Chris Lazarini Comments on Waiver of the Right to Seek Arbitration

by Bass, Berry & Sims PLC

Bass, Berry & Sims PLC

Bass, Berry & Sims attorney Chris Lazarini commented on a case in which the defendant filed fraud and RICO actions in federal court against several persons and entities alleging they defrauded her out of millions of dollars. The defendant subsequently filed FINRA arbitrations against broker/dealers and others who had not been parties to the federal court actions. The broker/dealers sought injunctive relief, arguing the defendant waived her right to pursue claims against them in arbitration because she took discovery from them in the federal court actions. The Court denied the motion, stating a party who litigates claims against one group of defendants is not barred from arbitrating related claims against a different group of defendants.

Chris provided the analysis for Securities Litigation Commentator (SLC). The full text of the analysis is below and used with permission from the publication.

Merrill Lynch, Pierce, Fenner & Smith, Inc. vs. Jordan, Nos. 17-cv-49 & -199 (D. Del., 4/27/17)

A party who litigates claims against one group of defendants is not barred from arbitrating related claims against a different group of defendants.

These matters arise out of Defendant's claim that her ex-husband and several others defrauded her out of millions of dollars. Defendant first sued the alleged malefactors in a fraud action (the "Fraud Action") and later sued multiple parties in a separate RICO action. Both Merrill Lynch and J.P. Morgan Securities ("JPMS"), non-parties to the Fraud and RICO actions, responded to third-party document subpoenas in the RICO action. A representative of Merrill Lynch was also deposed. The district court dismissed the RICO action. Discovery in the RICO action was deemed to have been completed in the Fraud Action, which remains pending. Defendant then filed two FINRA arbitrations, one against Merrill Lynch and another against JPMS, a JPMS representative ("Cohen"), JP Morgan Chase and Co. ("JPM"), JP Morgan Chase Bank ("JPChase") and Chase Bank ("Chase") (collectively the "Chase Entities"). Merrill Lynch and the Chase Entities sought injunctive relief from the Court, arguing Defendant waived her right to pursue claims against them in arbitration.

The Court denies the motions. First, JPM, JPChase and Chase lack standing to seek injunctive relief because they are not FINRA members and are not compelled by FINRA's rules to participate in the arbitration. Here, these entities failed to show they suffered an injury-in-fact, since they already declined to participate in the arbitration. Second, Merrill Lynch, JPMS and Cohen (collectively the "Arbitration Respondents") failed to prove a likelihood of success on the merits. Although it defers to FINRA's interpretation of its rules, the Court notes that FINRA Rule 12200 allows for arbitration of disputes between a customer and a member or associated person if the dispute "arises in connection with the business activities of the member or the associated person." As to JPMS and Cohen, the Court points to allegations in the statement of claim regarding misuse of a JPMS brokerage account and Cohen's involvement in a cover-up. As to all Arbitration Respondents, Defendant did not waive her right to pursue arbitration and the Arbitration Respondents have not been prejudiced.

The Court puts little weight on Defendant's filing of the Fraud and RICO actions several years before commencing the arbitrations, instead deeming the arbitrations timely because they are the first instance of litigation against the Arbitration Respondents. Similarly, the Arbitration Respondents were not prejudiced by the court actions because the arbitrations are the first, and only, time the merits of the claims against them have been put in issue. The Court discounts the fact that discovery was taken from the Arbitration Respondents in the RICO action, finding the time, effort and expense of defending third-party discovery minimal when compared to that which a party to the action expends.

Finally, the Court finds no irreparable harm. The argument that arbitration costs create irreparable harm fails because arbitration is the preferred vehicle through which FINRA members resolve customer disputes. The Court also rejects the Arbitration Respondents' concerns over the timeliness of the claims, pointing to FINRA's six-year eligibility rule. Moreover, if Defendant files a time-barred court action after an arbitration panel rejects her claims under the six-year rule, the appropriate remedy would be a motion to dismiss on statute of limitations grounds, not an anticipatory request for injunctive relief.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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