Belzberg v. Verus Investments Holdings Inc.

999 N.E.2d 1130, 21 N.Y.3d 626
CourtNew York Court of Appeals
DecidedOctober 17, 2013
StatusPublished
Cited by63 cases

This text of 999 N.E.2d 1130 (Belzberg v. Verus Investments Holdings Inc.) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Belzberg v. Verus Investments Holdings Inc., 999 N.E.2d 1130, 21 N.Y.3d 626 (N.Y. 2013).

Opinion

OPINION OF THE COURT

Rivera, J.

In this CPLR article 75 proceeding, petitioner Samuel Belzberg (Belzberg) appeals an order of the Appellate Division that, inter alia, denied his application for a permanent stay of third-party arbitration claims (see 95 AD3d 713 [1st Dept 2012]). For the reasons that follow, we reverse.

In October 2008, Belzberg contacted a longtime business associate, Ajmal Khan, the principal of respondent Verus Investments Holdings Inc. (Verus), about an investment opportunity involving the purchase of securities in Fording Canadian Coal Trust to arbitrage a merger between Fording and another Canadian company (the Fording Trade). After several discussions about potential tax consequences, Belzberg and Khan decided to proceed with the Fording Trade. To complete the securities purchase Belzberg required an American brokerage account, and therefore agreed with Khan to use Verus’ account at Jefferies & Co., Inc. (Jefferies). Belzberg’s source for the investment money would be Winton Capital Holding (Winton), a British Virgin Islands corporation owned by a trust established by Belzberg and naming Belzberg’s children as the sole beneficiaries, and for which Belzberg served as an unpaid financial advisor.1 Belzberg directed that $5 million be sent from Winton to the Jefferies account for the purchase, and Verus wired an additional $1 million of its own funds.

After the merger, Jefferies wired to Verus both the original $5 million investment and $223,655.25 in profits attributable to the Winton funds. Verus thereafter wired the $5 million to Win-ton and upon instructions from Gibralt Capital, a Canadian holding company that Belzberg used to facilitate the Fording Trade, wired the profits to Doris Lindbergh (Lindbergh), a [629]*629friend of Belzberg. This money apparently was intended for Lindbergh to purchase a summer home.2

The Canadian tax authorities thereafter informed Jefferies that it owed a $928,053.45 withholding tax on the Fording Trade. Pursuant to the arbitration clause in the agreement between Jefferies and Verus (Jefferies-Verus agreement), Jefferies commenced an arbitration against Verus for the unpaid taxes before the Financial Industry Regulatory Authority. Verus answered and asserted third-party arbitration claims against Belzberg, Lindbergh, Winton, and Gibralt for their share of the taxes.

Belzberg, Lindbergh, Winton, and Gibralt filed an article 75 petition to stay arbitration of the third-party claims, and Verus cross-moved to compel arbitration. Supreme Court permanently stayed the arbitration as against Gibralt, granted the motion to compel Winton to arbitrate, and held the proceeding against the remaining parties in abeyance, pending a hearing on the petition and cross motion as to Belzberg and Lindbergh.

At the hearing, Lindbergh testified as to the money Belzberg had forwarded her. Among other things, she claimed that Belzberg had told her to pay him back when she could. The court considered Belzberg’s out-of-state deposition, in which Belzberg claimed that he had no ownership interest in Winton. Supreme Court determined that nonsignatories Belzberg and Lindbergh could not be compelled to arbitrate. The court concluded that the doctrine of arbitration by estoppel, which requires that a nonsignatory to an arbitration agreement receive a “direct benefit” from the agreement in order to be compelled to arbitrate a claim, did not apply, because Belzberg did not receive a benefit which flowed directly from the Jefferies-Verus agreement, and Lindbergh did not knowingly exploit that agreement.

On appeal, the Appellate Division reversed. The court determined that Belzberg should be estopped from avoiding arbitration because he knowingly exploited and received direct benefits from the agreement between Jefferies and Verus. It concluded that Belzberg diverted the profits from the trade to Lindbergh, and thus he directly benefitted from the agreement which made possible the trade that resulted in the profits. This [630]*630Court granted Belzberg’s motion for leave to appeal (19 NY3d 812 [2012]).

Belzberg now argues that the Appellate Division erroneously applied the direct benefits estoppel doctrine because he did not receive a direct benefit from the underlying agreement between Verus and Jefferies. Verus asserts that the Appellate Division properly concluded that Belzberg derived a direct benefit from the Jefferies-Verus agreement because he directed the profits to his friend Lindbergh. We conclude that Belzberg did not receive a direct benefit from the arbitration agreement, and cannot be compelled to arbitrate.

Arbitration is a matter of contract (see Thomson-CSF, S.A. v American Arbitration Assn., 64 F3d 773, 776 [2d Cir 1995]), “grounded in agreement of the parties” (County of Sullivan v Edward L. Nezelek, Inc., 42 NY2d 123, 128 [1977]). As a consequence, notwithstanding the public policy favoring arbitration (see TNS Holdings v MKI Sec. Corp., 92 NY2d 335, 339 [1998]), nonsignatories are generally not subject to arbitration agreements (see Steelworkers v Warrior & Gulf Nav. Co., 363 US 574, 582 [1960] [“a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit”]; see also Thomson-CSF, 64 F3d at 776 [arbitration agreements “must not be so broadly construed as to encompass claims and parties that were not intended by the original contract”]). However, under limited circumstances nonsignatories may be compelled to arbitrate (see TNS Holdings, 92 NY2d at 339 [recognizing “in certain limited circumstances the need to impute the intent to arbitrate to a nonsignatory”]).

Some New York courts have relied on the direct benefits estoppel theory, derived from federal case law, to abrogate the general rule against binding nonsignatories (see Matter of SSL Intl., PLC v Zook, 44 AD3d 429 [1st Dept 2007]; HRH Constr. LLC v Metropolitan Transp. Auth., 33 AD3d 568 [1st Dept 2006]; see also Oxbow Calcining USA Inc. v American Indus. Partners, 96 AD3d 646 [1st Dept 2012]).3 On this appeal, we must consider whether by application of this theory Belzberg may be estopped from avoiding arbitration.

[631]*631Under the direct benefits theory of estoppel, a nonsignatory may be compelled to arbitrate where the nonsignatory “knowingly exploits” the benefits of an agreement containing an arbitration clause, and receives benefits flowing directly from the agreement (see MAG Portfolio Consultant, GmbH v Merlin Biomed Group LLC, 268 F3d 58, 61 [2d Cir 2001] [“Under the estoppel theory, a company ‘knowingly exploiting (an) agreement (with an arbitration clause can be) estopped from avoiding arbitration despite having never signed the agreement’ ”]; see also Deloitte Noraudit A/S v Deloitte Haskins & Sells, U.S., 9 F3d 1060, 1064 [2d Cir 1993] [“Noraudit knowingly accepted the benefits of the Agreement through its continuing use of the name ‘Deloitte’ ”]; Reid v Doe Run Resources Corp., 701 F3d 840, 846 [8th Cir 2012] [“Direct benefits estoppel applies when a nonsignatory knowingly exploits the agreement containing the arbitration clause”], quoting Bridas S.A.P.I.C. v Government of Turkmenistan, 345 F3d 347, 361-362 [5th Cir 2003]).

Where the benefits are merely “indirect,” a nonsignatory cannot be compelled to arbitrate a claim.

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Cite This Page — Counsel Stack

Bluebook (online)
999 N.E.2d 1130, 21 N.Y.3d 626, Counsel Stack Legal Research, https://law.counselstack.com/opinion/belzberg-v-verus-investments-holdings-inc-ny-2013.