Who is the "Customer" For Purposes of FINRA Rule 12200

WHO IS A "CUSTOMER" FOR PURPOSES OF FINRA RULE 12200

By Martin P. Unger, Partner, Wexler Burkhart Hirschberg & Unger, LLP

FINRA Rule 12200 provides that the parties must arbitrate a dispute under the FINRA Code of Arbitration Procedure for Customer Disputes if arbitration is "(2) requested by the customer; the dispute is between a customer and a member or associated person of a member; and the dispute arises in connection with the business activities of the member or the associated person…."

This rule poses two (2) questions:

• Who is a "customer"; and
• Whether the dispute "arises in connection with the business activities of the member or the associated person."

Claimant's continue to argue for an expansion of the definition of "customer" whereas broker/dealers and associated persons take a contrary view. Nevertheless, it appears the matter has been settled in most courts that have visited the issue.

Earlier cases such as Multi-Financial Securities Corp. v. King, 386 F.3d 1364 (11^th Cir. 2004), and Vestax Securities Corporation v. Mc Wood, 280 F.3d 1078 (6^th Cir. 2002),both relying on John Hancock Life, Inc. v. Wilson, 254 F.3d 48 (2d Cir. 2001), took the view that a customer is any person who is not a broker-dealer.[1] See also, Chelsey Morgan Securities, Inc. v. Rapport, 3 F.Supp. 3d 791 (C.D.CA. 2014); Sparks v. Saxon Investments, LLC, 2009 WL 2886029(D. Utah 2009) (plaintiffs were actual customers of the broker-dealer).

Most Courts find to the contrary. For example, in Investors Capital Corp. v. Brown, 145 F.Supp. 2d 1302 (M.D. Fla. 2001) (relying on Wheat First Securities, Inc. v. Green, supra), the Court noted that:

"being a customer of an associated person is not, in itself, a sufficient basis for compelling arbitration with a member".

The Court went on to conclude that

"in joining the NASD, ICC agreed to arbitrate disputes with its customers, rather than customers of every person associated with ICC…. To compel arbitration as "customers" the Defendants must established that they were ICC customers at the time of the transactions giving rise to their arbitration claims… Because they did not have ICC accounts or other evidence of a traditional customer relationship with ICC, the Defendants must show that they established an informal business relationship with ICC… or at least attempted to do so,…"

See, Mony Securities Corp. v. Vazquez, 238 F.Supp. 2d 1304 (M.D. Fla. 2002) (investing through person associated with the broker-dealer is insufficient to require the broker-dealer to arbitrate the dispute). The most recent decision, from a court in the Second Circuit, Deutsche Bank Securities, Inc. v. Roskos, NO. 15-CV-534 (S.D.N.Y. 8/4/2016),held that absent an arbitration agreement, as at bar, a person seeking to compel a FINRA member to arbitrate as its "customer" must (1) have an account with the FINRA member or (2) have purchased goods and services from the member.

All other federal appellate courts, as well as federal district courts and state appellate courts, have found contrary to Multi-Financial Securities Corp. and Vestax. Thus, the Eighth Circuit in FleetBoston Robertson Stephens, Inc. v. Innovex, Inc., 264 F.3d 770 (8^th Cir. 2001) held the term "customer" is defined as "one who receives investment and brokerage services or otherwise deals more directly with securities than what occurred here". The Court went on to hold that "we agree with the district court that "customer" does not include an entity such as Ad Flex, which only received financial advice, without receiving investment or brokerage related services from an NASD member." The Eighth Circuit further refined this definition of "customer" in Berthel Fisher & Company Financial Services, Inc. v. Larmon, 695 F.3d 749 (8^th Cir. 2012). There, the Court reaffirmed that "customer" "refer[s] to one involved in a business relationship with [a FINRA] member that is related directly to investment or brokerage services".

This was recognized and expanded upon in UBS Financial Services, Inc. v. Carilion Clinic, 706 F.3d 319 (4^th Cir. 2013). While noting that the term "business activities" in Rule 12200 involved "investment banking or securities business", the Court went on to hold that

"when FINRA uses "customer" in Rule 12200, it refers to one, not a broker or dealer, who purchases commodities or services from a FINRA member in the course of the member's business activities insofar as those activities are covered by FINRA's regulation, namely the activities of investment banking and the securities business."

The Fourth Circuit in a case involving a registered representative, Raymond James Financial Services, Inc. v. Cary, 709 F.3d 382 (4^th Cir. 2013), in which, as at bar, "the investors made their decision to invest independently of any recommendation on the part of RJFS", held that appellants are not RJFS' customers because "they did not purchase any "commodities or services" from RJFS or Keough [an RJFS associated person] in the course of the firm's business activities". The Second Circuit followed suit in Citigroup Global Markets, Inc. v. Abbar, 761 F.3d 268 (2d Cir. 2014). There, the Court distinguished its John Hancock decision, which, according to the Court which decided it, involved the presumption in favor of arbitration, not the obligation to arbitrate [the issue in Citigroup], noting that "the word "customer" must be construed in a manner consistent with reasonable expectations of FINRA members". The Court went on to hold that

"the purchase of a good or service from a FINRA member creates a customer relationship… Likewise, when it is clear that no goods or services were provided by the FINRA member, "there is no need to grapple with the precise boundaries of the FINRA meaning of "customer" because "no rational factfinder could infer a customer relationship on such facts".

See also, Pershing, LLC v. Bevis, 2014 WL 1818098 (M.D. La. 2014), aff'd, 606 Fed. Appx. 754 (5^th Cir. 2015). Another case involving the obligation to arbitrate, not the presumption in favor of arbitration, is Grant v. Rotolante, 147 So. 3d 128 (2014). There, Grant, an associated person, advised Ms. Rotolante concerning her investments. Ms. Rotolante did not open an account with Grant,

"deposit any monies or securities with him, purchase or sell any securities from or through him, and never paid Mr. Grant any compensation".

Under these facts, the Florida Appellate Court held

"Ms. Rotolante was not Mr. Grant's customer under FINRA Rule 12200. Mrs. Rotolante did not open any account with Mr. Grant, deposit any money or securities with him, purchase or sell any securities from or through him, and never paid Mr. Grant any compensation… Therefore, Ms. Rotolante was not Mr. Grant's customer under FINRA 12200… Expanding the definition to include Ms. Rotolante under the facts of this case would upset the reasonable expectation of FINRA members".

Claimant's also point to FINRA's apparent position that "selling away" claims are arbitrable. FINRA has stated that "under the Codes, FINRA accepts cases brought by customers against associated persons in selling away cases, and cases by customers against the associated person's member firm if there is any allegation that the member was or should have been involved in the events, such as an alleged failure to supervise the associated person." Order Approving Proposed Rule Change, 74 Fed. Reg. 731, 736 and 37 (January 7, 2009). The problem with this argument is that it appears to take the cart before the horse. Even FINRA recognizes that before the issue of "selling away" is considered, the issue of whether Claimant is a "customer" must be resolved – only if Claimant is a "customer" does the issue of "selling away" arise.

Claimant's argument that the broker/dealer failed to supervise its associated person also does not pass muster. As the court in Raymond James Financial Services, Inc. v. Cary, supra,recognized, "any question as to whether RJFS failed to adequately supervise Keough [the associated person] and is thus potentially liable for his arguably unauthorized activities goes to the merits of appellant's claim, not the arbitrability of those claims. Therefore, we do not address the matter here." Resolution of the "arbitrability" issue revolves solely around whether the Claimant was a "customer" of the broker/dealer.

In conclusion, therefore, it appears clear that a "customer" for purposes of a broker/dealer's obligation to arbitrate, is one who purchases a good or service from a member and arguments concerning "selling away" or failure to supervise are irrelevant to resolution of these issues.