                                                      [PUBLISH]




              IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT


                              No. 94-4984

                 D. C. Docket No. 94-779-CIV-FAM




KOTAM ELECTRONICS, INC.,

                                               Plaintiff-Appellee,

                                versus

JBL CONSUMER PRODUCTS, INC.,

                                               Defendant-Appellant.



          Appeal from the United States District Court
              for the Southern District of Florida

                           (August 19, 1996)


     Before TJOFLAT, Chief Judge, KRAVITCH, HATCHETT, ANDERSON,
EDMONDSON, COX, BIRCH, DUBINA, BLACK, CARNES and BARKETT, Circuit
Judges.


DUBINA, Circuit Judge:
      We voted to rehear this case en banc to determine whether

the holding in Cobb v. Lewis, 488 F.2d 41 (5th Cir. 1974),1 that

antitrust claims are non-arbitrable, remains controlling

precedent in this circuit in light of intervening decisions of

the United States Supreme Court.        In 1985, the Supreme Court made

clear that    antitrust disputes in the international context are

arbitrable.    See Mitsubishi Motors Corp. v. Soler Chrysler-

Plymouth, Inc., 473 U.S. 614, 105 S.Ct. 3346, 87 L.Ed.2d 444

(1985).    Today we hold that antitrust disputes in the domestic

context are arbitrable as well.

                             I.   BACKGROUND

      Plaintiff-Appellee Kotam Electronics, Inc. ("Kotam") sells

and distributes consumer electronic products.        From approximately

1984 to 1992, Kotam entered into annual dealer and distributor

contracts with Defendant-Appellant JBL Consumer Products, Inc.

("JBL").     Each of these contracts contained the following

arbitration clause explicitly requiring the parties to submit

antitrust claims to binding arbitration:



             22.   GOVERNING LAW AND ARBITRATION

             b. Any controversy or claim arising out of
             or relating to this Agreement, or the breach
             or validity thereof, whether at common law or
             under statute, including without limitation
             claims asserting violation of the antitrust


  1
     In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th
Cir. 1981) (en banc), this court adopted as binding precedent all
decisions of the former Fifth Circuit handed down prior to
October 1, 1981.
                                    2
            laws, shall be settled by final and binding
            arbitration in accordance with the Rules for
            Commercial Arbitration of the American
            Arbitration Association ("AAA") in effect at
            the time of the execution of this Agreement.

(emphasis added).

      In 1994, despite its agreement to arbitrate, Kotam filed

suit in federal district court against JBL alleging price

discrimination in violation of the Robinson-Patman Act, 15 U.S.C.

§ 13(a).2    In response, JBL moved to dismiss the complaint or,

in the alternative, to stay the judicial proceedings pending

arbitration pursuant to section 3 of the Federal Arbitration Act

(FAA), 9 U.S.C. § 3.    The district court, relying on Cobb v.

Lewis, 488 F.2d 41 (5th Cir. 1974), denied JBL's motion.

      JBL appealed, and a divided panel of this court affirmed the

district court's judgment.   See Kotam Elecs., Inc. v. JBL

Consumer Products, Inc., 59 F.3d 1155 (11th Cir. 1995)(Gibson, J.

dissenting).   A majority of the judges of this court in regular

active service voted to rehear the case en banc, see Kotam

Elecs., Inc. v. JBL Consumer Products, Inc., 69 F.3d 1097 (11th

Cir. 1995),3 and we now reverse the judgment of the district

court.



  2
     There is no dispute that Kotam's single claim for price
discrimination falls squarely within the terms of the parties'
agreement to arbitrate "claims asserting violation of the
antitrust laws."
  3
     This order vacated the panel's opinion. See 11th Cir. R.
35-11 ("Unless otherwise expressly provided, the effect of
granting a rehearing en banc is to vacate the panel opinion and
to stay the mandate.").
                                  3
              II.    JURISDICTION AND STANDARD OF REVIEW

       We have jurisdiction over this appeal pursuant to section 16

of the FAA, which provides that "[a]n appeal may be taken from an

order refusing a stay of any action under section 3 [of the

FAA]."    9 U.S.C. § 16(a)(1)(A).            The district court denied JBL's

motion to stay judicial proceedings pending arbitration based on

its resolution of a question of law.                Therefore, we review the

district court's decision de novo.              See Luckie v. Smith Barney,

Harris Upham & Co., Inc., 999 F.2d 509, 512 (11th Cir. 1993).

                            III.    DISCUSSION

       Kotam argues that the district court correctly held that Cobb

remains   controlling    precedent       in     the    Eleventh    Circuit.    In

contrast, JBL argues that in light of intervening decisions of the

Supreme Court, specifically        Mitsubishi and its progeny, Cobb's

holding that antitrust claims are non-arbitrable can no longer be

considered controlling precedent in this circuit.                  We agree with

JBL.

A.     Cobb v. Lewis

       In 1974, the former Fifth Circuit held that, "as a general

matter,    antitrust    claims     are        not    appropriate    subjects   of

arbitration."       See Cobb, 488 F.2d at 47.                Cobb involved an

agreement between the franchiser of a nationwide chain of motion

picture theaters and the owners of individual theaters. Id. at 43.

The individual theater owners filed a class action alleging, among

other things, violations of the Sherman Act, 15 U.S.C. § 1, and the

Clayton Act, 15 U.S.C. § 77e.        Id. at 43-44.          In concluding that

                                         4
antitrust claims are not appropriate subjects of arbitration, the

Cobb court followed the lead of the Second, Eighth, and Ninth

Circuits.      See Cobb, 488 F.2d at 47,         relying on American Safety

Equip. Corp. v. J.P. Maguire & Co., 391 F.2d 821, 825 (2nd Cir.

1968); Helfenbsin v. International Indus. Inc., 438 F.2d 1068 (8th

Cir.), cert. denied, 404 U.S. 872, 92 S.Ct. 63, 30 L.Ed.2d 115

(1971); A & E Plastik Pak Co. v. Monsanto Co. , 396 F.2d 710 (9th

Cir. 1968).

         Specifically, the Cobb panel expressly premised its holding on

"three major considerations" outlined by the Second Circuit in

American Safety:       (1) the important role of private litigants in

enforcing the antitrust laws; (2) "the complexity of the issues and

the extensiveness and diversity of the evidence antitrust cases

usually involve;" and (3) "the questionable propriety of entrusting

the decision of antitrust issues to commercial arbitrators, who

`are frequently men drawn for their business expertise,' when `it

is the business community generally that is regulated by the

antitrust laws.'"       Cobb, 488 F.2d at 47 (citing American Safety,

391 F.2d at 826-27).4

B.       Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc.


     4
       The American Safety court also relied on two other considerations not
cited by the Cobb court: (1) that arbitration clauses might be contracts of
adhesion; and (2) that the claim in American Safety was "that the agreement itself
was an instrument of illegality." 391 F.2d at 827. (emphasis added). In
Mitsubishi, the Supreme Court rejected the first consideration, noting that "[t]he
mere appearance of an antitrust dispute does not alone warrant invalidation of
the selected forum on the undemonstrated assumption that the arbitration clause
is tainted." Mitsubishi, 473 U.S. at 632, 105 S.Ct. at 3357. While the second
rationale has not been called into question, it was not relied upon by the Cobb
court and does not apply under the facts of this case.

                                        5
     In 1985, the Supreme Court explicitly rejected the American

Safety doctrine and each of the underlying considerations upon

which the Cobb court relied.        See Mitsubishi, 473 U.S. 614, 105

S.Ct. 3346.     In   Mitsubishi, the     parties entered into a sales

agreement containing an arbitration clause.        The clause provided

for arbitration of all controversies arising out of the agreement

in accordance with the rules of the Japan Commercial Arbitration

Association.     Id. 473 U.S. at 617, 105 S.Ct. at 3349.          When

disputes arose among the parties, Soler resisted the arbitration of

its antitrust claims on the basis of the American Safety doctrine.

Id. 473 U.S. at 620-23, 105 S.Ct. at 3350-52.     However, the Supreme

Court explicitly rejected the American Safety considerations and

held that, in the international context, antitrust claims are

arbitrable.

        First, the Court concluded that "[t]he importance of the

private damages remedy . . . does not compel the conclusion that it

may not be sought outside an American court." Mitsubishi, 473 U.S.

at 635, 105 S.Ct. at 3358.    The       Mitsubishi Court reasoned that

arbitrators are bound, as are judges, to apply the antitrust laws,

and that there is no basis for assuming that arbitration will not

provide an adequate mechanism for enforcement of the antitrust

laws.    Id. 473 U.S. at 635-37, 105 S.Ct. at 3358-60.     Second, the

Court dismissed the consideration that antitrust suits are "prone

to complications" and are therefore ill-suited for arbitration.

Id. 473 U.S. at 633, 105 S.Ct. at 3357.      The Court emphasized that

adaptability and access to expertise are hallmarks of arbitration

                                    6
and noted that the "anticipated subject matter of the dispute may

be taken into account when the arbitrators are appointed."                                 Id.
Third, the Court declined to assume that arbitration panels will be

hostile to the constraints on business conduct that antitrust law

imposes.      As     the      Court    stated,         "We   decline      to   indulge     the

presumption       that     the   parties      and      arbitral       body     conducting    a

proceeding    will       be    unable    or    unwilling         to   retain     competent,

conscientious, and impartial arbitrators."                        Id. 473 U.S. at 634,

105 S.Ct. at 3358.

     It is true, as Kotam points out, that the Mitsubishi Court

noted at the outset of its opinion that it found it "unnecessary to

assess the legitimacy of the American Safety doctrine as applied to

agreements to arbitrate arising from domestic transactions."                               473

U.S. at 629, 105 S.Ct. at 3355; see id. ("we conclude that concerns

of international comity . . . require that we enforce the parties'

agreement,        even   assuming       that       a    contrary       result     would     be

forthcoming in a domestic context"). However, we do not think that

this language decides the issue currently pending before this

court.      While limited to the international context by its own

facts, Mitsubishi nevertheless substantially weakened the decision
in   Cobb    by    dismantling         all    of       the     American      Safety   policy

considerations underlying the former Fifth Circuit's holding in

Cobb.

     The    American       Safety      doctrine,         and    consequently       Cobb,    is

further undermined by Mitsubishi's emphasis on the "federal policy

favoring arbitration."                As the Supreme Court explained, "`the

                                              7
preeminent concern of Congress in passing the [FAA] was to enforce

private agreements into which parties had entered,' a concern which

`requires that we rigorously enforce agreements to arbitrate.'"

Mitsubishi, 473 U.S. at 625-26, 105 S.Ct. at 3353 (citing Dean

Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 221, 105 S.Ct. 1238,

84 L.Ed.2d 158 (1985)).      Moreover, the Mitsubishi Court stated that

a party, having agreed to arbitrate, should be held to that

agreement unless Congress has "evinced an intention to preclude a

waiver of judicial remedies for the statutory rights at issue."

Mitsubishi, 473 U.S. at 628, 105 S.Ct. at 3354-55.               Finally, the

Mitsubishi Court could find no evidence of Congressional intention

to    preclude    arbitration    of   antitrust    claims   in   the   text   or

legislative history of either the Sherman Act or the FAA.              See id.

473 U.S. at 628-29, 105 S.Ct. at 3355.            Thus, we conclude that JBL

is correct in its contention that the decision in Mitsubishi casts

considerable doubt on the viability of Cobb in this circuit.

C.     Mitsubishi's Progeny.

       The Supreme Court itself has acknowledged that its rejection

of the American Safety considerations in Mitsubishi has application

outside the international context.         Two years after the Mitsubishi
decision,        the   Supreme    Court    rendered      its     decision     in

Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 107 S.Ct.

2332, 96 L.Ed.2d 185 (1987) (hereinafter "McMahon").               In McMahon,

the     Supreme Court again rejected the                    American    Safety

considerations; however, it also discarded the distinction between

domestic and international transactions with respect to arbitration

                                       8
of § 10(b) of the Securities Exchange Act of 1934, and civil RICO

claims.     Most notably, the Supreme Court rejected the Second

Circuit's holding that the American Safety doctrine was still good
law, despite Mitsubishi, on the ground that Mitsubishi pertained

only to international transactions.   Id. 482 U.S. at 238-42, 107

S.Ct. at 2344-46. The Supreme Court concluded that "[a]lthough the

holding in Mitsubishi was limited to the international context,

much of its reasoning is equally applicable [to domestic civil RICO

claims]."   McMahon, 482 U.S. at 239, 107 S.Ct. at 2344; see also

id. 482 U.S. at 232, 107 S.Ct. at 2341 (declining to limit its

earlier decision in Scherk v. Alberto-Culver Co., 417 U.S. 506, 94

S.Ct. 2449, 41 L.Ed.2d 270 (1974), which involved the arbitrability

of § 10(b) claims, to cases arising in an international setting).5

      Furthermore, the Supreme Court has since cited Mitsubishi for

the general proposition that antitrust claims are arbitrable.

Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 28, 111 S.Ct.



  5
     In McMahon, the Supreme Court also revisited an earlier
case, Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed 168
(1953), and that Court's concerns about arbitration. The McMahon
Court noted that Wilko stood for the proposition that arbitration
would "weaken [a plaintiffs'] ability to recover" under the
securities laws, and that the arbitration agreement in that case
was unenforceable "only because arbitration was judged inadequate
to enforce the statutory rights created by § 12(2) [of the
Securities Act, 15 U.S.C. § 771(2)]." McMahon, 482 U.S. at 228-
31, 107 S.Ct. at 2338-40. Questioning that reasoning, the Court
stated "[i]t is difficult to reconcile Wilko's mistrust of the
arbitral process with this Court's subsequent decisions involving
the Arbitration Act." McMahon, 482 U.S. at 231-32, 107 S.Ct. at
2340 (citing Mitsubishi). Ultimately, the Court overruled Wilko
in Rodriguez-De Quijas v. Shearson/American Express Inc., 490
U.S. 477, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989), relying largely
on McMahon and Mitsubishi.
                                 9
1647, 1652, 114 L.Ed.2d 26 (1991) ("claims under [the Sherman Act]

are appropriate for arbitration").          See also Matsushita Elecs.
Indus. Co. v. Epstein, __ U.S. __, 116 S.Ct. 873, 883, 134 L.Ed.2d

6    (1996)    ("As   [McMahon]    demonstrates,   a   statute   conferring

exclusive federal jurisdiction for a certain class of claims does

not necessarily require resolution of those claims in federal

court.").

D.    Other Circuits' Treatment Of This Issue.

      Finally, we find it persuasive that since the Supreme Court's

ruling in Mitsubishi, four other circuits have expressed the view

that the American Safety doctrine is incompatible with the Supreme

Court's intervening decisions and that domestic antitrust claims

are therefore arbitrable.         The Ninth Circuit found that:

      Given the Court's meticulous step-by-step disembowelment
      of the American Safety doctrine, this circuit will no
      longer follow American Safety. We hold that Mitsubishi
      effectively overruled American Safety and its progeny.

Nghiem v. NEC Elec., Inc., 25 F.3d 1437, 1441-42 (9th Cir.), cert.

denied, __ U.S. __, 115 S.Ct. 638, 130 L.Ed.2d (1994) (citations

omitted).     Likewise, the Second Circuit affirmed, without opinion,

a district court's       holding that "the reasoning of          Mitsubishi
should apply with equal force to domestic claims" and that "`none

of the justifications for the American Safety doctrine retain their

vigor.'"      Hough v. Merrill Lynch, 757 F.Supp. 283, 286 (S.D.N.Y.),

aff'd without op., 946 F.2d 883 (2d Cir. 1991) (citations omitted).

       The Seventh Circuit, while not explicitly deciding the issue,

has stated in dicta that companies "may agree to arbitrate their

antitrust disputes -- certainly so for international transactions,
                                      10
. . . and likely so for domestic transactions."                          Sanjuan v.

American Bd. of Psychiatry and Neurology, Inc., 40 F.3d 247, 250

(7th Cir. 1994), cert. denied, __ U.S. __, 116 S.Ct. 1044, 134
L.Ed.2d 191 (1996); see also Smokey Greenshaw Cotton Co., Inc. v.

Merrill Lynch, Pierce, Fenner and Smith, Inc., 785 F.2d 1282, 1282

(5th    Cir.    1986)   (per   curiam,      on   petition      for   rehearing     and

suggestion for rehearing en banc), cert. denied, 482 U.S. 928, 107

S.Ct. 3211, 96 L.Ed.2d 698 (1987) (stating, though not in an

antitrust       context,   that     "although         Mitsubishi     arose    in    an

international antitrust dispute and its holding purports to be

limited to that context, we believe that its broad language may

carry significance for domestic disputes as well").

                               IV.    CONCLUSION

       In light of Mitsubishi and its progeny, as well as the

persuasive authority from our sister circuits, we hold that Cobb is

no     longer   controlling     precedent        in    this    circuit      and    that

arbitration agreements concerning domestic antitrust claims are

enforceable. Accordingly, we reverse the district court's judgment

denying     JBL's   motion     to    stay     judicial        proceedings     pending

arbitration and remand this case for further proceedings consistent

with this opinion.

       REVERSED and REMANDED.




                                         11
