Which Laws Apply to Broker-Dealers? Federal Laws? State Laws? Both? General Principles Leading to an Answer

TAMAR FRANKEL

BU Law emerita professor Tamar Frankel explains the law of preemption as it pertains to broker-dealers and their investor clients. She predicts, among other things, that either the clients will demand that broker-dealers adhere to a fiduciary duty, or else that states will impose that duty on them.

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Razak v. Uber Technologies Inc

Court: US Court of Appeals for the Third Circuit

Docket: 18-1944

Opinion Date: March 3, 2020

Judge: Greenaway

Areas of Law: Business Law, Labor & Employment Law

Plaintiffs, drivers who use Uber’s mobile phone application to provide limousine services (UberBLACK) in Philadelphia, claimed violations of the Fair Labor Standards Act (FLSA), 29 U.S.C. 201, and Pennsylvania laws. Plaintiffs each own and operate independent transportation companies (ITCs) as required to drive for UberBLACK. Each ITC’s agreement with Uber includes a Software License and outlines the relationships between ITCs, Uber riders, Uber, and Uber drivers. It describes driver requirements, vehicle requirements, financial terms, and contains an arbitration clause. A mandatory agreement between the ITC and the for-hire driver allows a driver to receive services through Uber’s app and outlines driver requirements, insurance requirements, dispute resolution. Some UberBLACK providers operate under Uber’s Philadelphia certificate of convenience; others hold their own certificates; approximately 75% of UberBLACK drivers use Uber’s automobile insurance. Plaintiffs claim that they are employees and allege that time spent online on the Uber App qualifies as FLSA compensable time. Uber argued that Plaintiffs are not restricted from working for other companies, pay their own expenses, can engage workers for their own ITCs, can use UberBLACK as little or as much as they want, and have no restrictions on personal activities while online. The Third Circuit vacated summary judgment. A reasonable fact-finder could rule in favor of Plaintiffs. Disputed facts include whether Plaintiffs are operating within Uber’s system and under Uber’s rules; whether Plaintiffs or their corporations contracted directly with Uber; and whether Uber exercises control over drivers.

Marion HealthCare, LLC. v. Becton Dickinson & Co.

Court: US Court of Appeals for the Seventh Circuit

Docket: 18-3735

Opinion Date: March 5, 2020

Judge: Diane Pamela Wood

Areas of Law: Antitrust & Trade Regulation, Business Law

Healthcare providers often do not purchase medical devices directly from the manufacturer; they join group purchasing organizations (GPOs), which negotiate prices with manufacturers. The provider chooses a distributor to deliver the product. The distributor enters into contracts with the provider and the manufacturer, incorporating the price and other terms that the GPO negotiated, plus a markup for the distributor. A GPO negotiated with Becton (a manufacturer) on the plaintiff-providers’ behalf; a distributor delivered the devices. Had Becton acted alone, selling its products to an independent distributor, which then sold them to a provider, the Supreme Court’s 1977 “Illinois Brick” rule would bar the provider from suing Becton for any alleged monopoly overcharges. Only buyers who purchased products directly from the antitrust violator have a claim for treble damages. The plaintiffs alleged that Becton, the GPOs, and the distributors were in a conspiracy and engaged in various anti-competitive measures, including exclusive-dealing and penalty provisions. Under Brick's conspiracy exception, when a monopolist enters into a conspiracy with its distributors “the first buyer from a conspirator is the right party to sue.” The district court found the conspiracy rule inapplicable because this case did not involve vertical price-fixing. The Seventh Circuit vacated. The relationship between the buyer and the seller, not the nature of the alleged anticompetitive conduct, governs whether the buyer may sue under the antitrust laws. Remand was required because the Providers have failed adequately to allege the necessary conspiracy.

McFadden v. Dorvit

Court: US Court of Appeals for the Seventh Circuit

Docket: 19-2755

Opinion Date: February 28, 2020

Judge: Joel Martin Flaum

Areas of Law: Business Law, Corporate Compliance

Winemaster founded PSI in 1985 and served as Chairman, President, and CEO. In 2011, PSI became a publicly-traded company. Winemaster and his brother were PSI’s majority shareholders. The company’s early SEC filings noted that PSI’s “internal controls over financial reporting” suffered from “material weakness.” In 2013, PSI’s per-share price rocketed from $16.18 to $75.10. In 2015, PSI began making disclosures; its auditor resigned, its share price plummeted, and the government began investigating. PSI had improperly recognized millions of dollars in revenue. Winemaster resigned. As a result of a purchase agreement and resignations, six of PSI’s seven current directors were unaffiliated with the company during the period of alleged misconduct. Winemaster was charged with criminal fraud. Lawsuits followed, including this derivative complaint on behalf of PSI, alleging fiduciary breach and unjust enrichment against certain officers and directors. The parties executed a settlement, with a monetary award of $1.875 million from PSI’s insurers; plaintiffs' counsel would get half. The balance was earmarked for expenses related to the government’s investigations. The settlement required the formal enactment of 17 corporate governance reforms. The plaintiffs agreed to a release against the individual defendants, including Winemaster. The court granted preliminary approval. In the meantime, state derivative actions were dismissed as duplicative. In federal court, the state plaintiff unsuccessfully objected to Winemaster's release, argued that the monetary component was insufficient, and claimed that the proposed governance reforms lacked substance. The Seventh Circuit affirmed final approval. The district court adequately considered the propriety of the settlement’s terms.

K&D LLC v. Trump Old Post Office LLC

Court: US Court of Appeals for the District of Columbia Circuit

Docket: 18-7185

Opinion Date: February 28, 2020

Judge: Thomas Beall Griffith

Areas of Law: Business Law, Government & Administrative Law

Cork Wine Bar, a restaurant that competes with President Trump's eponymous hotel, filed suit alleging violations of the District's common law of unfair competition. Cork alleged that President Trump's hotel attracted more of the lobbyists, advocacy groups, and diplomats that Cork had relied on to fill its events calendars, and that these customers chose the hotel because of a perception that patronizing it would be to their advantage in their dealings with the Trump Administration. After removal, the district court denied Cork's motion to remand, dismissing the complaint for failure to state a claim. The DC Circuit held that the case was properly removed based on its two-step analysis in officer-removal cases. First, the court held that President Trump's theory that the District may not impose legal conditions on the lawful performance of his presidential duties was colorable. Second, the court held that President Trump demonstrated that Cork's suit fell within the scope of 28 U.S.C. 1442(a)(1). The court also held that case law did not support Cork's claims on the merits and that Cork failed to cite any contrary precedent. In this case, Cork suggested in passing that President Trump and the hotel were impairing competition and interfering with access to its business. However, the court explained that these claims bear little resemblance to the examples listed in Ray v. Proxmire and B B & W Mgmt., Inc. v. Tasea Inv. Co. Finally, the court declined to certify the core question of District law to the District of Columbia Court of Appeals.

Ex parte LED Corporations, Inc.

Court: Supreme Court of Alabama

Docket: 1180629

Opinion Date: February 28, 2020

Judge: Stewart

Areas of Law: Business Law, Civil Procedure, Contracts

LED Corporations, Inc. ("LED"), and Anthony Florence petitioned the Alabama Supreme Court for a writ of mandamus to direct the Etowah Circuit Court ("the trial court") to vacate its order denying their motions to dismiss for lack of personal jurisdiction an action filed against them by SDM Electric, LLC ("SDM"), and to enter an order dismissing the case against them. SDM is an Alabama corporation that served as an electrical subcontractor for a construction project at a high school in Calhoun County, Alabama. LED is a Florida corporation owned by Florence, its sole shareholder. In 2017, SDM contacted LED to solicit a bid for lighting fixtures for use in the construction project. SDM executed and delivered to LED a purchase order for lighting fixtures; SDM paid LED the balance of the purchase order. The fixtures were never shipped, and, in late 2018, SDM sued LED and Florence (among others), for breach of contract, fraudulent misrepresentation and conversion. The Alabama Supreme Court affirmed the trial court, concluding SDM satisfied its burden in opposition to LED's and Florence's motions to dismiss by showing that LED and Florence has sufficient contacts with Alabama to support the exercise of specific personal jurisdiction and that the exercise of jurisdiction over them "complies with traditional notions of fair play and substantial justice."

Moofly Productions, LLC v. Favila

Court: California Courts of Appeal

Docket: B294828(Second Appellate District)

Opinion Date: March 4, 2020

Judge: Frances Rothschild

Areas of Law: Business Law, Civil Procedure

The Court of Appeal affirmed the superior court's judgment in favor of the Estate, in a lawsuit brought by Moofly for actions the Estate took when attempting to collect on a judgment in a previous, related case. The Estate filed a cross-complaint, accusing Moofly and its owner of fraudulent transfers and other causes of action. The court held that Moofly was not entitled to a jury trial because the Estate's cause of action for fraudulent transfer was essentially one in equity and the relief sought depended upon the application of equitable doctrines; Moofly received adequate notice of the Estate's motion for terminating sanctions; there were sufficient grounds to justify the imposition of terminating sanctions; the superior court did not exceed its jurisdiction by awarding the return of derivative copyrighted materials; even assuming that the Estate's claim fell within the subject matter of copyright, the rights the Estate asserted are not equivalent to copyright; and there was no error in including Moofly's owner as a party liable for the judgment.

Beem USA Limited-Liability Limited Partnership v. Grax Consulting LLC

Court: North Carolina Supreme Court

Docket: 360A18

Opinion Date: February 28, 2020

Judge: Davis

Areas of Law: Business Law, Civil Rights, Constitutional Law

In this business case, the Supreme Court reversed the orders of the business court denying Plaintiffs' motion for default judgment based on its finding that Plaintiffs had failed to satisfy their burden of proving that the court possessed personal jurisdiction over Defendant, a nonresident company, holding that Defendant's contacts with North Carolina were sufficient to permit the exercise of personal jurisdiction over it in North Carolina state courts. In the complaint, Plaintiffs sought an injunction, in part, directing Defendant to turn over certain documents and information necessary for Plaintiffs to wind up the affairs of a limited-liability limited partnership. A default was entered against Defendant, but the business court denied Plaintiffs' motion for default judgment. The Supreme Court reversed, holding that Defendant had sufficient minimum contacts with this state such that a North Carolina court could constitutionally exercise personal jurisdiction over it.

Vizant Techs., LLC v. YRC Worldwide, Inc

Court: North Carolina Supreme Court

Docket: 160A19

Opinion Date: February 28, 2020

Judge: Bledsoe

Areas of Law: Business Law, Contracts

In this action arising out of an alleged breach of a professional services agreement (PSA) between Vizant Technologies, LLC and YRC Worldwide Inc. the Supreme Court concluded that YRC's motion for summary judgment should be granted in part and denied in part, holding that partial summary judgment should be granted in YRC's favor on the issue of certain damages involving automated clearing house (ACH) batch payments. Vizant sought declaratory and injunctive relief against YRC as well as damages for breach of the PSA, claiming that it was owed outstanding fees for savings that YRC allegedly realized through successful efforts to pay using ACH rather than credit cards. Vizant argued that the PSA required YRC to pay a fee to Vizant because YRC realized savings as a result of the strategies identified by Vizant. YRC, however, argued that it did not owe Vizant a fee because Vizant's suggestions did not actually cause YRC to change business practices and realize savings. The Supreme Court granted in part and denied in part YRC's motion for summary judgment, holding (1) Vizant failed to produce evidence to support its claimed ACH damages; and (2) YRC's summary judgment motion is denied with regard to Vizant's breach of contract claim.