As we previewed in SAA 2018-14, the five sitting Commissioners of the Securities Exchange Commission held an open meeting April 18 at 3:30 PM on several issues that have begged for consideration for years. While these discussions are just the opening play in a drama that could take further years to unfold, the attention that […]

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FINRA’s Rule 13204 restriction on enforcing arbitration against class action participants is not a “contrary congressional command” that might override the FAA mandate to enforce pre-dispute arbitration agreements (PDAAs), but it is a requirement incorporated into the agreement to arbitrate; as such, it conditions the scope of arbitrable issues. Zoller & Biegelman vs. UBS Securities, […]

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FINRA’s Office of Dispute Resolution (“ODR”) has once again posted the latest issue of its newsletter for arbitrators and mediators, The Neutral Corner (“TNC”) and, as usual, it covers a number of different subjects, including the NAMC, the Portal, arbitrator training and disclosure, mediation, and tips on scheduling hearings. The feature article, “An Introduction to […]

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By Jeremy Root * In Nebraska, the denial of a motion to compel arbitration is appealable when the moving party offers the arbitration agreement into evidence in the court below. **Evidence that a party is an “associated person” of an arbitration agreement signatory is insufficient to prove that he was the “Investment Custodian” or a […]

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In this somewhat delayed follow-up to our earlier survey of the “Top Awards of 2017” (SAA 2018-06 (Feb. 7)), we turn to punitive damages, the “brass rings” of the arbitration carousel. We present our findings in two parts. This week, we look at them holistically, we ask the following series of questions: how often are […]

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By James L. Komie Allegations that the NFA violated its membership rules in bad faith by failing to terminate the registration of an associated person of an expelled introducing broker are sufficient to state a claim for damages against the NFA under §25(b)(2) of the Commodity Exchange Act, where the associated person was registered with […]

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FINRA’s solicitation of comments on a proposal to make expungements more difficult, which we covered in SAAs 2018-07 (Feb. 14), -08 (Feb. 21) & -09 (Feb. 28), has inspired us to check on how often expungement requests are granted under current rules. The most recent rules change on the subject was the adoption of Rule […]

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By Jeremy Root * In a Sarbanes-Oxley whistleblower retaliation claim, an employee engages in protected activity if he actually believes that the conduct about which he complains is illegal under the Sarbanes-Oxley Act and that belief is reasonable. **A defendant in a Sarbanes-Oxley whistleblower retaliation claim may not avoid liability on the basis of a […]

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GHERARDI v. CITIGROUP GLOBAL MARKETS, INC., FINRA ID #16-01001 (Miami, FL, 2/28/18). Behind almost all Awards is a story twice told – once by the claimant and the second time by the respondent, each phrased to favor the teller – but one too rarely gets a glimpse of the story from the Award itself. In […]

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By Paul J. Dubow Underwriter defendants relying on a defense of due diligence by non-professionals need not produce the relevant privileged documents, where they agreed to a jury instruction that the withheld communications might be unfavorable and also agreed to in camera review of the documents to confirm the fairness of asserting the privilege. LendingClub […]

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