Interactive Brokers, LLC v. Barry

199 A.3d 829, 457 N.J. Super. 357
CourtNew Jersey Superior Court Appellate Division
DecidedDecember 31, 2018
DocketDOCKET NO. A-4197-17T4
StatusPublished

This text of 199 A.3d 829 (Interactive Brokers, LLC v. Barry) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Interactive Brokers, LLC v. Barry, 199 A.3d 829, 457 N.J. Super. 357 (N.J. Ct. App. 2018).

Opinion

CURRIER, J.A.D.

*359In this matter, arising out of securities law violations, we conclude that a receiver acting on behalf of a defrauded entity may initiate arbitration even if the defrauded investors of the entity will ultimately benefit from any assets recouped in arbitration.

After the New Jersey Attorney General discovered Osiris Fund Limited Partnership (Osiris), a hedge fund founded by Peter Zuck, perpetrating a Ponzi scheme which defrauded its investors of more than $6.5 million, the Attorney General instituted suit against Zuck and Osiris. Osiris operated through the securities trading platform of plaintiff Interactive Brokers, LLC (Interactive), and plaintiff Kevin Michael Fisher, as an Interactive employee, assisted Osiris in using Interactive's platform.

Under a consent order, Zuck was determined to have violated securities laws and defrauded investors, and he was ordered to pay restitution of $7,564,273. Defendant Richard Barry (the Receiver) was appointed as receiver for Osiris.

In the appointment order, the Receiver was permitted to:

*360immediately take into possession and take title to all real and personal property of [Osiris] ... including ... causes of action and all such assets obtained in the future, and undertake all actions necessary or appropriate to maintain optimal value of these assets, including liquidation of any such assets.

To carry out these duties, the Chancery court granted the Receiver "full statutory powers ... to perform the receiver's duties, including the powers delineated in N.J.S.A. 49:3-69(c)[1 ] and (d)[2 ] and ...

*831those set forth in N.J.S.A. 14A:14-1 [to -27] or so far as the provisions thereof are applicable."

In 2017, the Receiver, as the sole claimant acting on behalf of Osiris, filed a Statement of Claim (Statement) against plaintiffs and initiated Financial Industry Regulatory Authority (FINRA) arbitration proceedings. The Statement listed seven causes of action including: 1) negligence and/or failure to supervise; 2) breach of implied/express contract, implied duty of good faith and fair dealing and industry rules; 3) aiding and abetting breach of fiduciary duty; 4) aiding and abetting common law fraud; 5) unsuitability; 6) fraudulent conveyance; and 7) unjust enrichment.

*361The Receiver asserted plaintiffs were required to resolve any dispute in arbitration under the FINRA Code and pursuant to the Customer Agreement (Agreement) drafted by Interactive and executed by Interactive and Zuck on behalf of Osiris. Section 33.A of the Agreement states:

Customer [Osiris] agrees that any controversy, dispute, claim, or grievance between [Interactive], any [Interactive] affiliate or any of their shareholders, officers, directors employees, associates, or agents on the one hand, and Customer, or, if applicable, Customer's shareholders, ... on the other hand, arising out of, or relating to, this Agreement, or any account(s) established hereunder in which securities may be traded; any transactions therein; any transactions between [Interactive] and [Osiris]; any provision of the Customer Agreement or any other agreement between [Interactive] and [Osiris]; or any breach of such transactions or agreements, shall be resolved by arbitration, in accordance with the rules then prevailing of any one of the following: (a) The American Arbitration Association; (b) [FINRA]; or (c) any other exchange of which [Interactive] is a member, as the true claimant-in-interest may elect.
[ (emphasis added).]

The FINRA Code mandates that members submit all disputes to FINRA arbitration upon a customer's request.3 FINRA Rule 12200.

In response, plaintiffs filed an action for declaratory and injunctive relief in the Chancery Division seeking: 1) a declaration that the Receiver "brought claims against [p]laintiffs in an arbitration commenced before [FINRA] that are beyond" his powers in the appointment order; and 2) "injunctive relief to prevent the Receiver from continuing ... the FINRA arbitration." Plaintiffs alleged the claims were "beyond the scope of the Receiver's authority" because the Receiver grounded his claims on the damages incurred by Osiris's investors, rather than Osiris itself.

The Receiver opposed plaintiffs' action and moved to compel arbitration and dismiss *832the complaint, contending the Agreement and Federal Arbitration Act required plaintiffs to arbitrate with FINRA. The New Jersey Bureau of Securities (Bureau), as amicus curiae, filed a brief in support of the Receiver. *362After oral argument, the Chancery judge issued a May 16, 2018 written decision and order, denying plaintiffs' application for a preliminary injunction, granting the Receiver's cross-motion to compel FINRA arbitration, and dismissing the complaint. The judge concluded: 1) "the claims set forth in the Receiver's Statement of Claim [were] brought on behalf of Osiris Fund itself, not Osiris Fund's investors"; 2) the Receiver's ability to file the Statement of Claim with FINRA was authorized under the trial court's appointment order, N.J.S.A. 49:3-69(c), and N.J.S.A. 14A:14-1 to -27; 3) the Receiver's claims arose from a dispute between Interactive and Osiris, mandating a resolution in arbitration under the Agreement; and 4) the in pari delicto defense plaintiff asserted was grounded in the merits of Receiver's arbitration claims, and therefore required an arbitrator's determination.

On appeal, plaintiffs assert the Chancery judge erred in 1) denying its application for preliminary injunction and finding the Receiver's claims belonged to Osiris rather than its investors, and 2) concluding the Receiver's claims were subject to arbitration.

We begin with plaintiffs' first argument, and review a trial court's decision to grant or deny a preliminary injunction for an abuse of discretion. Horizon Health Ctr. v. Felicissimo, 135 N.J. 126, 137, 638 A.2d 1260 (1994). A trial court's decision should not be reversed unless it was "made without a rational explication, inexplicably departed from established practices, or rested on an impermissible basis." Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571, 796 A.2d 182 (2002).

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Cite This Page — Counsel Stack

Bluebook (online)
199 A.3d 829, 457 N.J. Super. 357, Counsel Stack Legal Research, https://law.counselstack.com/opinion/interactive-brokers-llc-v-barry-njsuperctappdiv-2018.