537 U.S. 79 (2002), 01-800, Howsam v. Dean Witter Reynolds, Inc.

Docket Nº:No. 01-800
Citation:537 U.S. 79, 123 S.Ct. 588, 154 L.Ed.2d 491, 71 U.S.L.W. 4019
Party Name:KAREN HOWSAM, ETC., PETITIONER v. DEAN WITTER REYNOLDS, INC.
Case Date:December 10, 2002
Court:United States Supreme Court
 
FREE EXCERPT

Page 79

537 U.S. 79 (2002)

123 S.Ct. 588, 154 L.Ed.2d 491, 71 U.S.L.W. 4019

KAREN HOWSAM, ETC., PETITIONER

v.

DEAN WITTER REYNOLDS, INC.

No. 01-800

United States Supreme Court

December 10, 2002

Argued October 9, 2002

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT.

Syllabus

Per respondent Dean Witter Reynolds, Inc.’s standard client agreement, petitioner Howsam chose to arbitrate her dispute with the company before the National Association of Securities Dealers (NASD). NASD’s Code of Arbitration Procedure § 10304 states that no dispute “shall be eligible for submission . . . where six (6)years have elapsed from the occurrence or event giving rise to the dispute.” Dean Witter filed this suit, asking the Federal District Court to declare the dispute ineligible for arbitration because it was more than six years old and seeking an injunction to prohibit Howsam from proceeding in arbitration. The court dismissed the action, stating that the NASD arbitrator should interpret and apply the NASD rule. In reversing, the Tenth Circuit found that the rule’s application presented a question of the underlying dispute’s “arbitrability ”;and the presumption is that a court will ordinarily decide an arbitrability question.

Held:

An NASD arbitrator should apply the time limit rule to the underlying dispute. Pp. 83-86.

(a) "[A]rbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit. "Steelworkers v. Warrior &Gulf Nav. Co., 363 U.S. 574, 582.The question whether parties have submitted a particular dispute to arbitration, i.e., the "question of arbitrability, "is "an issue for judicial determination [u]nless the parties clearly and unmistakably provide otherwise. "AT&T Technologies, Inc. v. Communica tions Workers, 475 U.S. 643, 649.The phrase "question of arbitrability " has a limited scope, applicable in the kind of narrow circumstance where contracting parties would likely have expected a court to have decided the gateway matter. But the phrase is not applicable in other kinds of general circumstance where parties would likely expect that an arbitrator would decide the question —"procedural questions which grow out of the dispute and bear on its final disposition, " John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 557, and "allegation [s] of waiver, delay, or a like

Page 80

defense to arbitrability, "Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U.S. 1, 24-25. Following this precedent, the application of the NASD rule is not a "question of arbitrability " but an "aspec[t] of the [controversy] which called the grievance procedures into play. "John Wiley &Sons, Inc., supra, at 559.NASD arbitrators, comparatively more expert about their own rule’s meaning, are comparatively better able to interpret and to apply it. In the absence of any statement to the contrary in the arbitration agreement, it is reasonable to infer that the parties intended the agreement to reflect that understanding. And for the law to assume an expectation that aligns (1)decisionmaker with (2) comparative expertise will help better to secure the underlying controversy’s fair and expeditious resolution. Pp. 83-86.

(b) Dean Witter’s argument that, even without an antiarbitration presumption, the contracts call for judicial determination is unpersuasive. The word "eligible " in the NASD Code’s time limit rule does not, as Dean Witter claims, indicate the parties’ intent for the rule to be resolved by the court prior to arbitration. Parties to an arbitration contract would normally expect a forum based decisionmaker to decide forumspecific procedural gateway matters, and any temptation here to place special antiarbitration weight on the word "eligible " in § 10304 is counterbalanced by the NASD rule that "arbitrators shall be empowered to interpret and determine the applicability " of all code provisions, § 10324. Pp. 86.

261 F.3d 956, reversed.

BREYER, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and STEVENS, SCALIA, KENNEDY, SOUTER, and GINSBURG, JJ., joined. THOMAS, J., filed an opinion concurring in the judgment. O'CONNOR, J., took no part in the consideration or decision of the case.

Alan C. Friedberg argued the cause and filed briefs for petitioner

Matthew D. Roberts argued the cause for the Securities and Exchange Commission as amicus curiae urging reversal. With him on the brief were Solicitor General Olson, Deputy Solicitor General Kneedler, Meyer Eisenberg, Jacob H. Stillman, and Mark Pennington.

Kenneth W. Starr argued the cause for respondent. With him on the brief were Steven' G. Bradbury, Daryl Joseffer

Page 81

Ashley C. Parrish, Donald G. Kempfr Jr., and Bradford D. Kaufman.*

JUSTICE BREYER delivered the opinion of the Court.

This case focuses upon an arbitration rule of the National Association of Securities Dealers (NASD). The rule states that no dispute "shall be eligible for submission to arbitration . . . where six (6) years have elapsed from the occurrence or event giving rise to the . . . dispute." NASD Code of Arbitration Procedure § 10304 (1984) (NASD Code or Code). We must decide whether a court or an NASD arbitrator should apply the rule to the underlying controversy. We conclude that the matter is for the arbitrator.

I

The underlying controversy arises out of investment advice that Dean Witter Reynolds, Inc. (Dean Witter), provided its client, Karen Howsam, when, some time between 1986 and 1994, it recommended that she buy and hold interests in four limited partnerships. Howsam says that Dean Witter misrepresented the virtues of the partnerships. The resulting controversy falls within their standard Client Service Agreement's arbitration clause, which provides:

"All controversies . . . concerning or arising from . . . any account . . ., any transaction . . ., or . . . the construction, performance or breach of . . . any . . . agreement between us . . . shall be determined by arbitration before any self-regulatory organization or exchange of which Dean Witter is a member." App. 6-7.

Page 82

The agreement also provides that Howsam can select the arbitration forum. And Howsam chose arbitration before the NASD.

To obtain NASD arbitration, Howsam signed the NASD's Uniform Submission Agreement. That agreement specified that the "present matter in controversy" was submitted for arbitration "in accordance with" the NASD's "Code of Arbitration Procedure." Id., at 24. And that Code contains the provision at issue here, a provision stating that no dispute "shall be eligible for submission . . . where six (6) years have elapsed from the occurrence or event giving rise to the . . . dispute." NASD Code § 10304.

After the Uniform Submission Agreement was executed, Dean Witter filed this lawsuit in Federal District Court. It asked the court to declare that the dispute was "ineligible for arbitration" because it was more than six years old. App. 45. And it sought an injunction that would prohibit Howsam from proceeding in arbitration. The District Court dismissed the action on the ground that the NASD arbitrator, not the court, should interpret and apply the NASD rule. The Court of Appeals for the Tenth Circuit, however, reversed. 261 F.3d 956 (2001). In its view, application of the NASD rule presented a question of the underlying dispute's "arbitrability"; and the presumption is that a court, not an arbitrator, will ordinarily decide an "arbitrability" question. See, e.g., First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, (1995).

The Courts of Appeals have reached different conclusions about whether a court or an arbitrator primarily should interpret and apply this particular NASD rule. Compare, e.g., 261 F.3d 956 (CA10 2001) (case...

To continue reading

FREE SIGN UP