Board of Trustees of the Ibew Local No. 640 v. Cigna Health and Life Insurance Company

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BOARD OF TRUSTEES OF THE IBEW
LOCAL NO. 640 AND ARIZONA
CHAPTER NECA HEALTH AND
WELFARE TRUST FUND, as fiduciary of
its welfare plan,
Plaintiff-Appellant,
v.
CIGNA HEALTH AND LIFE INSURANCE
COMPANY,
Defendant-Appellee.
No. 21-16424
D.C. No. 2:20-cv-01260-MTL
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Michael T. Liburdi, District Judge, Presiding
Argued and Submitted July 7, 2022
Honolulu, Hawaii
Before: WARDLAW, NGUYEN, and OWENS, Circuit Judges.
The Board of Trustees (“Board”) of the IBEW Local No. 640 and Arizona
Chapter NECA Health and Welfare Trust Fund (“Fund”) appeals the district
court’s order compelling arbitration and dismissing the Board’s lawsuit against
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
JUL 18 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Cigna Health and Life Insurance Company. We have jurisdiction under 9 U.S.C.
§ 16(a)(3) and 28 U.S.C. § 1291. Reviewing de novo, see Munro v. Univ. of S.
Cal., 896 F.3d 1088, 1091 (9th Cir. 2018), we affirm.
Under the Federal Arbitration Act, 9 U.S.C. §§ 1–16, the district court’s role
is limited to “determining whether a valid arbitration agreement exists and, if so,
whether the agreement encompasses the dispute at issue.” Berman v. Freedom
Fin. Network, LLC, 30 F.4th 849, 855 (9th Cir. 2022) (quoting Lifescan, Inc. v.
Premier Diabetic Servs., Inc., 363 F.3d 1010, 1012 (9th Cir. 2004)).
1. The district court correctly determined that the ERISA plan at issue,1
even if separate from the Fund, is equitably bound by the Fund’s agreement to
arbitrate under the principle of direct benefits estoppel. Under Arizona law, a
nonsignatory to an agreement containing an arbitration provision may be
compelled to arbitrate if the nonsignatory “asserts claims that must be determined
by reference to the agreement.” Benson v. Casa De Capri Enters., LLC, 502 P.3d
461, 464 (Ariz. 2022) (quoting Austin v. Austin, 348 P.3d 897, 906 (Ariz. Ct. App.
2015)).
1 The Board asserts claims against Cigna under the Employee Retirement
Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001–1461. The Board
allegedly brings these claims in its capacity as the named ERISA plan fiduciary
rather than the Fund’s fiduciary.

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The Board alleges that Cigna “concocted a scheme to secretly obtain more
compensation than it was entitled to” and “charged excessive fees to the Plan.”
Determining what compensation Cigna was “entitled to” or whether its fees were
“excessive” is impossible without reference to the Administrative Services Only
(“ASO”) Agreement, which specifies the fees that Cigna may charge. Cf. Austin,
348 P.3d at 906 (declining to apply direct benefits estoppel when claims only “may
require reference to the . . . agreement”). The district court properly rejected the
Board’s representations that it would not need to rely on the ASO Agreement to
prevail at trial. See id. (instructing courts to “look past the labels the parties attach
to their claims to the underlying factual allegations” (quoting Reid v. Doe Run Res.
Corp., 701 F.3d 840, 848 (8th Cir. 2012))).
2. The district court also correctly determined that the arbitration provision
in the ASO Agreement encompasses the parties’ dispute. The provision is
dissimilar to that in CardioNet, Inc. v. Cigna Health Corp., 751 F.3d 165 (3d Cir.
2014), on which the Board relies, because it applies to “any” dispute “arising from
or relating to” the agreement’s performance or interpretation. See Cape Flattery
Ltd. v. Titan Mar., LLC, 647 F.3d 914, 922 (9th Cir. 2011) (explaining that the use
of both “arising out of” and “relating to” indicates that the “parties intend[ed] to
include a broad arbitration provision”); cf. CardioNet, 751 F.3d at 174 (finding

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provision narrow because it “require[d] arbitration not of ‘all’ or ‘any’ disputes
between the parties, but of only ‘the dispute’”).
AFFIRMED.

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