Joan and David Berenson’s agreement with Fidelity Brokerage required arbitration of all claims other than ones on behalf of a class.  The Berensons sued and sought class certification.  The parties agreed that the district court could resolve the merits before deciding the class certification motion.  On motion by Fidelity, the court granted summary judgment as to several claims, including the Berensons’ class claims, but denied it as to others.  Fidelity moved to compel arbitration of the non-class claims.  The court ordered arbitration but issued an opinion explaining its earlier refusal of summary judgment as to the remaining claims.

Fidelity appealed because, it argued, the district court’s opinion could prejudice its rights in the arbitration.  The First Circuit disagreed, holding that Fidelity had made its own bed and could now sleep in it:

The court’s October 31 summary judgment opinion was a direct consequence of Fidelity’s agreement to allow the court to try the Berensons’ claims in an exemplar case before certifying a putative class action and its request for summary judgment on all remaining claims in the case.  It was not an effective denial of Fidelity’s petition to compel arbitration on the Berensons’ individual claims; indeed, that arbitration is now proceeding.  Lacking jurisdiction over Fidelity’s interlocutory appeal, we must dismiss it.

Berenson v. National Financial Services LLC, No. 06-1112 (1st Cir. Apr. 27, 2007).

Barry Barnett