Adviser Dealer Services, Inc. v. Icon Advisers, Inc.

557 F. App'x 714
CourtCourt of Appeals for the Tenth Circuit
DecidedFebruary 12, 2014
Docket13-1178, 13-1187
StatusUnpublished
Cited by2 cases

This text of 557 F. App'x 714 (Adviser Dealer Services, Inc. v. Icon Advisers, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Adviser Dealer Services, Inc. v. Icon Advisers, Inc., 557 F. App'x 714 (10th Cir. 2014).

Opinion

ORDER AND JUDGMENT *

STEPHANIE K. SEYMOUR, Circuit Judge.

This appeal and cross-appeal arise out of an arbitration proceeding before the Financial Industry Regulatory Authority (“FINRA”) between ICON Advisers, Inc., ICON Distributors, Inc., and ICON Management & Research Corporation (collectively “ICON”), and Adviser Dealer Services, Inc., Meeder Asset Management, Inc., Meeder Financial, Inc. (collectively “Meeder”), and Stephen C. Holmes. ICON appeals the district court’s order vacating the arbitration panel’s award to ICON of $164,170 in attorneys’ fees, and Meeder cross-appeals the court’s order upholding the panel’s award to ICON of $250,000 in nominal damages. 1 We affirm in part and vacate in part.

Mr. Holmes was hired by ICON as a wholesaler in 1998 but eventually became an owner and executive officer in 2003. In 2009, an ICON internal investigation revealed problems with Mr. Holmes’ management approach, and ICON decided he should be fired. Mr. Holmes requested that he be allowed to retire, and ICON agreed. While ICON searched for his replacement, Mr. Holmes continued to work as ICON Distributors’ interim President and ICON Advisers’ head of sales.

As a result of his transition to retirement, ICON and Mr. Holmes executed a Retirement Agreement, which specifically noted that “[i]n any action to enforce, interpret, or seek damages for violation of this Agreement, the prevailing Party shall recover all reasonable attorneys’ fees, litigation expenses and costs.” The Retirement Agreement incorporated by reference a Confidential Information, Inventions, and Non-Solicitation Agreement, which essentially forbade Mr. Holmes from working with any of ICON’S competitors for two years. The non-compete agreement also prohibited Mr. Holmes from using any of ICON’S confidential information.

In light of a subsequent investigation into the conduct of one of Mr. Holmes’ subordinates, Mr. Holmes left ICON in March 2010 under a separation agreement that did not alter the terms of his non-compete agreement. Meeder, a direct competitor of ICON, hired Mr. Holmes to act as its Senior Vice President of Sales and Marketing in April 2010. After several attempts by ICON to make Mr. Holmes comply with the non-compete agreement, the parties agreed to arbitrate their dispute. All parties to the dispute, including ICON, Meeder, and Mr. Holmes, signed FINRA Uniform Submission Agreements, stating that each agreed to be bound by FINRA’s rules, by-laws, and Code of Arbitration Procedure.

ICON filed a Statement of Claim, alleging breach of contract against Mr. Holmes, tortious interference with a contract against Meeder, and interference with a prospective business relationship against both Mr. Holmes and Meeder. ICON sought, among other things, damages and attorneys’ fees “pursuant to the Retire *717 ment Agreement and the Non-Compete Agreement-” ApltApp. at 27. Mr. Holmes and Meeder filed a Statement of Answer and Counterclaims, requesting the panel “award Respondents their reasonable attorneys fees, costs and expenses, forum fees and such further relief as the Panel may deem just and proper.” Aplt. App. at 65 (emphasis added). ICON filed an Answer to Respondents’ Counterclaims, in which it requested “reasonable attorneys fees.” ApltApp. at 74. In addition, all the parties submitted affidavits for attorneys’ fees to the panel.

In March 2012, the FINRA panel found Meeder jointly and severally liable and awarded ICON damages, including the $250,000 in nominal damages and $164,170 in attorneys’ fees “pursuant to the terms of the Retirement Agreement” at issue here. ApltApp. at 12. Meeder filed a motion to vacate the arbitration award in the district court, arguing that it was never a party to the Retirement Agreement and cannot be forced to pay attorneys’ fees based on an agreement to which it was never a party, that ICON never requested attorneys’ fees from Meeder, and that there was no support for the award of $250,000 in nominal damages. The district court confirmed the panel’s award of $250,000 in nominal damages but vacated the award of $164,170 in attorneys’ fees. It reasoned that Meeder was “not [a] partly] to the Retirement Agreement,” that ICON never requested attorneys’ fees from Meeder “based on the Retirement Agreement,” and that “attorney fees were payable only by the parties to the agreement.” ApltApp. at 71.

A district court may vacate an arbitration award only “for the reasons enumerated in the Federal Arbitration Act, 9 U.S.C. § 10, or for ‘a handful of judicially created reasons.’ ” 2 Burlington N. & Santa Fe Ry. Co. v. Pub. Serv. Co. of Olda., 636 F.3d 562, 567 (10th Cir.2010) (quoting Sheldon v. Vermonty, 269 F.3d 1202, 1206 (10th Cir.2001)). These judicially created reasons “include violations of public policy, manifest disregard of the law, and denial of a fundamentally fair hearing.” Sheldon, 269 F.3d at 1206. “In reviewing a district court order vacating an arbitration award, we review factual findings for clear error and legal determinations de novo.” Hol-lem, 458 F.3d at 1172. But we “give extreme deference to the determination of the arbitration panel for the standard of review of arbitral awards is among the narrowest known to law.” Id. (internal quotation marks and citation omitted). This narrow standard “has been interpreted to mean that ‘as long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision.’ ” Int’l Bhd. of Elec. Workers, Local Union No. 611, AFL-CIO v. Pub. Serv. Co. of N.M., 980 F.2d 616, 618 (10th Cir.1992) (quoting United Paper-workers Int’l Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 38, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987)). “Once an arbitration award is entered, the finality of arbitration weighs heavily in its favor and cannot be *718 upset except under exceptional circumstances.” Burlington, 636 F.3d at 567 (internal quotation marks and citation omitted).

On appeal, Meeder again contends ICON never requested attorneys’ fees from Meeder “pursuant to the Retirement Agreement or otherwise,” Aple. Br. at 17 (emphasis in original), and therefore the issue was never submitted to the panel. Meeder also argues that because it was never a party to the Retirement Agreement, it cannot be bound by the panel’s decision to award attorneys’ fees based on that agreement. We disagree.

FINRA guidelines expressly allow a panel to award attorneys’ fees when “all of the parties request or agree to such fees.” Aplt.App. at 55 (emphasis added).

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557 F. App'x 714, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adviser-dealer-services-inc-v-icon-advisers-inc-ca10-2014.