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March 25, 2003


The opinion of the court was delivered by: Lewis A. Kaplan, United States District Judge


Petitioners in this matter, Beacon Hill Asset Management LLC ("Beacon Hill") and four of its employees, here seek a stay of arbitration. Respondents removed the proceeding from the state court in which it was commenced, purporting to invoke federal question jurisdiction and seek to compel arbitration. This Court is obliged at the outset to consider whether it has subject matter jurisdiction. It hereby directs the parties to show cause, on or before April 8, 2003, why the action should not be remanded for lack of subject matter jurisdiction. The parties shall exchange briefs on that date, and the Court will hear oral argument on April 11, 2003 at 10 a.m.


Two of the respondents are members of Beacon Hill, and the third is an affiliate of one of them. In January 2003, they demanded arbitration of a claim under the Beacon Hill Limited Liability Company Agreement.

In February 2003, petitioners filed a petition in the New York Supreme Court, New York County, to stay arbitration on several grounds, only one of which is relevant here, viz. that proceeding with the arbitration would prejudice or abridge the Fifth Amendment rights of the individual petitioners in view of the fact that at least some of the matters raised by the arbitration demand relate to matters that are or may be implicated in a private investigation being conducted by the Securities and Exchange Commission ("SEC"), a civil action brought by the SEC in this Court, and a grand jury investigation being conducted by the United States Attorney for the District of New Jersey. The essence of the argument is that Beacon Hill cannot defend the arbitration without the uninhibited testimony of the individual petitioners, each of whom will assert his privilege against self-incrimination in the arbitration. Respondents promptly removed the state court proceeding to this Court. The only alleged basis of jurisdiction is the contention that the petition to stay arbitration "requires determination of a question of federal constitutional law over which this Court has original jurisdiction pursuant to 28 U.S.C. § 1331 and 1441." Notice of Removal ¶ 10.


The Fifth Amendment privilege against self-incrimination, made applicable to the states by the Fourteenth Amendment, embodies a right to be free of self-incrimination compelled by the state. Absent state action, there is no constitutional issue. See, e.g., D. L. Cromwell Invs., Inc. v. NASD Regulation, Inc., 279 F.3d 155, 161-62 (2d Cir.), cert. denied, 123 S.Ct. 580 (2002); Desiderio v. NASD, 191 F.3d 198, 206-07 (2d Cir. 1999), cert. denied, 531 U.S. 1069 (2000). Thus, while it is unquestioned that the individual petitioners may assert their privileges in the arbitration, it is equally clear that adverse inferences may be drawn against them should they do so. See Baxter v. Palmigiano, 425 U.S. 308, 318 (1976). Similarly, "[t]he Constitution does not require a stay of civil proceedings pending the outcome of criminal proceedings." Afro-Lecon, Inc. v. United States, 820 F.2d 1198, 1202 (Fed. Cir. 1987); accord Nosik v. Singe, 40 F.3d 592, 595 (2d Cir. 1994). At first blush, therefore, it would appear that any alleged unfairness in requiring petitioners to proceed to arbitration raises no substantial constitutional question. Notwithstanding the foregoing, however, there is one matter as to which the Court is in doubt.

It is well established that federal courts have discretion to stay civil proceedings pending the outcome of criminal proceedings where the interests of justice so require. E.g., Afro-Lecon, Inc., 820 F.2d at 1202; Kashi v. Gratsos, 790 F.2d 1050, 1057 (2d Cir. 1986); SEC v. Dresser Indus., Inc., 628 F.2d 1368, 1374-75 (D.C. Cir. 1980); cf. United States v. Kordel, 397 U.S. 1, 12 n. 27 (1970). This discretion sometimes is exercised in favor of the government, in which event the privilege against self-incrimination plays no part, and sometimes in favor of a prospective criminal defendant, in which it can be a consideration.

If and to the extent the construction of the privilege against self-incrimination is a consideration in determining whether to issue such a stay, it perhaps is arguable that a petition to stay arbitration on the ground that its further progress would implicate the Fifth Amendment may be a question "arising under" the Constitution.*fn1 If, on the other hand, the construction of the privilege is a given — i.e., its contours are plain and undisputed — and the determination of such an application simply involves balancing the known and uncontroverted nature of the privilege against other circumstances, which may vary from case to case, then the determination of such an application arguably involves no question "arising under" the Constitution. In such an event, the federal courts' power to grant a stay would stem from a non-constitutional source, perhaps their inherent power to control their dockets.*fn2 And if this is the case, any power of the state courts to stay an arbitration or civil action in light of the pendency of a parallel criminal case or investigation presumably would be a function of state rather than federal law.


In view of the foregoing, the parties' submissions shall address the following questions, in addition to any other questions going to the remand issue that they may wish to address:

1. Does the petition state a claim "arising under" the Constitution or laws of the United States?
2. Assuming that it does, is the claim insufficiently substantial to confer subject matter jurisdiction on this Court?
3. In any case, should any federal claim be dismissed on its merits and the case therefore remanded to the state ...

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