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Cupples v. Valic Financial Advisors, Inc.

United States District Court, E.D. New York

September 18, 2014

ANDREA HANLIN CUPPLES, Plaintiff,
v.
VALIC FINANCIAL ADVISORS, INC., Defendant.

Rick Ostrove, Esq., Brett R. Cohen, Esq., Leeds Brown Law, P.C., Carle Place, NY, for Plaintiff.

Robert D. Lipman, Esq., David A. Robins, Esq., Lipman & Plesur, LLP, Jericho, NY, for Defendant.

MEMORANDUM & ORDER

JOANNA SEYBERT, District Judge.

Currently pending before the Court is defendant Valic Financial Advisors, Inc.'s ("Defendant") motion to dismiss plaintiff Andrea Hanlin Cupples' ("Plaintiff") Complaint. For the following reasons, Defendant's motion is GRANTED.

BACKGROUND[1]

Plaintiff worked for Defendant as a Financial Advisor. (Compl. ¶ 9.) Prior to her employment with Defendant, Plaintiff had filed a charge with the Equal Employment Opportunity Commission ("EEOC") alleging age and gender discrimination, sexual harassment, hostile work environment, and wrongful termination against her former employer - Citistreet - and several employees, including Don Goldstein ("Goldstein"). (Compl. ¶ 8.)

Plaintiff apparently left Citistreet and engaged in discussions to work for Defendant. According to Defendant, on June 8, 2005, Plaintiff signed a Uniform Application for Securities Industry Regulation or Transfer ("Form U-4"). (Lipman Decl., Docket Entry 20, Ex. A.) The Form U-4 contains an arbitration clause, which states in pertinent part:

I agree to arbitrate any dispute, claim or controversy that may arise between me and my firm, or a customer or any other person, that is required to be arbitrated under the rules, constitutions, or by-laws of the SROs indicated in Section 4... as may be amended from time to time and that any arbitration award rendered against me may be entered as a judgment in any court of competent jurisdiction.

(Lipman Decl. Ex. A at 3[2] (emphases in original).)

Plaintiff also signed a Registered Representative Agreement ("Agreement") with Defendant on April 28, 2005, effective on June 13, 2005. (Lipman Decl. Ex. B at 13.) Defendant did not sign the Agreement until July 12, 2005. (Lipman Decl. Ex. B at 13.) The Agreement contains a mandatory arbitration provision (Paragraph 11(a)) and an optional arbitration provision (Paragraph 11(b)(2)). Paragraph 11(a), titled "Disputes between Registered Representative and Broker-Dealer, " states:

Disputes arising from or under the terms of this Agreement between Registered Representative and Broker-Dealer shall be resolved in accordance with the NASD's Code of Arbitration Procedures.[3] Should the NASD decline jurisdiction over any dispute between Registered Representative and Broker-Dealer, or should any dispute not be eligible for submission to the NASD under its Code of Arbitration Procedures, such dispute shall be resolved under subparagraph 11.b., below.

(Lipman Decl. Ex. B at 11.) Paragraph 11(b) is titled "Other Disputes." Subsection (b)(1) states:

All other disputes arising from or under the terms of this Agreement, including, without limitation, all disputes with any Affiliated Company and/or Protected Company that is not a member of the NASD shall be resolved in a court of competent jurisdiction.

(Lipman Decl. Ex. B at 11.) Subsection (b)(2) allows for parties to mutually agree to arbitration for certain disputes. It states in relevant part:

Notwithstanding the provisions of paragraph b. (1), Registered Representative and Broker Dealer, any Affiliated Company or any Protected Company (or combination thereof) may mutually agree that any dispute under this subparagraph b., whether raised by Broker-Dealer, a Protected Company, Affiliated Company or Registered Representative, shall be submitted to binding arbitration, including, without ...

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