I returned, and saw under the sun, that the race is not to the swift, nor the battle to the strong, neither yet bread to the wise, nor yet riches to men of understanding, nor yet favour to men of skill; but time and chance happeneth to them all.
(a) No claim shall be eligible for submission to arbitration under the Code where six years have elapsed from the occurrence or event giving rise to the claim. The panel will resolve any questions regarding the eligibility of a claim under this rule.
[I]n August 2008, Claimant transferred his account to Respondent, including all of its then holdings. Prior to this, Claimant's Broker, Michael Brigman ("Brigman"), worked for a firm called Regis Securities Corporation. Evidently Regis Securities went out of business and Brigman, along with apparently other representatives or associates working there, moved themselves and their customer's accounts to Respondent. Claimant's account value at the time he moved his business to Respondent's was $195,437.15, and consisted of a variety of securities according to the account statements appended to Respondent's supporting papers. Specifically, Claimant's account was made up of 6% cash, 37% U.S. Equities and 57% International Equities.According to those same statements, Claimant purchased 2 securities marked solicited in his account on September 22, 2008-American International Group-2,000 shares at 5.48 and Yamana Gold, Inc.-1,000 shares at 10.55. At the same time, Claimant, on an unsolicited basis, sold 500 shares of Nordic American Tanker Shipping LTD at 34.88, apparently to raise some of the cash to make the purchases noted. (This security was sold at a $3,441.00 loss.) The account statements do not show any further purchases or sales of securities in Claimant's account at the Respondent's firm.By the end of February 2009, Claimant's total account value had fallen to slightly more than $75,000.00; however, by August 8, 2009 when Claimant transferred his account to another firm-Chase, according to his counsel at the hearing on this motion, his account value had jumped to a little over $132,000.00.Respondent is based in Columbus, Ohio and operates through a network of "independent" brokers/financial consultants. Claimant's financial consultant, Brigman, was at all times, according to the account statements, a resident of the State of Florida. At the hearing Respondent indicated that Brigman also had a residence in Michigan.Claimant's Statement of Claim was filed on or about November 19, 2015, more than 6.25 years after Claimant transferred his account away from Respondent. On the face of it, it would appear that this action is clearly ineligible for arbitration under the 6 year eligibility rule, because why else would Claimant have transferred his account to another firm if, he in fact, was not unhappy with, and felt injured by (given his substantial overall losses), Respondent's alleged malfeasance or neglect. This appeared to be especially true on the face of Claimant's opposition papers which did not even address this issue, focusing instead on the date the purchases were made as the improper accrual date for purposes of the 6 year eligibility rule.At the hearing, however, Claimant's counsel, without a supporting declaration from his client or any evidence whatsoever, averred that Claimant did not transfer his account because he was unhappy with Respondent or because he felt aggrieved. Instead, counsel offered the excuse that his client transferred out because his broker was not actively practicing as a broker anymore and because he was not licensed in the State of Florida, where he was in fact officed. While it appears on the surface that this averment raises more questions than it answers, the fact is that even the most unsophisticated investor would, or should have known, when his broker disclosed that he was not, or could not get, licensed in Florida (Respondent offered that Brigman could not get, or renew, his Florida State license because he failed to submit certified copies of documents relating to a domestic dispute but that he was, in fact, licensed in Michigan), that something was amiss-especially in view of the substantial losses Claimant's account statements revealed.Notably, neither the Statement of Claim nor the opposition papers identify a single security purchased or sold through Respondent that was unsuitable or in breach of Respondent's asserted fiduciary duty. Nor did Claimant's papers attempt to show what happened to any of the securities Claimant did purchase through Respondent, or any of the other securities Claimant transferred over in an effort to prove Claimant actually suffered a loss. Claimant's counsel desperately argued, without a shred of evidentiary support, that Respondent is the alter ego of Regis Securities, Claimant's prior firm where Brigman once worked. He also argued, without citation to any legal authority, that Respondent could be held liable for the allegedly unsuitable securities his client purchased through Regis.This all notwithstanding, Claimant never seriously addressed the fact that he transferred his account away from Respondent more than 6 years before he filed the Statement of Claim. Instead, he did nothing more than baldly insist that he was entitled to a full hearing on the merits because of facts he refused to disclose in any of his pleadings and because Brigman kept assuring him that "everything would be okay."However, to this point, it is undisputed that Claimant transferred his account away from Brigman and Respondent in August 2009 and Claimant never suggested he continued to communicate with Brigman or Respondent, or rely on them, after the transfer. Indeed, he would have no justifiable reason to do so because he moved his account to another firm and another advisor and believed Brigman was not a practicing financial advisor any longer.The evidence is overwhelming that this claim was filed more than 6 years after Claimant reasonably knew, or should have known, that he had been injured by the actions of Respondent's Firm.Accordingly, Respondent's Motion to Dismiss is granted.Respondent's Motion to Dismiss pursuant to Rule 12206 is granted by the Panel without prejudice to any right the Claimant has to file in court; the Claimant is not prohibited from pursuing his claims in a court pursuant to Rule 12206(b) of the Code. . .
It is going to be virtually impossible for a lawyer to win a case when the triers-of-fact appraise your trial technique as "desperately argued, without a shred of evidentiary support . . . without citation to any legal authority . . ." Similarly, your case is likely going down in flames when it's found to be nothing more than an attempt to "baldly insist that he was entitled to a full hearing on the merits because of facts he refused to disclose in any of his pleadings . . . "Notably, neither the Statement of Claim nor the opposition papers identify a single security purchased or sold through Respondent that was unsuitable or in breach of Respondent's asserted fiduciary duty. Nor did Claimant's papers attempt to show what happened to any of the securities Claimant did purchase through Respondent, or any of the other securities Claimant transferred over in an effort to prove Claimant actually suffered a loss. Claimant's counsel desperately argued, without a shred of evidentiary support, that Respondent is the alter ego of Regis Securities, Claimant's prior firm where Brigman once worked. He also argued, without citation to any legal authority, that Respondent could be held liable for the allegedly unsuitable securities his client purchased through Regis.