Judges order dispute be arbitrated

A complaint filed by a client against financial services companies and a former employee must be arbitrated per an agreement the client signed when opening an IRA account, the Indiana Court of Appeals concluded. The court split over whether one of the companies could compel arbitration.

In German American Financial Advisors & Trust Co. d/b/a German American Investment Svcs., PrimeVest Financial Svcs., Inc., and Jeffery W. Tooley v. Dennis M. Reed, 19A01-1110-PL-428, German American Financial Advisors and other appellants’ appealed the denial of their second motion to compel arbitration of Dennis Reed’s claims against them. Reed worked with Jeffery Tooley of GAFA and PrimeVest to open an IRA in 2003. GAFA and PrimeVest had a “commission sharing agreement.”

Reed’s new account application included an arbitration clause. In 2006, Reed rolled over his IRA accounts into a variable rate annuity under the advisement of Tooley that he’d be able to earn around $100,000 in three years and be able to withdraw the full amount without penalties at that time.

Three years later, when Reed sought to withdraw all the funds from the annuity, and after Tooley left GAFA, another employee told Reed he could only withdraw a portion without incurring significant penalties. Reed filed his complaint alleging violations of the Indiana Uniform Security Act, fraud, negligence, and other claims in 2009. The trial court denied the appellants’ first motion to compel arbitration; it denied the second motion to compel as well.

Reed challenged the second motion to compel by pointing out that PrimeVest and GAFA didn’t keep his entire record on file, so the original agreement was not found. He also argued that the companies provided several forms that they believed were the correct documents, but those forms turned out not to be the exact agreement that Reed signed in 2003.

The Court of Appeals reversed the trial court and ordered the dispute be arbitrated. They found the appellants satisfied their burden to show the existence of an enforceable arbitration agreement and that the disputed matter is the type of claim that is intended to be arbitrated.

“While we are unimpressed with Appellants’ failure to locate the proper documentation to support their first motion to compel, they ultimately met their burden on the second motion to compel arbitration, which is the only issue before us, and Reed has not offered any evidence to refute the evidence pointing to a valid arbitration agreement,” wrote Judge Edward Najam in the majority opinion.

The judges split over whether GAFA may compel Reed to submit his claims against it to arbitration. The majority found he is required to do so under the doctrine of equitable estoppel, but Judge Michael Barnes believed the majority “is elasticizing the plain and unambiguous language of the arbitration agreement by allowing GAFA to insist on arbitration when GAFA was not a named party to the arbitration agreement—only PrimeVest and Reed were named.”