Abed v John Thomas Fin., Inc.

Abed v John Thomas Fin., Inc. 2013 NY Slip Op 04716 Decided on June 20, 2013 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 20, 2013
Mazzarelli, J.P., Renwick, Manzanet-Daniels, Gische, Clark, JJ. 10443N- 10444N- 10445N-
650341/11 10446N

[*1]Tareq Abed, etc., Plaintiff-Appellant,

v

John Thomas Financial, Inc., etc., et al., Defendants-Respondents.




Joseph & Kirschenbaum LLP, New York (Michael D. Palmer
of counsel), for appellant.
Sack & Sack, New York (Eric R. Stern of counsel), for
respondents.

Order, Supreme Court, New York County (Charles E. Ramos, J.), entered on or about December 6, 2012, which, upon renewal, granted defendants' motion to stay the instant class action pending arbitration and to compel arbitration, unanimously reversed, on the law, without costs, and defendants' motion denied. Appeal from decision, same court and Justice, dated October 22, 2012, which directs the settlement of an order, unanimously dismissed, without costs, as taken from a nonappealable paper. Appeals from order, same court and Justice, entered December 5, 2011, and from the corresponding so-ordered transcript, entered on or about January 17, 2012, unanimously dismissed, without costs, as superseded by the order entered on or about December 6, 2012.

The arbitration agreement in the Form U-4 signed by plaintiff provides for the arbitration of disputes "under the rules, constitutions, or by-laws of [the Financial Industry Regulatory Authority (FINRA)]." Accordingly, under the plain terms of the agreement, "arbitration shall be governed by the rules promulgated by FINRA," including former FINRA rule 13204(d) (now [a][1]), which "prohibits arbitration of class action claims" (Gomez v Brill Sec., Inc., 95 AD3d 32, 37 [1st Dept 2012]; see also Velez v Perrin Holden & Davenport Capital Corp., 769 F Supp 2d 445, 446-447 [SD NY 2011]).

The arbitration clause in the employment agreement between plaintiff and defendant John Thomas Financial (JTF) provides that employment disputes shall be resolved in an arbitration "under the auspices of FINRA." Contrary to the motion court's conclusion, the employment agreement, like the Form U-4, contemplates that arbitration shall be governed by the rules promulgated by FINRA, including FINRA rule 13204. Indeed, a party cannot agree to arbitrate "under the auspices of FINRA" without agreeing to abide by FINRA's arbitration rules and the limits therein, at least not in the absence of an express agreement stating otherwise (see Macquarie Holdings (USA) Inc. v Song, 82 AD3d 566, 567 [1st Dept 2011]).

Moreover, since the Form U-4 and the employment agreement were executed at substantially the same time and relate to the same subject matter, they "are regarded as [*2]contemporaneous writings and must be read together as one" (PETRA CRE CDO 2007-1, Ltd. v Morgans Group LLC, 84 AD3d 614, 615 [1st Dept 2011], lv denied 17 NY3d 711 [2011]). Accordingly, both the Form U-4 and
the employment agreement incorporate the FINRA rule prohibiting arbitration of class action claims like the ones at issue here.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 20, 2013

CLERK