Stuart G. HAYNSWORTH, et al., Plaintiffs-Appellants, v. THE CORPORATION, a/k/a Lloyd‘s of London, a/k/a Lloyd‘s, a/k/a the Council of Lloyd‘s, a/k/a the Society of Lloyd‘s, a/k/a the Committee of Lloyd‘s, Defendant-Appellee. Charles Robert LESLIE, Plaintiff-Appellee, v. LLOYD‘S OF LONDON, etc., et al., Defendants, Lloyd‘s of London, a/k/a the Corporation of Lloyd‘s, a/k/a Lloyd‘s, a/k/a the Society of Lloyd‘s, a/k/a the Committee of Lloyd‘s, Defendant-Appellant.
Nos. 96-20769, 96-20805.
United States Court of Appeals, Fifth Circuit.
Aug. 29, 1997.
121 F.3d 956
Davis’ proposed interpretation is at odds with the plain language of subpart (b)(2)(A). Needless to say, the 1986 decision in Ford is not a new rule of constitutional law. The legal basis of Davis’ claim has been available since at least 1986; it is only the factual basis of the claim that was previously unavailable. Accordingly, Davis cannot satisfy the criteria of
2.
Davis maintains that we should interpret
3.
Anticipating our holding, discussed supra, that his Ford claim does not satisfy the criteria of
Assuming arguendo that Ford guarantees a federal court determination of a competency-to-be-executed claim, the relevant provisions of AEDPA do not foreclose such review. A federal court determination of the issue can be sought through Supreme Court review of the state court competency proceedings. As noted, the state court‘s opinion did not address Davis’ motion for a competency hearing; Davis chose not to seek such review of that decision. Alternatively, the claim can be raised in an original habeas application to the Supreme Court.
III.
For the foregoing reasons, leave to file a successive habeas application is DENIED.
Stuart G. HAYNSWORTH, et al., Plaintiffs-Appellants,
v.
THE CORPORATION, a/k/a Lloyd‘s of London, a/k/a Lloyd‘s, a/k/a the Council of Lloyd‘s, a/k/a the Society of Lloyd‘s, a/k/а the Committee of Lloyd‘s, Defendant-Appellee.
Charles Robert LESLIE, Plaintiff-Appellee,
v.
LLOYD‘S OF LONDON, etc., et al., Defendants,
Lloyd‘s of London, a/k/a the Corporation of Lloyd‘s, a/k/a Lloyd‘s, a/k/a the Society of Lloyd‘s, a/k/a the Committee of Lloyd‘s, Defendant-Appellant.
Nos. 96-20769, 96-20805.
United States Court of Appeals, Fifth Circuit.
Aug. 29, 1997.
Richard H. Walker, John W. Avery, Securities and Exchange Commission, Washington, DC, for Securities and Exchange Commission, Amicus Curiae.
Jacks C. Nickens, Clements, O‘Neill, Pierce & Nickens, Houston, TX, Bradley Wayne Hoover, Houston, TX, for Plaintiffs-Appellants in 96-20769 and Plaintiff Appellee in 96-20805.
J. Clifford Gunter, III, Martin E. Loeber, Anthony C. Duenner, Bracewell & Patterson, Houston, TX, Harvey Lloyd Pitt, Fried, Frank, Harris, Shriver & Jacobson, New York City, for Defendant-Appellee in 96-20769 and Defendant-Appellant in 96-20805.
Before SMITH, BARKSDALE and BENAVIDES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
These are consolidated appeals in suits by individual underwriters against the Corporation of Lloyd‘s (“Lloyd‘s“),1 the central administrative body of the insurance market known as Lloyd‘s of London. In No. 96-20769, Stuart Haynsworth and thirty-three others appeal the dismissal of their suits based on a contrаctual forum selection/choice-of-law clause and, in the alternative, forum non conveniens (“f.n.c.“). In No. 96-20805, Lloyd‘s appeals the refusal to dismiss on the same grounds. Concluding that the parties are bound by the contracts they entered into, we affirm the judgment of dismissal in No. 96-20769 and reverse and render a judgment of dismissal in No. 96-20805.
I.
Some background as to the nature and structure of Lloyd‘s of London is a necessary introduction to the issues. Lloyd‘s is a 300-year-old market in which individual and corporate underwriters known as “Names” underwrite insurance. The Corporation of Lloyd‘s, which is also known as the Society of Lloyd‘s, provides the building and personnel necessary to the market‘s administrative operations. The Corporation is run by the Council of Lloyd‘s, which promulgates “Byelaws,” regulates the market, and generally controls Lloyd‘s administrative functions.
Names must become members of Lloyd‘s in order to participate in the market. Prospective members are solicited and assisted in the process of joining by Member‘s Agents, whose duties to the Names are fiduciary in nature. Names must pass a means test to ensure their ability to meet their underwriting obligations, post security (typically, a letter of credit), and personally appear in London before a representative of the Council of Lloyd‘s to acknowledge their awareness of the various risks and requirements of membership, and in particular the fact that underwriting in the Lloyd‘s market subjects them to unlimited personal liability.
Participation in the market also requires the execution of a number of contracts and agreements, the most important of which is the General Undertaking, the standardized contract between Lloyd‘s and the individual Names. Names additionally must enter into a Member‘s Agent‘s agreement, the contract that defines the relationship between the Name and his chosen Member‘s Agent, and one or more Managing Agent‘s agreements, which define the relationships between the Name and the Managing Agents of the syndicates he wishes to join. Under the present version of Lloyd‘s Byelaws, each of these agreements must contain clauses designating England as the forum in which disputes are to be resolved and choosing English law as the law governing such disputes.
Prior to 1986, the Genеral Undertaking contained a provision requiring that disputes with agents or other Names be submitted to arbitration in London. Although this provision apparently did not cover disputes between Names and Lloyd‘s itself, it did require arbitration of claims against virtually any other entity, including anyone “not a party to any agreement with [the Name] referring such claims to arbitration.” Following Parliament‘s passage of the Lloyd‘s Act of 1982, all Names, as a condition of continuing to be Names, were required to sign a new General Undertaking (the “1986 General Undertaking“), clause 2 of which replaced the arbitration provision with language that is the focus of this case:
2.1 The rights and obligations of the parties arising out of or relating to the Member‘s membership of, and/or underwriting of insurance business at, Lloyd‘s and any other matter referred to in this Undertaking shall be governed by and construed in accordance with the laws of England.
2.2 Each party hereto irrevocably agreеs that the courts of England shall have exclusive jurisdiction to settle any dispute and/or controversy of whatsoever nature arising out of or relating to the Member‘s membership of, and/or underwriting of insurance business at, Lloyd‘s and that accordingly any suit, action or proceeding (together in this Clause 2 referred to as “Proceedings“) arising out of or relating to such matters shall be brought in such courts and, to this end, each party hereto irrevocably agrees to submit to the jurisdiction of the courts of England and irrevocably waives any objection which it may have now or hereafter to (a) any Proceedings being brought in any such court as is referred to in this Clause 2 and (b) any claim that any such Proceedings have been brought in an inconvenient forum and further irrevocably agrees that a judgment in any Proceedings brought in the English courts shall be conclusive and binding upon each party and may be enforced in the courts of any other jurisdiction.
2.3 The сhoice of law and jurisdiction referred to in this Clause 2 shall continue in full force and effect in respect of
any dispute and/or controversy of whatsoever nature arising out of or relating to any of the matters referred to in this Undertaking notwithstanding that the Member ceases, for any reason, to be a Member of, or to underwrite insurance business at, Lloyd‘s.
Each of the plaintiffs in the appeals before us signed the 1986 General Undertaking and agreed to these forum selection/choice of law provisions, which we refer to as the “FS/COL clause.”
Although underwriting at Lloyd‘s appears generally to have been a profitable endeavor up until the mid-1980‘s, at that time massive liability for pollution and asbestos-related injuries began to change the situation somewhat. According to the plaintiffs, when Lloyd‘s full-time members or “insiders” became aware of these risks, they concocted a sinister scheme to shift the liabilities onto unsusрecting American investors such as the plaintiffs.
In order to escape these liabilities, they claim, the insiders recruited new Names and steered them into syndicates, where they unwittingly underwrote high-risk asbestos reinsurance and toxic waste obligations, of which policies the insiders wanted no part. As a consequence of being placed in these syndicates, the plaintiffs allege, they have incurred large financial losses already and remain liable for a great deal more.
The massive excess losses sustained by Names in the late 1980‘s and early 1990‘s—by Lloyd‘s estimate, something in the neighborhood of $22 billion—have spawned a series of lawsuits throughout the United States. The instant appeals are but the latest chapter in this litigation, a brief summary of which is instructive to the issues before us. In Hirsch v. Vaughan, No. 89-2563, 904 F.2d 704 (5th Cir. May 31, 1990) (unpublished), an American Name sued Lloyd‘s and his agents, claiming common law fraud. We dismissed on the basis of f.n.c., finding the suit “aim[ed] at the heart of the unique self-regulatоry mechanism within Lloyd‘s, which is a product of complex English legislation.” Slip op. at 7.
Various Names next brought suit in the Second, Seventh, and Tenth Circuits, claiming that Lloyd‘s’ above-described alleged conduct violated the federal securities laws. Lloyd‘s defended in part on the ground that the 1986 General Undertaking‘s FS/COL clause—the clause at issue here—requires all disputes to be litigated in England, to which the Names responded that the FS/COL clause constitutes an impermissible attempt to waive the protections of U.S. securities laws. The Second, Seventh, and Tenth Circuits rejected the Names’ arguments, concluding that the securities laws’ antiwaiver provisions did not bar dismissal of the suits.2 A similar contention as to the antiwaiver provisions of the Ohio securities laws was later rejected by the Sixth Circuit.3 More recently, the Fourth Circuit joined this chorus of authority in rejecting the claim that the federal securities statutes render the FS/COL clause void.4 A number of courts аlso have rejected Names’ attempts to avoid their contractual obligations by alleging that their agreement to the 1986 General Undertaking was procured by fraud, or that the FS/COL clause is unconscionable.5
Indeed, aside from one of the courts below in the instant case, only one court—the
The first of the instant cases—No. 96-20769 (“Haynsworth“)—is thus a suit by seventy-seven Names against Lloyd‘s claiming fraud, breach of fiduciary duty, violations of the Texas Deceptive Trade Practice-Consumer Protection Act (the “DTPA“),
The second case—No. 96-20805 (“Leslie“)—arises from Charles Leslie‘s action against Lloyd‘s alleging violations of the federal securities laws (specifically,
II.
Although there previously was some uncertainty on this point, we recently have held that the enforceability of a forum selection clause is a question of law reviewable de novo. Mitsui & Co. (USA), Inc. v. Mira M/V, 111 F.3d 33, 35 (5th Cir.1997). As the parties do not raise it, we therefore need not reach the considerably more enigmatic question of whether motions to dismiss on the basis of forum selection clauses are properly brought as motions under
Before considering the core issues, we must address whether federal or Texas law applies to the FS/COL clause enforceability determination. Federal jurisdiction in Haynsworth is based on diversity; jurisdiction in Leslie is based both on diversity and on the presence of a federal question. Both district courts relied on a combination of federal and Texas authorities in reaching their respective enforceability conclusions, although the Leslie court expressly recognized that federal law governs the question. Other courts that have considered the enforceability of the 1986 General Undertaking‘s FS/COL clause in similar situations have either
The Leslie court‘s conclusion on this issue was correct: Federal law applies to the FS/COL clause enforceability determination. In The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972), a decision we discuss in detail infra, the Court set forth a framework of enforceability standards to be applied by federal courts sitting in admiralty. Id. at 10-15, 92 S.Ct. at 1913-16. Just two years later, the Court implicitly extended The Bremen‘s holding beyond the realm of admiralty by applying it to a claim brought under the federal securities laws. See Scherk v. Alberto-Culver Co., 417 U.S. 506, 518-21, 94 S.Ct. 2449, 2456-58, 41 L.Ed.2d 270 (1974). Following that cue, this court and others have not hesitated to apply these federal enforceability standards in non-admiralty cases.10
Whether The Bremen‘s rules should be applied by federal courts sitting in diversity is a more difficult question, but fortunately one that this circuit recently has resolved. In International Software Sys., 77 F.3d at 114-15, we held that The Bremen‘s rules extend to dismissal determinations based on forum selection clauses in diversity cases, a holding that governs the case at bar. Because of this, the district courts a quo erred insofar as they applied Texas rather than federal law in their respectivе enforceability determinations. The proper law to apply to such questions is federal, whether jurisdiction be based on diversity, a federal question, or some combination of the two.11
III.
A.
In The Bremen, 407 U.S. at 9, 92 S.Ct. at 1912-13, the Court, rejecting as a “parochial concept” the idea that “notwithstanding solemn contracts ... all disputes must be resolved under our laws and in our courts,” held that federal courts presumptively must enforce forum selection clauses in international transactions. Since The Bremen, the Court has consistently followed this rule and, in fact, has enforced every forum selection clause in an international contract that has come before it.12
Public policy weighs strongly in favor of The Bremen‘s presumption, because uncertainty as to the forum for disputes and applicable law “will almost inevitably exist with respect to any contract touching two or more countries.” Scherk, 417 U.S. at 516, 94 S.Ct. at 2455. That is, “[t]he elimination of all such uncertainties by agreeing in advance on a forum acceрtable to both parties is an indispensable element in international trade, commerce, and contracting.” The Bremen, 407 U.S. at 13-14, 92 S.Ct. at 1915. As we recently stated in a case implicating these concerns, “[t]he Supreme Court has therefore instructed American courts to enforce [forum selection and choice of law] clauses in the interests of international comity and out of deference to the integrity and proficiency of foreign courts.” Mitsui, 111 F.3d at 35 (citing Mitsubishi, 473 U.S. at 629, 105 S.Ct. at 3355-56).
The plaintiffs rest their arguments on the first and fourth of these exceptions. Specifically, they allege that the General Undertaking‘s FS/COL clause is unenforceable because of fraud and overreaching, and violates both federal and Texas public policy. The Haynsworth district court rejected these arguments, enforced the clause pursuant to The Bremen‘s presumption, and dismissed the suit. The Leslie district court did the opposite, concluding that Leslie had established he was induced into agreeing to the clause through fraud and overreaching and that the clause violates both United Stаtes and Texas public policy.
B.
Fraud and overreaching must be specific to a forum selection clause in order to invalidate it. That is, The Bremen‘s exception for unreasonable fraud or overreaching does not mean that any time a dispute arising out of a transaction is based upon an allegation of fraud ... the clause is unenforceable. Rather, it means that an arbitration or forum-selection clause in a contract is not enforceable if the inclusion of that clause in the contract was the product of fraud or coercion. Scherk, 417 U.S. at 519 n. 14, 94 S.Ct. at 2457 n. 14 (emphasis in original) (citing Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967)). Thus, allegations of such conduct as to the contract as a whole—or portions of it other than the FS/COL clause—are insufficient; the claims of fraud or overreaching must be aimed straight at the FS/COL clause in order to succeed.13
The plaintiffs protest that Prima Paint dealt exclusively with arbitration clauses under the United States Arbitration Act and that there is no authority for the proposition thаt the above rule applies to forum selection or choice-of-law clauses as well. This flatly contradicts the language of Scherk, which at a minimum extended the rule of Prima Paint to forum selection clauses in general. See Scherk, 417 U.S. at 519 n. 14, 94 S.Ct. at 2457 n. 14. Moreover, Scherk and later courts have noted that “foreign arbitration clauses are but a subset of foreign forum selection clauses in general.” Vimar Seguros, 515 U.S. at 534, 115 S.Ct. at 2326 (citing Scherk, 417 U.S. at 519, 94 S.Ct. at 2457).
In Mitsui, we rebuffed a similar attempt to distinguish between arbitration and forum selection/choice-of-law clauses for enforceability purposes, noting that even on the Vimar Seguros‘s dissent‘s view, “in relevant aspects, there is little difference between the two.” Mitsui, 111 F.3d at 36 (quoting Vimar Seguros, 515 U.S. at 548 n. 7, 115 S.Ct. at 2333 n. 7 (Stevens, J., dissenting)). The proposed distinction contradicts both Supreme Court and Fifth Circuit precedent and consequently must be rejected.
It follows that, to the extent the plaintiffs claim fraud and overreaching in aspects of the General Undertaking other than the FS/COL clause, their allegations are irrelevant to enforceability. As Lloyd‘s
The plaintiffs argue that, because the FS/COL clause was the primary difference between the 1986 General Undertaking and previous agreements, their evidence of fraud regarding the General Undertaking as a whole is actually evidence as to the FS/COL clause specifically. We note initially that the FS/COL clause is not the only difference between the 1986 and pre-1986 General Undertakings; the 1986 version added a provision by which the Names agreed to abide by the dictates of, and Byelaws promulgated under, the Lloyd‘s Act of 1982, which substantially altered the regulatory regime in which Lloyd‘s operates. The 1986 General Undertaking also, for the first time, required Names to obey “any direction given or provision or requirement made or imposed by the Council,” which at the time was a relatively new entity created by the Lloyd‘s Act of 1982.
Moreover, the inclusion of the FS/COL clause was not the radical change that plaintiffs claim it to be, as the previous version of the General Undertaking had contained an arbitration clause requiring that disputes with other Names or agents be arbitrated in London. Although the FS/COL clause in the 1986 General Undertаking is greater in scope, we have already noted that such arbitration clauses are merely a specialized subset of the larger group of forum selection clauses. In short, the pre- and post-1986 General Undertakings are sufficiently different that the 1986 version cannot be said merely to have added the FS/COL clause. The allegations that go to fraud or overreaching in the General Undertaking as a whole are just that: allegations that go to the General Undertaking as a whole. Scherk and Prima Paint render them inapposite.
Precious little remains of the plaintiffs’ contentions after they run the gamut of this requirement. If any argument as to fraud plausibly survives, it is that Lloyd‘s failed adequately to disclose the effects of the FS/COL clause when it presented the plaintiffs with the version of the General Undertaking that included it. According to the plaintiffs, they were fraudulently induced to sign the 1986 General Undertaking in reliance on assurances by Lloyd‘s14 that the new agreement contained “fеw variations of substance” from the old.15 This, they claim, was a fraudulent omission specifically as to the FS/COL, because nothing in Lloyd‘s description of these changes mentioned it.
We find this argument unpersuasive. In Bhatia v. Johnston, 818 F.2d 418 (5th Cir.1987), a plaintiff attempted to avoid an arbitration clause in a brokerage agreement by claiming he had been told the clause was “the same as” that in his previous contract. Id. at 422 n. 5. Applying Prima Paint, we held that whatever misrepresentations might have been made were “related to the entirety” of the new agreement and therefore were insufficient to block enforcement of the clause. Id. at 422. The plaintiffs’ argument is at
Alternatively, the fraud claim fails, even if plaintiffs’ contentions somehow survive Prima Paint. The FS/COL clause was straightforward and was a prominent part of the one-and-one-half-page General Undertaking, and the plaintiffs are presumed to have known what it said.16 The plaintiffs were sophisticated parties contracting voluntarily; it is not for us to impose a duty upon one party to counsel the other as to the risks and benefits of a contract. Indeed, as Lloyd‘s points out, there was nothing to explain. The duty was the plaintiffs’ to read the plain terms of the agreement, not Lloyd‘s to lecture them about it.
These conclusions effectively dispose of the plaintiffs’ claims of overreaching, as well. In essence, they argue that Lloyd‘s engaged in overreaching by forcing the Names to choose between signing a contract with the FS/COL clause and terminating their membership as Names. The Leslie district court agreed, reasoning that Lloyd‘s “take-it-or-leave-it offer” unfairly deprived Leslie of “the oрtion of rejecting with impunity.”
We emphatically disagree. Although there is some ambiguity as to the precise boundaries of what constitutes “overreaching,” a nebulous concept at best,17 we can state with certainty that none occurred here. As Lloyd‘s points out, the argument that the 1986 General Undertaking constituted a “take-it-or-leave-it offer” goes to the contract as a whole and therefore cannot overcome the FS/COL clause under Prima Paint. As we recently stated in the context of an arbitration clause in an employment contract, the claim that an agreement “is an unconscionable contract of adhesion is an attack on the formation of the contract generally, not an attack on the arbitration clause itself.” Rojas v. TK Communications, Inc., 87 F.3d 745, 749 (5th Cir.1996).
Even were we not to apply Prima Paint, Carnival Cruise Lines would compel us to reject this argument on the merits. There, the Court enforced a forum selection clause against an unsophisticated cruise ship passenger, notwithstanding the disparity in the parties’ bargaining power and the fact that the contract had not been subject to negotiation. 499 U.S. at 593-95, 111 S.Ct. at 1527-28. Aside from the fact that Haynsworth, Leslie, and the other plaintiffs are considerably more sophisticated than was the passenger in Carnival Cruise Lines, we find nothing of substance to distinguish that case from the case at bar. Indeed, a careful examination of the evidence underlying the plaintiffs’ claims reveals that the 1986 General Undertaking was an agreement considerably more equitable than the one at issue there. Carnival Cruise Lines thus compels us to hold the plaintiffs to their respective contracts, including the FS/COL clause to which they duly agreed.18
C.
The plaintiffs also contend that the General Undertaking‘s FS/COL clause is “unreasonable” because it contravenes public
The antiwaiver provisions are straightforward. Section 14 of the Securities Act of 1933 provides: “Any condition, stipulation, or provision binding any person acquiring any security to waive compliance with any provision of this subchapter or of the rules and regulations of the Commission shall be void.”
As a thrеshold matter, Lloyd‘s argues that nothing Names acquire in the course of their relationship with Lloyd‘s constitutes a “security” within the meaning of federal and Texas securities laws and that the plaintiffs are not “consumers” who have acquired “services” within the meaning of the DTPA. See
As with the fraud and overreaching claims, the basic framework for analyzing the plaintiffs’ Texas and federal public policy arguments is the strong presumption of enforceability established by The Bremen and Scherk, and the highest hurdle they must overcome to demonstrate “unreasonableness” is Scherk. There, the plaintiff alleged violations of § 10(b) of the Exchange Act аnd attempted to resist enforcement of an arbitration clause on the basis of the act‘s antiwaiver provision, one of the statutes invoked here. Applying The Bremen, the Court rejected this argument and along with it the view that
only United States laws and United States courts should determine this controversy in the face of a solemn agreement between the parties that such controversies be resolved elsewhere.... To determine that “American standards of fairness” ... must nonetheless govern the controversy demeans the standards of justice elsewhere in the world, and unnecessarily exalts the primacy of United States law over the laws of other countries.
Scherk, 417 U.S. at 517 n. 11, 94 S.Ct. at 2456 n. 11. The Court went on to reiterate The Bremen‘s rejection of the “parochial” notion that all disputes in international business transactions “must be resolved under our laws and in our courts,” reasoning that “[w]e cannot have trade and commerce in world markets ... exclusively on our terms, governed by our laws and resolved in our courts.” Id. at 519, 94 S.Ct. at 2457 (quoting The Bremen, 407 U.S. at 9, 92 S.Ct. at 1912-13).
More generally, we must tread cautiously before expanding the operation of U.S. securities law in the international arena. The regulatory regime Congress has constructed is “designed to protect American investors
This is particularly so in the case of England, a forum that American courts repeatedly have recognized to be fair and impartial.20 We have not hesitated to force plaintiffs to litigate their claims of securities fraud in that nation, differences between English and American remedies notwithstanding.21
Beginning with the presumption that the FS/COL clause is binding, and recognizing the plaintiffs’ “heavy burden of proof” to overcome this, The Bremen, 407 U.S. at 17, 92 S.Ct. at 1917, we thus рroceed to consider the plaintiffs’ arguments against enforcement of the clause. They initially attempt to distinguish Scherk on the ground that the Names’ transactions with Lloyd‘s were not “international business transactions.”
The most charitable adjective with which to describe this argument is “disingenuous.” Each of the American plaintiffs signed a series of agreements with English entities and traveled to England as part of the process of becoming a Name. We need not dwell on this contention any further, it being sufficiently obvious that an agreement is “international” when it involves an American Name‘s underwriting international insurance policies in an English market, pooling resources with other Names from over eighty countries, and all the while explicitly agreeing to be bound by English law.
The plaintiffs also aver that Scherk and the Supreme Court‘s other forum selection cases are distinguishable in that they dealt with forum selection clauses unaccompanied by choice-of-law clauses. The claimed significance of this is that a forum selection clause,
in isolation, acts only to deprive the aggrieved party of a “procedural right” to a particular forum, whereas a forum selection clause in combination with a choice-of-law clause impermissibly extinguishes both a “procedural right” and a more important “substantive right” to the remedies afforded by a particular statute or common-law cause of action. The Ninth Circuit placed substantial weight on this distinction, ultimately concluding that the FS/COL clause “require[s] the waiver of substantive provisions of the 1933 and 1934 Acts and [is] consequently void.” Richards, 107 F.3d at 1428.
Plaintiffs are at least partially wrong in their premise, for Scherk involved a foreign forum selection clause accompanied by a choice-of-law clause selecting the law of Illinois. Scherk, 417 U.S. at 508, 94 S.Ct. at 2451-52. Presumably, this meant that the parties could rely on the protections of the federal securities laws as well, but the decisiоn did not rest on this assumption. Instead, the Court roundly rejected the notion that a forum selection clause can be circumvented by a party‘s asserting the unavailability of American remedies. See id. at 517-19, 94 S.Ct. at 2456-57.
The Scherk Court‘s failure to draw the distinction the plaintiffs urge seems eminently sensible to us, for surely it is obvious that, even in the absence of a choice-of-law clause, enforcement of a foreign forum selection clause frequently will result in the application of foreign law to the dispute. See Scherk, 417 U.S. at 519 n. 13, 94 S.Ct. at 2457 n. 13. Choice of law is often one of the reasons for obtaining a forum selection clause. The Bremen, 407 U.S. at 13-14 n. 15, 92 S.Ct. at 1915 n. 15.
It cannot be the case that, by virtue of a foreign forum selection clause standing alone, the domestic party to an international business agreement retains a “substantive right” to assert the remedies and protections of American statutes in the contractually agreed-upon forum. The sophisticated individuals entering into thesе agreements are
It is unrealistic to expect a foreign tribunal even to entertain this notion, when faced with parties that have selected the tribunal as their forum. There is nothing talismanic about American law, and certainly nothing that compels foreign courts to “exalt [its] primacy” merely because it provides remedies that their laws do not. Scherk, 417 U.S. at 517 n. 11, 94 S.Ct. at 2456 n. 11.
The plaintiffs protest that Mitsubishi and Vimar Seguros support their theory about combination forum selection/choice-of-law clauses extinguishing substantive rights. It is a strained reading of these decisions that they urge on us, however.
In Mitsubishi, 473 U.S. at 640, 105 S.Ct. at 3361, the Court ordered Japanese arbitration of an American automobile dealer‘s antitrust claims against its franchisor, notwithstanding that the foreign arbitrator might misapply U.S. law. The key to the decision wаs the same driving force that was behind The Bremen and Scherk: “concerns of international comity, respect for the capacities of foreign and transnational tribunals, and sensitivity to the need of the international commercial system for predictability in the resolution of disputes....” Id. at 629, 105 S.Ct. at 3355 (citing Scherk, 417 U.S. 506, 94 S.Ct. 2449, 41 L.Ed.2d 270). Nonetheless, in dictum, the Court stated that “in the event the choice-of-forum and choice-of-law clauses operated in tandem as a prospective waiver of a party‘s right to pursue statutory remedies for antitrust violations, we would have little hesitation in condemning the agreement as against public policy.” Id. at 637 n. 19, 105 S.Ct. at 3359 n. 19. Pointing to this statement, the plaintiffs urge the same conclusion the Ninth Circuit reached in Richards, 107 F.3d at 1427, i.e., that the General Undertaking‘s FS/COL clause should be condemned here.
We do not read Mitsubishi so broadly. Setting aside the fact that it is dictum, the quoted statement, by its own terms, is limited to the antitrust context, as is Mitsubishi more generally.
This circuit expressly has recognized that “the antitrust laws of the United States embody а specific congressional purpose to encourage the bringing of private claims in the American courts in order that the national policy against monopoly may be vindicated.” 22 Indeed, it is precisely this “crucial point of difference” between antitrust suits and other types of actions, Baumgart v. Fairchild Aircraft Corp., 981 F.2d 824, 829-30 (5th Cir.1993), that led us to prohibit f.n.c. dismissals in antitrust cases while allowing them in others.23 Properly read in conjunction with Scherk—a case in which the antiwaiver provisions of the federal securities laws were directly before the Court—this single sentence from Mitsubishi cannot be given the sweeping implications that the plaintiffs and the Ninth Circuit attribute to it.24
Vimar Seguros, a case involving the enforceability of forum selection and choice of law clauses under the Carriage of Goods by Sea Act (“COGSA“),
But COGSA, unlike the American securities statutes or the Texas laws, is “the culmination of a multilateral effort” to establish such rules, an international scheme the very
Our judgment is also informed by the fact that the Supreme Court has never overruled, or indeed even expressly limited, either The Bremen or Scherk. Quite simply, Scherk rejected the idea that the antiwaiver provisions of U.S. securities laws bar enforcement of forum selection clauses in international transactions. As Scherk is directly on point, we are bound to follow it, regardless of whether we believe (or, as the case may be, do not believe) that later decisions have undermined its rationale.26
Haynsworth and Leslie‘s remaining objections to the enforcement of the FS/COL clause essentially echo the Ninth Circuit‘s view: “The available English remedies are not adequate substitutes for the firm shields and finely honed swords provided by American securities law.” Richards, 107 F.3d at 1430. The American system of securities regulation may be the broadest, most comprehensive of all. We refuse to accept the notion, however, that the sheer scope of U.S. securities law automatically renders that of other countries inferior or should provide American investors a means to escape their contractual obligations when they begin to prove too costly.
The view that every foreign forum‘s remedies must duplicate those avаilable under American law would render all forum selection clauses worthless and would severely hinder Americans’ ability to participate in international commerce. We wholeheartedly adopt the Second Circuit‘s response to the plaintiffs’ contention:
It defies reason to suggest that a plaintiff may circumvent forum selection and arbitration clauses merely by stating claims under laws not recognized by the forum selected in the agreement. A plaintiff simply would have to allege violations of his country‘s tort law or his country‘s statutory law or his country‘s property law in order to render nugatory any forum selection clause that implicitly or explicitly required the application of the law of another jurisdiction. We refuse to allow a party‘s solemn promise to be defeated by artful pleading.
Roby, 996 F.2d at 1360 (emphasis in original).27
Careful weighing of these considerations leads us to join the majority of courts that have considered this issue in concluding that the antiwaiver provisions of U.S. securities laws do not bar enforcement of the FS/COL clause. The same reasoning compels an identical conclusion as to the antiwaiver provisions of the Texas Securities Act and the DTPA.
As other courts have observed, English law provides a variety of protections for fraud and misrepresentations in securities transactions.28 As the Allen court recognized, for example, English law permits Names to bring “claims based on the tort of deceit, breach of contract, negligence, and breach of fiduciary duty,” with possible “injunctive, declaratory, recissionary, and restitutionary relief.” 94 F.3d at 929 (citing Shell, 55 F.3d at 1230-31).
Indeed, in some respects English law appears to provide even greater protections
Having previously enjoyed the benefits of Lloyd‘s contractual obligations to them, the plaintiffs must now live up to theirs as well. The FS/COL must be enforced, and the plaintiffs as “representative[s] of the American business community” required to “honor [their] bargains.” Mitsubishi, 473 U.S. at 640, 105 S.Ct. at 3361 (quoting Alberto-Culver Co. v. Scherk, 484 F.2d 611, 620 (7th Cir.1973) (Stevens, J., dissenting), rev‘d, 417 U.S. 506, 94 S.Ct. 2449, 41 L.Ed.2d 270 (1974)). Because the Leslie district court found otherwise, its judgment is reversed and remanded with instructions to dismiss. The Haynsworth district court‘s judgment of enforceability is affirmed.
IV.
Finally, the Haynsworth plaintiffs claim that the district court erred in dismissing their claims without permitting additional discovery and conducting an evidentiary hearing on the issue of whether the FS/COL clause had been procured by fraud. We find little merit in the discovery claim, particularly given their halfhearted response to the district court‘s invitation to submit “anything they wanted the court to consider.” In large part, the Haynsworth plaintiffs appear to have relied on the record in Leslie, a great deal of which has no direct relevance to their claims.
A party seeking a continuance to conduct discovery must demonstrate “both why it is currently unable to present evidence creating a genuine issue of fact and how а continuance would enable the party to present such evidence.” Liquid Drill, Inc. v. U.S. Turnkey Exploration, Inc., 48 F.3d 927, 930 (5th Cir.1995). A refusal to grant such a continuance is reviewable for abuse of discretion only. Id. A careful review of the record persuades us that this standard has not been met, so we find no error.
The plaintiffs fare no better on their claim that Moseley v. Electronic & Missile Facilities, 374 U.S. 167, 83 S.Ct. 1815, 10 L.Ed.2d 818 (1963), required the district court to conduct an evidentiary hearing. In Moseley, the party resisting enforcement of an arbitration clause attacked not only the overall agreement but also the arbitration clause specifically, claiming that it had been procured by fraud. Id. at 169, 83 S.Ct. at 1816-17. The Court, noting that the allegation of fraud went straight to the arbitration clause itself, held that that issue must first be adjudicated at “trial” before the clause could be enforced. Id. at 171, 83 S.Ct. at 1817-18. This is entirely consistent, of course, with Prima Paint and Scherk‘s requirement that fraud must go specifically to a forum selection or arbitration clause in order to bar enforcement.
Here, as in Moseley, the plaintiffs claim fraud in the inducement of the FS/COL clause. As we have explained, howevеr, nothing in their more specific allegations supports this claim. At best, what fraud they allege goes only to the 1986 General Undertaking as a whole. Even reading Moseley literally, to require a “trial” rather than simply a summary judgment or other proceeding in which the parties are permitted to submit evidence—an interpretation the validity of which we need not and do not reach—the plaintiffs have not met the threshold requirement that their claims go specifically to the clause. The district court properly declined to hold an evidentiary hearing.
V.
Because we find the FS/COL clause of the 1986 General Undertaking enforceable, we need not consider whether the suits should also be dismissed on the ground of f.n.c. For the reasons stated above, we AFFIRM the judgment of dismissal in No. 96-20769 and REVERSE and RENDER a judgment of dismissal in No. 96-20805.