In Jevne v. Superior Court (2005) 35 Cal.4th 935, investors brought an action against a brokerage and financial services firm.
The firm moved to compel arbitration based on the parties' arbitration agreement stating all disputes "would be resolved by arbitration in accordance with the National Association of Securities Dealers (NASD) Code." (Jevne, supra, 35 Cal. 4th at p. 941.)
In 2001, the parties selected a three-arbitrator panel pursuant to NASD procedures and the firm filed a demurrer, which was sustained with leave to amend. Before the hearing set for the second demurrer, one of the arbitrators voluntarily disqualified himself. (Id. at p. 944.)
Before a new arbitrator was appointed the California Standards took effect. The NASD suspended the proceedings and asked the investors "to sign a statement waiving application of the California Standards." (Id. at p. 943.)
The investors would not agree to the waiver and asked the superior court to set aside the prior order compelling arbitration. The court denied the motion and the investors petitioned the appellate court for a writ of mandate. (Ibid.)
The appellate court denied the petition after concluding the California Standards were not preempted by the FAA, but conflicted with and were preempted by the SEA. The Supreme Court granted the investor's petition for review.
The Supreme Court agreed with the appellate court that the SEA preempts the California Standards for arbitrations governed by NASD rules.
Additionally, it concluded:
"Under the circumstances of this case, . . . the delay in arbitrator selection and appointment, resulting from uncertainty regarding the applicability of the California Standards, does not relieve plaintiffs of their duty to arbitrate." (Jevne, supra, 35 Cal.4th at p. 941.) In light of the above, the court found it pointless to address the FAA preemption issue. (Ibid.)
It is unnecessary to repeat all the reasons given by the Supreme Court in finding preemption. Suffice it to say, the court determined some of the California Standards' disclosure and disqualification requirements would prevent or "impair accomplishment of the goals of the NASD Code, and thereby the goals of the SEA." (Jevne, supra, 35 Cal. 4th at p. 956.) It was decided the circumstances warranted a finding of "conflict preemption." (Id. at pp. 956-960.)
The California Supreme Court considered the interplay between the California Standards and the National Association of Securities Dealers, Inc., Code of Arbitration Procedure (NASD Code).
Plaintiff Jevne filed an action against a brokerage and financial services firm and a member of the NASD, asserting causes of action for negligence and breach of fiduciary duty.
The firm moved to compel arbitration, based on the arbitration provisions in an agreement relating to Jevne's account.
The provision required all disputes to be settled through binding arbitration in accordance with the rules and procedures of the NASD. The trial court granted the firm's motion to compel. (Id. at pp. 941-942.)
in September 2002, during arbitration proceedings, one of the arbitrators recused himself. in July 2002 the NASD had ceased appointing arbitrators in NASD arbitrations in California in light of the California Standards imposing new ethical obligations on arbitrators.
The NASD informed Jevne it would not appoint a replacement arbitrator and would not proceed with the arbitration unless Jevne agreed to waive the California Standards or agreed to have the arbitration conducted in another state. (Jevne, supra, 35 Cal.4th at p. 943.)
Jevne refused and filed a motion to set aside the court's prior order compelling arbitration. The trial court denied the motion. (Ibid.)
The appellate court denied Jevne's petition for a writ of mandate. Although the court concluded that the Judicial Council had acted within its authority in drafting the California Standards, and that they are not preempted by the FAA, the court also concluded the California Standards conflicted with, and are preempted by, the Securities Exchange Act (SEA).
The Supreme Court granted review. (Id. at p. 944.)
The Supreme Court began by noting that the SEA contains no express preemption provisions. Accordingly, the court found neither express preemption nor field preemption at issue. (Jevne, supra, 35 Cal.4th at p. 950.) Instead, the court considered only conflict preemption: when it is impossible to comply with both federal and state law, and when the state law could prevent or impair accomplishment of the purposes and objectives of the federal law. (Ibid.)
In Jevne, the plaintiff argued the NASD Code did not have the preemptive force of federal law, and as a consequence, the California Standards could conflict with the NASD Code without necessarily being preempted by the SEA. After reviewing the preemptive force of the NASD Code, the Court concluded: "Because the Securities and Exchange Commission (SEC) now reviews all self-regulatory organizations (SRO) rules, any of those rules may be germane to the SEA's goals of fair dealing and investor protection. Whether a particular rule is germane to the congressional purposes is a matter to be determined by careful examination of the rule's contents and consideration of any public pronouncements by the SEC concerning the rule's purpose and effect. As the federal agency entrusted with enforcement of the SEA, the SEC's approval of an NASD rule is an expression of federal policy that may have preemptive effect. SEC approval will have preemptive effect if the SEC intended that the rule prevail over conflicting state law and if the SEC's decision was not arbitrary or in excess of its statutory authority." (Jevne, supra, 35 Cal.4th at p. 953.)
The court went on to consider whether California Standards, standard 7, which sets forth the matters that must be disclosed by a person nominated or appointed as an arbitrator, and standard 10, governing disqualification, conflicted with the NASD Code sections on disclosure and disqualification. (Jevne, supra, 35 Cal.4th at pp. 954-956.)
The court found it was not impossible to comply with the disclosure requirements of both the California Standards and the NASD Code. According to the court, for matters required to be disclosed by the California Standards, the arbitrator would make disclosure directly to the parties, as required by the California Standards. For matters required to be disclosed by the NASD Code, the arbitrator would make the disclosure to the director of arbitration, as required by the NASD Code. (Jevne, supra, 35 Cal.4th at p. 956.)
However, the court also found, after considering numerous SEC documents and briefs, that the California Standards disclosure requirements would impede or impair accomplishment of the goals of the NASD Code. The SEC argued the California Standards adversely affected NASD arbitrators in three ways: by increasing administrative costs associated with the more detailed disclosure requirements, by reducing the number of available arbitrators, and by reducing the uniformity and consistency of NASD arbitrators by imposing special requirements applicable in only one state. (Jevne, supra, 35 Cal.4th at p. 956.)
The court noted that in deciding whether a state law conflicts with a federal law by hindering the complete accomplishment of the federal law's objective, considerable weight is given to the views of the federal agency charged with administrating the federal law. (Id. at p. 958.)
The Court found the case for preemption even more compelling as to the California Standards's disqualification provision. (Jevne, supra, 35 Cal.4th at pp. 958-959.)
The Court found the disqualification provision of the California Standards conflicts with the disqualification rules under the NASD "insofar as it deprives the Director of Arbitration of authority to determine whether, after an arbitrator has been appointed, that arbitrator should be disqualified on the ground of bias or interest. Under standard 10 of the California Standards, disqualification is automatic if a party timely serves a notice of disqualification in any of the circumstances described in the standard, some of which may occur after an arbitrator has been selected and appointed. Under the NASD Code, after an arbitrator is appointed, a party may seek disqualification of the arbitrator by making an objection, but it is the Director of Arbitration who makes the disqualification determination. This may often require the exercise of judgment to determine whether information that the arbitrator disclosed after appointment, or failed to disclose before appointment, sufficiently demonstrates a disqualifying bias or interest. These different systems of arbitrator disqualification are fundamentally irreconcilable because application of standard 10 could require disqualification of an arbitrator who could not be disqualified under the NASD rules because the Director of Arbitration had determined that the arbitrator did not have a disqualifying bias or interest." (Jevne, at p. 958.)
The Court also noted the SEC had expressed the view that the California Standard's disqualification provision conflicts with the NASD Code in a way that "threatens to frustrate the congressional goals and objectives underlying the SEA." (Jevne, supra, 35 Cal.4th at p. 959.)
The SEC staff concluded the added opportunities under the California system for disqualification of arbitrators may increase the complexity, cost, and uncertainty of the arbitration process. (Id. at pp. 959-960.) Such a result would "serve the interests of well-financed brokerage firms, while the average investor would suffer from protracted and costly proceedings." (Id. at p. 960.)
The Court concluded the SEC's approval of the NASD disqualification code and its related pronouncements "reflect its determination that the NASD Code's provisions governing arbitrator selection should prevail over conflicting state law, and this determination is neither arbitrary nor in excess of its statutory authority." (Ibid.) Therefore, the Court found the SEA, through the SEC's approval of the NASD Code, preempts the California Standards dealing with disclosure and disqualification.