At the evidentiary hearing held on March 27, 2019, the parties agreed that Arbitrator Roger A. Geddes ("Arbitrator Geddes") could participate telephonically in the evidentiary hearing to be held on the following day.On March 28, 2019, during the course of the second day of the evidentiary hearing, Respondent requested a postponement to retain counsel and because Arbitrator Geddes was not physically present in the hearing room. Claimant objected to Respondent's request because the parties had agreed to Arbitrator Geddes participating telephonically the day before. The Chairperson denied Respondent's request for postponement. The Chairperson found that Respondent had sufficient time to retain counsel prior to the evidentiary hearing since his former counsel withdrew from representing him on January 15, 2019.
POST-AWARD DISCUSSIONBelow, Chairperson Larry Edmonson ("Chairperson Edmonson") and Arbitrator Sheila Grinell ("Arbitrator Grinell") provide their individual comments on two interactions between Claimant's expert witnesses, Messrs. R and H, and Arbitrator Grinell following the conclusion of the evidentiary hearing. Arbitrator Geddes did not wish to include any comments in the Award.Chairperson EdmonsonAt the conclusion of the evidentiary hearing, Mr. R, openly in the hearing room, stated to Arbitrator Grinell that he would "see her next week." Arbitrator Grinell advised the panelists that she was appointed to hear another matter the following week. Mr. R, who maintains FINRA licenses 3, 4, 7, 8, 14, 24, 63 and 65, knows of the importance of due care and independence in arbitration, and so should Arbitrator Grinell. This statement made by Mr. R, prior to the deliberation of the Panel's award and in the hearing room with all concerned parties, compromises the Panel's independence in the eyes of opposing parties.Arbitrator GrinellRegarding Mr. R: As Chairperson Edmonson noted, Mr. R looked at me and said "see you next week" as he left the room after argument in the case had concluded. It took me a second to realize what he meant-that he was aware of another hearing in which I am also serving as arbitrator. I did not reply to Mr. R, but did explain my understanding of the comment to the other panelists.Regarding Mr. H: At the end of the hearing on March 28, after the Panel had deliberated and the majority had come to a conclusion, Chairperson Edmonson said he would proceed to write the order and return the recorder and exhibits to FINRA. He required nothing more from his co-panelists. From my point of view, the case was over.I stepped out of the hotel to call an Uber to go to the airport and found that Mr. H was also going to the airport in an Uber. In the hopes of making an earlier flight, I asked to share his ride but warned that I would not permit any talk about the case. Mr. H and I shared the ride and did not discuss the case.This shared trip to the airport had no bearing on my decision in the case, which had already been made in the presence of the other two arbitrators. Nor did Mr. R's spontaneous comment, to which I did not reply, have any bearing on the case. I fulfilled my duties as an arbitrator faithfully and fairly.
Dissenting Arbitrator's SignatureChairperson Edmonson dissents with the decision and would award Claimant $209,259,07 in compensatory damages for the unsecured debit balance. Claimant did not mitigate its losses As Respondent did on February 5, 2018, nor did Claimant contact Respondent to do so but merely monitored the Brokerage Account without any contact with Respondent. It is quite possible that the losses could have been mitigated with customer and broker support - - which Claimant did not offer or provide.
arbitrator misconduct to 1) not postpone the hearing so Mr. Sanduski could seek to retain counsel as was his right under Canon IV C of the Code of Ethics, 2) not postpone the hearing until all three arbitrators were physically present per FINRA rules for cases involving claims over $100,000, and 3) for evidence of arbitrator partiality in the form of Ms. Grinell's ex parte communications with not just one, but both of Schwab's witnesses, . . .
14. The hearing continued on day two for approximately six hours with arbitrator Mr. Geddes listening in via telephone. Several written items were introduced on day two which Mr. Geddes was not able to visual follow during their presentation. The nature of Mr. Geddes family emergency was not disclosed. The fairness of the hearing for Mr. Sanduski was compromised by the lack of Mr. Geddes physical presence at the hearing as required per FINRA rules for cases involving more than $100,000 in claims. If for example, he had had a sick child and Mr. Geddes needed to check on the child, there would be no way of knowing if Mr. Geddes was fully engaged at all times during the proceedings on day two.15. The hearing concluded on day two. As the parties were leaving, Jim Reilly who had been an outside expert witness for Schwab said "See you next week." to arbitrator Ms. Grinell. (see Exhibit A) In the Award letter posted May 9, 2019, Chairman Edmonson strongly rebuked this exchange when he wrote that it "compromises the independence of the panel in the eyes of opposing parties." Mr. Sanduski later found out that Ms. Grinell served on an arbitration panel the following week in Schwab vs. Jay Hu FINRA case No. 18-01469 (see Exhibit E) in which Mr. Reilly again testified as an expert witness for Schwab and for which Ms. Grinell again awarded a judgment in favor of Schwab.16. Mr. Sanduski was planning to submit a post-hearing brief but three days after the hearing on April 1, 2019, Mr. Sanduski received notice that arbitrator Ms. Grinell had had ex parte communications with Schwab witness and employee Jeff Hanson who is Schwab's managing director of margin services. (see Exhibit F) Ms. Grinell requested to share an Uber ride to the airport with Mr. Hanson and engaged him in conversation in clear violation of FINRA rule 12211 (h). The FINRA Arbitrator's Guide provides even more detail on this matter as quoted here from page 55: Avoiding Ex Parte Communications Unless operating under the Direct Communication Rule, FINRA Rule 12211 provides that no party, or anyone acting on behalf of a party, may communicate with any arbitrator outside of a scheduled hearing or conference regarding an arbitration unless all parties or their representatives are present. Communications include an exchange about the arbitration case, as well as an exchange of pleasantries or casual comments.17. Ms. Grinell in her disclosure on the matter said that the three arbitrators had decided the case shortly after the conclusion of day two and in her mind the case was closed. However, the FINRA Arbitrator's Guide warns on page 79 to avoid ex parte communications even after the hearing has closed: PART ELEVEN: AFTER THE CASE CLOSES Avoiding Party Contact Communications with the parties should be scrupulously avoided even after the proceedings are concluded. If a party contacts an arbitrator after the hearing closes, the arbitrator should notify FINRA staff immediately. A party should not directly contact arbitrators under any circumstances. Arbitrators should contact FINRA staff immediately if questioned about a case, asked to testify, asked to sign an affidavit, or threatened with a lawsuit by a party.18. Upon reading Ms. Grinell's post-hearing disclosure that the case had already been decided shortly after the end of closing arguments on March 28, 2019, Mr. Sanduski did not file a post-hearing brief feeling it would now be a waste of time.19. Mr. Hanson, like Mr. Reilly, was also a witness the following week for Schwab in Schwab vs. Jay Hu. Ms. Grinell's Ex Parte interaction with Mr. Hanson was disclosed prior to this hearing, (see Exhibit G), but it brings into question partiality concerns regarding arbitrator Ms. Grinell.
(1) the cited contacts demonstrated actual bias or prejudicial non-disclosure sufficient to justify vacatur under the Federal Arbitration Act ("FAA") 9 U.S.C. § 10(a)(2); and(2) panel's rejection of his mid-hearing postponement request was arbitrary or showed manifest disregard of the law, as required under §§ 10(a)(3) and 10(a)(4).
Arbitrator Partiality or CorruptionSIDE BAR: 9 U.S. Code Section 10: Same; vacation; ground; rehearing:
Even if the communications between Grinnell and Charles Schwab's experts were improper, Sanduski has also failed to demonstrate that "any prejudice resulted from the  contacts." While perhaps inappropriate, the majority of Grinnell's interactions with Charles Schwab's witnesses took place after she'd made her decision and determined that she would not be involved in writing the order. As she put it, "[f]rom my point of view, the case was over." And Charles Schwab's expert's acknowledgment that he would appear before Grinnell in a separate hearing is hardly the "sinister or inherently one-sided" contact that could prejudice an award or infect a decision with bias. In fact, Sanduski provides no evidence whatsoever that these communications affected Grinnell's decision or caused him "any disadvantage."40 So, I reject this as a ground for vacating the award.
In fact, this panel's decision to continue with the semi-virtual hearing is not only reasonable, but it does not appear to meaningfully deviate from FINRA Rule 12401, which makes no mention of whether a panel hearing requires the arbitrators to be physically present. Sanduski had a three-person panel, which is what the rule requires. Permitting Geddes to participate via telephone is likely a procedural alteration, which would not be grounds for vacatur. Accordingly, I find that the panel's denial of Sanduski's postponement request was not misconduct under § 10(a)(3).
[T]his statement made by Mr. R, prior to the deliberation of the Panel's award and in the hearing room with all concerned parties, compromises the Panel's independence in the eyes of opposing parties.
I stepped out of the hotel to call an Uber to go to the airport and found that Mr. H was also going to the airport in an Uber. In the hopes of making an earlier flight, I asked to share his ride but warned that I would not permit any talk about the case. Mr. H and I shared the ride and did not discuss the case.