The opinion
TJOFLAT, Circuit Judge, concurring in which HILL, Circuit Judge,
joins:
Section 14 of the Securities Act of 1933 (1933 Act) provides as follows: “Any condition, stipulation, or provision binding any person acquiring any security to waive compliance with any provision of this sub-chapter or of the rules and regulations of the Commission shall be void.” 15 U.S.C. § 77n (1982). In Wilko v. Swan, 346 U.S. 427 , 74 S.Ct. 182 , 98 L.Ed. 168 (1953), the Supreme Court held that this provision rendered unenforceable an agreement to arbitrate a future controversy arising under section 12(2) of the 1933 Act, 15 U.S.C. § 111 (2) (1982). Absent section 14, the agreement to arbitrate would have been enforceable pursuant to the Federal Arbitration Act, 9 U.S.C. §§ 1-14 (1982). The issue before the en banc court is whether an agreement to arbitrate a future controversy arising under section 10(b) of the Securities Exchange Act of 1934 (1934 Act), 15 U.S.C. § 78j(b) (1982), is enforceable.
The 1934 Act contains a provision that is nearly identical to section 14 of the 1933 Act. Section 29 of the 1934 Act contains the following language: “Any condition, stipulation, or provision binding any person to waive compliance with any provision of this chapter or of any rule or regulation thereunder, or of any rule of an exchange required thereby shall be void.” 15 U.S.C. § 78cc(a) (1982). The Supreme Court in Wilko held that section 14 of the 1933 Act took precedence over the policies underlying the Federal Arbitration Act and prevented enforcement of an agreement to arbitrate a 1933 Act dispute. Section 29 of the 1934 Act essentially replicates section 14 of the 1933 Act. Under the teaching of Wilko , therefore, we must conclude that section 29 of the 1934 Act overrides the Federal Arbitration Act and renders unenforceable agreements to arbitrate 1934 Act disputes. There is no principled means of arriving at a contrary interpretation regarding the 1933 and 1934 Acts.
It is of no avail to attempt to draw the distinction that a section 12(2) private cause of action is expressly provided for in the statute whereas a section 10(b) private action is implied. To say that a private cause of action is implied is to say that Congress intended such an action to exist. See, e.g., Merrill Lynch, Pierce, Fenner & Smith v. Curran, 456 U.S. 353, 377-78 , 102 S.Ct. 1825, 1838-39 , 72 L.Ed.2d 182 (1982); Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15-16 , 100 S.Ct. 242, 245 , 62 L.Ed.2d 146 (1979). It is as if Congress explicitly provided for the cause of action. Because Congress intended to create a section 10(b) cause of action, it also intended section 29 to be applicable to it, and the inquiry before us is no different than the one before the Court in Wilko .
Were I writing on a clean slate, I might well be inclined to reach a result contrary to the Wilko Court. Section 14 of the 1933 Act renders void any provision binding a security purchaser to “waive compliance with any provision of this subchapter” or the relevant rules and regulations thereunder. 15 U.S.C. § 77n (1982). A fair reading of this statute would prevent a purchaser from waiving a seller’s compliance with the substantive provisions of the Act, i.e., its reporting and disclosure requirements. By agreeing to arbitrate, the purchaser does not waive the Act’s protections, but merely agrees to enforce the Act’s provisions in a forum other than the courts. We must follow Wilko , however, and I accordingly concur fully in the court’s holding that section 10(b) claims are not subject to pre-dispute arbitration agreements. 1
. In addition to the constraints imposed by the Wilko decision, I also recognize that in the years following Wilko , the Congress may have indicated its satisfaction with the state of the law in this area.