A group of plaintiffs collectively named as Nemaha Water Services moved to compel arbitration before FINRA. In a cross-motion, Esposito Securities moved to compel arbitration before the AAA. The trial court denied Nemaha’s motion and granted Esposito’s, sending the case to AAA arbitration. In a hybrid interlocutory appeal and mandamus proceeding, the Dallas Court of Appeals reversed and sent the case to FINRA. Nemaha had signed a letter agreement in which it had agreed to pay Esposito 5% of the total consideration received in a qualifying investment or merger. The contract included a AAA arbitration provision, but the Court of Appeals held that clause was trumped by the FINRA rules, at least in this instance. The case turned on the question of whether Nemaha was a “customer” of Esposito, which would entitle it to invoke arbitration under the FINRA rules. Applying the ordinary meaning of “customer,” the Court held that Nemaha qualified even though it had not paid Esposito the contractual commission. Because Nemaha had contracted with Esposito — a member of FINRA — to purchase financial services for a fee, the Court concluded that Nemaha was entitled to invoke FINRA arbitration. The Court noted, however, that there is authority for the proposition that FINRA arbitration can be superseded by contract, although that was not the case this time.

Morford v. Esposito Sec., LLC, No. 05-14-01223-CV

Bermuda Supreme Court Waives Hedge Fund Investors’ Claims

Starting off our review of Friday night’s wave of opinions is a hedge fund securities case arising out of the 2008 financial crash. Plaintiffs contended that the defendants had falsely misrepresented that other investors’ redemption requests “were not significant,” leaving them in the lurch when the fund imploded. The trial court granted summary judgment for the defendants, and the Court of Appeals affirmed. Plaintiffs sought to avoid a “scheme of arrangement” issued by the Bermuda Supreme Court that established how the fund was to be liquidated, but the Court of Appeals held that the plaintiffs were bound by that instrument as a foreign judgment. The Court also held that there was no evidence of reliance by the plaintiffs on the defendants’ alleged misrepresentations, concluding that their testimony was speculative on what they would have done if they had been informed of the true rate of redemption.

LV Highland Credit Feeder Fund LLC v. Highland Credit Strategies Fund, LP, No. 05-13-01118-CV

Supreme Court Update: Viatical Settlements Are Indeed Securities

In August 2013, the Dallas Court of Appeals held that “viatical settlements” — basically, interests in bought and resold life insurance policies — were securities within the scope of the Texas Securities Act. Likely because of a conflict between that holding and a previous case out of the Waco Court of Appeals, the Supreme Court granted the petition for review and set the case for oral argument. This morning, the Supreme Court unanimously affirmed the Dallas court’s opinion, finally confirming that the trial court had erred in granting summary judgment for the defendants. The case was remanded for further proceedings, presumably including trial on the merits.

Life Partners, Inc. v. Arnold, No. 14-0122

Supreme Court Update: Are Viatical Settlements Securities?

In 2013, the Dallas Court of Appeals held that “viatical settlements” — basically, interests in life insurance policies purchased and then resold by Life Partners, Inc. — were securities subject to the Texas Securities Act. Given that the opinion expressly rejected a contrary holding from the Waco Court of Appeals, we predicted that this would be a good candidate for review by the Texas Supreme Court. And in fact, that court granted the petition for review today, consolidating the case for oral argument with another Life Partners case out of the Austin Court of Appeals. The argument has been set for January 15, and we will keep you posted when an opinion is issued.

Previously: Viatical Settlements Are Securities (Aug. 29, 2013)

No Control, No Liability

Seib Family GP and Richard Seib purchased a limited liability company that owned a 60-acre tract in a warehouse district adjoining the Trinity River levee in Dallas. Two years later, Seib sued the bank that held the note on the property, alleging that it was liable under the Texas Securities Act because it had failed to disclose its knowledge that the levee was “in jeopardy” and “being decertified” by the Corps of Engineers. The trial court granted traditional summary judgment for the bank, and the Court of Appeals affirmed. To the extent that Seib alleged direct seller liability by the bank, that claim failed because the bank was only a lender, not a seller of the LLC. Nor could the bank be liable under the TSA for secondary liability, as the evidence demonstrated — and Seb did not contest — that the bank did not and could not exercise control over the operation of the purchased LLC.

Seib Family GP, LLC v. Bank of the Ozarks, No. 05-12-01171-CV

Viatical Settlements Are Securities

What, you may be asking yourself, is a viatical settlement? A new securities opinion from the Dallas Court of Appeals provides the answer to that question, and in the process examines the scope of the Texas Securities Act. Life Partners, Inc. is in the business of buying life insurance policies and reselling interests in those policies to investors, transactions known as “life settlements” or “viatical settlements.” The purchasers of those policies are not told what Life Partners paid for them, and Life Partners remains the owner of the policies while holding them as the agent for the investors. Several of the company’s investors filed suit for violations of the TSA, alleging that the life settlements were actually investment contracts that qualified as securities under the TSA. The trial court court granted summary judgment for Life Partners.

The case turned on the question of whether the profits sought by the investors of these viatical settlements were derived “solely from the efforts of others,” one of the four factors for determining whether investment contracts qualify as securities under SEC v. W.J. Howey Co., 328 U.S.293 (1946) and Searsy v. Commercial Trading Corp., 560 S.W.2d 637 (Tex. 1977). After a detailed analysis of a line of cases holding that viatical settlements were not securities, the Court disagreed. Because the investors were dependent upon Life Investors for the evaluation and purchase of the policies, and because they were also required to rely on Life Investors for information about the insureds, the profits were indeed derived solely from the efforts of Life Partners. In so holding, the Court expressly disagreed with the Waco Court of Appeals, which had reached the opposite conclusion in a previous case, and instead followed rulings by the 11th Circuit, the Tyler Court of Appeals, and several courts in other states. In doing so, the Court rejected Life Partners’ argument that it was engaged in the business of selling insurance, which is exempted from regulation by the TSA. Finally, the Court determined that while the claims of the two lead plaintiffs were barred by limitations, some of the claims of two other plaintiffs had been timely filed and could proceed on remand to the trial court.

Given the split of authorities, this case would seem to be a candidate for review by the Texas Supreme Court. We’ll keep you updated if it proceeds in that direction.

Arnold v. Life Partners, Inc., No. 05-12-00092-CV

No Cash for the Class, No Cash for Counsel

In 2009, a class of shareholders challenged the stock-for-stock merger between Centex Corp. and Pulte Homes, charging that the board breached its fiduciary duties by failing to obtain an adequate price for the shareholders.  As often happens, the parties quickly settled, and Centex and Pulte agreed to disclose additional information about the merger in the proxy statements.  While the settlement provided class counsel with a hefty cash payment of attorneys’ fees, the shareholder’s reward was simply more information.

Rocker raised several objections to the settlement, but his most salient objections were (1) that the settlement’s release was too broad because it waived all known and unknown claims without granting the shareholders an opportunity to opt-out; and (2) that class counsel could not recover their attorneys’ fee in cash, when the class received only injunctive relief.  The Court credited both of Rocker’s arguments.  Regarding the first, the Court held that “[i]f appellees require a ‘limitless release,’ then due process requires that class members be afforded the option to be excluded from the class.” Regarding the second, it found that “if there is no cash recovery for the class, fees could not be awarded in cash, regardless of the value of the benefit to the class.”    The Court then remanded the case to the trial court for further proceedings.

Rocker v. Centex Corp, No. 05-10-00903