Motion to Compel Arbitration in Marev Holdings, Inc. v. Hlm Capital Llc a/k/a HLM Capital Management Group, Charles Margolis| Trellis.Law

On November 27, 2023 a Motion-Secondary was filed involving a dispute between Marev Holdings, Inc., and Charles Margolis, Hlm Capital Llc A K A Hlm Capital Management Group, for Commercial Division - Contract in the District Court of Nassau County.

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FILED: NASSAU COUNTY CLERK 03/25/2024 04:55 PM INDEX NO. 619258/2023
NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 03/25/2024

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
--------------------------------------------------------------------------X
MAREV HOLDINGS, INC.,
Index No.: 619258/2023
Plaintiff,

-against- Motion Seq. #001

HLM CAPITAL, LLC, A/K/A HLM CAPITAL
MANAGEMENT GROUP and CHARLES MARGOLIS,

Defendants.
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MAREV HOLDINGS, INC.’S MEMORANDUM OF LAW IN OPPOSITION TO
DEFENDANTS’ MOTION TO COMPEL ARBITRATION AND DISMISS OR STAY
PROCEEDINGS

COHEN TAUBER SPIEVACK & WAGNER P.C.
420 Lexington Avenue, Suite 2400
New York, NY 10170
Tel.: (212) 586-5800

Attorneys for Plaintiff Marev Holdings, Inc.

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TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................................... ii

PRELIMINARY SUMMARY STATEMENT ............................................................................... 1

FACTUAL AND PROCEDURAL BACKGROUND.................................................................... 2

ARGUMENT .................................................................................................................................. 3

I. DEFENDANTS HAVE NOT MET THEIR BURDEN TO SHOW AN AGREEMENT
TO ARBITRATE .................................................................................................................... 3

A. Defendants have provided no documentation of an agreement to arbitrate........................ 3

B. The arbitration agreement language is far from clear and unmistakable. ........................... 3

C. Defendants provide no evidence HLM Capital, LLC is an agent of WFAFN. .................. 6

D. There was no “meeting of the minds” with respect to arbitration between Defendants
and Plaintiffs and therefore no valid agreement to arbitrate exists. ................................... 7

E. In assessing the motion to compel arbitration, this Court must draw all reasonable
inferences in favor of the non-moving party. ..................................................................... 7

F. The ambiguities and questions of fact at issue prevent the court from compelling
arbitration. .......................................................................................................................... 8

G. The arbitration language in the Client Agreement requires scrutiny as to its
applicability. ....................................................................................................................... 8

CONCLUSION ............................................................................................................................. 10

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TABLE OF AUTHORITIES

Page(s)

Cases

Blizzard Cooling, Inc. v. Park Developers & Builders, Inc.,
134 A.D.3d 867 (2d Dep’t 2015) ...............................................................................................4

Cheng v David Learner Assoc., Inc.,
35 Misc 3d 1238(A) (Sup. Ct. Kings County 2012) ..................................................................9

Civ. Serv. Employees Ass’n, Inc. v. Baldwin Union Free Sch. Dist.,
84 A.D.3d 1232 (2d Dep’t 2011) ...........................................................................................4, 7

Dean v. Harvestime Tabernacle United Pentecostal Church Intern.,
79 A.D.3d 793 (2d Dep’t 2010) .................................................................................................8

Decker v NBCUniversal Media, LLC,
2018 WL 4849367 (N.Y.Sup.), 2018 N.Y. Slip Op. 32504.......................................................7

DiGregorio v. Long Is. Univ.,
221 A.D.3d 780 (2d Dep’t 2023) ...............................................................................................3

Giffone v. Berlerro Group, LLC,
163 A.D.3d 780 (2d Dep’t 2018) ...............................................................................................4

Kowalchuk v. Stroup,
61 A.D.3d 118 (1st Dep’t 2009) ................................................................................................7

Munzer v. St. Paul Fire and Mar. Ins. Co.,
145 A.D.2d 193 (3d Dep’t 1989) ...............................................................................................7

Ross v Am. Exp. Co.,
547 F3d 137 (2d Cir 2008).........................................................................................................6

Rubinstein v. C & A Mktg., Inc.,
205 A.D.3d 832 (2d Dep’t 2022) ...............................................................................................8

Santiago v. Joyce,
127 A.D.3d 954 (2d Dep’t 2015) ...............................................................................................7

Shah v. Monpat Const., Inc.,
65 A.D.3d 541 (2d Dep’t 2009) .................................................................................................4

Matter of Smith Barney Shearson Inc. v. Sacharow,
91 N.Y.2d 39 (1997) ..................................................................................................................3

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Sunbelt Rentals, Inc. v. Charter Oak Fire Ins. Co.,
839 F. Supp. 2d 680 (S.D.N. Y 2012)........................................................................................7

Wen Zong Yu v Charles Schwab & Co., Inc.,
34 Misc 3d 32 (App Term 2011) ...............................................................................................9

Williams v Dillon & Co., Inc.,
243 A.D.2d 559 (2d Dept 1997) ................................................................................................9

Other Authorities

CPLR 7503(a) ............................................................................................................................8, 10

CPLR § 3212(b) ...............................................................................................................................7

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Plaintiff Marev Holdings, Inc. respectfully submits this memorandum of law in opposition

to Defendants’ motion to compel arbitration and dismiss or stay proceedings.

PRELIMINARY SUMMARY STATEMENT

There is no arbitration agreement between Plaintiff and Defendants. Defendants present

an unsigned agreement dated December 2023 and a signature page dated December 2011 that does

not identify the counter party, or the substance of the document being signed. Defendant has not

produced any evidence that Plaintiff signed a pre-dispute arbitration agreement with Defendant.

The unsigned December 2023 agreement is with Wells Fargo Clearing Services, LLC

(“WFCS”) or Wells Fargo Advisors Financial Network, LLC (individually “WFAFN” and together

with WFCS “WELLS ADVISORS”) together with their affiliates1, not with any of the Defendants.

Defendants’ assertion that they are agents of WELLS ADVISORS for all purposes,

including Defendants’ misdeeds underlying the causes of action, is contrary to logic and clear

precedent, as well as counter to WELLS ADVISORS’s own statements that (i) Defendant is an

independent contractor, (ii) Defendant HLM’s representations and characterizations on its website,

and (iii)statements made to Plaintiff when his account was opened with HLM.

As set forth below, the question of arbitrability is an issue for judicial determination.

Before arbitration may be compelled, the moving party must introduce clear and unmistakable

evidence that the parties agreed to arbitrate. In cases where a party disputes whether it is bound to

an arbitration agreement, the burden of proof is on the movant.

This case is not about whether an arbitration provision contained in a brokerage agreement

is generally enforceable. This case is about the movants’ burden to show that a contractual

1
The agreement defines “affiliates” very specifically as only entities that are controlled by, control, or are under
common control with WELLS ADVISORS. (Affirmation of Jessica E. Levine (“Levine Aff.”) Ex. B page 1, section
I.1.)
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agreement with a pre-dispute arbitration provision exists, and that Defendants and Plaintiff are

parties to such an agreement. Plaintiff’s dispute is not with WELLS ADVISORS, or any action

WELLS ADVISORS took, but with HLM and Margolis, and the actions they took. Defendants are

independent contractors of WELLS ADVISORS. On their webpage, they describe themselves as a

team of nine individuals operating as the HLM Capital Management Group, with Mr. Margolis

one of those nine. There is no indication that they are agents of WELLS ADVISORS. Plaintiff’s

dispute is with Defendants who state on their webpage “by electing to work with a limited number

of clients, we are able to devote our full attention to you and your family.” Defendants cannot

publicly represent to clients they are a small financial advisory team providing personal attention

and then argue in this Court that all their actions are those of WELLS ADVISORS.

FACTUAL AND PROCEDURAL BACKGROUND

Defendants provide no evidence of a signed agreement to arbitrate. The December 2023

“General Account Agreement and Disclosure Document” (“Client Agreement,” Levine Aff. Ex. B)

is not signed. Plaintiff’s 2011 signature on a separate document (Levine Aff. Ex. C) does not and

cannot evidence Plaintiff’s acceptance of language in an agreement dated twelve years later in 2023.

Plaintiff’s 2011 signature related to agreements with Wells Fargo Bank. When Defendant

Margolis left Wells Fargo to start his own firm in 2019, he represented to Plaintiff’s President

Martin Oliner that use of WELLS ADVISORS was for a limited purpose of clearing trades. Oliner

Affirmation, signed on March 25, 2024 (“Oliner Aff.”) ¶ 5. Consistent with HLM’s presentation

on its website, use of WELLS ADVISORS, and therefore any connection between HLM and

WELLS ADVISORS, is for a limited purpose. Plaintiff’s engagement of HLM went beyond trade

clearing performed for HLM by WELLS ADVISORS. Id. at ¶ 7. Based on the representations of

Defendant Margolis on or about the time of account opening, and the ongoing presentation of

Defendant HLM on its website, Plaintiff never understood or intended for any agreement to arbitrate
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with Wells Fargo in 2011 to extend to arbitration of all claims with Defendants. Oliner Aff. ¶ 8.

Because there is no clear and unmistakable evidence of even a signed agreement, much

less a signed declaration that the parties agreed to arbitrate, this Court should permit this case to

proceed in this forum.

ARGUMENT

I. DEFENDANTS HAVE NOT MET THEIR BURDEN TO SHOW AN AGREEMENT
TO ARBITRATE

A. Defendants have provided no documentation of an agreement to arbitrate.

It is well settled that arbitration is a creature of contract law. The burden is on the party

seeking arbitration to demonstrate a “clear and unequivocal” agreement to arbitrate. DiGregorio

v. Long Is. Univ., 221 A.D.3d 780, 781 (2d Dep’t 2023) (“A party seeking to compel arbitration

must establish existence of valid agreement to arbitrate.”) (internal quotation marks and citations

omitted). If the party seeking arbitration cannot meet this burden, arbitration cannot be compelled.

Id. And it is well settled that “the question of arbitrability is an issue generally for judicial

determination in the first instance” unless the agreement clearly and unmistakably provided the

parties’ commitment to arbitrate. Matter of Smith Barney Shearson Inc. v. Sacharow, 91 N.Y.2d

39, 45-46 (1997).

The record here is devoid of any such clear and unmistakable evidence. A 2011 signature

page does not evidence a clear and unmistakable consent to language on a December 2023

document, nor does a 2011 signature page evidence an intention by Plaintiff to be bound to

arbitrate disputes with a different legal entity, Defendant HLM Capital, LLC, which was not even

formed until eight years later in 2019. Oliner Aff. Ex. A.

B. The arbitration agreement language is far from clear and unmistakable.

By agreeing to arbitrate, parties forfeit important substantive legal rights to resort to a

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judicial forum to resolve disputes and to appeal unfavorable results. Shah v. Monpat Const., Inc.,

65 A.D.3d 541, 543 (2d Dep’t 2009) (“by agreeing to arbitrate a party waives in large part many

of his normal rights under the procedural and substantive law of the State”) (internal citation

omitted). It is therefore basic that the parties to an arbitration agreement must express a clear and

unequivocal intent to arbitrate the subject matter of the particular dispute and absent such

unequivocal intent, parties cannot be compelled to arbitrate. Giffone v. Berlerro Group, LLC, 163

A.D.3d 780, 781 (2d Dep’t 2018) (denied defendant’s motion to compel arbitration because “there

was not a clear, explicit, and unequivocal agreement.”); Blizzard Cooling, Inc. v. Park Developers

& Builders, Inc., 134 A.D.3d 867, 869 (2d Dep’t 2015) (denied defendant’s motion to compel

arbitration because “the document does not evince a clear, explicit, and unequivocal agreement.”).

Contrary to Defendants’ assertions otherwise, there is an absolute dispute whether

Defendants are agents of WELLS ADVISORS with respect to the actions at issue in this case.

Defendants assert that Margolis is an agent because a FINRA BrokerCheck (Levine Aff. Ex. D)

shows that he was registered with Wells Fargo Clearing Services, LLC until 2019 when he then

registered with WFAFN. However, the FINRA BrokerCheck states that Margolis is an employee

of WFAFN. Wells Fargo’s own disclosures sent to Plaintiff state that “WFAFN affiliated financial

advisors are independent contractors, and not WFAFN’s employees.” Oliner Aff. Ex. B (emphasis

added). A material issue of fact exists regarding Margolis’ relationship to WFAFN. Defendants

submitted materials that directly contradict the WFAFN disclosures mailed to Plaintiff. At a

minimum, discovery is necessary to understand the full and accurate nature of the relationship.

The 2023 Client Agreement is focused on WELLS ADVISORS and its affiliates.

Defendants are not controlled by, do not control, and are not under common control with WELLS

ADVISORS. The Client Agreement provides that

‘We,’ ‘Our,’ ‘Ours,’ and ‘Us’ refer to WFCS and/or
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WFAFN, together with their affiliates. ‘Affiliate(s)’ means
any entity that is controlled by, controls, or is under common
control with WFA. Levine Aff. Ex. B at p. 1 of 64

(emphasis in original). Neither Defendant is included within that definition. Further, the Client

Agreement is ambiguous as to how WFA is defined in the agreement:

WFCS and WFAFN may, individually or collectively, be
referred to herein as “Wells Fargo Advisors” or “WFA.”

Id. (emphasis added). By saying that WFA may be WFCS and WFAFN, it is also possible that it

may not be either of those.

The Client Agreement provides that “references to WFA shall be deemed to include other

agents with respect to services provided by such agents.” (Id.) The definition of “agent” in this

context, however, does not refer to outside, third parties. The Client Agreement uses the word

“agent” to refer to other Wells Fargo entities or brokers. For example, the Client Agreement

provides that “You appoint WFA as your agent…”

The Client Agreement refers to sub-agents in the following context:

As your agent, we are authorized to establish relationships with clearing
brokers and to appoint and use sub-agents. You authorize us and our sub-
agents to, among other things, open or close brokerage accounts; establish a
sweep bank deposit account for you or open bank accounts in your name for
Brokerage Cash Services; maintain customer records…

Id.
Further, the Client Agreement states that “WFAFN does not act as WFCS’s agent.” (Id.,

emphasis added). “WFCS will act in a principal or mixed capacity basis (i.e., both as agent and

principal) when executing fractional share trading orders. (Levine Aff. Ex. B. at p. 8 of 64). None

of the references to “agents’ in the Client Agreement refers, or can be read to refer, to the

Defendants here.

Wells Fargo’s own disclosures make clear that financial advisors working with WFAFN are

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independent business owners and independent contractors. Oliner Aff. Ex. B. Defendant HLM’s

marketing materials hold themselves out as a small, boutique firm actively involved in every

investment decision affecting a client’s portfolio (Oliner Aff. Ex. C), not the generic part of Wells

Fargo that Defendant’s memorandum of law suggests.

If Defendants wanted to enter into an arbitration agreement with Plaintiff, they could have

simply had Plaintiff sign a pre-dispute arbitration agreement that specifically included HLM and

Margolis. Defendants did not have Plaintiff sign such a statement because they never intended to

be bound by such an agreement. Plaintiff understood, based on Defendants’ representations, that

any use of WFAFN was for the specific purpose of facilitating trades and that Defendants were

the principals and WFAFN their agent. Oliner Aff. ¶ 5.

C. Defendants provide no evidence HLM Capital, LLC is an agent of WFAFN.

Contrary to Defendant’s apparent belief, merely saying something is true does not make it

so. Defendants’ memorandum of law asserts that Defendant HLM Capital, LLC is the name of an

“independent WFAFN branch office” (page 5) and therefore Defendant HLM Capital, LLC is an

agent of WFAFN. They provided no support for this statement. FINRA Rule 3110 defines

“branch office” as “any location where one or more associated persons of a member regularly

conducts the business of effecting any transactions in, or inducing or attempting to induce the

purchase or sale of, any security, or is held out as such, [with certain specific exclusions].” Even

assuming arguendo that Defendant HLM Capital, LLC is the name of an independent WFAFN

branch office, associated persons are not necessarily agents, especially when they are associated

with an independent branch office. Non-signatories to an arbitration agreement are barred from

compelling others to the terms of an arbitration clause. Ross v Am. Exp. Co., 547 F3d 137, 143

(2d Cir 2008). Defendants have not met their burden of proof that Defendant HLM Capital, LLC

is an agent of WFAFN.
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D. There was no “meeting of the minds” with respect to arbitration between
Defendants and Plaintiffs and therefore no valid agreement to arbitrate exists.

Under New York law, formation of a valid contract requires “an offer, acceptance of the

offer, consideration, mutual assent, and an intent to be bound.” Civ. Serv. Employees Ass’n, Inc.

v. Baldwin Union Free Sch. Dist., 84 A.D.3d 1232, 1233–34 (2d Dep’t 2011), citing Kowalchuk

v. Stroup, 61 A.D.3d 118, 121 (1st Dep’t 2009). See also Sunbelt Rentals, Inc. v. Charter Oak Fire

Ins. Co., 839 F. Supp. 2d 680, 687 (S.D.N. Y 2012) (valid contract requires “an offer, acceptance,

consideration, mutual assent and intent to be bound. Mutual assent in turn requires ‘a meeting of

the minds of the parties’ on all essential terms. Whether such an accord exists is a question of fact

that must be resolved by analyzing the totality of the circumstances (internal quotation marks and

citations omitted)).

Plaintiff never understood that any pre-dispute arbitration agreement that named Wells

Fargo applied to Defendants. Oliner Aff. ¶ 8. This fact invalidates any assertion that a meeting of

the minds existed.

E. In assessing the motion to compel arbitration, this Court must draw all
reasonable inferences in favor of the non-moving party.

Courts deciding motions to compel apply a standard similar to that applicable for a motion

for summary judgment. Decker v NBCUniversal Media, LLC, 2018WL4849367, at *2 (Sup. Ct.

N.Y. County October 5, 2018) (“In the context of motions to compel arbitration brought under [the

FAA], the court applies a standard similar to that applicable for a motion for summary judgment.”)

(internal citation omitted). On a motion for summary judgment, the court considers all relevant,

admissible evidence submitted by the parties and contained in affidavits, pleadings, depositions,

and answers to interrogatories and admissions on file, Munzer v. St. Paul Fire and Mar. Ins. Co.,

145 A.D.2d 193, 196 (3d Dep’t 1989) (quoting CPLR § 3212(b)) and draws all reasonable

inferences in favor of the non-moving party. Santiago v. Joyce, 127 A.D.3d 954, 954 (2d Dep’t
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2015).

F. The ambiguities and questions of fact at issue prevent the court from
compelling arbitration.

There are substantial questions whether a valid arbitration agreement exists; therefore,

pursuant to CPLR 7503(a), “Where any such question is raised, it shall be tried forthwith in said

court.” The motion to compel arbitration should be denied and, if necessary, a trial should proceed.

Any ambiguity about whether an issue is arbitrable reverses the usual presumption that

issues should be resolved in favor of arbitration. Rubinstein v. C & A Mktg., Inc., 205 A.D.3d 832,

834 (2d Dep’t 2022) (“a party will not be compelled to arbitrate and, thereby, to surrender the right

to resort to the courts, absent evidence which affirmatively establishes that the parties expressly

agreed to arbitrate their disputes”) (internal quotation marks and citations omitted); Dean v.

Harvestime Tabernacle United Pentecostal Church Intern., 79 A.D.3d 793, 794 (2d Dep’t 2010)

(“a party will not be compelled to arbitrate absent a clear, explicit, and unequivocal agreement to

do so”) (internal citation omitted). In this case, the Oliner Affirmation, the FINRA BrokerCheck,

the WFAFN disclosures, HLM’s website statements, and the unclear use of terms in the Client

Agreement all present ambiguity.

Plaintiff, the non-moving party, has submitted evidence that it did not agree to arbitrate this

type of dispute and that at the time Plaintiff’s account was opened with Defendant HLM Capital,

in or about 2019, Plaintiff understood Defendants’ connection with WELLS FARGO to be limited.

G. The arbitration language in the Client Agreement requires scrutiny as to its
applicability.

The enforceability of pre-dispute arbitration agreements generally under federal securities

laws does not eliminate the applicability of arguments of agreement deficiency. Defendants’

general claim that courts enforce broker account arbitration agreements glosses over the analysis

courts apply when assessing if brokerage arbitration agreements are valid in particular
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circumstances. In Wen Zong Yu v Charles Schwab & Co., Inc., 34 Misc 3d 32 (App Term 2011),

contrary to this case, there was no evidence in the record questioning the validity of the agreement.

In Williams v Dillon & Co., Inc., 243 A.D.2d 559 (2d Dept 1997), a signed agreement clearly

existed between the plaintiff and defendant. In Cheng v David Learner Assoc., Inc., 35 Misc 3d

1238(A) (Sup. Ct. Kings County 2012) the court denied allegations of fraud in the inducement of

the contract.

Not all broker pre-dispute arbitration agreements apply, especially, as here, where agency is

at direct issue. Gould v Sidel, Fed Sec L Rep P 95667 (S.D.N.Y. Dec. 17, 1990) (introducing

broker could not enforce arbitration clause in agreement signed by customer and clearing broker

since he was not an agent of the clearing broker nor a third-party beneficiary of the agreement).

Defendants have not proven the existence of a brokerage agreement with Plaintiff. Further, without

the existence of a brokerage agreement, Defendants have not proven that such an agreement is

applicable to the actual relationship between Plaintiff and Defendants.

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CONCLUSION

Plaintiff respectfully submits, for all the forgoing reasons, that this Court should deny

Defendants’ motion to compel arbitration and motion to dismiss in their entirety pursuant to

CPLR 7503(a), to permit a jury trial and related discovery to proceed in this case, and for such

other relief as this Court deems just and proper.

Dated: March 25, 2024

COHEN TAUBER SPIEVACK & WAGNER P.C.

By: /s/ Stephen Wagner
Stephen Wagner, Esq.
420 Lexington Avenue, Suite 2400
New York, NY 10170
Tel.: (212) 586-5800
swagner@ctswlaw.com

Attorneys for Plaintiff Marev Holdings, Inc.

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ATTORNEY CERTIFICATION PURSUANT TO COMMERCIAL DIVISION RULE 17

I am an attorney duly admitted to practice law before the courts of the State of New York. I

certify that this Memorandum complies with the word count limit set forth in Rule 17 of the

Commercial Division of the Supreme Court, 22 NYCRR 202.70(g), as it contains 2,797 words

(excluding what is exempted by Rule 17). In preparing this certification, I have relied on the word

count from the word processing system used to prepare this memorandum.

Dated: March 25, 2024

__________________________
Stephen Wagner

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Jerome C. Murphy Track Judge’s New Case

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Document Filed Date

March 25, 2024

Case Filing Date

November 27, 2023

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Motion-Secondary: Marev Holdings, Inc. v. Hlm Capital Llc a/k/a HLM Capital Management Group, Charles Margolis

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