Wilko v. Swan
Is it still good law? What later courts have actually done to this case.
Status
More on how this was screened
Rodriguez de Quijas v. Shearson/American Express, Inc. held that predispute agreements to arbitrate Securities Act claims are enforceable and expressly overruled Wilko. Before that decision, four lower courts declined to follow Wilko, one court refused to extend it, and two courts criticized its arbitration rationale. The 8 confirmed treatments are listed below; the other citing opinions applied Wilko, reported Rodriguez's act, or addressed unrelated precedent.
1,337 later cases cite Wilko v. Swan; 248 of those citations sat close to treatment language and were flagged for reading, and all of them have been read. Citations that did not sit near treatment language were not flagged and were not read one by one, so a court that weakened this case without using any of that language would not appear here.
Relying on Wilko v. Swan?
This page shows what later courts did to it. Ask about your specific facts and see whether it still carries your argument, with citations you can check.
Treatments
Overruled
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Rodriguez de Quijas held that predispute agreements to arbitrate Securities Act claims are enforceable and expressly overruled Wilko.
Rodriguez de Quijas v. Shearson/American Express, Inc. · Supreme Court of the United States · filed
We now conclude that Wilko was incorrectly decided and is inconsistent with the prevailing uniform construction of other federal statutes governing arbitration agreements in the setting of business transactions. ... For all of these reasons, therefore, we overrule the decision in Wilko.
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Declined to Follow
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The Fourth Circuit held that Wilko was no longer good law or binding authority after McMahon repudiated its rationale.
Jeske v. Brooks · Fourth Circuit · filed
Although McMahon did not expressly overrule Wilko, see 482 U.S. at 232-34, 107 S.Ct. at 2341, McMahon repudiated Wilko’s rationale. We conclude that Wilko is no longer good law insofar as it holds that claims under the Securities Act of 1933 are non-arbitrable. ... Thus, Wilko no longer is binding authority on the question of arbitrability of § 12(2) claims under the Securities Act of 1933.
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Kavouras declared Wilko untenable after McMahon and compelled arbitration of Securities Act claims.
Kavouras v. Visual Products Systems, Inc. · W.D. Pa. · filed
While there were no 1933 Act claims involved in McMahon, the decision in that case cast considerable doubt on whether Wilko is still viable. Our review of McMahon leaves us with the conviction that Wilko is now untenable. ... We therefore conclude that Counts I and II, which state claims under the Securities Act of 1933, are subject to the pre-dispute arbitration agreement contained in the Account Agreement.
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Ryan rejected Wilko's continued bar and compelled arbitration of a Securities Act claim.
Ryan v. Liss, Tenner & Goldberg Securities Corp. · D.N.J. · filed
Plaintiffs cite Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1953) ... in support of their argument. This court, however, is unpersuaded by plaintiffs’ argument for several reasons. ... Therefore, this court concludes that plaintiffs’ claim alleging a violation of § 17(a) of the 1933 Act is subject to compelled arbitration.
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Reed abandoned its earlier adherence to Wilko and compelled arbitration of Securities Act claims.
Reed v. Bear, Stearns & Co., Inc. · D. Kan. · filed
However, the court inferred that if presented with the issue of the arbitrability of 1933 Act claims, it would follow the Fifth Circuit's lead and hold that in light of McMahon, Wilko is no longer good law. ... In light of these cases, this court is compelled to abandon its earlier position that 1933 Act claims are not arbitrable. ... Thus, the court concludes that Reed’s 1933 Act claims included in counts 4 and 5 of her complaint must be arbitrated.
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Limited
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Driscoll refused to extend Wilko's antiwaiver reasoning to a future-release agreement.
Driscoll v. Schuttler · N.D. Ga. · filed
Goodman explicitly relies on the much-eroded precedent of Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1953) for the proposition that any attempt to release a claim in futuro is invalid. Neither the Supreme Court nor the Eleventh Circuit has gone so ... far as to extend Wilko to facts such as those in this case, and in light of the Court’s consistent undermining of that precedent, this court believes its reasoning should not be so extended.
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Criticized
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The Supreme Court criticized Wilko's rationale that arbitration was generally inadequate to protect federal securities rights.
Shearson/American Express Inc. v. McMahon · Supreme Court of the United States · filed
Instead, the reasons given in Wilko reflect a general suspicion of the desirability of arbitration and the competence of arbitral tribunals — most apply with no greater force to the arbitration of securities disputes than to the arbitration of legal disputes generally. It is difficult to reconcile Wilko’s mistrust of the arbitral process with this Court’s subsequent decisions involving the Arbitration Act.
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A district court said Wilko's reasoning had been cut away, although stare decisis left its bare nonarbitrability holding in force.
Smith v. Merrill Lynch, Pierce, Fenner & Smith, Inc. · S.D. Fla. · filed
The Court in McMahon refused to overrule Wilko for reasons of stare decisis. Thus, while the reasoning behind Wilko has been cut away, its bare holding remains in force. Accordingly, this court is bound to follow the Wilko holding and refrain from compelling arbitration of plaintiff’s 34 Act claim.
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