Opposition Brief — Fletcher v. Kidder, Peabody & Co.

No. 93-581

IN TH

Suprenw Court of the United States

OcTOBER TERM. 1993

ALPHONSE FLETCHER. JR

KIDDER, PEABODY & COMPANY, IN

On Petition for a Writ of Certiorari

to the Court of Appeals of the

State of New York

BRIEF IN OPPOSITION FOR RESPONDENT

RONALD M, GREEN

Counsel of Record

EPSTEIN BECKER & GREEN, P.(

250 Park Avenue

New York, NY 10177

(212) 351-4500

THOMAS A, DUBBS

KIDDER, PEABODY & Co.

INCORPORATED

10 Ilanover Square

New York, NY 10005

Inc 789-0096 - WASHING

WILSON - EPES PRINTING Co

TABLE OF CONTENTS

TABLE OF AUTHORITIES .................-.ccc0--:cceeccosseseeeoeees

STATEMENT

ee eee eee eee eee

REASONS FOR DENYING THE WRIT .......... eearterar es

CONCLUSION

Page

12

ii

TABLE OF AUTHORITIES

Cases Page

Alexander v. Gardner-Denver Co., 415 U.S. 36

CD cidsccdiciassanceosebactenniccenestadidcomneatae nee 8

Alford v. Dean Witter Reynolds, Inc., 989 F.2d 229

SE Gal. BIRD <vcchesncpcconssnackcabans ooaonsem ena 5

Bachus & Stratton, Inc. v. Mann, 1993 Fla. App.

LEXIS 5484 (May 19, 1998) ........20000.. oe. 5

Barrentine v. Arkansas-Best Freight Sys., Inc.,

Ge ie Cee Cee? Sosa 8

Bender v. A.G. Edwards & Sons, Inc., 971 F. 2d 698

CED Gata SID aiicntercontikicctaneacuaee eo 4,7

Bierdeman v. Shearson Lehman Hutton, Inc., 963

F.2d 378 (9th Cir.), cert. denied, 113 S. Ct. 328

CIETEED. <iciccsceurcpsibosssdanestanesabedanatemamiecas ane ima annem 4

Consumer Prod. Safety Comm’n v. GTE Sylvania,

pe |) Oise oe: | eee eee 11

Dean Witter Reynolds, Inc. v. Alford, 111 S. Ct.

TE ED iviceisntenocessuadvocsneasteamita aie ee 7

Gilmer v. Interstate/Johnson Lane Corp., 111

ee: Ga: SOG COED csetectccacec nee. passim

Higgins v. Superior Court, 1 Cal. Rptr. 2d 57 (Ct.

BI TE veceicctdhisstrsinecaind cee eee 5

Mago v. Shearson Lehman Hutton, Inc., 956 F.2d

See Gee ety SED abit dae eee 5

McDonald v. City of West Branch, 466 U.S. 284

CINE scisacnsicareeejeantntihasiaeedtdcdidaiatess eee 8

Mitsubishi Motors Corp. v. Soler Chrysler-

Plymouth, Inc., 473 U.S. 614 (1985) 200000... 6

Oscar Mayer & Co. v. Evans, 441 U.S. 750 (1979)... 11

Perry v. Thomas, 482 U.S. 483 (1987) ..................... 5

Rodriguez de Quijas v. Shearson/American Ex-

press, Inc., 490 U.S. 477 (1989) ..............-............ 6

Shearson/American Express, Inc. v. McMahon,

S5B US. THO GARR) cccecvecnn ROOT RESTORED SANIT 6

Spellman v. Securities, Annuities & Ins. Servs.,

Inc., 10 Cal. Rptr. 2d 427 (Ct. App. 1992) .......... 5

Swenson v. Management Recruiters Int'l, Inc., 858

F.2d 1304 (8th Cir. 1988), cert. denied, 493 U.S.

SUI “UIPINT cacecatentatenctanccorvactncdedacancabcaseieatantaaaaeaaden 5,11

iii

TABLE OF AUTHORITIES—Continued

Page

Utley v. Goldman Sachs & Co., 883 F.2d 184 (1st

Cir. 1989), cert. denied, 493 U.S. 1045 (1990)... 11

Willis v. Dean Witter Reynolds, Inc., 948 F.2d 305

S| es 5, 7

Statutes

Civil Rights Act of 1991, Pub. L. No. 102-166, 105

BN UE IED sans citccrereeneetwnnnaniavnnsnonesencoons 10

Federal Arbitration Act, 9 U.S.C. §1 et SESS 2,3, 6

4B U.S.C. © TOG1 ROC ....2222-2.00000--ecrrecccceccessorevensserenevees 10

42 U.S.C. $ 20000 CF 869. ...........0...0ceeseeeecereseeerereescscesers 3

Congressional Materials

H.R. Rep. No. 40(1), 102d Cong., 1st Sess. (1991),

reprinted in 1991 U.S.C.C.A.N. 549 -.............---.---. 10

H.R. Rep. No. 40(II), 102d Cong., 1st Sess.

(1991), reprinted in 1991 U.S.C.C.A.N. 694........ 10

137 Cong. Rec. $15478 (daily ed. Oct. 30, 1991) .... 12

187 Cong. Rec. H¥530 (daily ed. Nov. 7, 1991) ........ 10, 11

IN THE

Suprenw Court of the United States

OCTOBER TERM, 1993

No. 93-581

ALPHONSE FLETCHER, JR..,

- Petitioner,

KIDDER, PEABODY & COMPANY, INC..,

Respondent.

On Petition for a Writ of Certiorari

to the Court of Appeals of the

State of New York

BRIEF IN OPPOSITION FOR RESPONDENT

Respondent Kidder, Peabody & Co. Incorporated sub-

mits this brief in opposition to the petition for a writ of

certiorari filed in this case.’

STATEMENT

Petitioner Alphonse Fletcher, Jr., was employed by

Kidder, Peabody as a securities trader from late 1989

until March 1991. Soon after he resigned, he filed this

lawsuit in state court in New York, claiming that re-

spondent had discriminated against him on the basis of

his race in violation of the New York State Human Rights

1 Kidder, Peabody & Co. Incorporated is a wholly owned svub-

sidiary of Kidder, Peabody Group Inc., which in turn is a wholly

owned subsidiary of General Electric Financial Services, Inc., which

in turn is a wholly owned subsidiary of General Electric Co. It has

no non-wholly owned subsidiaries.

2

Law. Specifically, he alleged that Kidder, Peabody had

treated him disparately in the calculation and timing of

his annual compensation for 1990,

Respondent moved to stay the lawsuit and to compel

arbitration, relying on Fletcher's prior agreement to arbi-

trate any disputes with his employer. That agreement

was contained in the “Uniform Application for Securities

Industry Registration or Transfer” (the “U-4 Form”) that

Fletcher executed when he came to work for Kidder,

Peabody in 1989. In this registration application, he

agreed “to arbitrate any dispute, claim or controversy

that may arise between [him] and [his] firm . . . that is

required to be arbitrated under the rules, constitutions

or by-laws of the organizations with which I register.”

The New York Stock Exchange was one of the exchanges

with which petitioner registered, and its Rule 347, in

turn, requires arbitration of “any controversy between a

registered representative and any member or member or-

ganization arising out of the employment or termination

of employment of such registered representative.” See

Pet. App. A2 n.1; Gilmer v. Interstate/Johnson Lane

Corp., 111 S. Ct. 1647, 1650-51 (1991) (describing the

Same registration form and exchange rule). Petitioner

recognized that he was bound by this rule when he served

a demand to arbitrate certain contractual claims against

Kidder, Peabody. But he took the position that his dis-

crimination claim was not covered by the arbitration

requirement.

Respondent’s motion to compel arbitration was denied

in the trial court, Pet. App. A35-A39, but the Appellate

Division reversed. /d. at A30-A34. Relying on the de-

cision in Gilmer, supra, where this Court required arbi-

tration of an age discrimination claim brought by a

registered securities representative, the Appellate Division

held that arbitration of petitioner’s claim was required

by the Federal Arbitration Act (FAA), 9 U.S.C. $1

et seq. It rejected the suggestion that Gilmer is distin-

3

guishable because it involved the Age Discrimination in

Employment Act (ADEA) rather than a claim of racial

discrimination,

The New York Court of Appeals affirmed. It reasoned

that a “party seeking to avoid enforcement of an arbi-

tration clause governed by the FAA must demonstrate a

congressional intent ‘to preclude a waiver of a judicial

forum’ for disputes based on a particular statutory right.”

Pet. App. A6 (quoting Gilmer, 111 S. Ct. at 1652).

Where the right derives from a state statute, the court

held, the proper approach is to identify the most closely

analogous federal statute and to consider Congress's in-

tentions with regard to arbitration of rights created under

that analogous statute. /d. at A6-A7. The New York

Court of Appeals concluded that the proper comparison

in this case was to Title VII, 42 U.S.C. § 2000e ef seq.,

id. at A7, and that rights under Title VII are subject to

mandatory arbitration when parties so agree.

In reaching this conclusion, the court found nothing

in the language or legislative history of Title VIT or the

1991 Civil Rights Act indicating an intent to prevent

waiver of the right to bring Title VII claims to court.

Id. at A7-A9. It followed, in the court’s view, that there

was no basis for distinguishing this case from Gilmer.

Specifically. the court noted that the waiver was no more

“involuntary” than in Gilmer itself, id. at A9-A10, that

any concerns about the “adequacy of the arbitral forum”

had already been considered by Congress in enacting the

FAA, id. at Al0, and that, while prevention of racial

discrimination is an important public policy, there was

no basis for perceiving a congressional intent to allow

mandatory arbitration of age-discrimination claims but

not race-discrimination claims, id. at All.

2 The court went on to reject the contention, raised only by the

plaintiff in a companion case, that the U-4 Form is a “contract of

employment” excluded from coverage under the FAA by 9 U.S.C.

$1. It noted that this Court had expressly rejected the identical

argument in Gilmer. Id. at A11-A138.

4

Judge Smith dissented, arguing that Gilmer is distin-

guishable because it did not involve a race-discrimination

claim and concluding that, in the absence of an unequiv-

ocal ruling from this Court, the Court of Appeals should

adhere to its own prior ruling barring waiver of the right

to take discrimination cases to court. /d. at A22. The

dissent also relied, in part, on a passage from a com-

mittee report accompanying the Civil Rights Act of 1991,

in which a House committee expressed its “belief” that

an agreement to arbitrate disputes “does not preclude the

affected person from seeking relief under the enforcemeut

provisions of Title VII.” /d. at A25-A26.

REASONS FOR DENYING THE WRIT

The ruling of the New York Court of Appeals does

not warrant further review. There is no conflict whatever

among the various state and federal courts that have con-

sidered the issue since Gilmer. All of these courts have

held that the FAA mandates enforcement of a prior arbi-

tration agreement when an employee brings suit based

on discrimination claims cognizable under Title VII. Nor

is this unanimity at all surprising: the conclusion that

Title VII claims are subject to prior agreements to arbi-

trate is virtually compelled by this Court’s decision in

Gilmer.

1. Petitioner cannot contend that the lower courts are

having difficulty in determining whether, in the wake of

the decision in Gilmer, the FAA requires arbitration of

Title VII claims brought by employees in petitioner’s sit-

uation. To the contrary, as he notes, a “number of fed-

eral cases decided since Gilmer have addressed the deci-

sion’s applicability to Title VII claims and have concluded

that such claims, like those brought under the ADEA,

are subject to compulsory arbitration under the terms of

a Form U-4 arbitration provision.” Pet. 15 n.6 (citing

Bender v. A.G. Edwards & Sons, Inc., 971 F.2d 698

(11th Cir. 1992); Bierdeman v. Shearson Lehman Hut-

3

ton, Inc., 963 F.2d 378 (9th Cir.) (Table), cert. denied,

113 S. Ct. 328 (1992); Mago v. Shearson Lehman Hut-

ton, Inc., 956 F.2d 932 (9th Cir. 1992); Willis v. Dean

Witter Reynolds, Inc., 948 F.2d 305 (6th Cir. 1991);

Alford v. Dean Witter Reynolds, Inc., 939 F.2d 229 (Sth

Cir. 1991)). We are aware of no federal decision going

the other way. Moreover, the state courts appear to be

just as unanimous in requiring arbitration of state-law

claims analogous to Title VII claims. See Spellman v.

Securities, Annuities & Ins. Servs., Inc., 10 Cal. Rptr. 2d

427 (Ct. App. 1992); Higgins v. Superior Court, 1 Cal.

Rptr. 2d 57 (Ct. App. 1991); Bachus & Stratton, Inc. v.

Mann, 1993 Fla. App. LEXIS 5484 (May 19, 1993).°

These courts have all agreed with the New York Court

of Appeals that Gilmer leaves no room for the conclusion

that any category of discrimination claims, including those

involving race or gender, is exempted from the FAA’s

coverage. In light of this prevailing consensus, there is no

basis for suggesting that this Court needs to address the

question.

2. The argument against review becomes even more

compelling upon examination of the merits of petitioner’s

legal position. There is a good reason why that position

has been rejected in case after case: there simply is no

principled basis for drawing a distinction between the

ADEA claim considered in Gilmer and claims cognizable

under Title VII.

3In cases like this one, involving an agreement to arbitrate a

state statutory claim, the intent of the state legislature concerning

arbitrability is irrelevant. See Perry v. Thomas, 482 U.S. 483,

489-90 (1987). An argument for exemption from the FAA’s re-

quirements, if possible at all, must therefore be based on a showing

that Congress evinced an intent to preclude mandatory arbitration

of an analogous federal statutory claim. See Pet. App. A6-A7;

Swenson v. Management Recruiters Int'l, Inc., 858 F.2d 1304, 1309

(8th Cir. 1988), cert. denied, 493 U.S. 848 (1989).

Phe FAA siaics that a provision in a maritime or

commercial contract in which the parties agree to settle

fuiure controversies through arbitration “shall be valid,

irrevocable, and enforceable. save upon such grounds as

exist at law or in equity for the revocation of any con-

tract.” 9 U.S.C. §$ 2. In recent years, this Court has made

clear that claims brought under federal statutes, such as

the antitrust laws, the securities laws, and RICO, “may

the subject of an arbitration agreement, enforceabie

pursuant to the FAA.” Gilmer, 111 S. Ct. at 1652 (cit-

ing Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth,

Inc., 473 US. 614 (1985): Shearson American Express,

lnc. ve. McMahon, 482 U.S. 220 (1987); and Rodriguez

de Ouijas v. Shearson American Express, Inc., 490 US.

477 (1989)). In so ruling, the Court has concluded that

a party agreeing to arbitrate a statutory claim “does not

forgo the substantive rights afforded by the statute; it only

submits to their resolution in an arbitral, rather than a

judicial, forum.” Mitsubishi Motors, 473 U.S. at 628.

In Gilmer, the Court applied these principles in holding

that an employee could validly agree to arbitrate future

ADEA claims. It recognized that Congress had enun-

ciated a general policy favoring fuil enforcement of all

arbitration agreements in contracts covered by the FAA,

111 S. Ct. at 1651-52, and stated that particular statutory

claims could be exempted only where Congress has

*“‘ovinced an intention to preclude a waiver of judicial

remedies for the statutory rights at issue.” Jd. at 1652

(quoting Mitsubishi Motors, 473 U.S. at 628). That

intent must be reflected in the text of the statute at issue,

in its legislative history, or in an “ ‘inherent conflict’ be-

tween arbitration and the [statute’s] underlying purposes.”

Ibid. (quoting Shearson American Express, Inc. v. Me-

Mahon, 482 U.S. at 227).

Finding nothing in the text or history of the ADEA

that addressed the question. ‘hid., the Court went on to

consider whether allowing prospective agreements to arbi-

trate ADEA claims would be inconsistent with the statu-

tory framework and purposes. [It found no such incon-

sistency. The Court concluded that the broad social policy

of deterring and redressing age discrimination would be

served equally well if individual cases are resolved through

arbitration rather than in court. Jd. at 1653. It also cor-

cluded that arbitration would not undermine the role of

the Equal Employment Opportunity Commission under

the ADEA, ibid., and would not unduly limit full enforce-

ment of that statute, id. at 1655.

Virtually every aspect of the Court’s reasoning in Gil-

mer is equally applicable when one considers the question

of requiring arbitration of Title VII claims (or, as here.

state claims analogous to Title VII claims). See, e.¢.,

Bender v. A.G. Edwards & Sons, Inc., 971 F.2d at 790

(“Although Gilmer involved a claim under the [ADEA],

its reasoning is dispositive of the agreement to arbitrate

Title VII claims before us.”); Willis v. Dean Witter Rey-

nolds, Inc., 948 F.2d at 307 (“Gilmer compels the con-

clusion that the FAA... appllies] equally to Willis’ Title

VII claims in me instant case”). See also Dean Witter

Reynolds, Inc, v. Alford, 111 S. Ct. 2050 (1991) (vacat-

ing and remanding for reconsideration in light of Gilmer

a prior Fifth Circuit decision, in a Title VII case. that had

refused to enforce an arbitration agreement). In the

Title VII context, there is once again a complete absence

of statutory language that could be interpreted as barring

mandatory submission of claims to arbitration. Moreover.

there is no reason to suppose that diversion of some per-

centage of cases into arbitration would be any less con-

sistent with the policies underlying Title VII than with

the policies underlying the ADEA. And any effect on the

role of the EEOC would be identical in both contexts.

b. Faced with this basic problem, the petitioner makes

several arguments in an effort to persuade the Court that

8

there is some potential basis for drawing a distinction

between the ADEA and Title VII in this context. First,

he suggests that Gilmer, as an ADEA case, deserves less

weight than a prior decision in which the Court discussed

arbitration of Tithe VII claims—Alexander v. Gardner-

Denver Co., 415 U.S. 36 (1974). In Alexander, as peti-

tioner points out, the Court did express the view that “an

employee’s rights under Title VII are not susceptible of

prospective waiver,” id. at 51-52, and that “arbitral proc-

esses [are] comparatively inferior to judicial processes in

the protection of Title VII rights,” id. at 57.

These statements, however, no Jonger retain much

significance, at least for present purposes, when read 10

light of Gilmer. There, the Court distinguished Alexander

and its progeny (Barrentine v. Arkansas-Best Freight

Svs., Inc., 450 U.S. 728 (1981); McDonald vy. City of

West Branch, 466 U.S. 284 (1984)) in ways that make

clear that shis case is controlled by Gilmer. Thus, it

pointed out that Alexander actually involved a quite dif-

ferent question: whether a Title VIE suit was barred

because the same allegedly discriminatory actions by the

employer had previously been challenged in an arbitra-

tion proceeding as a violation of a union contract. See

111 S. Ct. at 1657 (Alexander “did not involve the issue

of the enforceability of an agreement to arbitrate statu-

tory claims”). Moreover, as the Court in Gilmer ex-

plained, since Alexander involved labor arbitration, the

Court had been concerned about the “tension between

collective representation [by a union] and individual stat-

utory rights.” and the FAA, with its liberal policy favoring

arbitration agreements, was inapplicable. See ibid. Fi-

nally, the Court in Gilmer noted that the “mistrust” of

the arbitral process expressed in Alexander had been

undermined by more recent decisions endorsing arbitra-

tion as @ useful means of dispute resolution. Jd. at 1656

n.5. in sum, it is impossible to read Gilmer and conie

eR ee ee

9

away with the conclusion that Alexander retains any rele-

vance in the present context.

Petitioner goes on to argue that racial discrimination is

more serious than age discrimination, and that the Court

should therefore be unwilling to countenance enforce-

ment of agreements requiring arbitration of race-based

claims. In this regard, he notes that racial discrimination

“poses a particular threat to the fabric of our society,”

and that this Court has consistently treated racial classifi-

cations as more suspect, and properly subject to stricter

scrutiny, than age or gender classifications. Pet. 16.

This argument must be rejected as well. The issue.

after all, is whether Congress evinced an affirmative inten-

tion to create an exception from the general policies of

the FAA for a particular category of claims. And there

is nothing to suggest that Congress ever drew the line sug-

gested by petitioner—i.e., made a determination that

agreements to arbitrate future employment-related disputes

are enforceable with respect to all types of discrimination

claims except those involving race. On the contrary, the

actual language of Title VII treats racial discrimination

and other covered forms of discrimination (based on reli-

gion, sex. or national origin) identically. Nor is there

any reason to conclude that Congress established a_hier-

archy of statutes, viewing claims under Title VII as less

appropriate for arbitration than claims under the ADEA.

In sum, it would be an exercise in pure judicial lawmak-

ing for a court to decree that the pro-arbitration policies

expressed by Congress in the FAA are outweighed by a

perceived need to guarantee judicial consideration of every

claim of racial discrimination.

Finally, petitioner argues that the legislative history of

the 1991 Civil Rights Act reveals a congressional intent

to preclude mandatory arbitration of Title VII claims.

But here again, the argument was properly rejected by

the court below. To begin with, the actual language of

the 1991 amendments to Title VII provides no support

10 ‘

whatever to petitioner’s position. The provision under dis-

cussion in the passages of legislative history cited by peti-

tioner—section 118 of the 1991 Act, Pub. L. No. 102-

166, 105 Stat. 1071, 1081—merely states that various

“alternative means of dispute resolution,” including arbi-

tration, are “encouraged to resolve disputes arising under

the Acts or provisions of Federal law amended by this

title.” 42 U.S.C. § 1981 note (Alternative Means of Dis-

pute Resolution Encouraged). Such an expression of “en-

couragement” hardly suggests that a prior agreement to

arbitrate discrimination claims should be unenforceable.

Indeed, it would tend to support the contrary conclusion.

Nor do the statements in the legislative history cited by

petitioner suggest that the new Act addresses this issue.

Instead, they merely set forth an understanding of the

pre-existing law (a belief that employees cannot be forced

to arbitrate Title VII claims) and then state that the new

section is not intended to change that existing law. See

137 Cong. Rec. H9530 (daily ed. Nov. 7, 1991) (inier-

pretive memorandum prepared by Rep. Edwards) (“This

section is intended to be consistent with decisions such as

Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974),

which protect employees from being required to agree in

advance to arbitrate disputes under Title VII and to re-

frain from exercising their right to seek relief under Title

VII itself.”); H.R. No. 40(1), 102d Cong., Ist Sess. 97

(1991), reprinted in 1991 U.S.C.C.A.N. 549, 635 (“[T]he

Committee believes that any agreement to submit disputed

issues to arbitration, whether in the context of a collective

bargaining agreement or in an employment contract, does

not preclude the affected person from seeking relief under

the enforcement provisions of Title VII. . . . The Com-

mittee does not intend this section to be used to preclude

rights and remedies that would otherwise be available.”’);

H.R. Rep. No. 40(11), 102d Cong., Ist Sess. 41 (1991).

reprinted in 1991 U.S.C.C.A.N. 694, 735 (same).

At most, therefore, these statements reflect the views of

One congressman and two committees about the proper

1]

interpretation of Title VII as it was originally enacted in

1964. Such post hoc pronouncements are generally ac-

corded little or no weight. See, e.g., Consumer Prod.

Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102,

117-18 & n.13 (1980); Oscar Mayer & Co. v. Evans, 441

U.S. 750, 758 (1979). And the statements at issue here

are particularly unworthy of serious consideration, for two

reasons.

First of all, the two committee reports merely reflect an

understanding of the law prior to Gilmer.’ At that time,

many observers, including courts, interpreted the Alexan-

der case (cited in the two committee reports) as preclud-

ing mandatory arbitration of Title VII claims. See, e.g.,

Utley v. Goldman Sachs & Co., 883 F.2d 184, 186 (1st

Cir. 1989), cert. denied, 493 U.S. 1045 (1990): Swenson,

858 F.2d at 1305-07. It is hardly surprising, or signifi-

cant, that the committees noted this prevailing interpre-

tation.

As for Representative Edwards’ “interpretive memoran-

dum,” it came much later in 1991, when the Act was

being passed, and expressly took issue with Gilmer. 137

Cong. Rec. H9530 (daily ed.) (“No approval whatsoever

is intended of the Supreme Court’s recent decision in

[Gilmer] or any application or extension of it to Title

VII.”) But such a statement, if anything, argues against

petitioner’s position. After all, it shows that Congress was

aware, by the time it approved the final bill, of the like-

lihood that agreements to arbitrate Title VII claims would

now be viewed as enforceable, and yet chose not to do

anything to prevent such a ruling.

That conclusion is further buttressed by another analysis

of the bill, introduced into the record by Senator Dole

one week prior to its passage. He stated that section 118

* The Gilmer decision was announced on May 13, 1991. The two

committee reports cited here were issued on April 24 and May 17,

1991, and used identical language.

12

“encourages the use of alternative means of dispute resolu-

tion, including binding arbitration, where the parties know-

ingly and voluntarily elect to use these methods.” 137

Cong. Rec. $15478 (daily ed. Oct. 30, 1991) (emphasis

added). He went on to say that “[i]n light of the litiga-

tion crisis facing this country and the increasing sophisti-

cation and reliability of alternatives to litigation, there is

no reason to disfavor the use of such forums. See Gilmer

v. Interstate Johnson Lane Corp., 111 S. Ct. 1647

(1991).” Tbid. In light of these statements, it is clear

that Congressman Edwards was not expressing a consensus

view on this issue—even assuming that such an expres-

sion could constitute a valid substitute for actual congres-

sional action. In sum, petitioner’s effort to limit the scope

of Gilmer by citing fragments of legislative history simply

will not work.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

RONALD M. GREEN

Counsel of Record

EPSTEIN BECKER & GREEN, P.C.

250 Park Avenue

New York, NY 10177

(212) 351-4500

THOMAS A. DUBBS

KIPDER, PEABODY & Co.

TNCORPORATED

10 Hanover Square

New York, NY 10005