December 29, 2018
In today's featured FINRA Arbitration we got a number. A BIG number. It's a demand by public customers for $7.8 million in damages from Morgan Stanley Smith Barney and Wells Fargo Advisors. In today's FINRA Arbitration we also have some interesting Claimants. We got former New England Patriots, Philadelphia Eagles, and Atlanta Falcons cornerback Asante Samuels, who, for whatever it's worth, has a tattoo on his arm that says "Get Rich To This." We got former Madison Square Garden employee, James Groves, who in 2009 won half of a $336 million Mega Millions jackpot. Obviously, we're tossing around some big bucks here, and that makes for an all the more interesting lawsuit. Except, FINRA's a bit of a party pooper. The FINRA Arbitration Decision is more titillation than explanation, but since you can't always get what you want, we're gonna have to make due with what we have.
Today, there are few industries where consultants are not active. In some situations, a consultant is brought in to find problems. In other situations, consultants are engaged to fix problems. In some circumstances, consultants are hired in anticipation of litigation. In other circumstances they are hired to assist in litigation. Consequently, there is often a ton of information provided to and developed by an industry consultant that you may want to keep confidential. But according to what legal theory? When these outside third-parties were finding or fixing problems or helping you deal with the impact of a lawsuit or regulatory investigation, they frequently interacted with in-house and outside counsel. Perhaps the attorney-client privilege or attorney work product would cover any negative findings? On the other hand, the outside consultants were not lawyers and you did speak with them before you r firm was named in any Complaint and before you actually hired your lawyer . . . uh oh. Consider how these issues just played out in a motion to quash an SEC subpoena directed at a consultant.
If you look it up, you will learn that there is -- purportedly -- only about three tablespoons of liquid in a typical egg. One of the great mysteries of the universe is displayed when you drop an egg on your kitchen floor. As you start to clean up the mess, you use one paper towel, then a few damp paper towels, and then you get a mop. Three tablespoons of liquid in an egg? No way!! The contents of a broken egg expand to flood any space with immeasurable quantities of goop. In today's FINRA arbitration, we have the lawsuit/regulatory equivalent of an unending mess that flows from inside a fairly small (egg-like) dispute. We start off with an arbitration complaint filed by FINRA member firm Scottsdale Capital Advisors against a former registered representative. It leads to six-figures in compensatory and punitive damages plus costs and fees. As we pick up the bits and pieces of shell from the arbitration, we need to get a mop and a bucket as we come upon one hell of a battle royale between FINRA and Scottsdale, which has expanded to include a missing witness, a FINRA Bar, and an SEC appeal.
Our Christmas really is a modern holiday, and those who would peg it back to biblical times and declare war over it need to get a grip. Still, we should celebrate it gladly, if only because the planet still makes its annual trip around the sun unmindful of our collective imbecility. The winter solstice has come again, and we are again in that time of year when the hope of brighter days is newly born. That's worth the festivities; we need no better reason.