14-578-cv
Scott v. JPMorgan Chase & Co.


                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.

      At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 17th day of March, two thousand fifteen.

PRESENT: REENA RAGGI,
                 RICHARD C. WESLEY,
                 GERARD E. LYNCH,
                                 Circuit Judges.
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LAURIE SCOTT, individually and on behalf of all others
similarly situated,
                                 Plaintiff-Appellant,

                                v.                                          No. 14-578-cv

JPMORGAN CHASE & CO., JPMORGAN CHASE
BANK, N.A., CHASE BANK USA, N.A.,
                                 Defendants-Appellees.
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APPEARING FOR APPELLANT:                          JOSEPH I. MARCHESE (Scott A. Bursor, Neal
                                                  J. Deckant, on the brief), Bursor & Fisher, P.A.,
                                                  New York, New York.

APPEARING FOR APPELLEES:                         NOAH A. LEVINE (Alan E. Schoenfeld,
                                                 Wilmer Cutler Pickering Hale and Dorr LLP,
                                                 New York, New York; Matthew P. Previn,
                                                 Caroline K. Eisner, BuckleySandler LLP, New
                                                 York, New York, on the brief), Wilmer Cutler

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                                          Pickering Hale and Dorr LLP, New York, New
                                          York.

       Appeal from a judgment of the United States District Court for the Southern District

of New York (Katherine Polk Failla, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on January 31, 2014, is AFFIRMED.

       Plaintiff Laurie Scott filed this putative class action against defendant JPMorgan

Chase Bank, N.A. (“JPMCB”) for unilaterally enrolling her and other customers into its

overdraft protection service, which conduct she asserts violates the Electronic Fund

Transfer Act, 15 U.S.C. §§ 1693 et seq.; the Racketeer Influenced and Corrupt

Organizations Act, 18 U.S.C. §§ 1961 et seq.; and California state statutory and common

law. Scott also named as defendants JPMorgan Chase & Co. (“JPMC”), JPMCB’s parent

holding company; and Chase Bank USA, N.A. (“CBUSA”), a nationally chartered bank

that issues credit cards. Scott now appeals from the dismissal without prejudice of her

complaint, which the district court ordered after granting defendants’ motion to stay

proceedings in favor of arbitration. See Scott v. JPMorgan Chase & Co., No. 13 Civ. 646

(KPF), 2014 WL 338753 (S.D.N.Y. Jan. 30, 2014); see also 9 U.S.C. § 16(a)(3); Salim

Oleochemicals v. M/V Shropshire, 278 F.3d 90, 93 (2d Cir. 2002).1 Scott argues that the


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   Although the district court was initially inclined only to stay the action in light of our
expressed concern in Salim that dismissals followed by appellate review might
unnecessarily delay the arbitral process, see 278 F.3d at 93, it was upon Scott’s specific
request for dismissal of all claims against each defendant that successfully argued in favor
of a stay that the court entered the challenged judgment.
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district court erred by refusing to give effect to a settlement agreement in another case,

which she alleges prevents defendants JPMC and CBUSA from requiring arbitration of her

claims here. We assume the parties’ familiarity with the facts and the record of prior

proceedings, which we reference only as necessary to explain our decision to affirm. No

lengthy explanation is needed, however, because while our standard of review is de novo,

see McMahan Sec. Co. L.P. v. Forum Capital Markets, L.P., 35 F.3d 82, 86 (2d Cir. 1994),

upon such review, we conclude that we can affirm largely for the reasons stated by the

district court in its thorough and carefully reasoned opinion.

       1.     Motion for Stay Pending Arbitration

       The Federal Arbitration Act, 9 U.S.C. §§ 1 et seq., “establishes a national policy

favoring arbitration when the parties contract for that mode of dispute resolution.”

Preston v. Ferrer, 552 U.S. 346, 349 (2008). In deciding whether the parties have so

contracted, a court must consider (1) whether they “have entered into a valid agreement to

arbitrate, and, if so, (2) whether the dispute at issue comes within the scope of the

arbitration agreement.” Ameriprise Fin. Servs., Inc. v. Beland (In re Am. Express Fin.

Advisors Sec. Litig.), 672 F.3d 113, 128 (2d Cir. 2011).

       Here, Scott does not dispute that in her deposit account agreement with JPMCB, she

agreed that “any dispute relating in any way to [her] account or transactions [would] be

resolved by binding arbitration,” J.A. 175, whether involving JPMCB, its affiliates, or a

third party, see id. at 176 (“Arbitration applies whenever there is a Claim between you and

us. If a third party is also involved in a Claim between you and us, then the Claim will be

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decided with respect to the third party in arbitration as well, and it must be named as a

party . . . . For purposes of arbitration, . . . ‘we’ includes [JPMCB], all its affiliates, and all

third parties who are regarded as agents or representatives of ours in connection with a

Claim.”). Scott does not contest the validity of this agreement, nor does she contend that

the instant dispute falls outside the scope of the agreement.

       Instead, Scott points to a settlement agreement entered in another action, Ross v.

Bank of America, N.A. (USA), No. 05 Civ. 7116 (WHP) (S.D.N.Y.) (the “Ross

Settlement”), in which defendants JPMC and CBUSA—sued under Section 1 of the

Sherman Act, 15 U.S.C. § 1, for collusively adopting class-action-barring arbitration

clauses in credit card agreements—agreed not to enforce arbitration clauses based on such

agreements. See J.A. 214 (“Chase will not seek to enforce an Arbitration Clause . . .

against a member of the Settlement Class based on currently existing or pre-existing

United States Cardholder Agreements . . . .”); id. at 205, 208 (defining “Chase” as

“JPMorgan Chase & Co. and Chase Bank USA, N.A.”).

       JPMCB was not a party to the Ross Settlement, and that agreement therefore cannot

bar JPMCB from requiring Scott to arbitrate disputes under its deposit account agreement.

As for JPMC and CBUSA, we conclude, as the district court did, that although these

defendants are parties to the Ross Settlement, that agreement does not reach the arbitration

clause of the deposit account agreement at issue here.

       In urging otherwise, Scott argues that (1) the deposit account agreement contains an

“Arbitration Clause” within the meaning of the Ross Settlement because it is a “document

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purportedly binding cardholders,” J.A. 208; and (2) enforcement of the deposit account

agreement’s arbitration clause is “based on” her cardholder agreement, given her allegation

that defendants unilaterally designated her credit card account as the funding account for

overdraft protection on her deposit account, id. at 214. The argument is unconvincing for

reasons discussed in detail by the district court. We note here only that the relevant

provisions of the Ross Settlement specifically reference cardholders and arbitration

obligations based on cardholder agreements.        No language in the Ross Settlement

suggests an agreement to absolve persons who happen to be cardholders of their arbitration

obligations under other types of agreements. Thus, while “Arbitration Clause” is defined

expansively as “any document purportedly binding cardholders” to arbitrate disputes, the

Settlement precludes enforcement only of Arbitration Clauses “based on . . . Cardholder

Agreements.” Id. at 208, 214.

       That conclusion is further reinforced by placing the enforcement ban in context.

See Collins v. Harrison-Bode, 303 F.3d 429, 433 (2d Cir. 2002) (stating that settlement

agreements are construed according to general principles of contract law, which require

words to be considered not in isolation from context, but in light of overall obligation and

intention of parties as manifested thereby (citing Kass v. Kass, 91 N.Y.2d 554, 566, 673

N.Y.S. 2d 350, 356–57 (1998)). The primary obligation the Ross Settlement imposes on

JPMC and CBUSA is the elimination of arbitration clauses from cardholder agreements.

Toward this end, JPMC and CBUSA agreed (1) to remove promptly any and all arbitration

clauses from their cardholder agreements, (2) not to restore or otherwise insert arbitration

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clauses into cardholder agreements for three-and-a-half years, and (3) not to seek

enforcement of any arbitration clause “based on” currently existing or pre-existing

cardholder agreements. J.A. 214. When viewed in this context, the Ross Settlement

reflects JPMC’s and CBUSA’s clear agreement not to enforce or pursue arbitration based

on credit card agreements. It does not indicate any comparable intent with respect to

arbitration based on other agreements, such as the deposit account agreement that Scott

entered into with JPMCB.

       Accordingly, Scott has identified no error in the district court’s grant of a stay

pending arbitration or in its order of dismissal without prejudice.

       2.     Motion for Judicial Notice

       We deny Scott’s motion to take judicial notice of her 2012 cardholder agreement,

given that it was not presented to the district court and Scott has not demonstrated

extraordinary circumstances warranting its consideration on appeal. See IBM Corp. v.

Edelstein, 526 F.2d 37, 45 (2d Cir. 1975) (“[A]bsent extraordinary circumstances, federal

appellate courts will not consider rulings or evidence which are not part of the trial

record.”).

       3.     Conclusion

       We have considered Scott’s remaining arguments and conclude that they are

without merit. We therefore AFFIRM the judgment of the district court.

                                   FOR THE COURT:
                                   CATHERINE O’HAGAN WOLFE, Clerk of Court


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