Wilko v. Swan

Wilko v. Swan, 346 U.S. 427 (1953), is a United States Supreme Court decision on the arbitration of securities fraud claims. It had originally been brought by an investor who claimed his broker at Hayden Stone had sold stock to him without disclosing that he and the firm were the primary sellers. By a 7–2 margin the Court held that the provisions of the Securities Act of 1933 barring any waiver of rights under that statute took precedence over the Federal Arbitration Act 's (FAA) requirement that arbitration clauses in contracts be given full effect by federal courts. It reversed a decision to the contrary by a divided panel of the Second Circuit Court of Appeals .

Justice Stanley Forman Reed wrote the majority opinion that relied on the explicit wording in the Securities Act and expressed doubt as to whether arbitration could truly protect the rights of investors. Robert H. Jackson wrote a short concurrence distancing himself slightly from that latter opinion. Felix Frankfurter dissented , taking issue with the majority's hostility to arbitration.

Later the logic of the decision was extended by an appeals court to cover claims made under the Securities Exchange Act of 1934 . The Supreme Court itself later expressed doubt as to the legal soundness of that holding, and in the 1985 case _Shearson/American Express Inc. v. McMahon _ expressly held that it did not. This led lower courts to begin to overrule Wilko as well, and in 1989 the Court itself did so in _Rodriguez de Quijas v. Shearson/American Express Inc. _, part of a series of decisions in the 1980s and ever since that greatly expanded the use of arbitration in dispute resolution.

Although the decision was overruled, one aspect of it survived Rodriguez de Quijas: Reed's _dictum _ that "manifest disregard" for the law would be enough to justify a court's overturning an arbitral award. Later courts and commentators have puzzled over what that meant and whether it arose from the text of the FAA or independently. The Court itself would face that question in the 2008 _Hall Street Associates, L.L.C. v. Mattel, Inc. _, although without resolving it to much satisfaction.

Contents

• 1 Underlying dispute

• 2 Lower courts

  • 2.1 District court

  • 2.2 Appeals court

    • 2.2.1 Majority opinion

    • 2.2.2 Dissent

• 3 Supreme Court

  • 3.1 Majority and concurrence

  • 3.2 Dissent

• 4 Subsequent proceedings

• 5 Subsequent jurisprudence

  • 5.1 Applicability to 1934 Act

    • 5.1.1 Scherk v. Alberto-Culver Co.

    • 5.1.2 Allegaert and early 1980s cases

    • 5.1.3 Shearson/American Express Inc. v. McMahon

    • 5.1.4 Rodriguez de Quijas v. Shearson/American Express Inc.

  • 5.2 "Manifest disregard for the law"

    • 5.2.1 Bernhardt, Steelworkers and early attempts to define

    • 5.2.2 Volt and contractual expansion of review

    • 5.2.3 Hall Street Associates, L.L.C. v. Mattel, Inc.

• 6 Analysis and commentary

• 7 See also

• 8 References

• 9 External links

Underlying dispute

(https://en.wikipedia.org/w/index.php?title=Wilko_v._Swan&action=edit&section=1 "Edit section: Underlying dispute")

The plaintiff , Anthony Wilko, alleged that he had been the victim of a pump and dump scheme perpetrated by his broker and a corporate executive. Early in 1951 he bought 1,600 shares of common stock in Air Associates, Inc., a New Jersey company, for $29,517.54 ($366,131 in contemporary dollars ). He claimed to have done so because his stockbroker at Hayden Stone , Joseph Swan, had represented to him that Air was about to conclude a merger with Borg Warner , which would likely lead to the price increasing by as much as $6 over what it was then trading at when the merger was announced. Swan did not tell Wilko that Haven Page, counsel for Air Associates and a director of that company, was selling a large holding of his, including some of the stock Wilko purchased.

No merger ever happened, and the stock did not appreciate as Swan had predicted. Left holding the bag , Wilko sold the shares at a loss two weeks later. He filed suit in federal court for the Southern District of New York under the Securities Act of 1933 (commonly known in securities law as the 1933 Act), which regulates transactions in the primary market , alleging securities fraud and seeking $3,888 ($48,226 in contemporary dollars ) in damages.

Instead of responding to his complaint, Hayden Stone sought a stay pending the outcome of arbitration , per a clause in Wilko's customer agreement mandating that both parties use that method of dispute resolution . They cited another statute, the Federal Arbitration Act (FAA), which required that courts grant stays for arbitration as long as the dispute was covered by the parties' contractual agreement and the contract was valid. In response, Wilko cited language in the 1933 Act barring any such contractual waiver of an investor's right to take such claims to court.

Lower courts

(https://en.wikipedia.org/w/index.php?title=Wilko_v._Swan&action=edit&section=2 "Edit section: Lower courts")

The motion to stay was denied in district court, but upheld by a divided panel of the Second Circuit Court of Appeals . At all stages of the case the Securities and Exchange Commission (SEC) was granted permission to take an active role in the proceedings as an _amicus curiae _ on Wilko's side.

District court

(https://en.wikipedia.org/w/index.php?title=Wilko_v._Swan&action=edit&section=3 "Edit section: District court")

Judge Henry W. Goddard heard the case. In 1952 he ruled on the defense motion to stay, holding that the 1933 Act's anti-waiver provision rendered the matter beyond the scope of the arbitr

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