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

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

FINRA DRS POSTS STATS THRU JULY: NO “COVID CRASH” SURGE YET IN CUSTOMER CLAIMS, BUT INDUSTRY DISPUTES STILL WAY UP. AND A NEW STAT ON VIRTUAL HEARINGS. FINRA Dispute Resolution Services (“DRS”) posted case statistics through July, with past trends persisting.  READ MORE

FINRA ISSUES REG NOTICE SETTING SEPTEMBER EFFECTIVE DATE FOR NEW MINIMUM EXPUNGEMENT FEES. After SEC approval in late May, FINRA has published Regulatory Notice 20-25 establishing a September 14 effective date for its new fee regime specifically for expungement requests involving customer complaints. We analyzed in SAA 2020-20 (May 27) the rather long history of this proposal. In brief, after years of accommodating brokers' expungement requests and fitting that subsidiary, quasi-regulatory relief, into its existing filing fee structure, FINRA proposed a new fee regime specifically for expungement requests. We offer a recap below.  READ MORE

CRENSHAW AND PEIRCE SWORN IN AS SEC COMMISSIONERS. We reported in SAA 2020-30 (Aug. 12) that the Senate on August 7 confirmed by voice votes the nominations of Caroline Crenshaw (Democrat) and Hester M. Peirce (Republican) as SEC Commissioners.  READ MORE

WE CALLED IT (MOSTLY). SCOTUS GRANTS CERTIORARI TO ADDRESS LOOSE END IN HENRY SCHEIN BUT DECLINES TO TAKE ON BROADER ISSUES. The Supreme Court agrees to review an open issue from its 2019 ruling in Henry Schein, Inc. v. Archer and White Sales, Inc., but opts not to take on two other issues with broader implications.  READ MORE

UPDATE ON SUIT CHALLENGING FINRA ZOOM HEARING SCHEDULED OVER PARTY’S OBJECTION. We reported previously in Alert that a federal judge declined to stay a FINRA case featuring a hearing to be conducted by Zoom over a party’s objection. Here’s the promised update.  READ MORE

ZOOM HEARINGS AT FINRA: DON’T ASSUME THE VIDEO PARTS ARE BEING RECORDED – THEY ARE NOT. Although FINRA is bound by its rules to record hearings, the Authority does not video record virtual hearings conducted by Zoom. Only the audio track is recorded.   READ MORE

TENTH CIRCUIT UPHOLDS FINRA AWARD: NO SECOND-GUESSING PANEL’S DISMISSAL AS A SANCTION UNDER RULE 13212. So long as a panel arguably considers an arbitration provider’s rule, a court cannot vacate an award on the ground of exceeding powers, even if reasonable people can argue that the panel’s interpretation of the rule was incorrect.  READ MORE

WE DON’T KNOW WHY WE SAY GOODBYE WHEN WE SAY HELLO. A JOINT MESSAGE FROM THE OUTGOING AND INCOMING PUBLISHERS. The August 5 issue of the Securities Arbitration Alert (“SAA”) reflects a changing of the guard of sorts. In just the past year, the Securities Arbitration Commentator, Inc. (“SAC”) has converted the Securities Arbitration Commentator newsletter from a print publication, after thirty-plus years, to a PDF publication. Then, six months later in January 2020, we merged the major elements of the PDF newsletter into the weekly Securities Arbitration Alert, transferred the SAC Board of Editors to the SAA, appointed George H. Friedman as Editor-in-Chief of the expanded, more robust SAA, and announced that electronic evolution of the SAA would result ultimately in a Web-based SAA publication. READ MORE

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

(ed: By reading how courts value, view and utilize testifying experts or decide issues experts encounter on a regular basis, 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 the Securities Online Litigation Alert (SOLA), and Securities Arbitration Alert (SAA), and other resources.)

Mid Atlantic Capital v. Bien, No. 18-1195 (10th Cir. Apr. 14, 2020). The amount of damages in an arbitration Award may be modified by a federal court only if there is a mathematical error in calculating the damage “clearly evident” on the face of the Award, a unanimous Tenth Circuit holds in a case of first impression. READ MORE

Raymond James Financial Services, Inc. v. Armijos, No. 19-CIV-81692 (S.D. Fla. Apr. 27, 2020). In order to obtain injunctive relief declaring FINRA Rule 12200 inapplicable to an investor’s demand for arbitration, a broker-dealer must demonstrate either that: (1) Defendants do not meet the definition of “customer” under 12200; or (2) the selling agent was not an “associated person” of the broker-dealer. READ MORE

Grede vs. UBS Securities, LLC, No. 09 C 5880 (N.D. Ill. 2018). Under-segregation of customer assets constitutes a regulatory violation, but it is not proof of insolvency. READ MORE

Stifel, Nicolaus & Co. v. Stern, No. 1:20-cv-00005 (D. Md. Mar. 31, 2020). We reach back in time a bit to present this Explained Award, but for good reason, we think. First, it's still timely, in that a post-Award challenge has just produced a court decision. Second, the explanation of the Panel's reasoning comes not only in the face of a specific objection by the broker-dealer to an Explained Award, but also in the form of a dissent. READ MORE

H. Beck, Inc. vs. Health and Wellness Lifestyle Club, LLC, No. 5:20CV1413 (N.D. Ohio, Jul. 9, 2020). The Court broadly interprets “customer” and disputes “arising in connection with the business activities” of a member firm in deciding arbitrability. READ MORE

Van Dierendonk v. ProEquities Inc., FINRA ID No. 19-02711 (Phoenix, AZ, Aug. 14, 2020): A broker who defrauded a customer is liable to the customer for almost $500,000, including punitive damages, and must indemnify his former employer for almost $100,000 in settlement money and attorney fees. The investment was a company owned by the broker. Submitted by Harry Jacobowitz, Esq. He can be reached at harryjacobowitz@optimum.net. (Click for Award)

Rutkowski v. Merrill Lynch, FINRA ID No. 19-03478 (Phoenix, AZ, July 20, 2020): Expungement was granted despite the absence of the agreement settling the underlying customer complaint: “The Arbitrator noted that Claimant testified that he attempted to secure the settlement documents, but was unable to do so, as Respondent also did not hold a copy due to the length of time that had elapsed. The Arbitrator was satisfied with Claimant’s good faith efforts to obtain the settlement documents.” (Click for Award)

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. Bringing it all together into a single column designed for quick scanning with drill-down linkage for further details has great value, in our view, for the busy expert. We include selected writings or speeches that influential leaders and major institutions in the securities world are talking, writing and worrying about. We invite SER members to point us to rulemaking, legislation, regulatory notices and policy speeches that are creating "buzz" in the securities community.)

Highlights from various regulators follow including COVID-19 updates, Accredited Investor definition, Libor phase-out, Reg BI and Form CRS . Please note 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. READ MORE

Contributor: Geraldine GG Genco (GGenco@GGencoAssociates.com)

(ed: SER’s Committees are composed of two Board Member, and most have one or more members at large. You can find all of our Committees and members listed under the “About Us” button on our Home Page. Committees either support the business needs of our organization or aim to develop and enhance the skills and expertise of our members. We even have a Committee to provide a public service to law schools, called the SER Legal Clinic Committee.)

This year is a year of transformation! A number of SER Committees have been tweaked and a new Committee added, a recap of those changes follows. (And, check out the helpful hint at the bottom.)

Contributor: Patti Koetting (pk@pkoetting.com)

SER MEMBER ON PANEL TO JUDGE PENSION BRIDGE IAMAs  Member Marty Dirks has been chosen to be a judge for the 2020 Pension Bridge Institutional Asset Management Awards (IAMS).  READ MORE

SER BOARD MEMBER ELECTED AS VICE-CHAIR OF MRFC Board member and Practice Management Chair, Bob Lawson, was recently elected as Vice Chairman of the Board of the Master Registered Financial Consultants (MRFC®), a division of the International Association of Registered Financial Consultants, (IARFC®). READ MORE

MEET OUR NEWEST MEMBERS! New to this section, we highlight new members that joined in the past four months. Due to active recruiting by the now Past President Dave Keogh, our current President Elizabeth Falk, and our Membership Committee, we added 11 new members to our organization from May through August. To access their full bio, please click on the photo. READ MORE

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 2020 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.