Winnie B. Fang, M.D. v. Merrill Lynch, Pierce, Fenner & Smith, Inc.

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WINNIE B. FANG, M.D.,

Plaintiff-Appellant,

v.

MERRILL LYNCH, PIERCE, FENNER &
SMITH, INC.,

Defendant-Appellee.

No. 19-15022

D.C. No. 3:16-cv-06071-JD

MEMORANDUM
*

Appeal from the United States District Court
for the Northern District of California
James Donato, District Judge, Presiding

Submitted April 16, 2020
**

San Francisco, California

Before: HAWKINS and PAEZ, Circuit Judges, and RESTANI,
***
Judge.

Dr. Winnie B. Fang appeals the district court’s (1) denial of vacatur of an
unfavorable award issued by the Financial Industry Regulatory Authority

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

**
The panel unanimously concludes that this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

***
The Honorable Jane A. Restani, Judge for the United States Court of
International Trade, sitting by designation.
FILED

APR 23 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

2
(“FINRA”) in an arbitration Fang initiated against Merrill Lynch for its alleged
failure to prevent the wrongful escheatment of her shares of Peet’s Coffee & Tea,
Inc. and (2) dismissal of her later-filed class action complaint raising the same
allegations without leave to amend. We have jurisdiction under 28 U.S.C. § 1291,
and we affirm.
The FINRA panel did not exceed its authority by adjudicating Fang’s claim—
proceedings, we are careful to note, that she voluntarily initiated. See 9
U.S.C. § 10(a)(4); Nghiem v. NEC Elec., Inc., 25 F.3d 1437, 1440 (9th Cir. 1994)
(“Once a claimant submits to the authority of the arbitrator and pursues arbitration,
he cannot suddenly change his mind and assert lack of authority.”).
The record lends no support to her argument that the panel addressed more
than her individual claim against Merrill Lynch. That her individual claim’s
resolution now keeps her from representing a putative class of similarly situated
claimants does not justify vacatur. See Douglas v. U.S. Dist. Ct. for C.D. Cal., 495
F.3d 1062, 1069 (9th Cir. 2007) (“Losing the opportunity to continue as a class
representative doesn’t come close to meeting [the 9 U.S.C. § 10(a)] standard.”).
We are similarly loath to question the panel’s plausible, even if erroneous,
interpretations of various FINRA Rules in refusing to dismiss Fang’s claim when
she later opted to file a class action complaint. See Sanchez v. Elizondo, 878 F.3d
1216, 1223 (9th Cir. 2018) (rejecting judicial role in deciding “whether the arbitrator

3
committed an error, even a serious error, in interpreting [FINRA Rules]”). Where,
as here, the panel has “confined [itself] to the interpretation and application of the
parties’ agreement,” it has not exceeded its authority. See id.
Nor was its eventual award in Merrill Lynch’s favor “procured by . . . undue
means.” 9 U.S.C. § 10(a)(1). The alleged withholding of documents and
information by Merrill Lynch’s counsel during discovery does not impugn the
integrity of the panel’s award. As an initial matter, the record lends little credence
to Fang’s accusations. Even if it did, such discovery gamesmanship “occurs with
such frequency” that this alone scarcely constitutes “undue means.” See A.G.
Edwards & Sons, Inc. v. McCollough, 967 F.2d 1401, 1404 (9th Cir. 1992) (reaching
same conclusion when opposing party invoked “meritless defense”).
Still more importantly, Fang raised her concerns with the FINRA panel, which
ultimately was unmoved—something we cannot reexamine. See Sanchez, 878 F.3d
at 1223; see also Lagstein v. Certain Underwriters at Lloyd’s, London, 607 F.3d
634, 643–44 (9th Cir. 2010) (deferring to arbitrator interpretation of a “procedural
matter”). The limited grounds for vacatur in 9 U.S.C. § 10(a) do not give her “a
second bite at the apple.” See McCollough, 967 F.2d at 1404; Sprewell v. Golden
State Warriors, 266 F.3d 979, 987–88 (9th Cir. 2001) (refusing to vacate arbitral
award for complaints of false statements and doctored photographs already rejected
by arbitrator).

4
We therefore agree with the district court’s dismissal of Fang’s class action
complaint as waived. Both the FINRA Rules—which Fang agreed to be bound by—
and the law of our circuit so hold. See FINRA Rule 12209,
https://www.finra.org/rules-guidance/rulebooks/finra-rules/12209 (“During an
arbitration, no party may bring any suit, legal action, or proceeding against any other
party that concerns or that would resolve any of the matters raised in the
arbitration.”); Teamsters Local Union No. 760 v. United Parcel Serv., Inc., 921 F.2d
218, 220 (9th Cir. 1990) (“[I]ssues submitted to arbitration cannot be relitigated in
federal court.”); C.D. Anderson & Co., Inc. v. Lemos, 832 F.2d 1097, 1099 (9th Cir.
1987) (“[B]y submitting its . . . claims to arbitration, [the claimant] waived any right
it had to litigate those claims in federal court.”).
Fang advances no authority for her theory that Merrill Lynch first had to alert
her to a potential class of similarly situated claimants. Conversely, the FINRA
panel’s resolution of Fang’s individual claim extinguished any “concrete stake” she
might otherwise have had in a class action for the same conduct. See Douglas, 495
F.3d at 1069; see also Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 73 (2013)
(“In the absence of any claimant’s opting in, respondent’s [class action] suit became
moot when her individual claim became moot, because she lacked any personal
interest in representing others in this action.”). Despite already having amended the
class complaint, Fang has never alleged another basis for relief that pertains to her.

5
Accordingly, the district court properly dismissed the class complaint as waived and
acted within its discretion in denying as futile yet another opportunity to amend. See
Salameh v. Tarsadia Hotel, 726 F.3d 1124, 1133 (9th Cir. 2013) (“A plaintiff may
not in substance say ‘trust me,’ and thereby gain a license for further amendment
when prior opportunity to amend had been given.”).
AFFIRMED.