In re Series 7 Broker Qualification Exam Scoring
Decision Date | 07 November 2008 |
Docket Number | No. 07-7162.,07-7162. |
Citation | 548 F.3d 110 |
Parties | In re SERIES 7 BROKER QUALIFICATION EXAM SCORING LITIGATION, William Lowe, et al., Appellants v. The National Association of Securities Dealers, Inc. and EDS Corporation, Appellees. |
Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (No. 06mc00355).
Gerald E. Martin argued the cause for appellants. With him on the briefs was Herbert E. Milstein. Jonathan W. Cuneo and Steven A. Skalet entered appearances.
Douglas R. Cox argued the cause for appellees The National Association of Securities Dealers, Inc., et al. With him on the brief was F. Joseph Warin.
Michael A. Carvin argued the cause for appellee EDS Corporation. With him on the brief were James E. Gauch and Juliet J. Karastelev.
Before: BROWN, Circuit Judge, and EDWARDS and SILBERMAN, Senior Circuit Judges.
Opinion for the Court filed by Circuit Judge BROWN.
The question before us is whether common law causes of action can be alleged against a Self-Regulatory Organization ("SRO") for the negligent performance of its duties under the Securities Exchange Act of 1934 ("Exchange Act"). 15 U.S.C. § 78o-3(b). Despite a seemingly impenetrable wall of contrary precedent, plaintiffs argue that while suits challenging an SRO's discretionary decisions are clearly prohibited, SROs may be sued for the negligent performance of ministerial functions. The district court did not buy it. Neither do we. We affirm the district court's grant of the defendants' motion to dismiss.
The National Association of Securities Dealers ("NASD") (now known as the Financial Industry Regulatory Authority, Inc.), an SRO, administers the Series 7 examination, a computerized multiple-choice test, as part of the comprehensive regulation of the securities industry. Electronic Data Systems ("EDS") is a private corporation, hired by NASD for technical services related to administration of the Series 7 exam.
For each exam, NASD randomly draws 250 questions of varying difficulty from a larger pool; each applicant receives only a 250-question subset of the larger pool on her particular examination. After an applicant takes the Series 7 exam, a software program developed by EDS scores the exam, adjusting for level of difficulty, and reports the results immediately to the applicant.
Sometime before October 1, 2004, an EDS maintenance technician inadvertently switched two of the three difficulty variables for approximately 213 questions. On October 1, 2004, those 213 questions were added into NASD's pool of questions. From that point forward, tests for many applicants included at least some of the 213 affected questions. Although the answer choices for the affected questions were not disturbed, the mistaken alteration of the difficulty ratings caused some test scores to be misreported. Between October 1, 2004 and December 20, 2005, when NASD discovered the mistake, 60,500 applicants had taken the test.
On January 6, 2006, NASD issued a press release, publicly acknowledging the results for 1,882 applicants had been mis-reported as failing scores. All affected applicants had their results corrected and their applications approved.
Some of the applicants who received incorrect Series 7 scores filed suit and these actions became part of a nationwide consolidated class complaint asserting causes of action for common law breach of contract, negligence, and negligent misrepresentation. The district court dismissed the complaint, noting plaintiffs are "seeking remedies for negligent performance of an SRO's regulatory duties that Congress did not see fit to provide." In re Series 7 Broker Qualification Exam Scoring Litig., 510 F.Supp.2d 35, 49, 50 (D.D.C.2007).
Under the Exchange Act, any person conducting securities-related business must be associated with a registered securities association such as NASD. 15 U.S.C. §§ 78o(a)(1), (b)(8). The Act requires all such persons to meet "standards of training, experience, competence, and such other qualification as the [SEC] finds necessary or appropriate in the public interest or for the protection of investors." Id. § 78o(b)(7). The SEC has, in turn, delegated to NASD the responsibility of devising a broker qualification exam to measure the competency of applicants. See 17 C.F.R. § 240.15b7-1. The delegation involves close oversight; the SEC approves all rule changes by an SRO such as NASD, no matter how minor. 15 U.S.C. § 78s(b). If the SEC deems it necessary, it may also amend an SRO's rules itself. Id. § 78s(c). The Exchange Act requires SROs to comply with the Act, the SEC's rules, and their own rules. Id. § 78s(g). Failure to do so can result in severe sanctions, such as revocation of SRO registration. Id. § 78s(h).
NASD has the right to bar membership to any applicant who does not meet the standards of competence prescribed by NASD's rules, including a passing score on the Series 7 exam. Id. § 78o-3(g)(3)(B). Any individual barred from membership by the NASD has statutorily guaranteed rights to appeal. See id. §§ 78s(d), (f), 78y(a)(1). Congress has created a complex system of review, involving several stages of appeal, for precisely the type of harm plaintiffs allege here. Id. §§ 78s(d), 78y(a)(1) ( ). Appeals can be brought before the SEC and, if desired, in the federal courts of appeals. Id. §§ 78s(d), 78y(a)(1). Additionally, NASD rules (promulgated under the authority delegated to it by the SEC, as envisioned by the Exchange Act) provide for two internal layers of appeal. See NASD Manual, Rules 9524, 9525, available at http:// finra.complinet.com/finra (last visited Oct. 21, 2008). In total, applicants who believe their registration has been improperly denied have four potential levels of appeal: two with NASD, one before the SEC, and one in the federal courts of appeals.
Plaintiffs, who have had the benefit of every available administrative remedy, concede there is no federal implied private right of action; nevertheless, they insist their state law claims based on negligence and breach of contract are permissible. Defendants argue that such causes of action are impliedly preempted by federal law and, alternatively, that they are immune from suit based on regulatory immunity. Whether analyzed under preemption doctrine or a theory of regulatory immunity, the result is the same: plaintiffs cannot raise a common law complaint against defendants based on duties arising under the Exchange Act.
It is well established that "the question whether a certain state action is pre-empted by federal law is one of congressional intent." Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 208, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985). When deciding the availability of such claims, "[t]he purpose of Congress is the ultimate touchstone." Retail Clerks Int'l Ass'n v. Schermerhorn, 375 U.S. 96, 103, 84 S.Ct. 219, 11 L.Ed.2d 179 (1963). To assess the availability of a state common law cause of action, we therefore direct our attention to the intent of Congress. As the Supreme Court has stated, "[s]tate action may be foreclosed by express language in a congressional enactment, by implication from the depth and breadth of a congressional scheme that occupies the legislative field, or by implication because of a conflict with a congressional enactment." Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 541, 121 S.Ct. 2404, 150 L.Ed.2d 532 (2001).
Several other circuits have analyzed whether common law claims can be raised based on an SRO's duties under the Exchange Act. Although the cases do not explicitly rely on preemption, the reasoning of our sister circuits is instructive regarding the preemptive intent of the congressional scheme. In Barbara v. N.Y. Stock Exch., Inc., 99 F.3d 49 (2d Cir.1996), the Second Circuit held the New York Stock Exchange was immune from claims arising out of disciplinary proceedings required under the Exchange Act. Id. at 59. "[A]llowing suits against the Exchange arising out of the Exchange's disciplinary functions would clearly stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress, namely, to encourage forceful self-regulation of the securities industry." Id.
Later, in Desiderio v. NASD, 191 F.3d 198 (2d Cir.1999), an applicant rejected for refusing to sign an arbitration clause had her common law tort claim dismissed because "there is no private right of action available under the Securities Exchange Act to redress denials of membership." Id. at 208. In Desiderio, like in Barbara, the Second Circuit found common law causes of action inconsistent with Congress's intent under the Exchange Act.
Similarly, the Ninth Circuit found a common law breach of contract claim could not be raised against NASD because doing so "would allow states to define by common law the regulatory duties of a self-regulatory organization." Sparta Surgical Corp. v. NASD, 159 F.3d 1209, 1215 (9th Cir.1998). The court in Sparta felt such a result "cannot co-exist with the Congressional scheme of delegated regulatory authority under the Exchange Act." Id.See also MM & S Fin., Inc. v. NASD, 364 F.3d 908, 912 (8th Cir.2004) (). Though not always explicitly identifying the underlying premise, courts have consistently found Congress's intent under the Exchange Act precludes common law causes of action, and we agree with the reasoning of our sister circuits.
The common law claims in this case—whether presented in tort or contract—seek monetary damages based on NASD's wrongful determination of competency standards for specific applicants. Plaintif...
To continue reading
Request your trial-
SWEDISH AMERICAN HOSPITAL v. Sebelius
...court of subject matter jurisdiction over the plaintiff's tort claims against Mutual and WPS.5Cf. In re Series 7 Broker Qualification Exam Scoring Litig., 548 F.3d 110, 114 (D.C.Cir.2008) (observing, in the context of the Exchange Act, that "rather than allowing plaintiffs to sue under comm......
-
Nat'l Horsemen's Benevolent & Protective Ass'n v. Black
...the SEC–FINRA relationship, the FTC needs the Authority to function as a typical regulator. See In re Series 7 Broker Qualification Exam Scoring Litig. , 548 F.3d 110, 114 (D.C. Cir. 2008) ("Absent the unique self-regulatory framework of the securities industry, [FINRA's] responsibilities w......
-
North v. Smarsh, Inc.
...FINRA. It does not provide a right of action for common-law torts, such as spoliation claims. See In re Series 7 Broker Qualification Exam Scoring Litigation , 548 F.3d 110 (D.C.Cir.2008) (holding that the Exchange Act does not provide a right of action for suits against an SRO like FINRA f......
-
Netcoalition v. Sec.
...of that disposition in the court of appeals. Katz v. SEC, 647 F.3d 1156, 1161 (D.C.Cir.2011); In re Series 7 Broker Qualification Exam Scoring Litig., 548 F.3d 110, 112 (D.C.Cir.2008). Accordingly, if unreasonable fees constitute a denial of “access to services” under section 19(d), we have......