HYUNCHEOL HWANG v. MIRAE ASSET SECURITIES USA INC (2018)

Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered March 1, 2018, which granted plaintiff's motion to stay arbitration, and denied defendant Mirae Asset Securities (USA) Inc.'s cross motion to compel arbitration, unanimously reversed, on the law, without costs, the motion to stay arbitration denied, and the motion to compel arbitration granted.

After he and defendant Mirae Asset Securities (USA) Inc. had entered into an employment agreement which contained a forum selection clause, plaintiff executed a “Uniform Application for Securities Industry Registration or Transfer” (Form U–4), which contains an arbitration provision.  We find that the Form U–4 supersedes the employment agreement and therefore that the parties' dispute must be arbitrated.

This dispute is governed by state contract law principles (see Credit Suisse First Boston Corp. v. Pitofsky, 4 N.Y.3d 149, 158 n 2, 791 N.Y.S.2d 489, 824 N.E.2d 929 [2005] ).  The first principle is that “a subsequent contract regarding the same matter will supersede the prior contract” (see Applied Energetics, Inc. v. NewOak Capital Mkts., LLC, 645 F.3d 522, 526 [2d Cir.2011] ).  The determination whether a subsequent agreement is superseding is fact-driven (see Blumenfeld Dev. Group, Ltd v. Forest City Ratner Cos., LLC, 50 Misc.3d 1221[A], 2016 N.Y. Slip Op. 50188[U], 2016 WL 700639, *6 [Sup. Ct., Nassau County 2016], analyzing cases).  Plaintiff's execution of a valid U–4 Form constituted an agreement to limit his contractual remedies when he signed the U–4 Form (see Kanuth v. Prescott, Ball & Turben, Inc., 1988 WL 90392, *3 [D. D.C. 1988] ).  The U–4 Form encompasses the same employment-related disputes as were addressed in the employment agreement.  Thus, the forum selection clause was effectively extinguished (see Globe Food Servs. Corp. v. Consolidated Edison Co. of N.Y., 184 A.D.2d 278, 279, 584 N.Y.S.2d 820 [1st Dept. 1992] ).