Supreme Court Splits Claims to be Litigated in Court and Claims to Be Arbitrated

KPMG LLP v. Robert Cocchi et al., No. 10-1521 (U.S. Nov. 7, 2011).

The Supreme Court, in a short opinion, held that if some claims are subject to an arbitration agreement, but others are not, then the plaintiff must proceed with arbitration on the former claims, and in court on the latter claims, even if the result is piecemeal litigation.

In a securities dispute arising from investments that were placed with Bernard Madoff, the Supreme Court finds that lower court erred in holding that since some claims were not covered by the arbitration agreement, all the claims had to be heard in court. Instead, the claims had to be divided up, each into the appropriate forum.

Some excerpts follow:


Agreements to arbitrate that fall within the scope and coverage of the Federal Arbitration Act (Act), 9 U. S. C. §1 et seq., must be enforced in state and federal courts. State courts, then, "have a prominent role to play as enforcers of agreements to arbitrate." Vaden v. Discover Bank, 556 U. S. 49, 59 (2009).

The Act has been interpreted to require that if a dispute presents multiple claims, some arbitrable and some not, the former must be sent to arbitration even if this will lead to piecemeal litigation. See Dean Witter Reynolds Inc. v. Byrd, 470 U. S. 213, 217 (1985). From this it folnlows that state and federal courts must examine with care the complaints seeking to invoke their jurisdiction in order to separate arbitrable from nonarbitrable claims. A court may not issue a blanket refusal to compel arbitration merely on the grounds that some of the claims could be resolved by the court without arbitration. See ibid.

In this case the Fourth District Court of Appeal of the State of Florida upheld a trial court's refusal to compel arbitration of respondents' claims after determining that two of the four claims in a complaint were nonarbitrable. Though the matter is not altogether free from doubt, a fair reading of the opinion indicates a likelihood that the Court of Appeal failed to determine whether the other two claims in the complaint were arbitrable. For this reason, the judgment of the Court of Appeal is vacated, and the case remanded for further proceedings. . . .

. . . . What is at issue is the Court of Appeal's apparent refusal to compel arbitration on any of the four claims based solely on a finding that two of them, the claim of negligent misrepresentation and the alleged violation of the FDUTPA, were nonarbitrable.

In Dean Witter, the Court noted that the Act "provides that written agreements to arbitrate controversies arising out of an existing contract 'shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.' " 470 U. S., at 218 (quoting 9 U. S. C. §2). The Court found that by its terms, "the Act leaves no place for the exercise of discretion by a district court, but instead mandates that district courts shall direct the parties to proceed to arbitration on issues as to which an arbitration agreement has been signed." 470 U. S., at 218 (emphasis in original). Thus, when a complaint contains both arbitrable and nonarbitrable claims, the Act requires courts to "compel arbitration of pendent arbitrable claims when one of the parties files a motion to compel, even where the result would be the possibly inefficient maintenance of separate proceedings in different forums." Id., at 217. To implement this holding, courts must examine a complaint with care to assess whether any individual claim must be arbitrated. The failure to do so is subject to immediate review. See Southland Corp. v. Keating, 465 U. S. 1, 6-7 (1984).

The Court of Appeal listed all four claims, found that two were direct, and then refused to compel arbitration on the complaint as a whole because the arbitral agreement "would not apply to the direct claims." 51 So. 3d, at 1167. By not addressing the other two claims in the complaint, the Court of Appeal failed to give effect to the plain meanning of the Act and to the holding of Dean Witter. The petition for certiorari is granted. The judgment of the Court of Appeal is vacated, and the case is remanded. . . .

– submitted by Alan R. Kabat