3. When Claimant attempted to sell shares of Banco Santander ("Banco") stock that were already in his accounts on TDA's website on January 24, 2018, he was unable to do so because trading in that stock had been deactivated.4. Instead of calling TDA, as he should have done, he continued trying to sell his Banco stock online, and as a result, he inadvertently purchased by mistake 3,000 shares of Banco's newly issued stock that Banco had issued following a recent Banco reorganization on December 27, 2017.
[T]he difference in CUSIP numbers should have alerted him that he was dealing with two different securities.6. If Claimant had called TDA, instead of continuing to try to sell his existing stock online, he would have been told why he was having difficulty in selling the stock because the stock with the old CUSIP number in his accounts was not active, and therefore, he would not have ended up mistakenly buying 3,000 shares of the newly issued Banco stock with the new CUSIP number.
[A]ccess to TDA's website was "provided 'as is' and 'as available,' and if Claimant had difficulty making a trade online, he had agreed that TDA would not be liable for any resulting losses and he was instructed to call TDA regarding his difficulty and to make the trade
7. Later on January 24, 2018, Claimant finally called his TDA account representative about the difficulties he had trying to sell his stock on TDA's website. In a recorded phone discussion, the TDA account representative told him that instead of selling the shares he already owned, he actually had bought 3,000 shares of the new Banco stock. Claimant asked the TDA account representative to "bust" his purchase, and she talked to TDA's trader, who at first indicated that Claimant's purchase could be cancelled, but subsequently he told her that because of the size of the trade and/or spread, it could not be cancelled.8. In a second recorded phone conversation later on January 24, 2018, TDA account representatives told Claimant that if he sold the newly purchased stock at that time, that would result in a loss of only some $700.00, and that TDA would give him free trades to make up for that loss.9. However, instead of selling the 3,000 shares of the new Banco stock immediately, during the second recorded phone discussion Claimant asked his TDA account representatives to place a good-till-cancelled limit order to sell the stock at $26.54 per share, which was several basis points higher than Claimant had bought it for a few hours earlier and higher than it was then trading.
transferred the remaining shares to another brokerage firm on February 9, 2018 and the shares were ultimately redeemed on May 21, 2018 for $25.00 per share resulting in a net loss of $4,547.32 instead of the approximately $700.00 loss he would have sustained if he had sold the stock when the TDA account representatives offered him free trades to compensate him for his losses.
12. Claimant alleged in his "Rebuttal document" that he is "at a distinct disadvantage with [TDA] having access to all the phone conversations, and t]hey left out some important conversations." However, under the Code of Arbitration Procedure for Customer Disputes, Claimant could have asked or compelled TDA to produce recordings or notes of those conversations but he did not, and he did not submit any recordings or notes to substantiate or support any of his claims.
The following "Conclusions of Law" about these claims are based on the submitted evidence described above and the "Findings of Fact" stated above:1. Claimant did not submit any evidence that any TDA account representative made any misrepresentations to him that proximately caused his losses. The recorded phone discussions submitted by TDA clearly show the TDA account representatives did not make any misrepresentations to him and instead fully explained to him why he had been unable to sell the Banco stock in his accounts. The documentary evidence that TDA submitted further refute Claimant's allegations of misrepresentation and put him on notice of what he should have done when he encountered difficulty using TDA's website to sell his stock online. In short, Claimant's losses were caused by his own acts and/or confusion resulting from Banco's reorganization.2. Claimant did not submit any evidence to corroborate his allegation that TDA made or breached any promise. As the recorded phone discussions between him and TDA clearly show, TDA's account representatives did not "promise" or agree to cancel his mistaken purchase of the Banco stock, and contrary to his allegations, TDA did not "offer" to buy back the Banco stock. Instead, TDA's account representative only told him that she would try, but she did not promise, to get his mistaken purchase canceled. Moreover, Claimant submitted no evidence to show that TDA had a contractual duty to cancel his mistaken purchase, and regardless, TDA's inability to get that purchase canceled did not proximately cause his losses-again, his losses were caused by his own acts and/or confusion resulting from Banco's reorganization.3. Claimant failed to submit any evidence to substantiate his allegation that TDA coerced him not to sell the Banco stock that he mistakenly bought. In fact, TDA's account representatives agreed with him about selling the stock and placed his order as he requested to sell it. Again, Claimant's losses were caused by his own acts and/or confusion resulting from Banco's reorganization.4. Claimant failed to plead the requisite elements of a cause of action for, and to prove, that TDA breached any fiduciary duty. Moreover, the relationship between a customer and a stock broker is not a fiduciary relationship unless the customer's account is a discretionary account-Claimant's account was a self-directed account, not a discretionary account. In any event, TDA did not breach any duties, fiduciary or otherwise, that proximately caused Claimant's losses-again, his losses were caused by his own acts and/or confusion resulting from Banco's reorganization.5. A claim for breach of good faith is not compensable as a separate claim but as part of a claim for breach of contract. As set forth above, Claimant has not sustained his burden of pleading and proving a cause of action for breach of contract against TDA, and, therefore, he has not proven his claim for breach of good faith against TDA. In any event, according to the evidence submitted, nothing that TDA or its account representatives constituted any breach of good faith by TDA. In fact, TDA's account representatives offer to give Claimant free trades demonstrated TDA's good faith.6. Although failure to mitigate damages normally is a defense to a claim for breach of contract, it is not the basis for a separate claim. Nevertheless, Claimant did not submit any evidence to show that TDA did anything that did not mitigate his losses. In fact, TDA offered to mitigate Claimant's losses by giving him free trades and he is the one who failed to mitigate his losses by not selling the Banco stock that he mistakenly bought when he could have done so with only a $700.00 loss.7. Therefore, because Claimant has failed to submit any, let alone sufficient, evidence to substantiate any of his claims that TDA is responsible for his losses, he is not entitled to an award of compensatory damages, interest or FINRA filing fees. 8. Claimant's analogy in his "Rebuttal document" about the transaction in question is flawed because TDA did not sell him the 3,000 shares of Banco stock that he mistakenly bought. He did that on his own and TDA did not tell him they would buy back that stock. It is unfortunate that Claimant sustained any losses. Based on the irrefutable evidence, Claimant has no one to blame but himself, or possibly Banco for the confusion from its reorganization, which TDA had nothing to do with, and if Claimant had accepted TDA's offer of free trades, he could have completely avoided any loss. . .