Blue Gray Corporations I & II v. Merrill Lynch, Pierce, Fenner & Smith, Inc.

921 F.2d 267, 1991 U.S. App. LEXIS 374, 1991 WL 47
CourtCourt of Appeals for the Eleventh Circuit
DecidedJanuary 15, 1991
DocketNo. 90-5069
StatusPublished
Cited by8 cases

This text of 921 F.2d 267 (Blue Gray Corporations I & II v. Merrill Lynch, Pierce, Fenner & Smith, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Blue Gray Corporations I & II v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 921 F.2d 267, 1991 U.S. App. LEXIS 374, 1991 WL 47 (11th Cir. 1991).

Opinion

FAY, Circuit Judge:

Defendant-appellant Merrill Lynch, Pierce, Fenner & Smith, Inc., appeals a district court order denying its motion to compel arbitration of claims arising under federal securities laws, filed by plaintiffs-appellees Blue Gray Corporations I & II and First Sunset Corporation. Plaintiffs cross-appeal the district court’s order, which compelled arbitration of plaintiffs’ state law claims against defendant. We hold that the plain language of the arbitration agreement provided plaintiffs the right to litigate federal securities law claims, and that the arbitration agreement could be construed to compel arbitration of state law claims. Accordingly, we AFFIRM.

BACKGROUND

This case depends solely upon the interpretation of an arbitration provision included in certain agreements into which plaintiffs and defendant entered. Between May 13, 1985, and April 24, 1987, plaintiffs signed several investment account agreements with defendant.1 Each of these [269]*269agreements contained virtually identical “Arbitration Agreement” provisions. The arbitration agreements provided, in pertinent part:

Except to the extent that controversies involving claims arising under the Federal securities laws may be litigated, it is agreed that any controversy between us arising out of your business or this agreement shall be submitted to arbitration ....

In September 1989, plaintiffs brought suit in federal district court against defendant, alleging violations of the Securities Exchange Act of 1934, and raising various state law claims.2 Defendant moved to compel arbitration of all the claims. The district court denied defendant’s motion to compel arbitration as to plaintiffs’ federal securities claims, but granted defendant’s motion to compel arbitration of the state claims. Defendant appeals, and plaintiffs cross-appeal.

DISCUSSION

The question before us is whether the exception clause in the arbitration agreement permits plaintiffs the option of choosing whether to submit to arbitration controversies involving claims arising under federal securities laws. A corollary to this question is whether the state claims fall within the language “controversies involving claims arising under Federal securities laws.”

The Federal Arbitration Act (“FAA”) provides that written arbitration clauses in securities agreements are valid and enforceable. 9 U.S.C. § 2 (1988). Section 2 of the FAA is “a congressional declaration of a liberal federal policy favoring arbitration agreements.” Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983). “[A]ny doubts con-

cerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.” Id. (footnote omitted). Yet, arbitration agreements are, essentially, creatures of contract. Goldberg v. Bear, Stearns & Co., 912 F.2d 1418, 1419 (11th Cir.1990). Accordingly, parties to a contract will not be required to arbitrate when they have not agreed to do so. Id. (citing Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Jr. Univ., 489 U.S. 468, 478, 109 S.Ct. 1248, 1255, 103 L.Ed.2d 488 (1989)). Likewise, parties who do agree to arbitrate are not prevented from excluding certain claims from the scope of their arbitration agreement. Volt, 489 U.S. at 478, 109 S.Ct. at 1255 (citing Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628, 105 S.Ct. 3346, 3354-55, 87 L.Ed.2d 444 (1985) (citation omitted)). Our circuit has recognized that

[t]he courts are not to twist the language of the contract to achieve a result which is favored by federal policy but contrary to the intent of the parties. The Federal Arbitration Act (FAA) “simply requires courts to enforce privately negotiated agreements to arbitrate, like other contracts, in accordance with their terms.”

Goldberg, 912 F.2d at 1419-20 (quoting Volt, 489 U.S. at 478, 109 S.Ct. at 1255). The FAA was designed “to make arbitration agreements as enforceable as other contracts, but not more so.” Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 404 n. 12, 87 S.Ct. 1801, 1806 n. 12, 18 L.Ed.2d 1270 (1967).

Defendant argues that the clause in the arbitration agreement, “Except to the extent that controversies involving claims arising under Federal securities laws may be litigated” is ambiguous. If ambiguous, [270]*270defendant proposes that any interpretive doubt must be construed in favor of arbitration.

1. Federal Securities Laws Claims.

The district court ruled that the plain meaning of the arbitration agreement provided an exception to arbitration for claims arising under federal securities laws. We agree.

Defendant contests the district court’s ruling by citing several other district courts which, according to defendant, interpreted virtually identical exclusionary language to require arbitration. See, e.g., Nemes v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 741 F.Supp. 657 (E.D.Mich.1990); Axtell v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 744 F.Supp. 194 (E.D.Ark.1989); Esposito v. Hyer, Bikson, & Hinsen, Inc., 709 F.Supp. 1020 (D.Kan.1988). Defendant contends that the district court in this case erred in finding the exclusionary language to have only one plain meaning, and claims that the exclusionary language is ambiguous, capable of more than one reasonable interpretation. Defendant supports its contention by reasoning that if district courts reasonably could disagree as to the meaning of the exclusionary language, such language is ambiguous. If ambiguous, defendant then suggests that the language should be construed to compel arbitration, according to the principle set forth in Moses H. Cone.

The problem with defendant’s reasoning is that the cases cited applied Securities and Exchange Commission Rules to arbitration agreements in a manner which this circuit has rejected. See Goldberg, 912 F.2d at 1420 & n. 1. Rule 15c2-2(a), which was rescinded in October of 1987, provided:

It shall be a fraudulent, manipulative or deceptive act or practice for a broker or dealer to enter into an agreement with any public customer which purports to bind the customer to the arbitration of future disputes between them arising under the Federal securities laws, or to have in effect such an agreement, pursuant to which it effects transactions with or for a customer.

17 C.F.R.

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Bluebook (online)
921 F.2d 267, 1991 U.S. App. LEXIS 374, 1991 WL 47, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blue-gray-corporations-i-ii-v-merrill-lynch-pierce-fenner-smith-ca11-1991.