Opposition Brief — Ronwin v. Smith Barney, Harris Upham & Co.

> > }

\X

NO. 93-257 | OCT

po ue f

IN idebeninnimnes

SUPREME COURT OF THE UNITED STATES

October Term, 1993

+

EDWARD RONWIN, d/b/a INDEX INVESTMENTS,

Plaintiff- Petitioner,

v.

SMITH BARNEY, HARRIS UPHAM & CO., INC.,

and JOHN SPAUSTAT,

Defendants-Respondents.

¢

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

°

F. JOSEPH WARIN

Kutak Rock

1101 Connecticut Avenue, NW

Washington, DC 20036-4374

(202) 828-2400

Counsel for Defendants-

Respondents

=~ “

(BEST AVAILABLE COPY?

- | 139

,

; ; « |

‘

i

QUESTION PRESENTED

Whether this Court should review the decision below that

affirmed the District Court’s dismissal of Petitioner’s claims

seeking damages and an injunction to force Respondent, a

securities broker-dealer, to provide Petitioner with a securities

brokerage account without a predispute arbitration agreement.

01/$8770.1

il

LIST OF PARENT COMPANIES AND SUBSIDIARIES

Pursuant to Supreme Court Rule 29.1, a list of the parent

companies and non-wholly owned subsidiaries of Respondent

Smith Barney, Harris, Upham & Co., Inc. (which is now known

as Smith Barmey Shearson Inc.) is as follows:

Primerica Corporation (parent)

Smith Barney Shearson Hoidings Inc. (parent)

Smith Barney Shearson Europe Holdings, Ltd. (non-

wholly owned subsidiary)

Smith Barney Shearson Europe, Ltd. (non-wholly owned

subsidiary)

Smith Barney Shearson Futures, Ltd. (non-wholly ownd

subsidiary)

01/58770.1

iil

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .............. iv

STATEMENT OF THECASE ............. 2

REASONS WHY THE PETITION

SHOULD BEDENIED .................. g

| 15

01/$8770.1

iV

TABLE OF AUTHORITIES

CASES

Adams v. Merrill Lynch, Pierce, Fenner & Smith,

888 F.2d 696 (10th Cir. 1989) ............. 13

Application of Ronwin, 113 Ariz. 357, 555 P.2d

315 (1976), (en banc) cert. denied sub nom.,

v. Special Committee on Examinations and

Admissions of the Arizona Supreme Court,

430 U.S. 907 (1977), and cert. denied sub.

nom., Ronwin v. The Supreme Court of Arizona,

See ee ee Ce eee ee Oe ee eke 8 3

David L. Threlkeld & Co. v. Metallgesellschaft

Limited (London), 923 F.2d 245, 248 (2d

Cir. 1991), cert. dismissed, _U.S. ___,

fey Moe Mee. t rare 13

Federal Deposit Insurance Corp. v. Northwood

Projects, Inc., 95 Misc. 2d 373, 407 N.Y.S.

NE ik 8 cere orate Weta ae cia oats oslo 12

Finkle and Ross v. A.G. Becker Paribas, Inc.,

622 F. Supp. 15035 (.D.N.Y. 1965) 2.0.6. 13

Gilmer v. Interstate/Johnson Lane Corp.,

eee F eee ee A | 12; 13

Hoover v. Ronwin,

ee es ee Ce eo ees ore a ee 3

01/38770.1

NF

Vv

In Re Matter of Ronwin, 136 Ariz. 566, 667 P.2d

1281 (1983) (en banc), cert. denied sub nom.,

Ronwin v. Supreme Court of Arizona,

re Ori ee oe a wre al < e eovte 3

In re Ronwin, 465 U.S. 1004 (1984) ........... 3

In the Matter of Ronwin, 139 Ariz. 576, 680 P.2d 107

(1983), cert. denied sub nom., Ronwin v. Supreme

Court of Arizona, 464 U.S. 977 (1983) ........ 3

Jackson v. Metropolitan Edison Co.,

SEP S00 DOP IPP On 6 eae ee tenes 11

Martin v. Equitable Life Assurance Society

of the United States, 553 F.2d 573

GS Sete bas bee es ey ee 12

McCrory v. Rapides Regional Medical Center,

635 F. Supp. 975 (W.D. La.1986),

aff'd sub mem., 801 F.2d 396 (Sth Cir. 1986) .... 11

Muller Enterprises, Inc. v. Samuel Gerber

Advertising Agency, Inc., 182 Neb. 261,

55a Pe. ee ee ee) ig eb he whee wenn 12

National Child Care, Inc. v. Dickinson,

446 N.W.2d 810 (lowa 1989) .............. 3

Pierson v. Dean Witter Reynolds, Inc.,

toe 8.08 oon Cre Te 8 ec Vee 13

Rodriguez de Quijas v. Shearson/American Express,

Inc., GO U.S. 477 GFF) cc ccc ce cee 6, 8-10, 13

Ronwin vy. Dunham, 818 F.2d 675 (8th Cir. 1987) ... 3

01/$8770.1

v1

Ronwin v. Fair Employment Practices Commission,

A RE LEU TED A ee SA ee 3

Ronwin v. Holohan, 479 U.S. 870 (1986) ........ 3

Ronwin v. Piper, Jaffray & Hopwood, Inc.,

113 Ill. App. 3d 687, 447 N.E.2d 954 (1983) .... 3

Ronwin v. Segal, 634 F.2d 636 (9th Cir. 1980),

cert. denied, 450 U.S. 1041 (1981) .......... 3

Ronwin v. Shapiro,

oe? bee 207. Om Ce: IVER) oe eS 3

Ronwin v. Supreme Court of Iowa,

Ft Se Ce SEs 8 60 OP ale ke 3

Ronwin v. United States District Court for the

District of Arizona, 469 U.S. 1132 (1985) ...... 3

Ronwin vy. Von Ammon,

ie eee wee Comm Gt, BEE) soc ee ees 3

Shearson/American Express, Inc. v. McMahon,

2h Mees i) re a earn 6, 8, 9, 11

Webb v. R. Rowland & Co., 800 F.2d 803,

et: NUN < en tated. Sg thta ee Stara se ae ees 13

Wilko vy. Swan, 346 U.S. 427 (1953) ....... ae

01/58770.1 |

es |

Vil

STATUTES

Section 14 of the Securities Act of 1933,

Ss Ed Oe een ae a a

Section 29 of the Securities Exchange Act of 1934,

ey es WE eo de i a es 3, 7

CONSTITUTIONAL AMENDMENTS

Fifth Amendment ....................... 10

eee 10

Fourteenth Amendment .................... 10

ADMINISTRATIVE AGENCY ORDERS

H.R. 4960, 100th Cong., 2d Sess., 134 Cong.

We. eee COME Soe kv ww ok pee hes 14

Order Approving Proposed Rule Changes Relating

to the Arbitration Process and the Use of

Predispute Arbitration Clauses, Securities

Exchange Act Release No. 34-26805, 43 S.E.C.

Docket 1250, 54 Fed. Reg. 21,144

ee ie ee ee ee ek 14

01/$8770.1

NO. 93-257

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

EDWARD RONWIN, d/b/a INDEX INVESTMENTS,

Plaintiff-Petitioner,

we.

SMITH BARNEY, HARRIS, UPHAM & CO., INC.

and JOHN SPAUSTAT,

Defendants-Respondenus.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF IN OPPOSITION

Respondents respectfully request this Court to deny

Edward Ronwin’s petition for writ of certiorari seeking

review of the opinion of the Court of Appeals for the Eighth

Circuit. This case does not present any important issues of

federal law that should be decided by this Court, nor does it

raise any conflicts that need resolution.

01/$8770.1

2

STATEMENT OF THE CASE

Petitioner, Edward Ronwin, is no newcomer to this

Court. His Complaint in this action is simply one more in

a series of frivolous complaints that he has filed on his own

behalf in courts across the country. '

' Mr. Ronwin has not only filed numerous frivolous

suits on his own behaif, but he also has been chastised by the

~ Arizona Supreme Court for doing so. The Arizona Supreme

Court, sitting en banc, found Mr. Ronwin "not mentally

able" to be admitted to the Arizona Bar, concluding in a

lengthy opinion as follows:

Ronwin has not established that he is mentally fit

to practice law. Manifestations of improper conduct

include the filing of unwarranted legal actions against

numerous individuals connected with Ronwin’s

unhappy experience in applying for admission to the

Arizona Bar. . .. The refusal to accept the finality of

Ronwin I, followed by the filing of unwarranted,

vexatious, and harassing actions constitutes grounds

for denial of admission. We conclude further that

applicant’s use of intemperate, provocatory language

and epithets; his lack of control, restraint and civility;

and his custom of vilifying those who oppose him are

all improper co:duct for an attorney and constitute

grounds for denial of admission.

In Re Matter of Ronwin, 136 Ariz. 566, 667 P.2d 1281,

1291 (1983) (en banc), cert. denied sub nom., Ronwin v.

Supreme Court of Arizona, 464 U.S. 977 (1983). See In the

Matter of Ronwin, 139 Ariz. 576, 680 P.2d 107 (1983), cert.

(continued...)

01/58770.1

3

As the facts are alleged in the Complaint, Ronwin

attempted to open a margin securities account at Smith

Bamey, Harns, Upham & Co., Inc. ("Smith Bamey"), a

securities broker-dealer. Ronwin, who is an attomey, noted

that the Smith Barey standard account agreement he was

being asked to sign contained a predispute arbitration clause

and he refused to sign the agreement. Certain Smith Barney

personnel permitted Ronwin to open a cash securities account

but not a margin account without a predispute arbitration

'(,..continued)

denied sub nom., Ronwin v. Supreme Court of Arizona, 464

U.S. 977 (1983); Application of Ronwin, 113 Ariz. 357, 555

P.2d 315 (1976) (en banc), cert. denied sub nom., Ronwin

v. Special Committee on Examinations and Admissions of the

Arizona Supreme Court, 430 U.S. 907 (1977), and cert.

denied sub. nom., Ronwin v. The Supreme Court of Arizona,

439 U.S. 828 (1978). See also Ronwin vy. Holohan,

479 U.S. 870 (1986); Ronwin v. Supreme Court of Iowa,

471 U.S. 1101 (1985); Ronwin v. United States District

Court for the District of Arizona, 469 U.S. 1132 (1985);

Hoover v. Ronwin, 466 U.S. 558 (1984); In re Ronwin, 465

U.S. 1004 (1984); Ronwin v. Fair Employment Practices

Commission, 409 U.S. 811 (1972); Ronwin v. Dunham, 818

F.2d 675 (8th Cir. 1987); Ronwin v. Von Ammon, 688 F.2d

848 (9th Cir. 1982); Ronwin v. Shapiro, 657 F.2d 1071 (9th

Cir. 1981); Ronwin v. Segal, 634 F.2d 636 (9th Cir. 1980),

cert. denied, 450 U.S. 1041 (1981); Ronwin v. Piper,

Jaffray & Hopwood, Inc., 113 Tl. App. 3d 587, 447 N.E.2d

954 (1983); National Child Care, Inc. v. Dickinson, 446

N.W.2d 810 (Iowa 1989).

01/58770.1

4

agreement, to which Ronwin agreed. However, several

hours later, the resident manager and broker at Smith Bamey

for the account, Respondent John Spaustat, heard what had

transpired and immediately contacted Ronwin to advise him

that he would not allow even a cash account to be opened

without a predispute arbitration agreement. Ronwin still

refused to sign the arbitration agreement, so Smith Bamey

closed Petitioner’s account and refunded the money he had

deposited.

Several months later, Ronwin brought this suit alleging,

in four counts that he is entitled to an unspecified amount of

compensatory and punitive damages, as well as a permanent

injunction barring Smith Barney from requiring a predispute

arbitration agreement as a condition for accepting a customer

account. Ronwin’s Count I is a purported cause of action

for "contract of adhesion," in which Ronwin alleges that he

and other prospective customers of Smith Bamey have been

denied "the free choice of whether or not to agree to said

predispute arbitration clause, whether for a cash or margin

account, and denfied] . . . the right to seek redress of

grievances . . . in the Courts. . ., [thereby] constituting a

contract of adhesion and/or an impermissible demand for

same and said action by SB [Smith Bammey] is against public

policy, unenforceable and an unconscionable business tactic."

01/58770.1

5

Ronwin alleges that, with the exception of "several

brokerage houses [that] will accept cash only accounts

without the predispute arbitration agreements," the entire

securities brokerage industry demands predispuie arbitration

agreements as a condition for the extension of securities

brokerage services."

In Count 0, Ronwin alleges that the conduct of Smith

Barney and Spaustat violated the "antiwaiver" provisions of

Section 14 of the Securities Act of 1933, 15 U.S.C. § 77n,

and Section 29 of the Securities Exchange Act of 1934, 15

U.S.C. § 78cc, which proscribe "any condition, stipulation

or provision binding any person to waive compliance with

any provision" of such Acts. Ronwin contends that these

antiwaiver statutes protect his so-called "unfettered" mght

under those Acts to bring suit in the courts if he so chooses

and to obtain a securities brokerage account without being

required to sign a predispute arbitration agreement.

Ronwin’s Count II alleges breach of contract and Count IV

alleges breach of fiduciary duty based on the same conduct

as Counts I and 1.

The District Court for the District of Nebraska dismissed

Ronwin’s Complaint, and the Court of Appeals for the

Eighth Circuit affirmed in a one-paragraph opinion adopting

the District Court’s opinion. In dismissing Count I, the

01/58770.1

i aaa aD

6

District Court agreed that Smith Barney’s predispute

arbitration agreement was a contract of adhesion, but held

that Ronwin had made no allegations showing that the

contract was unconscionable, regardless of Ronwin’s

allegation that insistence upon such predispute arbitration

clauses was an industry-wide practice. The District Court

dismissed Count II on the ground that this Court’s decisions

in Rodriguez de Quijas v. Shearson/American Express, Inc.,

490 U.S. 477 (1989), and Shearson/American Express, Inc.

v. McMahon, 482 U.S. 220 (1987), had held that the

jurisdictional provisions of the Securities Act of 1933 and the

Securities Exchange Act of 1934 did "‘not impose any duty

with which persons trading in securities must ‘comply,’”

whereas the antiwaiver provisions of those Acts only

prohibited waiver of the substantive obligations of those

Acts. Finally, the District Court dismissed Ronwin’s Count

I alleging breach of contract on the ground that the contract

for Ronwin’s cash account was terminable at will by Smith

Barney, and the District Court dismissed Count IV on the

ground that Ronwin, even assuming arguendo that a

fiduciary duty had existed, had not alleged any circumstances

that could constitute a breach of such duty.

In his Statement of the Case, Ronwin misconstrues the

District Court’s opinion in contending that the District Court

01/$8770.1

7

misstated his arguments on Counts I and II. The District

Court correctly understood Ronwin’s claims as disputing

Smith Bamey’s refusal to provide him service unless Ronwin

"unconditionally accept{ed]" the predispute arbitration clause

and that Ronwin had refused to agree to such clause.

Ronwin has conveniently ignored portions of the District

Court’s opinion, such as those that explained that Ronwin

"seeks to have S‘nith Barney enjoined from requiring such

clause as a prerequisite for accepting accounts... [, which

clauses are] presented to a party on a take it or leave it

basis. . ." and that "Ronwin alleges that the defendants’

insistence upon the predispute arbitration clause was an

attempt to impose a condition that violates Sec. 14 of the

Securities Act of 1933 . . . and Sec. 29(a) of the Securities

Exchange Act of 1934... ." See Appendix, at A-6 to A-9.

01/58770.1

8

REASONS WHY THE PETITION

SHOULD BE DENIED

The crux of Ronwin’s claims is whether he has any right

to compel Smith Barney to transact business with him on the

contractual term he chooses—i.e., without a predispute

arbitration agreement—when no statute, case law or agency

regulation would require Smith Barney to agree to that term.

Ronwin’s claims are inconsistent with this Court’s holdings

in Rodriguez and McMahon and the federal presumption in

favor of predispute arbitration agreements. Ronwin is urging

this Court to fashion by “judicial legislation" a new law

requiring a securities broker-dealer to provide brokerage

services upon demand to all prospective customers without

requiring that a predispute arbitration agreement be signed.

Ronwin’s "lobbying" efforts should properly be directed to

Congress, the SEC or the appropriate self-regulatory bodies

of the securities industry for the change in law or regulation

he seeks.

Ronwin relies upon some language of this Court in the

Rodriguez decision that he has taken out of context. When

read in context, it is apparent that this Court’s dictum in

Rodriguez that "arbitration agreements . . . serve to advance

the objective of allowing buyers of securities a broader right

was not

to select the forum for resolving disputes. . .

01/$8770.1

9

intended to create a new substantive right for securities

customers to be able to force securities broker-dealers to

provide a securities account without a predispute arbitration

agreement, as Ronwin contends.

In Rodriguez, this Court expressly overruled its own

precedent in Wilko v. Swan, 346 U.S. 427 (1953), and heid

that securities customers who had signed a predispute

arbitration agreement and had failed to meet the burden of

proving that such agreement "resulted from the sort of fraud

or overwhelming economic power that would provide

.”

grounds ‘for the revocation of any contract’" had no “‘right

to select the judicial forum’” over arbitration. 490 U.S. at

479-84. This Court further held in Rodriguez, as it had

similarly held in McMahon, that “the right to select the

judicial forum" in the federal securities acts was not a

"substantive" right subject to protection under the antiwaiver

provisions of those Acts, but a mere “procedural” provision

that could be waived. 490 U.S. at 481-82 & 486; see 482

U.S. at 228.

In contrast, taking Ronwin’s strained interpretation of the

one sentence of dictum in Rodriguez that he relies upon to its

logical conclusion, this Court in Rodriguez instead

reaffirmed, not overruled, Wilko v. Swan. Ronwin construes

Rodriguez to hold—contrary to this Court’s express language

01/$8770.1

ee Ee

10

in that case—that a securities customer has an unrestricted

choice of a judicial forum over arbitration and that such right

is a Substantive right. Thus, Ronwin’s interpretation makes

this Court’s opinion in Rodriguez internally inconsistent.

Ronwin clearly cannot transpose a procedural right to

select a judicial forum into a substantive right, nor can he

use a procedural nght to impose a concomitant substantive

duty upon securities broker-dealers. When the Rodriguez

opinion is read as a whole, the only reasonable meaning that

can be given to the dictum in Rodriguez upon which Ronwin

relies is that this Court was merely employing the same

language it had used in Wilko concerning a customer’s

aL

"right to select the judicial forum’" to make the point that

the validity of arbitration agreements and arbitral forums it

was recognizing in Rodriguez would allow customers’ claims

under the Securities Act of 1933 to be heard in an additional

forum that had not previously been available.

Ronwin attempt to bolster his meritless statutory claim

with constitutional arguments is futile. Although Ronwin

made no constitutional claims in his Complaint, he now

argues that the First, Fifth and Fourteenth Amendments

support his position. Even if his constitutional claims could

now be heard, it is black letter law that the requirements of

the United States Constitution and its Amendments apply

01/$8770.1

11

only to governmental entities or officials, not private parties

like Smith Bamey or John Spaustat. See, e.g., Jackson v.

Metropolitan Edison Co., 419 U.S. 345, 349-50 (1974);

McCrory v. Rapides Regional Medical Center, 635 F. Supp.

975, 980 (W.D. La.1986), aff'd sub mem., 801 F.2d 396

(Sth Cir. 1986).

In sum, there is no legal or factual basis for Ronwin’s

assertion that the District Court’s opinion, as approved by

the Eighth Circuit, was contrary to any decisions of this

Court.

Ronwin fares no better in contending that his "refusal to

be “maneuvered into’ a predispute arbitration agreement’"

somehow creates a reason for his petition to be granted by

this Court. Apparently now viewing his claim for breach of

contract under Count III as intertwined with his purported

"contract of adhesion" claim in Count I, Ronwin relies upon

this Court’s language in McMahon that if a broker

"maneuvers" a customer into a predispute arbitration

agreement, that provides grounds for revoking such

agreement under ordinary principles of contract law.

Ronwin argues that his "refusal to be ‘maneuvered into’ such

an agreement," combined with his insistence on his

purported "right to choose a judicial forum,” provides

grounds for his breach of contract claim in Count I.

01/58770.1

ae

12

However, even if Ronwin could somehow overcome the fact

that he lacks a substantive right to choose a judicial forum,

Ronwin’s arguments are contrary to well-established and

uniform federal law.

As an initial matter, Ronwin cannot avoid the long-

accepted precept that a contract without a fixed term is

terminable at will. See Martin v. Equitable Life Assurance

Society of the United States, 553 F.2d 573, 574 (8th Cir.

1977); Federal Deposit Insurance Corp. v. Northwood

Projects, Inc., 95 Misc. 2d 373, 407 N.Y.S. 2d 424, 426-27

(1978); Muller Enterprises, Inc. v. Samuel Gerber

Advertising Agency, Inc., 182 Neb. 261, 153 N.W.2d 920,

924 (1967).

Further, Ronwin has failed to allege any circumstances of

fraud, mistake, coercion or other grounds cognizable under

common law for the revocation of contracts generally.

Ronwin was not only not "coerced or defrauded into

agreeing to the arbitration clause," see Gilmer vy.

Interstate/Johnson Lane Corp., __ U.S. __, 111 S. Ct.

1647, 1656 (1991), he freely exercised his choice not to sign

any arbitration agreement. Smith Barney in turn freely and

legally exercised its choice not to do business with Ronwin

in the absence of a predispute arbitration agreement.

Ronwin cannot distinguish his claim from the federal court

01/38770.1

13

decisions that—although recognizing the securities industry’s

superior bargaining power and general practice of requiring

predispute arbitration agreements as a condition for a

customer account—have uniformly denied customers’ claims

that arbitration clauses included in nonnegotiable brokerage

agreements constitute unenforceable contracts of adhesion.

See Finkle and Ross v. A.G. Becker Paribas, Inc., 622 F.

Supp. 1505, i511-12 (S.D.N.Y. 1985); see also Gilmer v.

Interstate/Johnson Lane Corp., 111 S. Ct. at 1655-56;

Rodriguez de Quijas v. Shearson/American Express, Inc..,

490 U.S. at 483-84; David L. Threlkeld & Co. v.

Metallgesellschaft Limited (London), 923 F.2d 245, 248 (2d

Cir. 1991), cert. dismissed, _ U.S. __, 112 S. Ct. 17

(1991); Adams v. Merrill Lynch, Pierce, Fenner & Smith,

888 F.2d 696, 700 (10th Cir. 1989); Webb v. R. Rowland &

Co., 800 F.2d 803, 807 (8th Cir. 1986); Pierson v. Dean

Witter Reynoids, Inc., 742 F.2d 334, 339 (7th Cir. 1984).

Ronwin cannot escape the fact that if an arbitration

agreement, after being signed by a securities brokerage

customer, is not found to be an unconscionable contract of

adhesion under general contract principles despite having

been a condition precedent to a securities account, then a

broker-dealer’s request that a customer sign the same

arbitration agreement in the same circumstances obviously

01/58770.1

14

cannot constitute an illegal request subjecting the broker-

dealer to an injunction or damages. See id.

Significantly, both Congress and the Securities and

Exchange Commission to date have specifically declined to

enact the legislation or regulation prohibiting mandatory

predispute arbitration agreements that Ronwin is improperly

seeking from this Court. See H.R. 4960, 100th Cong., 2d

Sess., 134 Cong. Rec. 4992 (1988); Order Approving

Proposed Rule Changes Relating to the Arbitration Process

and the Use of Predispute Arbitration Clauses, Securities

Exchange Act Release No. 34-26805, 43 S.E.C. Docket

1250, 1265, 54 Fed. Reg. 21,144, at 21,154-55 (May 10,

1989)(the "SEC Order").

As Ronwin admits in his Complaint, several secunties

broker-dealers allow cash securities accounts to be opened

without execution of a predispute arbitration agreement. See

Complaint { XVI; see also SEC Order, supra, 43 S.E.C.

Docket at 1265. Since Ronwin does not like the terms on

which Smith reasonably has decided to conduct its business,

Ronwin, like the "millions of Americans” whom he asserts

are similarly affected, can simply choose to open a securities

account at any or all of the other securities broker-dealers

that will accept cash securities accounts without a predispute

arbitration agreement.

01/58770.1

15

CONCLUSION

In sum, no valid reasons exist for this Court to grant

Ronwin’s petition for writ of certiorari. No important issues

of federal law need to be decided by this Court. The

District Court’s well-reasoned opinion and the Eighth

Circuit’s affirmance were in complete accord with this

Court’s governing decisions. Likewise, no conflict exists

among the Circuit Courts for this Court to resolve regarding

any issue raised by Ronwin’s petition.

Dated: October 1, 1993.

Respectfully submitted,

SMITH BARNEY, HARRIS,

UPHAM & CO., INC., and

JOHN SPAUSTAT,

Defendants-Respondents,

By Their Attorneys,

F. JOSEPH WARIN

KUTAK ROCK

1101 Connecticut Avenue, NW

Washington, DC 20036-4374

Phone (202) 828-2400

Fax (202) 828-2488

and

KUTAK ROCK

1650 Farnam Street

Omaha, Nebraska 68102

Phone (402) 346-6000

Fax (402) 346-1148

01/58770.1