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Jansen v. Salomon Smith Barney

May 16, 2001

GREGORY JANSEN, SCOTT JANSEN, AND TONY JANSEN PLAINTIFFS-RESPONDENTS,
v.
SALOMON SMITH BARNEY, INC., AND ARLENE K. SCOZZARO DEFENDANTS-APPELLANTS.



On appeal from Superior Court of New Jersey, Law Division, Essex County, L-4947-00.

Before Judges Baime and Carchman.

The opinion of the court was delivered by: Baime, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 25, 2001.

The novel question presented by this appeal is whether the putative beneficiaries of a retirement account are bound by an arbitration clause signed by decedent and his financial advisors. Plaintiffs brought this action against defendant brokerage house and its employee claiming that defendants' negligent financial advice to their deceased father deprived them of their portion of decedent's retirement account. Defendants filed a motion to compel the plaintiffs to arbitrate the claim. The trial court concluded that plaintiffs could not be compelled to arbitrate because their rights were independent of those of the decedent upon his death. We disagree with this conclusion and reverse.

I.

The relevant facts are not in dispute. Plaintiffs are the sons of the late Heinz Jansen. Jansen maintained two retirement accounts with defendant Salomon Smith Barney. One account was designated as a Keogh Profit Sharing Plan (Keogh Account), while the other was a traditional Individual Retirement Account (IRA). Upon opening both accounts, Jansen executed a "Client Agreement" which contained the following arbitration clause:

23. ARBITRATION AND GOVERNING LAW . . . Any controversy arising out of or relating to any of my accounts, to transactions with you, your officers, directors, agents and/or employees for me, or to this agreement, or the breach thereof, or relating to transactions or accounts maintained by me with any of your predecessor firms by merger, acquisition or other business combination from the inception of such accounts, shall be settled by arbitration, in accordance with the rules then in effect of the NASD, or the Boards of Directors of the NYSE or the American Stock Exchange, Inc., as I may elect. If I do not address to you at your main office within 5 days after demand by you that I make such an election, then you will have the right to elect the arbitration tribunal or your choice. Judgment upon any award rendered by the arbitrators may be entered in any court having jurisdiction thereof.

Another provision of the agreement made the arbitration provision binding on Jansen's potential heirs. The relevant paragraph reads as follows:

25. BINDING EFFECT: This agreement and its terms shall be binding upon my heirs, executors, successors, administrators, assigns, committee and conservators ("successors"). In the event of my death, incompetency, or disability, whether or not any successors of my estate and property shall have qualified or been appointed, you may continue to operate as though I were alive and competent and you may liquidate my account as described in Paragraph 15 above without prior notice to or demand upon my successors. This agreement shall inure to the benefit of your assigns and successors, by merger, consolidations or otherwise (and you may transfer my accounts to any such successors and assigns).

Plaintiffs allege that Jansen wished to bequeath to them collectively a one-half interest in both the Keogh Plan and the IRA, with the remaining interest going to Jansen's wife. Plaintiffs claim that defendant Scozzaro, a financial advisor for Salomon Smith Barney, assured Jansen that plaintiffs would receive their portion of the account at the time of his death.

Upon Jansen's death, defendant Salomon Smith Barney refused to distribute any of the proceeds in the Keogh Account to the plaintiffs.*fn1 Federal law prohibits distribution of the proceeds of such an account to anyone other than the decedent's spouse absent the spouse's written waiver and consent. 26 U.S.C.A. §401(a)(11); 26 U.S.C.A. §401(d); see also Edelman v. Smith Barney, Inc., 55 F.Supp.2d 218 (S.D.N.Y. 1999). Plaintiffs subsequently filed this action claiming that defendants had negligently advised their father that the interest in the Keogh Account would pass to them. Defendants argue that the dispute is subject to arbitration in accord with the Client Agreement signed by Jansen.

II.

We begin by recognizing the well settled public policy favoring arbitration. Cty. Coll. of Morris Staff v. Cty. Coll. of Morris, 100 N.J. 383, 390 (1985); Barcon Assocs. v. Tri-County Asphalt Corp., 86 N.J. 179, 186 (1981); Littman v. Morgan Stanely Dean Witter, 337 N.J. Super. 134, 148-49 (App. Div. 2001). New Jersey law comports with its federal counterpart in striving to enforce arbitration agreements. Yale Materials Handling Corp. v. White Storage & Retrieval Systems, 240 N.J. Super. 370, 375 (App. Div. 1990); see also Federal Arbitration Act, 9 U.S.C. §2; N.J.S.A. 2A:24-1. An agreement relating to arbitration should thus be read liberally to find arbitrability if reasonably possible. Marchak v. Claridge Commons, Inc., 134 N.J. 275, 282 (1993); Caruso v. Ravenswood Developers, Inc., 337 N.J. Super. 499, 503 ...


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