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

414 U.S. 117, 94 S. Ct. 383, 38 L. Ed. 2d 348, 1973 U.S. LEXIS 179
Supreme Court of the United States·Decided December 4, 1973·No. 72-312·Published·Cited by 280 cases

Opinion

Mr. Justice Blackmun

delivered the opinion of the Court.

This case presents the question whether certain rules of the New York Stock Exchange, promulgated as self-regulating measures pursuant to § 6 of the Securities Exchange Act of 1934, 48 Stat. 885, 15 U. S. C. § 78f, and a broker’s employee’s pledge to abide by those rules, preempt avenues of wage relief otherwise available to the employee under state law. The California Court of Appeal answered this in the negative. 24 Cal. App. 3d 35, 100 Cal. Rptr. 791 (1972). Because of the significance of the question in the area pf federal-state relations, we granted certiorari. 410 U. S. 908 (1973).

I

Respondent, David Ware, in July 1958 entered the employ of petitioner Merrill Lynch, Pierce, Fenner & Smith, Inc., a New York corporation, as a registered representative or “account executive” in the petitioner’s San Francisco office. Ware worked there continuously until March 1969 when he voluntarily terminated that relationship and accepted a similar position in San Francisco with one of Merrill Lynch’s competitors.

Merrill Lynch is a broker-dealer in securities and is a member-corporation of the New York Stock Exchange. Since prior to 1958, the firm has had a noncontributory Profit-Sharing Plan for its employees in the United States. *120 Under the Plan an employee may have allocated to his account both vested and unvested units, as therein described. Article 11 of the Plan relates to “Forfeiture of Benefits” upon the happening of specified events. One such event is competitive activity:

“11.1 A Participant who, in the determination of the Committee, voluntarily terminates his employment with the Corporation or provokes his termination and engages in an occupation which is, in the determination of the Committee, competitive with the Corporation, or any affiliate or subsidiary thereof, shall forfeit all rights to any benefits otherwise due or to become due from the Trust Fund with respect to units credited for fiscal years subsequent to the fiscal year ended December 30, 1960.”

The Committee referred to is provided for by the Plan’s Art. 1. It has not less than five nor more than nine persons (not necessarily employees) appointed by Merrill Lynch and serving “at the pleasure of the Corporation.” Article 1.2 states that the Committee “shall administer the Plan” and “shall determine any questions arising in the administration, interpretation and application of the Plan, which determination shall be conclusive and binding on all persons.”

At the time Ware terminated his employment with Merrill Lynch in March 1969, both vested and unvested units were allocated to his account. Upon his departure, the Committee, pursuant to Art. 11.1, determined that Ware, by entering competitive employment, had forfeited all rights to benefits due or to become due him under the Plan.

In January 1970 Ware filed this class action in California state court against Merrill Lynch and the members of the Committee. The class purported to consist of Ware and all other similarly situated former *121 Merrill Lynch employees in California. . Declaratory relief was sought to the effect that Art. 11.1 was “unlawful and void under applicable California law,” and that the defendants were obligated to pay all vested units credited from December 30, 1960, to the date of termination of employment.

Although the statute was not cited in the complaint, the parties appear to agree that the suit rested principally on § 16600 of the California Business and Professions Code. This reads:

“Except as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.”

In its answer, Merrill Lynch alleged that the provisions of Art. 11.1 were a reasonable restraint on competition under the laws of New York or of the United States; that, pursuant to Art. 22.1 1 of the Plan, it was to be construed according to the laws of New York; that under New York law Art. 11.1 is lawful, valid, and enforceable; that a condition of Ware’s employment with Merrill Lynch was approval by the New York Stock Exchange; that Ware, at the time of his employment in 1958, executed a written application, on an Exchange form, for approval of his employment as a registered representative, as required by the Exchange’s Rule 345 (a)(1); 2 that by ¶ 30 (j) of that form Ware agreed that any controversy with a member arising out of the *122 termination of his employment would be settled by arbitration at the instance of any party; 3 that the Exchange approved the application; that Ware’s sole remedy was arbitration; and that a declaration that Art. 11.1 was invalid under the laws of California would cause Merrill Lynch to discriminate in the administration of the Plan and would deprive it of due process of law.

Merrill Lynch, invoking § 1281.2 of the California Code of Civil Procedure, 4 petitioned the state court for an *123 order directing arbitration pursuant to the above-quoted ¶ 30 (j) and Ware’s pledge, contained in his application for approval of employment, that he would "abide by the Constitution and Rules of the Board of Governors of the New York Stock Exchange” and that he submitted himself “to the jurisdiction of such Exchange.”

Ware opposed arbitration on the grounds that no contract to arbitrate existed between him and Merrill Lynch ; that if an agreement to this effect existed, it was a contract of adhesion; and that, since § 16600 made the forfeiture provision illegal under California law, it was not arbitrable.

The state trial court, by minute order, denied the petition to compel arbitration.

Merrill Lynch then appealed. The California Court of Appeal held that a written agreement to arbitrate did exist; that the Exchange form was “a contractual agreement”; and that the “approval and registration by Merrill Lynch made the application a contract between the parties.” 24 Cal. App. 3d, at 40-41, 100 Cal. Rptr., at 795-796. The court went on to hold, however, that the forfeiture clause was invalid and unenforceable under California law, when applied to California residents, as being in restraint of trade. Id., at 42-43, 100 Cal. Rptr., at 796-797. Cited as supporting authorities were Frame v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 20 Cal. App. 3d 668, 97 Cal. Rptr. 811 (1971), where the same forfeiture clause was held ineffective under California law, but where the court also held that an *124 enforceable agreement to arbitrate existed, 5 and Muggill v. Reuben H. Donnelley Corp., 62 Cal. 2d 239, 398 P.

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Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Ware, 414 U.S. 117, 94 S. Ct. 383, 38 L. Ed. 2d 348, 1973 U.S. LEXIS 179 (1973).

414 U.S. 117 (Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Ware) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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