-10-
5 of the Arbitration Act on the question of the appointment of a
substitute arbitrator.
Carr also cites Carideo v. Dell, Inc., 2009 WL 3485933 (W.D.
Wash. Oct. 26, 2009), where the parties had designated the NAF as
the arbitral forum with much of the same language at issue here. After
the NAF stopped administering consumer arbitrations, the district
court was faced with the question of whether a substitute arbitrator
could be appointed. The court held that the designation of the NAF
was integral to the arbitration agreement, relying in part on the
appellate court case that we are reviewing in the instant appeal. The
court interpreted language in the arbitration clause stating that
disputes shall be resolved “exclusively and finally” by binding
arbitration administered by the NAF under its rules then in effect. The
court rejected Dell’s argument that “exclusively” modified “binding
arbitration,” holding instead that the word referred to arbitration by
the NAF. As to the NAF’s rules, the court questioned whether there
were any NAF rules for consumer arbitrations that remain in effect. Id.
at 4-5.
In contrast, we note that the district court in Adler v. Dell Inc.,
2009 WL 4580739 (E.D. Mich. Dec. 3, 2009), reached a contrary
conclusion in construing an identical arbitration clause. The court
found the phrase “exclusively and finally by binding arbitration
administered by the [NAF]” to be ambiguous as to whether the parties
intended “to embrace arbitration as their exclusive and final recourse
for disputes while identifying NAF as a secondary matter to administer
the process, or whether they intended NAF arbitration only to be their
exclusive and final recourse for disputes.” The court noted that both
interpretations had merit, but there was nothing in the language of the
arbitration clause to indicate which was the intended interpretation. Id.
at 2. The court pointed to two aspects of the agreement that tended
to support the interpretation that the designation of the NAF was
secondary to the intent to arbitrate. First, the agreement required that
NAF rules be used, which would appear to be surplusage unless
another arbitral forum were to be used. The court noted that the
plaintiff had given no reason why NAF rules could not be applied by
a substitute arbitrator. Second, the court noted, the agreement
specifically limited the arbitration process to the customer and Dell,
which adds emphasis to the process agreed upon, as opposed to the
