Dean Krogstad v. Loan Payment Administration LLC

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEAN KROGSTAD,
Plaintiff,
v.
LOAN PAYMENT ADMINISTRATION
LLC,
Defendant,
v.
NATIONWIDE BIWEEKLY
ADMINISTRATION, INC.,
Third-party-plaintiff-
Appellant,
v.
BMO HARRIS BANK NA,
Third-party-defendant-
Appellee.
No. 17-15964
D.C. No.
2:16-cv-00465-APG-CWH
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
OCT 22 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Submitted October 18, 2018**
San Francisco, California
Before: M. SMITH and HURWITZ, Circuit Judges, and EATON,*** Judge.
After being named as a defendant in a putative class action, Nationwide
Biweekly Administration, Inc. (“NBA”) filed a third-party complaint against BMO
Harris Bank (“BMO”), alleging that any potential harm to the putative class was
caused by BMO’s breach of a contract with NBA. BMO in turn sought to enforce
an arbitration clause in its contract with NBA. The district court granted BMO’s
motion to compel arbitration and dismissed the third-party complaint. We have
jurisdiction over NBA’s timely appeal pursuant to 9 U.S.C. § 16 and affirm.
1. Arbitration agreements are “valid, irrevocable, and enforceable, save upon
such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C.
§ 2. NBA argued that the arbitration provision in its agreement with BMO was
invalid because it (1) prohibited the parties from bringing class or representative
actions against each other and (2) also included a “blow provision,” mandating that
“if a court decides that this paragraph’s prohibition of class or representative actions
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** Richard K. Eaton, Judge of the United States Court of International
Trade, sitting by designation.

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and/or consolidation is invalid or unenforceable, then the entirety of this arbitration
provision will be null and void.”
The district court correctly rejected these arguments. The “blow provision”
only applies if a court finds that “this paragraph’s prohibition of class or
representative actions” (emphasis added) is invalid. No court has done so; indeed,
albeit in different contexts, the Supreme Court has repeatedly rejected arguments
that class action waivers are invalid. See generally AT&T Mobility LLC v.
Concepcion, 563 U.S. 333 (2011) (holding that the Federal Arbitration Act
preempted a state court rule against class action waivers); Epic Sys. Corp. v. Lewis,
138 S. Ct. 1612 (2018) (finding that the National Labor Relations Act does not
invalidate class action waivers in labor agreements with arbitration provisions).
Moreover, the arbitration clause in the NBA-BMO agreement provides only that the
parties will not bring class action or representative claims against each other.
NBA’s third-party complaint against BMO, although filed in a case initiated by the
filing of a putative class complaint, is not itself a class or representative action.
There was thus no warrant for the district court in this case to consider the
enforceability of the class action waiver.
2. NBA also argues that arbitration would abridge its “right” to file a third-
party complaint under Federal Rule of Civil Procedure 14(a). Because this argument
was not raised below, we decline to consider it. See Hillis v. Heineman, 626 F.3d

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1014, 1019 (9th Cir. 2010).
AFFIRMED.

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