     10-3399
     Ameriprise Financial Services, Inc. v. Beland

 1                        UNITED STATES COURT OF APPEALS

 2                            FOR THE SECOND CIRCUIT

 3                               August Term, 2011

 4   (Argued:    May 26, 2011                        Decided: November 3, 2011)

 5                               Docket No. 10-3399

 6                   -------------------------------------

 7    IN RE AMERICAN EXPRESS FINANCIAL ADVISORS SECURITIES LITIGATION

 8                   -------------------------------------

 9    CAROL M. ANDERSON, LEONARD D. CALDWELL, DONALD G. DOBBS, KATHIE
10   KERR, SUSAN M. RANGELEY, PATRICK J. WOLLMERING, NARESH CHAND, on
11      behalf of himself and all others similarly situated, JOHN B.
12    PERKINS, ELIZABETH FLENNER, GALE D. CALDWELL, RICHARD T. ALLEN,
13      individually and on behalf of all others similarly situated,

14                                   Plaintiffs,

15   AMERICAN EXPRESS COMPANY, AMERICAN EXPRESS FINANCIAL CORPORATION,
16    AMERICAN EXPRESS FINANCIAL ADVISORS, INC., JAMES M. CRACCHIOLO,

17                                   Defendants,

18                    AMERIPRISE FINANCIAL SERVICES, INC.,

19                              Defendant–Appellee,

20                                       - v -

21                         JOHN BELAND, ELAINE BELAND,

22                          Class Members–Appellants.*

23                   -------------------------------------




           *
            The Clerk of Court is directed to amend the official
     caption as set forth above.
 1   Before:   POOLER, SACK, and LYNCH, Circuit Judges.

 2             Appeal from a judgment entered by the United States

 3   District Court for the Southern District of New York (Deborah A.

 4   Batts, Judge) in favor of the defendant–appellee Ameriprise

 5   Financial Services, Inc.   In an arbitration before the Financial

 6   Industry Regulatory Authority, the appellants -- a married couple

 7   -- brought claims against the defendant–appellee for, inter alia,

 8   breach of fiduciary duty, breach of contract, fraud, and

 9   negligent misrepresentation related to the decline in value of

10   various personal financial assets managed by the

11   defendant–appellee.   The defendant–appellee then moved before the

12   district court, which had retained exclusive jurisdiction over a

13   2007 class-action settlement, to enforce that settlement

14   agreement against the couple and order them to withdraw their

15   pending arbitration claims.   The court, granting the

16   defendant–appellee's motion, determined that the appellants, who

17   had been class members in the prior class action, had expressly

18   released all of their arbitration claims by virtue of their

19   failure to timely opt out of the class-action settlement.    But

20   the appellants' arbitration claims include "suitability" claims

21   that are preserved by a carve-out clause in the settlement

22   agreement, in addition to other claims falling outside the bounds

23   of the class settlement and release; therefore, the district

24   court erred in directing the appellants to withdraw their entire

25   arbitration complaint.



                                      2
 1              Accordingly, we AFFIRM in part and VACATE in part the

 2   judgment of the district court, and we REMAND in part to the

 3   district court for resolution consistent with this opinion.

 4                             DAVID A. GENELLY, Vanasco Genelly &
 5                             Miller (James E. Judge, of counsel),
 6                             Chicago, Illinois, for Appellants.

 7                             DAVID W. BOWKER, Wilmer Cutler Pickering
 8                             Hale and Dorr LLP (Sue-Yun Ahn, of
 9                             counsel), Washington, D.C., for
10                             Appellee.

11   SACK, Circuit Judge:

12              This appeal requires us to address several unsettled

13   issues concerning the effect of a class-action settlement on an

14   individual class member's preexisting right to arbitrate certain

15   claims.   The appellants, John and Elaine Beland (the "Belands"),

16   brought various claims before Financial Industry Regulatory

17   Authority ("FINRA") arbitrators against Ameriprise Financial

18   Services, Inc. ("Ameriprise"), a financial-services company, for,

19   inter alia, breach of fiduciary duty, breach of contract, fraud,

20   and negligent misrepresentation related to the decline in value

21   of various financial assets owned by the Belands and managed by

22   Ameriprise.   The claims are based on Ameriprise's alleged failure

23   to adhere to the Belands' conservative investment strategy and

24   its "steering" of the Belands' assets into mutual funds that

25   allowed Ameriprise to collect excessive fees.

26              Ameriprise answered the Belands' FINRA complaint by

27   asserting, principally, that the Belands released their claims by




                                      3
 1   operation of a settlement agreement in a class-action suit that

 2   had proceeded between 2004 and 2007 in the United States District

 3   Court for the Southern District of New York.    The Belands were

 4   class members in the class action, but -- in part, they allege,

 5   on the advice an Ameriprise financial advisor -- they took no

 6   action at the time of the settlement, failing to either opt out

 7   of the class or submit a claim to share in the settlement funds.

 8   By the terms of the settlement agreement, the district court

 9   (Deborah A. Batts, Judge) had retained exclusive jurisdiction

10   over disputes arising from the class litigation.

11             After FINRA arbitrators denied Ameriprise's motion to

12   stay the Belands' arbitration, Ameriprise moved in the United

13   States District Court for the Southern District of New York, in

14   which the class action had been litigated and settled, for an

15   order to enforce the settlement agreement that would enjoin the

16   Belands from pressing any of their claims before FINRA

17   arbitrators.   The district court concluded that the class

18   settlement barred all of the Belands' arbitration claims, and

19   therefore granted Ameriprise's motion and ordered the Belands to

20   dismiss their FINRA complaint with prejudice.

21             We conclude that the district court had the power to

22   enter such an order and that several of the Belands' arbitration

23   claims were barred by the 2007 class-action settlement.   We

24   therefore affirm in part.   But because we conclude that the

25   Belands' arbitration complaint pleads claims -- including so-



                                      4
 1   called "suitability claims" -- that were not, and could not have

 2   been, released by the class settlement, we vacate in part the

 3   district court's judgment, and we remand the case for the entry

 4   of an order permitting the non-Released claims to proceed in

 5   FINRA arbitration.    In light of our disposition of this appeal,

 6   we dismiss as moot the Belands' appeal from the district court's

 7   denial of their motion for reconsideration.

 8                                 BACKGROUND

 9                The In re AEFA Class-Action Complaint

10                Between March 4, 2004, and May 4, 2004, various persons

11   who had had dealings with Ameriprise1 (the "Class Plaintiffs")

12   brought a total of five separate class-action lawsuits before the

13   United States District Court for the Southern District of New

14   York against several Ameriprise affiliates.    The Class Plaintiffs

15   asserted various federal- and common-law claims based on

16   Ameriprise's alleged conflicts of interest, misrepresentations

17   and omissions, biased and "canned" financial advice and advisory

18   services, failure to disclose financial incentives and fees, and

19   so-called "steering" of clients' money into investments that

20   benefited the defendants without regard to their clients' best

21   interests.    On June 25, 2004, the district court consolidated the



          1
            On August 1, 2005, American Express Financial Corporation
     and American Express Financial Advisors officially changed their
     names to, respectively, Ameriprise Financial, Inc. and Ameriprise
     Financial Services, Inc. On September 30, 2005, these two
     entities became independent from the American Express Company.



                                        5
 1   five class actions into In re American Express Financial Advisors

 2   Securities Litigation ("In re AEFA"), No. 04 Civ. 1773 (S.D.N.Y.,

 3   consolidated June 25, 2004).

 4             The Second Consolidated Amended Class Action Complaint

 5   (the "Class Complaint"), dated September 29, 2005, described the

 6   class action as "arising out of the failure of American Express

 7   to disclose an unlawful and deceitful course of conduct they

 8   engaged in that was designed to improperly financially advantage

 9   Defendants to the detriment of [Class] Plaintiffs and other

10   members of the Class."   Class Complaint ¶ 1, In re AEFA, No. 04

11   Civ. 1773 (S.D.N.Y. Sept. 29, 2005), ECF No. 119.     The Class

12   Plaintiffs alleged that "instead of offering fair, honest and

13   unbiased recommendations to Plaintiffs and other investors,

14   American Express 'financial advisors' gave pre-determined

15   recommendations, pushing clients into a pre-selected, limited

16   number of mutual funds in order to reap millions of dollars in

17   secret kickbacks from the Shelf Space Funds and millions more

18   from sales of American Express Proprietary Funds."2    Id. ¶ 2.

19   They alleged further that the defendants "had an undisclosed,

20   material conflict of interest that made it impossible for them to

21   render impartial advice."   Id. ¶ 10.   Based on those allegations,


          2
            The Shelf Space Funds were mutual funds sold by companies
     who made undisclosed payments to American Express in order to
     promote their mutual funds; these payments were "referred to as
     buying 'shelf space' at American Express." Class Complaint ¶ 1.
     The Proprietary Funds were owned and operated by American Express
     itself. Id.



                                      6
 1   the Class Plaintiffs brought claims for violations of the

 2   Securities Act of 1933, the Securities Exchange Act of 1934 and

 3   various Rules promulgated thereunder, the Investment Advisers Act

 4   of 1940, and assorted state-law claims including for breach of

 5   fiduciary duty, deceptive trade practices, and unjust enrichment.

 6   The Class Period was defined as March 10, 1999, to April 1, 2004,

 7   and was later extended to April 1, 2006.

 8              In January 2007, the lead plaintiffs in In re AEFA

 9   moved for provisional certification of a settlement class and

10   preliminary approval of a settlement agreement pursuant to

11   Federal Rule of Civil Procedure 23.    See Stipulation of

12   Settlement ("Class Settlement" or "Settlement Agreement"), Lead

13   Pls.' Notice of Mot. for Prelim. Approval of Settlement Exh. 2,

14   In re AEFA, No. 04 Civ. 1773 (S.D.N.Y. Jan. 18, 2007), ECF No.

15   135-3.   They simultaneously submitted a draft Notice of Proposed

16   Settlement of Class Action (the "Class Notice") to the court.    On

17   February 15, 2007, the district court provisionally certified the

18   class and approved the Class Notice.   In February and March 2007,

19   the parties mailed the Class Notice to roughly 2.8 million

20   potential class members.

21              The Class Notice served several functions.   First, it

22   described the lawsuit in general terms:

23              In their lawsuits, the investors complain
24              that they were sold financial plans and/or
25              advice that, instead of being tailored to
26              their individual circumstances, contained
27              standardized recommendations designed to



                                      7
 1              steer them into investing in Defendants'
 2              proprietary mutual funds and other
 3              proprietary investment products [(the
 4              Proprietary Funds)] and certain non-
 5              proprietary "Preferred" or "Select" mutual
 6              funds [(the Shelf Space Funds)].
 7              . . . Plaintiffs claim that the conflicts of
 8              interest inherent in Defendants' financial
 9              plans and/or financial advisory services, and
10              the compensation arrangements between
11              Defendants and the Preferred Funds, were
12              inadequately disclosed to investors. . . .

13   Class Notice at 1, Decl. of Jennifer M. Keough in Supp. of Final

14   Approval of Settlement Exh. 1, In re AEFA, No. 04 Civ. 1773

15   (S.D.N.Y. May 29, 2007), ECF No. 143-2.

16              Second, the Class Notice explained the options

17   available to potential class members in acting on the Class

18   Settlement.   In particular, as relevant here, the Class Notice

19   stated:   "Unless you exclude yourself, you will continue to be a

20   member of the class, and that means that if the settlement is

21   approved, you will release all 'Released Claims' against the

22   'Released Persons,' and you will be prohibited from bringing or

23   participating in any other cases concerning the 'Released Claims'

24   against the 'Released Persons.'"       Id. at 7.   The Class Notice

25   also included a description of "Released Claims" and "Released

26   Persons" taken from the Settlement Agreement.       The definition of

27   Released Claims included, inter alia,

28              any and all claims, debts, demands, rights or
29              causes of action or liabilities
30              whatsoever . . . , whether based on federal,
31              state, local, statutory or common law or any
32              other law, rule or regulation, . . .
33              including both known claims and Unknown



                                        8
 1               Claims . . . that (i) have been asserted in
 2               this Action by the Plaintiffs . . . or (ii)
 3               could have been asserted in any forum by the
 4               Plaintiffs or Class Members . . . against any
 5               of the Released Persons; including claims
 6               that arise out of or are based upon (a) the
 7               allegations, transactions, facts, matters or
 8               occurrences, representations or omissions
 9               alleged, involved, set forth, or referred to
10               in the [Class Complaint] . . . .

11   Id. at 8.   Importantly for present purposes, the Class Notice

12   stated that "'Released Claims' shall not include suitability

13   claims unless such claims are alleged to arise out of the common

14   course of conduct that was alleged, or could have been alleged,

15   in the Action, as more fully described herein."3   Id.

16               The Class Notice further explains that releasing claims

17   "will prevent you from suing Defendants over claims that arise

18   from or are based on the offer and sale of financial planning

19   services or financial advice provided to you by Defendants,

20   including claims to recover the fees you paid for financial

21   advisory services or advice and claims that you were 'steered'



          3
            The phrase "common course of conduct" is not defined in
     the Class Settlement; neither is "suitability claim." However, a
     suitability claim, generally, is a claim that a "broker knew or
     reasonably believed that the securities he recommended to the
     customer were unsuitable in light of the customer's investment
     objectives but that he recommended them anyway." Murray v.
     Dominick Corp. of Can., 117 F.R.D. 512, 516 (S.D.N.Y. 1987).
     Suitability claims -- sometimes called "unsuitability claims" --
     are often brought "as a distinct subset" of section 10(b) claims
     under the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b).
     Dodds v. Cigna Sec., Inc., 12 F.3d 346, 351 (2d Cir. 1993), cert.
     denied, 511 U.S. 1019 (1994); see Brown v. E.F. Hutton Grp.,
     Inc., 991 F.2d 1020, 1031 (2d Cir. 1993) (discussing the elements
     of a federal unsuitability claim).



                                       9
 1   toward particular investments that were more profitable for

 2   [Ameriprise]."    Id.      It also warned potential class members,

 3   under the heading "EXCLUDING YOURSELF FROM THE SETTLEMENT," that

 4   if "you want to retain any right to sue or continue to assert any

 5   of the Released Claims on your own against any Defendant or other

 6   Released Person, then you must take steps to get out of the

 7   class."   Id.; see id. at 8–9, 11 (explaining how to "opt[] out"

 8   of the Class Settlement and the consequences of "do[ing]

 9   nothing").

10                On July 18, 2007, the district court issued an Order

11   and Final Judgment in In re AEFA approving the Class Settlement,

12   dismissing all class members' claims with prejudice, and barring

13   and enjoining class members from asserting Related Claims against

14   Released Persons.    The court retained "[e]xclusive

15   jurisdiction . . . over the Parties and the Class Members for all

16   matters relating to this Action and the Settlement,

17   including . . . [the] interpretation, effectuation, or

18   enforcement of the [Settlement Agreement] and this Order and

19   Final Judgment."    Order and Final Judgment at 10, In re AEFA, No.

20   04 Civ. 1773 (S.D.N.Y. July 18, 2007), ECF No. 170.

21                The Belands

22                John and Elaine Beland are a retired married couple

23   living on a 4.1-acre parcel of farmland in New Lenox, Illinois,

24   that, together with a much larger tract, had been in John's

25   family for more than a century.       For many years, John, whose



                                          10
 1   formal education ended in eighth grade, "farmed the family

 2   homestead" for the Pesters, his aunt and uncle.   Claim in

 3   Arbitration Before FINRA ("FINRA Complaint") (filed Feb. 17,

 4   2009) ¶ 1, Decl. of David W. Bowker in Supp. of Ameriprise Fin.

 5   Servs., Inc.'s Mem. of Law in Supp. of Mot. to Enforce In re AEFA

 6   Settlement and Inj. ("Bowker Decl.") Exh. 6, In re AEFA, No. 04

 7   Civ. 1773 (S.D.N.Y. Mar. 9, 2010), ECF No. 193-7.   After the

 8   death of his uncle, John continued to farm the land for his aunt,

 9   Hazel Pester.

10              According to the Belands, in 1995, acting on the

11   financial advice of Ronald Miller -- an Ameriprise financial

12   consultant based in Joliet, Illinois -- Hazel sold a large

13   portion of the family farm for approximately $2.6 million.    The

14   proceeds of the sale were immediately deposited into two

15   different trusts -- a charitable trust worth $1.757 million and a

16   revocable trust worth $886,000.    Hazel was the charitable trust's

17   lifetime beneficiary, and she held a life estate in the revocable

18   trust.   In 2004, Hazel died.   John Beland took the corpus of the

19   revocable trust, while various local churches and charities, as

20   residuary beneficiaries, received the assets in the charitable

21   trust.   John, allegedly on Miller's advice, then converted the

22   revocable trust into an Ameriprise investment account, jointly

23   held by the Belands and managed by Miller.

24              The Belands' FINRA Complaint asserts that Ameriprise

25   and Miller agreed to invest the Belands' funds "in a conservative



                                       11
 1   fashion, preserving capital and obtaining income from which the

 2   life beneficiaries could receive a return."    Id. ¶ 9.   However,

 3   the Belands allege, "[a] conservative asset allocation approach

 4   was not taken."   Id. ¶ 13.   In the FINRA Complaint, the Belands

 5   express two main grievances: (1) "Miller and Ameriprise invested

 6   in many house American Express mutual funds including various

 7   high yield junk bond funds, as well as risky small cap or start-

 8   up funds";4 and (2) "Ameriprise invested in many risky small-cap

 9   technology stocks which led to huge, significant losses over

10   time."5   Id. ¶¶ 14–15.   They similarly contend that Ameriprise

11   "allocat[ed] the trust assets inappropriately which left the

12   Trusts exposed to greater than expected losses." Appellants' Br.

13   at 7; see FINRA Complaint ¶ 27.

14              The Belands state that their combined account balances

15   dwindled from more than $2.6 million at inception in 1995 to

16   approximately $800,000 in early 2009.    FINRA Complaint ¶ 7.   John

17   admits that he did not review the account statements until after

18   Hazel's death, when he noticed the "precipitous[]" drop.    Id.



          4
            The Belands allege that "[t]hese 'house' mutual funds were
     purchased not because they fit the preservation of capital and
     income approach (with growth only a secondary feature), but
     because they generated fees for Ameriprise." FINRA Complaint
     ¶ 14.
          5
            These "'tech' heavy stock" stocks included: Check Point
     Software; Flextronics; Analog Devices; Applied Microcircuits;
     Brocade Communications; Ciena Corp.; Enron Corp.; I 2
     Technologies, Inc.; Maxim Integrated Products; Selectron Corp.;
     and Univision Communications. FINRA Complaint ¶ 16.



                                       12
 1   ¶¶ 18–19.   The Belands allege that when they confronted Miller

 2   about the accounts' declining assets, "Miller set a course of

 3   cover-up, lies and deceit in order to obscure the mishandling" of

 4   the accounts, providing false justifications for investment

 5   decisions and shielding the truth about Ameriprise's motives and

 6   conflicts of interest.   Id. ¶ 20.    Among the allegedly false

 7   reasons for the losses were the September 11 terrorist attacks

 8   and that the charitable trust was intended to diminish in value

 9   "by design."   Id. ¶¶ 21–24 (internal quotation marks omitted).

10               Over time, the Belands received notices of myriad

11   class-action lawsuits against or involving various companies in

12   which Ameriprise and Miller had invested on the Belands' behalf.

13   In addition, John Beland conceded that in early 2007 he received

14   multiple notices relating to the In re AEFA action.      Decl. of

15   John Beland ¶ 5, Reply in Supp. of Mot. for Ltd. Disc. Exh. A, In

16   re AEFA (S.D.N.Y. June 22, 2010), ECF No. 204-2.      Because he

17   found the notices, including the In re AEFA notices, "complex and

18   confusing," he asked Miller for advice.    Id. ¶ 6.    According to

19   John, "Miller told [the Belands] to do nothing about these

20   notices and [they] followed his advice."    Id.   As a result of

21   their failure to take any action with respect to the In re AEFA

22   Class Settlement, the Belands did not share in its proceeds.6



          6
            The Belands did receive a $25 payment from an SEC
     disgorgement and restitution fund related to its investigation
     into Ameriprise's investment-advisory activities.



                                      13
 1              The Belands' FINRA Action

 2              In late 2008, the Belands sought legal advice regarding

 3   their accounts' declining values, and on February 17, 2009, they

 4   filed an arbitration complaint with FINRA.    They made claims

 5   (collectively, the "FINRA Claims") against Miller and Ameriprise

 6   for: (1) breach of fiduciary duty for "failing to manage the

 7   trusts according to their investment objectives, and by self-

 8   dealing," FINRA Complaint ¶ 31; (2) breach of contract for

 9   "mishandling the [Belands'] assets and . . . covering up the

10   mishandling," id. ¶ 35; (3) common-law fraud for "mak[ing]

11   material misstatements of fact" regarding the reasons for the

12   assets' decline in value, among other things, id. ¶ 39; and (4)

13   negligent misrepresentation, id. ¶ 44.     See generally id. ¶¶ 29-

14   45.   The Belands sought an arbitration award of "not less than

15   $1,500,000 for 'well managed' account damages . . . , for

16   punitive damages[,] and [for] their costs and fees of [the FINRA]

17   action."   Id. at 11.

18              In response before the FINRA arbitrators, Miller and

19   Ameriprise (collectively, the "FINRA Defendants") filed a

20   Statement of Answer, Defenses and Affirmative Defenses on

21   September 18, 2009.     At the same time, the FINRA Defendants moved

22   before the arbitrators to stay the arbitration proceedings on the

23   basis that, as members of the In re AEFA class, the Belands had

24   "released Ameriprise Financial and its agents and affiliates for"

25   the Released Claims defined in the Class Settlement and Class



                                       14
 1   Notice.   Mot. to Stay Arbitration of Released Claims ("Motion to

 2   Stay") at 2, Bowker Decl. Exh. 7, In re AEFA, No. 04 Civ. 1773

 3   (S.D.N.Y. Mar. 9, 2010), ECF No. 193-8.   In the Motion to Stay,

 4   the FINRA Defendants listed eighteen separate Ameriprise account

 5   numbers as to which, they contended, the Belands' allegations

 6   were barred by the Class Settlement.7   The FINRA Defendants

 7   stated in their motion that "[u]nless Claimants withdraw their

 8   Released Claims in this action, Respondents will be forced to

 9   protect their rights by filing a Motion to Enforce Class Action

10   Settlement as to the Released Claims," and that, therefore, "a

11   stay of th[e FINRA] action as it pertains to the released claims

12   is appropriate."   Id. at 4.   On October 27, 2009, the Belands

13   filed an opposition to the FINRA Defendants' Motion to Stay,

14   arguing that the "class action specifically excluded the causes

15   of action the Belands assert" in the FINRA arbitration.

16   Claimants' Opp'n to Resp'ts' Mot. to Stay Arbitration at 2,

17   Bowker Decl. Exh. 4, In re AEFA, No. 04 Civ. 1773 (S.D.N.Y. Mar.

18   9, 2010), ECF No. 193-5.

19              A three-member FINRA arbitration panel held a

20   telephonic hearing regarding the Motion to Stay on January 5,


          7
            In a July 28, 2009 letter, the FINRA Defendants requested
     that the Belands "withdraw their claims related to" the eighteen
     accounts listed. Letter from Ameriprise Counsel to Belands at 2,
     Mem. in Supp. of Mot. for Reconsideration ("Mot. for
     Reconsideration") Exh. D, In re AEFA, No. 04 Civ. 1773 (S.D.N.Y.
     Aug. 17, 2010), ECF No. 209-5. The Belands have identified seven
     of their Ameriprise accounts that were not listed in the July 28
     letter or the Motion to Stay.



                                      15
 1   2010.       After the hearing, the panel issued an order denying the

 2   Motion to Stay "without prejudice."      FINRA Order at 1, Mem. in

 3   Supp. of Mot. for Reconsideration ("Mot. for Reconsideration")

 4   Exh. F, In re AEFA, No. 04 Civ. 1773 (S.D.N.Y. Aug. 17, 2010),

 5   ECF No. 209-5.      The panel then scheduled an arbitration hearing

 6   for March 20108 to try the issues raised in the Belands' FINRA

 7   Complaint and the FINRA Defendants' answer.

 8                  Ameriprise's Motion to Enforce the Class Settlement in
 9                  the S.D.N.Y. and Belands' Cross-Motion to Clear
10                  Technical Defaults and for Limited Discovery

11                  Before the scheduled arbitration hearing could be held,

12   however, the FINRA Defendants filed a "Motion to Enforce"9 the In

13   re AEFA Settlement Agreement before the district court, which had


             8
            The Belands represent that the FINRA arbitrators
     originally set the arbitration hearing for March 2010; however,
     the hearing was eventually rescheduled to take place in August
     2010. [Blue 14; A329.] It was thereafter postponed indefinitely
     pending the resolution of the parties' litigation before the
     district court.
             9
            In Martens v. Thomann, 273 F.3d 159 (2d Cir. 2001), we
     noted that "there is nothing in the Federal Rules of Civil
     Procedure styled a 'motion to enforce.' Nor is there approval
     for such a motion to be found in this Circuit's case law, except
     in situations inapposite to the case before us." Id. at 172. In
     Martens, we did "not ourselves define the nature of this motion
     because the district court's failure to state its reasons for
     denying it [wa]s sufficient to warrant reversal." Id.

               From time to time, however, we have reviewed district-
     court judgments that ruled on purported motions to enforce. See,
     e.g., Vemics, Inc. v. Meade, 371 F. App'x 181 (2d Cir. 2010)
     (summary order); Surac v. Cavalry Portfolio Servs., LLC, 357 F.
     App'x 344 (2d Cir. 2009) (summary order). Because we conclude
     that the district court's judgment in this case presents an
     appealable question to this Court, we choose to ignore any
     potential error of terminology here.



                                         16
 1   retained jurisdiction over the In re AEFA class litigation.      In

 2   their March 9, 2010 Motion to Enforce, the FINRA Defendants

 3   requested that the court "order[] the Belands to dismiss with

 4   prejudice their pending FINRA action against Ameriprise."10    Mem.

 5   in Supp. of Ameriprise's Mot. to Enforce In re AEFA Settlement

 6   and Inj. ("Motion to Enforce") at 2, In re AEFA, No. 04 Civ. 1773

 7   (S.D.N.Y. Mar. 9, 2010), ECF No. 192.   The Belands did not, in

 8   response, file a direct opposition to the motion.   Instead, they

 9   filed a cross-motion, styled as a "Motion to Clear Technical

10   Defaults [and] for Limited Discovery," seeking to litigate the

11   issue of whether the Class Settlement's definition of Released

12   Claims covered all of the claims that the Belands asserted in

13   their FINRA Complaint.   Specifically, the Belands argued that

14   depositions should be taken to determine whether evidence

15   supported their assertion that "Miller's conduct . . . deprived

16   them of any meaningful opportunity to opt out of the class

17   action," as well as to determine which of their investments did



          10
            The Belands argue that the FINRA Defendants qualitatively
     altered their position in the Motion to Enforce vis-à-vis the In
     re AEFA Class Settlement's effect on the Belands' FINRA Complaint
     because that document represented "the first time" that
     Ameriprise had argued "that all claims and facts alleged in the
     Illinois Arbitration were of the same 'course of conduct' alleged
     in the New York Class Action." Appellants' Br. at 15 (emphasis
     in original). The Belands also characterize the Motion to
     Enforce as misleading because it argued that the Belands sought a
     "double recovery" despite the fact that they had not received any
     payments from the Class Settlement, and because it did not
     indicate that the FINRA panel had denied the FINRA Defendants'
     Motion to Stay. Id. (internal quotation marks omitted).



                                     17
 1   "not fall within the ambit of the" Class Settlement.   Mot. to

 2   Clear Technical Defaults, for Ltd. Disc. and to Set Briefing

 3   Schedule at 2, In re AEFA, No. 04 Civ. 1773 (S.D.N.Y. Mar. 30,

 4   2010), ECF No. 196.   The Belands proposed a deposition and

 5   briefing schedule that would culminate in an evidentiary hearing

 6   before the district court.   The FINRA Defendants opposed the

 7   cross-motion by arguing, principally, that even the facts as

 8   alleged by the Belands would not, under the "excusable neglect"

 9   standard, justify their failure to opt out of the Class

10   Settlement.

11             The Belands filed a reply, arguing that the district

12   court

13             should allow the arbitration to proceed for
14             two reasons: first, because the issues of
15             Miller's breach of fiduciary duty and
16             misrepresentation go well beyond any issue
17             that was or could have been raised in the
18             Class Action; and second, because the
19             arbitration panel is uniquely positioned to
20             make factual determinations as to which
21             accounts may or may not be encompassed within
22             this Court's Confirmation Order.

23   Reply in Supp. of Mot. for Ltd. Disc. at 1–2, In re AEFA, No. 04

24   Civ. 1773 (S.D.N.Y. June 22, 2010), ECF No. 204.   Finally, the

25   FINRA Defendants filed, together, a reply in support of their

26   Motion to Enforce and a sur-reply in opposition to the Belands'

27   cross-motion.




                                     18
 1              The District Court's Order Enforcing the Settlement

 2              In a seven-page order dated August 11, 2010 (the

 3   "Enforcement Order"), the district court granted the FINRA

 4   Defendants' Motion to Enforce and ordered the Belands to dismiss

 5   with prejudice their pending FINRA Complaint against Ameriprise

 6   and Miller.   The court concluded that the Belands' claims "f[ell]

 7   within the definition of 'Released Claims' barred by the Court's

 8   July 18, 2007 Order."   Enforcement Order at 1–2, In re AEFA, No.

 9   04 Civ. 1773 (S.D.N.Y. Aug. 11, 2010), ECF No. 206.   The court

10   characterized the Belands' FINRA Claims thus:

11              Here, the Belands claim that rather than
12              managing their accounts in a conservative,
13              minimal risk manner as promised, Miller and
14              Ameriprise invested in many house American
15              Express mutual funds including various high
16              yield junk bond funds, as well as risky small
17              cap or start-up funds in order to generate
18              fees for Ameriprise and promote in-house
19              mutual funds of American Express.

20   Id. at 2 (brackets and internal quotation marks omitted).     The

21   court concluded that those "allegations arise from the same

22   transactions, facts, matters, occurrences, and representations as

23   the claims of the [Class Complaint]."   Id.

24              The district court further determined that the Belands

25   could not "satisfy the standard for 'excusable neglect'" to

26   excuse their failure to opt out of the Class Settlement.    Id. at

27   3.   In arriving at that conclusion, the court stated that "while

28   Miller's advice may have played a role in the Belands' decision

29   not to opt out of the class, the Belands should have known from



                                     19
 1   the plain English of the [Class] Notice that Miller's

 2   recommendation that they 'do nothing' would lead to no payment

 3   from the settlement and the release of future claims."    Id. at 5.

 4   The court also found that "not until after Ameriprise moved to

 5   enjoin [the Belands'] FINRA claims on March 9, 2010" did the

 6   Belands "argue before this Court that they should be excused from

 7   failing to opt out of the settlement" -- a delay that was, in the

 8   court's view, "inexcusably long."      Id. at 6.

 9                After the district court issued the Enforcement Order,

10   the Belands filed a Motion for Reconsideration, making several

11   arguments.    First, they contended that the Enforcement Order

12   "simply overlooked material language in the Release which exempts

13   claims like the Belands['] which do not relate to the allegations

14   of the Class Action . . . but instead raise independent

15   suitability claims."11    Second, the Belands argued that the

16   Federal Arbitration Act ("FAA") required that the FINRA

17   Defendants arbitrate the coverage of the Class Settlement before

18   the arbitrators.    Third, the Belands further elaborated a theory

19   of "excusable neglect" that would free their claims from the

20   Class Settlement even if those claims were Released Claims.      The

21   district court denied the Motion for Reconsideration in a two-

22   sentence order dated August 20, 2010.



          11
            Ameriprise contends that this argument, and others in the
     Belands' Motion for Reconsideration, were made "[f]or the first
     time" in that motion. Appellee's Br. at 17.



                                       20
 1              The Belands' Appeal

 2              The Belands filed a Notice of Appeal on August 23,

 3   2010.   The same day, the district court granted a stay of its

 4   Enforcement Order pending the appeal to this Court.   The stay

 5   remains in effect.

 6                                DISCUSSION

 7              I. Overview

 8              On appeal, the Belands argue that the district court

 9   erred in several respects.   Principally, they assert that the

10   court "failed to compare" the substance of the claims alleged in

11   their FINRA Complaint -- "which feature unsuitability, lack of

12   asset allocation and speculative 'tech' stock investing" -- with

13   the Released Claims in the Class Settlement.   Appellants' Br. at

14   19.   In the Belands' view, the Class Settlement only released

15   claims regarding "the sale of fee-based, 'standardized'

16   investment adviser plans which steered customers to 'proprietary'

17   or 'preferred' mutual funds for which Ameriprise received

18   'kickbacks.'"   Id.   They also point to a "carve[]-out" in the

19   Class Settlement that they contend exempts at least some of their

20   FINRA Claims.   Id.   For these reasons, the Belands contend that

21   at least some of their arbitration claims are not Released

22   Claims, and that the district court erred in requiring the

23   Belands to dismiss those unreleased claims.

24              Alternatively, the Belands argue: (1) that Ameriprise

25   chose to defend the Belands' claims before FINRA arbitrators and,



                                      21
 1   therefore, the district court erred in "derail[ing]" the pending

 2   FINRA arbitration; (2) that questions concerning the scope of the

 3   Settlement Agreement were for the FINRA arbitrators to decide,

 4   and that the arbitrators indicated their intent to decide them;

 5   (3) that the Release contained in the Class Settlement should not

 6   be applied against the Belands because their failure to opt out

 7   of the class action was the product of "excusable neglect"; and

 8   (4) that the district court erroneously denied their motion for

 9   reconsideration.   Id. at 19–22.

10              The FINRA Defendants (also collectively "Ameriprise")

11   argue that the Class Settlement's release of "'suitability

12   claims' arising out of the common course of conduct alleged in In

13   re AEFA" precludes the entirety of the Belands' arbitration

14   claims.   Appellee's Br. at 18.    Ameriprise also responds that the

15   district court properly rejected the Belands' "excusable neglect"

16   argument, and that "the district court ha[d] exclusive

17   jurisdiction to enforce the [Class] Settlement."    Id. at 18–19.

18   The FINRA Defendants therefore contend that the district court

19   acted properly in directing the Belands to dismiss all of their

20   arbitral claims.

21              This appeal presents at least one unresolved legal

22   issue about which the parties are in agreement.    Neither the

23   Belands nor Ameriprise appear to dispute the general principle

24   that federal courts are vested with power under the FAA to enjoin

25   a pending arbitration where appropriate.    But this question has



                                        22
 1   never been explicitly resolved by this Court,12 and we,

 2   therefore, address it in the course of our analysis.    We also

 3   reiterate this Court's recent holding that FINRA-membership

 4   constitutes an agreement to arbitrate disputes under FINRA's

 5   rules, see UBS Fin. Servs., Inc. v. W. Va. Univ. Hosps., --- F.3d

 6   ----, 2011 WL 4389991, at *5, 2011 U.S. App. LEXIS 19420, at *15

 7   (2d Cir. Sept. 22, 2011), a proposition neither of the parties

 8   contests.

 9               II. Arbitrability of the Belands' Claims

10   A. Background Arbitration Law

11               The FAA creates a "body of federal substantive law of

12   arbitrability, applicable to any arbitration agreement within the

13   coverage of the Act."   Moses H. Cone Mem'l Hosp. v. Mercury

14   Constr. Corp., 460 U.S. 1, 24 (1983).    The FAA provides that an

15   arbitration provision in "a contract evidencing a transaction

16   involving commerce . . . shall be valid, irrevocable, and

17   enforceable, save upon such grounds as exist at law or in equity

18   for the revocation of any contract."    9 U.S.C. § 2.   Further, the

19   FAA "establishes a national policy favoring arbitration when the

20   parties contract for that mode of dispute resolution" and



          12
            Recently, in Wachovia Bank, Nat'l Ass'n v. VCG Special
     Opportunities Fund, --- F.3d ----, 2011 WL 5110122, 2011 U.S.
     App. LEXIS 21885 (2d Cir. Oct. 28, 2011), in a dispute involving
     FINRA arbitrability, we remanded for the district court to
     "enjoin[ the defendant] from proceeding with its FINRA
     arbitration," but we did not address the procedural propriety of
     such an order. Id. at *9, 2011 U.S. App. LEXIS 21885, at *25.



                                      23
 1   "supplies not simply a procedural framework applicable in federal

 2   courts" but "also calls for the application, in state as well as

 3   federal courts, of federal substantive law regarding

 4   arbitration."   Preston v. Ferrer, 552 U.S. 346, 349 (2008).

 5              "[T]he FAA's primary purpose [is to] ensur[e] that

 6   private agreements to arbitrate are enforced according to their

 7   terms."   Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford

 8   Jr. Univ., 489 U.S. 468, 479 (1989).   Despite the "liberal

 9   federal policy favoring arbitration agreements," Moses H. Cone,

10   460 U.S. at 24, "arbitration is a matter of contract and a party

11   cannot be required to submit to arbitration any dispute which he

12   has not agreed so to submit," Howsam v. Dean Witter Reynolds,

13   Inc., 537 U.S. 79, 83 (2002) (quoting Steelworkers v. Warrior &

14   Gulf Navigation Co., 363 U.S. 574, 582 (1960)) (internal

15   quotation marks omitted); see also Volt, 489 U.S. at 479

16   ("Arbitration under the [FAA] is a matter of consent, not

17   coercion, and parties are generally free to structure their

18   arbitration agreements as they see fit.").    "[A]s with any other

19   contract, the parties' intentions control."   Stolt-Nielsen S.A.

20   v. AnimalFeeds Int'l Corp., 130 S. Ct. 1758, 1774 (2010)

21   (internal quotation marks omitted).

22              However, "any doubts concerning the scope of arbitrable

23   issues should be resolved in favor of arbitration."    Moses H.

24   Cone, 460 U.S. at 24–25.   "Accordingly, federal policy requires

25   us to construe arbitration clauses as broadly as possible."



                                     24
 1   Collins & Aikman Prods. Co. v. Bldg. Sys., Inc., 58 F.3d 16, 19

 2   (2d Cir. 1995) (brackets and internal quotation marks omitted).

 3   Therefore, we will compel arbitration "unless it may be said with

 4   positive assurance that the arbitration clause is not susceptible

 5   of an interpretation that covers the asserted dispute."   AT & T

 6   Techs., Inc. v. Commc'ns Workers of Am., 475 U.S. 643, 650

 7   (1986).

 8             In this Circuit, courts follow a two-part test to

 9   determine the arbitrability of claims.   In deciding whether

10   claims are subject to arbitration, a court must consider (1)

11   whether the parties have entered into a valid agreement to

12   arbitrate, and, if so, (2) whether the dispute at issue comes

13   within the scope of the arbitration agreement.   ACE Capital Re

14   Overseas Ltd. v. Cent. United Life Ins. Co., 307 F.3d 24, 28 (2d

15   Cir. 2002); accord John Hancock Mut. Life Ins. Co. v. Olick, 151

16   F.3d 132, 137 (3d Cir. 1998).   Before addressing the second

17   inquiry, we must also determine who -- the court or the

18   arbitrator -- properly decides the issue.   See Republic of

19   Ecuador v. Chevron Corp., 638 F.3d 384, 393 (2d Cir. 2011).

20   B. Existence and Scope of Ameriprise's Consent to Arbitrate

21             Because our review of the district court's Enforcement

22   Order requires that we evaluate not only the existence but also

23   the scope of any such agreement, we must identify first that

24   agreement's form, and then its contours.




                                     25
 1               Ameriprise does not dispute that, by virtue of its

 2   membership in FINRA, it has consented to arbitrate with its

 3   customers.13   See FINRA Code of Arbitration Procedure for

 4   Customer Disputes ("FINRA Code") § 12200 ("Parties must arbitrate

 5   a dispute under the [FINRA] Code if" arbitration is "[r]equested

 6   by the customer; [t]he dispute is between a customer and a

 7   [FINRA] member or associated person of a member; and [t]he

 8   dispute arises in connection with the business activities of the

 9   member or the associated person . . . ."); cf. John Hancock Life

10   Ins. Co. v. Wilson, 254 F.3d 48, 58 (2d Cir. 2001) (explaining

11   that the defendant "concede[d] that it agreed by virtue of its

12   membership in the NASD[, the predecessor to FINRA,] to arbitrate

13   all disputes contemplated under" a rule analogous to FINRA Rule

14   12200).   Nor does Ameriprise dispute that all of the Belands'

15   claims constitute claims "aris[ing] in connection with [its]

16   business activities" within the meaning of FINRA Rule 12200.

17   This Court has recently stated that FINRA membership constitutes

18   an agreement to "adhere to FINRA's rules and regulations,

19   including its Code and relevant arbitration provisions contained

20   therein." UBS Fin. Servs., 2011 WL 438991, at *5; see also



          13
            We note that such consent may not be reciprocal. Though
     the FINRA Rules bind Ameriprise to arbitrate disputes with its
     customers upon request, it does not appear that Ameriprise can
     require its customers to arbitrate disputes with it on the basis
     of its FINRA membership alone. Hence, for example, the In re
     AEFA litigation, which proceeded in federal court, not in FINRA
     arbitration.



                                      26
 1   Wachovia Bank, 2011 WL 5110122, at *6-7, 2011 U.S. App. LEXIS

 2   19420, at *15 (stating that "interpretation of arbitration rules

 3   of an industry self-regulatory organization. . . such as FINRA is

 4   similar to contract interpretation" and concluding, in that case,

 5   that the matter was not arbitrable under FINRA's rules).   We

 6   therefore conclude that all of the Belands' FINRA Claims against

 7   Ameriprise are arbitrable in the absence of any subsequent

 8   agreement revoking or otherwise limiting the scope of

 9   Ameriprise's consent to arbitrate.

10             III. Binding Nature of the Class Settlement on the

11   Belands

12             We next turn to the parties' relationship to the Class

13   Settlement.   Absent a violation of due process or excusable

14   neglect for failure to timely opt out, a class-action settlement

15   agreement binds all class members who did not do so.    See, e.g.,

16   Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 115 (2d

17   Cir. 2005) (stating that a class member "was required to opt out

18   at the class notice stage if it did not wish to be bound" by a

19   class settlement agreement), cert. denied, 544 U.S. 1044 (2005);

20   County of Suffolk v. Long Island Lighting Co., 907 F.2d 1295,

21   1302 (2d Cir. 1990) (stating that if a party "could not have

22   properly opted out of the mandatory class, it is bound by the

23   class settlement if it is upheld, as are all other members of the

24   class"); see also Phillips Petroleum Co. v. Shutts, 472 U.S. 797,

25   811–13 (1985); In re: PaineWebber Ltd. P'ships Litig., 147 F.3d



                                     27
 1   132, 138–39 (2d Cir. 1998).     And a "settlement agreement is a

 2   contract that is interpreted according to general principles of

 3   contract law."    Omega Eng'g, Inc. v. Omega, S.A., 432 F.3d 437,

 4   443 (2d Cir. 2005).

 5             Rule 6 of the Federal Rules of Civil Procedure permits

 6   a court to extend the time during which an act must be done "on

 7   motion made after the time has expired if the party failed to act

 8   because of excusable neglect."    Fed. R. Civ. P. 6(b)(1)(B).   In

 9   Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507

10   U.S. 380 (1993), the Supreme Court set forth four factors to be

11   considered in connection with an assertion of "excusable neglect"

12   as justification for a missed judicial deadline: (1) "the danger

13   of prejudice" to the party opposing the extension; (2) "the

14   length of the delay and its potential impact on judicial

15   proceedings"; (3) "the reason for the delay, including whether it

16   was within the reasonable control" of the party seeking the

17   extension; and (4) whether the party seeking the extension "acted

18   in good faith."   Id. at 395.    While those factors are the central

19   focus of the inquiry, the ultimate determination depends upon a

20   careful review of "all relevant circumstances."    Id.; accord In

21   re: PaineWebber Ltd. P'ships Litig., 147 F.3d at 135 ("To

22   establish excusable neglect, . . . a movant must show good faith

23   and a reasonable basis for noncompliance.").

24             Because the Belands have not argued that due process

25   was denied them with respect to the Class Settlement, we turn to



                                       28
 1   whether the district court erred when it rejected their

 2   "excusable neglect" argument.   On review of the district court's

 3   ruling for abuse of discretion, see id. at 135, we will reverse

 4   only if we have "a definite and firm conviction that the court

 5   below committed a clear error of judgment in the conclusion that

 6   it reached upon a weighing of the relevant factors," Silivanch v.

 7   Celebrity Cruises, Inc., 333 F.3d 355, 362 (2d Cir. 2003), cert.

 8   denied, 540 U.S. 1105 (2004).   Because we have no such clear

 9   conviction here, we do not disturb the district court's

10   conclusion that the Belands failed to demonstrate "excusable

11   neglect."

12               In analyzing the issue, the district court relied on

13   admonitions and warnings under boldface, capitalized headings in

14   the Class Notice -- which the Belands received -- about the

15   consequences of taking no action.     The court concluded that "the

16   Belands should have known from the plain English of the Notice

17   that Miller's recommendation that they 'do nothing' would lead to

18   no payment from the settlement and the release of future claims."

19   Enforcement Order at 5.   It also determined that if the Belands

20   failed to read the notice, even after Miller's alleged advice,

21   they did so unreasonably.   The court further noted a significant

22   delay on the Belands' part in seeking relief under the "excusable

23   neglect" standard, even after they became aware of their possible

24   error in failing to opt out of the Class Settlement.




                                      29
 1              We conclude that the court's decision in this regard

 2   did not constitute an abuse of its discretion.   The Class Notice

 3   is a reasonably straightforward document that contains a list of

 4   readable questions and answers discussing the content of the

 5   Class Action and the consequences of taking, or not taking,

 6   action in response.   See Wal-Mart, 396 F.3d at 114 (stating that

 7   a class "[n]otice is adequate if it may be understood by the

 8   average class member" (internal quotation marks omitted)).    And

 9   the Class Notice itself offered advice from class counsel,

10   providing lawyers' contact information and instructing class

11   members to contact them should the content of the Class Notice be

12   unclear.   There is, moreover, little doubt that Ameriprise would

13   suffer prejudice if the Belands were permitted to opt out of the

14   Class Settlement three years late, as it would be exposed to

15   liability that it had every reason to think had been foreclosed

16   by the entry of the Settlement Agreement in federal court.

17              Neither the length of, nor the reasons for, the

18   Belands' delay counsel otherwise.    Even if John Beland's lack of

19   an extended formal education rendered the Class Notice

20   incomprehensible to him, the fact that he brought the document to

21   Miller -- the representative of Ameriprise -- for advice suggests

22   that he had some level of awareness of the Notice's importance.

23   And while the Belands explain their delay by asserting that they

24   had relied on advice from Miller that the Belands should take no

25   action with respect to the class-action lawsuit against



                                     30
 1   Ameriprise, we agree with the district court's implicit

 2   conclusion that any such reliance was unreasonable.    Applying the

 3   reasoning of a district court in another circuit, "[o]nce [the

 4   Belands] knew that there was a legal proceeding pending, it was

 5   no longer reasonable [for them] to continue taking legal or

 6   investment advice from [Ameriprise] or any of its agents."    In re

 7   VMS Sec. Litig., 156 F.R.D. 635, 640 (N.D. Ill. 1994) (internal

 8   quotation marks omitted); see also id. ("[R]elying on one's

 9   adversaries rather than one's attorney for advice is an error

10   that is to be laid at the feet of the one who made it; such

11   reliance is not reasonable, particularly when the notice

12   instructed class members to consult with their own counsel or

13   class counsel if they had questions." (internal quotation marks

14   omitted)).    Finally, the Belands do not contend that Miller took

15   any action to limit their ability to consult with a lawyer or ask

16   for outside advice.

17                We therefore reject the Belands' contention that the

18   district court abused its discretion as to its application of the

19   "excusable neglect" standard to their factual circumstances.    It

20   follows from that conclusion that the Belands were bound as class

21   members by the In re AEFA Class Settlement.




                                       31
 1             IV.     Effect of the Class Settlement on the Agreement to
 2                     Arbitrate

 3   A. Question of Arbitrability

 4             The Supreme Court has distinguished between

 5   "question[s] of arbitrability," which are "issue[s] for judicial

 6   determination[, u]nless the parties clearly and unmistakably

 7   provide otherwise," AT & T Techs., 475 U.S. at 649; see also

 8   First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944–45

 9   (1995); PaineWebber Inc. v. Bybyk, 81 F.3d 1193, 1198–99 (2d Cir.

10   1996), and "other gateway matters, which are presumptively

11   reserved for the arbitrator's resolution," Republic of Ecuador,

12   638 F.3d at 393 (internal quotation marks omitted).    Among

13   "questions of arbitrability" presumptively reserved for a court,

14   the Supreme Court has identified "dispute[s] about whether the

15   parties are bound by a given arbitration clause" and

16   "disagreement[s] about whether an arbitration clause in a

17   concededly binding contract applies to a particular type of

18   controversy."14    Howsam, 537 U.S. at 84.




          14
            On the other hand, "'"procedural" questions which grow
     out of the dispute and bear on its final disposition' are
     presumptively not for the judge, but for an arbitrator, to
     decide." Howsam, 537 U.S. at 84 (emphasis in original) (quoting
     John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 557 (1964)).
     Likewise, "the presumption is that the arbitrator should decide
     'allegation[s] of waiver, delay, or a like defense to
     arbitrability.'" Id. (alteration in original) (quoting Moses H.
     Cone, 460 U.S. at 24–25).




                                       32
 1               The principal issue in this case is whether any of the

 2   Belands' FINRA Claims survived the Class Settlement and are thus

 3   still subject to arbitration.   As a preliminary matter, however,

 4   we must first determine whether the court or the arbitrator

 5   should answer that question.    We conclude that such an inquiry is

 6   a "question of arbitrability" that is reserved to the court.

 7               First, the Class Settlement did not merely resolve

 8   certain claims that class members might have had, thus estopping

 9   these class members from arbitrating these claims at a later

10   date.   As discussed further below, the Class Settlement revoked

11   Ameriprise's consent to arbitrate certain claims.   The question

12   therefore is not whether those claims had been settled, thus

13   precluding arbitration, but whether there was a surviving

14   agreement, following the settlement, to arbitrate those claims at

15   all.    That question, "[u]nless the parties clearly and

16   unmistakably provide otherwise. . . is to be decided by the

17   court, not the arbitrator." AT & T Techs., 475 U.S. at 649. But

18   cf. Republic of Ecuador, 638 F.3d at 393 (observing that "waiver

19   and estoppel generally fall into [the] group of issues

20   presumptively for the arbitrator").

21               Second, Ameriprise's FINRA membership cannot serve as

22   such "clear[] and unmistakabl[e]" evidence of the parties' intent

23   that all future questions of arbitrability be submitted to

24   arbitrators.   See Wilson, 254 F.3d at 57 ("[O]ne party's




                                      33
 1   membership in an exchange[] is insufficient, in and of itself, to

 2   evidence the parties' clear and unmistakable intent to submit the

 3   'arbitrability' question to the arbitrators.").

 4              Third, the district court explicitly retained

 5   jurisdiction over the In re AEFA class action.    See Order and

 6   Final Judgment at 10 (providing that "[e]xclusive jurisdiction is

 7   hereby retained over the Parties and the Class Members for all

 8   matters relating to this Action and the Settlement" (emphasis

 9   added)).

10              For those reasons, we conclude that determining the

11   scope of the Belands' entitlement to arbitrate (by virtue of

12   Ameriprise's consent through its FINRA membership) is a question

13   for judicial resolution.   As such, the district court properly




                                     34
1   undertook it on Ameriprise's motion.15   The question remains


         15
           The Belands also argue on appeal that Ameriprise
    "submitted the question of the Class Action Settlement Release to
    the FINRA arbitrators to decide" by filing an answer in the FINRA
    arbitration and propounding discovery to the Belands while
    proceedings were pending in that venue. Appellants' Br. at 36;
    see also Appellants' Reply Br. at 13. They argue that
    Ameriprise's participation in the FINRA proceedings definitively
    precluded it from later resorting to federal court to seek an
    order of dismissal as to the Belands' FINRA arbitration. In
    short, the Belands argue waiver.

         But the actual conduct of Ameriprise in the FINRA
    proceedings fails to support either the Belands' characterization
    or their conclusion. In a letter to the Belands' counsel dated
    July 28, 2009 -- after the Belands filed their FINRA Complaint
    but before the FINRA Defendants took any action before the
    arbitrators -- Ameriprise's attorney identified the In re AEFA
    Settlement and argued that the Belands, as Class Members, had
    "released Ameriprise . . . and its agents and affiliates for
    claims relating to the" Belands' Ameriprise investment accounts.
    Letter from Ameriprise Counsel to Belands at 1, Mem. in Sup. of
    Mot. for Reconsideration Exh. D, In re AEFA, No. 04 Civ. 1773
    (S.D.N.Y. Aug. 17, 2010), ECF No. 209-5. When the Belands
    refused to withdraw their FINRA Claims, Ameriprise sought
    principally to stay the FINRA proceedings while simultaneously
    filing an Answer to the Belands' FINRA Complaint. See Motion to
    Stay at 1–4. The Motion to Stay explicitly reserved Ameriprise's
    right to seek relief in the federal district court pursuant to
    the In re AEFA Settlement, requesting a stay of the FINRA
    proceedings in order to avoid "a waste of time and other
    resources." Id. at 4. In the same document, Ameriprise warned
    that "[u]nless Claimants withdraw their Released Claims in this
    action, Respondents will be forced to protect their rights by
    filing a Motion to Enforce Class Action Settlement as to the
    Released Claims" in federal court. Id.

         By simultaneously filing a motion to stay the FINRA
    proceedings with its answer to the Belands' FINRA Complaint,
    Ameriprise unambiguously expressed its intention to seek judicial
    relief and thereby preserved its right to proceed accordingly,
    notwithstanding its filing of a substantive answer in the FINRA
    arbitration. See Opals on Ice Lingerie v. Body Lines Inc., 320
    F.3d 362, 369 (2d Cir. 2003) (where a party's correspondence with
    its adversary demonstrates "that it continuously objected to




                                    35
 1   whether its ultimate conclusion was correct.

 2   B. Scope of Ameriprise's Agreement to Arbitrate

 3               We have said that "there is nothing irrevocable about

 4   an agreement to arbitrate."   Baker & Taylor, Inc. v.

 5   AlphaCraze.com Corp., 602 F.3d 486, 490 (2d Cir. 2010) (per

 6   curiam) (brackets, ellipsis, and internal quotation marks

 7   omitted).   Parties may "limit the issues they choose to

 8   arbitrate," Stolt-Nielsen, 130 S. Ct. at 1774, and "[n]othing"

 9   prevents parties to an agreement "from excluding . . . claims

10   from the scope of an agreement to arbitrate," Mitsubishi Motors

11   Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (1985).

12   Such limitations and exclusions need not be specified by the

13   initial agreement to arbitrate.    "Both of the parties may abandon

14   this method of settling their differences, and under a variety of

15   circumstances one party may waive or destroy by his conduct his

16   right to insist upon arbitration."     Baker & Taylor, 602 F.3d at

17   490 (internal quotation marks omitted).    In particular, as

18   relevant here, "different or additional contractual arrangements

19   for arbitration can supersede the rights conferred on [a]

20   customer by virtue of [a] broker's membership in a

21   self-regulating organization such as [FINRA]."    Kidder, Peabody &

22   Co. v. Zinsmeyer Trusts P'ship, 41 F.3d 861, 864 (2d Cir. 1994)


     arbitration," those "objections prevent a finding of waiver").
     The Belands' waiver argument therefore fails.




                                       36
 1   (citing Merrill Lynch, Pierce, Fenner & Smith, Inc. v.

 2   Georgiadis, 903 F.2d 109, 113 (2d Cir. 1990)).

 3             The Class Settlement in this case -- by which, as

 4   discussed above, the Belands are bound -- is one such "different

 5   or additional contractual arrangement[]."   Id.     "[A]n arbitrator

 6   derives his or her powers from the parties' agreement to forgo

 7   the legal process and submit their disputes to private dispute

 8   resolution."   Stolt-Nielsen, 130 S. Ct. at 1774.    It follows that

 9   where a party initially consents (in this case, by dint of

10   Ameriprise's FINRA membership) to arbitrate certain types of

11   claims, but later enters into a settlement agreement that

12   releases claims that had been subject to the initial consent to

13   arbitrate, the claims that have been released by such a

14   settlement are no longer subject to arbitration.

15             In the case before us, the Belands failed to opt out of

16   the class, and (as explained above) have not demonstrated

17   "excusable neglect" for that failure.   Therefore, bound by the

18   Class Settlement and Release, the Belands may not pursue any

19   Released Claims against Ameriprise and its employees.     And the

20   Class Settlement "supersedes all prior understandings,

21   communications, and agreements with respect to the subject of

22   this Settlement," Settlement Agreement at 34, including the

23   parties' implicit agreement that the Belands had a right to

24   arbitrate certain claims against Ameriprise by virtue of the




                                     37
 1   latter's FINRA membership.   In other words, the Class Settlement

 2   extinguished not only the ability of Class Members to bring

 3   Released Claims against Ameriprise as a matter of substance, but

 4   also the Class Members' right to arbitrate those claims.

 5              We find support for this conclusion in the Tenth

 6   Circuit's opinion in Riley Manufacturing Co. v. Anchor Glass

 7   Container Corp., 157 F.3d 775 (10th Cir. 1998).   There, a "merger

 8   clause" in a settlement agreement purported to "cancel[],

 9   terminate[] and supersede[] any and all prior representations and

10   agreements relating to the subject matter" of the agreement.   Id.

11   at 778.   The court concluded that the merger clause "revoked the

12   prior right of the parties to demand arbitration on the[]

13   specific topics" that the court concluded were within the bounds

14   of the settlement agreement.   Id. at 784; see id. at 782

15   (concluding that "the specific releases in" the settlement

16   agreement "waive[d the plaintiff's] right to demand arbitration

17   on the five topics explicitly listed" in the agreement); see also

18   Miller v. Runyon, 77 F.3d 189, 194 (7th Cir. 1996) ("Given the

19   contractual nature of arbitration, it can be argued that the

20   preclusive effect of either a judicial judgment or an arbitration

21   award on a subsequent arbitration should depend on what the

22   parties agreed to.   And then the court will decide as a matter of

23   interpretation of the parties' [agreement to arbitrate] whether




                                     38
 1   the arbitrators can ignore a prior judicial judgment." (citations

 2   omitted)), cert. denied, 519 U.S. 937 (1996).

 3             We agree with the Tenth Circuit's approach.   We

 4   conclude that the Belands' entitlement to arbitrate disputes with

 5   Ameriprise, arising out of Ameriprise's FINRA membership and

 6   defined by Rule 12200, does not extend to the Released Claims

 7   defined by the Settlement Agreement because the Settlement

 8   Agreement amended the contours of the parties' agreement to

 9   arbitrate all disputes between them before FINRA arbitrators.

10   C. District Court's Retention of Jurisdiction over In re AEFA

11             We do not suggest, however, that in all cases, a

12   settlement agreement revokes a prior agreement or consent to

13   arbitrate by releasing claims that would have been subject to

14   arbitration under the earlier agreement or consent.   Indeed,

15   "[u]nder our cases, if there is a reading of the various

16   agreements that permits the [a]rbitration [c]lause to remain in

17   effect, we must choose it."   Bank Julius Baer & Co. v. Waxfield

18   Ltd., 424 F.3d 278, 284 (2d Cir. 2005).16   However, no such

19   reading is possible here because the Settlement Agreement



          16
            In Bank Julius, we concluded that a forum-selection
     clause could "be read, consistent with the [a]rbitration
     [a]greement, in such a way that the [parties] are required to
     arbitrate their disputes," with limitations as to available
     challenges regarding jurisdiction and venue. Bank Julius, 424
     F.3d at 285. In short, we found no irremediable conflict between
     the clauses under analysis in that case.




                                     39
 1   explicitly vests the district court with exclusive jurisdiction

 2   to enforce its terms.

 3               A federal court does not automatically retain

 4   jurisdiction to hear a motion to enforce or otherwise apply a

 5   settlement in a case that it has previously dismissed.      See

 6   Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 380–82

 7   (1994).    Such motions are essentially state-law contract claims

 8   to be litigated in the state courts.   See id. at 382.      However,

 9   where, in a federal court, the court makes "the parties'

10   obligation to comply with the terms of the settlement

11   agreement . . . part of the order of dismissal -- either by

12   separate provision (such as a provision 'retaining jurisdiction'

13   over the settlement agreement) or by incorporating the terms of

14   the settlement agreement in the order" -- the proper forum for

15   litigating a breach is that same federal court.   Id. at 381;

16   accord Perez v. Westchester County Dep't of Corr., 587 F.3d 143,

17   151–53 (2d Cir. 2009).   In cases over which "the district court

18   retain[s] jurisdiction, it necessarily ma[kes] compliance with

19   the terms of the [settlement] agreement a part of its order so

20   that 'a breach of the agreement would be a violation of the

21   order.'"   Roberson v. Giuliani, 346 F.3d 75, 82 (2d Cir. 2003)

22   (quoting Kokkonen, 511 U.S. at 381).    Further, this Court has

23   said that where "there is ample evidence. . .that the District

24   Court 'intended to place its "judicial imprimatur" on [a]




                                      40
 1   settlement,'" the court retains jurisdiction to oversee the

 2   enforcement of the agreement.   Perez, 587 F.3d at 152 (quoting

 3   Torres v. Walker, 356 F.3d 238, 244 n.6 (2d Cir. 2004) (dicta)).

 4              That policy interest takes on particular importance in

 5   the context of class actions, which are complicated, expensive

 6   proceedings involving a multitude of different parties and

 7   potential parties but intended ultimately to make enforcement of

 8   the rights of all the parties more efficient and less expensive.

 9   As a general matter, the more loose ends that remain after the

10   litigation has been resolved, the less successful the process has

11   been.   A district court therefore "has the power to enforce an

12   ongoing order against relitigation so as to protect the integrity

13   of a complex class settlement over which it retained

14   jurisdiction."   In re Prudential Ins. Co. of Am. Sales Practice

15   Litig., 261 F.3d 355, 367–68 (3d Cir. 2001); see also In re Gen.

16   Am. Life Ins. Co. Sales Practices Litig., 357 F.3d 800, 803 (8th

17   Cir. 2004) (recognizing "the authority of district courts to

18   enforce by injunction a final judgment embodying the terms

19   settling a class action").

20              In the Enforcement Order requiring the Belands to

21   dismiss their arbitration complaint in its entirety, the district

22   court did not advert to any specific source of its jurisdiction

23   to issue the Enforcement Order.    In approving the Settlement

24   Agreement and dismissing the In re AEFA litigation, though, the




                                       41
 1   district court had explicitly stated that "[e]xclusive

 2   jurisdiction is hereby retained over the Parties and the Class

 3   Members for all matters relating to this Action and the

 4   Settlement."    Order and Final Judgment at 10.   Therefore, despite

 5   the fact that the district court did officially "'close[]' and

 6   dismiss[] with prejudice" the In re AEFA litigation, Endorsed

 7   Letter at 1, In re AEFA, No. 04 Civ. 1773 (S.D.N.Y. Feb. 2,

 8   2009), ECF No. 190, the court properly retained jurisdiction to

 9   hear the kind of issues relating to the Settlement Agreement's

10   Released Claims raised by the Belands in this case.    See Perez,

11   587 F.3d at 151–52.

12               We have found no "reading of the various agreements" at

13   issue in this case that would permit Ameriprise's preexisting and

14   broad consent to arbitrate "to remain in effect," Bank Julius,

15   424 F.3d at 284, in its entirety.     Unlike the integrated reading

16   we afforded the forum-selection clause and anterior arbitration

17   agreement in Bank Julius, an interpretation of the Settlement

18   Agreement that would permit the Belands to arbitrate Released

19   Claims would run afoul of the district court's Order and Final

20   Judgment.    We arrive at this conclusion even though we approach

21   it "with a healthy regard for the federal policy favoring

22   arbitration."   Moses H. Cone, 460 U.S. at 24.    Though we must

23   resolve "any doubts concerning the scope of arbitrable

24   issues . . . in favor of arbitration," including when "the




                                      42
 1   problem at hand is the construction of the contract language

 2   itself," id. at 24–25; accord WorldCrisa Corp. v. Armstrong, 129

 3   F.3d 71, 74 (2d Cir. 1997), we are satisfied that no such doubt

 4   exists here.   In other words, "it may be said with positive

 5   assurance" that Ameriprise's consent to arbitrate as reflected in

 6   FINRA Rule 12200 -- subsequent to amendment by the Settlement

 7   Agreement -- "is not susceptible of an interpretation that covers

 8   the asserted dispute" surrounding the Released Claims.   AT & T

 9   Techs., 475 U.S. at 650.

10             V. Settlement Agreement & Released Claims

11   A. Standard of Review

12             In reviewing a district court's interpretation of the

13   terms of a settlement agreement, we review conclusions of law de

14   novo and findings of fact for clear error.   See Ciaramella v.

15   Reader's Digest Ass'n, Inc., 131 F.3d 320, 322 (2d Cir. 1997).

16   B. Interpreting Class-Action Settlement Agreements

17             It is elementary that a settlement agreement cannot

18   release claims that the parties were not authorized to release.

19   See Nat'l Super Spuds, Inc. v. N.Y. Mercantile Exch., 660 F.2d 9,

20   19 (2d Cir. 1981).   At the same time, "[t]he law is well

21   established in this Circuit and others that class action releases

22   may include claims not presented and even those which could not

23   have been presented as long as the released conduct arises out of

24   the 'identical factual predicate' as the settled conduct."     Wal-




                                     43
 1   Mart, 396 F.3d at 107 (quoting TBK Partners, Ltd. v. W. Union

 2   Corp., 675 F.2d 456, 460 (2d Cir. 1982)); cf. TBK Partners, 675

 3   F.2d at 461 ("[W]here there is a realistic identity of issues

 4   between the settled class action and the subsequent suit, and

 5   where the relationship between the suits is at the time of the

 6   class action foreseeably obvious to notified class members, the

 7   situation is analogous to the barring of claims that could have

 8   been asserted in the class action.    Under such circumstances the

 9   paramount policy of encouraging settlements takes precedence.").

10             Indeed, "[c]lass actions may release claims, even if

11   not pled, when such claims arise out of the same factual

12   predicate as settled class claims."   Wal-Mart, 396 F.3d at 108.

13   And "in order to achieve a comprehensive settlement that would

14   prevent relitigation of settled questions at the core of a class

15   action, a court may permit the release of a claim based on the

16   identical factual predicate as that underlying the claims in the

17   settled class action even though the claim was not presented and

18   might not have been presentable in the class action."    TBK

19   Partners, 675 F.2d at 460.

20   C. Overlap of Claims

21             We begin by noting that the starting point for

22   interpreting settlement agreements is general contract-law

23   principles.   See, e.g., Omega Eng'g, 432 F.3d at 443.

24             Here, the Class Settlement stated that the definition

25   of Released Claims included, inter alia,



                                     44
 1             any and all claims, debts, demands, rights or
 2             causes of action or liabilities
 3             whatsoever . . . , whether based on federal,
 4             state, local, statutory or common law or any
 5             other law, rule or regulation, . . .
 6             including both known claims and Unknown
 7             Claims . . . that (i) have been asserted in
 8             this Action by the Plaintiffs . . . or (ii)
 9             could have been asserted in any forum by the
10             Plaintiffs or Class Members . . . against any
11             of the Released Persons; including claims
12             that arise out of or are based upon (a) the
13             allegations, transactions, facts, matters or
14             occurrences, representations or omissions
15             alleged, involved, set forth, or referred to
16             in the [Class Complaint] . . . , [and] (b)
17             the offer and sale of financial advice,
18             financial planning, and/or financial advisory
19             services pursuant to a Financial Advisory
20             Service Agreement, or the SPS, WMS or SMA
21             programs[17] . . . .

22   Settlement Agreement at 7-8.   That definition is expansive, but

23   the Settlement Agreement goes on to exclude certain claims from

24   the definition's purview.   The Settlement Agreement states that

25   "'Released Claims' shall not include suitability claims unless

26   such claims are alleged to arise out of the common course of

27   conduct that was alleged, or could have been alleged, in the

28   Action, as more fully described herein."   Id. at 8 (emphases

29   added).




          17
            The SPS ("Strategic Portfolio Service"), SMS ("Separately
     Managed Account"), and WMS ("Wealth Management Service") programs
     "encompassed all of Ameriprise's managed, fee-for-service
     accounts or programs in which clients paid a percentage fee for
     services that included financial advice, financial planning, or
     other financial advisory services." Appellee's Br. at 21 n.3
     (internal quotation marks omitted).



                                     45
 1             As we explain above, supra note 3, suitability claims

 2   are often brought "as a distinct subset" of section 10(b) claims

 3   under the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b).

 4   See Dodds, 12 F.3d at 351.    Ameriprise argues that the Belands do

 5   not advert to any specific federal statute, or even the term

 6   "suitability," in their FINRA Complaint.   And indeed, before the

 7   district court, the Belands explicitly disavowed any reliance on

 8   federal securities law.   Therefore, says Ameriprise, the Belands

 9   did not "actually assert[] suitability claims before FINRA."

10   Appellee's Br. at 26 (emphasis in original) (internal quotation

11   marks omitted).    However, particularly because of the lack of a

12   definition of the term in the Class Settlement, for the purposes

13   of this appeal we consider "suitability" to serve more as a

14   general description of the character of potential common-law

15   claims (such as breach of fiduciary duty, breach of contract,

16   fraud, and negligent misrepresentation -- all of which the

17   Belands did allege in the FINRA proceedings), rather than a

18   technical term denoting a specific type of section 10(b) claim.

19   See also infra note 17.    Furthermore, we note that although the

20   Belands also disclaim reliance on state securities laws,

21   regulations issued by the State of Illinois -- the state where

22   the Belands filed their FINRA Complaint -- define

23   "unsuitab[ility]" with reference to "fraud[], decepti[on,] [and]

24   manipulati[on]."   Ill. Admin. Code tit. 14, § 130.853.




                                      46
 1             The Belands point to several aspects of their FINRA

 2   Claims that demonstrate that not all of them are Released Claims

 3   barred by the Class Settlement.    First, they argue that their

 4   claims span a time period matching that of the existence of their

 5   trusts -- from 1995 to 2009 -- while the Release covers only

 6   claims between 1999 and 2006.   Second, the Belands argue that

 7   while the Class Settlement "plainly relate[s] to [claims

 8   involving the] sale and promotion of proprietary and affiliated

 9   mutual funds for which [Ameriprise] was receiving kickbacks or

10   promoting in-house," Appellants' Reply Br. at 3, the Settlement

11   Agreement's express exclusion of "suitability claims" covers the

12   substance of many of their FINRA Claims, which allege that "the

13   conservative goal of both the Charitable Remainder and Revocable

14   Trusts was not followed" and "individual speculative 'tech'

15   securities were bought and sold," Appellants' Br. at 27; see also

16   Appellants' Reply Br. at 6 (arguing that the Belands' FINRA

17   Claims include "suitability claims unique to the recommendations

18   of Ameriprise broker Ron Miller -- claims related both to

19   misrepresentation and recommendations having nothing to do with

20   American Express mutual funds and shelf space proprietary

21   products").

22             Ameriprise counters that the Belands' FINRA Claims

23   "fall squarely within the definition of 'Released Claims.'"

24   Appellee's Br. at 20.   Regardless of any minor differences,

25   Ameriprise contends, the FINRA Claims "plainly 'arise from the



                                       47
 1   same transactions, facts, matters, occurrences, and

 2   representations as the claims of the [Class Complaint].'"    Id. at

 3   21 (quoting Order and Final Judgment at 2).   Ameriprise also

 4   rejects the Belands' attempt to rely upon the "suitability

 5   claims" carve-out in the Class Settlement, inasmuch as the

 6   Belands' FINRA Complaint did not explicitly label or otherwise

 7   characterize any of their claims as being "suitability" claims.18

 8             We agree with the Belands, however, that their FINRA

 9   Claims and the Released Claims do not -- indeed, cannot --

10   entirely overlap.   First, the Belands' FINRA Complaint

11   unequivocally alleges that Ameriprise and Miller agreed to invest

12   the Belands' funds "in a conservative fashion, preserving capital

13   and obtaining income from which the life beneficiaries could

14   receive a return," FINRA Complaint ¶ 9, but that "[a]

15   conservative asset allocation approach was not taken," id. ¶ 13.

16   That seems to us to be a quintessential suitability claim.   See

17   Kearney v. Prudential-Bache Sec., Inc., 701 F. Supp. 416, 429


          18
            Ameriprise also contends that the Belands' suitability-
     claim argument has been forfeited because they did not raise it
     until they filed their Motion for Reconsideration before the
     district court. However, though the Belands do not appear to
     have specifically referred to the "suitability" carve-out clause
     before that time, the Belands consistently contended that their
     FINRA Claims went well beyond any issue that was or could have
     been raised in the Class Action. We therefore decline to accept
     Ameriprise's waiver argument regarding the "suitability" carve-
     out clause in the definition of Released Claims. In any event,
     "[w]e retain 'broad discretion' to consider issues not timely
     raised below." Official Comm. of Unsecured Creditors of Color
     Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147, 159 (2d Cir.
     2003).



                                     48
 1   (S.D.N.Y. 1988) (describing a typical suitability claim as a

 2   broker's "invest[ment] in risky transactions contrary either to

 3   [an investor's] explicit directions or to her interests").

 4              Second, although the definition of Released Claims does

 5   include suitability claims "aris[ing] out of the common course of

 6   conduct that was alleged, or could have been alleged, in the [In

 7   re AEFA litigation]," Settlement Agreement at 8, we read the

 8   "common course of conduct" alleged in the In re AEFA litigation

 9   to be, as described by the Belands, Ameriprise's routine practice

10   of "steering American Express clients into Proprietary or Shelf

11   Space funds through one or more of the managed programs at

12   American Express," Appellants' Reply Br. at 4.   Indeed, the Class

13   consisted only of persons who purchased financial plans that

14   invested in the Proprietary or Shelf Space Funds (as well as

15   others who otherwise invested in those Funds).   See Class

16   Complaint ¶ 85.   As the Class Notice explains, the class action

17   involved investors who "were sold financial plans and/or advice

18   that, instead of being tailored to their individual

19   circumstances, contained standardized recommendations designed to

20   steer them into investing in Defendants' proprietary mutual funds

21   and other proprietary investment products and certain non-

22   proprietary 'Preferred' or 'Select' mutual funds."    Class Notice

23   at 1.   The Class Notice further explained that the basis of the

24   class action was the notion that "conflicts of interest inherent

25   in Defendants' financial plans and/or financial advisory



                                     49
 1   services, and the compensation arrangements between Defendants

 2   and the Preferred Funds, were inadequately disclosed to

 3   investors."    Id.   The Belands' claims that Miller mismanaged

 4   their trusts contrary to their instructions and investment goals

 5   do not fall within that "common course of conduct."

 6              Third, the Belands' FINRA Complaint is also devoted in

 7   part to the allegation that once they confronted Miller about the

 8   accounts' declining assets, "Miller set a course of cover-up,

 9   lies and deceit in order to obscure the mishandling in the"

10   accounts, providing false justifications for investment decisions

11   and shielding the truth about Ameriprise's motives and conflicts

12   of interest.   FINRA Complaint ¶ 20; see also id. ¶¶ 25–27.       Among

13   those allegedly false reasons were the September 11 terrorist

14   attacks and that the charitable trust was set to diminish "by

15   design."   Id. ¶¶ 21–24 (internal quotation marks omitted).

16   Claims dependent upon allegations of this sort were plainly not

17   Released Claims under the In re AEFA Class Settlement.

18              Fourth, there can be no question that the Belands'

19   claims, to the extent that they involve conduct occurring after

20   the Class Period, cannot be Released Claims.19


          19
            That said, we do have some doubts about the time period
     allegedly at issue in the Belands' FINRA Complaint. While they
     represent that their claims against Ameriprise span from 1995 to
     2009, John and Elaine did not become trustees or beneficiaries of
     the accounts until 2004. While claims predating their inherited
     interest in the Ameriprise accounts might not be Released Claims,
     we note that they still might not be valid if the Belands did not
     acquire an interest in the accounts prior to that time. However,



                                       50
 1             To be sure, some -- if not many -- of the allegations

 2   in the Belands' FINRA Complaint constitute Released Claims.     For

 3   example, they allege that "[a]lmost from the start, rather than

 4   invest in conservative large cap stocks, paying good dividends as

 5   well as substantial bond portfolios, Miller and Ameriprise

 6   invested in many house American Express mutual funds including

 7   various high yield junk bond funds."   FINRA Complaint ¶ 14

 8   (emphasis added).   Similarly, they allege that Ameriprise "has

 9   managed [the Belands' accounts] in a fashion . . . designed

10   primarily to generate fees and income for Ameriprise. . . [and]

11   to promote in-house mutual funds of American Express."   Id. ¶ 13.

12   To the extent the FINRA Complaint contains similar claims, the

13   claims are conclusively Released Claims and are, as such, barred.

14             However, the Belands also clearly allege in their FINRA

15   Complaint that Ameriprise invested in "risky small cap or start-

16   up funds" that "exposed" the Belands' accounts "to tremendous

17   market risk which was unsuitable for the[ir] account objectives."

18   Id. ¶¶ 13–14 (emphasis added).   And while the In re AEFA Class

19   Period lasted from March 10, 1999 to April 1, 2006, the Belands'

20   complaint stretches all the way into 2009.   Those claims, we

21   conclude, are not Released Claims and therefore are not barred by

22   the In re AEFA Class Settlement.

23   D. Conclusion


     that is a determination we leave for further factfinding by the
     arbitrators.



                                      51
 1             To summarize:   Ameriprise consented to arbitrate

 2   disputes with the Belands -- its customers -- by virtue of its

 3   membership in FINRA.   FINRA Rule 12200 is a broad provision that

 4   clearly encompasses the Belands' FINRA Claims, as they

 5   indisputably "arise[] in connection with the business activities

 6   of" Ameriprise and Miller.   FINRA Code § 12200.   Even if it were

 7   a closer question, because the issue would be one of "the

 8   construction of the contract language itself," we would "resolve

 9   'any doubts concerning the scope of arbitrable issues . . . in

10   favor of arbitration. . . .'"   Republic of Ecuador, 638 F.3d at

11   393 (quoting Moses H. Cone, 460 U.S. at 24–25) .

12             The scope of an agreement to arbitrate is a "question

13   of arbitrability" within the purview of the court, and therefore

14   we can properly undertake the task of determining the breadth of

15   Ameriprise's consent to arbitrate.   In our view, the Settlement

16   Agreement "modif[ied]" Ameriprise's "fundamental and broad

17   commitment," through its FINRA membership, "to arbitrate any

18   dispute," Bechtel do Brasil Construções Ltda. v. UEG Araucária

19   Ltda., 638 F.3d 150, 155 (2d Cir. 2011) (emphasis in original),

20   with the Belands.   Specifically, the Settlement Agreement altered

21   Ameriprise's prior expansive commitment to arbitrate by removing

22   the Released Claims from the scope of that commitment.

23             We therefore conclude that Ameriprise (1) has not

24   agreed to arbitrate the Released Claims as defined in the




                                     52
 1   Settlement Agreement, but (2) that it has agreed to arbitrate any

 2   non-Released Claims asserted in the Belands' FINRA Complaint.

 3             VI. District Court's Remedial Power

 4   A. Power to Enjoin Arbitration

 5             The question "of whether federal courts have the power

 6   to stay arbitration under the FAA (or any other authority) in an

 7   appropriate case" is an open one in this Circuit.   Republic of

 8   Ecuador, 638 F.3d at 391 (citing Westmoreland Capital Corp. v.

 9   Findlay, 100 F.3d 263, 266 n.3 (2d Cir. 1996), abrogated on other

10   grounds by Vaden v. Discover Bank, 556 U.S. 49 (2009)).      But see

11   In re U.S. Lines, Inc., 197 F.3d 631, 639 (2d Cir. 1999) ("In the

12   bankruptcy setting, congressional intent to permit a bankruptcy

13   court to enjoin arbitration is sufficiently clear to override

14   even international arbitration agreements."); Video Tutorial

15   Servs., Inc. v. MCI Telecomms. Corp., 79 F.3d 3, 5 (2d Cir. 1996)

16   (per curiam) (failing to reach the issue but noting that "[w]e

17   would be hard-pressed to say that a district court cannot stay

18   arbitration for a short time while familiarizing itself with the

19   issues underlying a proposed motion to stay a suit pending

20   arbitration, or a proposed motion to stay an arbitration").     But

21   we find no indication that this issue was contested in the

22   district court proceedings, and it was left unaddressed in both

23   briefing to and oral argument before us.   However, it is not one

24   we think we can ignore simply because the parties have not

25   squarely presented it to the Court.   Although it is not a



                                      53
 1   question upon the answer to which our jurisdiction depends, we

 2   view it as one we ought to address inasmuch as it implicates "the

 3   remedial powers of the court," Steel Co. v. Citizens for a Better

 4   Env't, 523 U.S. 83, 90 (1998) (emphasis in original), to issue

 5   the Enforcement Order. See AEP Energy Servs. Gas Holding Co. v.

 6   Bank of Am., N.A., 626 F.3d 699, 719 (2d Cir. 2010).     In the

 7   words of another court, the issue represents "a high order

 8   challenge":

 9             On the one hand, a realistic concern for the
10             finality and integrity of judgments would
11             arise if parties were free to ignore federal
12             court decisions that have conclusively
13             settled claims or issues now sought to be
14             arbitrated. Yet, arbitration is a matter of
15             contract and the FAA only authorizes a
16             limited review of the parties' intent before
17             compelling or enjoining arbitration.

18   Olick, 151 F.3d at 138(internal quotation marks omitted).

19             While the FAA's terms explicitly authorize a district

20   court to stay litigation pending arbitration, see 9 U.S.C. § 3,

21   and to compel arbitration, see id. § 4, nowhere does it

22   explicitly confer on the judiciary the authority to do what the

23   district court's Enforcement Order purported to do here: enjoin a

24   private arbitration.

25             Our decisions do suggest, however, that, at least where

26   the court determines -- pursuant to the first step outlined in

27   ACE Capital, 307 F.3d at 28, discussed above -- that the parties

28   have not entered into a valid and binding arbitration agreement,

29   the court has the authority to enjoin the arbitration



                                    54
 1   proceedings.   See United States v. Eberhard, No. 03 Cr. 562, 2004

 2   WL 616122, at *3, 2004 U.S. Dist. LEXIS 5029, at *10 (S.D.N.Y.

 3   Mar. 30, 2004) ("[W]here courts in this Circuit have concluded

 4   that § 4 of the FAA permits the issuance of a stay [of a private

 5   arbitration], . . . they appear to have done so only in those

 6   circumstances where a stay would be incidental to the court's

 7   power under the FAA to enforce contractual agreements calling for

 8   arbitration . . . .").   In Citigroup Global Mkts., Inc. v. VCG

 9   Special Opportunities Master Fund Ltd., 598 F.3d 30 (2d Cir.

10   2010), we affirmed a district court's order preliminarily

11   enjoining a FINRA arbitration from proceeding.   Id. at 40.    In

12   that case, the district court had "serious questions" as to

13   whether one party was in fact a "customer" of a FINRA member

14   (which status, as we observed above, would bind the other party

15   to arbitrate).   Id. at 33–34 (internal quotation marks omitted).

16   We concurred with that assessment, concluding that the "customer"

17   status of the party was an "issue . . . in sharp dispute."    Id.

18   at 39 (internal quotation marks omitted).   In other words, we

19   doubted the existence of a binding agreement to arbitrate in that

20   case.

21             We have also affirmed a district court's stay of

22   arbitration after determining that the initiation of judicial

23   proceedings in a foreign country constituted a waiver of a

24   plaintiff's right to arbitration, see Zwitserse Maatschappij van

25   Levensverzekering en Lijfrente v. ABN Int'l Capital Mkts. Corp.,



                                     55
 1   996 F.2d 1478, 1480-81 (2d Cir. 1993) (per curiam), as we have a

 2   stay of arbitration over various claims that we held were not

 3   within the scope of an arbitration agreement, even while

 4   affirming an order compelling arbitration of related validly

 5   arbitrable claims, see Collins & Aikman, 58 F.3d at 23.    Both of

 6   those cases, in addition to Citigroup Global Markets, suggest

 7   that a federal court may enjoin an arbitration that the court

 8   determines is not otherwise valid.   See also SATCOM Int'l Grp.

 9   PLC v. ORBCOMM Int'l Partners, L.P., 49 F. Supp. 2d 331, 341–42

10   (S.D.N.Y. 1999) (enjoining an arbitration in a case arising under

11   the New York Convention, 9 U.S.C. §§ 201-208, after finding that

12   such arbitration was "inappropriate" because the plaintiff had

13   "waived any right it previously had to arbitrate the issues in

14   th[e] case").

15             The First Circuit's opinion in Societe Generale de

16   Surveillance, S.A. v. Raytheon European Mgmt. & Sys. Co., 643

17   F.2d 863 (1st Cir. 1981), is instructive.    There, the court

18   considered a party's argument that the FAA "removes the district

19   court's power to enjoin [an] arbitration."   Id. at 867.   The

20   court first noted that the FAA "expressly provides federal courts

21   with the power to order parties to a dispute to proceed to

22   arbitration where arbitration is called for by the contract."

23   Id. at 868 (citing 9 U.S.C. § 3).    It inferred that "to enjoin a

24   party from arbitrating where an agreement to arbitrate is absent

25   is the concomitant of the power to compel arbitration where it is



                                    56
 1   present."   Id.   The court concluded that "[t]o allow a federal

 2   court to enjoin an arbitration proceeding which is not called for

 3   by the contract interferes with neither the letter nor the spirit

 4   of" the FAA.   Id.; see also PaineWebber Inc. v. Hartmann, 921

 5   F.2d 507, 511 (3d Cir. 1990) ("If a court determines that a valid

 6   arbitration agreement does not exist or that the matter at issue

 7   clearly falls outside of the substantive scope of the agreement,

 8   it is obliged to enjoin arbitration."), overruled by implication

 9   on other grounds by Howsam, 537 U.S. 79.

10               We confirm and apply those principles here.   If the

11   parties to this appeal have not consented to arbitrate a claim,

12   the district court was not powerless to prevent one party from

13   foisting upon the other an arbitration process to which the first

14   party had no contractual right.    As is clear from the Supreme

15   Court's and this Circuit's cases, "[a]rbitration under the [FAA]

16   is a matter of consent, not coercion."   Volt, 489 U.S. at 479;

17   see also Howsam, 537 U.S. at 83 ("[A]rbitration is a matter of

18   contract and a party cannot be required to submit to arbitration

19   any dispute which he has not agreed so to submit." (internal

20   quotation marks omitted)).   It makes little sense to us to

21   conclude that district courts lack the authority to order the

22   cessation of an arbitration by parties within its jurisdiction

23   where such authority appears necessary in order for a court to




                                       57
1   enforce the terms of the parties' own agreement, as reflected in

2   a settlement agreement.   We decline to do so here.20

         20
           We pause to note that we are relying on a reading of the
    FAA, FINRA Rule 12200, and the Settlement Agreement. The
    particular circumstances presented in this appeal -- with
    emphasis on the exclusive nature of the In re AEFA district
    court's retention of jurisdiction over the Settlement Agreement -
    - persuades us that the district court here could properly enjoin
    the private arbitration of claims already settled and released by
    class members such as the Belands.

         However, the All Writs Act, 28 U.S.C. § 1651(a), authorizes
    federal courts to issue "all writs necessary or appropriate in
    aid of their respective jurisdictions." See Klay v. United
    Healthgroup, Inc., 376 F.3d 1092, 1099 (11th Cir. 2004) ("In
    allowing courts to protect their 'respective jurisdictions,' the
    [All Writs] Act allows them to safeguard not only ongoing
    proceedings, but potential future proceedings, as well as
    already-issued orders and judgments." (footnotes omitted)). Some
    courts have explicitly relied upon the All Writs Act in enjoining
    arbitrations in similar circumstances to those before us in this
    appeal. See, e.g., In re Y & A Grp. Sec. Litig., 38 F.3d 380,
    382, 382–83 (8th Cir. 1994) (relying in part on the All Writs Act
    in concluding that "[n]o matter what, courts have the power to
    defend their judgments as res judicata, including the power to
    enjoin or stay subsequent arbitrations"); Hartley v. Stamford
    Towers Ltd. P'ship, Nos. 92-16802 & 92-56528, 1994 WL 463497, at
    *3–*4, 1994 U.S. App. LEXIS 23543, at *12 (9th Cir. Aug. 26,
    1994) (unpublished opinion) (noting that the All Writs Act's
    "grant of authority includes jurisdiction to enforce a class
    action judgment" by enjoining an arbitration, and one party's
    "participation in the arbitration process cannot affect the
    District Court's authority to enforce its judgments"); see also,
    e.g., Eberhard, 2004 WL 616122, at *3 n.6, 2004 U.S. Dist. LEXIS
    5029, at *12 n.6 ("If this Court does not choose to exercise
    [its] power here, it is not for lack of such power but because
    the NASD arbitrations have not been shown to interfere with the
    Court's jurisdiction."). But see Klay, 376 F.3d at 1102–03 ("The
    simple fact that litigation involving the same issues is
    occurring concurrently in another forum does not sufficiently
    threaten the court's jurisdiction as to warrant an injunction
    under the" All Writs Act.).

         We thus do not decide whether the dictates of the All Writs
    Act might, in another case without the type of jurisdictional
    retention present here, give a district court "the authority to



                                     58
 1   B. Application to Enforcement Order

 2             The Supreme Court has made clear that "[t]he preeminent

 3   concern of Congress in passing the [FAA] was to enforce private

 4   agreements into which parties had entered, and that concern

 5   requires that we rigorously enforce agreements to arbitrate, even

 6   if the result is 'piecemeal' litigation."   Dean Witter Reynolds,

 7   Inc. v. Byrd, 470 U.S. 213, 221 (1985) (emphasis added); see

 8   Moses H. Cone, 460 U.S. at 20 ("[F]ederal law requires piecemeal

 9   resolution when necessary to give effect to an arbitration

10   agreement." (emphasis in original)); Collins & Aikman, 58 F.3d at

11   20; see also Trippe Mfg. Co. v. Niles Audio Corp., 401 F.3d 529,

12   532 (3d Cir. 2005) ("When a dispute consists of several claims,

13   the court must determine on an issue-by-issue basis whether a

14   party bears a duty to arbitrate.").   It is therefore appropriate

15   for us -- and the district court -- to treat the Belands'

16   Released and non-Released FINRA Claims differently.

17             Because we have concluded that a district court may

18   properly enjoin arbitration proceedings that are not covered by a

19   valid and binding arbitration agreement, and because we have

20   further determined that no such agreement exists in this case as

21   to the Released Claims, we find no error in, and therefore

22   affirm, that portion of the district court's Enforcement Order


     enjoin arbitration to prevent re-litigation," Kelly v. Merrill
     Lynch, Pierce, Fenner & Smith, Inc., 985 F.2d 1067, 1069 (11th
     Cir. 1993), rev'd in part on other grounds by Howsam, 537 U.S.
     79.



                                    59
 1   that enjoined the Belands' FINRA Arbitration as to the Released

 2   Claims.

 3             However, as we have also discussed, the Belands' FINRA

 4   Complaint contains various claims not encompassed by -- indeed,

 5   in certain cases specifically excluded by -- the Release.     Those

 6   non-Released Claims include claims based on, inter alia,

 7   unsuitable investment in technology stocks, misrepresentations

 8   and omissions regarding those investments, and claims involving

 9   alleged conduct falling outside the Class Period.   Because

10   Ameriprise's consent to arbitrate, even as amended (i.e.,

11   limited) by the Settlement Agreement, continues to embrace the

12   non-Released Claims, the district court -- to that extent only --

13   lacked the authority to enjoin the arbitration of the Belands'

14   FINRA Claims.   Therefore, we vacate the portion of the

15   Enforcement Order that purported to enjoin the Belands from

16   presenting those claims to the FINRA arbitrators.   We remand this

17   matter to the district court for entry of an appropriately

18   limited order enjoining only the arbitration of the Released

19   Claims.

20                               CONCLUSION

21             For the foregoing reasons, we affirm that portion of

22   the district court's judgment enjoining the Belands from

23   arbitrating their Released Claims before FINRA arbitrators, and

24   we vacate that portion of the court's judgment enjoining

25   arbitration of any non-Released Claims.   In light of our



                                     60
1   disposition of this appeal, we dismiss as moot the Belands'

2   appeal from the district court's denial of their motion for

3   reconsideration.   We remand for further proceedings.

4             Each party shall bear his, her, or its own costs.




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