In re Morgan Stanley & Co, Inc. (Tex. 2009) (mandamus denial)(arbitration)
No. 07-0665 (Tex. Jul. 3, 2009)(Medina) (arbitration mandamus denied)(arbitration vs. litigation: legal
capacity of party to arbitration clause embedded in an account agreement, who decides the issue? the
court or the arbitrator?)
THE GIST: In this original mandamus proceeding, the relator seeks to compel
arbitration in accordance with its agreement in the underlying case. The other
putative party to the agreement resists arbitration on the ground that she lacked
the mental capacity to assent to the contract. The question here is whether the
court or the arbitrator should decide this issue of capacity. The trial court
concluded that it was the proper forum. We agree and, accordingly, deny the
petition for writ of mandamus. ... We agree that Prima Paint reserves to the court
issues like the one here, that the signor lacked the mental capacity to assent.
Accordingly, the trial court did not abuse its discretion in declining to yield the
question to the arbitrator. Relator’s petition for writ of mandamus is denied.
IN RE MORGAN STANLEY & CO. INC., SUCCESSOR TO MORGAN STANLEY DW, INC.;
from Dallas County;
5th district (05-07-00590-CV, ___ SW3d ___, 07-17-07 Opinion by the Dallas CoA)
The petition for writ of mandamus is denied.
Justice Medina delivered the opinion of the Court [pdf], in which Chief Justice Jefferson, Justice
Wainwright, Justice Green, Justice Johnson, and Justice Willett joined.
Justice Brister delivered a concurring opinion [pdf - 4 pages] (suggesting direct benefits estoppel as an
alternative theory to enforce arbitration clause in the underlying agreement)
Justice Willett delivered a concurring opinion. [pdf] (reading that FAA as clearly requiring that the court
decide the mental-incapacity issue)
Justice Hecht delivered a dissenting opinion. [pdf] (would have the arbitrator decide the issue of capacity
to contract, analogously to a fraudulent inducement defense asserted to avoid enforcement of a
(Justice O'Neill not sitting)
Electronic Briefs in Tex. 2009 No. 07-0665 IN RE MORGAN STANLEY & CO. INC., SUCCESSOR TO
MORGAN STANLEY DW INC.
CASE NOTES AND COMMENTARY ON THIS TEXAS SUPREME COURT OPINION:
Capacity to contract is issue for the courts, not arbitrators (Reverse & Render Blog)
Texas Supreme Court Holds that the Court, not the Arbitrator Should Decide the Issue of Capacity to
Contract (Disputing) Comment by Prof. Alan Scott Rau, University of Texas at Austin School of Law,
posted on Disputing
Legal Incapacity as a Defense to Arbitration (ADR Law Texas Blog)
In Re Morgan Stanley & Co. Inc. (Tex. 2009)
[Note: highlights and hyperlinks have been added to the text of the opinion below; to view the court's
opinion in its original format (pdf), click on the case name at the top of this page]
Argued October 15, 2008
Justice Medina delivered the opinion of the Court, in which Chief Justice Jefferson, Justice
Wainwright, Justice Green, Justice Johnson, and Justice Willett joined.
Justice Brister filed a concurring opinion.
Justice Willett filed a concurring opinion.
Justice Hecht filed a dissenting opinion.
Justice O’Neill did not participate in the decision.
In this original mandamus proceeding, the relator seeks to compel arbitration in accordance
with its agreement in the underlying case. The other putative party to the agreement resists
arbitration on the ground that she lacked the mental capacity to assent to the contract. The
question here is whether the court or the arbitrator should decide this issue of capacity. The trial
court concluded that it was the proper forum. We agree and, accordingly, deny the petition for
writ of mandamus.
Helen Taylor’s estate was worth several million dollars in 1999, the year in which she was
diagnosed with dementia. That year, she also transferred several of her securities accounts to
Morgan Stanley. Each account agreement with Morgan Stanley included an arbitration clause.1
Over the next few years, Taylor also signed a durable power of attorney in favor of her
granddaughter, Kathryn Albers, and a trust agreement, naming Albers as trustee. During this
period, Albers made gifts to her mother, her sister, and herself from Taylor’s estate.
In 2004, a Dallas probate court appointed Nathan Griffin as guardian of Taylor’s estate. By this
time, the value of her estate had been significantly reduced. In May 2005, the guardian sued
Taylor’s granddaughters and others for violation of the Texas Uniform Fraudulent Transfer Act,
civil theft, conversion, and for the imposition of a constructive trust. About a year later, Taylor’s
guardian added Morgan Stanley as a defendant, asserting breach of fiduciary duty, negligence
and malpractice, unsuitability of investments, violations of the Texas Security Act, and breach of
contract. Morgan Stanley moved to compel arbitration of the dispute. The guardian resisted the
motion, arguing that Taylor lacked the mental capacity to contract when she signed the account
agreements with arbitration clauses and that it was for the court, not an arbitrator, to decide this
issue of capacity. Taylor’s guardian also subsequently nonsuited the breach of contract claim.2
The trial court refused to compel arbitration.
Morgan Stanley petitioned the court of appeals for mandamus relief, but the court also declined
to order the matter to arbitration. In re Morgan Stanley & Co., 2007 Tex. App. LEXIS 5582, 2007
WL 2035128 (Tex. App.—Dallas July 17, 2007, orig. proceeding) (mem. op.). Morgan Stanley
then petitioned this Court. We set the case for argument to consider whether a court or an
arbitrator should determine the issue of mental capacity to contract.
The Federal Arbitration Act (“FAA”) generally governs arbitration provisions in contracts
involving interstate commerce. See 9 U.S.C. § 2; see also In re L & L Kempwood Assocs., L.P.,
9 S.W.3d 125, 127 (Tex. 1999). Where the FAA ostensibly controls, as it does here, an
agreement to arbitrate is valid except on grounds as exist at law or in equity to revoke the
contract. 9 U.S.C. § 2. Section 2 of the FAA provides that courts shall compel arbitration on
issues subject to an arbitration agreement. Id. Section 4 of the FAA provides that a court may
consider only issues relating to the making and performance of the agreement to arbitrate. 9 U.
S.C. § 4. Thus, once a party seeking to compel arbitration has established that there is a valid
agreement to arbitrate and that the plaintiff’s claims are within the agreement’s scope, the trial
court must compel arbitration. Id.; In re Oakwood Mobile Homes, Inc., 987 S.W.2d 571, 573
(Tex. 1999) (per curiam).
Before 1967, however, courts often reasoned that any defense that would render the entire
contract unenforceable or void was for the court to decide because if the underlying contract
was invalid so too was the agreement to arbitrate. See generally Katherine V.W. Stone,
Arbitration Law at 242 (2003). The United States Supreme Court rejected that reasoning in
Prima Paint Corp. v. Flood & Conklin Manufacturing Co., 388 U.S. 395, 404 (1967).
The issue in Prima Paint was whether the court or an arbitrator should decide a claim of fraud in
the inducement of the entire contract. Id. at 402. Relying on section 4 of the FAA, the Supreme
Court held that a claim of fraud in the inducement of a contract generally, as opposed to the
arbitration clause specifically, was for the arbitrator, not the court, to decide. Id. at 404 (“a
federal court may consider only issues relating to the making and performance of the agreement
to arbitrate”). Prima Paint thereby established the “separability” doctrine, explaining that an
arbitration provision was separable from the rest of a contract under section 4 and that the issue
of the contract’s validity was to be determined by the arbitrator unless the challenge was to the
agreement to arbitrate itself. Id. at 402-04.
Since Prima Paint, we have dutifully followed the separability doctrine that presumptively favors
arbitration. See Southland Corp. v. Keating, 465 U.S. 1, 15-16 (1984) (holding that federal
arbitration law created by the FAA applies in state courts). We have held that defenses
attacking the validity of a contract as a whole, and not specifically aimed at the agreement to
arbitrate, are for the arbitrator, not the court. See In re RLS Legal Solutions, LLC, 221 S.W.3d
629, 631-32 (Tex. 2007). But we have also recognized that the presumption favoring arbitration
arises only after the party seeking to compel arbitration proves that a valid arbitration
agreement exists. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex. 2003). We have
not, however, previously considered whether the defense of mental incapacity is an attack on
the validity of the contract as a whole and therefore a matter for the arbitrator, as Morgan
Stanley argues, or a gateway matter concerning the existence of an agreement that must be
proven to the satisfaction of the court, as Taylor’s guardian argues.
There is some disagreement about what Prima Paint requires in this situation. The Fifth Circuit
in Primerica Life Insurance Co. v. Brown, 304 F.3d 469, 472 (5th Cir. 2002), has concluded that
the arbitrator should decide a defense of mental incapacity because it is not a specific
challenge to the arbitration clause but rather goes to the entire agreement. The Tenth Circuit
reached the opposite result in Spahr v. Secco, 330 F.3d 1266 (10th Cir. 2003), concluding that
the “mental incapacity defense naturally goes to both the entire contract and the specific
agreement to arbitrate in the contract.” Id. at 1273. Thus, under the Tenth Circuit’s view, the
mental incapacity defense places the “making” of the arbitration agreement at issue under
Section 4 of the FAA, giving the court authority to determine whether the parties have actually
agreed to arbitration. Id. The Supreme Court has not yet settled this conflict but rather expressly
reserved the question in Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 444 n.1.
Buckeye concerned the defense of illegality. The plaintiffs there claimed that the defendant’s
check cashing agreement “violated various Florida lending and consumer-protection laws,” and
was therefore void and illegal ab initio. Id. at 443. Applying Florida law, the Florida Supreme
Court agreed that the contract was illegal and void, and refused to compel arbitration. Id. at 443,
446. Applying Prima Paint’s doctrine of separability, the U.S. Supreme Court reversed the
Florida Supreme Court. Id. at 449.
As it had done in Prima Paint, the Supreme Court rejected the notion that the enforceability of
the arbitration agreement depended on the distinction between void and voidable contracts.
Id. at 448. Instead, the Court reiterated three controlling principles of federal arbitration law.
First, that an arbitration provision is severable from the remainder of the contract. Id. at 445.
Second, that “unless the challenge is to the arbitration clause itself, the issue of the contract’s
validity is considered by the arbitrator in the first instance.” Id. at 445-46. Third, that federal
arbitration law applies in state and federal courts. Id. at 446. The Court concluded that because
the plaintiffs challenged “the [a]greement, but not specifically its arbitration provisions,” the rule
of separability applied, and the arbitration provisions were enforceable “apart from the
remainder of the contract.” Id. at 446.
Most importantly to our present case, however, was the distinction the Supreme Court drew
between issues of validity and issues of contract formation. The Court noted that an
illegality defense, raising the issue of the contract’s validity, was different from a formation
defense, raising the issue of whether a contract was ever concluded:
The issue of the contract’s validity is different from the issue whether any agreement between
the alleged obligor and obligee was ever concluded. Our opinion today addresses only the
former, and does not speak to . . . whether the alleged obligor ever signed the contract,
Chastain v. Robinson-Humphrey Co., 957 F.2d 851 (C.A.11 1992), whether the signor lacked
authority to commit the alleged principal, Sandvik AB v. Advent Int’l Corp., 220 F.3d 99 (C.A. 3
2000); Sphere Drake Ins. Ltd. v. All American Ins. Co., 256 F.3d 587 (C.A.7 2001), and whether
the signor lacked the mental capacity to assent, Spahr v. Secco, 330 F.3d 1266 (C.A.10 2003).
Id. at 444 n.1. The Court thus excluded from its analysis several contract-formation-defense
issues, including the defense in this case, that the signor lacked the mental capacity to assent.
Although the Supreme Court in Buckeye grouped illegality with fraudulent inducement for
purposes of Prima Paint’s separability doctrine and expressly excluded the issue of mental
capacity along with other contract-formation issues from that analysis, the Dissent here
concludes that mental capacity is really more like fraudulent inducement, suggesting that
the Supreme Court was wrong to include it with the other contract-formation issues. Compare
___ S.W.3d at ___ (Hecht, J., dissenting) (“seems to me, lack of capacity is closer to fraudulent
inducement”), with Buckeye, 546 U.S. at 444, n.1. The Dissent reasons that incapacity is
different from the other contract-formation issues distinguished in Buckeye because a contract
signed by an incapacitated person exists subject to ratification or avoidance by the
incapacitated person. ___ S.W.3d at ___. But the Dissent’s analysis begs the question of
whether a contract exists.
As the Fifth Circuit has observed, “where the ‘very existence of a contract’ containing the
relevant arbitration agreement is called into question, the federal courts have authority and
responsibility to decide the matter.” Banc One Acceptance Corp. v. Hill, 367 F.3d 426, 429 (5th
Cir. 2004). And, when the issue of mental capacity is raised, the “very existence of a contract”
is at issue. Id. Because the Supreme Court has grouped mental capacity with the other issues
of contract formation, we do so as well.
Several courts have read Buckeye to add a third discrete category to the Prima Paint analysis,
which includes: (1) a challenge to the validity of the contract as a whole, (2) a challenge to the
validity of the arbitration provision itself, and (3) a challenge to whether any agreement was ever
concluded. Prima Paint reserves the first category for the arbitrator and the second category for
the court. Buckeye, 546 U.S. at 446. Since Buckeye, the federal courts,[Fn3] a state supreme
court,[Fn4] and other state appellate courts [Fn5] have generally concluded that the third
category involves a threshold inquiry for the court. Even before Buckeye’s comment about
contract formation, virtually every court refused to compel arbitration absent the existence of an
agreement to arbitrate.[Fn6]
The Fifth Circuit’s decision in Primerica, that the defense of mental incapacity is an issue for the
arbitrator, not the court, because it is an attack on the whole contract, stands in stark contrast to
these authorities. Moreover, Primerica has been roundly criticized,7 and we aware of no other
court that has followed its reasoning, including the Fifth Circuit. Several months after Primerica,
the Fifth Circuit, in fact, reached a decidedly different result in another case involving the issue
of a contract-formation defense to an arbitration clause.
In Will-Drill Resources, Inc. v. Samson Resources, 352 F.3d 211 (5th Cir. 2003), Samson
resisted arbitration on the grounds that all parties had not signed the agreement containing the
arbitration clause. The case involved several sellers of mineral leases. Id. at 213. Some of the
sellers had agreed to arbitrate any dispute, and some had never signed the underlying contract.
Id. at 215. The Fifth Circuit concluded that whether the sellers had signed the agreement went
directly to the “making” of the agreement and the party’s consent to arbitrate. Noting that
arbitration could not be forced upon a party “absent its consent,” the court wrote:
[W]here the very existence of an agreement is challenged, ordering arbitration could result in an
arbitrator deciding that no agreement was ever formed. Such an outcome would be a statement
that the arbitrator never had any authority to decide the issue. A presumption that a signed
document represents an agreement could lead to this untenable result. We therefore conclude
that where a party attacks the very existence of an agreement, as opposed to its continued
validity or enforcement, the courts must first resolve that dispute. 352 F.3d at 219 (internal
Similarly, we have concluded that whether an arbitration agreement binds a nonsignatory is a
gateway matter to be determined by the court, rather than the arbitrator, unless the parties
clearly and unmistakably provide otherwise. In re Weekley Homes, L.P., 180 S.W.3d 127, 130
(Tex. 2005); see also In re Labatt Food Serv., L.P., 279 S.W.3d. 640, 643 (Tex. 2009) (when
“arbitration agreement is silent about who is to determine whether particular persons are bound
by the agreement, courts, rather than the arbitrator, should determine the issue”).
When deciding federal questions of first impression, we anticipate how the U.S. Supreme Court
would decide the issue. City of Lancaster v. Chambers, 883 S.W.2d 650, 658–59 (Tex. 1994).
This analysis often draws on the precedents of other federal courts, or state courts, to determine
the appropriate answer. Given the overwhelming weight of authority, it is apparent to us that the
formation defenses identified in Buckeye are matters that go to the very existence of an
agreement to arbitrate and, as such, are matters for the court, not the arbitrator.
Although the Fifth Circuit reached a different conclusion in Primerica, we are not obligated to
follow that decision. See Penrod Drilling Corp. v. Williams, 868 S.W.2d 294, 296 (Tex. 1993)
(“While Texas courts may certainly draw upon the precedents of the Fifth Circuit, or any other
federal or state court, in determining the appropriate federal rule of decision, they are obligated
to follow only higher Texas courts and the United States Supreme Court.”). Instead, we agree
that Primerica misapplies Prima Paint’s separability doctrine:
Despite casual assumptions to the contrary, Prima Paint does not merely preserve for the
courts challenges that are “restricted” or “limited” to “just” the arbitration clause alone—this
would be senseless; it preserves for the courts any claim at all that necessarily calls an
agreement to arbitrate into question. To send a dispute to arbitration where “not only” the
arbitration clause itself, but “also,” in addition, the “entire” agreement is subject to challenge, is
to lose sight of the only important question—which is the existence of a legally enforceable
assent to submit to arbitration. Someone lacking the requisite mental capacity to contract
cannot, I dare say, assent to arbitrate anything at all. Alan Scott Rau, Everything You Really
Need to Know About “Separability” in Seventeen Simple Propositions, 14 Am. Rev. Int’l Arb. 1,
We agree that Prima Paint reserves to the court issues like the one here, that the signor lacked
the mental capacity to assent. Accordingly, the trial court did not abuse its discretion in declining
to yield the question to the arbitrator.
Relator’s petition for writ of mandamus is denied.
David M. Medina
OPINION DELIVERED: July 3, 2009
1 The arbitration provisions in the new account agreements stated:
Arbitration of Controversies
You agree that all controversies between you and your principals or agents and Morgan Stanley Dean
Witter or its agents (including affiliated corporations) arising out of or concerning any of your accounts,
orders or transactions, or the construction, performance, or breach of this or any other agreement
between us ... shall be determined by arbitration only ....
2 Although the breach of contract claim has been nonsuited, the doctrine of direct benefits equitable
estoppel may apply to compel the arbitration of other claims. A person who has not agreed to arbitrate
may nevertheless be compelled to do so when the person “seeks, through the claim, to derive a direct
benefit from the contract containing the arbitration provision.” In re Kellogg Brown & Root, Inc., 166 S.W.
3d 732, 741 (Tex. 2005); see also In re Weekley Homes, L.P., 180 S.W.3d 127, 131 (Tex. 2005).
Equitable estoppel is inapplicable, however, when the benefit is merely indirect; that is, when the
substance of the claim arises from general obligations imposed by state law, including statutes, torts and
other common law duties, or federal law. In re Kellogg Brown & Root, 166 S.W.3d at 740-41; see, e.g., R.
J. Griffin & Co. v. Beach Club II Homeowners Ass’n, 384 F.3d 157, 162, 164 (4th Cir. 2004) (refusing
signatory’s request to apply equitable estoppel and compel arbitration against another signatory; the
legal duties the signatory builder allegedly violated did not depend on the terms of the contract but
arose from the common law and statute and thus signatory resisting arbitration was not seeking a direct
benefit of the contract); Intergen N.V. v. Grina, 344 F.3d 134, 140, 145 (1st Cir. 2003) (refusing
signatory’s request to apply equitable estoppel to compel nonsignatory to arbitration because
nonsignatory had relied upon misleading and inaccurate extra-contractual assurances and sustained
losses; nonsignatory alleged state-law causes of action apart from the contract, including intentional
deceit, negligent deceit, unfair trade practices, promissory estoppel, tortious interference with
advantageous relations, and quantum meruit); Westmoreland v. Sadoux, 299 F.3d 462, 467 (5th Cir.
2002)(refusing nonsignatory’s request to apply equitable estoppel to compel signatory to arbitration
where that signatory’s suit did not rely upon the terms of its shareholder agreement or seek to enforce
any duty created by the agreement); see also Mohamed v. Auto Nation USA Corp., 89 S.W.3d 830, 837
(Tex. App.—Houston [1st Dist.] 2002, no pet.)(refusing nonsignatory’s request to apply equitable
estoppel and compel arbitration where suit against nonsignatory did not rely on employment contract to
assert claims for race discrimination, intentional infliction of emotional distress, or negligent hiring,
supervision, and retention); cf. Fridl v. Cook, 908 S.W.2d 507, 513 (Tex. App.—El Paso 1995, writ dism’d
w.o.j.) (refusing to compel arbitration where signatory party resisting arbitration had alleged independent
3 See Sanford v. Memberworks, Inc., 483 F.3d 956, 962-64 (9th Cir. 2007) (holding that
challenges to whether a contract was concluded must be determined by the court prior to arbitration);
Krutchik v. Chase Bank USA, N.A., 531 F. Supp. 2d 1359, 1363 (S.D. Fla. 2008)(holding that it is for the
court to decide where “the initial formation or existence of a contract, including a disputed arbitration
clause is legitimately called into question”); Toledano v. O’Connor, 501 F. Supp. 2d 127, 140 (D.D.C.
2007)(“[This circuit has not addressed] the propriety of district-court adjudication of challenges to the
formation of a contract containing an arbitration provision (as opposed to challenges to the formation of
the arbitration provision itself). [But, we have] long treated disputes over the formation of an agreement
to arbitrate—i.e., whether the parties ever agreed to submit anything to arbitration in the first place—as
properly before the district court.”) (internal quotation marks omitted); Foss v. Circuit City Stores, Inc.,
477 F. Supp. 2d 230, 234-35 (D. Me. 2007) (“The distinction first articulated in Prima Paint Corp.
regarding the appropriate role for the court and the arbitrator is not determinative on questions
regarding the very formation of a contract. . . . [A] challenge to whether a contract was ever validly
concluded is for the court, and not the arbitrator, to decide.”); Larson v. Speetjens, NO. C 05-3176 SBA,
2006 U.S. Dist. LEXIS 66459,at *11-12 2006 WL 2567873, at *3 (N.D. Cal. Sept. 5, 2006) (“The Supreme
Court has distinguished between three categories of challenges to arbitration provisions . . . . First, if a
challenge is to the contract as a whole, it must be decided by the arbitrator. Second, if a challenge is
specifically to the arbitration provision, it must be decided by a court. Finally, if a challenge is to a party’s
signatory power to the contract, it must be decided by a court.”) (internal citations omitted); see also Fox
Int’l Relations v. Fiserv Sec., Inc., 418 F. Supp. 2d 718, 723-24 (E.D. Pa. 2006) (“after the Supreme
Court’s Buckeye decision, it appears that there are three categories of challenges to arbitration
provisions,” and concluding that a challenge to a party’s signatory power falls under the third category
and thus must be decided by a court).
4 Thompson v. Lithia Chrysler Jeep Dodge of Great Falls, 185 P.3d 332, 338 (Mont. 2008) (“the
court is the proper body to hear a challenge to the existence of a contract containing an arbitration
5 See Bruni v. Didion, 73 Cal. Rptr. 3d 395, 406 (Cal. Ct. App. 2008) (“A court, however, still must
consider one type of challenge to the overall contract: a claim that the party resisting arbitration never
actually agreed to be bound.”); Operis Group, Corp. v. E.I. at Doral, LLC, 973 So. 2d 485, 488 (Fla. Dist.
Ct. App. 2007) (“A challenge to the very existence of any agreement between the parties is thus
distinguishable from a challenge to the validity of a presumptively existing, signed document.”); Rowe
Enters., LLC v. Int’l Sys. & Elecs. Corp., 932 So. 2d 537, 538-41 (Fla. Dist. Ct. App. 2006) (stating trial
court is required to hold hearing on defendant’s motion to compel arbitration when plaintiff’s principal
claimed that he had never seen document containing arbitration clause, and that his signature on that
document had been forged); Rhymer v. 21st Mortgage Corp.,2006 Tenn. App. LEXIS 800, at *9, 2006
WL 3731937, at *3 (Tenn. Ct. App. Dec. 19, 2006) (holding that trial court is required to decide mental
capacity challenge because federal courts “have generally reasoned that there is a difference between
challenging a contract on the basis of a party’s status (i.e. mental incapacity) and challenging a contract
based on behavior/conduct of a party (i.e. fraudulent inducement)”).
6 See Banc One Acceptance Corp. v. Hill, 367 F.3d 426, 429-30 (5th Cir. 2004)(holding that federal
courts have the authority and responsibility to decide matters where the challenge concerns the “very
existence of a contract” or whether a contract with an arbitration clause was concluded); Will-Drill Res.,
Inc. v. Samson Res. Co., 352 F.3d 211, 218 (5th Cir. 2003)(holding that “[w]here the very existence of
any agreement is disputed, it is for the courts to decide at the outset whether an agreement was
reached”); Spahr v. Secco, 330 F.3d 1266, 1268, 1272–73 (10th Cir. 2003) (holding that courts hear a
party’s challenge to the whole contract based on the claim that the signor did not have mental capacity
to sign); Sphere Drake Ins. Ltd. v. All Am. Ins. Co., 256 F.3d 587, 591 (7th Cir. 2001) (“[A]s arbitration
depends on a valid contract[,] an argument that the contract does not exist can’t logically be resolved by
the arbitrator . . . .”); Sandvik AB v. Advent Int’l Corp., 220 F.3d 99, 100-01 (3d Cir. 2000) (refusing to
compel arbitration where the party seeking arbitration asserted that “the agent who signed the
agreement on its behalf lacked authority to do so” because Prima Paint presumes an underlying existent
agreement); Chastain v. The Robinson-Humphrey Co., 957 F.2d 851, 854 (11th Cir. 1992) (stating that
“Prima Paint has never been extended to require arbitrators to adjudicate a party’s contention,
supported by substantial evidence, that a contract never existed at all”); Three Valleys Mun. Water Dist.
v. E.F. Hutton & Co., 925 F.2d 1136, 1136-42 (9th Cir. 1991)(refusing to compel arbitration where the
plaintiffs claimed individual who signed the agreement lacked the authority to bind the plaintiffs because
Prima Paint was “limited to challenges seeking to avoid or rescind a contract” and was inapplicable to
“challenges going to the very existence of a contract that a party claims never to have agreed to.”); Nat’l
R.R. Passenger Corp. v. Boston & Maine Corp., 850 F.2d 756, 761 (D.C. Cir. 1988) (“if the parties
disagree as to whether they ever entered into any arbitration agreement at all, the court must resolve
that dispute”) (internal citations omitted); I.S. Joseph Co. v. Mich. Sugar Co., 803 F.2d 396, 400 (8th Cir.
1986) (holding that Prima Paint does not apply when a party challenges the whole contract based on the
claim that the assignee cannot enforce the contract); A.T. Massey Coal Co. v. Int’l Union, United Mine
Workers of Am., 799 F.2d 142, 146 (4th Cir. 1986) (refusing to compel arbitration until district court
decided question of existence of a contract to arbitrate); Par-Knit Mills, Inc. v. Stockbridge Fabrics Co.,
636 F.2d 51, 55 (3d Cir. 1980) (“A party may, in an effort to avoid arbitration, contend that it did not
intend to enter into the agreement which contained an arbitration clause.”); Interocean Shipping Co. v.
Nat’l Shipping & Trading Corp., 462 F.2d 673, 676–77 (2d Cir. 1972) (holding that a party’s assertion
that it never entered into the contract containing the arbitration clause should be decided by the trial
court); J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex. 2003) (stating that if a “party resists
arbitration, the trial court must determine whether a valid agreement to arbitrate exists”); Am. Med.
Techs., Inc. v. Miller, 149 S.W.3d 265, 270 (Tex. App.—Houston [14th Dist.] 2004, no pet.)(stating that
when a party seeks to compel arbitration, a trial court must first determine the existence of a valid
agreement to arbitrate); see also Large v. Conseco Fin. Servicing Corp., 292 F.3d 49, 53-54 (1st Cir.
2002) (reviewing cases “involving allegations that the contract with the arbitration clause never existed”);
Fleetwood Enters., Inc. v. Gaskamp, 280 F.3d 1069, 1073 (5th Cir. 2002) (holding that federal policy
favoring arbitration does not apply to the determination of whether there is an agreement to arbitrate);
but see Primerica Life Ins. Co. v. Brown, 304 F.3d 469, 472 (5th Cir. 2002) (holding that the Prima Paint
rule does apply to mental capacity defenses).
7 See, e.g., Stephen K. Huber, The Arbitration Jurisprudence of the Fifth Circuit: Round IV, 39 Tex.
Tech. L. Rev. 463, 476 (2007) (disapproving Primerica as not “sensible” for ignoring the distinction
between contract defenses and contract formation); Alan Scott Rau, Everything You Really Need to
Know About “Separability” in Seventeen Simple Propositions, 14 Am. Rev. Int’l Arb. 1, 15-16 (2003)
(criticizing Primerica as a “bizarre and inexplicable misreading” of the separability doctrine).