If selling broker is associated person, and claimant is his customer, BD compelled to arbitrate
BMA Financial Services, Inc. v. Guin, 2001 U.S. Dist. LEXIS 18556 (W.D. La., 9/27/01): In the absence of a direct account relationship, a court will compel a firm to arbitration, if the selling broker is an associated person and Claimant is his customer.
BMA filed an action seeking a declaratory judgment of non-arbitrability and an order enjoining a NASD arbitration filed against it by Defendants. Defendants filed a cross-motion to compel arbitration. The underlying dispute involved the purchase by Defendants from Thomason of an unregistered security.
In granting the motion to compel and in dismissing the declaratory judgment action, the Court engages in a three-step analysis to determine whether the parties agreed to arbitrate the claims. It first looks to whether the Defendants were customers under Code of Arbitration Rule 10301(a). Rejecting a narrow definition, the Court adopts the broader interpretation of the Second Circuit, finding that customer plainly refers to either the members or the associated persons customer.
The second step requires a look at whether Thomason was an associated person of BMA. Although the Courts decision is unclear and in fact is confusing on this point, it appears that Thomason never became a registered representative of BMA. BMA filed a Form U-4 on behalf of Thomason, but it does not appear to have become effective. That fact notwithstanding, the Court finds Thomason to be an associated person of BMA by looking to the definition contained in the NASD By-Laws, which includes persons who filed an application for registration.
Lastly, the Court examines whether the claims were sufficiently connected to the business of BMA or Thomason to fall within the scope of Rule 10301(a). Under the broad federal policy favoring arbitration, the Court concludes that the claims at issue had a sufficient nexus to BMA to fall within the scope of the rule. (SLC Ref. No. 2001-49-02)
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