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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By Christopher G. Lazarini *A plaintiff may not defeat a federal court’s diversity jurisdiction and a defendant’s right to remove a case by joining a party with no real connection to the controversy. **When deciding whether diversity jurisdiction exists, a court may ignore a defendant if the pleadings reveal no possibility that plaintiff can state […]

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SAC’s fifth video Podcast, Arbitration in 2017 and Beyond: Making Arbitration Great Again, examined coming developments in the world of arbitration along with the future of financial regulation. The year 2016 saw many developments in the arbitration world. The Consumer Financial Protection Bureau proposed its long-awaited arbitration rule; the Supreme Court accepted another case involving […]

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My first reaction when a West Coast defense attorney proposed we give coverage to a recent decision in Pershing LLC v. Kiebach,[1] an Award confirmation by a Louisiana federal court, was: “What could be her interest in the case?” Then, we received the summary of the decision from SOLA Contributing Editor Jack Ballard[2] and I […]

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By Ben Suter Because SEC disgorgement functions as a penalty within the meaning of 28 U.S.C. § 2462, any claim for disgorgement in a SEC enforcement action must be commenced within five years of the date that the claim accrued. Kokesh vs. SEC, Dkt. No. 16-529, 581 U.S. ___ (U.S. Sup. Ct., 6/5/17). The Holding […]

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How much of the forum costs each party must pay is a matter for the discretion of the arbitrators. Our analysis of cost assessments in Customer-Member Awards reveals a decided tendency to favor customer claimants. A few words of explanation are in order: We track how arbitrators assess the fees FINRA charges for pre-hearing conferences […]

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By Jack D. Ballard Brokers are exempt from both federal and New Jersey state overtime requirements, because the Know Your Customer Rule requires them to exercise discretion and independent judgment in their evaluation of their customer’s investment needs and because they receive a predetermined base salary. Morgan Stanley Smith Barney LLC Wage and Hour Litigation, […]

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Secretary of Labor Alexander Acosta says the Department of Labor’s (“DOL”) fiduciary standard rule will roll out as scheduled in June. The DOL’s fiduciary rule was scheduled to go into effect in phases starting April 10th. On February 3rd, the President ordered the Secretary of Labor to review the rule and report back to him. […]

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