KHAN v. BDO SEIDMAN, LLP

der the Illinois Uniform Arbitration Act ( 710 ILCS 5/11 through 17 (West 2008)), whereas the Federal Arbitration Act ( 9 U.S.C. §§ 1 through 16 (2006)) governs the present case, given that the consulting agreements contemplate the purchase and sale of securities and that such transactions involve commerce (see 9 U.S.C. § 2 (2006); Hollingshead v. A.G. Edwards Sons, Inc., 396 Ill. App. 3d 1095, 1099, 920 N.E.2d 1254, 1258 (2009)). "Under the [Federal Arbitration Act (FAA)] and the case law interpreting it, the question of whether a claim is arbitrable is to be independently decided by the courts, unless the parties clear[ly] and unmistakab[ly]' agree to allow the arbitrator to decide arbitrability." Roubik v. Merrill Lynch, Pierce, Fenner Smith, Inc., 181 Ill. 2d 373, 383, 692 N.E.2d 1167, 1172 (1998), quoting First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 131 L. Ed. 2d 985, 994, 115 S. Ct. 1920, 1924 (1995); ATT Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 649, 89 L. Ed. 2d 648, 656, 106 S. Ct. 1415, 1418 (1986); see also United Steelworkers of America v. Warrior Gulf Navigation Co., 363 U.S. 574, 583 n. 7, 4 L. Ed. 2d 1409, 1418 n. 7, 80 S. Ct. 1347, 1353 n. 7 (1960); Marks v. Bober, 399 Ill. App. 3d 385, 389-90, 926 N.E.2d 801, 804 (2010) (contrasting the procedures for deciding arbitrability under the Illinois and federal statutes).

We find no evidence that the parties in this case clearly and unmistakably agreed that the arbitrator would decide the question of the arbitrability of a given claim. Hence, the question of arbitrability is for the courts to decide.

C. Settling a Claim by Arbitration "in Accordance With" New York Law or Illinois Law

In both case No. 09-L-139 and case No. 09-L-140, plaintiffs try to avoid arbitration by interpreting the arbitration clause in the consulting agreements as excusing the parties from arbitrating a claim whenever state law would excuse them from doing so. The question, however, is whether the parties agreed to that condition on arbitrability. Although "[t]he FAA creates a `body of federal substantive law of arbitrability'" ( Roubik, 181 Ill. 2d at 383, 692 N.E.2d at 1172, quoting Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 24, 74 L. Ed. 2d 765, 785, 103 S. Ct. 927, 941 (1983)), it does not require anyone to agree to arbitration ( Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior University, 489 U.S. 468, 478, 103 L. Ed. 2d 488, 499, 109 S. Ct. 1248, 1255 (1989)). If parties do not have to agree to arbitration at all, then, by corollary, they can agree to arbitration only on specified conditions. The purpose of the FAA is to "ensur[e] that private arbitration agreements are enforced according to their terms" ( Volt, 489 U.S. at 478, 103 L. Ed. 2d at 500, 109 S. Ct. at 1255-56), and if by the terms of an arbitration agreement, the parties must arbitrate a claim only in circumstances in which state law would enforce an arbitration agreement, giving effect to those terms would be "fully consistent with the goals of the FAA" ( Volt, 489 U.S. at 479, 103 L. Ed. 2d at 500, 109 S. Ct. at 1256).

Plaintiffs argue that the arbitration clause of the consulting agreements requires arbitration only when it would be "in accordance with" state law to require arbitration. In case No. 09-L-139, the arbitration clause says that "such dispute, controversy or claim shall be settled by arbitration in accordance with the laws of the State of Illinois," and in case No. 09-L-140, the arbitration clause substitutes "New York" for "Illinois." On the basis of this language in the arbitration clause, plaintiffs argue, in case No. 09-L-139, that they are excused from arbitration under Illinois law because the arbitration provisions are procedurally and substantively unconscionable ( See Zobrist v. Verizon Wireless, 354 Ill. App. 3d 1139, 1147-48, 822 N.E.2d 531, 540-41 (2004)), and they argue, in case No. 09-L-140, that they are excused from arbitration under New York law because "`the alleged fraud was part of a grand scheme that permeated the entire contract, including the arbitration provision'" ( Tong v. S.A.C. Capital Management, LLC, 16 Misc. 3d 401, 410, 835 N.Y.S.2d 881, 888-89 (2007), quoting In re Weinrott, 32 N.Y.2d 190, 197, 298 N.E.2d 42, 46 (1973)).

When the arbitration clause refers, however, to the laws of Illinois or New York, it is discussing how arbitration is to be conducted, not whether it will be conducted. Again, the arbitration clause reads as follows:

"If any dispute, controversy or claim arises in connection with the performance or breach of this agreement and cannot be resolved by facilitated negotiations (or the parties agree to waive that process) then such dispute, controversy or claim shall be settled by arbitration in accordance with the laws of the State of New York [(or Illinois, in case No. 09-L-139)], and the then current Arbitration Rules for Professional Accounting and Related Disputes of the American Arbitration Association (`AAA'), except that no pre-hearing discovery shall be permitted unless specifically authorized by the arbitration panel, and shall take place in the city in which the BDO office providing the relevant Service exists, unless the parties agree to a different locale."

Interpreting the phrase "in accordance with the laws of the State of New York" as providing a potential way out of arbitration would nullify the preceding phrase stating that the "dispute, controversy or claim shall be settled by arbitration." (Emphasis added.) The "in accordance" phrase pertains to the procedures by which arbitration shall Be conducted. We find confirmation of this interpretation in the context in which the phrase occurs. Like the "Arbitration Rules for Professional Accounting and Related Disputes of the AAA," the laws of Illinois or New York are, in this context, relevant only to the procedures of arbitration. Likewise, the question of prehearing discovery is a question of procedure. Settlement by arbitration "shall" occur, and it shall occur in conformity with certain procedural laws and rules, including those of Illinois or New York.

Because the mention of Illinois law and New York law, in the arbitration clauses, relates only to how arbitration will be conducted rather than to whether it will be conducted, Illinois law and New York law are applicable only to procedural questions, not to the question of arbitrability. The parties must look to Illinois law and New York law for procedural guidance during arbitration. That is what the arbitration clause means.

It is true that, according to the "Governing Law" paragraph, the consulting agreements as a whole are governed by New York law. Nevertheless, even though a contract provides that it is governed by New York law, New York courts apply federal, not state, arbitration law if the contract involves interstate commerce. In re Cone Mills Corp., 90 A.D.2d 31, 32, 455 N.Y.S.2d 625, 627 (1982); Bridas S.A. Petrolera Industrial y Comercial v. International Standard Electric Corp., 128 Misc. 2d 669, 673, 490 N.Y.S.2d 711, 715 (1985). Under the federal substantive law of arbitrability, "regardless of whether the challenge is brought in federal or state court, a challenge to the validity of the contract as a whole, and not specifically to the arbitration clause, must go to the arbitrator." Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 449, 163 L. Ed. 2d 1038, 1046, 126 S. Ct. 1204, 1210 (2006); Prima Paint Corp. v. Flood Conklin Manufacturing Co., 388 U.S. 395, 403-04, 18 L. Ed. 2d 1270, 1277, 87 S. Ct. 1801, 1806 (1967); S. Ware, Arbitration Law's Separability Doctrine After Buckeye Check Cashing, Inc. v. Cardegna, 8 Nev. L.J. 107, 109-10 (2007). The contention that "fraud permeates the entire contract" is directed at the contract as a whole and not specifically to the arbitration clause. See Tong, 16 Misc. 3d at 410, 835 N.Y.S.2d at 888-89. Consequently, such a contention would not affect arbitrability.

D. The Scope of the Arbitration Clause 1. Investment Advice

As the Supreme Court has said, "arbitration is simply a matter of contract between the parties" ( First Options, 514 U.S. at 943, 131 L. Ed. 2d at 993, 115 S. Ct. at 1924), "`and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit'" ( ATT, 475 U.S. at 648, 89 L. Ed. 2d at 655, 106 S.Ct. at 1418, quoting United Steelworkers, 363 U.S. at 582, 4 L. Ed. 2d at 1417, 80 S. Ct. at 1353). Therefore, the first thing to do is look at the contract and see if the parties agreed to arbitrate the claims in question.

In most of the claims in the complaint, plaintiffs seek to recover damages from BDO for "advising [them] to engage in the Investment Strategies" and for representing to them that they could make a profit from the investment strategies. Thus, we must scrutinize the consulting agreement and determine, de novo, whether plaintiffs agreed to arbitrate any claim that BDO has wronged them in the giving of investment advice, keeping in mind that we should resolve any doubts in favor of arbitrability. "[A]s with any other contract, the parties' intentions control, but those intentions are generously construed as to issues of arbitrability." Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626, 87 L. Ed. 2d 444, 455, 105 S. Ct. 3346, 3354 (1985).

Before examining the parties' intentions as objectively manifested in the consulting agreements, we note who the parties are in the consulting agreements. It has not escaped our attention that none of the plaintiffs signed any of the consulting agreements containing the arbitration clause. Instead, Flex-N-Gate Corporation and Flex-N-Gate, Canada, ULC, signed them through their president, Shahid R. Khan — who signed only in his capacity as president of those two corporations. Nevertheless, plaintiffs do not make the argument that the arbitration clause is inapplicable to them by reason that they are not parties to the consulting agreements, and arguments omitted from a brief are forfeited (210 Ill. 2d R. 341(h)(7)). We do not mean to imply any criticism of plaintiffs for omitting this argument; they might have their reasons for doing so. We just do not want to appear to be oblivious of this seeming discrepancy or to give the impression that we are glossing over it.

So, we will proceed under the assumption that the arbitration clause is binding on plaintiffs, and, again, it reads as follows: "If any dispute, controversy or claim arises in connection with the performance or preach of this agreement and cannot be resolved by facilitated negotiations (or the parties agree to waive that process) then such dispute, controversy or claim shall be settled by arbitration ***." Thus, plaintiffs have agreed to arbitrate only those claims that are related to the performance or breach of the consulting agreement. Because breach is a failure to perform, the scope of the arbitration clauses might be expressed more simply as "claims relating to the performance of the consulting agreement."

It is important to realize that the arbitration clause in this case is more narrow than the typical arbitration clause, such as the one in Prima Paint, 388 U.S. at 398, 18 L. Ed. 2d at 1274, 87 S. Ct. at 1803, which referred to "`any controversy or claim arising out of or relating to this Agreement.'" The broader clause in Prima Paint would encompass extra-contractual claims, such as fraud in the inducement of the contract. Prima Paint, 388 U.S. at 406, 18 L. Ed. 2d at 1279, 87 S. Ct. at 1807; J. Zitter, Claim of Fraud in Inducement of Contract as Subject to Compulsory Arbitration Clause Contained in Contract, 11 A.L.R.4th 774, § 4(a) (1982). The arbitration clause before us, however, contemplates the arbitration of a narrower class of claims — those relating to the performance of the agreement — not claims relating to the agreement. See Midwest Window Systems, Inc. v. Amcor Industries, Inc., 630 F.2d 535, 537 (7th Cir. 1980).

Accordingly, to determine what claims plaintiffs agreed to arbitrate, we must determine what performances BDO promised to render in the consulting agreements — for, again, only claims pertaining to the performance of the consulting agreement are subject to the requirement of arbitration — and we will interpret the consulting agreements in light of New York law, since they all provide that the agreement as a whole is governed by New York law. Let us begin with the preamble. The preamble of the consulting agreement observes that the client wishes to "sell[] various investments" and to "mak[e] certain other investments," and the preamble defines this proposed selling and making of investments as "the Transactions." The preamble further states that the client wishes BDO to provide "certain Consulting services in connection with the Transactions" and that BDO, for its part, wishes to provide such consulting services to the client. Hence, the parties contemplate that BDO shall provide consulting services, i.e., advice, to the client in connection with the selling and making of investments.

Then, under the heading of "Services," the agreement spells out BDO's proposed "consulting services":

"consulting services in conjunction with Transactions, including assistance in determination of sales prices and allocations thereof, assisting the Client and/or his advisors in structuring the Transactions to attain the most beneficial tax results, preparation of the 2000 and 2001 income tax returns for the Client and/or its shareholders, and assisting the Client and/or his representatives in its discussions and/or negotiations with potential purchasers or sellers, on a specifically requested basis, as well as in income and estate tax planning and other personal financial planning. BDO is not in the business of providing investment advice or service, thus, none of the services to be rendered are to be considered as investment advice, and it is understood that the Client is not relying upon BDO for investment advice or services." (Emphasis in original.)

The consulting agreement does not specify what it means by "structuring the Transactions," but by reference to other language in the same paragraph, we can ascertain what "structuring the Transactions" does not mean. Because we should interpret the consulting agreement in such a way that, if possible, no provision therein is rendered superfluous, we should interpret the phrase "structuring the Transactions" so as not to render superfluous the following sentence, with which the quoted paragraph concludes: "BDO is not in the business of providing investment advice or services, thus, none of the services to be rendered are to be considered as investment advice, and it is understood that the Client is not relying upon BDO for investment advice or services." (Emphasis omitted.) See RM 14 FK Corp, v. Bank One Trust Co., N.A., 37 A.D.3d 272, 274, 831 N.Y.S.2d 120, 123 (2007); Isaacs v. Westchester Wood Works, Inc., 278 A.D.2d 184, 185, 718 N.Y.S.2d 338, 339 (2000); East 41st Street Associates v. 18 East 42nd Street, L.P., 248 A.D.2d 112, 114, 669 N.Y.S.2d 546, 549 (1998). Thus, "structuring the Transactions" does not mean "giving investment advice."

What is "investment advice"? It would seem reasonable to infer the meaning of "investment advice" from the statutory definition of an "investment advisor," regardless of whether the BDO defendants fully conform to that definition (there is a statutory exception for an accountant "whose performance of such services is solely incidental to the practice of his or her profession" ( 815 ILCS 5/2.11(2)(i) (West 2008); see also N.Y. Gen. Bus. Law § 359-eee(1)(a)(2) (McKinney 2001)). Section 2.11 of the Illinois Securities Law of 1953 (Securities Law) defines an "investment adviser" as including the following: "any person who, for compensation, engages in this State in the business of advising others, either directly or through publications or writings, as to the value of securities or as to the advisability of investing in, purchasing, or selling securities." 815 ILCS 5/2.11 (West 2008); see also N.Y. Gen. Bus. Law § 359-eee(1)(a) (McKinney 2001). Section 2.1 of the Securities Law in turn defines "security" to include "any put, call, straddle, option, or privilege entered into, relating to foreign currency" and also any "evidence of indebtedness." 815 ILCS 5/2.1 (West 2008); see also N.Y. Gen. Bus. Law § 352(1) (McKinney 2001) ("foreign currency orders, calls or options therefor hereinafter called security or securities" and "evidences of interest or indebtedness"). Consequently, "investment advice" appears to include advising others as to the value of options relating to foreign currency and as to the advisability of investing in, purchasing, or selling such options.

In the context of statutory law, "investment advice" has a meaning more specific than "structuring the Transactions." Therefore, we construe "structuring the Transactions" to exclude the act of advising the client as to the value of options relating to foreign currency and as to the advisability of investing in, purchasing, or selling such options (or evidences of indebtedness, such as distressed debt). By this interpretation, we not only avoid rendering superfluous the concluding sentence of the "Services" paragraph of the consulting agreement, which pointedly excludes "investment advice" from BDO's promised performance, but we allow the specific provision to prevail over, or control, the general provision. See Isaacs, 278 A.D.2d at 185, 718 N.Y.S.2d at 339; Bank of Tokyo-Mitsubishi, Ltd., New York Branch v. Kvaerner a.s., 243 A.D.2d 1, 8, 671 N.Y.S.2d 905, 910 (1998).

This interpretation also harmonizes with the preamble of the consulting agreement, which seems to presuppose that the client already knows which investments it wishes to make and sell. "[A] preamble or recital is often an aid to the construction of a written instrument." Canandarqua Academy v. McKechnie, 90 N.Y. 618, 626 (1882). See also Ticonderoga R.R. Co. v. Delaware Hudson Co., 139 A.D. 542, 543, 124 N.Y.S. 252, 253 (1910); Export Import Film Co. v. B.R. Schulberg Productions, Inc., 125 Misc. 756, 758, 211 N.Y.S. 838, 839 (1925). The preamble begins with the recital that "the Client is interested in selling various investments and in making certain other investments (`the Transactions')." Being interested in selling "various investments" implies that the client already owns the "various investments" to be sold. Further, the preamble does not say that the client is interested in "making investments" in a general sense but, rather, that the client is interested in "making certain other investments." (Emphasis added.) In this attributive usage, "certain" means "specific but not explicitly named or stated." New Oxford American Dictionary 280 (2001). Moreover, the preamble declares that "the Client desires BDO to provide certain Consulting services in connection with the Transactions," as if " the Transactions" ( i.e., the investments that the client is going to buy and sell) have already been determined and BDO is going to serve merely an instrumental function in connection with these predetermined "Transactions." (Emphasis added.) Under this interpretation, the caveat that BDO will provide no "investment advice" — that is, no advice as to the value of securities (such as options) and as to the advisability of investing in, purchasing, or selling securities — makes sense, contextually.

In most of their claims, plaintiffs seek to recover from BDO for "advising [them] to engage in the Investment Strategies" and for falsely representing to them that they could make a profit from the investment strategies — in other words, for giving them fraudulent or negligent "investment advice." Because the consulting agreement expressly and specifically excludes "investment advice" from BDO's promised performance, plaintiffs' claims premised on investment advice are not "claim[s] aris[ing] in connection with the performance or breach of this agreement." The arbitration clause is not susceptible to a plausible interpretation that covers disputes over investment advice, because such an interpretation would collide with the plain language of the written contract. See United Steelworkers, 363 U.S. at 582-83, 4 L. Ed. 2d at 1417, 80 S. Ct. at 1353.

The BDO defendants insist, however, that, in reality, plaintiffs entered into the consulting agreements in connection with investment strategies. As a matter of fact, plaintiffs admit in their complaint that the BDO defendants would not have given them the investment advice unless plaintiffs had entered into the consulting agreement and had paid the fees stipulated therein. Thus, the BDO defendants argue, even if the consulting agreements disavow investment advice as part of BDO's performance, the reality is that most of what plaintiffs were paying for was investment advice and everyone understood that and acted accordingly.

Nevertheless, this argument that practice triumphs over the text of the contractual documents raises a host of problems. This argument flies in the face of (1) the integration clause in paragraph 12 of the consulting agreement, (2) an additional clause in paragraph 12 stating that any amendment or modification of the consulting agreement must be in writing, (3) the parol-evidence rule, and (4) the requirement in section 2 of the Federal Arbitration Act ( 9 U.S.C. § 2 (2006)) that the arbitration agreement be in writing.

"A written agreement or other written instrument which contains a provision to the effect that it cannot be changed orally, cannot be changed by an executory agreement unless such executory agreement is in writing and signed by the party against whom enforcement of the change is sought or by his agent." N.Y. Gen. Oblig. Law § 15-301(1) (McKinney 2001). In other words, a different, unwritten agreement that the parties actually put into practice does not change a written agreement containing the stipulation that it can be changed only in writing. If the written contract purports to express the entire agreement between the parties and provides that no modification will be effective unless it is in a writing signed by both parties, parol evidence will not vary or enlarge a party's agreed-on performance as set forth in the written contract. Columbia Broadcasting System, Inc. v. Roskin Distributors, Inc., 31 A.D.2d 22, 24-25, 294 N.Y.S.2d 804, 806-07 (1968), aff'd, 28 N.Y.2d 559, 561, 268 N.E.2d 128, 129, 319 N.Y.S.2d 449, 450 (1971); Jiffy Sew Corp. v. Paar, 29 A.D.2d 643, 644, 286 N.Y.S.2d 865, 866 (1968).

Similarly, parol evidence is inadmissible to create an ambiguity in a contract that is otherwise clear and unambiguous on its face. Del Vecchio v. Cohen, 288 A.D.2d 426, 428, 733 N.Y.S.2d 479, 481 (2001). "Where there is a written agreement which purports to express the parties' entire agreement, extrinsic evidence that contradicts, varies, or explains the agreement is generally barred by the parol evidence rule." Del Vecchio, 288 A.D.2d at 427, 733 N.Y.S.2d at 480. Thus, the parol-evidence rule bars extrinsic evidence that investment advice really was part of BDO's performance, contrary to the unambiguous sentence in the consulting agreement stating that investment advice would not be part of BDO's performance. See Del Vecchio, 288 A.D.2d at 427, 733 N.Y.S.2d at 480; Koesier v. Weber, Cohn Riley, Inc., 193 Ill. App. 3d 1045, 1049, 550 N.E.2d 1004, 1006 (1989); Pecora v. Szabo, 94 Ill. App. 3d 57, 63, 418 N.E.2d 431, 435-36 (1981).

By relying on circumstances outside the four corners of the consulting agreement as a basis for making defective investment advice a subject of arbitration, we effectively would make an oral modification of the arbitration clause within the consulting agreement. We effectively would amend the arbitration clause to read that "[i]f any dispute, controversy or claim arises in connection with the performance or breach of this agreement or BDO's rendition of investment advice, then such dispute, controversy or claim shall be settled by arbitration." Arbitration, however, cannot be compelled on the basis of an implied agreement to arbitrate a claim but only on the basis of a written agreement to do so. Ore Chemical Corp. v. Stinnes Interoil, Inc., 606 F. Supp. 1510, 1516 (S.D.N.Y. 1985). The arbitration clause, by its terms, must cover the dispute. United Steelworkers, 363 U.S. at 582-83, 4 L. Ed. 2d at 1417, 80 S. Ct. at 1353.

For these reasons, we conclude that insomuch as plaintiffs sue BDO for money they lost as a result of BDO's advice to buy and sell options or distressed debts, they are suing BDO for bad investment advice, which is not within the scope of BDO's performance, according to the unambiguous text of the consulting agreement, and which, therefore, is not within the scope of the arbitration clause.

2. Legal Opinions

On the one hand, the consulting agreement says, in the "Services" paragraph, that BDO will prepare income-tax returns for the client and will assist the client and its representatives in income-tax planning. On the other hand, the consulting agreement says, in the "No Warranty" paragraph, that BDO's services do not include, and that BDO assumes no responsibility for, "any legal and/or tax opinions regarding any strategies that may be implemented." Further, BDO "advise[s] the Client to retain a law firm for legal and/or tax opinions on any strategies or transactions they enter into."

Because preparing even the simplest income-tax return entails, to some extent, forming a legal opinion on the applicability of certain provisions of tax statutes, one might wonder if the consulting agreement contradicts itself in the "Services" and "No Warranty" paragraphs. We should make a reasonable effort, however, to harmonize apparently conflicting provisions ( Mir v. Mir, 135 A.D.2d 690, 691, 522 N.Y.S.2d 590, 591 (1987)), and we see a way to interpret these two paragraphs so that they are not a mere exercise in obfuscation. The tension between these two paragraphs is owing to the fact that when an accountant prepares income-tax returns, he or she is on the frontier between accounting and the practice of law. See In re Application of the New Jersey Society of Certified Public Accountants, 102 N.J. 231, 239, 507 A.2d 711, 716 (1986) (remarking that in the field of federal income taxation, the legal and accounting phases are frequently "`so interrelated, interdependent, and overlapping that they are difficult to distinguish.' [Citation.]"). Under the "professional judgment approach," an accountant should recommend the services of an attorney whenever it is necessary to resolve difficult or doubtful legal questions. Certified Public Accountants, 102 N.J. at 242, 507 A.2d at 717; Agran v. Shapiro, 127 Cal. App. 2d Supp. 807, 812-13, 273 P.2d 619, 623 (1954); Gardner v. Conway, 234 Minn. 468, 480, 48 N.W.2d 788, 796 (1951); S. Schwab, Bringing Down the Bar: Accountants Challenge Meaning of Unauthorized Practice, 21 Cardozo L. Rev. 1425, 1444 (2000). The "Services" and "No Warranty" paragraphs take the "professional judgment approach" by saying, in effect, that the preparation of the client's income-tax returns will raise difficult or doubtful legal questions and that the legal evaluations inherent in the proposed tax returns that BDO prepares for the client are merely tentative or provisional until they are validated by a law firm. The tax returns, as drafted by BDO, are in the nature of suggestions, which are subject to the review and approval of a qualified lawyer.

It follows that insomuch as plaintiffs bring claims against BDO for conspiring with Jenkens, Proskauer, and DeCastro to issue sham legal opinions, their claims do not "arise[] in connection with the performance or breach of [the consulting agreement]," for the consulting agreement plainly states that "BDO's Services hereunder do not include *** any legal and/or tax opinion." The consulting agreement expressly contemplates that a law firm, not BDO, will be responsible for formulating legal or tax opinions. By interfering with, or compromising the integrity of, this process of legal review by a third party, BDO went outside its field of activity as contemplated by the consulting agreement and, therefore, outside the scope of the arbitration clause.

III. CONCLUSION

For the foregoing reasons, we affirm the trial court's judgments in case Nos. 09-L-139 and 09-L-140 insomuch as the court found the counts for breach of contract, i.e., count IX in case No. 09-L-139 and count X in case No. 09-L-140, to be subject to the contractual requirement of arbitration. Otherwise, we reverse the judgments and remand these cases for further proceedings.

Affirmed in part and reversed in part; cause remanded.

STEIGMANN, J., concurs.