Howsam v. Dean Witter Reynolds, Inc.

537 U.S. 79, 123 S. Ct. 588, 154 L. Ed. 2d 491, 16 Fla. L. Weekly Fed. S 20, 2002 Daily Journal DAR 13897, 2002 Cal. Daily Op. Serv. 11847, 71 U.S.L.W. 4019, 2002 U.S. LEXIS 9235
Supreme Court of the United States·Decided December 10, 2002·No. 01-800·Published·Cited by 1,902 cases

Opinions

Justice Breyer

delivered the opinion of the Court.

This case focuses upon an arbitration rule of the National Association of Securities Dealers (NASD). The rule states that no dispute “shall be eligible for submission to arbitration . . . where six (6) years have elapsed from the occurrence or event giving rise to the . . . dispute.” NASD Code of Arbitration Procedure §10304 (1984) (NASD Code or Code). We must decide whether a court or an NASD arbitrator should apply the rule to the underlying controversy. We conclude that the matter is for the arbitrator.

I

The underlying controversy arises out of investment advice that Dean Witter Reynolds, Inc. (Dean Witter), provided its client, Karen Howsam, when, some time between 1986 and 1994, it recommended that she buy and hold interests in four limited partnerships. Howsam says that Dean Witter misrepresented the virtues of the partnerships. The resulting controversy falls within their standard Client Service Agreement’s arbitration clause, which provides:

“[A]ll controversies . . . concerning or arising from . . . any account..., any transaction ..., or... the construction, performance or breach of . . . any . . . agreement between us ... shall be determined by arbitration before any self-regulatory organization or exchange of which Dean Witter is a member.” App. 6-7.

[82]*82The agreement also provides that Howsam can select the arbitration forum. And Howsam chose arbitration before the NASD.

To obtain NASD arbitration, Howsam signed the NASD’s Uniform Submission Agreement. That agreement specified that the “present matter in controversy” was submitted for arbitration “in accordance with” the NASD’s “Code of Arbitration Procedure.” Id., at 24. And that Code contains the provision at issue here, a provision stating that no dispute “shall be eligible for submission ... where six (6) years have elapsed from the occurrence or event giving rise to the . . . dispute.” NASD Code § 10304.

After the Uniform Submission Agreement was executed, Dean Witter filed this lawsuit in Federal District Court. It asked the court to declare that the dispute was “ineligible for arbitration” because it was more than six years old. App. 45. And it sought an injunction that would prohibit Howsam from proceeding in arbitration. The District Court dismissed the action on the ground that the NASD arbitrator, not the court, should interpret and apply the NASD rule. The Court of Appeals for the Tenth Circuit, however, reversed. 261 F. 3d 956 (2001). In its view, application of the NASD rule presented a question of the underlying dispute’s “arbitrability”; and the presumption is that a court, not an arbitrator, will ordinarily decide an “arbitrability” question. See, e. g., First Options of Chicago, Inc. v. Kaplan, 514 U. S. 938 (1995).

The Courts of Appeals have reached different conclusions about whether a court or an arbitrator primarily should interpret and apply this particular NASD rule. Compare, e. g., 261 F. 3d 956 (CA10 2001) (case below) (holding that the question is for the court); J. E. Liss & Co. v. Levin, 201 F. 3d 848, 851 (CA7 2000) (same), with PaineWebber Inc. v. Elahi, 87 F. 3d 589 (CA1 1996) (holding that NASD § 15, currently § 10304, is presumptively for the arbitrator); Smith Barney Shearson, Inc. v. Boone, 47 F. 3d 750 (CA5 1995) (same). We [83]*83granted Howsam’s petition for certiorari to resolve this disagreement. And we now hold that the matter is for the arbitrator.

II

This Court has determined that “arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” Steelworkers v. Warrior & Gulf Nav. Co., 363 U. S. 574, 582 (1960); see also First Options, supra, at 942-943. Although the Court has also long recognized and enforced a “liberal federal policy favoring arbitration agreements,” Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U. S. 1, 24-25 (1983), it has made dear that there is an exception to this policy: The question whether the parties have submitted a particular dispute to arbitration, i. e., the “question of arbitrability,” is “an issue for judicial determination [ujnless the parties clearly and unmistakably provide otherwise.” AT&T Technologies, Inc. v. Communications Workers, 475 U. S. 643, 649 (1986) (emphasis added); First Options, supra, at 944. We must decide here whether application of the NASD time limit provision falls into the scope of this last-mentioned interpretive rule.

Linguistically speaking, one might call any potentially dispositive gateway question a “question of arbitrability,” for its answer will determine whether the underlying controversy will proceed to arbitration on the merits. The Court’s case law, however, makes clear that, for purposes of applying the interpretive rule, the phrase “question of arbitrability” has a far more limited scope. See 514 U. S., at 942. The Court has found the phrase applicable in the kind of narrow circumstance where contracting parties would likely have expected a court to have decided the gateway matter, where they are not likely to have thought that they had agreed that an arbitrator would do so, and, consequently, where reference of the gateway dispute to the court avoids the risk of [84]*84forcing parties to arbitrate a matter that they may well not have agreed to arbitrate.

Thus, a gateway dispute about whether the parties are bound by a given arbitration clause raises a “question of arbitrability” for a court to decide. See id., at 943-946 (holding that a court should decide whether the arbitration contract bound parties who did not sign the agreement); John Wiley & Sons, Inc. v. Livingston, 376 U. S. 543, 546-547 (1964) (holding that a court should decide whether an arbitration agreement survived a corporate merger and bound the resulting corporation). Similarly, a disagreement about whether an arbitration clause in a concededly binding contract applies to a particular type of controversy is for the court. See, e. g., AT&T Technologies, supra, at 651-652 (holding that a court should decide whether a labor-management layoff controversy falls within the arbitration clause of a collective-bargaining agreement); Atkinson v. Sinclair Refining Co., 370 U. S. 238, 241-243 (1962) (holding that a court should decide whether a clause providing for arbitration of various “grievances” covers claims for damages for breach of a no-strike agreement).

At the same time the Court has found the phrase “question of arbitrability” not applicable in other kinds of general circumstance where parties would likely expect that an arbitrator would decide the gateway matter.

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Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 123 S. Ct. 588, 154 L. Ed. 2d 491, 16 Fla. L. Weekly Fed. S 20, 2002 Daily Journal DAR 13897, 2002 Cal. Daily Op. Serv. 11847, 71 U.S.L.W. 4019, 2002 U.S. LEXIS 9235 (2002).

537 U.S. 79 (Howsam v. Dean Witter Reynolds, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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