Outokumpu Stainless USA LLC et al v Coverteam SAS - United States Court of Appeals For the Eleventh Circuit No 17-10944 - Opinion of the Court - 8 July 2022
This appeal is on remand from the United States Supreme Court, which reversed our decision in Outokumpu Stainless USA, LLC v. Converteam SAS, 902 F.3d 1316 (11th Cir. 2018) ("Outokumpu II"). See GE Energy Power Conversion France SAS, Corp. v. Outokumpu Stainless USA, LLC, 140 S. Ct. 1637 (2020) ("Outokumpu III").
Now, all that's left is to apply the federal common law notions of equitable estoppel to the facts of this case. Starting with federal equitable estoppel principles, there are two circumstances in which "a nonsignatory [may] compel arbitration." MS Dealer Serv. Corp. v. Franklin, 177 F.3d 942, 947 (11th Cir. 1999), abrogated on other grounds by Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 631, 129 S. Ct. 1896, 1902 (2009). The first is where "the signatory to a written agreement containing an arbitration clause `must rely on the terms of the written agreement in asserting [its] claims' against the nonsignatory." Id. (internal citation omitted). The second is where the signatory "raises allegations of" collusive misconduct between the nonsignatory and other signatories to the contract. Id. GE Energy may compel arbitration under the first circumstance because Outokumpu is relying entirely on its contract with Fives to litigate against Fives' subcontractor GE Energy. Because GE Energy, a nonsignatory, is facing litigation as a result of Outokumpu's agreement with Fives, it may compel arbitration in this circumstance.
So, I end up in the same spot as the Court. I just use equitable estoppel to get there. For that reason, I concur in the judgment only.