Securities Clawback Actions May be Subject to Arbitration Clauses
The United States Court of Appeals for the Eleventh Circuit recently held that “clawback actions brought by court-appointed receivers are not categorically exempt from the Federal Arbitration Act.” Wiand v. Schneiderman, 2015 WL 525694 (C.A. 11 (Fla.)). The appellate court affirmed the district court’s decision to decline to vacate an arbitration award in a clawback action.
The lower court case was one of approximately 150 clawback actions brought by the court-appointed receiver of six hedge funds involved in a Ponzi scheme orchestrated by Arthur Nadel. The receiver initiated the clawback suits to recover “profits” received by an investor in Nadel’s Ponzi scheme so they could be redistributed among all the investors who lost money in the scheme. Nadel, a former Florida fund manager was dubbed a “mini-Madoff” after admitting to defrauding investors out of $168 million in February 2010. In October 2010 he was sentenced to 14 years in prison. In 2012, Nadel died in prison at the age of 80.
The clawback action at issue was initiated in January 2010 in the U.S. District Court for the Middle District of Florida against the estate of Herbert Schneiderman. Schneiderman invested $100,000 with Victory Fund, Ltd., one of the hedge funds connected with Nadel’s scheme. Schneiderman received total payments from the fund in the amount of $263,660. The receiver filed suit against Schneiderman’s estate to recover the fake “profits” of $163,660. The estate moved to compel arbitration based on an arbitration provision contained in the Subscription Agreement and Limited Partnership Agreement between Schneiderman and the Victory Fund. The district court granted the motion to compel arbitration. The parties agreed to arbitrate before the American Arbitration Association (“AAA”). Thereafter, the AAA arbitrator granted the summary judgment motion filed by Schneiderman’s estate and entered a Final Order and Award dismissing the receiver’s claims as barred by the Florida probate statutes. In addition, the arbitrator denied the receiver’s motion declaring the agreement containing the arbitration provision void. Subsequently, the receiver moved to vacate the Award which was also denied.
In his appeal of the denial of the motion to vacate, the receiver argued that: 1) the receivership statutes creating his position preclude the use of arbitration in clawback actions; 2) the contract containing the arbitration provision is void; 3) the district court erred in sending all of the claims to arbitration, even those with entities with which the investor had no agreement whatsoever; and 4) the arbitrator exceeded his powers.
The Court of Appeals found all of the receiver’s arguments to be flawed and affirmed the judgment of the district court. The Court of Appeal’s full decision in Wiand may be read here.