Winnie Fang v. Merrill Lynch, Pierce, Fenner

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 23, 2020
• Docket: 19-15022
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 23 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

WINNIE B. FANG, M.D., No. 19-15022

Plaintiff-Appellant, D.C. No. 3:16-cv-06071-JD

v. MEMORANDUM* MERRILL LYNCH, PIERCE, FENNER & SMITH, INC.,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California James Donato, District Judge, Presiding

Submitted April 16, 2020** San Francisco, California

Before: HAWKINS and PAEZ, Circuit Judges, and RESTANI,*** Judge.

Dr. Winnie B. Fang appeals the district court’s (1) denial of vacatur of an

unfavorable award issued by the Financial Industry Regulatory Authority

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes that this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Jane A. Restani, Judge for the United States Court of International Trade, sitting by designation. (“FINRA”) in an arbitration Fang initiated against Merrill Lynch for its alleged

failure to prevent the wrongful escheatment of her shares of Peet’s Coffee & Tea,

Inc. and (2) dismissal of her later-filed class action complaint raising the same

allegations without leave to amend. We have jurisdiction under 28 U.S.C. § 1291,

and we affirm.

The FINRA panel did not exceed its authority by adjudicating Fang’s claim—

proceedings, we are careful to note, that she voluntarily initiated. See 9

U.S.C. § 10(a)(4); Nghiem v. NEC Elec., Inc., 25 F.3d 1437, 1440 (9th Cir. 1994)

(“Once a claimant submits to the authority of the arbitrator and pursues arbitration,

he cannot suddenly change his mind and assert lack of authority.”).

The record lends no support to her argument that the panel addressed more

than her individual claim against Merrill Lynch. That her individual claim’s

resolution now keeps her from representing a putative class of similarly situated

claimants does not justify vacatur. See Douglas v. U.S. Dist. Ct. for C.D. Cal., 495

F.3d 1062, 1069 (9th Cir. 2007) (“Losing the opportunity to continue as a class

representative doesn’t come close to meeting [the 9 U.S.C. § 10(a)] standard.”).

We are similarly loath to question the panel’s plausible, even if erroneous,

interpretations of various FINRA Rules in refusing to dismiss Fang’s claim when

she later opted to file a class action complaint. See Sanchez v. Elizondo, 878 F.3d

1216, 1223 (9th Cir. 2018) (rejecting judicial role in deciding “whether the arbitrator

2 committed an error, even a serious error, in interpreting [FINRA Rules]”). Where,

as here, the panel has “confined [itself] to the interpretation and application of the

parties’ agreement,” it has not exceeded its authority. See id.

Nor was its eventual award in Merrill Lynch’s favor “procured by . . . undue

means.” 9 U.S.C. § 10(a)(1). The alleged withholding of documents and

information by Merrill Lynch’s counsel during discovery does not impugn the

integrity of the panel’s award. As an initial matter, the record lends little credence

to Fang’s accusations. Even if it did, such discovery gamesmanship “occurs with

such frequency” that this alone scarcely constitutes “undue means.” See A.G.

Edwards & Sons, Inc. v. McCollough, 967 F.2d 1401, 1404 (9th Cir. 1992) (reaching

same conclusion when opposing party invoked “meritless defense”).

Still more importantly, Fang raised her concerns with the FINRA panel, which

ultimately was unmoved—something we cannot reexamine. See Sanchez, 878 F.3d

at 1223; see also Lagstein v. Certain Underwriters at Lloyd’s, London, 607 F.3d

634, 643–44 (9th Cir. 2010) (deferring to arbitrator interpretation of a “procedural

matter”). The limited grounds for vacatur in 9 U.S.C. § 10(a) do not give her “a

second bite at the apple.” See McCollough, 967 F.2d at 1404; Sprewell v. Golden

State Warriors, 266 F.3d 979, 987–88 (9th Cir. 2001) (refusing to vacate arbitral

award for complaints of false statements and doctored photographs already rejected

by arbitrator).

3 We therefore agree with the district court’s dismissal of Fang’s class action

complaint as waived. Both the FINRA Rules—which Fang agreed to be bound by—

and the law of our circuit so hold. See FINRA Rule 12209,

https://www.finra.org/rules-guidance/rulebooks/finra-rules/12209 (“During an

arbitration, no party may bring any suit, legal action, or proceeding against any other

party that concerns or that would resolve any of the matters raised in the

arbitration.”); Teamsters Local Union No. 760 v. United Parcel Serv., Inc., 921 F.2d

218, 220 (9th Cir. 1990) (“[I]ssues submitted to arbitration cannot be relitigated in

federal court.”); C.D. Anderson & Co., Inc. v. Lemos, 832 F.2d 1097, 1099 (9th Cir.

1987) (“[B]y submitting its . . . claims to arbitration, [the claimant] waived any right

it had to litigate those claims in federal court.”).

Fang advances no authority for her theory that Merrill Lynch first had to alert

her to a potential class of similarly situated claimants. Conversely, the FINRA

panel’s resolution of Fang’s individual claim extinguished any “concrete stake” she

might otherwise have had in a class action for the same conduct. See Douglas, 495

F.3d at 1069; see also Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 73 (2013)

(“In the absence of any claimant’s opting in, respondent’s [class action] suit became

moot when her individual claim became moot, because she lacked any personal

interest in representing others in this action.”). Despite already having amended the

class complaint, Fang has never alleged another basis for relief that pertains to her.

4 Accordingly, the district court properly dismissed the class complaint as waived and

acted within its discretion in denying as futile yet another opportunity to amend. See

Salameh v. Tarsadia Hotel, 726 F.3d 1124, 1133 (9th Cir. 2013) (“A plaintiff may

not in substance say ‘trust me,’ and thereby gain a license for further amendment

when prior opportunity to amend had been given.”).

AFFIRMED.