By Pete S. Michaels An Article 2 appointee is an Officer, who must be properly appointed under the Constitution’s Appointments Clause, if the appointee exercises “significant authority pursuant to the laws of the United States.” Raymond J. Lucia Companies, Inc. vs. SEC, No. 15-1345 (D.C. Cir., 8/9/16). Buckets of Money Raymond J. Lucia and Raymond […]

The comment period for the Consumer Financial Protection Bureau’s (“CFPB”) proposed rule banning class action waivers closed on August 22nd with a massive number of comments. As we have reported many times, the CFPB on May 5th released a proposed rule that would: 1) ban class action waivers (“CAWs”) in predispute arbitration agreements (“PDAAs”) in […]

By Christopher G. Lazarini Absent an arbitration agreement, a person seeking to compel a FINRA member to arbitrate as its “customer” must (1) have an account with the FINRA member or (2) have purchased goods and services from the FINRA member. Deutsche Bank Securities, Inc. vs. Roskos, No. 15-CV-534 (S.D. N.Y., 8/4/16). Plaintiffs, broker-dealers Deutsche […]

For the third time, the Fifth Circuit has rejected the National Labor Relations Board’s (“NLRB”) view that use of class action waivers in predispute arbitration agreements (“PDAAs”) violates the National Labor Relations Act (“NLRA”). In a tidy, two-page, unpublished per curiam ruling, the Court in Citi Trends, Inc. v. NLRB, No. 15-60913 (5th Cir. Aug. […]

By David C. Franceski, Jr. *Because Pennsylvania’s statutory standards for vacatur of an arbitration Award are inherently procedural and facilitate rather than impede the goals of the FAA, they control Award challenges brought in state court. **Absent a petition to vacate, a fully litigated request for expungement which is submitted to the arbitrators and denied […]

First, let’s make the topic real. Just last month, the SEC posted a petition for rulemaking that suggests the Commission take steps to improve the FINRA arbitration process, especially in large and complex disputes (Petition 4-702). These rulemaking petitions are permitted by Rule 192 of the SEC’s Rules of Practice and the Commission receives about […]

By Paul J. Dubow *A party challenging enforcement of a forum selection clause may not base its challenge on a choice of law analysis. **A businessman usually has a more difficult time establishing procedural unconscionability in the sense of either unfair surprise or unequal bargaining power. ***Section 5 of the FAA explicitly empowers district courts […]

A sharply divided California Supreme Court holds that the question of whether an arbitration agreement allows class-wide arbitration should be decided by the arbitrators, unless the PDAA expressly provides to the contrary. Our readers are familiar with the basic fact pattern: 1) employees sue on a collective basis; and 2) employer moves to stay litigation […]

By Burton W. Wiand A broker-dealer may be liable for the selling away conduct of its employee, where it is foreseeable that the employee may engage in such conduct. Owens vs. Stifel Nicolaus & Co., Inc., No. 15-12911 (11th Cir., 5/27/16). The Investments This is essentially a selling away case. Plaintiffs Martha F. Owens, Susan […]