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New Protections in Arbitrating Public Securities Disputes in the Wake of Mcmahon: Foregone Conclusion Or Will-O'-The-Wisp

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New Protections in Arbitrating Public Securities Disputes in the Wake of Mcmahon: Foregone Conclusion Or Will-O'-The-Wisp Volume 34 Issue 1 Article 2 1989 New Protections in Arbitrating Public Securities Disputes in the Wake of McMahon: Foregone Conclusion or Will-O'-The-Wisp C.M.A. McCauliff Robert C. Tyms Follow this and additional works at: https://digitalcommons.law.villanova.edu/vlr Part of the Securities Law Commons Recommended Citation C.M.A. McCauliff & Robert C. Tyms, New Protections in Arbitrating Public Securities Disputes in the Wake of McMahon: Foregone Conclusion or Will-O'-The-Wisp, 34 Vill. L. Rev. 25 (1989). Available at: https://digitalcommons.law.villanova.edu/vlr/vol34/iss1/2 This Article is brought to you for free and open access by Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in Villanova Law Review by an authorized editor of Villanova University Charles Widger School of Law Digital Repository. McCauliff and Tyms: New Protections in Arbitrating Public Securities Disputes in the 1989] NEW PROTECTIONS IN ARBITRATING PUBLIC SECURITIES DISPUTES IN THE WAKE OF McMAHON: FOREGONE CONCLUSION OR WILL-O'-THE-WISP? C.M.A. MCCAULIFF* AND ROBERT C. TYMS** TABLE OF CONTENTS I. THE ARBITRABILITY OF IMPLIED CAUSES OF ACTION ARISING UNDER SECTION 10(b) OF THE SECURITIES EXCHANGE ACT ...................................... 28 A. The Early Balance Between the Policies of the Securities Acts and the Federal Arbitration Act ................. 31 B. The Shift in the Judicial Balance Between the Policies of the Securities Acts and the FederalArbitration Act ...... 36 II. COURT-ORDERED ARBITRATION OF EXCHANGE ACT C LAIM S .............................................. 40 III. THE NEED FOR INCREASED FAIRNESS IN ARBITRATION PROCEDURES IN THE AFTERMATH OF MCMAHON ........ 45 A. Present Provisionsfor Securities Arbitration ........... 46 B. Current Suggestionsfor Improvement of Securities A rbitration ....................................... 50 IV . CONCLUSION ......................................... 60 H ARDLY MORE than four months before Black Monday, Oc- .tober 19, 1987, the United States Supreme Court gave the securities industry great leverage in choosing the forum for resolving disputes with their customers by recognizing arbitration as a contractual alternative to litigation.1 The American Arbitra- tion Association (AAA) reports that requests for arbitration of public securities disputes through its auspices alone have risen by fifty percent since Black Monday.2 The current heavy volume of * Professor, Seton Hall University School of Law, A.B. Bryn Mawr College, Ph.D. University of Toronto, J.D. University of Chicago. ** Carella, Byrne, Bain & Gilfillian, A.B. St. John's University, Minnesota, M.A. New York University,J.D. Seton Hall University. The authors would like to thank Neil B. Cohen, Robert E. Meade and Robert A. Love. 1. 107 S. Ct. 2332 (1987). 2. Statistics provided by AAA Department of Case Administration, 140 W. 51 St., N.Y., N.Y. 10020; see also Schiffers & Goldwasser, When Your Broker Fouls Up, CHANGING TIMES, Jan. 1988, at 65-66 (identified main areas of complaint (25) Published by Villanova University Charles Widger School of Law Digital Repository, 1989 1 Villanova Law Review, Vol. 34, Iss. 1 [1989], Art. 2 VILLANOVA LAW REVIEW [Vol. 34: p. 25 arbitration in the AAA and other arbitral systems provided by the national securities exchanges and registered securities associa- tions will provide the first large-scale test of how arbitration is being received by the investing public. If arbitration is perceived as fair, it will enhance the investor's confidence in the securities markets. Furthermore, it will provide some docket relief for fed- eral district courts already deemed to be overburdened with se- curities cases. As long ago as 1975, the Court had acted to reduce standing in securities cases through the buyer-seller require- ment.3 At the same time, Congress had acted to enlarge the power of the Securities and Exchange Commission (SEC) over ar- bitration. 4 The philosophy embodied in both of those actions played a role in permitting the Court to embrace arbitration of public securities disputes in 1987. Thirty-five years ago, the Supreme Court viewed both arbi- tration and the nature of securities suits very differently. It held in Wilko v. Swan 5 that claims arising under section 12(2) of the Securities Act of 1933 (1933 Act or Securities Act) were not arbi- trable and that a district court could not compel arbitration in accord with a preexisting arbitration agreement. 6 Since that deci- arising from Black Monday as follows: unsuitable investments, broker's unavail- ability, execution of trades at unauthorized prices and margin calls). 3. See Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723 (1975). The Court adopted the so-called Birnbaum rule of Birnbaum v. Newport Steel Corp., 193 F.2d 461 (2d Cir.), cert. denied, 343 U.S. 956 (1952), and held that the im- plied private right of action under rule 10b-5 was limited to actual "purchasers" or "sellers" of securities. Blue Chip Stamps, 421 U.S. at 730-31. However, the Court rejected the exception to the Birnbaum rule created by the court of appeals which granted a private right of action under rule lOb-5 to an offeree of an offering of securities made pursuant to an antitrust decree. Id. at 749-50. The Court's holding marked a reaffirmation of "virtually all lower federal courts fac- ing the issue in the hundreds of reported cases presenting this question .... " Id. at 731 (citing, inter alia, Sargent v. Genesco, Inc., 492 F.2d 750, 763 (5th Cir. 1974); Landy v. FDIC, 486 F.2d 139, 156-57 (3d Cir. 1973), cert. denied, 416 U.S. 960 (1974); Haberman v. Murchison, 468 F.2d 1305, 1311 (2d Cir. 1972); Sim- mons v. Wolfson, 428 F.2d 455, 456 (6th Cir. 1970), cert. denied, 400 U.S. 999 (1971); City Nat'l Bank v. Vanderboom, 422 F.2d 221, 227-28 (8th Cir.), cert. denied, 399 U.S. 905 (1970)). 4. Securities Acts Amendments of 1975, Pub. L. No. 94-29, § 16, 89 Stat. 97, 146-54 (1975) (amending Section 19 of the Securities Exchange Act of 1934 (codified as amended at 15 U.S.C. § 78s (1982))). 5. 346 U.S. 427, 438 (1953). 6. Securities Act of 1933, § 12(2), 15 U.S.C. § 771(2) (1982). Section 12(2) provides: Any person who ... (2) offers or sells a security (whether or not exempted by the pro- visions of section 77c of this title, other than paragraph (2) of subsec- tion (a) of said section), by the use of any means or instruments of transportation or communication in interstate commerce or of the https://digitalcommons.law.villanova.edu/vlr/vol34/iss1/2 2 McCauliff and Tyms: New Protections in Arbitrating Public Securities Disputes in the 1989] ARBITRATING SECURITIES DISPUTES sion, numerous lower courts 7 have extended the Wilko doctrine to bar arbitration of rule 10b-5 claims under section 10(b) of the Securities Exchange Act of 19348 (1934 Act or Exchange Act), holding that public policy concerns and legislative history compel resolution in a judicial forum and that the similarities of the 1933 and 1934 Acts outweigh any differences. 9 On June 8, 1987, the Court rejected the lower courts' extension of Wilko, holding in Shearson/American Express, Inc. v. McMahon 10 that the Federal Arbi- tration Act of 1925 (FAA) requires the enforcement of predispute arbitration agreements with respect to section 10(b) claims.I' The objective of this article is to examine the need for rigor- mails, by means of a prospectus or oral communication, which includes an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements, in the light of the circum- stances under which they were made, not misleading (the purchaser not knowing of such untruth or omission), and who shall not sustain the burden of proof that he did not know, and in the exercise of reasonable care could not have known, of such untruth or omission, shall be liable to the person purchasing such security from him, who may sue either at law or in equity in any court of competent jurisdiction, to recover the consideration paid for such security with interest thereon, less the amount of any income received thereon, upon the tender of such secur- ity, or for damages if he no longer owns the security. Id. 7. See, e.g, Surman v. Merrill, Lynch, Pierce, Fenner & Smith, Inc., 733 F.2d 59 (8th Cir. 1984); Sawyer v. Raymond James & Assocs., 642 F.2d 791, 792 (5th Cir. 1981); Mansbach v. Prescott, Ball & Turben, 598 F.2d 1017 (6th Cir. 1979); Merrill, Lynch, Pierce, Fenner & Smith, Inc. v. Moore, 590 F.2d 823 (10th Cir. 1978). 8. Securities and Exchange Act of 1934, § 10(b), 15 U.S.C. § 78j (1982). For the text of section 10(b), see infra note 58. For rule 10b-5, see 17 C.F.R. § 240.10b-5 (1988). 9. Malcolm and Segall, The Arbitrability of Claims Arising Under Section 10(b) of the Securities Exchange Act: Should Wilko Be Extended?, 50 ALB. L. REV. 725, 754 n. 176 (1986). For a thorough discussion of the public policy concerns, legisla- tive history and similarities and differences in the provisions of the 1933 and 1934 Acts that arguably would have supported the extension of the Wilko doc- trine to rule lOb-5 claims, see id. at 747-61. 10. 107 S. Ct. 2332, 2343 (1987). 11. Federal Arbitration Act of 1925, ch. 213, 43 Stat. 883 (1925) (codified as amended at 9 U.S.C. §§ 1-14 (1982)). Section 3 of the FAA provides in perti- nent part that: If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agree- ment in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement...
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