Jeremy Revitch v. DIRECTV, LLC

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EREMY

EVITCH

, on behalf of

himself and all others similarly

situated,

Plaintiff-Appellee,

DIRECTV, LLC,

Defendant-Appellant.

No. 18-16823

D.C. No.

3:18-cv-01127-

JCS

OPINION

Appeal from the United States District Court

for the Northern District of California

Joseph C. Spero, Chief Magistrate Judge, Presiding

Submitted August 8, 2019

San Francisco, California

Filed September 30, 2020

Before: Diarmuid F. O’Scannlain, M. Margaret McKeown,

and Mark J. Bennett, Circuit Judges.

Opinion by Judge O’Scannlain;

Concurrence by Judge O’Scannlain;

Dissent by Judge Bennett

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

2 REVITCH V. DIRECTV

SUMMARY

Arbitration

The panel affirmed the district court’s denial of

defendant DIRECTV, LLC’s motion to compel arbitration

pursuant to the Federal Arbitration Act in a putative class

action brought under the Telephone Consumer Protection

Act.

Plaintiff alleged that DIRECTV, a satellite television

services company, made calls to his cell phone in violation

of the TCPA. Plaintiff was a customer of AT&T Mobility,

LLC, a wireless service provider, with which he signed a

contract that included an arbitration clause extending to all

disputes between him and AT&T. As defined in the wireless

services contract, any reference to AT&T Mobility also

included its “affiliates.” Years later, DIRECTV was

acquired by AT&T, Inc., which became the parent company

of both DIRECTV and AT&T Mobility.

Disagreeing with the Fourth Circuit, the panel held that,

under California contract law, looking to the reasonable

expectation of the parties at the time of contract, a valid

agreement to arbitrate did not exist between plaintiff and

DIRECTV because DIRECTV was not an affiliate of AT&T

Mobility when the contract was signed. Distinguishing

Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407 (2019), the panel

held that the FAA does not preempt California’s “absurd

results” canon, which requires that courts interpret contracts

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

REVITCH V. DIRECTV 3

to avoid absurd results. The panel concluded that the correct

inquiry was whether a valid agreement to arbitrate existed

between plaintiff and DIRECTV, rather than asking first,

whether plaintiff and AT&T entered into a valid arbitration

agreement and second, whether the scope of that agreement

required plaintiff to arbitrate claims against entities like

DIRECTV that later became affiliates of AT&T.

Concurring, Judge O’Scannlain wrote separately to

expand upon the issue of contract scope, as distinguished

from contract formation. He wrote that, even if the panel

considered the question under the rubric of scope, it would

still affirm the denial of the motion to compel arbitration

based on the express language of the FAA because the

dispute did not “arise out of” plaintiff’s contract with AT&T

Mobility under 9 U.S.C. § 2.

Dissenting, Judge Bennett wrote that neither party

disputed the existence and validity of the arbitration clause.

Thus, the issues before the panel fell squarely within the

question whether the agreement encompassed the dispute at

issue. Judge Bennett concluded that the arbitration clause’s

express terms encompassed the parties’ dispute because

“affiliates” in the clause clearly included DIRECTV.

Moreover, under Lamps Plus, ambiguities about the scope of

an arbitration clause must be resolved in favor of arbitration.

Thus, even if some ambiguity existed, application of this rule

of construction led to the same conclusion, that DIRECTV

could compel arbitration.

4 REVITCH V. DIRECTV

COUNSEL

Evan M. Tager, Archis A. Parasharami, and Daniel E. Jones,

Mayer Brown LLP, Washington, D.C., for Defendant-

Appellant.

L. Timothy Fisher, Joel D. Smith, and Yeremy O.

Krivoshey, Bursor & Fisher P.A., Walnut Creek, California,

for Plaintiff-Appellee.

OPINION

O’SCANNLAIN, Circuit Judge:

An arbitration clause in a wireless services agreement

purports to include all affiliates of the wireless services

company. We must decide whether a satellite television

company, which became an affiliate years after the

agreement was signed, may use the wireless services

agreement to compel arbitration in a suit brought against it

under the Telephone Consumer Protection Act.

In 2018, Jeremy Revitch brought this putative class

action against DIRECTV, LLC (“DIRECTV”) under the

Telephone Consumer Protection Act, 47 U.S.C. § 227

(“TCPA”). He alleges that DIRECTV, a satellite television

services company, initiated multiple telephone calls to his

cell phone using a prerecorded message. Each time, the

message allegedly said:

This is an important announcement from

[DIRECTV]. We are now offering our most

popular viewing package for only $19.99 per

REVITCH V. DIRECTV 5

month. For a limited time, new customers

also receive a free flat-screen television, just

for signing up. Press 1 to speak with a

representative, or press 9 to be removed from

future offers.

Revitch avers that he had no previous contact with

DIRECTV, never provided DIRECTV with his telephone

number, and certainly did not give DIRECTV permission to

flood his cell phone with robocalls.

According to Revitch’s complaint, DIRECTV has a

history of conducting unsolicited telemarketing campaigns,

for which it has been sued numerous times and has paid

millions of dollars in fines to the Federal Trade Commission.

Apparently frustrated with such spam calls, Revitch decided

to make use of the TCPA’s private right of action under

47 U.S.C. § 227(b)(3). He brings this class action against

DIRECTV on behalf of all persons in the United States who

have received prerecorded messages from the company over

the last four years without prior express written consent.

Faced with this lawsuit, DIRECTV somehow uncovered

the fact that Revitch also happens to be a customer of AT&T

Mobility LLC (“AT&T Mobility”), a wireless services

provider, with which he signed a contract when he upgraded

his mobile device in 2011, seven years before. That contract

for mobile phone wireless services included an arbitration

clause extending to “all disputes and claims between”

Revitch and AT&T Mobility, “includ[ing], but . . . not

limited to . . . claims arising out of or relating to any aspect

of the relationship between” them. As defined in Revitch’s

wireless services contract, any references to AT&T Mobility

also include its “affiliates.”

6 REVITCH V. DIRECTV

So how did this class action morph into a compulsory

arbitration appeal? It turns out that DIRECTV was acquired

in 2015 by AT&T, Inc., which is now the parent company of

both DIRECTV and AT&T Mobility. Thus, DIRECTV

contends that it has become an “affiliate” of AT&T Mobility

within the meaning of the wireless services agreement and

should therefore be able to piggyback onto the arbitration

clause, notwithstanding that it was not an affiliate at the time

Revitch signed the wireless services contract with AT&T

Mobility four years earlier. Soon after Revitch filed his

complaint, DIRECTV filed a motion to compel arbitration

of Revitch’s putative class action pursuant to the Federal

Arbitration Act, 9 U.S.C. §§ 1–16 (“FAA” or “the Act”).

In a twenty-seven-page order entered on behalf of the

district court, Chief Magistrate Judge Joseph C. Spero

denied DIRECTV’s motion, concluding that the contract

between Revitch and AT&T Mobility did not reflect an

intent to arbitrate the claim that Revitch asserts against

DIRECTV.

DIRECTV now appeals the order denying its motion to

compel arbitration.

When a motion to compel arbitration is filed, a “court

shall hear the parties, and upon being satisfied that the

making of the agreement for arbitration or the failure to

comply therewith is not in issue . . . shall make an order

directing the parties to proceed to arbitration in accordance

with the terms of the agreement.” 9 U.S.C. § 4. Because “the

Act leaves no place for the exercise of discretion by a district

court,” Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213,

REVITCH V. DIRECTV 7

218 (1985), a federal court’s role is “limited to determining

(1) whether a valid agreement to arbitrate exists and, if it

does, (2) whether the agreement encompasses the dispute at

issue,” Chiron Corp. v. Ortho Diagnostic Sys., Inc., 207 F.3d

1126, 1130 (9th Cir. 2000). If the answer to both questions

is yes, then the FAA requires a court “to enforce the

arbitration agreement in accordance with its terms.” Id.; see

also Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S.

287, 299 (2010) (“[C]ourts should order arbitration of a

dispute only where the court is satisfied that neither the

formation of the parties’ arbitration agreement nor (absent a

valid provision specifically committing such disputes to an

arbitrator) its enforceability or applicability to the dispute is

in issue.” (emphasis in original)).

Does a valid agreement to arbitrate exist between

Revitch and DIRECTV?

The Revitch-AT&T Mobility wireless services agreement provides

that “issues relating to the scope and enforceability of the arbitration

provision are for the court to decide.” Thus, it is unquestionably the

responsibility of the court—not the arbitrator—to resolve this case.

The dissent argues that this is the “wrong question” to ask, and that

instead, we should proceed by asking first “[w]hether Revitch and AT&T

entered into a valid arbitration agreement,” then subsequently “[w]hether

the scope of that agreement requires Revitch to arbitrate claims against

entities (like DIRECTV) that later became affiliates of AT&T.” Dissent

at 28 n.6.

We respectfully disagree.

It is a longstanding maxim of California law that for a nonsignatory

party to enforce a contract as a third-party beneficiary, that party must

8 REVITCH V. DIRECTV

To answer the question, we look to state contract law.

Wolsey, Ltd. v. Foodmaker, Inc., 144 F.3d 1205, 1210 (9th

Cir. 1998). Because the wireless services agreement’s

choice-of-law provision states that the contract is governed

by the law of the state in which the customer’s billing

address is located, we apply the law of Revitch’s home state

of California.

In California, “[a] contract must be so interpreted as to

give effect to the mutual intention of the parties as it existed

at the time of contracting.” Cal. Civ. Code § 1636. We

normally determine the mutual intention of the parties “from

the written terms [of the contract] alone,” so long as the

“contract language is clear and explicit and does not lead to

absurd results.” Kashmiri v. Regents of Univ. of Cal., 67 Cal.

Rptr. 3d 635, 652 (Ct. App. 2007); see also Cal. Civ. Code

§§ 1638 (“The language of a contract is to govern its

do so on a theory that “the law [has] establishe[d] a privity, and

implie[d]” a mutual “promise and obligation,” between the nonsignatory

party and the signatory party against whom it seeks enforcement. Spinks

v. Equity Residential Briarwood Apartments, 90 Cal. Rptr. 3d 453, 470

(Ct. App. 2009) (emphasis added) (quoting Johnson v. Holmes Tuttle

Lincoln-Mercury, Inc., 325 P.2d 193, 197 (Cal. Ct. App. 1958) (citing

Washer v. Indep. Mining & Dev. Co., 76 P. 654, 657 (Cal. 1904))). In

other words, our determination of whether DIRECTV can avoid the

“general rule that one must be a party to an arbitration agreement to

invoke it,” DMS Servs., LLC v. Super. Ct., 140 Cal. Rptr. 3d 896, 901

(Ct. App. 2012), hangs precisely on the question of whether the

“operati[on]” of law has “establishe[d] a privity,” Spinks, 90 Cal. Rptr.

3d at 470, between Revitch and DIRECTV.

Moreover, it bears noting that in Mey v. DIRECTV, LLC—which is

relied upon heavily throughout the dissent—the Fourth Circuit expressly

framed the relevant question as whether a plaintiff (who had signed the

same AT&T wireless services contract as Revitch) could be said to have

“formed an agreement to arbitrate with DIRECTV.” __ F.3d __, 2020 WL

4660194, at *1 (4th Cir. 2020) (emphasis added).

REVITCH V. DIRECTV 9

interpretation, if the language is clear and explicit, and does

not involve an absurdity.”), 1639 (“When a contract is

reduced to writing, the intention of the parties is to be

ascertained from the writing alone, if possible . . . .”). The

relevant words of the wireless services agreement are:

“References to ‘AT&T,’ ‘you’ and ‘us’ include our

respective . . . affiliates . . . .”

We must thus decide whether DIRECTV qualifies as an

“affiliate” of AT&T Mobility, as the term is used in the

wireless services agreement. Because the word is not

elsewhere defined in the contract, we rely on the ordinary

definition. See Cal. Civ. Code § 1644 (“The words of a

contract are to be understood in their ordinary and popular

sense, rather than according to their strict legal meaning

. . . .”). An affiliate is normally understood as “a company

effectively controlled by another or associated with others

under common ownership or control.” Satterfield v. Simon

& Schuster, Inc., 569 F.3d 946, 955 (9th Cir. 2009) (quoting

Webster’s Third New International Dictionary 35 (2002));

see also Cal. Corp. Code § 150 (“A corporation is an

‘affiliate’ of . . . another specified corporation if it . . . is

under common control with the other specified

corporation.”). Because DIRECTV and AT&T Mobility are

under common ownership by AT&T, Inc. today, they are

affiliates.

DIRECTV would have us end the inquiry right here. It

does not matter, DIRECTV argues, that it was not an affiliate

at the time Revitch and AT&T Mobility entered into their

contract and that it became an affiliate years later following

a corporate acquisition that had nothing to do with Revitch

or his wireless services agreement. However, as we already

mentioned, we rely on the “written terms alone” when the

“contract language is clear and explicit and does not lead to

10 REVITCH V. DIRECTV

absurd results.” Kashmiri, 67 Cal. Rptr. 3d at 652 (emphasis

added). Here, absurd results follow from DIRECTV’s

preferred interpretation: Under this reading, Revitch would

be forced to arbitrate any dispute with any corporate entity

that happens to be acquired by AT&T, Inc., even if neither

the entity nor the dispute has anything to do with providing

wireless services to Revitch—and even if the entity becomes

an affiliate years or even decades in the future. The Eastern

District of New York, addressing a similar set of facts in

Wexler v. AT&T Corp., 211 F. Supp. 3d 500, 504 (E.D.N.Y.

2016), concluded that “no reasonable person would think

that checking a box accepting the ‘terms and conditions’

necessary to obtain cell phone service would obligate them

[sic] to arbitrate literally every possible dispute he or she

might have with the service provider, let alone all of the

affiliates under AT&T Inc.’s corporate umbrella—including

those who provide services unrelated to cell phone

coverage.” We agree.

“[W]e look to the reasonable expectation of the parties

at the time of contract.” Kashmiri, 67 Cal. Rptr. 3d at 652.

We also may explain a contract “by reference to the

circumstances under which it was made, and the matter to

which it relates.” Cal. Civ. Code § 1647. Here, when Revitch

signed his wireless services agreement with AT&T Mobility

so that he could obtain cell phone services, he could not

reasonably have expected that he would be forced to

arbitrate an unrelated dispute with DIRECTV, a satellite

television provider that would not become affiliated with

AT&T until years later. Accordingly, we are satisfied that a

valid agreement to arbitrate between Revitch and DIRECTV

does not exist.

Had the wireless services agreement stated that “AT&T”

refers to “any affiliates, both present and future,” we might

REVITCH V. DIRECTV 11

arrive at a different conclusion. However, absent this or

similar forward-looking language, we are convinced that the

agreement does not cover entities that became affiliated with

AT&T Mobility years after the contract was signed in an

unrelated corporate acquisition. See Unova, Inc. v. Acer Inc.,

363 F.3d 1278, 1282 (Fed. Cir. 2004) (interpreting

California law and holding that a release from liability

provision “written in the present tense . . . most naturally

does not refer to [a party’s] future parents”); VKK Corp. v.

Nat’l Football League, 244 F.3d 114, 130 (2d Cir. 2001)

(“The Release’s reference to ‘affiliates’ . . . [is] stated in the

present tense. Nothing . . . indicates the inclusion of future

rather than present members.”); Ellington v. EMI Music,

Inc., 21 N.E.3d 1000, 1004 (N.Y. 2014) (“Absent explicit

language demonstrating the parties’ intent to bind future

affiliates of the contracting parties, the term ‘affiliate’

includes only those affiliates in existence at the time that the

contract was executed.”).

Because it was not and is not now a party to the wireless

services agreement between Revitch and AT&T Mobility,

DIRECTV may not invoke the agreement to compel

arbitration. DMS Servs., 140 Cal. Rptr. 3d at 900.

DIRECTV contends that the FAA preempts the absurd-

results canon and, as a result, we must enforce the arbitration

clause. Although the FAA preserves generally applicable

contract defenses to arbitration agreements, 9 U.S.C. § 2, the

Supreme Court has held that even such defenses which

“have a disproportionate impact on arbitration agreements”

or “have been applied in a fashion that disfavors arbitration”

are preempted by the FAA, AT&T Mobility LLC v.

Concepcion, 563 U.S. 333, 341–42 (2011). Recently, in

Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407, 1418 (2019),

12 REVITCH V. DIRECTV

the Court held that the FAA preempts California’s contra

proferentem rule—requiring ambiguities in a contract to be

construed against the drafter—when the rule is used “to

impose class arbitration in the absence of the parties’

consent.” DIRECTV argues that Lamps Plus is dispositive

in this case because it stands for the proposition that

ambiguities must be resolved in favor of arbitration.

Consequently, DIRECTV claims, any ambiguity about

whether it is an “affiliate” of AT&T Mobility must be

resolved in favor of arbitration.

We disagree with DIRECTV’s interpretation of Lamps

Plus and its application to the present case. The problem

with contra proferentem, according to the Supreme Court, is

that it is a “default rule” that is “triggered only after a court

determines that it cannot discern the intent of the parties.”

Id. at 1417 (emphasis in original). The rule is distinguishable

from other “contract rules that help to interpret the meaning

of a term, and thereby uncover the intent of the parties.” Id.

By contrast, we use the absurd-results canon to discern the

mutual intent of the parties based on their reasonable

expectations at the time of contract.

DIRECTV fails to show that California’s absurd-results

canon disfavors arbitration agreements compared to other

contracts. The FAA’s savings clause was intended to “make

arbitration agreements as enforceable as other contracts, but

not more so.” Prima Paint Corp. v. Flood & Conklin Mfg.

Co., 388 U.S. 395, 404 n.12 (1967). Accordingly, we are not

persuaded that the FAA preempts California’s rule requiring

that courts interpret contracts to avoid absurd results.

Contrary to the dissent’s characterization, our conclusion that

DIRECTV’s preferred interpretation of the contract is absurd has nothing

REVITCH V. DIRECTV 13

The dissent agrees with DIRECTV that the question of

whether Revitch is an affiliate of AT&T Mobility under the

wireless services agreement is a matter of the contract’s

scope to be resolved at the second step of our FAA analysis,

not a matter of contract formation to be resolved at the first.

Dissent at 28–29.

We think that DIRECTV’s preferred framework for

resolving this case is a misreading of our precedents. We

determine “(1) whether a valid agreement to arbitrate exists”

and “(2) whether the agreement encompasses the dispute at

issue.” Chiron, 207 F.3d at 1130. Here, the question we must

answer is whether the arbitration clause in the Revitch-

AT&T Mobility wireless services contract is a valid

agreement between Revitch and DIRECTV to arbitrate their

disputes. Nothing in our precedents requires that we answer

that question at step two rather than step one.

We also think that DIRECTV’s preferred framework

would subvert the Supreme Court’s FAA jurisprudence,

which emphasizes that “[a]rbitration is strictly ‘a matter of

consent . . . .’” Granite Rock, 561 U.S. at 299 (quoting Volt

Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Junior

to do with the relative merits of arbitration compared to litigation.

Dissent at 30. We are merely following the Supreme Court’s command

that “a party cannot be required to submit to arbitration any dispute

which he has not agreed so to submit.” AT&T Techs., Inc. v. Commc’ns

Workers of Am., 475 U.S. 643, 648 (1986) (quoting United Steelworkers

of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582 (1960)).

Interpreting Revitch’s agreement to arbitrate a dispute with AT&T

Mobility as a consent to arbitrate any and all disputes with unknown

corporate entities to be acquired by AT&T, Inc. years in the future is

undoubtedly absurd. We are not persuaded by the dissent’s argument that

the absurd-results canon is inapplicable in this extreme case.

14 REVITCH V. DIRECTV

Univ., 489 U.S. 468, 479 (1989)). Because “any doubts

concerning the scope of arbitrable issues should be resolved

in favor of arbitration,” Moses H. Cone Mem’l Hosp. v.

Mercury Constr. Corp., 460 U.S. 1, 24–25 (1983) (emphasis

added), it follows that if we were always to treat the question

of who is a party to a contract as a matter of scope, then in

turn, we would be required always to err on the side of

accepting individuals or entities as parties who could invoke

an arbitration clause, even if the other party would never

have consented to such an arrangement when it entered into

the contract.

We are not persuaded by DIRECTV’s argument that we

must evaluate Revitch’s claim against it as a matter of the

scope of the contract between Revitch and AT&T Mobility.

We are aware that the Fourth Circuit, considering a

recent case presenting facts and issues substantially similar

to those presented here (including, most pertinently, an

arbitration clause identical to that signed by Revitch), has

arrived at the opposite conclusion. See Mey v. DIRECTV,

LLC, __ F.3d __, 2020 WL 4660194 (4th Cir. Aug. 7, 2020).

Moreover, we are aware that with our decision today, we are

opening a circuit split on this difficult issue: Can anything

less than the most explicit “infinite language” in a consumer

services agreement bind the consumer to arbitrate any and

all disputes with (yet-unknown) corporate entities that might

later become affiliated with the service provider—even

when neither the entity nor the dispute bear any material

relation to the services provided under the initial agreement?

See David Horton, Infinite Arbitration Clauses, 168 U. Pa.

L. Rev. 633, 670–78 (2020).

REVITCH V. DIRECTV 15

Much of the Fourth Circuit’s reasoning in Mey tracks

that of the dissent here, and as such is already addressed in

our foregoing analysis. There is, however, one particular

point in the Mey opinion which does merit additional

attention. Namely, the majority in Mey contends that in

evaluating the soundness of DIRECTV’s preferred

interpretation of the arbitration clause, it would be

inappropriate for a court to consider the “troubling

hypothetical scenarios” to which such an interpretation

could give rise. __ F.3d __, 2020 WL 4660194, at *7. For

that contention, the Fourth Circuit relies on Parm v.

Bluestem Brands, Inc., 898 F.3d 869, 878 (8th Cir. 2018),

which it characterizes as “rejecting interpretation by

hypothetical in favor of looking ‘to the underlying factual

allegations’” in the case at bar, Mey, __ F.3d __, 2020 WL

4660194, at *7. But we understand Parm to stand for a

narrower proposition, and one that is ultimately inapposite

here.

In Parm, it was uncontroverted that a valid agreement to

arbitrate had been formed between the parties; the issue

presented was limited to that of whether the “plaintiffs’

claims f[e]ll within the scope of [those] arbitration clauses.”

898 F.3d at 871 (emphasis added). In that context, the

“glaring issue” with the plaintiffs’ use of hypotheticals was

“that they in no way inform the question before the court

because we must ‘look ... to the underlying factual

allegations [in the case actually at bar] and determine

whether they fall within the scope of the arbitration clause.’”

Id. at 878 (quoting 3M Co. v. Amtex Sec., Inc., 542 F.3d

1193, 1199 (8th Cir. 2008)) (emphasis added). Because

“doubts concerning the scope of arbitrable issues should be

resolved in favor of arbitration,” Moses H. Cone Mem’l

Hosp., 460 U.S. at 24–25 (emphasis added), the Eighth

Circuit reasoned that it would be inappropriate to consider

16 REVITCH V. DIRECTV

hypothetical horribles in order to find “a way to interpret the

claims as falling outside the scope of the agreements,” Parm,

898 F.3d at 878. Yet here, as we have explained, the issue is

not one of agreement scope, but one of agreement formation.

Within this context, our consideration of hypotheticals

serves an altogether different purpose, and one which very

much does inform the question now before the court. Like

the court in Wexler, 211 F. Supp. 3d at 502–503, we employ

hypotheticals to discern whether the mutual intent of the

parties could have been to form an agreement to arbitrate any

and all disputes that might ever arise between Revitch and

yet-unknown affiliates such as DIRECTV, no matter how

unrelated to AT&T Mobility’s provision of cellular phone

service, including but not limited to the TCPA claim

presented here. Had that been the parties’ intent, as

DIRECTV argues it was, it would necessarily mean that the

parties intended to agree to arbitrate the “tort claim[s]” that

would arise “[i]f [Revitch] were hit by a [DIRECTV]

delivery van, or if [he] tripped over a dangerous condition in

a [DIRECTV] store,” or the “securities-fraud claim” that

would arise if Revitch “bought shares of stock in

[DIRECTV] and later claimed a decrease in share price was

the result of corporate malfeasance.” Id. at 503. These

hypotheticals merely serve to bolster our conclusion that the

parties’ intention—based on their reasonable expectations at

the time of contract—was not to form an arbitration

agreement of the kind that DIRECTV would now have us

read into the contract.

III

No one disputes that arbitration clauses subject to the Act

must be enforced in federal courts. But we are mindful that

arbitration is a matter of consent, and we conclude that

REVITCH V. DIRECTV 17

DIRECTV has failed to establish that Revitch consented to

arbitrate this pending dispute.

The district court’s denial of the motion to compel

arbitration is AFFIRMED.

O’SCANNLAIN, Circuit Judge, concurring:

I write separately to expand upon the issue of contract

scope, as distinguished from contract formation. Even if we

consider the question under the rubric of scope, I respectfully

suggest that we would still affirm the denial of the motion to

compel arbitration based on the express language of the

Federal Arbitration Act (“FAA,” or “the Act”) itself. The

dispute between DIRECTV and Revitch in this case simply

does not “aris[e] out of” Revitch’s contract with AT&T

Mobility. 9 U.S.C. § 2.

Although our “authority under the [Federal] Arbitration

Act to compel arbitration may be considerable, it isn’t

unconditional.” New Prime Inc. v. Oliveira, 139 S. Ct. 532,

537 (2019). We are bound by the terms of the Act, including

§ 2, which provides: “A written provision in any maritime

transaction or a contract evidencing a transaction involving

commerce to settle by arbitration a controversy thereafter

arising out of such contract or transaction . . . shall be valid,

irrevocable, and enforceable . . . .” 9 U.S.C. § 2 (emphasis

Whatever compulsory arbitration rights DIRECTV may have

under California law, see Cal. Civ. Proc. Code § 1281, they are irrelevant

to this appeal. DIRECTV brought its motion to compel arbitration under

federal law, not state law.

18 REVITCH V. DIRECTV

added). Significantly, the controversy that is to be settled by

arbitration must be one “arising out of” the contract or

transaction. By negative implication, the FAA does not

require the enforcement of an arbitration clause to settle a

controversy that does not arise out of the contract or

transaction.

What does it mean that a controversy must be one

“arising out of” the contract or transaction?

Remarkably, the “arising out of” language in § 2 has

generated little judicial attention. Indeed, in my research thus

far, I have been unable to find any case that explains it.

There may be some ambiguity in § 2’s requirement that the

controversy to be arbitrated must arise out of “such contract or

transaction.” Here, the word “transaction” might refer to a “maritime

transaction” and “contract” to a commercial transaction. However,

“transaction” could also be read to mean the commercial transaction that

is the subject of the contract. The latter interpretation suggests that the

FAA has a broader scope because it encompasses controversies that may

not arise out of the contract but do arise out of the underlying commercial

transaction. A leading paper on this subject argues for the narrower

reading. See Stephen E. Friedman, The Lost Controversy Limitation of

the Federal Arbitration Act, 46 U. Rich. L. Rev. 1005, 1041–44 (2012).

It suggests that if “transaction” referred to the commercial transaction,

“then there would be no reference to controversies arising from the

maritime transaction, even though Congress obviously intended to

include such controversies within the scope of the FAA.” Id. at 1043.

Such issue need not be resolved here, as it likely would not change the

outcome in this case.

One of our sister circuits has expressly stated—in direct

contradiction of the text of the statute—that a controversy need not

“aris[e] out of” the contract or transaction for the FAA to apply. In Zink

v. Merrill Lynch Pierce Fenner & Smith, Inc., 13 F.3d 330, 333 (10th

REVITCH V. DIRECTV 19

the absence of such guidance, I have no choice but to look to

other sources.

In the context of an insurance policy, one of our sister

circuits has interpreted “arising out of” to mean “originating

from,” “having its origin in,” “growing out of,” “flowing

from,” and “incident to, or having connection with.” Red

Ball Motor Freight, Inc. v. Emp’rs. Mut. Liab. Ins. Co. of

Wis., 189 F.2d 374, 378 (5th Cir. 1951); see also Rouse v.

Greyhound Rent-A-Car, Inc., 506 F.2d 410, 414 n.3 (5th Cir.

1975) (“The term ‘arising out of’ is ordinarily understood to

mean originating from, incident to, or connected with the

item in question.”). Our Court has relied on this definition

when construing a similar term, “arising from,” in insurance

policies, see Cont’l Cas. Co. v. City of Richmond, 763 F.2d

1076, 1080 (9th Cir. 1985); Underwriters at Lloyd’s of

London v. Cordova Airlines, Inc., 283 F.2d 659, 664 (9th

Cir. 1960), and in a provision of the U.S. Bankruptcy Code,

see In re Tristar Esperanza Props., LLC, 782 F.3d 492, 497

(9th Cir. 2015).

We have held that “arising from” is broad in scope—

broader, even, than the term “caused by.” Cont’l Cas. Co.,

763 F.2d at 1080. However, we have never interpreted either

“arising from” or “arising out of” so broadly such that there

need not be any relationship whatsoever between the original

contract or event and the resulting controversy. In

Mediterranean Enters., Inc. v. Ssangyong Corp., 708 F.2d

Cir. 1993), the Tenth Circuit held that the FAA “cover[s] agreements to

arbitrate a dispute not arising out of the contract containing the

arbitration agreement so long as the other requirements of the Act are

satisfied.” Because “we are obliged to give effect, if possible, to every

word Congress used,” I am not persuaded by the Tenth Circuit’s decision

to ignore the controversy limitation in the text of § 2. Reiter v. Sonotone

Corp., 442 U.S. 330, 339 (1979).

20 REVITCH V. DIRECTV

1458, 1463 (9th Cir. 1983), we held that an arbitration clause

using the language “arising under the contract” does not

encompass “matters or claims independent of the contract or

collateral thereto.” Instead, such an arbitration clause covers

only those disputes “relating to the interpretation and

performance of the contract itself.” Id. at 1464. We later

interpreted the phrase “arising out of” to have the same scope

as “arising under.” Tracer Research Corp. v. Nat’l Envtl.

Servs. Co., 42 F.3d 1292, 1295 (9th Cir. 1994).

Applying these principles to the language of § 2 of the

Act, when it requires that the controversy be one “arising out

of” the contract or transaction, it, at a minimum, must

exclude claims that are completely unrelated to the

underlying contract or transaction.

Because the Supreme Court has applied the FAA quite

frequently and in a variety of controversies without ever

addressing the “arising out of” language in § 2, one might

assume that the limitation has fallen into desuetude and that,

consequently, relying on it now would conflict with the

Court’s arbitration jurisprudence. However, in my research

thus far, I have not found that to be the case; instead, it

appears that there is always some relationship between the

controversy and the underlying contract.

For example, in some of the Court’s typical arbitration

cases, the controversy was a defect in contract formation.

The defendant moved to compel arbitration based on a

provision in that same contract. See CompuCredit Corp. v.

Greenwood, 565 U.S. 95, 97 (2012) (individuals who

applied for a credit card accused the credit card company and

bank of making misleading representations about the

benefits of obtaining the card); AT&T Mobility LLC v.

REVITCH V. DIRECTV 21

Concepcion, 563 U.S. 333, 337 (2011) (new customers

accused a wireless services company of false advertising and

fraud).

In other cases, one of the parties allegedly breached a

contract and, when faced with arbitration, asked a court to

declare that the arbitration clause in the contract was

unenforceable. See Nitro-Lift Techs., L.L.C. v. Howard,

568 U.S. 17, 18 (2012) (former employees allegedly violated

their employment contract by working for a competitor);

Preston v. Ferrer, 552 U.S. 346, 350 (2008) (plaintiff

allegedly did not pay fees due under a service contract).

Finally, in many of the Court’s arbitration cases, the

plaintiff sued the defendant for some type of foreseeable

misconduct that occurred during the course of performing

the contract. The defendant then moved to compel

arbitration based on an arbitration clause in that contract. See

Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1620 (2018)

(employer accused of violating the Fair Labor Standards Act

and California law by misclassifying and underpaying its

employees demanded arbitration pursuant to the

employment contracts); Kindred Nursing Ctrs. Ltd. P’ship v.

Clark, 137 S. Ct. 1421, 1425 (2017) (nursing home accused

of delivering substandard care that caused the deaths of

residents demanded arbitration pursuant to the nursing home

service contracts); DIRECTV, Inc. v. Imburgia, 136 S. Ct.

463, 466 (2015) (satellite television services company

accused of charging early termination fees in violation of

California law demanded arbitration pursuant to the service

contract); Am. Express Co. v. Italian Colors Rest., 570 U.S.

228, 231 (2013) (credit card company accused of violating

antitrust laws by forcing merchants to accept significantly

higher rates demanded arbitration pursuant to contracts with

those merchants); Marmet Health Care Ctr., Inc. v. Brown,

22 REVITCH V. DIRECTV

565 U.S. 530, 531–32 (2012) (nursing homes accused of

negligently causing injuries resulting in deaths of residents

demanded arbitration pursuant to nursing home service

contracts); Buckeye Check Cashing, Inc. v. Cardegna,

546 U.S. 440, 442–43 (2006) (lender accused of charging

usurious interest rates in violation of Florida lending and

consumer-protection laws demanded arbitration pursuant to

its loan agreements with the borrowers).

However, I have been unable to locate any case in which

the Supreme Court enforced an arbitration clause when the

underlying claim was wholly unrelated to the contract in

which the clause was contained. Functionally, the “arising

out of” language in § 2 appears to serve as a boundary to the

types of controversies that are covered by the FAA: Federal

courts are required to compel arbitration for those

controversies that actually stem from the contract containing

the arbitration clause. But when the dispute is wholly

unrelated to the contract, the FAA is silent; federal courts

have no power to compel arbitration. See David Horton,

Infinite Arbitration Clauses, 168 U. Pa. L. Rev. 633, 678–83

(2020); Friedman, supra n.1, at 1006.

Focusing on the “arising out of” language as a boundary

to the types of disputes that are covered by the FAA is in

keeping with other guidance that we have received from the

Supreme Court, as well as our own approach to statutory

construction. “Arbitration under the Act is a matter of

consent . . . .” Volt Info. Scis., Inc. v. Bd. of Trs. of Leland

Stanford Junior Univ., 489 U.S. 468, 479 (1989). A party

can hardly be said to consent to arbitrate disputes that have

nothing at all to do with the subject of the contract the party

signed or the provider-customer relationship the contract

creates, let alone a claim against an entity not even in parity

at the time.

REVITCH V. DIRECTV 23

So, is Revitch’s Telephone Consumer Protection Act

class action suit against DIRECTV one “arising out of”

Revitch’s wireless services contract with AT&T Mobility

within the meaning of § 2 of the Act? I conclude the answer

is no.

The AT&T Mobility arbitration clause is undoubtedly

written in broad terms, but it resides in the wireless services

form contract that it imposed on Revitch at the time he

upgraded his mobile device. Thus, the pertinent relationship

it covers is that by which AT&T Mobility (or its “affiliates”)

provides Revitch with wireless services. Within this

umbrella, the arbitration clause is indeed broad.

Undoubtedly, it requires arbitration of a host of disputes that

might arise between AT&T and Revitch, including, for

example, defective cell phone reception or failure to pay

monthly charges. But DIRECTV’s decision to send Revitch

unsolicited advertisements for its satellite television

products—thereby allegedly violating the Telephone

Consumer Protection Act—does not in any way involve the

formation or performance of a contract for wireless services

between Revitch and AT&T Mobility.

In my view, we can affirm the district court on the

separate ground that the controversy between DIRECTV and

Revitch does not come within the Federal Arbitration Act

since it does not “aris[e] out of” the contract between

Revitch and AT&T Mobility.

24 REVITCH V. DIRECTV

BENNETT, Circuit Judge, dissenting:

Neither party disputes the existence and validity of the

arbitration clause on which DIRECTV, LLC (“DIRECTV”)

relies. Thus, the issues before us fall squarely within the

second question we consider when analyzing an arbitration

agreement under the Federal Arbitration Act (“FAA”)—

“whether the agreement encompasses the dispute at issue.”

Chiron Corp. v. Ortho Diagnostic Sys., Inc., 207 F.3d 1126,

1130 (9th Cir. 2000). I respectfully dissent because the

arbitration clause’s express terms encompass the parties’

dispute. “Affiliates” in the arbitration clause clearly includes

DIRECTV, so DIRECTV may invoke it to compel

arbitration. Moreover, the Supreme Court has instructed

“that ambiguities about the scope of an arbitration agreement

must be resolved in favor of arbitration.” Lamps Plus, Inc. v.

Varela, 139 S. Ct. 1407, 1418 (2019). Even if some

ambiguity exists, applying this simple rule of construction

leads to the same conclusion—DIRECTV may compel

arbitration here.

I agree with the majority that (1) DIRECTV is currently

an affiliate of AT&T Mobility LLC (“AT&T”) and (2) our

inquiry into whether DIRECTV may enforce the arbitration

clause against Jeremy Revitch requires us to determine

whether the word “affiliates” includes entities who became

affiliates of AT&T after Revitch signed his wireless services

contract. This is where my agreement with the majority ends.

I start with the text of the arbitration clause: “AT&T and

you agree to arbitrate all disputes and claims between us.

This agreement to arbitrate is intended to be broadly

interpreted. It includes, but is not limited to . . . claims arising

out of . . . any aspect of the relationship between us, whether

based in . . . statute . . . or any other legal theory.” The

arbitration clause also provides: “References to ‘AT&T,’

REVITCH V. DIRECTV 25

‘you’ and ‘us’ include our respective subsidiaries, affiliates,

agents, employees, predecessors in interest, successors, and

assigns, as well as all authorized or unauthorized users or

beneficiaries of services or Devices under this or prior

Agreements between us.”

Nothing in the arbitration clause or in the dictionary

definition of the word “affiliate” confers any type of

temporal scope to the term so that “affiliates” should be read

to refer only to present affiliates.

DIRECTV is therefore an

affiliate within the explicit language of the arbitration

clause.

Because Revitch agreed to arbitrate “all disputes

and claims,” including statutory claims, between him and

DIRECTV, DIRECTV may compel arbitration under the

agreement. Our inquiry should end there.

See Maj. Op. at 9 (citing Satterfield v. Simon & Schuster, Inc.,

569 F.3d 946, 955 (9th Cir. 2009) (quoting Webster’s Third New

International Dictionary 35 (2002)) and Cal. Corp. Code § 150).

The Fourth Circuit recently came to this conclusion when

considering an identical arbitration clause in Mey v. DIRECTV, LLC, __

F.3d __, 2020 WL 4660194 (4th Cir. 2020): “Mey does not advance any

reason we should restrict the ordinary meaning of ‘affiliates’ here, nor

do we find any. The agreement contains no explicit limitation on the term

[affiliates].” Id. at *4.

The arbitration clause provides that “AT&T” (defined as including

affiliates like DIRECTV) “may commence an arbitration proceeding.”

Given this express contractual language, we need not resort to different

“operation[s] of law,” as suggested by the majority, to determine whether

DIRECTV may invoke the arbitration agreement. See Maj. Op. at 7–8,

n.2; cf. Spinks v. Equity Residential Briarwood Apts., 90 Cal. Rptr. 3d

453, 473 (Ct. App. 2009) (“Because resort to the contract language alone

does not resolve the question of plaintiff’s status, we look to the

circumstances surrounding the formation and performance of the

[contract].”).

26 REVITCH V. DIRECTV

But even were we to go further, other language in the

arbitration clause shows that the parties did not intend to

place a temporal limitation on “affiliates.” Indeed, the

arbitration clause expressly contemplates coverage of some

persons and entities that were unconnected with AT&T

when Revitch entered into the contract. “[P]redecessors in

interest” looks backward. “[S]uccessors” and “assigns” look

forward. The arbitration clause also refers to other types of

persons and entities that have no explicit temporal

limitations—“subsidiaries,” “agents,” and “employees.” No

one would suggest that the arbitration clause applied only to

those who were, for example, AT&T’s agents or employees

at the time of contracting, as opposed to those who became

AT&T’s agents or employees a week, a month, or several

years later. This language shows that the parties did not

intend for the arbitration clause to cover only entities

connected to AT&T at the time of contracting.

Other

language in the arbitration clause also counsels against

construing “affiliates” as temporally limited. Significantly,

the agreement provides: “This agreement to arbitrate is

intended to be broadly interpreted.” Restricting “affiliates”

to only current affiliates at the time of contracting would be

inconsistent with the parties’ express agreement to construe

the arbitration clause broadly. Current affiliates is obviously

less broad than affiliates. The arbitration clause also contains

Similar to Revitch, the plaintiff in Mey argued “that ‘affiliates’

should be limited to affiliates existing at the time the contract was

signed.” Mey, 2020 WL 4660194, at *4. The majority in Mey disagreed,

pointing to “successors” and “assigns” as entities “whose identities

cannot be known until some point in the future.” Id. at *5. It also noted

that the identities of affiliates, subsidiaries, agents, and employees “are

subject to change over the period in which a customer uses the service.”

Id. “In light of the forward-looking nature of the agreement, it is unlikely

the parties intended to restrict the covered entities to those existing at the

time the agreement was signed.” Id.

REVITCH V. DIRECTV 27

forward-looking provisions. The arbitration clause applies to

“claims that may arise after the termination of this

Agreement,” and the “arbitration provision shall survive

termination of this Agreement.” These forward-looking

provisions are entirely consistent with interpreting

“affiliates” to include entities like DIRECTV that associated

with AT&T after Revitch contracted with AT&T.

In sum, nothing in the contract language, including the

language surrounding the term “affiliates,” supports

rewriting the contract to import a temporal limit into the

meaning of “affiliates.” DIRECTV, as an affiliate of AT&T,

may therefore enforce the arbitration agreement.

But for argument’s sake, let’s assume that “affiliates”

does not clearly encompass AT&T’s future affiliates.

The

above analysis shows that, at the very least, it is reasonable

to read “affiliates” as including future affiliates, given the

ordinary meaning of the term and the context in which it is

used. Let’s then assume that it would also be reasonable to

interpret “affiliates” as referring to only those entities that

were affiliated with AT&T at the time of contracting. Under

this hypothetical, there are two or more reasonable

constructions of “affiliates,” rendering the scope of the term

ambiguous. See Benach v. County of Los Angeles, 57 Cal.

Rptr. 3d 363, 372 (Ct. App. 2007) (“Ambiguity exists when

a contractual provision is susceptible of two or more

reasonable constructions.”).

The Fourth Circuit did not address construction arguments related

to ambiguity, because the “ordinary meaning of ‘affiliates” and the

contractual context convince[d the majority] that the term includes

affiliates acquired after the agreement was signed.” Mey, 2020 WL

4660194, at *5.

28 REVITCH V. DIRECTV

The Supreme Court has made it clear that “as with any

other contract, the parties’ intentions control, but those

intentions are generously construed as to issues of

arbitrability.” Mitsubishi Motors Corp. v. Soler Chrysler-

Plymouth, Inc., 473 U.S. 614, 626 (1985). If “the problem at

hand is the construction of the contract language itself,” then

“any doubts concerning the scope of arbitrable issues should

be resolved in favor of arbitration.” Moses H. Cone Mem’l

Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24–25 (1983).

If “affiliates” is ambiguous, then these Supreme Court

commands would require us to construe “affiliates” broadly

as including entities that became affiliated with AT&T after

Revitch and AT&T entered into their contract. See Lamps

Plus, 139 S. Ct. at 1418 (“[A]mbiguities about the scope of

an arbitration agreement must be resolved in favor of

arbitration.”).

The majority avoids this result by incorrectly framing the

issue as one of contract existence and then invoking what it

calls the “absurd-results canon.”

First, Revitch does not

dispute the existence of the arbitration agreement, so the

issue before us is one of scope—“whether the agreement

encompasses the dispute at issue.” Chiron Corp., 207 F.3d

at 1130; see also Goldman, Sachs & Co. v. City of Reno,

747 F.3d 733, 742 (9th Cir. 2014) (“Where the arbitrability

of a dispute is contested, we must decide whether the parties

The majority asks and then answers the wrong question. It

essentially asks whether Revitch and DIRECTV are parties to a contract.

But DIRECTV never claims it entered into any contract with Revitch—

AT&T entered into the contract with Revitch. The right questions are:

1) Whether Revitch and AT&T entered into a valid arbitration agreement

(answer-Yes); and 2) Whether the scope of that agreement requires

Revitch to arbitrate claims against entities (like DIRECTV) that later

became affiliates of AT&T (answer-Yes).

REVITCH V. DIRECTV 29

are contesting the existence or the scope of an arbitration

agreement.”).

Second, the absurd-results canon cited by the majority

applies only if there is an ambiguity. In Kashmiri v. Regents

of Univ. of Cal., 67 Cal. Rptr. 3d 635 (Ct. App. 2007), the

case cited by the majority, the California Court of Appeal

cited California Civil Code §§ 1638 and 1639 to support its

statement that “[w]here contract language is clear and

explicit and does not lead to absurd results, we normally

determine intent from the written terms alone.” Id. at 652.

The majority also cites California Civil Code §§ 1638 and

1639 to support its application of the absurd-results canon.

But the code section immediately preceding those sections

provides: “For the purpose of ascertaining the intention of

the parties to a contract, if otherwise doubtful, the rules given

in this Chapter are to be applied.” Cal. Civ. Code § 1637

(emphasis added). Thus, under California law, the absurd-

results canon comes into play only if there is ambiguity. See

Eaton v. Thieme, 59 P.2d 638, 640 (Cal. Dist. Ct. App. 1936)

(“We emphasize the words of [section 1637] ‘if otherwise

doubtful’ since they plainly exclude the application of the

rules referred to if the intention of the parties to the contract

is plain upon its face.”); see also Kashmiri, 67 Cal. Rptr. 3d

at 660–63 (finding first that the disclaimer language was

ambiguous and then finding it necessary to turn to standard

rules of contract interpretation, including the absurd-results

rule, to determine the parties’ reasonable expectations).

California Civil Code § 1638 provides: “The language of a contract

is to govern its interpretation, if the language is clear and explicit, and

does not involve an absurdity.” California Civil Code § 1639 provides:

“When a contract is reduced to writing, the intention of the parties is to

be ascertained from the writing alone, if possible; subject, however, to

the other provisions of this Title.”

30 REVITCH V. DIRECTV

Because “affiliates” unambiguously includes DIRECTV, the

absurd-results canon is inapplicable.

Though I think there is no ambiguity here, even if there

were, we do not first look to California law, we first look to

the FAA and the Supreme Court’s direction: “[T]he FAA

provides the default rule for resolving certain ambiguities in

arbitration agreements. For example, we have repeatedly

held that ambiguities about the scope of an arbitration

agreement must be resolved in favor of arbitration.” Lamps

Plus, 139 S. Ct. at 1418.

The majority’s failure to acknowledge that the Supreme

Court’s direction trumps the California canon is problem

enough. But that is not the most fundamental problem with

the majority’s position. The absurd-results canon, of course,

requires absurdity. This is the supposed absurdity:

Here, absurd results follow from

DIRECTV’s preferred interpretation: Under

this reading, Revitch would be forced to

arbitrate any dispute with any corporate

entity that happens to be acquired by AT&T,

Inc., even if neither the entity nor the dispute

has anything to do with providing wireless

services to Revitch—and even if the entity

becomes an affiliate years or even decades in

the future.

Maj. Op. at 10. The “absurdity” identified by the majority is

being “forced to arbitrate.” Put differently, in the majority’s

view, the absurdity apparently results from Revitch being

forced to give up the rights and benefits of the “superior”

forum—the courtroom and the jury—and to litigate in the

“inferior” arbitral forum. Why else would it be “absurd” for

a party to have agreed to a very broad, forward-looking

REVITCH V. DIRECTV 31

arbitration clause? This application of California’s absurd-

results canon runs afoul of AT&T Mobility LLC v.

Concepcion, 563 U.S. 333 (2011), as the majority applies the

canon “in a fashion that disfavors arbitration.” Id. at 341.

In sum, the majority’s reliance on California’s absurd-

results canon is problematic for several reasons. First, the

canon applies only if there is an ambiguity. Because

“affiliates” clearly includes future affiliates, there is no

ambiguity, and the canon is inapplicable. Second, even

assuming “affiliates” is ambiguous, the canon is inapplicable

because the Supreme Court has instructed that “the FAA

provides the default rule” in construing ambiguities about

the scope of arbitration agreements and that we must

“resolve[] [those ambiguities] in favor of arbitration.” Lamps

Plus, 139 S. Ct. at 1418. Finally, the majority’s application

of the canon contravenes Supreme Court precedent as it

applies the rule in a way that disfavors arbitration. See

Concepcion, 563 U.S. at 341–42.

For these reasons, I respectfully dissent.

The majority’s discussion of hypotheticals confirms that it invokes

a canon of construction “in a fashion that disfavors arbitration,” running

afoul of Concepcion, 563 U.S. at 341. See Maj. Op. at 16. Indeed, the

conclusion that Revitch could not have intended to agree to a broad

arbitration clause must stem from the inappropriate view that Revitch

could not have agreed to a broad arbitration clause because the arbitral

forum is “inferior” to the courtroom.