![]() We therefore affirm the portion of the district court's order denying arbitration of plaintiffs' 10b-5 claim. In light of this recent decision, Smith Barney's contention is contrary to the law of this circuit and without merit. This court held in Wolfe that claims under § 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 are not subject to resolution pursuant to an arbitration agreement entered into before the claim arose. This precise issue was recently taken up by this court sitting en banc. § 1-14, and overlooked the impact of recent Supreme Court decisions supporting the view that 10b-5 claims are subject to arbitration. Smith Barney argues that the district court failed to comply with the congressional mandate for arbitration in the Federal Arbitration Act, 9 U.S.C.71, 54 L.Ed.2d 82 (1977), the court held that 10b-5 claims are not subject to arbitration. 168 (1953) (claims under § 12(2) of Securities Act of 1933 not subject to arbitration), and recent Eleventh Circuit precedent, see, e.g., Raiford v. In so doing, Smith Barney produced photocopies of securities account agreements which provided that "ny controversy between Smith Barney and arising out of or relating to this contract or the breach thereof, shall be settled by arbitration." The district court granted Smith Barney's motion in part, ordering arbitration of the state law claims, but ruled against arbitration of the claim brought under § 10(b) of the Securities Exchange Act of 1934. Smith Barney moved to compel arbitration of both the 10b-5 claim and the state law claims.Unit B 1981), as support for their argument. All other defenses are subject to arbitration. § 4, only the claim of fraud in the inducement of the arbitration clause itself - rather than fraud in the inducement of the entire agreement - may be adjudicated by a court. ![]() Smith Barney counters that under the Federal Arbitration Act, 9 U.S.C.1960) (in holding that fraud in the inducement of a contract was subject to arbitration, the court distinguished cases of fraud in the factum). Commonwealth Oil Refining Co., 280 F.2d 915, 923 n. does not negate a factual assertion that such signature was not intended to represent a contractual undertaking." See also Lummus Co. 1980), the court stated "he mere execution of a document. Restatement (Second) of Contracts § 163, comment a (1977). In such a case there is no contract at all. Where misrepresentation of the character or essential terms of a proposed contract occurs, assent to the contract is impossible. ![]()
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