Amicus Curiae Brief — Prudential Insurance Co. of America v. Lai

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(>) Supreme Court, U.S.

FILED

No. 94-1923

ttt -2-—-4995

CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1994

THE PRUDENTIAL INSURANCE COMPANY OF AMERICA,

Petitioner,

—V.—

JUSTINE LAI and ELVIRA VIERNES,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF OF AMICUS CURIAE IN SUPPORT OF THE

PETITION FOR A WRIT OF CERTIORARI

A. ROBERT PIETRZAK

(Counsel of Record)

STEPHEN T. PAINE

ELIZABETH B. LYNCH

BROWN & WOOD

One World Trade Center

New York, New York 10048

(212) 839-5300

Attorneys for Securities

Industry Association, Inc.

STUART J. KASWELL

General Counsel

Securities Industry Association, Inc.

TABLE OF CONTENTS

PAGE

SA PE AG BAER OD dries urcencnveredscteuesses ii

PIR EAINAA ES DEAR ESMEIN A ccicccccsrcvcnseseuceves l

INT ERO’ OF AMICUS CURIAE ........00csrecrenees 2

REASONS FOR GRANTING A WRIT OF

ee gc F . SR pRer rpe Pee oes ST ea TAP 3

SUREPGAms, OF ARGUMENT 22. cscs cisicccetccnsccecses 3

POINT I

THE NINTH CIRCUIT’S DECISION IS A RADICAL

DEPARTURE FROM WELL-SETTLED FEDERAL

LAW AND POLICY FAVORING ARBITRATION 4

A. This Court Has Consistently Enforced

Arbitration Agreements..................64-. 4

B. The Requirement Of A Finding That The

Parties “Knowingly Agreed” To Arbitrate

Is Contrary To Basic Principles Of Contract

SOU Sodas i ke cued ead e gunk we vabdak aa hnn 6

POINT II

THE NINTH CIRCUIT’S DECISION UNDERMINES

IMPORTANT POLICY CONSIDERATIONS

CONCERNING THE FORM U-4 WITHIN THE

ASAE TEE LANE BECAPEIERECE o.ncinh dvnnenas oe sasy ens b's 8

IEE ba acadscceccedaped csaeidaws ar auenaesesans 11

TABLE OF AUTHORITIES

Cases PAGE ;

Allied-Bruce Terminix Companies, Inc. v. Dobson,

1935 &. Ch, Sa GIGS os adivvcdasciberdeasddseresss 4,6

Association of Investment Brokers v. Securities and .

Exchange Commission, 676 F.2d 857 (D.C. Cir. |

UDURED 6 cnccvccseucdeiens dpeseciee as as ohn «a 9 |

Coleman v. Prudential Bache Securities, Inc.,

$02 F.26 1350 (i 1th Cie, FOOD nnn cs tienen ss ees 7 :

Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213 ,

(1905) oes iiecsscevrddaves denn eee 2 |

First Options of Chicago, Inc. v. Kaplan, 115 S. Ct.

ED2O CIDSD) ov cccntanciawkavegisasbdle pabaee a taeee 2 |

Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 :

(EGSN) oon wensiseceeenchesasadpe aes (ae eS

Hall v. MetLife Resources, [Current Binder] Fed.

Sec. L. Rep. (CCH) 998,742 (S.D.N.Y. May 2,

DDS) « ccccsscigasceseuhewisadnteiedgumdasenaeniae 9 '

Heller Financial, Inc. v. Midwhey Power Co., 883 F.2d |

52SG C70 Cit. URGE nse ddndsccsthaderembitscssene: 6

Jakobson Shipyard, Inc. v. Aetna Casualty and Surety

Co., 775 F. Supp. 606 (S.D.N.Y. 1991), aff’d,

961 F280 SET C56 CA Sie inccsis was veeneadasies. 7

Mastrobuono v. Shearson Lehman Hutton, Inc., |

SES S. Ch. BZES CRG e a ches cviep csonsavenp reas pias: 2

Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth,

STS Dak. OPS CEG hiv cidaakuethtaseeseuentes 3,4

ill

Morta v. Korea Ins. Corp., 840 F.2d 1452 (9th Cir.

Pad irda cis ba eas ekidivawae Kia mews veen eeu aeaesae’

Prudential Insurance Company of America v. Lai,

QZ F.3d 1299 (St Cis. 2294). 0.0. cciccdccecccecsees

Rodriguez de Quijas v. Shearson/American Express,

Inc., 490 U.S. 477 (1989) ............ eee ee ey

Shearson/American Express, Inc. v. McMahon,

pike ew 39). ¥) Spry errr rr rere

Wee ©, Sime, FOG Ui B21 CEOS) oi sv cevecicciessade

Williams v. Cigna Financial Advisors, Inc.,

No. 94-11030, 1995 WL 366226 (Sth Cir.

ec ci cca eva ecBNud sae ewan erweedad

Miscellaneous

Adoption of Forms U-3 and U-4, Exchange Act Release

No. 11,424, [1974-75 Transfer Binder] Fed. Sec. L.

Rep. (CCH) 980,176 (May 16, 1975) ..............

Adoption of Revised Form U-4, Exchange Act Release

No. 17,398, 45 Fed. Reg. 84,992 (1980)..........

John D. Calamari & Joseph M. Perillo, The Lav of

Contracts § 9-42 (3d ed. 1967) ........ccccceeees

NASD Code of Arbitration Procedure Part II § 8,

NASD Manual (CCH) 93708 (1995) .............

NYSE Rule 347, 2 NYSE Guide (CCH) 4] 2347 (1995)

PAGE

IN THE

Supreme Court of the United States

OCTOBER TERM, 1994

No. 94-1923

Sn atl

THE PRUDENTIAL INSURANCE COMPANY OF AMERICA,

Petitioner,

—--V.—

JUSTINE LAI and ELVIRA VIERNES,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

>_>

BRIEF OF AMICUS CURIAzZ IN SUPPORT

OF THE PETITION FOR A WRIT OF CERTIORARI

The Securities Industry Association, Inc., through its Com-

pliance and Legal Division (“SIA”), submits this brief as ami-

cus curiae in support of the Petitioner and urges this Court to

issue a writ of certiorari to the United States Court of

Appeals for the Ninth Circuit with respect to the opinion and

judgment of the Ninth Circuit below in Prudential Insurance

Company of America v. Lai, 42 F.3d 1299 (9th Cir. 1994).

Pursuant to Rule 37.2 of the Rules of this Court, the written

consent of all parties has been obtained and filed with the

Clerk of this Court.

INTEREST OF AMICUS CURIAE

SIA is the principal trade association of the securities

industry. It has as members more than seven hundred securi-

ties firms in the United States and Canada. As such, it has a

substantial interest in the extent to which agreements to arbi-

trate disputes between securities firms and their employees

may be enforced. Indeed, the rules and the registration appli-

cations of self-regulatory organizations in the securities

industry, including the National Association of Securities

Dealers, Inc. (“NASD”), require arbitration of employment

disputes between securities firms and their employees.

Because arbitration is an efficient, fair and economical man-

ner of resolving disputes, SIA believes that employment dis-

putes between securities firms and their employees should be

arbitrated in most instances. Accordingly, this amicus curiae

brief is one of several such briefs that SIA has submitted to

this Court concerning arbitration issues in which SIA has

urged the Court to continue in its enforcement of the strong

federal policy favoring arbitration. '

This Court has previously held in Gilmer v. Interstate John-

son Lane Corp., 500 U.S. 20 (1991), that in the presence of an

agreement to arbitrate employment disputes, such disputes

must be submitted to arbitration even where statutory employ-

ment claims are at issue. In light of the Ninth Circuit’s dec’ -

sion below, which is contrary to the rulings of all other

Circuits on these issues, mandatory arbitration of federal and

state statutory employment discrimination claims is no longer

certain. Nor, in light of the conflict in the Circuits, is it cer-

SIA also submitted amicus curiae briefs in the following cases:

First Options of Chicago, Inc. v. Kaplan, 115 S. Ct. 1920 (1995); Mas-

trobuono v. Shearson Lehman Hutton, Inc., 115 S. Ct. 1212 (1995);

Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991); Rodriguez

de Quijas v. Shearson/American Express, Inc., 490 U.S. 477 (1989);

Shearson/American Express, Inc. v. McMahon, 482 U.S. 220 (1987); and

Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213 (1985).

tain whether before proceeding to arbitration there must be a

preliminary judicial finding that the parties “knowingly

agreed” to arbitrate their statutory employment discrimination

claims. In the face of these uncertainties, SIA and its member

firms have a substantial interest in this Court’s grant of cer-

tiorari in this case.

REASONS FOR GRANTING A WRIT OF CERTIORARI

SUMMARY OF ARGUMENT

The opinion of the United States Court of Appeals for the

Ninth Circuit below reflects the suspicion courts once held of

the arbitral process, see Wilko v. Swan, 346 U.S. 427 (1953),

as opposed to the congressionally enacted federal policy rec-

ognizing arbitration as a fair and efficient means of resolving

disputes. See Mitsubishi Motors Corp. v. Soler Chrysler-Ply-

mouth, 473 U.S. 614 (1985). Specifically, the court below

declined to apply the correct standard to determine arbitra-

bility, articulated by this Court in Gilmer v. Interstate/John-

son Lane Corp., 500 U.S. 20 (1991). Instead, based on

purported inadequacies in the arbitration process, the court

imposed an additional requirement to enforce the arbitration

of a statutory claim, the finding of a so-called “knowing

agreement” to arbitrate. Not only does the Ninth Circuit’s

decision conflict with this Court’s holding in Gilmer, as well

as decisions in other courts of appeals, it also represents

potential confusion for the securities industry which, in fol-

lowing the decision below, is faced with the inability to

enforce arbitration agreements according to their terms.

Under the Ninth Circuit’s highly subjective “knowing

agreement” standard, even enumerating each claim that is

subject to arbitration would not necessarily ensure an enforce-

able arbitration agreement, nor would it obviate the need for

a preliminary judicial finding regarding the employee’s under-

standing as to the extent of the agreement to arbitrate. Such a

result only hampers the efficiency that arbitration is designed

to provide and increases the judicial involvement that arbi-

tration is intended to alleviate. See Allied-Bruce Terminix

Companies, Inc. v. Dobson, 115 S. Ct. 834, 841 (1995). Fur-

thermore, this existing conflict in the Circuits threatens the

uniformity of the registration application (in which the arbi-

tration agreement is contained), thereby defeating the goal of

streamlining the paperwork required to register and regulate

members of the securities industry.

SIA respectfully requests that the petition for certiorari be

granted to resolve this conflict and further define the scope

and validity of arbitrable rights within the securities industry.

POINT I

THE NINTH CIRCUIT’S DECISION IS A RADICAL

DEPARTURE FROM WELL-SETTLED FEDERAL

LAW AND POLICY FAVORING ARBITRATION

A. This Court Has Consistently Enforced Arbitration

Agreements

This Court’s mandate in recent decisions to compel the

enforcement of arbitration agreements has been unambiguous,

even when statutory rights are involved. Gilmer v. Inter-

state/Johnson Lane Corp., 500 U.S. 20 (1991) (employment

discrimination claims); Rodriguez de Quijas v. Shearson/

American Express, Inc., 490 U.S. 477 (1989) (claims under

the Securities Act of 1933); Shearson/American Express, Inc.,

v. McMahon, 482 U.S. 220 (1987) (claims arising under the

Racketeer Influenced and Corrupt Organizations Act and

the Securities Exchange Act of 1934); Mitsubishi Motors

Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985)

(antitrust claims). Indeed, this Court held, in a landmark deci-

sion, that an agreement to arbitrate an age discrimination

claim under the Age Discrimination in Employment Act is

enforceable under the Federal Arbitration Act (“FAA”).

Et en ee

Gilmer, 500 U.S. 20. In Gilmer, the employee was required to

sign the Uniform Application for Securities Industry Regis-

tration (“Form U-4”). By signing the Form U-4, the employee

agreed, inter alia, to submit disputes arising between himself

and his employer to arbitration, pursuant to the rules of the

New York Stock Exchange, Inc. (“NYSE”).? This Court rea-

soned that since the FAA manifests a liberal policy favoring

arbitration, statutory claims may be the subject of an arbi-

tration agreement, enforceable pursuant to the FAA. Gilmer,

500 U.S. at 26 (citing Moses H. Cone Memorial Hospital v.

Mercury Construction Corp., 460 U.S. 1, 24 (1983) and Mit-

subishi, supra).

The Ninth Circuit, however, has now undermined the law

and policy favoring arbitration by requiring a preliminary

judicial finding as to whether the securities professionals have

“knowingly agreed” to arbitrate employment discrimination

claims. This standard flies in the face of the reasoning of this

Court in Gilmer which, like the instant case, involved an

employment discrimination claim and an arbitration agree-

ment contained in a Form U-4. This Court enforced the arbi-

tration agreement in Gilmer without imposing the requirement

of a preliminary finding that the parties “knowingly agreed”

to arbitrate.’

In another recent decision on the enforceability of arbi-

tration agreements, this Court reversed an Alabama Supreme

¢ Specifically, the arbitration agreement contained in the Form

U-4 provides:

I agree to arbitrate any dispute, claim or controversy that may arise

between me and my firm, or a customer, or any other person, that

is required to be arbitrated under the rules, constitutions, or by-laws

of the organizations with which I register. .

The Fifth Circuit Court of Appeals has expressly rejected the

application of a “knowing waiver” standard in a case involving a regis-

tered representative who had signed a Form U-4. Williams v. Cigna

Financial Advisors, Inc., No. 94-11030, 1995 WL 366226 (Sth Cir. June

19, 1995).

Court decision imposing a state statutory requirement that

Alabama courts first inquire whether the parties “contem-

plated” that their arbitration agreement would involve “sub-

stantial interstate activity” before giving such agreements the

force accorded by the FAA. Allied-Bruce Terminix Compa-

nies, Inc. v. Dobson, 115 S. Ct. 834 (1995). In so doing, this

Court expressly declined to adopt an interpretation of § 2 of

the FAA that would “invite[ ] litigation about what was, or

was not, ‘contemplated.’ ” /d. at 841. The rationale of Allied-

Bruce requires a similar conclusion here.

B. The Requirement Of A Finding That The Parties

“Knowingly Agreed” To Arbitrate Is Contrary To

Basic Principles Of Contract Law.

The Ninth Circuit, in its holding below, reversed the judi-

cial presumption in favor of arbitration when interpreting

arbitration agreements involving statutory employment dis-

crimination claims. Under the Ninth Circuit’s decision, courts

would be required to determine preliminarily whether the par-

ties “knowingly agreed” to arbitrate such claims. To require

such a finding is tantamount to disposing of one of the basic

tenets of contract law: that a party is bound by the terms of

the agreement that the party signs.

It is standard, hornbook law that one who signs a contract

is presumed to have read and understood its contents, and will

be bound to the terms of that contract regardless of whether

she actually examined the document. See John D. Calamari &

Joseph M. Perillo, The Law of Contracts § 9-42 (3d ed. 1987)

(“party who signs an instrument. . . may not later complain

. . that he did not understand its contents”).‘ In light of this

“ Federal courts of appeals have consistently agreed. See Heller

Financial, Inc. v. Midwhey Power Co., 883 F.2d 1286, 1292 (7th Cir.

1989) (“basic contract law establishes a duty to read the contract; it is no

defense to say, ‘I did not read what I was signing’ ”); Morta v. Korea Ins.

Corp., 840 F.2d 1452, 1458 n.7 (9th Cir. 1988) (where plaintiff signed an

unambiguous “release” clearly stating that he was waiving his right to

A EP Gh PAE OOP SOT te re yn ee a ee

doctrine, the Ninth Circuit’s notion of “knowingly agreed” is

illusive.°

The fact that an agreement has been signed by the parties

is, by itself, proof that the parties read and understood the

terms of the document. Moreover, the Form U-4 is not a com-

plex, lengthy document, filled with confusing legalese or hid-

den terms. On the contrary, the Form U-4 is written in simple

and clear language. The terms of the various agreements and

certifications contained therein are all set forth on one page,

and each separate provision is numbered. The applicant for

registration is instructed to “READ THE FOLLOWING

VERY CAREFULLY”. See Petition for Writ of Certiorari at

App. 23, 24. In addition, a clear and concise instruction sheet

accompanies each Form U-4 application.

Accordingly, absent legally sufficient excuses from per-

formance, the arbitration agreement contained in the Form

“all claims. . . foreseen and unforeseen”, he could not escape the pro-

vision by claiming he had not read it); Coleman v. Prudential Bache

Securities, Inc., 802 F.2d 1350, 1352 (11th Cir. 1986) (“absent a show-

ing of fraud or mental incompetence”, customer was bound by arbitration

agreement she signed); Jakobson Shipyard, Inc. v. Aetna Casualty and

Surety Co., 775 F. Supp. 606, 613 (S.D.N.Y. 1991), aff’d, 961 F.2d 387

(2d Cir. 1992) (“It is axiomatic that the signer of a contract is presumed

to have read and understood all he signs”).

. The Ninth Circuit did not dispute that parties can agree to arbi-

trate statutory claims. It held, however, that plaintiffs in this case, secu-

rities professionals, “could not have understood that in signing [the Form

U-4], they were agreeing to arbitrate sexual discrimination suits.” Pru-

dential Insurance Company of America v. Lai, 42 F.3d 1299, 1305 (9th

Cir. 1994). The basis for this factual finding is a mystery. As stated by

Judge Norris in his concurring opinion, “I am concerned. . . that the

majority engages in appellate fact-finding by holding that these partic-

ular employees did not knowingly waive their trial rights, even though

the district court never made a finding on the issue.” Jd. at 1306. For the

Ninth Circuit to accept plaintiffs’ purported ignorance of the scope of

their arbitration agreement is to treat securities industry professionals

with a paternalism usually reserved for individuals whose capacity to

contract is in question.

U-4 should be enforced according to its terms. To graft on an

additional requirement of “knowing agreement” denigrates the

legal and practical rationale behind binding the parties who

sign an agreement. Moreover, the Ninth Circuit’s refusal to

accept the parties’ signatures as proof of having “knowingly

agreed” when claims of statutory employment discrimination

are involved, while accepting their assent as sufficient for all

other claims, results in inconsistencies in enforcement of the

arbitration provision, as well as other provisions of the Form

U-4. Without further guidance from this Court, the securities

industry (as well as other groups who regularly invoke arbi-

tration) are left with uncertainty as to which statutory claims

are arbitrable and what preliminary steps, if any, are neces-

sary to enforce an arbitration agreement. As such, this Court

should grant a writ of certiorari.

POINT Il

THE NINTH CIRCUIT’S DECISION UNDERMINES

IMPORTANT POLICY CONSIDERATIONS

CONCERNING THE FORM U-4 WITHIN THE

SECURITIES INDUSTRY

The Ninth Circuit’s finding below that signing a U-4 does

not constitute a “knowing agreement” to arbitrate statutory

employment discrimination claims is inconsistent with the

terms and purposes of the Form U-4. The Form U-4 is a

personal registration form for individuals engaged in the

securities business. The NASD, the NYSE, and other self-

regulatory organizations cooperated in the development of

Form U-4 in an effort to streamline the flow of information

within the securities industry needed for regulatory purposes

with respect to individual registered representatives. Adoption

of Forms U-3 and U-4, Exchange Act Release No. 11,424,

[1974-75 Transfer Binder] Fed. Sec. L. Rep. (CCH) 4 80,176,

at 85,326 (May 16, 1975). Various provisions, including the

one binding the registered person to arbitration, have been

permitted to be incorporated in the Form U-4 to decrease the

number of required employment documents. See Adoption of

Revised Form U-4, Exchange Act Release No. 17,388, 45

Fed. Reg. 84,992 (1980).

The rules of the NASD, the NYSE, and other self-regulatory

organizations have included compulsory arbitration provisions

since before the creation of Form U-4. Indeed, the rules of the

NASD, the NYSE, and other self-regulatory organizations

make it mandatory for a registered representative to arbitrate

any employment-related dispute.° The version of Form U-4

signed by plaintiff-respondent Elvira Viernes provided:

I. . . hereby certify that I have read, understand and

agree to abide by, comply with, and adhere to all the pro-

visions, conditions and covenants of the statutes, con-

stitutions, certificates of incorporation, by-laws and rules

. Rule 347 of the NYSE, requiring the arbitration of “[a]ny con-

troversy between a registered representative and any member. . . aris-

ing out of the employment or termination of employment of such

registered representative”, 2 NYSE Guide (CCH) 9 2347 (1995), has been

in existence since 1958. Association of Investment Brokers v. Securities

and Exchange Commission, 676 F.2d 857, 860 & n.8 (D.C. Cir. 1982).

Part II, Section 8 of the NASD Code of Arbitration Procedure (the

“NASD Code”) was recently amended as a clarification of existing pol-

icy to provide that: “[a]ny dispute, claim or controversy eligible for sub-

mission under Part I of this Code between or among members and/or

associated persons. . . arising in connection with the business of such

member(s) or in connection with the activities of such associate per-

son(s), or arising out of the employment or termination of employment of

such associated person(s) with such member, shall be arbitrated under

this Code, at the instance of . . . (2) a member against a person associ-

ated with a member”. NASD Code Part II § 8, NASD Manual (CCH)

913708 (1995) (emphasis added). The italicized language above was

added in an October 1, 1993 amendment to clarify that the arbitration of

employment-related disputes is compulsory. See Hall v. MetLife

Resources, (Current Binder] Fed. Sec. L. Rep. (CCH) 998,742, at 92,517

(S.D.N.Y. May 2, 1995) (holding that plaintiffs, by signing Form U-4,

were bound to arbitrate their Title VII claims, even though forms were

signed prior to 1993 amendment to NASD Code, as amendment was

“merely a clarification of existing policy”).

and regulations of the states and organizations as they

are and may be adopted, changed or amended... .’

Given that the rules of the NASD require arbitration of

employment-related disputes, the Ninth Circuit’s decision is

inconsistent with the rules of the NASD that the employee

agrees to abide by in the first instance.

The Form U-4 also requires that the securities firm certify

that the employee is familiar with the “statute(s), constitu-

tion(s), rules and by-laws of the agency, jurisdiction, or self-

regulatory organization. ” Inasmuch as mandatory

arbitration of employment-related disputes is a part of the

NASD rules, securities professionals are thus certified to

be familiar with such provisions at the time of signing the

Form U-4. The Ninth Circuit’s decision ignores this critical

fact and, indeed, undermines the regulatory desire to charge

registered persons with knowledge of the rules of the various

self-regulatory organizations through the Form U-4.

Additionally, the Ninth Circuit’s decision effectively holds

that an arbitration agreement is only enforceable where it

specifically enumerates the statutory claims encompassed

therein. Accordingly, to comply with the decision, a new

Form U-4 would have to be created especially for use within

the jurisdiction of the Ninth Circuit with a lengthy arbitration

agreement listing every potential statutory claim covered by

the agreement. This would create a new burden inconsistent

with the regulatory desire to reduce paperwork in and stream-

line the securities registration process. Furthermore, given the

subjectivity of the Ninth Circuit’s standard of a “knowing

is Similarly, plaintiff-respondent Justine Lai signed a later version

of the Form U-4 agreeing to:

abide by, comply with, and adhere to all the provisions, conditions

and covenants of the statutes, constitutions, certificates of incor-

poration, by-laws and rules and regulations of the states and

organizations as they are and may be adopted, changed or amended

from timetotime. .. .

See Petition for Writ of Certiorari at App. 23, 24.

agreement”, such an enumeration of arbitrable claims still

would not provide certainty as to whether the employee

agreed to arbitrate such claims.

The Ninth Circuit’s decision reverses two decades of

progress that has been made in the securities industry toward

the development of an efficient system of registration, report-

ing and dispute resolution through the Form U-4 that does not

impose undue burdens on securities firms who seek to comply

with that system.

CONCLUSION

For the reasons set forth above, amicus Securities Industry

Association, Inc. respectfully requests that the petition for a

writ of certiorari be granted.

Dated: July 20, 1995

Respectfully submitted,