concurring.
I concur because I believe that the majority opinion correctly reads the import of Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991); EEOC v. Johnson & Higgins, Inc., 91 F.3d 1529 (2d Cir.1996) and the cases from other circuits cited by the majority. However, if we were writing on a clean slate, I would come to a different conclusion. Specifically, I think some of the underlying assumptions made by the cases relied on are subject to grave doubt, undermining my confidence in the result I nevertheless feel constrained to reach.
First, I question the assumption made by the Supreme Court in Gilmer, and echoed by the majority opinion here, that ADEA rights can be vindicated equally well in arbitration as they are in the courts. See DiRussa v. Dean Witter Reynolds Inc., 121 F.3d 818 (2d Cir.1997); cf. Halligan v. Piper Jaffray, Inc., 148 F.3d 197 (2nd Cir.1998). As observed in Halligan, the securities industry is taking steps to respond to criticism that its arbitration procedures are unfair, and several courts have expressed the need for adequate review of arbitration awards to ensure that employees are able to effectively vindicate their statutory rights in arbitration. See id. at 201-02. While I agree that the FAA’s strong policy favoring arbitration suggests that mandatory pre-dispute arbitration agreements are enforceable, I am uneasy about using that same policy to justify barring EEOC pursuit of monetary damages for employees who were required to sign such agreements as a condition of their employment when statutory rights such as those protected by the ADEA are involved.
Second, I lack the majority’s confidence in the “belief that in seeking individual monetary relief, as opposed to class-wide injunc-tive relief, the EEOC does not represent the public interest to the same degree,” majority opinion at p. 301 (citations omitted), and that the deterrent value of damage awards in arbitration is equal to that of damage awards from EEOC action. Majority opinion at pp. 302-303. On the contrary, I find it eminently plausible that the risk of a single, large award in an EEOC case brought on behalf of multiple employees would be a greater deterrent to illegal conduct than the risk of multiple smaller awards obtained by the employees through arbitration, and that EEOC pursuit of monetary damages therefore greatly advances the public interest. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 417-18, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). Although the majority points out that an EEOC victory on injunctive claims could serve as the basis for subsequent arbitral proceedings by the employees, sound principles of judicial administration counsel against requiring this second step when the EEOC is empowered to seek monetary damages in the first proceeding.
Third, I do not share the majority’s fear that permitting the EEOC to pursue monetary damages despite a valid arbitration agreement signed by the employees constitutes an “end run around the arbitration agreement.” Majority opinion at p. 303. EEOC resources to pursue discrimination claims are limited, and the majority of employees who have signed arbitration agreements will therefore not have the benefit of EEOC involvement. I do not think it likely that the EEOC will pursue monetary damages simply to accommodate employees seeking to avoid arbitration, and do not believe that the FAA would be unduly “undermined” by permitting the EEOC to pursue monetary damages on behalf of employees when it deems such action appropriate.
However, if the above concerns are to be reflected in the law, as I hope they will be, such a change should at this point come from Congress or the Supreme Court and not from this panel. The area of arbitration of statutory rights in the securities industry may need to be reexamined in order to properly protect employees. Until then, I cannot say that the majority has incorrectly applied or interpreted the relevant authorities. I therefore concur in the result in this case.