Bass, Berry & Sims attorney Chris Lazarini commented on the case of Anderson vs. Lofton in which the Ohio Court of Appeals applied the well-settled principle that arbitration is favored in the law and ordered arbitration after examining the totality of the parties' agreements, only one of which contained a PDAA. 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.
Anderson vs. Lofton, No. CA2014-08-108 (Ohio App., 12Dist., 4/27/15)
Under Ohio law, where a contract contains an arbitration clause, a court should enforce the clause unless it may be said with positive assurance that the clause is not susceptible to an interpretation that covers the matter in dispute, with any doubts being resolved in favor of arbitration.
Anderson and Lofton are financial advisors. In 2005, they entered into a Partnership Agreement under which Anderson agreed to transition his book to Lofton over the succeeding ten-year period leading up to Anderson's expected retirement. The partnership agreement outlined how compensation, including bonuses, earned on Anderson's book would be split over time, but contained no arbitration provision. When the parties subsequently joined Morgan Stanley, they signed a Joint Production Agreement ("JPA"). The JPA provided that "[a]ny controversy or claim arising out of or relating to this Agreement or its breach … will be settled by [FINRA arbitration]." In 2014, Anderson sued, alleging that Lofton failed to pay him certain amounts due under the Partnership Agreement. Relying on the JPA, Lofton moved to dismiss or, in the alternative, stay the matter pending arbitration. The trial court determined that the JPA was not applicable to the dispute and denied the motion.
The Court of Appeals reverses. The Court first determines that whether the dispute is arbitrable under the JPA is a question of law requiring a de novo review of the trial court's order. The Court then outlines the guiding principles of Ohio law on questions of arbitrability. Those principles include a presumption favoring arbitration unless it can be said with "positive assurance" that the arbitration clause is not susceptible of an interpretation that covers the matter in dispute, with any doubts being resolved in favor of arbitration. Examining the arbitration clause in the JPA, the Court finds that it is the paradigm of a broad arbitration clause. The Court then concludes that the Partnership Agreement and JPA, together, represent the entire agreement between the parties on how compensation was to be shared and remands the matter to the trial court with instructions that any claims subject to the arbitration provision in the JPA should be stayed pending arbitration of those claims.
Neither Lofton nor the Court cited FINRA Rule 13200, which provides that a dispute between or among associated persons must be arbitrated under FINRA's Code if the dispute arises out of the business activities of a member or an associated person.