4th Cir. Says TCPA Claim Falls within Arbitration Agreement, for Affiliates and Contracting Party

In Mey v. DIRECTV, LLC, No. 18-1534, 2020 U.S. App. LEXIS 24993 (4th Cir. Aug. 7, 2020), the Court of Appeals for the 4th Circuit enforced an arbitration clause in a TCPA class action.  DIRECTTV, who was an affiliate of AT&T, was entitled to enforce the agreement.

As an initial matter, we conclude—as the district court appears to have acknowledged and Mey does not dispute—that DIRECTV is currently an affiliate of AT&T Mobility. See J.A. 230. The contract does not define the term “affiliate,” so we look to its ordinary meaning. See Nisbet v. Watson, 162 W. Va. 522, 251 S.E.2d 774, 780 (W. Va. 1979) (“This Court has consistently held that the language of a contract must be accorded its plain meaning and, where plain, the language must be given full effect.”). An affiliate is commonly understood as “a company effectively controlled by another or associated with others under common ownership or control.” Affiliate, Webster’s Third New International Dictionary 35 (2002); see Affiliate, Black’s Law Dictionary 67 (9th ed. 2009) (“[a] corporation that is related to another corporation by shareholdings or other means of control; a subsidiary, parent or sibling corporation”). Since 2015, AT&T, Inc. has owned both AT&T Mobility and DIRECTV through other corporate entities, making them affiliates under common ownership or control. Although Mey considers the relationship attenuated, she does not contest that DIRECTV is currently an affiliate of AT&T Mobility and was an affiliate at the time of the underlying events by virtue of their common ownership. 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. Of course, we must construe contractual terms in context. See Chesapeake Appalachia, L.L.C. v. Hickman, 236 W. Va. 421, 781 S.E.2d 198, 213 (W. Va. 2015) (“The general state law rule” is that contract terms “are to be read in their context.”). And “affiliates” is included in a long list of related entities and individuals. Some of those entities and individuals could be construed primarily as representatives of AT&T Mobility, such as “agents,” “employees,” “predecessors in interest,” “successors,” and “assigns.” But others, such as “subsidiaries” and “affiliates,” are not so limited. See Corporation, Black’s Law Dictionary 394 (9th ed. 2009) (defining “subsidiary corporation” as “[a] corporation in which a parent corporation has a controlling share”); Subsidiary, Webster’s Third New International Dictionary 2279 (2002) (defining “subsidiary company” as “a company wholly controlled by another that owns more than half of its voting stock”). Because the terms vary significantly in scope and meaning, it would not be appropriate to apply the associated-words canon (noscitur a sociis) to restrict the ordinary meaning of “affiliate.” See Graham Cnty. Soil & Water Conservation Dist. v. U.S. ex rel. Wilson, 559 U.S. 280, 288, 130 S. Ct. 1396, 176 L. Ed. 2d 225 (2010) (finding noscitur a sociis inapplicable, in part because the terms in the relevant list were “each quite distinct from the other” and any “substantive connection . . . between the terms . . . [wa]s not so tight or so self-evident as to demand that we rob any one of them of its independent and ordinary significance” [*12]  (internal quotation marks omitted)); Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 226, 128 S. Ct. 831, 169 L. Ed. 2d 680 (2008) (finding noscitur a sociis inapplicable because statute’s reference to “any officer of customs or excise” was not inconsistent with interpreting statute’s inclusion of “any other law enforcement officer” as broadly as its language suggests); 2A Sutherland Statutory Construction § 47:16 (7th ed.) (describing noscitur a sociis as applying “when two or more words are grouped together, and ordinarily have a similar meaning, but are not equally comprehensive”). We can discern no shared attribute in this list that would limit “affiliates” to representatives of AT&T Mobility carrying out its telecommunication services or otherwise cabin the plain meaning of the term.2 Mey’s only argument is that “affiliates” should be limited to affiliates existing at the time the contract was signed and should exclude any affiliates acquired in the future. Cf. Revitch v. DIRECTV, LLC, No. 18-CV-01127-JCS, 2018 U.S. Dist. LEXIS 143812, 2018 WL 4030550, at *10 (N.D. Cal. Aug. 23, 2018) (concluding that the term “affiliate” “as commonly understood and as used in the Wireless Agreement includes sibling corporations,” but nevertheless holding that the parties did not intend to include future sibling corporations who do not receive “an assignment of any obligations in the original contract”). She identifies nothing in the contract to support this construction. To the contrary, the contractual context suggests the opposite. As an initial matter, the arbitration agreement explicitly applies to “successors” and “assigns,” terms that by definition refer to parties whose identities cannot be known until some point in the future. See Assign & Assignee, Black’s Law Dictionary 135-136 (9th ed. 2009) (defining the noun of “assign” as “assignee,” which is defined as “[o]ne to whom property rights or powers are transferred by another”); Assign & Assignee, Webster’s Third New International Dictionary 132 (2002) (defining the noun of “assign” as “assignee,” which is defined as “one to whom a right or property is legally transferred”); Successor, Black’s Law Dictionary 1569 (9th ed. 2009) (“A corporation that, through amalgamation, consolidation, or other assumption of interests, is vested with the rights and duties of an earlier corporation.”); Successor, Webster’s Third New International Dictionary 2282 (2002) (“one that follows”); Successor & Succeed, The Am. Heritage Dictionary of the English Language 1740 (5th ed. 2011) (defining “successor” as “[o]ne that succeeds another” and “succeed” as “[t]o come next in time or order; [t]o replace another in office or position”). The arbitration agreement also includes other forward-looking provisions: it applies for the duration of the customer’s wireless service and even “survive[s] termination of this [Wireless Customer] Agreement”; it also specifically covers “claims that may arise after the termination of this Agreement.” J.A. 102. In addition to “successors” and “assigns,” other parties listed (“subsidiaries,” “affiliates,” “agents,” and “employees”) are subject to change over the period in which a customer uses the service. 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. For example, if, years after the agreement was signed, a new AT&T Mobility employee made misrepresentations to Mey about her continuing service, it would seem the parties intended to require arbitration of that dispute, even though the employee was not employed by AT&T Mobility when the agreement was signed. A contrary interpretation would make little sense in a long-term contract. Mey does not contest the plain meaning of the word “affiliate” or the forward-looking nature of the agreement and its inclusion of “successors” and “assigns.” She nevertheless contends that the arbitration agreement is “at best ambiguous” as to whether “affiliates” includes future affiliates and urges us to apply the principle that “‘ambiguities in a contract should be construed against the drafter,'” a doctrine known as “contra proferentem.” Br. of Appellee 16-17 (quoting CONSOL Energy, Inc. v. Hummel, 238 W. Va. 114, 792 S.E.2d 613, 621 (W. Va. 2016)). But that doctrine is triggered “only after a court determines that it cannot discern the intent of the parties” from the contract itself. Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407, 1417, 203 L. Ed. 2d 636 (2019). We therefore need not resort to the doctrine. The ordinary meaning of “affiliates” and the contractual context convinces us that the term includes affiliates acquired after the agreement was signed. As a result, Mey formed an agreement to arbitrate with DIRECTV.

The Court of Appeals held that the TCPA claim fell within the agreement.

But the arbitration agreement in Mey’s contract is much more expansive than the arbitration provisions in the cases on which she relies. The arbitration agreement here requires arbitration of “all disputes and claims between us.” J.A. 102. This “includes, but is not limited to . . . claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory.” J.A. 102; cf. United States v. Gonzales, 520 U.S. 1, 5, 117 S. Ct. 1032, 137 L. Ed. 2d 132 (1997) (“[T]he word ‘any’ has an expansive meaning, that is, ‘one or some indiscriminately of whatever kind.'” (quoting Webster’s Third New International Dictionary 97 (1976))). It also includes, among others, “claims that arose before this or any prior Agreement” and “claims that may arise after the termination of this Agreement.” J.A. 102. These provisions explicitly contemplate that the agreement covers claims beyond those “arising out of or relating to” the underlying contract. Precedent analyzing whether a “significant relationship” exists between the dispute and the contract, therefore, is inapposite here. This arbitration agreement—covering “all disputes and claims between us”—is far broader than the arbitration clauses in the cases on which Mey relies, indeed, than any case the parties have identified. But we have time and again emphasized that we must interpret and enforce the words of the particular arbitration provision to which the parties agreed. See Am. Recovery Corp., 96 F.3d at 92-93 (holding that district court applied the wrong standard to arbitration clause because it relied on a case interpreting a narrower arbitration provision); Cara’s Notions, Inc. v. Hallmark Cards, Inc., 140 F.3d 566, 569, 571 (4th Cir. 1998) (rejecting arguments by plaintiff and district court because “none of them addresses the language of the arbitration clause itself,” which required arbitration of “[a]ny controversy or claim arising out of or relating to . . . any aspects of the relationship between [the parties],” which the Court considered “extremely broad”). Read in isolation, the phrase “all disputes and claims between us” includes Mey’s claims that DIRECTV violated the TCPA by calling her to advertise satellite television products and services. Cf. Levin, 634 F.3d at 267 (interpreting integration clause and agreement to arbitrate “[a]ny dispute” to encompass “all agreements and any disputes, past and present”). Nothing about the phrase is limited to disputes or claims arising out of or relating to the underlying contract or the provision of wireless service. (And recall that DIRECTV is included in “us” because it is an affiliate of AT&T Mobility.) The examples that follow this broad language, however, could inform our understanding of its meaning in context. See Chesapeake Appalachia, L.L.C., 781 S.E.2d at 213. Upon examination we find that, although these examples may guide a proper construction of the meaning of “all disputes and claims” in the agreement, they do not exclude Mey’s TCPA claims. To the contrary, the more specific terms of the arbitration agreement convince us that this provision can be read to require arbitration of Mey’s claims. Of particular relevance, the arbitration agreement “includes, but is not limited to . . . claims arising out of or relating to any aspect of the relationship between us.” J.A. 102. The Wireless Customer Agreement elsewhere states that Mey “consent[s] to the use by us or our authorized agents of regular mail, predictive or autodialing equipment, email, text messaging, facsimile or other reasonable means to contact you to advise you about our Services or other matters we believe may be of interest to you.” J.A. 98 (emphasis added). One “aspect of the relationship” between Mey and AT&T Mobility and its affiliates under this provision is communication about matters of interest other than AT&T’s services, such as advertising affiliates’ products and services. See Cara’s Notions, Inc., 140 F.3d at 571 (interpreting “any aspects of the relationship” to include conflicts beyond the underlying contract and regarding a separate store that was governed by a separate contract between the parties that lacked an arbitration clause). The arbitration agreement also specifically includes “claims relating to advertising” and claims “based in . . . statute.” J.A. 102. Finally, the arbitration agreement itself tells us that the parties intended it “to be broadly interpreted.” J.A. 102. In light of the expansive text of the arbitration agreement, the categories of claims it specifically includes, and the parties’ instruction to interpret its provisions broadly, we must conclude that it is “‘susceptible of an interpretation'” that covers Mey’s TCPA claims. Am. Recovery Corp., 96 F.3d at 92 (quoting Warrior & Gulf Navigation Co., 363 U.S. at 582-583). The text of the agreement arguably contemplates arbitration of Mey’s claims, and any ambiguity about whether those claims are included “must be resolved in favor of arbitration.” Lamps Plus, Inc., 139 S. Ct. at 1418. Indeed, “the presumption in favor of arbitrability is particularly applicable when the arbitration clause is broadly worded,” as it is here. Levin, 634 F.3d at 267. We acknowledge that construing the broadest language of this arbitration agreement in the abstract could lead to troubling hypothetical scenarios. See J.A. 232-233 (quoting Wexler v. AT&T Corp., 211 F. Supp. 3d 500, 502-503 (E.D.N.Y. 2016), regarding the “absurd results” that could flow from the broadest possible interpretation of the arbitration agreement in other factual scenarios).5 But the question before us today is not abstract; it is tethered to the facts of this dispute and the categories of claims specifically included in this arbitration agreement. See Parm v. Bluestem Brands, Inc., 898 F.3d 869, 878 (8th Cir. 2018) (rejecting interpretation by hypothetical in favor of looking “to the underlying factual allegations [to] determine whether they fall within the scope of the arbitration clause” (internal quotation marks omitted)). We need not define the outer limits of this arbitration agreement to conclude, based on the arbitration provisions and the contract as a whole, that Mey’s TCPA claims about DIRECTV’s advertising calls fall within its scope. Having interpreted the arbitration agreement to which Mey agreed in accordance with traditional contract principles, and applying the presumption in favor of arbitrability, we must enforce the contract “according to [its] terms.” Lamps Plus, Inc., 139 S. Ct. at 1412; see 9 U.S.C. § 2; Volt Info. Scis., Inc., 489 U.S. at 478. As with any contract, it is not our place to disturb the parties’ bargain or relieve a party of the obligations to which it agreed.