UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

┐ ATRICURE, INC., │ Plaintiff-Appellee, │ > No. 19-4067 │ v. │ │ JIAN MENG aka Larry Meng; BEIJING MEDICAL │ SCIENTIFIC CO. LTD. dba Med-Zenith, │ Defendants-Appellants. │ ┘

Appeal from the United States District Court for the Southern District of Ohio at Cincinnati. No. 1:19-cv-00054—Michael R. Barrett, District Judge.

Decided and Filed: August 27, 2021

Before: GUY, LARSEN, and MURPHY, Circuit Judges. _________________

COUNSEL ON BRIEF: Erik R. Puknys, FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, LLP, Palo Alto, California, Daniel J. Donnellon, SEBALY, SHILLITO & DYER, Dayton, Ohio, Qingyu Yin, FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, LLP, Washington, D.C., for Appellants. Mark A. Nadeau, Cameron A. Fine, DLA PIPER LLP (US), Phoenix, Arizona, for Appellee.

MURPHY, J., delivered the opinion of the court in which LARSEN, J., joined. GUY, J. (pp. 23–37), delivered a separate dissenting opinion. _________________

OPINION _________________

MURPHY, Circuit Judge. The Supreme Court has told lower courts to resolve some arbitration-related questions with a “healthy regard” for the Federal Arbitration Act’s “federal No. 19-4067 AtriCure, Inc. v. Meng, et al. Page 2

policy favoring arbitration.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983). In this appeal, the defendants argue that this pro-arbitration presumption should permit them to enforce a contract’s arbitration clause even though they were not parties to, or third-party beneficiaries of, the contract. At one time, they had strong support for this view. Many circuit courts used the federal policy favoring arbitration to broadly enforce arbitration contracts in favor of (or against) nonparties under expansive readings of generic common-law concepts. See, e.g., Arnold v. Arnold Corp., 920 F.2d 1269, 1281–82 (6th Cir. 1990). Yet the Act’s text compels states only to treat arbitration contracts the same way that they treat “any contract.” 9 U.S.C. § 2. So the Supreme Court has since held that courts considering whether arbitration clauses cover nonparties should neutrally apply the relevant state law that otherwise governs. Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 630–32 (2009). The Court did not say that any policy favoring arbitration should influence things. We thus see no room for this federal “dice-loading” rule of construction to resolve the state-law question. Antonin Scalia, A Matter of Interpretation 28 (1997); cf. Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1142 (2018).

Instead, we must ask whether Ohio law, when fairly read, permits the defendants to enforce the arbitration clause even though they did not sign the contract. The defendants rely on two “equitable estoppel” theories and one “agency” theory as their grounds to do so. But their first estoppel theory rests on the outdated circuit decisions, which adopted a much broader estoppel test than the test applied by the Ohio Supreme Court. And the defen