OPINION
Defendants Oppenheimer & Cо., Inc. (“Oppenheimer”) and Scott Seskis (“Sesk-is”) (together, “Oppenheimer”) have moved for an order pursuant to Fed.R.Civ.P. 50(b) setting aside the jury verdict received January 21, 1988 and compelling arbitration of all of plaintiff R. Stockton Rush’s (“Rush”) *1046 claims. In the alternative, defendants have moved for an order granting a new trial pursuant to Fed.R.Civ.P. 59(a) or for an order staying these proceedings pending appeal pursuant to Fed.R.Civ.P. 8. Upon the findings and conclusions set forth below, the motion for judgment n.o.v. is granted.
Prior Proceedings
Rush commenced this action on March 4, 1984 against Oppenheimer and Seskis, formerly a broker at Oppenheimer, asserting federal securities, RICO and pendant common law claims. Since the dismissal of Rush’s RICO claim, the arbitrability of Rush’s remaining claims
1
has consumed the attention of the court and the parties and been the subject of several prior opinions, familiarity with which is assumed. A brief review of those opinions is necessary to provide proper perspective for the conclusions here stated. On March 22, 1985, Oppenheimer’s motion to sever Rush’s common law claims and compel their arbitration was denied on the grounds that defendants had waived their right to seek arbitration. The Court of Appeals reversed on the issue of waiver and remanded for a determination of whether the agreement to arbitrate itself was induced by fraud.
2
Rush v. Oppenheimer & Co.,
By the opinion of December 23, 1986, Oppenheimer’s motion for summary judgment on the preliminary issue of fraudulent inducement was denied on the grounds that a material issue of faсt existed as to whether defendants had wrongly induced Rush to agree to arbitrate all claims arising out of his account with Oppenheimer and that under the Supreme Court’s decision in
Prima Paint Corp. v. Flood & Conklin Mfg. Co.,
The Trial
The issue of whether Rush was induced to enter into the arbitration agreement by defendants’ material or fraudulent misstatements was tried before a jury in January 1988. 3 After three days of testimony *1047 and exhibits, defendants’ motion for a directed verdict was denied, and the case was submitted to the jury. The jury found that defendants had made statements that pertained to and were false as to the arbitration clause and that Rush had established the necessary elements for rescission of the agreement to arbitrate. 4 In particular, the jury found that Seskis had told Rush that the Oppenheimer margin agreement “was a formality which Rush was not required to read and was the same as the agreement he had previously signed at Drexel Burnham.” 5
Following the submission of briefs from both parties, oral argument was held on the instant motion on February 4, 1988.
Standards for Judgment NOV
Fed.R.Civ.P. 50(b) provides that “[whenever a motion for a directed verdiсt made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion.” As to the trial court’s review of the jury’s findings, the standards governing a motion for the entry of judgment notwithstanding the verdict in this Circuit are well-settled:
[Wjhen deciding whether to grant a judgment n.o.v., the trial court cannot assess the weight of conflicting evidence, pass on the credibility of the witnesses, or substitute its judgment for that of the jury. Rather, after viewing the evidence in a light most favorable to the non-moving party (giving the non-movant the benefit of all reasonable inferences), the trial court should grant a judgment n.o.v. only when (1) there is such a complete absence of evidence supporting the verdict that the jury’s findings could only have been the result of sheer surmise and conjecture, or (2) there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded men could not arrive at a verdict against him.
Mattivi v. South African Marine Corp, “Huguenot”,
*1048
The principal legal question raised by Oppenheimer’s motion is whether the jury was properly instructed on what has been referred to during the course of this litigation as the
Prima Paint
issue. Section 4 of the Act, 9 U.S.C. § 4, instructs a federal court to order arbitration to proceed once it is satisfied that “the making of the agreement for arbitration ... is not in issue.” As will be discussed more fully below, in
Prima Paint,
the Supreme Court held that “if the claim is fraud in the inducement of the arbitration clause itself — an issue that goes to the ‘making’ of the agreement to arbitrate — the federal court may proceed to adjudicate it. But the statutory language does not permit the federal court to consider claims of fraud in the inducement of the contract generally.”
Prima Paint,
In addition, Oppenheimer contends that there was no evidence to support the jury’s findings as to the elements of fraudulent or material misrepresentation. In particular, Oppenheimer argues that Rush failed to establish (1) that the statements made by Seskis were false, (2) that they were material, (3) that Rush justifiably relied on them, (4) and that Seskis’s statements were actionable statements of opinion. 6
The Prima Paint Issue
Prima Paint
involved an action for rescission of a consulting agreement between a paint manufacturer and a company seeking to acquire its assets. The consulting agreement contained a broad arbitration clause providing that “[a]ny controversy ... arising out of this agreement, or the breach thereof, shall be settled by arbitration in the City of New York in accordance with the rules ... of the American Arbitration Association.” Over Prima’s objection that the consulting agreement had been induced by fraud,
7
the district court stayed the action pending arbitration, and the Court of Appeals for this Circuit dismissed Prima’s appeal. Affirming the decision below, the Supreme Court held that, in passing upon an application under § 3 of the Act for a stay pending arbitration, “a federal court may consider only issues relating to the making and performance of the agreement to arbitrate.”
Prima Paint,
no claim has been advanced by Prima Paint that F & C fraudulently induced it to enter into the agreement to arbitrate “[a]ny controversy or claim arising out of or relating to this Agreement, or the breach thereof.” This contractual language is easily broad enough to encom *1049 pass Prima Paint’s claim that both execution and acceleration of the consulting agreement itself were procured by fraud. Indeed, no claim is made that Prima Paint ever intended that “legal” issues relating to the contract be excluded from arbitration, or that it was not entirely free so to contract.
Prima Paint,
By expressly referring to Prima’s failure to show that it had not intended “legal” issues relating to the making of the principal contract to be subject to arbitration, the Court implicitly adopted the Second Circuit’s rationale that “arbitration clauses as a matter of federal law are ‘separable’ from the contracts in which they are embedded, and that where no claim is made that fraud was directed to the arbitration сlause itself, a broad arbitration clause will be held to encompass arbitration of the claim that the contract itself was induced by fraud.”
Prima Paint,
It follows logically from Prima Paint and § 4 of the Act that a court may order arbitration only when the party opposed to arbitration has not claimed that the arbitration agreement itself was fraudulently procured. Only when the arbitration agreement itself is valid does the Act instruct a federal court to order arbitration. To permit an arbitration panel to resolve a challenge to the validity of an arbitration agreement, whether or not accompanied by challenges to the underlying contract, would require a federal court to relinquish its jurisdiction, and its obligation, under § 4 of the Act to determine that “the making of the agreement for arbitration ... is not in issue.” 8 Therefore, when as here allegations of fraud are directed at the contract as a whole and at the arbitration clause in particular, the federal court must resolve the preliminary issue of the validity of the arbitration agreement.
Neither the Act nor the Court’s analysis in
Prima Paint
support the conclusion that the allegation of fraud must be directed exclusively at the arbitration clause and not at the overall contract. Indeed, the Court in
Prima Paint
explicitly noted that its decision was consistent with its holding in
Moseley v. Electronic & Missile Facilities, Inc.,
*1050
Oppenheimer urges this court to adopt a view of
Prima Paint
that would permit a federal court to adjudicate a claim of fraud as to the making of an arbitration agreement only when the claim of fraud was directed specifically at the аrbitration clause and not at the overall contract. In support of its position, Oppenheimer cites to a line of Supreme Court cases beginning with
Prima Paint
and continuing through the Court’s recent opinion in
Shearson/American Express, Inc. v. McMahon,
that express a strong federal policy in favor of the liberal enforcement of arbitration agreements.
See, e.g., Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc.,
Scherk v. Alberto-Culver
involved a dispute that arose out of an agreement between an American company and a German сitizen for the purchase of three companies organized under the laws of Germany and Liechtenstein, together with the trademark rights of those companies. In response to the American company’s action in federal court alleging that the petitioner had made fraudulent representations concerning the trademark rights, the petitioner moved to stay the action pending arbitration pursuant to a clause in the sales contract which provided that any claims arising out of the agreement or the breach thereof would be referred to arbitration before the International Chamber of Commerce in Paris. Finding that the arbitration clause was, in effect, a specialized kind of forum selection clause,
see The Bremen v. Zapata Off-Shore Co.,
In
Moses H. Cone Hospital v. Mercury Constr. Corp.,
the party that had drafted the principal agreement, which contained an arbitration provision, sought to avoid its terms by filing a declaratory judgment action in state court. No claim having been made that the principal contract, let alone the arbitration clause, was procured through fraud, the Supreme Court affirmed the Fourth Circuit’s order compelling arbitration of the parties’ underlying dispute, notwithstanding the fact that state court proceedings on the underlying dispute were already pending.
Moses H. Cone Hospital,
The federal policy in favor of arbitration agreements has provided the foundation for the Court’s recent expansion of the types of claims that they may encompass.
See, e.g., Mitsubishi Motors,
Unlike arbitration provisions in such other commercial contracts as asset purchase agreements, distribution agreements, licensing agreements, and joint venture agreements, the agreement to arbitrate contained in a securities account agreement
*1052
has not been negotiated between the customer and the broker and cannot reasonably be deemed to represent a
quid pro quo
exchange between two parties. Moreover, brokers are not required as a matter of law to disclose or explain arbitration clauses to the customer.
See Pierson v. Dean, Witter Reynolds, Inc.,
In support of its reading of
Prima Paint
in general and its application to the facts of this cаse in particular, Oppenheimer has cited to decisions from other circuits in which courts have ordered arbitration where the plaintiffs claim of fraudulent inducement pertained to the principal agreement and not
solely
to the arbitration clause contained therein. Each of these cases rests on an interpretation of the Supreme Court’s decision in
Prima Paint
that, as set forth at length above, reaches beyond its holding. For example, in
Schacht v. Beacon Ins. Co.,
Appellant nowhere contends that the alleged fraud in the inducement applied solely to the arbitration clause. Its claim of fraud applies equally to all provisions of the contract. Thus, if the clause is sufficiently broad to encompass a claim of fraud in the inducement, the district court properly concluded that Prima Paint precludes the court from addressing that claim.
Because the decisions to order arbitration in these cases are not based on an analysis of the Act or
Prima Paint
and its progeny, however, they provide little guidance as to what this Circuit might hold were it confronted with the issue of whether a federal court should resolve allegations of fraud based on statements that obviously relate to the principal agrеement but that are alleged, as here, to be fraudulent with respect to the arbitration agreement. Although there are no decisions from this Circuit that are directly in point, in the cases in which the Circuit has followed
Prima Paint
and ordered arbitration, the Circuit has been careful to point out that the party objecting to arbitration had not alleged that the arbitration agreement itself was induced by illegality or fraud.
See Hamilton Life Ins. Co. v. Republic National Life Ins. Co.,
The lack of federal regulations concerning the making of agreements to arbitrate, such as those promulgated under the Commodity Exchange Act, leaves the courts solely responsible for reviewing the validity of the making of such agreements under general principles of contract law. Under these circumstances, the relief that Prima Paint and the Act provide investors from the fraudulent procurement of their аssent to arbitration would be illusory if the federal court did not retain jurisdiction over claims that statements pertaining to the underlying agreement were fraudulent with respect to the arbitration agreement. Thus, Prima Paint requires a federal court to resolve allegations of fraud that pertain to both the principal agreement as a whole and the arbitration agreement in particular.
Rush Failed to Establish a Prima Facie Claim of Fraud as to the Making of the Agreement to Arbitrate
Whether a given allegation can give rise to a prima facie claim of fraud with respect to the making of an arbitration agreement is a matter for the court to decide. 11 As this case demonstrates, this issue can be fraught with ambiguity. On the one hand, if, for example, the сlaim were that Seskis had induced Rush to sign the margin agreement by falsely saying that most investors earn a 50% annual return on their investments with Oppenheimer, then although Rush might have a claim of fraudulent inducement as to the overall agreement, he could not claim that the statement was false as to the arbitration clause in particular. On the other hand, if the claim were that Seskis had told Rush there was no need to read the agreement since he, Rush, would not be signing away any constitutional rights, then Rush would have a colorable claim of fraud with respect to the making of the arbitration agreement itself.
In the instant case, Rush contends that he was fraudulently induced to agree to arbitration when his broker told him to sign without reading a margin agreement that contained аn arbitration clause. Rush testified on both direct and cross-examination that at a meeting at Oppenheimer’s offices with Seskis, Seskis handed him some documents that he was required to sign before opening an account at Oppenheimer. Rush testified that Seskis told him “there was no need to read [the documents], that they were just a formality and they were just like the documents at Drexel.” Trial Transcript (“TT”) at 59. 12 Rush contended at trial that these statements related to and were misleading as to the arbitration clause in particular. However, on the evidence adduced at trial, Rush failed to establish a prima facie claim of fraud in connection with the making of the agreement to arbitrate.
*1054 First, there is no evidence in the record to support the jury’s conclusion that Sesk-is’s statements were false as to the arbitration clause contained in the Oppenheimer margin agreement. Oppenheimer contends, correctly, that there was no evidence to support the jury’s conclusion that Sesk-is’s statement that the documents were “just a formality and just like the documents at Drexel” were false as to the arbitration clause.
The evidence adduced at trial indicated that both the customer account agreement Rush had signed at Drexel and the margin agreement he signed at Oppenheimer contained arbitration clauses. That the Oppenheimer agreement provided for arbitration before the New York Stock Exchange (“NYSE”) or the National Association of securities Dealers whereas the Drexel arbitration clause provided a choice of either the American Arbitration Association or the NYSE did not create a material difference between the two clauses. 13 Moreover, because the facts also showed that Rush had already decided to transfer his account at Drexel to Oppenheimer so as to keep it with Seskis and that executing a customer agreement was a prerequisite to accomplishing that transfer, there was no contrary evidence to show that either Rush or Seskis considered signing the agreements to be anything other than a “formality.”
The jury’s finding that Seskis had told Rush that he did not need to read the margin agreement creates a closer issue with respеct to the arbitration clause. Under a different set of facts, it would not be wholly unreasonable for a jury to find falsity where a broker has told a customer that the latter need not read a contract that contained a waiver of a constitutional right. Here, however, Rush testified that he had signed two Drexel customer account agreements when Seskis was at Drexel, and both contained arbitration clauses. Although Rush claimed that he had not read the Drexel arbitration clauses when he signed the Drexel agreements, he testified that he had never posed an objection to the Drexel agreements or the arbitration clauses contained therein. The facts established that both Seskis and Rush viewed the actual execution of the documents required to transfer Rush’s account to Oppenheimer, as previously agreed, as a formality in an otherwise uninterrupted relationship that had arisen at Drexel. In addition, the evidence showed that the arbitration clauses in the Drexel and Oppenheimer agreements were substantially the same. Under this set of facts, therefore, there was no reasonable basis for the jury’s conclusion that Seskis’s “no-need-to-read” statement was false or misleading as to the arbitration clause itself.
The lack of evidence to support the jury’s decision as to the falsity of Seskis’s statements is a sufficient basis for overturning the verdict. However, even if one were to assume arguendo that there was a sufficient factual basis for the jury’s finding on falsity, the insufficiency оf the evidence as to both materiality and justifiable reliance provides adequate alternate grounds for setting aside the verdict. As for materiality, Rush was required to show that Sesk-is’s statements would have been reasonably likely to induce a reasonable person to manifest his assent to the margin agreement. Further, Rush had to establish that Seskis’s statements, which allegedly kept him from reading the margin agreement and discovering the arbitration clause, were a substantial factor in causing him to sign the margin agreement.
The evidence showed, however, that less than one year prior to the time he executed the Oppenheimer agreements, Rush had freely executed, without objection, customer account agreements at Drexel thаt contained similar arbitration provisions. Thus, the proof showed that the inclusion of an arbitration clause in a customer account *1055 agreement had not previously deterred Rush from signing the agreement. There was no reasonable basis for the jury to conclude otherwise with respect to the Oppenheimer agreement.
Rush also testified that he would not have entered into the Oppenheimer margin agreement if he had known that the arbitration clause might require him to pursue his claims before a tribunal of which Oppenheimer was a member, namely the NYSE. There was, however, no evidentia-ry support for this claim. On the contrary, Rush testified that he had not been aware of arbitration as an alternate form of dispute resolution prior to its appearance as an issue in this litigation. Thus, only through “sheer surmise and conjecture” could the jury conclude that if he had read the arbitration clause Rush would have decided not to sign the margin agreement.
Finally, Rush failed to establish that he justifiably relied on Seskis’s statements in signing the margin agreement without reading it and without objecting to the arbitration clause contained therein. The lack of proof of materiality underscores the absence of proof as to Rush’s reliance; that is, there was no evidence that if he had read the arbitration clause, he would not have signed the margin agreement and thereby committed himself to arbitration. Moreover, Rush did not offer into evidence any facts from which the jury could have inferred that Rush was justified in relying on Seskis’s statements. As the jury was instructed, Rush’s reliance on Seskis’s statements would not have been justified if he could have discovered the falsity of the statement by a cursory examination. Rush testified that only he and Seskis were present in the conference room when he signed the margin agreement. Rush also testified that, although Seskis told him he did not need to read the document, he was not physically prevented from reading the two page document that he held in his hands.
Rush explained his failure to read the document on the grounds that he did not want to appear to be questioning “Seskis’s trust, trustworthiness or truthfulness.” TT at 67. However, Rush did not produce evidence to establish that a confidential, fiduciary or trusting relationship existed between him and Seskis. On the contrary, Rush testified that he had signed a similar agreement containing a similar arbitration clause the very first time he met Seskis. As the Seventh Circuit stated in
Fey v. Walston & Co., Inc.,
In sum, there was no evidence to support the jury’s verdict on the issues of falsity, materiality and justifiable reliance. Rush failed to establish a prima facie case of fraudulent inducement with respect to the making of the agreement to arbitrate. For the reasons set forth above, Oppenheimer’s motion for judgment n.o.v. is granted, and judgment will be entered dismissing the complaint and directing the parties to arbitrate.
The parties are directed to submit judgment on notice within ten (10) days.
IT IS SO ORDERED.
Notes
. Paragraph 16 of the Oppenheimer margin agreement that Rush signed on November 30, 1981 provides in part:
Any controversy between you and the undersigned arising out of, or relating to this agreement, or the breach thereof, or arising out of transactions with you shall be settled by arbitration in accordance with the Rules, then obtaining, of either the National Association of Securities Dealers, Inc. or of the New York Stock Exchange, Inc. as I may elect. If I do not makе such election by registered mail addressed to you at your main office within five days after receipt of notification from you requesting such election, then you may make such election.
. Although Rush’s amended complaint, filed August 23, 1984, did not allege that Rush had been fraudulently induced to agree to arbitration, Rush's memorandum of law filed in opposition to defendants’ motion to sever the common law claims and compel their arbitration alleged that Rush “has no obligation to arbitrate his common law claims because any purported agreement to such provision in defendant Oppenheimer’s form Customer Agreement was ... fraudulently induced_” Rush reiterated this claim in his brief to the Second Circuit. Given the nature of the Court of Appeal’s order on rеmand with respect to the issue of fraudulent inducement, Rush’s initial pleadings did not preclude him from raising the issue in subsequent submissions to the court. Thus, in light of all the circumstances, Rush properly raised an issue of fact as to his claim of fraudulent inducement in connection with the making of the agreement to arbitrate.
Cf. Letizie v. Prudential Bache Securities, Inc.,
.Although it is well-settled that federal common law determines the scope and enforceability of agreements to arbitrate,
see Guinness-Harp
v.
Joseph Schlitz Brewing Co.,
Thus, the jury was instructed on the elements that Rush was required to prove under New York law to void the arbitration agreement on the grounds of either material misstatement or fraudulent misstatement.
.The jury answered in the affirmative to each of the following questions on the Special Verdict Form:
Material Misstatement
1.Did Seskis tell Rush that the margin agreement was a formality which Rush was not required to read and was the same as the agreement he had previously signed at Drexel Burn-ham?
2. If you answered YES to Question 1, did the statement pertain to the arbitration clause?
3. Was the statement made by Seskis false as to the arbitration clause?
4. Was the statement material?
5. Was the statement an opinion?
6. If you answered YES to Question 5, did Seskis stand in a position of trust with respect to Rush?
7. Did Seskis have special knowledge and know that Rush did not and was relying on his skill as an expert?
8. Did Rush justifiably rely on the statement?
Fraudulent Misstatement
9. Did Seskis have the confidence that he stated or implied in the truth of the statement he made to Rush?
10. Did Seskis know that he did not have the basis that he stated or implied for the assertion?
11. Did Rush justifiably rely on the statement made by Seskis?
.Rush had initially opened a securities account with Drexel Burnham Lambert ("Drexel”) in early 1981. Seskis was Rush’s broker at Drexel at the time Rush opened his first account. When Seskis moved from Drexel to Oppenheimer in the fall of 1981, he invited Rush to transfer his account from Drexel to Oppenheimer.
. In accordance with New York law, the jury was instructed that the agreement to arbitrate was revocable if Rush could establish that his consent was induced by either a material misstatement or a fraudulent misstatement. As to his equitable claim for rescission based on material misstatement, Rush did not have to еstablish that Seskis knowingly made false statements but only that Seskis made a statement that was false as to the arbitration clause, that the misrepresentation was material, and that Rush justifiably relied on the misrepresentation.
See Mix v. Neff,
In addition, to establish that Seskis had made fraudulent misstatements concerning the margin agreement, Rush was required to show that Seskis did not have the confidence that he stated or implied in the truth of his statements or that Seskis knew that he did not have the basis that he states or implies for the assertion. See Restatement (2d) Contracts, § 162.
. Prima claimed that Flood & Conklin had fraudulently represented that it was solvent and able to perform its obligations, whereas it was insolvent and planned to file a bankruptcy petition shortly after executing the consulting agreement.
Prima Paint,
. Oppenheimer has not offered any rationale that would justify sending a case to an arbitrator when claims of fraud are directed at both the arbitration agreement and the principal agreement but not when the claim of fraud is directed only at the arbitration agreement. Indeed, the court cannot find the logic in the assumption that is implicit in such a result, namely, that a claim of fraud directed exclusively at the arbitration clause is inherently more deserving of federal adjudication than the identical claim of fraud accompanied by challenges to the principal agreement itself.
. In Moseley, a prime contractor had inserted a clause into its subcontracts that provided for arbitration in New York. The arbitration clause nullified the subcontractor’s rights under the Miller Act to suе on a contract in federal court in the district in which the contract was to be performed, which was Georgia. The subcontractor in Moseley had alleged
"that the subcontracts with him, as well as with other subcontractors, were a fraudulent scheme to obtain a great amount of work and material from him and the other subcontractors without payment therefor and to "brow-, beat” petitioner and his fellow subcontractors *1050 into accepting much less than the value of their claims. One of the means used to effect such a scheme was alleged to be the insertion in the subcontracts of an arbitration clause requiring arbitration of disputes in New York.”
Moseley,
. Pursuant to §§ 5a(ll), 17(b)(10) and 8a(5) of the Commodity Exchange Act, 7 U.S.C. §§ 7a(ll), 12a(5) and 21(b)(10), the Commodity Futures Trading Commission has promulgated regulations to ensure that a customer voluntarily elects to submit to arbitration claims he may have in the future against his broker. 17 C.F.R. § 180.3 provides, in part:
(b) No futures commission merchant, introducing broker, floor broker, commodity pool operator, commodity trading advisor, or associated person shall enter into any agreement or understanding with a customer in which the customer agrees, prior to the time the claim or grievance arises, to submit such claim or grievance to any settlement procedure except as follows:
(1) Signing the agreement must not be made a condition for the customer to utilize the services offered by the futures commission merchant, introducing broker, floor broker, commodity pool operator, commodity trading advisor or associated person.
(2) If the agreement is contained as a clause or clauses of a broader agreement, the customer must separately endorse the clause or clauses containing the cautionary language and other provisions specified in this section;
(6) The agreement must include the following language printed in large boldface type:
THREE FORUMS EXIST FOR THE RESOLUTION OF COMMODITY DISPUTES: CIVIL COURT LITIGATION, REPARATIONS AT THE COMMODITY FUTURES TRADING COMMISSION (CFTC) AND ARBITRATION CONDUCTED BY A SELF-REGULATORY OR OTHER PRIVATE ORGANIZATION.
THE CFTC RECOGNIZES THAT THE OPPORTUNITY TO SETTLE DISPUTES BY ARBITRATION MAY IN SOME CASES PROVIDE MANY BENEFITS TO CUSTOMERS, INCLUDING THE ABILITY TO OBTAIN AN EXPEDITIOUS AND FINAL RESOLUTION OF DISPUTES WITHOUT INCURRING SUBSTANTIAL COSTS. THE CFTC REQUIRES, HOWEVER, THAT EACH CUSTOMER INDIVIDUALLY EXAMINE THE RELATIVE MERITS OF ARBITRATION AND THAT YOUR CONSENT TO THIS ARBITRATION AGREEMENT BE VOLUNTARY.
BY SIGNING THIS AGREEMENT, YOU: (1) MAY BE WAIVING YOUR RIGHT TO SUE IN A COURT OF LAW; AND (2) ARE AGREEING TO BE BOUND BY ARBITRATION OF ANY CLAIMS OR COUNTERCLAIMS WHICH YOU OR [NAME] MAY SUBMIT TO ARBITRATION UNDER THIS AGREEMENT....
. If the court is to proceed under the assumption that arbitration clauses are "separable” from the rest of thе agreement,
see Prima Paint,
. On cross-examination, Rush testified as follows:
Question: You were told not to read [the document]?
Rush: Yes.
Q: When were you told not to read it?
Rush: I started to look at it.
Q: And what were the words that were spoken?
Rush: "There is no need to read it. It's just a formality. It’s the same as at Drexel."
Q: "No need to read it." He didn't say stop reading, did he?
Rush: No, he didn’t.
TT at 125. Seskis testified that he had told Rush to read the forms. TT at 175.
. In
Shearson/American Express v. McMahon,