                          REVISED AUGUST 22, 2002

                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT


                               No. 01-60651


                      INVESTMENT PARTNERS, L.P.,

                                                     Plaintiff-Appellant,

                                     v.


                  GLAMOUR SHOTS LICENSING, INC., and
                      CANDID COLOR SYSTEMS, INC.,

                                                    Defendants-Appellees.


             Appeal from the United States District Court
               for the Southern District of Mississippi
                           Southern Division

                               July 15, 2002

Before JOLLY, JONES and BARKSDALE, Circuit Judges.

Edith H. Jones, Circuit Judge:

          The questions presented in this appeal are whether an

arbitration clause that prevents the award of “punitive damages”

proscribes    antitrust    treble   damages   and   whether,   if   so,   the

arbitration clause is void as against public policy. We affirm the

district court’s decision that statutory treble damages are not

equivalent to “punitive damages,” the clause is enforceable, and

the parties must arbitrate.
            In 1992, Investment Partners entered into a franchise and

licensing agreement with Glamour Shots Licensing, Inc. (“GSL”).

The licensing agreement permitted Investment Partners to open and

operate a “Glamour Shots” store in Biloxi, Mississippi.               The

licensing   agreement   required   Investment   Partners   to   use   the

services of Candid Color Systems, Inc. (“CCS”), a wholly owned

subsidiary of GSL, for all photo processing needs related to the

operation of the “Glamour Shots” franchise.

            In October 2000, Investment Partners filed suit against

GSL and CCS in federal district court alleging violations of

federal antitrust laws.      According to Investment Partners, CCS

charged exorbitant prices for photo processing pursuant to an

illegal tying agreement with GSL.        Investment Partners sought

compensatory and statutory treble damages for alleged violations of

the Clayton Act, 15 U.S.C. § 15.

            Appellees moved to compel arbitration, pursuant to 9

U.S.C. § 4, and a provision of the licensing agreement that

provides:

     29.    Arbitration: Any claim, controversy or dispute
            arising out of or relating to this Agreement or out
            of [Investment Partners’] operation of the Business
            shall, except as set forth herein, be settled by
            arbitration    in  Oklahoma  City,   Oklahoma,   in
            accordance   with   the  rules   of  the   American
            Arbitration Association.       This agreement to
            Arbitrate shall survive the termination of this
            Agreement.    Any arbitration shall be undertaken
            pursuant to the Federal Arbitration Act . . . The
            arbitrators shall not award punitive damages. . . .



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Appellees argued that this provision required arbitration because

Investment Partners’ antitrust claims arose out of the licensing

agreement.     That   the   clause     covers     the   parties’    dispute     is

uncontested.

            Investment Partners responded, however, that the clause

is void because, in prohibiting the award of punitive damages, it

prevents the arbitrator from awarding treble damages as required by

federal antitrust laws.        The district court rejected Investment

Partner’s argument, granted the motion to compel arbitration, and

dismissed Investment Partners’ suit without prejudice.               Investment

Partners now appeals.

                                DISCUSSION

            This court reviews an order compelling arbitration de

novo.    OPE Int’l L.P. v. Chet Morrison Contractors, Inc., 258 F.3d

443, 445 (5th Cir. 2001).      All doubts concerning arbitrability are

resolved in favor of arbitration.                Id. (citing Moses H. Cone

Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 24-25,

103 S.Ct. 927 (1983)).

            Relying   primarily   on       Larry’s   United    Super,    Inc.    v.

Werries, 253 F.3d 1083, 1086 (8th Cir. 2001), Appellees contend

that this court’s jurisdiction “extends only to determine whether

a valid agreement to arbitrate exists, not to determine whether

public    policy   conflicts    with       the   remedies     provided   in     the

arbitration clause.” Larry’s United, 253 F.3d at 1086. The circuit


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courts are split on whether the enforceability of an arbitration

clause should be adjudicated before arbitration when a party

contends that public policy prevents the clause’s waiver of certain

remedies.    Compare Larry’s United, and Great Western Mtg. Corp. v.

Peacock, 110 F.3d 222, 230 (3rd Cir. 1997) (“availability of

punitive    damages   cannot     enter       into      a   decision     to    compel

arbitration.”); with Paladino v. Avnet Computer Tech., Inc., 134

F.3d 1054, 1059-60 (11th Cir. 1998) (refusing to compel arbitration

and holding that arbitration clause was unenforceable because it

“completely proscribes an arbitral award of Title VII damages”) and

Graham Oil Co. v. Arco Prod. Co., 43 F.3d 1244, 1246-48 (9th Cir.

1995) (holding that arbitration clause which compelled surrender of

statutory remedies afforded by the Petroleum Marketing Practices

Act   was   unenforceable     because       it    contravened       federal   public

policy).     Although   the    question          is   close,   we    conclude   that

appellate jurisdiction exists because IP seeks to void the entire

arbitration clause on public policy grounds, albeit by means of

attacking the remedy provision, and the Supreme Court disposed of

a similar argument, without submitting the issue first to the

arbitrators, in Green Tree Financial Corp. v. Randolph, 531 U.S.

79, 121 S.Ct. 513 (2000).

            Investment Partners asserts that arbitration is not an

adequate substitute for a judicial forum in this case because the

arbitration clause in the licensing agreement denies a “statutorily



                                        4
guaranteed right” to treble damages.               Because prohibition of

punitive   damages      in   the    arbitration    agreement   prevents    the

arbitrator    from   awarding      statutory    treble   damages,   Investment

Partners contends that the arbitration clause is void.                    This

argument is meritless.

           In Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth,

Inc., 473 U.S. 614, 105 S.Ct. 3346 (1985), the Court discussed the

role of treble damages in federal antitrust statutes.               The Court

explained:

     Notwithstanding   its   important   incidental   policing
     function, the treble-damages cause of action conferred on
     private parties by § 4 of the Clayton Act . . . seeks
     primarily to enable an injured competitor to gain
     compensation for that injury. “Section 4 is in essence
     a remedial provision. . . . Of course, treble damages
     also play an important role in penalizing wrongdoers and
     deterring wrongdoing . . . It nevertheless is true that
     the treble-damages provision, which makes awards
     available only to injured parties, and measures the
     awards by a multiple of the injury actually proved, is
     designed primarily as a remedy.”

Id. at 635-36, 105 S.Ct. 3346 (quoting Brunswick Corp. v. Pueblo

Bowl-O-Mat, 429 U.S. 477, 485-86, 97 S.Ct. 690 (1977)).                Unlike

punitive     damages,    which     punish   a    wrongdoer,    treble-damages

compensate an injured party.          Id.   While these statements do not

constitute the principal holding in Mitsubishi Motors Corp., they

are certainly definitive enough to bind this inferior court.

Therefore, the prohibition in the parties’ arbitration agreement

against awarding “punitive damages” does not extend to statutory

treble damages.


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              The Supreme Court has occasionally referred to treble

damage remedies or awards as “punitive.”                   See Vermont Agency of

Natural Resources v. United States ex rel. Stevens, 529 U.S. 765,

785-86 (2000) (holding that treble damages and civil penalty of up

to $10,000 per claim authorized by the False Claims Act are

“essentially punitive in nature” because “‘[t]he very idea of

treble damages reveals an intent to punish past, and to deter

future, unlawful conduct, not to ameliorate the liability of

wrongdoers’” (quoting Texas Indus., Inc. v. Radcliff Materials,

Inc., 451 U.S. 630, 639 (1981)); cf. also id. (noting that United

States   ex    rel.      Marcus   v.    Hess,   317   U.S.      537,    550    (1943),

“suggest[s] that treble damages, such as those in the antitrust

laws, would have been [punitive]”); C.I.R. v. Glenshaw Glass Co.,

348 U.S. 426, 474-75, 477 (holding that “money received as

exemplary damages for fraud or as the punitive two-thirds portion

of   a treble-damage        antitrust     recovery    must      be    reported   by a

taxpayer as gross income under s 22(a) of the Internal Revenue Code

of 1939”).      We do not find these references as significant as

Mitsubishi Motors Corp. in the present context. First, the task in

this   case    is   to    construe      “punitive”    in    a    private      parties’

arbitration agreement, which the Supreme Court has clearly said we

interpret     broadly     to   permit    arbitration       as   far    as   possible.

Second, it makes sense to draw a distinction, from the standpoint

of the parties’ expectations when they entered the arbitration



                                          6
agreement, between statutory treble damages and common law punitive

damages.      That is, punitive damages are awarded under notoriously

open-ended legal standards and a broadly defined constitutional

limit concerning the amount awarded.               Treble damages, however,

represent a mere mathematical expansion of the actual damages

calculated by the arbitrator.          While private parties might well

exclude common law punitive damages, with all their uncertainty,

from   the    arbitrator’s    authority,     the    riskiness    of   committing

antitrust     damages   to   the   arbitrator      is   much   smaller.     Thus,

antitrust treble damages may indeed be “punitive” simply because

they exceed the actual damages that have been inflicted on the

victim of violative conduct, but they are not “punitive” for

purposes of interpreting the scope of an arbitration clause.

              Investment Partners can vindicate its statutory rights in

arbitration pursuant to the terms of its agreement.                Although the

arbitrator cannot award punitive damages,1 he may award antitrust

treble damages, and the arbitral forum is an adequate substitute

for the judicial forum in this case.          The district court correctly

held   that    Investment    Partners’     arbitration     agreement      must   be

enforced.      Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20,

28, 111 S.Ct. 1647 (1991).

                                   CONCLUSION



      1
        Provisions in arbitration agreements that prohibit punitive damages are
generally enforceable. See, e.g., Mastrobuono v. Shearson Lehman Hutton, Inc.,
514 U.S. 52, 56-57, 115 S.Ct. 1212 (1995).

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          For the foregoing reasons, we AFFIRM the judgment of the

district court.




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