November 8, 2012
Does one year really mean one year? Fourth Circuit to decide how long Ameriprise
has to confirm FINRA arbitration award
Ruling could spark a battle in the Supreme Court, affect financial advisors
Richmond, Virginia – The United States Court of Appeals for the Fourth Circuit is slated
to hear argument in a case in early December that could have significant
ramifications for financial advisors nationwide. The dispute in the case,
Ameriprise Financial Services, Inc. v. M. Smith, revolves around a seemingly
simple question of statutory interpretation.
The Federal Arbitration Act (“FAA”) provides that parties that
arbitrate disputes (as in the standard FINRA arbitration required by most
financial advisor’s employment contracts) have the option of filing
the arbitration award with a court of law, a process called “confirming
the award.” Confirming the award allows the winner in arbitration
to use legal measures to collect the award, such as wage and bank account
garnishments and real property liens.
The Fourth Circuit will decide just how long a winner in arbitration has
to file with a court of law to confirm the award. In relevant part,
9 U.S.C. § 9, emphasis added. In its brief, Ameriprise has argued
that the highlighted language is not a firm, one-year deadline despite
the plain reading of the statute. Mr. Smith, on the other hand, has argued
that Congress clearly intended to form a one-year deadline by which Ameriprise
and other parties prevailing in arbitration must file with a court of
law to confirm an award.
Further complicating the case is the fact that U.S. appellate courts have
come down on opposite sides of this issue. The Second Circuit and Fifth
Circuit have found the one-year deadline to be a firm, mandatory statute-of-limitations,
barring any petitions filed after a year has elapsed. The Fourth and Eighth
Circuits have found that, in essence, the one-year deadline is not a real
deadline and petitions can be filed at any time.
“This is a basic question of statutory interpretation that deserves
a uniform and consistent answer,” says attorney Matthew D. Skipper
of Trunnell Law, LLC, who represents Mr. Smith. “The entire purpose
of a federal law like the Federal Arbitration Act is to provide a uniform,
nationwide rule applicable to everyone. Financial advisors in Maryland
should not be treated differently than those in New York under a federal
law.” The current split between the appellate circuits has many
observers speculating on the likelihood that regardless of who prevails
at the Fourth Circuit, the U.S. Supreme Court will ultimately decide the
issue. The case, No. 12-1193, is set for oral argument on December 4, 2012.
Photopaint Techs., LLC v. Smartlens Corp., 335 F.3d 152, 158 (2nd Circ. 2003)
Bernstein Seawell & Kove v. Bosarge, 813 F.2d 726, 731 (5th Cir. 1987)
Sverdrup Corp. v. WHC Constructors, Inc., 989 F.2d 148, 156 (4th Cir. 1993)
Val-U Constr. Co. v. Rosebud Sioux Tribe, 146 F.3d 573 (8th Cir. 1998)
Pelanek, Laura and Suskin, Howard.
Deadline for Confirming an Arbitration Award: The Sharpening Split Among
the Courts. Bloomberg Finance L.P. (2008)
July 9, 2012
Lawsuit alleges Metro subcontractor failed to pay wages earned, pocketed
money allegedly withheld as union dues
Six drivers sue Challenger Transportation in federal court seeking class
Capitol Heights, Maryland – Six former employees are suing Challenger Transportation, a company
that administers Metro’s Metro Access program, alleging that the
company that transports sick and disabled persons violated federal and
state wage payment laws. The lawsuit claims that Challenger drivers were
not paid for all time actually worked, including time spent waiting on
their employer’s premises, time spent driving to a driver’s
first pickup, and time spent undergoing mandatory training. Even more
disconcerting, the lawsuit alleges that Challenger withheld money from
drivers’ paychecks that it claimed was being paid as union dues,
even though the money was never actually paid to any union.
“When I needed the union, I called them and they said they had no
record of me even though Challenger had been withholding union dues from
my paycheck for seven months,” says former Challenger driver Devin
Hunter. “It was like I didn’t exist, even though I thought
I had been paying dues for months.”
“The more we looked into the claim, the more we found,” says
attorney Matthew Skipper of Trunnell Law, LLC. “What started as
a question about union dues uncovered what seems to be a pattern of continued
and intentional violations of the state and federal wage laws.”
The laws referenced include the federal Fair Labor Standards Act, or the
FLSA, which provides that successful plaintiffs can receive liquidated
damages and attorneys’ fees along with past due wages.
Both Matthew Skipper and attorney Wes Henderson of Henderson Law, LLC have
been retained by the Plaintiffs to advance their claim in federal court.
“The claim is referred to as a collective action,” says attorney
Henderson, “and is being filed on behalf of the six named Plaintiffs
and all other Challenger employees who have suffered the same types of
infringements upon their right to fair payment for wages actually earned.”
This type of claim allows other employees to join the claim even after
the lawsuit is filed.
“The labor and wage laws were put in place to protect employees from
the types of abuse that we believe Challenger has systematically engaged
in for quite some time,” says Matthew Skipper. The lawsuit, filed
in the U.S. District Court for the District of Maryland is
Devin Hunter, et al. v. Challenger Transportation, Inc.
June 6, 2012
BGE Fails to Fix Dangerous Condition in Home, Electrical Fire during Birthday
Lawsuit filed as family fears for safety
Anne Arundel County, Md. – Catricia Lankford of Lothian, Maryland and Linda Reynolds of Centreville,
Maryland, have sued energy giant Baltimore Gas & Electric Company,
a subsidiary of Exelon Corporation, for failing to fix life threatening
electrical surging that has been occurring in a Lothian home for more
than two years.
Generally, the lawsuit alleges that beginning in January 2010, the home
owned by Ms. Reynolds and rented by Ms. Lankford began experiencing electrical
surging, a dangerous condition caused by sudden rises in voltage and current
throughout household electrical wiring. In September 2010, the Complaint
alleges that the unsafe condition caused an electrical fire during a birthday
party where children were present, destroying many of the appliances in the home.
Even after the electrical fire, Plaintiffs allege that BGE has not fixed
the surging even though a BGE technician admitted that the surging was
still taking place as recently as December 2011. The Complaint states
that the home has been without power for extended periods of time, and
that Ms. Lankford has called BGE numerous times, pleading with them to
fix the surging and protect her and her daughter, Charity.
“All BGE had to do was fix the problem, and we would not be here
today,” says Lankford and Reynolds' attorney Matthew Skipper
of Trunnell Law, LLC. “For nearly two and a half years, BGE simply
did the minimum, failing to fix the dangerous condition. In the meantime,
they were putting Ms. Lankford and her daughter Charity's lives in
danger. Catricia called them time and again, spoke to supervisors, and
pleaded with them to fix the house, but her pleas fell on deaf ears.”
Attorney Skipper went on to explain that BGE enjoys special protection
under Maryland law, making any surging claim against BGE challenging.
“In Maryland, if a small business owner is negligent and someone
is hurt as a result, the business owner can be held liable for acts of
ordinary negligence. But if BGE is negligent in its delivery of electricity
to someone's home and people are hurt or property is damaged, the
home owner has to prove not just ordinary negligence, but gross negligence,
a higher legal standard that helps insulates BGE from liability.”
Plaintiffs are seeking compensation to replace the wiring in the home,
the damaged or destroyed appliances (valued over $30,000) and other related
damages. The case, number 02-C-169629, was filed in the Circuit Court
for Anne Arundel County, Maryland on May 7, 2012.
Trunnell Law in the news - WBAL's coverage of Lankford, et al. v. BGE