Bass, Berry & Sims attorney Chris Lazarini provided commentary on the decision in Franskousky vs. Morgan Stanley Smith Barney LLC in which the court affirmed an Amended Award that had been challenged by the Plaintiff after the panel corrected an error in the original award. 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.

Franskousky vs. Morgan Stanley Smith Barney LLC, No. 314-cv-878 (M.D. Fla., 12/ 17/14)

Under FINRA Rule 13905, a party may file a motion seeking to have the panel correct typographical, computational or other non-substantive mistakes in an Award; alternatively, the party may request that a court of competent jurisdiction give effect to the intent of the arbitrators, correct these types of errors under Section 11 of the FAA, and confirm the Award.

Plaintiff, a former Morgan Stanley broker, sought to vacate a FINRA arbitration Award in favor of Morgan Stanley on two promissory notes (FINRA ID #11-01964 (Jacksonville, 6/16/14)). The Award included a statement that Plaintiff had withdrawn counterclaims based on breach of contract, unpaid wages, negligence and fraud. There was no dispute among the parties that this was in error. In fact, Plaintiff had pursued those claims during the arbitration, and had withdrawn only a statutorily-based whistleblower claim. In separate filings with FINRA, Morgan Stanley requested that the Award be amended pursuant to either FINRA Rule 13905 or the provisions of the Florida Arbitration Code. Plaintiff did not file any opposition papers. FINRA’s Director of Arbitration accepted the motions, delivered them to the arbitrators and an Amended Award correcting the Panel’s mistake was issued (ID #11-01964 (Jacksonville, 8/7/14)).

Prior to the issuance of the Amended Award, Plaintiff filed a motion to vacate in state court and Morgan Stanley removed the matter to federal court. Plaintiff argued that both arbitration Awards should be vacated, claiming that the defects in the original Award showed that the panel failed to consider claims properly presented to it and that the Amended Award was a substantive change not permitted under FINRA Rules. Morgan Stanley argued that the Amended Award should be confirmed because the panel properly corrected a simple mistake it had made in describing the procedural history of the case. Alternatively, Morgan Stanley posed that, even if the Panel had exceeded its authority in amending the original Award, the Court should correct the panel’s mistake under the Section 11 of the FAA.

The Court agrees with Morgan Stanley and confirms the Amended Award. FINRA Rule 13905 prohibits parties from submitting documents to the panel after a case has been closed, except in limited circumstances, including where a party timely requests that “typographical or computational errors, or mistakes in the description of any person or property referred to in the award” be corrected. The Court finds that Morgan Stanley was acting within the parameters of the Rule in asking that the Panel correct the portion of the Award discussing the claims and evidence presented to it. The Court rejects the concept that the amendment was a substantive change to the Award, noting that Morgan Stanley did not submit new evidence or new arguments to the panel and did not ask the panel to rule on issues not presented to it during the hearing. Similarly, the Court finds that neither FINRA’s Director of Arbitration nor the Panel exceeded their authority in accepting and acting upon Morgan Stanley’s request. The Court notes that an argument could be made that Plaintiff waived his right to object to the Amended Award when he elected not to oppose Morgan Stanley’s FINRA filings. Further, the Court stales that the Panel’s interpretations of the Rule are binding on the parties and, even if the Panel had been wrong in its understanding of Rule 13905, that error would not be grounds for vacatur. Finally, the Court finds that, even if the Panel had exceeded its authority in issuing the Amended Award, the Court has the authority under Section 11 of the FAA to amend the original Award to give effect to the arbitrators’ intent and promote justice, and does so.