Unpublished Dispositionjohn D. Leighton, Plaintiff-appellant, v. Merrill Lynch, Pierce, Fenner & Smith, Inc., Thomas H.henson, Russell G. Mann, Jr., Senior Resident Vicepresident, Merrill Lynch, Pierce, Fenner& Smith, Defendants-appellees, 831 F.2d 295 (6th Cir. 1987)

The defendants have filed a motion to compel arbitration in this securities fraud case. The motion has been construed as a motion to affirm. The plaintiff has filed a response. This appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. After an examination of the record and the plaintiff's brief, this panel agrees unanimously that oral argument is not needed. Fed. R. App. P. 34(a).

Motions to affirm are prohibited under Rule 8(a) (3), Rules of the Sixth Circuit. Therefore, the motion to affirm is denied. Turning to the merits of the appeal, the plaintiff's complaint alleges that the defendants' handling of his securities account violated Section 10(b) of the Securities and Exchange Act and its accompanying Rule 10b-5. 15 U.S.C. § 78j(b); 17 C.F.R. 240.10b-5. The complaint also alleged a RICO violation. 18 U.S.C. § 1964. The district court held that both of these claims were subject to arbitration under the arbitration clause contained in the brokerage agreement. The plaintiff appealed from this holding.

The appeal was held in abeyance pending the Supreme Court's decision in Shearson/American Express, Inc. v. McMahon, 107 S. Ct. 2332 (1987). In McMahon, the Supreme Court held that both the Section 10(b) and RICO claims are subject to arbitration. 107 S. Ct. at 2343 and 2345-46. Therefore, the district court properly ordered arbitration in this case.

The order of the district court is affirmed under Rule 9(b) (5), Rules of the Sixth Circuit, because the issues are not substantial and do not require oral argument.