This is an update of "FINRA NAC Member Brummer Files Amended Defamation Complaint" (BrokeAndBroker.com Blog, January 19, 2017), which reported on the recent filing of an Amended Complaint in the defamation lawsuit by Plaintiff Brummer, who is a law professor at Georgetown University Law Center and served on the Financial Industry Regulatory Authority's National Adjudicatory Council ("NAC") from 2013 to 2015. Christopher Brummer, Plaintiff, v. Benjamin Wey, FNI Media LLC, and NYG Capital LLC d/b/a New York Global Group, Defendants (Amended Complaint, Supreme Court of the State of New York, New York County, File No. 153583/2015, January 13, 2017).
By way of a brief, and I mean very, very brief presentation of the issue that prompted Brummer's lawsuit, consider this allegation in the Amended Complaint:1. This action arises out of the vindictive and malicious conduct of defendant Benjamin Wey ("Wey") and the companies he controls, NYG Capital LLC d/b/a New York Global Group ("NYGG") and FNL Media LLC ("FNL Media"). Defendants have been waging a comprehensive and widespread internet defamation campaign against Professor Brummer, a Professor of Law at Georgetown University Law Center.2. Professor Brummer accordingly seeks, among other things, compensatory and punitive damages and an order enjoining Defendants from continuing their deliberate and relentless campaign of defamation, harassment, and intimidation, and from further tarnishing Professor Brummer's reputation.
READ: In the Matter of Department of Enforcement, Complainant, v. William Scholander and Talman Harris, Respondents (Decision, FINRA National Adjudicatory Council, Complaint No. 2009019108901, December 29, 2014).13. In August 2013, after a fully-litigated proceeding, a FINRA hearing panel found that two of Wey's business associates (William Scholander and Talman Harris) had violated Section 10(b) of the Securities Exchange Act of 1934, SEC Rule 10b-5, and FINRA Rules 2020 and 2010 for fraudulently marketing the stocks of Deer Consumer Products, Inc. This decision (the "Hearing Panel Decision") prohibited the parties from associating with any FINRA firm in any capacity. This Hearing Panel Decision was appealed to the NAC and ultimately affirmed on December 29, 2014. Professor Brummer served on the NAC panel that issued this decision (the "NAC Decision").14. Less than a month after the NAC Decision upholding professional discipline against Wey's associates, Defendants wrote and published on TheBlot an article about Professor Brummer titled "WANT TO GET RICH FROM A CRIMINAL? ASK CHRIS BRUMMER, GEORGETOWN LAW SCHOOL PROFESSOR." . . .
As used in this subpoena, "Gmail Accounts" refers, collectively, to the accounts associated with the following Gmail addresses:- firstname.lastname@example.org- email@example.com- firstname.lastname@example.org- email@example.com- firstname.lastname@example.org- email@example.com- firstname.lastname@example.org- email@example.com- firstname.lastname@example.orgITEMS TO BE PRODUCEDPlease produce documents containing the following subscriber data related to each of the Gmail Accounts:
The Affidavit of Adam Sherman, a lawyer for Plaintiff Brummer, asserts, in pertinent part:1. First and Last Names associated with the Gmail Accounts;2. Mobile phone numbers provided to register the Gmail Accounts;3. Alternate email addresses provided to register the Gmail Accounts;4. Dates the Gmail Accounts were registered;5. Dates, if any, that the Gmail accounts were deleted;6. Internet Protocol addresses from which the Gmail Accounts were created; and7. All Internet Protocol address history logs for the Gmail Accounts.
4. Plaintiff seeks to confirm the identities of the authors of the many defamatory statements anonymously or pseudonymously published about him on various websites online5. This includes serving a subpoena on Google Inc. ("Google") in California for certain business records, namely documents containing identifying information relating to several Google-owned email accounts ("Gmail Accounts") which were identified by the domain registrar company GoDaddy.com, LLC and domain privacy services company Domains By Proxy, LLC, in response to prior subpoenas in this matter. A list ofthe specific Gmail Accounts is contained in Attachment 3 (MC-025) of the subpoena.6. Specifically, Plaintiff seeks to obtain identifying information associated with the Gmail Accounts such as names, phone numbers, recovery email addresses, and Internet Protocol addresses. Plaintiff could then use that information to identify the individual(s) responsible for 5. 6. the anonymous or pseudonymous defamatory statements.
Bill Singer's CommentIn an outrageous and overbroad fishing expedition, Plaintiff has issued a subpoena to Google Inc. ("Google") seeking swaths of irrelevant and highly personal information related to at least 11 e-mail accounts belonging to numerous individuals and "subscribers" without making any attempt to comply with applicable law. Substantively and procedurally, the Improper Non-Party Subpoena is defective, illegal, and must be quashed with a protective order issued against any further attempts to obtain this information. Substantively, it is an overbroad, invasive, harassing, and illegal fishing expedition to obtain personal information about individuals and e-mail accounts extending far beyond the scope of the claims in the Complaint. Plaintiff has no conceivable need for information such as the cell phone numbers, I.P. account usage, and "all other information" that Google possesses for the accounts of the subscribers set forth in the Improper Non-Party Subpoena, almost all of whom are mentioned nowhere in the Complaint.Independently, and not surprisingly, the Improper Non-Party Subpoena is also facially and procedurally defective. It expressly fails to include any notice whatsoever as to "the circumstances or reasons such disclosure is sought or required" as must be done pursuant to CPLR 3101(a)(4), or the even stricter laws in Google's home state of California that require a specific affidavit and other information be attached to a subpoena in order to prevent exactly this kind of litigation misconduct.