Blog by Bill Singer WEEK IN REVIEW

March 28, 2015

On March 27, 2015, after a month of trial testimony and three days of deliberations, a California Superior Court jury found that Plaintiff Ellen Pao had not been discriminated against by venture capital firm Defendant Kleiner Perkins Caufield & Byers. Early evening reports were that the jury was at 8 to 4 on similarly dismissing claims of retaliation -- but at least 9 jurors were required and the judge sent the panel back for further deliberations. Upon the jury's return, they also acquitted by 9 to 3 on the retaliation claims. Pao's three-year lawsuit seeking $16 million in lost wages was rebuffed at the trial stage. For those of you truly interested in understanding the issues in dispute, the Blog offers in unedited full-text, Pao's original and amended Complaints and Kleiner Perkins' Answers. READ

In today's Blog, we have what I often refer to as a "yes, but" case. I'm sure you have encountered such ambivalence with many matters in your life. You get it why something was wrong. You may even agree with the punishment. On the other hand, your mind seems to prod you with "however" and "but," and you're left uneasy. Consider this recent FINRA AWC settlement in which a registered person is suspended by the self-regulator in 2015 for a 2011 loan made by a friend. READ

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Wall Street is supposed to be protected by smoke detectors in the form of endless amounts of rules and regulations, massive volumes of written supervisory procedures, and a legion of regulators and in-house compliance staff.  Of course, as with all such alarm systems, you have to make sure that you take the damn device out of the box, put the batteries in, and properly install it in the right location.  History suggests that this has not always been the case for the financial services community. Consider this recent regulatory settlement in which you have to wonder just what the hell was or wasn't going on in terms of detecting and responding to warning signs. READ

In 2006, after suffering several miscarriages, UPS driver Peggy Young became pregnant; and, in consideration of her prior pregnancies, her doctor instructed her to not lift over 20 pounds during the first 20 weeks of her pregnancy (and, thereafter, to limit the lifting to 10 pounds). That medical advice was contrary to UPS's policy requiring its drivers to lift packages of up to 70 pounds or up to 150 pounds with assistance. In response to Young's doctor's advice, UPS told Young that she could not work. As a result, Young stayed home without pay and subsequently lost her medical coverage. 

Young filed a federal lawsuit in federal District Court in Maryland against UPS , alleging that the employer had acted unlawfully in refusing a workplace accommodation; and she alleged that the employer had accommodated other drivers with similar disabilities. Young said that her co-workers were willing to help her with heavy packages. The District Court granted UPS' Motion of Summary Judgment, which was sustained on appeal by the United States Court of Appeals for the Fourth Circuit. Both the District and Circuit courts found that Young failed to establish a prima facie case for pregnancy discrimination because she could not prove that similarly situated UPS employees had received more favorable treatment than she did. She appealed to the United States Supreme Court.  Available online at, read the 4th Circuit and Supreme Court opinions, read the oral argument transcript, and listen to the oral argumentREAD

In the great 1967 film "Cool Hand Luke," we get that iconic line about "What we've got here is failure to communicate."  The scene involves the beat-down of a prisoner, played by Paul Newman, by a prison Captain, played by Strother Martin. In 2015, in a Securities and Exchange Commission case, we have a more droll example of the communication admonition. In these more modern days, it appears that a convicted felon's mail just can't seem to find him.  All of which brings to mind the other bit of dialog by Strother Martin in that same iconic scene, "Some men, you just can't reach." READ

Written: March 24, 2015

On March 24, 2015, the United States Supreme Court issued its Opinion inOmnicare, Inc., Et Al. v. Laborers District Council Construction Industry Pension Fund Et Al. (Slip Opinion; Supreme Court of the United States; Certiorari To The United States Court Of Appeals For The Sixth Circuit; No. 13-435; March 24, 2015)   Kagan, J., delivered the Opinion with Justices Roberts, Kennedy, Ginsburg, Breyer, Alito, and Sotomayor joining. Scalia, J. concurred in part and concurred in the judgment. Thomas, J. concurred in the judgment.  Available online at, read the 6th Circuit and Supreme Court opinions, read the oral argument transcript, and listen to the oral argumentREAD

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Customer Wins $378,000 in Ultra Short ETF Lawsuit

Consumer advocates and regulators tend to dislike so-called "exotic" or "leveraged" Exchange Traded Funds ("ETFs"). Many of the concerns are legitimate; however, too often the criticism demonizes the product rather than the laziness and stupidity of those who invest without an understanding of what they're buying. In contrast to the naysayers, professional traders and savvy amateurs often love a number of the unusual ETFs. No matter where you come down on the debate, there is simply no excuse for a lack of due diligence before investing -- and there should be no tolerance for any brokerage firm or stockbroker who fails to fully explain to a customer the risks of any recommended investment. Consider this recent FINRA arbitration case in which a customer sues a former brokerage firm and stockbroker over losses from one such ETF. READ