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Temm v. LPL Financial LLC.

Superior Court of Maine, Cumberland

April 15, 2016

WILLIAM TEMM and DALE TEMM, Plaintiffs
v.
LPL FINANCIAL LLC, TRSS WEALTH MANAGEMENT LLC, MICHAEL A. REED, BRUCE SAWYER, ANDREW C.STICKNEY and THOMAS M. BRUNELLE, Defendants.

          ORDER ON MOTION TO STAY PROCEEDINGS AND COMPEL ARBITRATION

          A. M. HORTON, JUSTICE.

         This case is before the court on the Motion to Stay Proceedings and Compel Arbitration filed by Defendant LPL Financial LLC ["LPL"], along with the Plaintiffs' opposition thereto, and LPL's reply. Also before the court is Plaintiffs' Motion for Expedited Discovery, Depositions and Interrogatories, with Defendants' opposition thereto.

         The court elects to decide both motions without oral argument. See M.R. Civ. P. 7(b)(7).

         Background:

         According to Plaintiffs' Complaint[1] in this case, Plaintiff William Temm is a certified financial advisor with more than 30 years of experience, and is married to Plaintiff Dale Temm. In 2002, William Temm and Defendants Michael Reed, Bruce Sawyer and Andrew Stickney formed TRSS Wealth Management LLC, a firm providing financial advisory and management services. Shortly thereafter, Mr. Temm and the others each entered into a Representative Agreement with LPL, which is a broker dealer in securities.

         Plaintiffs' Complaint alleges that the Defendants are liable for a variety of wrongful acts and omissions involving William Temm. Dale Temm asserts derivative claims for loss of consortium.

         Defendant LPL's Motion to Stay Proceedings and Compel Arbitration asserts that Mr. Temm's Representative Agreement with LPL contains a mandatory arbitration clause, and is supported by an affidavit incorporating a copy of the Representative Agreement. See Affidavit of Brad Jacobs, Ex. A, section 7(C).

         Plaintiffs' Motion to Expedite Discovery is based on Mr. Temm's allegation that he has been diagnosed with amyotrophic lateral sclerosis (ALS), and may have only a short time left to live. He also asserts that the ALS diagnosis is a reason not to compel him to submit his claims against LPL to arbitration.

         Analysis

         1. LPL Motion to Stay Proceedings and Compel Arbitration

         As a prefatory matter, it should be noted that whether to enforce the arbitration provision on which LPL relies is to be decided under Maine law, to be determined under the Maine Arbitration Act and the jurisprudence associated with it, see 14 M.R.S. §§5927 et seq., whereas interpretation of the arbitration provision and other provisions of the Representative Agreement is governed by Massachusetts law. The Representative Agreement between LPL and Mr. Temm recites that it is to be construed in accordance with Massachusetts law. See Affidavit of Brad Jacobs, Ex. A, section 7(B).

         The Maine Arbitration Act provides, in pertinent part: "A written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract." 14 M.R.S. § 5927.

         LPL's Motion establishes that Mr. Temm's written contract with LPL contains the following arbitration provision:

Representative hereby expressly agrees to submit to final and binding arbitration before the National Association of Securities Dealers, Inc. any and all disputes, claims or controversies relating to Representative's association with or termination from LPL. Representative expressly gives up the right to sue in a court of law or equity, including the right to trial by jury. Specific examples of disputes, claims or controversies that are required to be arbitrated include, but are not limited to, allegations of unlawful ...

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