Michael F. Dorman, individually as a participant in the Schwab Plan Retirement Savings and Investment Plan and on behalf of a class of all those similarly situated, Plaintiff-Appellee,
The Charles Schwab Corporation; Charles Schwab & Co., Inc.; Schwab Retirement Plan Services, Inc.; Charles Schwab Bank; Charles Schwab Investment Management, Inc.; Walter W. Bettinger III; Charles R. Schwab; Joseph R. Martinetto; Martha Tuma; Jay Allen; Dave Callahan; John C. Clark, Defendants-Appellants.
and Submitted June 14, 2019 San Francisco, California
from the United States District Court, No. 4:17-cv-00285-CW,
for the Northern District of California Claudia Wilken,
District Judge, Presiding
Shapiro (argued), Stacey C.S. Cerrone, and Tulio D. Chirinos,
Proskauer Rose LLP, New Orleans, Louisiana; Myron D. Rumeld,
Proskauer Rose LLP, New York, New York; John E. Roberts,
Proskauer Rose LLP, Boston, Massachusetts; for
Bloom (argued), Todd M. Schneider, and Kyle G. Bates,
Schneider Wallace Cottrell Konecky Wotkyns LLP, Emeryville,
California; Todd S. Collins, Eric Lechtzin, Shanon J. Carson,
and Ellen T. Noteware, Berger Montague PC, Philadelphia,
Pennsylvania; for Plaintiff-Appellee.
Before: Ronald M. Gould and Sandra S. Ikuta, Circuit Judges,
and Benita Y. Pearson, [*] District Judge.
panel reversed the district court's order denying
defendants' motion to compel arbitration of claims and
remanded in a class action suit brought by a former
participant in an ERISA retirement plan, alleging that
defendants violated ERISA and breached their fiduciary duties
by including certain investment funds in the plan.
panel concluded that Amaro v. Continental Can Co.,
724 F.2d 747 (9th Cir. 1984), which held that ERISA claims
are not arbitrable, is no longer good law in light of
intervening Supreme Court case law, including American
Express Co. v. Italian Colors Restaurant, 570 U.S. 228
panel addressed other issues in a concurrently filed
PEARSON, DISTRICT JUDGE.
appeal the district court's denial of their motion to
compel individual arbitration in an ERISA action filed by
Michael Dorman, a former participant in the Schwab Retirement
Savings and Investment Plan (the "Plan"). Dorman
participated in a defined contribution 401(k) retirement plan
through his employment with Charles Schwab & Co., Inc.
("Schwab"). In 2017, Dorman filed a class action
suit in district court alleging that Defendants violated
ERISA and breached their fiduciary duties by including
Schwab-affiliated investment funds in the Plan- despite the
funds' poor performance-to generate fees for Schwab and
its affiliates. Defendants moved to compel arbitration
pursuant to an arbitration agreement in the Plan. The
district court denied the motion, and this interlocutory
appeal, Defendants contend that the district court erred by
not enforcing the Plan's arbitration agreement. We
address these arguments in a concurrently filed memorandum
disposition. But before we can reach the parties'
specific contentions, we must first address the threshold
question of whether ERISA claims can be subject to mandatory
arbitration. In so doing, we must revisit our holding in
Amaro v. Continental Can Co., 724 F.2d 747 (9th Cir.
1984), in which we held that ERISA claims were not
arbitrable. In light of intervening Supreme Court case ...