fraud; misrepresentation; negligence; breach of fiduciary duty; breach of contract; failure to supervise and/or negligent supervision; violation of the Pennsylvania Securities Act; and violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law. The causes of action relate to purchase of Pacific Life Insurance Annuities and Lincoln Financial Group Variable Annuities.
each document request submitted by Respondents National Planning and Kemp on June 24, 2019. When completed, Claimant must, with specificity, affirmatively certify that all requested documents within Claimant's possession, custody, or control have been provided. Any documents knowingly withheld under claim of privilege must be clearly described and the privilege identified.
As you may well imagine, little about this arbitration proceeded smoothly or in a linear fashion. We have extensions of due dates and motions for reconsideration. There was a mutual consent to adjourning January 2020 hearings because of "Claimant's personal circumstances." At some point, the litigation devolved into this:ordered Claimant to pay $25,000.00 to National Planning for discovery abuse and disrespect of the arbitration process (not participating in the discovery process and failing to obey specific order of the panel). The Panel again ordered Claimant to respond by January 3, 2020 to each document request submitted by Respondents National Planning and Kemp in June 2019. When completed, Claimant must, with specificity, affirmatively certify that all requested documents within Claimant's possession, custody or control have been provided. Any documents knowingly withheld under claim of privilege must be clearly described and the privilege identified and failure to comply with any aspect of this order can result in further financial sanction and dismissal of his claim with prejudice.By Order dated December 30, 2019, the Panel extended the required compliance date of the December 18, 2019 Order to January 10, 2020.On January 10, 2020, Claimant filed a Motion for Reconsideration of the Panel's Order dated December 18, 2019. On January 13, 2020, Respondents National Planning and Kemp opposed Claimant's Motion for Reconsideration.
And, no, all of those motions and orders still did not force the matter to a swift or orderly conclusion. We had more motions for reconsiderations and further delays until, lo and behold, we arrived at a September 23, 2020, videoconference hearing on the issue of Respondent Kemp's expungement, which Claimant opposed. Welcome to the Ball of Confusion!By Order dated April 29, 2020, the Panel re-asserted its previous Order for Claimant to pay Respondent National Planning $25,000.00; the Motion to Dismiss is granted for Claimant's material failure to comply with three Orders of the Panel, all claims asserted by Claimant against Respondents Kemp and National Planning are dismissed with prejudice; and Respondent Kemp shall submit required documents to support a Motion for expungement.On May 8, 2020, Claimant filed a Motion for Reconsideration of the Panel's Order dated April 29, 2020. On May 11, 2020, Respondents National Planning and Kemp opposed Claimant's Motion for Reconsideration. On May 12, 2020, Claimant filed an Amended Motion for Reconsideration requesting that the Panel rescind the April 29, 2020 Order and reinstate Claimant's Statement of Claim and allow the action to proceed on the merits. On May 13, 2020, Respondents National Panning and Kemp opposed Claimant's Amended Motion for Reconsideration.On May 11, 2020, Respondent Kemp filed a Motion for Expungement of this arbitration from his Central Registration Depository ("CRD") records. Claimant did not file a response to the motion.By Order dated June 4, 2020, the Panel amended the award of $25,000.00 as sanction for discovery abuse against Claimant to $15,000.00. By this same Order, the Panel denied Claimant's Amended Motion for Reconsideration of the April 29, 2020 Order to Dismiss.
1. Claimant's October 15, 2020 Second Motion to Reinstate Action and to Strike Monetary Sanctions is denied.2. Pursuant to the April 29, 2020 Order, Claimant's claims are dismissed with prejudice for Claimant's material failure to comply with three Orders of the Panel.3. Claimant is liable for and shall pay to Respondent National Planning the sum of $15,000.00 as sanction for discovery abuse, as assessed in the Panel's June 4, 2020 Order.4. The Panel recommends the expungement of all references to Occurrence Number 1993146 from registration records maintained by the CRD for Respondent Mark David Kemp (CRD Number 1932371) with the understanding that, pursuant to Notice to Members 04-16, Respondent Mark David Kemp must obtain confirmation from a court of competent jurisdiction before the CRD will execute the expungement directive.Unless specifically waived in writing by FINRA, parties seeking judicial confirmation of an arbitration award containing expungement relief must name FINRA as an additional party and serve FINRA with all appropriate documents.Pursuant to Rule 13805 of the Code of Arbitration Procedure ("Code"), the Panel has made the following Rule 2080 affirmative finding of fact:
The claim, allegation, or information is false.
The Panel has made the above Rule 2080 finding based on the following reasons:
On the basis of Mr. Kemp's unrefuted testimony, supported in detail by the documents presented to the Panel, the Panel finds that Claimant repeatedly expressed, both orally and in writing, his desire to purchase an income stream that would have zero risk of significant impairment. It is also evident that Claimant was informed repeatedly, both orally and in writing, of the costs associated with the products he was purchasing.
5. Any and all claims for relief not specifically addressed herein are denied.