argues that he should have received

Wang he not because was involved

this reduction duration, for its entire did the scheme extent, participate

not know of its did not fraud, was majority

in the The district transporters. of several one In re WHOLESALE GROCERY court, Wang “was an which found ANTITRUST PRODUCTS in the document fraud participant active LITIGATION. business,” that he was sub determined stantially par the other culpable less than Market, Foods, Inc.; JFM Cole therefore, and, not entitled to ticipants was Market, Inc., Inc.; MJF denial a the reduction. We review the of Plaintiffs-Appellants minor-participant reduction for clear error. Rodriguez-Cardenas, States v. United Inc.; SuperValu, & S Wholesale C (7th Cir.2004). 958, 959 Grocers, Inc., Defendants- minor-participant key factor for Appellees culpa- is the defendant’s relative reduction above, Wang bility, and was as discussed of Chamber Commerce fully conspiracy. involved in the Over America, Amicus United States time, played he significant period Appellees. Behalf customers, active, by locating essential role them, false Products delivering docu- re Wholesale transporting Litigation. ments, ensuring Antitrust collecting payments, Super Market, Inc.; Blue Goose Millen Inc., Operations, doing

nium business Market, Plaintiffs-Ap Dick’s

as R.C.

pellants Inc.;

SuperValu, C & S Wholesale

Grocers, Inc., Defendants-

Appellees Chamber Commerce of the America,

United States Amicus Appellee.

on Behalf of 11-3768,

Nos. 11-3773.

United States Court of Appeals,

Eighth Circuit.

Submitted: Nov.

Filed: Feb. DC, Noveck,

Gilbert, Washington, Scott M. support appellees. on the amicus brief MURPHY, BENTON, and Before SHEPHERD, Judges. Circuit SHEPHERD, Judge. Circuit (“the grocers five Appellants are retail Retailers”), class- attempting bring each two against action antitrust claims one of (“the Wholesalers”). grocers wholesale only a customer of one of Each Retailer is 'Wholesalers, has an arbitration Wholesaler, and is ment with attempting conspiracy to use antitrust theory against suit bring Wholesaler nor has with whom it neither does business III, Boston, (“the argued, Dangel, non-signa- T. Edward an arbitration brief, MA, Rosenberg, Wholesaler”). M. David dis- tory The district court MA, appellants in No. 11- Cambridge, for the Retailers’ claims and struck missed in the allegations complaint from the their lawsuit, holding ongoing1 Hanover, Drubel, argued, Richard Bruce bringing the Retailers from NH, Schultz, J. bars Kimberly H. Matthew Frechette, Hanover, Henken, non-signatory Ethan T. Wholesaler suit NH, Bruckner, Joseph R. Elizabeth W. allows the Wholesaler MN, brief, Odette, for Minneapolis, cer- compel arbitration. The district court appellants No. 11-3773. Fed- judgment a final under tified as 54(b). re eral Rule of Civil Procedure Safranski, argued, Minne- Stephen Paul Litig., Grocery Prods. Antitrust MN, Wind, Wholesale Craig Alan Karl apolis, Todd ADM/AJB, Lueck, A. 2011 WL R. Damien 09-MD-2090 Wildfang, Martin No. 2011) MN, (D.Minn. 30, Riehl, Christopher J. Minneapolis, Aug. at *4 A. S. MacAvoy, Loughlin, Charles David jurisdiction under We have (unpublished). brief, Shotlander, DC, on the Washington, reverse the district 1291. We 28 U.S.C. for appellees. estoppel bars ruling court’s asserting antitrust the Retailers Conrad, An- Robin Tager,

Evan M. S. court, remand federal Pincus, drew Archis Ashok Parashara- J. Todd, mi, proceedings. further Kathryn L. Sheldon Comerford remaining Wholesalers on the were vor of the the Retailers dismissed from After appeal, the district court plaintiffs’ lawsuit and filed this In re Wholesale claims. plaintiffs re class certification to the denied 09-MD-2090 Prods. Antitrust No. ADM/ maining in the lawsuit. In re Wholesale Gro (D.Minn. AJB, *16 Jan. 2013 WL cery Litig., No. 09-MD-2090 Prods. Antitrust 11, 2013) February (unpublished). As of ADM/AJB, (D.Minn. at *17 plaintiffs has filed notice one of these 25, 2012) (unpublished). The district July appeal orders. of both judgment granted summary in fa court later I. business with or solicit the ex- changed peri- customers for certain time Market, Super Blue Appellants Goose Some, all, od. but not of the Retailers’ (“Blue Goose”), Opera- Inc. Millennium supply agreements and arbitration were tions, (“Millennium”), and King Inc. Cole among exchanged part contracts Cole”) Foods, (“King supply Inc. all have the AEA. Appellee and arbitration with SuperValu, (“SuperValu”). Appel- Inc. AEA, After the all of pur- the Retailers Market, Market, lants Inc. MJF JFM goods chased from the Markets”) (collectively Inc. “the they whom had a and supply both have supply agree- and arbitration (“the Wholesaler”). agreement signatory Appellee with ments C & S Wholesale Each Retailer subsequently brought class- S”).2 Grocers, (“C parties Inc. The all & action antitrust claims in federal district agree supply agree- that the Retailers’ In arbitration, court. an effort to avoid ments with the Wholesalers do not specify brought each Retailer only against price terms. supply agree- Millennium’s the with they whom did not specifies ment SuperValu with Millennium supply have a agreement. and arbitration purchase will a percentage certain of its Thus, Goose, Millennium, Blue King and requirements SuperValu. The other Cole, who had contracts did and business agreements supply Retailers’ do not con- only SuperValu during peri- the class requirements tain provisions, but rather od, brought only antitrust claims against C generally that state the Wholesaler named Likewise, Markets, & Village S. the who agreement the products will make avail- had and only contracts did business with C able and that the Retailer named in the during & period, S the class anti- brought pay prices will the stated on trust claims against SuperValu. The any future sales documents. The arbitra- Retailers alleged that the AEA amounted tion agreements accompanying3 sup- the to illegal an conspiracy antitrust ply agreements all generally specify that the Wholesalers violation of the Sher- the will signatories any arbitrate disputes Act, man artificially U.S.C. inflat- between them. ing prices causing and each Retailer to In September SuperVa- C & S and overpay for grocery pur- their wholesale lu entered Exchange Agree- into Asset chases. (“AEA”) ment they exchanged which assets, certain including business some The Wholesalers moved to dismiss the contracts, agreed customer not to do Retailers’ antitrust claims. The Wholesal- Village parties 2. The agree district noted that the supply agree- the actually Markets executed arbitration agreements ments the arbitration are ac- SuperValu, agreements ments with that those i.e., tually separate that each documents — S, assigned later were Cto & and the signatory Retailer supply both to a Village disputed validity Markets the the agreement. and to an arbitration assignment. In re Wholesale Prods. brief, Ap- The Wholesalers state this in their ADM/AJB, Antitrust No. 09-MD-2090 7, 11-13, pellees' Br. as do Blue Goose and (D.Minn. slip op. at 4 WL n. Millennium, King Blue Br. Goose 6-7. Cole 5, 2011). July appeal, Village On the Markets imply and the Markets the same in have stated that their contracts "were trans- brief, (referring their see Cole Br. 10-12 S, ferred to C & as the District Court found.” agreements” to "arbitration than rather to King Cole Br. 11. Whether the transfer event, clauses”), they "arbitration and in assignment separate stituted a valid is a issue dispute do not the Wholesalers' assertion. appeal. that we do not address on this compel eq- estoppel of either uitable Retailers to argued the doctrine ers arbitrate antitrust claims. their “Where estoppel or successor-in-interest uitable grants appli- district court its non-signatory “Wholesaler allowed estoppel cation of presents Wholesaler’s arbi- enforce least mixed of law questions and fact. Retailers, agreements with the tration circuit, questions mixed of law requiring Retailers arbitrate thus fact are de novo.” reviewed Donaldson non-sig- their antitrust claims Diesel, Inc., v. Burroughs Co. responded natories. Retailers (8th Cir.2009). Upon de novo doctrine nor neither review, we hold that doctrine com- the successor-in-interest Wholesalers cannot use arbitrate, them to and further ar- pelled arbitration. that even if those gued one of doctrines apply, did matter, preliminary As a “state policy public were unenforceable for rea- governs ability nonsig- contract law sons. natories enforce provisions.” arbitration Sys., Inc. v. Energy Primenergy, the granted

The district court Wholesal- L.L.C., (8th Cir.2010) 830, 592 F.3d 833 ers’ motion dismiss the Retailers’ claims (internal omitted). quotation marks The putative from the class action. In re agree parties applies that Minnesota law Prods. Antitrust Wholesale here.4 Minnesota ADM/AJB, 11, slip op. 09-MD-2090 at No. mentioning equitable case estoppel Court (D.Minn. 5, 2011). July 9558054 2011 WL in the context is Inc. v. Onvoy, arbitration First, non-signato- the court held that the SHAL, (Minn.2003). LLC, 344 669 N.W.2d ry equitable could invoke es- case, In that general the court stated the compel toppel to the Retailers to arbitrate rule that clauses “arbitration are contrac Second, their antitrust Id. at 6. claims. tual and cannot be enforced persons agree- the court held that the arbitration are to the parties who not contract.” Id. at 10. ments were enforceable. Id. Be- at 356. then explained cause the district court held the Wholesal- equitable estoppel is an to the exception ers could use to compel rely “prevents rule the court did not address the ing underlying contract to make his argument they Wholesalers’ en- could nonsignatory.” or her claim force the succes- Id. The court not reach did the issue brought sors-in-interest. The Retailers equitable estoppel applied, whether howev appeal. present er, other it remanded ease on because grounds. unpublished at 357. One Id. II. Appeals Minnesota has eval Court case A. equitable estoppel applies uated when context,5 appeal The first issue on is whether but law Minnesota not eq- specifies unpublished Wholesalers use cases are ev3, Collins, S, Goose, A08-1816, Supervalu, No. A08- 4. C & Blue Millen- Inc. v. 2432348, (Minn.Ct.App. explicitly ap- at *1 nium state that Minnesota law 21; 2009) Appellees' (unpublished), plies. Aug. See Br. Blue Goose Br. the Minnesota King Appeals upheld Cole a trial denial and the Markets seem Court court’s (referenc- agree, Reply see Cole Br. 7 of a based on motion to event, law), ing any they equitable estoppel. suggests we Minnesota and in do The dissent dispute analytical approach follow ev3 because "it assertion. ’s 922

precedential. 480A.08(3)(c). Minn.Stat. [Equitable] estoppel7 relies, typically Minnesota appears to follow federal law least on part, being so regarding equitable estoppel. Onvoy, See intertwined contain- (“Federal 669 N.W.2d at 356 cases have ing the arbitration clause that it would set out at least principles three on which a be unfair to allow the signatory to rely nonsignatory to a contract can compel ar in formulating its equitable bitration: estoppel, agency, and claims but to availability disavow of the third-party beneficiary.” (citing MS Dealer arbitration clause of that same Franklin, Serv. Corp. 947 ment. (11th Cir.1999), abrogated on other PRM Energy Sys., 592 (foot- F.3d 835 grounds by Arthur LLP Andersen v. Car added). note A non-signatory can “force a lisle, 624, 631, U.S. 129 S.Ct. signatory into arbitration under the [equi- (2009))). L.Ed.2d Since we do not table] theory when the relation- have published Minnesota apply cases ship persons, wrongs issues ing equitable estoppel, and since Minneso involved ais close one.” appears ta to follow federal regarding law Grizzle, LLC v. estoppel, we look to federal law Cir.2005). here.6 example, For as relevant to the case,

instant estoppel applies We when a complaint addressed the eq doctrine of “allegations involves uitable estoppel in Energy Systems. PRM pre-arranged, collusive behavior demon- case, In that explained: we strating that the claims are intimately provides persuasive a indication of persuasive how predictor tion is not a of how the Supreme Minnesota apply equi Supreme Court Minnesota Court would rule. estoppel.” table at 927. It is true that Infra may we look appellate to intermediate 6. court Several parties' cases cited in the briefs persuasive explicitly decisions as authority they apply "when the law of states other than are best Minnesota inapposite. evidence and thus are of what state See law Sim- is.” Foods, mons Inc. v. H. Supply Minn. Mahmood I. Raymond. Co. v. Al-Bunnia Corp., 472 F.3d Co., 466, & Sons Cir.2011) 634 F.3d (8th Cir.2006). 469 explained 534 As in sec (Arkansas law); Lawson v. the S. Ins. 11(A) however, tion opinion, of our our of Life circuit Co., (11th Cir.2011) 648 F.3d developed has approach equitable to estop- law); Donaldson, (Georgia F.3d at pel is based interpretation that on a different law). (Mississippi analyzed of the same case in ev3 and cited in Supreme the Minnesota Onvoy opin Court’s 7. In cases Energy Systems, as PRM such ion&emdash;namely, Corp. MS Dealer Serv. v. Frank have used the term estoppel” "alternative to lin, (11th Cir.1999), 177 F.3d 942 abrogated refer to the "intertwined agreement” with the grounds on other Arthur Andersen LLP v. theory of a non-signatory when compel Carlisle, 624, 631, 556 U.S. 129 S.Ct. Energy Sys., arbitration. See PRM (2009). 173 L.Ed.2d 832 See at 924 n. infra at 834-35. We did distinguish so to this Moreover, 8. while the court ev3 did state that theory theory a agency "relies principles equitable "the estoppel could be and related principles to allow a nonsignatory applied” compel case, to arbitration in that when, compel aas result of the ultimately upheld court the district court's nonsignatory’s relationship signa- close with a compel not to decision arbitration due to tory, a to do so failure would eviscerate the ev3, standard review. at agreement.” Id. at 834. Since Thus, *6-7. given the Supreme Minnesota court, briefs, parties’ the district and the explicit Onvoy Court’s reference in to federal Minnesota Court "eq- use the term issue, law on this single non-precedential a uitable estoppel,” Onvoy, see 669 N.W.2d at case ultimately did compel which arbitra- we use that term here. allegedly in intertwined with the Kobe Steel entered into such a founded and Energy Sys., agreement. brought PRM 592 sublicense Id. PRM ment at issue.” (internal quotation against non-signatory marks suit Kobe Steel for F.3d at 835 omitted). contrast, merely alleging conspiracy, tortious interference and conspired signatory compel with a Kobe Steel moved to arbitration. estoppel, Id. at 833. The district granted is insufficient to invoke court ... equita- some and inter- Kobe Steel’s motion on the basis of “intimate[ ] absent relationship estoppel, between the claims ble and we affirmed. Id. twined” We agreement containing explained the arbitra- estoppel applied Energy Systems, 592 because the case allegations tion clause. involved violation of the agreement terms clause, containing the and be- Examining applying the facts of cases that agreement “anticipated cause that an our test is instructive. entity might such as Kobe Steel enter into First, CDWI C.D. licensing relationship Primenergy, signed Partners franchise and the [agreement] attempted govern taining arbitration clauses. F.3d at that expected relationship.” Id. at 836. Partners later sued three of C.D. negligence, chief executives for CDWI’s Applying precedent, we hold negligent misrepresentation, and fraudu- the Retailers’ claims the non- misrepresentation in connection with lent signatory Wholesalers are not “so inter of the franchises. Id. The operation their twined with the containing arbitra- three executives moved arbitration clause that it unfair would be tion, and their the district denied signatory rely to allow the reversed, holding, motion. Id. 798. We formulating its claims but to part, “dispute that the relevant availability disavow of the arbitration Partners and three [the C.D. agreement.” clause of that same Id. at non-signatory chief arises out executives] Energy Systems In both PRM 835. directly of and relates to the contractual Partners, plaintiffs’ CD the claims arose the signatories, where directly from violations of the terms of a dispute the core the is of of the conduct containing contract an clause. in nonsignatories fulfilling signa- the three Energy Sys., PRM at See 832- tory promises.” at CDWI’s Id. 33; 424 F.3d at 797. With Second, cases, in Energy Systems, plain PRM out the contracts those the Primenergy had a contract with that tiffs would not have had a cause of action. contrast, granted Primenergy a license to In an bringing use some the Retailers are technology conspiracy of PRM’s and also allowed Pri- titrust claims the non- menergy statutory enter into agree- signatory to sublicense Wholesalers. These parties. independent supply ments with third 592 F.3d at of the claims exist contract an agreements. contained See 15 U.S.C. § Primenergy allegedly (“Every conspiracy[ clause. Id. ... in restraint ] among of the several spired party, Japan-based with third trade or commerce nations, Steel, States, company foreign Kobe to violate the terms or with is declared specifically, illegal.”); (“[A]ny of that contract. Id. More to be 15 U.S.C. injured in although specified person the contract Primener- who shall be his busi gy technology property by anything could not sublicense PRM’s or reason of ness may sue companies Japan, Primenergy and forbidden the antitrust laws 2011). (D.Minn. The court further

therefor....”)- Moreover, July the Retailers’ paying that “the existence of premised on reasoned claims are antitrust by the presumed to arbitrate is but since none ments artificially prices, inflated because by claims asserted the [Retailers] contracts with the Whole- the Retailers’ terms, wholesaler-sup- no agreements the Retailers’ without the specify price salers exploit- to be plier relationship would exist alleged not involve violation claims do conspira- alleged is anti-trust those contracts. Nor ed any terms of however, evidence, analysis, cy....” in PRM Id. at 7. This as there was there relationship be- too much on the explic- that the contracts focuses Energy Systems, signatories, rather than on the enter tween the itly anticipated relationship signatory’s a non- between the relationship type into the non-signatory and the contract relationship being against the signatory here,— containing ulti- the arbitration clause.9 As ex- co-conspirators that of antitrust —that above, conspiracy antitrust plained the claims. Under these mately gave rise to circumstances, of the terms say cannot claims do not involve violation these contract, “rely on”8 and have the face of the contract the Retailers’ claims alleged for the provide ... and intertwined” rela- does not the basis “intimate[ ] injuries, no evidence that the equi- the contracts such that and there is tionship with anticipated precise type apply. should See PRM contract table (internal relationship giving rise to the claims. Energy Sys., 592 F.3d at 835 omitted). Thus, relationship lacking requisite is quotation marks here. per holding equitable estoppel to com non-signatory mits the B. here, rea pel arbitration the district court non-signatory soned, Although ... we hold “The arbitrate cannot use component of the entire Wholesalers are a fundamental the Retailers to arbitrate their relationship between wholesaler-retailer claims, fully precisely the antitrust this does not resolve signatories.... This is non-signatory litiga question in this of whether the relationship issue compel any of the Retail- In re Prods. Wholesalers tion.” Wholesale Antitrust No. 09-MD-2090 ers arbitrate. ADM/ AJB, they argue also can enforce slip op. 9558054 Wholesalers WL Dealer, argue and we do not believe a different Wholesalers that it is irrelevant MS The rely whether the Retailers' antitrust claims on warranted under that case. result be containing the contracts the arbi- terms of Specif- Appellees’ Br. 31-34. tration clause. erroneously Similarly, analysis the dissent's Dealer, ically, they argue that under MS focuses on the terms of the contractual rela- Eleventh Circuit case cited in the Minnesota tionship signatories established between the Onvoy opinion, Onvoy, Court's see agreements. at to the arbitration See infra unnecessary reliance is 669 N.W.2d case, however, is 925-27. The issue in this complaint allegations when the involves relationship the contractual between the concerted misconduct between Rather, signatories. the issue is whether the (cit- non-signatory. Appellees’ Br. 31-32 signatory’s non-signatory However, Dealer, 947). ing MS 177 F.3d at non-signatory that the are of such a nature Partners, Energy Systems both PRM and CD compel pursuant able to should be heavily on Dealer. See PRM we relied MS sig- the terms of the contract between the 834-36; Partners, Energy Sys., 592 F.3d at CD natories, Thus, though non-signatory was even 424 F.3d at 798. CD Partners and PRM party Energy Systems interpretation of not a to that contract. involved our Village and the Market’s ar- known if and how proceed Millennium’s this case will on remand”). agreements as sueeessors-in-in- bitration agreements ex-

terest because those were the AEA.10Since the changed part as III. district court found Accordingly, we reverse the district dispositive, issue it did not address holding non-signatory court’s that argument. Accord- successor-in-interest Wholesalers can enforce the Retailers’ ar- for the court ingly, we remand district agreements bitration based the doctrine in- argument consider this the first estoppel. We remand for fur- Techsystems, stance. See Alliant Inc. v. ther (8th proceedings consistent with Marks, Cir.2006) opin- this 465 F.3d ion. (“Because did not the district court decide claims,

the merits of these which are fact-based, heavily we decline to consider BENTON, Judge, dissenting. Circuit instance.”). them in the first Because Minnesota equitable-estoppel law and the text of the

C. arbitration, ments compel respectfully I Finally, King Village Cole and the Mar- opinion. dissent from the court’s argue if the kets even two, opinion independent, has flaws. arbitration, compel can the ar- First, the court misreads the arbitration bitration are unenforceable Second, agreement. incorrectly the court public policy reasons.11 respect With to applies principles, thereby choice-of-law Cole, this argument is moot because omitting an important component equi- equi- have held C & S cannot use table-estoppel doctrine in Minnesota. table and C argu- & S does not make the alternative I.

ment that it can enforce the arbitration successor-in-interest. The court prece- asserts this court’s Markets, respect Village to the preclude equitable With dents estoppel, ante 922-24, argument Sys., is relevant if the district citing Energy Inc. L.L.C., court finds that SuperValu Primenergy, enforce the 592 F.3d Cir.2010); Grizzle, as a successor-in- CD LLC v. (8th Cir.2005). interest. remanding Since we are for the 424 F.3d district court correctly to consider the successor-in- describes the factual cir- argument, interest we decline to reach the Energy cumstances of PRM Part- public policy argument Markets’ lynchpin holding as ners. The of this court’s here, however, issuing advisory we would risk opinion. the Retailers’ claims Tyerman, independent supply See United States v. “exist and arbi- (8th Cir.2011) (declining agreements,” 936 n. to tration ante at 923. That record, remaining reach issues it is un- “because statement has no basis the mis- 10. argu equita- do make C & Wholesalers not this have held S cannot use since respect ment with to Blue Goose or estoppel ble to and C & S Cole. argument does not make alternative agreement it can enforce the arbitration as a 11. Neither Millennium nor Blue Goose makes successor-in-interest. event, argument. any argument respect would be moot with to Blue Goose

reads the arbitration agreement, and gy.”); Partners, leads 424 F.3d at 797 to an (“Each incorrect result in this case. franchise agreement contained an identical stated, arbitration clause which arbitration in this case relevant part: ‘Except provided as in this apply any dispute to arising between the Agreement, parties, Franchisor solely not Franchisee those arising under a agree claim, single any contract: controversy or dis- pute arising out of Any relating or controversy, claim to dispute or Franchi- see’s operation whatever arising nature between Re- Franchised business tailer and any SUPERVALU or the Agreement other under ... which cannot be Entity, SUPERVALU as amicably defined be- settled shall be referred to Arbi- ’ low, including but not to ”). limited those tration .... The arbitration clauses in arising out or relating any agree- both cases were to disputes limited arising ment parties between the or specific under a Therefore, contract. breach, termination, enforceability, appropriate inquiry scope thereof, or validity whether such was whether the claims were sufficiently to, claim prior existed or arises on or “intertwined” with the contract. See PRM after, (a the Execution Date “Dispute”), Energy, at 835. shall be or, resolved mediation fail- Not so in this mediation, case. The ing by binding arbitration arbitration. agreement A here all Entity” disputes covers “SUPERVALU is “in- defined cluding SUPERVALU but not any INC. or limited to other enti- those arising out that, ty directly or indirectly, of or relating or to any agreement owns between controls, is owned or by, controlled or parties.” As the district court correct- is under common ownership or control ly ruled, this agreement arbitration covers with, SUPERVALU INC. the entire relationship and course of deal- Although ing, include, executed on the same date as and would for example, later Agreements, Retail purchase contracts purchase transac- ment is a separate document. It does not tions. The antitrust claims from the Re- make reference to the Agree- Retail purchase tailers —that prices were inflat- By terms, ment. its it applies to any certainly ed—are “intertwined” with and dispute parties, whether or “rely on” the terms of those transactions it involves the Retail Agreement. and the course of dealing between the Nevertheless, the court apparently con- parties. See id. cludes that agreement this arbitration The court states: “In both PRM Energy

limited to disputes under the Agree- Retail Systems and CD the plaintiffs’ ment. arose directly claims from violations of the This is not like terms of a contract containing an arbitra- the arbitration clauses in Energy clause,” tion ante at Precisely. This There, CD Partners. the arbitration case presents a broader arbitration agree- applied only clauses disputes related to ment that is not solely tied contract containing the aris- clause. PRM ing Energy, under a (Beam, specific J., contract. Yet the dissent- (“The ing) treats them the clause same. I tangentially would hold at issue purports here cover the arbitration disputes ‘all here com- arising under’ a technology pels licensing equitable based on estop- agreement between PRM and Primener- pel.

927 highest court would re- predict how II. issue, with decisions of interme- solve the law correctly notes that state being persuasive courts author- diate state can en nonsignatories whether determines Onvoy, the discussion in ity.”). Based on Ener provisions. force only prediction is that the appropriate (8th Cir.2010), citing F.3d at 833 gy, 592 apply eq- would Supreme Court Minnesota Carlisle, LLP v. 556 U.S. Andersen Arthur Deal- expressed as in MS uitable 1896, 630-31, 173 L.Ed.2d 624, 129 S.Ct. only er—the case that court cites. (2009). recognized eq has 832 Minnesota in separate articulates two MS Dealer one method to enforce estoppel as uitable “First, estoppel. eq quiries equitable for against nonsig- a an arbitration estoppel applies signatory uitable when the LLC, SHAL, 669 Onvoy, Inc. v. natory. agreement containing an arbi to a written (Minn.2003), 344, citing MS 356 N.W.2d rely ‘must on the terms of tration clause Franklin, 177 v. F.3d Corp. Dealer Serv. asserting in [its] the written (11th Cir.1999), 942, abrogated on oth 947 nonsignatory.” MS claims’ 631, Carlisle, by 556 U.S. grounds er (alteration Dealer, in origi 177 F.3d at 947 Supreme The Minnesota 129 S.Ct. 1896. Drinks, nal), v. Sunkist Inc. quoting Soft estop- equitable Court’s discussion Growers, Inc., 753, 10 F.3d 757 Sunkist entirety its follows: pel —is —in Cir.1993). (11th “Second, ‘application of at least three cases have set out Federal ... when equitable estoppel is warranted nonsignatory a to a on which principles containing signatory the contract [to equita arbitration: contract allegations of raises clause] third-party agency, and estoppel, ble and con substantially interdependent ... v. Corp. Dealer Serv. beneficiary. MS by nonsignato- both the certed misconduct (11th Franklin, 942, 947 Cir. signatories or of the ry and one more 1999). a estoppel prevents Equitable ” (alterations origi Id. the contract.’ underlying relying nal), Legend, v. Homes quoting Boyd make his or her claim contract (M.D.Ala. Inc., 1423, F.Supp. id.; nonsignatory. See Ga against the 1997). Wilner, Domke on Commercial briel M. Further, apply Minnesota case the one (1983). § 10.07 Arbitration dispensed ing other case— Onvoy Id. Not in —or unpublished it is court because Supreme apply Court does the Minnesota at 921- precedential,” ante therefore “not appropri- equitable estoppel, announce ev3, Collins, Inc. v. No. citing 22 & n. test(s) it, any further provide ate or A08-1901, A08-1816, equitable-estoppel into Minnesota insight 2009) (unpub (Minn.Ct.App. Aug. *1 Nevertheless, this court holds law. 480A.08(3)(c). lished); While Minn.Stat. federal law appears to follow “Minnesota provides it may precedential, not be it at 927. equitable estoppel,” ante regarding the Minneso indication of how persuasive apply Supreme ta Court Supreme Court Because the Minnesota Lumber & Cedar See Marvin estoppel. apply not addressed how to has Inc., Indus., 223 F.3d v. predict must how the Co. PPG estoppel, this court (8th Cir.2000) on an un (relying, part, N. Ins. Co. Progressive rule. court would Appeals Court published Minnesota McDonough, v. outcome Cir.2010) (“If justify predicted has case to highest state court Court); Friedberg to Minnesota attempt we must decided an issue Son, Inc., Chubb & F.Supp.2d interpretation has been. See McDonough, (D.Minn.2011) (“Bloom 1059 n. 7 608 F.3d at [v. West Co., ern Nat. Mut. Ins. 2006 WL 1806415 The Minnesota Court Appeals held (MinmApp.) unpublished is an opinion ] that concerted misconduct grounds Appeals, Minnesota Court of but the evS, equitable estoppel. 2009 WL persuasive court finds Bloom in predicting at *6. This test is met plaintiff when the how the Minnesota Supreme Court would alleges “substantially interdependent and interpret instant policy.”)- The concerted by misconduct both the nonsig- Minnesota Court Appeals followed the natory and one or more of signatories exact approach I suggest equitable es- — Dealer, of the contract.” MS 177 F.3d at toppel ev3, as articulated in MS Dealer. 947. That is what happened here. The (“[I]n at *3 MS Dealer Retailers allege SuperValu and C & S Franklin, Serv. Corp. v. by cited the su acted in through concert the Asset Ex- preme in Onvoy, court the Eleventh Cir change Agreement separate establish cuit equitable stated that estoppel allows a territories, competition, eliminate and raise nonsignatory arbitration in two prices. different situations see also In re Energy PRM supports case this Co., Inc., Petters 480 B.R. 361-62 conclusion: “PRM specifically allege[d] (Bankr.D.Minn.2012) (explaining coordinated behavior a signatory Minnesota courts adopted have two, these “[cjollusive and a non-signatory” and separate inquiries for equitable estoppel). duct between Kobe Steel Primenergy allegedly arose from potential this rela- The “relies on” test and the “concerted tionship.” Energy, 592 F.3d at 836. misconduct” separate test are grounds for Further, if even concerted misconduct re- equitable estoppel in Minnesota. Under quires the claims to be intertwined with test, either I believe contraet(s) subject compels arbitration the claims present, nexus is in Part I. discussed case. I would hold that the concerted miscon- As I, in Part discussed the Retailers’ alleged duct in this case also establishes rely claims dealing course of be- equitable estoppel and compels arbitration. tween the parties and the purchase trans- actions—all of which are by governed III. agreement. But the court’s Finding estoppel compels analysis stop should not there. require this court to ad This court should also consider the “con- dress Cole’s Markets’ certed misconduct” test of equitable estop- argument that the pel. Dealer, See MS F.3d 947. The are unenforceable on public-policy grounds have addressed concerted because arbitration would prohibitively be by misconduct discussing PRM Energy expensive. argument This is foreclosed and CD Partners because “in both PRM the Supreme Court. AT & T Mobility Energy — Systems and CD we re- LLC v. Concepcion, -, U.S. Dealer,” heavily lied on MS ante at 924 n. 1740, 1748, (2011). S.Ct. 179 L.Ed.2d 742 so, 8. Even this court should be concerned But see In re Am. Express Merchants’ with what the Minnesota Court’s (2d Cir.), 217-18 cert. be, view would and not what this granted court’s sub Express nom. Am. Co. v. Ital- — Restaurant, U.S.-, Colors ian (2012). 594, 184 L.Ed.2d 390

S.Ct. ‡ ‡ ‡ ‡

‡ $ the court’s dissent from respectfully

I judgment would affirm

opinion, and district court. America, STATES

UNITED

Plaintiff-Appellee

v. HOFFMAN,

Douglas Defendant-

Appellant. America, States

United

Plaintiff-Appellee Lopez-Soto, known as also

Marisol Gladys

Gladys Lopez, known as also Defendant-Appellant.

Lopez-Soto, 11-3636, 11-3778.

Nos. Appeals, Court of

United States

Eighth Circuit. Oct.

Submitted: 14, 2013.

Filed: Feb.

Case Details

Case Name: King Cole Foods, Inc. v. SuperValu, Inc.

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Feb 13, 2013

Citation: 707 F.3d 917

Docket Number: 11-3768, 11-3773

Court Abbreviation: 8th Cir.