If Clients Are Vulnerable, Your Arbitration Clause May Be Too
By Craig Zafis
Financial professionals take heed of a procedural trap into which an unwitting adviser may step when dealing with seniors or others perceived to be “vulnerable.” In the context of the adviser/customer relationship, vulnerability can include “...advanced age, youth, lack of education, ill health and mental weakness.” Couple this real or perceived vulnerability with the fiduciary duty owed to customers by all investment advisers and by brokers in many states and a crack in the rock of a solid arbitration clause may result. In fact, based on recent case law, a customer may successfully avoid FINRA arbitration (despite signing an arbitration agreement), and force a dispute into costly litigation in court.
Such a result is shocking if you consider all the implications. First, arbitration agreements in new account documents and other agreements signed by the customer are generally rock solid and uniformly upheld by courts. Many creative ways to avoid them have been shot down over the years. Also, the standard written form of an arbitration agreement has been a reliable disclosure, however based on the court’s ruling in Brown v Wells Fargo Bank, NA (2008) 168 Cal. App. 4th 938, an arbitration agreement can be declared void in cases of a “vulnerable” client because of the manner in which it was delivered. In Brown, the clause was deemed void because the investment professional did not read and explain or otherwise fully disclose, in a manner his client understood, the material terms of a contract, including the meaning and effect of the arbitration provision.
The Brown case involved the enforceability of an arbitration provision in a stockbroker agreement of which the Plaintiffs - an elderly couple where the husband was legally blind and thus unable to read - said they were unaware. The broker’s expert witness testified that it would be contrary to accepted industry practice to require an investment professional to read aloud a customer agreement or arbitration provision or attempt to explain the document before the customer signed. Investment professionals are usually not licensed attorneys and he opined that it would be a mistake that they should be compelled to interpret contracts for prospective customers. By doing so clients could misinterpret words and phrases or brokers might leave out essential terms. The Court dismissed these concerns but was careful to point out that its conclusion does not require that an investment professional read or explain their initial agreement to prospective customers.
The facts in Brown were unusual; so much so that one of the Appellate Court Justices recommended limiting this opinion to “the unusual facts of this case.” Notwithstanding this recommendation, one Judge in Santa Barbara County, California recently relied heavily on the holding in Brown to invalidate an arbitration provision. So, despite the lack of a requirement to read and explain the terms of an agreement with a customer, courts seem more willing to rule that the failure to do so as a fiduciary dealing with a customer who is vulnerable will invalidate the arbitration provision.
What should investment professionals take from the Brown decision? First, judges are people: and, more importantly, have parents who are or soon will be senior citizens who may be perceived to be vulnerable by their child. Second, despite shrinking judicial budgets and a heavier caseload (which usually results in arbitration provisions being enforced to reduce the caseload) if judges perceive that a vulnerable customer was taken advantage of, they may compel the investment professional to defend herself in Court, rather than before a FINRA hearing panel. The likelihood of this result could be increased in areas of the country with a large population of senior citizens. While customer attorneys complain that FINRA arbitrations are more favorable to investment professionals (a view contrary to statistics, and one which I don’t share) the investment professional is in an unquestionably worse position having to defend her conduct before a state court jury. The sympathies that will naturally attach to the “vulnerable” customer, along with the lack of industry and product knowledge held by most lay people, are difficult hurdles to overcome.
If confronted with a customer who is or through conversation and observation could soon be considered vulnerable, best practices dictate that you should consult your compliance department. If your CCO is unfamiliar with the Brown ruling, best to have a copy of the ruling or this article available to share. If you are advised to read or otherwise review and explain the legal provisions in the new account documents(most notably the arbitration provision), document the efforts made in this regard. The best protection in the case of a later customer complaint or a FINRA regulatory inquiry is to have the customer sign a document which sets forth the measures taken by the investment professional to disclose and explain such provisions in a manner the customer understood at the time. In the event that you are advised by your firm not to prepare such a document, an e-mail or letter to the customer confirming your efforts (approved by the firm) or a diary entry would also offer protection.