GANTS, J.
In Hannon v. Original Gunite Aquatech Pools, Inc., 385 Mass. 813, 826-827 (1982) (Hannon), we held that, even where a consumer executed a valid contract agreeing to arbitrate all disputes, a plaintiff may not be compelled to arbitrate a claim alleging an unfair or deceptive trade practice in violation of G. L. c. 93A, § 9. We hold today that such claims must be referred to arbitration where the contract involves interstate commerce and the agreement to arbitrate is enforceable under the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. (2006) (FAA). Because the plaintiff and defendants in this case entered into a valid contract in which they agreed to settle all controversies related to the plaintiff's financial account by arbitration, and because the arbitration agreement is governed by the FAA, we conclude that the motion judges erred in declining to stay judicial proceedings and order the matter to proceed to arbitration.
Background. In September, 2011, the plaintiff, Jane B. McInnes, filed a complaint in Superior Court, asserting claims against LPL Financial, LLC (LPL), and Karl G. McGhee, Jr., for fraud; intentional misrepresentation; breach of fiduciary duty; intentional infliction of emotional distress; and violations of G. L. c. 110A, § 410 (Uniform Securities Act), and G. L. c. 93A (consumer protection act).
The defendants moved pursuant to G. L. c. 251, § 2, of the Massachusetts Arbitration Act (MAA), for a stay of the court proceedings and an order compelling the parties to proceed to arbitration. The motion was supported by McGhee's affidavit, where he attested that the plaintiff opened a brokerage and individual retirement account at LPL in 1996, and signed the "opening account" forms that required the parties to elect to
The judge denied the motion, concluding that "notwithstanding the [a]rbitration [a]greement, none of Plaintiff's claims can be compelled to arbitration." Relying on Hannon, supra at 816, the judge stated that the arbitration agreement cannot be enforced because claimants under G. L. c. 93A, § 9, are not required to submit to arbitration, and the plaintiff's other claims, both at common law and pursuant to G. L. c. 110A, § 410, all arise from McGhee's alleged conduct as a financial planner and are "inexorably intertwined with her [G. L. c.] 93A claim."
The defendants subsequently filed a second motion to stay proceedings and compel arbitration, this time arguing that the arbitration agreement is governed by the FAA and that the FAA, under the doctrine of Federal preemption, requires enforcement of arbitration agreements regardless of State statutes or judicial decisions that declare them unenforceable. A different judge denied this motion after hearing, finding that, "[t]here remains a viable issue as to whether the arbitration clause 1) exists (the original agreement cannot be found) and 2) was obtained by
Discussion. 1. Legal framework. Before we address the orders denying the defendants' motion to stay proceedings and compel arbitration, we set forth the legal framework that governs such motions. Arbitration agreements in Massachusetts are governed by the MAA, G. L. c. 251, §§ 1 et seq., and where the contract involves a transaction affecting interstate commerce, by the FAA, 9 U.S.C. §§ 1 et seq. See Warfield, supra at 394. "In all relevant respects, the language of the FAA and the MAA providing for enforcement of arbitration provisions are similar, and we have interpreted the cognate provisions in the same manner." Id., citing Miller v. Cotter, 448 Mass. 671, 678-679 (2007) (Miller). Under both G. L. c. 251, § 1, and 9 U.S.C. § 2 (2006), a written agreement (or provision in a written agreement) to submit to arbitration any dispute between the parties, whether existing or arising in the future, "shall be valid ... save upon such grounds as exist at law or in equity for the revocation of any contract."
Where a party denies the existence of a valid agreement to arbitrate, either because the party denies that it entered into such an agreement or because it challenges the validity of such an agreement, the MAA's procedures set forth in G. L. c. 251, § 2, govern the adjudication of a motion to compel arbitration. Warfield, supra at 395. St. Fleur v. WPI Cable Sys./Mutron, 450 Mass. 345, 352 (2008) (St. Fleur).
To "proceed summarily" means "that a judge determines whether there is a dispute as to a material fact; and, if there is not such a dispute, the judge resolves the issue as a matter of law; but, if there is such a dispute, the judge conducts an expedited evidentiary hearing on the matter and then decides the issue." St. Fleur, supra at 353.
Although the MAA governs the procedures to be applied where an issue arises regarding the arbitrability of a dispute, where the underlying contract affects interstate commerce, the arbitration agreement is governed by the FAA and the substantive law to be applied is Federal. See Southland Corp. v. Keating, 465 U.S. 1, 12 (1984), quoting Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 25 & n. 32 (1983) (FAA "creates a body of federal substantive law" that is applicable in both State and Federal court). See also Preston v. Ferrer, 552 U.S. 346, 349 (2008) (FAA "rests on Congress' authority under the Commerce Clause" and "calls for the application, in state as well as federal courts, of federal substantive law regarding arbitration"); Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 445-446 (2006).
Under substantive Federal arbitration law, the so-called "saving clause" of 9 U.S.C. § 2, which permits arbitration agreements to be declared unenforceable "upon such grounds as exist at law or in equity for the revocation of any contract," allows "agreements to arbitrate to be invalidated by `generally applicable contract defenses, such as fraud, duress, or unconscionability,' but not by defenses that apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue." AT & T Mobility LLC v. Concepcion, supra at 1746, quoting Doctor's Assocs., Inc. v. Casarotto, 517 U.S. 681, 687 (1996). In applying the saving clause, a judge must sever the arbitration provision from the remainder of the contract, and determine the validity of the arbitration provision itself, leaving the validity of the remainder of the contract (if the arbitration provision is valid) to be decided by the arbitrator. Nitro-Lift Techs., L.L.C. v. Howard, 133 S.Ct. 500, 503 (2012); Buckeye Check Cashing, Inc. v. Cardegna, supra at 445-446. "Although § 2's saving clause preserves generally applicable contract defenses, nothing in it suggests an intent to preserve state-law rules that stand as an obstacle to the accomplishment of the FAA's objectives." AT & T Mobility LLC v. Concepcion, supra at 1748. "When state law prohibits outright the arbitration of a particular type of claim, the analysis is straightforward:
2. First order. In denying the defendants' first motion to stay proceedings and compel arbitration, the judge relied on controlling precedent in Hannon, supra at 826-827, where this court held that, even where the contractual parties agreed to arbitrate all disputes, a judge may not compel a plaintiff to arbitrate a claim of an unfair or deceptive act or practice in violation of G. L. c. 93A, § 9. The court in Hannon, supra at 826, concluded that the Legislature intended to preclude an order staying judicial proceedings and compelling arbitration of these claims by its enactment of G. L. c. 93A, § 9 (6), inserted by St. 1973, c. 939, which states, in pertinent part:
While the court recognized that "arbitration pursuant to a contract does not fall neatly into the categories of remedies listed in G. L. c. 93A, § 9 (6)," the court concluded that arbitration was "comprehended within either `common law' or statutory remedies." Hanlon, supra. Even though the underlying contract that included the arbitration provision concerned the construction of an in-ground swimming pool, and may have involved interstate commerce, the court in Hannon made no reference to the FAA, or to whether Federal substantive law under the FAA
Here, there is no dispute that the underlying financial services contract between the plaintiff and the defendants involved interstate commerce, where, according to the complaint, the plaintiff resides in Massachusetts and McGhee worked in Pennsylvania as a financial advisor for LPL. See Miller, supra at 678, and cases cited. See also Loche v. Dean Witter Reynolds, Inc., 26 Mass.App.Ct. 296, 302 (1988) ("Contracts whose very purpose is to create a relationship for the purchase and sale of securities almost necessarily will involve interstate commerce"). Therefore, any arbitration agreement between them was governed by the FAA. Because our holding in Hannon does not apply to any arbitration agreement governed by the FAA, the judge erred in relying on that holding to deny the defendants' first motion to stay proceedings and compel arbitration.
3. Second order. In denying the defendant's second motion to stay proceedings and compel arbitration, the judge essentially treated the motion as if it sought summary judgment on the issue of arbitrability of the dispute and denied it because he concluded that material disputes of fact remained as to whether the plaintiff had entered into an arbitration agreement in 1996 and whether any such agreement had been obtained by fraud. In so ruling, the judge made two errors.
Second, based on the undisputed evidence before the judge, the judge should have allowed the motion to compel arbitration. The plaintiff's complaint was not verified, and the plaintiff did not submit an affidavit in opposition to the motion or any other evidence. Consequently, the only evidence before the judge was McGhee's affidavit and the exhibits he appended to that affidavit, including the new account application signed by the plaintiff in 2003 in which she certified that she accepted the arbitration agreement in the master account agreement. Under that arbitration agreement, the plaintiff agreed to resolve through arbitration "any controversy between LPL arising out of or relating to [her] account, transactions with or for [her], or the construction, performance, or breach of this agreement whether entered into prior, on or subsequent to the date hereof" (emphasis added). Even if the plaintiff had not executed an arbitration agreement in 1996 when she first opened an account with LPL, her agreement to arbitrate in 2003 required arbitration of all disputes regarding the defendants' financial advice and transactions concerning her account, regardless of whether that advice was given or those transactions occurred before or after she executed the 2003 arbitration agreement. Therefore, there was no dispute of fact that the plaintiff had executed an arbitration agreement with the defendants that applied to the claims alleged in her complaint. See Granite Rock Co. v. International Bhd. of Teamsters, 130 S.Ct. 2847, 2856 (2010) ("court may order arbitration of a particular dispute only where the court is satisfied that the parties agreed to arbitrate that dispute").
Nor was there any evidence before the judge that the arbitration agreement was obtained by fraud or was otherwise void or voidable. As noted earlier, under Federal substantive law, an arbitration agreement may be found invalid where it was fraudulently obtained, but in making this determination, the
Because there is no dispute of material fact as to whether the plaintiff executed a valid arbitration agreement in 2003 that required the plaintiff to arbitrate the claims in her complaint, the defendants as a matter of law are entitled under the FAA to a stay of judicial proceedings and an order compelling arbitration.
Conclusion. We vacate the orders denying the defendants' motions to stay proceedings and compel arbitration, and remand the case to the Superior Court for the entry of an order consistent with this opinion staying the judicial proceeding and compelling arbitration.
So ordered.
Title 9 U.S.C. § 2 (2006) provides, in pertinent part: