# Opposition Brief — Singh v. Drexel Burnham Lambert Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0606%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1989 - **Citation:** 490 U.S. 1080 ## Text re %, Supreme Court, U.S. iA FILED No. 88-1012 a MAR 3 1989 4 SPANIOL, JR. CLERK In The , re: Supreme Court of the United States October Term, 1988 7% vv GULSHAN B. SINGH, M.D. and DALJIT SINGH, INDIVIDUALLY AND AS TRUSTEES FOR THE GULSHAN B. SINGH, M.D., P.A. PROFIT SHARING PLAN, DEFINED BENEFIT PENSION PLAN AND MONEY PURCHASE PENSION PLAN, Petitioners, Vs. DREXEL BURNHAM LAMBERT INCORPORATED, DAVID PINES and GREGORY YANKWITT, Respondents. & 4 RESPONDENTS’ BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI y% a Curtis CARLSON Counsel of Record and LLoyp R. SCHWED 175 N.W. First Avenue Courthouse Center, 14th Flr. Miami, Florida 33128-1817 (305) 358-6550 ———-—— COCKLE LAW BRIEF PRINTING CO,, (800) 225-6964 OR CALL COLLECT (402) 342-2831 —— + —_> "BEST AVAILABLE COPY LO GAT IR ERR Te iy GREED TS INES Oy STEN Ta Beis aitreeesseaneue y nai hom QUESTION PRESENTED Whether the decision of the Florida Court of Appeal - that claims asserted under § 12(2) of the Securities Act of 1933, 15 U.S.C. § 771(2) (1982), are arbitrable - conflicts with Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182 (1953), in the wake of Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 197 S.Ct. 2332 (1987)? li TABLE OF CONTENTS Page Comestion. Peehenied. . ......6300lda ose eee i Seeee Ch GCOMIDEE 3. 6.5056 ns ccscecsen eee ii SAO Of AGO oo ic cen ekcd ose eee eee ii ee PPE Pe Terr er a 1 Reasons for Denying Writ ................6. ee 3 CIN 5.55 ce Le es manne andere 4 TABLE OF AUTHORITIES Page Cases Rodriguez de Quijas v. Shearson/American Express, Inc., 845 F.2d 1296 (5th Cir. 1988), cert. granted, 57 U.S.L.W. 3343 (U.S. Nov. 15, 1988) (No. hip EE TEE Or : Shearson/American Express, Inc. v. McMahon, 482 CS. Zoe, Ty GAL Zoe CIS). ocean i, 22 Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182 (1953) ..i, 2, 3 STATEMENT OF THE CASE Petitioners filed a two-count Complaint in state court against Drexel Burnham Lambert, Inc. (“Drexel Burn- ham”) and its two employees, David Pines and Gregory Yankwitt, alleging violations of Section 12(2) of the Secu- rities Act of 1933 and 18 U.S.C. § 1962 (“RICO”). Peti- tioners alleged misrepresentations and omissions in connection with investment accounts Petitioners opened at Drexel Burnham. At the time Petitioners opened their accounts at Drexel Burnham, Petitioners executed written customer agreements in which they agreed to arbitrate “any contro- versy” arising out of their account. One of the agreements signed by Petitioners provided the following: Any controversy between you and the undersigned arising out of said contract or relating to this contract or the breach thereof, shall be settled by arbitration in accordance with the rules, then obtaining, of the American Arbitration Association, the New York Stock Exchange, Inc., or the National Association of Securities Dealers, Inc., as the undersigned may elect. Drexel Burnham filed a motion to compel arbitration of the dispute pursuant to the Federal Arbitration Act, 9 U.S.C. § 2 et seq. (1982). On October 27, 1987, the state tourt granted the motion to compel arbitration based on this Court’s decision in Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 107 S.Ct. 2332 (1987). The trial court’s order was affirmed by Florida’s Fourth District Court of Appeal on August 10, 1988. The Florida Supreme Court denied a petition to invoke discre- tionary jurisdiction on October 21, 1988. This petition for writ of certiorari followed. Petitioners take the position that the decision of the Florida court conflicts with the Supreme Court’s decision in Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182 (1953). Peti- tioners further assert that certiorari jurisdiction is appro- priate because the Supreme Court has already granted certiorari on the identical issue in Rodriguez de Quijas v. Shearson/American Express, Inc., 845 F.2d 1296 (5th Cir. 1988), cert. granted, 57 U.S.L.W. 3343 (U.S. Nov. 15, 1988) (No. 88-385). | To the extent that Petitioners seek review to resolve the conflict that exists between various federal and state courts, Drexel Burnham agrees that a decision by the Supreme Court is appropriate to provide uniformity throughout the nation on the issue of whether Section 12(2) claims are presently arbitrable in light of McMahon. However, Drexel Burnham also maintains that (1) in this instance no conflict exists with Wilko in light of McMahon and (2) certiorari review in this case is unnecessary and duplicative since the Rodriguez case is legally and factu- ally identical.? t 1 The Rodriguez case is slightly different from a procedural standpoint because Rodriguez involves a petition for writ of certiorari to the U.S. Fifth Circuit Court of Appeals, as opposed to a state appellate court in this case. However, in substantive terms, the two cases present the identical legal issue. REASONS FOR DENYING THE WRIT First, Drexel Burnham asserts that the decision of Florida’s Fourth District Court does not conflict with Wilko, supra, in view of the Supreme Court's analysis of Wilko in McMahon. More specifically, this Court in McMahon effectively overruled Wilko because “most of the reasons given in Wilko have been rejected subse- quently by the Court as a basis for holding claims to be nonarbitrable.” 107 S.Ct. at 2340. Therefore, no conflict is presented in this case and the Court could properly deny the petition for writ of certiorari. Second, this Court granted certiorari in Rodriguez on the issue of whether claims under Section 12(2) of the Securities Act of 1933 are arbitrable in light of the McMahon decision. The parties have completed briefing in the Rodriguez case and oral argument is scheduled for March 27. Without question, the Court’s decision in Rodriguez will be dispositive of this case. Drexel Burnham has reviewed the brief submitted by the Respondent in Rodriguez and believes that all signifi- cant legal issues have been addressed in a thorough and effective manner. Therefore, Drexel Burnham respectfully submits that granting certiorari in this case will not bene- fit the Court or the parties herein. To the contrary, Drexel Burnham suggests that granting certiorari would be inef- ficient and would waste the Court’s precious resources. 4 vr CONCLUSION For all the foregoing reasons, Respondents respectfully request that the Court deny the petition for writ of certiorari. Dated: Miami, Florida March 2, 1989 Respectfully submitted, Curtis CARLSON Counsel of Record for Respondents and Litoyp R. ScCHWED Fow.er, WHITE, BURNETT, HURLEY, BANICK & StrRICKROOT, P.A. Courthouse Center, 11th Floor 175 Northwest First Avenue Miami, Florida 33128-1817 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0606%3A2. Public record. Not legal advice.