Harter, Lowell E. v. Iowa Grain Company ( 2000 )


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  • In the
    United States Court of Appeals
    For the Seventh Circuit
    Nos. 98-3010 & 98-3817
    Lowell E. Harter and Doretta Harter,
    Plaintiffs-Appellants,
    v.
    Iowa Grain Co., et al.,
    Defendants-Appellees.
    Appeals from the United States District Court
    for the Northern District of Illinois, Eastern Division.
    No. 96 C 2936--Milton I. Shadur, Judge.
    Argued September 13, 1999--Decided April 21, 2000
    Before Posner, Chief Judge, and Cudahy and Kanne,
    Circuit Judges.
    Cudahy, Circuit Judge. The recent proliferation
    of so-called "hedge-to-arrive" contracts for the
    sale of grain has pitted many American farmers
    against their counterparts in the grain storage
    and marketing industry. The case before us
    involves these contracts, and these players, but
    it also wends its way into questions of
    arbitration and attorney’s fees. A familiarity
    with hedge-to-arrive contracts will be helpful to
    understanding the issues in the case.
    I.   Introduction
    Farmers often contract to sell grain to grain
    elevators at some specific time in the future.
    Such contracts guarantee farmers a buyer for
    their grain and guarantee grain elevators a
    supply of a commodity. The contracts generally
    specify the quantity and quality of grain to be
    sold, as well as a delivery date and a price for
    the grain. Both parties, by agreeing in advance
    to the grain price, take a risk that the market
    will move against them. The farmer’s risk is that
    grain prices will be higher at the time of
    delivery, thus causing him to forego profit by
    selling at too low a price; the elevator’s risk
    is that prices will drop, causing it to purchase
    unduly expensive grain. "Hedge-to-arrive"
    contracts (HTA contracts) attempt to alleviate
    these risks by introducing price flexibility. See
    The Andersons, Inc. v. Horton Farms, Inc., 
    166 F.3d 308
    , 319 (6th Cir. 1998). HTA contracts use
    two price indices--a "futures reference price,"
    set by the Chicago Board of Trade for some time
    in the future, and a "local cash basis level,"
    which is a local adjustment to the national
    price. See 
    id.
     In an HTA contract, the parties
    generally agree at the time of contracting on the
    national portion of the price, and defer
    agreement on the local part of the price. See 
    id.
    Many HTA contracts are "flexible," meaning the
    parties may "roll" the established delivery date
    to some point in the future. See 
    id.
     When an
    elevator enters an HTA contract, it usually
    "hedges," or tries to offset the risk of paying
    unduly high prices, by buying an equal and
    opposite position in the futures market. See 
    id.
    If either party to an HTA contract rolls the
    delivery date forward, the elevator buys back its
    original hedge and rehedges by purchasing a new
    futures contract. See 
    id.
     The spread between the
    original hedge position and the "rolled" hedge
    position is attached to the price per bushel of
    the original HTA contract, and the farmer runs
    the risk of assuming a debit. See 
    id.
    The Commodity Exchange Act (CEA), codified at 7
    U.S.C. sec. 1 et seq., and regulations
    promulgated under it govern contracts for sale of
    a commodity for future delivery--futures
    contracts. The CEA specifically excludes from the
    definition of futures contracts--and thus from
    its reach--the sale of a cash commodity for
    deferred shipment or delivery--cash forward
    contracts. See 7 U.S.C. sec. 1a(11); see also The
    Andersons, 
    166 F.3d at 318
    . "HTAs began as simple
    variants of cash forward contracts, but soon
    began to acquire more and more characteristics of
    futures contracts. This process has progressed to
    the point that it is now possible to argue that
    newer versions of HTAs are more like speculative
    futures contracts than cash forward contracts."
    Charles F. Reid, Note, Risky Business: HTAs, the
    Cash Forward Exclusion and Top of Iowa
    Cooperative v. Schewe, 
    44 Vill. L. Rev. 125
    , 134
    (1999). Several courts have concluded that HTA
    contracts are cash forward contracts that may be
    sold off-exchange./1 But the CFTC has leaned
    towards characterizing HTAs as futures contracts
    that must be sold on designated exchanges./2
    II.   Background
    Lowell Harter was, until his retirement, a corn
    farmer in Grant County, Indiana. "The Andersons"
    is a corporation that operates grain elevators
    around the Midwest. The Andersons was not, at the
    time of the transactions in question, a futures
    commission merchant (FCM) registered with the
    Commodity Futures Trading Commission./3 In 1993,
    The Andersons began marketing HTA contracts. The
    Andersons solicited Harter, who entered into five
    such contracts in November 1994. Harter contends
    that an employee of The Andersons told him the
    contracts were "no risk" plays on the futures
    market. The Andersons counters that the contracts
    clearly stated that "the commodities represented
    under this contract will be tangibly exchanged."
    Appellee’s Br. at 4. The Andersons implies that
    Harter understood that the contracts called for
    him to turn over corn or its cash equivalent at
    some point in the future, suggesting that the
    risk of loss was apparent.
    Harter claims that a few months later,
    presumably at the delivery obligation date, The
    Andersons notified him that he owed them
    $16,941.69 (we assume--neither party specifies--
    that The Andersons requested and Harter refused
    delivery of the corn, thus giving rise to an
    obligation to furnish its cash equivalent).
    Harter was surprised, he says, because he thought
    the HTAs were "no risk." Harter says that the
    parties agreed he would tender a check for the
    amount, and they would simultaneously enter into
    new HTA contracts designed to capitalize on the
    market and generate enough profit to cover the
    initial loss. See Appellant’s Br.I at 3./4 The
    Andersons does not directly respond to this, but
    states that the parties agreed to extend the
    delivery periods for the contracts, or roll the
    contracts forward.
    In May of 1995, apparently when the new
    delivery obligation date arrived, The Andersons
    sought delivery of the corn, which Harter again
    refused. The Andersons then told Harter he owed
    it approximately $50,000. The Andersons explains
    that this figure represents "the difference
    between the market price of corn and the price
    for the corn established by the contracts."
    Appellee’s Br. at 6-7. Harter says that the
    figure represents the entire loss throughout the
    HTA contract period, less a $16,000 payment
    Harter made to cover the initial loss.
    Appellant’s Br.I at 3.
    Harter filed a class action lawsuit in the
    Northern District of Illinois against The
    Andersons, its subsidiary AISC and introducing
    broker Iowa Grain. Appellant’s Supp. App.I at 24-
    35 (Harter v. Iowa Grain Co., No. 96 C 2936 (N.D.
    Ill. July 26, 1999) (first amended complaint)).
    Harter later dropped Iowa Grain, which Harter had
    erroneously believed to be The Andersons’
    principal, from the suit. See Appellant’s Supp.
    App.II at 218-225 (Harter v. Iowa Grain, No. 97-
    2671 (7th Cir. July 15, 1998) (unpublished order
    reversing award of sanctions against Harter’s
    attorney)). Harter alleged that The Andersons had
    violated the Commodity Exchange Act, the federal
    Racketeer Influenced and Corrupt Organizations
    Act (RICO), the Indiana RICO statute, and had
    committed common law fraud, breach of fiduciary
    duty and intentional infliction of emotional
    distress. The contracts Harter had signed
    expressly provided that in the event of a
    dispute, the National Grain & Feed Association
    (NGFA) would arbitrate. After Harter filed suit,
    The Andersons petitioned the district court,
    pursuant to the Federal Arbitration Act, 9 U.S.C.
    sec. 1 et seq., to stay proceedings and to compel
    arbitration. The district judge granted the
    motion. The NGFA arbitrators entered an award in
    favor of The Andersons, and ordered Harter to pay
    contract damages of $55,350 plus interest, as
    well as $85,000 in attorney’s fees plus interest.
    Harter moved to vacate or modify the award; The
    Andersons moved to confirm it. On July 24, 1998,
    the district court entered an order confirming
    the arbitration award in its entirety. It
    subsequently granted The Andersons’ request that
    Harter bear the attorney’s fees that The
    Andersons incurred in non-arbitration portions of
    the litigation. Harter now appeals the district
    court’s order compelling arbitration, its order
    affirming the award and its order regarding
    attorney’s fees.
    III.   The Order Compelling Arbitration
    The contracts at issue provide for the
    arbitration of "any disputes or controversies
    arising out of" those contracts. See, e.g.,
    Appellant’s Supp. App.I at 71-82 (duplicates of
    Harter HTA contracts). The Federal Arbitration
    Act provides that a court must stay its
    proceedings and compel arbitration if it is
    satisfied that an issue before it is arbitrable
    under the parties’ agreement. See 9 U.S.C. sec.
    3. The district court in the present case did
    just that, and Harter protests. We review the
    district court’s order compelling arbitration de
    novo. See Matthews v. Rollins Hudig Hall Co., 
    72 F.3d 50
    , 53 (7th Cir. 1995).
    "The primary issue before the court," Harter
    explains, "is whether [CFTC regulations governing
    predispute arbitration] invalidate[ ] the
    arbitration clause in the . . . contracts."
    Appellant’s Reply Br. at 1. Harter does not
    identify any respect in which the clauses
    themselves violate CFTC regulations, for instance
    by excluding required consumer protection
    language. However, Harter insists that "the . .
    . contracts violate the prohibition of the
    Commodity Exchange Act . . . against the sale of
    off-exchange futures contracts . . . by
    unregistered persons or entities through fraud."
    
    Id.
     (citations omitted). We understand him to
    argue that the contracts themselves are illegal;
    if this argument is correct, he posits, the
    contracts are void and the arbitration clauses in
    them are ineffective. Consequently, the district
    court order compelling arbitration would have
    been in error.
    Under section 4 of the Federal Arbitration Act,
    9 U.S.C. sec. 4, a federal court must order
    arbitration "once it is satisfied that ’the
    making of the agreement for arbitration or the
    failure to comply [with the arbitration
    agreement] is not in issue.’" Prima Paint Corp.
    v. Flood & Conklin Mfg. Co., 
    388 U.S. 395
    , 403
    (1967) (quoting 9 U.S.C. sec. 4). Courts "will
    not allow a party to unravel a contractual
    arbitration clause by arguing that the clause was
    part of a contract that is voidable . . . ."
    Colfax Envelope Corp. v. Local No. 458-3M,
    Chicago Graphic Communications Int’l Union, 
    20 F.3d 750
    , 754 (7th Cir. 1994). "The party must
    show that the arbitration clause itself, which is
    to say the parties’ agreement to arbitrate any
    disputes over the contract that might arise, is
    vitiated by fraud, or lack of consideration or
    assent . . . ." 
    Id.
     (emphasis added). Neither
    Harter’s complaint nor his motion opposing
    compelled arbitration alleges that the
    arbitration provisions themselves were the
    product of fraud, inadequate consideration or the
    like. Instead, he attacks the legality of each
    contract as a whole. Thus, under the Federal
    Arbitration Act and cases construing it, the
    dispute arising from the contracts-- namely, the
    legality of the contracts under the CEA--is
    arbitrable.
    In this respect, Harter’s case is a duplicate
    of Sweet Dreams Unlimited, Inc. v. Dial-A-
    Mattress Int’l, Ltd., 
    1 F.3d 639
     (7th Cir. 1993).
    In that case, two parties signed an agreement
    under which one would market the other’s
    trademarked product. The agreement called for all
    disputes "arising out of" it to be arbitrated.
    The marketer was offered a franchise agreement,
    which was never executed. Eventually the producer
    severed the relationship entirely and allegedly
    attempted to put the marketer out of business.
    See 
    id. at 640
    . The marketer sued in state court,
    and the producer removed to federal court and
    asked the court to stay proceedings pending
    arbitration. The marketer argued that it was the
    purchaser of an unregistered franchise; the
    Illinois Franchise Act allowed such purchasers to
    sue for recision of the offending contract. See
    
    id.
     The marketer therefore argued that the
    contract which called for arbitration should be
    rescinded by the court, and the dispute should be
    resolved in court. We stated that the
    "interesting, if not somewhat metaphysical"
    question at issue was whether "a dispute, which
    has as its object the nullification of a
    contract, ’arise[s] out of’ that same contract."
    
    Id. at 641
    .
    We held in Sweet Dreams that where a dispute
    has its origins in an agreement that calls for
    arbitration, the court cannot decide the merits
    because the dispute "arises out of" the agreement
    and is subject to arbitration. 
    Id. at 642-43
    .
    Therefore, in Sweet Dreams, whether the marketer
    was the purchaser of a registered or unregistered
    franchise under state statute was, pursuant to
    the Federal Arbitration Act, a matter for the
    arbitrator and not for the court. See 
    id.
     Just so
    here./5 The Harter contracts say that any
    dispute "arising out of" the contract will be
    arbitrated. See, e.g., Supp. App.I at 71-83
    (duplicates of HTA contracts; attorney’s fee
    provision found at para. 5 in each). Harter, like
    the marketer in Sweet Dreams, makes a legal
    argument that he is protected by a statute that
    would invalidate the agreement. Because his
    contentions "arise out of" his contract, they are
    matters for the arbitrator.
    Next, Harter embarks down an alternate
    rhetorical route to arrive at his preferred
    destination--federal court. He suggests that even
    if the court cannot decide the merits of his
    claim, the court must assume that the claim is
    valid for the purpose of evaluating the motion to
    compel arbitration./6 If we were to accept this
    sophistry, we would essentially be directing the
    case to the district court. For if, based on our
    assumption, the arbitrators have no power, who
    but the court may hear this case? Fortunately,
    the argument is meritless, and we need not tax
    the district court further. Harter marshals
    Schacht v. Beacon Insurance Co., 
    742 F.2d 386
    (7th Cir. 1984), which states that "an order to
    arbitrate the particular grievance should not be
    denied unless it may be said with positive
    assurance that the arbitration clause is not
    susceptible of an interpretation that covers the
    asserted dispute." 
    Id. at 390
     (quoting United
    Steelworkers v. Gulf Navigation Co., 
    363 U.S. 574
    , 582-83 (1960)) (emphasis added). Based on
    this single word, Harter would have us take as
    true his assertions that these contracts violated
    the CEA and are therefore void. But reading
    Schacht as a whole, this is clearly wrong.
    In Schacht, a reinsurance company contracted to
    cover the losses of an insurance company. 
    742 F.2d at 388-89
    . The contract included an
    arbitration clause. See 
    id.
     The reinsurer asked
    the insurer for an "advance premium," and when
    none was forthcoming, sent a notice of
    cancellation to the insurer. 
    Id.
     The insurer
    responded that the contract called for 180 days
    notice before cancellation, and stated that it
    assumed the contract remained in force. See 
    id.
    The insurer later sought coverage for its losses,
    and the reinsurer failed to pay the claim. See
    
    id.
     The insurer sought arbitration, and the
    reinsurer stated that the contract was void, thus
    relieving it of the duty to arbitrate. See 
    id.
     We
    said that it was clear the parties had a
    contractual relationship, but granted the
    possibility that if the reinsurer was correct,
    some of the contractual provisions were
    unenforceable. We then concluded that "[t]he
    claims raised by [the reinsurer] are susceptible
    to resolution through the arbitral process." 
    Id. at 390
    . So despite Harter’s creative
    interpretation of Schacht, the case ultimately
    weighs against his point of view. Clearly the
    parties in the present case had a contractual
    relationship--the record includes copies of the
    documents signed by both parties. See Appellant’s
    Supp. App.I at 71-83 (duplicates of Harter’s HTA
    contracts). Notwithstanding the merits of
    Harter’s claims that the contractual terms with
    The Andersons were not enforceable, Schacht
    (along with Sweet Dreams, Colfax Envelope and
    Prima Paint) instructs that the NGFA arbitration
    panel was the ultimate forum for those claims./7
    Not easily deterred, Harter makes an alternative
    effort to keep this dispute out of the
    arbitrators’ hands. He argues that even if the
    arbitration clauses are valid, a court is better
    suited to pass on the legal status of the
    contracts than is an arbitrator. This argument is
    not altogether fanciful. The Ninth Circuit has
    stated that questions of law regarding statutory
    rights are best left to judicial interpretation.
    Marchese v. Shearson Hayden Stone, Inc., 
    734 F.2d 414
    , 419-20 (9th Cir. 1984). The Marchese court
    concluded that "[i]t is up to case-by-case
    interpretation to determine which statutes are
    such that an arbitrator can consider the
    statutory claim." 
    Id.
     The plaintiff in Marchese
    had asked for a declaratory judgment stating that
    the Commodity Exchange Act allowed customers to
    retain "interest and increment" on margin
    deposits in excess of their brokerage fees. See
    
    id. at 419
    . The Ninth Circuit considered this a
    claim requiring pure legal interpretation of the
    Commodity Exchange Act, and held that it was
    uniquely suited for judicial resolution, and that
    the district court’s order to compel arbitration
    was in error. See 
    id. at 421
    .
    Though Marchese nicely reflects Harter’s point
    of view, it does not persuade us. Why? First, the
    CEA claim at issue here--that Harter’s HTA
    contracts are futures instruments rather than
    cash market transactions--is not a pure question
    of law, but requires a fact-intensive inquiry. We
    have stated that "[a]lthough cash forward
    contracts and futures contracts are easily
    distinguishable in theory, it is frequently
    difficult in practice to tell whether a
    particular arrangement between two parties is a
    bona fide cash forward contract for the delivery
    of grain or whether it is a mechanism for price
    speculation on the futures market." Lachmund, 191
    F.3d at 787. Lachmund instructed that we examine
    the facts of the case, beginning with the words
    of the contract itself, and moving on to "the
    course of dealings between the parties and the
    totality of the business relationship." Id. Thus,
    this case is unlike the pure question of law
    presented in Marchese./8
    Harter takes a final swipe at the arbitration
    order. He rightly recounts that arbitration is a
    matter of contract, and that "a party cannot be
    required to submit to arbitration any dispute
    which he has not agreed so to submit." See United
    Steelworkers, 
    363 U.S. at 582
    . Based on this
    truism, he floats two contractual arguments:
    first, he did not intend for a claim regarding
    the validity of the HTA contracts to be
    arbitrated; second, The Andersons did not intend
    that this claim be arbitrated. Harter claims to
    have received "something completely different"
    than what he "bargained for" when his claim was
    adjudicated by the NGFA panel. Appellant’s Br.I
    at 26. But the arbitration clauses in his
    contracts state that "any disputes or
    controversies arising out of th[ese] contract[s]
    shall be arbitrated by the National Grain & Feed
    Association, pursuant to its arbitration rules."
    Appellee’s Supp. App. at 49-58 para. 136 of
    "Standard Purchase Contract Terms" (emphasis
    added). So Harter--like it or not--got exactly
    what he bargained for.
    Equally implausible is Harter’s claim that The
    Andersons did not intend the NGFA to arbitrate
    the claim. He furnishes us records showing that
    the NGFA had not arbitrated claims of fraud or
    misrepresentation before the groundswell of HTA
    disputes. This evidence does not suggest that the
    Andersons did not intend NGFA to arbitrate such
    a dispute. In fact, if any inference can be drawn
    from the fact that the NGFA began hearing fraud
    and misrepresentation claims as soon as the HTA
    controversies arose, it is that the NGFA was the
    natural forum to which the parties to these
    disputes turned. We therefore affirm the district
    court’s grant of the motion to compel
    arbitration.
    IV.   Structural Bias of the NGFA Arbitration Panel
    The Andersons asked the district court to
    confirm the NGFA panel’s award, which it did.
    Harter now argues to us, as he did below, that
    this decision was erroneous because the NGFA
    panel was biased against him. When reviewing the
    district court’s confirmation of the arbitration
    award, we decide questions of law de novo and
    review findings of fact for clear error. See
    Employers Ins. of Wausau v. Banco de Seguras Del
    Estado, 
    199 F.3d 937
    , 941 (7th Cir. 1999).
    Parties to an arbitration contract agree to
    trade procedural niceties for expeditious dispute
    resolution. See Dean v. Sullivan, 
    118 F.3d 1170
    ,
    1173 (7th Cir. 1997). The Federal Arbitration Act
    permits us to upset the parties’ bargain by
    vacating an arbitration award only in very
    specific situations. See 9 U.S.C. sec. 10. Harter
    argues that this arbitration is such a situation
    because there was "evident partiality . . . in
    the arbitrators . . ." in violation of section
    10(a)(2) of the Act. 9 U.S.C. sec. 10(a)(2). We
    have stated that "evident partiality" exists when
    an arbitrator’s bias is "direct, definite and
    capable of demonstration rather than remote,
    uncertain, or speculative." United States
    Wrestling Federation v. Wrestling Division of the
    AAU, Inc., 
    605 F.2d 313
    , 318 (7th Cir. 1979).
    Harter now asks us to recognize a subset of
    arbitral partiality, "structural bias." He
    contends that the NGFA is "structurally biased"
    against farmers because its members include grain
    elevators like The Andersons. Thus, he was
    "placed in the unenviable position of having to
    attempt to persuade NGFA members that a
    widespread practice of the association’s
    membership is illegal." Appellant’s Br.I at
    32./9 Harter no doubt feels that the farmers’
    traditional adversaries were sitting in judgment
    over him.
    Some notable jurists have harbored similar
    suspicions about the fate of customers appearing
    before arbitration panels populated by industry
    "insiders." For instance, when the Second Circuit
    required a securities buyer to arbitrate a fraud
    claim under the 1933 Securities Act against his
    broker, Judge Clark dissented. See Wilko v. Swan,
    
    201 F.2d 439
    , 445-46 (2d Cir.), rev’d 
    346 U.S. 427
     (1953). Judge Clark stated that "the persons
    to [adjudicate the dispute] would naturally come
    from the regulated business itself. Adjudication
    by such arbitrators . . . is surely not a way of
    assuring the customer that objective and
    sympathetic consideration of his claim which is
    envisaged by the Securities Act." 
    Id. at 445
    (Clark, J., dissenting). The Supreme Court
    adopted Judge Clark’s point of view, stating that
    Congress’s intent in passing section 14 of the
    Securities Act was to "assure that sellers could
    not maneuver buyers into a position that might
    weaken their ability to recover under the
    Securities Act." Wilko v. Swan, 
    346 U.S. 427
    , 432
    (1953). Section 14 created a non-waivable right
    to bring suit in federal court for such
    maneuvers, the Court determined. See 
    id.
     at 434-
    35.
    The Seventh Circuit adopted this reasoning in
    Weissbuch v. Merrill Lynch, Pierce, Fenner &
    Smith, Inc., 
    558 F.2d 831
     (7th Cir. 1977). In
    Weissbuch, we relied on Wilko to find that a Rule
    10b-5 consumer fraud claim was not arbitrable.
    See Weissbuch, 
    558 F.2d at 835-36
    . The same year
    we decided Weissbuch, we held that an analogous
    CEA claim was arbitrable. See Tamari v. Bache &
    Co. (Lebanon) S.A.L., 
    565 F.2d 1194
    , 1199-1200
    (7th Cir. 1977) (Tamari II). We reasoned that
    unlike the Securities Act of 1933 at issue in
    Wilko, the CEA had no non-waivable consumer
    protection provision. See Tamari II, 
    565 F.2d at 1199
    . Judge Swygert, in a persuasive dissent,
    relied on Wilko and Weissbuch to argue that
    commodities investors, like securities investors,
    were "vulnerable to fraudulent schemes
    perpetrated by industry insiders," and thus
    deserved a judicial forum for their claims. See
    
    id. at 1206
     (Swygert, J., dissenting).
    However perceptive Judge Swygert and Judge Clark
    may have been, the opposing view favoring
    arbitration has firmly won out. In 1989, the
    Supreme Court explicitly overruled Wilko, stating
    that it had "fallen far out of step with our
    current strong endorsement of the federal
    statutes favoring [arbitration as a] method of
    resolving disputes." Rodriguez de Quijas v.
    Shearson/American Express, Inc., 
    490 U.S. 477
    ,
    481 (1989). Rodriguez de Quijas was the
    culmination of a series of pro-arbitration cases
    decided in the 1980s. In Mitsubishi Motors Corp.
    v. Soler Chrysler-Plymouth, Inc., 
    473 U.S. 614
    (1985), the Court held that foreign arbitration
    panels could hear international antitrust claims
    under the Sherman Act. See 
    id. at 639
    . In
    Shearson/American Express, Inc. v. McMahon, 
    482 U.S. 220
     (1987), the Court held that industry
    panels could arbitrate most consumer claims under
    the Securities Exchange Act of 1934 and under
    RICO. See 
    id. at 232-33, 238-39
    . Rodriguez de
    Quijas removed the final barrier to arbitration
    of section 14 Securities Act claims contained in
    Wilko./10
    To avoid the arbitration pitfalls identified by
    Judges Swygert and Clark, we have required
    arbitrators to provide a "fundamentally fair
    hearing." See, e.g., Generica Ltd. v.
    Pharmaceutical Basics, Inc., 
    125 F.3d 1123
    , 1130
    (7th Cir. 1997). We guarantee fairness by
    steering clear of "evident partiality." And, in
    settings where arbitrators and litigants were
    structural adversaries, as Harter suggests they
    are here, we have never found evident partiality.
    For instance, we refused to set aside an award
    rendered in favor of a financial services company
    by a panel whose members were "drawn from persons
    in the commodities business." Tamari v. Bache
    Halsey Stuart, Inc., 
    619 F.2d 1196
    , 1201 (7th
    Cir. 1980) (Tamari IV, see 
    id.
     at 1197 n.1). We
    reasoned that disqualifying arbiters with
    experience in the business would eviscerate the
    goals of arbitration. See 
    id.
     at 1202 n.11. We
    also noted in Tamari IV that the customer had
    agreed to arbitrate before the "industry" panel.
    See 
    id. at 1201-02
    . We have elsewhere stated that
    by virtue of their expertise in a field,
    arbitrators may have interests that overlap with
    the matter they are considering as arbitrators.
    See, e.g., Health Servs. Mgt. Corp. v. Hughes,
    
    975 F.2d 1253
    , 1264 (7th Cir. 1992). Such overlap
    has not amounted to prima facie partiality. See
    
    id. at 1264
    ; Tamari IV, 
    619 F.2d at 1201
    . Thus,
    even a prior business association between an
    arbitrator and a party is not sufficient evidence
    of bias to vacate an award. See Health Servs.,
    
    975 F.2d at 1264
    . Reviewing these cases, we find
    it difficult to imagine how courts might apply
    the "structural bias" standard Harter advocates.
    In an economy increasingly populated by large
    conglomerates with diverse interests, many
    individual arbitrators could be affiliated with
    companies only arguably adverse to one of the
    parties. Harter’s standard would require
    disqualification, despite the practical reality
    that the arbitrators themselves would quite
    likely be impartial.
    Although as a matter of first impression we
    might sympathize with Harter’s frustration, we
    are in the mainstream in rejecting his
    "structural bias" argument./11 The First
    Circuit recently rejected an argument that an
    arbitration panel comprising financial employers
    was so inclined to side with employers that it
    could not adjudicate the claim of a female worker
    alleging gender discrimination. See Rosenberg v.
    Merrill Lynch, Pierce, Fenner & Smith, Inc., 
    170 F.3d 1
    , 14-15 (1st Cir. 1999). The Eleventh
    Circuit has affirmed the impartiality of a panel
    whose members were in the business of collecting
    futures debit balances from customers in a
    situation where the panel held a customer liable
    for such obligations. See Scott v. Prudential
    Sec., Inc., 
    141 F.3d 1007
    , 1015-16 (11th Cir.
    1998). And, of particular relevance to us, the
    Sixth Circuit recently found in favor of The
    Andersons in a challenge to an NGFA arbitral
    award involving an HTA contract almost identical
    to Harter’s. See Horton Farms, 
    166 F.3d at
    328-
    30. So precedent in this circuit and others, as
    well as the broad policy goals served by
    arbitration, require us to reject Harter’s
    argument of "structural bias" in the NGFA. This
    issue is no longer open.
    Thus, we will vacate the arbitration award only
    if Harter can show that the NGFA panel had direct
    bias against him. This standard is difficult to
    meet. For instance, in one of the few cases
    vacating an award because of arbitral bias, the
    Second Circuit objected when a son served as
    arbitrator of a dispute involving a local unit of
    an international union of which his father was
    president. See Morelite Constr. Corp. v. New York
    City Dist. Council Carpenters Benefit Funds, 
    748 F.2d 79
    , 84 (2d Cir. 1984).
    Harter observes that the NGFA is an
    organization of grain merchandisers and their
    affiliates. See Appellant’s Br.I at 30-31.
    Apparently, however, a number of farmer-owned
    cooperatives are also NGFA members. See Horton
    Farms, 
    166 F.3d at 326
    . On the other hand, one of
    The Andersons’ top employees sits on the NGFA
    board. See 
    id. at 325
    . The Andersons pays more
    than $26,000 in dues annually to the NGFA. See
    Appellant’s Br.I at 31. And the NGFA has taken
    the public position that HTA contracts are not
    futures instruments. See 
    id.
     Harter charges that
    a significant portion of NGFA members have
    written HTA contracts, and that NGFA arbitration
    rules do not disqualify arbitrators who have
    written HTA contracts. See id. at 32. Harter also
    charges that, prior to the influx of HTA cases,
    the NGFA arbitrated fewer than twenty cases
    involving farmers, and only vindicated farmers
    twice. See id. at 27 n.26. Harter alleges that
    almost half of the NGFA’s members have written
    HTA contracts, while the NGFA points out that
    just half of those members responding to an HTA
    survey have done so. See Amicus Br. at 13 n.10.
    Even if all of these facts are true, they do not
    establish the direct, definite, demonstrable bias
    required by United States Wrestling Federation,
    
    605 F.2d at 318
    . See also Horton Farms, 
    166 F.3d at 325-26
     (finding that combination of procedural
    safeguards and membership of farmer-owned
    cooperatives indicated fairness of NGFA arbitral
    proceedings).
    Under NGFA arbitration rules, an aggrieved party
    must first file a complaint with the NGFA
    national secretary. The parties then fully brief
    the dispute, and either party may request oral
    argument, though the requesting party bears the
    cost. The NGFA national secretary then appoints
    a three-member arbitration committee selected
    from the membership. The individual arbitrators
    must have expertise in the industry sector at
    issue, but must be commercially disinterested in
    the particular dispute. See Amicus Br. at 12.
    Arbitrators must disclose any bias or financial
    interest that could influence their analysis;
    either party may object to any of the
    arbitrators. See 
    id.
     The panel issues written
    opinions, and the parties may appeal. These facts
    suggest significant procedural safeguards for the
    parties.
    Finally, Harter argues that the panel
    demonstrated its bias by granting an
    unsubstantiated request by The Andersons for
    attorney’s fees, and delegating to the NGFA
    national secretary the task of verifying The
    Andersons’ expenditures. It is true that, when a
    party claims arbitral bias, we must "scan the
    record" for evidence of partiality. See, e.g.,
    Health Servs., 
    975 F.2d at 1258
    . Here, the NGFA
    panel unanimously found in favor of The
    Andersons, and awarded damages reflecting The
    Andersons’ actual market loss, plus cancellation
    fees, plus compound interest calculated at 9
    percent. It also cited a provision in Harter’s
    contract stating that "seller shall also be
    liable for The Andersons’ attorney’s fees . . ."
    and stated that the Andersons "indicated that
    outside counsel fees and costs totaled
    approximately $85,000 through November 1996 in
    connection with the federal court case resulting
    from Harter’s refusal to arbitrate the dispute .
    . . ." Appellant’s App.I at 9 (The Andersons,
    Inc. v. Harter, NGFA Case No. 1788). The
    arbitration panel’s written decision also
    recounted the ongoing court battle between the
    parties. Thus, although The Andersons had not
    submitted actual billing records, the panel had
    before it contract language calling for Harter to
    pay The Andersons’ legal fees, The Andersons’
    estimate of its legal fees and evidence of the
    court battle giving rise to those fees. The
    decision to award attorney’s fees subject to a
    detailed review by the NGFA national secretary
    was reasonable, and certainly does not prove
    direct bias against Harter. We therefore affirm
    the district court’s confirmation of the arbitral
    award.
    V.   Attorney’s Fees
    Harter finally complains that the district judge
    erred in finding that The Andersons was entitled
    to recover attorney’s fees incurred for
    proceedings following the arbitration. Harter
    protests the award on two grounds: the Federal
    Arbitration Act does not authorize post-
    arbitration awards of attorney’s fees and the
    contract authorizing fee shifting does not apply
    to proceedings ancillary to enforcement of the
    arbitration decision. We review the district
    court’s award of attorney’s fees for abuse of
    discretion. See Connolly v. National Sch. Bus
    Serv., Inc., 
    177 F.3d 593
    , 595 (7th Cir. 1999).
    As for Harter’s first contention, he is correct
    that the Federal Arbitration Act does not
    authorize a district court to award attorney’s
    fees to a party who successfully confirmed an
    arbitration award in federal court. See Menke v.
    Monchecourt, 
    17 F.3d 1007
    , 1009 (7th Cir. 1994).
    But Menke, the linchpin of Harter’s argument
    against attorney’s fees, recognizes two bases for
    deviating from the American rule that each party
    bear its own fees: (1) statutory authority for
    fee shifting and (2) contractual agreement
    between the parties. See 
    id.
     Here, The Andersons
    invoked the words of the contract that Harter
    signed. That document provides that "[f]ailure to
    fulfill this contract will result in minimum
    contract cancellation charges to the seller
    [Harter], the total of which will be the
    difference between the contract price and the
    replacement cost at the time of cancellation,
    plus the cancellation charge in effect. Seller
    shall also be liable for The Andersons’ attorney
    fees, cost of collection, plus interest."
    Appellant’s Supp. App.I at 71-83 (duplicates of
    HTA contracts; attorney’s fee provision found at
    para. 5 in each).
    In a similar case in the Ninth Circuit, one
    party to an arbitral agreement moved to vacate
    the arbitral award, as Harter did here. See
    LaFarge Conseils et Etudes v. Kaiser Cement &
    Gypsum Corp., 
    791 F.2d 1334
     (9th Cir. 1986). The
    court concluded that the motion was an action
    "based on the contract," which provided for
    attorney’s fees in actions to enforce the
    contract. See id. at 134. Therefore, the party
    that successfully defended the motion to vacate
    was entitled to reimbursement for fees expended
    in that defense. See id. Analogously, The
    Andersons, which successfully defended against
    Harter’s motion to vacate, was entitled under the
    terms of the contract to seek reimbursement from
    the district court for fees expended in that
    defense. For the district court to consider and
    grant such a request was not an abuse of
    discretion.
    Harter next argues that the trial judge erred
    in awarding fees for litigation ancillary to The
    Andersons’ enforcement of the arbitral award.
    This "collateral" litigation included:
    Harter’s unsuccessful interlocutory appeal
    from the district court order compelling
    arbitration. See Appellant’s Supp. App.II at 218-
    25 (Harter v. Iowa Grain Co., No. 96-3907 (7th
    Cir. July 15, 1998) (unpublished order)) (also
    found at 
    1999 WL 754333
    ).
    Harter’s appeal of Rule 11 sanctions against
    his attorneys, imposed for naming Iowa Grain as
    a defendant, when there was questionable proof
    that Iowa Grain was linked to The Andersons in
    such a way as to make it liable for any alleged
    wrongdoing. Apparently, The Andersons was
    involved in discovery related to the litigation,
    which focused on whether AISC or The Andersons
    was an agent of Iowa Grain. See Appellant’s Supp.
    App.II at 218-25 (Harter v. Iowa Grain Co., No.
    97-2671 (7th Cir. July 15, 1998) (unpublished
    order reversing award of sanctions against
    Harter’s attorney)) (also found at 
    1999 WL 754333
    ).
    Harter’s appeal of the district court’s
    decision to dismiss as a defendant The Andersons’
    subsidiary AISC. Harter initially named AISC, The
    Andersons’ wholly owned subsidiary, apparently
    believing that AISC did business as The Andersons
    (they were in fact separate entities). The
    district court conditionally dismissed AISC, and
    we refused to review the dismissal, stating that
    until the conditions upon which AISC could be
    reinstated were moot, the dismissal was not a
    final, appealable order. See Appellant’s Supp.
    App.II at 218-25 (Harter v. Iowa Grain Co., No.
    96-4074 (7th Cir. July 15, 1998) (unpublished
    order dismissing interlocutory appeal)) (also
    found at 
    1999 WL 754333
    ).
    The Andersons’ efforts to limit the scope of
    Harter’s subpoena of the NGFA, served after the
    NGFA arbitration award was announced. Harter
    requested from the NGFA information that would
    help it prove arbitral bias. See Appellant’s
    App.II at 4 (Harter v. Iowa Grain Co., No. 96 C
    2936 (N.D. Ill. Oct. 28, 1998) (memorandum
    opinion and order regarding attorney’s fees)).
    The Andersons’ request for an injunction
    forcing Harter to place in escrow profits he
    received on the sale of farm assets. See 
    id.
    Harter urges that the fee-shifting provision in
    the contract applies only to attorney’s fees
    required to pursue a breach of contract action
    against him. He contends that the proceedings
    listed above are unrelated to The Andersons’
    breach of contract claim, and thus do not come
    within the ambit of the fee-shifting provision.
    The district judge disagreed, stating that "in
    each instance Andersons would not have been
    required to incur, but for Harter’s contractual
    breaches, Andersons’ attorney’s fees and related
    expenses . . . ." See Appellant’s App.II at 3
    (Harter v. Iowa Grain Co., No. 96 C 2936 (N.D.
    Ill. Oct. 28, 1998) (memorandum opinion and order
    regarding attorney’s fees)). We review this
    decision for abuse of discretion. See, e.g.,
    Kossman v. Calumet County, 
    849 F.2d 1027
    , 1030
    (7th Cir. 1988).
    Whether the contract’s fee-shifting provision
    covers satellite litigation is a question of
    contract interpretation. We interpret the
    contract with reference to Illinois law./12 In
    Illinois, "[p]rovisions for attorney’s fees are
    to be construed strictly, and such fees cannot be
    recovered for any services, unless so provided by
    the [contract]." Northern Trust Co. v. Sanford,
    
    308 Ill. 381
    , 389-90 (1923). Further, any
    ambiguity in a contract must be strictly
    construed against the party that wrote the
    contract. See Glidden v. Farmers Auto. Ins.
    Ass’n, 
    57 Ill. 2d 330
    , 336 (1974). Thus, for
    example, where a contract authorizes the shifting
    of attorney’s fees incurred in contract
    enforcement, a party may not recover fees
    incurred in bringing or defending a declaratory
    judgment action. See, e.g., Zimmerman v. First
    Prod. Credit Ass’n, 
    89 Ill. App. 3d 1074
    , 1076
    (1980); Arrington v. Walter E. Heller Int’l
    Corp., 
    30 Ill. App. 3d 631
    , 642 (1975). In
    addition to limiting the type of action for which
    a party may recover attorney’s fees, Illinois
    courts have suggested that fee-shifting
    provisions do not apply to attorney work that has
    only an indirect connection to the subject matter
    of the contract. For instance, in Helland v.
    Helland, 
    214 Ill. App. 3d 275
     (1991), a husband
    gave his ex-wife a promissory note for $12,000
    plus 8 percent interest, and the note called for
    the husband to reimburse the wife for attorney’s
    fees in the event he defaulted on the obligation.
    See id. at 276. The husband defaulted, and the
    wife sued for the $12,000 principal and simple
    interest, which the husband paid. See id. The
    wife then petitioned to receive compound
    interest, and the court rejected her petition.
    See id. The trial court held that she was
    entitled to recover attorney’s fees expended in
    pursuit of the compound interest claim, but the
    appellate court disagreed: "[s]uch a claim
    obviously was not caused by defendant’s default
    because he had paid the promissory note. . . .
    [P]laintiff was entitled to attorney fees
    incurred prior to cure." Id. at 278 (emphasis
    added).
    In a case that more closely resembles Harter’s,
    an auctioneer received a winning bid for farm
    equipment, but the purchaser’s check was returned
    for insufficient funds. See Kruse v. Kuntz, 
    288 Ill. App. 3d 431
    , 432 (1996). The purchaser then
    signed a written statement agreeing to pay the
    full amount due by a deadline, plus attorney’s
    fees. See 
    id.
     He did not meet the deadline, and
    the auctioneer filed suit; the purchaser filed a
    counterclaim seeking recision of the contract and
    filed a third-party claim against his bank. See
    
    id.
     The court held that the auctioneer was
    entitled to attorney’s fees incurred in
    connection with the "collateral" counterclaim and
    third-party claim because those claims were
    "necessitated" by the purchaser’s actions to
    avoid his contractual obligations. See id. at
    436.
    In this case, Harter’s contract states that
    "[f]ailure to fulfill this contract will result
    in minimum contract cancellation charges to the
    seller [Harter] . . . . Seller shall also be
    liable for The Andersons’ attorney fees, cost of
    collection, plus interest." Appellant’s Supp.
    App.I at 71-83 (duplicates of HTA contracts;
    attorney’s fee provision found at para. 5 in
    each). Following the example of Zimmerman and
    Arrington, we interpret this provision to limit
    The Andersons to fees incurred to collect its
    damages under the contract. Thus, applying the
    principles of Kruse and Helland, it seems that
    only actions necessary to The Andersons’
    collection effort are covered by the attorney’s
    fee provision. Harter need not reimburse The
    Andersons for its discretionary litigation
    efforts unnecessary to the collection. Clearly,
    opposing Harter’s interlocutory appeal from the
    district court order compelling arbitration was
    necessary to collection of damages. These
    portions of the award are confirmed. Also
    necessary to The Andersons’ collection of damages
    was The Andersons’ request for an injunction
    forcing Harter to place in escrow profits he
    received on the sale of farm assets.
    The district court, in approving attorney’s fees
    for other collateral litigation, stated that "but
    for" Harter’s actions, The Andersons would not
    have incurred legal bills. With respect, we
    believe that Illinois authorities require a more
    direct link between the losing party’s acts and
    the winning party’s attorney’s fees than a "but
    for" relation. At some point, Harter’s opponents
    must take responsibility for their own trial
    strategy. For instance, clearly unnecessary to
    the collection of damages was The Andersons’
    involvement in a co-defendant’s effort to recover
    Rule 11 sanctions from Harter’s attorney.
    Although the district judge correctly stated that
    but for Harter’s legal complaint, co-defendant
    Iowa Grain would not have moved for Rule 11
    sanctions against Harter, that conclusion does
    not justify attorney’s fees. Rather, we must ask
    whether Harter’s actions made the collateral
    litigation necessary to the collection of fees.
    We have previously held, in an unpublished
    opinion, that Harter’s lawyer did nothing so
    egregious that sanctions were warranted. See
    Harter v. Iowa Grain Co., 
    202 F.3d 273
     (7th Cir.
    1998) (unpublished order) (also found at 
    1999 WL 754333
    ). Following this logic, the effort to
    sanction Harter’s lawyer for wrongdoing was not
    required to collect damages. Thus, the onus for
    the Rule 11 action falls on Iowa Grain, which
    elected to pursue the sanctions action, and not
    on Harter. Similarly, The Andersons’ effort to
    limit the scope of Harter’s subpoena on the NGFA
    was not necessary to The Andersons’ collection of
    the arbitration award. Harter sought information
    from the NGFA that would help him undermine the
    objectivity of the NGFA process and thus justify
    vacating the award. In the present circumstances,
    because the NGFA moved on its own to quash the
    subpoena and The Andersons elected to duplicate
    the NGFA’s efforts, we do not think The
    Andersons’ effort was necessary to collecting
    Harter’s debt. See Harter v. Iowa Grain Co., No.
    98-014 (D. D.C. May 12, 1998) (order quashing
    subpoena), vacated as moot, Harter v. Iowa Grain
    Co., No. 98-7108 (D.C. Cir. Oct. 28, 1998).
    The most difficult question we address in terms
    of attorney’s fees is whether Harter should be
    required to repay The Andersons for its appellate
    defense of the district court’s decision to
    dismiss The Andersons’ subsidiary, AISC. Whether
    AISC was named as a defendant seems anything but
    crucial to The Andersons right to collect damages
    in this case. Further, the contract clearly
    states, "Seller shall also be liable for The
    Andersons’ attorney fees . . ." but not a
    subsidiary’s fees. These two factors militate
    against fee shifting in this case. But Harter
    initially named AISC as a defendant because he
    believed that AISC did business as The Andersons.
    See Harter, 
    1999 WL 754335
    , at *1. Thus, when
    Harter signed the contract agreeing to bear the
    attorney’s fees of The Andersons, he must have
    believed he was agreeing to cover the fees of
    AISC doing business as The Andersons. Given
    Harter’s apparent belief that AISC and The
    Andersons were essentially the same entity, and
    given the wide latitude the district court enjoys
    in awarding attorney’s fees, we affirm its
    decision to allow reimbursement for fees incurred
    in defense of the AISC dismissal.
    Harter’s last gasp is a series of complaints
    about the fees themselves: they were not properly
    documented, they are excessive, they cover non-
    legal work, they are duplicative and they were
    not billed contemporaneously. See Appellant’s
    Br.II at 20-37. Again, a court’s award of
    attorney’s fees is reviewed for abuse of
    discretion. See Ustrak v. Fairman, 
    851 F.2d 983
    ,
    987 (7th Cir. 1988). Harter first argues that The
    Andersons has inadequately documented the fees.
    This is nonsense. Illinois courts have stated
    that to justify a fee, a petition must specify
    "the services performed, by whom they were
    performed, the time expended thereon and the
    hourly rate charged therefor." Kaiser v. MEPC Am.
    Properties Inc., 
    164 Ill. App. 3d 978
    , 982
    (1987). In Fidelity & Deposit Co. of Maryland v.
    Krebs Engineers, 
    859 F.2d 501
     (7th Cir. 1988), we
    held that mere testimony that fees and expenses
    were incurred fell short of the requirement. See
    
    id. at 508
    . Somehow, Harter has adduced from
    these cases a requirement that the proponent of
    attorney’s fees submit a petition setting forth
    why the fees were reasonable. See Appellant’s
    Br.II at 24. But detailed billing records that a
    proponent avers are accurate provide the district
    judge--who presided over this case--with all the
    basis he needs to determine whether the fees are
    reasonable.
    The Andersons has provided billing records
    generated by its law firm, Foley & Lardner, which
    specify the task completed, the time (in 10-
    minute increments) spent on the task, and the
    identity of the attorney who completed the
    task./13 Descriptions of conferences and phone
    conversations specify who participated, and
    descriptions of legal research and analysis
    specify the motion, hearing or document on which
    the attorney worked. See Appellant’s App.II at
    44-87. The Andersons has also submitted an
    affidavit stating that the billing records
    accurately reflect Foley & Lardner’s work on
    behalf of The Andersons.
    Relatedly, Harter argues that the fees must be
    unreasonable because together with the fees
    awarded in arbitration, The Andersons will have
    recovered $140,000 in order to enforce a $55,000
    claim. However, as the trial judge pointed out,
    Harter elected to bring a class action putting
    millions of dollars at stake. Further, Harter
    decided to take interlocutory appeals, thereby
    driving up the fees at issue. In short, Harter
    raised the stakes in this litigation, and now
    must pay for that strategy./14
    Harter argues that "excessive and duplicative"
    work has been charged. What is excessive is a
    matter of opinion, and under Ustrak, it is the
    district court’s opinion that matters. See 
    851 F.2d at 987
    . We cannot say we disagree with the
    district court’s exercise of its discretion in
    approving these fees. For instance, Harter
    complains that several of The Andersons’
    attorneys spent more than thirty hours preparing
    an appellate brief. Given the numerous and
    complex issues involved in this litigation, we
    would be more surprised if the judge had rejected
    these billings as unreasonable. A properly
    drafted appellate brief may require many hours of
    research, analysis, writing and editing, and we
    would hardly encourage appellate litigants--who
    have spent hundreds of hours below--to economize
    unduly at the appellate level. We affirm the
    award of attorney’s fees for all matters except
    the NGFA subpoena and the Rule 11 litigation.
    VI.   Conclusion
    The district court correctly determined that
    under the parties’ contract, the legal status of
    the HTA contracts and the resulting resolution of
    claims was a matter for the arbitrators. We AFFIRM
    the district court’s order compelling
    arbitration. We also agree with the district
    court that the NGFA arbitration panel did not
    demonstrate direct bias--the only kind of bias
    sufficient to require vacation of an arbitral
    award--in its adjudication of this dispute. We
    AFFIRM the district court’s confirmation of the
    arbitral award. We agree with the district
    court’s conclusion that Harter is responsible for
    attorney’s fees arising from litigation
    collateral to the arbitration, except for the
    fees The Andersons incurred in relation to the
    Rule 11 litigation and the opposition to the NGFA
    subpoena. We REVERSE the district court’s award of
    attorney’s fees for these two matters, and AFFIRM
    the remainder of the award.
    /1 See, e.g., Lachmund v. ADM Investor Servs., Inc.,
    
    191 F.3d 777
    , 788-90 (7th Cir. 1999); The
    Andersons, Inc. v. Horton Farms, Inc., 
    166 F.3d 308
    , 318-20 (6th Cir. 1998); Nagel v. ADM
    Investor Servs., Inc., 
    65 F. Supp. 2d 740
    , 750-53
    (N.D. Ill. 1999); Barz v. Geneva Elevator Co., 
    12 F. Supp. 2d 943
    , 953-54 (N.D. Iowa 1998); Top of
    Iowa Coop. v. Schewe, 
    6 F. Supp. 2d 843
    , 853-58
    (N.D. Iowa 1998); In re Grain Land Coop., 
    978 F. Supp. 1267
    , 1272-77 (D. Minn. 1997).
    /2 See, e.g., In re Grain Land Coop., CFTC Docket
    No. 97-1 (Nov. 6, 1998); In re Competitive
    Strategies for Agric. Ltd., CFTC Docket No. 98-4
    (Aug. 24, 1998). One district court has refused
    to dismiss a claim similar to Harter’s on a Rule
    12(b)(6) motion, reasoning that whether the HTAs
    in that case were futures contracts was a
    question of fact rather than of law. See
    Gunderson v. ADM Investor Servs., Inc., No. C96-
    3148-MWB, 
    2000 WL 235390
     (N.D. Iowa, Feb. 28,
    2000).
    /3 At that time, a subsidiary, Andersons Investment
    Services Corp. (AISC), cleared its transactions
    through FCM Iowa Grain. The same individual
    manages The Andersons’ facility and the AISC
    operation at the Dunkirk, Indiana, office with
    which Harter dealt.
    /4 Harter originally brought two appeals, which have
    been consolidated, but he filed separate briefs
    and separate appendices. We will refer to the
    first brief, appendix and supplemental appendix,
    pertaining to the Commodity Exchange Act claims,
    as Br.I, App.I and Supp. App.I. We will refer to
    the second set of materials, pertaining to
    attorney’s fees, as Br.II, App.II and Supp.
    App.II.
    /5 Harter implies that because the dispute here
    involves interpretation of a federal statute,
    rather than a common-law claim, the dictates of
    the Federal Arbitration Act are trumped by the
    Commodity Exchange Act. He is wrong. Numerous
    courts have held that claims under the CEA are
    arbitrable. See, e.g., Tamari v. Bache & Co.
    (Lebanon) S.A.L., 
    565 F.2d 1194
    , 1200 (7th Cir.
    1977) (Tamari II). See also Smoky Greenhaw Cotton
    Co., Inc. v. Merrill Lynch, Pierce, Fenner &
    Smith, 
    720 F.2d 1446
    , 1449-50 (5th Cir. 1983);
    Ingbar v. Drexel Burnham Lambert Inc., 
    683 F.2d 603
    , 605 (1st Cir. 1982); Salcer v. Merrill
    Lynch, Pierce, Fenner & Smith, Inc., 
    682 F.2d 459
    , 460 (3d Cir. 1982). Further, the dispute
    aimed at nullifying the contract in Sweet Dreams
    Unlimited, Inc. v. Dial-a-Mattress Int’l, Ltd.,
    
    1 F.3d 639
     (7th Cir. 1993) involved
    interpretation of an Illinois statute; we
    pointedly held that the FAA and cases construing
    it applied. See 
    id. at 642-43
    .
    /6 On the day we heard oral arguments in Harter, a
    separate Seventh Circuit panel spoke for the
    first time on the legality of HTA contracts. See
    Lachmund v. ADM Investor Servs., Inc., 
    191 F.3d 777
     (7th Cir. 1999). Harter explained at oral
    argument and in a supplemental brief that if we
    decided the HTA contracts were legal as a matter
    of law, then he would not have a valid "claim"
    under the CEA, meaning the contracts and the
    arbitration clauses in them would be
    presumptively valid. See Appellant’s Supp. Br. at
    2. Conversely, if we decided in Lachmund that the
    legality of HTA contracts is a question of fact,
    then Harter maintains we must consider his CEA
    claim presumptively valid, and these contracts
    and arbitration clauses presumptively invalid.
    See 
    id.
     We decided in Lachmund that the legality
    of HTA contracts is a question of fact. But for
    reasons outlined above, we reject Harter’s
    premise that we must presume his CEA claim is
    valid and decide the arbitration question based
    on this presumption. The validity of the CEA
    claim, and all consequences that follow from it,
    are questions for the arbitrators.
    /7 For the purposes of argument, the district court
    did indulge Harter’s legal contentions. The court
    assumed that the HTA contracts were futures
    contracts, but decided that that assumption did
    not take Harter as far as he would like. The
    court concluded that even if The Andersons was a
    futures commission merchant because it dealt in
    a "futures" contract, and even if it was
    therefore governed by CFTC arbitration
    regulations, this particular dispute was not
    susceptible to those regulations. The court
    hypothesized that Harter was not a "customer"
    protected by the regulations because The
    Andersons did not directly trade on the Chicago
    Board of Trade. See 17 C.F.R. sec. 180.1(b). The
    court found that the dispute was not a "claim or
    grievance" governed by the regulations because it
    required the testimony of third parties over whom
    the relevant contract market did not have
    jurisdiction. See 17 C.F.R. sec. 180.1(a). We do
    not necessarily agree. As Harter urges, if the
    HTAs were futures instruments, then The Andersons
    arguably might have traded on the Board of Trade,
    and arguably should have been registered with the
    Board of Trade. The Board may then have had
    jurisdiction over some of the key witnesses. But
    our disagreement with the district court on this
    point is of no moment. The court was not obliged
    to adopt Harter’s legal view of the contracts,
    and we are not obliged to apply legal results
    that follow from them. The status of the
    contracts was a matter for the arbitrators alone.
    No matter how Harter phrases his disagreement
    with the district court on this point, he will be
    rudely awakened by the holdings of Sweet Dreams
    and like precedents.
    /8 Further, it seems to us Mitsubishi Motors Corp.
    v. Soler Chrysler-Plymouth, 
    473 U.S. 614
    , 626-27
    (1985) may deal a serious blow to Marchese. That
    case held that unless Congress specified
    otherwise, statutory rights were not to be
    treated differently under arbitration agreements
    than contractual rights. See 
    id. at 626-27
    .
    Neither party addresses this issue, perhaps
    because they understand Marchese to hold that
    only pure questions of law--statutory or
    contractual--may be better handled by the courts
    than by arbitrators. Because we reject the
    application of Marchese in this case, we need not
    assess its ongoing validity in light of
    Mitsubishi.
    /9 About one thousand grain merchandising companies,
    which operate more than five thousand facilities,
    belong to the NGFA. Appellant’s Br.I at 30 n.28.
    Of the NGFA’s grain elevator members, about 45%
    offer HTA contracts. Amicus Br. at 13 n.10.
    /10 Notably, the legislative and judicial enthusiasm
    for arbitration does not extend to arbitration
    clauses contained in contracts of adhesion. The
    Federal Arbitration Act explicitly allows the
    courts to give relief where the party opposing
    arbitration presents "well-supported claims that
    the agreement to arbitrate resulted from the sort
    of fraud or overwhelming economic power that
    would provide grounds ’for the revocation of any
    contract.’" Mitsubishi, 
    473 U.S. at 627
     (quoting
    9 U.S.C. sec. 2). Indeed, both Judge Swygert and
    Judge Clark, in opposing the specific
    arbitrations before them, were motivated by the
    apparent oppression involved in the contracts at
    issue. Judge Swygert specifically stated that he
    assumed the contracts at issue in Tamari were
    contracts of adhesion. 
    565 F.2d at 1204
     (Swygert,
    J., dissenting). Judge Clark stated that in six
    pages of "finely printed" boilerplate language
    drafted by the brokerage firm and imposed upon
    customers, "the intent of the contracting party
    having the superior bargaining power is not
    concealed." Wilko, 201 F.2d at 445 (Clark, J.,
    dissenting). Harter does not argue on appeal that
    these HTA contracts were contracts of adhesion.
    Therefore, we cannot weigh any commercial
    oppression that The Andersons may have brought to
    bear on this individual farmer, and we cannot
    vacate the award on this ground. Moreover,
    another farmer challenging his HTA contracts with
    The Andersons specifically argued the contracts
    were adhesive. Analyzing the issue under Michigan
    law, the Sixth Circuit rejected that argument.
    See Horton Farms, 
    166 F.3d at 323-26
     (finding
    that farmer failed to show The Andersons was the
    only grain elevator offering HTA contracts,
    failed to show the HTA contract terms were non-
    negotiable, and failed to show that the arbitral
    process was oppressive).
    /11 This position reflects the Supreme Court’s
    admonition in Mitsubishi Motors that courts
    should presume the parties’ selected arbitrators
    are competent and impartial until presented with
    evidence to the contrary. 
    473 U.S. at 633-34
    .
    /12 Harter is a citizen of Indiana; The Andersons is
    incorporated in Ohio. The Andersons maintains a
    post office box in Chicago, Illinois, and
    instructs farmers that payments should be made to
    that address. Moreover, Harter suggests that if
    the HTA contracts were futures contracts, they
    should have been traded on the Chicago Board of
    Trade; The Andersons’ relationship to the CBOT is
    also a factor in the resolution of the legal
    status of the contracts. Further, Iowa Grain,
    originally a defendant, is incorporated in
    Illinois, where the lawsuit was filed. The
    contract itself, which envisioned that all
    disputes would be resolved in arbitration, states
    that it is made "in accordance with the Grain
    Trade Rules" of the NGFA and that any disputes
    would be arbitrated by the NGFA, "pursuant to its
    arbitration rules." Appellee’s App. at 213. Thus,
    the parties did not select a state law to apply
    to the contract. Ordinarily, this would require
    us to undertake a choice of law analysis.
    However, Harter assumes that Illinois law
    applies. See Appellant’s Br.II at 8-9. And The
    Andersons does not dispute this assumption; in
    fact, it cites two Illinois cases dealing with
    the proper method of billing for attorney’s fees.
    Appellee’s Br. at 44. Where the parties agree on
    the law that governs a dispute, and there is at
    least a "reasonable relation" between the dispute
    and the forum whose law has been selected by the
    parties, "we will forego an independent analysis
    of the choice-of-law issue and apply [the
    parties’ choice]," Bird v. Centennial Ins. Co.,
    
    11 F.3d 228
    , 231 n.5 (1st Cir. 1993). The parties
    agree that Illinois law applies, and there are
    numerous contacts with Illinois suggesting a
    "reasonable relation" between that state and the
    dispute. Thus, we apply Illinois law.
    /13 Some billing entries are attributed to
    unidentified timekeepers. Although this practice
    is not ideal, we recognize that in large law
    firms with numerous billing attorneys, it may
    occasionally be unavoidable. It does not vitiate
    this otherwise adequate fee petition. Similarly,
    billing separately for services other than
    attorney time is a well-accepted law firm
    practice. We agree with the district court that
    such non-legal billings were proper.
    /14 Harter continues his aggressive tactics by
    representing to us that Foley & Lardner engaged
    in fraud. Foley & Lardner’s billing records
    furnished to the NGFA include entries that read
    "Redact Anderson bills so they only reflect
    ’Harter v. Andersons.’" Harter contends that this
    redaction was intended to "dupe the NGFA into
    granting its full request [for fees.]" Unlike
    Harter, we are not at all sure what is meant by
    this entry; the firm could have been trying to
    make sure Harter was not billed for Andersons’
    work unrelated to his claim. To conclude that the
    firm was engaging in fraud is unfounded and
    inflammatory. The district court had an
    opportunity to review the records, probe counsel
    for their meaning and entertain the "fraud"
    argument. We are satisfied that if it did not
    view this entry as fraud, it did not err.
    

Document Info

Docket Number: 98-3010

Judges: Per Curiam

Filed Date: 4/21/2000

Precedential Status: Precedential

Modified Date: 9/24/2015

Authorities (39)

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Susan M. ROSENBERG, Plaintiff, Appellee, v. MERRILL LYNCH, ... , 170 F.3d 1 ( 1999 )

SALCER, William Z., Appellant, v. MERRILL LYNCH, PIERCE, ... , 682 F.2d 459 ( 1982 )

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abdallah-w-tamari-ludwig-w-tamari-and-farah-w-tamari-co-partners-doing , 565 F.2d 1194 ( 1977 )

Health Services Management Corp. v. Charles Hughes, D/B/A ... , 975 F.2d 1253 ( 1992 )

United States Wrestling Federation v. The Wrestling ... , 605 F.2d 313 ( 1979 )

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tom-lachmund-v-adm-investor-services-incorporated-a-delaware , 191 F.3d 777 ( 1999 )

Fed. Sec. L. Rep. P 99,595 Smoky Greenhaw Cotton Co., Inc. ... , 720 F.2d 1446 ( 1983 )

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sweet-dreams-unlimited-inc-an-illinois-corporation-v-dial-a-mattress , 1 F.3d 639 ( 1993 )

69-fair-emplpraccas-bna-641-67-empl-prac-dec-p-43786-james-s , 72 F.3d 50 ( 1995 )

abdallah-w-tamari-ludwig-w-tamari-and-farah-w-tamari-co-partners-doing , 619 F.2d 1196 ( 1980 )

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fidelity-and-deposit-company-of-maryland-v-krebs-engineers , 859 F.2d 501 ( 1988 )

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