2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-21-2010

Keith Litman v. Cellco Partnership

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-4103

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Recommended Citation

"Keith Litman v. Cellco Partnership" (2010). 2010 Decisions. Paper 1292.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 08-4103

_____________

KEITH LITMAN; ROBERT WACHTEL, 

Individually and on behalf of all others 

similarly situated, 

 Appellants,

 v.

CELLCO PARTNERSHIP

d/b/a Verizon Wireless

 _______________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 07-cv-4886)

District Judge: Honorable Freda Wolfson

_______________

Argued November 5, 2009

Before: SCIRICA, JORDAN and COWEN, Circuit Judges.

(Filed: May 21, 2010)

_______________

William R. Weinstein [ARGUED]

Sanford, Wittels & Heisler, LLP

950 Third Avenue - 10 Fl. th

New York, NY 10022
2

Steven L. Wittels

Sanford, Wittels Heisler, LLP

440 West Street - 2 Fl. nd

Fort Lee, NJ 07024

Counsel for Appellants

Philip R. Sellinger

Todd L. Schleifstein

Greenberg Traurig, LLP

200 Park Avenue

Florham Park, NJ 07932

Andrew G. McBride [ARGUED]

Elbert Lin

Wiley Rein LLP

1776 K Street NW

Washington, DC 20006

Counsel for Appellee

Alan S. Kaplinsky

Jeremy T. Rosenblum

Ballard Spahr Andrews & Ingersoll, LLP

1735 Market Street - 51 Fl. st

Philadelphia, PA 19103

Counsel for Amicus Appellees

_______________

OPINION OF THE COURT

_______________

JORDAN, Circuit Judge.

Appellants Keith Litman and Robert Wachtel appeal from an order of the United

States District Court for the District of New Jersey compelling arbitration and dismissing

their case. For the following reasons, we will vacate the District Court’s order and

remand for further proceedings consistent with this opinion.
 Specifically, Litman and Wachtel argue that, in September of 2005, Verizon imposed 1

a bogus monthly administrative charge of forty cents on its customers and increased that

charge to seventy cents in March of 2007. 

 The arbitration clause also provides that the agreement to arbitrate is inapplicable in 2

the event that the class-arbitration provision is found to be unenforceable. 

3

I. Background

Litman and Wachtel brought this putative class action against Cellco Partnership

d/b/a Verizon Wireless (“Verizon”) based on Verizon’s alleged unlawful imposition of

administrative charges on class members’ cell phone accounts. The complaint asserts 1

breach of contract, unjust enrichment, and violations of the New Jersey Consumer Fraud

Act, N.J. Stat. Ann. § 56:8-1, et seq. Verizon moved to compel arbitration pursuant to an

arbitration clause in the relevant customer agreements, which mandates individual

arbitration of disputes. In other words, the arbitration clause prohibits class arbitrations. 

2

In response to the motion, Litman and Wachtel countered that the arbitration

clause in their customer agreements was unenforceable because, pursuant to Muhammad

v. County Bank of Rehoboth Beach, Delaware, arbitration provisions in contracts of

adhesion that prohibit use of a class action mechanism for low-value claims are

unconscionable under New Jersey law. 912 A.2d 88, 100 (N.J. 2006) (“We hold ... that

the presence of the class-arbitration waiver in [plaintiff’s] consumer arbitration agreement

renders that agreement unconscionable.”). Verizon agreed for purposes of the motion that

Muhammad applies to the parties’ dispute, but argued that Muhammad is preempted by

the Federal Arbitration Act (“FAA”). 
 Amici, American Financial Services Association, Chamber of Commerce of the 3

United States of America, and Consumer Bankers Association, filed a brief in support of

Verizon likewise asserting that Homa disregarded Gay and therefore should itself be

disregarded. 

4

The District Court, relying on our decision in Gay v. Creditinform, 511 F.3d 369

(3d Cir. 2007), agreed with Verizon and dismissed the case in favor of arbitration. The

Court found the instant matter to be indistinguishable from Gay, which it understood as

concluding that the FAA preempted Pennsylvania case law stating that class-arbitration

waivers in contracts of adhesion are unconscionable. Litman and Wachtel timely

appealed. 

After the opening and answering briefs were submitted to us, another panel of our

Court issued its decision in Homa v. American Express Co., 558 F.3d 225 (3d Cir. 2009). 

As more fully described herein, the Homa opinion distinguished Gay and held that the

FAA does not preempt Muhammad. Id. at 230. In the wake of Homa, Litman and

Wachtel moved for summary reversal of the District Court’s order compelling arbitration

and moved to forego oral argument. Verizon opposed both motions, urging us to

disregard Homa because it irreconcilably conflicts with Gay. Thereafter, we granted 3

Verizon’s motion to stay the appeal pending our en banc decision in Puleo v. Chase Bank,

— F.3d —, No. 08-3837, 2010 WL 1838762 (3d Cir. May 10, 2010) (en banc).
 The District Court’s jurisdiction was based on diversity of citizenship pursuant to the 4

Class Action Fairness Act of 2005. See 28 U.S.C. § 1332(d). We have jurisdiction over

this appeal pursuant to 9 U.S.C. § 16(a)(3). Our review of the District Court’s decision to

compel arbitration is plenary. Trippe Mfg. Co. v. Niles Audio Corp., 401 F.3d 529, 531

(3d Cir. 2005) (citing Bouriez v. Carnegie Mellon Univ., 359 F.3d 292, 294 (3d Cir.

2004)).

5

II. Discussion4

Preliminarily, we note, as we did in Homa, that Gay’s discussion of the application

of the FAA to Pennsylvania law appears to be dicta. Homa, 558 F.3d at 229. Homa was

admittedly ambivalent in its treatment of Gay’s discussion of Pennsylvania law, see id.,

558 F.3d at 230 (“Whether dicta or not ....”), however, in our recently filed Puleo opinion,

we again referred to this aspect of Gay as dicta, Puleo, 2010 WL 1838762, at *3, n.2

(“[I]t is worth noting our agreement that Gay’s discussion of Pennsylvania law was

indeed dicta, since our holding in Gay was that Virginia law governed the parties’

arbitration agreement.”), which it plainly is, because Gay held that Virginia law, not

Pennsylvania law, governed the parties’ dispute. Gay, 511 F.3d at 390-92. Thus, the

discussion of Pennsylvania case law in Gay was “not essential to the decision” in that

case, even if it might have been “briefed, and argued by counsel, and ... passed on by the

court.” BLACK’S LAW DICTIONARY (9th ed. 2009). As such, that portion of Gay is not

binding on subsequent panels of this Court. See Am. Civil Liberties Union of N.J. ex rel.

Lander v. Schundler, 168 F.3d 92, 98 n.6 (3d Cir. 1999) (“[W]e have repeatedly held that

dicta are not binding.”). 
6

Thus, the panel addressing Homa was not bound by that portion of the Gay

decision. Moreover – and here we may wander into dicta ourselves – we cannot conclude

that Homa and Gay are irreconcilable. According to Verizon, Gay requires preemption of

Muhammad because Muhammad is indistinguishable from Thibodeau v. Comcast Corp.,

912 A.2d 874 (Pa. Super. Ct. 2006), one of the Pennsylvania cases Gay found to be

preempted. Gay, 511 F.3d at 395 (“We, however, reject Lytle and Thibodeau for we do

not agree with them as there is no escape from the fact that they deal with agreements to

arbitrate, rather than with contracts in general ... .”). As Verizon sees it, Homa’s

conclusion to the contrary is therefore in conflict with Gay. The dicta in Gay interpreted

Pennsylvania case law to “hold that an agreement to arbitrate may be unconscionable

simply because it is an agreement to arbitrate,” and the preemption determination that

followed was based on that construction. Gay, 511 F.3d at 395. By contrast, in Homa, we

read Muhammad to apply general principles of contract interpretation in its invalidation of

the class-arbitration waiver. Homa, 558 F.3d at 230. Muhammad did not say that

arbitration itself is unconscionable, but instead held that “[a]s a matter of generally

applicable state contract law, it was unconscionable for defendants to deprive [plaintiff] of

the mechanism of a class-wide action, whether in arbitration or in court litigation.” 

Muhammad, 912 A.2d at 100-101. Since Muhammad did not evince hostility toward

arbitration clauses, which was the concern in Gay, it did not conflict with the FAA. See

Homa, 558 F.3d at 230; see also Puleo, 2010 WL 1838762, at *3, n.2 (“[T]he New Jersey
7

case law at issue in Homa did not evince hostility toward arbitration clauses, which was

the concern about Pennsylvania law expressed in Gay.”). 

We also explained in Homa that Gay could not be read as a “blanket prohibition on

unconscionability challenges to class-arbitration provisions” since the FAA permits the

use of generally applicable contract defenses to attack arbitration agreements. Homa, 558

F.3d at 230; see 9 U.S.C. § 2 (contractual arbitration provisions “shall be valid,

irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the

revocation of any contract.”). Verizon may be correct that Muhammad bears many

similarities to Thibodeau, but any tension between the dicta in Gay and the holding in

Homa is not beyond resolution, as we have discussed. See Int’l Bros. of Elec. Workers,

Local 803, AFL-CIO v. N.L.R.B., 826 F.2d 1283, 1293 n.17 (3d Cir. 1987) (“[A]s a panel

of this Court, it is our duty to harmonize our decisions where it is possible to do so. 

Consideration of alleged inconsistencies between published opinions and the

determination whether to overrule an opinion of this Court is reserved for in banc

review.”). 

More importantly, Homa is prior precedent that is directly on point and binding on

us. See Garcia v. Att’y Gen. of U.S., 553 F.3d 724, 727 (3d Cir. 2009) (“We are bound by

precedential opinions of our Court unless they have been reversed by an en banc

proceeding or have been adversely affected by an opinion of the Supreme Court.”); see

also Third Circuit Internal Operating Procedure 9.1 (“[T]he holding of a panel in a
 We note that the Supreme Court’s recent ruling in Stolt-Nielson S.A. v. AnimalFeeds 5

International Corp., — S. Ct. —, 2010 WL 1655826 (Apr. 27, 2010), does not alter our

analysis and conclusion. The Stolt-Nielson Court addressed the specific question of

“whether imposing class arbitration on parties whose arbitration clauses are ‘silent” on

that issue is consistent with the [FAA].” Id. at *4. It did not consider the distinct issues

of state law preemption and unconscionability. In fact, the en banc Court in Puleo

expressly cited Stolt-Nielson without then questioning whether it precluded an

unconscionability determination. See Puleo, 2010 WL 1838762, at *6 n.5.

8

precedential opinion is binding on subsequent panels.”). We are not in a position to

reexamine Homa, and, since it controls here, we will vacate the District Court’s order

compelling arbitration and remand for further proceedings.5

III. Conclusion

Homa concluded that the FAA does not preempt Muhammad and, therefore, Homa

governs the outcome of this case. Accordingly, the District Court’s order compelling

arbitration is vacated and the matter is remanded for further proceedings consistent with

this opinion.