Richard Sacks v. Dean Dietrich, et al

Filing

FILED OPINION (J. CLIFFORD WALLACE, SIDNEY R. THOMAS and LLOYD D. GEORGE) AFFIRMED. Judge: JCW , Judge: SRT Authoring, Judge: LDG . FILED AND ENTERED JUDGMENT. [7977160]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD SACKS, DBA Investors
Recovery Service,
Plaintiff-Appellant,
v.
DEAN DIETRICH; TERI COSTER
BOESCH,
Defendants-Appellees.




No. 10-16524
D.C. No.
3:10-cv-01330-SI
OPINION



Appeal from the United States District Court
for the Northern District of California
Susan Illston, District Judge, Presiding
Argued and Submitted
October 13, 2011—San Francisco, California
Filed November 23, 2011
Before: J. Clifford Wallace and Sidney R. Thomas,
Circuit Judges, and Lloyd D. George, Senior District Judge.*
Opinion by Judge Thomas

*The Honorable Lloyd D. George, Senior District Judge for the U.S.
District Court for Nevada, sitting by designation.

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COUNSEL
Timothy A. Canning, Arcata, California, for the appellant.
Ethan D. Dettmer and Rebecca Justice Lazarus, Gibson, Dunn
& Crutcher LLP, for the appellees.

OPINION
THOMAS, Circuit Judge:
Richard Sacks appeals from the dismissal of his claims
against two arbitrators who disqualified him from represent-

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SACKS v. DIETRICH

ing a client. The district court concluded that the claims were
barred by arbitral immunity. We agree and affirm.
I
Plaintiff Richard Sacks entered into a written contract with
Vincent Dang to represent him in a securities arbitration proceeding to be administered by the Financial Industry Regulatory Authority (“FINRA”).1
Dang signed and submitted a “Uniform Submission Agreement,” formally submitting the dispute to FINRA. The Agreement stated, in relevant part:
The undersigned parties hereby submit the present
matter in controversy, as set forth in the . . . statement of claim . . . and all related counterclaims or
third party claims which may be asserted, to arbitration in accordance with the Constitution, By-Laws,
Rules, Regulations, and/or Code of Arbitration Procedure of the sponsoring organization. . . . The
undersigned parties further agree and understand that
the arbitration will be conducted in accordance with
the Constitution, By-Laws, Rules, Regulations,
and/or Code of Arbitration Procedure of the sponsoring organization.
Sacks’s company, Investors Recovery Service, also submit1

FINRA is a “self-regulatory organization” under the Securities and
Exchange Act. See Sacks v. Securities and Exchange Commission, 648
F.3d 945, 948 (9th Cir. 2011) [hereinafter Sacks I] (citing 72 Fed. Reg.
42169 (Aug. 1, 2007); 15 U.S.C. §§ 78c(a)(26), 78s(b)) (explaining
FINRA’s role and rule-making process). FINRA’s rules are approved by
the Securities and Exchange Commission (“SEC”). See id.; 15 U.S.C.
§ 78s(b); see also Credit Suisse First Boston v. Grunwald, 400 F.3d 1119,
1130-31 (9th Cir. 2005) (explaining how 1975 amendments to the Securities and Exchange Act subjected self-regulatory organizations to more
SEC oversight).

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ted a Statement of Claim, paid filing fees, and requested a
hearing on behalf of Dang. FINRA appointed defendants
Dean Dietrich and Teri Coster Boesch as arbitrators to hear
and decide Dang’s claims.
Sacks first appeared before the arbitration panel during two
telephone hearings. The respondents in the arbitration moved
to have Sacks disqualified on the grounds that he was ineligible under FINRA Rule 13208. FINRA Rule 13208 provided
that “[p]arties may be represented in an arbitration by a person who is not an attorney, unless . . . the person is currently
suspended or barred from the securities industry in any capacity.”2 Sacks, who is not an attorney, was barred from the securities industry in 1991. Sacks I, 648 F.3d at 948.
In response to this motion to disqualify, Sacks “objected to
the panel even considering the issue.” He argued that the
panel did not have the authority to decide if he could represent Dang, and that he had not contracted with the panel to
make any such decisions. He also sent a letter to FINRA, stating in part:
If the panel actually were to decide this motion
adversely to our client, this panel will get sued. Full
disclosure is appropriate in this instance. Please
advise the panel that in the past, Investors Recovery
Service has taken all steps necessary to protect itself
against interference with its contractual relationship
with its clients, including suing FINRA arbitrators
who thought better than to follow FINRA rules . . . .
2
Rule 13208 also provided that “[i]ssues regarding the qualifications of
a person to represent a party in arbitration are governed by applicable law
and may be determined by an appropriate court or other regulatory agency.” In 2007, Sacks challenged Rule 13208 in a separate action before this
court. See Sacks I, 648 F.3d at 949. We held that the SEC may not retroactively apply the rules it adopted at 72 Fed. Reg. 56410-12, including Rule
13208. Id. at 952.

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The defendant arbitrators disqualified Sacks from representing Dang before FINRA because it was undisputed that he
was barred from the securities industry as prohibited by Rule
13208. The arbitration panel stated in its order that “[u]nder
the circumstances, the panel has no alternative but to disqualify Mr. Sacks . . . .” The panel based its authority to apply
Rule 13208 on Rule 13413, which provides that a “panel has
the authority to interpret and determine the applicability of all
provisions under the Code.” However, the panel further noted
that it would allow Sacks “to assist a representative qualified
under Rule 13208” in a future proceeding. Defendants Dietrich and Boesch signed the order. The third arbitrator on the
panel did not join in the order.
Sacks filed a complaint in Marin County Superior Court
against defendants Dietrich and Boesch, alleging intentional
and negligent interference with contract and intentional and
negligent interference with prospective economic advantage.
Sacks alleged that by disqualifying him from representing
Dang, the defendant arbitrators exceeded the scope of their
authority under the Uniform Submission Agreement, FINRA
rules, and California law. The defendants removed the case to
federal court.
The district court granted the defendants’ motion to dismiss
and entered judgment dismissing all claims with prejudice.
Among other decisions, the court determined it had jurisdiction over the claims, and that the claims were barred by arbitral immunity. This timely appeal followed.
II
[1] The district court correctly held that it had jurisdiction
over the action. A state court action may only be removed to
federal court if that federal court could have exercised original jurisdiction. 28 U.S.C. § 1441(a). Sacks’s claims are all
state law causes of action. However, the alleged wrongful
conduct that underlies these claims turns on a federal ques-

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tion: whether the arbitrators exceeded their jurisdiction under
the FINRA arbitration rules by applying Rule 13208 and barring Sacks from representing his client.
The district court’s order was consistent with our holding
in Sparta Surgical Corporation v. National Association of
Securities Dealers, Inc., 159 F.3d 1209, 1211 (9th Cir. 1998).
In Sparta, we held that the district court had subject matter
jurisdiction over a complaint alleging state common-law
claims based on the de-listing and suspension of trading in
Sparta’s stock by the National Association of Securities Dealers (“NASD”).3 We reasoned that “although Sparta’s theories
are posited as state law claims, they are founded on the defendants’ conduct in suspending trading and de-listing the offering, the propriety of which must be exclusively determined by
federal law.” Id. at 1212. Thus, the viability of any claim
founded upon NASD’s conduct depended on whether the
association’s rules were violated. “If NASD’s actions conformed to the rules, there can be no viable cause of action; if
its actions violated the rules, any claim falls under the imperative of 15 U.S.C. § 78aa which grants the federal courts
‘exclusive jurisdiction of violations of this chapter or the rules
and regulations thereunder. . . .’ ” Id. (quoting 15 U.S.C.
§ 78aa). Here, Sacks’s causes of action were “carefully articulated in terms of state law.” Hawkins v. Nat’l Ass’n of Sec.
Dealers, Inc., 149 F.3d 330, 332 (5th Cir. 1998). Nevertheless, if the arbitrators were allowed to disqualify Sacks under
FINRA’s rules, there would be no viable cause of action. If,
on the other hand, the arbitrators exceeded their jurisdiction
in violation of FINRA rules, then Sacks’s claims fall under
the imperative of 15 U.S.C. § 78aa. Section 78aa conferred
exclusive jurisdiction on the district court because the central
question of this case is whether FINRA rules were violated.
3
The National Association of Securities Dealers was a predecessor to
FINRA. See Sacks I, 648 F.3d at 948 n.1 (“FINRA was created in 2007
through the consolidation of the National Association of Securities Dealers, Inc. and the member regulation, enforcement, and arbitration operations of the New York Stock Exchange.” (citation omitted)).

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Sacks’s attempts to distinguish Sparta are not persuasive.
He argues that he did not name FINRA or a FINRA employee
as a defendant, and therefore the rules do not apply. However,
in Sparta, subject matter jurisdiction existed because the state
law causes of action turned upon an alleged violation of the
NASD rules, not because NASD was a defendant. See 159
F.3d at 1212. The same reasoning applies here. Furthermore,
although Sacks asserts that none of the four causes of action
alleged in his compliant require a violation of federal law or
FINRA rules in order to succeed, this assertion is contradicted
by the face of his complaint. Sacks alleges that the arbitrators
“wrongfully exceeded their authority under the arbitration
submission agreement, FINRA rules and California law”
when they prohibited Sacks from representing Dang because
“FINRA rule [13208] itself does not give arbitrators [the]
authority” to issue such a prohibition. Sacks contends that his
claims raise nothing more than the arbitrators’ contractual
authority, but this court has rejected that argument where, as
here, a violation of a rule or regulation promulgated under
federal law was required to show the alleged breach of contract. See Cal. ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 831,
841 (9th Cir. 2004); Sparta, 159 F.3d at 1211.
Finally, Sacks attempts to distinguish Sparta on the ground
that it was “predicated on subject matter committed exclusively to federal court.” However, in this case, as in Sparta,
liability turns on interpretation of rules that are approved by
the SEC and whose violations are subject to exclusive federal
jurisdiction. See 15 U.S.C. § 78aa. Sacks “may not avoid federal jurisdiction by omitting from the complaint federal law
essential to his . . . claim or by casting in state law terms a
claim that can be made only under federal law.” Sparta, 159
F.3d at 1212 (citation omitted).
[2] In short, because application of federal law is necessary
to resolve each of the state law theories, this action involves
a substantial federal question. The district court correctly concluded that it had subject matter jurisdiction over the action.

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III
[3] The doctrine of arbitral immunity provides that “arbitrators are immune from civil liability for acts within their
jurisdiction arising out of their arbitral functions in contractually agreed upon arbitration hearings.” Wasyl, Inc. v. First
Boston Corp., 813 F.2d 1579, 1582 (9th Cir. 1987) (citations
omitted); see also Lundgren v. Freeman, 307 F.2d 104, 11718 (9th Cir.1962) (noting that “[i]f the[ ] decisions [of quasiarbitrators] can thereafter be questioned in suits brought
against them by either party, there is a real possibility that
their decisions will be governed more by the fear of such suits
than by their own unfettered judgment as to the merits of the
matter they must decide.”). Thus, “[a]s with judicial immunity
. . . , arbitral immunity is essential to protect the decisionmaker from undue influence and protect the decision-making
process from reprisals by dissatisfied litigants.” Wasyl, 813
F.2d at 1582.
[4] Of course, arbitral immunity does not extend to every
act of an arbitrator. Arbitral immunity extends only to those
acts taken by arbitrators “within the scope of their duties and
within their jurisdiction.” Wasyl, 813 F.2d at 1582 (citation
omitted). The pivotal question is “whether the claim at issue
arises out of a decisional act.” Pfannenstiel v. Merrill Lynch,
Pierce, Fenner & Smith, 477 F.3d 1155 (10th Cir. 2007) (citation omitted). If the claim, “regardless of its nominal title,
effectively seek[s] to challenge the decisional act of an arbitrator or arbitration panel . . . then the doctrine of arbitral
immunity should apply. If not, the doctrine would not apply.”
Id. at 1159 (internal citations omitted).
[5] In this case, the arbitrators were acting within their
jurisdiction and plaintiff’s claims arise out of a decisional act.
Thus, the district court properly applied the doctrine of arbitral immunity to bar plaintiff’s claims.
Sacks argues that the doctrine should not apply because the
defendant arbitrators exceeded their jurisdiction. He contends

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first, that FINRA rules and applicable law precluded the arbitrators from deciding a representational issue; and second,
that Sacks was not a party to the arbitration agreement and
cannot be bound by the panel. We disagree.
[6] First, FINRA rules and applicable law dictate that
defendant arbitrators were acting within their jurisdiction.
Sacks’s client formally submitted the dispute to FINRA and
agreed to be bound by FINRA’s rules. Rule 13413 provides
that the arbitral “panel has the authority to interpret and determine the applicability of all provisions under the Code,” and
that “[s]uch interpretations are final and binding upon the parties.” Rule 13208 provides that a party cannot be represented
by an individual who has been suspended or barred from the
securities industry and that “[i]ssues regarding the qualifications of a person to represent a party . . . may be determined
by an appropriate court or other regulatory agency.” Because
Sacks was indisputably barred from the securities industry,
there was no issue regarding his lack of qualification under
FINRA rules to represent a party in a FINRA arbitration. Furthermore, even if there were an issue, the fact that courts or
other agencies “may” resolve such an issue did not preclude
the arbitral panel from doing so. The arbitral defendants were
thus acting within their jurisdiction.
[7] Second, although Sacks was not a party to the arbitration agreement, he was still bound by it under ordinary contract and agency principles. See, e.g., Letizia v. Prudential
Bache Sec., Inc., 802 F.2d 1185, 1187-88 (9th Cir. 1986)
(nonsignatories of arbitration agreements may be bound by
the agreement under ordinary contract and agency principles).
When Dang submitted his claim to FINRA, the FINRA arbitrators had jurisdiction to issue binding interpretations of
FINRA rules, including the rule disqualifying Sacks from representing Dang. Because the arbitrators acted with full authority under the arbitration agreement, they cannot be subject to
suit by a party representative.

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IV
The district court had subject matter jurisdiction and correctly dismissed the action because the claims were precluded
by arbitral immunity.
AFFIRMED.