A legal saga involving Morgan Stanley's deferred compensation arrangement and its alleged refusal to pay six-figure benefits to departed advisors continues to play out in a federal court this spring.
Attorneys on both sides of the issue have filed cross motions, pointing to the stakes at hand, and last week, an attorney representing Morgan Stanley filed a motion in support of the firm's prior emergency request to the court — which it had made in December.
That filing sought to vacate a November ruling that, according to Morgan Stanley's attorneys, has adversely and improperly altered the outcome of ongoing deferred comp-related FINRA arbitration cases across the United States.
Beyond the individual cases, the resolution of both the lawsuit and the arbitration process will also be of interest to all wirehouse advisors and other big firms that use deferred compensation to attract and retain talent.
According to one attorney representing several dozen plaintiff-advisors in upcoming arbitration cases, the central goal beyond regaining lost compensation is to drive a change in behavior at the wirehouse firms. They hope to eliminate the acceptance of so-called "golden handcuffs" that keep advisors tied to firms for fear of losing out on already earned payments.
As demonstrated by its legal filings, Morgan Stanley asserts that its compensation arrangement is fair and transparent — and not to be viewed as a retirement plan subject to anti-alienation provisions under the Employee Retirement Income Security Act.
They argue that deferred compensation structures with clearly stated vesting periods and other payout requirements represent a long-accepted form of advisor incentive that has the potential to benefit both parties involved.
Under the Microscope
The underlying lawsuit was filed in December 2020 . But early this year, the advisor-plaintiffs and the Morgan Stanley defendants exchanged a round of motions seeking respectively to propel and delay FINRA arbitration related to the firm's deferred compensation plan.
A key ruling from November 2023 determined that Morgan Stanley's deferred compensation arrangement should indeed be subject to the anti-forfeiture rules and requirements of the Employee Retirement Income Security Act. It also determined that the advisor-plaintiffs must arbitrate their "anti-clawback" claims on an individual basis.
In response, Morgan Stanley has repeatedly called for the court to either vacate or reconsider the ruling.
In their latest motion, Morgan Stanley attorneys argue that the judge in the case should have structured the ruling more narrowly as a matter of law — sticking to the directly posed question of whether arbitration was warranted and leaving the applicability of ERISA to the discretion of FINRA arbitration.
The most recent motion from last week notes that, before the November ruling, Morgan Stanley was routinely finding success in arbitration on the strength of its arguments that ERISA's anti-alienation rules should not apply here.
The situation has changed dramatically since the ruling, according to the motion, and the attorneys fault the judge's "improper" declaration that ERISA does apply in such arbitration cases.
A FINRA arbitration panel ruled in late March that Morgan Stanley must pay more than $3 million in compensatory damages, attorneys fees, interest and case expenses to eight of its former advisors, who successfully argued that the firm inappropriately withheld deferred compensation payments after they left employment.
