567 F.

2d 1174

Harold AMES, Plaintiff-Appellant,

v.
MERRILL LYNCH, PIERCE, FENNER & SMITH, INC. and
Christopher
V. Streit, Defendants-Appellees.
No. 92, Docket 77-7192.

United States Court of Appeals,

Second Circuit.
Argued Oct. 6, 1977.
Decided Dec. 6, 1977.

Barry H. Singer, New York City (Lowenthal, Landau, Fischer & Singer,
P.C., New York City, of counsel), for plaintiff-appellant.
James J. Dolan, New York City, for defendants-appellees.
Before KAUFMAN, Chief Judge, and GURFEIN and MESKILL, Circuit
Judges.
GURFEIN, Circuit Judge:

Plaintiff, Harold Ames, appeals from an order of the district court, Haight, J.,
staying the trial of this action against Merrill Lynch, Pierce, Fenner & Smith,
Inc. ("Merrill Lynch") and Christopher V. Streit, and compelling arbitration.
Plaintiff is seeking money damages for alleged violations of the Commodity
Exchange Act, as amended by the Commodity Futures Trading Commission
Act of 1974, 7 U.S.C. 6b and 6c, and regulations thereunder, basing
jurisdiction on 7 U.S.C. 2 et seq.1

Ames opened his account with Merrill Lynch on November 26, 1975, when he
signed a standard form customer's agreement that Merrill Lynch required all of
its customers to sign. It provided, inter alia, that any controversy between Ames
and Merrill Lynch should be submitted to arbitration under the rules of the New
York Stock Exchange. The complaint alleges that some time after January 1976

the defendant deviated from an agreed commodities program primarily for the
purpose of generating commissions through excessive trading. Plaintiff further
alleges that he received false and misleading reports which the defendants knew
were false and that despite their statements, defendants were trading in a
manner not allowed by their agreement with the plaintiff. On this appeal, we
are not called upon to decide whether the complaint states a claim for relief. It
is agreed that there is an implied cause of action under the Act for a private
remedy.
3

This action was commenced on July 13, 1976. The motion to dismiss the
complaint for lack of subject matter jurisdiction, F.R.Civ.P. 8(a)(1) and 12(b)
(1), or alternatively, to stay the action pending arbitration, 9 U.S.C. 3, was
filed by the defendant on September 3, 1976, and the decision and order of the
district court was filed on March 21, 1977.

The plaintiff opposed a stay of arbitration on the ground that the new
regulations of the Commodity Futures Trading Commission ("Commission"),
17 C.F.R. Part 180, which became effective on November 29, 1976, after the
agreement was executed, were retroactive in their operation and rendered the
agreement to arbitrate null and void; and, alternatively, that under the doctrine
of Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1953), the
protection of investors under the Act required the nullification of compulsory
arbitration of future disputes in a brokerage account agreement.

The district court found that subject matter jurisdiction existed under 28 U.S.C.
1331(a) or as part of the interstate commerce jurisdiction under 28 U.S.C.
1337. In reaching its decision to order arbitration, the district court rejected,
however, both arguments made by the plaintiff in support of his position that
the agreement to arbitrate was void and unenforcible. Judge Haight, in a
thoughtful opinion, conceded that 17 C.F.R. 180.3, in force at the time of his
decision, would render the agreement to arbitrate a nullity.2 He agreed with the
plaintiff that the Commission intended that 180.3 be given retroactive effect.3
He also recognized that a retroactive application of 180.3 would make it
impossible for the defendants to seek arbitration of the instant claims even if
the provision to arbitrate might have been entered into voluntarily. He held,
however, that the application of 180.3 "to antedated Customer Agreements
could lead to unfairness and inequities not intended by the drafters of the
Commodities Exchange Act." He further held, accordingly, "that retrospective
application of 180.3 would serve to prejudice heretofore valid agreements
entered into on the basis of existing legal authority." The judge also refused to
accept the contention that Wilko v. Swan, supra, required nullification of the
arbitration agreement.

A court must apply the law as it exists at the time of its decision, even where
the law has changed during the pendency of the action, unless the statute or
legislative history reveals an intention of prospective application only, or
retroactive application would lead to "manifest injustice." Bradley v. Richmond
School Board, 416 U.S. 696, 711, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974). In
applying this principle to the instant case, we are called upon to determine (1)
whether the Commission had the authority to apply the provisions of 180.3 to
all arbitration agreements; (2) whether the Commission intended the
application of the regulation to arbitration agreements antedating the regulation
and (3) whether, given the authority and intention to make the regulation
effective as to antedated agreements, the particular circumstance that the
dispute arose before the effective date of the regulation nevertheless precludes
its application.

The Act, in dealing with the arbitration of customers' disputes, requires only
that each contract market provide a "fair and equitable procedure through
arbitration or otherwise" for settlement of customers' claims up to $15,000. 7
U.S.C. 7a(11). The same section provides that "the use of such procedure by a
customer shall be voluntary." The Act mentions neither arbitration of claims
over $15,000 nor arbitration outside of the contract market.

The Commission determined that to accomplish the purpose of the Act,

arbitrations that do not fall within the literal scope of 7a(11) should also be
regulated, even in the absence of a specific statutory source. 40 Fed.Reg.
54,430 (Nov. 24, 1975); 41 Fed.Reg. 42,945-47 (Sept. 29, 1976). The Act gives
the Commission authority "to make and promulgate such rules and regulations
as, in the judgment of the Commission, are reasonably necessary to effectuate
any of the provisions or to accomplish any of the purposes of this Act." 7
U.S.C. 12a(5). (emphasis added). The Commission acted under this general
rulemaking authority when it promulgated 180.3. 40 Fed.Reg. 54,432-33
(Nov. 24, 1976). There is no challenge to its power to make such a rule under
its general rulemaking powers.

The Commission's intention regarding the retroactivity of the regulation can

only be ascertained by examining the administrative history of the rule. Shortly
after its creation, in 1975, the Commission undertook an examination of the use
of arbitration in the futures industry. It learned that arbitration was frequently
conducted not under the auspices of the contract markets regulated by the
Commission but through arbitration sponsored by the New York Stock
Exchange or other securities-oriented organizations. It also became apparent
that in many cases arbitration was not undertaken voluntarily by customers, but
that customers were compelled to agree to predispute arbitration clauses as a

precondition to doing business. Indeed, this practice was found to be so

prevalent that a customer might effectively be frozen out of the futures market
if he refused to execute a predispute agreement. 41 Fed.Reg. 27,526 (July 2,
1976); 41 Fed.Reg. 42,945 (Sept. 29, 1976).
10

Initially, the Commission proposed to bar any agreement to arbitrate future

disputes. 40 Fed.Reg. 34,152 (Aug. 14, 1975).4 But it provided that the absolute
bar should not apply to claims or grievances arising out of transactions
occurring prior to the adoption of the regulation and for one year thereafter, if
such transactions were subject to agreements actually entered into before the
adoption of the regulation. 40 Fed.Reg. 54,430, 54,435 (Nov. 24, 1975).

11

The Commission received written comments and took oral testimony on March
5, 1976. At this hearing conducted by the Commission, representatives both of
Merrill Lynch and Shearson Hayden Stone conceded that a customer could not
do futures business with the firm if he refused to sign a predispute arbitration
agreement. Commodity Futures Trading Comm'n, Oral Hearing on Arbitration
and Other Dispute Settlement Procedures 32-34, 37, 82-98. (March 5, 1976);
see generally 41 Fed.Reg. 42,945 (Sept. 29, 1976).

12

After the hearings and comments, the Commission modified its previous
proposal to bar arbitration of future disputes entirely. Instead, the Commission
now proposed to permit the continued use of pre-dispute arbitration
agreements, but only under conditions designed to insure that arbitration was
truly voluntary on the part of the customer. 42 Fed.Reg. 27,526-28 (July 2,
1976).

13

With the withdrawal of the proposal to bar arbitration entirely, the Commission
also withdrew the exemption for disputes arising before or within one year after
the adoption of the regulation under arbitration agreements antedating the
regulation. Instead, the thrust was to include even preexisting arbitration
agreements in the new order of things. Thus, the Commission announced on
July 2, 1976, that "on the effective date, all compulsory arbitration agreements
which do not comply with the amended proposed rule 180.3 will be null and
void, including those heretofore signed by customers." 41 Fed.Reg. 27,527-28.
At the same time, it deleted from the proposed rule the saving clause for
agreements and disputes antedating the regulation.

14

On September 29, 1976, the amended proposed rule was adopted to become
effective on November 29, 1976. 41 Fed.Reg. 42,942-47 (Sept. 29, 1976). At
that time, the Commission reiterated its position that "on the effective date of

proposed 180.3(b), all pre-dispute arbitration agreements that do not satisfy

the conditions set forth in the proposed rule will be null and void, including
those heretofore signed by customers." 41 Fed.Reg. 42,944 (Sept. 29, 1976).
Again, there is no mention of any exemption for disputes already in being.
Indeed, any such exemption would hardly conform to the notion, stated by the
Commission itself, that customers who had entered into agreements before
adoption of the regulation needed and were entitled to the protections of the
rule no less than those customers who signed agreements after November 29,
1976. 41 Fed.Reg. 42,944 n. 18 (Sept. 29, 1976). After reviewing the
administrative history of the rule, and with due respect for the current litigating
position of the Commission on this question, we conclude that 180.3 fairly
read should apply to all arbitration agreements existing at the effective date of
the regulation.
15

The Commission, in finally adopting the rule, considered and rejected the legal
contention raised by some commentators that the abrogation of existing
arbitration agreements which do not comply with proposed 180.3(b) would
violate due process and would be unconstitutional under the obligation of
contracts clause and as an ex post facto law. The constitutional issue, though
necessarily treated in rather summary fashion by the Commission, was treated
correctly. Though we note that Merrill Lynch has limited its argument on this
appeal to the contention that 180.3 should not be interpreted to apply
retroactively to preexisting agreements or disputes, a contention which we have
already disposed of, we also note that the constitutional issue has been
suggested by the holding of the district court that retroactive application of the
regulation to preexisting arbitration agreements would result in "unfairness and
inequities". We therefore conclude this opinion with a brief discussion of the
constitutional questions which might be considered in that regard.

16

The obligation of contracts clause does not, of course, apply to the federal
government, Sinking Fund Cases, 99 U.S. 718, 25 L.Ed. 496 (1878), nor is the
ex post facto law provision of the Constitution applicable to other than criminal
statutes. Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L.Ed. 648 (1798); Galvan v.
Press, 347 U.S. 522, 531, 74 S.Ct. 737, 98 L.Ed. 911 (1954); Harisiades v.
Shaughnessy, 342 U.S. 580, 594-95, 72 S.Ct. 512, 96 L.Ed. 586 (1952). This
leaves for consideration the due process inquiry into the fairness of retroactive
application of the regulation in this case or, as the Court put it in Bradley v.
Richmond School Board, supra, whether retroactive application would result in
"manifest injustice".

17

First, the argument that the regulation should not apply to preexisting disputes
assumes that the arbitration agreement in question was a valid agreement

before the regulation became effective. Based on the Commission's finding,

supra, it may be assumed that if Ames had refused to sign the contract, he
would have been excluded from the futures market and that requiring him to
sign a contract of adhesion in such circumstances made his signing less than
voluntary. We have no doubt that the Act itself, enacted as it was for the
protection of investors, prohibited a surrender of private remedies through an
agreement to arbitrate which was not voluntary in the sense that the penalty for
refusal was exclusion from the market.5 The freedom to contract is often
diminished when an industry is under governmental regulation, F.H.A. v.
Darlington, Inc., 358 U.S. 84, 91, 79 S.Ct. 141, 3 L.Ed.2d 132 (1958), and the
commodities futures industry is such a regulated industry.
18

Moreover, the Commission's position depends upon a distinction which appears

to us to be of no consequence. Even if arbitration were to be considered a
substantive right rather than a procedural remedy, we would perceive no ready
distinction between a case in which the arbitration agreement antedated the
regulation but the dispute did not, and one in which both the agreement and the
dispute antedated the regulation. In either case, the frustration of the intent of
the parties is so unfair as to constitute a violation of due process, or it is not. If,
on the other hand, resort to arbitration is deemed a matter of remedy, the broker
suffers no greater harm from refusal to enforce the arbitration agreement when
the dispute had already arisen (as in this case) than when the dispute arose after
the effective date of the regulation. In either case, no irreparable harm has been
done by a change in the available remedy. Nor has there been any change of
position to the detriment of the broker and certainly no manifest injustice. With
due respect for the present litigating posture of the Commission, we see no
reason to distinguish between cases in which the dispute had already arisen and
cases in which the dispute occurs after the effective date of the regulation.

19

Finally, the Commission's position depends upon an exaggerated estimate of

the constitutional protections afforded to the particular contract right to
arbitrate. Congress had the power under the Commerce Clause to enact the Act
and to declare its purposes. Generally speaking, "(i)mmunity from federal
regulation is not gained through forehanded contracts". Fleming v. Rhodes, 331
U.S. 100, 107, 67 S.Ct. 1140, 1144, 91 L.Ed. 1368 (1947). "(T)he reservation
of essential attributes of sovereign power is also read into contracts as a
postulate of the legal order." Home Building & Loan Ass'n v. Blaisdell, 290
U.S. 398, 435, 54 S.Ct. 231, 239, 78 L.Ed. 413 (1934). When the right claimed
to have been abrogated unfairly is merely a contractual right to a remedy we
have no doubt that Congress has power to foreclose the remedy if it lets stand
an adequate remedy in its place. Cf. Hardware Dealers Ins. Co. v. Glidden Co.,
284 U.S. 151, 159, 52 S.Ct. 69, 76 L.Ed. 214 (1931); Crane v. Hahlo, 258 U.S.

142, 42 S.Ct. 214, 66 L.Ed. 514 (1928). As the Court said in Hahlo, 258 U.S. at
147, 42 S.Ct. at 216, "No one has a vested right in any given mode of procedure
(Railroad Co. v. Grant, 98 U.S. 398, 401, 25 L.Ed. 231; Gwin v. United States,
184 U.S. 669, 674, 22 S.Ct. 526, 46 L.Ed. 741) and so long as a substantial and
efficient remedy remains or is provided due process of law is not denied by a
legislative change. Oshkosh Waterworks Co. v. Oshkosh, 187 U.S. 437, 439, 23
S.Ct. 234, 47 L.Ed. 249." See also Montana Power Co. v. Federal Power
Comm'n, 445 F.2d 739, 747-48 (D.C. Cir. 1970).
20

Arbitration is a form of procedure, not of substantive law. As Judge Cardozo

expressed it:

21
"Arbitration
is a form of procedure whereby differences may be settled. It is not a
definition of the rights and wrongs out of which the differences grow. This statute
did not attach a new obligation to sales already made. It vindicated by a new method
the obligation then existing."
22

Berkovitz v. Arbib & Houlberg, Inc., supra, 230 N.Y. at 270, 130 N.E. at 290.6

23

The power of Congress to abrogate an arbitration procedure previously

contracted for has been upheld. Montana Power Company, supra. The same
result should follow where the procedure is affected by an administrative
regulation within the scope of its delegated authority.7

24

We do not reach the applicability of the rigidly exclusive rule of Wilko v.

Swan, supra, because here the regulatory agency itself sanctions arbitration as a
means for the settlement of disputes and does not find the process itself
antithetical to the purposes of the Act.8 We do rely to some extent on the spirit
of Wilko to sustain the authority of the Commission to restrict the conditions
under which the customer, as a protected investor, surrenders his right to sue in
a court.

25

The order compelling arbitration and staying the action is reversed.

MESKILL, Circuit Judge (dissenting):

26

I respectfully dissent. The arbitration clause involved in this case was valid
when the parties executed the account agreement;1 it was valid when Ames'
claims arose; and it was still valid when Ames commenced the instant action.

27

Although federal law generally, and the Commodity Act in particular, favors

the arbitration of disputes, all are agreed that 17 C.F.R. 180.3 would bar
enforcement of this arbitration clause if it were entered into today. It is also
clear that the Commission intended 180.3 to apply retroactively to at least
some agreements entered into prior to the regulation's effective date.
Obviously, it did not wish to postpone the effectiveness of the regulation until
the expiration of all pre-existing agreements. In its brief as amicus curiae, the
Commission explains that its intent to reach pre-existing agreements did not
extend to cases where a dispute had already arisen at the time the regulation
was adopted. The Commission's use of the dispute as a focal point is not based
on an inconsequential distinction. Before this dispute arose, the right conferred
by the arbitration clause was inchoate. The value of the right was remote and
speculative. It took on real meaning, however, when an actual dispute arose, for
it provided an inexpensive and expeditious means of resolving that dispute.
There would have been nothing particularly unjust about invalidating this
arbitration clause had no dispute arisen, because the parties could have altered
their relationship accordingly; indeed, they might even have entered into a new,
valid arbitration agreement. After the dispute arose, however, the unfairness of
taking away the right to arbitrate is striking.
28

The Commission's interpretation is fair and reasonable. It gives a retroactive

effect to the regulation to the extent necessary to bring about an immediate
change in existing contracts without unnecessarily cutting off accrued rights.
For this reason, I would adopt it.

29

In addition, the decision of the majority violates no less than three basic canons
of construction canons we cannot ignore. First, the Commission's interpretation
of its own regulation must be given "controlling weight unless it is plainly
erroneous or inconsistent with the regulation." Bowles v. Seminole Rock Co.,
325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 (1945). In my view, the
majority, instead of trying to accommodate the Commission's interpretation,
goes to great lengths to evade it,2 without ever showing that "it is plainly
erroneous or inconsistent with the regulation." Second, we should construe new
regulations in such a way as to avoid interference with antecedent rights.
Greene v. United States, 376 U.S. 149, 160, 84 S.Ct. 615, 11 L.Ed.2d 576
(1964). The question before us is not whether the regulation is retroactive, but
to what degree. By following the Commission's interpretation, I would construe
the regulation in a way that would least interfere with antecedent rights. The
majority needlessly opts for the path of greatest interference. Third, a
regulation should be construed, whenever possible, so as to avoid constitutional
issues. See Ashwander v. T.V.A., 297 U.S. 288, 348, 56 S.Ct. 145, 80 L.Ed.
688 (1936) (Brandeis, J., concurring); United States v. Oates, 560 F.2d 45, 80
(2d Cir. 1977); Fine v. City of New York, 529 F.2d 70, 76 (2d Cir. 1975). The

majority goes out of its way to interpret the regulation in a manner that
necessitates the resolution of a difficult due process issue.3
30

I dissent.

Because of the numerous amendments to the Commodity Exchange Act since

its enactment in 1922, we will refer to the original Act and its amendments
collectively as "the Act," and will simply refer to the present codification in 7
U.S.C. 1-18

Section 180.3(b) of 17 C.F.R., promulgated by the Commission, allows

enforcement of arbitration agreements only when certain conditions are met.
These include: 1) that signing the agreement not be made a condition of access
to the market; 2) that the customer sign separately the clause providing for
arbitration; and 3) that there be a warning in bold-face type that the customer is
giving up certain rights to assert his claim in court. These conditions were,
concededly, not met in this case

The Commission filed a brief amicus curiae in which it argues that the district
court was wrong in holding that 180.3 should not be applied to disputes
arising after the date of the regulation under existing agreements, but that it was
probably right in not applying the regulation to disputes antedating the
regulation, as in this case. We recognize that the Commission staff thought it
easier to argue in favor of retroactive application of the regulation to preexisting
contracts if they surrendered the claim to retroactive application to preexisting
disputes. We do not share their concern. In any event, an amicus curiae is no
more a witness than any other advocate. The Commission cites no
administrative precedent, nor does it suggest that there has been any practical
construction by the Commission which it could urge us to accept on the ground
that the Commission has, in the past, so "interpreted" the regulation. We cannot
accept the Commission's current litigating position as an "interpretation" by the
Commission, which the dissenting opinion calls it. See Davies Warehouse Co.
v. Bowles, 321 U.S. 144, 156, 64 S.Ct. 474, 481, 88 L.Ed. 635 (1944)
(administrative ruling challenged immediately upon issuance had not "seasoned
or broadened into a settled administrative practice" to which the court should
defer); Massy v. United States, 214 F.2d 935, 940 (8th Cir. 1954)
("interpretations" of regulation issued after regulation ceased to be in effect, and
after the action was being tried, and never published in the Federal Register,
entitled to no more weight nor persuasiveness than the argument of counsel
appearing in the case); and Fleming v. Van Der Loo, 160 F.2d 906, 912 (D.C.
Cir. 1947) (no particular weight to be given to an administrative interpretation

of a regulation "made after (the) controversy had arisen"); but compare Bowles
v. Seminole Rock & Sand Co., 325 U.S. 410, 417-18, 65 S.Ct. 1215, 89 L.Ed.
1700 (1945) cited by the dissent (Bulletin issued contemporaneously with
regulation and First Quarterly Report to Congress accorded considerable
weight in interpreting the regulation)
4

The rule was originally proposed as 17 C.F.R. 200.3(c), and later

redesignated 17 C.F.R. 180.3(b)

The Commission itself has consistently maintained this position. See 40

Fed.Reg. 29,122 (July 10, 1975) (Interpretative Response to Question 4); and
41 Fed.Reg. 42,944-45 (Sept. 29, 1976). The Commission has reiterated this
position in its amicus curiae brief in this case

We recognize that there are instances in which the application of a law or

regulation which alters available remedies to a case in which the dispute had
already arisen could be so unfair and inequitable as to be unconstitutional. But
identification of such instances depends upon attention to the stage to which the
litigation has progressed and not merely to the fact that the dispute had arisen
before the change in the law. Judge Cardozo made this point in Berkovitz v.
Arbib & Houlberg, 230 N.Y. 261, 130 N.E. 288 (1921), where, in both cases
consolidated for appeal, the arbitration agreements antedated the state's
Arbitration Law, which for the first time allowed enforcement of arbitration
agreements. One of the suits was instituted after the change in the law, and the
arbitration agreement was enforced under the Arbitration Law. The second case
had been instituted four years before enactment of the Arbitration Law; there
had been extensive litigation before the defendant moved, on the eve of trial
and just after enactment of the new law, for a stay of proceedings to allow
arbitration. In considering the applicability of a change in the law to cases
already pending at the time of the change, Judge Cardozo drew an important
distinction. "The change is applicable even (where the case is pending at the
time of the change) if directed to the litigation in future steps and stages
(citation omitted). It is inapplicable, unless in exceptional conditions, where the
effect is to reach backward, and nullify by relation the things already done
(citations omitted)." Id. at 270, 130 N.E. at 290. Judge Cardozo, noting that
"years of costly litigation" would be "rendered futile" by application of the
Arbitration Law to the second of the consolidated cases, held the new law
inapplicable to it. In the case at bar, in contrast, only the complaint and answer,
and a motion to dismiss or to compel arbitration had been filed before the new
regulation became effective. The district court had not yet decided the motion
on the effective date. In Cardozo's terms, the new regulation affected what was
still a "future step" in the litigation. We see no unfairness in applying the new
regulation at this early stage of the litigation, when no substantial costs have

yet been incurred, and no important interlocutory rulings have been made, save
for the stay itself
7

It is, of course, a truism, as the dissenting opinion notes, that we should try to
construe a regulation so as to avoid a constitutional issue. But that does not
mean that if the history of the regulation points a particular way we should
simply expunge the result we have reached because we shrink from facing a
constitutional issue. A litigant is entitled to an honest reading of the regulation.
Avoidance of the constitutional issue may be likened to the proverbial cart; the
fair reading of the regulation to the proverbial horse

In Wilko v. Swan, supra, the Court held that an arbitration agreement between
a brokerage firm and one of its customers would not be enforced when the
customer sought a judicial trial of his claims under the Securities Act of 1933

The majority's suggestion that the arbitration clause might not have been valid
is groundless. No duress was involved, and even if this were a contract of
adhesion the arbitration clause would be denied effect only to the extent
necessary to prevent an unfair result. See J. Calamari & J. Perillo, The Law of
Contracts 3 (1970). There is certainly nothing unfair about the enforcement of
this arbitration clause

In order to avoid giving "controlling weight" to the Commission's view, the

majority characterizes it as a mere "current litigating position" and denies that it
should be afforded the deference due to an "interpretation." It is a mistake to
approach this issue as if the only question were whether the Commission's view
constitutes an "interpretation." The views of an administrative agency are never
controlling in the sense that they have the force of law; rather they
constitute a body of experience and informed judgment to which courts and
litigants may properly resort for guidance. The weight of such a judgment in a
particular case will depend upon the thoroughness evident in its consideration,
the validity of its reasoning, its consistency with earlier and later
pronouncements, and all those factors which give it power to persuade, if
lacking power to control.
Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124
(1944). The issue, therefore, is not whether the judgment constitutes an
"interpretation," but whether it is thorough, rational and consistent with other
pronouncements. If it is, then it is entitled to "controlling weight" regardless of
whether it is denominated an "interpretation."
In applying these standards to the instant case, I should note at the outset that I
can perceive no reason why the views of an administrative agency should be

given either more or less deference depending on where they are expressed. An
amicus brief is as good a place as any. See, e. g., Skidmore v. Swift & Co.,
supra, where the Court relied on "rulings, interpretations and opinions,"
including "the conclusion of the Administrator, as expressed in the brief amicus
curiae." 323 U.S. 139-40, 65 S.Ct. at 164. The majority refers to the
Commission's "current litigating position" as if to suggest that the Commission
is not serious about it or has taken it merely for reasons of expediency. A
reading of the Commission's argument belies that suggestion and demonstrates
that the Commission views the submission of this amicus brief as a serious
undertaking.
When a substantive provision of law is applied prospectively, i. e., affects only
conduct and events arising after its effective date, due process considerations
questions of fairness are unlikely to arise, since conduct can be adjusted
prospectively to comply with the new requirements. Retrospective application
of a statute or rule can, however, raise due process considerations, although the
mere fact or (sic) retroactivity does not, standing alone, make it
unconstitutional. . . . Absent a strong showing of contrary intent, the courts have
generally construed substantive legislation and rules to apply prospectively
only. . . .
While the Commission, in the adoption of Rule 180.3(b), has provided that all
arbitration clauses not complying with the provisions of Rule 180.3(b) would
be null-and-void as of November 29, 1976, the requirements of the rule . . .
were intended to be effective only concerning disputes that had not arisen prior
to that date. . . . Thus, the only element of unfairness that might otherwise have
arguably been involved in the enforcement of the Commission's rule was
eliminated.
Insofar as the Commission's rule applies prospectively to govern the resolution
of all disputes arising after its effective date, firms were given two months after
the adoption of Rule 180.3(b), as a reasonable period in which to bring their
agreements into conformity with the rule's specific requirements. Thereafter,
disputes which subsequently arose would be encompassed by the protections of
Rule 180.3(b) and this was to be true regardless of any prior agreements to the
contrary.
Memorandum of the Commodity Futures Trading Commission, Amicus
Curiae, at 12-13 (footnotes and citations omitted; emphasis added). These
views are thorough, rational and persuasive. Because the Commission has
expressed no other views on the precise issue before us, there is no
inconsistency with any earlier or later pronouncements. Thus, absent some
showing that the Commission's interpretation was "plainly erroneous or

inconsistent with the regulation," I believe we should give it controlling weight.

3

The majority finds it unnecessary to reach the question whether Wilko v. Swan,
346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1953), renders the arbitration clause
invalid. My analysis requires me to reach the issue. I do not consider Wilko
controlling. In that case, the Supreme Court held that arbitration clauses in
margin agreements are void under a provision of the Securities Act of 1933
which prohibits "(a)ny condition, stipulation, or provision binding any person .
. . to waive compliance with any provision" of the Act. The Court said that the
arbitration clause was a "stipulation" that required a customer to "waive
compliance with" the "provision" in the Act for a private damage action. 346
U.S. at 434-35, 74 S.Ct. 182. Wilko has been applied in other situations where a
waiver of a statutory cause of action would undermine a paramount federal
policy. E. g., Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39
L.Ed.2d 147 (1974) (Title VII cause of action cannot be waived by arbitration
clause in collective bargaining agreement). The Commodity Act has no express
provision for a private damage cause of action and no non-waiver clause. Thus,
Wilko is inapplicable. If some paramount federal policy required that there be a
non-waivable private cause of action under the Commodity Act, surely we
would not be required to imply the existence of the cause of action itself