determining that in cases involving both arbitra-ble and nonarbitrable claims, a court is to enforce an agreement between the parties and “not substitute its own views of economy and efficiency for those of Congress.” Rather, the arbitrable claims are to be sent to arbitration, “even where the result would be the possibly inefficient maintenance of separate proceedings in different forums.”
How later courts described this case
- determining that in cases involving both arbitra-ble and nonarbitrable claims, a court is to enforce an agreement between the parties and “not substitute its own views of economy and efficiency for those of Congress.” Rather, the arbitrable claims are to be sent to arbitration, “even where the result would be the possibly inefficient maintenance of separate proceedings in different forums.”
- finding that Congress’ preeminent goal in passing the Federal Arbitration Act was to enforce private arbitration agreements into which parties had entered and that that goal overrides Congress’s co-existing goal of encouraging efficient and speedy dispute resolution, even if the result is "piecemeal” litigation, at least absent a countervailing policy manifested in another federal statute
- determining that if a case involves both arbitrable and nonarbitrable claims, the court is to enforce the parties’ agreement and “not substitute its own views of economy and efficiency for those of Congress . . .” rather, the arbitrable claims are to be sent to arbitration, “even where the result would be the possibly inefficient maintenance of separate proceedings in different forums.”
- stating that McDonald held that “neither the full-faith-and-credit provision of 28 U.S.C. § 1738, nor a judicially fashioned rule of preclusion, permits a federal court to accord res judicata or collateral estoppel effect to an unappealed arbitration award in a case brought under 42 U.S.C. § 1988”
Written by the judges who cited it.
Later courts went against this
Questioned by Wolfe v. E. F. Hutton & Co., 800 F.2d 1032 (1986)
Indeed, in light of Scherk and Byrd we are inclined to agree with appellants that Wil-ko is distinguishable from this case and hence is not “controlling” in the narrow sense of the term.
Questioned by Land v. Dean Witter Reynolds, Inc., 617 F. Supp. 52 (1985)
could not be “mechanically transplanted” to the 1934 Act and expressed “grave doubts” about the continuing validity of lower court decisions which did so. 105 S.Ct. at 1244.
Questioned by Nesslage v. York Securities, Inc., 107 F.R.D. 389 (1985)
Defendants’ appeal is based on dicta and the concurring opinion of Justice White in Dean Witter Reynolds, Inc. v. Byrd, — U.S. —, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985), casting doubt on the continued validity of this doctrine.
Questioned by Hashemi v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 642 F. Supp. 376 (1985)
470 U.S. 213, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985) calls into question the validity of the cases upon which the court relied when it concluded that claims under the Securities Exchange Act of 1934 were not subject to arbitration.
Questioned by Coffey v. Dean Witter Reynolds, Inc., 640 F. Supp. 874 (1986)
470 U.S. 213, 105 S.Ct. 1238, 1244, 84 L.Ed 2d 158 (1985), to assert that the continued viability of the 10th Circuit’s extension of
The opinion
Justice White,
concurring.
I join the Court’s opinion. I write separately only to add a few words regarding two issues that it leaves undeveloped.
The premise of the controversy before us is that respondent’s claims under the Securities Exchange Act of 1934 are not arbitrable, notwithstanding the contrary agreement of the parties. The Court’s opinion rightly concludes that the question whether that is so is not before us. Ante, at 216, n. 1. Nonetheless, I note that this is a matter of substantial doubt. In Wilko v. Swan, 346 U. S. 427 (1953), the Court held arbitration agreements unenforceable with regard to claims under § 12(2) of the 1933 Act. It relied on three interconnected statutory provisions: § 14 of the Act, which voids any “stipulation . . . binding any person acquiring any security to waive compliance with any provision” of the Act; §12(2), which, the Court noted, creates “a special right to recover for misrepresentation which differs substantially from the common-law action”; and §22, which allows suit in any state or federal court of competent jurisdiction and provides for nationwide service of process. 346 U. S., at 431, 434-435 ; 15 U. S. C. §§77n, 77l(2), 77v.
Wilko’s reasoning cannot be mechanically transplanted to the 1934 Act. While § 29 of that Act, 15 U. S. C. § 78cc(a), is equivalent to § 14 of the 1933 Act, counterparts of the other two provisions are imperfect or absent altogether. Jurisdiction under the 1934 Act is narrower, being restricted to the federal courts. 15 U. S. C. § 78aa. More important, the cause of action under § 10(b) and Rule 10b-5, involved here,
*225 is implied rather than express. See Herman & MacLean v. Huddleston, 459 U. S. 375, 380 , and nn. 9, 10 (1983). The phrase “waive compliance with any provision of this chap ter,” 15 U. S. C. §78cc(a) (emphasis added), is thus literally inapplicable. Moreover, Wilko’a solicitude for the federal cause of action — the “special right” established by Congress, 346 U. S., at 431 — is not necessarily appropriate where the cause of action is judicially implied and not so different from the common-law action. *
The Court has expressed these reservations before. Scherk v. Alberto-Culver Co., 417 U. S. 506, 513-514 (1974). I reiterate them to emphasize that the question remains open, and the contrary holdings of the lower courts must be viewed with some doubt.
The Court’s opinion makes clear that a district court should not stay arbitration, or refuse to compel it at all, for fear of its preclusive effect. And I can perceive few, if any, other possible reasons for staying the arbitration pending the outcome of the lawsuit. Belated enforcement of the arbitration clause, though a less substantial interference than a refusal to enforce it at all, nonetheless significantly disappoints the expectations of the parties and frustrates the clear purpose of their agreement. In addition, once it is decided that the two proceedings are to go forward independently, the concern for speedy resolution suggests that neither should be delayed. While the impossibility of the lawyers being in two places at once may require some accommodation in scheduling, it seems to me that the heavy presumption should be that the arbitration and the lawsuit will each proceed in its normal course. And while the matter remains to be determined by the District Court, I see nothing in the record before us to indicate that arbitration in the present case should be stayed.
The 1934 Act does explicitly provide a private right of action to victims of certain illegal conduct. See §§ 9, 16, 18, 15 U. S. C. §§ 78i, 78p, 78r. None of those sections is relied on by respondent.