Repudiating arbitration agreements

The Second Circuit has held that, pursuant to 13 U.S.C. 1787(c), the Nation Credit Union Administrative Board ("NCUA") may repudiate the contract of a credit union that it is liquidating, including any arbitration clauise.

In National Credit Union Administration Board v. Goldman, Sachs & Co., NCUA brought a lawsuit against Goldman, Sachs on behalf of a credit unit that it was liquidating.  Goldman Sachs sought to arbitrate the claims, pursuant to a Cash Account Agreement that contained an arbitration clause.  The NCUA repudiated the agreement and claimed that it was not obligated to arbitrate.

Goldman Sachs claimed that the NCUA's repudiation of a contract is equivalent to that of a trustee in bankruptcy, and that, pursuant to Second Circuit precedent, a trustee in bankruptcy cannot repudiate an arbitration clause.  The Second Circuit, however, held that its prior precedent does not hold that a bankruptcy trustee may not reject an arbitration agreement or clause.

Goldman Sachs further argued that, under common law, a repudiation of an agreement constitutes a breach, and a breaching party is still bound by the contract.  The Second Circuit held that the common law was inapplicable because the statute gave the NCUA the right to repudiate.

Finally, Goldman, Sachs argued that repudiation does not apply to purely procedural provisions of the contract, and, accordingly, the arbitration clause was not enforceable.  The Second Circuit, while not acknowledging that arbitration agreement are "purely procedural," held that Goldman, Sachs had shown neither reason nor authority supporting the proposition that arbitration agreements should be excluded from the NCUA's repudiation power.

The decision can be found here.