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DESIDERIO v. NASD

April 22, 1998

SUSAN A. DESIDERIO, Plaintiff, against NATIONAL ASSOCIATION OF SECURITIES DEALERS, INC. and SECURITIES AND EXCHANGE COMMISSION, Defendants.

Peter K. Leisure, U.S.D.J.


The opinion of the court was delivered by: LEISURE

OPINION AND ORDER

LEISURE, District Judge :

 Plaintiff Susan Desiderio claims that a provision in Form U-4, Uniform Application for Securities Industry Registration or Transfer ("Form U-4"), that requires arbitration of disputes between securities brokers and their firms violates her constitutional and statutory rights under U.S. CONST. amend. III, V, and VII; U.S. CONST. art. III; Title 42, United States Code ("U.S.C."), §§ 2000a, et seq. ("Title VII"); and 2 U.S.C. §§ 601, et seq. Plaintiff seeks a declaratory judgment against defendant National Association of Securities Dealers, Inc., ("NASD"); the NASD requires securities firms to file Form U-4 upon employing registered securities industry representatives or other securities professionals. Plaintiff also seeks a mandatory injunction invalidating the predispute arbitration provision in Form U-4 (Count I). Furthermore, plaintiff claims that the NASD is liable for tortious interference with contract (Count II) and negligent infliction of emotional distress (Count IV). Finally, plaintiff alleges that defendant Securities and Exchange Commission ("SEC") arbitrarily and capriciously and in violation of Chapter 15 of the Securities Exchange Act of 1934 (the "Exchange Act"), 15 U.S.C. §§ 78o, et seq., has allowed the NASD to require registered representatives to submit employment disputes to arbitration as a condition of employment. Defendants now move for judgment on the pleadings on all claims, pursuant to Rules 12(b)(6) and 12(b)(1) of the Federal Rules of Civil Procedure. For the reasons stated herein, the Court grants defendants' motions.

 BACKGROUND

 The NASD is a private not-for-profit corporation organized under the laws of Delaware, and is a self-regulatory organization registered with the SEC as a national securities association. Under Section 25 of the Exchange Act, the NASD is required to regulate the over-the-counter securities market, securities firms, and their registered representatives who buy and sell over-the-counter securities. The SEC must approve all of the NASD's rules and regulations, including those relating to arbitration and the registration of securities representatives.

 The NASD also is required to maintain employment records regarding its member securities firms and their registered representatives. Pursuant to its authority to establish standards for the uniform licensing and registration of securities professionals, the NASD has approved Form U-4 for use in registering securities industry representatives employed by securities firms. The NASD is required to retain Form U-4 for the states in which a representative is registered to do business; all states permit the filing of registration forms with the NASD Central Registration Depository.

 By signing Form U-4, a registrant agrees to comply with all rules and regulations for the organizations with which he or she seeks to register, and agrees to arbitrate employment disputes. *fn1" The NASD operates an arbitration forum that resolves disputes between securities brokers and their firms. The NASD Code of Arbitration Procedure, which governs the proceedings in the NASD arbitration forum, requires a written arbitration award and regulates the composition of the arbitration panel, the disclosure of information by the arbitrators, and the removal of arbitrators through challenges.

 On March 18, 1996, plaintiff was hired by SunTrust Bank ("SunTrust") in Florida as a registered securities representative. As a condition of employment, plaintiff was required by state and federal law to execute a Form U-4 registraation form. Plaintiff executed the Form U-4, but struck out a provision in the Form requiring her to arbitrate any dispute with SunTrust. The NASD allegedly advised SunTrust's compliance department that an altered form would not be permitted, but plaintiff refused to submit an unaltered Form U-4. SunTrust subsequently revoked its offer of employment because plaintiff could not become registered, and the altered Form U-4 never was submitted to the NASD. On January 15, 1997, plaintiff filed a Complaint instituting the instant action and asserting that jurisdiction in this Court is proper pursuant to 28 U.S.C. §§ 1331, 1332, 1367, and the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq. Defendants now move for judgment on the pleadings.

 DISCUSSION

 I. Standard for Judgment on the Pleadings

 When deciding a defendant's motion for judgment on the pleadings pursuant to either Fed. R. Civ. P. 12(b)(1) or 12(b)(6), a court may grant the motion "only where it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Northrop v. Hoffman of Simsbury, Inc., 134 F.3d 41, 44 (2d Cir. 1997) (internal quotation omitted); see also Jaghory v. New York State Department of Education, 131 F.3d 326, 329 (2d Cir. 1997). In considering such a motion, the court "must accept as true the facts alleged in the complaint and draw all reasonable inferences in the plaintiff's favor." Northrop, 134 F.3d at 43; see also Jaghory, 131 F.3d at 329.

 II. Count I

 The Court first finds that the NASD is not a state actor and consequently could not violate plaintiff's Fifth Amendment due process rights. See Public Utilities Commission v. Pollak, 343 U.S. 451, 461, 96 L. Ed. 1068, 72 S. Ct. 813 (1952) (finding that the Fifth Amendment "applies to and restricts only the Federal Government and not private persons"). The NASD is a private corporation, does not receive federal funding, and is not subject to any requirement that members of the NASD Board of Governors or members of the NASD Regulation, Inc. Board of Directors be government officials or appointed by a government official. Federal courts consistently have held that the NASD and other self-regulatory agencies are not state actors either in regulating industry pursuant to their statutory duties or in sponsoring arbitration fora that employ rules regulated by the SEC. *fn2"

 The Court further concludes that Form U-4's provision subjecting federal statutory claims to mandatory arbitration is not unconstitutional. In Gilmer v. Interstate Johnston-Lane Corp., 500 U.S. 20, 114 L. Ed. 2d 26, 111 S. Ct. 1647 (1991), the United States Supreme Court upheld the legality of the mandatory predispute arbitration provision in Form U-4 (used by the New York Stock Exchange ("NYSE")) in the face of arguments implicating the Seventh Amendment and Article III to the U.S. Constitution. The Court affirmed the broad sweep of the Federal Arbitration Act ("FAA") and noted that the exclusion from the FAA of contracts of employment does not apply to the ...


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