     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                 SUMMARY
                                                         September 20, 2018

                               2018COA142

No. 17CA1111 Digital Landscape v. Media Kings — Courts and
Court Procedures — ADR — Arbitration — Uniform Arbitration
Act — Vacating Award

     A division of the court of appeals holds that the meaning of the

phrase “arising under” in an arbitration clause is broad. The

opinion analyzes a debate among the federal circuits concerning the

breadth of the phrase “arising under,” and concludes that a broad

definition is most consistent with Colorado law. The division next

concludes that, based on the facts of this case, the arbitrator had

jurisdiction to treat a breach-of-the-implied-covenant-of-good-faith-

and-fair-dealing counterclaim as a breach-of-the-duty-of-loyalty

counterclaim. And, since there was no prevailing party, the

arbitrator was not required to award fees. The division therefore

affirms the trial court’s judgment confirming the arbitrator’s award.
COLORADO COURT OF APPEALS                                     2018COA142


Court of Appeals No. 17CA1111
City and County of Denver District Court No. 14CV33937
Honorable A. Bruce Jones, Judge


Digital Landscape Inc.,

Plaintiff-Appellant,

v.

Media Kings LLC,

Defendant-Appellee.


                             JUDGMENT AFFIRMED

                                  Division I
                         Opinion by JUDGE BERNARD
                       Taubman and Welling, JJ., concur

                          Announced September 20, 2018


Sean Connelly, Connelly Law LLC, Denver, Colorado, for Plaintiff-Appellant

Sarah De Diego, De Diego Law, Santa Monica, California, for Defendant-
Appellee
¶1    Judge Learned Hand once wrote that “words are chameleons,

 which reflect the color of their environment.” Comm’r v. Nat’l

 Carbide Corp., 167 F.2d 304, 306 (2d Cir. 1948), aff’d, 336 U.S. 422

 (1949). In this appeal, the words are the phrase “arising under.”

 Their environment is an arbitration clause, which reads: “Any

 disputes arising under this [a]greement will be resolved by binding

 arbitration . . . .” (Emphasis added.) We are tasked with figuring

 out whether this phrase takes on a narrow or a broad hue from its

 context in the arbitration clause.

¶2    The appellant in this case — plaintiff, Digital Landscape Inc.,

 which we shall call Digital — asserts that “arising under” has a

 narrow scope. For Digital, this means that the arbitrator lacked

 jurisdiction to decide a claim that Digital submits did not “arise

 under” the contract in this case. The appellee — defendant, Media

 Kings LLC, which we shall call Media — submits that the scope of

 “arising under” is broad, so the arbitrator had jurisdiction to

 consider the claim. In this appeal, Digital asks us to review the

 district court’s judgment confirming an arbitrator’s order and

 denying Digital’s request to vacate it.




                                      1
¶3    Modern arbitration clauses are products of a strong policy that

 favors arbitration. For example, divisions of this court have

 concluded that “arising under,” as it is used in an arbitration

 clause, is broad because (1) Colorado courts favor arbitration to

 resolve disputes; and (2) we should resolve any doubts that we have

 about a clause’s scope in favor of arbitration.

¶4    But Digital points us to a debate among federal circuits

 concerning the scope of “arising under” in an effort to convince us

 to part company with these Colorado decisions. One side of the

 debate thinks that the scope of “arising under” is narrow, while the

 other side thinks that the phrase’s scope is broad. After

 considering both sides of the debate, we are persuaded by the

 reasoning of the circuits that conclude that “arising under” is

 broad: these circuits are convinced that “arising under” is colored

 by a fundamental attribute of its environment — the arbitration

 clause — which reflects the strong federal policy that encourages

 arbitration.

¶5    We therefore conclude that all the claims that the arbitrator

 considered in this case were “dispute[s] arising under” the contract

 between Digital and Media, which were to “be resolved by binding


                                    2
 arbitration.” The arbitrator therefore had jurisdiction to resolve

 those claims.

¶6    We also disagree, for reasons that we explain below, with two

 other contentions that Digital raises. As a result, we affirm the

 district court’s judgment.

                              I. Background

¶7    Media entered into a contract to provide marketing services to

 Transcendent Marketing, LLC, which we shall call Transcendent.

 Transcendent was not a named party in this case.

¶8    Media then contracted with Digital to provide advertising

 services to Transcendent. Under the contract, Media agreed to pay

 Digital a portion of its earnings from Transcendent in exchange for

 Digital’s work on the project.

¶9    But Media did not pay Digital. And someone from Digital told

 someone from Transcendent that Media had not paid. Apparently

 dissatisfied with Media’s work and with its lack of payment to

 Digital, Transcendent proposed that Digital take over the project.

 Digital’s principal officer agreed, but he had one of his other

 companies assume the work. This proposal effectively cut Media

 out of its agreement with Transcendent.


                                    3
¶ 10   Digital sued Media for breach of contract, seeking unpaid

  earnings that Digital contended Media owed it for work it had done

  for Transcendent. Media filed counterclaims. The one that is the

  focus of the appeal alleged that Digital had breached the implied

  covenant of good faith and fair dealing by disclosing confidential

  information to Transcendent, Media’s client; by soliciting

  Transcendent’s business; by disparaging Media to Transcendent;

  and by stealing Transcendent as a client.

¶ 11   Because the contract between Media and Digital included an

  arbitration clause, the district court ordered them to arbitrate their

  dispute. The court stayed the case until the arbitration proceeding

  was finished.

¶ 12   During the arbitration proceeding, Digital argued that Media

  had breached the contract because Media had not paid Digital the

  amount that the contract required. The arbitrator agreed, and she

  awarded Digital $68,197.41.

¶ 13   When discussing the counterclaim alleging that Digital had

  breached the implied covenant of good faith and fair dealing, the

  arbitrator also referred to it as addressing a breach of Digital’s duty

  of loyalty to Media. She then decided that, although the agreement


                                     4
  described Digital as an independent contractor, Digital still owed a

  duty of loyalty to Media, which Digital had breached. So the

  arbitrator awarded Media $24,400 in damages.

¶ 14   In her final order, the arbitrator concluded that neither Media

  nor Digital had prevailed. She therefore declined to award either of

  them attorney fees.

¶ 15   Digital filed a petition in the district court that asked the court

  to confirm the part of the arbitration order that awarded damages to

  Digital, vacate the part of the order that awarded damages to Media

  because the arbitrator had exceeded the scope of the arbitration

  clause, and award Digital its attorney fees. The district court

  disagreed with Digital’s requests, so it confirmed the order in its

  entirety.

                         II. Digital’s Contentions

¶ 16   Digital raises three contentions.

¶ 17   First, Digital contends that the arbitrator did not have

  jurisdiction to consider whether Digital had breached a duty of

  loyalty to Media because the duty of loyalty claim did not “arise

  under” the arbitration clause.




                                     5
¶ 18   Second, Media filed a counterclaim alleging that Digital had

  breached the implied covenant of good faith and fair dealing.

  Digital submits that the arbitrator improperly converted this

  counterclaim to a different claim — breach of loyalty — that Media

  had not raised. Digital continues that it did not have notice of the

  different elements of this claim. Digital wraps up this contention by

  asserting that the arbitrator’s ruling on this different claim was

  unfair and that the arbitrator’s award to Media was therefore void.

¶ 19   Third, even if we disagree with the first two contentions,

  Digital asserts that it was nonetheless entitled to attorney fees

  because (1) its contract with Media stated that the prevailing party

  in an arbitration proceeding concerning the terms of the contract

  would be entitled to attorney fees; (2) it prevailed on its breach of

  contract claim; (3) Media prevailed on a claim — the breach of

  loyalty claim — that was not part of the contract; so (4) Media did

  not prevail on a claim that was related to the contract.

       III. Standard of Review and General Arbitration Principles

¶ 20   We review de novo

           whether a dispute falls within the scope of an arbitration

             clause, Taubman Cherry Creek Shopping Ctr., LLC v.


                                     6
             Neiman-Marcus Grp., Inc., 251 P.3d 1091, 1093 (Colo.

             App. 2010);

           “a district court’s legal conclusions on a motion to

             confirm or vacate an arbitration award,” Rocha v. Fin.

             Indem. Corp., 155 P.3d 602, 604 (Colo. App. 2006); and

           whether “the arbitrator’s refusal to award attorney fees to

             plaintiff as the prevailing party was a determination

             beyond the scope of the parties’ arbitration agreement,”

             Magenis v. Bruner, 187 P.3d 1222, 1225 (Colo. App.

             2008).

¶ 21   “To facilitate confidence in the finality of arbitration awards

  and discourage piecemeal litigation, [Colorado’s arbitration statutes]

  strictly limit[] the role of the courts in reviewing awards, and a party

  challenging an award bears a heavy burden.” BFN-Greeley, LLC v.

  Adair Grp., Inc., 141 P.3d 937, 940 (Colo. App. 2006). “An

  arbitrator is the final judge of both fact and law,” id., and courts

  may not review the merits of an arbitration award if there are not

  statutory grounds to vacate, modify, or correct them, Levy v. Am.

  Family Mut. Ins. Co., 293 P.3d 40, 49 (Colo. App. 2011).




                                     7
¶ 22   Such statutory grounds are found in section 13-22-223(1)(d),

  C.R.S. 2018, which provides, as is pertinent to this case, that a

  court “shall vacate” an award “if the court finds that . . . [a]n

  arbitrator exceeded [her] powers.” An arbitrator does not “exceed

  [her] powers by rendering a decision that is contrary to the rules of

  law that would have been applied by a court, so long as there is no

  violation of an express term of the agreement to arbitrate.” Byerly

  v. Kirkpatrick Pettis Smith Polian, Inc., 996 P.2d 771, 774 (Colo. App.

  2000). In other words, “[i]t is not sufficient . . . to argue merely that

  the arbitrator committed an error of law on the merits.” Giraldi v.

  Morrell, 892 P.2d 422, 424 (Colo. App. 1994). “Rather, [a] plaintiff

  must establish that the arbitrator exceeded the powers granted in

  the agreement by refusing to apply or ignoring the legal standard

  agreed upon by the parties for resolution of the dispute.” Id. And

  an arbitrator has a great deal of flexibility in fashioning appropriate

  remedies. BFN-Greeley, LLC, 141 P.3d at 941.

                       IV. Scope of “Arising Under”

                              A. Introduction

¶ 23   Arbitration is a “favored method of dispute resolution” in

  Colorado. Lane v. Urgitus, 145 P.3d 672, 678 (Colo. 2006). “Our


                                      8
  constitution, our statutes, and our case law all support agreements

  to arbitrate disputes.” Id. But, like the federal courts, we do not

  force parties to arbitrate disputes when they have not clearly agreed

  to submit them to arbitration. Id. at 679.

¶ 24   An arbitration clause is a contract. Allen v. Pacheco, 71 P.3d

  375, 378 (Colo. 2003). We must therefore “interpret the [arbitration

  clause] in a manner that best effectuates the intent of the parties.”

  Id. We determine their intent by reading the language of the clause,

  looking to “the plain and ordinary meaning of its terms.” Id. We

  will enforce the clause as it is written unless it contains an

  ambiguity. Id.

¶ 25   “If ambiguities are found . . . we must afford the parties a

  presumption in favor of arbitration and resolve doubts about the

  scope of the arbitration clause in favor of arbitration.” Id. “More

  specifically, we must compel arbitration unless we can say ‘with

  positive assurance’ that the arbitration clause is not susceptible of

  any interpretation that encompasses the subject matter of the

  dispute.” Id. (quoting City & Cty. of Denver v. Dist. Court, 939 P.2d

  1353, 1364 (Colo. 1997)). A “‘broad or unrestricted’ arbitration

  clause makes the strong presumption favoring arbitration apply


                                     9
  with even greater force.” Id. (quoting City & Cty. of Denver, 939

  P.2d at 1364).

¶ 26   Courts should “look beyond the legal cause of action and

  consider the factual allegations upon which the claims are

  premised.” Smith v. Multi-Fin. Sec. Corp., 171 P.3d 1267, 1270

  (Colo. App. 2007) (citing City & Cty. of Denver, 939 P.2d at 1364).

            The factual allegations which form the basis of
            the claim asserted, rather than the legal cause
            of action pled, should guide the district court
            in making the determination as to whether a
            particular dispute falls within the reach of the
            [alternative dispute resolution] clause. Tort
            claims and claims other than breach of
            contract claims are not necessarily excluded
            from [alternative dispute resolution].

  City & Cty. of Denver, 939 P.2d at 1364.

¶ 27   Federal courts also have a “healthy regard for the . . . policy

  favoring arbitration.” Moses H. Cone Mem’l Hosp. v. Mercury Constr.

  Corp., 460 U.S. 1, 24-25 (1983). Federal cases interpreting or

  applying the Federal Arbitration Act help us to understand our

  Colorado arbitration statutes because the two statutory schemes

  “contain substantially similar language.” E-21 Eng’g, Inc. v. Steve

  Stock & Assocs., Inc., 252 P.3d 36, 39 (Colo. App. 2010).




                                    10
¶ 28   The Federal Arbitration Act “establishes that, as a matter of

  federal law, any doubts concerning the scope of arbitrable issues

  should be resolved in favor of arbitration,” including when “the

  problem at hand is the construction of the contract language

  itself . . . .” Moses H. Cone Mem’l Hosp., 460 U.S. at 24-25. Federal

  courts will not deny a party’s request to arbitrate an issue “unless it

  may be said with positive assurance that the arbitration clause is

  not susceptible of an interpretation that covers the asserted

  dispute.” United Steelworkers of Am. v. Warrior & Gulf Navigation

  Co., 363 U.S. 574, 582-83 (1960).

¶ 29   Answering the question whether a party has agreed to

  arbitrate an issue requires interpretation of the arbitration clause.

  “[A] party cannot be required to submit to arbitration any dispute

  which he has not agreed so to submit.” Id. at 582. Still, courts

  should “construe ambiguities concerning the scope of arbitrability

  in favor of arbitration.” Mastrobuono v. Shearson Lehman Hutton,

  Inc., 514 U.S. 52, 66 (1995).

                                  B. Analysis

¶ 30   To remind the reader, the arbitration clause in the contract in

  this case states that “[a]ny disputes arising under this [a]greement


                                      11
  will be resolved by binding arbitration . . . .” (Emphasis added.)

  Divisions of this court have considered this phrase before.

                             1. Colorado Cases

¶ 31   Discussing the general phrasing of arbitration clauses, a

  division of this court held that, “[w]hen an arbitration clause uses

  the phrase ‘arising out of’ or ‘relating to,’ it is broad in scope.”

  Smith, 171 P.3d at 1270. Relatedly, our supreme court noted that

  courts have interpreted the phrase “relating to” in arbitration

  clauses “as being broad rather than restrictive.” City & Cty. of

  Denver, 939 P.2d at 1366.

¶ 32   More apropos to the issue in this case, in R.P.T. of Aspen, Inc.

  v. Innovative Communications, Inc., 917 P.2d 340, 341-42 (Colo.

  App. 1996), the division characterized an arbitration clause reading

  “[a]ny dispute which arises under this [a]greement” as employing

  “broad language.” And BFN-Greeley, LLC, 141 P.3d at 940,

  described the substantially similar phrase of “arising out of” as

  “broad[].”

¶ 33   And, in Austin v. U S West, Inc., 926 P.2d 181, 183 (Colo. App.

  1996), the division relied on the federal district court’s analysis in

  Lee v. Grandcor Medical Systems, Inc., 702 F. Supp. 252, 256 (D.


                                      12
  Colo. 1988), to conclude that an “arising under” arbitration clause

  was “sufficiently broad to include claims for fraud in the

  inducement.” (In Lee, the district court decided that claims for

  fraudulent inducement and tortious interference with business

  relations “appear[ed]” to “arise under” the arbitration clause, adding

  that “doubtful” questions about the applicability of arbitration

  clauses should be resolved in favor of arbitration. Id. (quoting

  Stateside Mach. Co. v. Alperin, 591 F.2d 234, 240 (3d Cir. 1979)).)

  The division also recognized that “[o]ther courts have construed

  similar clauses equally as broadly.” Austin, 926 P.2d at 183.

¶ 34   It turns out that the phrase “arising under” in arbitration

  clauses has prompted a debate among federal circuit courts about

  its scope. Considering this debate is helpful because “Colorado has

  followed federal precedent to determine the scope of an arbitration

  clause . . . .” City & Cty. of Denver, 939 P.2d at 1363-64. So the

  next step of our analysis is to explain the parameters of the federal

  debate.

                             2. Federal Cases

¶ 35   One side of the debate is represented primarily by cases from

  the Second, Ninth, and Federal Circuits. A prominent decision


                                    13
  interpreting this phrase is Mediterranean Enterprises, Inc. v.

  Ssangyong Corp., 708 F.2d 1458 (9th Cir. 1983). Mediterranean

  Enterprises compared the meanings of two similar, but clearly

  different, phrases.

¶ 36   The phrase “arising out of or relating to” a contract created a

  “broad arbitration clause.” Id. at 1464 (quoting Michele Amoruso E

  Figli v. Fisheries Dev. Corp., 499 F. Supp. 1074, 1080 (S.D.N.Y.

  1980)). This is the standard language recommended by the

  American Arbitration Association. Id.

¶ 37   Prefiguring Digital’s contention in this case, one of the parties

  in Mediterranean Enterprises argued that “arising under” was

  narrower than “arising out of or relating to.” Id. at 1463. The party

  added that “arising under” meant that an arbitration proceeding

  would apply only to disputes “arising under the contract itself” and

  not to disputes that were “matters or claims independent of the

  contract or collateral” to it. Id.

¶ 38   The Ninth Circuit agreed, concluding that “‘arising under’ has

  been called ‘relatively narrow as arbitration clauses go.’” Id. at

  1464 (quoting Sinva, Inc. v. Merrill, Lynch, Pierce, Fenner & Smith,

  Inc., 253 F. Supp. 359, 364 (S.D.N.Y. 1966)). It is “narrower in


                                       14
  scope” than “arising out of or relating to.” Id.; see also Cape

  Flattery Ltd. v. Titan Mar., LLC, 647 F.3d 914, 922-23 (9th Cir.

  2011)(applying Mediterranean).

¶ 39   The court in Evans v. Building Materials Corp. of America, 858

  F.3d 1377, 1381 (Fed. Cir. 2017), agreed with this interpretation of

  “arising under.” It observed that “‘arising under’ . . . is narrower in

  scope than language, such as ‘relating to,’ under which a claim may

  be arbitrable if it has a ‘significant relationship’ to the contract,

  regardless of whether it arises under the contract itself.” Id.

¶ 40   According to this side of the debate, the phrase “relating to”

  works to expand the scope of arbitration clauses. Prima Paint Corp.

  v. Flood & Conklin Manufacturing Co., 388 U.S. 395 (1967),

  illustrates the expansive properties of “relating to.” The United

  States Supreme Court pointed out that the phrase “arising out

  of” — which has been treated similarly narrowly to the phrase

  “arising under” when it appears by itself, see Tracer Research Corp.

  v. Nat’l Envtl. Servs. Co., 42 F.3d 1292, 1295 (9th Cir. 1994) — has

  been viewed broadly when combined with “relating to,” see Prima

  Paint Corp., 388 U.S. at 398. Indeed, for this side of the debate,




                                      15
  adding the phrase “relating to” to “arising under” turns a narrow

  arbitration clause into a broad one.

¶ 41   We note that the Second Circuit was originally firmly on this

  side of the debate, issuing the first circuit court opinion to decide

  that “arising under” was a narrow phrase. In re Kinoshita & Co.,

  287 F.2d 951, 953 (2d Cir. 1961). (Mediterranean Enterprises relied

  heavily on Kinoshita. Mediterranean Enters., 708 F.2d at 1464.)

¶ 42   But the Second Circuit’s position has changed quite a bit

  because the United States Supreme Court subsequently

  emphasized the strong federal policy that favors arbitration. As a

  result, the Second Circuit recognized that Kinoshita was

  “inconsisten[t] with federal policy favoring arbitration.” S.A.

  Mineracao Da Trindade-Samitri v. Utah Int’l, Inc., 745 F.2d 190, 194

  (2d Cir. 1984). So the circuit court limited Kinoshita to its facts.

  See Louis Dreyfus Negoce S.A. v. Blystad Shipping & Trading, Inc.,

  252 F.3d 218, 225 (2d Cir. 2001).

¶ 43   The law in the Second Circuit today is that, “to ensure that an

  arbitration clause is narrowly interpreted[,] contracting parties

  must use [‘arising under’] or its equivalent, although the better

  course, obviously, would be to specify exactly which claims are and


                                    16
  are not arbitrable.” S.A. Mineracao Da Trindade-Samitri, 745 F.2d

  at 194. The Second Circuit has not overruled Kinoshita because of

  its concern that “contracting parties may have (in theory at least)

  relied on that case in their formulation of an arbitration provision.”

  Id.

¶ 44    The other side of the debate is represented by decisions from

  the First, Third, Fifth, Sixth, Seventh, Eighth, and Eleventh

  circuits.

¶ 45    The First Circuit agreed “with the majority of the federal

  circuits,” and it concluded that “the analysis in Kinoshita is not

  consistent with the strong federal pro-arbitration policy set forth by”

  the federal arbitration statute. Dialysis Access Ctr., LLC v. RMS

  Lifeline, Inc., 638 F.3d 367, 381 (1st Cir. 2011)(addressing an

  arbitration clause using the phrase “arising under”).

¶ 46    The Third Circuit observed that Kinoshita and its progeny have

  been “discredited both in the Second Circuit and in other

  jurisdictions.” Battaglia v. McKendry, 233 F.3d 720, 725 (3d Cir.

  2000). The court then concluded that the phrases “arising under”

  and “arising out of” “are normally given broad construction,” when

  they appear in arbitration clauses. Id. at 727.


                                    17
¶ 47   The Fifth Circuit decided that, “[b]ecause the arbitration

  clause in [this] case differs from that in Kinoshita and recognizing

  that Kinoshita is inconsistent with federal policy favoring

  arbitration,” the district court had erred when it relied on Kinoshita

  to grant a request to stay arbitration. Mar-Len of La., Inc. v.

  Parsons-Gilbane, 773 F.2d 633, 637 (5th Cir. 1985).

¶ 48   The Sixth Circuit said that the Second Circuit “has recognized

  that the authority of Kinoshita . . . is highly questionable even in”

  that circuit. Highlands Wellmont Health Network, Inc. v. John Deere

  Health Plan, Inc., 350 F.3d 568, 577 (6th Cir. 2003). The court

  added that “[o]ther circuits have declined to follow Kinoshita

  because of the strong federal policy in favor of arbitration.” Id. It

  then concluded that the phrase “arises out of” in an arbitration

  clause was “extremely broad.” Id. (quoting Cincinnati Gas & Elec.

  Co. v. Benjamin F. Shaw Co., 706 F.2d 155, 160 (6th Cir. 1983)).

¶ 49   The Seventh Circuit distinguished Kinoshita, concluding that

  the phrase “arising out of” “reache[d] all disputes having their origin

  or genesis in the contract, whether or not they implicate

  interpretation or performance of the contract per se.” Sweet

  Dreams Unlimited, Inc. v. Dial-A-Mattress Int’l, Ltd., 1 F.3d 639, 642


                                    18
  (7th Cir. 1993). In reaching this result, the court saw “no need to

  disagree with the Second and Ninth Circuits that ‘arising under’

  may denote a dispute somehow limited to the interpretation and

  performance of the contract itself.” Id.

¶ 50   The court then suggested a better approach than relying on

  what are arguably unclear distinctions among various phrases:

             [The] contracting parties control their own fate
             when it comes to deciding which disputes to
             consign to arbitration. On the one hand, they
             may delineate precisely those claims that are
             subject to arbitration or, on the other, they
             may employ general — even vague — language
             in their arbitration provisions. They may also
             combine these techniques by using general
             language to authorize arbitration together with
             specific language to identify the types of
             disputes that are not subject to arbitration,
             thereby limiting the reach of phrases such as
             “arising out of,” “arising under” or “arising out
             of or relating to.”

  Id. at 643. Because the parties had not “taken any steps to narrow

  the reach” of the contract’s arbitration clause, and, “in the light of

  the heavy presumption in favor of arbitration,” the Seventh Circuit

  concluded that a claim in the complaint was arbitrable. Id.; accord

  Cty. of Hawaii v. UNIDEV, LLC, 301 P.3d 588, 606 (Haw. 2013)(“Had

  the parties intended to restrict arbitration . . . it would have been a



                                     19
  simple matter to draft unambiguous language to effectuate that

  intent . . . . The failure of the parties to unambiguously limit the

  arbitrability of disputes suggests that they intended a longer reach

  for the arbitration clauses [using ‘arising under’].”).

¶ 51    The Eighth Circuit decided that the phrase “arising under” did

  not bar arbitration of certain claims because the arbitration law did

  not include any “limiting language” and it was “generally broad in

  scope.” PRM Energy Sys., Inc. v. Primenergy, L.L.C., 592 F.3d 830,

  837 (8th Cir. 2010); accord Simitar Entm’t, Inc. v. Silva Entm’t, Inc.,

  44 F. Supp. 2d 986, 996 (D. Minn. 1999)(“[W]e believe than an

  interpretation of ‘arising under,’ or ‘arising out of,’ should be as

  broad as that applied to ‘arising out of or relating to,’ and we

  respectfully reject . . . Kinoshita . . . .”).

¶ 52    The Eleventh Circuit rejected Kinoshita as “not being in accord

  with present day notions of arbitration as a viable alternative

  dispute resolution procedure.” Gregory v. Electro-Mech. Corp., 83

  F.3d 382, 385 (11th Cir. 1996). The phrase “arising hereunder,”

  which is a cheek-by-jowl relative of “arising under,” was therefore

  broadly construed. Id. at 383.




                                         20
¶ 53   The Tenth Circuit has not decided where it stands in this

  debate. At least one United States magistrate judge, however,

  believes that “the Tenth Circuit would follow the majority of the

  federal circuits and give the phrase ‘arising under’ a broad

  construction based on the strong federal policy in favor of

  arbitration.” Cook v. PenSa, Civ. A. No. 13-cv-03282-RM-KMT,

  2014 WL 3809409, at *14 (D. Colo. Aug. 1, 2014).

                             3. Granite Rock

¶ 54   Digital suggests that the United States Supreme Court

  signaled its position in this debate in Granite Rock Co. v.

  International Brotherhood of Teamsters, 561 U.S. 287 (2010).

  Granite Rock involved an arbitration clause that included the

  phrase “arising under.” Id. at 304.

¶ 55   As is pertinent to our analysis, the issue in Granite Rock was

  “whether a collective-bargaining agreement . . . containing a

  no-strike provision was validly formed during the strike period.” Id.

  at 292. “For purposes of determining arbitrability, when a contract

  is formed can be as critical as whether it was formed.” Id. at

  303-04. That distinction was key in Granite Rock because the date

  when the agreement “was formed . . . determines whether the


                                    21
  agreement’s provisions were enforceable during the period relevant

  to the . . . dispute.” Id. at 304; see also Buckeye Check Cashing,

  Inc. v. Cardegna, 546 U.S. 440, 444 n.1 (2006)(recognizing the

  difference between questions concerning “the contract’s validity”

  and questions concerning “whether any agreement . . . was ever

  concluded”).

¶ 56   Turning to the “arising under” language, the Supreme Court

  held that the collective-bargaining agreement’s arbitration provision

  was not “fairly read to include a dispute about when the

  [agreement] came into existence.” Granite Rock, 561 U.S. at 308.

  The Court also characterized “arising under” as having a “relatively

  narrow . . . scope.” Id. at 307. But the basis of comparison was

  language in an arbitration clause found in Drake Bakeries, Inc. v.

  Local 50, American Bakery & Confectionery Workers International,

  370 U.S. 254 (1962). This clause read that the parties would

  “promptly attempt to adjust all complaints, disputes or

  grievances . . . involving questions of interpretation or application of

  any clause or matter covered by this contract or any act or conduct

  or relation between the parties . . . directly or indirectly.” Id. at

  256-57.


                                      22
¶ 57   We conclude, for the following reasons, that Granite Rock does

  not send the signal that Digital claims it sends.

¶ 58   First, Granite Rock’s statement that the phrase “arising under”

  was “relatively narrow,” 561 U.S. at 307, was based on a

  comparison with the arbitration clause in Drake Bakeries that went

  well beyond the terms of the contract. The clause in Drake Bakeries

  included “any act or conduct or relation between the

  parties . . . directly or indirectly.” 370 U.S. at 257. We must

  therefore consider the Supreme Court’s observation about the

  relative narrowness of “arising under” in the context of what was a

  very broad arbitration clause in Drake Bakeries. And the

  arbitration clause in this case is not as broad as the one in Drake

  Bakeries because it does not refer to Digital’s or Media’s acts,

  conduct, or relations.

¶ 59   Second, Granite Rock did not discuss the debate at the core of

  this case, even though the debate had been vigorously joined well

  before Granite Rock was decided. It does not analyze, or even refer

  to, Kinoshita, Mediterranean Enterprises, Tracer, or to any of the

  cases that we have cited above from the other side of the debate.




                                    23
  And, critically, it does not conclude that “arising under” is narrow

  when compared to phrases such as “relating to.”

¶ 60   Third, Granite Rock is distinguishable because the issue in

  that case concerned whether the arbitration clause was enforceable

  at a particular time. Digital did not raise that issue in this case.

  See Dialysis Access Ctr., LLC, 638 F.3d at 382 (Granite Rock’s

  holding, “that a question concerning the very existence of the

  [collective-bargaining agreement] cannot fairly be said to ‘arise

  under’ the [collective-bargaining agreement,] does not counsel a

  result different from the one at which we here arrive.”).

                               4. Conclusion

¶ 61   We conclude, for the following reasons, that the phrase

  “arising under” was sufficiently broad to include the duty-of-loyalty

  counterclaim.

¶ 62   First, one side of the debate has a clear majority of adherents.

  Only three circuits hold that the phrase “arising under” is narrow,

  although one of them — the Second Circuit — has retreated

  significantly from that holding. Seven circuits interpret the phrase

  broadly, and five of those circuits reject the foundation for the

  minority view — Kinoshita — as inconsistent with the federal policy


                                    24
  favoring arbitration. Sheer numbers are not necessarily

  determinative, of course, but the majority position is also of more

  recent vintage. We also think that it is more persuasive because it

  keeps faith with the Colorado and the federal policies favoring

  arbitration.

¶ 63   Second, the Second Circuit’s obvious reluctance to embrace

  Kinoshita enthusiastically is telling. Kinoshita was the birth of the

  minority view. But the court that birthed it has had second

  thoughts about its offspring. The Second Circuit has now

           decided that Kinoshita was “inconsisten[t] with federal

             policy favoring arbitration,” S.A. Mineracao Da

             Trindade-Samitri, 745 F.2d at 194;

           limited Kinoshita to its facts, Louis Dreyfus Negoce S.A.,

             252 F.3d at 225;

           counseled contracting parties that, instead of relying on

             the phrase “[arising under] or its equivalent, . . . the

             better course, obviously, would be to specify exactly

             which claims are and are not arbitrable,” S.A. Mineracao

             Da Trindade-Samitri, 745 F.2d at 194; accord Sweet




                                     25
            Dreams Unlimited, Inc., 1 F.3d at 643; Cty. of Hawaii, 301

            P.3d at 606; and

           has not overruled Kinoshita only because of an apparent

            concern that “contracting parties may have (in theory at

            least) relied on that case in their formulation of an

            arbitration provision,” S.A. Mineracao Da

            Trindade-Samitri, 745 F.2d at 194. (We note that the

            Ninth Circuit expressed a similar concern. See Cape

            Flattery Ltd., 647 F.3d at 923.)

¶ 64   Third, Colorado is not in the Second or the Ninth Circuit. As a

  result, we do not share the concern of those circuits that

  contracting parties in this state would have relied on the circuits’

  view of the phrase “arising under” when drafting arbitration

  clauses. See Cape Flattery Ltd., 647 F.3d at 923; S.A. Mineracao Da

  Trindade-Samitri, 745 F.2d at 194. Rather, we think that the

  clearly preferable course to relying on the phrase “arising under”

  would be to specify which claims are arbitrable and which claims

  are not. See S.A. Mineracao Da Trindade-Samitri, 745 F.2d at 194;

  accord Sweet Dreams Unlimited, Inc., 1 F.3d at 643; Cty. of Hawaii,

  301 P.3d at 606.


                                    26
¶ 65   Fourth, Colorado law lines up with the majority federal view.

  Colorado applies a presumption in favor of arbitration unless a

  court is “positive[ly] assur[ed]” that an arbitration clause does not

  “encompass[] the subject matter of the dispute.” City & Cty. of

  Denver, 939 P.2d at 1363-64 (quoting Jefferson Cty. Sch. Dist. No.

  R-1 v. Shorey, 826 P.2d 830, 840 (Colo. 1992)). We must resolve

  any doubts about the scope of an arbitration clause in favor of

  arbitration. Id. at 364. And a “‘broad or unrestricted’ arbitration

  clause makes the strong presumption favoring arbitration apply

  with even greater force.” Allen, 71 P.3d at 378.

¶ 66   Austin is the only Colorado decision that we could find that

  comments on the debate. In that case, the division used a “but see”

  citation to refer to Mediterranean Enterprises, which indicated that

  Mediterranean conflicted with or contradicted the division’s view

  that “arising under” was broad in scope. 926 P.3d at 183; see

  Black’s Law Dictionary 1563 (10th ed. 2014)(defining “sed vide,” or

  “but see” as “direct[ing] the reader’s attention to an authority or a

  statement that conflicts with or contradicts the statement or

  principle just given”).




                                    27
¶ 67   We have not unearthed another Colorado case, and the parties

  did not cite any, that referred to any of the other principal cases in

  the debate, including Kinoshita, for the proposition that the phrase

  “arising under” in an arbitration clause is either narrow or broad.

  But we know that, without commenting on the debate, R.P.T. of

  Aspen, Inc., stated that an arbitration clause including the phrase

  “arises under” contained “broad language,” 917 P.2d at 342, and

  BFN-Greeley, LLC, described the substantially similar phrase of

  “arising out of” as broad, 141 P.3d at 940.

¶ 68   Although we are not bound by Austin, R.P.T. of Aspen, Inc.,

  and BFN-Greeley, LLC, see People v. Thomas, 195 P.3d 1162, 1164

  (Colo. App. 2008)(one division of the court of appeals is not bound

  by the decision of another division), we are persuaded by them in

  light of the preceding analysis. This means to us that the majority

  position is most consistent with Colorado’s law.

¶ 69   We further conclude that the arbitration clause in this case

  was unrestricted: it was not accompanied by any qualifying

  language, and it did not include any language expressly excluding

  particular types of claims from its scope. As a result, (1) we

  recognize that the “strong presumption favoring arbitration appl[ies]


                                    28
  with even greater force” in this case, Allen, 71 P.3d at 378; (2) we

  cannot be “positive[ly] assur[ed]” that the clause did not

  “encompass[] the subject matter of the dispute,” City & Cty. of

  Denver, 939 P.2d at 1363-64 (quoting Jefferson Cty. Sch. Dist. No.

  R-1, 826 P.2d at 840); and (3) we must therefore resolve any doubts

  about whether the arbitrator’s ruling on Media’s counterclaim was

  within the scope of the arbitration clause in favor of arbitration, id.

¶ 70   Having now clarified the scope of the arbitration clause, we

  next consider the arbitrator’s analysis of Media’s counterclaim.

                            V. Duty of Loyalty

¶ 71   Relying on the conclusions that we have reached up to this

  point and the ones that we make below, we reject Digital’s assertion

  that the arbitrator’s ruling was void because she lacked jurisdiction

  to decide a claim that the parties had not presented to her. See

  State Farm Mut. Auto. Ins. Co. v. Stein, 886 P.2d 326, 328 (Colo.

  App. 1994)(“If an arbitrator makes an award which is outside the

  scope of the issues submitted, that portion of the award which goes

  beyond the matters submitted to it for resolution is void for lack of

  jurisdiction.”).




                                     29
¶ 72   As an initial matter, Media suggests that the arbitrator

  actually ruled on the counterclaim that Digital had breached the

  implied covenant of good faith and fair dealing. It is clear from the

  arbitration order that she did not intend to do so. She wrote

  instead that

            [t]he assertion that Digital . . . is liable to
            Media . . . for disparaging Media . . . to
            Transcendent and effectively stealing
            Transcendent as a client is not truly a claim
            for a breach of the implied covenant of good
            faith and fair dealing because it is not
            grounded in contract terms.

¶ 73   But even though we recognize that the arbitrator ruled on a

  facially different counterclaim — breach of the duty of loyalty — we

  nonetheless conclude, for the following reasons, that the different

  claim was within the issues that Digital and Media had agreed to

  submit and, indeed, submitted to the arbitrator. See id.

¶ 74   We must “look beyond the legal cause of action” in this case —

  the breach-of-the-implied-warranty-of-good-faith-and-fair-dealing

  counterclaim — and consider the facts on which it was based.

  Smith, 171 P.3d at 1270 (citing City & Cty. of Denver, 939 P.2d at

  1364). The factual allegations that formed the basis of that

  counterclaim, rather than the legal label that Media placed on it,


                                    30
  guides us in our analysis of the issue whether a substituted

  breach-of-the-duty-of-loyalty counterclaim fell within the scope of

  the arbitration clause. Id. And, based on that factual analysis,

  claims beyond breach of contract, such as tort claims, “are not

  necessarily excluded” from arbitration. Id.

¶ 75   The factual allegations in the breach-of-the-implied-duty-of-

  good-faith-and-fair-dealing counterclaim were that Digital had

  disparaged Media to Transcendent and that Digital had cooperated

  with Transcendent to pry Media loose from its contract with

  Transcendent. These allegations could, for the following reasons,

  form the basis for a breach-of-the-duty-of-loyalty claim if Digital

  was Media’s agent.

¶ 76   “An agent is one who acts for or in the place of another by

  authority from him, or one who is entrusted with the business of

  another.” Governor’s Ranch Prof’l Ctr., Ltd. v. Mercy of Colo., Inc.,

  793 P.2d 648, 651 (Colo. App. 1990). A claim of breach of the duty

  of loyalty may allege, among other things, that an agent breached “a

  duty to his principal to act solely for the benefit of the principal in

  all matters connected with his agency.” Restatement (Second) of

  Agency § 387 (Am. Law Inst. 1958). “[A]n agent is subject to a duty


                                     31
  not to compete with the principal concerning the subject matter of

  his agency.” Id. § 393. An agent may breach the duty of loyalty to

  a principal by acting “in competition with the principal” and by

  acquiring “interests adverse to” the principal. Id. § 387 cmt. a; see

  also Jet Courier Serv., Inc. v. Mulei, 771 P.2d 486, 494-98 (Colo.

  1989)(observing that an employee’s solicitation of coworkers to start

  a new business that would compete with the employer was a breach

  of the duty of loyalty to the employer).

¶ 77   “An agent who, without the acquiescence of his principal, acts

  for his own benefit . . . in a transaction is not entitled to

  compensation which otherwise would be due him because of the

  transaction.” Restatement (Second) of Agency § 469 cmt. a (Am.

  Law Inst. 1958). And “[a] serious violation of a duty of loyalty . . . is

  a willful and deliberate breach of the contract of service by the

  agent.” Id. at cmt. b (emphasis added).

¶ 78   But Digital contends that it did not owe Media a duty of loyalty

  because it was an independent contractor, and independent

  contractors, since they are not agents, do not owe a duty of loyalty.

  An independent contractor “is one who engages to perform services

  for another, according to his own methods and manner, free from


                                      32
  the direction and control of the employer in all matters relating to

  the performance of the work, and accountable to him only for the

  result to be accomplished.” Cont’l Bus Sys., Inc. v. NLRB, 325 F.2d

  267, 271 (10th Cir. 1963).

¶ 79   An independent contractor “may or may not be an agent.”

  Restatement (Second) of Agency § 2(3) (Am. Law Inst. 1958). An

  independent contractor is not an agent if “he is not a fiduciary, has

  no power to make the one employing him a party to a transaction,

  and is subject to no control over his conduct.” Id. at cmt. b.

¶ 80   The arbitrator found that the evidence presented at the

  arbitration hearing “established that, although Digital . . . exercised

  substantial autonomy in the manner in which it performed its work

  under the [c]ontract, Media . . . controlled and had the right to

  control Digital . . . in its work and in its direct communications with

  Transcendent.” The arbitrator decided that Digital “was acting as

  Media[’s] . . . agent” “in its communications with Transcendent on

  the project.” Digital therefore “owed a duty of loyalty to

  Media . . . in the manner in which it conducted those

  communications.”




                                    33
¶ 81   The question whether Digital was an agent, an independent

  contractor, or both was one of fact, see Varsity Tutors LLC v. Indus.

  Claim Appeals Office, 2017 COA 104, ¶ 16, which fell within the

  arbitrator’s authority as the fact finder in the arbitration hearing,

  see BFN-Greeley, LLC, 141 P.3d at 940. The record, however, does

  not contain a transcript of the arbitration hearing, so we do not

  know what evidence the arbitrator considered when she decided

  that Digital was Media’s agent. In the absence of that transcript,

  we must presume that the evidence presented at the hearing would

  support the arbitrator’s decision. See Hock v. N.Y. Life Ins. Co., 876

  P.2d 1242, 1252 (Colo. 1994)(“An appellate court must presume

  that the trial court’s findings and conclusions are supported by the

  evidence when the appellant has failed to provide a complete

  record.”); In re Marriage of McSoud, 131 P.3d 1208, 1223 (Colo. App.

  2006)(“[A]n appellate court presumes that material portions omitted

  from the record would support the judgment of the trial court.”).

¶ 82   We do not know whether the arbitrator made a legal mistake

  when applying the law of agency in this case. But what if she did?

  It would not affect the result that we reach. Giraldi, 892 P.2d at

  424 (“It is not sufficient . . . to argue merely that the arbitrator


                                     34
  committed an error of law on the merits.”). Instead, our review, like

  the district court’s, is limited to deciding whether Digital has

  “establish[ed] that the arbitrator exceeded the powers granted in the

  agreement by refusing to apply or ignoring the legal standard

  agreed upon by the parties for resolution of the dispute.” Id.; see

  also Container Tech. Corp. v. J. Gadsden Pty., Ltd., 781 P.2d 119,

  121 (Colo. App. 1989)(“[A]n arbitration award is not open to review

  on the merits,” and “the merits of the award include the arbitrators’

  interpretation of the contract.”).

¶ 83   (We note that, at one point, “manifest disregard of the law” was

  “a judicially created reason” for vacating arbitration awards under

  the Federal Arbitration Act. Barnett v. Elite Prop. of Amer., Inc., 252

  P.3d 14, 20 (Colo. App. 2010). But the “continuing viability” of that

  nonstatutory reason is now unclear under federal law. Id. at 21.

  And a division of this court held that manifest disregard of the law

  is not a ground for vacating an arbitration award under Colorado’s

  arbitration statutes. Coors Brewing Co. v. Cabo, 114 P.3d 60, 63-66

  (Colo. App. 2004).)

¶ 84   We therefore conclude that the arbitrator in this case did not

  exceed her powers because the substituted breach-of-the-duty-of-


                                       35
  loyalty counterclaim “arose under” the contract between Digital and

  Media. See Restatement (Second) of Agency § 469 cmt. b (Am. Law

  Inst. 1958)(“A serious violation of a duty of loyalty . . . is a willful

  and deliberate breach of the contract of service by the agent . . . .”).

¶ 85   Digital asserts that it did not have notice that the arbitrator

  was going to recast the breach-of-the-duty-of-good-faith-and-fair-

  dealing counterclaim as a breach-of-the-duty-of-loyalty

  counterclaim. Digital adds that the breach-of-the-duty-of-loyalty

  counterclaim was “never submitted or tried,” so Digital “had no

  opportunity to offer evidence or provide legal argument for why it

  did not owe or breach any such duty . . . .” As a result, Digital

  finishes, it was prejudiced “in many ways.” We disagree.

¶ 86   First, the language of the breach-of-the-duty-of-good-faith-

  and-fair-dealing counterclaim alleged that Digital had “disclos[ed]

  confidential information,” “directly solicit[ed]” Media’s client, and

  “disparage[d]” Media to its client. This language obviously

  incorporated concepts of disloyalty.

¶ 87   Second, Media’s other counterclaims provided Digital with

  notice that Media intended to prove that Digital had been disloyal.

  A counterclaim based on breach of contract alleged that Digital had


                                      36
  disclosed confidential information in violation of a clause in the

  contract and solicited business from Transcendent in violation of a

  different contractual clause. A counterclaim based on intentional

  interference with contractual relations alleged that Digital had

  induced Transcendent to breach its contract with Media or had

  made it virtually impossible for Transcendent to perform its

  obligations under the contract. And a counterclaim based on

  misappropriation of trade secrets alleged that Digital had

  improperly taken Media’s intellectual property.

¶ 88   Last, contrary to Digital’s assertion, we do not know whether

  Digital expressly or impliedly consented to the arbitrator recasting

  the breach-of-the-duty-of-good-faith-and-fair-dealing counterclaim

  as a duty-of-loyalty counterclaim because we do not have a

  transcript of the arbitration hearing. See C.R.C.P. 15(b) (“When

  issues not raised by the pleadings are tried by express or implied

  consent of the parties, they shall be treated in all respects as if they

  had been raised in the pleadings.”); CB Richard Ellis, Inc. v. CLGP,

  LLC, 251 P.3d 523, 528-29 (Colo. App. 2010)(“Despite any defect in

  the pleadings, an issue is deemed properly before the court where it




                                     37
  has been tried before the court without timely objection or

  motion.”).

¶ 89   We know from the arbitrator’s award that the evidentiary part

  of the hearing lasted two days, two witnesses testified, the

  arbitrator admitted about fifty-five exhibits, and the parties gave

  their closing arguments over the telephone. But we do not know

  what anyone said during the hearing. As a result, we must, as we

  have previously concluded, presume that the transcript would

  support the arbitrator’s award. See Hock, 876 P.2d at 1252; In re

  Marriage of McSoud, 131 P.3d at 1223.

                            VI. Attorney Fees

¶ 90   Digital submits that the arbitrator exceeded her authority

  when she concluded that, because neither party had prevailed,

  neither party was entitled to attorney fees. In support of this

  assertion, Digital points to the holding in Magenis, 187 P.3d at

  1225.

¶ 91   The division in Magenis concluded that the language of the

  parties’ arbitration clause did not give the arbitrator discretion to

  decide who was entitled to fees. The language in this case is

  similar: “In any action brought to enforce any provision of this


                                     38
  Agreement, the losing party shall pay the prevailing party’s

  reasonable attorney fees . . . .”

¶ 92     The arbitrator in Magenis, though, resolved all disputes in one

  party’s favor. Id. at 1223. So, in that case, there was a clear

  prevailing party. In this case, by contrast, there was no clear

  prevailing party since Digital prevailed on its breach-of-contract

  claim and Media prevailed on a counterclaim. The arbitration

  clause’s mandatory language therefore did not apply in the same

  way.

¶ 93     Digital contends that the arbitration clause in this case

  required the arbitrator to award attorney fees to the prevailing party

  in an action to enforce a contract provision. We agree. But Digital

  also contends that it was the only party that prevailed in an action

  to enforce a provision of the contract. We disagree with that

  contention.

¶ 94     We have already “look[ed] beyond the legal cause of action” to

  consider the facts on which the counterclaim was based. Smith,

  171 P.3d at 1270 (citing City & Cty. of Denver, 939 P.2d at 1364).

  Although, by doing so, we considered the concepts of a breach-of-

  the-duty-of-loyalty counterclaim, they were nonetheless rooted in


                                      39
  the facts that were pled in the breach-of-the-duty-of-good-faith-and-

  fair-dealing counterclaim, which, in turn, concerned a breach of

  contract claim. The arbitrator’s award to Media on the breach-of-

  the-duty-of-loyalty counterclaim therefore meant that Media had

  prevailed in an action to enforce a provision of the contract. See

  Restatement (Second) of Agency § 469 cmt. b (Am. Law Inst.

  1958)(“A serious violation of a duty of loyalty . . . is a willful and

  deliberate breach of the contract of service by the agent . . . .”).

¶ 95   So, because there was no clearly prevailing party, the

  arbitrator was not required to award Digital its attorney fees.

  Likewise, since the result of this appeal maintains the status quo

  and there is still no prevailing party, we decline Digital’s request for

  appellate attorney fees.

¶ 96   Based on our preceding conclusions, our penultimate

  conclusion is that the arbitrator did not “exceed [her] powers.”

  § 13-22-223(1)(d). Our ultimate conclusion is that the district court

  did not err when it confirmed the arbitrator’s award because there

  were no statutory grounds to vacate, modify, or correct it. See

  Levy, 293 P.3d at 49.

¶ 97   The district court’s judgment is therefore affirmed.


                                      40
JUDGE TAUBMAN and JUDGE WELLING concur.




                     41
