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Contributor: George H. Friedman (George@SecArbAlert.com)

(ed: This column follows recent items of interest to securities experts and relating to arbitration practice. These items are drawn from recent editions of the Securities Arbitration Alert (updated where necessary) and appear here with the permission of the Alert’s publisher. This issue’s column is compiled by the SAA’s publisher and Editor-in-Chief, George H. Friedman. Note that all 2021 and YTD 2022 back issues of the Alert can be downloaded free of charge here.)

CONSUMER COALITION TO CFPB DIRECTOR CHOPRA: DO SOMETHING ABOUT MANDATORY ARBITRATION. A coalition of over a hundred consumer advocacy groups has written to CFPB Director Chopra, urging that the Bureau exercise its Dodd-Frank authority to regulate consumer financial arbitration. READ MORE

AAA COMMERCIAL RULES AMENDED AS OF SEPTEMBER 1. The American Arbitration Association (“AAA”) has revised its Commercial Arbitration Rules and Mediation Procedures, effective September 1. READ MORE

UNANIMOUS GEORGIA COURT OF APPEALS TOSSES TRIAL COURT’S AWARD VACATUR IN “RIGGED PANELS” CASE. The Georgia Court of Appeals has “unvacated” the Award in the Wells Fargo “rigged panels” case. READ MORE

Contributor: George H. Friedman (George@SecArbAlert.com)

(ed: By reading how courts and arbitrators value, view and utilize testifying experts or decide issues experts encounter on a regular basis, one can better serve the factfinder, more effectively help the client, and more likely avoid a bad experience. For selected court decisions, we draw again from the Securities Arbitration Alert (SAA), and other resources. Note that all 2021 and TYD 2022 back issues of the Alert can be downloaded free of charge here.)

Ahuja v. Fleming (In re Fleming), No. 19-51611 (JAM) (Bankr. D. Conn. Dec. 9, 2021): A FINRA arbitration Award was not dischargeable in bankruptcy pursuant to the Bankruptcy Code. READ MORE

Michalow v. D.E. Shaw & Co., L.P., FINRA ID No. 18-03174 (New York, NY, Jun. 29, 2022). As widely reported in the media, a former D.E. Shaw money manager prevailed to the tune of $52.1 million in his defamation claim against the firm and four senior executives. READ MORE

Robinson v. Oppenheimer & Co., Inc., FINRA ID No. 21-02234 (Atlanta, GA, Sep. 6, 2022): A Majority-Public FINRA Panel has hit Oppenheimer with a $36+ million Award arising out of losses suffered by several investors in a Ponzi scheme perpetrated by a former adviser. READ MORE

HEARD THROUGH THE REGULATORY GRAPEVINE, COMMENT LETTERS, & SPEECHES

Contributor: Hollie Mason (hollie.mason@brattle.com)

(ed: Keeping abreast of rulemaking and other regulatory initiatives can be a full-time job. This compilation is a summary of regulatory actions and comments and is not meant to be an all-inclusive substitute for individual research via the various regulatory sites.)

SEC Publishes Risk Alert Highlighting Focus on New Marketing Rule: On September 19, 2022, the Securities and Exchange Commission’s Division of Examinations (the “SEC”) published a Risk Alert announcing its intent to conduct examinations focused on compliance with Rule 206(4)-1 (the “Marketing Rule”) under the Investment Advisers Act of 1940, as amended (the “Advisers Act”). As a reminder, the compliance date for the Marketing Rule is November 4, 2022. The Marketing Rule applies to marketing activities and the use of placement agents/solicitors by investment advisors registered under the Advisers Act. 

SEC Speaks 2022: Ongoing Efforts to Restore Public Trust, Aggressive Enforcement Agenda: On Sept. 8 and 9, 2022, at the annual SEC Speaks conference, Securities and Exchange Commission (SEC) Deputy Director Wadhwa stressed that the SEC expects market participants to be engaged in proactive compliance, noting meaningful consequences for those who fall short, such as cases involving admissions of violations in settlements. To further shape behavior, Deputy Director Wadhwa highlighted efforts to provide greater transparency to market participants into how the Enforcement Division rewards firms that provide extraordinary cooperation to Enforcement staff in investigations. 

SEC brings charges against director and former executive officers for allegedly lying to auditors about loss contingencies concerning a government investigation: The Securities and Exchange Commission (SEC) recently filed a complaint in U.S. District Court against a company’s director, former CEO and former CFO for allegedly making false and misleading statements to the company’s auditors, in violation of Rule 13b2-2 of the Securities Exchange Act of 1934, as amended (Exchange Act). This latest enforcement action underscores the SEC’s continued focus on loss contingencies and serves as a reminder to directors and officers of the need to carefully assess company disclosures and the statements made to auditors about loss contingencies, including in management representation letters. 

Contributors: Rotating Practice Management Committee Members

(ed: In response to survey requests, we have added a new column to provide quick and helpful tips from seasoned experts relating to operating a successful expert practice.)

by SER Member Paul Carroll

Directors and Principal Actors: Identifying the participants should be completed at the initial discussion with the contacting party by acquiring the names of the Claimant/Plaintiff and Respondent/Defendant and both attorneys, if available, representing the parties in the dispute must occur as part of the conflict check. (This may be a new case without opposing counsel.)

Synopsis: Brief summary overview of the issues which will be referred back and enhanced as additional facts are disclosed to shape your opinions. 

Timeline: Key dates necessary to understand the issue in dispute with a brief summary as to its potential importance.

Supporting Cast: State the names and roles of relevant personnel who influenced or controlled the event.

Supporting Documents: At the onset, ask what documents exist which support the parties position.

Contributor: Patti Koetting (pk@pkoetting.com)

SER member David Hinman has authored an article on the June Russian Default for SER members titled "The Russian Default: Considerations, Issues and Questions." The paper discusses the background of Russia's June 27th "technical default" on two English Law Bonds, their debt and payment history and current investor perceptions. READ MORE

MEET OUR NEWEST MEMBER! (Click on a name to view the full profile on SER's website, where you can also access their contact info and website. Better yet, reach out and connect to find out more about them.

Paul W. Carlson - Paul has over 30 years of experience in the financial services industry with special expertise in stock options and financial futures. He has extensive experience as a former futures trader and member of the Chicago Board of Trade (CBOT) and as options risk manager at the Chicago Board Options Exchange (CBOE) and a .

If you have a potential member to nominate, please contact SER's Membership Chair Paul Carroll (PCarroll@sententiallc.com).

Contributor: Patti Koetting (pk@pkoetting.com) (ed: SER’s Committees are composed of two Board Members, and most have one or more members at large. Our Committees and members are listed under the “About Us” button on our Home Page.)

2022 CONFERENCE RECAP: SER celebrated 30 years at their Annual Member Meeting & Conference on July 15-16 at the University Club of Washington D.C. Turnout was back to pre-pandemic numbers with a record attendance of new members! President Alan Besnoff recapped the events including highlights, speakers and sessions. READ MORE

ELECTION RESULTS FOR 2022-2023: Newly elected directors include Patrick M. Dennis and Charles W. Ranson, who was also recently appointed Treasurer. Re-elected Directors include Peter Bulger, Robert D. Lawson and Robert E. Graham, also elected as SER's new President-Elect. READ MORE

DIRECTORS TERMING OUT FROM THE BOARD: SER honored three Directors retiring from the Board, Elizabeth Falk of Falk Financial Analysis, Jack Herrmann of Herrmann Dispute Resolution, and David Keogh of DJK Consulting. All three Directors have served multiple years in various positions. READ MORE

COMMITTEE RESET: Each year after the Annual Conference, the newly elected President reconfirms or resets each Committee Chair. The Chairs then re-populate their committees. A reminder for members to reach out to any Committee they would like to participate on, or with any ideas they feel would be beneficial for a committee to consider. Serving on a committee is a great way to increase your presence at SER and raise your profile.

Contributor: Patti Koetting (pk@pkoetting.com)

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 2022 Securities Experts Roundtable - publication appears three times a year and is available as a membership benefit to experts of the Securities Experts Roundtable. Comments - suggestions welcome. Email Newsroom@securitiesexperts.org with comments.

Mission Statement: SER provides continuing professional education and promotes ethics and integrity among its members while remaining dispute neutral as an organization.

Disclaimer: This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. The publisher is not engaged in rendering legal, accounting or other professional service or advice. If legal advice or other expert assistance is required, the services of a competent professional person should be sought.