Court of Appeal Vacates Morgan Stanley Elder Abuse Award in Troubling FINRA Arbitration

2. The above award of compensatory damages by the majority of the Panel is conditioned upon Claimant assigning to Respondents its rights and interest in the criminal restitution order against non-party Adam Margaros for his elder abuse against Mary Trottier (Orange County Superior Court Case Number 10HF1619). Arbitrator Priver concurs with the majority of the Panel's decision regarding the assignability of the restitution order. 

3. The majority of the Panel has determined to deny Respondents' expungement request for Respondent Crawford. Arbitrator Priver dissents with respect to expungement. . . .

Arbitrator Mark Priver concurs with the majority decision regarding the amount of attorneys' fees awarded and the assignability of the restitution order, and issues the following dissent with regard to the majority's finding of liability and expungement:

While I am sympathetic to the plight of the estate of the account holder in this case, I respectfully disagree with the fundamental outcome of this case because I do not believe it is consistent with the law, policy or the facts proven at the hearing. 

In brief, the 72 year old account holder, Mary Trottier ("Mary"), died in 2014. This claim was brought by her estate on behalf of her sole designated heir, her grandson, Ryan Trottier ("Ryan") after Mary disinherited her only child, Steven Trottier ("Steven"), approximately 3 months before she died in August. 

The events giving rising to this claim occurred in 2009 and 2010 when Mary was victimized by a third party, Adam Margaros ("Margaros"), who preyed on her paranoid delusions by inducing her to spend approximately $300,000.00 on a home security system. Margaros was convicted, by plea, of Elder Abuse and Fraud in 2011. He was ordered to pay $300,000.00 in restitution and failing that was required to, and ultimately did, serve 3 years in state prison after repaying only $90,000.00. 

Crawford was Mary's financial advisor at MSSB beginning in the middle of 2009. Mary's account was a straight custodial account, and held cash, securities, and annuities worth roughly $400,000.00. The evidence was uncontradicted that Mary managed her own finances, notwithstanding her delusions and later diagnosed cognitive impairments. 

Beginning in December 2009 Mary determined she needed a complex security system because of delusional beliefs she had about her neighbors. Margaros exploited those delusions selling her components of that system over a period of about 4 months that cost her roughly $300,000.00. 

The evidence established that Mary paid for that system with checks written on her MSSB account. In addition, Mary directed her financial advisor to liquidate securities and annuities in her account in order to have the cash necessary to pay Margaros. 

The key issues in this case are (1) whether and to what extent Respondents owed a duty to Mary to protect her from Margaros' criminal conduct; (2) whether and to what extent Respondents breached that duty; and (3) whether and to what extent that asserted breach caused the harm Mary's estate ultimately suffered. 

Without detailing all of Claimant's theories, (but see infra at pgs. 4-5), the essence of the claim is that Respondents were obligated to protect Mary from Margaros. In substance, Claimant asks us to find that Respondents were in loco parentis to Mary. Claimant premises this request largely on a training given by MSSB on working with senior clients, and more specifically what to do in cases of suspected elder abuse. However, this training was not part of any regulation or firm policy. Rather, this training came about as a result of FINRA Regulatory Notice 07-43, published in September 2007 under the category of "Guidance." This Notice specifically provided that: "we (FINRA) are not suggesting that firms are required to take these steps . . . ." Instead, FINRA characterized its "guidance" as "matter of sound business practice and as a way of serving their senior customers . . . ." (Resp Ex. 17 at pg. 7)(Emphasis added). 

MSSB's training model implemented in 2008 appeared to adopt, nearly verbatim, the "guidance" suggested by FINRA above. In what appears to be a classic example of "no good deed goes unpunished," Claimant seeks to have Respondents held responsible as aiders and abettors of Margaros' crime of elder abuse and fraud and asks us to not only award compensatory, but also treble, damages and attorneys' fees under the Welfare and Institutions Code. 

There was no credible evidence that this "guidance" was an industry standard in general, or in particular. Thus I find it questionable that there was any legal duty on Respondents' part to do any more than they actually did, as I will talk about later. 

In fact, in what appears to be a negation of any affirmative duty to protect customers from suspected elder abuse, at least at the time and in the context of the precise events giving rise to the claims here, FINRA published Regulatory Notice 15-37 proposing certain amendments to Rules 4512 and 2165. Under those amendments, a broker/dealer will have the power to, among other things, prevent funds or securities from being disbursed from a customer account where there is a reasonable suspicion of elder abuse. Indeed, this is exactly one of the things Claimant urged that Respondents should have done in this case, even though the evidence was uncontradicted that Respondents had no such authority, and were required to follow the instructions of their account holder. This conclusion is further buttressed by the fact that these amendments are not scheduled to take effect until February 2018, (Resp. Ex. 18), presumably to allow the industry time to develop appropriate policies, procedures and protocols. 

Turning now to what the evidence did show, the record was clear that beginning on or about January 21, 2010, after Mary had spent over $60,000.00 for this so-called security system (Clmt. Ex. 7), she met with Crawford to direct him to sell a portion of a mutual fund in her account to raise more cash to pay Margaros. Crawford advised her not to sell her mutual fund shares and explained the potential cost(s) of doing so. Crawford testified that Mary told him she needed the cash for a "financial emergency" which is what he reported to his Complex Risk Office when this trade apparently generated an "exception report." The evidence is somewhat unclear whether Crawford knew that Mary was spending all this money on a security system at this time, but he did testify that at a February 2, 2010 meeting with Mary he did definitely learn that these expenditures were for a security system. He testified he told her he thought she was being taken and advised her to get a relative involved and/or go to the police. She did neither and rejected the former because she had become estranged from her only son Steven for reasons that were never made clear. (Ryan, at this time, was 13 years old). 

According to MSSB's training module, based on the FINRA guidance, a potential "red flag" of financial exploitation of a senior that is relevant here, is a "[s]udden, atypical, or unexplained withdrawals or other changes in financial situation." (Clmt. Ex. 9, pg. 22). Clearly there were sudden and atypical withdrawals here. In fact, prior to Margaros' execution of his criminal scheme Mary regularly withdrew only $475.00 per month from her account.

The relevant guidance offered by the training module in this event was that the financial adviser, here Crawford, should raise his suspicions with the "Branch Management Team or Field Services Unit of the Legal Department." Ibid. at 24. However, privacy and confidentiality rules prohibit the financial advisor from disclosing client information to 3rd parties, including family, without the client's express consent. 

Here, Crawford previously told Mary to get her son involved or go to the police. She ignored his advice-perhaps because of her delusions or her later diagnosed cognitive impairment. However, proving that she was capable of managing her own affairs, Mary ultimately went to the police on her own on July 20, 2010 (Clmt. Ex. 10). She did this when Margaros demanded she pay another $54,000.00 for the security system she then believed was not working as she expected. Her action is what precipitated the criminal prosecution. However, the formal police investigation did not start until nearly 2 weeks later on August 4, 2010. 

This is the point at which Claimant's evidence fails to prove that even if Respondents breached some duty owed to Mary, that breach actually caused her to suffer any compensable loss. Thus, if there was a duty according to the training module for Crawford to report the suspicious activity involving Mary's account to the Branch Management Team or the Field Services Unit of the Legal Department, there was no evidence whatsoever as to what either of these reporting units could or would do and, just as importantly, how long it might take them to go about doing it. Beyond that, even assuming that management or the legal department might contact a local police or social services agency, nor is there any evidence how the police or social services agency would react to a report from a financial institution who is constrained by confidentiality and privacy rules. Would they refer the institution back to the family? Tell the reporter to have the client come in herself? Tell the reporter this was a civil matter to be handled outside the criminal or social services realm? Beyond this, how long would it take for the agency taking the report to act? Furthermore, given Mary's apparent delusions, would she have resisted the intervention? If so, Claimant's expert testified that it would have been unlikely that Mary could have been subjected to a conservatorship if she resisted. 

It is sheer speculation to conclude that any report Crawford may have made to management or legal would have stopped Margaros from bilking Mary out of nearly $300,000.00 given that she had him paid almost $295,000.00 by April 6, barely 60 days after Crawford told Mary he believed she was being taken and should get her family involved or go to the police. 

There is one significant legal issue that needs to be addressed to further explain my disagreement with the Award. In particular, Claimant principally contends Respondents are liable to his grandmother's estate under the Elder Abuse Statute, specifically for "assisting" Margaros in his scheme to defraud Mary. Claimant asserted in closing that Respondents can be liable under Welfare & Inst. Code Section 15610.30(b). He relies principally on CACI 3100 to support this claim but this jury instruction does not address the potential liability of an alleged assister.¹ Rather, this instruction is tailored to subsection (b) which only defines the circumstances under which the person or entity taking the elder's property can be found to have acted wrongfully. There was no evidence here that Respondents took, wrongfully or otherwise, any of Mary's property. Thus: 

(b) A person or entity shall be deemed to have taken . . . property for a wrongful use if . . . the person or entity takes . . . the property and the person or entity knew or should have known that this conduct is likely to be harmful to the elder . . . . (Emphasis Supplied) 

This subsection does nothing to explain the potential liability of one who "assists" the person or entity engaged in Elder Abuse, and there was no evidence here that Respondents took, wrongfully or otherwise, any of Mary's property. Rather, the liability of an assister derives under subsection (a)(2) as follows: 

"Financial abuse" of an elder occurs . . . when a person or entity does . . . the following: (2) Assists in taking, secreting, appropriating, obtaining or retaining . . . property of an elder . . . adult for a wrongful use or with intent to defraud or both. 

Subsection (b), and the corresponding CACI Instruction, relied upon by Claimant to prove Respondents "assisted" Margaros, does not in fact assist them. If it did, "assister" liability based loosely on what a person or entity "should have known" would be unusually broad exposing any person or entity, including friends, relatives, public agencies and even law enforcement, to liability under the Elder Abuse Statute, apart from any immunity otherwise granted by the law. 

No case law appears to define the scope of liability of an alleged "assister," and the only case that is close is Das v. Bank of America, 186 Cal.App.4th 727. In that case, the Court of Appeal held that the liability of an "assister" is dependent on proof that the wrongdoer aided and abetted the commission of an intentional tort. In the case of a financial institution that provides "ordinary services" that effectuate financial abuse by a third party, the institution can only be held liable as an assister if the aggrieved party proves that the financial institution actually knew of the third party's wrongful conduct. Id. at 744-45. 

Respondents here did nothing more than provide ordinary financial services to Mary-specifically taking her orders to buy and sell securities and providing check writing facilities. The evidence did not in any way prove that Respondents actually knew of Margaros' wrongful conduct. At most, they had reason to believe that Mary was being "taken advantage of" but not sufficient to show that Respondents were capable of doing anything about it, as explained above. Imposing liability on Respondents in this case, including treble damages and attorneys' fees would be tantamount to making them a guarantor of Mary's financial well-being from the wiles of criminal actors. This outcome would be neither fair nor equitable in the circumstances. 

For these reasons, I dissent.

= = =

Footnote 1:  The explanatory paragraph following paragraph 5 in CACI 3100 does not express that a plaintiff can prove the liability of an "assister" by showing that person knew or should have known that the actor's conduct (here Margaros) was likely to be harmful to the plaintiff. In fact, the word is "assist" is not used anywhere in this paragraph. However, Claimant's version of this explanatory paragraph provided to the panel in closing does.

7. The Disclosure/Conflict Information section of Mr. Harrison's Arbitrator Disclosure Report contained no disclosures about Mr. Harrison's having recently been involved in a legal proceeding in which he made significant allegations of financial elder abuse on behalf of an elderly single woman like Ms. Trottier. Had I known this information, I would have struck Mr. Harrison's name from the list of potential arbitrators.

[M]r. Harrison's work on behalf of his elderly woman client (Ms. La Voie) involved filing documents with the Los Angeles Superior court, Probate Division, in 2014 and 2015, in which he raised financial elder abuse issues with the court. Tepper Decl., Exs. 16, 18, 19. When Mr. Harrison was appointed by the court to represent Ms. La Voie, he worked closely with her and others in an effort to protect her assets from her "boyfriend," real estate buyers, and other attorneys. Id. , ¶ 27, Ex. 19, pp 4-13. Ms. La Voie was allegedly defrauded of hundreds of thousands of dollars by a younger man whom she trusted. 

Both FINRA Disclosure Rules and California law required Mr. Harrison to disclose his involvement as an attorney on a similar case. FINRA's rules provide that an arbitrator must disclose "any circumstances which might preclude the arbitrator from rendering an objective and impartial determination." FINRA Rule 12405. FINRA further requires "disclosure" of "any relationship, experience and background information that may affect - or even appear to affect - the arbitrator's ability to be impartial and the parties belief that the arbitrator will be able to render a fair decision." Under these rules, Mr. Harrison was required to disclose his recent role as an attorney for the elderly woman whom Mr. Harrison argued to the court was the victim of financial elder abuse, because it could have impacted his partiality. The elder abuse claims present in that conservatorship proceeding were very similar to those in this arbitration. Yet it was not disclosed. . . .

In the arbitration, Mr. Trottier claimed that Ms. Trottier, his grandmother, was mentally incapacitated and alleged that this impairment obligated Morgan Stanley to protect her and prevent her from writing checks to Mr. Margaros, who was purportedly selling Ms. Trottier a very expensive security system. Mr. Trottier relied heavily on the testimony of Dr. Bonnie Olsen who had examined Ms. Trottier and made determinations as to her mental capacity in the 2010 criminal case against Margaros. 

Morgan Stanley sought discovery of Dr. Olsen's report on Ms. Trottier and Dr. Olsen's notes from her examination of Ms. Trottier. The records sought by Morgan Stanley included a report and notes prepared by Dr. Olsen to support her testimony in the 2010 criminal case that Ms. Trottier was mentally impaired. Mr. Trottier refused to produce these documents. Morgan Stanley also learned that Mr. Trottier had previously disavowed Dr. Olsen's 2010 testimony during his 2014 probate dispute with his father over the inheritance of Ms. Trottier's estate, and at that time attacked Dr. Olsen's competency determinations. Morgan Stanley also sought the probate documents. Chairman Harrison issued an order dated January 12, 2017 requiring their production (Tepper Decl. Ex. 12), but Mr. Trottier failed to comply with that discovery order.

In the arbitration here at issue, Mr. Trottier took the opposite position and affirmed Dr. Olsen's report and note, casting blame on Morgan Stanley for failing to stop Ms. Trottier from writing checks from her account. On March 10, 2017, Morgan Stanley asked for discovery sanctions and requested a short postponement of the final hearing in order to obtain the discovery that had been mandated in the January 12, 2017 order, including documents from the probate action, which Mr. Trottier also failed to produce. Tepper Decl. Exs. 11 and 12.  

The court finds that Morgan Stanley and Crawford were substantially prejudiced by the refusal to grant a short postponement of the hearing to allow them full discovery which was critical to their defense. CCP section 1286.2(a)(5). The evidence that Morgan Stanley sought was relevant to Dr. Olsen's credibility, Mr. Trottier's credibility and to the germane issue of whether Ms. Trottier was mentally incapacitated at the relevant times, including the time she was writing the checks at issue. Dr. Olsen was a key witness for Mr. Trottier. The notes and report of Dr. Olsen and the documents from Mr. Trottier's 2014 probate dispute with his father over Ms. Trottier's mental competency would be important documents for Morgan Stanley's cross-examination of Dr. Olsen and Mr. Trottier. In denying the postponement to allow this discovery, the arbitrators denied Morgan Stanley the right to gather discovery crucial to their defenses and their cross-examination of Mr. Trottier, including with respect to Mr. Trottier's purported inconsistent positions on Ms. Trottier's mental competency. Despite denying the opportunity to Morgan Stanley and Crawford to obtain this discovery, the arbitrators allowed Dr. Olsen to testify, on behalf of Mr. Trottier. 

[O]n the entire record, a reasonable person aware of all the facts could form the opinion that Harrison's conduct in the La Voie conservancy proceeding displayed a bias that would work to Morgan's detriment. For that reason, Harrison had a duty to disclose the La Voie conservancy proceeding. Because he did not, the arbitration award must be vacated. . . .

[O]ur decision is based on the very unusual circumstances of this case. First, as PVP counsel in the conservancy proceeding, the arbitrator accused the proposed conservatee's privately retained attorney of aiding the perpetration of financial elder abuse by advocating the proposed conservatee's wishes regarding the distribution of her property to her alleged abuser. This allegation is analogous to appellant's accusations that Morgan aided and abetted financial elder abuse of Trottier by following her directions and honoring her checks payable to her abuser. Second, as PVP counsel, the arbitrator became personally embroiled in the conservancy proceeding, going so far as to recommend that the court should consider barring the proposed conservatee's privately retained attorney from representing her. Instead, the court found the proposed conservatee competent to retain counsel, and relieved the arbitrator as PVP counsel. Third, as PVP counsel the arbitrator made the unusual  recommendation that the court direct the Sheriff's Department to pursue criminal charges against anyone "suspected" of engaging in financial elder abuse of the proposed conservatee. Based on their interactions with the proposed conservatee concerning her financial decisions, he accused the privately retained attorney, as well as the buyers of the proposed conservatee's property and their attorney, of aiding or engaging in financial elder abuse, and, thus, his recommendation presumably included possibly pursing criminal charges against them. Fourth, the conservancy proceeding was recent: the arbitrator's representation of the proposed conservatee ended less than a year before his first disclosure statement in the instant arbitration.

Appellant's statement of claim was quite clear as to Morgan's alleged misconduct: it alleged that Morgan knew, or reasonably should have known, that Trottier was the victim of financial elder abuse. It alleged that in following Trottier's directions and honoring her checks (selling securities in the process and reducing the balance of her account), Morgan violated its legal and fiduciary obligations to Trottier. The statement of claim went so far as to allege that Morgan aided and abetted the financial elder abuse of which Margaros was convicted. 

Given these allegations, a reasonable person aware of all the facts of Harrison's involvement in the La Voie conservancy proceeding could form a doubt whether he could be fair to Morgan. First, the circumstances of the two cases disclose marked similarities. True, the instant case concerned claims of civil liability (as well as different parties and facts) based on alleged financial elder abuse not directly raised in the La Voie conservancy proceeding. Yet, looking at all the facts, troubling analogies are evident. 

• FINRA
• Arbitration
• Morgan Stanley
• Trottier
• CRD
• Expungement
• Elderly
• Elder Abuse
• Dissent
• Rule 12405
• Disclosure
• BrokeAndBroker
• Bill Singer