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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By Christopher G. Lazarini Because arbitration is favored, a party seeking to vacate on grounds of evident partiality bears a heavy burden of demonstrating objective facts inconsistent with impartiality. Ploetz vs. Morgan Stanley Smith Barney, LLC, No. 17-1112 (D. Minn., 5/25/17). Did the Arbitrator Disclose Enough? In 2015, Ploetz sued Morgan Stanley in arbitration but, […]

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The Consumer Financial Protection Bureau (“CFPB”) on July 10 issued its long-anticipated arbitration rule, with few surprises. Recall that Dodd-Frank section 1028 directs the CFPB to study the use of PDAAs in contracts for consumer financial products and services and later report to Congress, and to ban, limit or impose conditions on their use if […]

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By David C. Franceski, Jr. Section 13 of the 1933 Act, which provides that “[i]n no event shall any action be brought … more than three years after the security was bona fide offered to the public …” is a statute of repose and as such is not subject to American Pipe equitable tolling. California […]

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By George H. Friedman* SAC Contributing Legal Editor and Board of Editors Member Chairman of the Board – Arbitration Resolution Services [This is adapted from a post originally published in the author’s blog at Arbitration Resolution Services (ARS). Reposted with permission of and thanks to ARS!]   Toward the end of last year, I authored […]

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FINRA in late March issued a “Special Notice” soliciting public comments on a new enterprise-wide project examining transparency and engagement. Questions relating to the Office of Dispute Resolution (“ODR”) were specifically part of the mix and we reviewed those letters after the comment deadline of June 19. The comment letters are arranged by date received […]

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By Sarah G. Anderson *A court’s inquiry under §10(a)(4) of the FAA is whether the arbitrator had the power to reach a certain issue, not whether he or she decided the issue correctly. **FINRA Rule 13806 does not preclude an arbitrator from considering nominally different causes of action than breach of a promissory note, as […]

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The Acting Solicitor General has filed an Amicus Brief in Epic Systems, set for oral argument next Term at the Supreme Court, siding with the employers challenging the anti-arbitration policies of the National Labor Relations Board (“NLRB”). Recall that, as we reported in SAA 2017-03, the Supreme Court in January granted certiorari in Epic Systems […]

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By Jack D. Ballard *As a general rule, a corporation that purchases the assets of another corporation is not liable for the seller’s liabilities. **Delaware courts use the de facto merger doctrine sparingly in the absence of evidence of fraud. Energy Intelligence Group, Inc. vs. Cowen and Co., LLC, No. 14 Civ. 3789 (S.D. N.Y., […]

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Arguably, one reason arbitration claims are down at FINRA — and have basically declined for the past five years — may be that the disputes are being filed elsewhere. The industry is changing and FINRA appears to be responsive. We hear more and more defense attorneys speak of representing Registered Investment Advisers (RIAs), in addition […]

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