Bass, Berry & Sims attorney Chris Lazarini provided insight on a case in which Morgan Stanley filed a FINRA arbitration against a former broker seeking the balance due on a promissory note. Following the arbitration, the panel issued a decision in favor of Morgan Stanley, awarding payment of the promissory note balance, interest, and all costs and attorneys’ fees. When the plaintiff sought to vacate the costs and attorneys’ fee portion of the award, the court ruling affirmed deference to the arbitrator’s decision, noting that even serious errors in the interpretation or application of the law or a contract cannot support vacatur.

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.

Lott vs. Morgan Stanley Smith Barney, LLC, No. 15-14338 (E.D. Mich., 7/28/16)

A Court’s review of an arbitrator’s decision is one of the narrowest reviews in all of American jurisprudence; courts must give substantial deference to the arbitrator’s decision and even serious errors in the interpretation or application of the law or a contract cannot support vacatur.

Plaintiff is a former Morgan Stanley broker. Following his resignation, Morgan Stanley filed a FINRA arbitration, seeking the $543,000 balance due on a promissory note. Plaintiff counterclaimed, alleging various bad acts by Morgan Stanley. Plaintiff also filed a separate FINRA arbitration and the cases were later consolidated. The arbitration involved 20 hearing sessions and, on the final day, Morgan Stanley tendered an affidavit supporting its $351,000 attorneys’ fee request. Plaintiff’s counsel objected, arguing that the affidavit was irrelevant because it did not specify what time was spent on the claims and counterclaims. The Panel accepted the affidavit “for what it’s worth” and closed the hearing after confirming that neither party had anything else to offer. It then issued its Award for Morgan Stanley, directing Plaintiff to pay the balance due on the note, interest, and all of Morgan Stanley’s requested attorneys’ fees and costs (FINRA #12-00691 (Detroit, 11/10/15)).

Plaintiff sought to vacate the award of attorneys’ fees and costs, arguing that the Panel improperly refused to hear evidence, exceeded its authority and manifestly disregarded the law. The Court rejects each argument. First, Plaintiff failed to object to the attorneys’ fee request on any grounds other than relevance, did not request time to review the fees and does not indicate what evidence the Panel refused to hear. Next, in judging whether the Panel exceeded its authority, the Court declares that it must give substantial deference to the arbitrators’ interpretation of the attorneys’ fee provision of the promissory note and notes that even a “serious error” in interpretation does not support vacatur. Here, the arbitrators’ conclusion that the provision allows recovery of all attorneys’ fees incurred was reasonable. Finally, the Court finds nothing supporting manifest disregard of the law, noting Plaintiff’s failure to object to the reasonableness of the fees and, again, deferring to the arbitrators, who were in the best position to judge their reasonableness. Having rejected each of Plaintiff’s arguments, the Court grants Morgan Stanley’s motion to confirm the Award.

Morgan Stanley’s victory may be somewhat hollow, as Plaintiff’s BrokerCheck reflects the recent filing of a Chapter 11 bankruptcy proceeding.