Barr v. Bishop Rosen & Co.
| Decision Date | 26 October 2015 |
| Citation | 442 N.J.Super. 599,126 A.3d 328 |
| Parties | Stephen BARR, Plaintiff–Respondent, v. BISHOP ROSEN & CO., INC., Defendant–Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
442 N.J.Super. 599
126 A.3d 328
Stephen BARR, Plaintiff–Respondent,
v.
BISHOP ROSEN & CO., INC., Defendant–Appellant.
Superior Court of New Jersey, Appellate Division.
Argued Sept. 29, 2015.
Decided Oct. 26, 2015.
Barry M. Bordetsky argued the cause for appellant (Law Offices of Barry M.
Bordetsky, attorneys; Mr. Bordetsky, on the brief).
Brian E. Kasper, Lawrenceville, argued the cause for respondent (Stark & Stark, attorneys; Mr. Kasper, of counsel and on the brief).
Before Judges FISHER, ESPINOSA1 and CURRIER.
The opinion of the court was delivered by
FISHER, P.J.A.D.
Defendant Bishop Rosen & Co., Inc., appeals the denial of its motion to compel arbitration, contending that—individually or collectively—documents executed by plaintiff Stephen Barr during his seventeen years of employment created a valid and enforceable arbitration agreement that precluded plaintiff's right to sue Bishop Rosen on claims alleging breach of contract and violations of New York statutes regarding commissions and wages. Because these documents fail to clearly evince an effective waiver of plaintiff's right to seek relief from Bishop Rosen in a judicial forum, we affirm.
I
Bishop Rosen is a brokerage firm that employed plaintiff as a stockbroker from sometime in 1997 to June 2014. As a condition of employment, plaintiff registered with the National Association
of Securities Dealers, Inc. (NASD), now known as the Financial Industry Regulatory Authority (FINRA).2
In order to register with the NASD, plaintiff executed a Uniform Application for Securities Industry Registration or Transfer Form U–4 (Form U–4) on September 9, 1997, and another twelve years later, on July 8, 2009. Both these agreements contain arbitration clauses. Plaintiff also executed two amended Form U–4 documents, one on May 15, 2003, and the other on January 28, 2005; neither contained an agreement to arbitrate.
On October 27, 1999, the SEC approved NASD Rule 3080, which required entities such as Bishop Rosen to provide a model arbitration disclosure statement whenever asking an associated person such as plaintiff to sign a new or amended Form U–4. On or about April 17, 2000, at Bishop Rosen's request, plaintiff acknowledged receipt of a memorandum which referenced and explained Rule 3080's disclosure requirements. The memorandum otherwise stood alone; it existed separate and apart from any of the executed Form U–4's. Stated another way, it cannot be disputed that plaintiff acknowledged receipt of the 2000 memorandum three years after he signed the 1997 Form U–4 and nine years before he signed the 2009 Form U–4.
II
On or about November 23, 2009, Christine Sone, a former Bishop Rosen client, whose accounts were handled by plaintiff, commenced a FINRA arbitration against
both plaintiff and Bishop Rosen; she alleged state and federal securities law violations and
other fraudulent conduct. During the Sone Arbitration, one attorney represented both Bishop Rosen and plaintiff.
Ultimately, the arbitrator denied Sone's claims but directed Bishop Rosen to pay the administrative fees, which included Sone's filing fee of $300 and the arbitrator's fee of $21,375. Throughout the Sone proceedings, plaintiff paid the legal defense costs associated with defending both himself and Bishop Rosen of approximately $214,549.65. It is not clear whether this was voluntary or whether Bishop Rosen compelled plaintiff to bear this expense; these payments came to Bishop Rosen both directly from plaintiff and through deductions from his salary and commissions. Plaintiff asserts that as a result of those deductions, he worked "for more than two years without receiving any pay for work performed for the benefit" of Bishop Rosen.
III
Plaintiff filed this civil action against Bishop Rosen in the Law Division on June 27, 2014, alleging breach of contract, violations of New York wage and compensation laws, unjust enrichment, quantum meruit, and breach of Bishop Rosen's alleged duty to indemnify him. Plaintiff later amended his complaint to include two additional counts, one to confirm the Sone arbitration award, and the other for a declaratory judgment regarding the fees associated with the Sone arbitration.
Bishop Rosen moved to dismiss the amended complaint and compel arbitration. By way of a thorough written opinion, Judge Joseph P. Quinn dismissed the count that sought confirmation of the Sone arbitration award insofar as it sought an order precluding defendant from seeking indemnification from plaintiff. The judge, however, denied the motion to dismiss the remainder of the amended complaint, and he also denied the motion to compel arbitration.
Bishop Rosen filed a notice of appeal of this interlocutory order as of right, see R. 2:2–3(a), seeking reversal of the order
insofar as it denied the motion to dismiss and refused to compel arbitration. We pause to observe that although the Rule permits an appeal as of right of "any order either compelling ... or denying arbitration," it does not follow that other aspects of the order unrelated to the arbitrability determination, or other interlocutory orders entered in the action, are also appealable as of right. To the contrary, even when an interlocutory order is appealable as of right or is before us by leave, some other interlocutory order in the case does not become appealable as of right and is reviewable only in the exercise of our sole discretion. See Edwards v. McBreen, 369 N.J.Super. 415, 419–20, 849 A. 2d 204 (App.Div.2004) ; Towpath Unity Tenants Ass'n v. Barba, 182 N.J.Super. 77, 81, 440 A. 2d 51 (App.Div.1981) ; see also Henry Heide, Inc. v. WRH Prods. Co., 766 F. 2d 105, 112 (3rd Cir.1985). Accordingly, we decline to consider that part of Bishop Rosen's appeal that seeks to overturn the trial judge's denial of its motion to dismiss. We consider only whether plaintiff was required to arbitrate any or all of the claims alleged without deciding whether any of those claims state a claim upon which relief may be granted.
IV
The existence of a valid and enforceable arbitration agreement poses a question of law, and as such, our standard of review of an order denying a motion to compel arbitration is de novo. Hirsch v.
Amper Fin. Servs., LLC, 215 N.J. 174, 186, 71 A. 3d 849 (2013) ; Frumer v. Nat'l Home Ins. Co., 420 N.J.Super. 7, 13, 18 A. 3d 225 (App.Div.2011). We first briefly outline the applicable legal standards and thereafter consider the language employed by the parties to effectuate their agreement.
A
An agreement to arbitrate "must be the product of mutual assent, as determined under customary principles of contract law."
Atalese v. U.S. Legal Servs. Grp., L.P., 219 N.J. 430, 442, 99 A. 3d 306 (2014), cert. denied, ––– U.S. ––––, 135 S.Ct. 2804, 192 L.Ed. 2d 847 (2015). Mutual...
To continue reading
Request your trial
-
Barr v. Bishop Rosen & Co.
...442 N.J.Super. 599126 A.3d 328Stephen BARR, Plaintiff–Respondent,v.BISHOP ROSEN & CO., INC., Defendant–Appellant.Superior Court of New Jersey, Appellate Division.Argued Sept. 29, 2015.Decided Oct. 26, 2015.126 A.3d 329 Barry M. Bordetsky argued the cause for appellant (Law Offices of Barry ......