THE EXPERT'S EXAMINER

Oct-Dec 2019 - No. 2019-04

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RECENT NEWS FROM THE ARBITRATION FRONT

Contributor: George H. Friedman ( [email protected] )

(ed: This column follows recent items of interest to securities experts and relating to arbitration practice. These items are drawn from the past quarter's editions of the Securities Arbitration Alert , a publication of the Securities Arbitration Commentator and appear here with the permission of SAC's publisher. This issue’s column is compiled by The Expert Examiner ’s Editor-in-Chief, George H. Friedman )

FINRA STATS., 11/19. DO NOVEMBER CASE FILINGS PRESAGE POTENTIAL TRENDLINE FOR 2020 CASELOAD? After the August surge in case filings and the drop back to yearly averages in September and October, we hoped the November numbers from FINRA’s Office of Dispute Resolution (“FINRA-ODR”) would suggest whether the year will finish strongly or with a fizzle. The latest monthly report is now available, and it indicates to us that the latter is in store, with a middling final year-end tally.     READ MORE

FINRA BOARD APPROVES CHAIR ARBITRATOR HONORARIA INCREASES. The FINRA Board has approved a proposal to increase the Chairperson honorarium for hearings on the merits from $125 to $250 per day (in addition to the standard $300 per session honorarium). It would also for the first time provide for a Chairperson honorarium of $125 for prehearing conferences (in addition to the standard $300 one-session honorarium).     READ MORE

PIABA: BROKERCHECK AND THE EXPUNGEMENT PROCESS ARE BROKEN. MORATORIUM NEEDED NOW. On the eve of its annual meeting October 22 - 25, the Public Investors Advocate Bar Association released a study commissioned by the PIABA Foundation, maintaining that the expungement process is flawed and recommending an immediate moratorium.    READ MORE

EEOC GIVES UP THE GHOST ON ANTI-ARBITRATION POLICY. The EEOC has formally rescinded its Clinton-era policy against mandatory arbitration of workplace discrimination claims.    READ MORE

MORE ON THE WHISTLEBLOWER IMPROVEMENT ACT, AND ANOTHER ANTI-ARBITRATION BILL IS INTRODUCED. The bipartisan Whistleblower Programs Improvement Act has been introduced in the Senate. Yet another anti-arbitration bill has since been introduced.  READ MORE

NINTH CIRCUIT DENIES INVESTORS’ REQUESTS FOR REHEARING AND REHEARING EN BANC IN CASE HOLDING THAT ERISA CLAIMS ARE ARBITRABLE . The Ninth Circuit has denied the request for rehearing and rehearing en banc in Dorman v. Charles Schwab Corp., 934 F.3d 1107 (Aug. 20, 2019), a case we covered in SAA 2019-33 (Aug. 28).   READ MORE

COURT GRANTS TRO IN BUSINESS GROUPS’ CHALLENGE TO NEW CALIFORNIA LAW RESTRICTING EMPLOYMENT PDAA USE AND ENFORCEMENT. Just as it was about to go into effect, a federal judge enjoined the planned January 1, 2020 effectiveness of California AB-51, which essentially bans mandatory arbitration of employment discrimination, sexual harassment, and wage law disputes. READ MORE

EXPERT OPINIONS: WHAT ARE THE COURTS THINKING?

Contributor: George H. Friedman ( [email protected] )

(ed: By reading how courts value, view and utilize testifying experts, one can better serve the fact-finder, more effectively help the client, and more likely avoid a bad experience . For selected court decisions, we draw again from a SAC publication, Securities Online Litigation Alert (SOLA), the Securities Arbitration Alert (SAA), publications of the Securities Arbitration Commentator a nd other resources.) 

Fezzani vs. Dweck, No.18-1354 (2nd Cir., 8/13/19). While damages are an essential element of most claims, a plaintiff need not prove damages in order to survive summary judgment. READ MORE

Feinberg vs. T. Rowe Price Group, Inc., No. 17-cv-00427-JKB (D. Md., 12/3/19). Court grants motion to compel further answers to interrogatories aimed at requiring the Plaintiff to provide the specific basis for the claims asserted and to identify the specific documents that would support those claims, despite Plaintiff’s assertion that such interrogatories required expert opinion and expert discovery was not yet complete.   

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Davis v. Raymond, James & Associates, Inc . , FINRA ID #19-00423 (Orlando, FL, Nov. 22, 2019): In unanimously recommending expungement under Rule 2080 (factually impossible or clearly erroneous claim; allegation or information is false), the Panel finds that the Statement of Claim “lacked credibility and was structured to elicit sympathy from a claim otherwise devoid of merit…. Beyond the above, the Customer’s Statement of Claim is devoid of any facts to substantiate its meritless claim as to all of the allegations asserted on the CRD.”

Perrotti v. Morgan Stanley , FINRA ID #18-00446 (Hartford, CT, Oct. 1, 2019): A majority public Panel holds a non-appearing broker solely liable to customers for $1,300,000 in compensatory damages relating to their purchase of Aftermaster shares and secured convertible promissory notes. The customers entered into a Confidential Settlement Agreement with Respondent broker-dealer.

Smyth v. Cantor Fitzgerald , FINRA ID #17-02315 (New York, NY, Oct. 25, 2019): A broker alleging age discrimination and wrongful termination is awarded close to $1 million in damages, on his claims for lost compensation, interest and attorney fees. The Panel also explains why it denied Respondent broker-dealer’s Counterclaim for misappropriation of information/raiding claim.

SER ACTIVITIES - WHAT'S CIRCLING AT THE ROUNDTABLE?

Contributor: Elizabeth Falk ( [email protected] )

(ed: Meeting once a year to exchange views and learn more about professional interests lies at this organization’s roots. The Committees of SER work throughout the year to manage our finances, to increase our membership, to plan the organization’s future, and to prepare for the success and the funding of our next Conference. At least two members of the Board sit on each Committee, but non-Board members — past Board members and those who might one day want to join the Board — are a major strength of the SER Committee system. This column will familiarize members with the Board’s Committees and their ongoing activities.)

The committees of The Securities Expert Roundtable are hard at work to constantly enhance the value of membership. READ MORE

HEARD THROUGH THE REGULATORY GRAPEVINE

Contributor: Carrie Wisniewski ( [email protected] )

( ed: Keeping abreast of rulemaking and other regulatory initiatives can be a full-time job. Bringing it all together (or most of it, anyway) into a single column designed for quick scanning with drill-down linkage for further details — along with a bit of perspective and commentary -- has great value, in our view, for the busy expert. We invite SER members to point us to rulemaking, legislation, regulatory notices and policy speeches that are creating "buzz" in the securities community. )

FINRA’s Regulation Best Interest (Reg BI) conference held in Washington, DC on December 18, 2019 was a bit of a bust. It was a packed house, but short on information. The standard reply to audience questions was that FINRA staff had not received any guidance on implementation of the new regulation, leaving most of the attendees wondering why the conference was held in the first place.

Highlights from various regulators follow. Please note this compilation is a summary of regulatory actions and is not meant to be an all-inclusive substitute for individual research via the various regulatory sites. READ MORE

MEMBER ACHIEVEMENTS - BRINGING CREDIT TO THE PROFESSION

Contributor: Geraldine GG Genco ( [email protected] )

(ed: In their daily lives and in their professional pursuits, SER members are engaged in a host of activities that reflect well on them and that all SER members should know about. Whether it’s writing an article, hosting an event, joining a professional committee, or just pursuing a smart practice, we report on those efforts here each quarter. Look to the “Newsroom” section of the SER Website for more frequent, timely reports on the activities of our members and let us know when you learn of an SER "member achievement" we should be recognizing.)

SER MEMBERS PARTICIPATE IN SAC EDITORIAL BOARD DINNER SER members  Roger Deitz ,  George Friedman ,  Rick Ryder , and  Ross Tulman  attended the  Securities Arbitration Commentator  Board of Editors dinner meeting January 22 in New York City, hosted by Messrs. Ryder and Friedman.   READ MORE

SER MEMBER SELECTED BY THE CFP BOARD OF STANDARDS AS HEARING PANALIST SER member  Alan J. Besnoff , CFP, ChFC, CLU, of Securities Expert Witness & Litigation Support LLC, has been selected by the Certified Financial Planner (CFP) Board of Standards to serve as a Hearing Panelist.   READ MORE

SER MEMBERS TO PARTICIPATE IN NYSBA "SECURITIES ARBITRATION 2020 DEEP DIVE" SER Member  Ross Tulman , of Trade Investment Analysis Group, will be moderating a panel on March 6th at the New York State Bar Association's "Securities Arbitration 2020 Deep Dive" in New York City. Panelists of the session, "Remedies and Damages", will also include SER member  Elizabeth Falk , of Falk Financial Analysis.  

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COMMENT LETTERS, SPEECHES & TESTIMONY

Contributor: George H. Friedman ( [email protected] )

(ed: In this column, we look back to the prior quarter with a view to spotlighting regulatory or litigation developments that influential leaders and major institutions in the securities world are talking, writing and worrying about. Selected writings or speeches that we find online and that deal with the primary issues of the day will be the focus of this column. )

VERY FEW COMMENTS ON FINRA’s PROPOSED INACTIVE INDUSTRY PARTY ARBITRATION RULE. The comment period closed December 13 ^th on FINRA’s proposed rule to expand a customer’s arbitration options when firms or APs become inactive, with just a few comments, all supportive but with most urging further steps be taken.   

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STATISTICS, EVENTS & RESOURCES

Contributor: Patti Koetting ( [email protected] )

(ed: This column seeks to apprise members of events, products and services that can be useful to them in their professional activities, including and especially the SER Website. Unless specifically stated, SER does not endorse or sponsor any of the products and services mentioned herein.)

Final Note : The Contributors are members of the SER Public Relations Committee. They have designed this newsletter for the membership and worked to gather material for this issue. Members can help by sending Contributors information and suggestions for content in future issues. Members should also visit SER's " Newsroom " section of the Website periodically, as many of the items that appear here will be first posted in the Newsroom.

Copyright 2020 Securities Experts Roundtable - publication appears on a quarterly basis and is available as a membership benefit to experts of the Securities Experts Roundtable. Comments - suggestions welcome. Email [email protected] with comments.

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