Although a finding of fraud in the inducement to enter a contract may ultimately permit an innocent party to avoid performance of the agreement, the question of whether fraud occurred is an issue to be decided by the arbitrator, if the contract so mandates. See Merrill Lynch, Pierce, Fenner Smith, Inc. v. Haydu, 637 F.2d 391, 398 n. 11 (5th Cir. 1981) (claim of coercion, undue influence and duress in signing contract subject to arbitration); Rush v. Oppenheimer Co., Inc., 638 F. Supp. 872, 875 (S.D.N Y 1986) (claim of fraud in the inducement to enter a margin account agreement subject for arbitrator). The premise on which a court can order arbitration, however, is the existence of an agreement; if no contract exists, there is no right to arbitration.

Threlkeld's first claim is that the arbitration provisions are unenforceable because the metals contracts which incorporate the LME arbitration provisions are contracts of adhesion. For an arbitration provision to be stricken as a contract of adhesion there must be a showing of "`unfairness, undue oppression, or unconscionability'" Rush v. Oppenheimer Co., 638 F.Supp. 872, 875 (S.D.N.Y. 1986) (quoting Finkle Ross v. A.G. Becker Paribas, Inc., 622 F.Supp. 1505, 1512 (S.D.N.Y. 1985)); see Pierson v. Dean, Witter, Reynolds, Inc., 742 F.2d 334, 339 (7th Cir. 1984) ("purpose of the unconscionability doctrine is to prevent unfair surprise and oppression"). Threlkeld's own admissions belie its claim that the present agreement represents a contract of adhesion. Threlkeld is a sophisticated commodities trader with extensive experience in this field.

However, Courts that have considered this issue have determined this to be the return day-i.e. due date for an opposition to a motion for an order to compel arbitration. See Rush v. Oppenheimer & Co., Inc., 638 F. Supp. 872, 876 (S.D N.Y. 1986). See also Starr Elec. Co., Inc. v. Basic Const. Co.,586 F.Supp. 964, 966 (D.C.N.C.,1982).

This is not exactly true. At least a handful of courts—although they have not expressly defined this phrase—have relied on it to strike jury-trial demands when respondents file them after their opposition to a petition to compel arbitration is due. See Uszak v. AT&T, Inc. , No. 1:14–CV–2800–CAB, at *3 (N.D. Ohio July 15, 2015), ECF No. 25 (PACER), aff'd sub nomUszak v. AT&T Mobility Servs. LLC , No. 15–4195, 658 Fed.Appx. 758,2016 WL 3924241 (6th Cir. July 21, 2016) ;Gavino v. Eurochem Italia , No. 01–1314, 2001 WL 1223576, at *1 (E.D. La. Oct. 15, 2001) ; Rush v. Oppenheimer & Co. , 638 F.Supp. 872, 876 (S.D.N.Y. 1986) ; Starr Elec. Co. v. Basic Constr. Co. , 586 F.Supp. 964, 966, 967 (M.D.N.C. 1982). The Court accessed the docket for this case by using Public Access to Court Electronic Records (PACER), which is an electronic database of federal court documents.

Plaintiff's request for a jury trial on the issue of arbitrability, pursuant to Section 4 of the FAA, 9 U.S.C. § 4, will be considered at the close of discovery. See, e.g., Rush v. Oppenheimer Co., Inc., 638 F. Supp. 872 (1986) (jury trial ordered on plaintiff's claim that he was fraudulently induced to agree to arbitration). So Ordered:

Moreover, brokers are not required as a matter of law to disclose or explain arbitration clauses to the customer. See Pierson v. Dean, Witter Reynolds, Inc., 742 F.2d 334, 339 (7th Cir. 1984); Rush v. Oppenheimer, 638 F. Supp. 872 (S.D.N.Y. 1986); Adams v. Merrill Lynch, Pierce, Fenner Smith, [1985-1986 Tr.Br.] (CCH) Fed.Sec.L.Rep. ¶ 92,328 (W.D.Okla. Sept. 20, 1985) [Available on WESTLAW, 1985 WL 5813]; Pelzman v. Paine, Webber, Jackson Curtis, Inc., [1983-1984 Tr.Br.] (CCH) Fed.Sec.L.Rep. ¶ 99,408 (D.D.C. 1983) [Available on WESTLAW, 1983 WL 1338].

For the reasons stated below, both motions are denied. In its opinion of June 25, 1986, 638 F. Supp. 872, this court concluded that a question of fact existed as to whether the plaintiff, R. Stockton Rush III ("Rush"), was fraudulently induced to enter an arbitration agreement with Oppenheimer based upon the statement by Seskis that he told Rush to read carefully before signing all documents required to transfer his account to Oppenheimer. Rush testified that he was told that there was no need to read the documents because they were merely a routine formality to open the account.

We also reject the contention that the inability to recover punitive damages invalidates an arbitration provision. Rush v. Oppenheimer & Co., Inc., 638 F.Supp. 872 (S.D.N.Y.1986); Pierson v. Dean, Witter, Reynolds, Inc., 742 F.2d 334 (7th Cir.1984); and Surman v. Merrill Lynch, Pierce, Fenner & Smith, 733 F.2d 59 (8th Cir.1984). Because the circuit court found that the arbitration provisions in the 2001 and 2003 Consulting Agreements were unenforceable and invalid due to substantive unconscionability, we reverse.