Fbr Capital Markets and Company v. Hans , 985 F. Supp. 2d 33 ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
FBR CAPITAL MARKETS & CO, )
)
Petitioner, )
)
v. ) Civil No. 13-00535 (RCL)
)
PETER D. HANS, )
)
Respondent. )
)
MEMORANDUM OPINION
Now before the Court is the Petitioner FBR Capital Markets & Co.’s Petition to Partially
Vacate Arbitration Award [2]. Upon consideration of Petitioner’s Memorandum in Support of its
Petition to Partially Vacate Arbitration Award [4], Respondent Peter Hans’ Memorandum in
Opposition To Petitioner’s Petition to Partially Vacate Arbitration Award [7], Respondent’s
Motion to Confirm the Arbitration Award [8], Petitioner’s Reply [9], Respondent’s Reply [10],
and Petitioner’s Notice of Supplemental Authority [11], the Court will DENY Petitioner’s
Petition To Partially Vacate Arbitration Award [2] and GRANT Respondent’s Motion to
Confirm the Arbitration Award.
I. BACKGROUND
During the times relevant to this matter, Peter Hans (hereinafter “Hans” or “Respondent”)
was employed by FBR Capital Markets & Co. (hereinafter “FBR” or “Petitioner”) as a Sales
Broker and worked on a commission-only basis. As a broker, Hans’ responsibilities included
seeking potential investors for FBR’s clients, and that entailed developing and maintaining
strong relationships with prospective investors. When an FBR client decided that it needed to
raise capital or disperse stock, Mr. Hans would attempt to convince his developed contacts in the
financial industry to invest in FBR’s clients. FBR was remunerated for its services in various
ways, including cash payments and stock payments. It was FBR’s practice to compensate its
Sales Brokers at a rate of 14.5% of the value of primary and secondary transactions. Pet.’s
Memorandum in Supp. Petition to Partially Vacate Arbitration Award (hereinafter “Pet.’s
Mem.”) 3, ECF No. 4.
The transaction at the center of the current dispute involved a significant equity sale of
FBR’s client, XL Health, to the private equity firm, MatlinPatterson Global Advisors LLC that
was facilitated by Hans and his partner Doyle. For procuring the investment for XL Health, it
paid FBR a cash fee of $6.8 million in March 2008. Three months later, XL Health made a
sizeable stock payment to FBR, valued at $5 million. FBR sold the XL Health stock for $5.5
million in March 2011. Pet.’s Mem 3.
After the FBR received payments from XL Health, it determined that, due to the unique
nature of the transaction, its Sales Brokers would not be compensated at the normal 14.5% rate.
Altering its customary formula, it paid Hans and his partner a 10.875% commission on the
“selling concession” of the cash fee ($6.8 million).1 Pet.’s Mem. 4. By paying out the
commission in this manner, Hans and his partner each received more than $100,000 less from the
cash fee than they were anticipating based on the 14.5% policy.
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Under FBR’s policy or standard practice, of the fee paid to FBR by its client for such a service, 60% of the fee,
without any deductions for transaction costs or other expenses, was allocated directly to the sales team. From that
60%, the 14.5% commission would be paid to the Sales Broker(s) responsible for the sale. If this policy had been
followed in the case of the XL Health sale, Hans and his partner would have received a total of $591,600 or
$295,800 each. Resp.’s Mem. In Opp. 8-9, ECF No. 7. FBR deviated from this course in two ways: first, it deducted
over $1 million from the $6.8 million cash fee before allocating the 60% share to the sales team; second, FBR paid
Hans and his partner a commission rate of 10.875% rather than 14.5%. Therefore, from the cash fee, Hans and
Doyle received a total of $370,198.56 or $185,099.28 each. Pet.’s Mem. 4.
2
Soon after FBR received XL Health’s stock fee in June 2008, Hans and his partner inquired
as to the details of their commission as it related to the stock fee. Apparently, Hans and his
partner were assured that they would receive their commission on that portion of the fee when
the stock was liquidated.2 Resp.’s Mem. In Opp. (hereinafter “Resp.’s Mem.”) 8, ECF No.7. That
liquidation occurred in March 2011, at which point neither Hans nor his partner were still
employees of FBR. After they learned of FBR’s $5.5 million gain from the sale of the XL Health
stock, Hans and his partner requested that FBR pay them the commission they were owed on the
stock sale. FBR refused. Id.
To receive the payments they believed they were due, Hans and his partner initially filed suit
in the Eastern District of Virginia. They voluntarily dismissed that suit when FBR objected to
litigation, arguing that the dispute should be arbitrated before the Financial Industry Regulatory
Authority (“FINRA”). After hearing extensive evidence over two days, the FINRA arbitration
panel awarded Hans $267,960, which was his share of a 14.5% commission on the stock fee
FBR received when it liquidated the XL Health stock, plus interest. FBR filed a petition in this
court to partially vacate that arbitration award. They argue that the panel manifestly disregarded
the law by awarding Hans the commission and accrued interest for the stock fee.
II. LEGAL STANDARD
A. Judicially Vacating an Arbitration Award
The Federal Arbitration Act, 9 U.S.C. §§ 10-11 (2013) provides the exclusive grounds by
which a court may vacate an arbitration award granted pursuant to the Act. Hall Street
Associates, LLC v. Mattel, Inc., 552 U.S.576, 586-88 (2008). Understanding the statutorily
2
This point is factually disputed by FBR, Resp.’s Mem. 9, but this disagreement was put to the arbitration panel,
who, given its award decision, clearly found for the Respondent. This court defers to that finding, as discussed more
fully below.
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provided grounds for arbitral award vacatur to be “exclusive” follows logically from Congress’
clearly expressed and intended “national policy favoring arbitration” as a dispute resolution
venue. Id. at 588. Judicial review of the evidentiary and legal findings of an arbitration panel is
sharply limited by §§ 10 and 11 to “egregious departures from the parties' agreed-upon
arbitration: corruption, fraud, evident partiality, misconduct, misbehavior, exceeding powers,
evident material miscalculation, evident material mistake, awards upon a matter not submitted;
the only ground with any softer focus is imperfections, and a court may correct those only if they
go to a matter of form not affecting the merits.” Id. at 586 (internal quotations omitted).
Furthermore, the burden facing petitioners who seek judicial vactur of arbitration awards is
exceedingly high. Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 671 (2010). “ To
obtain that relief,” petitioners for judicial vacatur “must clear a high hurdle. It is not enough for
petitioners to show that the panel committed an error—or even a serious error.” Id.B. Manifest Disregard
FBR seeks judicial vactur of the arbitration award on the theory that the FINRA panel
manifestly disregarded the laws of Virginia. Pet.’s Mem. 7. Notably, this theory of attack on an
arbitral award falls clearly beyond any of the explicit, challengeable grounds within §§10 and 11
of the FAA. In Hall Street, the Supreme Court declared the statutory grounds for vacatur
exclusive, thus rendering the “manifest disregard” challenge’s forth-going vitality a dubious
proposition. Hall Street, 552 U.S. at 586. Subsequent cases have not resolved the question of its
continued existence. In Stolt-Nielsen, the Supreme Court acknowledged that manifest disregard
may not have survived its Hall Street decision, resolving the issue on one of the FAA’s statutory
grounds. Stolt-Nielsen, 559 U.S. n. 3. In Affinity Fin. Corp. v. AARP Financial, Inc., the D.C.
Circuit “assumed without deciding” that “manifest disregard” still existed post-Hall Street, but
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found that the party requesting vacatur had not even argued the point. 468 Fed.Appx. 4, 5 (D.C.
Cir. 2012). Because the case law controlling this Court’s reasoning has refused to revive
“manifest disregard” since its apparent death knell in Hall Street, this Court evaluates FBR’s
contention with considerable suspicion.
At any rate, FBR can only establish manifest disregard if it demonstrates that (1) the
arbitrators knew of a governing legal principle yet refused to apply it or ignored it altogether and
(2) the law ignored by the arbitrators was well defined, explicit, and clearly applicable to the
case.” Affinity, 468 Fed.Appx at 5.
III. ANALYSIS
FBR contends that the arbitration panel manifestly disregarded the law by (1) concluding
that a contractual agreement existed between FBR and Hans to pay Hans a 14.5% sales
commission on the stock fee it received from XL Health and (2) not finding that Hans claim to
commission on the stock fee was barred by the statute of limitations for oral contracts in
Virginia. Pet.’s Brief 1. FBR’s claims are considered against the high presumption of validity
that courts are obliged to afford arbitration panels under the FAA and the Hall Street and Stolt-
Nielsen cases. FBR’s hurdle is high, indeed, and we find that it fails to overcome it.
A. Existence of a Contract & FBR’s Breach
The record of the arbitration proceedings clearly shows that the panel reached its decision
only after it heard extensive testimony from both sides as to the facts and controlling law.3 The
arbitrators—as well as opposing counsel—had the opportunity to question witnesses (including
Hans) and reached the legally supportable conclusion that a binding contractual agreement
3
It is undisputed that Virginia law controls this contract dispute.
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promising the 14.5% commission was in effect, that Hans and his partner fulfilled the conditions
of the offer, and that FBR retroactively altered the agreement’s terms, thus breaching a valid
contract.
Virginia law clearly permits a contractual arrangement that is unilateral in origin, offered
by the employer and made legally enforceable upon an employee’s performance. Nicely v. Bank
of Virginia Trust Co., 277 S.E.2d 209, 212 (1981). Like with other contracts, an offeror may not
modify the terms of the agreement after the other party’s rights vest upon performance. Progress
Printing Co., Inc. v. Nichols, 421 S.E.2d 428, 430 (1992). In other words, FBR could not change
the deal after Hans had fulfilled his side of the bargain. Here, the arbitration panel considered
extensive evidence and testimony before concluding that a 14.5% commission policy was in
place at the time of the disputed transaction. Further, it heard thorough testimony and argument
as to whether FBR breached that agreement before finding in the affirmative. This finding does
not amount to manifest disregard on the part of the arbitration panel.
B. FBR’s Statute of Limitations Defense
FBR emphasizes its Statute of Limitations defense, insisting that even if its promise to
pay Hans a 14.5% commission on the stock fee constituted a contract, any claim on that contract
is barred by the three-year statute of limitations requirement applicable to oral contracts under
Virginia law. Va. Code § 8.01-246(4). Hans contends that the agreement was a written contract,
but no evidence was provided to establish this claim. Moreover, the arbitration panel did not
indicate its findings on this question (whether the contract was written or oral), so this Court
proceeds under the assumption that the contract was oral, and the three-year provision applies.
In Virginia, the statute of limitations claim is an affirmative defense for which the
defendant bears the burden of proof. Lo v. Burke, 455 S.E.2d 9, 12 (Va. 1995). Here, the crucial
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issue hinges on the date the cause of action accrued. Virginia defines “accrued” as the moment
when the breach occurs. Va. Code § 8.01-230. FBR contends that any breach accrued in June
2008, when FBR received the stock payment from XL Health. Hans argues, instead, that the
moment of breach occurred when FBR liquidated the stock in March 2011. This court need not
re-find the facts. The arbitration panel has already done so, and it clearly found for Hans,
awarding him his share of the 14.5% commission on the stock fee. The arbitration panel
considered evidence as to the controlling law and the disputed facts, and it reached a conclusion.
Even if this court disagreed with the arbitration panel’s decision, it could not overrule a
conclusion so clearly within the acceptable confines of the law. Stolt-Nielsen, 559 U.S. at 671.
In this circuit, courts reviewing arbitral decisions must “confirm [an arbitration award] if a
justifiable ground for the decision can be inferred from the facts of the case.” Kurke v. Oscar
Gruss & Son, Inc., 454 F.3d 350, 354-55 (D.C. Cir. 2006). Justifiable grounds here abound. The
arbitration panel’s decision was justifiable and reasonable under the law and this case’s
particular facts. Moreover, its decision and award treads nowhere close to the manifest disregard
it must have exhibited in order for this Court to vacate its judgment. FBR fails to meet its burden
here, and it should not continue to use the courts to re-litigate disputes it has settled—albeit not
in its favor—through arbitration.
IV. CONCLUSION
The Court will DENY Petitioner’s Petition and grant Respondent’s Motion. An Order shall
issue with this opinion.
Signed by Royce C. Lamberth, U.S. District Judge, on October 18, 2013.
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