dissenting:
The court today holds that Cobb v. Lewis, 488 F.2d 41 (5th Cir.1974), is controlling circuit precedent and rejects the argument that Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985), is intervening authority justifying this panel’s departure from Cobb. I respectfully dissent.
Mitsubishi makes plain that it deals only with arbitration of antitrust cases in an international setting and, on several occasions, disavows that it applies to domestic transactions. 473 U.S. at 629, 105 S.Ct. at 3355. Nevertheless, Mitsubishi devotes nearly four pages to analyzing American Safety Equipment Corp. v. J.P. Maguire & Co., 391 F.2d 821 (2d Cir.1968). The Court considers and rejects the four ingredients supporting American Safety’s conclusion that antitrust cases may not be arbitrated. Only one of the four ingredients in American Safety, the proposition that an arbitration panel will threaten business conduct because of innate hostility to antitrust law, reflects any difference between a domestic and international case. In turn, Cobb is based on American Safety. Although a few other cases are referred to in Cobb, American Safety is the first and foremost authority discussed.
I conclude that Mitsubishi deals a death blow to Cobb. Mitsubishi either overruled Cobb, or at least, destroyed circuit authority refusing to enforce arbitration agreements in domestic antitrust disputes.
Thus, I believe that the circuit operates on a clean slate, and that it would be wise to directly consider the issue. If we did so, I would conclude, like the Ninth Circuit and several other district courts, that agreements to arbitrate domestic antitrust disputes are enforceable. Nghiem v. NEC Elec., Inc., 25 F.3d 1437 (9th Cir.), cert. denied, — U.S. —, 115 S.Ct. 638, 130 L.Ed.2d 544 (1994); see also Sanjuan v. American Bd. of Psychiatry and Neurology, Inc., 40 F.3d 247, 250 (7th Cir.1994).
I would reverse the district court’s order and direct the district court to enter a stay to allow arbitration of the antitrust claims.