Anwar et al v. Fairfield Greenwich Limited et al

Filing 1159

MEMORANDUM OF LAW in Opposition re: (81 in 1:10-cv-09196-VM) MOTION for Reargument re: (77) Order Notice of Motion for Reargument or Reconsideration.. Document filed by Standard Chartered Bank International (Americas) Limited, Standard Chartered PLC. (Attachments: #1 Certificate of Service)Filed In Associated Cases: 1:09-cv-00118-VM-FM, 1:10-cv-09196-VM(Nelles, Sharon)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------ x
PASHA S. ANWAR, et al.,
:
:
Plaintiffs,
:
v.
:
:
FAIRFIELD GREENWICH LIMITED,
:
et al.,
:
:
Defendants.
:
:
This Document Relates To: Ricardo
:
Rodriguez Caso v. Standard Chartered
:
Bank International (Americas) Ltd., et
:
al., No. 10-CV-9196
:
------------------------------ x

Master File No. 09-CV-118 (VM) (FM)

MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF’S
MOTION FOR REARGUMENT AND RECONSIDERATION
Sharon L. Nelles
Bradley P. Smith
Patrick B. Berarducci
SULLIVAN & CROMWELL LLP
125 Broad Street
New York, New York 10004
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Diane L. McGimsey
(Admitted Pro Hac Vice)
SULLIVAN & CROMWELL LLP
1888 Century Park East
Los Angeles, California 90067
Attorneys for Defendants Standard
Chartered Bank International (Americas)
Limited and Standard Chartered PLC
July 10, 2013

TABLE OF CONTENTS
Page(s)
INTRODUCTION ......................................................................................................................... 1
BACKGROUND ............................................................................................................................ 2
ARGUMENT .................................................................................................................................. 5
I.

Caso Improperly Reargues the Contractual Interpretation
Questions That Were Addressed in the Court’s May 2012 Order ......................................... 6

II.

Caso Presents No Facts or Controlling Law Warranting
Reconsideration of the Court’s Conclusion That It Retains
Jurisdiction To Enforce the May 2012 Order ........................................................................ 9

III. No Manifest Injustice Has Resulted .................................................................................... 11
CONCLUSION ............................................................................................................................. 13

TABLE OF AUTHORITIES
Page(s)
CASES
Abrahamson v. Bd. of Educ. of the Wappingers Cent. Sch. Dist.,
237 F. Supp. 2d 507 (S.D.N.Y. 2002)........................................................................................5
Am. Express Co. v. Italian Colors Rest.,
133 S. Ct. 2304 (2013) .............................................................................................................12
Anwar v. Fairfield Greenwich Ltd.,
283 F.R.D. 193 (S.D.N.Y. 2012) ...............................................................................................5
Child v. Child,
474 So. 2d 299 (Fla. Dist. Ct. App. 1985) .................................................................................9
Crawford v. Barker,
64 So. 3d 1246 (Fla. 2011).........................................................................................................9
Drapkin v. Mafco Consol. Grp., Inc.,
818 F. Supp. 2d 678 (S.D.N.Y. 2011)..............................................................................5, 6, 10
First Options of Chicago, Inc. v. Kaplan,
514 U.S. 938 (1995) .............................................................................................................9, 10
Howsam v. Dean Witter Reynolds, Inc.,
537 U.S. 79 (2002) ...................................................................................................................10
Int’l Multifoods Corp. v. Commercial Union Ins. Co.,
309 F.3d 76 (2d Cir. 2002).........................................................................................................8
Liberty Media Corp. v. Vivendi Universal, S.A.,
861 F. Supp. 2d 262 (S.D.N.Y. 2012)........................................................................................5
Local 205 Comty. & Soc. Agency Emps.’ Union v. Day Care Council of N.Y., Inc.,
992 F. Supp. 388 (S.D.N.Y. 1998).............................................................................................8
Matrobuono v. Shearson Lehman Hutton,
514 U.S. 52 (1995) .....................................................................................................................8
Ottley v. Sheepshead Nursing Home,
688 F.2d 883 (2d Cir. 1982)...............................................................................................10, 11
Parisi v. Goldman, Sachs & Co.,
710 F.3d 483 (2d Cir. 2013)...............................................................................................10, 11

-ii-

TABLE OF AUTHORITIES
(continued)
Page(s)
Ryan v. JPMorgan Chase & Co.,
No. 12-CV-4844, 2013 WL 646388 (S.D.N.Y. Feb. 21, 2013)...............................................10
Safra Nat’l Bank of N.Y. v. Penfold Inv. Trading, Ltd.,
No. 10-CV-8255, 2011 WL 1672467 (S.D.N.Y. Apr. 20, 2011) ............................................11
Sanders v. Forex Capital Mkts., LLC,
No. 11-CV-864, 2011 WL 5980202 (S.D.N.Y. Nov. 29, 2011) ..............................................11
Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp.,
130 S. Ct. 1758 (2010) .............................................................................................................12
Terra Sec. ASA Konkursbo v. Citigroup, Inc.,
820 F. Supp. 2d 558 (S.D.N.Y. 2011)....................................................................................2, 5
Virgin Atlantic Airways, Ltd. v. Nat’l Mediation Bd.,
956 F.2d 1245 (2d Cir. 1992).....................................................................................................5
RULE
LOCAL CIV. R. 6.3 ............................................................................................................................6

-iii-

INTRODUCTION
Standard Chartered Bank International (Americas) Limited (“SCBI”) and
Standard Chartered PLC (together, “Standard Chartered”) respectfully submit this memorandum
in opposition to plaintiff Ricardo Rodriguez Caso’s (“Caso”) Motion for Reargument and
Reconsideration of this Court’s June 12, 2013 Decision and Order (the “June 2013 Order”)
enforcing the Court’s May 18, 2012 Order compelling arbitration of Caso’s claims on an
individual basis (the “May 2012 Order”). None of Caso’s three purported bases for
reconsideration has merit.
First, Caso asserts that the Court should not have compelled arbitration of his
claims “without any substantive briefing,” because he believes that certain contract interpretation
principles required the parties’ account agreements to be “read together and applied
simultaneously” to prohibit Standard Chartered from enforcing the parties’ arbitration agreement
against a member of a putative class. (Plaintiff’s Memorandum of Law in Support of Plaintiff’s
Motion For Reargument and Reconsideration at 5-10, June 26, 2013 (No. 10-CV-9196, Dkt.
No. 88) (“Pl.’s Mot.”).) Yet, Caso made the very same contractual interpretation arguments in
2012 (Apr. 20, 2012 Letter from Gaytri Kachroo at 2-4 (Dkt. No. 880)), and the Court expressly
considered and rejected them in its May 2012 Order. Contrary to Caso’s assertions, the Court’s
May 2012 Order was fully consistent with universal contract interpretation principles. Caso’s
attempt to reargue an issue decided more than one year ago is thus both untimely and wrong on
the merits.
Second, Caso asserts that an arbitrator, not this Court, should have decided
whether he could pursue class arbitration. Caso made this exact same argument in its opposition
to SCBI’s motion to enforce the May 2012 Order (May 30, 2013 Letter from Gaytri Kachroo
at 2-3 (Dkt. No. 1144); June 7, 2013 Letter from David Stone at 1 (Dkt. No. 1148)), and now

adds that this is a “procedural issue[]” that is “generally left to arbitrators.” (Pl.’s Mot. at 11
(citation omitted).) The Court correctly rejected this argument in its June 2013 Order, ruling that
arbitrability here was a matter for the Court. Caso provides no controlling authority mandating a
different result. See Terra Sec. ASA Konkursbo v. Citigroup, Inc., 820 F. Supp. 2d 558, 560
(S.D.N.Y. 2011) (Marrero, J.) (noting that one of “[t]he major grounds justifying
reconsideration” includes “an intervening change in controlling law”) (citation and internal
quotation marks omitted).
Third, Caso asserts that the Court’s orders of May 2012 and June 2013 have
somehow “operated a manifest injustice on Caso and the putative class” because they gave effect
to Caso’s waiver of a purported “right” to bring claims on behalf of a putative class. (Pl.’s Mot.
at 2, 10.) This assertion is baseless. The Court correctly found that Caso’s agreement to
arbitrate his claims does not mean that he can pursue such claims on behalf of a putative class.
This finding is fully consistent with federal law requiring courts to enforce agreements to
arbitrate disputes in accordance with their terms. Caso’s desire to represent a putative class
under Federal Rule of Civil Procedure 23 in federal court does not trump the parties’ arbitration
agreement.
Caso’s motion for reargument and reconsideration should be denied in its entirety.
BACKGROUND
More than 18 months ago, Standard Chartered asked the Court to compel Caso to
“arbitration on an individual basis of all disputes arising from [Caso’s] investment account.”
(Dec. 23, 2011 Letter from Sharon L. Nelles at 1 (Dkt. No. 766).) Caso made three separate
submissions to the Court in opposition to Standard Chartered’s request. In two of these
submissions, Caso asserted that Standard Chartered had waived its right to compel arbitration.
(Dec. 27, 2011 Letter from Gaytri Kachroo (Dkt. No. 771); Dec. 30, 2011 Letter from Gaytri
-2-

Kachroo (Dkt. No. 772).) Then, in April 2012, Caso argued that “a detailed examination” of the
parties’ account agreements would reveal that they “explicitly bar” the arbitration of Caso’s
claims because Caso sought to represent a putative class. (Apr. 20, 2012 Letter from Gaytri
Kachroo at 1.) To support this argument, Caso provided the Court with copies of the account
agreements, which included the Nondiscretionary Investment Services Agreement (the “NISA”)
and the Application for Brokerage Account (the “Brokerage Agreement”) (together, the
“Account Agreements”), each of which contains an arbitration clause. (Apr. 20, 2012 Letter
from Gaytri Kachroo & Exhibits thereto.) Caso asked the Court to “review the attached
agreements” and then rule on Standard Chartered’s request to compel arbitration. (Apr. 20, 2012
Letter from Gaytri Kachroo at 4.)
The NISA has an arbitration clause that provides: “Customer and AEBI agree that
all controversies between Customer and AEBI and/or any Agents . . . shall be determined by
arbitration in accordance with the rules of the American Arbitration Association.” (May 24,
2013 Letter from Sharon L. Nelles at 3 (No. 10-CV-9196, Dkt. No. 70)) (quoting NISA ¶ 9(a))
(emphasis added); Ex. B. to Pl.’s Mot. ¶ 9(a).) The Brokerage Agreement contains a similar
arbitration clause, but also prohibits enforcement of the arbitration clause against “any person
who has initiated in court a putative class action . . . until: (i) the class certification is denied; or
(ii) the class is decertified; or (iii) the customer is excluded from the class.” (Apr. 20, 2012
Letter from Gaytri Kachroo at 2 (quoting Brokerage Agreement ¶ 6); Ex. A to Pl.’s Mot. ¶ 6.)
On May 18, 2012, this Court deemed Standard Chartered’s December 23, 2011
request to be a motion to compel arbitration and granted the motion. (May 2012 Order at 1-2
(Dkt. No. 882).) The Court considered both the NISA and the Brokerage Agreement and found
that “the contracts at issue . . . d[id] not bar arbitration” and “that Standard Chartered ha[d] not

-3-

waived its right to compel arbitration.” (Id. at 2-3.) Moreover, after considering the terms of
both agreements, the Court ruled that (1) “[t]he plain language of the NISA” compelled Caso to
arbitrate “‘all controversies’”; (2) “the NISA alone governs with regard to arbitration of claims
arising from the investment” made by Caso; and (3) the NISA did not prohibit “enforcement of
arbitration against a putative class plaintiff.” (Id. at 2-6 (emphasis added).) Caso did not seek
reconsideration of any aspect of the May 2012 Order.
Nearly one year later, on May 3, 2013, Caso initiated a putative class arbitration
before the American Arbitration Association. On May 24, 2013, SCBI asked the Court to
enforce its May 2012 Order granting Standard Chartered’s motion for individual arbitration.
(May 24, 2013 Letter from Sharon L. Nelles at 1.) Caso opposed SCBI’s motion, arguing that
the Court’s May 2012 Order did not preclude class arbitration and that the issue of whether Caso
could pursue class arbitration should be decided by the arbitrator. (May 30, 2013 Letter from
Gaytri Kachroo at 2-3; June 7, 2013 Letter from David Stone at 1.) Caso pointed out that in
issuing the May 2012 Order the Court had “consider[ed] multiple submissions from the parties
about whether the two agreements at issue”—the NISA and the Brokerage Agreement—
“compelled or prohibited arbitration of Caso’s putative class action.” (May 30, 2013 Letter from
Gaytri Kachroo at 1-2.) Caso acknowledged that “the NISA again controls” but asserted that
because the NISA does not contain a clause expressly “prohibiting class arbitration,” Caso
should be able pursue his claims in arbitration on behalf of a putative class. (Id. at 2.)
On June 12, 2013, the Court granted SCBI’s motion, “reaffirm[ing] its May 18
Order compelling arbitration of Caso’s individual claims and . . . preclud[ing] Caso from
arbitrating his claims against SCBI arising out of the NISA on a class basis.” (June 2013 Order
at 4-5 (Dkt. No. 1151).) There is no reason for the Court to reconsider its June 2013 Order.

-4-

ARGUMENT
“Reconsideration of a previous order by the court is an extraordinary remedy to
be employed sparingly . . . .” Terra Sec., 820 F. Supp. 2d at 560 (citation and internal quotation
marks omitted). In considering a motion for reconsideration, which is governed by Local Civil
Rule 6.3, “[a] court must narrowly construe and strictly apply Rule 6.3 so as to avoid duplicative
rulings on previously considered issues, and to prevent Rule 6.3 from being used to advance
different theories not previously argued . . . .” Id. (citations omitted).
To succeed on a motion for reconsideration, Caso must demonstrate that the Court
“overlooked controlling decisions or factual matters that were put before it on the underlying
motion.” Abrahamson v. Bd. of Educ. of the Wappingers Cent. Sch. Dist., 237 F. Supp. 2d 507,
510 (S.D.N.Y. 2002) (citations omitted). Caso may not “present[] . . . new arguments that could
have been, but were not, presented” in the original motion. Drapkin v. Mafco Consol. Grp., Inc.,
818 F. Supp. 2d 678, 696 (S.D.N.Y. 2011); accord Abrahamson, 237 F. Supp. 2d at 510. Nor
may he reassert “those issues already considered” by the Court simply because he “does not like
the way the original motion was resolved.” Liberty Media Corp. v. Vivendi Universal, S.A., 861
F. Supp. 2d 262, 265 (S.D.N.Y. 2012) (citation omitted). Rather, motions for reconsideration
may be granted on three limited grounds: (1) “an intervening change of controlling law,”
(2) “the availability of new evidence,” or (3) “the need to correct a clear error or prevent a
manifest injustice.” Anwar v. Fairfield Greenwich Ltd., 283 F.R.D. 193, 195 (S.D.N.Y. 2012)
(quoting Virgin Atlantic Airways, Ltd. v. Nat’l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir.
1992)) (internal quotation marks omitted). None of these grounds is present to support
reconsideration here.

-5-

I.

Caso Improperly Reargues the Contractual Interpretation Questions That Were
Addressed in the Court’s May 2012 Order.
Although Caso styles his motion as seeking reconsideration of the Court’s June

2013 Order, really at its core, his argument is that the Court erred in May 2012 when it
compelled arbitration in the first instance. Specifically, Caso argues that (1) the Court
overlooked the terms of the Brokerage Agreement, which Caso asserts preserves his right to
bring a class action (Pl.’s Mot. at 5-6, 8, 10); and (2) the Court did not properly apply
“[u]niversal principles of contract interpretation” and/or Florida contract law, which according to
Caso, somehow mandate a different interpretation of the Account Agreements so as to allow
Caso to bring class claims (Pl.’s Mot. at 6-10). Both of these arguments were raised by Caso and
rejected by the Court in 2012. (See generally Apr. 20, 2012 Letter from Gaytri Kachroo.)
The time for Caso to challenge the Court’s May 2012 Order expired over 13
months ago, on June 1, 2012. Local Civ. R. 6.3 (“[A] notice of motion for reconsideration or
reargument of a court order . . . shall be served within fourteen (14) days after the entry of the
Court’s determination of the original motion . . . .”). Even if timely, however, Caso’s motion
presents no proper ground for reconsideration: Each of Caso’s arguments is either an attempt to
“rehash[] arguments previously rejected” by the Court or to “present[] [a] new argument[] that
could have been, but [was] not, presented” in the original motion. Drapkin, 818 F. Supp. 2d
at 696-97.
By arguing that the Court “ignored entire provisions of the Brokerage
Agreement” in concluding that the NISA requires him to arbitrate his claims on an individual
basis, Caso fails to take account of the holdings in the Court’s May 2012 Order. (Pl.’s Mot. at 56, 8, 10.) Specifically, in its May 2012 Order, the Court acknowledged that unlike the NISA,
which “compels arbitration for ‘all controversies,’” the Brokerage Agreement “contain[s] a
-6-

clause prohibiting enforcement of arbitration against a putative class plaintiff.” (May 2012
Order at 3.) The Court recognized, however, that the parties expressly agreed in the NISA that
its terms control whenever an inconsistency or conflict arises between its provisions and any
other agreement between the parties.1 (Id. at 2-3.)
Contrary to Caso’s assertion, there is no need for the Court to entertain further
“substantive briefing” on the interplay between the NISA and the Brokerage Agreement. (Pl.’s
Mot. at 5-6.) Nor was there any need for the Court to rehash its discussion of that issue in the
June 2013 Order. (June 2013 Order at 2, 4.) As Caso has conceded, the Court already has
“consider[ed] multiple submissions from the parties” regarding the Account Agreements.
(May 30, 2013 Letter from Gaytri Kachroo at 2.) The Court concluded in the May 2012 Order
that “the NISA alone governs” and that, because “the NISA does not contain a clause prohibiting
enforcement of arbitration against a putative class plaintiff,” there was “no impediment to
arbitrability” of Caso’s claims. (May 2012 Order at 3.) Having failed to challenge the Court’s
conclusion in May 2012 and having conceded that “the NISA again controls” (May 30, 2013
Letter from Gaytri Kachroo at 2), Caso cannot now assert that the Brokerage Agreement permits
him to pursue class claims.
Substantively, Caso asserts that the Court would have “reach[ed] a different
conclusion” if it had applied certain “rules of contractual construction.” (Pl.’s Mot. at 7.) Caso
suggests that the Court followed neither (1) “[u]niversal contract interpretation principles”
requiring the court to “look at the four corners of the agreements in question to determine the
plain meaning of their provisions and the intent of the parties” (id. at 6); nor (2) Florida law
1

The Court pointed in particular to the NISA’s provision that if “there is any
conflict or inconsistency between the provisions of” the NISA “and any other agreement
between the parties,” including the Brokerage Agreement, then the provisions of the NISA “shall
control.” (May 2012 Order at 3 (quoting NISA ¶ 9(e)); see also Ex. B to Pl.’s Mot. ¶ 9(e).)
-7-

requiring that “when two or more documents are executed by the same parties in the course of
the same transaction they will be read and construed together,” and a contract should not be read
“to render provisions meaningless when there is a reasonable interpretation that does not do so”
(id. at 9-10). Neither of these arguments provides a basis for reconsideration.
The Court clearly looked to the four corners of the Account Agreements in its
May 2012 Order to reach its conclusion that “[t]he plain language of the NISA”—the best
evidence of the parties’ intentions—required Caso to arbitrate his claims. (May 2012 Order at 23.) Indeed, Caso cites many of the same contract interpretation cases now in support of his
request for reconsideration that he cited back in April 2012.2 In his April 2012 submission, Caso
argued that the Account Agreements must “be read in concert” to prevent enforcement of the
arbitration clause against a putative class plaintiff and that “[p]ursuant to long-standing contract
construction principles, the Court should not interpret the agreements in a manner that would
render [the Brokerage Agreement] meaningless.” (Apr. 20, 2012 Letter from Gaytri Kachroo
at 1-3.) The Court was not persuaded then, and Caso has raised no basis for the Court to revisit
its ruling now.
Moreover, the Court did appropriately apply contract interpretation principles in
concluding that the NISA’s clause requiring arbitration governed. The Court construed the terms
of both Account Agreements, and, finding an inconsistency between the arbitration clauses in the
NISA and the Brokerage Agreement, looked at the Account Agreements as a whole in ruling that
the NISA governed by its plain terms. (May 2012 Order at 2-3.) The Court’s approach was fully
2

Compare Pl.’s Mot. at 6-7 (citing Matrobuono v. Shearson Lehman Hutton, 514
U.S. 52, 63 (1995), Int’l Multifoods Corp. v. Commercial Union Ins. Co., 309 F.3d 76, 86 (2d
Cir. 2002), and Local 205 Comty. & Social Agency Emps.’ Union v. Day Care Council of N. Y.,
Inc., 992 F. Supp. 388, 392 (S.D.N.Y. 1998)), with Apr. 20, 2012 Letter from Gaytri Kachroo
at 3 (same).
-8-

consistent with Florida contract law, which provides that “[w]here the terms of a contract are
clear and unambiguous, the parties’ intent must be gleaned from the four corners of the
document,” and “the language itself is the best evidence of the parties’ intent, and its plain
meaning controls.” Crawford v. Barker, 64 So. 3d 1246, 1255 (Fla. 2011) (citations and internal
quotation marks omitted). The Court’s decision does not, as Caso suggests, render the
Brokerage Agreement’s arbitration clause meaningless. (Pl.’s Mot. at 6-7, 9.)3 Indeed, Caso’s
interpretation of the two Account Agreements would deprive of meaning the language in the
NISA providing that it controls in the event of an inconsistency with any other agreement.
II.

Caso Presents No Facts or Controlling Law Warranting Reconsideration of the
Court’s Conclusion That It Retains Jurisdiction To Enforce the May 2012 Order.
Caso advances only one supposed legal error that is directed at the Court’s June

2013 Order (rather than the May 2012 Order)—namely, that arbitrators rather than the Court
should have decided the issue of whether the parties agreed to class arbitration. (See Pl.’s Mot.
at 11; May 30, 2013 Letter from Gaytri Kachroo at 2-3.)4 The Court considered and expressly
rejected this argument in its June 2013 Order, ruling that it “retain[ed] jurisdiction to enforce and
determine the contours of the May 18 Order compelling arbitration,” and quoting First Options
of Chicago, Inc. v. Kaplan, 514 U.S. 938, 947 (1995), which held that “where the parties did not
clearly agree to submit the question of arbitrability to arbitration . . . the arbitrability of the []

3

Contrary to Caso’s assertions, Florida law would not have permitted the Court to
construe the agreements against the draftsman, SCBI. (Pl.’s Mot. at 7, 10 & n.3.) “The
‘construction-against-the-draftsman’ rule” does not apply” where, as the Court found here, the
intent of the parties is clear “from the words of the contract itself” or “when . . . the parties’
actual intent has been otherwise conclusively determined.” Child v. Child, 474 So. 2d 299, 301
(Fla. Dist. Ct. App. 1985) (citations omitted).
4

Caso did not raise this argument when Standard Chartered first sought to compel
arbitration on an individual basis in 2011.
-9-

dispute was subject to independent review by the courts.” (June 2013 Order at 3-4.) Caso
presents no fact or controlling law overlooked by the Court on this issue.
Instead, Caso argues that the Court erred in deciding the issue of whether class
arbitration is permitted under the parties’ Agreements because “the issue of whether a case may
proceed as a class action is procedural,” and “procedural issues are generally left to arbitrators.”
(Pl.’s Mot. at 11 (citing Ottley v. Sheepshead Nursing Home, 688 F.2d 883, 890 (2d Cir. 1982)).)
But, Caso already has conceded that “whether the applicable arbitration agreement permits class
arbitration” is a “gateway question[] of arbitrability” (May 30, 2013 Letter from Gaytri Kachroo
at 3), and such issues are normally left to the court to decide, Howsam v. Dean Witter Reynolds,
Inc., 537 U.S. 79, 83-84 (2002). Caso cannot now, on a motion for reconsideration, “advance
new arguments to supplant those that failed in the prior briefing of the issue.” Drapkin, 818 F.
Supp. 2d at 697 (citation omitted).
Nor does Caso point to any controlling authority that required the Court to defer
to arbitrators on the question of whether Caso can pursue class claims in arbitration. The Court
correctly ruled in its June 2013 Order that the class question is an issue committed to the court to
decide on a motion to compel arbitration (June 2013 Order at 2-3), and under First Options of
Chicago, Inc., “[i]f . . . the parties did not agree to submit the arbitrability question itself to
arbitration, then the court should decide that question just as it would decide any other question
that the parties did not submit to arbitration,” 514 U.S. at 943. See also Howsam, 537 U.S. at 83
(“[W]hether the parties [to a contract] have submitted a particular dispute to arbitration . . . is an
issue for judicial determination . . . .”) (internal quotations and citations omitted). Several courts
in this Circuit have reached the same result. See, e.g., Ryan v. JPMorgan Chase & Co., No. 12CV-4844, 2013 WL 646388, at *5-6 (S.D.N.Y. Feb. 21, 2013) (compelling putative class

-10-

plaintiff to individual arbitration); Sanders v. Forex Capital Mkts., LLC, No. 11-CV-864, 2011
WL 5980202, at *1, 10 (S.D.N.Y. Nov. 29, 2011) (compelling putative class plaintiff to
individual arbitration); see also Safra Nat’l Bank of N.Y. v. Penfold Inv. Trading, Ltd., No. 10CV-8255, 2011 WL 1672467, at *3 (S.D.N.Y. Apr. 20, 2011) (“[T]he availability of class
arbitration is a gateway issue to be decided by courts.”).5
III.

No Manifest Injustice Has Resulted.
Lastly, Caso argues that the Court’s May 2012 and June 2013 rulings “operate[] a

manifest injustice on Caso and the putative class” because they have “the undeniable, and
perhaps unintended, consequence of precluding Caso, and all other similarly situated individuals,
from bringing a class action in any forum, ever.” (Pl.’s Mot. at 2, 5.) The Court’s rulings are not
unintended. In fact, Caso himself recognized back in April 2012 that if the Court compelled him
to arbitrate his claims, he might be “deprived of [his ability to pursue] a class action” whether in
federal court or in arbitration. (Apr. 20, 2012 Letter from Gaytri Kachroo at 2.) Then—as
now—Caso asserted that such an outcome “would be improper and unjust.” (Id. at 4.) The
Court disagreed, and nothing has changed that would warrant reconsideration or a different
outcome.
Caso entered into an agreement to arbitrate his claims with SCBI on an individual
basis. He has no “right” to represent a putative class; nor does any putative class have a right to
have Caso as its representative. To the contrary, the law is clear that in federal court the ability
“to employ Rule 23 is a procedural right only, ancillary to the litigation of substantive claims”
and can be waived by agreeing to arbitrate. Parisi v. Goldman, Sachs & Co., 710 F.3d 483, 488
5

The case on which Caso relies, Ottley v. Sheepshead Nursing Home, 688 F.2d
883, 890 (2d Cir. 1982), in which the court held that the question of whether a notice of a
grievance was timely provided to the employer in accordance with the terms of a collective
bargaining agreement was left to the arbitrators, says nothing about class treatment.
-11-

(2d Cir. 2013) (citation omitted). Indeed, the Supreme Court has recently reinforced this
limitation, holding that “arbitration is a matter of contract” and that “courts must rigorously
enforce arbitration agreements according to their terms.” Am. Express Co. v. Italian Colors
Rest., 133 S. Ct. 2304, 2309 (2013) (citations omitted).
Further, with respect to the arbitration proceeding itself, parties may agree to
“specify with whom” they wish to arbitrate their disputes and may not be forced to class
arbitration absent agreement to such proceedings. Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp.,
130 S. Ct. 1758, 1774 (2010). The Supreme Court also has rejected Caso’s argument that a
purported “right” to the class action framework must be expressly waived in the arbitration
context. Rather, in Stolt-Nielsen, the Supreme Court held that parties who had agreed to
arbitration—and thus, like Caso, did not have the ability to bring a class action under Rule 23—
did not have the right or ability to proceed on a class basis in arbitration unless the parties so
agreed. 130 S. Ct. at 1774-75. In so holding, the Court made clear that parties do not agree to
class arbitration “by simply agreeing to submit their disputes to an arbitrator.” Id. at 1775. If
Caso were correct that he had an “entitlement to class proceedings for the vindication of” his
rights, that would “invalidat[e] [the parties’] private arbitration agreements” and abridge the
parties’ substantive right to contract. Italian Colors Rest., 133 S. Ct. at 2309-10.

-12-

CONCLUSION
Because the Court correctly decided to enforce its May 2012 Order in its June
2013 Order, and Caso has not shown any fact or controlling law the Court overlooked that would
mandate a different result, Caso’s motion for reconsideration should be denied.
Dated: July 10, 2013
New York, New York
/s/ Sharon L. Nelles
Sharon L. Nelles
Bradley P. Smith
Patrick B. Berarducci
SULLIVAN & CROMWELL LLP
125 Broad Street
New York, New York 10004
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Diane L. McGimsey
(Admitted Pro Hac Vice)
SULLIVAN & CROMWELL LLP
1888 Century Park East
Los Angeles, California 90067
Attorneys for Defendants Standard Chartered Bank
International (Americas) Limited and Standard
Chartered PLC

-13-