Harold Ames v. Merrill Lynch, Pierce, Fenner & Smith, Inc. And Christopher v. Streit , 567 F.2d 1174 ( 1977 )

GURFEIN, Circuit Judge:

Plaintiff, Harold Ames, appeals from an order of the district court, Haight, J., staying the trial of this action against Merrill Lynch, Pierce, Fenner & Smith, Inc. (“Merrill Lynch”) and Christopher V. Streit, and compelling arbitration. Plaintiff is seeking money damages for alleged violations of the Commodity Exchange Act, as amended by the Commodity Futures Trading Commission Act of 1974, 7 U.S.C. §§ 6b and 6c, and regulations thereunder, basing jurisdiction on 7 U.S.C. §2 et seq.¹

Ames opened his account with Merrill Lynch on November 26, 1975, when he signed a standard form customer’s agreement that Merrill Lynch required all of its customers to sign. It provided, inter alia, that any controversy between Ames and Merrill Lynch should be submitted to arbitration under the rules of the New York Stock Exchange. The complaint alleges that some time after January 1976 the defendant deviated from an agreed commodities program primarily for the purpose of generating commissions through excessive trading. Plaintiff further alleges that he received false and misleading reports which the defendants knew were false and that despite their statements, defendants were trading in a manner not allowed by their agreement with the plaintiff. On this appeal, we are not called upon to decide whether the complaint states a claim for relief. It is agreed that there is an implied cause of action under the Act for a private remedy.

This action was commenced on July 13, 1976. The motion to dismiss the complaint for lack of subject matter jurisdiction, F.R. Civ.P. 8(a)(1) and 12(b)(1), or alternatively, to stay the action pending arbitration, 9 U.S.C. § 3, was filed by the defendant on September 3, 1976, and the decision and order of the district court was filed on March 21, 1977.

The plaintiff opposed a stay of arbitration on the ground that the new regulations of the Commodity Futures Trading Commission (“Commission”), 17 C.F.R. Part 180, which became effective on November 29, 1976, after the agreement was executed, were retroactive in their operation and rendered the agreement to arbitrate null and void; and, alternatively, that under the doctrine of Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1953), the protection of investors under the Act required the nullification of compulsory arbitration of future disputes in a brokerage account agreement.

The district court found that subject matter jurisdiction existed under 28 U.S.C. § 1331(a) or as part of the interstate commerce jurisdiction under 28 U.S.C. § 1337. In reaching its decision to order arbitration, the district court rejected, however, both arguments made by the plaintiff in support of his position that the agreement to arbitrate was void and unenforcible. Judge Haight, in a thoughtful opinion, conceded that 17 C.F.R. § 180.3, in force at the time of his decision, would render the agreement to arbitrate a nullity.² He agreed with the plaintiff that the Commission intended that § 180.3 be given retroactive effect.³ He also recognized that a retroactive application of § 180.3 would make it impossible for the defendants to seek arbitration of the instant claims even if the provision to arbitrate might have been entered into voluntarily. He held, however, that the application of § 180.3 “to antedated Customer Agreements could lead to unfairness and inequities not intended by the drafters of the Commodities Exchange Act.” He further held, accordingly, “that retrospective application of § 180.3 would serve to prejudice heretofore valid agreements entered into on the basis of existing legal authority.” The judge also refused to accept the contention that Wilko v. Swan, supra, required nullification of the arbitration agreement.

A court must apply the law as it exists at the time of its decision, even where the law has changed during the pendency of the action, unless the statute or legislative history reveals an intention of prospective application only, or retroactive application would lead to “manifest injustice.” Bradley v. Richmond School Board, 416 U.S. 696, 711, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974). In applying this principle to the instant case, we are called upon to determine (1) whether the Commission had the authority to apply the provisions of § 180.3 to all arbitration agreements; (2) whether the Commission intended the application of the regulation to arbitration agreements antedating the regulation and (3) whether, given the authority and intention to make the regulation effective as to antedated agreements, the particular circumstance that the dispute arose before the effective date of the regulation nevertheless precludes its application.

The Act, in dealing with the arbitration of customers’ disputes, requires only that each contract market provide a “fair and equitable procedure through arbitration or otherwise” for settlement of customers’ claims up to $15,000. 7 U.S.C. § 7a(ll). The same section provides that “the use of such procedure by a customer shall be voluntary.” The Act mentions neither arbitration of claims over $15,000 nor arbitration outside of the contract market.

The Commission determined that to accomplish the purpose of the Act, arbitra-tions that do not fall within the literal scope of § 7a(ll) should also be regulated, even in the absence of a specific statutory source. 40 Fed.Reg. 54,430 (Nov. 24,1975); 41 Fed. Reg. 42,945-47 (Sept. 29, 1976). The Act gives the Commission authority “to make and promulgate such rules and regulations as, in the judgment of the Commission, are reasonably necessary to effectuate any of the provisions or to accomplish any of the purposes of this Act.” 7 U.S.C. § 12a(5). (emphasis added). The Commission acted under this general rulemaking authority when it promulgated § 180.3. 40 Fed.Reg. 54,432-33 (Nov. 24,1976). There is no challenge to its power to make such a rule under its general rulemaking powers.

The Commission’s intention regarding the retroactivity of the regulation can only be ascertained by examining the administrative history of the rule. Shortly after its creation, in 1975, the Commission undertook an examination of the use of arbitration in the futures industry. It learned that arbitration was frequently conducted not under the auspices of the contract markets regulated by the Commission but through arbitration sponsored by the New York Stock Exchange or other securities-oriented organizations. It also became apparent that in many cases arbitration was not undertaken voluntarily by customers, but that customers were compelled to agree to pre-dispute arbitration clauses as a precondition to doing business. Indeed, this practice was found to be so prevalent that a customer might effectively be frozen out of the futures market if he refused to execute a predispute agreement. 41 Fed.Reg. 27,526 (July 2,1976); 41 Fed.Reg. 42,945 (Sept. 29, 1976).

Initially, the Commission proposed to bar any agreement to arbitrate future disputes. 40 Fed.Reg. 34,152 (Aug. 14, 1975).⁴ But it provided that the absolute bar should not apply to claims or grievances arising out of transactions occurring prior to the adoption of the regulation and for one year thereafter, if such transactions were subject to agreements actually entered into before the adoption of the regulation. 40 Fed.Reg. 54,430, 54,435 (Nov. 24, 1975).

The Commission received written comments and took oral testimony on March 5, 1976. At this hearing conducted by the Commission, representatives both of Merrill Lynch and Shearson Hayden Stone conceded that a customer could not do futures business with the firm if he refused to sign a predispute arbitration agreement. Commodity Futures Trading Comm’n, Oral Hearing on Arbitration and Other Dispute Settlement Procedures 32-34, 37, 82-98. (March 5, 1976); see generally 41 Fed.Reg. 42,945 (Sept. 29, 1976).

After the hearings and comments, the Commission modified its previous proposal to bar arbitration of future disputes entirely. Instead, the Commission now proposed to permit the continued use of pre-dispute arbitration agreements, but only under conditions designed to insure that arbitration was truly voluntary on the part of the customer. 42 Fed.Reg. 27,526-28 (July 2, 1976).

With the withdrawal of the proposal to bar arbitration entirely, the Commission also withdrew the exemption for disputes arising before or within one year after the adoption of the regulation under arbitration agreements antedating the regulation. Instead, the thrust was to include even preexisting arbitration agreements in the new order of things. Thus, the Commission announced on July 2,1976, that “on the effective date, all compulsory arbitration agreements which do not comply with the amended proposed rule § 180.3 will be null and void, including those heretofore signed by customers.” 41 Fed.Reg. 27,527-28. At the same time, it deleted from the proposed rule the saving clause for agreements and disputes antedating the regulation.

On September 29,1976, the amended proposed rule was adopted to become effective on November 29,1976. 41 Fed.Reg. 42,942-47 (Sept. 29, 1976). At that time, the Commission reiterated its position that “on the effective date of proposed § 180.3(b), all pre-dispute arbitration agreements that do not satisfy the conditions set forth in the proposed rule will be null and void, including those heretofore signed by customers.” 41 Fed.Reg. 42,944 (Sept. 29, 1976). Again, there is no mention of any exemption for disputes already in being. Indeed, any such exemption would hardly conform to the notion, stated by the Commission itself, that customers who had entered into agreements before adoption of the regulation needed and were entitled to the protections of the rule no less than those customers who signed agreements after November 29, 1976. 41 Fed.Reg. 42,944 n. 18 (Sept. 29, 1976). After reviewing the administrative history of the rule, and with due respect for the current litigating position of the Commission on this question, we conclude that § 180.3 fairly read should apply to all arbitration agreements existing at the effective date of the regulation.

The Commission, in finally adopting the rule, considered and rejected the legal contention raised by some commentators that the abrogation of existing arbitration agreements which do not comply with proposed § 180.3(b) would violate due process and would be unconstitutional under the obligation of contracts clause and as an ex post facto law. The constitutional issue, though necessarily treated in rather summary fashion by the Commission, was treated correctly. Though we note that Merrill Lynch has limited its argument on this appeal to the contention that § 180.3 should' not be interpreted to apply retroactively to preexisting agreements or disputes, a contention which we have already disposed of, we also note that the constitutional issue has been suggested by the holding of the district court that retroactive application of the regulation to preexisting arbitration agreements would result in “unfairness and inequities”. We therefore conclude this opinion with a brief discussion of the constitutional questions which might be considered in that regard.

The obligation of contracts clause does not, of course, apply to the federal government, Sinking Fund Cases, 99 U.S. 718, 25 L.Ed. 496 (1878), nor is the ex post facto law provision of the Constitution applicable to other than criminal statutes. Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L.Ed. 648 (1798); Galvan v. Press, 347 U.S. 522, 531, 74 S.Ct. 737, 98 L.Ed. 911 (1954); Harisiades v. Shaughnessy, 342 U.S. 580, 594-95, 72 S.Ct. 512, 96 L.Ed. 586 (1952). This leaves for consideration the due process inquiry into the fairness of retroactive application of the regulation in this case — or, as the Court put it in Bradley v. Richmond School Board, supra, whether retroactive application would result in “manifest injustice”.

First, the argument that the regulation should not apply to preexisting disputes assumes that the arbitration agreement in question was a valid agreement before the regulation became effective. Based on the Commission’s finding, supra, it may be assumed that if Ames had refused to sign the contract, he would have been excluded from the futures market and that requiring him to sign a contract of adhesion in such circumstances made his signing less than voluntary. We have no doubt that the Act itself, enacted as it was for the protection of investors, prohibited a surrender of private remedies through an agreement to arbitrate which was not voluntary in the sense that the penalty for refusal was exclusion from the market.⁵ The freedom to contract is often diminished when an industry is under governmental regulation, F.H.A. v. Darlington, Inc., 358 U.S. 84, 91, 79 S.Ct. 141, 3 L.Ed.2d 132 (1958), and the commodities futures industry is such a regulated industry.

Moreover, the Commission’s position depends upon a distinction which appears to us to be of no consequence. Even if arbitration were to be considered a substantive right rather than a procedural remedy, we would perceive no ready distinction between a case in which the arbitration agreement antedated the regulation but the dispute did not, and one in which both the agreement and the dispute antedated the regulation. In either case, the frustration of the intent of the parties is so unfair as to constitute a violation of due process, or it is not. If, on the other hand, resort to arbitration is deemed a matter of remedy, the broker suffers no greater harm from refusal to enforce the arbitration agreement when the dispute had already arisen (as in this case) than when the dispute arose after the effective date of the regulation. In either case, no irreparable harm has been done by a change in the available remedy. Nor has there been any change of position to the detriment of the broker and certainly no manifest injustice. With due respect for the present litigating posture of the Commission, we see no reason to distinguish between cases in which the dispute had already arisen and cases in which the dispute occurs after the effective date of the regulation.

Finally, the Commission’s position depends upon an exaggerated estimate of the constitutional protections afforded to the particular contract right to arbitrate. Congress had the power under the Commerce Clause to enact the Act and to declare its purposes. Generally speaking, “[i]mmunity from federal regulation is not gained through forehanded contracts”. Fleming v. Rhodes, 331 U.S. 100, 107, 67 S.Ct. 1140, 1144, 91 L.Ed. 1368 (1947). “[T]he reservation of essential attributes of sovereign power is also read into contracts as a postulate of the legal order.” Home Building & Loan Ass’n v. Blaisdell, 290 U.S. 398, 435, 54 S.Ct. 231, 239, 78 L.Ed. 413 (1934). When the right claimed to have been abrogated unfairly is merely a contractual right to a remedy we have no doubt that Congress has power to foreclose the remedy if it lets stand an adequate remedy in its place. Cf. Hardware Dealers Ins. Co. v. Glidden Co., 284 U.S. 151, 159, 52 S.Ct. 69, 76 L.Ed. 214 (1931); Crane v. Hahlo, 258 U.S. 142, 42 S.Ct. 214, 66 L.Ed. 514 (1928). As the Court said in Hahlo, 258 U.S. at 147, 42 S.Ct. at 216, “No one has a vested right in any given mode of procedure (Railroad Co. v. Grant, 98 U.S. 398, 401, 25 L.Ed. 231; Gwin v. United States, 184 U.S. 669, 674, 22 S.Ct. 526, 46 L.Ed. 741) and so long as a substantial and efficient remedy remains or is provided due process of law is not denied by a legislative change. Oshkosh Waterworks Co. v. Oshkosh, 187 U.S. 437, 439, 23 S.Ct. 234, 47 L.Ed. 249.” See also Montana Power Co. v. Federal Power Comm’n, 445 F.2d 739, 747-48 (D.C. Cir. 1970).

Arbitration is a form of procedure, not of substantive law. As Judge Cardozo expressed it:

“Arbitration is a form of procedure whereby differences may be settled. It is not a definition of the rights and wrongs out of which the differences grow. This statute did not attach a new obligation to sales already made. It vindicated by a new method the obligation then existing.”

Berkovitz v. Arbib & Houlberg, Inc., supra, 230 N.Y. at 270, 130 N.E. at 290.⁶

The power of Congress to abrogate an arbitration procedure previously contracted for has been upheld. Montana Power Company, supra. The same result should follow where the procedure is affected by an administrative regulation within the scope of its delegated authority.⁷

We do not reach the applicability of the rigidly exclusive rule of Wilko v. Swan, supra, because here the regulatory agency itself sanctions arbitration as a means for the settlement of disputes and does not find the process itself antithetical to the purposes of the Act.⁸ We do rely to some extent on the spirit of Wilko to sustain the authority of the Commission to restrict the conditions under which the customer, as a protected investor, surrenders his right to sue in a court.

The order compelling arbitration and staying the action is reversed.

1 . Because of the numerous amendments to the Commodity Exchange Act since its enactment in 1922, we will refer to the original Act and its amendments collectively as “the Act,” and will simply refer to the present codification in 7 U.S.C. §§ 1-18.

2 . Section 180.3(b) of 17 C.F.R., promulgated by the Commission, allows enforcement of arbitration agreements only when certain conditions are met. These include: 1) that signing the agreement not be made a condition of access to the market; 2) that the customer sign separately the clause providing for arbitration; and 3) that there be a warning in bold-face type that the customer is giving up certain rights to assert his claim in court. These conditions were, concededly, not met in this case.

3 . The Commission filed a brief amicus curiae in which it argues that the district court was wrong in holding that § 180.3 should not be applied to disputes arising after the date of the regulation under existing agreements, but that it was probably right in not applying the regulation to disputes antedating the regulation, as in this case. We recognize that the Commission staff thought it easier to argue in favor of retroactive application of the regulation to preexisting contracts if they surrendered the claim to retroactive application to preexisting disputes. We do not share their concern. In any event, an amicus curiae is no more a witness than any other advocate. The Commission cites no administrative precedent, nor does it suggest that there has been any practical construction by the Commission which it could urge us to accept on the ground that the Commission has, in the past, so “interpreted” the regulation. We cannot accept the Commission’s current litigating position as an “interpretation” by the Commission, which the dissenting opinion calls it. See Davies Warehouse Co. v. Bowles, 321 U.S. 144, 156, 64 S.Ct. 474, 481, 88 L.Ed. 635 (1944) (administrative ruling challenged immediately upon issuance had not “seasoned or broadened into a settled administrative practice” to which the court should defer); Massy v. United States, 214 F.2d 935, 940 (8th Cir. 1954) (“interpretations” of regulation issued after regulation ceased to be in effect, and after the action was being tried, and never published in the Federal Register, entitled to no more weight nor persuasiveness than the argument of counsel appearing in the case); and Fleming v. Van Der Loo, 160 F.2d 906, 912 (D.C. Cir. 1947) (no particular weight to be given to an administrative interpretation of a regulation “made after [the] controversy had arisen”); but compare Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 417-18, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945) cited by the dissent (Bulletin issued contemporaneously with regulation and First Quarterly Report to Congress accorded considerable weight in interpreting the regulation).

4 . The rule was originally proposed as 17 C.F.R. § 200.3(c), and later redesignated 17 C.F.R. § 180.3(b).

5 . The Commission itself has consistently maintained this position. See 40 Fed.Reg. 29,122 (July 10, 1975) (Interpretative Response to Question 4); and 41 Fed.Reg. 42,944-45 (Sept. 29, 1976). The Commission has reiterated this position in its amicus curiae brief in this case.

6 . We recognize that there are instances in which the application of a law or regulation which alters available remedies to a case in which the dispute had already arisen could be so unfair and inequitable as to be unconstitutional. But identification of such instances depends upon attention to the stage to which the litigation has progressed and not merely to the fact that the dispute had arisen before the change in the law. Judge Cardozo made this point in Berkovitz v. Arbib & Houlberg, 230 N.Y. 261, 130 N.E. 288 (1921), where, in both cases consolidated for appeal, the arbitration agreements antedated the state’s Arbitration Law, which for the first time allowed enforcement of arbitration agreements. One of the suits was instituted after the change in the law, and the arbitration agreement was enforced under the Arbitration Law. The second case had been instituted four years before enactment of the Arbitration Law; there had been extensive litigation before the defendant moved, on the eve of trial and just after enactment of the new law, for a stay of proceedings to allow arbitration. In considering the applicability of a change in the law to cases already pending at the time of the change, Judge Cardozo drew an important distinction. “The change is applicable even [where the case is pending at the time of the change] if directed to the litigation in future steps and stages [citation omitted]. It is inapplicable, unless in exceptional conditions, where the effect is to reach backward, and nullify by relation the things already done [citations omitted].” Id. at 270, 130 N.E. at 290. Judge Cardozo, noting that “years of costly litigation” would be “rendered futile” by application of the Arbitration Law to the second of the consolidated cases, held the new law inapplicable to it. In the case at bar, in contrast, only the complaint and answer, and a motion to dismiss or to compel arbitration had been filed before the new regulation became effective. The district court had not yet decided the motion on the effective date. In Cardozo’s terms, the new regulation affected what was still a “future step” in the litigation. We see no unfairness in applying the new regulation at this early stage of the litigation, when no substantial costs have yet been incurred, and no important interlocutory rulings have been made, save for the stay itself.

7 . It is, of course, a truism, as the dissenting opinion notes, that we should try to construe a regulation so as to avoid a constitutional issue. But that does not mean that if the history of the regulation points a particular way we should simply expunge the result we have reached because we shrink from facing a constitutional issue. A litigant is entitled to an honest reading of the regulation. Avoidance of the constitutional issue may be likened to the proverbial cart; the fair reading of the regulation to the proverbial horse.

8 . In Wilko v. Swan, supra, the Court held that an arbitration agreement between a brokerage firm and one of its customers would not be enforced when the customer sought a judicial trial of his claims under the Securities Act of 1933.