United States Court of Appeals

For the Eighth Circuit

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No. 15-1786

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In re: Wholesale Grocery Products Antitrust Litigation

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Millennium Operations, Inc.; JFM Market, Inc.; MJF Market, Inc.

lllllllllllllllllllll Plaintiffs - Appellees

v.

SuperValu, Inc.; C&S Wholesale Grocers, Inc.

lllllllllllllllllllll Defendants - Appellants

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Appeal from United States District Court 

for the District of Minnesota - Minneapolis

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 Submitted: May 17, 2016

 Filed: March 1, 2017 

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Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.

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RILEY, Chief Judge.

A number of retail grocers sued two large full-line wholesale grocers, alleging

the wholesalers’ contract to exchange retailer supply agreements constituted market

allocation in violation of the Sherman Act, see 15 U.S.C. § 1. The retailers formed
two putative classes, the Midwest Class and the New England Class. Each class had

an Arbitration Subclass of retailers who had arbitration agreements with their current

(post-swap) wholesaler. Each ArbitrationSubclass sued only its previous wholesaler,

with which it no longer had a current arbitration agreement. The district court

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dismissed the Arbitration Subclasses from the case on the theory that the previous

wholesalers, as “nonsignatory” defendants, could compel the retailers to arbitrate

based on equitable estoppel. See In re Wholesale Grocery Prods. Antitrust Litig., No.

09-MD-2090, 2011 WL 9558054, at *3-4 (D. Minn. July 5, 2011). 

We reversed and then remanded for the district court to consider the

wholesalers’ alternate theory that the nonsignatory defendants could compel

arbitration because they were successors-in-interest to the signatory defendants. See

In re Wholesale Grocery Prods. Antitrust Litig., 707 F.3d 917, 919-20, 925 (8th Cir.

2013) (Wholesale Prods. I). The district court rejected the successors-in-interest

theory, as well as the wholesalers’ third alternate theory that they could directly

enforce their previous arbitration agreements because some of the conduct at issue

occurred when the previous agreements were still in effect. The wholesalers appeal. 

I. BACKGROUND

In 2003, wholesale grocery suppliers SuperValu, Inc. (SuperValu) and C&S

Wholesale Grocers, Inc. (C&S) (collectively, wholesalers or defendants) entered into

an Asset Exchange Agreement (AEA). C&S had recently purchased Fleming

Companies, Inc.’s (Fleming) Midwest wholesale grocery business assets out of

bankruptcy. In the AEA, C&S sold Fleming to SuperValu and C&S purchased

SuperValu’s New England business. Among the assets exchanged were supply

agreements and arbitration agreements between each wholesaler and its numerous

retail customers (the swap). According to the parties, the AEA contained reciprocal

The Honorable Ann D. Montgomery, United States District Judge for the

1

District of Minnesota.

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non-compete provisions. See id. at 920. Several retailerssued SuperValu and C&S,

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alleging the AEA unlawfully allocated the New England market to C&S and the

Midwest market to SuperValu, in violation of the Sherman Act, 15 U.S.C. § 1. See

Wholesale Prods. I, 707 F.3d at 920. 

The plaintiffretailers proposed two classes: Midwest SuperValu customers and

New England C&S customers. Each class had an Arbitration Subclass of retailers

who had arbitration agreements with SuperValu or C&S during the class period.

Village Market (comprised of JFM Market, Inc. and MJF Market, Inc.) was the

representative of the putative New England Arbitration Subclass and Millennium

Operations, Inc. (Millennium) was the representative of the putative Midwest

Arbitration Subclass. This appeal relates to the Arbitration Subclasses (collectively,

retailers or plaintiffs). 

As the district court explained, the Arbitration Subclasses “each asserted an

antitrust conspiracy claim against the wholesaler Defendant with whom it d[id] not

[then] do business and d[id] not [then] have an arbitration agreement (the

‘nonsignatory Defendant’). . . . Village Market . . . asserted an antitrust claim against

SuperValu only, and Millennium . . . asserted an antitrust conspiracy claim against

C&S only.” The wholesalers moved to dismiss or stay the case, arguing equitable

estoppel and successor-in-interest theories allowed the wholesalers to enforce the

arbitration agreements to which they were no longer signatories. See id. at 920-21;

Federal Arbitration Act, 9 U.S.C. § 1 et seq.

In July 2011, the district court granted the partial motion to dismiss or stay,

concluding the nonsignatory defendants could compel arbitration through equitable

estoppel. See In re Wholesale Grocery Prods. Antitrust Litig., 2011 WL 9558054, at

The parties agree such provisions existed, although we do not find these

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provisions in the AEA. 

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*3-4. “A non-signatory can ‘force a signatory into arbitration under the [equitable]

estoppel theory when the relationship of the persons, wrongs and issues involved is

a close one.’” Wholesale Prods. I, 707 F.3d at 922 (alteration in original) (quoting

CD Partners, LLC v. Grizzle, 424 F.3d 795, 799 (8th Cir. 2005)). “[Equitable]

estoppel typically relies, at least in part, on the claims being so intertwined with the

agreement containing the arbitration clause that it would be unfair to allow the

signatory to rely on the agreement in formulating its claims but to disavow

availability of the arbitration clause of that same agreement.” Id. (alteration in

original) (footnote omitted) (quoting PRM Energy Sys., Inc. v. Primenergy, L.L.C.,

592 F.3d 830, 835 (8th Cir. 2010)). 

In February 2013, we reversed the district court’s equitable estoppel ruling. 

See id. at 919. We concluded plaintiffs’ claims against the nonsignatory defendants

were not “‘so intertwined with the agreement containing the arbitration clause that it

would be unfair to allow the signatory to rely on the agreement in formulating its

claims but to disavow availability of the arbitration clause of that same agreement.’” 

Id. at 923 (quoting PRM Energy Sys., 592 F.3d at 835). This is because plaintiffs’

antitrust claims arose out of the Sherman Act, not alleged breaches of the parties’

contracts themselves. See id. at 923-24. We remanded the case for the district court

to consider the wholesalers’ alternate successor-in-interest theory. See id. at 925. 

On remand, the wholesalers argued they could enforce each other’s arbitration

agreements under a “close relationship” exception because they “are successors-ininterest, standing in each other’s shoes with respect to the supply and arbitration

agreements they exchanged in the AEA.” The district court first rejected this theory

because SuperValu and C&S did not have the type of close, agency-like relationship

that would give rise to an exception to the general rule that a nonsignatory cannot

enforce an arbitration agreement. 

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The district court also reasoned that the nonsignatory defendants were

“predecessors-in-interest, not successors-in-interest, to the arbitration agreements

they seek to enforce.” That is, “SuperValu seeks to enforce the Village Market

arbitration agreement that it assigned to C&S under the AEA,” so as the assignor,

“SuperValu is the predecessor-in-interest.” The same is true of C&S’s attempt to

enforce Millennium’s arbitration agreement that C&S assigned to SuperValu. The

district court observed the wholesalers had cited no authority supporting “the

proposition that a predecessor-in-interest’s assignment of rights creates a ‘close

relationship’ with its assignee that warrants allowing the predecessor-in-interest to

assert the rights that it unconditionally assigned and voluntarily relinquished.” 

Finally, the district court rejected the wholesalers’ additional theory that “they

may directly enforce the arbitration agreements to which they are no longer

signatories because some of the events giving rise to Millennium and Village

Market’s claims occurred before the arbitration agreements were transferred,” on the

grounds that an “‘assignor retains no interest in the right transferred.’” (Quoting

Martin ex rel. Hoff v. City of Rochester, 642 N.W.2d 1, 13 (Minn. 2002)). The

wholesalers appeal.

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II. DISCUSSION

We review de novo the district court’s decision whether to compel arbitration. 

See Lebanon Chem. Corp. v. United Farmers Plant Food, Inc., 179 F.3d 1095, 1099

(8th Cir. 1999). The wholesalers advance two legal theories which they believe

permit them to compel arbitration under the arbitration agreements they assigned to

each other. 

In 2014, Nemecek Markets, Inc. (Nemecek), a former customer of Fleming, 3

joined the litigation. Nemecek had an arbitration agreement with Fleming, and has

agreed to be bound by the arbitrability determination in this case. 

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A. Close Relationship/Successor-in-Interest 

First, the wholesalers argue that even if they cannot directly enforce the

arbitration agreements they assigned, they can enforce them as nonsignatories under

a “close relationship” theory. “‘[S]tate contract law governs the ability of

nonsignatories to enforce arbitration provisions,’” PRM EnergySys., 592 F.3d at 833

(quoting Donaldson Co. v. Burroughs Diesel, Inc., 581 F.3d 726, 732 (8th Cir.

2009)), and the parties agree Minnesota law applies here. Under that exception, a

nonsignatory can compel arbitration “when ‘the relationship between the signatory

and nonsignatory defendants is sufficiently close that only by permitting the

nonsignatory to invoke arbitration may evisceration of the underlying arbitration

agreement between signatories be avoided.’” CD Partners, 424 F.3d at 798 (quoting

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 (2009)). 

The wholesalers cite CD Partners, in which we concluded three corporate

officers could compel arbitration under an arbitration agreement to which their

corporation was a signatory, even though the officers themselves were not

signatories, because the relationship between the corporation and the officers was

sufficiently close and because the underlying arbitration agreement would be

eviscerated if the officers could not compel arbitration. Id. at 797-800. According

to the wholesalers, “the ‘close relationship’ doctrine is not limited only to agents or

affiliates of a corporate signatory,” but also applies to “‘third-party beneficiaries of

a contract, . . . corporate officers or corporate entities affiliated with a signatory,

or . . . successors-in-interest of a signatory,’” (quoting Cent. Transp. Servs., Inc. v.

Cole, No. 13-1295, 2013 WL 6008303, at *4 (D. Kan. Nov. 13, 2013)). 

But here, as assignors, the “nonsignatory” defendants are predecessors-ininterest to their assignees, not successors-in-interest. We are aware of no authority

supporting the proposition that a predecessor-in-interest bears a sufficiently close

relationship to a successor-in-interest such that the predecessor-in-interest can compel

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arbitration under an agreement to which only the successor-in-interest is a signatory.

Such a rule could create unforeseen mischief and encourage collusion. We conclude

the district court did not err by rejecting this theory.

B. Direct Enforcement 

Second, the wholesalers assert they can compel arbitration under the

agreementsto which they were once signatories “because plaintiffs’ claims are based

on an alleged conspiracy that occurred when the original arbitration agreements were

in effect between the arbitration plaintiffs and their former suppliers.” The

wholesalers quote Litton Financial Printing Division v. NLRB, 501 U.S. 190, 205-06

(1991), for the proposition that “a party’s right to compel arbitration survives the

expiration of the agreement if the dispute ‘involves facts and occurrences that arose

before expiration.’” But here the agreements between the wholesalers and the

retailers did not expire or terminate, as in Litton. Instead, the wholesalers expressly

agreed to “convey, assign, transfer and deliver” to each other “all of [their] right, title

and interest” in the underlying supply and arbitration agreements. See also Hoff, 642

N.W.2d at 13 (“An assignment generally operates to transfer all rights possessed by

the assignor and the assignor retains no interest in the right transferred.”);

Restatement (Second) of Contracts § 317(1) (“An assignment of a right is a

manifestation of the assignor’s intention to transfer it by virtue of which the

assignor’s right to performance by the obligor is extinguished in whole or in part and

the assignee acquires a right to such performance.”). We see no reason to extend a

presumption about what rights and obligations the parties to a contract might have

intended to keep after the contract expired, see Litton, 501 U.S. at 204-06, to a

situation where a party has affirmatively given up—indeed, sold—everything it had

under the contract.

The wholesalers insist—and the partial dissent takes for granted, post at 12-

13—that Litton’s presumption about when a party retains the right to compel

arbitration should apply “regardless of what caused the termination of the enforcing

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party’s [other] contractual rights and obligations,” whether expiration of the contract

or deliberate relinquishment. But Litton, following Nolde Bros., Inc. v. Local No.

358, Bakery & Confectionary Workers Union, 430 U.S. 243, 250-54 (1977), was

about inferring an intent to arbitrate post-expiration disputes arising out of a contract

from the parties’ “extensive obligation to arbitrate under the contract,” which

suggested they did not mean to “eliminate all duty to arbitrate as of the date of

expiration.” Litton, 501 U.S. at 203-04. Whether the parties to a contract intended

to be able to compel arbitration even after assigning away the right to do so, along

with all their other rights, is an entirely different matter, and, we think, much less

clearly implied by a general willingness to arbitrate disputes arising out of the

contractual relationship. For one thing, although parties do not necessarily have the

final say over whether a contract is allowed to expire or is terminated by their

counterparty, and presumably would not want to subject the availability of “a pivotal

dispute resolution provision” to such fortuities, id. at 208, they generally do have

control over whether and when they transfer their own rights.

In important respects, this case presents the flip side of Koch v. Compucredit

Corp., 543 F.3d 460 (8th Cir. 2008). There, one bank had assigned a contract

containing an arbitration clause to another. See id. at 462-63. After applying Litton

to conclude the obligation to arbitrate survived even though the contract arguably had

terminated, we held the assignee bank could compel arbitration of a dispute arising

out of the contract because “[t]hrough the assignment, [the assignee] assumed all of

[the assignor’s] remaining rights and obligations under the contract.” Id. at 465-67. 

Here, it is the assignors, not their assignees, claiming a right to compel arbitration. 

The clear consequence of Koch’s logic is that the assignors—in this case, the

nonsignatory wholesalers—should have nothing left to enforce, since “all of [their]

remaining rights” were “assumed” by someone else.

It istrue, asthe partial dissent points out, “[t]he Asset Exchange Agreement did

not transfer pre-assignment liabilities.” Post at 12. Knowing that, asthey must have,

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perhaps the wholesalers should have bargained not to transfer the corresponding

rights to compel arbitration on disputes regarding those pre-assignment liabilities. 

But they did not, and nothing in Litton or Koch convinces us to treat them like they

did. The wholesalers may not directly enforce the arbitration agreements to which 4

they are no longer signatories.

III. CONCLUSION

The district court is affirmed.

COLLOTON, CircuitJudge, concurring in the judgment in part and dissenting in part.

The principal question on this appeal is whether the antitrust plaintiffs in this

case are required to arbitrate their claims against the wholesale grocer defendants,

SuperValu, Inc. and C&S Wholesaler Grocers, Inc. I conclude that the claims

brought by Village Market against SuperValu are subject to arbitration, and I would

therefore reverse the decision of the district court in relevant part.

FromApril 2001 through September 2003, Village Market and SuperValu were

partiesto a supply agreement that was accompanied by an arbitration agreement. The

We also find questionable the wholesalers’ position that because some of the

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challenged conduct occurred before the execution of the AEA, and some of it

occurred after, both the assignor and assignee wholesaler can enforce the arbitration

agreement in the same dispute. See HT of Highlands Ranch, Inc. v. Hollywood

Tanning Sys., Inc., 590 F. Supp. 2d 677, 684 (D.N.J. 2008) (explaining that if all

rights and obligations under a contract are transferred, the assignor’s right to compel

arbitration is extinguished, while leaving “unresolved” the factual matter of what

rights the assignor actually transferred); cf. RRCI Constructors, LLC v.

Charlie’s/Diamond Ready Mix, Inc., No. 2007-147, 2009 WL 799660, at *5 (D.V.I.

Mar. 24, 2009) (rejecting the theory that “both the assignor and assignee of an

agreement may be compelled to arbitrate a dispute that comes within the scope of a

valid arbitration agreement. Such a position is unsupported by law”). 

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arbitration agreement required arbitration of “[a]ny controversy, claim or dispute of

whatever nature arising between [Village Market] and SUPERVALU . . ., including

but not limited to those arising out of or relating to any agreement between the

parties.” App. 106.

In September 2003, as part of an asset exchange between SuperValu and C&S,

Supervalu assigned its agreements with Village Market to C&S. Village Market later

brought an antitrust claimagainst SuperValu, alleging that SuperValu conspired with

C&S in violation of the Sherman Act. For several years, the parties have litigated

whether Village Market should be compelled to submit its antitrust claim against

SuperValu to arbitration. See In re Wholesale Grocery Prods. Antitrust Litigation,

707 F.3d 917 (8th Cir. 2013).

In this appeal, SuperValu contends that because Village Market alleges an

antitrust conspiracy that began while the parties were subject to an agreement that

required arbitration of such a claim, Village Market should be compelled to submit

the antitrust claimto arbitration. Applying the principlesset forth in Litton Financial

Printing Division v. NLRB, 501 U.S. 190 (1991), and Koch v. Compucredit

Corporation, 543 F.3d 460 (8th Cir. 2008), I would direct the district court to compel

arbitration. That Supervalu later assigned the arbitration agreement to C&S does not

eliminate Village Market’s obligation to arbitrate a dispute that involves facts and

occurrences that arose before the assignment.

Litton raised the question whether partiesto a collective bargaining agreement 

with an arbitration clause had a duty to arbitrate grievances that were brought by a

union after the expiration of the agreement. Litton applied Nolde Brothers, Inc. v.

Bakery Workers, 430 U.S. 243 (1977), which found in the context of an expired

agreement that there were “strong reasons to conclude that the parties did not intend

their arbitration duties to terminate automatically with the contract.” Id. at 253. 

Nolde Brothers established “a presumption in favor of postexpiration arbitration of

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matters unless‘negated expressly or by clear implication,’” id. at 204 (quoting Nolde

Brothers, 430 U.S. at 255), as long as the arbitration was “of matters and disputes

arising out of the relation governed by contract.” Id.

Litton clarified that Nolde Brothers applies “only where a dispute has its real

source in the contract.” Id. at 205. In other words, “[t]he Nolde Brothers

presumption is limited to disputes arising under the contract.” Id. “A postexpiration

grievance,” the Court explained, “can be said to arise under the contract only where

[1] it involves facts and occurrences that arose before expiration, [2] where an action

taken after expiration infringes a right that accrued or vested under the agreement, or

[3] where, under normal principles of contract interpretation, the disputed contractual

right survives expiration of the remainder of the agreement.” Id. at 206. Because the

employee layoffs at issue in Litton took place almost one year after expiration of the

agreement, and the second and third categories were not implicated, the grievance

was not arbitrable. Id. at 209-10.

In Koch, this court applied Litton outside the context of collective bargaining. 

Koch involved a credit agreement with an arbitration clause. A credit card obligor

alleged violations of the Federal Debt Collection Practices Act by the creditor, and

assignees of the original creditor sought to compel arbitration. We concluded that

even though the underlying credit agreement arguably was terminated by an earlier

settlement, the obligation of the partiesto arbitrate disputes arising under the contract

survived any termination. Because the dispute at issue there involved facts and

occurrences that arose before expiration of the credit agreement, it was a dispute

“aris[ing] under the contract.” 543 F.3d at 466 (quoting Litton, 501 U.S. at 206). The

dispute also fell within the scope of the arbitration clause, which covered “any claim,

dispute, or controversy arising from or related to the Agreement.” Id. Because the

obligor’s claim “would have been subject to [arbitration] had it arisen during the

contract’s term,” id. (quoting Nolde Bros., 430 U.S. at 252), and nothing in the

arbitration clause excluded a dispute that was based in part on events occurring after

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termination of the agreement, we directed the district court to compel arbitration. Id.

at 466-67.

A similar analysis demonstrates that Village Market should be compelled to

arbitrate its antitrust claim against SuperValu. Village Market’s antitrust claim

involves facts and occurrences that arose before SuperValu assigned the arbitration

agreement in September 2003: the claim is that SuperValu formed an antitrust

conspiracy while negotiating an asset exchange agreement with C&S between July

and September 2003. Although the arbitration agreement was assigned in September

2003, the evidence does not clearly negate a presumption that the parties intended to

arbitrate mattersthat arose under the contract before the assignment. If, for example,

Village Market and SuperValu found themselves in a mine-run dispute under the

supply agreement based on events in July 2003, there is nothing in the various

agreements to suggest that the parties wanted that dispute litigated in federal court

just because SuperValu assigned the arbitration agreement to C&S in September

2003. The Asset Exchange Agreement did not transfer pre-assignment liabilities. 

Although the instant claim asserts an antitrust violation rather than a breach of the

supply agreement, the broad arbitration agreement covers it: “[a]ny controversy,

claim or dispute of whatever nature arising between [Village Market] and

SUPERVALU” must be arbitrated.

 

In rejecting SuperValu’s position, the court declines to apply the Nolde

Brothers presumption of intent to arbitrate when a contract is assigned, apparently

because an assignor “generally has control over whether and when they transfer their

own rights.” Ante, at 8. But of course a contracting party generally has control over

the expiration of a contract too: the termination date is a negotiated term of the

agreement. The point of Nolde Brothers isthat even when partiesintentionally cause

a contractual relationship to end, there are strong reasons to believe that the parties

intend to retain arbitration duties for disputes arising under the contract. A contrary

rule “would preclude the entry of a post-contract arbitration order even when the

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dispute arose during the life of the contract but arbitration proceedings had not begun

before termination. The same would be true if arbitration processes began but were

not completed, during the contract’s term.” 430 U.S. at 251. The Court thought “it

could not seriously be contended in either instance that the expiration of the contract

would terminate the parties’ contractual obligation to resolve such a dispute in an

arbitral, rather than a judicial forum,” id., yet the majority reaches precisely that

unlikely conclusion here.

In a footnote, ante, at 9 n.4, the majority also questions whether assignment of

the agreement extinguished SuperValu’s right to compel arbitration. But the cited

decision of a district court—accepting a broad allegation as true on a motion to

dismiss—said only that the extent to which an assignment transferred the right to

compel arbitration was “an unresolved issue.” HT of Highlands Ranch, Inc. v.

Hollywood Tanning Sys., Inc., 590 F. Supp. 2d 677, 684 (D.N.J. 2008). Two other

district courts have concluded that an assignor seeking to arbitrate a dispute arising

before the assignment is still a “party aggrieved” who may compel arbitration under

the Federal Arbitration Act. Vainqueur Corp. v. Lamborn & Co., 305 F. Supp. 1007,

1008 (S.D.N.Y. 1969); Stations West, LLC v. Pinnacle Bank of Oregon, No. CIV 06-

1419-KI, 2007 WL 1219952, at *3 (D. Or. Apr. 23, 2007). Consistent with our

circuit precedent in Koch, the better view is that unless there is persuasive evidence

that parties intended to extinguish a duty to arbitrate disputes that are based in part

on facts that arose before an assignment, the arbitration agreement continues in effect

as to those disputes. Accordingly, I would direct the district court to compel

arbitration of Village Market’s claim against SuperValu.5

The majority’s effort, ante, at 8, to glean support from the “logic” of Koch is 5

unpersuasive. In Koch, an assignor transferred pre-assignment assets and liabilities

to an assignee, and the assignee was then entitled to compel arbitration of a preassignment dispute. Here, the assignorretained pre-assignment liabilities, and Koch

says nothing to undermine the presumption that pre-assignment disputes arising under

the contract remain subject to arbitration under the terms of the original agreement.

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As to the appeal by C&S concerning arbitration of the antitrust claim brought

by Millennium Operations, I concur in the judgment affirming the district court. It

is doubtful that C&S actually acquired Millennium’s supply agreement after Fleming

Companies went through bankruptcy. The AssetExchange Agreement requiredC&S

to “use reasonable best efforts to cause Fleming to convey” the assets at issue

“directly to SuperValu.” In any event, the scope of Millennium’s arbitration

agreement was narrower than Village Market’s. It provided only for arbitration of

disputes “relating to this Agreement,” and alleged unlawful restraint of trade is not

conduct relating to the retail supply agreement. See In re Wholesale Grocery

Products, 707 F.3d at 923-24. I also agree with the court that C&S cannot compel

arbitration under a “close relationship” theory.

For these reasons, I would affirm the decision of the district court concerning

the claim of Millennium Operations, but reverse the decision concerning Village

Market and remand with directions to compel arbitration of Village Market’s claim

against SuperValu.

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