Boris Khazin v. TD Ameritrade Holding Corp , 773 F.3d 488 ( 2014 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 14-1689
BORIS KHAZIN,
Appellant
v.
TD AMERITRADE HOLDING CORPORATION;
TD AMERITRADE INC;
AMERIVEST INVESTMENT MANAGEMENT
COMPANY; LULE DEMMISSIE, INDIVIDUALLY,
_____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civ. No. 2:13-cv-04149)
District Judge: Honorable Susan D. Wigenton
_____________
Argued: October 23, 2014
Before: FUENTES, GREENBERG, and COWEN, Circuit
Judges
(Opinion Filed: December 08, 2014)
Keith N. Biebelberg, Esq. ARGUED
Biebelberg & Martin
374 Millburn Avenue
Schoolhouse Plaza
Millburn, NJ 07041
Attorneys for Appellant
Aaron P. Taishoff, Esq. ARGUED
Baritz & Colman
The Woolworth Building
233 Broadway, Suite 2020
New York, NY 10279
Attorneys for Appellees
OPINION OF THE COURT
FUENTES, Circuit Judge.
Alleging that TD Ameritrade had fired him for
reporting securities violations to his supervisor, Boris Khazin
filed suit for whistleblower retaliation pursuant to the Dodd-
Frank Act. Although Khazin had signed an arbitration
agreement with TD Ameritrade, he argued that it had been
nullified by another provision in Dodd-Frank that prohibits
the enforcement of predispute arbitration agreements in
certain whistleblower disputes. The District Court disagreed,
compelled arbitration, and dismissed the complaint. Khazin’s
appeal raises issues of first impression in this Circuit
surrounding the proper interpretation of Dodd-Frank’s
restrictions on predispute arbitration agreements. Ultimately,
2
though, Khazin’s whistleblower claim is subject to arbitration
for the simple reason that it is covered by none of these
restrictions.
I. Background of the Case
A. Factual Allegations
Appellant Boris Khazin is a financial services
professional and former employee of Appellees TD
Ameritrade, Inc. and Amerivest Investment Management
Company (collectively with other Appellees, “TD”). When
Khazin began working for TD, the parties executed an
employment agreement in which they agreed to arbitrate all
disputes arising out of Khazin’s employment.
At TD, Khazin was responsible for performing due
diligence on financial products offered to TD customers.
When he eventually discovered that one of TD’s products was
priced in a manner that did not comply with the relevant
securities regulations, he reported this violation to his
supervisor, Lule Demmissie, and recommended changing the
price to remedy the violation.
In response, Demmissie instructed Khazin to conduct
an analysis of the “revenue impact” of his proposed change.
The analysis revealed that although remedying the violation
would save customers $2,000,000, it would cost TD
$1,150,000 in revenues and negatively impact the balance
sheet of one of Demmissie’s divisions. After reviewing these
results, Demmissie allegedly told Khazin not to correct the
problem and to stop sending her emails on the subject. When
Khazin subsequently approached her to renew his initial
3
recommendation, she again informed him that no change
would be made.
Over the next few months, Demmissie and TD’s
human resources department confronted Khazin about a
purported billing irregularity that, according to him, was
unrelated to his duties and turned out to be nonexistent.
Nevertheless, Khazin was told that he could no longer be
trusted, and his employment was terminated.
B. Procedural History
Khazin filed an amended complaint in the Superior
Court of New Jersey, asserting state-law claims and a
violation of the Dodd-Frank Act. All of Khazin’s claims were
premised on the allegation that he had been terminated in
retaliation for “whistleblowing.” The state court held that
federal courts had exclusive jurisdiction over the Dodd-Frank
claim, dismissed that claim without prejudice for lack of
subject-matter jurisdiction, and compelled arbitration of the
state-law claims.
Khazin reasserted his Dodd-Frank claim in a complaint
filed in the District of New Jersey. After one round of motion
practice and amendments, TD filed a motion to dismiss the
amended complaint and to compel arbitration pursuant to
Khazin’s employment agreement. In response, Khazin
contended that a provision of the Dodd-Frank Act, which we
will call the “Anti-Arbitration Provision,” and its associated
regulations prevented TD from compelling the arbitration of
his whistleblower retaliation claim. The Anti-Arbitration
Provision states that “[n]o predispute arbitration agreement
shall be valid or enforceable, if the agreement requires
4
arbitration of a dispute arising under this section.” 18 U.S.C.
§ 1514A(e)(2). According to TD, however, the Anti-
Arbitration Provision did not forbid the arbitration of the
particular type of retaliation claim that Khazin had brought
against it. Even if it did cover such claims, TD continued, the
provision did not apply retroactively to bar the enforcement
of arbitration agreements executed before the passage of the
Act, such as the agreement between Khazin and TD.
The District Court granted TD’s motion on the ground
that the Anti-Arbitration Provision did not prohibit the
enforcement of arbitration agreements that were executed
before Dodd-Frank was passed. Specifically, the District
Court applied the analysis articulated in Landgraf v. USI Film
Products, 511 U.S. 244 (1994), and concluded that nullifying
existing contractual rights to arbitration would violate the
presumption against retroactivity. It did not pass upon the
question of whether the Anti-Arbitration Provision covered
the specific retaliation claim advanced by Khazin. Khazin
then filed the instant appeal.1
1
We have jurisdiction to review the District Court’s order
pursuant to 9 U.S.C. § 16(a)(3). The District Court had
subject-matter jurisdiction under 28 U.S.C. § 1331. “‘We
exercise plenary review over [the] District Court’s decision to
compel arbitration.’” Litman v. Cellco P’ship, 655 F.3d 225,
230 n.6 (3d Cir. 2011) (quoting Trippe Mfg. Co. v. Niles
Audio Corp., 401 F.3d 529, 531 (3d Cir. 2005)).
5
II. Discussion
On appeal, Khazin’s primary contention is that the
District Court erred in finding that his arbitration agreement
was enforceable notwithstanding the Anti-Arbitration
Provision and the general anti-arbitration spirit of the Dodd-
Frank Act. This argument fails: neither the Anti-Arbitration
Provision nor any other provision of Dodd-Frank prohibits
the arbitration of the sort of claim that Khazin chose to bring
against TD. The District Court acknowledged that TD had
made this argument but did not address it further. It is,
however, “an accepted tenet of appellate jurisdiction that we
‘may affirm a judgment on any ground apparent from the
record, even if the district court did not reach it.’” Oss
Nokalva, Inc. v. European Space Agency, 617 F.3d 756, 761
(3d Cir. 2010) (quoting Kabakjian v. United States, 267 F.3d
208, 213 (3d Cir. 2001)).
A. Statutory Framework
The Dodd-Frank Wall Street Reform and Consumer
Protection Act spans thousands of pages and amends a
number of statutes designed to regulate the financial industry.
Pub. L. No. 111-203, 124 Stat. 1376 (2010). Of principal
importance to this appeal are Dodd-Frank’s amendments to
the Securities Exchange Act of 1934, which “establish[] a
corporate whistleblowing reward program, accompanied by a
new provision prohibiting any employer from retaliating
against ‘a whistleblower’ for providing information to the
[Securities and Exchange Commission (“SEC”)],
participating in an SEC proceeding, or making disclosures
required or protected under [the] Sarbanes-Oxley [Act of
6
2002] and certain other securities laws.” Lawson v. FMR
LLC, 134 S. Ct. 1158, 1174 (2014) (citing 15 U.S.C. § 78u-
6(a)(6), (b)(1), (h)). The prohibition on retaliation includes a
private right of action for aggrieved whistleblowers. See 15
U.S.C. § 78u-6(h)(1)(B)(i). As Khazin asserts in his
complaint and reaffirmed at oral argument, this is the cause of
action he asserts against TD. For the sake of brevity, we will
refer to it as the “Dodd-Frank” cause of action.
Before Dodd-Frank was enacted, whistleblowers who
suffered retaliation for reporting violations of the securities
laws were not without recourse. The Sarbanes-Oxley Act of
2002 established a private right of action for whistleblowers
as well. See Pub. L. No. 107-204, § 806, 116 Stat. 745, 802
(codified at 18 U.S.C. § 1514A). The Sarbanes-Oxley and
Dodd-Frank causes of action for whistleblowers are, however,
“substantively different,” and each has its “own prohibited
conduct, statute of limitations, and remedies.” Ahmad v.
Morgan Stanley & Co., 2 F. Supp. 3d 491, 497 (S.D.N.Y.
2014); see also Lawson, 134 S. Ct. at 1175. Notably, a
whistleblower seeking to assert a Sarbanes-Oxley claim must
first file an administrative complaint with the Secretary of
Labor through the Occupational Safety and Health
Administration (“OSHA”). See 18 U.S.C.
§ 1514A(b)(1)(A); 29 C.F.R. § 1980.103(c). The Dodd-Frank
cause of action, by contrast, has no exhaustion requirement.
See 15 U.S.C. § 78u-6(h)(1)(B). Moreover, while a Sarbanes-
Oxley whistleblower may obtain “back pay, with interest,” a
Dodd-Frank whistleblower is entitled to “2 times the amount
of back pay otherwise owed to the individual, with interest.”
Compare 18 U.S.C. § 1514A(c)(2)(B), with 15 U.S.C. § 78u-
6(h)(1)(C)(ii).
7
The Dodd-Frank Act did not merely create a new
cause of action for whistleblowers—it also appended the
Anti-Arbitration Provision to the Sarbanes-Oxley cause of
action. See Dodd-Frank Act, § 922, 124 Stat. at 1848. As a
result, the relevant section of the United States Code now
provides that “[n]o predispute arbitration agreement shall be
valid or enforceable, if the agreement requires arbitration of a
dispute arising under th[at] section.” 18 U.S.C. §
1514A(e)(2).2 In addition to adding the Anti-Arbitration
Provision to the Sarbanes-Oxley cause of action, Dodd-Frank
also inserted an anti-arbitration provision with identical
language into the whistleblower protections of the
Commodity Exchange Act. See § 748, 124 Stat. at 1746
(codified at 7 U.S.C.
§ 26(n)(2)). A similar provision appears in the portion of
Dodd-Frank that pertains to the Consumer Financial
Protection Bureau, which is entitled the “Consumer Financial
Protection Act of 2010.” See §§ 1001, 1057, 124 Stat. at
1955, 2031 (“[N]o predispute arbitration agreement shall be
valid or enforceable to the extent that it requires arbitration of
a dispute arising under this section.”) (codified at 12 U.S.C. §
5567(d)(2)).
2
The immediately preceding paragraph, which Khazin does
not invoke, similarly provides that “[t]he rights and remedies
provided for in this section may not be waived by any
agreement, policy form, or condition of employment,
including by a predispute arbitration agreement.” 18 U.S.C. §
1514A(e)(1). Because this paragraph and its analogues, 7
U.S.C. § 26(n)(1) and 12 U.S.C. § 5567(d)(1), do not affect
the analysis, we do not address them further.
8
B. The Arbitrability of Dodd-Frank Retaliation Claims
The text and structure of Dodd-Frank compel the
conclusion that whistleblower retaliation claims brought
pursuant to 15 U.S.C. § 78u-6(h) are not exempt from
predispute arbitration agreements. As this is the only type of
claim that Khazin asserts, nothing prevents TD from seeking
to enforce their arbitration agreement.
The Anti-Arbitration Provision is expressly limited to
a single category of disputes: those “arising under this
section,” meaning Section 1514A of the United States Code.
18 U.S.C. § 1514A(e)(2) (emphasis added). That section
contains the Sarbanes-Oxley cause of action for retaliation
against whistleblowers. See id. § 1514A(a)-(c). The Dodd-
Frank cause of action, however, is not located in the same
title of the United States Code, let alone the same section. See
15 U.S.C. § 78u-6(h).3 As Khazin asserts only a Dodd-Frank
3
To be sure, the Anti-Arbitration Provision and the Dodd-
Frank cause of action for retaliation are both located in the
same “section” of the Dodd-Frank Act, entitled “Sec. 922.
Whistleblower Protection.” 124 Stat. at 1841-48. But this is
not the “section” to which the Anti-Arbitration Provision
refers. The portion of Section 922 concerning the Anti-
Arbitration Provision amends “Section 1514A of title 18,
United States Code . . . by adding [that provision] at the end.”
§ 922(c)(2), 124 Stat. at 1848. The portion of Section 922 that
establishes the new cause of action for retaliation inserts that
cause of action into “[t]he Securities Exchange Act of 1934
(15 U.S.C. 78a et seq.) . . . after section 21E.”
§ 922(a), 124 Stat. at 1841. It would be nonsensical for the
9
claim, his dispute does not “arise under” the relevant section.
See Mathews v. Kidder, Peabody & Co., 161 F.3d 156, 162
(3d Cir. 1998) (holding that a plaintiff’s claims “arise under”
the statute that provides “the federal cause of action [he or
she] alleges”). For the same reason, he cannot avail himself of
the analogous provisions in the Commodity Exchange Act
and Consumer Financial Protection Act, both of which apply
only to disputes arising under their respective sections of the
Code. See 7 U.S.C. § 26(n)(2); 12 U.S.C. § 5567(d)(2).
Recognizing that no provision expressly restricts the
arbitration of Dodd-Frank retaliation claims, Khazin contends
that a bill as massive as Dodd-Frank will inevitably contain
gaps not intended by Congress. The fact that Congress did not
append an anti-arbitration provision to the Dodd-Frank cause
of action while contemporaneously adding such provisions
elsewhere suggests, however, that the omission was
deliberate. See Gross v. FBL Fin. Servs., Inc., 557 U.S. 167,
174 (2009) (“When Congress amends one statutory provision
but not another, it is presumed to have acted intentionally.”).
Indeed, the contrast is all the more glaring because the
amendments to Sarbanes-Oxley, including the Anti-
Arbitration Provision, are adjacent to the Dodd-Frank cause
of action in the text of the Dodd-Frank Act. See § 922, 124
Stat. at 1841-48.
Khazin further argues that it would be counterintuitive
for Congress to treat Sarbanes-Oxley claims differently than
word “section” in the Anti-Arbitration Provision to refer to
Section 922 of the Act when Section 922 expressly places its
constituent parts in separate “sections” of the Code.
10
Dodd-Frank claims, and that requiring the arbitration of his
claim would undermine Dodd-Frank’s broader purpose of
enhancing protections for whistleblowers. As explained
above, however, the Sarbanes-Oxley and Dodd-Frank causes
of action differ significantly in a number of respects that
might explain Congress’s reluctance to exempt Dodd-Frank
claims from arbitration. Moreover, “[s]tatutes are seldom
crafted to pursue a single goal, and compromises necessary to
their enactment may require adopting means other than those
that would most effectively pursue the main goal.” Landgraf,
511 U.S. at 286. For this reason, “[i]nvocation of the ‘plain
purpose’ of legislation at the expense of the terms of the
statute itself takes no account of the processes of compromise
and, in the end, prevents the effectuation of congressional
intent.” Bd. of Governors of Fed. Reserve Sys. v. Dimension
Fin. Corp., 474 U.S. 361, 374 (1986). Congress’s intent is
clearly reflected in the text and structure of Dodd-Frank,
which grant Khazin no right to resist arbitration.
This legislative choice must be respected, especially in
light of the “liberal federal policy favoring arbitration
agreements” embodied in the Federal Arbitration Act. Moses
H. Cone Mem’l Hosp. v. Mercury Const. Corp., 460 U.S. 1,
24 (1983). Courts are required to “enforce agreements to
arbitrate according to their terms[,] . . . . even when the claims
at issue are federal statutory claims, unless the FAA’s
mandate has been ‘overridden by a contrary congressional
command.’” CompuCredit Corp. v. Greenwood, 132 S. Ct.
665, 669 (2012) (quoting Shearson/Am. Exp., Inc. v.
McMahon, 482 U.S. 220, 226 (1987)). There is no such
command here. Thus, although Congress conferred on
whistleblowers the right to resist the arbitration of certain
11
types of retaliation claims, that right does not extend to Dodd-
Frank claims arising under 15 U.S.C. § 78u-6(h).
The only two courts to have addressed the question
have concluded that, for the reasons outlined above,
whistleblowers may be compelled to arbitrate Dodd-Frank
retaliation claims. See Murray v. UBS Sec., LLC, No. 12 Civ.
5914 (KPF), 2014 WL 285093, at *10-11 (S.D.N.Y. Jan. 27,
2014); Ruhe v. Masimo Corp., SACV 11-00734-CJC(JCGx),
2011 WL 4442790, at *4 (C.D. Cal. Sept. 16, 2011). Khazin
argues that the Fourth Circuit suggested otherwise in Santoro
v. Accenture Federal Services, LLC, 748 F.3d 217 (4th Cir.
2014). But although Santoro contains broad language
suggesting that “Dodd-Frank whistleblower claims are not
subject to predispute arbitration,” the Fourth Circuit
confronted an entirely different issue and did not even
mention the whistleblower provision codified at 15 U.S.C. §
78u-6. 748 F.3d at 222.
The Fourth Circuit’s analysis of Dodd-Frank in
Santoro does, however, have some relevance to the proper
interpretation of the Anti-Arbitration Provision. Santoro was
not a whistleblower; the claims he brought against his former
employer arose under unrelated federal statutes. He
nevertheless argued that certain anti-arbitration provisions
enacted as part of Dodd-Frank nullified his arbitration
agreement. As noted above, Dodd-Frank’s amendments to the
whistleblower protections in Sarbanes-Oxley and the
Commodity Exchange Act provide (in identical language)
that “[n]o predispute arbitration agreement shall be valid or
enforceable, if the agreement requires arbitration of a dispute
arising under this section.” 7 U.S.C. § 26(n)(2); 18 U.S.C. §
1514A(e)(2). Seizing on the literal meaning of these
provisions, Santoro argued that “Dodd-Frank invalidates in
12
toto all arbitration agreements by publicly-traded companies
that lack a carve-out for . . . whistleblower claims, even if the
plaintiff is not a whistleblower.” 748 F.3d at 220 (footnote
omitted). He bolstered his argument by drawing a contrast to
the analogous provision in the Consumer Financial Protection
Act, which prohibits predispute arbitration agreements only
“to the extent that [they] require[] arbitration of a dispute
arising under this section.” 12 U.S.C. § 5567(d)(2) (emphasis
added).
The Fourth Circuit rejected Santoro’s interpretation of
the anti-arbitration provisions, reasoning that Congress’s
purpose was not to “requir[e] every employer’s arbitration
agreement to carve out an exception for whistleblowers.”
Santoro, 748 F.3d at 223. Such a requirement would
substantially amend the Federal Arbitration Act, and
“‘Congress . . . does not alter the fundamental details of a
regulatory scheme in vague terms or ancillary provisions—it
does not one might say, hide elephants in mouseholes.’” Id.
(quoting Gonzales v. Oregon, 546 U.S. 243, 267 (2006)).
Khazin does not make Santoro’s argument, but it is, in any
event, unpersuasive for the reasons articulated by the Fourth
Circuit.
Khazin cites regulatory actions that are of no help to
him either. In 2012, the SEC approved a proposed change to
the arbitration rules of the Financial Industry Regulatory
Authority (“FINRA”). See Order Approving a Proposed Rule
Change Amending FINRA Rules 13201 and 2263 Relating to
Whistleblower Disputes in Arbitration, 77 Fed. Reg. 15,824(Mar. 12, 2012) (hereinafter “SEC Order”). Rule 13201(b) of
FINRA’s Code of Arbitration Procedure for Industry Disputes
now provides that “[a] dispute arising under a whistleblower
13
statute that prohibits the use of predispute arbitration
agreements is not required to be arbitrated.”
As explained above, however, 15 U.S.C. § 78u-6(h) is
not “a whistleblower statute that prohibits the use of
predispute arbitration agreements.” The rule’s inapplicability
is confirmed by both the SEC Order and FINRA Regulatory
Notice 12-21, which explains the rule change. In their
discussion of the Dodd-Frank Act, both state that the Anti-
Arbitration Provision “invalidate[s] predispute arbitration
agreements in the case of SOX whistleblower disputes.”4 SEC
Order, 77 Fed. Reg. at 15,824 (emphasis added); accord
FINRA Regulatory Notice 12-21 at 2 (Apr. 2012). Nowhere
do they mention the new Dodd-Frank cause of action for
whistleblower retaliation.5
4
“SOX” is an acronym for Sarbanes-Oxley.
5
Khazin also contends that explicit language restricting the
arbitration of Dodd-Frank retaliation claims is unnecessary
because, according to the SEC, “under Section 29(a) [of the
Securities Exchange Act of 1934], employers may not require
employees to waive or limit their anti-retaliation rights.”
Securities Whistleblower Incentives and Protections, 76 Fed.
Reg. 34,300, 34,304 (June 13, 2011). These rights do not,
however, include the right to a judicial forum. The Supreme
Court has unequivocally held that “Congress did not intend
for § 29(a) to bar enforcement of all predispute arbitration
agreements.” McMahon, 482 U.S. at 238. We have
considered Khazin’s remaining arguments and find them to
be without merit.
14
Even if the SEC and FINRA were to interpret the Anti-
Arbitration Provision as covering Dodd-Frank claims, we
would not be obligated to defer to their interpretation. The
default rule articulated in Chevron, U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984), is that
“[s]tatutory ambiguities will be resolved, within the bounds of
reasonable interpretation, not by the courts but by the
administering agency.” City of Arlington, Tex. v. F.C.C., 133
S. Ct. 1863, 1868 (2013). However, “[a]n agency has no
power to ‘tailor’ legislation to bureaucratic policy goals by
rewriting unambiguous statutory terms. Agencies exercise
discretion only in the interstices created by statutory silence
or ambiguity; they must always give effect to the
unambiguously expressed intent of Congress.” Util. Air
Regulatory Grp. v. E.P.A., 134 S. Ct. 2427, 2445 (2014)
(internal quotation marks omitted). Congress was not “silent”
on the question of whether Dodd-Frank whistleblowers may
avoid arbitration. By adding anti-arbitration provisions to
certain statutes but not others, it expressed its intent
unambiguously.
III. Conclusion
Khazin’s Dodd-Frank retaliation claim is not
statutorily exempt from the arbitration agreement with TD.
The District Court’s order dismissing the complaint and
compelling arbitration will therefore be affirmed on this
ground.6
6
Consequently, we express no opinion on whether the
District Court properly concluded that the Anti-Arbitration
Provision does not invalidate preexisting agreements.
15