by Bill Singer
No Show Employee Arbitration Claimant Sanctioned in Raymond James Case
September 9, 2011
In a Financial Industry Regulatory Authority ("FINRA") Arbitration Statement of Claim filed in May 2010 and as subsequently amended, Claimant Asch asserted:
- disability discrimination;
- wrongful termination;
- violations of New York Executive Law §296 et seq. (Human Rights Law - Unlawful discriminatory practices);
- New York City Administrative Code §8-107 and §8-502 et seq (New York City Human Rights Law); and
- the Family Medical Leave Act, 29 U.S.C. §2601 et seq.
Claimant Asch sought $500,000 in compensatory damages, interest, punitive damages, arbitration fees, and attorneys' fees. In the Matter of the FINRA Arbitration Between Mitchell Asch, Claimant, vs. Raymond James & Associates, Inc. and Peter Delahunt, Respondents (FINRA Arbitration 10-02284, September 6, 2011).
Respondents generally denied the allegations and asserted various affirmative defenses.
No Show
Claimant Asch was represented by legal counsel until December 14, 2010. Thereafter, Claimant did not appear at the February 1, 2011 pre-hearing conference ("PHC") to address the March 2011 hearing dates, Respondents' discovery requests, and Respondents' Motion for Sanctions.
The FINRA Arbitration Panel determined that Claimant Asch had been properly served and notified about the PHC, and admonished him that the arbitration would proceed without his participation.
On February 1, 2011, Respondents filed a Motion for Extension of Deadlines and a Motion for Sanctions for Claimant's failure to comply with previous discovery rulings. Claimant did not file a response.
By Order dated February 23, 2011, the Panel assessed against the Claimant all of Respondents' attorneys' fees, costs and expenses from December 3, 2010 to the date of the Order. Further, the Panel ruled that if the Claimant continued to fail to comply with outstanding discovery requests as confirmed in an Order to Compel dated February 1, 2011, that the Arbitration would be dismissed with prejudice as a sanction for the material and intentional failure to comply with an order of the Panel.
Sanctions
By Order dated April 13, 2011, the Panel assessed against the Claimant the sum of $18,669.94 representing all of Respondents' attorneys' fees together with all reasonable costs and expenses, other than forum fees, from December 3, 2010 to February 23, 2011. Further, the Panel ruled that if Claimant failed to comply with this Order that the Arbitration would be dismissed with prejudice as a sanction for the material and intentional failure to comply with multiple orders of the Panel.
On May 2, 2011, Respondents submitted a letter requesting this matter be dismissed pursuant to the Panel's previous orders and Claimant did not file a response. The Panel granted Respondents' motion.
Accordingly, the FINRA Arbitration Panel dismissed all claims with prejudice as a sanction for Claimant's non-compliance with the Panel's orders. Further, Claimant was found liable to and ordered to pay to Respondents as a sanction $14,587.50 in attorneys' fees and $4,082.44 in costs and expenses.
Bill Singer's Comment
What happened here? Unfortunately, as is too typical of FINRA Arbitration Decisions, we seem to know a lot more about what didn't happen - that is, Claimant's disappearance - than what did. We don't actually know what the gist of the dispute was in this matter. It appears to have been related to some grievance by former employee Asch against his former firm and some individual but, beyond that, your guess is as good as mine.
What we do know is that Claimant first retained a lawyer, then the lawyer withdrew, and then Claimant disappeared. Why do lawyers withdraw after an arbitration Statement of Claim is filed? Although there could be many reasons, the most typical is that the client can't continue to pay for the legal services. Another common explanation is that the client and the lawyer disagree about whether to accept a settlement offer or about the strength of the case. In any event, we don't know why Asch's lawyer withdrew.
What we do know is that having filed claims against two respondents, Asch had three acceptable options. One, he could have chosen to handle the case without counsel (pro se) and taken his best shot. Two, he could have hired substitute counsel. Three, he could have withdrawn the Claim.
Unfortunately, Asch opted for a fourth course of action: silence and non-participation. Depending on your adversaries and the make-up of the arbitration panel, such a vanishing act merely results in the case being dismissed. On the other hand, if you've antagonized your adversaries and the hearing panel, you may not simply get to walkaway without any consequence. In this case, the insult added to injury is that Asch started the arbitration based upon what I infer to be allegations of employment discrimination but wound up getting hit with a bill for more than $18,000 when he disregarded the arbitration panel's orders.
Perhaps the best lesson from this case is to never start a lawsuit that you're not prepared to finish.