Alan Richards v. Lloyd's of London, an Unincorporated Association, John R. Norton, III Doris S. Norton Diane B. Allison Charles G. Bentzin F.M. Binkley Delmar A. Brady Samme Jo Brady George Maning Close Russell M. Collins Peter Dwares Robert Flesvig Donald P. Gallop Charles A. Gerlach, Jr. Robert W. Gerwig Richard C. Henry Michael C. Hirsh R. William Johnston James H. Kayian Joanne S. Kayian-Olooney Suzanne Kayian Lowell Conrad Lundell Judith M. Ott H.E. Rainbolt David L. Rosenblatt Ray Morse Sanderson Claire Tillman Warren G. Vander Voort Peter Beck Harold Franz Ilg John C. Griffin Ted Kosloff Francis J. Milon Glen R. Mogan Melanie M. Norton Joseph F. Weller v. Lloyd's of London, an Unincorporated Association Corporation of Lloyd's, AKA Society of Lloyd's, AKA the Society and Council of Lloyd's

The primary question this case presents is whether the antiwaiver provisions of the Securities Act of 1933 and the Securities Exchange Act of 1934 void choice of law and choice of forum clauses in an international transaction. The district court found that they do not. The appeal has been argued twice. Upon reconsideration en banc, the opinion published at 107 F.3d 1422 (9th Cir.1997) is withdrawn and we affirm the district court.

Appellants, all citizens or residents of the United States, are more than 600 "Names" who entered into underwriting agreements. The Names sued four defendants: the Corporation of Lloyd's, the Society of Lloyd's, the Council of Lloyd's, (collectively, "Lloyd's") and Lloyd's of London, (the "unincorporated association").

Lloyd's is a market in which more than three hundred Underwriting Agencies compete for underwriting business. Pursuant to the Lloyd's Act of 1871-1982, Lloyd's oversees and regulates the competition for underwriting business in the Lloyd's market. The market does not accept premiums or insure risks. Rather, Underwriting Agencies, or syndicates, compete for the insurance business. Each Underwriting Agency is controlled by a Managing Agent who is responsible for the financial status of its agency. The Managing Agent must attract not only underwriting business from brokers but also the capital with which to insure the risks underwritten.

The Names provide the underwriting capital. The Names become Members of the Society of Lloyd's through a series of agreements, proof of financial means, and the deposit of an irrevocable letter of credit in favor of Lloyd's. To become a Name, one must travel to England to acknowledge the attendant risks of participating in a syndicate and sign a General Undertaking. The General Undertaking is a two page document containing choice of forum and choice of law clauses (collectively the "choice clauses"), which form the basis for this dispute. The choice clauses read:

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 agrees 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....

By becoming a Member, the Names obtain the right to participate in the Lloyd's Underwriting Agencies. The Names, however, do not deal directly with Lloyd's or with the Managing Agents. Instead, the Names are represented by Members' Agents who, pursuant to agreement, stand in a fiduciary relationship with their Names. Upon becoming a Name, an individual selects the syndicates in which he wishes to participate. In making this decision, the individual must rely to a great extent on the advice of his Members' Agent. The Names generally join more than one underwriting agency in order to spread their risks across different types of insurance. When a Name undertakes an underwriting obligation, that Name is responsible only for his share of an agency's losses; however, his liability is unlimited for that share.

In this case, the risk of heavy losses has materialized and the Names now seek shelter under United States securities laws and the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq. The Names claim that Lloyd's actively sought the investment of United States residents to fill an urgent need to build up capital. According to the Names, Lloyd's concealed information regarding the possible consequences of the risks undertaken and deliberately and disproportionately exposed the Names to massive liabilities for which sufficient underwriting capital or reinsurance was unavailable.

This appeal does not address the merits of the underlying claims. It addresses only the Names' contention that their disputes with Lloyd's should be litigated in the United States despite contract clauses binding the parties to proceed in England under English law. It also addresses whether default should have been entered against the unincorporated association.

We review the district court's decision to enforce the choice clauses for abuse of discretion. Argueta v. Banco Mexicano, S.A., 87 F.3d 320, 323 (9th Cir.1996). As we are reviewing a Rule 12(b)(3) motion decision, we need not accept the pleadings as true. Id. at 324.

Whether the securities laws void the choice clauses is a question of law that we review de novo. Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298, 1300 (9th Cir.1997).

The Names make three arguments for repudiating the choice clauses. They contend (1) that the antiwaiver provisions of the federal securities laws void such clauses, (2) that the choice clauses are invalid because they offend the strong public policy of preserving an investor's remedies under federal and state securities law and RICO and (3) that the choice clauses were obtained by fraud. We will address each of these in turn.

* We analyze the validity of the choice clause under The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972), where the Supreme Court stated that courts should enforce choice of law and choice of forum clauses in cases of "freely negotiated private international agreement[s]." Bremen, 407 U.S. at 12-13, 92 S.Ct. at 1914.1

* The Names dispute the application of Bremen to this case. They contend that Bremen does not apply to cases where Congress has spoken directly to the immediate issue--as they claim the antiwaiver provisions do here.

The Securities Act of 1933 (the " '33 Act") provides that:

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.

15 U.S.C. § 77n. The 1934 Securities Exchange Act (the " '34 Act") contains a substantially similar provision. 15 U.S.C. § 78cc(a). The Names seize on these provisions and claim that they void the choice clauses in their agreement with Lloyd's.

Certainly the antiwaiver provisions are worded broadly enough to reach this case. They cover "any condition, stipulation, or provision binding any person acquiring any security to waive compliance with any provision of this subchapter...." Indeed, this language is broad enough to reach any offer or sale of anything that could be alleged to be a security, no matter where the transaction occurs.

Nevertheless, this attempt to distinguish Bremen fails. In Bremen itself, the Supreme Court contemplated that a forum selection clause may conflict with relevant statutes. Bremen, 407 U.S. at 15, 92 S.Ct. at 1916 ("A contractual choice-of-forum clause should be held unenforceable if enforcement would contravene a strong public policy of the forum in which suit is brought, whether declared by statute or by judicial decision.") (emphasis added).

Moreover, in Scherk v. Alberto-Culver Co., 417 U.S. 506, 94 S.Ct. 2449, 41 L.Ed.2d 270 (1974), the Supreme Court explicitly relied on Bremen in a case involving a securities transaction.2 Echoing the language of Bremen, the Court found that "[a] contractual provision specifying in advance the forum in which disputes shall be litigated and the law to be applied is ... an almost indispensable precondition to achievement of the orderliness and predictability essential to any international business transaction." Id. at 516, 94 S.Ct. at 2455. See Bremen, 407 U.S. at 13-14, 92 S.Ct. at 1914-16 ("[A]greeing in advance on a forum acceptable to both parties is an indispensable element in international trade, commerce, and contracting."). This passage should leave little doubt as to the applicability of Bremen to the case at hand.3

Indeed, were we to find that Bremen did not apply, the reach of United States securities laws would be unbounded. The Names simply prove too much when they assert that "Bremen 's judicially-created policy analysis under federal common law is not controlling when Congress has expressed its will in a statute." This assertion, if true, expands the reach of federal securities law to any and all such transactions, no matter how remote from the United States. We agree with the Fifth Circuit that "we must tread cautiously before expanding the operation of U.S. securities law in the international arena." Haynsworth v. The Corporation, 121 F.3d 956, 966 (5th Cir.1997).

Having determined that Bremen governs international contracts specifying forum and applicable law, we turn to the question whether the contract between Lloyd's and the Names is international. Not surprisingly, the Names contend that these were purely domestic securities sales. They claim that Lloyd's solicited the Names in the United States and that the trip the Names made to England was a mere ritual without legal significance.

We disagree. The Names signed a contract with English entities to participate in an English insurance market and flew to England to consummate the transaction. That the Names received solicitations in the United States does not somehow erase these facts. Moreover, Lloyd's insistence that individuals travel to England to become a Name does not strike us as mere ritual. Lloyd's likely requires this precisely so that those who choose to be the Names understand that English law governs the transaction. Entering into the Lloyd's market in the manner described is plainly an international transaction.

We now apply Bremen to this case. Bremen emphasized that "in the light of present-day commercial realities and expanding international trade we conclude that the forum clause should control absent a strong showing that it should be set aside." Bremen, 407 U.S. at 15, 92 S.Ct. at 1916. The Court reasoned that "[t]he elimination of all [ ] uncertainties [regarding the forum] by agreeing in advance ... is an indispensable element in international trade, commerce, and contracting." Id. at 13-14, 92 S.Ct. at 1915. Thus, "absent some compelling and countervailing reason [a forum selection clause] should be honored by the parties and enforced by the courts." Id. at 12, 92 S.Ct. at 1914. The party seeking to avoid the forum selection clause bears "a heavy burden of proof." Id. at 17, 92 S.Ct. at 1917.

The Supreme Court has identified three grounds for repudiating a forum selection clause: first, if the inclusion of the clause in the agreement was the product of fraud or overreaching; second, if the party wishing to repudiate the clause would effectively be deprived of his day in court were the clause enforced; and third, "if enforcement would contravene a strong public policy of the forum in which suit is brought." Id. at 12-13, 15, 18, 92 S.Ct. at 1914-18. The Names contend that the first and third grounds apply in this case.

* The Names' strongest argument for escaping their agreement to litigate their claims in England is that the choice clauses contravene a strong public policy embodied in federal and state securities law and RICO. See Bonny v. Society of Lloyd's, 3 F.3d 156, 160-61 (7th Cir.1993) (expressing "serious concerns" that the choice clauses offend public policy but ultimately ruling in Lloyd's favor), cert. denied, 510 U.S. 1113, 114 S.Ct. 1057, 127 L.Ed.2d 378 (1994); Roby v. Corporation of Lloyd's, 996 F.2d 1353, 1364-66 (2nd Cir.) (substantially the same), cert. denied, 510 U.S. 945, 114 S.Ct. 385, 126 L.Ed.2d 333 (1993).

We follow our six sister circuits that have ruled to enforce the choice clauses. See Haynsworth, 121 F.3d 956; Allen v. Lloyd's of London, 94 F.3d 923 (4th Cir.1996); Shell v. R.W. Sturge, Ltd., 55 F.3d 1227 (6th Cir.1995); Bonny, 3 F.3d 156; Roby, 996 F.2d 1353; and Riley v. Kingsley Underwriting Agencies, Ltd., 969 F.2d 953 (10th Cir.), cert. denied, 506 U.S. 1021, 113 S.Ct. 658, 121 L.Ed.2d 584 (1992). We do so because we apply Scherk and because English law provides the Names with sufficient protection.

In Scherk, the Supreme Court was confronted with a contract that specified that all disputes would be resolved in arbitration before the International Chamber of Commerce in Paris, France. Scherk, 417 U.S. at 508, 94 S.Ct. at 2451-52. The arbitrator was to apply the law of the state of Illinois. Id. The Court enforced the forum selection clause despite then hostile precedent.4 Id. at 52021, 94 S.Ct. at 2457-58. See Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1953), overruled by Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 485, 109 S.Ct. 1917, 1922, 104 L.Ed.2d 526 (1989).

The Court's treatment of Wilko leaves little doubt that the choice clauses in this case are enforceable. In Wilko, the Supreme Court ruled that "the right to select the judicial forum is the kind of 'provision' that cannot be waived under § 14 of the Securities Act." Wilko, 346 U.S. at 435, 74 S.Ct. at 186. In Scherk, the Court had before it a case where both the District Court and the Seventh Circuit found a forum selection clause invalid on the strength of Wilko. Scherk, 417 U.S. at 510, 94 S.Ct. at 2452-53.

In distinguishing Wilko, the Supreme Court stated that there were "significant and, we find, crucial differences between the agreement involved in Wilko and the one signed by the parties here." Scherk, 417 U.S. at 515, 94 S.Ct. at 2455. The first and primary difference that the Court relied upon was that "Alberto-Culver's contract ... was a truly international agreement." Id. The Court reasoned that such a contract needs, as "an almost indispensable precondition," a "provision specifying in advance the forum in which disputes shall be litigated and the law to be applied." Id. at 516, 94 S.Ct. at 2455 (emphasis added).

Moreover, the Supreme Court has explained that, in the context of an international agreement, there is "no basis for a judgment 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." Id. at 517 n. 11, 94 S.Ct. at 2456 n. 11. To require that " 'American standards of fairness' must ... 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." Id.

These passages from Scherk, we think, resolve the question whether public policy reasons allow the Names to escape their "solemn agreement" to adjudicate their claims in England under English law. Scherk involved a securities transaction. Id. at 514 n. 8, 94 S.Ct. at 2455 n. 8. The Court rejected Wilko 's holding that the antiwaiver provision of the '34 Act prohibited choice clauses. Id. at 515-16, 94 S.Ct. at 2455-56. It also recognized that enforcing the forum selection clause would, in some cases, have the same effect as choosing foreign law to apply. Id. at 516, 517 n. 11, 94 S.Ct. at 2455, 2456 n. 11. Yet the Court did not hesitate to enforce the forum selection clauses. It believed that to rule otherwise would "reflect a 'parochial concept that all disputes must be resolved under our laws and in our courts.' " Id. at 519, 94 S.Ct. at 2457 (quoting Bremen, 407 U.S. at 9, 92 S.Ct. at 1912). As the Supreme Court has explained, " '[w]e cannot have trade and commerce in world markets and international waters exclusively on our terms, governed by our laws, and resolved in our courts.' " Id. (quoting Bremen, 407 U.S. at 9, 92 S.Ct. at 1912).

Relying on Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 634, 105 S.Ct. 3346, 3357-58, 87 L.Ed.2d 444 (1985), the Names argue that federal and state securities laws are of "fundamental importance to American democratic capitalism." They claim that enforcement of the choice clauses will deprive them of important remedies provided by our securities laws. The Supreme Court disapproved of such an outcome, the Names contend, when it 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.

Without question this case would be easier to decide if this footnote in Mitsubishi had not been inserted. Nevertheless, we do not believe dictum in a footnote regarding antitrust law outweighs the extended discussion and holding in Scherk on the validity of clauses specifying the forum and applicable law. The Supreme Court repeatedly recognized in Scherk that parties to an international securities transaction may choose law other than that of the United States, Scherk, 417 at 516, 517 n. 11, 519 n. 13, 2455-56, 2456, 2457 n. 13, yet it never suggested that this affected the validity of a forum selection clause. See also Bremen, 407 U.S. at 13 n. 15, 92 S.Ct. at 1915 n. 15 (recognizing that a forum selection clause also acts to select applicable law); Milanovich v. Costa Crociere, S.p.A., 954 F.2d 763, 767 n. 7 (D.C.Cir.1992) ("The Bremen involved a choice-of-forum clause, but the Supreme Court recognized that enforcing the provision would have the effect of subjecting the contract to foreign law.").5

Of course, were English law so deficient that the Names would be deprived of any reasonable recourse, we would have to subject the choice clauses to another level of scrutiny. See Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 595, 111 S.Ct. 1522, 1528, 113 L.Ed.2d 622 (1991) ("It bears emphasis that forum-selection clauses contained in form passage contracts are subject to judicial scrutiny for fundamental fairness."). In this case, however, there is no such danger. See Haynsworth, 121 F.3d at 969 ("English law provides a variety of protections for fraud and misrepresentations in securities transactions."). Cf. British Midland Airways Ltd. v. International Travel, Inc., 497 F.2d 869, 871 (9th Cir.1974) (This court is "hardly in a position to call the Queen's Bench a kangaroo court.").

We disagree with the dramatic assertion that "[t]he available English remedies are not adequate substitutes for the firm shields and finely honed swords provided by American securities law." Richards v. Lloyd's of London, 107 F.3d 1422, 1430 (9th Cir.1997). The Names have recourse against both the Member and Managing Agents for fraud, breach of fiduciary duty, or negligent misrepresentation. Indeed, English courts have already awarded substantial judgments to some of the other Names. See Arubuthnott v. Fagan and Feltrim Underwritings Agencies Ltd., 3 Re LR 145 (H.L.1994); Deeny v. Gooda Walker Ltd., Queen's Bench Division (Commercial Court), The Times 7 October 1994.6

While it is true that the Lloyd's Act immunizes Lloyd's from many actions possible under our securities laws, Lloyd's is not immune from the consequences of actions committed in bad faith, including fraud. Lloyd's Act of 1982, Ch. 14(3)(e)(i). The Names contend that entities using the Lloyd's trade name willfully and fraudulently concealed massive long tail liabilities in order to induce them to join syndicates. If so, we have been cited to no authority that Lloyd's partial immunity would bar recovery.

The addition of RICO claims does not alter our conclusion. This court has already held that the loss of RICO claims does not suffice to bar dismissal for forum non conveniens. Lockman Found. v. Evangelical Alliance Mission, 930 F.2d 764, 768-69 (9th Cir.1991). We agree with our sister circuit that has considered this issue and extend the logic of Lockman to this case. Roby, 996 F.2d at 1366.

The Names also argue that the choice clauses were the product of fraud. They claim that at the time of signing the General Undertaking, Lloyd's knew that the Names were effectively sacrificing valid claims under U.S. law by signing the choice clauses and concealed this fact from the Names. Had the Names known this fact, they contend, they never would have agreed to the choice clauses. The Names never allege, however, that Lloyd's misled them as to the legal effect of the choice clauses. Nor do they allege that Lloyd's fraudulently inserted the clauses without their knowledge. Accordingly, we view the allegations made by the Names as going only to the contract as a whole, with no allegations as to the inclusion of the choice clauses themselves.

Absent such allegations, these claims of fraud fail. The Supreme Court has noted that simply alleging that one was duped into signing the contract is not enough. Scherk, 417 U.S. at 519 n. 14, 94 S.Ct. at 2457 n. 14 (The fraud exception in Bremen "does not mean that any time a dispute arising out of a transaction is based upon an allegation of fraud ... the clause is unenforceable."). For a party to escape a forum selection clause on the grounds of fraud, it must show that "the inclusion of that clause in the contract was the product of fraud or coercion." Id. (citing Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967)) (emphasis in original). See also Prima Paint, 388 U.S. at 404, 87 S.Ct. at 1806 ("[T]he statutory language [of the United States Arbitration Act] does not permit the federal court to consider claims of fraud in the inducement of the contract generally.").

The Names object that Moseley v. Electronic & Missile Facilities, Inc., 374 U.S. 167, 83 S.Ct. 1815, 10 L.Ed.2d 818 (1963), requires the district court to adjudicate the claims of fraud before dismissal. In Moseley, the Supreme Court found that "it seems clear that the issue of fraud should first be adjudicated before the rights of the parties under the [contracts] can be determined."