I think they may have done just that, at least in Missouri. Us kids who work with or in the financial services industry know that brokers like Edward Jones frequently run to court when a broker leaves them. They seek a TRO, ostensibly to prevent the broker from misusing confidential information or violating a non-complete agreement. Fair enough.
Now, ask yourself – When is the last time the financial adviser went to court to seek some kind of equitable relief? Almost never, in part because the circumstances that would invite equitable relief for the adviser himself are much narrower.
According to the typical Investment Adviser Account Agreement between the financial adviser and the broker-dealer, both parties are required to resolve their disputes in a FINRA Arbitration. Would that arbitration clause be binding in the Eastern District? Or does it lack the requisite mutuality, since, in effect, only the broker-dealer can avail itself of the state and federal courts?
Last month, in the case of Jimenez v. Cintas Corp., No. ED 1011015 (2014), the Court of Appeals affirmed the trial court’s refusal to grant arbitration of Ms. Jimenez’ employment discrimination claim. The Court’s affirmation rested upon its own conclusion that the parties’ “Employment Agreement” contained a binding arbitration clause that excluded claims for declaratory judgment or injunctive relief concerning the employees covenants only. The covenants include confidentiality and competition obligations. Id. at 3. Therefore, the agreement to arbitrate lacked uniformity. As such, the employer’s “promise to arbitrate [was] devoid of mutuality of obligation. Accordingly, [employer’s] professed promise to arbitrate [was] not valid consideration and does not support a determination that the parties formed a valid agreement.” Id. at 14.
The Court of Appeals observed initially that the contract at issue was “bilateral”, and that valid consideration for a bilateral contract “rests solely on whether the parties promises to each other are mutually binding.” Since, in effect, the employer could still side-step arbitration in non-compete matters, the promises to arbitrate were not equally binding. Id. At 9. More specifically, citing Frye v. Speedway Chevrolet Cadillac, 321 S.W.3d 429 (Mo. App. W.D. 2010), the Court stated:
“A contract that purports to exchange mutual promises will be construed as lacking legal consideration if one party retains the right to unilaterally divest itself of an obligation to perform the promise initially made.”
The following analysis should bring a chill to the broker-dealer’s in-house counsel, or counsel for any party that blindly succeeds in divesting itself of a contractual obligation to perform a mutual promise, whether it be arbitration, confidentiality, or competition:
Section 8 of the Agreement requires that Cintas and Jimenez arbitrate any unresolved “claims for damages, as well as reasonable costs and attorney’s fees, caused by [the other]’s violation of any provision of this Agreement or any law, regulation or public policy.” However, it expressly exempts from arbitration: “workers’ compensation claims, unemployment benefits claims, clams for a declaratory judgment or injunctive relief concerning any provision of Section 4 and claims not lawfully subject to arbitration. . . .”
Defendants argue that the above terms in Section 8 plainly require both parties to arbitrate their disputes, with several exceptions, and these terms should be construed as “mutual in all relevant respects.” On its face, we agree that the language in Section 8 plainly states that both parties must arbitrate all of their claims except: workers’ compensation claims, unemployment benefits claims, claims not lawfully subject to arbitration, and “claims for a declaratory judgment or injunctive relief concerning any provision of Section 4 . . . .”
Jimenez, however, correctly points to additional language in Section 4, providing that only the:
Employer[,] may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction or other injunctive relief to enforce Employee’s compliance with the obligations, acknowledgments and covenants in this Section 4. Employer may also include as part of such injunction action any claims for injunctive relief under any applicable law arising from the same facts or circumstances as any threatened or actual violations of Employee’s obligations, acknowledgments and covenants in this Section 4.
The effect of the language in Section 4, Jimenez asserts, is that Cintas alone is exempted from arbitrating alleged violations of the Non-Compete Provisions.
Defendants reply that the plain terms of Section 8 do not specify which party may seek judicial relief for alleged violations of the Non-Compete Provisions of Section 4, and so we should construe Section 8 to mean that both parties are exempt from arbitrating alleged violations of the Non-Compete Provisions of Section 4. But this interpretation would render meaningless the express language of Section 4, which provides that Cintas alone may apply “for a temporary restraining order, preliminary injunction or other injunctive relief to enforce [Jimenez]’s compliance with the obligations, acknowledgements and covenants in this Section 4.”
We construe a contract as a whole so as not to render any terms meaningless. See Chochorowski v. Home Depot U.S.A., 404 S.W.3d 220, 229 (Mo. banc 2013). Furthermore, when construing the language of a contract, specific terms and provisions are given preference over general terms. See General American Life Ins. Co. v. Barrett, 847 S.W.2d 125, 133 (Mo. App. W.D. 1993). We, therefore, cannot ignore the specific language of Section 4.
We agree with Jimenez that Cintas alone is exempted from arbitrating disputes concerning Section 4’s Non-Compete Provisions, while Jimenez is bound to arbitrate those same claims. We also agree that this exception allows Cintas to refrain from arbitrating those claims it is most likely to bring against Jimenez. [Footnote excluded]. At the same time, Jimenez is bound to arbitrate all of those claims legally arbitrable. [Footnote excluded]. Thus, the Agreement allows Cintas to seek redress through the court system for those claims it is most likely to have against Jimenez, while binding Jimenez to arbitrate all legally arbitrable claims she may have against Cintas.
Equally critical to resolution of this issue is that the plain language of Section 4 allows Cintas to file “any claims for injunctive relief under any applicable law arising from the same facts or circumstances as any threatened or actual violation of Employee’s obligations . . . in this Section 4.” (Emphasis added). This expansive clause arguably renders illusory Cintas' promise to arbitrate, by permitting Cintas to seek redress in the courts based upon its bare allegation that such claims are tied to Section 4’s Non-Compete Provisions. Cintas may litigate at its discretion, while Jimenez is bound to arbitrate all of her legally arbitrable claims.
Where the practical effect of an arbitration agreement binds only one of the parties to arbitration, it lacks mutuality of promise and is devoid of consideration.
Id. At 11-13. Food for thought when evaluating the enforceability of an arbitration clause in Missouri.