Dimitri Shivkov v. Artex Risk Solutions, Inc.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DIMITRI SHIVKOV, individually and No. 19-16746

as a trustee of the Phoenix 2010

Revocable Trust; VASSIL ZHIVKOV; D.C. No.

KRISTINA TSONEV; SPECTRA 2:18-cv-04514-

SERVICES, INC.; DVS HOLDINGS SMM

LLC; ROBERT C. MILLER; BRENDA

MAE MILLER; BRUCE G. ROBINSON;

SARA VAN ALSTYNE ROBINSON; OPINION

SYMPHONY HOMES LLC; SYMPHONY

DEVELOPMENT CORPORATION;

KEITH BUTLER; REBECCA M.

BUTLER; ERIC K. WILKE; JULIE T.

WILKE; JOHN LINDER; NINA LINDER;

AFFILION OF COBRE VALLEY LLC;

AFFILION OF HUNTSVILLE PLLC;

AFFILION OF TEXAS PLLC; TAYLOR-

WILKE HOLDINGS LLC; TRADITIONS

EMERGENCY MEDICINE PA;

TREADSTONE EQUITY GROUP LLC;

UTA INVESTMENTS LLC;

BOOMERANG WB LLC; AZ STORAGE

1 LLC; AZ STORAGE 2 LLC;

BOOMERANG SONORAN LLC; RV

STORAGE LLC; STONE HAVEN

LODGE LLC; UTA HOLDINGS LLC;

WILKE MEDICAL DIRECTION PLLC;

5T CAPITAL FUND II LLC; 5T

CAPITAL HOLDINGS LLC; 5T

CAPITAL LLC; INGENUITY AUTO

2 SHIVKOV V. ARTEX RISK SOLUTIONS

LEASING LLC; INGENUITY AVIATION

LLC; INGENUITY EQUITY GROUP II

LLC; INGENUITY EQUITY GROUP III

LLC; INGENUITY EQUITY GROUP

LLC; INGENUITY LEASING COMPANY

II LLC; INGENUITY LEASING

COMPANY LLC; INGENUITY MATRIX,

INC.; INGENUITY PROFESSIONAL

SERVICES PLLC; BOURNE TEMPE

LAND LLC, on behalf of themselves

and all others similarly situated;

PAUL M. MCHALE; CYNTHIA

MCHALE; KEITH E. PEREIRA,

Individually and as a trustee of The

Blaser Family Revocable Trust

Dated March 10, 2006; KIMBERLY

BLASER, Individually and as a trustee

of The Blaser Family Revocable

Trust Dated March 10, 2006; BRIAN

R. TIFFANY; RYAN P. FRANK;

KATHERINE S. FRANK; CATION LLC;

FLORIDA CITRUS HOLDINGS LLC;

MCHALE CAPITAL MANAGEMENT

LLC; PS BAILEY LLC; BLASER

MANAGEMENT LLC; BLUE HORIZON

HOLDINGS LLC; BUTLER MEDICAL

GROUP, INC.; DEVOTION HOMES

LLC; GLASS HOUSE LLC; MAUI

LUXURY RENTALS LLC; SILVER

MEADOW INVESTING LLC; T&G

INVESTMENTS LLC; TREADSTONE

CORE3 LLC; TW MANAGEMENT

LLC; KAMAOLE LUXURY RENTALS

LLC; KANNAPALI BEACH HOLDINGS

SHIVKOV V. ARTEX RISK SOLUTIONS 3

LLC; OUR RETIREMENT LLC;

RESILIANT LLC; NADIM B. BIKHAZI;

KAREN A. KOSTLUK-BIKHAZI;

BRADLEY S. BULLARD; CATHLEEN

M. BULLARD; BLAKE G. WELLING;

STEPHANIE G. WELLING; BLAKE

WELLING MD PC; BRIAN TIFFANY

MD PC; UTAH SPINE CARE LLC;

WESTERN STATES MEDICAL LLC;

OGDEN CLINIC PROFESSIONAL

CORPORATION; BORSIGHT, INC.,

Plaintiffs-Appellants,

v.

ARTEX RISK SOLUTIONS, INC.; TSA

HOLDINGS LLC, FKA Tribeca

Strategic Advisors LLC; TBS LLC,

DBA PRS Insurance; KARL HUISH;

JEREMY HUISH; JIM TEHERO;

ARTHUR J. GALLAGHER & COMPANY;

DEBBIE INMAN; EPSILON ACTUARIAL

SOLUTIONS LLC; JULIE A. EKDOM;

AMERISK CONSULTING LLC;

PROVINCIAL INSURANCE PCC;

TRIBECA STRATEGIC ACCOUNTANTS

LLC; TRIBECA STRATEGIC

ACCOUNTANTS PLC,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Arizona

Stephen M. McNamee, District Judge, Presiding

4 SHIVKOV V. ARTEX RISK SOLUTIONS

Argued and Submitted July 7, 2020

Seattle, Washington

Filed September 9, 2020

Before: MICHAEL DALY HAWKINS, D. MICHAEL

FISHER, * and MILAN D. SMITH, JR., Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.

SUMMARY **

Arbitration

The panel affirmed the district court’s order compelling

individual arbitration and dismissing a putative class action

alleging violations of the Racketeer Influenced and Corrupt

Organizations Act and Arizona law.

Plaintiffs alleged that pursuant to agreements between

themselves and two defendants, defendants formed captive

insurance companies that plaintiffs owned, and to which

they paid insurance premiums. Plaintiffs claimed the

payments as tax-deductible business expenses without

recognizing them as taxable income. The IRS audited

plaintiffs, issued delinquency notices, and sought to impose

penalties. After settling with the IRS, plaintiffs filed suit,

*

The Honorable D. Michael Fisher, United States Circuit Judge for

the U.S. Court of Appeals for the Third Circuit, sitting by designation.

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

SHIVKOV V. ARTEX RISK SOLUTIONS 5

alleging that the captives were illegal and abusive tax

shelters, about which defendants failed to inform or advise

them.

The panel affirmed the district court’s order compelling

arbitration pursuant to an arbitration clause in the parties’

agreements. First, the panel held that the agreements were

not unenforceable on the grounds plaintiffs raised. Although

plaintiffs asserted that defendants breached a fiduciary duty

to point out and fully explain an arbitration clause, they

identified no state law authority recognizing such a duty.

Addressing an issue of first impression concerning the

survival of arbitration obligations following contract

termination, the panel held that the agreements did not

expressly negate the presumption in favor of post-

termination arbitration or clearly imply that the parties did

not intend for their arbitration obligations to survive

termination.

Second, the panel held that under Arizona contract law,

the arbitration clause encompassed all plaintiffs’ claims.

Third, joining other circuits, the panel held that the

availability of class arbitration is a gateway issue that a court

must presumptively decide. The panel concluded that the

parties’ agreements did not clearly and unmistakably

delegate that issue to the arbitrator. Because the agreements

were silent on class arbitration, they did not permit class

arbitration.

Finally, the panel concluded that pursuant to Arizona law

on alternative estoppel, all non-signatory defendants could

compel arbitration pursuant to the agreements.

6 SHIVKOV V. ARTEX RISK SOLUTIONS

COUNSEL

W. Ralph Canada Jr. (argued), David R. Deary, Jim L.

Flegle, Wilson E. Wray, John McKenzie, Donna Lee, and

Tyler M. Simpson, Loewinsohn Flegle Deary Simon LLP,

Dallas, Texas; Garrett W. Woktyns and James A. Bloom,

Schneider Wallace Cottrell Konecky Wotkyns, LLP,

Scottsdale, Arizona; for Plaintiffs-Appellants.

Stephen V. D’Amore (argued), Scott P. Glauberman,

Michael A. Skokna, and Reid F. Smith, Winston & Strawn

LLP, Chicago, Illinois; Barbara J. Dawson, Joseph G.

Adams, and Taryn J. Gallup, Snell & Wilmer LLP, Phoenix,

Arizona; for Defendants-Appellees Artex Risk Solutions

Inc., Arthur J. Gallagher & Company, and Debbie Inman.

Karl M. Tilleman (argued) and Erin E. Bradham, Dentons,

Phoenix, Arizona; for Defendants-Appellees TSA Holdings

LLC, TBS LLC, Karl Huish, Jeremy Huish, Jim Tehero,

Provincial Insurance PCC, and Tribeca Strategic

Accountants LLC.

J. Steven Sparks and Vincent Miner, Sanders & Parks,

Phoenix, Arizona, for Defendants-Appellees Epsilon

Actuarial Solutions LLC and Julie A. Ekdom.

J. Michael Low and Paul Gerding, Jr., Kutak Rock,

Scottsdale, Arizona, for Defendant-Appellee AmeRisk

Consulting LLC.

Michael J. Plati and Michael S. Rubin, Dickinson Wright

PLLC, Phoenix, Arizona, for Defendant-Appellee Tribeca

Strategic Accountants PLC.

SHIVKOV V. ARTEX RISK SOLUTIONS 7

OPINION

M. SMITH, Circuit Judge:

Plaintiffs 1, some eighty-one individuals and related

business entities, variously entered into agreements (the

Agreements) with Defendants Artex Risk Solutions, Inc.

(Artex) and TSA Holdings, LLC, formerly Tribeca Strategic

Advisors, LLC (Tribeca). Pursuant to these Agreements,

Artex and Tribeca formed and managed captive insurance

companies that Plaintiffs owned, and to which Plaintiffs paid

insurance premiums. Plaintiffs claimed the payments as tax-

deductible business expenses without recognizing them as

taxable income. Although this arrangement offered the

prospect of tax benefits, that prospect proved fleeting. The

IRS audited Plaintiffs, issued delinquency notices, and

sought to impose penalties.

After settling with the IRS, Plaintiffs brought this

putative class action suit against Defendants. 2 Plaintiffs

allege that the captives were illegal and abusive tax shelters,

about which Defendants failed to inform or advise Plaintiffs.

Plaintiffs’ pursuit of this suit, however, faced a roadblock:

the Agreements contain an arbitration clause (the Arbitration

1

Because the Plaintiffs are so numerous, and are each named in the

caption, we do not recount the names of all of them in the body of this

opinion.

2

In addition to Artex and Tribeca, Plaintiffs sued officers of Artex,

Tribeca, and the parent company of Artex, namely, Defendants Karl

Huish, Jeremy Huish, Jim Tehero, and Arthur J. Gallagher & Co.

Plaintiffs also sued TBS LLC d/b/a PRS Insurance; Debbie Inman (an

Artex employee); Epsilon Actuarial Solutions, LLC, Julie A. Ekdom

(CEO of Epsilon); AmeRisk Consulting, LLC; Provincial Insurance,

PCC; Tribeca Strategic Accountants, LLC; and Tribeca Strategic

Accountants, PLC. We refer to all as the “Defendants.”

8 SHIVKOV V. ARTEX RISK SOLUTIONS

Clause or Clause). The district court granted Defendants’

motion to compel arbitration and dismissed the operative

complaint without prejudice. Plaintiffs appeal.

We resolve several issues here. First, we hold that the

Agreements are not unenforceable on the grounds Plaintiffs

raise. Although Plaintiffs assert that Artex and Tribeca

breached a fiduciary duty to point out and fully explain an

arbitration clause, they identify no state law authority

recognizing such a duty. Addressing an issue of first

impression in our circuit concerning the survival of

arbitration obligations following contract termination, we

hold that the Agreements do not expressly negate the

presumption in favor of post-termination arbitration or

clearly imply that the parties did not intend for their

arbitration obligations to survive termination. Second, we

hold that the Arbitration Clause encompasses all Plaintiffs’

claims. Third, we join seven of our sister circuits in holding

that the availability of class arbitration is a gateway issue that

a court must presumptively decide. The Agreements here do

not clearly and unmistakably delegate that issue to the

arbitrator. Because the Agreements are silent on class

arbitration, they do not permit class arbitration. Finally, we

conclude that all non-signatory Defendants may compel

arbitration pursuant to the Agreements. Thus, we affirm.

BACKGROUND

I. The Agreements and the Arbitration Clause

Between 2009 and 2012, the various groups of Plaintiffs

retained Artex and Tribeca, both insurance management

companies, to provide services concerning the formation and

SHIVKOV V. ARTEX RISK SOLUTIONS 9

management of captive insurance companies for Plaintiffs.3

Pursuant to the Agreements, Artex and Tribeca, with support

from the other Defendants, conducted feasibility studies

concerning the creation of the respective captives, created

and managed the captives, calculated the captives’ estimated

federal tax payments, caused annual federal tax returns for

the captives to be prepared and filed, maintained the

captives’ accounting records, and reinsured the captives.

As is relevant here, the Agreements contain an

Arbitration Clause:

You and we agree that in the event of any

dispute that cannot be resolved between the

parties, that we will agree to seek to resolve

such disputes through mediation in Mesa,

Arizona, and if that fails, that all disputes will

be subject to binding arbitration in Mesa,

Arizona, with arbitrators to be agreed upon

by the parties, and if no agreement is reached,

then arbitrated by the American Arbitration

Association (AAA). Each party shall bear its

own costs in such mediation and arbitration.

To reduce time and expenses, we each waive

our right to litigate against one another

regarding the services provided and

obligations pursuant to this Agreement, and

instead you and we have chosen binding

arbitration. All claims or disputes will be

governed by Arizona law.

Several Agreements also contain a Termination and

Withdrawal section, which includes a clause concerning the

3

Artex acquired Tribeca in 2010.

10 SHIVKOV V. ARTEX RISK SOLUTIONS

survival of the terms of that section following termination of

the Agreement. 4

II. This Litigation

After settling with the IRS for tax liability issues arising

from deductions that they claimed for the premiums that they

paid to the captives, Plaintiffs filed a putative class action

complaint in the District of Arizona. In the operative one

hundred seventy-page First Amended Complaint (FAC),

Plaintiffs raised claims against all Defendants for breach of

fiduciary duty, negligence, negligent misrepresentation,

disgorgement, rescission, breach of contract and the duty of

good faith and fair dealing, fraud, civil conspiracy, aiding

and abetting breach of fiduciary duty and fraud, violations of

the federal Racketeer Influenced and Corrupt Organizations

(RICO) Act, 18 U.S.C. § 1961 et seq., and violations of the

Arizona RICO statute, Ariz. Rev. Stat. § 13-2301 et seq.

Defendants moved to compel arbitration, and separately

moved to dismiss. The district court granted the motion to

compel, ordered Plaintiffs to arbitrate their claims on an

individual basis, and dismissed the FAC without prejudice.

Plaintiffs timely appealed.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291 and

9 U.S.C. § 16(a)(3). Green Tree Fin. Corp.-Ala. v.

Randolph, 531 U.S. 79, 89 (2000); Johnmohammadi v.

Bloomingdale’s, Inc., 755 F.3d 1072, 1074 (9th Cir. 2014).

“We review a district judge’s order to compel arbitration de

4

The Agreements of the following Plaintiffs contain this section:

Shivkov, Miller, Linder, Bikhazi, Welling, Bullard, Frank, and McHale,

as well as their corresponding entities. The Agreements of Plaintiffs

Butler, Wilke, Pereira, and Tiffany do not contain this section.

SHIVKOV V. ARTEX RISK SOLUTIONS 11

novo.” Casa del Caffe Vergnano S.P.A. v. ItalFlavors, LLC,

816 F.3d 1208, 1211 (9th Cir. 2016). We review factual

findings for clear error, and the interpretation and meaning

of contract provisions de novo. Nguyen v. Barnes & Noble

Inc., 763 F.3d 1171, 1175 (9th Cir. 2014).

ANALYSIS

Subject to certain exceptions not at issue here, the

Federal Arbitration Act (FAA), 9 U.S.C. § 1 et seq., governs

arbitration agreements in contracts involving interstate

commerce. “The FAA reflects both a ‘liberal federal policy

favoring arbitration’ . . . and the ‘fundamental principle that

arbitration is a matter of contract,’. . . .” Kramer v. Toyota

Motor Corp., 705 F.3d 1122, 1126 (9th Cir. 2013) (quoting

AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339

(2011)). “The basic role for courts under the FAA is to

determine ‘(1) whether a valid agreement to arbitrate exists

and, if it does, (2) whether the agreement encompasses the

dispute at issue.’” Kilgore v. KeyBank, Nat’l Ass’n, 718 F.3d

1052, 1058 (9th Cir. 2013) (en banc) (quoting Chiron Corp.

v. Ortho Diagnostic Sys., Inc., 207 F.3d 1126, 1130 (9th Cir.

2000)). State law governs the validity, revocability, and

enforceability of a contract. Id. Federal substantive law

governs the scope of an arbitration agreement. Kramer,

705 F.3d at 1126.

I. The Arbitration Clause is Enforceable

We turn first to the enforceability of the Clause.

Pursuant to the FAA, “[a] written provision in any . . .

contract evidencing a transaction involving commerce to

settle by arbitration a controversy thereafter arising out of

such contract . . . shall be valid, irrevocable, and enforceable,

save upon such grounds as exist at law or in equity for the

revocation of any contract.” 9 U.S.C. § 2. The savings

12 SHIVKOV V. ARTEX RISK SOLUTIONS

clause of this provision permits a party to challenge an

arbitration agreement pursuant to a generally applicable state

law contract defense, such as fraud, duress, or

unconscionability. Doctor’s Assocs., Inc. v. Casarotto,

517 U.S. 681, 686–87 (1996); Kilgore, 718 F.3d at 1058.

“As arbitration is favored, those parties challenging the

enforceability of an arbitration agreement bear the burden of

proving that the provision is unenforceable.” Mortensen v.

Bresnan Commc’ns, LLC, 722 F.3d 1151, 1157 (9th Cir.

2013). Plaintiffs challenge the enforceability of the

Arbitration Clause on two grounds. First, for all

Agreements, Plaintiffs argue that Artex and Tribeca

breached a state law fiduciary duty concerning arbitration

clauses. Second, for only some Agreements, Plaintiffs argue

that the Clause did not survive termination of the

Agreements. We address each challenge in turn.

A. The Breach of Fiduciary Duty Challenge

Plaintiffs aver that Artex and Tribeca had a fiduciary

duty to point out and explain the Arbitration Clause, which

they failed to do. Thus, Plaintiffs claim, Artex and Tribeca

effectively suppressed its existence in the less than ten-page

Agreements that Plaintiffs received and signed, and thereby

committed the legal equivalent of fraud. 5 Fraud is a basis to

revoke a contract under Arizona law. U.S. Insulation, Inc. v.

5

Plaintiffs made a similar argument in challenging the Clause as

procedurally unconscionable. The district court rejected that argument,

finding that that the record demonstrates that “Plaintiffs are sophisticated

people and businesses capable of negotiating this type of commercial

relationship.” The court further explained that although Plaintiffs argued

that Artex and Tribeca rushed them into signing the Agreements, only

one Plaintiff identified a time frame for signing an Agreement, which

spanned “a few weeks.” Plaintiffs do not challenge in this appeal the

court’s determination that the Clause is not unconscionable.

SHIVKOV V. ARTEX RISK SOLUTIONS 13

Hilro Constr. Co., Inc., 705 P.2d 490, 493–94 (Ariz. Ct.

App. 1985). However, to show fraud on the ground raised

here, Plaintiffs must show that Artex and Tribeca owed the

fiduciary duty that Plaintiffs claim exists under Arizona law.

We will assume arguendo that a fiduciary relationship arose

between Plaintiffs and Artex at some point in Defendants’

provision of captive insurance services. 6 Even assuming so,

Plaintiffs have not shown that, under Arizona law, it would

encompass a duty to point out and fully explain an arbitration

clause.

Plaintiffs direct us to a federal district court decision

interpreting Arizona law. See Katt v. Riepe, No. CV-14-

08042-PCT-DGC, 2014 WL 3720515 (D. Ariz. July 25,

2014). However, “we must adhere to state court decisions—

not federal court decisions—as the authoritative

interpretation of state law.” Daniel v. Ford Motor Co.,

806 F.3d 1217, 1223 (9th Cir. 2015). Neither did the

underlying Arizona state court decision on which Katt relied

hint at the existence of a duty that would require a

contracting party to point out and fully explain an arbitration

clause. See Leigh v. Loyd, 244 P.2d 356 (Ariz. 1952); Lerner

v. DMB Realty, LLC, 322 P.3d 909 (Ariz. Ct. App. 2014).

Although these decisions articulated a fiduciary duty to

disclose all material facts, that duty arose in the context of

the fiduciary relationship between a real estate broker and

the broker’s principal. See Leigh, 244 P.2d at 358 (“It is well

settled that a confidential relation exists between a real estate

agent and his principal,” which “impose[s] a duty on [the

agent] to disclose the true facts.”); Lerner, 322 P.3d at 919

(“A [real estate] broker owes a fiduciary duty to disclose

6

Because we assume this relationship, it is unnecessary to address

Plaintiffs’ request for additional discovery about whether a fiduciary

relationship existed.

14 SHIVKOV V. ARTEX RISK SOLUTIONS

material facts to its client.”). No such relationship existed

here.

The case before us is like one that the Arizona Court of

Appeals has already considered. In Dueñas v. Life Care

Centers of America, Inc., 336 P.3d 763 (Ariz. Ct. App.

2014), the plaintiff challenged the enforceability of an

arbitration agreement by arguing that an asserted fiduciary’s

failure to obtain the plaintiff’s signature for the agreement

rendered the agreement unenforceable. Id. at 771. The court

rejected that argument because the plaintiff had identified no

authority establishing that the duties involved in a fiduciary

relationship extend to “the purely commercial aspects of

their relationship.” Id. Like the plaintiff there, Plaintiffs fail

to identify any Arizona authority that would subject Artex

and Tribeca to a fiduciary duty in connection with an

arbitration clause. Thus, Plaintiffs have failed to show that

the Clause is unenforceable on this ground.

B. The Arbitration Clause Survival Challenge

Plaintiffs next argue that the Arbitration Clause in only

some of their Agreements is unenforceable because it did not

survive termination of the Agreements. 7 Whether a party

has agreed to arbitrate disputes following contract

termination depends upon whether the arbitration

obligations created under that contract remain enforceable.

See Biller v. S-H OpCo Greenwich Bay Manor, LLC, 961

F.3d 502, 513–14 & n.9 (1st Cir. 2020). We first address the

7

Plaintiffs raise this argument only for Plaintiffs Shivkov, Miller,

Linder, Bikhazi, Welling, Bullard, Frank, and McHale, as well as their

corresponding entities. Thus, this argument does not apply to Plaintiffs

Butler, Wilke, Pereira, and Tiffany.

SHIVKOV V. ARTEX RISK SOLUTIONS 15

framework applicable to post-termination arbitration and

then apply it here.

1. The Applicable Framework

Although the Supreme Court has not addressed the issue

of post-termination arbitration of disputes in the FAA

context, the Court has addressed this issue in the collective

bargaining context. In Litton Financial Printing Division v.

NLRB, the Court recognized a “presumption in favor of

postexpiration arbitration of matters unless ‘negated

expressly or by clear implication’ [for] matters and disputes

arising out of the relation governed by contract.” 501 U.S.

190, 204 (1991) (quoting Nolde Bros., Inc. v. Local No. 358,

Bakery & Confectionary Workers Union, AFL-CIO,

430 U.S. 243, 255 (1977)). The Court explained that “[w]e

presume as a matter of contract interpretation that the parties

did not intend a pivotal dispute resolution provision to

terminate for all purposes upon the expiration of the

agreement.” Id. at 208. For the presumption to apply, the

parties’ dispute must have “its real source in the contract.”

Id. at 205. This occurs “only where [the dispute] involves

facts and occurrences that arose before expiration, where an

action taken after expiration infringes a right that accrued or

vested under the agreement, or where, under normal

principles of contract interpretation, the disputed contractual

right survives expiration of the remainder of the agreement.”

Id. at 206 (emphasis added).

Although we have not addressed Litton’s application to

the FAA context, five sister circuits have. See Biller,

961 F.3d at 513; Breda v. Cellco P’ship, 934 F.3d 1, 7 (1st

Cir. 2019); Huffman v. Hilltop Cos., LLC, 747 F.3d 391,

395–96 (6th Cir. 2014); Wolff v. Westwood Mgmt., LLC,

558 F.3d 517, 520–21 (D.C. Cir. 2009); Koch v.

Compucredit Corp., 543 F.3d 460, 465–66 (8th Cir. 2008);

16 SHIVKOV V. ARTEX RISK SOLUTIONS

CPR (USA) Inc. v. Spray, 187 F.3d 245, 254–56 (2d Cir.

1999), abrogated on other grounds as explained in

Accenture LLP v. Spreng, 647 F.3d 72, 76 (2d Cir. 2011).

We are persuaded that the presumption also applies here. As

the Sixth Circuit has explained, “the need for an arbitration

provision to have post-expiration effect is intuitive, because

if ‘the duty to arbitrate automatically terminated upon

expiration of the contract, a party could avoid his contractual

duty to arbitrate by simply waiting until the day after the

contract expired to bring an action regarding a dispute that

arose while the contract was in effect.’” Huffman, 747 F.3d

at 395 (citation omitted). Thus, we also apply the Litton

framework here.

2. The Application of the Litton Presumption

Here

We do not doubt that the dispute here has “its real source

in the contract,” Litton, 501 U.S. at 205, because Plaintiffs

raised no argument on this issue in their opening brief and

thus waived the issue. Smith v. Marsh, 194 F.3d 1045, 1052

(9th Cir. 1999) (“[O]n appeal, arguments not raised by a

party in its opening brief are deemed waived.”). Plaintiffs

argue, however, that the parties expressly negated the

presumption, or clearly implied that their arbitration

obligations under the Agreements at issue would not survive

termination. Plaintiffs point to the following text in the

“Termination and Withdrawal” section:

The terms of this section shall survive the

termination of this Agreement and/or the

dissolution or other effective termination of

the business of [Artex or Tribeca] or the

insurance company.

SHIVKOV V. ARTEX RISK SOLUTIONS 17

Invoking the doctrine of expressio unius est exclusio

alterius, Plaintiffs contend that the survival clause contains

an exclusive list of the provisions that survive termination

which excludes the Arbitration Clause and thus expressly

negates the presumption or clearly implies that the parties

did not intend for their arbitration obligations to survive

termination. See Herman Chanen Constr. Co. v. Guy Apple

Masonry Contractors Inc., 453 P.2d 541, 543 (Ariz. Ct. App.

1969) (“[T]he expression in a contract of one or more things

of a class, implies the exclusion of all things not

expressed. . . .”).

The Sixth Circuit has already addressed the impact of a

survival clause on post-termination arbitration obligations.

See Huffman, 747 F.3d at 394–98. In Huffman, the Sixth

Circuit determined that the freestanding survival clause

there—which included half the agreement’s provisions but

not the arbitration clause—was insufficient to overcome the

presumption in favor of post-termination arbitration. Id.

Acknowledging that the expressio unius doctrine

“present[ed] a trick[y] question,” the Sixth Circuit

determined that “considering the contract as a whole—the

survival clause and its relationship to the other clauses in the

agreement—is the correct way to determine whether the

parties unambiguously intended for the arbitration clause to

expire with the contract.” Id. at 397 (emphasis added). The

Sixth Circuit adopted this mode of analysis due to “the

strong federal policy in favor of arbitration,” id. at 394,

pursuant to which a court “resolv[es] any doubts as to the

parties’ intentions in favor of arbitration,” id. at 395

(quoting Nestle Waters N. Am., Inc. v. Bollman, 505 F.3d

498, 503 (6th Cir. 2007)). The Sixth Circuit also noted that

the presumption of arbitrability should not be denied for

“broadly-worded arbitration clauses” unless it may be said

with positive assurance that the arbitration clause is not

18 SHIVKOV V. ARTEX RISK SOLUTIONS

susceptible of an interpretation that covers the asserted

dispute. Id.

We are persuaded that looking to the Agreements as a

whole is the proper mode of analysis here. The FAA

“establishes ‘a liberal federal policy favoring arbitration

agreements.’” Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612,

1621 (2018) (quoting Moses H. Cone Mem’l Hosp. v.

Mercury Constr. Corp., 460 U. S. 1, 24 (1983)); see also

Kramer, 705 F.3d at 1126 (recognizing strong federal policy

in favor of arbitration). Although Plaintiffs contend that the

Arbitration Clause is not as broadly worded as the clause in

Huffman, we reject that argument in Part II and thus the

scope of the Clause also lends support to looking to the

contract as a whole. Finally, Arizona law also looks to the

contract as a whole to ascertain the parties’ intent. Elm Ret.

Ctr., LP v. Callaway, 246 P.3d 938, 941–42 (Ariz. Ct. App.

2010) (“To determine the parties’ intent, we ‘look to the

plain meaning of the words as viewed in the context of the

contract as a whole.’” (quoting United Cal. Bank v.

Prudential Ins. Co., 681 P.2d 390, 411 (Ariz. Ct. App.

1983))).

Looking to the Agreements as a whole, the survival

clause is insufficient to expressly negate the presumption in

favor of post-termination arbitration or clearly imply that the

parties intended for their arbitration obligations to terminate

with the Agreements. The Agreements lack an exhaustive

survival clause. Instead, the clause here appears in and

concerns only the insular terms established by the

“Termination and Withdrawal” section. We doubt that the

parties intended for an insular survival clause tucked into a

section establishing unique obligations and duties upon the

termination of the Agreement to comprehensively identify

SHIVKOV V. ARTEX RISK SOLUTIONS 19

the Agreement terms that would survive termination. 8 That

doubt grows here because, as in Huffman, the Agreements

contain severability and integration clauses outside the

section with the survival clause. 747 F.3d at 397. “[I]t is

illogical to conclude that upon expiration of the contract, the

parties no longer intended” for these provisions to apply.

See id.

Other provisions of the Agreements also suggest

ambiguity about the survival clause on which Plaintiffs rely.

The Agreements contain sections that disclaim liability for

any underwriting losses and impose general limitations on

liability, whether direct or indirect, arising out of, in

connection with, or related in any way to an Agreement or

services provided pursuant to it. The latter provision

expressly precludes certain types of damages that may be

recovered, including, in relevant part, punitive damages,

taxes and interest due to any taxing authority or government

agency, penalties payable to any taxing authority or

government agency, and attorneys’ fees. These are

limitations that the parties are unlikely to have intended to

terminate with the Agreements, particularly given the broad

scope of the limitations on liability and the fact that the

limitations plainly concern events that are likely to occur

post-termination.

Considering the Agreements as a whole, we cannot find

that the parties expressly negated the presumption in favor

of post-termination arbitration, or clearly implied that their

8

Although Plaintiffs argue that reading the contract as a whole

renders the survival clause mere surplusage, that argument circularly

justifies not looking to the entire contract by presupposing that the clause

has the meaning Plaintiffs ascribe it. The point of the analysis here is to

ascertain whether the clause plainly bears that meaning or not.

20 SHIVKOV V. ARTEX RISK SOLUTIONS

arbitration obligations would not survive termination. We

might have arrived at a different conclusion if the survival

clause stated that only the terms of that section and no other

terms in the Agreement would survive termination, if the

Agreement included a comprehensive survival clause, or

even if the Arbitration Clause explicitly stated that it does

not survive termination. Of course, the Agreements contain

no such language. Because “we cannot say with certainty

that the parties did not intend for the arbitration clause to

survive expiration of the contract,” the parties’ arbitration

obligations remain intact. See id. at 398.

II. The Arbitration Clause Encompasses Plaintiffs’

Claims

We turn next to whether the Arbitration Clause

encompasses all of Plaintiffs’ claims here. “[A] party can be

forced to arbitrate only those issues it specifically has agreed

to submit to arbitration.” First Options of Chi., Inc. v.

Kaplan, 514 U.S. 938, 945 (1995). “When deciding whether

the parties agreed to arbitrate a certain matter . . . courts

generally . . . should apply ordinary state-law principles that

govern the formation of contracts.” Id. at 944. Under

Arizona law, a contract is ambiguous when it “can be

reasonably construed in more than one manner.” Leo

Eisenberg & Co., Inc. v. Payson, 785 P.2d 49, 52 (Ariz.

1989). “[A]s with any other contract, the parties’ intentions

control, but those intentions are generously construed as to

issues of arbitrability.” Mitsubishi Motors Corp. v. Soler

Chrysler-Plymouth, Inc., 473 U.S. 614, 626 (1985). In the

face of any ambiguity, “under the federal presumption in

favor of arbitration, an arbitrator would have jurisdiction to

arbitrate claims.” Comedy Club, Inc. v. Improv W. Assocs.,

553 F.3d 1277, 1285 (9th Cir. 2009).

SHIVKOV V. ARTEX RISK SOLUTIONS 21

The Clause provides in the first instance (with emphasis

added) that: “You and we agree that in the event of any

dispute that cannot be resolved between the parties, that we

will agree to seek to resolve such disputes through mediation

. . . and if that fails, that all disputes will be subject to

binding arbitration.” Defendants understandably rely on this

sweeping language to conclude that the Clause includes all

Plaintiffs’ claims.

Plaintiffs, however, draw our attention to other language

in the Clause which they argue narrows its scope. Plaintiffs

focus on the Clause’s third sentence: “[t]o reduce time and

expenses, we each waive our right to litigate against one

another regarding the services provided and obligations

pursuant to this Agreement, and instead you and we have

chosen binding arbitration.” It is a “standard rule of contract

interpretation” that “specific terms control over general

ones.” United States ex rel. Welch v. My Left Foot

Children’s Therapy, LLC, 871 F.3d 791, 797 (9th Cir. 2017)

(quoting S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885,

891 (9th Cir. 2003)); see also Elm Ret. Ctr., LP, 246 P.3d

at 942 (“[B]ecause specific contract provisions express the

parties’ intent more precisely than general provisions,

specific provisions qualify the meaning of general

provisions.”). 9 Treating the Clause’s third sentence as a

more specific term concerning scope, we discern that the

parties intended to arbitrate “any” and “all disputes”

9

We will assume that Plaintiffs meant to rely on this standard and

directly applicable contract rule because Plaintiffs’ reliance on Mesquite

Lake Assocs. v. Lurgi Corp., 754 F. Supp. 161 (N.D. Cal. 1991), is

unpersuasive. Unlike in Mesquite, the Clause does not limit its scope

through a provision that “any controversy or dispute between the Parties

concerning this Agreement and specifically subject to resolution

pursuant to this Article shall be subject to arbitration . . . .” Id. at 162

(emphasis added).

22 SHIVKOV V. ARTEX RISK SOLUTIONS

“regarding the services provided and obligations pursuant to

this Agreement.” So understood, the Clause still remains

broad. See, e.g., Simula, Inc. v. Autoliv, Inc., 175 F.3d 716,

720 (9th Cir. 1999) (concluding that a clause encompassing

“[a]ll disputes arising in connection with this Agreement”

should be construed and applied liberally); Republic of

Nicaragua v. Standard Fruit Co., 937 F.2d 469, 479 (9th Cir.

1991) (similar). The district court methodically explained

why all of the claims here are subject to arbitration on this

reading.

Plaintiffs nonetheless tell us that the district court erred

in sending their various non-breach of contract claims to

arbitration by pointing to a disclaimer in the Agreements,

pursuant to which Artex and Tribeca explained that they

“do[] not provide any legal, tax, or accounting advice.”

Plaintiffs aver that “tax or legal advice” was not among the

services and obligations under the Agreements, and thus

their claims concerning such advice are excluded from

arbitration. This argument hinges entirely on the meaning of

“tax or legal advice.” Curiously, Plaintiffs do not offer any

interpretation of those terms. Repeating a bare assertion that

this phrase excludes their non-contract claims without

supporting argument does not make it so. 10 See Navajo

Nation v. U.S. Forest Serv., 535 F.3d 1058, 1079 n.26 (9th

Cir. 2008) (en banc) (“It is well-established that a bare

assertion in an appellate brief, with no supporting argument,

is insufficient to preserve a claim on appeal.”). Because the

10

Although Plaintiffs rely on Khan v. BDO Seidman, LLP,

935 N.E.2d 1174 (Ill. App. Ct. 2010), that case says nothing about the

issue here, namely the meaning of the phrase “tax or legal advice” for

the Agreements at issue. Thus, apart from the fact that we are not bound

by that decision, Plaintiffs’ list of factual comparisons with that case

does nothing to overcome their failure to offer any meaning of these

terms in the Agreements here.

SHIVKOV V. ARTEX RISK SOLUTIONS 23

Agreements provide that Artex and Tribeca would prepare

federal tax returns and calculate estimated tax payments for

the captives, Plaintiffs’ argument, at best, points to

ambiguity that we must resolve in favor of arbitration. See

Comedy Club, 553 F.3d at 1286. Thus, we still conclude that

the Clause encompasses all Plaintiffs’ claims.

III. The Availability of Class Arbitration

Plaintiffs brought this suit as a putative class action

against Defendants involving “hundreds if not thousands” of

class members. The district court, however, ordered

individual arbitration. We must determine next (1) whether

the availability of class arbitration is a “gateway question”

that a court must presumptively decide and, if so, (2) whether

the parties nevertheless clearly and unmistakably delegated

the issue to the arbitrator, and (3) if not, whether the

Agreements permit class arbitration. We address each issue

in turn.

A. The Availability of Class Arbitration is a Gateway

Issue for a Court to Presumptively Decide

The Supreme Court has distinguished between two

categories of issues, each of which has a different

presumption as to whether a court or an arbitrator should

decide them. See Howsam v. Dean Witter Reynolds, Inc.,

537 U.S. 79, 83 (2002); Martin v. Yasuda, 829 F.3d 1118,

1122–23 (9th Cir. 2016). In the first category of issues are

“potentially dispositive gateway question[s] . . . of

arbitrability” that “contracting parties would likely have

expected a court to . . . decide[].” Howsam, 537 U.S. at 83

(internal quotation marks omitted). “This category includes

issues . . . such as ‘whether the parties are bound by a given

arbitration clause’ or whether ‘an arbitration clause in a

concededly binding contract applies to a particular type of

24 SHIVKOV V. ARTEX RISK SOLUTIONS

controversy.’” Martin, 829 F.3d at 1123 (quoting Howsam,

537 U.S. at 84). “These disputes are ‘for judicial

determination unless the parties clearly and unmistakably

provide otherwise.’” Id. (quoting Howsam, 537 U.S. at 83).

The second category encompasses “procedural” issues,

which are “presumptively not for the judge, but for an

arbitrator, to decide.” Id. (quoting Howsam, 537 U.S. at 84).

Examples of issues in this category are whether a party has

satisfied the arbitral forum’s statute of limitations for filing

a case, whether a party has satisfied certain requirements of

a procedural grievance, and “allegation[s] of waiver, delay,

or a like defense to arbitrability.” Howsam, 537 U.S. at 84–

85 (quoting Moses H. Cone, 460 U.S. at 25).

The Supreme Court has not had occasion to decide

whether the availability of class arbitration is a gateway

issue for a court to decide pursuant to this framework. See

Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407, 1417 n.4 (2019)

(not deciding the question because the parties agreed that the

issue was one for the court to decide); Oxford Health Plans

LLC v. Sutter, 569 U.S. 564, 569 n.2 (2013) (not deciding

the question because the parties agreed that the issue was one

for the arbitrator to decide); Stolt-Nielsen S.A. v.

AnimalFeeds Int’l Corp., 559 U.S. 662, 680 (2010) (not

deciding the question because the parties entered into a

supplemental agreement that expressly assigned the issue of

the availability of class arbitration to the arbitration panel).

Seven of our sister circuit courts, however, have

concluded that the availability of class arbitration is a

gateway question for a court to presumptively decide. 11 See

11

The Second and Tenth Circuits have assumed without deciding

that the availability of class arbitration is a gateway issue that is

presumptively for a court to decide. See Dish Network, L.L.C. v Ray,

SHIVKOV V. ARTEX RISK SOLUTIONS 25

20/20 Commc’ns, Inc. v. Crawford, 930 F.3d 715, 718–19

(5th Cir. 2019); Herrington v. Waterstone Mortg. Corp.,

907 F.3d 502, 506–07 (7th Cir. 2018); JPay, Inc. v. Kobel,

904 F.3d 923, 935–36 (11th Cir. 2018); Catamaran Corp. v.

Towncrest Pharmacy, 864 F.3d 966, 972 (8th Cir. 2017); Del

Webb Cmtys., Inc. v. Carlson, 817 F.3d 867, 873 (4th Cir.

2016); Opalinski v. Robert Half Int’l Inc., 761 F.3d 326,

334–35 (3d Cir. 2014); Reed Elsevier, Inc. v. ex rel.

LexisNexis Div. v. Crockett, 734 F.3d 594, 598–99 (6th Cir.

2013). We have also concluded that the availability of class

arbitration is a gateway issue in an unpublished and

nonprecedential memorandum disposition. See Eshagh v.

Terminix Int’l Co., 588 F. App’x 703, 704 (9th Cir. 2014).

Faced with whether class arbitration is a gateway

question here, we see no reason to create an unnecessary

circuit split, or to depart from what we have already

suggested. We find persuasive the three reasons that the

Seventh Circuit has succinctly identified for why class

arbitration is a gateway issue. See Herrington, 907 F.3d

at 507–08. The first and second reasons assimilate the issue

of class arbitration into what we have already recognized are

gateway issues presumptively for a court to decide:

“(1) whether there is an agreement to arbitrate between the

parties; and (2) whether the agreement covers the dispute.”

Brennan v. Opus Bank, 796 F.3d 1125, 1130 (9th Cir. 2015)

(citing Howsam, 537 U.S. at 84). The third reason concerns

900 F.3d 1240, 1245 (10th Cir. 2018) (acknowledging the consensus

among “many circuits” but assuming the issue and concluding that the

parties clearly and unmistakably delegated the issue to an arbitrator);

Wells Fargo Advisors, L.L.C. v. Sappington, 884 F.3d 392, 395 (2d Cir.

2018) (same).

26 SHIVKOV V. ARTEX RISK SOLUTIONS

the Supreme Court’s treatment of class arbitration. We

briefly consider each of these reasons.

The Seventh Circuit has explained first that “[t]he

availability of class . . . arbitration involves a foundational

question of arbitrability: whether the potential parties to the

arbitration agreed to arbitrate.” Herrington, 907 F.3d at 507.

This is the familiar gateway question of whether there is an

agreement to arbitrate between the parties. See Brennan,

796 F.3d at 1130. Plaintiffs filed a putative class complaint,

seeking to represent “hundreds if not thousands of” possible

class members. The availability of class arbitration raises

the question whether any of those possible class members

have actually agreed to arbitration in the first place as well

as the question whether the Agreements show that Artex and

Tribeca agreed to arbitrate rather than litigate with those

members. Thus, answering this question “resolves the

foundational question of ‘with whom’ [Artex and Tribeca]

chose to arbitrate.” See Herrington, 907 F.3d at 508

(quoting Stolt-Nielsen, 559 U.S. at 683).

Relatedly, the Seventh Circuit has explained that

“whether a contract permits class . . . arbitration involves a

second . . . question of arbitrability: whether the agreement

to arbitrate covers a particular controversy.” Id. This is the

familiar gateway question of scope. See Brennan, 796 F.3d

at 1130. Notably, the Clause here provides that “[y]ou and

we agree that in the event of any dispute that cannot be

resolved between the parties,” “such disputes” will be

resolved by mediation and arbitration. The availability of

class arbitration raises the question whether Artex and

Tribeca agreed to arbitrate particular disputes not only with

the Plaintiffs, but also with possible class members.

Answering this question resolves the question of whether the

parties agreed to arbitrate particular disputes.

SHIVKOV V. ARTEX RISK SOLUTIONS 27

Third, and “most important[ly],” the Seventh Circuit has

explained that class arbitration belongs to the gateway

category because “the structural features of class arbitration

make it a ‘fundamental’ change from the norm of bilateral

arbitration.” Herrington, 907 F.3d at 509 (quoting Stolt-

Nielsen, 559 U.S. at 686). The Supreme Court has all but

endorsed this reason for treating class arbitration as a

gateway issue. According to the Court, class arbitration:

(1) “sacrifices the principal advantage of arbitration—its

informality—and makes the process slower, more costly,

and more likely to generate procedural morass than final

judgment,” Concepcion, 563 U.S. at 348, (2) “requires

procedural formality” because “[i]f procedures are too

informal, absent class members would not be bound by the

arbitration,” id. at 349, and (3) “greatly increases risks to

defendants,” id. at 350. In short, “class-action arbitration

changes the nature of arbitration to such a degree that it

cannot be presumed the parties consented to it by simply

agreeing to submit their disputes to an arbitrator.” Stolt-

Nielsen, 559 U.S. at 685. As seven circuits have recognized,

the Court’s discussion of class arbitration is a weighty thumb

on the scale in favor of treating class arbitration as a gateway

issue for a court to presumptively decide. See 20/20

Commc’ns, 930 F.3d at 719; Herrington, 907 F.3d at 509;

JPay, 904 F.3d at 933–34; Catamaran Corp., 864 F.3d

at 971–72; Del Webb Cmtys., 817 F.3d at 875–76; Opalinski,

761 F.3d at 333–34; Reed Elsevier, 734 F.3d at 598.

We are not persuaded by Plaintiffs’ arguments for why

we should not treat the availability of class arbitration as a

gateway issue for a court. Plaintiffs rely on a concurrence

that is concededly not the law of any circuit. See Dish

Network, L.L.C., 900 F.3d at 1252–57 (Tymkovich, C.J.,

concurring). That concurrence criticizes the third reason we

have identified as nothing more than “Supreme Court dicta

28 SHIVKOV V. ARTEX RISK SOLUTIONS

and good policy.” Id. at 1255. But when the Court speaks,

we should take notice. See Zal v. Steppe, 968 F.2d 924, 935

(9th Cir. 1992), as amended (July 31, 1992) (Noonan, J.,

concurring in the result in part and dissenting in part)

(“[D]icta of the Supreme Court have a weight that is greater

than ordinary judicial dicta as prophecy of what that Court

might hold. We should not blandly shrug them off because

they were not a holding.”). As we have explained, the

Supreme Court has repeatedly underscored why class

arbitration is different and thus should be treated differently.

See Stolt-Nielsen, 559 U.S. at 685; Concepcion, 563 U.S.

at 348–50. Naturally, seven circuits have taken notice, and

so do we.

Plaintiffs also argue that class arbitration is a procedural

issue for an arbitrator to decide in light of the Court’s passing

references to class actions as “procedures” in Epic Systems,

138 S. Ct. at 1624–25, and the fact that the Federal Rules of

Civil Procedure treat class actions as procedural. We are not

persuaded. As the Seventh Circuit has observed, Epic

Systems did not decide whether class arbitration is a gateway

question, see Herrington, 907 F.3d at 506, and thus that

decision is not of any help. More fundamentally, that a class

action is a “classically” procedural mechanism in federal

court under Federal Rule of Civil Procedure 23, Dish

Network, L.L.C., 900 F.3d at 1254 (Tymkovich, C.J.,

concurring), is of no moment here. In the arbitration context,

we are concerned with whether the parties to the requested

arbitration have agreed to that particular dispute resolution,

and, if so, what the scope of that agreement is. See Stolt-

Nielsen, 559 U.S. at 687 (underscoring “the consensual basis

of arbitration”). Therefore, the relevant metric is not the

labeling of a particular mechanism in federal court as

“procedural”, but rather the categories of gateway issues in

reviewing an arbitration agreement that the Court has

SHIVKOV V. ARTEX RISK SOLUTIONS 29

instructed determine whether an issue is presumptively for a

court or an arbitrator to decide absent further agreement by

the parties. See Rent-A-Center, West, Inc. v. Jackson,

561 U.S. 63, 69 (2010) (describing gateway questions for a

court as issues “such as whether the parties have agreed to

arbitrate or whether their agreement covers a particular

controversy” (emphasis added)).

We have already explained how the question of the

availability of class arbitration interlocks with gateway

issues that a court must presumptively decide. Plaintiffs

offer no persuasive reason for why we should nevertheless

treat class arbitration as akin to the exemplary questions for

an arbitrator to presumptively decide, nor do we see one that

would warrant a circuit split. See Howsam, 537 U.S. at 85

(identifying as “procedural” questions presumptively for an

arbitrator as “whether prerequisites such as time limits,

notice, laches, estoppel, and other conditions precedent to an

obligation to arbitrate have been met”); see also Global

Linguist Solutions, LLC v. Abdelmeged, 913 F.3d 921, 923

(9th Cir. 2019) (reaching result partly to avoid an

unnecessary circuit split). Thus, we conclude that class

arbitration is a gateway issue for a court to presumptively

decide.

B. The Parties Did Not Clearly and Unmistakably

Delegate the Issue of Class Arbitration to the

Arbitrator

Having resolved that class arbitration is a gateway issue,

Plaintiffs tell us that the Clause evidences a clear and

unmistakable intent to delegate the issue to the arbitrator as

follows: (1) the Clause refers to the AAA (i.e., the American

Arbitration Association), (2) which renders the AAA Rules

applicable, (3) which in turn encompass the AAA’s

Supplementary Rules, (4) which include Supplementary

30 SHIVKOV V. ARTEX RISK SOLUTIONS

Rule 3’s instruction that “the arbitrator shall determine as a

threshold matter . . . whether the applicable arbitration

clause permits the arbitration to proceed on behalf of or

against a class,” and (5) thus the parties delegated the issue

of class arbitration to the arbitrator.

Plaintiffs’ argument touches on a circuit split on whether

incorporation of the AAA Rules is sufficient evidence that

the parties clearly and unmistakably delegated the issue of

class arbitration to the arbitrator. Compare Catamaran

Corp., 864 F.3d at 973 (concluding that an arbitration

agreement’s incorporation of the AAA Rules without

specific reference to class arbitration is insufficient);

Chesapeake Appalachia, LLC v. Scout Petroleum, LLC,

809 F.3d 746, 761 (3d Cir. 2016) (same), cert. denied, 137 S.

Ct. 40 (2016), Reed Elsevier, 734 F.3d at 599 (concluding

that a clause which incorporated the AAA Rules “does not

clearly and unmistakably assign to an arbitrator the question

whether the agreement permits classwide arbitration”), with

JPay, 904 F.3d at 936–42 (reasoning that incorporation of

the AAA Rules is sufficient and explaining disagreement

with Third, Sixth, and Eighth Circuits).

We need not take sides in this circuit split here because

Plaintiffs fail to clear a threshold hurdle. The crux of

Plaintiffs’ argument is our decision in Brennan v. Opus

Bank. The arbitration clause there provided that “any

controversy or claim arising out of this [Employment]

Agreement or [Brennan’s] employment with the Bank or the

termination thereof . . . shall be settled by binding arbitration

in accordance with the Rules of the American Arbitration

Association.” 796 F.3d at 1128 (alterations in original;

emphasis added). We concluded that, at least in a contract

between sophisticated parties, “incorporation of the AAA

Rules constitutes clear and unmistakable evidence that

SHIVKOV V. ARTEX RISK SOLUTIONS 31

contracting parties agreed to arbitrate arbitrability.” Id.

at 1130 (internal quotation marks omitted; emphasis added).

Thus, we sided with “‘[v]irtually every circuit to have

considered the issue.’” Id. (first alteration in original;

quoting Oracle Am., Inc. v. Myriad Grp. A.G., 724 F.3d

1069, 1074 (9th Cir. 2013)). Unlike the arbitration clause in

Brennan, the Clause does not incorporate the AAA Rules,

and thus Brennan does not apply.

Unable to identify a textual reference to the AAA Rules,

Plaintiffs nonetheless contend that the “obvious and

unavoidable implication of an agreement to arbitrate before

the AAA is an agreement to submit to the AAA’s arbitration

rules.” But we have never held that a mere reference to the

AAA shows clear and unmistakable intent to delegate a

gateway issue to an arbitrator, and Plaintiffs identify no

authority from any sister circuit holding as much. Even if

we thought the “obvious and unavoidable implication” of a

reference to the AAA is consent to the AAA Rules when a

clause refers only to the AAA, the Clause here does not do

so. The Clause provides first for mediation, second for

arbitration by an arbitrator selected by the parties, and, only

if the parties cannot agree on an arbitrator, arbitration before

the AAA. We cannot find clear and unmistakable evidence

that the parties intended to delegate the gateway issue of

class arbitration to the arbitrator by virtue of the AAA Rules

when arbitration before the AAA is but the final option in

the dispute procedure that the Clause outlines. 12

12

Plaintiffs contend that only the non-AAA portions of the Clause

are an unenforceable bare agreement to agree and thus the AAA is the

default option. The FAA and Arizona’s Revised Uniform Arbitration

Act, however, both permit enforcement of an agreement regarding the

method of naming or appointing an arbitrator. See 9 U.S.C. § 5; Ariz.

Rev. Stat. § 12-1503.

32 SHIVKOV V. ARTEX RISK SOLUTIONS

In light of the Clause here, Plaintiffs’ reliance on Belnap

v. Iasis Healthcare, 844 F.3d 1272 (10th Cir. 2017), is

misplaced. The arbitration clause there provided that “[t]he

arbitration shall be administered by JAMS and conducted in

accordance with its Streamlined Arbitration Rules and

Procedures (the “Rules”), except as provided otherwise

herein.” Id. at 1276. Rejecting the plaintiff’s argument that

the agreement left open the rules that would govern

arbitration because the parties could choose another dispute

resolution service, the Tenth Circuit explained that “[t]he

plain language of the Agreement establishes the JAMS Rules

as the default controlling rubric.” Id. at 1282. The Clause

here, however, neither refers to the AAA Rules, nor does it

establish those Rules as the “default controlling rubric.” See

id. Although the Clause provides for the possibility that

arbitration may occur before the AAA if the parties cannot

agree on an arbitrator, “such a possibility is not enough for

us to say that” the AAA Rules are the Clause’s “ordinary

controlling standard.” See id. Because Plaintiffs do not

claim that any other provision demonstrates a clear and

unmistakable intent to delegate the availability of class

arbitration to the arbitrator, we conclude that the availability

of class arbitration remains a gateway issue.

C. The Agreements Do Not Permit Class Arbitration

The final issue that we must decide on class arbitration

is straightforward. “Neither silence nor ambiguity provides

a sufficient basis for concluding that parties to an arbitration

agreement agreed to undermine the central benefits of

arbitration itself,” Lamps Plus, 139 S. Ct. at 1417, namely,

“the individualized form of arbitration envisioned by the

FAA,” id. at 1416. As the district court concluded, because

the Agreements are silent on class arbitration, they do not

SHIVKOV V. ARTEX RISK SOLUTIONS 33

permit it. Thus, the court properly compelled individual

arbitration pursuant to the Agreements.

IV. The Non-Signatory Defendants May Compel

Arbitration

The final issue for us is whether all Defendants may

compel arbitration of Plaintiffs’ claims. Several Defendants

are not signatories to the Agreements (the Non-Signatory

Defendants). Although only Jim Tehero and Karl Huish

signed the Agreements on Artex and Tribeca’s behalf,

Plaintiffs concede that these Defendants as well as Jeremy

Huish and Arthur J. Gallagher & Co. may compel

arbitration. Nevertheless, Plaintiffs argue that no other Non-

Signatory Defendant may compel arbitration. 13 We

disagree.

“[A] litigant who is not a party to an arbitration

agreement may invoke arbitration under the FAA if the

relevant state contract law allows the litigant to enforce the

agreement.” Kramer, 705 F.3d at 1128 (citing Arthur

Andersen LLP v. Carlisle, 556 U.S. 624, 632 (2009)).

Arizona law recognizes alternative estoppel, pursuant to

which a non-signatory may compel arbitration of a

signatory’s claims. Sun Valley Ranch 308 Ltd. P’ship ex rel.

Englewood Props., Inc. v. Robson, 294 P.3d 125, 134–35

(Ariz. Ct. App. 2012). A non-signatory may compel

arbitration when “each of a signatory’s claims against a

nonsignatory makes reference to or presumes the existence

of the written agreement,” such that “the signatory’s claims

13

The remaining Non-Signatory Defendants include TBS LLC d/b/a

PRS Insurance; Debbie Inman; Epsilon Actuarial Solutions, LLC; Julie

A. Ekdom; AmeRisk Consulting, LLC; Provincial Insurance, PCC;

Tribeca Strategic Accountants, LLC; and Tribeca Strategic Accountants,

PLC.

34 SHIVKOV V. ARTEX RISK SOLUTIONS

arise out of and relate directly to the written agreement.” Id.

at 135 (quoting CD Partners, LLC v. Grizzle, 424 F.3d 795,

798 (8th Cir. 2005)). 14 As the district court concluded, all

Non-Signatory Defendants may compel arbitration pursuant

to this standard. 15

Plaintiffs’ allegations about Defendants’ misconduct

regarding the captive insurance services presume and

“intimately rel[y]” on the existence of the Agreements. See

Kramer, 705 F.3d at 1132. We have already determined in

Part II that Plaintiffs’ claims are subject to arbitration even

if we construe the Clause as limited to the services and

obligations under the Agreements. It follows that Plaintiffs’

claims necessarily presume the existence of the Agreements.

Indeed, the entire complaint concerns Defendants’ captive

insurance services, which encompassed the formation,

oversight, operation, and management of captive insurance

companies for Plaintiffs pursuant to the Agreements. The

Agreements also provide that Artex and Tribeca would hire

third parties in connection with the services, thus

underscoring that the claims presume the existence of the

Agreements even for the Non-Signatory Defendants. See

Sun Valley, 294 P.3d at 135 (finding that the nonsignatory

14

Alternative estoppel may also apply when “the relationship

between the signatory and nonsignatory defendants is sufficiently close

that only by permitting the nonsignatory to invoke arbitration may

evisceration of the underlying arbitration agreement between the

signatories be avoided.” Sun Valley, 294 P.3d at 134 (quoting CD

Partners, 424 F.3d at 798). Because Defendants do not invoke this

ground, we decline to address whether Plaintiffs would be estopped on

this basis.

15

It is unnecessary for us to resolve the parties’ dispute about the

standard of review for the district court’s decision. Whether we review

de novo or for an abuse of discretion, we affirm the district court.

SHIVKOV V. ARTEX RISK SOLUTIONS 35

“may nevertheless compel plaintiffs to arbitrate their claims

against him” because “the trier of fact will be required to

consider the [underlying agreements] in resolving plaintiffs’

claims, and [the non-signatory’s] conduct is intertwined with

that of other defendants who signed the [underlying

agreement].”).

We are not persuaded by Plaintiffs’ counterarguments.

Plaintiffs aver that they could bring all their claims against

the Non-Signatory Defendants regardless of whether the

Agreements existed, and thus alternative estoppel does not

apply. This argument proves nothing because it is not the

relevant test under Arizona law. See id.

Relying on Kramer, 705 F.3d at 1133, Plaintiffs argue

further that mere allegations of substantially interdependent

and concerted misconduct by signatories and non-

signatories, standing alone, are insufficient to permit non-

signatories to compel arbitration. But in Kramer we rejected

the non-signatory defendants’ invocation of equitable

estoppel based only on “sparse portions” of the pleadings

concerning interdependent conduct by the defendants. Id. In

contrast, the FAC makes pervasive allegations of concerted

conduct by the Defendants. We have also explained why

Plaintiffs’ claims presume the existence of the Agreements

even for the Non-Signatory Defendants. Thus, we conclude

that all Non-Signatory Defendants can compel arbitration.

CONCLUSION

For the foregoing reasons, the district court correctly

granted Defendants’ motion to compel and ordered

arbitration of Plaintiffs’ claims on an individual basis.

AFFIRMED.