In the Matter of the FINRA Arbitration Between Paui Oshideri, Claimant, vs. Fidelity Brokerage Services LLC, National Financial Services LLC, Frank Sanchez and Lawrence Goodkind, Respondent (FINRA Arbitration 09-07185, July 7, 2011)
Respondents generally denied the allegations and asserted various affirmative defenses.
In the Beginning: June 1, 2010
On June 1, 2010, the FINRA Arbitration Panel held a pre-hearing conference ("PHC"), but did not take any action at the request of Raj D. Roy, Esq., legal counsel for Claimant Oshideri. Roy had asked for additional time to consider whether to accept the Panel as constituted. However, about a month went by and it doesn't appear that Roy made up his mind - which likely prompted the Panel to issue a June 29, 2010, Order requiring Roy to advise FINRA in writing by July 8, 2010, as to whether Claimant accepted the Panel as constituted, and, if so, to submit dates to the Panel to reschedule the PHC.
Two Months Later
Apparently, July 29th came and went with nary a peep from Roy, and, as such, Claimant was now in violation of the Panel's Order to set a PHC date. Not exactly getting off on a good foot with the those who would be hearing the case.
Three and a Half Months Later
The FINRA Panel rescheduled the PHC for September 17, 2010, but, true to form, Roy did not appear; and, on that day, the Panel once more rescheduled the PHC for September 28th and ordered Roy to appear or be subject to sanctions.
Sometimes there's tough talk. Sometimes, it's just talk.
Despite the September 28th ultimatum from the Panel, Roy stated that he was was unavailable but, miracle of miracles!, the lawyer did graciously confirm that he would be available for yet another rescheduled PHC: this one at 10 a.m. on October 22, 2010.
Okay, so - place your bets. Roy going to show up at 10 a.m. on October 22?
Bets down. Hands off the table please.
Nearly Five Months Later
On October 21, Roy (or his office - the FINRA Arbitration decision phrases it in this vague manner) called and said that he was not available at 10:00 a.m. but could be available at 11:30 a.m. that same day. Could be?
At this point, if I were on the Panel, I would have gone ballistic and there would have been hell to pay, with an emphasis on "pay." I mean, c'mon already, how much of this crap is enough? On the other hand, clearly, I was not on this FINRA Arbitration Panel because these incredibly patient folks cancelled the 10:00 a.m. meeting and FINRA actually went about confirming everyone's availability for the more convenient 11:30 a.m. time suggested by Roy.
Surprise, surprise - at 11:30 a.m. on October 22, 2010, all parties were available and on the phone except for this one gentleman: Attorney Roy. Seems that his office indicated to the Panel that Roy was in court and no one had any idea - not even an inkling, if you will - as to how long he would be otherwise disposed.
Finally, the Panel seems to have become a tad upset. Respondents' counsel was asked to disconnect from the teleconference and the Panel discussed how to proceed. Like I said, clearly, Bill Singer was not on this Panel because, trust me, there wouldn't be much if any discussion beyond how many zeroes there would be after the dollar sign and the first digit in the sanctions that I would have imposed against Claimant and his lawyer.
After what the decision describes as "due deliberation," the Panel issued an Order directing Lawyer Roy to submit three sets of dates and times mutually agreeable to all parties to reschedule a PHC between October 22 and November 9, 2010.
Also, the Panel issued an Order that, for violating the Panel's June 29th Order, and for repeated failures to appear for scheduled hearing dates, Claimant and Claimant's counsel were jointly and severally assessed a monetary sanction of $500.00; hit with 100% of the October 22nd hearing forum fees; and the Panel deferred until the next scheduled PHC, consideration as grounds for dismissal, Roy's failure to appear. Ooooh, $500. Ooooh, possible grounds for dismissal.
Five Months Later
On November 4, 2010, a PHC was held and hearing dates set. Five months to schedule and hold a lousy pre-hearing conference? No wonder folks complain about the FINRA arbitration process.
On April 15,2011, Respondents filed a Motion to Compel Production of Documents, which was granted on May 5 without any opposition from the Claimant.
About six weeks later, on June 2, 2011, Respondents filed a Motion for Sanctions to Preclude, seeking to prevent Claimant from introducing any documentary evidence at the hearing or calling any witnesses for failing to comply with May 5th Discovery Order and the discovery provisions of the Code.
You think the Panel granted that Motion? Think again - the Motion was taken under advisement by the Panel.
The Missing Roy, Vanishes
On June 13, 2011, the day before the evidentiary hearing, Lawyer Roy had his client Claimant Oshideri execute a substitution of attorney requiring Claimant to represent himself.
At the commencement of the hearing on June 14, 2011, Respondents reiterated their Motion for Sanctions submitted on June 2, 2011. The Panel denied the motion in favor of letting Claimant present any and all evidence he had because all the delay, failure to provide ordered discovery, failure to provide witness lists, etc. were all caused by his attorney and not by Claimant. The Panel believed that it would have been unfair to prevent Claimant from presenting any evidence to support his claim.
The FINRA Arbitration Panel found that Claimant was unable to prove a case for monetary damages against any of thefour named Respondents. Claimanfs claims are denied in their entirety.
Because the sanctions from the Panel's October 22, 2010, Order were entirely the result of Claimant's counsel's failure to effectively represent his client, and since said counsel was no longer in the case, the Panel waived monetary sanctions against Claimant Oshideri personally, but found Lawyer Roy liable and ordered him to pay to Respondent Fidelity Brokerage Services LLC monetary sanctions in the sum of $500.00.
SIDE BAR: I've sat in virtually all of the seats at the securities industry's arbitrations - Claimant's counsel, Respondent's counsel, arbitrator, and Panel Chair. As such, I fully appreciate that sometimes there are legitimate explanations for the delays noted in this case. Then there is also the problem of a client not paying a lawyer, and that lawyer trying to push things off until the check clears.
On the other hand, some parties and their lawyers take great pleasure in gaming the system. To some extent, that's all part of litigation. However, at some point, you give a referee a whistle and a flag for a reason - to keep the game fair and to keep the action moving. Solely based upon the recitation of facts in this FINRA Arbitration, the whistle should have been blown, the flag thrown, and the penalties assessed much earlier.
Without drawing any inferences from the FINRA Arbitration Decision about Roy's conduct, I am, nonetheless, compelled to take into consideration Footnote 5 in Kris Krishnan v. Cedars-Sinai Medical Center, et.al (Court of Appeal, Second Appellate District, California), which states in part:
The record shows that between January and March 2006, Roy was the subject of several discovery motions by respondents. On January 17, 2006, the court ordered Roy to exchange his expert witness list, to produce Krishnan for an independent medical examination (IME) within 10 days, and to supply more than just his previously produced W-2 form in order to prove his loss of earnings claim. In connection with those motions, respondents' counsel submitted a declaration stating that Roy said he had refused to turn over hie expert witness list because he did not want to "show [his] hand." . . . Krishnan was sanctioned $250 for failing to produce any more documents to support his lost earnings claim and was ordered to provide more documentation . . . and that Krishnan was ordered to pay $1,000 within three days. On March 28, 2006, the court awarded respondents' sanctions of $2,500 for discovery abuses . . . and warned that "[a] further failure to pay will result in further sanctions including striking of complaint." . . .