Brown v. Dean Witter Reynolds, Inc., 804 F.2d 129 (11th Cir. 1986)

No. 85-5724.

Nov. 13, 1986.

Russell L. Forkey, Pamela M. Burdick, Cara L. Eisenberg, Ft. Lauderdale, Fla., for plaintiff-appellant.

Edward J. Marko, Marko & Stephany, Ft. Lauderdale, Fla., for defendants-appellees.

Before FAY, Circuit Judge, HENDERSON* and NICHOLS**, Senior Circuit Judges.

PER CURIAM:

This securities fraud action alleges violations of both state and federal law including section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b) and S.E.C. Rule 10(b)(5). The primary issue on appeal involves the order of the trial court compelling arbitration of those claims brought under the 1934 Act.

This issue is controlled by this court’s recent en banc opinion in Wolfe v. E.F. Hutton, 800 F.2d 1032 (11th Cir.1986). The order of the trial court dealing with arbitration of these claims is reversed.

Appellant also raises issues concerning the validity of the agreement to arbitrate. The record is simply not clear as to how or when these matters were presented to the trial court nor how they were disposed of in the orders entered. Since arbitration was stayed, it may be that they were merely postponed. In any event we suggest the issues of adhesion, unconscionability, waiver of judicial remedies without notice, and the lack of mutuality of obligation can be visited upon remand. Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967); Miller v. Drexel Burnham Lambert, Inc., 791 F.2d 850 (11th Cir.1986).

REVERSED and REMANDED.