Anwar et al v. Fairfield Greenwich Limited et al

Filing 1151

DECISION AND ORDER: Accordingly, SCBI's motion to compel individual arbitration of Caso's claims and preclude class arbitration is GRANTED. (Signed by Judge Victor Marrero on 6/12/2013) (js)

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I

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

---------------------------

-X

PASHA S. ANWAR, et al.,
09 Civ. 0118 (VM)

Plaintiffs,
10 Civ. 9196 (Caso)

against-

DECISION AND ORDER

FAIRFIELD GREENWICH LIMITED,
et al.,
Defendants.

------------------------- X

VICTOR MARRERO, United States District Judge.
By

letter

Chartered

dated

Bank

May

24,

International

2013,

Defendants

(Americas)

Standard
(\\SCBI")

Ltd.

sought a pre-motion conference to enforce this Court's May
18,

2012

Ricardo

order

(the

Rodriguez

\\May 18 Order")

Caso

("Caso")

to

compelling Plaintiff
arbitrate

against SCBI on an individual basis.

his

(Dkt. No.

responded by letter dated May 30,

2013

SCBI replied by letter dated June

5,

(Dkt.

claims

70.)
No.

Caso

71)

and

2013

(Dkt.

No.

Caso submitted a further reply date June 7,

2013

(Dkt. No.

76)

which

the

SCBI's May 24,

Court

also

considered.

The

Court

75).

deems

2013 letter a motion to enforce the May 18

Order and compel

individual arbitration.

For the reasons

stated below, SCBI's motion to enforce the May 18 Order and
compel individual arbitration of Caso's claims is GRANTED.

1

I. BACKGROUND

On May 18,

2012,

the Court granted SCBI' s

motion to

compel arbitration of the claims brought by Caso in Caso v.
tandard Chartered Bank International
10 Civ.

9196,

number of

other

lawsuits

found that

into

the

No.

above-captioned multi(Dkt. No.

(Dkt. No. 880, ex. B

arbitration

controvers

for

The

50.)

the Nondiscretionary Investment Services

Agreement (the "NISA")

agreement.

Ltd.,

a putative class action consolidated with a

district litigation, No. 09 Civ. 0118.
Court

Americas

"all

The

Court

further

tI

found

~

9(a)) compels

arising

out

that

of
had

SCBI

that
not

waived its right to compel arbitration and that there was
insufficient

prejudice

to

Caso

to

federal policy favoring arbitration.

overcome

the

strong

Accordingly,

the

Court granted SCBI's motion to compel arbitration of Caso's
claims

and

stayed

Caso's

case

pending

completion

of

arbitration.
On May 7,

2013,

intent to init

c

Caso served SCBI with notice of his
s action arbitration against SCBI.
II. DISCUSSION

It is a fundamental legal precept that arbitration \\is
a

matter

of

consent,

not

coercion."

Volt

v.

Board

of

Trustees of Leland Stanford Junior Univ., 489 U.S. 468[ 479
(1989) .

Thus,

a

party

"may not

-2­

be

compelled

to

submit to class arbitration unless
basis

for

concluding

Stolt-Nielsen S.A.
1758,

1775

(2010)

v.

that

the

there

party

AnimalFeeds

authorize

differences

agreed

(emphasis in original).

class

between

action

so."

130 S.

Ct.

"an implicit agreement

bilateral

action arbitration are too great

do

An agreement to

arbitration"

simple

contractual
to

Int'l Corp.,

arbitrate alone does not constitute
to

is a

for

because

and

"[t]he

complex

such a

class

presumption."

Id. at 1763.

Therefore, an agreement to arbitrate "any and

all disputes,

controversies, or claims

agreement

does

not

in

and

of

sing out of" that

itself

arbitration if there is "no provision
contemplates class arbitration."
Mkts.,

LLC,

No.

11

civ.

864,

authorize

the contract which

Sanders v.
2011

class

WL

Forex Capital

5980202,

at

*11

(S.D.N.Y. Nov. 29, 2011).
To

begin

with,

the

Court

notes

jurisdiction to enforce and determine
May

18

Order

compelling

arbitration.
766

(" [A]

court

to

which

orders

698,

arbitration

it

retains

the contours of
See

Smiga v.

705

(2d

retains

Cir.

the
Dean

1985)

jurisdiction

rmine any subsequent application involving the same

agreement

to arbitrate.")

----'--=----- ,
514 U.S. 938,
parties

F.2d

that

"did not

i

947

First Options
(1995)
to

clearly

3­

of

Chicago,

Inc.

(holding that where the
submit

the

question

arbitrability to arbitration .
[]

dispute

was

subject

. the arbitrability of the

to

independent

review

by

the

courts") .
In the May 18 Order, the Court mandated arbitration of
the

claims

between

contractual
Bank

Caso

agreement

individual

SCBI

between

based

Caso

and

( "American

International

predecessor.

and

on

the

NISA,

American

s

SCBI's

"'"v1'"\""'oss" ) ,

an

The May 18 Order was based on the NISA
agreement

arbitration.

and

did

not

a

contemplate

class

Furthermore, the language of the NISA clearly

does not contain any provision or language that anticipates
class

arbitration.

As

"all controversies"

the

Court

reads

in the NISA,

the

the

reference

to

language encompassed

any dispute between Caso individually and American Express,
not between Caso and all others he decides
similarly situated.

to regard as

Had American Express contemplated that

it was agreeing to arbitrate under its contract with Caso
not only its controvers
all

other

plaintiffs

bandwagon

of

explicit

provision

obligation.
Order

his

with Caso, but also with any and
Caso

dispute,
for

Therefore,

compelling

chose
it

arbitration

bring

on

certainly

would

much

more

such
the

to

a

Court
of

-4­

reaffirms

Caso s
I

board

the

have

made

expansive
its

individual

May

18

claims

and

hereby

precludes

Caso

from

arbitrating

his

claims

against SCBI arising out of the NISA on a class basis.
Accordingly,

SCBI's

motion

to

compel

individual

arbitration of Caso's claims and preclude class arbitration
is GRANTED.

SO ORDERED.

Dated: New York, New York
12 June 2013

/

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//=-~~:::~~~~::7

.:;;>•. '- :;:'::>-~:- . . .
~
VICTOR

MARRERO
U.S.D.J.

-5­