Body and Estate and Soul and a Counterfeiter and a Murderer and Merrill Lynch

March 28, 2018

Today's Blog considers allegations that Merrill Lynch caused the wrongful death of one of its customers. Yeah . . . I thought that opening sentence would get your attention. Let me further titillate you with the additional allegation that Merrill Lynch had assisted a prolific counterfeiter in defrauding the deceased customer. And if all of that doesn't entice you to read today's blog, you should know that it also includes three lovely music videos by Anita Baker, Amy Winehouse, Tony Bennett, and Billie Holiday -- as eclectic a group as you may ever find in the company of a murderer and counterfeiter (alleged as they may be).

Case In Point

In a Financial Industry Regulatory Authority ("FINRA") Arbitration Statement of Claim filed in December 2016, Claimant Pedersen, appearing pro se, asserted failure to treat in a just and equitable manner; defamation; slander; failure to provide undivided loyalty; exploitation of an elderly; negligence, gross negligence, negligent misrepresentation and omission, and negligent supervision; fraudulent misrepresentation and omission; fraud; breach of fiduciary duty; breach of contract; tortious infliction of emotional distress; and wrongful death.

As set forth in the FINRA Arbitration Decision, Claimant Pedersen sought:

1. Full rescission and reimbursement of unauthorized transfers from Gene Barger's personal accounts, including (1) $358,900.00, (2) $50,000.00 and (3) $25,000.00, for a total of $433,900.00, including prejudgment interest on all such damages to the statutory rate; 

2. All other damages based on fairness and equity, including damages for tortious infliction of emotional distress and wrongful death of Gene Barger;

3. Damages for $1,000,000.00 for tortious infliction of emotional distress for Claimant;

4. Treble Damages for Exploitation of an Elderly Person over 65 years of age;

5. Punitive damages in an amount sufficient to punish a corporation with the net worth of Merrill Lynch, but in an amount at least equal to three times the damages, including three times $433,900.00, or at least $1,301,700.00;

6. Any other compensatory damages that Claimant may have suffered, all as a result of Respondents' misconduct, as applicable, and prejudgment interest on all such damages at the statutory rate;

7. The Racketeer Influenced and Corrupt Organizations Act applies in this Statement of Claim. Merrill Lynch were assisting a prolific counterfeiter in conducting unauthorized transfers out of Gene Barger's account, not just on one occasion but at least on three occasions. Prior to these acts, Merrill Lynch was actively involved in drafting documents that would have transferred Gene Barger's assets out of his Living Trust and into a Joint Tenancy with a person whom Gene Barger was NOT considering a beneficiary in case of his death. Respondents repeatedly assisted, aided and abetted in the criminal conspiracy against Gene Barger which ultimately led to his unexpected death. Thus, Claimant is entitled to collect damages under the California Racketeer Influenced and Corrupt Organizations Act;

8. Fees, lawyer's' consultations, and other costs associated with research, filing fees by filing this claim; and

9. Any such other and additional relief as the Panel may deem just and proper. In the

In the Matter of the FINRA Arbitration Between Gitte Pedersen, an individual and in her capacity as duly appointed representative for Gene Barger's Body and Estate, Claimant, vs. Merrill Lynch Pierce Fenner & Smith Inc. and Peter D. Van Name, Respondents (FINRA Arbitration 16-03642 / March 22, 2018).

Respondents Merrill Lynch and Van Name generally denied the allegations and asserted various affirmative defenses.

Motion To Dismiss

In November 2017, Respondents moved to dismiss under FINRA Code of Arbitration Procedure for Customer Disputes Rule 12504: Motions to Dismiss. Respondents alleged that Claimant Pedersen lacked legal standing to bring this claim and that she had previously settled and released her claims. Claimant did not oppose the motion and did not appear at oral argument on the motion. Thereafter, on February 5, 2018, the FINRA Arbitration Panel granted the Motion to Dismiss based upon Claimant's lack of standing. In providing their rationale for the dismissal, the arbitrators stated that:

[C]laimant, a friend of Gene Barger, has no standing to bring this Claim and that, to the extent that she could possibly bring this Claim, she settled her claim in a written settlement agreement with the Court-appointed representative of the Estate and Trust.

The Panel assessed $25,771.22 in attorneys' fees and costs against Claimant.

Motion to Expunge

On February 20, 2018, Respondent Van Name moved to expunge all references to the arbitration from his Central Registration Depository records ("CRD"), and Claimant did not oppose and did not participate in the expungement hearing.

In recommending expungement, the arbitrators found that the claim, allegation, or information is factually impossible or clearly erroneous, and false.The Arbitrators explained that:

The evidence is clear that Claimant was not involved in, or connected with the underlying transactions in any way or at all. Gene Barger (now deceased) who was the actual customer personally approved each of the three transactions. His successor-in-interest, Andrew Wallet, Trustee, confirms that there was no wrongdoing by Respondent Van Name and that no claim existed against Respondents. The claim is entirely false.

Bill Singer's Comment

When I first saw that we had a pro se Claimant representing the "Body and Estate" of an individual, I said to myself, oh boy, this is gonna be a mess. As I read through the Claimant's demands and allegations, my initial expectations were confirmed. 

Claimant asserted that Respondents were assisting a prolific counterfeiter. Mind you, not just a run-of-the-mill counterfeiter but a prolific one! Not saying a counterfeiter was or wasn't involved in some dastardly way with this case but that allegation is not one you see everyday. Then there are the allegations about what the deceased Gene Barger was "NOT considering" in terms of a beneficiary. Always a lovely bit of diversion when folks attempt to present evidence of what someone was thinking, especially when that someone is no longer among the living. Finally, the charge that truly caught my attention: "Respondents repeatedly assisted, aided and abetted in the criminal conspiracy against Gene Barger which ultimately led to his unexpected death." More pointedly, Claimant alleged that Respondents had engaged in the "tortious infliction of emotional distress and wrongful death of Gene Barger." An absolutely breathtaking panorama of allegations!

So, let's chalk today's case in point as a fabulous diversion. If nothing else, it was one hell of an excuse to offer you three wonderful music videos in which several great voices croon about body and soul, which, when you think of it, is far more attractive than body and estate.