Merrill Lynch, Pierce Fenner Smith, Inc v. Ware

• Citation: 38 L.Ed.2d 348,414 U.S. 117,94 S.Ct. 383
• Decision Date: 04 December 1973
• Docket Number: No. 72-312,72-312
• Parties: MERRILL LYNCH, PIERCE, FENNER & SMITH, INC., Petitioner, v. David WARE
• Court: United States Supreme Court

414 U.S. 117

94 S.Ct. 383

38 L.Ed.2d 348

MERRILL LYNCH, PIERCE, FENNER & SMITH, INC., Petitioner,

v David WARE

No. 72-312.

Argued Oct. 9, and 10, 1973.

Decided Dec. 4, 1973.

Syllabus

When respondent voluntarily terminated his employment as an account executive in petitioner securities broker's San Francisco office for a similar position with a competitor, petitioner determined, pursuant to a forfeiture clause of its employees' profit-sharing plan, that respondent, by entering competitive employment, had forfeited all rights to the plan's benefits. Respondent sought a declaratory judgment in a California state court that the forfeiture clause was unlawful under § 16600 of the California Business and Professions Code, which invalidates every contract restraining a person from engaging in a lawful business. Petitioner answered, inter alia, that a condition of respondent's employment with petitioner was approval by the New York Stock Exchange; that respondent, at the time of his employment, applied on an Exchange form for such approval, as required by Exchange Rule 345(a)(1), pledging to abide by Exchange rules; and as required by Rule 347(b) agreed to submit to arbitration any controversy arising out of termination of his employment. On petitioner's appeal from the denial of its petition for an order directing arbitration, the California Court of Appeal held that a written agreement to arbitrate did exist, but that the forfeiture clause of the profit-sharing plan was invalid as in restraint of trade under California law when applied to California residents, and petitioner's contributions under the plan were wages under provisions of the California Labor Code giving wage earners a right of action for wages due and unpaid despite any private agreement to arbitrate. Held: Exchange Rules 345(a)(1) and 347(b), promulgated as self-regulatory measures pursuant to § 6 of the Securities Exchange Act of 1934 (the Act), and respondent's pledge to abide by those rules, do not pre-empt the avenues of wage relief otherwise available to respondent under California law. Pp. 125—140.

(a) Rule 347(b) does not fall under the Exchange's mandate to protect the investing public and to insure just and equitable trade practices set forth in §§ 6(d) and 19(b) of the Act, so as to require pre-emption of contrary state law by such rule, there being nothing in the Act or any SEC rule or regulation specifying arbitration as a favored means of resolving employer-employee disputes, and it being clear that Rule 347(b) would not be subject to the SEC's modification or review under § 19(b). Pp. 134-136.

(b) Rule 347(b) cannot be categorized as part of a need for uniform national regulation, there being no revelation in the Act or in any SEC regulation that nationwide uniformity of an exchange's housekeeping affairs is necessary, and it not being shown that national uniformity in the area of wage claims is vital to federal securities policy. Pp. 136—137.

(c) The 'applicable state laws' referred to in § 6(c) of the Act, which subjects exchange rules to a requirement of consistency with the Act, 'and the applicable laws of the State in which it is located,' are not in this instance, merely because the New York Stock Exchange is in New York City, the laws of New York so as to require the California court to apply New York law compelling arbitration of this dispute and validating the forfeiture clause of the profit-sharing plan, since § 6(c) has no independent existence creating some sort of spurious uniformity of application for all States, but merely requires that any exchange rule adopted outside the Act's context comport with the laws of the State in which the exchange is located. Pp. 137—139.

(d) Where California has manifested a strong statutory policy of protecting its wage earners from what it regards as undesirable economic pressures affecting the employment relationship, that policy should prevail absent any interference with the federal regulatory scheme; in this case there is not only no such interference, but the Act's structure manifests a congressional intent that state policies in this area should operate vigorously. Pp. 139—140.

(e) Even though petitioner's profitsharing plan is open to all eligible employees in the United States, and respondent's employment and petitiner's business are interstate, the application of the California law would not unduly burden interestate commerce. P. 140.

24 Cal.App.3d 35, 100 Cal.Rptr. 791, affirmed.

William H. Orrick, Jr., San Francisco, Cal., for petitioner.

Joseph C. Barton, San Francisco, Cal., for respondents.

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, pre-empt 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 of federal-state relations, we granted certiorari. 410 U.S. 908, 93 S.Ct. 956, 35 L.Ed.2d 269 (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. 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 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 resraint on competition under the laws of New York or of the United States; that, pursuant to Art. 22.1¹ 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 termination of his emplyment 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 order directing arbitration pursuant to the above-quoted 30(j) and Ware's pledge, contained in his application for approval or 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...