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Move, Inc. v. Citigroup Global Markets, Inc.

United States Court of Appeals, Ninth Circuit

November 4, 2016

Move, Inc., Plaintiff-Appellant,
v.
Citigroup Global Markets, Inc., Defendant-Appellee.

          Argued and Submitted October 4, 2016 Pasadena, California

         Appeal from the United States District Court for the Central District of California, No. 2:14-cv-04418-JFW-E John F. Walter, District Judge, Presiding

          Susan J. Williams (argued), Hennelly & Grossfeld LLP, Marina del Rey, California, for Plaintiff-Appellant.

          Fred Anthony Rowley, Jr. (argued) and Marc T.G. Dworsky, Munger Tolles & Olson LLP, Los Angeles, California; Achyut J. Phadke, Munger Tolles & Olson LLP, San Francisco, California; for Defendant-Appellee.

          Before: Dorothy W. Nelson and Richard A. Paez, Circuit Judges, and Elaine E. Bucklo, [*] Senior District Judge.

         SUMMARY[**]

         Arbitration

         The panel reversed in part the district court's judgment dismissing an action and denying a motion to vacate an arbitration award pursuant to the Federal Arbitration Act.

         The plaintiff sought to vacate an arbitration award by a Financial Industry Regulatory Authority (FINRA) panel. The court of appeals panel held that the plaintiff's motion was not untimely because the Federal Arbitration Act is subject to equitable tolling. The panel also held that the plaintiff's right to a fundamentally fair hearing was prejudiced by the fraudulent misrepresentations of the arbitration panel's chairperson, resulting in proceedings led by an arbitrator who should have been disqualified from the dispute under the rules and regulations of FINRA.

         The panel reversed the district court's judgment in part and remanded for entry of judgment in favor of the plaintiff.

          OPINION

          D.W. NELSON, Senior Circuit Judge:

         Move, Inc. (Move) appeals the district court's order dismissing its action and denying its motion to vacate an arbitration award pursuant to the Federal Arbitration Act (FAA), 9 U.S.C. § 1 et seq. We have jurisdiction pursuant to 9 U.S.C. § 16(a)(3) and 28 U.S.C. § 1291. We hold that Move's motion was not untimely because the FAA is subject to equitable tolling. We also hold that Move's right to a fundamentally fair hearing was prejudiced by the fraudulent misrepresentations of the arbitration panel's chairperson, resulting in proceedings led by an arbitrator who should have been disqualified from the dispute under the rules and regulations of the Financial Industry Regulatory Authority (FINRA). Accordingly, we REVERSE the district court's judgment in part and REMAND the case for entry of judgment in favor of Move.

         BACKGROUND

         Move maintained an investment account with Citigroup Global Markets, Inc. (Citigroup). In connection with its investments, Move entered into a "Client Agreement" with Citigroup stating, in relevant part, that "all claims or controversies . . . shall be determined by arbitration before, and only before, any ...


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