Opposition Brief — Seacoast Motors of Salisbury, Inc. v. DaimlerChrysler Motors Corp.

Supreme Court, U.S.

? " PILED

ey :

No. 01-1279 TAPR 5 2002

OFFICE OF THE CLERK

In The

Supreme Court of the United States

SEACOAST MOTORS OF SALISBURY, INC.,

Petitioner,

DAIMLERCHRYSLER MOTORS CORPORATION,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The First Circuit

+

RESPONDENT'S BRIEF IN OPPOSITION

+

Grorce W. MyKkuLak

Counsel of Record

SusAN HANMER FARINA

Hate AND Dorr LLP

60 State Street

Boston, MA 02109

(617) 526-6000

Counsel for Respondent

COCKLE LAW BRIEF PRINTING CO,, (800) 225-6964

OR CALL COLLECT (402) 342-2831

Pe ¢

i

QUESTION PRESENTED FOR REVIEW

Whether this Honorable Court should review the

judgment of the Court of Appeals for the First Circuit

affirming the dismissal of Petitioner’s challenge to a

domestic arbitration award in favor of Respondent,

where the Court of Appeals’ express rejection of the so-

called American Safety doctrine does not conflict with a

decision of any other United States Court of Appeals that

has considered American Safety and its progeny following,

as described by the Court of Appeals for the Ninth Cir-

cuit, this Court’s “meticulous step-by-step disembowel-

ment” of the doctrine in its intervening decisions, and

where sufficient independent grounds otherwise exist to

affirm regardless of the current validity of American

Safety.

li

STATEMENT PURSUANT TO RULE 29.6

DaimlerChrysler Motors Corporation, now known as

DaimlerChrysler Motors Company, LLC, is wholly owned

by DaimlerChrysler North America Holding Corporation, |

which in turn is a wholly owned subsidiary of a publicly |

held parent company, DaimlerChrysler AG.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ............ i

STATEMENT PURSUANT TO RULE 29.6........... ii

pS Fo, a ae iii

TABLE OF AUTHORITIES ..................000005. iv

FEDERAL STATUTES INVOLVED.................. 1

STATEMENT OF THE CASE...............-.00005. 3

REASONS FOR DENYING THE PETITION......... 5

I. SEACOAST HAS FAILED TO ESTABLISH

THAT THE RULING BY THE COURT OF

APPEALS FOR THE FIRST CIRCUIT CON-

FLICTS WITH A DECISION OF ANY OTHER

UNITED STATES COURT OF APPEALS THAT

HAS CONSIDERED AMERICAN SAFETY

AND ITS PROGENY IN LIGHT OF THIS

COURT’S INTERVENING DECISIONS ....... 5

I]. SUFFICIENT INDEPENDENT GROUNDS

EXIST TO AFFIRM THE DISMISSAL OF SEA-

COAST’S COMPLAINT REGARDLESS OF

THE CURRENT VALIDITY OF THE AMERI-

CAN SAFETY DOCTRINE ..........0scccse. 11

ON nha op hbk badd dled sweden Wed sewuu rede 13

iv

TABLE OF AUTHORITIES

Page

CasEs

American Safety Equip. Corp. v. J.P. Maguire & Co.,

OO Fae SEE Cae GU, FIG) aos ccs ccs cies passim

Buffler v. Elec. Computer Programming Inst., Inc.,

SOG TA GPG COU GM. BGT) bin ong ainecccnscccccass 10

Cobb v. Lewis, 488 F.2d 41 (5th Cir. 1974).......... 7,

Coor’s Brewing Co. v. Molson Breweries, 51 F.3d 1511

co Be ere errr Ce PET er eT re rer TT rer 10

Gemco Latinoamerica, Inc. v. Seiko Time Corp., 671 F.

Supp. 972 (S.D.N.Y. 1987), adhered to, in part, on

other grounds; dismissed, in part, on other grounds,

on reconsideration, 685 F. Supp. 400 (S.D.N.Y.

SO kas £660 0 004ad cad wine sacaccanwespebenevecnqeans

Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20,

111 S. Ct. 1647, 114 L. Ed. 2d 26 (1991).......... 6,

Gilmer v. Interstate/Johnson Lane Corp., 895 F.2d 195

(4th Cir. 1990), aff'd, 500 U.S. 20, 111 S. Ct. 1647,

so ge Se F St rrr eter eT eT eT err eT eee

Hays & Co. v. Merrill Lynch, Pierce, Fenner & Smith,

inc., 66S F.2d 1149 Ged Cie, 1908). 2.26. ccvccccccees

Helfenbein v. International Indus., Inc., 438 F.2d 1068

(8th Cir.), cert. denied, 404 U.S. 872, 92 S. Ct. 63,

DD Us GR Be BE GRP F Divide cvivicie ds oxasacncacds 7, 10

Hough v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,

757 F. Supp. 283 (S.D.N.Y.), aff'd without op., 946

Fs Se GOUe Sets BED 668k 6 4c we reaadnentesan cient 7

Hunt v. Up North Plastics, Inc., 980 F. Supp. 1046

(D. Minn, 1997) ......... cece cece eee eee e eee ee es

Vv

TABLE OF AUTHORITIES - Continued

Page

Kotam Elecs., Inc. v. JBL Consumer Prods., Inc., 93

F.3d 724 (11th Cir. 1996), cert. denied, 519 U.S.

1110, 117 S. Ct. 946, 136 L. Ed. 2d 835 (1997)...7, 11

Kowalski v. Chicago Tribune Co., 854 F.2d 168 (7th

rere en ee poltnes wR Sng ah oe 10

Lake Communications, Inc. v. ICC Corp., 738 F.2d

Rare Come Gee. Tees encase cere ee 7

Lee v. Ply*Gem Industries, Inc., 593 F.2d 1266 (D.C.

Cir.), cert. denied, 441 U.S. 967, 99 S. Ct. 2417, 60

kas EG Sie RP SRP cs 6 kas dec aecaneesser ee 10

Mayaja, Inc., S.A. v. Bodkin, 803 F.2d 157 (5th Cir.

1986), judgment vacated by Shearson Lehman Bros.,

Inc. v. Mayaja, Inc., 482 U.S. 923, 107 S. Ct. 3205

(19GT) ans ovens cnanas sc4donmn eb eens. aes Eeeeeeers 9

Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth,

Inc., 473 U.S. 614, 105 S. Ct. 3346, 87 L. Ed. 2d

444 (1985)...... + btnih Kane he AeA DA SAS AREER DE passim

N.Y.C. Discount Shoe Co., Inc. v. Coray Management,

Inc., 1987 U.S. Dist. LEXIS 3713 (E.D. Pa. May 7,

Ls POPE eT TE Teer eM Ey ep ero ers Mere te ee as 8

Nghiem v. NEC Elec., Inc., 25 F.3d 1437 (9th Cir.),

cert. denied, 513 U.S. 1044, 115 S. Ct. 638, 130 L.

Sk: Se SN EAD 5 nnd ncn awed dpesecsaaeen 6, 9, 10

Rodriguez de Quijas v. Shearson/American Express,

Inc., 490 U.S. 477, 109 S. Ct. 1917, 104 L. Ed. 2d

Pe CEONND i 54 Ranh seek besser eiednels es bed eden 6

vi

TABLE OF AUTHORITIES - Continued

Page

Sanjuan v. American Bd. Of Psychiatry and Neurol-

ogy, Inc., 40 F.3d 247 (7th Cir. 1994), cert. denied,

516 U.S. 1159, 116 S. Ct. 1044, 134 L. Ed. 2d 191

(1996) . cacccccccccccdsvsssssndpanesveaueasaseesetes 9

Seacoast Motors of Salisbury, Inc. v. Chrysler Corpo-

ration, 959 F. Supp. 52 (D. Mass. 1997)............. Q

Shearson/American Express, Inc. v. McMahon, 482

U.S. 220, 107 S. Ct. 2332, 96 L. Ed. 2d 185

(TSGF) oc vcccncvecccccctcesdsbedcessasuansl 6, 9, 10, 11

Smoky Greenhaw Cotton Co., Inc. v. Merrill Lynch,

Pierce, Fenner and Smith, Inc., 785 F.2d 1274 (5th

Cir. 1986) (per curiam, on petition for rehearing and

suggestion for rehearing en banc), cert. denied, 482

U.S. 928, 107 S. Ct. 1211, 96 L. Ed. 2d 698 (1987) ..... 9

Swensen’s Ice Cream Co. v. Corsair Corporation, 942

F.2G 13507 (Bl GAs, 20GB pec vcsccivecescsiscdseasss 10

Syscomm Int'l Corp. v. Synoptics Communications,

Inc., 856 F. Supp. 135 (E.D.N.Y. 1994) .............. 7

University Life Ins. Co. v. Unimarc Ltd., 699 F.2d 846

(7 CHE, TW pac. ccassccncsctsdancictsanésesbasnsans 7

Western Int'l Media Corp. v. Johnson, 754 F. Supp.

S71 Gad. FER. TPE). cccccccceccccesenesncsscecsees 11

FEDERAL STATUTES

9 USA. BaD GAGGED 000 000608kkedess sere 1, 4, 12

9 USA BIZ. GOURD occcceccccacvcccdcacecsoouwes passim

FEDERAL RULES

SS Ss eB err rer er 4

Vii

TABLE OF AUTHORITIES - Continued

Page

ee I

BRIEF IN OPPOSITION

DaimlerChrysler Motors Corporation (“Daimler-

Chrysler”) respectfully opposes the petition of Seacoast

Motors of Salisbury, Inc. (“Seacoast”) for a writ of cer-

tiorari to review the judgment of the Court of Appeals for

the First Circuit in this case. Seacoast has failed to present

any compelling reason that justifies this Court’s review.

See generally Rule 10 of the Supreme Court Rules.

+

FEDERAL STATUTES INVOLVED

In its Petition for Writ of Certiorari, Seacoast has

omitted any reference to Sections 10 and 12 of the Federal

Arbitration Act (“FAA”). 9 U.S.C. §§10, 12 (2002). Both of

these statutes are implicated by the petition, because

DaimlerChrysler advanced the threshold argument below

that Seacoast’s complaint was time-barred under Section

12 of the FAA. Pet., App. 5a-7a, 15a. Although the Court

of Appeals elected to assume arguendo the timeliness of

Seacoast’s challenge in order to reach the merits of the

appeal, DaimlerChrysler respectfully submits that Sea-

coast’s failure to comply with Section 12 of the FAA

constitutes sufficient independent grounds to affirm the

dismissal of Seacoast’s cause of action. Pet., App. 7a. The

full text of Sections 10 and 12 of the FAA is set forth

below.

§10. Same; vacation; grounds; rehearing.

(a) In any of the following cases the United

States court in and for the district wherein the

award was made may make an order vacating

the award upon the application of any party to

the arbitration

(1)

(2)

(3)

(4)

(5)

Where the award was procured by corrup-

tion, fraud, or undue means.

Where there was evident partiality or cor-

ruption in the arbitrators, or either of them.

Where the arbitrators were guilty of mis-

conduct in refusing to postpone the hear-

ing, upon sufficient cause shown, or in

refusing to hear evidence pertinent and

material to the controversy; or of any other

misbehavior by which the rights of any

party have been prejudiced.

Where the arbitrators exceeded their

powers, or so imperfectly executed them

that a mutual, final, and definite award

upon the subject matter submitted was not

made.

Where an award is vacated and the time

within which the agreement required the

award to be made has not expired the court

may, in its discretion, direct a rehearing by

the arbitrators.

(b) The United States district court for the dis-

trict wherein an award was made that was

issued pursuant to section 580 of title 5 may

make an order vacating the award upon the

application of a person, other than a party to the

arbitration, who is adversely affected or

aggrieved by the award, if the use of arbitration

or the award is clearly inconsistent with the

factors set forth in section 572 of title 5. ;

§12. Notice of motions to vacate or modify; service; -

stay of proceedings.

Notice of a motion to vacate, modify, or correct

an award must be served upon the adverse

party or his attorney within three months after

the award is filed or delivered. If the adverse

party is a resident of the district within which

the award was made, such service shall be made

upon the adverse party or his attorney as pre-

scribed by law for service of notice of motion in

an action in the same court. If the adverse party

shall be a nonresident then the notice of the

application shall be served by the marshal of

any district within which the adverse party may

be found in like manner as other process of the

court. For the purposes of the motion any judge

who might make an order to stay the proceed-

ings in an action brought in the same court may

make an order, to be served with the notice of

motion, staying the proceedings of the adverse

party to enforce the award.

ry

v

STATEMENT OF THE CASE

Seacoast’s statement of the case is incomplete .and

misleading. Pet., 2-3. By the express terms of its com-

plaint, Seacoast sought, pursuant to Section 10 of the

FAA, to vacate the domestic arbitration award entered in

favor of DaimlerChrysler on May 25, 2000. Pet., App. 17a.

Seacoast further requested that the District Court adjudi-

cate the merits of Seacoast’s state law claims against

DaimlerChrysler under Massachusetts General Laws,

Chapter 93B. (“G.L. c. 93B”).-Pet., App. 17a-22a. In

requesting that the award be vacated, Seacoast relied on

several grounds, including a conclusory contention that

its claims asserted under G.L. c. 93B were inappropriate

for enforcement by arbitration, because G.L. c. 93B is “an

anti-trust statute.” Pet., App. 19a-20a.

DaimlerChrysler moved for dismissal with prejudice

under Fed. R. Civ. P. 12(b)(6) on three independent

grounds: |

1. Seacoast’s complaint was time-barred under

Section 12 of the FAA, because Seacoast

failed to serve DaimlerChrysler with notice

of the complaint within three months after

the arbitration award was filed or Seacoast

received the award; y

2. Even assuming arguendo that Seacoast com-

plied with Section 12, Seacoast nevertheless

failed to allege a sufficient basis under Sec-

tion 10 of the FAA to vacate the award; and/

or,

3. The issue of arbitrability was previously

decided against Seacoast in Seacoast Motors

of Salisbury, Inc. v. Chrysler Corporation, 959

F. Supp. 52, 56 (D. Mass. 1997).

Pet., App. 14a-15a.

The District Court granted DaimlerChrysler’s motion

to dismiss without any written opinion. Pet., App. 13a. In

affirming, the Court of Appeals elected to determine the

merits of the appeal, in particular the viability of the so-

called American Safety doctrine as enunciated in American

Safety Equip. Corp. v. J.P. Maguire & Co., 391 F.2d 821, 825

(2nd Cir. 1968), rather than decide the threshold pro-

cedural and legal deficiencies of Seacoast’s cause of

action. Pet., App. 4a-11a. Although expressing doubt as to

——— ee eee a

the strength of either assumption, the Court of Appeals

assumed arguendo that Seacoast’s appeal was not time-

barred and that Seacoast’s claims under G.L. c. 93A were

antitrust in nature. Pet., App. 5a-9a. DaimlerChrysler

respectfully represents that Seacoast’s failure to comply

with Section 12 and its erroneous characterization of G.L.

c. 93B as an antitrust statute each constitutes sufficient

independent grounds for affirming irrespective of the

current validity of the American Safety doctrine in the

First Circuit. Seacoast’s prosecution of this petition

ignores both of these legal infirmities.

¢

REASONS FOR DENYING THE PETITION

The sole reason advanced by Seacoast for this peti-

tion is that “this case is the appropriate vehicle to resolve

the conflict in the circuits” with regard to the American

Safety doctrine. Pet., 4. DaimlerChrysler respectfully sub-

mits that both Seacoast’s underlying assumption of con-

flicting law and its presumption as to the appropriateness

of this case for a writ of certiorari are incorrect.

- I.

SEACOAST HAS FAILED TO ESTABLISH THAT THE

RULING BY THE COURT OF APPEALS FOR THE

FIRST CIRCUIT CONFLICTS WITH A DECISION OF

ANY OTHER UNITED STATES COURT OF APPEALS

THAT HAS CONSIDERED AMERICAN SAFETY AND

ITS PROGENY IN LIGHT OF THIS COURT’S INTER-

VENING DECISIONS.

Seacoast’s bald contention that the circuits are in

conflict over the arbitrability of domestic antitrust

disputes misstates the current state of the law. Initially,

the petition fails to identify any United States Court of

Appeals decision that conflicts with the conclusion of the

Court of Appeals in this case to “lay [the American Safety

doctrine] to rest”. Pet., App. 9a-10a. On the contrary, by

expressly incorporating by reference the opinion of the

Court of Appeals into the petition, Seacoast advances the

argument that the Court of Appeals’ rejection of American

Safety is fully consistent with those circuits that have

abandoned American Safety in its entirety and those cir-

cuits that have expressed doubt whether American Safety

remains good law. Pet. 5; Pet., App. 9a-10a.

Moreover, Seacoast entirely ignores what has been

described by the Court of Appeals for the Ninth Circuit

as this Court’s “meticulous step-by-step disembowelment

of the American Safety doctrine” in Mitsubishi Motors Cor-

poration v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 105

S. Ct. 3346, 87 L. Ed. 2d 444 (1985); Shearson/American

Express, Inc. v. McMahon, 482 U.S. 220, 107 S. Ct. 2332, 96

L. Ed. 2d 185 (1987); and Gilmer v. Interstate/Johnson Lane

Corp., 500 U.S. 20, 111 S. Ct. 1647, 114 L. Ed. 2d 26 (1991).

Nghiem v. NEC Elec., Inc., 25 F.3d 1437, 1441-1442 (9th

Cir.), cert. denied, 513 U.S. 1044, 115 S. Ct. 638, 130

L. Ed. 2d 544 (1994). Guided by these intervening deci-

sions, as well as Rodriguez de Quijas v. Shearson/American

Express, Inc., 490 U.S. 477, 109 S. Ct. 1917, 104 L. Ed. 2d

526 (1989), the Courts of Appeals for both the Ninth

Circuit, in Nghiem, and the Eleventh Circuit have explic-

itly rejected American Safety and its progeny! as

1 Prior to Mitsubishi, the Courts of Appeals for the Fifth,

Seventh, Eighth, and Ninth Circuits followed the lead of

controlling precedent and have held that domestic anti-

trust claims are arbitrable. Kotam Elecs., Inc. v. JBL Con-

sumer Prods., Inc., 93 F.3d 724, 725-728 (11th Cir. 1996),

cert. denied, 519 U.S. 1110, 117 S. Ct. 946, 136 L. Ed. 2d 835

(1997).

Indeed, the Court of Appeals for the Second Circuit

appears to have refuted its previous decision in American

Safety by affirming without opinion a district court’s

holding that in “the aftermath of [this Court’s] decisions

it seems unlikely that the principle of Mitsubishi will be

limited to international transactions . . . the reasoning of

Mitsubishi should apply with equal force to domestic

claims.” Hough v. Merrill Lynch, Pierce, Fenner & Smith, 757

F. Supp. 283, 286 (S.D.N.Y.), aff'd without op., 946 F.2d 883

(2d Cir. 1991). Lower court cases have assumed such a

refutation and have themselves rejected American Safety

as controlling precedent in the Second Circuit. See, e.g.,

Syscomm International Corporation v. Synoptics Communica-

tions, Inc., 856 F. Supp. 135, 139 (E.D.N.Y. 1994) (“While

American Safety has not been explictly overruled, this

Court believes . . . the Second Circuit would now hold

that the principle of Mitsubishi is not limited to antitrust

claims arising in international transactions, and that

domestic antitrust claims are arbitrable”); Gemco Latin-

oamerica, Inc. v. Seiko Time Corp., 671 F. Supp. 972, 980

American Safety in concluding that federal antitrust claims are

not arbitrable. Cobb v. Lewis, 488 F.2d 41, 47 (5th Cir. 1974);

University Life Ins. Co. v. Unimarc Ltd., 699 F.2d 846, 850-851 (7th

Cir. 1983); Helfenbein v. International Indus., Inc., 438 F.2d 1068,

1070 (8th Cir.), cert. denied, 404 U.S. 872, 92S. Ct. 63, 30 L. Ed. 2d

115 (1971); and Lake Communications, Inc. v. ICC Corp., 738 F.2d

1473, 1479 (9th Cir. 1984).

(S.D.N.Y. 1987), adhered to, in part, on other grounds, dis-

missed, in part, on other grounds, on reconsideration, 685

F. Supp. 400 (S.D.N.Y. 1988) (“none of the justifications

for the American Safety doctrine retain their vigor. . . our

Court of Appeals would now hold that domestic antitrust

claims are subject to arbitration.”).

In addition, the following six circuits, while not

explicitly deciding the issue, have expressed doubt as to

the current validity of the American Safety doctrine:

The Third Circuit in Hays & Co. v. Merrill Lynch,

Pierce, Fenner & Smith, Inc., 885 F.2d 1149, 1154 n.8 (3rd

Cir. 1989), in generally discussing the change in the legal

landscape with respect to the enforcement of arbitration

decisions, cited Mitsubishi for the general proposition that

antitrust claims, without distinction between domestic

and international transactions, are arbitrable. See also

N.Y.C. Discount Shoe Co., Inc. v. Coray Management, Inc.,

1987 U.S. Dist. LEXIS 3713, *12-13 (E.D. Pa. May 7, 1987)

(concluding as a matter of law that plaintiffs’ antitrust

claims are arbitrable).

The Fourth Circuit in Gilmer v. Interstate/Johnson Lane

Corp., 895 F.2d 195,°201 (4th Cir. 1990), later affirmed by

this Court in Gilmer v. Interstate/Johnson Lane Corp., 500

U.S. 20, 111 S. Ct. 1647, 114 L. Ed. 2d 26 (1991), in finding

“no reason to suppose that ADEA claims are inherently

ill-suited to arbitration,” stated that in ruling that “anti-

trust and RICO claims were not beyond the ken of arbi-

_ trators, the Supreme Court brushed aside objections that

such statutory claims were too complex for arbitrators to

handle ... ADEA disputes are, to put it mildly, no more

generically complex than claims presented under the

Sherman Act and RICO.” Furthermore, the Fourth Cir-

cuit, citing Mitsubishi and McMahon, stated “the Sherman

Act reflects an important federal policy in preventing

excessive concentration in relevant markets. Nonetheless,

arbitration of claims under [this statute] is clearly encour-

aged.” Gilmer, 895 F.2d at 202.

The Fifth Circuit in Mayaja, Inc., S.A. v. Bodkin, 803

F.2d 157, 162 n.6 (5th Cir. 1986), subsequently vacated by

this Court and remanded for further consideration in

light of McMahon in Shearson Lehman Bros., Inc. v. Mayaja,

Inc., 482 U.S. 923, 107 S. Ct. 3205, 96 L. Ed. 2d 692 (1987),

noted that although “the Supreme Court did not explic-

itly overrule American Safety in the domestic context,

Mitsubishi rejected so much of American Safety's reasoning

it is difficult to say what is left of the opinion to rely on.”

See also Smoky Greenhaw Cotton Co., Inc. v. Merrill Lynch,

Pierce, Fenner and Smith, Inc., 785 F.2d 1274, 1282 (5th Cir.

1986) (per curiam, on petition for rehearing and suggestion for

rehearing en banc) (stating, though not in an antitrust

context, that “although Mitsubishi arose in an interna-

tional antitrust dispute and its holding purports to be

limited to that context, we believe that its broad language

may carry significance for domestic disputes as well”),

cert. denied, 482 U.S. 928, 107 S. Ct. 1211, 96 L. Ed. 2d 698

(1987).

The Seventh Circuit in Sanjuan v. American Bd. Of

Psychiatry and Neurology, Inc., 40 F.3d 247, 250 (7th Cir.

1994), cert. denied, 516 U.S. 1159, 116 S. Ct. 1044, 134

L. Ed. 2d 191, (1996), citing Mitsubishi and Nghiem, rea-

soned that companies “may agree to arbitrate their anti-

trust disputes - certainly so for international

transactions, . . . and likely so for domestic transactions.”

10

See also Kowalski v. Chicago Tribune Co., 854 F.2d 168, 173

(7th Cir. 1988) (“it seems unlikely after McMahon that the

principle of Mitsubishi can be confined to international

transactions”).

The Eighth Circuit in Swensen’s Ice Cream Co. v. Cor-

sair Corporation, 942 F.2d 1307, 1310 (8th Cir. 1991), stated

in dicta that, in view of Mitsubishi and McMahon, its prior

holding in Helfenbein v. International Indus., Inc., supra,

that “domestic antitrust violations are not subject to arbi-

tration” may “no longer be a correct statement of the

law”. See also id. at 1311 (Beam, J., dissenting) (Mitsubishi,

McMahon and Gilmer dictate that antitrust claims are sub-

ject to arbitration); Hunt v. Up North Plastics, Inc., 980

F. Supp. 1046, 1050 (N.D. Minn. 1997) (antitrust claim in

case is arbitrable).

The Tenth Circuit in Coor’s Brewing Company v. Molson

Breweries, 51 F.3d 1511, 1515 (10th Cir. 1995), in consider-

ing the scope of an arbitration clause, found that antitrust

claims that implicated the licensing agreement were arbi-

trable.

Only two circuits have not had occasion to reconsider

American Safety and its progeny in light of this Court’s

intervening decisions — the Sixth Circuit and the District

of Columbia Circuit. However, their pre-Mitsubishi rul-

ings rejecting the arbitrability of domestic antitrust claims

were based on decisions that have been subsequently

overruled. The Sixth Circuit in Buffler v. Electronic Com-

puter Programming Institute, Inc., 466 F.2d 694, 700 (6th

Cir. 1972), relied in part on Ninth Circuit decisions that

were overruled by Nghiem, 25 F.3d at 1441-1442. The

District of Columbia Circuit in Lee v. Ply*Gem Industries,

11

Inc., 593 F.2d 1266, 1274-1275 (D.C. Cir.), cert. denied, 441

U.S. 967, 99 S. Ct. 2417, 60 L. Ed. 2d 1073 (1979), relied in

part on Cobb v. Lewis, 488 F.2d 41 (5th Cir. 1974). Cobb was

subsequently rejected as controlling law in Kotam Elecs.,

Inc., 93 F.3d at 725-728. See also Western Int'l Media Corp. v.

Johnson, 754 F. Supp. 871, 872-873 (S.D. Fla. 1991) (reject-

ing Cobb as controlling precedent in light of Mitsubishi

and McMahon). |

In view of this Court’s complete erosion and implicit

overruling of American Safety and its progeny, as recog-

nized by the Courts of Appeals that have considered the

issue, the purported conflict assumed by Seacoast does

not exist, and further clarification by this Court is unnec-

essary.

II.

SUFFICIENT INDEPENDENT GROUNDS EXIST TO

AFFIRM THE DISMISSAL OF SEACOAST’S COM-

PLAINT REGARDLESS OF THE CURRENT VALIDITY

OF THE AMERICAN SAFETY DOCTRINE.

In any event, this case is hardly, as presumed by

Seacoast, “the appropriate vehicle” to resolve any uncer-

tainty that may exist as to the viability of American Safety.

Sufficient alternative grounds exist for affirming without

ever reaching the application of American Safety to Sea-

coast’s claims. First, as determined by the Court of

Appeals, it is uncontraverted that Seacoast failed to serve

notice of the action on DaimlerChrysler within three

months of the filing of the arbitration award as required

by Section 12 of the FAA. Pet., App. 5a. If Seacoast is

12

held, as it should be, to the express jurisdictional predi-

cate of its complaint under Section 10 of the FAA, then, as

acknowledged by the Court of Appeals, Seacoast is time-

barred under Section 12. Pet., App. 5a. Seacoast’s attempt

to escape Section 12’s three month limitations period by

framing its suit as an independent equitable action to

enjoin the award should be treated as an unavailing

elevation of form over substance.

Alternatively, Seacoast’s reliance on American Safety

hinges entirely on the threshold presumption that G.L. c.

93B is an antitrust statute. Seacoast has yet to cite any

authority at any point throughout these lengthy proceed-

ings commenced in 1996, that describes or characterizes

its claims against DaimlerChrysler under G.L. c. 93B as

antitrust in nature. The petition is conspicuously silent on

the issue. Indeed, the Court of Appeals recognized that to

“describe [Seacoast’s] Chapter 93B claim as ‘antitrust’ is a

very dubious use of language” and went to great lengths

to distinguish G.L. c. 93B from antitrust laws. Pet., App.

8a-9a. Nevertheless, in order to reach the merits, the

Court of Appeals assumed arguendo that Seacoast’s claim

“could be classified as an antitrust claim.” Pet., App. 9a.

DaimlerChrysler respectfully submits that Seacoast’s

claims under G.L. c. 93B are not antitrust claims, and that

infirmity alone constitutes sufficient grounds to affirm

the dismissal of Seacoast’s cause of action without deter-

mining the precedential value of American Safety. Given

the existence of these alternative grounds for affirmance,

there is no compelling reason for this Court to grant the

petition.

*

13

CONCLUSION

For all of the foregoing reasons, DaimlerChrysler

respectfully requests that this Honorable Court deny Sea-

coast’s petition for a writ of certiorari.

Respectfully submitted,

Grorce W. MykuLak

Counsel of Record

SusAN HANMER FARINA

HALE AND Dorr LLP

60 State Street

Boston, MA 02109

(617) 526-6000

Counsel for Respondent