J. MICHELLE CHILDS, District Judge.
This matter is before the court upon Petition's Motion to Confirm Arbitration Award and for Final Judgment (ECF No. 1). Petitioner's application, filed on July 8, 2015, specifically requests this court to: "(i) confirm an award . . . entered by the arbitration panel in a Financial Industry Regulatory Authority ("FINRA") arbitration captioned Gloria M. Kirby, individually and on behalf of her IRA and as Beneficiary to the Maynard J. Kirby IRA v. Morgan Stanley Smith Barney, LLC, FINRA Case No. 13-01545 . . .; (ii) direct the expungement of any public and non-public records of FINRA and the Central Registration Depository . . . related to the Arbitration at issue and underlying claim, particularly those records pertaining to non-parties, Michael Anaclerio and Stephen Anaclerio; and (iii) enter a final judgment. . . ." (Id. at 1 (referencing provisions of the FINRA Arbitration Award (ECF No. 1-1).)
Petitioner Morgan Stanley Smith Barney LLC is a Delaware limited liability company with its principal place of business in New York, New York. (ECF No. 1 at 2.) Respondent Gloria M. Kirby, a resident of Graniteville, South Carolina, brought the arbitration individually and on behalf of her IRA and as beneficiary to the Maynard J. Kirby IRA. (Id.) On or about May 21, 2013, Respondent filed a Statement of Claim against Petitioner before FINRA in the arbitration, which was set in Columbia, South Carolina. (Id.) The parties executed and filed a FINRA Uniform Submission Agreement (ECF No. 1-2.),
FINRA has specifically waived, in writing, its requirement that it be made a party to the proceedings before this court. (ECF No. 1-3.) Respondent also waived service of the summons and this motion. (ECF No. 3.) She filed no objections or responses.
Under the Federal Arbitration Act, a court may confirm an arbitration award "[i]f the parties in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuant to the arbitration . . ." 9 U.S.C. § 9. The Court must confirm the award unless it vacates, modifies, or corrects the award under 9 U.S.C. §§ 10 or 11. Id; see also Apex Plumbing Supply v. U.S. Supply Co., Inc., 142 F.3d 188, 193 (4th Cir. 1998).
The court's role in reviewing an arbitrator's decision generally is "to determine only whether the arbitrator did his job—not whether he did it well, correctly, or reasonably, but simply whether he did it." Wachovia Securities, LLC v. Brand, 671 F.3d 472, 478 (4th Cir. 2012) (citations and internal quotation marks omitted). "Federal courts may vacate an arbitration award only upon a showing of one of the grounds listed in the Federal Arbitration Act, or if the arbitrator acted in manifest disregard of law." Apex Plumbing Supply, 142 F.3d at 193. The circumstances permitting a court to vacate an arbitration award specifically are found at 9 U.S.C. § 10(a).
Based upon a thorough review of the record herein, and the fact that no party has moved to vacate or modify the arbitration award herein, this court finds that the arbitration award, as described in the FINRA Arbitration Award agreement, (ECF No. 1-1 at 3-4), should be confirmed pursuant to 9 U.S.C. § 9.
Petitioner's Motion to Confirm Arbitration Award and for Final Judgment (ECF No. 1) therefore is
Nature of the Dispute: Customers vs. Member
This case was decided by an all-public panel.
For Claimants Gloria M. Kirby, Individually and on behalf of Her IRA, and as Beneficiary to the Maynard J. Kirby IRA, hereinafter collectively referred to as "Claimants": Ryan Cook, Esq. and Robert A. Kantas, Esq., Shepherd Smith Edwards & Kantas, LLP, Houston, Texas.
For Respondent Morgan Stanley Smith Barney, LLC ("MSSB"): Timothy B. Atkins, Esq., Vice President, Morgan Stanley Smith Barney, LLC, Pensacola, Florida.
Statement of Claim filed on or about: May 21, 2013.
Gloria M. Kirby signed the Submission Agreement: March 12, 2013.
Gloria M. Kirby signed the Submission Agreement on behalf of Her IRA: March 12, 2013.
Gloria M. Kirby signed the Submission Agreement as Beneficiary to the Maynard J. Kirby IRA: March 12, 2013.
Statement of Answer filed by Respondent MSSB on or about: July 23, 2013.
Respondent MSSB signed the Submission Agreement: July 23, 2013.
In the Statement of Claim, Claimants asserted the following causes of action: breach of contract and warranties; promissory estoppel; violations of consumer protection statutes; violations of state securities statutes; claims under common law; and vicarious liability. The causes of action relate to the purchase of common stocks, open and closed end funds which invested in low-rated bonds and derivatives, and preferred stock in Claimants' accounts.
Unless specifically admitted in its Answer, Respondent MSSB denied the allegations made in the Statement of Claim and asserted various affirmative defenses.
In the Statement of Claim, Claimants requested: damages between $100,000.00 and $500,000.00, including all direct and/or consequential damages; statutory and/or market adjusted damages; and/or punitive damages; plus interest on all sums invested from the date deposited until the date of the Award and until such sums are paid, all at the highest rate allowed by law; costs as provided by statute; rescission of any or all transactions; legal fees, including while on appeal, if any, and for collection; and any and all other relief available to Claimants, in law or equity or otherwise, which may be granted to Claimants by the Panel.
In the Statement of Answer, Respondent MSSB requested: denial of Claimants' claims; expungement of Claimants' claims from non-parties Michael Anaclerio's and Stephen Anaclerio's Central Registration Depository ("CRD") records; and costs.
The Arbitrators acknowledge that they have each read the pleadings and other materials filed by the parties.
On or about June 26, 2014, after the close of Claimants' case-in-chief, the parties notified the Panel that they had reached a settlement and that Respondent MSSB requested expungement of this matter from non-parties Michael Anaclerio's and Stephen Anaclerio's CRD records. Accordingly, the Panel made no determinations with respect to any requests contained in the Statement of Claim.
The Panel conducted a recorded in-person hearing on June 26, 2014, so the parties could present oral argument and evidence on Respondent MSSB's request for expungement on behalf of non-parties Michael Anaclerio and Stephen Anaclerio. Claimants did not oppose the expungement request and elected not to attend the expungement hearing.
The parties have agreed that the Award in this matter may be executed in counterpart copies or that a handwritten, signed Award may be entered.
After considering the pleadings, the testimony and evidence presented at the recorded in-person hearing, the Panel has decided in full and final resolution of the issues submitted for determination as follows:
The Panel recommends the expungement of all references to the above-captioned arbitration from non-parties Michael Anaclerio's (CRD # 844856) and Stephen Anaclerio's (CRD # 3268939) registration records maintained by the CRD, with the understanding that pursuant to Notice to Members 04-16, non-parties Michael Anaclerio and Stephen Anaclerio must obtain confirmation from a court of competent jurisdiction before the CRD will execute the expungement directive.
Unless specifically waived in writing by FINRA, parties seeking judicial confirmation of an arbitration award containing expungement relief must name FINRA as an additional party and serve FINRA with all appropriate documents.
Pursuant to Rule 12805 of the Code of Arbitration Procedure (the "Code"), the Panel has made the following Rule 2080 affirmative findings of fact:
The claim, allegation, or information is factually impossible or clearly erroneous; and
The claim, allegation, or information is false.
The Panel has made the above Rule 2080 findings based on the following reasons:
After considering the pleadings, all documents and testimony on the record of the hearing prior to the parties' settlement, which took place after the close of Claimants' case-in-chief, the General Release and Settlement Agreement executed by the parties, non-parties Michael Anaclerio's and Stephen Anaclerio's BrokerCheck® reports, the amounts paid to any party, and any other terms and conditions of the settlement, the Panel unanimously concluded that: 1) the investment recommendations made by the non-party financial advisors Michael Anaclerio and Stephen Anaclerio and referenced in the Statement of Claim were not unsuitable considering Claimants' other assets and investments, the active role Claimants played in managing the accounts, and Claimants' awareness of market risks; and 2) based on the same record, the allegations of material misrepresentations and non-disclosures lacked any credible support.
Pursuant to the Code, the following fees are assessed:
FINRA Dispute Resolution assessed a filing fee* for each claim:
* The filing fee is made up of a non-refundable and a refundable portion.
Member fees are assessed to each member firm that is a party in these proceedings or to the member firm(s) that employed the associated person(s) at the time of the event(s) giving rise to the dispute. Accordingly, as a party, Respondent MSSB is assessed the following:
The Panel has assessed hearing session fees for each session conducted. A session is any meeting between the parties and the arbitrator(s), including a pre-hearing conference with the arbitrator(s), that lasts four (4) hours or less. Fees associated with these proceedings are:
The Panel has assessed $2,812.50 of the hearing session fees jointly and severally to Claimants.
The Panel has assessed $3,937.50 of the hearing session fees to Respondent, which includes the entire $1,125.00.00 expungement hearing session fee.
All balances are payable to FINRA Dispute Resolution and are due upon receipt.
I, the undersigned Arbitrator, do hereby affirm that I am the individual described herein and who executed this instrument which is my award.
I, the undersigned Arbitrator, do hereby affirm that I am the individual described herein and who executed this instrument which is my award.
I, the undersigned Arbitrator, do hereby affirm that I am the individual described herein and who executed this instrument which is my award.
