A “bare” class action waiver in an employment contract was enforceable even though it was not part of an arbitration clause, a divided Fifth Circuit holds. The law is well-settled in the Fifth Circuit: an employer may include a class action waiver (“CAW”) in a predispute arbitration agreement (“PDAA”). Specifically, in 2012, the National Labor […]

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By Jack D. Ballard A broker’s fiduciary duty to his client in a non-discretionary account is satisfied once he executes a trade and does not give rise to a continuing fiduciary duty that survives the termination of the broker-client relationship. Holmes vs. Newman, No. 01-16-00311-CV (Tex. App., 1Dist., 7/6/17). An Ex-Broker and His Ex-Customer The […]

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EXPLAINED AWARD: TULLIS v. AMERIPRISE FINANCIAL SERVICES, INC., FINRA ID #16-01261 (Portland, OR, 6/27/17). This Award includes a so-called “Dissenting Decision” that is largely a concurrence fleshing out in detail the majority’s one paragraph “Findings” in favor of the customer claimants; the only disagreement in results between the arbitrators is that the dissenter would award […]

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By Sarah G. Anderson *A plaintiff asserting a Sarbanes-Oxley Act whistleblower claim must prove, by a preponderance of the evidence, that (1) he engaged in protected activity; (2) the employer knew that he did so; (3) he suffered an unfavorable personnel action; and (4) the protected activity was a contributing factor in the unfavorable action. […]

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The SEC’s Investor Advocate issued its annual Report on Objectives to Congress at the end of June 2017, the fourth since its creation under Dodd-Frank. The Report runs 41 pages and aims to brief the relevant Committees of Congress on the Office’s intended activities for FY 2018 — which starts on October 1. The Office […]

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By Rick Ryder, SAC Yes, in answer to the title’s question, and the prospect for that to happen has been revived by a FINRA staff initiative, launched in July, to solicit public comment on the question through a special email message center: mediate@finra.org, and to actively inquire of interested participants just how they view the […]

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By David C. Franceski, Jr. Disclosure of material information is not required under §10(b) of the 1934 Act where it is not necessary to make statements already made not misleading. Amarin Corporation PLC Securities Litigation, In Re, No. 16-2640 (3rd Cir., 5/23/17). A Failed Drug Trial Plaintiffs in this biopharma securities fraud putative class action […]

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FINRA ODR appears to have fallen into a groove, as the arbitration statistics it reports on its website for June, in many ways, look a lot like the statistics for May (see SAA 2017-24); the lack of growth in the arbitrator roster also caught our eye. The number of new case filings, 320, is almost […]

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By Ben Suter One who acts as an investment broker is not entitled to a “finder exception” to the Securities Exchange Act’s broker registration requirement. SEC vs. Collyard, No. 16-1405, 2017 U.S. App. LEXIS 11582 (8th Cir., 6/29/17). Unregistered Broker or Merely a “Finder”? The Eighth Circuit Court of Appeals affirms the district court’s order granting […]

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Another roadblock for the Consumer Financial Protection Bureau’s (“CFPB)” Final Rule on arbitration has emerged: nullification by the Financial Stability Oversight Council (“FSOC”). But CFPB Director Richard Cordray is fighting back, and published the rule in the Federal Register despite a demand that he not. We reviewed in SAA 2017-26 the many ways the CFPB’s […]

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