Reddam v. KPMG LLP

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

J. PAUL REDDAM; J. PAUL REDDAM 

TRUST; CLARENCE VENTURES, LLC,

a Delaware Limited Liability

Company; ZED CORPORATION, a

California Corporation,

Plaintiffs-Appellees,

v.

KPMG LLP; PRESIDIO ADVISORS, No. 05-56664

LLC; PRESIDIO ADVISORY SERVICES

INC.; PRESIDIO FUND ADVISORS,  D.C. No.

LLC, d/b/a HOLLAND PARK CAPITAL CV-04-01227-VAP

ADVISORS, LLC; DEUTSCHE BANK

AG; OLSON LEMONS PC,

Defendants,

and

SIDLEY AUSTIN BROWN AND WOOD,

LLP,

Defendant-Appellant.



9243

9244 REDDAM v. SIDLEY AUSTIN BROWN AND WOOD

J. PAUL REDDAM; J. PAUL REDDAM 

TRUST; CLARENCE VENTURES, LLC,

a Delaware Limited Liability

Company; ZED CORPORATION, a

California Corporation,

Plaintiffs-Appellees,

v.

KPMG LLP, No. 05-56671

Defendant-Appellant,

 D.C. No.

CV-04-01227-VAP

and

PRESIDIO ADVISORS, LLC; PRESIDIO OPINION

ADVISORY SERVICES INC.; PRESIDIO

FUND ADVISORS, LLC, d/b/a

HOLLAND PARK CAPITAL ADVISORS,

LLC; SIDLEY AUSTIN BROWN AND

WOOD, LLP; DEUTSCHE BANK AG;

OLSON LEMONS PC,

Defendants.



Appeal from the United States District Court

for the Central District of California

Virginia A. Phillips, District Judge, Presiding

Argued and Submitted

July 25, 2006—Pasadena, California

Filed August 10, 2006

Before: Ferdinand F. Fernandez, Pamela Ann Rymer, and

Richard R. Clifton, Circuit Judges.

Opinion by Judge Fernandez

9246 REDDAM v. SIDLEY AUSTIN BROWN AND WOOD

COUNSEL

Daniel L. Geyser, Munger, Tolles & Olson LLP, Los Angeles,

California, for defendant-appellant Sidley Austin LLP. Dale

E. Barnes, Bingham McCutchen LLP, San Francisco, Califor-

nia, for defendant-appellant KPMG LLP.

REDDAM v. SIDLEY AUSTIN BROWN AND WOOD 9247

Laura Lindgren, Hennigan, Bennett & Dorman LLP, Los

Angeles, California; David W. Wiechert, Law Office of

David W. Wiechert, San Clemente, California, for the

plaintiffs-appellees.

OPINION

FERNANDEZ, Circuit Judge:

KPMG LLP and Sidley Austin LLP (Sidley) appeal the dis-

trict court’s remand of this case, which had been removed

from the Superior Court of the State of California for the

County of Orange (Orange County Superior Court) pursuant

to 9 U.S.C. § 205 (removal of actions relating to arbitration

agreements under the Convention on the Recognition and

Enforcement of Foreign Arbitral Awards). They argue that the

district court erred when it remanded after it determined that

an arbitration agreement had become unenforceable because

the arbitrator (the National Association of Securities Dealers,

Inc.) had declined jurisdiction over the parties.

We have jurisdiction and we reverse.

BACKGROUND

J. Paul Reddam, J. Paul Reddam Trust, Clarence Ventures,

LLC, and Zed Corporation (collectively Reddam) assert that

KPMG, Presidio Advisors LLC, Sidley1 and Deutsche Bank

AG formed a joint venture in which they agreed to develop,

implement and market certain complex programs (“the pro-

grams”), which were designed to reduce the taxes of those

who adopted the programs. The detailed nature of the pro-

grams is not relevant to this action. Suffice it to say that, as

relevant here, Reddam was to purchase shares of Deutsche

1

Actually, the law firm of Brown & Wood was the initial participant,

but Sidley is the successor in interest to Brown & Wood.

9248 REDDAM v. SIDLEY AUSTIN BROWN AND WOOD

Bank stock and that required the use of a securities broker.

Reddam was referred to Deutsche Bank Securities Invest-

ments (DBSI), a subsidiary of Deutsche Bank, for that pur-

pose.

Reddam became involved because upon selling a company,

DiTech Funding Corp., for a substantial sum,2 Reddam

desired to minimize income tax liabilities. Reddam, on the

advice of KPMG and Sidley, did adopt the programs. As con-

templated by the design of the programs, Reddam did use

DBSI as a broker and entered into customer agreements for

that purpose. Each of those customer agreements contained an

identical arbitration clause which provided that:

all controversies which may arise between us con-

cerning any transaction of construction, perfor-

mance, or breach of this or any other agreement

between us . . . shall be determined by arbitration.

Any arbitration under this agreement shall be deter-

mined pursuant to the rules then in effect of the

National Association of Securities Dealers, Inc., as

the undersigned you may elect. If the undersigned

fails to make such election, then you may make such

election.

Alas, the programs did not have the desired tax avoidance

effects, and Reddam incurred substantial tax liabilities as a

result.3 Reddam then filed this action against KPMG, Sidley,

Deutsche Bank and others in the Orange County Superior

Court. Reddam did not bring an action against DBSI,

although DBSI was mentioned in the complaint. Deutsche

Bank removed on the ground that the action related to the

arbitration agreement with DBSI. See 9 U.S.C. § 205.

2

Seventy million dollars in cash and an additional one hundred and sev-

enty million dollars in annual earn-out payments.

3

Thirty-six million dollars of liability to the United States Treasury and

sixteen million dollars of liability to the State of California.

REDDAM v. SIDLEY AUSTIN BROWN AND WOOD 9249

Deutsche Bank, along with KPMG and Sidley, then moved to

compel arbitration. Reddam responded with a motion to

remand on the basis that the district court lacked removal

jurisdiction as to Deutsche Bank and that, at any rate, the

claims against KPMG and Sidley should be remanded. The

district court determined that it did have removal jurisdiction

and that Deutsche Bank, KPMG and Sidley could all enforce

the arbitration agreements.4

Before the NASD, Reddam deleted all reference to DBSI

from its complaint, asserted that DBSI was not a party, and

suggested that the NASD did not have jurisdiction. The

NASD agreed with Reddam and refused to take jurisdiction

over the arbitration because, as it said, no named party was a

member or associated person of the NASD.

The parties then returned to the district court where Red-

dam moved for remand because the NASD was no longer

available. KPMG and Sidley argued that the district court

should exercise its authority under 9 U.S.C. § 5 to appoint a

substitute arbitrator rather than remanding. However, the dis-

trict court agreed with Reddam and declared that “the claims

are no longer subject to arbitration” because the NASD had

declined to proceed. Thus, the district court remanded the

case to the Orange County Superior Court and refused to stay

its order pending appeal.

This appeal by KMPG and Sidley followed.5

STANDARDS OF REVIEW

“We review de novo the district court’s determination that

it lacked subject matter jurisdiction” over the action. Kelly v.

Fleetwood Enters., Inc., 377 F.3d 1034, 1037 (9th Cir. 2004).

4

The order was issued on December 14, 2004, by Gary L. Taylor, Dis-

trict Judge.

5

Deutsche Bank has settled and is not part of this appeal.

9250 REDDAM v. SIDLEY AUSTIN BROWN AND WOOD

We also review de novo the district court’s determinations

about the scope and validity of the contractual DBSI arbitra-

tion clauses. See Mediterranean Enters., Inc. v. Ssangyong

Corp., 708 F.2d 1458, 1462-63 (9th Cir. 1983). Similarly, we

review de novo the district court’s determination about

whether the issues remain arbitrable. See Simula, Inc. v.

Autoliv, Inc., 175 F.3d 716, 719 (9th Cir. 1999).

JURISDICTION

Reddam argues that we do not have jurisdiction to review

the remand to the Orange County Superior Court because

“[a]n order remanding a case to the State court from which it

was removed is not reviewable on appeal or otherwise.” 28

U.S.C. § 1447(d). We disagree.

[1] It is a commonplace that an order that is actually issued

pursuant to 28 U.S.C. § 1447(c), which provides for remand

when there is a defect in the removal or when there is a lack

of subject matter jurisdiction, cannot be reviewed by us. See,

e.g., Kircher v. Putnam Funds Trust, ___ U.S. ___, ___, 126

S. Ct. 2145, 2153, ___ L. Ed. 2d ___, ___ (2006); Abada v.

Charles Schwab & Co., Inc., 300 F.3d 1112, 1116 (9th Cir.

2002); Pelleport Investors, Inc. v. Budco Quality Theatres,

Inc., 741 F.2d 273, 276 (9th Cir. 1984). But despite its appar-

ently comprehensive language, § 1447(d) does not mean quite

what it says. Where the remand order is not based on defec-

tive removal or lack of subject matter jurisdiction at the time

of removal,6 § 1447(c) does not apply and the § 1447(d)

restriction does not apply either. As the Supreme Court has

put it, “only remand orders issued under § 1447(c) and invok-

ing the grounds specified therein . . . are immune from review

6

There can be little doubt that the question of jurisdiction is determined

as of the time of the removal itself. See Abada, 300 F.3d at 1117; Poore

v. Am.-Amicable Life Ins. Co., 218 F.3d 1287, 1290-91 (11th Cir. 2000);

Sparta Surgical Corp. v. NASD, Inc., 159 F.3d 1209, 1213 (9th Cir. 1998);

In re Amoco Petroleum Additives Co., 964 F.2d 706, 708 (7th Cir. 1992).

REDDAM v. SIDLEY AUSTIN BROWN AND WOOD 9251

under § 1447(d).” Thermtron Prods., Inc. v. Hermansdorfer,

423 U.S. 336, 346, 96 S. Ct. 584, 590, 46 L. Ed. 2d 542

(1976). Moreover, we are not bound by the district court’s

characterization of the basis for its remand order. See Abada,

300 F.3d at 1117; cf. Kunzi v. Pan Am. World Airways, Inc.,

833 F.2d 1291, 1293-94 (9th Cir. 1987) (district court did not

specify basis, but it was apparent that the basis was

§ 1447(c)).

In the case at hand, the district court expressly declared that

it had jurisdiction in the first place. It never deviated from that

declaration. This case is unlike cases where a district court

later determines that there was no jurisdiction ab initio.7 In

this case, the district court determined that a later event—the

NASD’s refusal to arbitrate—had made the arbitration provi-

sion unenforceable as to the parties then before it.

[2] We recognize that the district court referred to

§ 1447(c) when it decided the removal issue, but that is not

dispositive. On the face of its order, the district court

explained that it would remand because “[h]ere, based on the

decision by the NASD to decline jurisdiction, the claims are

no longer subject to arbitration. It follows, therefore, that the

sole basis for federal jurisdiction is no longer present. . . .

Thus, the Court has no basis for jurisdiction, and must remand

the case to state court.” (Emphasis added). That plainly indi-

cates that the later occurring events were the basis for the

decision. That cannot be a basis for a § 1447(c) remand order.

See Davis v. UAW, 392 F.3d 834, 837-38 (6th Cir. 2004),

petition for cert. filed, 74 U.S.L.W. 3051 (U.S. Jul. 15, 2005)

(No. 05-107); Poore, 218 F.3d at 1290-91; Sparta Surgical,

159 F.3d at 1211-13.

7

See DaWalt v. Purdue Pharma, L.P., 397 F.3d 392, 400-02 (6th Cir.

2005); Special Invs. Inc. v. Aero Air Inc., 360 F.3d 989, 996 & n.2 (9th

Cir. 2004) (Fernandez, J., concurring); Adkins v. Ill. Cent. R.R. Co., 326

F.3d 828, 833 (7th Cir. 2003).

9252 REDDAM v. SIDLEY AUSTIN BROWN AND WOOD

[3] Therefore, we have jurisdiction to review the propriety

of the remand order.8

DISCUSSION

At root, the district court remanded because the NASD

refused to act as the arbitrator. That, argued Reddam, meant

that the issues could not be arbitrable at all. The argument,

accepted by the district court, raises two questions. First, did

the agreement amount to a choice of forum clause? Second,

if it did, did the refusal of that forum to conduct the arbitra-

tion mean that no arbitration at all could go forward—that is,

was the choice of forum clause integral? The district court

answered both questions in the affirmative. We do not.

A. Was There a Choice of Forum Clause?

As we have already pointed out, the arbitration clause used

in the customer agreement does state that “[a]ny arbitration

under this agreement shall be determined pursuant to the rules

then in effect of the National Association of Securities Deal-

ers, Inc., as the undersigned you may elect.” But what does

that mean? In deciding, we must, no doubt, apply the usual

principles of contract interpretation. See Wolsey, Ltd. v. Food-

maker, Inc., 144 F.3d 1205, 1210 (9th Cir. 1998).

We have noted that state law generally applies to the con-

struction of arbitration agreements. See id. If so, the agree-

ment in question chooses the law of the State of New York.

But we need not resolve the question of whether state law, or

federal law,9 should apply to a construction of the forum

8

Beyond that, we have jurisdiction under 9 U.S.C. § 16(a)(1)(A) & (B)

to review the district court’s conclusion that it could no longer enforce the

arbitration agreement.

9

Other courts of appeals have applied federal law on the basis that argu-

ments about whom the arbitrator can be present issues of federal law. See,

e.g., Smith Barney, Inc. v. Critical Health Sys. of N.C., Inc., 212 F.3d 858,

860 (4th Cir. 2000); Weiner v. Gutfreund (In re Salomon Inc. S’holders’

Derivative Litig.), 68 F.3d 554, 559 (2d Cir. 1995).

REDDAM v. SIDLEY AUSTIN BROWN AND WOOD 9253

selection provision before us. Whichever body of law is

applied, it is our task to determine and effectuate the intent of

the parties10 and on this record that means we must do so by

reference to the terms of the agreement itself. See In re Salo-

mon, 68 F.3d at 557-58; Cowen & Co. v. Anderson, 558

N.E.2d 27, 28-29 (N.Y. 1990).

The provision in the DBSI customer agreement does select

the rules of the NASD, but does not state that the arbitration

is to take place before the NASD itself. Had the latter been

intended, the parties could easily have said so. In fact, a more

recent version of DBSI’s customer agreement reads: “I agree

to arbitrate with you any controversies . . . only before the

New York Stock Exchange or the National Association of

Securities Dealers Regulation, Inc. at my election.” The

absence of similar language militates in favor of a decision

that the provision in question here does not select a forum at

all.

On the other hand, a commonsensical reading of the provi-

sion would suggest that the parties at least considered the

NASD to be a proper forum for their arbitration, and probably

expected that the NASD would be the forum. It is unlikely

that they wanted to use NASD rules, but did not intend to

select the NASD itself as the arbitrator, if it would agree to

arbitrate. A number of other courts of appeals have decided

that a clause which adopts the rules of an organization like the

NASD implicitly chooses that organization as the, or a,

forum. See Smith Barney, 212 F.3d at 860-61; Brown v. ITT

Consumer Fin. Corp., 211 F.3d 1217, 1222 (11th Cir. 2000);

In re Salomon, 68 F.3d at 557-58; Luckie v. Smith Barney,

Harris Upham & Co., Inc., 999 F.2d 509, 510-11, 513-14

(11th Cir. 1993) (per curiam); PaineWebber, Inc. v. Ruther-

ford, 903 F.2d 106, 108 (2d Cir. 1990); Roney & Co. v.

Goren, 875 F.2d 1218, 1219-20, 1223 (6th Cir. 1989).

10

See Wolsey, 144 F.3d at 1210.

9254 REDDAM v. SIDLEY AUSTIN BROWN AND WOOD

Ultimately, we need not decide whether the provision at

issue was a choice of forum clause because, as explained

below, the provision was not integral to the arbitration agree-

ment in any event.

B. Was the Choice of the NASD Integral?

[4] When a court asks whether a choice of forum is inte-

gral, it asks whether the whole arbitration agreement becomes

unenforceable if the chosen arbitrator cannot or will not act.

As one court of appeals put it:

Only if the choice of forum is an integral part of the

agreement to arbitrate, rather than an “ancillary

logistical concern” will the failure of the chosen

forum preclude arbitration. Here there is no evidence

that the choice of the NAF as the arbitration forum

was an integral part of the agreement to arbitrate.

Brown’s argument that the arbitration agreement is

void because the NAF was unavailable must fail.

Brown, 211 F.3d at 1222 (citations omitted). We see no evi-

dence that the choice was integral here—in fact, there was not

even an express statement that the NASD would be the arbi-

trator.

The district court, however, relied upon In re Salomon, 68

F.3d at 555-56. That case did, indeed, declare that the implicit

choice was also implicitly integral and exclusive. It presented

little reasoning to support that determination but, rather,

pointed to other cases which had held that arbitration must go

forward in one of the chosen fora. Id. at 558-59. It then con-

cluded that where a forum selection clause “is as important a

consideration as the agreement to arbitrate itself, a court will

not sever the failed term from the rest of the agreement and

the entire arbitration provision will fail.” Id. at 561 (internal

quotation marks omitted). However, its holding is not persua-

sive. Essentially, the cases upon which it relied were inappo-

REDDAM v. SIDLEY AUSTIN BROWN AND WOOD 9255

site. In Roney, 875 F.2d at 1223, the Sixth Circuit Court of

Appeals decided that when the parties had agreed to a particu-

lar arbitrator, which was still available, one of them could not

choose a different arbitrator. In PaineWebber, 903 F.2d at

107-08, the Second Circuit Court of Appeals reached the

same conclusion in the same context. Finally, in Luckie, 999

F.2d at 510-11, 513-14, the Eleventh Circuit Court of Appeals

was presented with the same situation and reached the same

result. Again, none of those cases dealt with a failure or

refusal of the named arbitrator to arbitrate. Thus, they cast lit-

tle light on that situation.

Other cases relied upon by Reddam are no more to the pur-

pose. In Smith Barney, 212 F.3d at 862, the Fourth Circuit

Court of Appeals prevented a party from seeking another arbi-

trator when the fora mentioned in the agreement were avail-

able. Even further afield is a case where the agreement

expressly provided that arbitration could be “only before” cer-

tain fora and at least one of them was still available. Merrill

Lynch, Pierce, Fenner & Smith Inc. v. Georgiadis, 903 F.2d

109, 111-13 (2d Cir. 1990).

[5] Thus, we cannot agree that the customer agreement

involved here became unenforceable between the parties

when the NASD bowed out. There is no evidence that naming

of the NASD was so central to the arbitration agreement that

the unavailability of that arbitrator brought the agreement to

an end. See Brown, 211 F.3d at 1222; McGuire, Cornwell &

Blakey v. Grider, 771 F. Supp. 319, 320 (D. Colo. 1991);

Astra Footwear Indus. v. Harwyn Int’l, Inc., 442 F. Supp.

907, 910-11 (S.D.N.Y. 1978). Something more direct is

required before we, in effect, annihilate an arbitration agree-

ment.

[6] Our decision is analogous to our approach to forum

selection clauses which choose a particular court as the litiga-

tion arena. There we have not treated the selection of a spe-

cific forum as exclusive of all other fora, unless the parties

9256 REDDAM v. SIDLEY AUSTIN BROWN AND WOOD

have expressly stated that it was. Compare Pelleport Inves-

tors, 741 F.2d at 275, 280 (holding remand required where

contract provided that “disputes . . . shall be litigated only in

the Superior Court for Los Angeles, California (and in no

other)”), with N. Cal. Dist. Council of Laborers v. Pittsburg-

Des Moines Steel Co., 69 F.3d 1034, 1036-37 (9th Cir. 1995)

(holding remand not proper where contract provided that deci-

sions “shall be enforceable by a petition . . . filed in the Supe-

rior Court of the City and County of San Francisco” because

that language “is permissive.”), and Hunt Wesson Foods, Inc.

v. Supreme Oil Co., 817 F.2d 75, 76-78 (9th Cir. 1987) (hold-

ing remand not proper where contract provided that “[t]he

courts of California, County of Orange, shall have jurisdiction

over the parties”). In referring to those cases, we do not sug-

gest that other arbitral fora can be utilized when the one

selected by the parties is itself available. But here, of course,

the selected forum was not available.

[7] Therefore, on this record we are constrained to hold that

the refusal of the NASD to conduct an arbitration neither ren-

dered the district court powerless to require arbitration to pro-

ceed11 nor deprived it of jurisdiction. In determining

otherwise, the district court erred.12

CONCLUSION

When this case was removed, the district court determined

that it had jurisdiction and issued an order compelling arbitra-

tion. Thereafter, when the named arbitrator refused to accept

the case, the district court determined that the arbitration

11

See Brown, 211 F.3d at 1222.

12

Reddam asks that we affirm the district court’s remand order on the

basis that his claims against KPMG and Sidley were not subject to arbitra-

tion in the first place and should not have been removed and ordered to

arbitration. But removal was at the behest of Deutsche Bank, and 9 U.S.C.

§ 205 applies to actions, not individual claims within actions. Moreover,

an interlocutory order compelling arbitration cannot, itself, be appealed.

See 9 U.S.C. § 16(b)(3).

REDDAM v. SIDLEY AUSTIN BROWN AND WOOD 9257

agreement had become unenforceable and that federal ques-

tion jurisdiction had dissipated like a brume in a breeze.

We reverse because the evidence does not support a deter-

mination that the parties agreed to resile from arbitration if the

implicitly named arbitrator—the NASD—did not consent to

act.

REVERSED. The district court shall enter an order recall-

ing the remand and shall notify the Orange County Superior

Court that the district court has resumed jurisdiction over the

action.