                                            No. 04-491

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                       2005 MT 191N


RAYMOND KAUFMAN, Individually and as Trustee of the
MONTANA FACIAL SURGERY PENSION AND PROFIT
PLAN and JANET L. NOTHSTINE,

              Plaintiffs and Respondents,

         v.

U.S. BANCORP PIPER JAFFRAY, INC. and
THOMAS J. O’NEILL, and JOHN DOES I through X,

              Defendants and Appellants.



APPEAL FROM:         District Court of the Second Judicial District,
                     In and for the County of Silver Bow, Cause No. DV 2002-16
                     The Honorable Thomas M. McKittrick, Judge presiding.



COUNSEL OF RECORD:

              For Appellant:

                     Stanley Kaleczyc and Brand Boyar, Browning Kaleczyc Berry & Hoven,
                     P.C., Helena, Montana; John S. Lutz, Fairfield & Woods, P.C., Denver,
                     Colorado; Robert J. Phillips, Phillips & Bohyer, P.C., Missoula, Montana

              For Respondents:

                     William P. Joyce, Joyce & Johnston, PLLP, Butte, Montana



                                                         Submitted on Briefs: January 11, 2005

                                                                    Decided: August 9, 2005

Filed:


                     __________________________________________
                                       Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal

Operating Rules, the following decision shall not be cited as precedent. It shall be filed as

a public document with the Clerk of the Supreme Court and shall be reported by case title,

Supreme Court cause number and result to the State Reporter Publishing Company and to

West Group in the quarterly table of noncitable cases issued by this Court.

¶2     U.S. Bancorp Piper Jaffray, Inc., (“Piper”) appeals an Order of the District Court for

the Second Judicial District, Silver Bow County. Defendant Thomas J. O’Neill is a former

Piper employee and is not a party to this appeal. The District Court denied Piper’s motion

to compel arbitration of claims filed against Piper by Raymond Kaufman (“Kaufman”),

individually and as trustee of the Montana Facial Surgery Pension and Profit Sharing Plan

(“Plan”), and Janet L. Nothstine (“Nothstine”). We affirm.

¶3     This case is one of twenty-three different lawsuits filed by investors of Piper involving

the alleged mismanagement of the investors’ accounts in Piper’s branch office in Butte. The

facts behind this particular action are that Nothstine opened a self-directed IRA on April 25,

1987, with Piper Jaffray and O’Neill. The account agreement establishing this IRA, which

is the subject of this litigation, did not contain a provision regarding binding pre-dispute

arbitration. Nothstine later opened a separate Roth IRA, upon O’Neill’s advice. At the time

she did so, she was directed to sign a PAT Plus Account Agreement in order to create the

Roth IRA. The PAT Plus document contained both a pre-dispute arbitration provision and

a provision purporting to allow Piper to complete transactions within the client’s account.


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Nothstine believed the two accounts were separate and distinct from each other. However,

after discovering alleged mismanagement within the original account and contacting an

attorney, Nothstine learned that under the provisions of the PAT Plus account, Piper was

insisting upon pre-dispute arbitration of disputes concerning her original and--to her mind--

wholly separate IRA.      It is undisputed that Nothstine signed the PAT Plus Account

Agreement which created the Roth IRA in front of O’Neill. It would have been apparent to

him that she did not read the arbitration clause before signing. He did not explain the

ramifications of the arbitration clause to her.

¶4     Nothstine does not recall signing subsequent forms sent to her by Piper, but she

apparently signed all documents provided to her, believing she needed to do so to maintain

her accounts. The forms were presented to her on a take-it-or-leave-it basis. Nothstine was

unaware of the significance of the arbitration provisions within the forms until she contacted

an attorney to prosecute the claims underlying this litigation.

¶5     Kaufman is the trustee of and a participant in the Plan. He also maintained separate

individual accounts with Piper. In 1998, Kaufman signed an agreement with Piper which

opened the Plan’s investment. At the time the events occurred which gave rise to this

lawsuit, only Kaufman and Nothstine were participants in the Plan.

¶6     Kaufman is a busy physician with limited time to deal with his investment accounts.

O’Neill was aware of the demands on Kaufman’s time, and Kaufman relied on O’Neill to

communicate details about his investment accounts as needed. When Kaufman was

presented with documents dealing with his individual accounts, he did not believe that those

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accounts had anything to do with the management of the Plan. No one at Piper explained

that by opening additional accounts, Kaufman could affect the rights of the Plan and its

participants. Kaufman signed a PAT Plus Account Agreement for the Plan after he received

it in the mail with a letter stating that Piper was eliminating the type of account the Plan had

previously had in place. The letter recommended the PAT Plus Account format, and

explained that if Kaufman did not sign the new agreement, the Plan would be reassigned to

a fee-paying account format. Kaufman signed the PAT Plus Account Agreement without

reading it, and without being informed of its arbitration provisions. The agreement contained

a pre-dispute arbitration provision and a provision purporting to allow Piper to complete

transactions within the client’s account whenever Piper “deems it necessary for its

protection.” Piper has demanded arbitration of the disputes in the Plan’s accounts pursuant

to the arbitration provisions contained in the PAT Plus document.

¶7     These facts and the issues arising from them are substantially identical to those

presented in Willems v. U.S. Bancorp Piper Jaffray, Inc., 2005 MT 37, ¶ 22, 326 Mont. 103,

¶ 22, 107 P.3d 465, ¶ 22, in which we held that a clause in a PAT Plus Account Agreement

granting Piper broad discretion over an investor’s holdings creates a fiduciary duty. That

clause, in addition to an arbitration clause, was included in the pre-filled forms which

Nothstine signed in connection with her Roth IRA account, and Kaufman signed when Piper

informed him that the Plan’s account format was being discontinued. Willems further held

that in light of the fiduciary duty, Piper was obligated to advise investors of the consequences



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of the arbitration clause prior to the formation of the contract, and that because Piper did not,

the arbitration clause was unenforceable. Willems, ¶¶ 25, 28.

¶8     We have determined to decide this case pursuant to our Order dated February 11,

2003, amending Section 1.3 of our 1996 Internal Operating Rules and providing for

memorandum opinions.

¶9     We conclude that, in light of Willems, this case is clearly controlled by settled

Montana law. Therefore, we affirm the District Court’s conclusion that Piper owed a

fiduciary duty to explain the arbitration provision to Nothstine and Kaufman, that it breached

that duty, and therefore, the pre-dispute arbitration provisions are unenforceable.



                                                           /S/ PATRICIA O. COTTER



We Concur:

/S/ BRIAN MORRIS
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ JOHN WARNER




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