Bass, Berry & Sims attorney Chris Lazarini provided insight on the case of J.P. Morgan Securities, LLC & Lepper vs. Porcher in which the defendant claimed in separate arbitrations that J.P Morgan Securities (JPMS) wrongfully liquidated his securities account and allegedly provided unsuitable investment advice. JPMS argued that since the first arbitration panel dismissed defendant’s claims, concluding that defendant was not a “customer,” the second arbitration should be enjoined for the same reason. Noting factual differences in the claims and the addition of Lepper to the second arbitration, the court refused to enjoin the second arbitration and left the determination of whether defendant was a JPMS “customer” under FINRA Rules for the arbitrators to decide.
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.
J.P. Morgan Securities, LLC & Lepper vs. Porcher, No. 15-10761 (E.D. Mich., 6/7/16)
*The determination of whether a person is a “customer” under FINRA Rules is for the arbitrators to decide, not the courts.
**A court may confirm an arbitration award only if the Award represents the final decision of the arbitrators.
***A dismissal without prejudice is not a final decision.
Defendant held two accounts at J.P. Morgan Chase Bank (“Chase Bank”), a private client account holding securities and a line of credit account secured by the private client account. The relationship was primarily serviced by Ryan Lepper (“Lepper”), an employee of Chase Bank who was registered with FINRA through J.P. Morgan Securities, Inc. (“JPMS”). In 2008, Defendant’s securities lost value, and Chase Bank terminated the line of credit and liquidated Defendant’s securities. In 2012, Defendant initiated a FINRA arbitration against JPMS, alleging wrongful liquidation of his securities. On JPMS’ motion, the arbitration panel dismissed the case without prejudice, finding no agreement to arbitrate between Defendant and JPMS (FINRA ID #12-02076 (Detroit, 8/23/13)).
In 2014, Defendant commenced a second arbitration against JPMS and Lepper, alleging unsuitable investment recommendations. JPMS and Lepper commenced this action, seeking to confirm the dismissal in the first arbitration and to enjoin the second arbitration. JPMS and Lepper argued Defendant should be collaterally estopped from pursuing the second arbitration, because the first arbitration panel determined that Defendant was not a “customer” of JPMS. They also argued that Lepper was not acting as an “associated person” in his dealings with Defendant.
The Court rejects these arguments. First, it finds that collateral estoppel does not apply, because the first arbitration panel decided the “customer” issue solely on basis of the absence of a customer agreement between Defendant and JPMS. The Panel did not, however, decide whether Defendant was a “customer” of Lepper, an “associated person,” nor did it consider evidence relating to JPMS’ potential supervisory role over Defendant’s Chase Bank accounts. The Court declines to take up this version of the “customer” issue, finding it a question for the arbitrators to decide. Second, the Court finds that the first arbitration did not result in a “final” judgment, because the panel dismissed the matter without prejudice. The absence of finality in the first proceeding, the Court explains, precludes both a finding of collateral estoppel and the Court’s ability to confirm the Award.