FINRA arbitrators have rejected a $15 million claim by Charles Schwab against Morgan Stanley.
The dispute centered on Schwab’s accusations that Morgan Stanley had “poached” a group of financial consultants and other employees in California and in doing so had obtained confidential information. The three-member FINRA panel, though, recently disagreed, asking Morgan Stanley to pay only about $71,600 in sanctions.
Experts point out that Schwab, which has a large retail branch network and is the largest custodian for RIAs, is not part of the broker protocol in which broker-dealers agree to certain terms when advisors switch firms. Namely, advisors are prohibited from talking to clients about their move until after it is wrapped up; they are, however, able to take client contact information with them.
Industry expert Danny Sarch of Leitner Sarch Consultants in White Plains, N.Y., says brokerage firms that aren’t part of the protocol can really “take offense” when advisors leave. These firms may see client assets coming to advisors as business that “belongs to the firm,” though. This is because clients are usually in the Schwab business model thanks to Schwab’s retail presence rather than the particular advisor at the branch, he explains.
“But regardless of whether or not a firm is in the protocol, if [its recruited advisors] are seen as taking client information to the new firm, the [new] firm is going to have a problem,” Sarch explained, in an interview.
Schwab says that it “strongly disagrees with the panel’s decision.” The firm is “evaluating our legal options,” a spokesperson explained in a statement.
“The claims in this case were compelling, including instances of taking proprietary information, manufacturing evidence, and operating a steady raid on staff and clients resulting in significant damage to Schwab,” the company added.
In addition, the San Francisco-based brokerage firm explains that it sees the arbitration decision as “an anomaly, and will pursue an aggressive course of legal action should other similar situations occur.”
Schwab first raised its complaints against Morgan Stanley in 2012. It claims that the wirehouse firm conducted “intentional and with malice orchestration of an actionable raid on Schwab’s West Portal Avenue office” in San Francisco, as well as “tortious interference with and inducement of the breach of numerous contracts between Schwab and its employees, including without limitation the employees’ obligations not to use or disclose confidential and trade secret information, not to solicit Schwab’s employees, and to provide notice of their resignation.”
Morgan Stanley declined to comment on the matter.
Overall, the position of New York-based Morgan Stanley, as a member of the protocol, is that “if the hiring firm follows the rules, even if the other party doesn’t, it can say it’s done nothing illegal,” according to Sarch.
Schwab’s view, on the other hand, is that it isn’t part of the protocol and “has clean hands, because it doesn’t recruit experienced advisors expecting them to take their clients with them,” Sarch explains. “So it may have a stronger case in front of a judge.”
As Sarch points out, it will be interesting to see how this case and similar ones play out in the legal system. “It’s tricky,” he said. “I can see both sides.”