Loewen v. McDonnell, III

• Court: District Court, N.D. California
• Decided: September 13, 2019
• Docket: 4:19-cv-00467
• Status: Unknown

Opinion

1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 KATHRYN LOEWEN, CASE NO. 19-cv-00467-YGR

6 Plaintiff, ORDER GRANTING MOTION TO COMPEL 7 vs. ARBITRATION AND DENYING MOTION TO DISMISS 8 JOHN MCDONNELL, III, ET AL., Re: Dkt. No. 45 9 Defendants.

10 Plaintiff Kathryn Loewen brings this action against defendants John McDonnell III (“John 11 McDonnell”), The McDonnell Group, LLC (“TMG”), John “Jack” McDonnell II (“Jack 12 McDonnell”), Tony VanBrackle, Michael Bradley, Gary Bender, and Carneros Bay Capital LLC, 13 in connection with the alleged theft of her start-up company, Control Mobile, Inc. (“Control”). 14 (Dkt. No. 1 (“Compl.”).) 15 Now before the Court is defendants’ motion to compel arbitration and to dismiss pursuant 16 to the Federal Arbitration Act (“FAA”), on grounds that the claims asserted in the complaint arise 17 from and are inextricable related to Control’s March 19, 2015 Amended and Restated Shareholder 18 Agreement. (Dkt. No. 45 (“Motion”).) Having carefully considered the papers submitted and the 19 pleadings in this action, and for the reasons set forth below, the Court hereby GRANTS the motion 20 to compel arbitration and DENIES the motion to dismiss. The Court further ORDERS that the case 21 shall be STAYED pending the completion of arbitration.1 22 I. BACKGROUND 23 A. Plaintiff’s Allegations 24 The complaint alleges as follows: 25 In 2013, plaintiff began developing a payment analytics program that would allow 26 businesses to access aggregated transaction analytics in real-time without the need for coding or a 27 1 team of developers and data scientists to monitor and analyze the information. (Compl. ¶¶ 15-16.) 2 In May 2014, plaintiff founded and incorporated Control, the company that would launch the 3 payment analytics platform which plaintiff developed. (Id. ¶ 16.) 4 Over the next several years, in addition to investing her own money and time into the 5 company, plaintiff raised more than $3 million (CAD) in outside equity funding to further grow 6 the company. (Id. ¶¶ 17-22.) On May 19, 2015, plaintiff formed Control’s Board of Directors, 7 and a Shareholder Agreement was executed by its members. (Id. ¶ 22.) VanBrackle, an early 8 investor in Control, became a member of the Board and accordingly, a signatory to the 9 Shareholder Agreement, pursuant to which he owed fiduciary duties to Control and its 10 shareholders and agreed to not disclose confidential information concerning Control to persons 11 outside the company. (Id. ¶¶ 18, 22-23.) 12 On June 7, 2016, VanBrackle introduced plaintiff to John McDonnell. (Id. ¶ 25.) At 13 VanBrackle’s urging, and based upon John McDonnell’s representations about his ability to raise 14 capital, John McDonnell was permitted by the Board to invest in Control. (Id. ¶¶ 26, 29-36.) John 15 McDonnell became a member of the Board of Directors on March 29, 2017, and in June 2017, 16 was appointed Chief Operating Officer. (Id. ¶ 37.) As an officer and director of Control, John 17 McDonnell became a party to the Shareholder Agreement, and thus owed the same fiduciary 18 duties to plaintiff and the company as all other directors and officers. (Id.) 19 John McDonnell failed to raise capital from outside investors as promised, leaving Control 20 in an untenable financial position. (Id. ¶¶ 38-40.) The Board, relying on false representations by 21 John McDonnell, approved a $400,000 (CAD) line of credit from TMG, John McDonnell’s 22 family’s business, of which Jack McDonnell served as managing partner. (Id. ¶¶ 6, 43-44.) In 23 subsequent months, John McDonnell, together with VanBrackle and Bradley, who had been hired 24 as an advisor to Control, orchestrated a scheme to take advantage of plaintiff’s personal 25 difficulties and Control’s precarious financial condition to obtain control over the company and its 26 assets. (Id. ¶¶ 69, 71.) This conduct culminated in John McDonnell and TMG foreclosing on the 27 line of credit, placing Control into receivership in Canada, where John McDonnell and TMG 1 Plaintiff now alleges that defendants conspired to steal Control from her. Specifically, 2 plaintiff alleges that VanBrackle, John McDonnell, and Bradley violated their fiduciary duties to 3 plaintiff and the company by, among other things, diminishing the value of the company so that it 4 could be taken over by TMG. (Id. ¶¶ 143-44.)2 Plaintiff further alleges that the non-director and 5 non-officer defendants acted in concert with and aided and abetted the officer and defendant 6 directors in breaching their fiduciary duties. (Id. ¶ 146.) 7 B. The Shareholder Agreement 8 The Shareholder Agreement, to which plaintiff, McDonnell, and VanBrackle were parties, 9 includes a mandatory arbitration provision requiring “Dispute[s]” to be “settled by arbitration 10 under the International Commercial Arbitration Rules of the Procedure of the British Columbia 11 International Commercial Arbitration Centre” (“BCICAC”). (Dkt. No. 45-1 (“McDonnell Decl.”), 12 Ex. 1, § 8.6; Dkt. No 45-2 (“VanBrackle Decl.”), Ex. 1, § 8.6.) The agreement defines 13 “Dispute[s]” as “any dispute, disagreement, controversy, or claim between the parties with respect 14 to the interpretation of any provision of this Agreement, any amounts due hereunder, or the 15 breach, termination, or invalidity thereof[.]” (McDonnell Decl., Ex. 1, § 8.5; VanBrackle Decl., 16 Ex. 1, § 8.5.) 17 Notably, the BCICAC rules, which are expressly incorporated in the arbitration provision, 18 state, in relevant part, that “[t]he arbitral tribunal may rule on its own jurisdiction, including ruling 19 on any objections with respect to the existence or validity of the arbitration agreement[.]” (Dkt. 20 No. 46, Ex. 1, Art. 15(1).)3 21 2 The Court notes that certain paragraphs in the complaint under the header “First Cause of 22 Action” are mis-numbered. To be clear, this decision’s citation to paragraphs 143, 144 and 146, refers to paragraphs that appear on page 41 of the complaint. 23 3 Defendant’s request for judicial notice of the BCICAC rules (Dkt. No. 46, Ex. 1) and 24 plaintiff’s request for judicial notice of the American Arbitration Association’s rules (Dkt. No. 47- 25 1, Ex. 1) are GRANTED. See Fed. R. Evid. 201(b) (courts “may judicially notice a fact that is not subject to reasonable dispute because it . . . is generally known within the trial court’s jurisdiction; 26 or . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned”); Kag West, LLC v. Malone, No. 15-cv-03827-TEH, 2015 WL 6693690, at *5 27 (N.D. Cal. Nov. 3, 2015) (noticing arbitration rules in granting motion to compel arbitration). 1 The Shareholder Agreement applies to “the Shareholders and [Control] and any other 2 person that becomes party to this Agreement” (McDonnell Decl., Ex. 1 at 3; VanBrackle Decl., 3 Ex. 1 at 3), as well as “any shares . . . of [Control] or any successor body corporate that may be 4 received by the Shareholders on a merger, amalgamation, arrangement or other reorganization of 5 or including the Corporation.” (McDonnell Decl., Ex. 1, § 8.1; VanBrackle Decl., Ex. 1 § 8.1.) 6 The Shareholder Agreement also states that it “enures to the benefit of and is binding upon the 7 respective heirs, executors, administrators, successors and permitted assigns of the Parties.” 8 (McDonnell Decl., Ex. 1, § 8.8; VanBrackle Decl., Ex. 1 § 8.8.) 9 II. LEGAL STANDARD 10 The Federal Arbitration Act (“FAA”) covers agreements “evidencing a transaction 11 involving commerce,” with “commerce” defined as “commerce among the several States or with 12 foreign nations.” 9 U.S.C. §§ 1, 2.4 Under the FAA, “[a] party aggrieved by the alleged failure, 13 neglect or refusal of another to arbitrate under a written agreement for arbitration” may “petition 14 any United States district court . . . for an order directing that such arbitration proceed in the 15 manner provided for in such agreement.” 9 U.S.C. § 4. The court’s role in addressing a question 16 of arbitrability generally is “limited to determining (1) whether a valid agreement to arbitrate 17 exists, and if it does, (2) whether the agreement encompasses the dispute at issue.” Chiron Corp. 18 v. Ortho Diagnostic Sys. Inc., 207 F.3d 1126, 1130 (9th Cir. 2000). If the court finds that both of 19 these requirements are met, the FAA requires it to enforce the provision in accordance with its 20 terms. Id. 21 The FAA reflects both a “liberal federal policy favoring arbitration” and the “fundamental 22 principle that arbitration is a matter of contract.” AT&T Mobility LLC v. Concepcion, 563 U.S. 23 333, 339 (2011) (citations omitted); Mortensen v. Bresnan Commuc’ns, LLC, 722 F.3d 1151, 1157 24 25 4 Although plaintiff does not dispute that the arbitration agreement is covered by the FAA, plaintiff contends that state law also applies, at least in part, to the Court’s analysis of the 26 Shareholder Agreement. (Dkt. No. 47 at 9.) Specifically, plaintiff avers that state law governs issues concerning validity, revocability, and enforceability of contracts, while federal law governs 27 the scope of arbitration agreements. (Id., quoting Shivkov v. Artex Risk Sols. Inc., Case No. 18- 1 (9th Cir. 2013) (“The [FAA] . . . has been interpreted to embody ‘a liberal federal policy favoring 2 arbitration.’”) (citing Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 3 (1983)). The FAA broadly provides that an arbitration clause in a contract involving a commercial 4 transaction “shall be valid, irrevocable, and enforceable.” 9 U.S.C. § 2. Once a court is satisfied 5 the parties agreed to arbitrate, it must promptly compel arbitration. 9 U.S.C. § 4. 6 III. DISCUSSION 7 A. The Shareholder Agreement’s Delegation Clause 8 As a threshold matter, given the rules of the BCICAC, the Court must determine whether 9 the parties are bound by an arbitration clause that delegates questions of arbitrability to the 10 arbitrator. 11 Generally, “the [FAA] establishes that, as a matter of federal law, any doubts concerning 12 the scope of arbitrable issues should be resolved in favor of arbitration.” Moses H. Cone, 460 U.S. 13 at 24-25. Certain issues, however, are presumptively reserved for the court. Howsam v. Dean 14 Witter Reynolds, Inc., 537 U.S. 79, 84 (2002). These include “gateway” questions of arbitrability, 15 such as “whether the parties have a valid arbitration agreement or are bound by a given arbitration 16 clause, and whether an arbitration clause in a concededly binding contract applies to a given 17 controversy.” Momot v. Mastro, 652 F.3d 982, 987 (9th Cir. 2011). However, parties may 18 delegate the adjudication of gateway issues to the arbitrator if they “clearly and unmistakably” 19 agree to do so. Howsam, 537 U.S. at 83 (citation omitted). “When the parties’ contract delegates 20 the arbitrability question to an arbitrator, a court may not override the contract. In those 21 circumstances, a court possesses no power to decide the arbitrability issue.” Henry Schein, Inc. v. 22 Archer & White Sales, Inc., 139 S. Ct. 524, 529 (2019). 23 Defendant argues that the incorporation of the BCICAC rules constitutes “clear and 24 unmistakable” evidence that the parties delegated questions of arbitrability to the arbitrator. 25 (Motion at 6.) Plaintiff counters that BCICAC rules permit, but do not mandate, arbitrators to rule 26 on arbitrability, and thus, the Court must rule on questions of arbitrability in this case. (Dkt. No. 27 47 (“Opp.”) at 11-12.) The parties have not identified, nor is the Court aware of, any case law 1 6; Opp. at 11-12.) Defendants urge an analysis by analogy to the American Arbitration 2 Association (“AAA”) rules. (Motion at 6.) Plaintiff, for her part, argues that the AAA rules and 3 the BCICAC rules are meaningfully different, and that the BCICAC rules do not delegate 4 arbitrability questions to the arbitrator. (Opp. at 11.) 5 The AAA rules provide, in relevant part, that an “arbitrator shall have the power to rule 6 on his or her own jurisdiction, including any objections with respect to the existence, scope, or 7 validity of the arbitration agreement or to the arbitrability of any claim or counterclaim.” (Dkt. 8 No. 47-1, Ex. 1, R-7, emphasis supplied.) The Ninth Circuit has held that “when the parties have 9 incorporated by reference the rules of the American Arbitration Association (“AAA”), which state 10 in relevant part that the ‘arbitrator shall have the power to rule on his or her own jurisdiction . . . ,” 11 the parties have “clearly and unmistakably” delegated questions issues of arbitrability to the 12 arbitrator. Portland Gen. Elec. Co. v. Liberty Mut. Ins. Co., 862 F.3d 981, 985 (9th Cir. 2017) 13 (quoting Brennan v. Opus Bank, 796 F.3d 1125, 1130 (9th Cir. 2015)). 14 By contrast, the BCICAC’s rules provide that “[t]he arbitral tribunal may rule on its own 15 jurisdiction.” (Dkt. No. 46, Ex. 1, Art. 15(1), emphasis supplied.) Use of the word “may” is 16 frequently viewed as more permissive than the word “shall” because it could be read as giving the 17 arbitrator authority to decide or not to decide on issues of arbitrability. However, defendants cite 18 numerous cases from courts in other jurisdictions indicating that the phrase “may rule” is 19 functionally equivalent to the phrase “shall have the power to rule.” (See Dkt. No. 48 (“Reply”) at 20 6, citing Schneider v. Kingdom of Thailand, 688 F.3d 68, 72-73 (2d Cir. 2012) (“Article 21 of 21 those rules provides [that] [t]he arbitral tribunal shall have the power to rule on objections that it 22 has no jurisdiction. . . . Section 4 provides that ‘[t]he Tribunal may consider . . . objections to 23 jurisdiction,’ which is entirely consistent with and parallel to the language in Article 21.”); Awuah 24 v. Coverall N. Am., Inc., 554 F.3d 7, 11 (1st Cir. 2009) (“Rule 7(a) says plainly that the arbitrator 25 may ‘rule on his or her own jurisdiction’ including any objection to the ‘existence, scope or 26 validity of the arbitration agreement.’ This is about as ‘clear and unmistakable’ as language can 27 get[.]”); Wells Fargo Advisors, LLC v. Sappington, 884 F.3d 392, 397 (2d Cir. 2018) (“Rule 7 of 1 jurisdiction[‘]. . . . The language . . . clearly leaves the class arbitration question to an 2 arbitrator.”).)5 3 Likewise, many courts, including at least one in this circuit, have held that the 4 incorporation of even a permissive delegation clause is clear and unmistakable evidence of the 5 parties’ intent to delegate questions of arbitrability to the arbitrator. See, e.g., ASUS Computer 6 Int’l v. InterDigital, Inc., No. 15-CV-01716-BLF, 2015 WL 5186462, at *4 (N.D. Cal. Sept. 4, 7 2015) (“[T]he parties agreed to arbitration under the ICDR rules, . . . and these rules allow an 8 arbitrator to decide arbitrability. . . . Several courts have held that even when an arbitration clause 9 uses permissive language, the clause still gives rise to mandatory arbitration.”); Amway Glob. v. 10 Woodward, 744 F. Supp. 2d 657, 664 (E.D. Mich. 2010) (rule that arbitrability disputes “may be 11 submitted to and ruled on by the Arbitrator” served as clear and unmistakable evidence that the 12 parties agreed to arbitrate arbitrability); Avue Techs. Corp. v. DCI Grp., L.L.C., No. CIV.A. 06- 13 327 (JDB), 2006 WL 1147662, at *7 (D.D.C. Apr. 28, 2006) (“[E]ven assuming that the rule is, as 14 Avue contends, permissive in nature, the arbitrator would still be the proper entity to decide 15 whether the TCS Agreement is subject to arbitration.”). Plaintiff has not cited any contrary 16 authority arising in a similar context.6 17 5 See also Gemini Ins. Co. v. Certain Underwriters at Lloyd’s London, No. CV H-17- 18 1044, 2017 WL 1354149, at *6 (S.D. Tex. Apr. 13, 2017) (“There is no meaningful difference between the phrase ‘shall have the power to rule on’ and the phrase ‘may rule on.’ Each indicates 19 the same idea: the arbitrator has the power to decide arbitrability.”); Townsend Ventures, LLC v. Hybrid Kinetic Grp. Ltd., No. CV GLR-17-130, 2017 WL 3730345, at *4 (D. Md. Aug. 30, 2017) 20 (“The Court discerns no difference between rules stating that an arbitral tribunal ‘shall have to the power to’ determine arbitrability and stating that an arbitral tribunal ‘may’ determine arbitrability. 21 In both instances the rules provide that the arbitral tribunal has the authority to determine arbitrability.”). 22 6 In addition, defendant has identified Canadian case law indicating that under the laws of 23 the Province of British Columbia, questions of arbitrability generally are reserved for the arbitrator. (Motion at 5, n.5.) Specifically, defendant cites to Seidel v. Telus Commc’ns., Inc., 24 [2011] 1 S.C.R. 531 (Can.), in which the Canadian Supreme Court held as follows:

25 British Columbia has adopted the competence-competence principle through the combined operation of s. 22 of the CAA and Rule 20(2) of the BCICAC Rules 26 which in turn reflect the provisions of the New York Convention and Model Law. As such, “[t]he jurisdiction to determine jurisdiction is given to the 27 arbitral tribunal by statute, as well as by the rules of arbitration used by most 1 The Court is persuaded by the prevailing view that the “incorporat[ion] [of] rules that 2 empower an arbitrator to decide issues of arbitrability . . . serves as clear and unmistakable 3 evidence of the parties’ intent to delegate such issues to an arbitrator,” even though the BCICAC 4 rules use the word “may.” Clarium Capital Management. LLC v. Choudhury, Nos. C 08- 5 5157SBA, 06-5255, 2009 WL 331588, at *5 (N.D. Cal. Feb. 11, 2009); see also Johnson v. Oracle 6 America, Inc., No. 17-cv-05157-EDL, 2017 WL 8793341, at *7 (N.D. Cal. Nov. 17, 2017) 7 (finding that incorporation of rules that are “very similar to . . . AAA jurisdictional rules” 8 constitutes “clear and unmistakable delegation”). Accordingly, whether the Shareholder 9 Agreement is valid and whether this dispute falls within its scope are questions for the arbitrator, 10 not this Court, to decide.7 11 B. Defendant’s Request for Dismissal 12 Next, the Court addresses defendants’ contention that because plaintiff’s claims are subject 13 to arbitration, dismissal is proper. (Motion at 14.) Having not reached the gateway questions of 14 arbitrability, and instead finding that such questions are delegated to the arbitrator, the Court finds 15 that dismissal of plaintiff’s claims at this juncture would be inappropriate. 16 In the alternative, defendant requests that the Court stay the action pending resolution of 17 the arbitration. (Motion at 14, n.11.) With respect to a stay of proceedings, the FAA provides: 18 If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such 19 arbitration, the court in which such suit is pending, upon being satisfied that the 20

I agree with my colleagues LeBel and Deschamps JJ. (at para. 114) that in these 22 circumstances, absent legislated exception, any challenge to an arbitrator’s jurisdiction over [plaintiff]’s dispute with [defendant] should first be determined 23 by the arbitrator, unless the challenge involves a pure question of law, or one of mixed fact and law that requires for its disposition “only superficial consideration 24 of the documentary evidence in the record” (Dell, at para. 85). See also, Unifund Assurance Co. v. Insurance Corp. of British Columbia, 2003 SCC 40, [2003] 2 25 S.C.R. 63, at paras. 37-38.

26 (emphasis supplied.) 27 7 Plaintiff’s remaining arguments (survivability, waiver, unclean hands) will be decided by 1 issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the 2 action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with 3 such arbitration. 4 || 9US.C. § 3 (emphasis supplied); see also BrowserCam, Inc. v. Gomez, Inc., No. 08-CV-02959- 5 WHA, 2009 WL 210513, at *3 (N.D. Cal. Jan. 27, 2009) (it is “within a district court’s discretion 6 || whether to stay, ‘for [c]onsiderations of economy and efficiency,’ an entire action, including 7 issues not arbitrable, pending arbitration”) (quoting United States ex rel. Newton v. Neumann g Caribbean Int’l., Ltd., 750 F.2d 1422, 1427 (9th Cir. 1985)). Accordingly, the Court stays this 9 action pending a decision on arbitrability by an arbitrator. 10 || IV. CONCLUSION 11 For the foregoing reasons, the Court GRANTS defendant’s motion to compel arbitration and = 12 || DENIES defendant’s motion to dismiss. The Court further STAYS this action pending the

43 || completion of arbitration.

14 In addition, the Court SETS this matter for a compliance hearing on January 17, 2020, at

© 15 || 2:01 a.m. in Courtroom 1 of the United States Courthouse located at 1301 Clay Street in Oakland, 16 California. Five (5) business days prior to the date of the compliance hearing, the parties shall file

5 7 a joint statement regarding the status of arbitration. If compliance is complete, the parties need not 18 appear, and the compliance hearing will be taken off calendar. 19 IT Is SO ORDERED. 20 > Dated: September 13, 2019 YVONNE GONZALEZ ROGERS 22 UNITED STATES DISTRICT COURT JUDGE 23 24 25 26 27 28