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                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                                                                               FILED
                              _______________________
                                                                     U.S. COURT OF APPEALS
                                                                       ELEVENTH CIRCUIT
                                     No. 07-13003
                                                                            July 14, 2008
                               _______________________
                                                                         THOMAS K. KAHN

                         D. C. Docket No. 06-CV-80966-DTKH


TRIPLE I: INTERNATIONAL INVESTMENTS, INC.,

                                                               Counter-Claimant-Appellee,

                                            versus

K2 UNLIMITED, INC., et al.,

                                                           Counter-Defendants-Appellants.

                                ______________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                              ______________________

                                       (July 14, 2008)

Before BIRCH and FAY, Circuit Judges, and HINKLE,* District Judge.

HINKLE, District Judge:

___________________________
        *Honorable Robert L. Hinkle, United States District Chief Judge for the Northern District
of Florida, sitting by designation.
      This appeal raises the issue of the arbitrability of specific claims arising

from a commercial venture gone bad. The object of the venture was the

construction of a cement plant in Nigeria. The parties to this appeal are the owner

who proposed to build the plant and an agent the owner hired to help secure

financing. The owner and agent entered a written agreement setting forth their

respective rights and obligations. The owner later sued the agent for fraud (and on

related theories), asserting the agent helped dupe the owner into paying a fee for

nonexistent financing. The agent moved to compel arbitration based on a clause

in the parties’ agreement that required arbitration of “[a]ny legal dispute arising

from” the agreement. The district court denied the motion. We reverse.

                                       I. Facts

      Appellee Triple I: International Investments, Inc. (“Triple I”) wished to

build a cement plant in Nigeria. It needed a $520 million loan. It hired appellant

K2 Unlimited, Inc. (“K2”) to help find an entity that would issue a financial

guarantee bond as collateral for the contemplated loan. Triple I and K2 entered a

written agreement that was entitled “Intent-to-Collateralize and Fund

Memorandum.” R.1.71.12. The agreement called for K2 to “procure a Financial

Guaranty Bond” and for Triple I to pay K2 a fee of five percent — $26 million —

upon consummation of the loan transaction. Id. The agreement included a clause

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that required arbitration of “[a]ny legal dispute arising from” the agreement.

R.1.71.14.

      K2 and others purportedly found a lender (Japan Venture Fund Group) and

an issuer of a financial guarantee bond (International Underwriters AG & Liberty

Re-Insurance Corporation, S.A. (“International”)). For issuance of the bond,

Triple I agreed to pay International a fee of $10.4 million, payable half in advance

and half upon Triple I’s receipt of the loan proceeds. Triple I made the $5.2

million advance payment through an escrow agent (W. E. Fielding and

Associates), but the lender did not fund the loan. Despite an agreement between

Triple I and International requiring all but $200 of the fee to be refunded if the

bond was not used, International did not refund the fee. Triple I thus was out $5.2

million.

      International filed a lawsuit in which it denied that Triple I was entitled to a

refund of the entire $5.2 million but also sought to “interplead” that amount for a

determination by the court of the parties’ respective rights. Triple I

counterclaimed. In due course International voluntarily dismissed its complaint,

and Triple I twice amended its counterclaim. In the second amended

counterclaim, Triple I asserted that the whole deal was a sham from the outset.

Triple I named 11 counterclaim defendants, including K2, its chief executive

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officer Diane Glatfelter, and its chief operating officer Robert Rice. Triple I

sought recovery against K2 and the officers for fraud and under the Racketeer

Influenced and Corrupt Organizations Act.

      K2 and its officers moved to compel arbitration based on the arbitration

clause in the “Intent-to-Collateralize and Fund Memorandum.” The district court

denied the motion. K2 and the officers filed this appeal. For convenience, in this

opinion we refer to K2 without continuing to refer to the officers; both sides

apparently agree that the officers’ fate on this appeal rises or falls with that of K2.

                               II. Standard of Review

      We review de novo a district court’s decision on whether a dispute is

covered by an arbitration agreement. See, e.g., Employers Ins. of Wausau v. Bright

Metal Specialties, Inc., 251 F.3d 1316, 1321 (11th Cir. 2001).

                                     III. Merits

      A dispute ordinarily is arbitrable if the parties have agreed to arbitrate it. As

we have said:

             Absent some violation of public policy, a federal court must refer to
      arbitration any controversies covered by the provisions of an arbitration
      clause. Chastain v. Robinson-Humphrey Co., 957 F.2d 851, 854 (11th
      Cir.1992). Whether a party has agreed to arbitrate an issue is a matter of
      contract interpretation: “[A] party cannot be required to submit to arbitration
      any dispute which he has not agreed so to submit.” United Steelworkers of



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      America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct.
      1347, 4 L.Ed.2d 1409 (1960).

Telecom Italia, SpA v. Wholesale Telecom Corp., 248 F.3d 1109, 1114 (11th Cir.

2001). The canons of construction run in favor of arbitration. See, e.g., Moses H.

Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S. Ct. 927,

74 L. Ed. 2d 765 (1983) (“any doubts concerning the scope of arbitrable issues

should be resolved in favor of arbitration”).

      Triple I and K2 agreed to arbitrate “[a]ny legal dispute arising from” their

agreement. R.1.71.14. The question thus is whether the disputes at issue — that

is, the claims set forth in the second amended counterclaim — “arise from” the

agreement. They do.

      Triple I has sued K2 for fraud (and on related theories), not for breach of the

agreement. But the agreement defined the parties’ entire relationship. Had K2

performed the agreement by finding an actual issuer of a financial guarantee bond,

Triple I would have had nothing to complain about. Instead, at least according to

the allegations of the second amended complaint, K2 participated in a charade.

K2’s failure to perform the agreement is squarely at the heart of Triple I’s fraud

claims.




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      In Gregory v. Electro-Mechanical Corp., 83 F.3d 382, 384 (11th Cir. 1996),

the parties entered an agreement with a clause requiring arbitration of “any dispute

between any of the Parties which may arise hereunder.” A dispute arose, and one

set of parties filed a lawsuit against another set of parties asserting claims for fraud

and for other torts as well as for breach of contract. The district court refused to

compel arbitration, but we reversed. We framed the issue as “the meaning of the

words ‘arising hereunder’ in the context of an arbitration provision contained in a

larger agreement.” Gregory, 83 F.3d at 383. We held that the phrase encompasses

not only breach of contract claims, but also tort claims of the type at issue. We

said that if the party accused of wrongdoing “had fully complied with the contract,

as interpreted by the plaintiffs, there would be no tort claims.” Gregory, 83 F.3d

at 384.

      The case at bar is not meaningfully distinguishable from Gregory. There

the arbitration clause applied to “any dispute . . . which may arise hereunder,” that

is, under the larger agreement of which the arbitration clause was a part. In the

case at bar, the arbitration clause applies to “[a]ny legal dispute arising from” the

agreement. There is no substantive difference. In Gregory, the lawsuit alleged

fraud, other torts, and breach of contract, but the court addressed the arbitrability

of the tort claims without suggesting that the presence of an express breach of

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contract count was important to the analysis. Here the lawsuit alleges fraud and

other torts. And here, as in Gregory, if the party accused of wrongdoing “had

fully complied with the contract, . . . there would be no tort claims.” Gregory, 83

F.3d at 384.1 If, as we held in Gregory, the district court was required to compel

arbitration of the fraud and other tort claims at issue there, then the district court

was equally required to compel arbitration of the fraud and other tort claims at

issue here.

       More recent decisions are fully consistent with this conclusion. In Telecom

Italia, SpA v. Wholesale Telecom Corp., 248 F.3d 1109 (11th Cir. 2001), we

summarized our decisions addressing an arbitration clause applicable to disputes

“arising from” or “related to” an underlying agreement. Citing Gregory, we said,

“We have required arbitration where the tort could not have occurred but for a

breach of contract.” Telecom Italia, 248 F.3d at 1114-15. And we said that, under

Gregory and our other decisions, a dispute “arises out of” a contract if it is “related

— with at least some directness — to performance of duties specified by the


       1
         Finding that a tort could not have occurred but for a breach of a contract is different
from finding that the tort could not have occurred but for the existence of the contract. A tort that
could not have occurred but for the existence of the contract does not necessarily arise from the
contract. See Seaboard Coast Line R.R. Co. v. Trailer Train Co., 690 F.2d 1343, 1351 (11th Cir.
1982) (saying that a dispute does not “arise out of or in connection with” a contract just because
the dispute would not have arisen if the contract “had never existed”), quoting Necchi v. Necchi
Sewing Machine Sales Corp., 348 F.2d 693, 698 (2d Cir. 1965).

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contract.” Telecom Italia, 248 F.3d at 1116. See also Blinco v. Green Tree

Servicing LLC, 400 F.3d 1308, 1311 (11th Cir. 2005) (broadly construing

agreement to arbitrate any dispute “arising from or relating to” the contract at

issue).

      The case at bar easily comes within the Telecom Italia formulations of the

test for determining whether a claim “arises from” an agreement. The torts alleged

by Triple I “could not have occurred but for” K2’s failure to perform the

agreement. And the dispute is “related — with at least some directness — to”

K2’s performance (or, more accurately, failure to perform) the agreement. Triple

I’s claims thus arise from the agreement and must be arbitrated.

                                  IV. Conclusion

      The parties agreed to arbitrate disputes of the kind now at issue. The order

denying the motion to compel arbitration is REVERSED and the case is

REMANDED for entry of an order compelling arbitration.




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