Bass, Berry & Sims attorney Chris Lazarini analyzed whether a plaintiff who did not sign an arbitration agreement but who claimed to be the agent of the signatory to the arbitration agreement may be required to arbitrate his claims. Chris provided the analysis for Securities Litigation Commentator (SLC). The full text of the analysis is below and used with permission from the publication. If you would like to receive additional content from the SLC, please visit the SLC website to sign up for the newsletter.
Andrews vs. T.D. Ameritrade, Inc., No. 14-3466 (6th Cir., 12/30/14)
*A non-signatory to a pre-dispute arbitration agreement (PDAA) who holds himself out as the agent of the signatory to the PDAA is bound by the terms of the PDAA.
**A defendant is not required to disclose its intent to compel arbitration in its notice of removal of a case from state to federal court.
Plaintiff sought to liquidate his adult son's 401(k) account under authority purportedly granted to him by a Power of Attorney (POA) and Trading Authorization Agreement (TAA). Defendant refused to do so, however, advising Plaintiff that the POA had been revoked. Plaintiff then sought injunctive and other relief in a state court filing. Defendant removed the matter to the federal court, which denied Plaintiff's request for injunctive relief, compelled arbitration and dismissed Plaintiff's complaint (see SLA 2014-30).
Affirming the district court's decision, the Sixth Circuit rejects all of Plaintiff's arguments against compulsory arbitration. First, the Court states that, by holding himself out as the agent of his son, Plaintiff, although not a signatory to Defendant's Client Agreement, is nevertheless bound by the terms of the PDAA in the agreement. The Court also points out that the TAA on which Plaintiff relies in support of his claim for control over the account also states that the Client Agreement is binding on the authorized agents. The Court finds, therefore, that Plaintiff cannot seek to enforce the power granted him by the TAA while simultaneously ignoring its arbitration clause.
Second, the Court rejects Plaintiff's argument that the adequacy of the POA is a question of law that should be answered by a court, not arbitrators. The Court finds that, even if it is determined that the POA was adequate -- an issue that is in dispute -- questions regarding Defendant's actions to confirm that its account holder's wishes were followed fall within the broad scope of the PDAA.
Third, the Court rejects Plaintiff's waiver argument, finding that Defendant was not required to disclose its intent to seek to compel arbitration in its Notice removing the matter to federal court. Similarly, the Court rejects Plaintiff's arguments that the PDAA is unconscionable, finding that Plaintiff affirmatively sought to control his son's account and willingly signed the TAA.
Finally, the Court rejects Plaintiff's argument that the boilerplate PDAA is a contract of adhesion. The Court states that, because Plaintiff is a lawyer, he was not in a position of unequal bargaining power when he signed the TAA containing an arbitration provision.
Plaintiff also challenged the district court's decision to dismiss his case instead of ordering a stay pending the outcome of the arbitration. The Court finds that, where there is nothing for the district court to do but execute the judgment, dismissal is the appropriate remedy.