Nicholas Webb v. Financial Industry Regulatory

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 17-2526

NICHOLAS WEBB, et al.,

Plaintiffs-Appellants,

v.

FINANCIAL INDUSTRY REGULATORY AUTHORITY, INC.,

Defendant-Appellee.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:16-cv-04664 — Andrea R. Wood, Judge.

____________________

ARGUED FEBRUARY 6, 2018 — DECIDED MAY 8, 2018

____________________

Before RIPPLE, SYKES, and BARRETT, Circuit Judges.

BARRETT, Circuit Judge. The parties cast this case as one

about arbitral immunity, which is the ground on which the

district court dismissed the complaint. It turns out, however,

that the case is really about federal jurisdiction. We asked the

parties to submit supplemental briefs on this question, and

they both contend that subject matter jurisdiction exists.

Their strongest argument is grounded in the diversity stat-

ute, but the amount in controversy requirement presents an

2 No. 17-2526

obstacle: the complaint satisfies it only if Illinois law permits

the plaintiffs to recover their legal expenses from the under-

lying arbitration, this suit, or both. We conclude that while

Illinois law permits the recovery of legal fees as damages in

limited circumstances, those circumstances are not present

here.

I.

In October 2013, brokers Nicholas Webb and Thad Bev-

ersdorf were fired by their employer, Jefferies & Company,

Inc. (“Jefferies”). They decided to challenge their termina-

tion, and, as their employment contracts with Jefferies de-

manded, they filed their claims in the Financial Industry

Regulatory Authority’s (“FINRA”) arbitration forum. FINRA

required them to sign an “Arbitration Submission Agree-

ment,” which they did, and their dispute with Jefferies pro-

ceeded in arbitration for the next two-and-a-half years. They

withdrew their claims before a final decision was rendered.

Under FINRA’s rules, that withdrawal constituted a dismis-

sal with prejudice.

After the arbitration failed, Webb and Beversdorf sued

FINRA in the Circuit Court of Cook County, Illinois, alleging

that FINRA breached its contract to arbitrate their dispute

with Jefferies. They faulted FINRA for a number of things,

including failing to properly train arbitrators, failing to pro-

vide arbitrators with appropriate procedural mechanisms,

interfering with the arbitrators’ discretion, and failing to

permit reasonable discovery. They sought damages “in an

amount in excess of $50,000” and a declaratory judgment

identifying specified flaws in FINRA’s Code of Arbitration

Procedure. FINRA removed the dispute to federal court,

where it moved to dismiss on multiple grounds, including

No. 17-2526 3

arbitral immunity. The district court held that FINRA was

entitled to arbitral immunity and dismissed the suit. Webb

and Beversdorf appeal this judgment.

II.

Neither side has raised a jurisdictional challenge, but we

have an independent obligation to determine whether we

have authority to resolve this dispute. Smith v. American Gen.

Life & Acc. Ins. Co., 337 F.3d 888, 892 (7th Cir. 2003) (citing St.

Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 287 n.10

(1938)). At oral argument, we ordered the parties to submit

supplemental briefs on this issue. Both sides argue that di-

versity jurisdiction exists, and FINRA argues that federal

question jurisdiction exists as well. Because the argument for

diversity is the stronger of the two, we begin there.

The diversity statute, 28 U.S.C. § 1332, grants jurisdiction

when there is complete diversity of citizenship between the

parties and the amount in controversy exceeds $75,000, ex-

clusive of interest and costs. Complete diversity is not a

problem: Webb and Beversdorf are citizens of Illinois and

FINRA is a Delaware corporation with its principal place of

business in Washington, D.C. Identifying the amount in con-

troversy is more complicated.

After it removed the case to federal court, FINRA initially

claimed that the amount in controversy was satisfied be-

cause Webb and Beversdorf sought more than $1,000,000

from Jefferies. The district court properly rejected this argu-

ment, because we have held that the amount at stake in an

underlying arbitration does not count toward the amount in

controversy in a suit between a party to the arbitration and

the arbitrator. Caudle v. American Arbitration Ass’n, 230 F.3d

4 No. 17-2526

920, 922–23 (7th Cir. 2000). Jurisdiction turns on what is at

stake between the parties to this suit—Webb and Beversdorf,

the plaintiffs, and FINRA, the defendant.

Webb and Beversdorf paid FINRA $1800 at the start of

the arbitration; if that is all they lost, the amount in contro-

versy is obviously far short of the jurisdictional mark. They

also, however, seek to recover the legal fees that they in-

curred both in the course of arbitrating against Jefferies and

in preparing this lawsuit against FINRA.1 Webb and Bevers-

dorf say that these fees—which exceed $75,000—were a rea-

sonably foreseeable consequence of FINRA’s breach of the

Arbitration Submission Agreement. See 24 WILLISTON ON

CONTRACTS § 64.12 (4th ed. 2017) (“Consequential damages

… include those damages that … were reasonably foreseea-

ble or contemplated by the parties at the time the contract

was entered into as a probable result of a breach.”). The dis-

trict court accepted this argument and concluded that it had

authority to adjudicate the suit.

Legal fees may count toward the amount in controversy

if the plaintiff has a right to them “based on contract, statute,

or other legal authority.” Ross v. Inter-Ocean Ins. Co., 693 F.2d

659, 661 (7th Cir. 1982), abrogated on other grounds by Hart v.

1 In their supplemental briefs, Webb and Beversdorf stress the legal

fees they incurred in “preparing to litigate” against FINRA, presumably

because they recognize that the amount in controversy requirement must

be satisfied at the time the lawsuit is filed in or removed to federal court.

Gardynski-Leschuck v. Ford Motor Co., 142 F.3d 955, 958 (7th Cir. 1998)

(“[J]urisdiction depends on the state of affairs when the case begins;

what happens later is irrelevant.”). Even if they seek recovery of legal

fees incurred after the case was removed, those fees cannot count toward

the amount in controversy.

No. 17-2526 5

Schering-Plough Corp., 253 F.3d 272, 274 (7th Cir. 2001). Webb

and Beversdorf do not contend that FINRA assumed a con-

tractual obligation to cover either the fees that they incurred

in arbitration or those that they incurred in this lawsuit. That

leaves statute or other authority. The parties agree that Illi-

nois law governs, so we look there to determine whether

Webb and Beversdorf could plausibly recover any of these

legal fees as damages.

It is clear that Webb and Beversdorf cannot recover the

money spent preparing to litigate against FINRA. Illinois

generally adheres to the American Rule that each party bears

its own litigation costs. Duignan v. Lincoln Towers Ins. Agency,

Inc., 667 N.E.2d 608, 613 (Ill. App. Ct. 1996). Its common law

does not authorize a prevailing party to recover attorneys’

fees from an opponent. Ritter v. Ritter, 46 N.E.2d 41, 43 (Ill.

1943); see also Keefe-Shea Joint Venture v. City of Evanston, 845

N.E.2d 689, 702 (Ill. App. Ct. 2005). Any right to recovery

must derive from contract or statute, Ritter, 46 N.E.2d at 43;

Fednav Int’l Ltd. v. Cont’l Ins. Co., 624 F.3d 834, 839 (7th Cir.

2010), and Webb and Beversdorf have not identified any

contractual or statutory provision giving them that right.

They are thus stuck with the longstanding rule that they

must bear their own litigation expenses in this suit against

FINRA, even if they ultimately win.

But Webb and Beversdorf do not just seek recovery of the

legal fees they have incurred litigating against FINRA; they

also seek recovery of the legal fees they incurred arbitrating

against Jefferies. This is a more plausible ground for recov-

ery, because Illinois recognizes a “third party litigation ex-

ception” to the American Rule. The Illinois Supreme Court

has held that “where the wrongful acts of a defendant in-

6 No. 17-2526

volve the plaintiff in litigation with third parties or place him

in such relation with others as to make it necessary to incur

expense to protect his interest, the plaintiff can then recover

damages against such wrongdoer, measured by the reasona-

ble expenses of such litigation, including attorney fees.” Rit-

ter, 46 N.E.2d at 44; see also RESTATEMENT (SECOND) OF TORTS

§ 914 (“One who through the tort of another has been re-

quired to act in the protection of his interests by bringing or

defending an action against a third person is entitled to re-

cover reasonable compensation for loss of time, attorney

fees, and other expenditures thereby suffered or incurred in

the earlier action.”). While the exception arises more fre-

quently in the context of torts than contracts, we assume that

Illinois courts would recognize it in the latter context as well.

See Colvin v. Monticello Communications, Inc., No. 91–C–2498,

1994 WL 113051, at *8–9 (N.D. Ill. Apr. 1, 1994) (allowing the

recovery of legal fees when the defendant’s breach of con-

tract placed the plaintiff in litigation with a third party); see

also City of Cedarburg Light & Water Comm’n v. Glen Falls Ins.

Co., 166 N.W.2d 165, 168 (Wis. 1969) (“[A] breach of contract

as well as tort may be a basis for allowing the present plain-

tiff to recover reasonable third party litigation expenses.”).

FINRA—whose desire to be in federal court has motivated it

to argue vigorously for a proposition otherwise against its

interest—also insists that the “third party litigation excep-

tion” to the American Rule applies here and could obligate it

to pay for Webb and Beversdorf’s legal expenses if it

breached the arbitration agreement.

Webb and Beversdorf’s effort to recover expenses in-

curred in an arbitration proceeding begun for its own pur-

poses—to assert a wrongful termination claim against Jeffer-

ies—distinguishes this case from those in which Illinois

No. 17-2526 7

courts have applied the exception. Illinois courts have not

applied the exception when the defendant caused the legal

fees to increase in an already existing third-party suit; they

have applied it when the defendant caused the third-party

suit in the first place. The Illinois courts have invariably de-

scribed the exception as applying when the defendant’s

wrong forced the plaintiff into litigation with a third party.

See, e.g., Ritter, 46 N.E.2d at 44 (holding that the exception

applies “where the natural and proximate consequences of a

wrongful act have been to involve the plaintiff in litigation with

others” (emphasis added)); Philpot v. Taylor, 75 Ill. 309, 311

(Ill. 1874) (applying exception where the consequence of the

defendant’s wrongful act “has been to plunge the plaintiff into

a chancery suit” (emphasis added)); see also Champion Parts,

Inc. v. Oppenheimer & Co., 878 F.2d 1003, 1006 (7th Cir. 1989)

(noting that the plaintiff can recover attorneys’ fees if “one

consequence of the tortfeasor’s actions is to involve a person in

litigation with others” (emphasis added)). For example, Illi-

nois courts have permitted plaintiffs to recover legal fees

spent settling with an insurance company when the defend-

ant wrongfully caused the company to cancel the plaintiff’s

policy, Duignan, 667 N.E.2d at 613; obtaining refunds of tax

penalties that were assessed on the plaintiff due to the de-

fendant’s negligence, Sorenson v. Fio Rito, 413 N.E.2d 47, 52

(Ill. App. Ct. 1980); and filing a second divorce petition when

the defendant’s legal malpractice resulted in the dismissal of

the plaintiff’s first petition, Nettleton v. Stogsdill, 899 N.E.2d

1252, 1259 (Ill. App. Ct. 2008). In all of these instances, the

third-party litigation existed because of the defendant’s al-

leged wrong.2 And when the party seeking the recovery of

2 The dissent cites Certain Underwriters at Lloyd’s, London v. Johnson &

8 No. 17-2526

fees was the plaintiff in the third-party litigation, as Webb

and Beversdorf were here, the third-party litigation has been

undertaken to “cure the damage caused by the defendant.”

Duignan, 667 N.E.2d at 613.

Webb and Beversdorf did not undertake the arbitration

to cure FINRA’s breach of contract; they undertook it to re-

solve an employment dispute with Jefferies. FINRA’s al-

leged breach of the arbitration agreement did not force

Webb and Beversdorf into arbitration; it allegedly increased

Bell, Ltd., No. 10–C–7151, 2011 WL 3757179 (N.D. Ill. Aug. 25, 2011), as

persuasive authority for the proposition that Illinois law would permit

the recovery of fees not only when the defendant forced the plaintiff into

litigation, but also when the defendant increased the plaintiff’s expenses

in otherwise existing litigation. It is, of course, the decisions of Illinois

courts that control our interpretation of Illinois law. In any event, how-

ever, Certain Underwriters is consistent with our view of Illinois law.

There, an insurer brought a legal malpractice action against a law firm

that represented it in two underlying suits. The district court held that

Illinois law would permit the plaintiff to recover attorneys’ fees in one of

the underlying suits based on the plaintiff’s allegation that “it would not

have undertaken its representation of [the insured] in the underlying …

lawsuit but for defendants’ advice.” In other words, but for the defend-

ants’ negligence, the plaintiff would not have been involved in the third-

party litigation. Id. at *5. The district court also held that Illinois law

would permit the plaintiff to recover the cost of hiring new counsel to

correct the defendants’ failure to sue a necessary party in both of the un-

derlying suits. Id. at *6. Certain Underwriters tracks the Illinois cases be-

cause it permits recovery of attorneys’ fees paid to new counsel in an

attempt to “cure the damage,” Duignan, 667 N.E.2d at 613. Like the plain-

tiffs in Nettleton v. Stogsdill and Sorenson v. Fio Rito—and unlike Webb

and Beversdorf here—the plaintiffs in Certain Underwriters did not seek

recovery of inflated expenses incurred in the course of the initial, flawed

litigation; they sought recovery of fees paid to replacement counsel hired

to fix the defendants’ mistakes.

No. 17-2526 9

the costs of arbitration they had already begun. The straight-

forward causal connection that justified application of the

third-party litigation exception in other cases is not present

in this suit. Even, then, if FINRA breached its contract with

Webb and Beversdorf, that breach would not alleviate Webb

and Beversdorf’s obligation to shoulder the legal costs asso-

ciated with their decision to pursue a wrongful termination

claim against Jefferies. See Buckhannon Bd. & Care Home, Inc.

v. West Virginia Dep’t of Health & Human Res., 532 U.S. 598,

602 (2001) (“In the United States, parties are ordinarily re-

quired to bear their own attorney's fees….”). Illinois courts

have consistently described and applied the exception in a

way that precludes its application here.3

When a defendant removes to federal court, as FINRA

did here, its plausible and good faith estimate of the amount

in controversy establishes jurisdiction unless it is a “legal

certainty” that the plaintiffs’ claim is for less than the requi-

site amount. St. Paul Mercury Indem. Co., 303 U.S. at 288–89;

3 We do not reach this conclusion simply because the cases have all

involved a defendant whose wrong forced the plaintiff to bring or de-

fend a third-party lawsuit. See Dissenting Op. at 16–17 (observing that

the “frequent occurrence of a fact pattern does not impose an analytical

limitation on a principle unless some animating component of that prin-

ciple limits application to the particular fact pattern.”). While we do not

think the uniform occurrence of this fact pattern irrelevant, our conclu-

sion is driven by the way that the Illinois courts (and, for that matter, the

RESTATEMENT (SECOND) OF TORTS, see supra at 6) state the rule governing

the recovery of third-party litigation expenses: they invariably include

this limitation. The limit is not irrational; indeed, we can imagine reasons

why Illinois might want to draw a line between attorneys’ fees clearly

attributable to the defendant’s breach and those that are harder to sort

out.

10 No. 17-2526

Roppo v. Travelers Commercial Ins. Co., 869 F.3d 568, 579 (7th

Cir. 2017). Here, Illinois law makes it a “legal certainty” that

Webb and Beversdorf’s claim is for less than the requisite

amount.4 Diversity jurisdiction does not exist.

III.

Webb and Beversdorf leave it at diversity, but FINRA

makes an additional argument for federal question jurisdic-

4 The dissent argues that the “legal certainty” standard, St. Paul Mer-

cury Indem. Co., 303 U.S. at 289, requires a federal court, where possible,

to construe state law to allow the recovery of damages. Dissenting Op. at

19–20. That is not how the “legal certainty” standard works. The court

first decides whether, assuming the facts the plaintiff alleges are true,

state law allows recovery of the damages the plaintiff seeks. If state law

forecloses recovery of the damages, it is certain that the claim is for less

than the jurisdictional amount. Otherwise, the court accepts the plain-

tiff’s good faith valuation of the claim. See Anthony v. Sec. Pac. Fin. Servs.,

Inc., 75 F.3d 311, 315 (7th Cir. 1996) (applying this two-step inquiry); see

also St. Paul Mercury Indem. Co., 303 U.S. at 288 (“The rule governing

dismissal for want of jurisdiction in cases brought in the federal court is

that, unless the law gives a different rule, the sum claimed by the plain-

tiff controls.”). The point of the “legal certainty” test is not to guide the

court’s interpretation of state law, but to save the court from having to

make difficult predictions about whether and how much the plaintiff is

likely to win. Meridian Sec. Ins. Co. v. Sadowski, 441 F.3d 536, 543 (7th Cir.

2006) (“[U]ncertainty about whether the plaintiff can prove its substan-

tive claim, and whether damages (if the plaintiff prevails on the merits)

will exceed the threshold, does not justify dismissal.”). To that end, the

test distinguishes between the law (which can render a claim’s value cer-

tain) and the facts (which, if plausible, cannot). So far as we can tell, the

suggestion that the “legal certainty” standard requires a federal court to

accept the plaintiff’s good-faith characterization of the law, as opposed

to the plaintiff’s good-faith valuation of his claim, is novel.

No. 17-2526 11

tion.5 According to FINRA, this dispute is one of the rare

state-law causes of action that gives rise to federal question

jurisdiction under Grable & Sons Metal Products, Inc. v. Darue

Engineering & Manufacturing, 545 U.S. 308 (2005); see also

Merrill Lynch, Pierce, Fenner & Smith v. Manning, 136 S. Ct.

1562, 1566 (2016) (holding that the Grable & Sons test deter-

mines the reach of “arising under” jurisdiction for purposes

of the jurisdictional grant in the Securities Exchange Act of

1934).6 Its theory is that the presence of an issue of federal

securities law transforms this state-law contract claim into

one arising under federal law.

Under Grable & Sons, a state-law claim may satisfy the

“arising under” jurisdictional test if a federal issue is:

(1) necessarily raised, (2) actually disputed, (3) substantial,

and (4) capable of resolution in a federal court without dis-

rupting the federal-state balance. Gunn v. Minton, 568 U.S.

251, 258 (2013) (citing Grable & Sons, 545 U.S. at 314); see also

Evergreen Square of Cudahy v. Wisconsin Hous. & Econ. Dev.

Auth., 776 F.3d 463, 466 (7th Cir. 2015). Federal jurisdiction is

rarely established on this basis. Hartland Lakeside Joint No. 3

School Dist. v. WEA Ins. Corp., 756 F.3d 1032, 1033 (7th Cir.

2014). For a state-law claim to arise under a federal securities

5 FINRA invoked both diversity and federal question jurisdiction in

its notice of removal. Because the district court concluded that diversity

jurisdiction existed, it did not reach the question of federal question ju-

risdiction.

6 FINRA invokes both the general federal question statute, 28 U.S.C.

§ 1331, and the exclusive jurisdictional provision in the Securities Ex-

change Act of 1934, 15 U.S.C. § 78aa. Because the Supreme Court held in

Manning, 136 S. Ct. at 1566, that the Grable & Sons test applies in both

contexts, we do not consider the two statutes separately.

12 No. 17-2526

claim, an issue of federal law must be the “cornerstone” of

the plaintiff’s complaint. Manning, 136 S. Ct. at 1569.

This dispute does not make it past the first factor of the

Grable & Sons test. FINRA contends that because the plain-

tiffs’ suit implicates FINRA’s SEC-approved Code of Arbitra-

tion Procedure, this case requires us to decide whether

FINRA breached a duty it owed Webb and Beversdorf under

the securities laws. But FINRA fails to identify a single pro-

vision of federal law that we would have to interpret to re-

solve this case. The question is whether FINRA breached its

arbitration agreement, and no “inescapable” provision of

federal law drives that analysis. Hartland, 756 F.3d at 1035. To

be sure, FINRA is regulated by the SEC, and its duties under

the federal securities laws might come up. But that does not

make federal law the “cornerstone” of the plaintiff’s com-

plaint. Manning, 136 S. Ct. at 1569. The Supreme Court has

emphasized that a “federal role” is not enough. Id.

As for the rest of the Grable & Sons test, an issue not

raised cannot be actually disputed or substantial, and with-

out any federal question necessarily in play, we need not

consider how taking the question would affect the federal-

state balance. This is a state-law contract claim, and FINRA’s

effort to pull it within federal question jurisdiction fails.

IV.

We VACATE the judgment for lack of jurisdiction and

REMAND the case to the district court with instructions to

remand to state court.

No. 17-2526 13

RIPPLE, Circuit Judge, concurring in part and dissenting in

part. I agree with the majority that federal question jurisdic-

tion is lacking. However, I reach a different conclusion with

respect to diversity jurisdiction. Specifically, I cannot agree

that we know, to a “legal certainty,” that Messrs. Webb and

Beversdorf cannot recover the damages that they allege, in-

cluding the attorneys’ fees expended in the earlier arbitration.

A defendant seeking removal of a state action to federal

court must file a notice of removal “containing a short and

plain statement of the grounds for removal.” 28 U.S.C.

§ 1446(a).

“By design, § 1446(a) tracks the general plead-

ing requirement stated in Rule 8(a) of the Fed-

eral Rules of Civil Procedure.” As the Supreme

Court explained in Dart Cherokee Basin Operating

Co., “Congress, by borrowing the familiar ‘short

and plain statement’ standard from Rule 8(a),

intended to ‘simplify the “pleading” require-

ments for removal’ and to clarify that courts

should ‘apply the same liberal rules [to removal

allegations] that are applied to other matters of

pleading.’”

Roppo v. Travelers Commercial Ins. Co., 869 F.3d 568, 578 (7th

Cir. 2017) (alteration in original) (quoting Dart Cherokee Basin

Operating Co., LLC v. Owens, 135 S. Ct. 547, 553 (2014)). There-

fore, “[j]ust as we generally accept the plaintiff’s good-faith

allegations of the amount in controversy to establish diversity

jurisdiction, ‘when a defendant seeks federal-court adjudica-

tion, the defendant’s amount-in-controversy allegation

should be accepted when not contested by the plaintiff or

14 No. 17-2526

questioned by the court.’” Id. at 579 (footnote omitted) (quot-

ing Dart Cherokee Basin Operating Co., 135 S. Ct. at 553). “Once

this has been done, and supported by proof of any contested

jurisdictional facts, the presumption is the one stated in

St. Paul Mercury [Indemnity Co v. Red Cab Co., 303 U.S. 283, 291

(1938)]: the estimate of the dispute’s stakes advanced by the

proponent of federal jurisdiction controls unless a recovery

that large is legally impossible.” Back Doctors Ltd. v. Metro.

Prop. & Cas. Ins. Co., 637 F.3d 827, 830 (7th Cir. 2011).

We also have observed that the legal certainty test sets a

high bar for excluding federal subject matter jurisdiction “for

good reason: District courts should not get bogged down at

the time of removal in evaluating claims on the merits to de-

termine if jurisdiction exists.” Carroll v. Stryker Corp., 658 F.3d

675, 681 (7th Cir. 2011). Thus, typical examples of claims con-

sidered “‘legally impossible’ for jurisdictional purposes” in-

volve “statutory or contractual cap[s] on damages.” Id.

With this principle in mind, we must turn to Illinois state

law. Here, it is important not to get off on the wrong foot by

how we characterize this action. It is not an attorneys’ fees ac-

tion; it is a damages action based on the breach of a contract.

This distinction is very important. Illinois normally would not

allow the recoupment of attorneys’ fees for success in main-

taining the present action. It does recognize, however, that at-

torneys’ fees incurred in an earlier action can be a measure of

damages for an individual’s misfeasance in that earlier action.

See Duignan v. Lincoln Towers Ins. Agency, 667 N.E.2d 608, 613

(Ill. App. Ct. 1996).

The Illinois appellate court explained the principles un-

derlying this rule, and demonstrated their application, in

Sorenson v. Fio Rito, 413 N.E.2d 47 (Ill. App. Ct. 1980). In

No. 17-2526 15

Sorenson, a widow had retained an attorney, Fio Rito, to han-

dle her husband’s estate. Rather than attending to it, however,

the attorney let it languish in his office; taxes went unpaid,

and tax authorities imposed penalties. Sorenson then retained

a new attorney to handle the estate, and through that attor-

ney’s unsuccessful attempts to obtain refunds of penalties and

interest, she incurred attorneys’ fees. See id. at 50. Sorenson

then brought an action against the first attorney, Fio Rito, for

damages. Among the damages that she claimed were fees

paid to her second attorney for challenging the penalties. The

trial court ruled that Sorenson could recover these damages

from Fio Rito.

Fio Rito maintained in the state appellate court that the

American Rule, which generally precludes a plaintiff from re-

covering attorneys’ fees expended to bring a lawsuit against

a wrongdoer, foreclosed such damages. See id. at 51. The ap-

pellate court disagreed. It explained that Fio Rito was “con-

fus[ing] the exception with the general rule. The general rule

in Illinois is that one who commits an illegal or wrongful act

is liable for all of the ordinary and natural consequences of his

act.” Id. The American Rule governing attorneys’ fees limited

this general rule, but only in situations “where a successful lit-

igant seeks to recover his costs in maintaining the lawsuit”; it

was not “intended to preclude a plaintiff from recovering

losses directly caused by the defendant’s conduct simply be-

cause those losses happen to take the form of attorneys’ fees.”

Id. at 51–52. Applying these principles to Sorenson’s claim, the

court stated:

The plaintiff here is not attempting to recover

the attorneys’ fees she expended in bringing this

16 No. 17-2526

lawsuit. Rather, she seeks to recover losses in-

curred in trying to obtain refunds of tax penal-

ties which were assessed against her solely as a

result of the defendant’s negligence. Had the

plaintiff been forced to hire an accountant to re-

pair the damage caused by the defendant’s con-

duct, she would undoubtedly have been enti-

tled to recover the accountant’s fee as an ordi-

nary element of damages. There is no basis in

logic for denying recovery of the same type of

loss merely because the plaintiff required an at-

torney instead of an accountant to correct the

situation caused by the defendant’s neglect. In

holding the defendant liable for the plaintiff’s

losses, we are not violating the policy against

“penalizing” a litigant for defending a lawsuit.

We are simply following the general rule of re-

quiring a wrongdoer to bear the consequences

of his misconduct.

Id. at 52. The facts of our case are different. Here, the plaintiffs

are demanding that the arbitrator in the underlying matter re-

imburse them for the attorney fees that they incurred because

of the arbitrator’s alleged lapse. The principle nevertheless re-

mains the same.

As the majority notes, most cases addressing the recovery

of attorneys’ fees involve situations in which “the defendant’s

wrong forced the plaintiff into litigation with a third party”—

“when the defendant caused the third-party suit” as opposed

to simply “caus[ing] the legal fees to increase in an already

existing third-party suit.” See Majority Opinion 6–7 (collecting

cases). However, the frequent occurrence of a fact pattern

No. 17-2526 17

does not impose an analytical limitation on a principle unless

some animating component of that principle limits applica-

tion to the particular fact pattern. Here, the majority points to

no such consideration. Nor does Illinois case law suggest any

such limitation. Indeed, a colleague on the district court has

written that it demonstrates the opposite. In Certain Under-

writers at Lloyd’s, London v. Johnson & Bell, Ltd., No. 10 C 7151,

2011 WL 3757179 (N.D. Ill Aug. 25, 2011), the underwriters

had hired Johnson & Bell to analyze their coverage responsi-

bilities in two lawsuits and “to prepare and file complaints for

declaratory judgment as necessary in connection with both

suits.” Id. at *1. The underwriters later brought an action in

federal court asserting state law malpractice claims against

Johnson & Bell related to its representation in the two earlier

actions. Specifically, the underwriters alleged that it incurred

unnecessary attorneys’ fees based on Johnson & Bell’s han-

dling of two underlying actions, the Lewis action and the

Zarndt action.

One of Johnson & Bell’s alleged missteps was providing

negligent advice to the underwriters that they had a duty to

provide representation in the Lewis lawsuit. With respect to

those fees, the underwriters contended that “it would not

have undertaken its representation of the defendants in the

underlying Lewis lawsuit but for defendants’ advice.” Id. at *5.

The underwriters did not make an equivalent claim with re-

spect to the Zarndt action.

A separate failure, however, was that Johnson & Bell neg-

ligently had failed to name a necessary party in both the

Zarndt and Lewis actions. Consequently, they had to hire re-

placement counsel in those lawsuits and to incur unnecessary

attorneys’ fees to correct the errors. Relying on Sorenson and

18 No. 17-2526

other Illinois cases, the district court held that Illinois law did

not bar the underwriters’ claims: “Defendants’ omission of

FCC as a defendant in the … declaratory judgment actions al-

legedly necessitated correction of the pleadings at a fixed cost

to plaintiff. At the time the fees were incurred, it was clear that

the fees were directly attributable to counsel’s neglect.” Id. at

*7 (citing Sorenson, 413 N.E.2d at 52). The court saw no analyt-

ical significance to the fact that the underwriters had incurred

the fees in existing litigation, rather than incurred in a sepa-

rate lawsuit. Moreover, the court made no distinction be-

tween fees incurred in the Lewis action, which would not have

been undertaken absent Johnson & Bell’s negligence, and

those incurred in the Zarndt action, the defense of which the

underwriters did not challenge.

Here, Messrs. Webb and Beversdorf do not seek damages

from FINRA in the form of attorneys’ fees expended in this

action. Instead, they seek damages from FINRA that include

the expenditure of attorneys’ fees in the underlying arbitra-

tion. They claim that these damages are “the direct result” of

FINRA’s failure to create fair procedures and of FINRA’s in-

terference in the arbitral process.1 Illinois law does not pre-

clude a plaintiff from “recovering losses directly caused by

the defendant’s conduct simply because those losses happen

to take the form of attorneys’ fees.” Sorenson, 413 N.E.2d at 52.

Moreover, the court inquired, and plaintiffs’ counsel repre-

sented on the record, that the fees paid to FINRA and to arbi-

tral counsel exceeded $75,000.2 See Rising-Moore v. Red Roof

1 R.1-1 at 7.

2 See R.35-2 at 3–4.

No. 17-2526 19

Inns, Inc., 435 F.3d 813, 816 (7th Cir. 2006) (finding that plain-

tiff’s counsel’s settlement demand could support a finding

that the amount in controversy had been satisfied); cf. Work-

man v. United Parcel Serv., Inc., 234 F.3d 998, 1000 (7th Cir.

2000) (observing that a plaintiff’s refusal to stipulate that his

claim is less than $75,000 raises an inference that he believes

his claim is worth more). Consequently, the district court

properly determined that the amount in controversy was not

in question.

As noted at the outset of this separate opinion, we have

said, straightforwardly and firmly, that “[t]he legal-certainty

test sets the bar high for excluding federal subject-matter ju-

risdiction, and for good reason: District courts should not get

bogged down at the time of removal in evaluating claims on

the merits to determine if jurisdiction exists.” Carroll, 658 F.3d

at 681. This rule, rooted in the long-standing jurisprudence of

the Supreme Court, see St. Paul Mercury Indem. Co., 303 U.S. at

289, is followed faithfully throughout the Country, see, e.g.,

Colavito v. New York Organ Donor Network, Inc., 438 F.3d 214,

221 (2d Cir. 2006). When the applicable state law definitively

precludes recovery of the jurisdictional amount, we have not

hesitated to say that the federal court is without jurisdiction.

See, e.g., Anthony v. Sec. Pac. Fin. Servs., Inc., 75 F.3d 311, 317–

18 (7th Cir. 1996). However, when state law is “unsettled,” we

will not engage in guesswork to resolve the issue of state law

prematurely. Geschke v. Air Force Ass’n, 425 F.3d 337, 341 (7th

Cir. 2005).3

3 We note in passing, however, that when a claim for punitive damages

comprises the vast bulk of the amount necessary to reach the jurisdictional

threshold, we have proceeded with a heightened degree of caution. See

20 No. 17-2526

Here, the majority opinion, quite admittedly, see Majority

Opinion 9, engages in such guesswork. Frankly admitting

that it cannot say with any certainty how Illinois courts would

resolve the plaintiffs’ substantive claims, it ignores the court’s

teaching in Geschke. Taking a guess on the content of state law,

it denies the defendants their rightful federal forum. In doing

so, it effectively chides the district court for having followed

the established law of the circuit and tells future district courts

to ignore Geschke and to follow its example today of becoming

bogged down in reading “tea leaves” on the content of state

law. It departs from the established practice of accepting ju-

risdiction and of confronting the content of state law by later

employing other federal practice devices that are far better

suited to addressing, sometimes with the help of the state

court, the intractable problems inherent in the “Erie guess.”4

See, e.g., Colavito, 438 F.3d at 231-35 (deciding the jurisdic-

tional amount issue and then determining through motions

for summary judgment, for dismissal for failure to state a

claim, and by certification whether the plaintiff could state a

viable cause of action).

Because I believe that the district court followed estab-

lished practice, grounded in well-settled case law across the

Nation, I respectfully dissent from the dismissal for want of

subject matter jurisdiction.

Del Vecchio v. Conseco, Inc., 230 F.3d 974, 978–79 (7th Cir. 2000); see also

Packard v. Provident Nat’l Bank, 994 F.2d 1039, 1046 (3d Cir. 1993).

4 See generally Dolores K. Sloviter, A Federal Judge Views Diversity Jurisdic-

tion Through the Lens of Federalism, 78 Va. L. Rev. 1671 (1992).