Donald White v. Sunoco Inc

Filing

PRECEDENTIAL OPINION Coram: CHAGARES, RESTREPO and ROTH, Circuit Judges. Total Pages: 31. Judge: CHAGARES Authoring, Judge: ROTH Dissenting.

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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-2808
_____________
DONALD WHITE,
On behalf of himself and all others similarly situated
v.
SUNOCO, INC.,
Appellant
_____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2:15-cv-04595)
District Judge: Honorable Paul S. Diamond
_____________
Argued: January 24, 2017
Before: CHAGARES, RESTREPO, and ROTH, Circuit
Judges.
(Opinion Filed: September 5, 2017)

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Seamus C. Duffy (ARGUED)
Kathryn E. Deal
Meredith C. Slawe
Katherine L. Villanueva
Drinker Biddle & Reath
18th & Cherry Streets
One Logan Square, Suite 2000
Philadelphia, PA 19103
Counsel for Appellant
David J. Stanoch (ARGUED)
Richard M. Golomb
Ruben Honik
Kenneth J. Grunfeld
Golomb & Honik
1515 Market Street
Suite 1100
Philadelphia, PA 19102
Counsel for Appellee
____________
OPINION
____________
CHAGARES, Circuit Judge.
Sunoco, Inc. appeals from the District Court’s denial of
its motion to compel arbitration, arguing that Donald White,
who brought this lawsuit against Sunoco alleging fraud on
behalf of a putative class, must arbitrate his claims pursuant to

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a credit card agreement that White signed with a third party
who is not named in the lawsuit. At issue in this appeal is
whether Sunoco, a non-signatory to the credit card agreement
and who is not mentioned in the agreement, can compel White
to arbitrate. After examining the relevant state law and
applying it to the facts here, we will affirm the District Court’s
judgment.
I.
Appellant Sunoco is a Pennsylvania corporation that
markets and sells gasoline through approximately 4,900 retail
operations in 26 states. This lawsuit involves the “Sunoco
Rewards Program,” which Sunoco advertised through various
promotional materials. The Sunoco Rewards Program offered
customers who buy gas at Sunoco locations using a Citibankissued credit card (the “Sunoco Rewards Card”) a 5-cent per
gallon discount either at the pump or on their monthly billing
statements. The promotional materials included a “Terms and
Conditions of Offer” sheet, indicating that Citibank, N.A. is the
issuer of the Sunoco Rewards Card. Joint Appendix (“J.A.”)
45, 52. They also stated that approval for the card was
dependent on meeting Citibank’s creditworthiness criteria and
that by applying for the card, the applicant authorized Citibank
to “share with Sunoco® and its affiliates experiential and
transactional information regarding your activity with us.”
J.A. 52. Finally, the promotion explained, “When you become
a cardmember, you will receive the full Sunoco Rewards Card
Program Terms and Conditions, which may change at any time
for any reason upon thirty (30) days prior written notice.” Id.
Although Sunoco and White disagree as to whether Sunoco
and Citibank jointly marketed the credit card, it is undisputed

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that Sunoco was not a corporate affiliate of and had no
ownership interest in Citibank and vice versa.
Appellant White is a Florida resident who applied for
and obtained a Sunoco Rewards Card from Citibank in 2013.
He made fuel purchases with the card at various Sunocobranded gas station locations. White alleges that “[c]ontrary to
its clear and express representations, Sunoco does not apply a
5¢/gallon discount on all fuel purchases made by cardholders
at every Sunoco location. Sunoco omits this material
information to induce customers to sign-up for the Sunoco
Rewards Credit Card so they frequent Sunoco locations.” J.A.
31. White avers that but for the representations regarding the
5-cent per gallon discount, he “would not have become [a]
Sunoco Credit Card cardholder[] and/or would have purchased
gasoline at cheaper prices and/or elsewhere.” J.A. 37. He
brings claims of fraud and fraudulent inducement, negligent
misrepresentation, unjust enrichment, and violation of the
Florida Deceptive and Unfair Trade Practices Act. White’s
claims are against Sunoco only, and he alleges no misconduct
by Citibank.1

1

Before bringing this action, White communicated with the
Citibank customer service department several times regarding
the status of fuel discount credits that he claims he was entitled
to but did not receive. White alleges that on several occasions,
Citibank told him that “[u]nfortunately, not all stations honor
the discount as they are independently owned and operated.”
J.A. 252; see also J.A. 31. White acknowledges that Citibank
did credit his account to some extent after he complained.

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White’s Sunoco Rewards Card is governed by a Card
Agreement, which he received when he first obtained the card
from Citibank and again when he requested additional copies
of the agreement from Citibank on April 30, 2014 and June 1,
2015. The Card Agreement explicitly states that “we, us, and
our mean Citibank, N.A., the issuer of your account” and that
“you, your, and yours mean the person who applied to open
this account.” J.A. 88.
It is undisputed that Sunoco is not a signatory to the
Card Agreement, to which White and Citibank are the only
parties. The Card Agreement does not mention the word
“Sunoco”; it also makes no mention of the 5-cent per gallon
discount. However, the account statements mailed to White
bear the Sunoco logo and include e-mail and mailing
information for Sunoco. The Card Agreement also contains a
“Governing Law and Enforcing Our Rights” section that states
that the “terms and enforcement” of the agreement are
governed by “[f]ederal law and the law of South Dakota, where
[Citibank is] located.” J.A. 92.
Sunoco filed a motion to compel arbitration based on
the arbitration clause contained in the Card Agreement. The
arbitration clause provides in relevant part,
PLEASE READ THIS PROVISION OF THE
AGREEMENT CAREFULLY. IT PROVIDES
THAT
ANY
DISPUTE
MAY
BE
RESOLVED BY BINDING ARBITRATION.
ARBITRATION REPLACES THE RIGHT
TO GO TO COURT, INCLUDING THE
RIGHT TO A JURY AND THE RIGHT TO
INITIATE OR PARTICIPATE IN A CLASS

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ACTION OR SIMILAR PROCEEDING. IN
ARBITRATION,
A
DISPUTE
IS
RESOLVED BY AN ARBITRATOR
INSTEAD OF A JUDGE OR JURY.
ARBITRATION
PROCEDURES
ARE
SIMPLER AND MORE LIMITED THAN
COURT PROCEDURES.
Agreement to Arbitrate: Either you
without the other’s consent, elect
binding arbitration for any claim,
controversy between you and
“Claims”).

or we may,
mandatory,
dispute, or
us (called

J.A. 91. The arbitration clause also defined the claims that are
subject to arbitration as those “relating to your account, a prior
related account, or our relationship . . . including Claims
regarding the application, enforceability, or interpretation of
this Agreement and this arbitration provision.” Id. The
provision adds that relevant claims are subject to arbitration
“no matter what legal theory they are based on or what remedy
. . . they seek.” Id. Finally, a paragraph titled “Whose Claims
are subject to arbitration?” states, “[n]ot only ours and yours,
but also claims made by or against anyone connected with us
or you or claiming through us or you, such as a co-applicant or
authorized user of your account, an employee, agent,
representative, affiliated company, predecessor or successor,
heir, assignee, or trustee in bankruptcy” are subject to
arbitration. Id. The arbitration provision also sets forth the
steps for invoking arbitration: “At any time you or we may ask
an appropriate court to compel arbitration of Claims, or to stay
the litigation of Claims pending arbitration, even if such

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Claims are part of a lawsuit, unless a trial has begun or a final
judgment has been entered.”2 Id.
The District Court denied Sunoco’s motion to compel
arbitration. The court began its analysis by noting that
“traditional principles of state law allow a contract to be
enforced by or against nonparties to the contract” and that such
principles apply to arbitration agreements. J.A. 11 (quoting
Griswold v. Coventry First LLC, 762 F.3d 264, 271 (3d Cir.
2014)). It determined that it would apply Third Circuit
authority on compelling arbitration, explaining that neither
party raised choice-of-law issues, and that it believed the
outcome would be the same regardless of which law the court
applied.
Examining the arbitration provision itself, the District
Court observed that there was no dispute as to the validity of
the provision and that the provision could only be enforced by
signatories to it unless contract, agency, or estoppel principles
dictated otherwise. The District Court examined all three and
determined that none applied. It concluded that as to contract
and agency law, Sunoco was not a third-party beneficiary of
the Cardholder Agreement and its arbitration provision, and
that Sunoco was not an agent, owner, or subsidiary of Citibank
or vice versa. As to estoppel, the District Court concluded that
the two-part “alternative estoppel” test discussed in E.I.
DuPont de Nemours & Co. v. Rhone Poulenc Fiber & Resin
Intermediates, S.A.S., 269 F.3d 187 (3d Cir. 2001), was not
2

Citibank registered the arbitration clause of this agreement
with the American Arbitration Association as the “Citibank
Cards Standard Arbitration Agreement.” J.A. 33841.

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met because 1) there was no close relationship between Sunoco
and Citibank, and 2) the claims alleged against Sunoco did not
relate to the terms or obligations in the Cardholder Agreement.
Finally, the District Court rejected Sunoco’s argument that
because White had benefitted from the Cardholder Agreement,
he should be estopped from bypassing its arbitration clause in
this suit. The District Court reasoned that because a dispute
that arises under the Cardholder Agreement is distinct from any
dispute arising from a separate agreement with Sunoco, the
estoppel principle does not apply to White.
Sunoco timely appealed.
II.
The District Court had jurisdiction pursuant to 28
U.S.C. § 1332(d). Our appellate jurisdiction over the District
Court’s denial of Sunoco’s motion to compel arbitration
derives from 28 U.S.C. § 1291 and the Federal Arbitration Act
(“FAA”), 9 U.S.C. § 16(a)(1)(B). See Griswold, 762 F.3d at
268. “We exercise plenary review over the District Court’s
order on a motion to compel arbitration.” Flintkote Co. v.
Aviva PLC, 769 F.3d 215, 219 (3d Cir. 2014). We use the
standard for summary judgment under Federal Rule of Civil
Procedure 56(a) when reviewing the underlying motion
“because the district court’s order compelling arbitration is in
effect a summary disposition of the issue of whether or not
there had been a meeting of the minds on the agreement to
arbitrate.” Id. (quoting Century Indem. Co. v. Certain
Underwriters at Lloyd’s, London, 584 F.3d 513, 528 (3d Cir.
2009)). Thus, a motion to compel arbitration should only be
granted if there is no genuine dispute as to any material fact
and, after viewing facts and drawing inferences in favor of the

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non-moving party, the party moving to compel is entitled to
judgment as a matter of law. Id. We note that under the FAA,
“the presumption of arbitrability applies only where an
arbitration agreement is ambiguous about whether it covers the
dispute at hand. Otherwise, the plain language of the contract
holds.” CardioNet, Inc. v. Cigna Health Corp., 751 F.3d 165,
173 (3d Cir. 2014) (citation omitted).
III.
The key issue in this case is whether Sunoco, as a nonsignatory to the Card Agreement and its arbitration clause, can
compel White to arbitrate. The Supreme Court explained in
Arthur Andersen LLP v. Carlisle that “‘traditional principles’
of state law allow a contract to be enforced by or against
nonparties through ‘assumption, piercing the corporate veil,
alter ego, incorporation by reference, third-party beneficiary
theories, waiver and estoppel.’” 556 U.S. 624, 631 (2009)
(quoting 21 R. Lord, Williston on Contracts § 57:19 (4th ed.
2001)); see also Crawford Prof’l Drugs, Inc. v. CVS Caremark
Corp., 748 F.3d 249, 261–62 (5th Cir. 2014) (“[P]rior decisions
allowing non-signatories to compel arbitration based on federal
common law, rather than state contract law . . . have been
modified to conform with Arthur Andersen.”).
Sunoco argues that equitable estoppel prevents White
from refusing arbitration against it as a non-signatory.3 The
Arthur Andersen Court held that a non-party to an arbitration
agreement may invoke section 3 of the FAA for a stay in
Sunoco does not challenge the District Court’s conclusion that
third-party beneficiary theory and agency theory were invalid
bases for Sunoco to compel White to arbitrate.
3

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federal court if the relevant state law allows a non-signatory to
enforce the arbitration agreement against a signatory. 556 U.S.
at 632.4
4

The parties appear to rely on DuPont, 269 F.3d 187, for a
federal rule of equitable or “alternative” estoppel that binds a
signatory to arbitrate against its will with a non-signatory. See
White Br. 24; Sunoco Br. 30; J.A. 17 (citing DuPont for the
principle that, “Under the ‘alternative estoppel’ theory, a nonsignatory may seek enforcement [of an arbitration clause
against a non-signatory] when it can show: 1) there is a close
relationship between it and a signatory; and 2) the alleged
wrongs are related to a non-signatory’s contractual obligations
and duties.”). This reliance is ill-placed, as we did not adopt a
rule regarding alternative estoppel in DuPont. We decline to
do so here because the Supreme Court in Arthur Andersen has
rejected the analysis referenced in DuPont, which rested on
federal law. In DuPont, we had no occasion to adopt or reject
a standard, but merely observed that other Courts of Appeals
have employed an “alternative estoppel” theory when “a nonsignatory voluntarily pierces its own veil to arbitrate claims
against a signatory that are derivative of its corporate-subsidy’s
claims against the same signatory.” DuPont, 269 F.3d at 201
(“Appellants recognize that these cases bind a signatory[,] not
a non-signatory to arbitration, but argue that this is a distinction
without a difference. They are wrong.”). We reinforced our
observation about alternative estoppel theory in Griswold
before concluding that such a theory is “inapplicable because
our case involves a signatory . . . attempting to bind a
nonsignatory . . . to the arbitration clause, rather than the
inverse.” 762 F.3d at 272.

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To choose which state law will apply, “a federal court
sitting in diversity must apply the choice-of-law rules of the
forum state.” LeJeune v. Bliss-Salem, Inc., 85 F.3d 1069, 1071
(3d Cir. 1996) (citing Klaxon Co. v. Stentor Elec. Mfg. Co.,
313 U.S. 487, 496 (1941)). The forum state is Pennsylvania
because the action was brought in the Eastern District of
Pennsylvania. However, neither Sunoco nor White argued in
their briefs which state’s law regarding equitable estoppel
should apply under Pennsylvania choice-of-law provisions. At
oral argument, they did agree that Pennsylvania law does not
apply.5 Sunoco’s attorney took the position that South Dakota
law applies, while White’s attorney stated that Florida law
applies.6
Oral Arg. Tr. 11:4045; 23:1026.
Under
5

The equitable estoppel rule in Pennsylvania is essentially the
same as the test described in DuPont: “‘non-signatories to an
arbitration agreement can enforce such an agreement when
there is an obvious and close nexus between the nonsignatories and the contract or the contracting parties’ . . . [and
if] claims against [the non-signatory] are inextricably entwined
with the Contract.” Elwyn v. DeLuca, 48 A.3d 457, 463 (Pa.
Super. 2012) (quoting Dodds v. Pulte Home Corp., 909 A.2d
348, 351 (Pa. Super. 2006)). Even under Pennsylvania law,
Sunoco’s argument would still fail for substantially the same
reasons the District Court advanced.
6

While the Card Agreement’s choice-of-law clause requires
that the terms of the agreement itself be governed by South
Dakota law, it is not immediately obvious whether the issue of
equitable estoppel would be determined by that clause,
especially since Citibank — which drafted the choice-of-law
clause and is located in South Dakota — is not party to this
dispute.

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Pennsylvania’s choice-of-law analysis, we examine whether
“the laws of the two jurisdictions would produce the same
result on the particular issue presented.” Berg Chilling Sys.,
Inc. v. Hull Corp., 435 F.3d 455, 462 (3d Cir. 2006). If the
results would be the same, there is no actual conflict and we
“should avoid the choice-of-law question.” Id. We thus
examine whether the laws of Florida and South Dakota
regarding equitable estoppel would produce the same result in
this case. We conclude that they do.
Under South Dakota law, a signatory can be forced to
arbitrate against a non-signatory under principles of equitable
estoppel in either of two circumstances. The first is when “all
the claims against the nonsignatory defendants are based on
alleged substantially interdependent and concerted misconduct
by both the nonsignatories and one or more of the signatories
to the contract.” Rossi Fine Jewelers, Inc. v. Gunderson, 648
N.W.2d 812, 815 (S.D. 2002) (citing MS Dealer Serv. Corp. v.
Franklin, 177 F.3d 942, 947 (11th Cir. 1999)). The reasoning
behind this rule is that plaintiffs should not be able to “avoid
the arbitration for which [they] had contracted simply by
adding a nonsignatory defendant.” Id. (alteration in original)
(quoting Cosmotek Mumessillik Ve Ticaret Ltd. Sirkketi v.
Cosmotek USA, Inc., 942 F. Supp. 757, 759 (D. Conn. 1996)).
Second, a signatory can also be compelled to arbitrate against
a non-signatory under South Dakota law when it asserts
“claims arising out of agreements against nonsignatories to
those agreements without allowing those defendants also to
invoke the arbitration clause contained in the agreements.” Id.
(alterations omitted) (quoting A.L. Williams & Assocs., Inc. v.
McMahon, 697 F. Supp. 488, 494 (N.D. Ga. 1988)); see also
MS Dealer, 177 F.3d at 947. In other words, a plaintiffsignatory cannot have his cake (use the agreement against the

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non-signatory) and eat it too (avoid enforcement of the
arbitration clause within the agreement).
Although the Florida Supreme Court has not opined on
equitable estoppel in the arbitration enforcement context, we
“predict how it would rule if faced with the issue.” Spence v.
ESAB Grp., Inc., 623 F.3d 212, 216 (3d Cir. 2010). We look
to “‘decisions of intermediate appellate courts, of federal
courts interpreting that state’s law, and of other state supreme
courts that addressed the issue,’ as well as to ‘analogous
decisions, considered dicta, scholarly works, and any other
reliable data tending convincingly to show how the highest
court in the state would decide the issue at hand.’” Id. at 216–
17 (quoting Norfolk S. Ry. Co. v. Basell USA Inc., 512 F.3d
86, 92 (3d Cir. 2008)). We are convinced that the Florida
Supreme Court would adopt the same rules as South Dakota,
as three of the five intermediate state appellate courts in Florida
have had occasion to review the issue and adopted the same
rules. See Heller v. Blue Aerospace, LLC, 112 So. 3d 635, 637
(Fla. 4th Dist. Ct. App. 2013); Perdido Key Island Resort Dev.,
L.L.P. v. Regions Bank, 102 So. 3d 1, 6 (Fla. 1st Dist. Ct. App.
2012); Armas v. Prudential Sec., Inc., 842 So. 2d 210, 212 (Fla.
3d Dist. Ct. App. 2003).
A non-signatory may enforce an arbitration clause
against a signatory under Florida law in either of two
circumstances. First, “[e]quitable estoppel is warranted when
the signatory to the contract containing the arbitration clause
raises allegations of concerted conduct by both the nonsignatory and one or more of the signatories to the contract.”
Armas, 842 So. 2d at 212 (adopting the rule set forth in MS
Dealer, 177 F.3d at 947, as the South Dakota Supreme Court
had done); see also Perdido, 102 So. 3d at 6; Heller, 112 So. 3d

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at 637. Second, a plaintiff may be “equitably estopped from
avoiding arbitration with [a non-signatory defendant] when the
claims stem from the same contractual obligation as [the
plaintiff] is relying on . . . .” Armas, 842 So. 2d at 212. The
rationale behind this rule is to “prevent a plaintiff from relying
on a contract when it works to his advantage and repudiating it
when it works to his disadvantage by requiring arbitration.” Id.
(citing In re Humana Inc. Managed Care Litig., 285 F.3d 971
(11th Cir. 2002)).
To summarize: both South Dakota and Florida courts
would apply the doctrine of equitable estoppel to prevent a
signatory from avoiding arbitration against a non-signatory in
two circumstances. First, if a plaintiff-signatory alleges
concerted conduct on the part of both the non-signatory and
another signatory, that plaintiff may be equitably estopped
from avoiding arbitration with the non-signatory. Second, if a
plaintiff-signatory asserts a claim against a defendant based on
an agreement, that plaintiff may be equitably estopped from
avoiding arbitration on the basis that the defendant was not a
signatory to that same agreement. Neither circumstance is
applicable in this case.
We hold that White cannot be forced to arbitrate under
principles of equitable estoppel under either South Dakota or
Florida law. First, there is no alleged “concerted conduct” or
misconduct on the part of Sunoco and Citibank. See Armas,
842 So. 2d at 212; Rossi, 648 N.W.2d at 815. While Sunoco
contends that White strategically withheld allegations against
Citibank, and that the “[p]laintiff artfully pleaded his claim to
assert a fraudulent inducement theory against Sunoco alone” in
order to connect the claims against Sunoco to the Cardholder
Agreement, Sunoco Br. 34, 4345, such assertions are

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unfounded. We decline to speculate as to whether White has
some related grievance against Citibank and to compel White
to arbitrate based on that speculation. Further, there is nothing
in the record to suggest that Citibank engaged in any concerted
misconduct with Sunoco regarding the 5-cent per gallon
discount. Sunoco’s suggestion that Citibank’s participation in
approving card applications and calculating statement credits
somehow constitutes concerted misconduct is also unfounded.
Moreover, the fact that Citibank provided credits to White after
he complained does not establish concerted misconduct
between Citibank and Sunoco.
We also disagree with Sunoco’s characterization of this
case as akin to one alleging that the entire Card Agreement,
including the arbitration agreement, is the product of fraud.
See Sunoco Br. 34 (citing Merritt-Chapman & Scott Corp. v.
Pa. Turnpike Comm’n, 387 F.2d 768, 771 (3d Cir. 1967)). This
is not the case here because White is not launching a “general
attack on a contract for fraud” or arguing that “if fraud is
proven[,] the entire contract, including the arbitration
provision, would fall.” Merritt-Chapman, 387 F.2d at 771.
White’s claims against Sunoco do not impinge on the integrity
of the Card Agreement between White and Citibank. Further,
Sunoco cannot draw a relationship between the fraud claims
and the Card Agreement where White has not alleged any.
Second, the claims that White asserts against Sunoco do
not rely on any terms in the Card Agreement; White is
therefore not estopped from avoiding arbitration under the
arbitration clause within the Card Agreement. We know this
to be true because even if the Card Agreement contained
entirely different terms — for example, about the interest rate,
credit limit, billing address, annual membership fee, foreign

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transaction fees, payment schedules, credit reporting rules, or
even the arbitration agreement — that would not have any
bearing on the validity of White’s claims against Sunoco
regarding its allegedly fraudulent promise to discount 5 cents
per gallon of fuel at Sunoco locations. Accordingly, White
cannot be required to arbitrate based on the Card Agreement
under South Dakota or Florida law.
IV.
We also address two alternative arguments Sunoco
advances which do not relate to estoppel. First, Sunoco argues
that its promotional materials and the Card Agreement must be
read together as one “integrated whole,” and that this is a basis
for compelling arbitration. Second, Sunoco argues that the
arbitration clause in the Card Agreement requires that White
arbitrate against “connected” entities, of which Sunoco claims
it is one.
A.
Sunoco asserts that the District Court erroneously
concluded that Sunoco’s promotional materials constituted a
separate contract from the Card Agreement. Sunoco argues
that the “the promotional materials and the Sunoco Rewards
Card Agreement . . . together . . . explain and supply all of the
key terms of the Sunoco Rewards Card Program,” J.A. 24, and
therefore form an “integrated whole” contract between White
and Citibank and Sunoco. Because of this purported
“integrated” contract consisting of both the Card Agreement
and the promotional materials, Sunoco asserts it is entitled to
invoke the arbitration clause in the Card Agreement despite not
being a signatory or being mentioned at all. While we are

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unconvinced that Sunoco’s argument could ever yield a
conclusion that all agreed to include Sunoco as a party to the
arbitration clause, see infra, we begin by concluding that the
“integrated whole” assertion itself is unfounded.
First, Sunoco’s own representations contradict this
position and the position taken by our dissenting colleague.
Sunoco argues that the promotions were “simply an offer to
receive offers, or more precisely, an invitation for Plaintiff to
submit an application,” Sunoco Br. 20, and acknowledges that
a consumer who has been offered a promotional deal has no
obligations at all.7 It quotes the Restatement (Second) of
Contracts § 26, which explains that “Advertisements of goods
. . . are not ordinarily intended or understood as offers to sell.”
Sunoco Br. 19. In conceding that the promotions neither
constituted an offer nor conferred obligations, Sunoco has also
conceded that there are no terms to “integrate” with the actual
contract at issue: the Card Agreement.8
7

Sunoco’s argument appears to be solely to refute the District
Court’s passing mention of a “separate agreement” between
White and Sunoco in concluding that White should not be held
to the cardholder agreement when he did not invoke any of its
terms against Sunoco. J.A. 1819. The District Court’s
analysis of this issue relied upon caselaw regarding estopping
non-signatories from avoiding arbitration. We have already
determined that under the relevant state law regarding
estopping signatories, Sunoco has failed to meet the standard
for invoking equitable estoppel regardless of whether there is
a “separate agreement” between White and Sunoco.
8

In order for multiple writings to constitute a single agreement
between parties, the writings “must show, either on its face or

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Second, Sunoco has advanced no legal basis to suggest
that the promotional materials are integrated into the Card
Agreement pursuant to the parol evidence rule or any other
legal theory.9 Sunoco has identified no ambiguity on the face
by reference to some other writing, the contract between the
parties so that it can be understood without having recourse to
parol proof.” Meek v. Briggs, 86 So. 271, 272 (Fla. 1920); see
also Socarras v. Claughton Hotels, Inc., 374 So. 2d 1057, 1059
(Fla. Dist. Ct. App. 1979)(“[I]n order for an unsigned writing
to be used to supply the essential elements of an enforceable
contract, there must be some reference to that unsigned writing
in the signed writing.”); Baker v. Wilburn, 456 N.W.2d 304,
306 (S.D. 1990) (identifying several factors to compel the
reading of multiple writings as a single contract, including the
fact that the instruments are “executed at the same time by the
same parties,” and whether one contract refers to another and
the parties exclusive to the latter). The Card Agreement makes
no reference to Sunoco’s Rewards Program, and the
promotional materials were neither executed at all nor
presented contemporaneously with the Card Agreement.
Sunoco’s citation to a non-precedential opinion of ours
in which we affirmed the District Court’s conclusion that
contracts which are made for the purposes of a single
transaction should be read in reference to each other — aside
from being non-binding, see 3d Cir. I.O.P. 5.3 (2015) — is illplaced because Sunoco acknowledges that here, the
promotional materials do not form a contract at all. See Sunoco
Br. 20.
9

There is no conflict between Florida and South Dakota law
regarding the parol evidence rule or other applicable principles,

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of the Card Agreement that would suggest that parol evidence
of the promotional materials is admissible to construe the
meaning of the Card Agreement’s arbitration clause. See, e.g.,
Pankratz v. Hoff, 806 N.W.2d 231, 236 (S.D. 2011) (noting
that absent fraud or mistake, “parol testimony of prior or
contemporaneous negotiations . . . which tend to substitute a
new and different contract from the one evidenced by the
writing, is incompetent” (quoting Neal v. Marrone, 79 S.E.2d
239, 242 (N.C. 1953))); Knabb v. Reconstruction Fin. Corp.,
144 Fla. 110, 131–32, 197 So. 707, 715 (1940) (“[W]here the
language of a contract is susceptible to more than one
construction . . . the court will consider . . . facts and
circumstances leading up to and attending its execution . . . .
This rule does not apply, however, where the language of the
contract leaves no doubt as to the meaning of the parties and in
such a case the contract is to be construed without regard to
extraneous facts.”). There is no evidence of some broader
contract between all three entities consisting of both the
promotional materials and the Card Agreement. The Card
Agreement is an unambiguous and complete contract between
White and Citibank; we are aware of no basis for looking
outside it to search for a broader “contract” with Sunoco.
Because Sunoco has advanced no colorable argument on this
front, it cannot compel arbitration.
B.
Sunoco’s final argument is that the Card Agreement’s
arbitration clause compels White to arbitrate claims against
so we need not determine which state’s laws apply. See Berg
Chilling, 435 F.3d at 462.

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“connected” entities, of which Sunoco claims it is one. Sunoco
points to the portion of the arbitration clause in the Card
Agreement which defines the claims covered as inclusive of
those “made by or against anyone connected with us or you or
claiming through us or you.” J.A. 91. Sunoco argues that it is
“connected with” Citibank as it jointly marketed the Sunoco
Rewards Card with Citibank.
First, Sunoco’s argument fails because it confuses the
nature of the claims covered by the arbitration clause with the
question of who can compel arbitration. Even if Sunoco is
“connected” with Citibank and the claims against Sunoco are
covered claims, that does not give Sunoco the right to elect to
arbitrate against White. The arbitration clause of the
Cardholder Agreement establishes unequivocally that “[e]ither
you or we may, without the other’s consent, elect mandatory,
binding arbitration for any claim, dispute, or controversy
between you and us (called ‘Claims’).” J.A. 91. Moreover, the
clause also provides, “At any time you or we may ask an
appropriate court to compel arbitration of Claims.” Id. The
Cardholder Agreement defines “you” as the card holder and
“we” and “us” as Citibank. J.A. 88. Nowhere does the
agreement provide for a third party, like Sunoco, the ability to
elect arbitration or to move to compel arbitration.
Second, we are skeptical of whether the joint marketing
campaign between Sunoco and Citibank could make Sunoco a
“connected” entity under the arbitration clause.10 The
10

Per the choice-of-law clause in the Cardholder Agreement,
we use South Dakota law to interpret the express terms of the
contract. See Kruzits v. Okuma Mach. Tool, Inc., 40 F.3d 52,
55 (3d Cir. 1994) (“Pennsylvania courts generally honor the

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arbitration clause applies to “Claims made by or against
anyone connected with us or you or claiming through us or you,
such as a co-applicant or authorized user of your account, an
employee, agent, representative, affiliated company,
predecessor or successor, heir, assignee, or trustee in
bankruptcy.” J.A. 91. Of course, none of these enumerated
relationships apply to Sunoco, and Sunoco is not even
mentioned in the Cardholder Agreement. Additionally, while
the enumerated items are preceded by “such as,” the
relationships listed evoke far closer connections — ones where
rights and obligations are intertwined and where liability may
be shared — than the one that Sunoco purports to have with
Citibank in this case. The clause read in context suggests that
the parties did not intend for it to govern an entity with merely
a marketing relationship with Citibank. See, e.g., Opperman
v. Heritage Mut. Ins. Co., 566 N.W.2d 487, 490 (S.D. 1997)
(“Under the canon of noscitur a sociis, words take import from
each other. This maxim of interpretation is ‘wisely applied
where a word [or phrase] is capable of many meanings in order
to avoid the giving of unintended breadth’ to contract
provisions.” (quoting Jarecki v. G.D. Searle & Co., 367 U.S.
303, 307 (1961))). Nor does Sunoco advance any rationale for
why its marketing agreement with Citibank confers on it a
close enough relationship to merit coverage by this clause. In
the absence of a rationale or limiting principle for when a
relationship between businesses is too tenuous to render them
“connected” under this arbitration clause, we cannot hold that
White’s claims against Sunoco in this case are covered by the
arbitration clause.
intent of the contracting parties and enforce choice of law
provisions in contracts executed by them.”).

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*

*

*

*

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*

The FAA “simply requires courts to enforce privately
negotiated agreements to arbitrate, like other contracts, in
accordance with their terms.” Volt Info. Scis., Inc. v. Bd. of
Tr. of Leland Stanford Junior Univ., 489 U.S. 468, 478 (1989).
Its “primary purpose” is to ensure that private agreements to
arbitrate between parties “are enforced according to their
terms.” Id. at 479. The Cardholder Agreement is a contract
between White and Citibank, and not Sunoco. Without a
contractual basis or equitable principles directing us to enforce
the agreement in this dispute between White and Sunoco, a
third party, we cannot compel arbitration.11
V.
For the reasons stated above, we will affirm the District
Court’s order denying Sunoco’s motion to compel arbitration.

11

We also reject Sunoco’s argument that the District Court
should have conducted a summary trial on the issue of whether
Sunoco and Citibank jointly marketed the Sunoco Rewards
Card. The District Court acknowledged this issue as a disputed
fact and correctly concluded that disposition does not turn on
its resolution.

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White v. Sunoco Inc.
No. 16-2808
ROTH, Circuit Judge, dissenting:
This case involves a single contract about a hybrid
product: the Sunoco Rewards Card, a promotional credit card
offered jointly by Sunoco and Citibank. As a matter of basic
contract law, because White’s claims fall squarely within, and
arise out of, the broad terms of the integrated contract
between White, Sunoco, and Citibank, Sunoco should be able
to compel arbitration. Unfortunately, in examining the
boundaries of arbitrability, the majority has failed to
appreciate precepts of contract law that establish that Sunoco
is a party to the single contract at issue here. Accordingly, I
respectfully dissent.
I.1
As a threshold issue, the promotional materials2 and
the Sunoco Rewards Card Agreement form an integrated

1

I agree with the majority’s choice of law analysis and will
accordingly apply Florida and South Dakota law.
2
The majority’s characterization of the promotional materials
as parol evidence misses the point. Maj. at 17. The
promotional materials are not used to interpret an ambiguous
term in an otherwise complete contract; rather, the
promotional materials are themselves part of the complete
Sunoco Rewards Card contract.

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contract between White, Citibank and Sunoco.3 This is clear
from the process, outlined in the promotional materials,
which, Sunoco asserts, were prepared jointly by Sunoco and
Citibank together.4 To obtain a Sunoco Rewards Card, a
consumer first receives the promotional materials, which
advertise the fuel discount and include selected terms and
conditions, such as procedures for claiming rewards and
annual percentage rates for various transactions.5 The
promotional materials explicitly mention that additional terms
and conditions will be sent if customers are approved for the
card.6 The promotional pamphlet also includes an application
for customers to fill out and return to Citibank. Citibank then
processes this application and gathers information about the
applicant to verify identity and eligibility for credit. If the
application is approved, Citibank sends the applicant a
Sunoco Rewards Card, along with the Card Agreement
containing additional terms and conditions. Sunoco and
Citibank are then responsible for effectuating the discount on
Sunoco gasoline purchases, made using the card. Indeed,
when White complained to Citibank about discount credits he
3

Whether this is so is a question of law for the courts. Baker
v. Wilburn, 456 N.W.2d 304, 306 (S.D. 1990) (“The effects
and terms of a contract are questions of law to be resolved by
the court.” (citations omitted)).
4
Certainly, Sunoco would not have engaged in such a
promotion of a Citibank credit card without Citibank’s full
knowledge and agreement.
5
JA 44-46, 51-52.
6
JA 44, 52 (“When you become a cardmember, you will
receive the full Sunoco Rewards Card Program Terms and
Conditions, which may change at any time for any reason
upon thirty (30) days prior written notice.”).

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did not receive for Sunoco gas purchases, White received
credit on his Citibank card,7 as the discount may be received
at the pump or credited to the Citibank billing statement.8
Basic contract law dictates that this process cannot
create two separate contracts. Promotional materials are
generally not considered offers that can be accepted through
application, especially when the application is explicitly
subject to approval.9 Here, the promotional materials were
clear that mailing in the application would not create a
contract, noting that Citibank would have to screen the
applicant’s creditworthiness. As such, this process cannot
create two separate contracts.
Insofar as the majority holds that there is only one
valid contract—the Card Agreement between White and
Citibank—with terms independent from those specified in the
promotional materials,10 this analysis is not supported by
Florida and South Dakota law. Both Florida and South
Dakota law allow multiple documents to constitute a single
contract. The Florida Supreme Court has held that “a
7

Maj. at 4, fn. 1.
JA 44, 52.
9
Restatement (Second) of Contracts § 26 (1981) (“A
manifestation of willingness to enter into a bargain is not an
offer if the person to whom it is addressed knows or has
reason to know that the person making it does not intend to
conclude a bargain until he has made a further manifestation
of assent.”).
10
Maj. at 16 (“Sunoco has also conceded that there are no
terms to ‘integrate’ with the actual contract at issue: the Card
Agreement.”).
8

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complete contract may be gathered from letters, writings and
telegrams between the parties relating to the subject-matter of
the contract, and so connected with each other that they may
be fairly said to constitute one paper.”11 Similarly, the South
Dakota Supreme Court has held that “a contract may consist
of several writings and all writings must be read together to
determine the terms of the agreement.”12 Notably, the
writings need not themselves be contracts.13
Florida and South Dakota have each articulated
standards for construing multiple documents together as one
contract. The Florida Supreme Court will read multiple
instruments as one contract where “[t]he instruments in
writing which allegedly constitute a valid contract . . . specify
11

Webster Lumber Co. v. Lincoln, 115 So. 498, 502 (Fla.
1927) (citations omitted).
12
Citibank (S.D.), N.A. v. Hauff, 668 N.W.2d 528, 534 (S.D.
2003).
13
While most such cases involve multiple contracts, the
South Dakota Supreme Court has construed non-contract
writings as part of a contract in at least one case. In Citibank
(S.D.), N.A. v. Hauff, the South Dakota Supreme Court held
that the expiration language on credit cards were part of
Citibank’s credit card agreement. 668 N.W.2d at 534. The
language on the credit cards was not a separate contract, but
merely a writing indicating when the card would expire.
However, the court held that “the entire agreement between
the parties included the language on the card itself.” Id. The
Florida Supreme Court likewise frequently construes letters
or telegrams together to constitute a contract. See, e.g.,
Mehler v. Huston, 57 So. 2d 836, 837 (Fla. 1952) (collecting
cases).

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the terms and conditions definitely and certainly.”14 The
South Dakota Supreme Court has specified that “[a]ll writings
that are executed together as part of a single transaction are to
be interpreted together”15 so that “the intent of the parties will
be preserved and enforced.”16 Writings are more likely to be
part of a single transaction when one is dependent upon the
execution of the other.17
Here, the promotional materials and Card Agreement
together state the definite terms of the contract and are clearly
part of a single transaction; accordingly, both should be
considered together as one contract. The documents evince
the parties’ intent for the documents to be read together as
one contract.
First, only when read together do the
promotional materials and the Card Agreement state the
definite terms of the Sunoco Rewards Card. Without the
promotional materials, White would not know what discount
he was entitled to through his Sunoco Rewards Card.
Without the Card Agreement, White would not know the
complete terms and conditions binding the card, including the
methods for calculating daily minimums or procedures for
addressing discrepancies on a billing statement.
Second, the fact that the promotional materials and
Card Agreement are part of a single transaction is shown
through the internal references to, and dependence between,
14

Id. at 837.
Baker, 456 N.W.2d at 306 (citation omitted).
16
First Trust & Sav. Bank v. McVeigh, 211 N.W. 446, 447
(S.D. 1926).
17
Kramer v. William F. Murphy Self-Declaration of Trust,
816 N.W.2d 813, 815 (S.D. 2012).
15

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the documents. The promotional materials clearly refer to the
Card Agreement in setting out the entire process which would
create the Sunoco Rewards Card Contract.18 While the Card
Agreement does not explicitly mention the promotional
materials, the Card Agreement is sent in accordance with the
process specified in the promotional materials. Moreover, the
documents are dependent on one another: without accepting
the subsequent Card Agreement, an applicant would not be
entitled to the fuel discount discussed in the promotional
materials.
Without filling out the application in the
promotional materials, applicants would not receive the Card
Agreement. Under either Florida or South Dakota law, the
promotional materials and Card Agreement accordingly must
be read together as an integrated contract between White,
Sunoco, and Citibank.
II.
Following then from the conclusion that there is but
one contract here -- the contract between White, Sunoco and
Citibank made up of the promotional materials and the Card
Agreement – Sunoco, as a party to the contract, is in a
position to exercise the provisions of the contract. The plain
language of the contract allows Sunoco to compel arbitration
of White’s claims.
The majority, however, relies on the clause stating that
“[e]ither you or we may, without the other’s consent, elect
mandatory, binding arbitration[,]”19—along with the
contract’s definition of “you” as White and “we” as
18
19

JA 44, 52.
JA 91.

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Citibank20—to allow only White and Citibank to arbitrate.
However, this reading is flawed for two reasons. First, this
clause itself is not framed exclusively. Second, the rest of the
contract undercuts this interpretation.
Following the
purportedly limiting clause, the Cardholder Agreement lists
as arbitrable any claim which is “[n]ot only ours and yours,
but also Claims made by or against anyone connected with us
or you or claiming through us or you[.]”21 The contract
further holds that the arbitration clause is explicitly to be
interpreted “in the broadest way the law will allow it to be
enforced.”22 Thus, the contract, read as a whole, does not
restrict the ability to arbitrate to only White and Citibank.
The majority next holds that Sunoco is not sufficiently
“connected with” Citibank to render its claims arbitrable.
Based on the examples listed in the clause, the majority
opines that sufficient relationships are those “where rights
and obligations are intertwined and where liability may be
shared[;]” relative to such relationships, Sunoco’s “merely . . .
marketing relationship” with Citibank is insufficient.23 This
is both an overstatement of the necessary relationship and an
understatement of the relationship between Sunoco and
Citibank. At least some of the examples from the clause,
such as an “affiliated company,” do not necessarily share
obligations or liability. Moreover, Sunoco and Citibank share
more than “a marketing relationship.” In operating the
Rewards Card, Sunoco and Citibank’s functions are closely
intertwined: Sunoco promulgated some of the terms and
20

JA 88.
JA 91.
22
JA 91.
23
Maj. at 19.
21

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conditions that govern the use of the Rewards Card and these
rewards are, in some cases, credited directly to the statement
balance issued by Citibank. Indeed, the card is called the
Sunoco Rewards Card. There is no entity more “connected
with” Citibank in this endeavor than Sunoco.
While brief excerpts of the Card Agreement can be
narrowly read to support the majority’s interpretation, when
read as a whole the contract clearly evince an intent to allow
Sunoco to compel arbitration.
III.
Finally, even if the plain language of the contract did
not allow Sunoco to compel arbitration, Sunoco may do so if
“‘traditional principles’ of state law allow a contract to be
enforced by or against nonparties to the contract.”24 I agree
that Florida law would recognize equitable estoppel as a
ground for nonsignatories to bind signatories if, in relevant
part, “the claim ‘arise[s] out of or relate[s] to’ the agreement
containing the arbitration provision.”25 South Dakota’s
standard for equitable estoppel is a little different; while not
phrased as equitable estoppel, the South Dakota Supreme
24

Griswold v. Coventry First LLC, 762 F.3d 264, 271 (3d Cir.
2014) (internal quotation marks and citation omitted).
25
Rolls-Royce PLC v. Royal Caribbean Cruises LTD., 960
So. 2d 768, 771 (Fla. Dist. Ct. App. 2007). As the majority
notes, there is a second circumstance in which a nonsignatory
can compel arbitration: when a signatory and nonsignatory
engage in concerted misconduct. Op. 12-13. I agree with the
majority’s rejection of this ground, however, as it is clear that
this exception is not applicable here.

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Court noted that “[i]t would be manifestly unfair to allow
[plaintiffs] to assert claims arising out of agreements against
nonsignatories to those agreements without allowing those
[defendants] [also to] invoke the arbitration clause contained
in the agreements.”26 Both standards require that the claim
“arise out of” the underlying agreement.
While the majority holds that White’s claims do not
rely on any terms in the Card Agreement, since the
underlying contract encompasses both the promotional
materials and the Card Agreement, White’s claims clearly do.
White’s claims arise out of the terms of the fuel discount,
which are outlined in the promotional materials. Since the
promotional materials are part of the same contract as the
arbitration clause, White’s claims “arise out of” the
underlying agreement, and Sunoco can compel arbitration
based on equitable estoppel.
IV.
At issue is an attempt to bypass, through artful
pleading, a valid agreement to arbitrate. Clever framing,
however, cannot obfuscate the intent of the parties upon
creation of the contract. Given that there is an integrated
agreement between White, Sunoco, and Citibank, I would
hold that, either under the plain terms of the contract or
through equitable estoppel, Sunoco can compel arbitration of
the claims brought against it. I respectfully dissent.

26

Rossi, 648 N.W.2d at 815 (alterations in original) (internal
quotation marks and citation omitted).

9