Claim‑Specific Waiver of Arbitrability in FINRA Industry Disputes: Commentary on Waked v. Kerr (10th Cir. 2025)

I. Introduction

The Tenth Circuit’s nonprecedential order and judgment in Waked v. Kerr, No. 24‑2064 (10th Cir. Dec. 17, 2025), offers an important—and very practical—clarification on how waiver of arbitrability objections operates in the context of Financial Industry Regulatory Authority (“FINRA”) industry arbitrations.

At its core, the case addresses whether a respondent in FINRA arbitration may later challenge the arbitrator’s authority to enter an award in favor of certain claimants when:

the respondent vigorously objected to arbitrating with one party (a non‑FINRA entity),
but did not object to arbitrating with the individual claimants,
and fully participated in the FINRA proceeding as to those individuals, including asserting counterclaims and seeking affirmative relief.

The Tenth Circuit’s answer is clear: under traditional principles of waiver and estoppel, a party that fully participates in arbitration without expressly objecting to arbitrability of a particular party’s claims waives the right to challenge the arbitrator’s authority over those claims in later court proceedings—even if the party raised arbitrability objections as to other claims or other parties.

Accordingly, the court reverses the district court’s vacatur of a $2.87 million FINRA award entered in favor of claimants Shawn Waked and Theresa Stone against respondent Kathleen Kerr, and remands with instructions to confirm the award as to Kerr.

Although the decision is designated as an “order and judgment” (and therefore non‑binding except under law of the case, res judicata, and collateral estoppel), it articulates and applies a significant rule that will likely be persuasive in future disputes:

In FINRA arbitrations, arbitrability objections are claim‑ and party‑specific. A respondent who objects only to arbitrating with one claimant, but affirmatively litigates against others without timely and explicit objection, waives any later challenge to arbitrability as to those other claimants.

II. Factual and Procedural Background

A. The Underlying Business Transaction

The dispute arises from the sale of a financial advisory practice in Santa Fe, New Mexico. Jane Terry owned “Terry Financial Practice” (“Terry Financial”), which encompassed several entities and a Raymond James branch office. Kathleen Kerr and Timothy Rivera were long‑time employees of Terry Financial.

In March 2019:

Buyers Shawn Waked and Theresa Stone purchased Terry Financial for $1.56 million.
They formed Maestro Global LLC (“Maestro”) to operate the acquired business.
The value of Terry Financial rested largely on client goodwill and continued patronage.

To protect that goodwill and the value of the acquisition:

Terry agreed to recommend Waked to her customers and to refrain from diverting them to competing firms.
Kerr and Rivera agreed, among other things, not to divert the firm’s customers to any competing firm.
Kerr and Rivera also agreed to work for Maestro under written employment contracts (the “Employment Contracts”) that included:
- an arbitration clause calling for disputes to be arbitrated before “one arbitrator”,
- under the New Mexico Uniform Arbitration Act,
- in Santa Fe, New Mexico.

Separately, Kerr and Rivera signed Financial Advisor (“FA”) agreements with Raymond James. These FA Agreements:

made Kerr and Rivera “Registered Representatives” conducting securities activities for Raymond James, and
prohibited them from soliciting Raymond James clients.

B. The Alleged Misconduct

Soon after closing, Waked and Stone discovered that:

Terry Financial was not as financially strong as Terry had represented.
Kerr and Rivera had disclosed Maestro’s confidential client and business information to a new, competing company they had formed—Kerr Rivera, Inc.
Kerr, Rivera, and Terry were allegedly impugning Waked’s and Stone’s reputations and diverting customers from Maestro to the new firm.

The alleged result was a dramatic decline in the value of the business they had purchased.

C. Commencement of FINRA Arbitration

In January 2021, Waked, Stone, and Maestro filed a joint statement of claim with FINRA against:

Kathleen Kerr,
Jane Terry, and
Timothy Rivera.

The claimants asserted a mix of contract and tort claims, including:

fraud and negligent misrepresentation,
breach of contract and breach of the covenant of good faith and fair dealing,
breach of the duty of loyalty,
improper client solicitation in violation of contractual duties,
misappropriation of trade secrets,
interference with contractual relationships, and
civil conspiracy.

Both Maestro and the individual buyers asserted claims in their own names—i.e., some claims belonged to Maestro alone, some to Waked and Stone alone, and others were asserted by all three.

D. The FINRA Regulatory Framework

FINRA is a self‑regulatory organization authorized under Section 15A of the Securities Exchange Act to regulate brokerage firms and their associated persons, subject to SEC oversight. Among other things, FINRA:

promulgates rules governing brokerage industry conduct, and
administers an arbitration forum for resolving disputes involving members and associated persons.

Rule 13200 of the FINRA Code of Arbitration Procedure for Industry Disputes (the “Code”) requires that:

FINRA members and associated persons must arbitrate in the FINRA forum if a dispute arises out of the business activities of a member or an associated person and is between or among members and associated persons.

At all relevant times:

Waked, Stone, Kerr, Terry, and Rivera were FINRA members or associated persons (and thus subject to FINRA rules).
Maestro, as a separate LLC, was not a FINRA member.

E. The FINRA Submission Agreements and Early Jurisdictional Dispute

To commence arbitration, each party signs a FINRA “submission agreement” consenting to submit “the present matter in controversy” to arbitration under FINRA rules.

On March 9, 2021, however, Kerr, Terry, and Rivera did not sign the standard form. Instead, they tendered modified submission agreements inserting language that:

“excluded from this agreement . . . [was] commitment to arbitrate the claim of Claimant Maestro Global LLC.”

They did not exclude or object to claims brought by Waked and Stone.

FINRA staff refused to accept the altered submissions and requested unmodified forms. In response, Kerr, Terry, and Rivera:

asserted that FINRA lacked jurisdiction over Maestro’s claims because Maestro was not a member firm,
contended there was no agreement to arbitrate with Maestro in a FINRA forum, and
requested a pre‑hearing conference so that the panel could rule on their jurisdictional objections.

Throughout this early motion practice and briefing:

they consistently challenged only FINRA’s authority over Maestro’s claims; and
they did not object to arbitrating with Waked and Stone.

F. Answer, Counterclaims, and Pre‑Hearing Conference

In their FINRA answer, Kerr, Terry, and Rivera again refused to arbitrate Maestro’s claims, but:

they did not dispute FINRA’s jurisdiction over claims by Waked and Stone, and
they filed counterclaims against Waked and Stone (but not against Maestro).

Kerr’s counterclaims included:

constructive discharge,
breach of contract,
negligent misrepresentation,
hostile work environment, and
sexual harassment.

In their pre‑hearing brief, Kerr and co‑respondents explicitly explained that they had not asserted counterclaims against Maestro precisely because they believed FINRA lacked jurisdiction over Maestro as a non‑member.

At the June 7, 2021 pre‑hearing conference, they again:

argued that Maestro was not a proper party and that FINRA had “no jurisdiction over Maestro,” and
relied on their Employment Contracts with Maestro to contend that Maestro must arbitrate elsewhere (under the New Mexico Uniform Arbitration Act before a single arbitrator in Santa Fe).

Crucially, they did not argue that:

Waked’s and Stone’s individual claims were non‑arbitrable before FINRA, or
the Employment Contracts’ arbitration clauses displaced or superseded FINRA’s jurisdiction over those individual claims.

The FINRA panel:

overruled the objections to Maestro’s participation, and
ordered all three respondents to submit unmodified submission agreements, which they did.

Thereafter, the parties conducted discovery, and Kerr, Terry, and Rivera:

sought sanctions for alleged discovery abuses,
secured an $8,000 sanctions award against Waked and Stone, and
later moved again for sanctions (unsuccessfully).

G. The FINRA Hearing and Award

At the arbitration hearing, Kerr, Terry, and Rivera repeatedly:

objected to the panel hearing claims by Maestro, and
moved several times to dismiss Maestro’s claims on jurisdictional grounds.

When the panel asked whether a renewed motion to dismiss would relate only to Maestro, their counsel replied: “Just Maestro.”

At no point during the hearing did they:

object to FINRA arbitrating the claims of Waked and Stone, or
invoke the Employment Contracts as a bar to FINRA’s authority over those specific claims.

Following the hearing, the FINRA panel issued an award:

finding Kerr, Rivera, and Terry jointly and severally liable to Waked and Stone for $2,872,473 in compensatory damages, plus interest; and
denying all counterclaims brought by Kerr, Terry, and Rivera.

The panel did not award any damages to Maestro and did not specify which particular claims formed the basis of the monetary award.

H. District Court Proceedings: Confirmation and Vacatur

In the United States District Court for the District of New Mexico:

Waked and Stone moved to confirm the award.
Kerr, Terry, and Rivera filed a cross‑motion to vacate, asserting that the FINRA panel had exceeded its authority by awarding damages to Waked and Stone in their individual capacities.

Initially, they argued that:

only Maestro had asserted claims for the alleged injury, and
by awarding damages to Waked and Stone the panel was sidestepping the fact that Maestro was not a proper FINRA party.

When Waked and Stone pointed to the numerous tort and contract claims they had asserted in their own names, the respondents shifted strategy. They then contended that:

all of Waked’s and Stone’s individual claims actually arose from, or were dependent upon, Kerr’s Employment Contract with Maestro, and
the non‑FINRA arbitration provision in that Employment Contract superseded Kerr’s FINRA arbitration obligations.

Waked and Stone responded that even if such an argument might have had “theoretical merit” if raised in a timely manner, it was now moot because Kerr:

had never objected, in the FINRA arbitration, to arbitrating with Waked and Stone, and
had instead affirmatively submitted her own claims against them to FINRA.

In a lengthy 167‑page opinion, the district court:

treated Kerr’s challenge as raising an issue of arbitrability that had not been delegated to the arbitrators;
concluded that Kerr had preserved her objection to “FINRA jurisdiction” through her repeated challenges relating to Maestro;
found that Waked’s and Stone’s claims arose out of the Maestro Employment Contract;
held that the non‑FINRA arbitration clause in that Employment Contract bound Waked and Stone; and
determined that this Employment Contract clause superseded the parties’ FINRA arbitration obligations as to Kerr.

On that basis, the district court held that the FINRA panel had “exceeded its authority” by adjudicating claims it was not contractually empowered to hear, and therefore:

confirmed the award against Terry, but
vacated the award as to Kerr.

Crucially, the district court did not address the specific waiver argument advanced by Waked and Stone: namely, that Kerr had never objected to arbitrating their claims before FINRA and had instead fully embraced FINRA as the forum for her dispute with them.

Waked and Stone appealed. (Rivera’s claims had been settled; Terry ultimately dismissed her own cross‑appeal from the confirmation of the award against her.)

III. Summary of the Tenth Circuit’s Decision

The Tenth Circuit reverses the district court’s vacatur of the award against Kerr. Its reasoning is direct:

The court applies “traditional rules of waiver and estoppel” to arbitration proceedings, as endorsed in prior Tenth Circuit and Supreme Court authority.
Under those rules, a party that fully participates in an arbitration without timely and explicit objection to arbitrability of particular claims or parties waives the right to raise that objection post‑award.
The record shows that Kerr:
- objected repeatedly to arbitrating with Maestro (a non‑FINRA entity), but
- never objected to arbitrating with Waked and Stone in the FINRA forum.
To the contrary, she:
- filed a FINRA submission agreement (ultimately unmodified) that did not exclude Waked’s and Stone’s claims,
- asserted counterclaims against them seeking substantial damages and other relief, and
- actively sought and obtained sanctions against them in the arbitration.
Because Kerr “fully participated in arbitration without any relevant objection” as to Waked’s and Stone’s claims, she waived arbitrability objections concerning those claims.

Having found waiver dispositive, the court:

declines to reach the underlying merits of Kerr’s Employment Contract–based arbitrability arguments, and
simply instructs the district court to confirm the FINRA award against Kerr on remand.

Thus, the opinion can be distilled into a focused holding:

Where a party in FINRA arbitration objects only to arbitrating with one claimant but affirmatively arbitrates—without objection—claims brought by other claimants, that party waives any subsequent challenge to the arbitrator’s authority over the latter claims.

IV. Detailed Analysis

A. Precedents and Authorities Relied Upon

1. First Options of Chicago, Inc. v. Kaplan

The Supreme Court’s decision in First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995), is foundational to modern arbitrability doctrine. In First Options, the Court held:

Courts, not arbitrators, presumptively decide “gateway” questions of arbitrability—such as whether an arbitration agreement exists and whether it covers a given dispute—unless the parties clearly and unmistakably agree otherwise.
However, even when a party proceeds to argue arbitrability before the arbitrator, that party can preserve its right to independent judicial review if it “forcefully object[s]” to the arbitrator’s jurisdiction.

The Tenth Circuit in Waked relies on First Options to reaffirm that:

To preserve arbitrability challenges for later court review, a party must raise clear and timely objections before the arbitrator. Merely complaining about being in arbitration, without articulating a legal objection to the arbitrator’s authority, is insufficient.

2. Lewis v. Circuit City Stores, Inc. (10th Cir. 2007)

The key Tenth Circuit precedent is Lewis v. Circuit City Stores, Inc., 500 F.3d 1140 (10th Cir. 2007). In Lewis:

The plaintiff lost in arbitration and then sought to re‑assert his claims in federal court, arguing the arbitration agreement was unenforceable.
The Tenth Circuit held that he had waived his challenge to enforceability by failing to raise it during the arbitration.

The court stressed:

A party may not “await the outcome [of arbitration] and then later argue that the arbitrator lacked authority to decide the matter.”
General unhappiness about being compelled to arbitrate is not enough; the party must lodge a specific, legal objection to the arbitrator’s power.

In Waked, the court quotes and applies this reasoning: a party “fully participat[ing] in arbitration without any relevant objection” waives arbitrability challenges. Kerr’s conduct—asserting counterclaims, seeking sanctions, and never objecting to arbitrating with Waked and Stone—fits squarely within the Lewis waiver framework.

3. Other Supporting Cases

The opinion also relies on several additional authorities (some unpublished but cited for persuasive value) that reinforce the same basic principle:

AGCO Corp. v. Anglin, 216 F.3d 589 (7th Cir. 2000) – Frequently quoted for the proposition that “absent an explicit statement objecting to the arbitrability of the dispute, a party cannot await the outcome and then later argue that the arbitrator lacked authority.”
Fortune, Alsweet & Eldridge, Inc. v. Daniel, 724 F.2d 1355 (9th Cir. 1983) – Emphasizes that it would be “unreasonable and unjust to allow [a party] to challenge the legitimacy of the arbitration process, in which he had voluntarily participated over a period of several months.”
Hicks v. Bank of America, N.A., 218 F. App’x 739 (10th Cir. 2007) (unpublished) – Holds that a party waived objection to arbitration by “vigorously participating” in the arbitration, asserting counterclaims, and arguing that the dispute was arbitrable.
Integrated Associates of Denver, Inc. v. Pope, No. 21‑1019, 2022 WL 2388420 (10th Cir. July 1, 2022) (unpublished) – Concludes that a party waived its arbitrability argument by failing to raise it before the arbitrator.

These authorities collectively reinforce the same message: participation without timely objection equals waiver, and courts will not rescue a party who strategically “lies in the weeds” during arbitration only to challenge the tribunal’s authority after an adverse award.

B. The Court’s Legal Reasoning

1. The Concept of Waiver in Arbitration

The Tenth Circuit begins its analysis with the overarching doctrinal point that “traditional rules of waiver and estoppel” apply in the arbitration context. This is a crucial premise: the Federal Arbitration Act does not displace ordinary procedural doctrines like waiver or estoppel.

In practical terms, this means:

If a party wants to challenge the arbitrator’s jurisdiction or the arbitrability of certain claims, it must say so clearly and early.
If it instead chooses to participate fully—seeking affirmative relief, asserting counterclaims, and litigating the merits—it is generally bound by the tribunal’s authority, even if it later identifies contractual or statutory grounds for questioning that authority.

The court underscores the asymmetry between two categories of conduct:

Preserved objections: where a party “forcefully objects” to the arbitrator’s authority—e.g., expressly contending that a claim or party is not subject to arbitration—and then participates under protest.
Waiver: where a party either:
- never raises a specific legal objection to arbitrability, or
- raises an objection as to some claims or parties but not others, while fully arbitrating those unchallenged claims.

It is this second category, as applied claim‑by‑claim and party‑by‑party, that is at the heart of Waked.

2. Application to Kerr’s Conduct

The court’s reasoning is structured around a straightforward comparison between:

what Kerr did regarding Maestro, and
what she did (or failed to do) regarding Waked and Stone.

As to Maestro, the record shows that Kerr:

attempted to modify the FINRA submission agreement to exclude Maestro’s claims,
repeatedly argued that FINRA lacked jurisdiction over Maestro as a non‑member,
insisted there was “no agreement” to arbitrate with Maestro before FINRA, and
filed and renewed motions to dismiss Maestro’s claims during the hearing itself.

By contrast, as to Waked and Stone, the record shows that Kerr:

did not alter the submission agreement to exclude their claims;
never argued that FINRA lacked jurisdiction over them or over their claims;
never invoked the Employment Contracts as a bar to FINRA adjudicating disputes between her and the individual buyers; and
affirmatively:
- filed counterclaims against them (but not Maestro),
- sought over $280,000 in compensatory damages plus punitive damages and fees, and
- pursued and obtained sanctions against them in the arbitration.

In other words, Kerr’s conduct made clear that she:

contested FINRA’s authority to hear Maestro’s claims, while
embracing FINRA’s authority to hear her dispute with Waked and Stone.

On appeal, Kerr attempted to recharacterize her earlier objections regarding Maestro as a broader, generalized attack on FINRA’s jurisdiction “to be in FINRA at all.” The Tenth Circuit squarely rejects this reframing, noting that:

she never told the FINRA panel she objected to arbitrating with Waked and Stone, and
the record affirmatively shows she explicitly limited her objections and motions to Maestro’s status alone.

The opinion highlights several record points:

Her modified submission agreement excludes only “the claim of Claimant Maestro Global LLC.”
At the hearing, when asked if her renewed motion to dismiss was directed only to Maestro, counsel answered: “Just Maestro.”
In her briefing, she expressly explained that she did not file counterclaims against Maestro because she believed the panel lacked jurisdiction over Maestro—implicitly affirming that she did accept FINRA’s jurisdiction over Waked and Stone.

By “vigorously participat[ing] in the FINRA arbitration with Waked and Stone” and by failing to make “any explicit statement objecting to [arbitrating]” their claims, Kerr waived the opportunity to later argue that:

the Employment Contract’s non‑FINRA arbitration clause controlled, or
FINRA lacked authority to issue an award in favor of Waked and Stone.

3. What the Tenth Circuit Does Not Decide

Importantly, because the court resolves the case on waiver grounds, it does not decide several significant underlying questions that the district court had addressed at length, including:

Whether, as a matter of contract law, the Employment Contracts’ arbitration provision requiring a single arbitrator under the New Mexico Uniform Arbitration Act in Santa Fe:
- binds Waked and Stone (who were not signatories), and
- supersedes any FINRA arbitration obligations arising from the parties’ status as FINRA members or associated persons.
Whether, if no waiver had occurred, the FINRA panel in fact “exceeded its authority” under FAA § 10(a)(4) by entertaining Waked’s and Stone’s individual claims despite the Employment Contracts’ arbitration clause.
How to reconcile potential conflicts between SRO‑mandated arbitration (via FINRA Rule 13200) and private arbitration agreements designating a different forum, law, or procedural framework.

Those unresolved questions remain open in the Tenth Circuit, but the practical lesson of Waked is that such sophisticated arbitrability theories must be timely raised before the arbitrators themselves. If not, even a potentially strong arbitrability defense can be forfeited.

C. Impact and Implications

1. For FINRA Industry Disputes

Although designated nonprecedential, Waked will likely be heavily cited (especially within the Tenth Circuit) for its clear articulation of claim‑specific waiver of arbitrability objections in FINRA cases.

Key implications for FINRA disputes include:

Granularity of objections:
Parties must think at the level of each claimant and each claim. Objecting to FINRA jurisdiction over a non‑member corporate claimant (like Maestro) does not automatically preserve objections as to individual associated persons (like Waked and Stone) when those individuals are plainly within the FINRA scheme.
Strategic consequences of counterclaims:
Filing counterclaims in the FINRA forum—especially seeking substantial damages—strongly signals acceptance of FINRA’s authority.
After Waked, respondents should assume that asserting counterclaims against a party in FINRA will be treated as a waiver of arbitrability objections as to that party, absent a very clear, simultaneous jurisdictional protest.
Use of FINRA procedural tools:
Seeking sanctions, discovery orders, or other relief likewise evidences acceptance of the arbitral forum’s authority and can bolster a finding of waiver.

2. For the Design and Enforcement of Arbitration Clauses

The case also highlights the complexity that arises when:

industry‑imposed arbitration obligations (FINRA Rules) coexist with
privately negotiated arbitration agreements (Employment Contracts) that may select different fora and rules.

Although the Tenth Circuit does not resolve how such conflicts should be decided, the opinion sends a strong procedural signal:

If a party believes that a private arbitration clause supersedes or displaces FINRA arbitration obligations, that party must raise the issue in the FINRA proceeding early and explicitly—or risk losing the argument entirely.

For transactional and employment counsel, Waked suggests that:

Arbitration clauses for registered representatives or associated persons should be drafted with explicit reference to FINRA’s rules and any intended hierarchy or interaction between contractual and FINRA arbitration obligations.
Internal policies should alert in‑house and outside counsel to the necessity of timely asserting arbitrability objections when parallel or conflicting arbitration arrangements exist.

3. For Judicial Review of Arbitration Awards

On the judicial review side, Waked reinforces several broader themes under the Federal Arbitration Act:

Narrow review: Courts remain reluctant to vacate arbitration awards under FAA § 10(a)(4) (“exceeded their powers”) when the complaining party failed to present the alleged limitation on arbitral authority during the arbitration itself.
No “second bite” at arbitrability: A party cannot keep quiet (or selectively object) in arbitration, take a shot at a favorable award, and only after losing try to reframe the case as one the arbitral forum was never empowered to hear.
Respect for arbitral finality: The opinion is a practical application of the strong federal policy favoring arbitration finality: courts will not lightly disturb an award based on issues that arbitrators were never asked to decide.

4. Practical Takeaways for Practitioners

For lawyers involved in FINRA or other arbitrations, Waked suggests several concrete practice points:

Make arbitrability objections early, clearly, and specifically.
If you believe a claim or a party is not subject to arbitration, state this on the record, in writing, and at the outset. Do not assume that objections as to one party or theory will be read as objections to all.
Preserve objections while participating “under protest.”
If you decide to proceed in arbitration while contesting jurisdiction, reaffirm your objection at key procedural stages (submission agreements, pre‑hearing conferences, dispositive motions, the hearing itself) and expressly note that you are participating subject to that objection.
Beware of counterclaims.
Filing broad counterclaims in the arbitral forum is powerful evidence that you have accepted that forum’s authority. If arbitrability is in doubt, carefully consider whether (and how) to assert counterclaims without undermining your jurisdictional position.
Do not rely on post‑award vacatur as a backup plan.
Arguments that an arbitrator “exceeded his or her powers” because of a conflicting arbitration clause are unlikely to succeed if not raised in the arbitration. Courts will treat those arguments as waived or forfeited.

V. Clarifying Complex Legal Concepts

Several legal concepts in Waked can be opaque to non‑specialists. The following brief explanations may assist in understanding the opinion’s significance.

Arbitrability

“Arbitrability” refers to whether a particular dispute is legally and contractually suited for resolution by an arbitrator rather than by a court. Typical arbitrability questions include:

Does a valid arbitration agreement exist?
Does the agreement cover this type of dispute?
Does it bind these particular parties?

In Waked, the arbitrability question was whether Kerr’s disputes with Waked and Stone had to be arbitrated:

exclusively under the Employment Contracts’ non‑FINRA arbitration clause, or
in FINRA’s forum by virtue of FINRA membership and Rule 13200.

The Tenth Circuit holds that, whatever the correct answer might have been, Kerr waived the right to litigate that issue post‑award by not raising it in the arbitration.

Waiver (in the arbitration context)

Waiver is the intentional relinquishment—or sometimes simply the loss—of a known right through conduct inconsistent with its exercise. In arbitration, a party waives arbitrability objections when it:

fails to raise them in a timely and explicit manner, and
nonetheless fully participates in the arbitration (e.g., litigating the merits, filing counterclaims, seeking relief).

Waiver can be inferred from conduct; it does not require a formal statement like “I waive arbitration.” Waked is a textbook application of this principle.

FINRA and Self‑Regulatory Organizations

FINRA is a private, non‑governmental entity authorized by federal law to regulate broker‑dealers and registered representatives. It:

sets conduct rules and standards,
enforces compliance through disciplinary action, and
operates arbitration and mediation forums for industry and customer disputes.

Because broker‑dealers and their associated persons agree (as a condition of membership) to comply with FINRA rules, those rules often create independent arbitration obligations alongside or in addition to private contracts.

Joint and Several Liability

When defendants are “jointly and severally liable,” each defendant is responsible for the full amount of the judgment. The claimant may collect the entire amount from any one defendant, leaving the defendants to sort out contributions among themselves. In Waked, the FINRA panel held Kerr, Rivera, and Terry jointly and severally liable for the $2.872 million in compensatory damages to Waked and Stone.

“Exceeded Their Powers” – FAA § 10(a)(4)

One ground for vacating an arbitration award under the Federal Arbitration Act is that “the arbitrators exceeded their powers.” This occurs when arbitrators decide issues that, under the parties’ contracts or applicable law, were not submitted to them.

In Waked, Kerr argued that the FINRA panel exceeded its powers by adjudicating claims that, under the Employment Contract arbitration clause, should have been resolved only in a different arbitral forum in Santa Fe under the New Mexico Uniform Arbitration Act. The Tenth Circuit does not decide whether that argument has merit; it holds instead that Kerr waived the argument by not presenting it to the panel.

Subject‑Matter Jurisdiction vs. Contractual Authority of Arbitrators

Courts often use “jurisdiction” loosely when referring to an arbitrator’s authority. Technically:

Courts have subject‑matter jurisdiction granted by constitution and statute.
Arbitrators have authority derived from the parties’ agreement and, in the FINRA context, from the regulatory framework the parties accept as members.

When the opinion speaks of FINRA’s “jurisdiction” or the panel’s “authority,” it is really addressing whether, as a contractual and regulatory matter, the arbitrators were empowered to decide certain disputes. That question is what arbitrability doctrine and waiver principles govern.

VI. Conclusion

Waked v. Kerr is not a sweeping doctrinal overhaul, but it is a significant, practice‑oriented clarification of how waiver of arbitrability objections operates in FINRA industry disputes and, more broadly, in arbitration under the Federal Arbitration Act.

The decision stands for the proposition that arbitrability objections are specific: specific to the parties, specific to the claims, and specific to the legal grounds asserted. A respondent who:

vigorously contests arbitrability as to one claimant (here, Maestro), but
freely litigates and seeks relief against other claimants (here, Waked and Stone) in the arbitral forum, without objection,

cannot later invoke contractual or regulatory arguments to deprive those other claimants of the benefit of their arbitral award. That respondent has, in the language of the Tenth Circuit’s prior cases, “fully participated in arbitration without any relevant objection” and has therefore waived subsequent challenges to arbitrability.

The opinion also underscores a broader lesson: the time to litigate arbitrability is in the arbitration itself, not after the fact in a confirmation or vacatur proceeding. Parties who wish to preserve arbitrability challenges must raise them early, explicitly, and consistently—even while participating under protest.

By reversing the district court’s vacatur and instructing confirmation of the FINRA award against Kerr, the Tenth Circuit reinforces both the importance of procedural vigilance in arbitration and the judiciary’s strong commitment to the finality and integrity of arbitral awards when parties have had a full and fair opportunity to raise their objections before the arbitrators.