Becker Ex Rel. Anne S. Becker Charitable Remainder Unitrust v. Davis

491 F.3d 1292, 2007 U.S. App. LEXIS 16381, 2007 WL 1988551
CourtCourt of Appeals for the Eleventh Circuit
DecidedJuly 11, 2007
Docket06-12654
StatusPublished
Cited by44 cases

This text of 491 F.3d 1292 (Becker Ex Rel. Anne S. Becker Charitable Remainder Unitrust v. Davis) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Becker Ex Rel. Anne S. Becker Charitable Remainder Unitrust v. Davis, 491 F.3d 1292, 2007 U.S. App. LEXIS 16381, 2007 WL 1988551 (11th Cir. 2007).

Opinion

WILSON, Circuit Judge:

This appeal concerns a motion to compel a plaintiff, Anne S. Becker (“Becker”), to submit the claims in her complaint to arbitration pursuant to the Federal Arbitration Act, 9 U.S.C. §§ 1-16. Becker, on her own behalf and as trustee on behalf of her charitable remainder trust, filed a complaint against various financial advis-ors alleging that they provided her and the trust with unsound financial advice. We conclude that some of Becker’s individual claims are subject to arbitration and others are not. We further conclude that the financial advisors who did not contract with Becker to submit their disputes to arbitration can compel arbitration only to the extent that they allegedly collaborated with those who did so contract.

Becker, individually and as the trustee for the Anne S. Becker Charitable Remainder Unitrust (“the Trust”) (collectively “the plaintiffs”), filed suit in the United States District Court for the Northern District of Florida against John A. Davis, Jr.; William D. King; Falcon Financial Management, Inc.; Falcon Financial Planning, Inc.; Multi-Financial Securities Corporation, successor by merger to IFG Network Securities, Inc.; IFG Advisory Services Inc., f/k/a Associated Financial Planners, Inc.; Michael T. Hartley; Dale K. Ehrhart; Michael G. Tillman; Michael *1295 Tillman, P.A.; and Tillman Hartley LLC. Essentially, the complaint alleges that these defendants provided Becker and the Trust with unsound financial advice that lined the pockets of the the defendants at the expense of plaintiffs.

The defendants John A. Davis (“Davis”), Falcon Financial Management, Inc., (“Falcon FM”), Falcon Financial Planning, Inc. (“Falcon FP”), Multi-Financial Securities Corporation, successor to IFG Network Securities, Inc. (“IFG-SEC”) and IFG Advisory Services, Inc. (“IFG-AS”) (collectively “the defendants”) filed a motion to compel arbitration based on three contractual agreements that the Trust entered into with Davis and IFG-SEC. Each of the three agreements contain an arbitration clause. The district court granted the defendants’ motion in part and denied the motion in part. The court granted the motion as it related to the claims brought by Becker as trustee on behalf of the Trust. The court denied the motion as it related to the claims brought by Becker in her individual capacity, because she was not a signatory to the agreements. The district court also denied the motion as to Falcon FM and Falcon FP, because they, too, were not signatories to the agreements. The defendants appeal the district court’s order. We affirm in part, reverse in part, and remand for the reasons set forth in this opinion.

I. BACKGROUND

In 1994 Becker inherited approximately $9 million and moved to Florida a year later. Shortly after her arrival in Florida, Becker met Defendant William D. King (“King”), who introduced her to Davis and defendant Michael G. Tillman (“Tillman”). 1 During all relevant times, Davis was president and principal owner of Falcon FM and Falcon FP. Davis was also a registered representative and registered principal of IFG-SEC and a registered investment advisor of IFG-AS. In late 1996, on the advice of Davis, Becker created the Trust and named herself and Davis as trustees. 2 Becker claims that she ultimately placed approximately $3 million, one third of her assets, in the Trust.

A. The Complaint

On July 15, 2005, Becker and the Trust filed suit against the defendants. The complaint alleges a wide variety of allegations. In general, the complaint alleges that all the defendants were working together to induce Becker and the Trust to adopt a financial strategy that was unsuitable for her personal investment objectives. The complaint also generally alleges that the “Conspiring Defendants” 3 failed to disclose that they were engaged in a scheme to defraud Becker and the Trust:

(a) by wrongfully creating an inappropriate investment environment and structure to control the use and investment of Plaintiffs assets for an inordinately long period of time; (b) by wrongfully creating an investment vehicle or structure for Plaintiff that would make it very difficult, if not impossible, for her to extricate herself or her assets from the Conspiring Defendants’ control; (c) by wrongfully charging *1296 Plaintiff and sharing among themselves excessive, illegal, and undisclosed fees and commissions; (d) by wrongfully creating for themselves opportunities to provide and charge Plaintiff for extensive, unnecessary, and improper fee generating “professional” services; and (e) by preparing or causing to be prepared complex documents lacking provisions customarily found in, or containing provisions not usually found in, similar types of documents properly prepared by others, and by inducing Plaintiff to execute them in order to extend improperly their own control over Plaintiffs assets, and to facilitate their continuing Scheme to Defraud; all without regard for Plaintiffs interests, and for the fundamental purpose of maximizing their own profits and wealth at the expense of their client.

The complaint more specifically alleges actions by the defendants as to Becker and actions by the defendants as to the Trust. As to Becker as an individual, the complaint alleges, among other things, that Davis, Tillman, and King gave her improper financial advice concerning a real estate transaction where Becker had purchased, along with a partner, Susan Berger, approximately 175 acres of land in Micanopy, Florida to start a business to train and board horses. Becker also alleges that Davis opened a money market account without her consent in the name of “ANNE S. BECKER & JOHN A. DAVIS JR JTWROS (joint tenants with right of survivorship),” Further, based on Davis’s advice, Becker also created the Anne S. Becker Irrevocable Trusts. These two trusts were created to provide life insurance benefits to certain beneficiaries. Becker alleges that Davis received, without her knowledge, an insurance agent commission in connection with the insurance policy issued to her and that the trusts themselves were unsuitable for Becker’s needs.

The complaint alleges, among other things, that pursuant to the advice of Davis and King, the Trust invested in the CNL Income Fund XVIII, Ltd. (“CNL”) and the investment in this security was unsuitable for the Trust. Also pursuant to Davis and King’s advice, the Trust opened investment accounts with DKE and SEI Investments. The complaint alleges that Davis and his companies received improper fees based on these investments.

Based on these and other factual allegations, Becker and the Trust filed a twenty-count complaint. Becker, in her individual capacity, brought fifteen counts. The Trust brought four counts, and Becker and the Trust collectively brought one count. 4

B. The Arbitration Agreements

During the course of Becker and the Trust’s relationship with the defendants, the Trust executed three agreements with IFG-SEC.

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Bluebook (online)
491 F.3d 1292, 2007 U.S. App. LEXIS 16381, 2007 WL 1988551, Counsel Stack Legal Research, https://law.counselstack.com/opinion/becker-ex-rel-anne-s-becker-charitable-remainder-unitrust-v-davis-ca11-2007.