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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2002
- **Citation:** 535 U.S. 1054

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1494%3A2. Public record. Not legal advice.