Bank of the Commonwealth v. Hudspeth

714 S.E.2d 566, 282 Va. 216, 2011 Va. LEXIS 189
CourtSupreme Court of Virginia
DecidedSeptember 16, 2011
Docket101120
StatusPublished
Cited by5 cases

This text of 714 S.E.2d 566 (Bank of the Commonwealth v. Hudspeth) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bank of the Commonwealth v. Hudspeth, 714 S.E.2d 566, 282 Va. 216, 2011 Va. LEXIS 189 (Va. 2011).

Opinion

714 S.E.2d 566 (2011)
282 Va. 216

BANK OF THE COMMONWEALTH
v.
Roger O. HUDSPETH.

Record No. 101120.

Supreme Court of Virginia.

September 16, 2011.

*567 Ethan G. Ostroff (James C. Roberts; Gregory A. Giordano; Troutman Sanders, on briefs), for appellant.

Kevin E. Martingayle (William C. Bischoff; Jonathan L. Stone; Stallings & Bischoff, on brief) for appellee.

Present: KINSER, C.J., LEMONS, GOODWYN, MILLETTE, and MIMS, JJ.

Opinion By Justice DONALD W. LEMONS.

In this appeal, we consider whether the Circuit Court of the City of Norfolk (the "circuit court") erred when it refused to stay the suit of Roger O. Hudspeth ("Hudspeth") against the Bank of the Commonwealth ("the Bank") and compel Hudspeth to submit his claim against the Bank to arbitration before the Financial Industry Regulatory Authority ("FINRA") because it found that the Bank was not a "customer" as defined by the FINRA *568 Code of Arbitration Procedure for Customer Disputes ("Customer Code").

I. Facts and Proceedings Below

In November 2005, the Bank hired Hudspeth to serve as Vice President—Investments and as sales manager of its affiliated limited liability corporation, Commonwealth Financial Advisors, LLC ("CFA"). Hudspeth's employment with the Bank was subsequently terminated in February 2008. Thereafter, Hudspeth filed a complaint against the Bank in October 2008, alleging that the Bank failed to pay compensation of $225,000 to which he was entitled for his employment. The Bank filed a demurrer, arguing that any agreement Hudspeth may have had was with CFA and not the Bank. The circuit court overruled the demurrer in February 2009.

In March 2009, the Bank filed a motion to stay and to compel arbitration, arguing that it was entitled, as a member firm under FINRA's Customer Code,[1] which governs disputes between members, to compel arbitration of Hudspeth's claim. FINRA is the successor to the National Association of Securities Dealers ("NASD") and is responsible for regulating FINRA members and enforcing arbitration under the Customer Code. See Karsner v. Lothian, 532 F.3d 876, 879 (D.C.Cir.2008).

Under Customer Code Rule 12200, a dispute must be arbitrated if "[t]he dispute arises in connection with the business activities of [a] member or [an] associated person [of a member]," is between "a customer and a member or associated person of a member," and is "[r]equested by the customer."[2] The Bank argued that, as a subsidiary of Commonwealth Bank Shares, Inc., the Bank was a "member" firm under the Customer Code, and Hudspeth, as a securities broker registered with FINRA, was an "associated person of a member" under the Customer Code. Therefore, the dispute was between a member and an associated person, and the Bank was entitled to compel arbitration under the Customer Code.

In July 2009, the Bank filed a supplemental motion to stay and to compel arbitration, asserting, in the alternative, that the circuit court should compel arbitration because the Bank is a "customer" under the Customer Code. In support of its motion, the Bank argued that the Customer Code defines "customer" broadly, excluding only a broker or dealer, which the Bank is not. Moreover, the Bank asserted that at the time of Hudspeth's employment, the Bank was a customer of BI Investments, L.L.C. ("BI Investments"), a broker-dealer of securities and a member of FINRA with which the Bank had entered into a brokerage agreement to provide investment products, through CFA, to the Bank's patrons. The Bank further asserted that because Hudspeth was registered as a securities broker with FINRA through BI Investments at all relevant times, Hudspeth was an associated person of a member, BI Investments. Therefore, because the dispute was between a customer (the Bank) and an associated person of a member (Hudspeth), arbitration was mandatory under the Customer Code.

In response, Hudspeth argued that there must be an express agreement between Hudspeth and the Bank to compel him to submit to arbitration. Because there was no such agreement, Hudspeth argued, the circuit court must deny the Bank's motion to compel arbitration. Hudspeth also asserted that the Bank is neither a "member" firm nor a "customer" under the Customer Code.[3] According to Hudspeth, the Bank is not a "member" merely because it is a subsidiary of Commonwealth Bank Shares, Inc., and it is not a "customer" because the Bank does not "receive investment and brokerage services from a securities licensee."

*569 The circuit court denied the Bank's motion to stay and compel arbitration, concluding that, although Hudspeth was an "associated person of a member" with respect to BI Investments, the Bank was not a "customer" of BI Investments and therefore was not entitled to compel arbitration.[4] The circuit court found that there was no evidence of an express arbitration agreement between the parties, but explained that this finding "d[id] not end the inquiry" because arbitration may be imposed in the absence of an express agreement if the Bank was a "customer" under the Customer Code. The circuit court observed that determining whether the Bank was a "customer" for purposes of the Customer Code does not end at the conclusion that the Bank is not a dealer or broker, as the Bank asserted. Rather, the circuit court stated it would adopt a more "holistic point of view," finding that the "definition [of customer] within the [Customer] Code is a contextual one, and it must be fleshed out in individual cases with regard to the factual assertions being made in the individual case and the position of the parties in the case." The circuit court determined that the Bank was not a member of the "investing public," and held that it was not a "customer" for purposes of the Customer Code because the brokerage agreement established between BI Investments and the Bank established independent roles for each entity. Therefore, the circuit court denied the Bank's motions to stay and to compel arbitration.

The Bank timely filed its notice of appeal[5] and we granted an appeal on the following assignment of error:

1. The [Circuit] court erred in refusing to stay the case and compel Plaintiff to submit his claim against Bank of the Commonwealth to arbitration before the Financial Industry Regulatory Authority ("FINRA") because Bank of the Commonwealth was a customer of BI Investments, LLC and entitled, pursuant to FINRA Customer Code Rule 12200, to demand arbitration of its dispute against Plaintiff, who is a member of FINRA and an associated person of a member of FINRA.

II. Analysis

A. Standard of Review

Well-settled principles of appellate review guide our analysis in this case.

[A]n issue of statutory interpretation is a pure question of law which an appellate court reviews de novo. When the language of a statute is unambiguous, the appellate court is bound by the plain meaning of that language.... If a statute is subject to more than one interpretation, we must apply the interpretation that will carry out the legislative intent behind the statute.

Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174, 178 (2007) (citations omitted).

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Cite This Page — Counsel Stack

Bluebook (online)
714 S.E.2d 566, 282 Va. 216, 2011 Va. LEXIS 189, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bank-of-the-commonwealth-v-hudspeth-va-2011.