plaintiffs to submit to arbitration and to enter a stay of plaintiffs' Complaint pending resolution pursuant to the arbitration clause of the Agreement entered into by the parties.
Private agreements to arbitrate disputes arising under ERISA are enforceable. Arnulfo P. Sulit, Inc. v. Dean Witter Reynolds, Inc., 847 F.2d 475 (8th Cir.1988); See Shearson Lehman/American Express, Inc., et al. v. Bird, 493 U.S. 884, 110 S. Ct. 225, 107 L. Ed. 2d 177 (1989) (the Supreme Court vacated the Second Circuit's order refusing to compel arbitration of an ERISA dispute and remanded for reconsideration in light of Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 109 S. Ct. 1917, 104 L. Ed. 2d 526 (1989)). Plaintiffs, in their Status Report submitted to this Court, indicate that they do not object to defendant's Motion to Compel Arbitration. However, Plaintiffs condition their acquiescence upon this Court ordering the defendant to pay the arbitration fees. The Agreement of the parties, specifically, the arbitration clause, does not address who is to pay the arbitration fees. However, plaintiffs, in their Complaint, seek the award of fees and costs as allowed under ERISA. 29 U.S.C. § 1132(g). The issue of whether plaintiffs pay or defendant pays the costs and fees of arbitration is part of the underlying issue arising from the alleged breach of defendant's fiduciary duty to the Pension Fund. See Schlobohm v. Pepperidge Farm, Inc., 806 F.2d 578, 581 (5th Cir.1986). This Court cannot enter an order requiring defendant to pay the arbitration fees because that issue is properly left to arbitration pursuant to the Agreement of the parties.
ORDERED: The Court grants defendant's motion and hereby enters a Stay in the instant case pending submission of the dispute between plaintiffs and defendant to arbitration pursuant to the parties' Agreement. 9 U.S.C. § 3.
Date: January 22, 1990
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