Paul Varo v. Comprehensive Designers, Inc., Richard M. Stucker v. Comprehensive Designers, Inc.

Before CHAMBERS AND GOODWIN, Circuit Judges, and KELLEHER District Judge.

In the separate complaints of the plaintiffs, Varo and Stucker (franchisees), they assert anti-trust violations under the Sherman Act ( 15 U.S.C. §§ 1-7 ) against the defendant, franchis- or, in two counts.

The third count in each addresses itself to fraud in the inducement. If only the third count were involved, it should go to arbitration as provided in the basic agreements. The first two counts are pending and open. The district court has stayed the proceedings before it and ordered the parties to arbitrate the fraud count of each. Plaintiffs have appealed.

At the threshold, we are confronted with the contention that the order staying the suit is not appealable. We conclude it is. However, we do not pause to attempt to prove our views because we think that the situation is such on the record here that were we to hold that the order denying the stay was un-appealable, we should take the extraordinary step of converting the appeal into mandamus or prohibition, ordinarily something to be done stingily. Shapiro v. Bonanza Hotel Co., 185 F.2d 777, 779 (9th Cir. 1950). Also, we could request the…