April 29, 2014
It started out as an investment. Then it was an investment that went sour, and badly. Then the public customer filed an arbitration. He lost. That arbitration was appealed to a federal district court. He lost again. Then to a federal circuit court of appeals. He lost again. Now it appears headed to the United States Supreme Court. Regardless of whether the highest court grants certiorari and agrees to hear the appeal, the fact pattern does not represent a glowing endorsement of Wall Street's mandatory customer arbitration.
In The Beginning
In a Financial Industry Regulatory Authority ("FINRA") Arbitration Statement of Claim filed in April 2008, public customer Stone asserted causes of action including fraud, breaches of contract and fiduciary duty, and unsuitability in connection with his investment in the Bear Stearns Asset Backed Securities Partners, L.P. hedge fund. Claimant Stone sought $7,600,000 in compensatory damages plus punitive damages, and interest, fees, cots, expenses. At the conclusion of the hearing, Claimant requested $5,776,968.00 in out of pocket losses plus interest in the amount of $1,537,141.00. In the Matter of the FINRA Arbitration Between Laurence Stone, Claimant, vs. Bear Stearns. & Co., Inc., Bear Stearns Securities Corp., Bear Stearns Asset Management, Inc., and Colin P. Gordon, Respondents (FINRA Arbitration 08-01185, July 11, 2011 ).
Respondents generally denied the allegations and asserted various affirmative defenses.
In January 2010, Claimant Stone withdrew his claims against Respondent Gordon.
In July 2010, Respondent filed a Motion for Sanctions for Claimant's failure to comply with the Panel's Discovery Order. Claimant Stone opposed the motion but the Panel granted and ordered Claimant to pay $15,000 to Respondent, which was complied with by September 2010.
During the start of the September 2010 hearings, Claimant's withdrew with prejudice his claim of unsuitability. Respondents moved for sanctions against Claimant for the "eleventh hour" withdrawal of this claim, but the Panel denied the Motion.
The FINRA Arbitration Panel denied Claimant's claims in their entirety.
And so, at least from Claimant Stone's perspective, insult has been added to injury. In most cases, this is the end. In this case, it is merely the start of a long road of appeals.
Although Stone pursued his claims against Bear, Stearns, in March 2008 that brokerage firm had been acquired by J.P. Morgan Chase & Co. Not fully explained in the FINRA Arbitration Decision is that Stone had alleged that he invested in a fund holding residential mortgage-backed securities ("RMBS") and allegedly sustained over $7 million in losses as a result of the 2007 RMBS market collapse. For whatever reason, the FINRA Arbitration Decision merely characterized the investment vehicle as a "hedge fund" and made no mention whatsoever of the RMBS aspect.
As with many of my BrokeAndBroker.com Blogs, I now launch into one of my whiny, pissy gripes about the lack of content and context in yet another FINRA Arbitration Decision. In Stone, the FINRA Arbitration Panel seems to prefer to quickly get to its conclusion rather than explain how the three arbitrators got from Point A (the allegations) to Point C (the Decision) -- what the hell happened to Point B (all the stuff that explains just why the Panel ruled as it did)?
All In The Family
So . . . howsabout a little rewind?
Let's turn the clock back to September 2008, at which time FINRA informed the parties in Stone that it had appointed a three-member arbitration panel, which included Public Arbitrator Jerrilyn G. Marston. Among the disclosures made to the parties concerning Marston was that she had a "family member" who had a "relationship" with the University of Pennsylvania. As to the exact nature of the referenced "relationship" of the family member and whether it involved a securities industry connection, that doesn't seem to have been expanded upon by FINRA.
Of course, there's nothing quite like the taste of blood in a loser's mouth to whet the appetite for a re-match. Not taking kindly to losing the FINRA arbitration, it appears that Stone started digging and, lo and behold, discovered that Public Arbitrator Marston's spouse, Dr. Richard Marston, was a Wharton School finance professor who had performed extensive speaking, consulting, and advisory work for a number of securities firms, including J.P. Morgan.
I mean, what else can you say at this point other than "Oh crap."
In August 2011, Stone filed an application with the Eastern District of Pennsylavania ("EDPA") to vacate the FINRA arbitration award arguing that Public Arbitrator Marston's undisclosed conflicts of interest arising from her spouse's work for the securities industry demonstrated "evident partiality." Among other points, petitioner noted that, Dr. Marston's securities industry ties should have deemed his spouse as ineligible to serve as a "public" arbitrator under FINRA's rules. Stone v. Bear, Stearns & Co. 872 F. SUPP. 2D 435 (E.D. PA., Memorandum Order, May 29, 2012). In part, EDPA characterized the core disclosure issue in this fashion in its Memorandum Order:
Marston's FINRA biography, which the parties received prior to selecting the panel, cursorily noted that she had a "family member" associated with the "University of Pennsylvania." In fact, Marston's husband, Dr. Richard Marston, is a well-known professor of finance at the Wharton School who regularly lectures to brokerage firms, insurance companies, banks, and investors. Marston had previously disclosed to FINRA her husband's ties to the securities industry, but FINRA never incorporated the information into Marston's biography.
Unfortunately for Stone, EDPA makes much of the fact that he uncovered the nature and extent of the family relationships after he had lost the FINRA Arbitration:
As discussed infra, Stone unearthed this information about the Marstons while thoroughly and systematically digging for dirt on each of the three arbitrators shortly after they ruled unanimously against him. Stone could have done this research earlier, before the panel was selected, and certainly before he lost his case. (Stone Tr. 74:13-75:17). But he investigated the arbitrators only after the adverse decision because, at that point, his "disenchantment was extreme because [he] had lost." (Id. 76:1-5).
Don't be too fast, however, to blame Public Arbitrator Marston for whatever issues her disclosure or non-disclosure may have caused because things are not as simple as you may first believe. In fact, as more fully explained in the EDNY Order:
[I]n response to a question in the FINRA application about whether she had family in the securities business, Marston answered "Yes" and elaborated:
My husband is a Professor of Finance at the Wharton School of the University of Pennsylvania. In that capacity, he has spoken to brokers, traders, and financial consultants from various investment banks and brokerage houses, and Industry Groups such as the Securities Institute and IMCA. Should you wish more information, I would be happy to provide it.
But no one from FINRA followed-up with Marston about her husband's activities. (Marston Tr. 24:18-23). Instead, FINRA inexplicably translated Marston's relatively detailed disclosure about her husband into "Family Member has a relationship with [the] University of Pennsylvania" -- a single line on Marston's ADR. (Doc. No. 19 Ex. D). In 2005, Marston tried to amend this description in her ADR to read "Family Member is faculty member, Wharton School, University of Pennsylvania, and gives seminars to financial consultants and investors." (Id.; Marston Tr. 25-28). But again, for reasons unknown, this amendment never showed-up on FINRA's ADR for Marston. As a result, the ADR that Stone and his attorneys received for Marston noted only that Marston had a family member associated with the University of Pennsylvania; it did not reflect Dr. Marston's faculty position at Wharton or his securities-related dealings. (Doc. No. 19 Ex. B). Despite the fact that FINRA imposes an ongoing duty to disclose on its arbitrators, Marston did not clarify or supplement her ADR disclosures at any point throughout Stone's arbitration, even though she was given the opportunity to do so at the beginning of each hearing. (Doc. No. 19 Ex. G). In Marston's opinion, she had already disclosed her husband's professional activities to FINRA early-on, so there was no need for her to re-disclose old issues. (Marston Tr. 49:18-50:6).
As explained in detail above, we see no proper grounds for vacating the panel's decision under the FAA's "evident partiality" prong, § 10(a)(2); or "misbehavior" prong, § 10(a)(3), or "exceeding powers" prong, § 10(a)(4). But even assuming the circumstances warranted vacatur, Stone cannot rightfully contest the award based on his newly-discovered evidence because he failed to investigate the arbitrators as diligently before the arbitration as he did after he lost. Since all of Stone's arguments for vacatur ultimately rest on the Dr. Marston-related information Stone discovered after the panel ruled against him, Stone has waived his §§ 10(a)(2)-, (a)(3)-, and (a)(4)-based challenges to the adverse arbitration award.
Arbitration retains its appeal as an alternative to litigation only if the parties involved can rely on the arbitrators' decision. In other words, a reasonable person would surely hesitate to arbitrate a dispute in the first place knowing that he or she may very well have to litigate or re-arbitrate the same dispute again. Therefore, courts worry about disenchanted arbitration losers improperly seeking a second bite at the apple, which would undermine the finality of arbitration awards (and thus arbitration itself). . .
Under this standard, Stone undoubtedly waived his "evident partiality," "misbehavior," and "exceeding powers" challenges to the arbitration award at issue here. All three challenges stem from the allegedly non-disclosed information about Dr. Marston that Stone discovered in his belated, post-award investigation. By his own admission, Stone could have done this research earlier in the process but did not. Instead, Stone waited until he lost and then almost immediately began scouring the internet for anything that might suggest one arbitrator or another was biased against him. Stone spent approximately twenty (20) hours on this task, researching not one, but all three arbitrators looking for evidence of partiality. This is exactly the kind of undesirable strategic behavior that the waiver doctrine is designed to prevent. . .
The District Court, in a thoughtful and thorough opinion rejected Stone's arguments. . .
The Court not only took issue with Stone's contention that there was "evident partially" on the part of Marston, but also decided that Stone's belated raising of the issue constituted a waiver of any challenge he might have leveled against her. . .
Ouch! No appellate lawyer is chomping at the bit to take a case to the United States Supreme Court when a Circuit Court affirms a District Court with the compliment that the lower court's opinion was "thoughtful and thorough." Add to this uphill battle the characterizing of your client's appeal as one hamstrung by his belated research and belated raising of the core objections suggesting an arbitrator's bias, partiality, and/or unsuitability, and you really got your work cut out for you!
One Last Appeal
The Federal Arbitration Act authorizes a district court to vacate an arbitration award "where there was evident partiality or corruption in the arbitrators, or either of them." 9 U.S.C. § 10(a)(2). This case presents two questions regarding the proper interpretation and application of that provision on which the federal courts of appeals are deeply divided.
1. Whether an arbitrator's failure to disclose facts creating a reasonable impression of partiality warrants vacating an arbitration award, or whether an arbitration award should stand despite an arbitrator's failure to disclose conflicts of interest unless a reasonable person would have to conclude that the arbitrator was partial to one party to the arbitration.
2. Whether a party waives a challenge to an arbitrator's failure to disclose conflicts of interest only if it knows of the conflicts and fails to raise them during the arbitration, or whether a party waives such a challenge unless it fully investigates the arbitrator's undisclosed conflicts, and objects to the arbitrator's participation, during the arbitration.
1. Whether the court of appeals correctly ruled that petitioner failed to establish that one of the three arbitrators hearing his case exhibited "evident partiality" against him.
2. Whether the court of appeals correctly ruled that petitioner waived his right to challenge the arbitration award on the ground of evident partiality because he failed to raise that challenge until after the adverse award was issued, even though the facts underlying that challenge were reasonably available to him before the arbitration took place.
Deja Vu All Over Again?
After Stone's FINRA arbitration was decided and after the EDPA had its say on his appeal, the very same federal district court vacated a FINRA arbitration award in favor of Goldman Sachs because the court found that an arbitrator (a lawyer) did not satisfactorily disclose the circumstances of allegations that he had engaged in the unauthorized practice of law in the State of New Jersey. In that subsequent case involving disclosures by yet another FINRA arbitrator, the lawyer (Timban) was indicted for unauthorized practice of law and was the subject of two complaints filed with the Attorney Discipline Board for the State of Michigan in April and July 2012 -one of which involved allegations that he had knowingly written a check against insufficient funds in a probate matter. Timban pled no contest and was suspended from the practice of law in Michigan for 176 days as of November 20, 2012.
The Court doesn't quite understand FINRA's action or inaction in response to Timban's March 22, 2012 disclosure. For one thing, the Court found no evidence in the record showing that FINRA's Director of Dispute Resolution took any action to remove Timban from the case. Also a tad odd, neither the Claimant nor any Respondent requested the arbitrator's removal following his disclosure. Consider this scathing commentary from the Court that is spread out in all its glory as Footnote 7:
This Court finds it remarkable that neither of these parties nor, more particularly, FINRA saw fit to conduct any investigation or due diligence into Mr. Timban's qualifications after he revealed that he was the subject of a complaint by the State of New Jersey for unauthorized legal practice. Given that the parties were required by the terms of the subscription agreement to submit any disputes which arose thereunder to arbitration under the auspices of, inter alia, FINRA, and given that FINRA bills itself as the largest independent securities regulator in the country, one would expect that public confidence in the integrity of the arbitral process would be of paramount importance. Indeed FINRA's June 21, 2013 announcement that it will now conduct annual background checks on its arbitrators and additional review before appointment seems, to this Court, to be an important step in the right direction, albeit "too little too late" in this cases . . .
Summing up the facts before it, the Court held that:
Here, in failing to provide these parties with three qualified arbitrators, FINRA failed to provide what the parties agreed to in the Subscription Agreement We therefore conclude that vacatur of the award in this case is proper . . . arbitrators here so imperfectly executed their powers that a mutual, final and definite award was not made.
A Page 21 of the Court's Memorandum
Bill Singer's Comment
Generally, I don't like to comment on pregnant litigation -- meaning that I'm not a big fan of publishing a blog based upon pleadings instead of a decision. I make exceptions when I feel that there is a compelling issue involved and the posturing and pleadings leading up to an appeal are worth presenting -- and this is one such case. I have provided my readers with direct links to the FINRA Arbitration Decision, the EDPA and 3rd Circuit Orders, the Petition, Opposition, and Reply Briefs to the Supreme Court. Take the time to fully read the record and draw your own inferences and conclusions.
The EDPA and 3rd Circuit criticize Stone and his former lawyers for not making more of an effort during the time preceding the hearings and the rendering of the Decision
to uncover the conflicts attached to Public Arbitrator Marston. In Stone's Reply Brief
as filed on April 29, 2014, Petitioner pointedly contests the assertion that he and his prior legal team simply should have (and could have) exerted a bit more effort and all would have been revealed about Public Arbitrator Marston's husband:
3 Respondents assert (at 26) that petitioner could have discovered Ms. Marston's conflicts "with a few hours' research on the Internet," but they elsewhere acknowledge (at 4) that petitioner's investigation of his three-member panel consumed approximately 20 hours. A comparable investigation of the 24 potential arbitrators FINRA originally proposed would have taken eight times as long. Moreover, it is far from clear that a "simple Google search" conducted at the time of arbitrator selection would have quickly revealed "the connection between Arbitrator Marston and Dr. Marston." A Google search of the terms "Marston and Penn" restricted to results before September 30, 2008 (the day after FINRA appointed the panel, C.A. App. 464a) returns Dr. Marston as the first result, but none of the first 40 results relates to Ms. Marston. See http://goo.gl/2kQTYU.
Footnote 3 of the Reply Brief
Then there is the courts' positions that notwithstanding Marston's husband's potential services to the industry, there is no proof of any bias or partiality by Marston that precluded her from fairly hearing the arbitration and rendering a fair decision. Frankly, I see far too much whitewash and broad brushstrokes applied by the courts in an effort to gloss over a number of troubling facts.
The husband professional services were not fully disclosed to a public customer Claimant prior to the FINRA arbitration or during the hearing. The arbitrator wife seemingly should not have been offered as a "Public" arbitrator because her husband's services to the industry likely disqualified her from such a characterization. Oddly, the courts suggest that even given those apparent failures, an ongoing burden existed for public customer Stone requiring him to ferret out the undisclosed extent of the husband's services and to infer disqualifying conflicts on the arbitrator wife -- and then, on top of all of that, after the fact, after the arbitration has been conducted and the decision rendered, Stone was also supposed to prove on appeal that the arbitrator was actually biased and prejudiced against him. As if the failure of proof for that last element somehow excuses all the other alleged non-disclosure and administrative shortcomings.
Inherent in the maxim that where there's smoke, there's fire is the reasonable expectation that when you smell smoke you should investigate to see if there is a fire. Many commercial and residential premises are required to maintain smoke detectors as a first-line of defense; however, you pull the fire alarm after the smoke detector goes off. Seems to me that the EDPA and 3 Circuit failed to take into account that to some extent Marston's relatively limited disclosure and FINRA's fumbling disconnected Stone's smoke detector. To now blame him for not having pulled the fire alarm sooner seems unfair and unreasonable.
As of today, two federal courts have considered and rejected Stone's legal theories; consequently, it's one hell of an uphill battle to win over the Supreme Court and that's assuming that the highest court even grants cert. Notwithtanding, there's something in this case that just doesn't sit right with me -- and it goes beyond the respective positions of the parties and even the conduct of the arbitration panel. FINRA was not a party in the arbitration or during the appeals; notwithstanding, there is an inviting implication and a compelling inference that FINRA played a substantive role in failing to
- diligently investigate Marston's potential conflicts,
- disclose her relevant personal and family background and conflicts, and
- appropriately apply its various classifications of "Public" and "Industry" arbitrator categories.
One wonders whether another litigation shoe will drop if the Supreme Court declines to hear this appeal.
Many thanks to Edward Pekarek, Esq., who is part of Petitioner Stone's legal team on appeal to the United States Supreme Court and who provided Bill Singer of BrokeAndBroker.com Blog with the Petition, Opposition, and Reply Briefs.