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Preemption of the California Standards by Federal Legislation Upheld
WINBERG v. SALOMON SMITH BARNEY, INC., No. F042866 (Cal. App., 5Dist., 2/13/04).
Preemption of the California Standards by federal legislation has been the subject of a number of decisions in the Second Appellate District and panel after panel of that Districts jurists have ruled in favor of preemption; now, they are joined by this recent Fifth District decision.
Plaintiffs in this matter argued before the trial court that both the NASD and NYSE arbitration forums refused to appoint arbitrators in California because of newly adopted disclosure requirements for all arbitrators and, on that basis, the trial court denied Defendants motion to compel arbitration.
However, on appeal, a three-judge Panel reversed that ruling, relying in great part upon the Second Districts preemptive analysis in Jevne v. Superior Court, to hold that the California Standards are preempted by the Exchange Act.
The argument is also posed that agreeing to a waiver of the Standards or to an out-of-state hearing situs offers a Hobsons choice, rendering the agreement to arbitrate at a SRO forum effectively impossible of performance. However, the Court points out, that the Plaintiffs have not proven that the cost and inconvenience of travel would be so burdensome as to constitute impossibility. (SAC Ed: The Mayo v. DWR decision, SAA 2003-16, was one of the first federal court decisions (NDCA) to find preemption and the state court decisions followed. Recently, another federal judge in the Northern District of California found California vacatur law preempted by the FAA in a post-Award challenge, Skinner v. DLJ Securities Corp., No. C03-2625 (VRW) (N.D. Cal., 12/29/03). Both the Skinner and Winberg decisions will be fully summarized in next weeks edition of the Securities Litigation Alert, SLA 2004-08.)
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