Leighton v. Merrill Lynch, Pierce, Fenner & Smith, Inc.

831 F.2d 295, 1987 U.S. App. LEXIS 13149, 1987 WL 44956

• Court: Court of Appeals for the Sixth Circuit
• Decided: October 5, 1987
• Docket: 86-1686
• Status: Unpublished

Opinion

831 F.2d 295

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
John D. LEIGHTON, Plaintiff-Appellant,
v.
Merrill LYNCH, Pierce, Fenner & Smith, Inc., Thomas H.
Henson, Russell G. Mann, Jr., Senior Resident Vice
President, Merrill Lynch, Pierce, Fenner
& Smith, Defendants-Appellees.

No. 86-1686

United States Court of Appeals, Sixth Circuit.

October 5, 1987.

ORDER

Before KEITH, MILBURN and ALAN E. NORRIS, Circuit Judges.

The defendants have filed a motion to compel arbitration in this securities fraud case. The motion has been construed as a motion to affirm. The plaintiff has filed a response. This appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. After an examination of the record and the plaintiff's brief, this panel agrees unanimously that oral argument is not needed. Fed. R. App. P. 34(a).

Motions to affirm are prohibited under Rule 8(a)(3), Rules of the Sixth Circuit. Therefore, the motion to affirm is denied. Turning to the merits of the appeal, the plaintiff's complaint alleges that the defendants' handling of his securities account violated Section 10(b) of the Securities and Exchange Act and its accompanying Rule 10b-5. 15 U.S.C. Sec. 78j(b); 17 C.F.R. 240.10b-5. The complaint also alleged a RICO violation. 18 U.S.C. Sec. 1964. The district court held that both of these claims were subject to arbitration under the arbitration clause contained in the brokerage agreement. The plaintiff appealed from this holding.

The appeal was held in abeyance pending the Supreme Court's decision in Shearson/American Express, Inc. v. McMahon, 107 S.Ct. 2332 (1987). In McMahon, the Supreme Court held that both the Section 10(b) and RICO claims are subject to arbitration. 107 S.Ct. at 2343 and 2345-46. Therefore, the district court properly ordered arbitration in this case.

The order of the district court is affirmed under Rule 9(b)(5), Rules of the Sixth Circuit, because the issues are not substantial and do not require oral argument.