*

Honorable John R. Gibson, Senior U.S. Circuit Judge for the

Eighth Circuit, sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 94-4984.

KOTAM ELECTRONICS, INC., Plaintiff-Appellee,

v.

JBL CONSUMER PRODUCTS, INC., Defendant-Appellant.

July 28, 1995.

Appeal from the United States District Court for the Southern

District of Florida. (No. 94-779-CIV-FAM), Federico A. Moreno,

Judge.

Before HATCHETT and EDMONDSON, Circuit Judges, and JOHN R. GIBSON*

,

Senior Circuit Judge.

HATCHETT, Circuit Judge:

In this appeal, the sole issue we address is whether the

holding in Cobb v. Lewis, 488 F.2d 41 (5th Cir.1974) that antitrust

claims are non-arbitrable remains controlling precedent in this

circuit in light of intervening decisions of the United States

Supreme Court. We affirm the district court's ruling that Cobb

controls.

FACTUAL AND PROCEDURAL BACKGROUND

From 1984 to 1992, Kotam Electronics, Inc. (Kotam), a dealer

and distributor of consumer electronics products, entered into

annual dealer and distributor contracts with JBL Consumer Products,

Inc. (JBL). These contracts contained identical provisions

requiring the parties to submit claims asserting violations of the
 1

The provisions provide, in relevant part:

22. GOVERNING LAW AND ARBITRATION

b. Any controversy or claim arising out of or relating

to this Agreement, or the breach or validity

thereof, whether at common law or under statute,

including without limitation claims asserting

violation of the antitrust laws, shall be settled

by final and binding arbitration in accordance

with the Rules for Commercial Arbitration of the

American Arbitration Association ("AAA") in effect

at the time of the execution of this Agreement. 

Judgment upon the award rendered by the Arbitrator

may be entered in any court having jurisdiction

thereof. 

 2

The district court adopted the magistrate judge's finding

that "Kotam does not deny that the claims at issue arose out of

the Dealer and Distributor Agreements." Kotam does not challenge

this finding on appeal. 

antitrust laws to binding arbitration.1 Despite the arbitration

provisions, Kotam brought this antitrust action alleging that JBL

engaged in price discrimination against Kotam and other dealers and

distributors in violation of the Robinson-Patman Act, 15 U.S.C. §

13.2 JBL moved to dismiss the complaint or, in the alternative, to

stay judicial proceedings pending arbitration pursuant to section

3 of the Federal Arbitration Act (FAA), 9 U.S.C. § 3.

The magistrate judge issued a report recommending that the

district court deny JBL's motion. The magistrate judge found that

Cobb v. Lewis, 488 F.2d 41 (5th Cir.1974), which held that

antitrust claims are non-arbitrable, constituted binding precedent

on this issue. In so doing, the magistrate judge rejected JBL's

contention that the Supreme Court has effectively overruled Cobb,

thus rendering Kotam's antitrust claims arbitrable. The district

court adopted the magistrate judge's report and recommendation.

This appeal followed.
 3

The court in Cobb recognized "an "exception' to this "rule'

against arbitration of antitrust issues for situations "when the

agreement to arbitrate is made after the dispute arises.' " 

Cobb, 488 F.2d at 47 (quoting Cobb v. Network Cinema Corp., 339

F.Supp. 95, 99 (N.D.Ga.1972)). This exception has no application

to this case. 

DISCUSSION

We have jurisdiction pursuant to section 16 of the FAA, which

provides that "[a]n appeal may be taken from an order refusing a

stay of any action under section 3 [of the FAA]." 9 U.S.C. §

16(a)(1)(A). The district court's denial of JBL's motion to stay

judicial proceedings pending arbitration involved only a question

of law. Therefore, we review the district court's decision de

novo. See Luckie v. Smith Barney, Harris Upham & Co., Inc., 999

F.2d 509, 512 (11th Cir.1993).

In Cobb, the former Fifth Circuit "addressed [the] question[

] of the appropriateness of arbitration of issues arising under the

federal antitrust laws." Cobb, 488 F.2d at 47. The Fifth Circuit

concluded that "as a general matter, antitrust claims are not

appropriate subjects of arbitration." Cobb, 488 F.2d at 47.3

 In

reaching this holding, the Cobb court followed the reasoning of the

Second Circuit's opinion in American Safety Equipment Corp. v. J.P.

Maguire & Co., 391 F.2d 821 (2d Cir.1968):

The American Safety Equipment Corp. case outlined three major

considerations supporting this rule. The first is the broad

range of public interests affected by private antitrust

claims. The Court recognized that "[a] claim under the

antitrust laws is not merely a private matter", because

private antitrust actions are an integral part of the effort

of the antitrust laws "to promote the national interest in a

competitive economy". 391 F.2d at 826. The Second Circuit

noted that it is doubtful Congress could have "intended such

claims to be resolved elsewhere than in the courts". Id. at

827. The second is the complexity of the issues and the

extensiveness and diversity of the evidence antitrust cases
usually involve. These render antitrust claims "far better

suited to judicial than to arbitration procedures". Id. The

third is the questionable propriety of entrusting the decision

of antitrust issues to commercial arbitrators, who "are

frequently men drawn for their business expertise", when "it

is the business community generally that is regulated by the

antitrust laws". Id. at 827.

We are persuaded by these considerations.

Cobb, 488 F.2d at 47 (alteration in original).

In Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th

Cir.1981) (en banc ), this court adopted as binding precedent all

decisions of the former Fifth Circuit rendered prior to October 1,

1981. This court also adopted the rule "that a prior decision of

the circuit (panel or en banc) could not be overruled by a panel

but only by the court sitting en banc." Bonner, 661 F.2d at 1209;

see also United States v. Machado, 804 F.2d 1537, 1543 (11th

Cir.1986) ("Only a decision by this court sitting en banc or by the

United States Supreme Court can overrule a prior panel decision.").

The Supreme Court has not expressly overruled Cobb, and neither has

an en banc court of this circuit.

"At the same time, however, according to both Eleventh and

Fifth Circuit precedent this panel may not overlook decisions by

the Supreme Court which implicitly overrule a binding circuit

decision, or undercut its rationale." Leach v. Pan American World

Airways, 842 F.2d 285, 286 (11th Cir.1988). JBL contends that the

Supreme Court has substantially undercut the rationale of Cobb in

Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S.

614, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985) and its progeny. Thus,

JBL argues that this panel has the authority to hold that Cobb is

no longer viable and that Kotam's antitrust claim is arbitrable.
We first address the Mitsubishi decision.

In Mitsubishi, Mitsubishi Motors Corporation (Mitsubishi),

Soler Chrysler-Plymouth, Inc. (Soler), and Chrysler International,

S.A. (CISA) were parties to a sales agreement containing a clause

providing for arbitration for all controversies arising out of the

agreement in accordance with the rules of the Japan Commercial

Arbitration Association. Mitsubishi, 473 U.S. at 616-17, 105 S.Ct.

at 3348-49. After disputes arose among the parties, Mitsubishi

brought an action in federal court, in part under the FAA, 9 U.S.C.

§ 1 et seq., seeking to compel arbitration. Mitsubishi, 473 U.S.

at 617-19, 105 S.Ct. at 3349-50. Soler counterclaimed against

Mitsubishi and CISA, asserting, in part, claims under the Sherman

Act, 15 U.S.C. § 1 et seq. Soler resisted the arbitration of its

antitrust claims. Mitsubishi, 473 U.S. at 619-21, 105 S.Ct. at

3350-51. The Supreme Court held that Soler's antitrust claims were

arbitrable. Mitsubishi, 473 U.S. at 629, 640, 105 S.Ct. at 3355,

3360-61.

In its analysis, the Supreme Court rejected the American

Safety considerations endorsed in Cobb. See Mitsubishi, 473 U.S.

at 637, 105 S.Ct. at 3359 ("[S]o long as the prospective litigant

effectively may vindicate its statutory cause of action in the

arbitral forum, the statute will continue to serve both its

remedial and deterrent function."); at 633-34, 105 S.Ct. at 3357

("[T]he factor of potential complexity alone does not persuade us

that an arbitral tribunal could not properly handle an antitrust

matter."); and at 634, 105 S.Ct. at 3357. ("[W]e also reject the

proposition that an arbitration panel will pose too great a danger
 4

JBL does not dispute that Kotam's lawsuit is a domestic

antitrust action. 

of innate hostility to the constraints on business conduct that

antitrust law imposes."). Therefore, JBL asserts that Mitsubishi

has undercut the rationale of Cobb to the extent that Cobb no

longer constitutes binding precedent on this panel.

Contrary to JBL's assertions, we do not believe that

Mitsubishi has undermined Cobb. In Mitsubishi, the Court stated

that it "granted certiorari primarily to consider whether an

American court should enforce an agreement to resolve antitrust

claims by arbitration when that agreement arises from an

international transaction." Mitsubishi, 473 U.S. at 624, 105 S.Ct.

at 3352 (emphasis added). Moreover, in deciding this issue, the

Court stated that:

We find it unnecessary to assess the legitimacy of the

American Safety doctrine as applied to agreements to arbitrate

arising from domestic transactions .... [W]e conclude that

concerns of international comity, respect for the capacities

of foreign and transnational tribunals, and sensitivity to the

needs of the international commercial system for

predictability in the resolution of disputes require that we

enforce the parties' agreement, even assuming that a contrary

result would be forthcoming in a domestic context.

Mitsubishi, 473 U.S. at 629, 105 S.Ct. at 3355 (emphasis added).4

In fact, the Court stated in introducing its application of the

American Safety doctrine that "we must weigh the concerns of

American Safety against a strong belief in the efficacy of arbitral

procedures for the resolution of international commercial disputes

and an equal commitment to the enforcement of freely negotiated

choice-of-forum clauses." Mitsubishi, 473 U.S. at 631, 105 S.Ct.

at 3356. The Court thus expressed its skepticism with American
Safety when applying that doctrine only to the international

commercial realm. See Mitsubishi, 473 U.S. at 631-37, 105 S.Ct. at

3356-59; see also Mitsubishi at 658, 105 S.Ct. at 3370 ("The Court

assumes for the purposes of its decision that the antitrust issues

would not be arbitrable if this were a purely domestic dispute ...

but holds that the international character of the controversy makes

it arbitrable.") (Stevens, J., dissenting). Consequently, we

conclude that Mitsubishi has not undercut the rationale of American

Safety and Cobb as applied to domestic antitrust actions. Thus,

Cobb remains the law of this circuit, and we are bound to apply it.

None of the cases the Supreme Court has decided subsequent to

Mitsubishi compel us to change this conclusion. No question exists

that the Court has relied on Mitsubishi to expand the scope of

statutory claims subject to arbitration. See Gilmer v.

Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647, 114

L.Ed.2d 26 (1991) (Age Discrimination in Employment Act of 1967);

Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S.

477, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989) (section 12(2) of the

Securities and Exchange Act of 1933); Shearson/American Express,

Inc. v. McMahon, 482 U.S. 220, 107 S.Ct. 2332, 96 L.Ed.2d 185

(1987) (section 10(b) of the Securities and Exchange Act of 1934

and the civil provisions of the Racketeer Influenced and Corrupt

Organizations Act). In none of these cases, however, did the Court

speak directly to the propriety of arbitrating domestic antitrust

claims. Accordingly, they do not change our view that Cobb remains

controlling precedent in this circuit.

Neither does JBL's reliance on Nghiem v. NEC Electronic, Inc.,
25 F.3d 1437 (9th Cir.), cert. denied, --- U.S. ----, 115 S.Ct.

638, 130 L.Ed.2d 544 (1994). In Nghiem, a panel of the Ninth

Circuit, subject to a similar "prior panel rule" as this court,

relied on Mitsubishi to overrule Lake Communications, Inc. v. ICC

Corp., 738 F.2d 1473 (9th Cir.1984), a decision that endorsed the

American Safety reasoning and holding. The Nghiem court provided

three reasons to support its holding. First, the court noted that

in Gilmer "the Supreme Court ... cited Mitsubishi for the general

proposition that antitrust claims can be arbitrated." Nghiem, 25

F.3d at 1441. Second, the court stated that " Mitsubishi ...

specifically refuted the analysis of American Safety." Nghiem, 25

F.3d at 1441. Third, the court indicated that "Mitsubishi may be

seen as evidence of the Supreme Court's desire to make statutory

rights subject to arbitration." Nghiem, 25 F.3d at 1442. Our

analysis has already revealed that we disagree with the Ninth

Circuit's second and third reasons in support of its outcome in

Nghiem. With regard to the first reason, we believe that the best

source for deciding what Mitsubishi held is the Mitsubishi decision

itself, and not a phrase in a subsequent case summarizing

(imprecisely, we believe) the Mitsubishi holding. See Gilmer, 500

U.S. at 26, 111 S.Ct. at 1652, 114 L.Ed.2d at 37. In any event,

given the precise issue in this case, JBL's reliance on authority

outside of the Supreme Court or this circuit is misplaced.

Finally, Mitsubishi and the cases mentioned above have placed

"[t]he burden ... on the party opposing arbitration ... to show

that Congress intended to preclude a waiver of judicial remedies

for the statutory rights at issue." McMahon, 482 U.S. at 227, 107
S.Ct. at 2337-38; see also Gilmer, 500 U.S. at 26, 111 S.Ct. at

1652, 114 L.Ed.2d at 37; Rodriguez de Quijas, 490 U.S. at 483, 109

S.Ct. at 1921; Mitsubishi, 473 U.S. at 628, 105 S.Ct. at 3354-55.

We believe that Kotam has met this burden. "If such a[ ]

[congressional] intention exists, it will be discoverable in the

text of the [statute], its legislative history, or an "inherent

conflict' between arbitration and the [statute's] underlying

purposes." Gilmer, 500 U.S. at 26, 111 S.Ct. at 1652, 114 L.Ed.2d

at 37 (quoting McMahon, 482 U.S. at 227, 107 S.Ct. at 2337-38). As

outlined above, the Cobb court held that an inherent conflict

exists between arbitration and the underlying purposes of the

antitrust laws. See Cobb, 488 F.2d at 47 ("We agree that "the

pervasive public interest in enforcement of the antitrust laws, and

the nature of the claims that arise in such cases, combine to make

the outcome [that antitrust claims are non-arbitrable] clear'[.]")

(quoting American Safety, 391 F.2d at 828). Cobb constitutes

binding precedent on this panel. Therefore, because Kotam invoked

Cobb in opposing JBL's motion, Kotam has met its burden under

Mitsubishi and its progeny.

CONCLUSION

In sum, we hold that the district court properly relied on

Cobb in denying JBL's motion to stay judicial proceedings pending

arbitration. Accordingly, we affirm the judgment of the district

court.

AFFIRMED.

JOHN R. GIBSON, Senior Circuit Judge, dissenting:

The court today holds that Cobb v. Lewis, 488 F.2d 41 (5th
Cir.1974), is controlling circuit precedent and rejects the

argument that Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth,

Inc., 473 U.S. 614, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985), is

intervening authority justifying this panel's departure from Cobb.

I respectfully dissent.

Mitsubishi makes plain that it deals only with arbitration of

antitrust cases in an international setting and, on several

occasions, disavows that it applies to domestic transactions. 473

U.S. at 629, 105 S.Ct. at 3355. Nevertheless, Mitsubishi devotes

nearly four pages to analyzing American Safety Equipment Corp. v.

J.P. Maguire & Co., 391 F.2d 821 (2d Cir.1968). The Court

considers and rejects the four ingredients supporting American

Safety 's conclusion that antitrust cases may not be arbitrated.

Only one of the four ingredients in American Safety, the

proposition that an arbitration panel will threaten business

conduct because of innate hostility to antitrust law, reflects any

difference between a domestic and international case. In turn,

Cobb is based on American Safety. Although a few other cases are

referred to in Cobb, American Safety is the first and foremost

authority discussed.

I conclude that Mitsubishi deals a death blow to Cobb.

Mitsubishi either overruled Cobb, or at least, destroyed circuit

authority refusing to enforce arbitration agreements in domestic

antitrust disputes.

Thus, I believe that the circuit operates on a clean slate,

and that it would be wise to directly consider the issue. If we

did so, I would conclude, like the Ninth Circuit and several other
district courts, that agreements to arbitrate domestic antitrust

disputes are enforceable. Nghiem v. NEC Elec., Inc., 25 F.3d 1437

(9th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 638, 130 L.Ed.2d

544 (1994); see also Sanjuan v. American Bd. of Psychiatry and

Neurology, Inc., 40 F.3d 247, 250 (7th Cir.1994).

I would reverse the district court's order and direct the

district court to enter a stay to allow arbitration of the

antitrust claims.