February 22, 2012
In a Financial Industry Regulatory Authority ("FINRA") Arbitration Statement of Claim filed in August 2010, public customer Claimant Tarrant sought $500,000 in compensatory damages plus interest and cost, and punitive damages, as a result of damages allegedly sustained from his being solicited to invest in a real estate project and the subsequent sale of various securities (among which was a SunLife annuity) in his account to fund a loan made to Claimant's broker. Claimant Tarrant asserted causes of action for
Respondent Kovack Securities generally denied the allegations and asserted various affirmative defenses. In the Matter of the FINRA Arbitration Between Russell Stephen Tarrant, Claimant, v. Kovack Securities, Inc., Respondent (FINRA Arbitration 10-03532, February 13, 2012).
- breach of fiduciary duty;
- negligent supervision;
- fraud; and
- breach of contract.
SIDE BAR: Permit me a short rant at this point.
Those of you familiar with my reporting about FINRA arbitrations know that I detest the hide-and-seek nature of far too many of the organization's Decisions. Believing that a cogent presentation of the factual background of a dispute provides meaningful context to the ultimate ruling, I am puzzled as to why there appears no effort to enforce such a presentation.
In this case, for example, what I've written above is pretty much all that the Decision sets forth up to and until the Arbitration Panel announces its findings and sanctions. I mean, really? You're going to rule on liability in a case demanding at least $500,000 plus punitive damages and all that you're going to explain to us is that there was a dispute about how the customer was solicited and there were some further issues pertaining to the sales of securities to fund a loan to the broker? Wow . . . thanks for nothing.
The FINRA Arbitration Panel found Respondent Kovack Securities liable and and ordered the firm to pay to Claimant Tarrant:
Bill Singer's Comment
- $100,000.00 (pre-judgment interest specifically denied);
- $200,000 in punitive damages;
- $14,017.00 in costs; and
- $300 reimbursement of FINRA filing fee.
You know, it would help - really help - if FINRA required that its Arbitration Decisions followed a somewhat uniform format of setting forth a minimal recitation of the underlying facts so that the rulings are comprehensible and meaningful. In Tarrant, for example, we have a fairly unusual situation where a FINRA Arbitration Panel awarded punitive damages equaling double the award of compensatory damages. In and of itself, that's a notable event - it implies that the misconduct at issue was far more than a routine mishap and that the Respondent's future conduct needed to be influenced by this more severe sanction. Unfortunately, when sending such a message, the missive tends to get lost in the mail, so to speak, because it's virtually impossible to understand who did what here.
In its own words, this is what the Panel explained - not before rendering the financial awards but as part of that statement:
The panel determined that punitive damages should be awarded due to the egregious behavior on the part of the broker and the apparent lack of any system of supervision by the Respondent. The broker was employed for over two and one-half years by Respondent and there was no evidence of any compliance reports. The situation is more egregious given the Respondent was aware the broker had been terminated from another firm due to unreported and unapproved outside activities. Even though the broker disclosed an outside activity shortly after being employed by Respondent, there was no evidence of any type of supervision or monitoring system to ensure the outside activity was conducted properly. Additionally, the Claimant was never notified that the broker was terminated and continued to receive financial statements from Respondent listing the broker as the financial adviser. . .
Some Snotty Questions
So tell me, pray do, members of this FINRA Arbitration Panel:
Why do I rant about these bits of missing information? Because there is an obligation by FINRA to inform the public and the industry about these matters - otherwise, what's the point of issuing these Decisions? And while Kovack Securities isn't exactly a household name, that doesn't justify the lack of explanation.
- What was the name of the stockbroker who seems to have inflamed your ire? (You know, in case a public investor would like to look him or her up.)
- What constituted the "egregious behavior" that you cited? (Don't you think it might have been helpful if you set forth the acts and conduct?)
- What was the nature of the prior "unreported and unapproved outside activities?" (Why reference it if you don't explain it to us?)
- Did you vote to refer this matter to FINRA for a regulatory investigation?
Arbitrations are not supposed to be about punishing individual brokers and brokerage firms but about awarding restitution to harmed public customers or industry participants. In those rare cases where a Panel decides that it needs to do more than award compensatory damages, I think it is critical that such a sanction be justified and placed within its proper context by the arbitrators. It doesn't matter if it's a small indie/regional firm or some behemoth like Wells Fargo, Merrill Lynch, JP Morgan, or Morgan Stanley: The public and the industry are entitled to know sufficient background so as to explain a given Decision and to ensure that the desired message (if any) is properly transmitted. In the case of a relatively smaller firm such as Respondent Kovack Securities, the lack of detail about the individual broker and the underlying misconduct not only deprives us, the readers, of the ability to judge whether the punitive damages were warranted but also prevents the Respondent from defending itself to the public and the industry.
UPDATE March 2012:
In response to Tarrant's and Kovack Securities' Joint Motion for Order Vacating Arbitration Award and Dismissal of Action and all Claims, the United States District Court for the Southern District of Florida granted the Motion, vacated the FINRA Arbitration Award, and dismissed the action with prejudice. Russell Stephen Tarrant, Petitioner, v. Kovack Securities Inc., Respondent (Order Vacating Arbitration Award and Dismissing All Claims with Prejudice, 12-CV-60272 / March 23, 2012)
https://www.finra.org/sites/default/files/aao_documents/10-03532-Order%20to%20Vacate-FINRA-20120213.pdf As set forth in pertinent part in SDFL's Order:
As such, SDFL vacated the FINRA Arbitration Award and dismissed the action with prejudice. Whether or not the joint motion was prompted by a settlement between the parties is not stated in the SDFL Order.
Petitioner Russell Stephen Tarrant ("Tarrant") filed his Petition to Confirm
Arbitration Award [DE 1] seeking confirmation of a FINRA arbitration award rendered on
February 13, 2012 ("Award"), in favor of Tarrant and against Respondent Kovack
Securities, Inc. ("Kovack"). In response, Kovack filed its Opposition to Petition to
Confirm Arbitration Award and Cross-Petition to Vacate Arbitration Awanj [DE 18],
Kovack contended that the Award: (1) failed to comply with Florida law for the issuance
of awards containing punitive damages; (2) exceeded the scope of authority afforded by
Florida and federal iaw; and (3) demonstrated evident partiality by the arbitration panel.
In the present motion filed jointly by both Tarrant and Kovack, the parties have agreed
that there exists grounds for vacatur based upon the form of the Award. . . .