FINRA Suffers Stunning Rebuke by SEC in Tysk Appeal

March 8, 2021

This rambling, shambling tale begins with a 2008 customer complaint, which morphed into a 2010 FINRA Arbitration against Ameriprise and a stockbroker. Responding to allegations of discovery shenanigans during that arbitration, in 2014, FINRA suspended the stockbroker for three months and fined him $50,000, but, on appeal in 2016, FINRA increased the stockbroker's suspension to one year. On further appeal in 2017, the SEC remanded the regulatory case back to FINRA. In 2019, FINRA smugly declined to budge. Suffice it to say, in 2021, the SEC was not amused with FINRA's lack of reconsideration.

2010 FINRA Customer Arbitration

In November 2008, public customer Guenther Roth filed a FINRA Arbitration Statement of Claim against Ameriprise Financial Services and his stockbroker, David Tysk. At the hearing, Claimant Roth sought $766,191.36 in compensatory damages, $213,000 in attorneys' fees, $36,000 in witness fees, and $50,000 in sanctions. Guenther Roth, Claimant, v. Ameriprise Financial Services, Inc. and David Tysk, Respondents (FINRA Arbitration Award 08-04425 / May 14, 2010) (the "2010 FINRA Arbitration Award").

The 2010 FINRA Arbitration Award asserts in part that Claimant Roth had alleged that:

Respondents recommended and purchased more than $2 million in unsuitable annuities using funds from his fixed-income account. Claimant alleged that the annuities were unsuitable for seventy-seven year old due to the fact that the annuities carried heavy surrender fees for ten years and generated income that was taxed at a rate nearly double than other more prudent investment choices. Claimant also alleged that Respondent charged him exorbitant fees for managing his accounts

at Page 2 of the 2010 FINRA Arbitration Award

As with many arbitrations, the Discovery phase did not go smoothly:

At the arbitration hearing, Claimant requested that the Panel award sanctions against Respondents due to various issues in regard to discovery problems with Respondents. After considering the pleadings, testimony and evidence presented, the Panel will award sanctions based on the following findings:

*Respondent Tysk altered the record of his contacts with Claimant after Claimant complained about the suitability of the annuity he purchased;

*Ameriprise failed to update its discovery responses to Claimant after it became aware that Tysk had altered the file;  

*Only after an Emergency Motion to Compel Discovery was filed at the eve of the rescheduled hearing did Ameriprise make Tysk's computer available to Claimant and allow Claimant to discover the changes; and  

*Respondents engaged in other attempts to block discovery by Claimant . . .

at Page 3 of the 2010 FINRA Arbitration Award

The FINRA Arbitration Panel ordered Ameriprise and Tysk to jointly and severally pay Claimant Roth $197,000 compensatory damages; $36,000 in witness fees; $213,000 in attorneys' fees; and $20,000 in sanctions.

Although not disclosed in the 2010 FINRA Award Pursuant to FINRA Code of Arbitration Procedure for Customer Disputes Rule 12104: Effect of Arbitration on FINRA Regulatory Activities; Arbitrator Referral During or at Conclusion of Case, the FINRA Arbitration Panel referred its concerns about Respondents Ameriprise and Tysk's document production to FINRA's Member Regulation Department.

SIDE BAR: Blog publisher Bill Singer is a vocal and ardent supporter of FINRA arbitrators undertaking regulatory referrals. As such, Bill applauds the Roth arbitrators' referral of their concerns to FINRA. For a sense of Bill's rationale for encouraging such referrals, see, for example

"Troubling Disconnect And Lack Of Appropriate Explanation Found In Scapegoat Defamatory Form U5 FINRA Arbitration" ( Blog /  June 1, 2020)

"Wife Says JP Morgan And Stockbroker Scammed Her In ReFi Of Ex-Husband's Mortgage" ( Blog /  March 8, 2019)

"Veteran Wall Street Critic Bill Singer Slams FINRA Expungement Process" ( Blog /  October 17, 2016)

2014 FINRA OHO Decision

After investigating the the Discovery issues cited by Arbitrators, FINRA's Department of Enforcement filed an Amended Complaint alleging that the Respondents had violated FINRA Rule 2010 by producing notes during the arbitration without disclosing that Tysk had altered them. In the FINRA Department of Enforcement, Complainant, v. Ameriprise Financial Service, Inc. and David B. Tysk, Respondents (Extended Hearing Panel Decision, Office of Hearing Officers, Disciplinary Proc. 2010022977801 / October 13, 2014) (the "2014 OHO Decision")

SIDE BAR: At this point, Tysk comes under FINRA's scrutiny not so much for his role in recommending the annuity purchase to Roth but for his conduct involving various notes pertaining to his contacts with the clients. Unfortunately, the road diverges in front of us because part of the 2014 OHO Decision discusses the Roth-Tysk relationship but the more material portion of the Decision discusses Tysk's notes. As such, whichever of the two diverging paths we take, we will still need to retrace our steps and amble upon the other. Given my responsibility as the narrator of this history, I will first guide you down the Roth-Tysk path; and, thereafter, I will bring you back to this same fork-in-the-road and take you down the Discovery path.

A Wealthy Businessman

In the 2014 OHO Decision, FINRA affords Roth some confidentiality and only refers to him in its regulatory case as "Client GR," who is characterized as "a wealthy businessman" in his "mid-seventies when Tysk first met him in December 2004." In early 2005, GR purportedly opened his Ameriprise account with $750,000 and by the end of the first year, that account had earned a 24% rate of return - thereafter, GR added $250,000. In June 2006, GR deposited about $20 million in investments and by the end of 2007, the customer had transferred about $28 million in assets for Tysk to manage. GR became Tysk's largest client and the two "developed a close personal relationship."

The Variable Annuity

Apparently, the rift in the close relationship arose in late 2006, when Tysk recommended a variable annuity into which GR invested a total of $2 million by July 2007. The annuity had a ten-year surrender charge that started a 8%, which would have cost GR about $140,000 if exercised in year one. On July 13, 2007, Ameriprise generated an exception report that flagged the annuity because of GR's age, which was 77. In response to the firm's demand to Tysk for his rationale supporting the recommendation, Tysk wrote that:

"GR had 'over $29,000,000 invested with me' and 'does not and will not need this money during his lifetime' "

at Page 7 of the 2014 FINRA OHO Decision

A Matter of Suitability

Ameriprise deemed the annuity suitable based on GR's net worth, available liquidity, and taxable income. Unfortunately, in January 2008, GR told Tyler that he was dissatisfied with the management of his account and in mid-March 2008, GR transferred his assets out of his Ameriprise account to another firm, leaving only the annuity behind. By letter dated April 2, 2008, GR complained to Ameriprise about the annuity and sought the waiver of the surrender charges and the forwarding of the proceeds to him. Thereafter, the dispute transitioned into a FINRA Arbitration, which ended with an awards in Roth's favor.

Okay, so -- let's turn around, retrace our steps, find that fork-in-the-road, and amble down the road dealing with FINRA's regulatory case against Tysk.

The Rule 12104 Disciplinary Referral from the Arbitrators

As alleged in the "Overview" section of the 2014 OHO Decision [Ed: Footnote omitted]:

This disciplinary proceeding originated from a referral by a FINRA Dispute Resolution arbitration panel to FINRA's Member Regulation Department pursuant to FINRA Code of Arbitration Procedure for Customer Disputes Rule 12104.1 The arbitration panel made the referral because Respondents Ameriprise Financial Services, Inc. and David B. Tysk produced documents in an arbitration proceeding without disclosing that Tysk had altered the documents after receiving a complaint letter from a customer.

The altered documents were printouts of notes of Tysk's contacts with customer GR, which Tysk had maintained in a computer program. Tysk made the changes appear as if they were notes made contemporaneously with the events described. GR became suspicious because the notes seemed to be too-perfectly tailored to the defense of his claim. GR requested further discovery to determine whether the notes had been altered after he lodged his complaint with Ameriprise. Respondents opposed the requests.

For months after the firm provided the notes in discovery, Tysk said nothing about the alterations. In a meeting to prepare for the arbitration hearing, he finally disclosed to Ameriprise that he had altered the notes. Nonetheless, neither Ameriprise nor Tysk informed GR that the notes had been altered.

As the arbitration hearing date approached, GR continued trying to obtain information about whether the notes were what they appeared to be. Ameriprise and Tysk opposed GR's efforts.

Just before the hearing, Ameriprise found an exception report relevant to GR's claim, which it should have provided months earlier. As soon as it could, Ameriprise turned it over to GR. GR claimed that the report was a "smoking gun," which may have been intentionally withheld, because it could have prompted Tysk to doctor his notes. GR demanded to be allowed to examine Tysk's computer program to analyze the notes.

Over Respondents' objections, the arbitration panel ordered Ameriprise and Tysk to give GR access to Tysk's computer hard drive. A forensic examination of the hard drive revealed for the first time substantive edits that Tysk had made to the notes after receiving GR's complaint letter.

At the conclusion of the arbitration hearing, the arbitration panel sanctioned Ameriprise and Tysk for violating arbitration discovery rules. The panel referred the matter to FINRA's Member Regulation Department for a disciplinary investigation.

After the investigation, the Department of Enforcement filed a Complaint, which it subsequently amended. The gravamen of the Amended Complaint is that Ameriprise and Tysk violated just and equitable principles of trade and the Code of Arbitration Procedure by producing the notes during the arbitration without disclosing that Tysk had altered them.

The underlying facts are largely undisputed. Respondents assert nonetheless that they did not act unethically. In summary, Respondents contend that Tysk altered his computer notes in good faith, to make them more accurately reflect the substance of conversations he had with GR. They argue that they complied fully with FINRA's arbitration discovery rules because they produced the notes at the arbitration hearing. Respondents maintain that they planned to have Tysk disclose the alterations during his testimony at the arbitration. They argue that this was the appropriate approach because arbitration procedures do not provide for extensive discovery, such as pre-hearing depositions and written interrogatories, and do not require an explanation in advance of the hearing that the notes had been altered. As to the separate claim that Ameriprise failed to produce the exception report as required, the firm attributes this failure to simple error, which it corrected promptly. . . .

Pages 2 -4 of the 2014 OHO Decision

The ACT! Notes: Arbitration-related Issues

In response to Roth's 2008 complaints, Ameriprise investigated and elicited the following response from Tysk [Ed: Footnotes omitted]:

Tysk felt strongly that GR's annuity was suitable and that Ameriprise's review confirmed that "everything" concerning the annuity was "in order." However, while preparing for his interview with Storrar's delegate, Tysk noticed that his Act! notes relating to GR were deficient, "not like all of my other notes, with the exception of my mother."  The Act! notes contained no references to the annuity, its cost, or surrender charge.  At the hearing, Tysk testified that "[i]t bothered me that I had a lot of information and things in my head and pieces of the story that weren't there and I wanted to add them." Therefore, Tysk said, "I added electronic notes in my contact management system." Tysk made most of the edits from May 13 through May 27, 2008. He added:

notes regarding meetings that I had with [GR] to essentially kind of preserve my thoughts and recollections  . . . I thought it was important to write things down. I think it felt good to review the file, I think it made me feel good, frankly, to just go through things kind of beginning to end.

Page 11 of the 2014 OHO Decision

The ACT! Notes: FINRA Regulatory-related Issues

In addition to producing notes in response to Roth's complaint and the ensuing FINRA arbitration, Tysk also produced materials in response to FINRA's regulatory investigation pursuant to its FINRA Rule 8210 powers:

In response to a Rule 8210 request, Tysk explained further:

At the time I thought it was rational and prudent for me to preserve facts and details known to me in chronological order . . . to write down the details of his complex file and our complicated relationship for my personal use so I would not forget them over time  . . . My only thought and purpose was to preserve for myself and my file the details of my personal and business relationship with [GR] as I recalled those details at the time.

Tysk testified that "[t]he notes weren't written for another reader"; he wrote them for himself. Tysk denied he acted to protect himself in light of GR's complaint letter. He also claimed that he was not worried that the references in GR's letter to NASD, the SEC, and the Minnesota attorney general were an implied threat that GR would report the matter to regulatory authorities if Ameriprise refused his request to waive the surrender charge. While Tysk asserted that he "wasn't concerned" about the complaint, he conceded that he did have some "concerns with the letter . . . because I knew the letter contained things that were not true."

at Pages 11 -12 of the 2014 OHO Decision

ACT!-ing Up

Tysk used the "relationship management tool" Act! to enter a range of client-related information, such as contact data, tasks, appointments, and meeting notes.  In presenting the magnitude of the Act! edits, the 2014 OHO Decision asserts that between May 23, and May 27, 2008, Tysk had made 54 substantive entries via both new and supplemental text. Clearly troubled by Tysk's conduct, the OHO declined to accept any good-faith argument and pointedly found that "Tysk backdated new entries to make them appear as thought they had been entered three years earlier than he wrote them." at Page 13 of the 2014 OHO Decision

Following the commencement of GR's FINRA arbitration, the OHO Decision provides this bit of dramatic foreshadowing which includes the dropping of a major sandbag upon Tysk's lawyers by Tysk himself [Ed: Footnotes omitted]:

Acting on that hunch, on May 8, 2009, GR's counsel sent a supplemental request to Ameriprise and Tysk to produce "[a]ll documents showing edits made by Mr. Tysk to the notes in the contact report . . . including but not limited to the edits made on May 27, 2008." This prompted Tysk's counsel on June 22, 2009, to ask Tysk by e-mail, "Do you know anything about any edits being made to the contact reports?" The e-mail continued, "I assume he picked the date [May 27, 2008] b/c that is the 'created date' stamped on the contact report  . . . My assumption was that was simply the date the report was printed off the computer." Tysk responded, "You are correct with your assumption. There are no other documents showing edits per the request." Tysk did not reply to his counsel's query asking if he knew "anything about any edits."

Tysk testified that after receiving the June 22 e-mail, he searched Act! attempting to locate earlier versions of his notes but was unsuccessful.  

On August 21, 2009, Tysk met for the second time with counsel to prepare for the arbitration hearing. This was when Tysk first disclosed that he had altered his Act! notes. His counsel immediately informed Ameriprise's legal department and asked Tysk to try to locate additional versions of his notes.

Page 19 of the 2014 OHO Decision

Ya Gotta Wince

The 2014 OHO Decision characterizes, in part, Tysk's defenses [Ed: Footnotes omitted]:

Tysk concedes that "a rep who modifies his notes makes us wince," and that altering the Act! notes was "not a best practice." But he insists that Enforcement failed to prove that he acted unethically in violation of NASD Rule 2110 and FINRA Rule 2010.

First, Tysk denies that he altered his notes to bolster his defense. He made the substantive edits in May 2008, six months before GR filed his arbitration claim. Even though this was after GR complained to Ameriprise about him, Tysk claims that he did not expect GR to file an arbitration action.  Tysk points out that Ameriprise's review of GR's complaint concluded that "there was no question" that the annuity was a suitable investment for GR. Therefore, he was justifiably "100 percent comfortable with the transaction," and confident that nothing would come of the concerns expressed in GR's letter.

Second, Tysk argues, he acted ethically and in good faith, because his motivation was to "make sure that his notes were accurate. Therefore the first cause of action must fail because it requires proof that he acted unethically, or in bad faith

As for the allegation that Tysk violated Ameriprise's document retention policies, Tysk argues that he "could not have knowingly or intentionally violated the firm's policies because he didn't know about the firm's policies." Furthermore, Ameriprise, which wrote and enforced the policies, evaluated Tysk's conduct and concluded that he did not violate them, a finding that Tysk believes the Panel should deem dispositive.

Pages 30 -31 of the 2014 OHO Decision

Good faith. Simple error. Let's read on and see how those justifications played out with the OHO Hearing Panel. The Synopsis from the 2014 OHO Decision states:

By altering computer notes of customer contacts after the customer complained about the suitability of a recommendation, and failing to inform his firm of the alterations when he produced a copy of the notes in discovery in an arbitration proceeding, Respondent David B. Tysk violated NASD Rule 2110, FINRA Code of Arbitration Procedure for Customer Disputes IM-12000, and FINRA Rule 2010. For this misconduct, Tysk is suspended in all capacities for three months and is fined $50,000.

By failing to inform the claimant in an arbitration proceeding that a copy of computer notes of customer contacts produced in discovery had been altered, Respondent Ameriprise Financial Services, Inc., violated FINRA Rule 2010. By failing to inform the claimant of the alterations, and failing to produce an exception report in discovery as required, Ameriprise violated FINRA Code of Arbitration Procedure for Customer Disputes IM-12000 and FINRA Rule 2010. For this misconduct, Ameriprise is censured and fined $100,000.

Respondents are assessed the costs of the hearing

2016 FINRA NAC Decision

Following his loss at the OHO, Tysk appealed to FINRA's National Adjudicatory Counsel ("NAC"); which not only affirmed the OHO findings but increased the sanctions imposed against Tysk from a $50,000 fine and a three-month suspension in all capacities to a $50,000 fine and a one-year suspension in all capacities. In the Matter of FINRA Department of Enforcement, Complainant, v. David B. Tysk, Respondent (NAC Decision, 2010022977801 / May 16, 2016). (the "2016 NAC Decision") 

Upon reviewing OHO's findings and sanctions, the NAC minced no words [Ed: Footnotes omitted :

Tysk backdated a customer record and concealed the revisions he made during the discovery stage of an arbitration proceeding. We intensely condemn such deception . . .

In making our sanction determination, we have weighed Tysk's claims of mitigation, and found only aggravating factors associated with his misconduct. Tysk admitted to his actions, and they were intentional. The extent to which Tysk attempted to conceal his misconduct and avoid detection, even after knowing that he was a party to an arbitration proceeding, is also aggravating. As an example, during the arbitration proceeding his attorney directly asked Tysk whether he knew about any revisions to his notes. Rather than being forthright, Tysk chose to remain silent about his wrongdoing until several months after being confronted. By entering the backdated descriptions and attempting to conceal them, Tysk demonstrated a troubling lack of integrity. We agree with the Extended Hearing Panel that Tysk subverted the arbitration process, which is an aggravating factor. See Noonan, 52 S.E.C. at 265 ("If arbitration is to be a meaningful alternative to litigation, its processes must be fair and free of abuse.") If Tysk's misconduct had not been discovered by a forensic investigation, the ability of the arbitrators to find the truth would have been undermined. The fact that Tysk's concealment was revealed does not lessen its potential to harm the arbitration process; his concealment is an aggravating circumstance.

Page 13 of the 2016 NAC Decision

Leaving little doubt as to its view of Tysk's conduct, the NAC concluded its Decision with this final slap:

In summary, Tysk fashioned his ACT! Notes to make it appear as if they were made contemporaneously with past events, attempted to conceal his misconduct, and has failed to show any mitigating circumstances. We find a three-month suspension is too lenient for Tysk's violative behavior and thus increase his suspension to one year in all capacities and fine him $50,000. We do so to discourage any future wrongdoing, and to protect the public interest. 

Page 15 of the 2016 NAC Decision

2017 SEC Opinion

On appeal to the SEC, In the Matter of the Application of David B. Tysk for Review of Disciplinary Action Taken by FINRA (SEC Opinion; '34 Act Rel. No. 80135; Admin. Proc. File No. 3-17294 / March 1, 2017), (the "2017 SEC Opinion")

Tysk challenged the 2016 NAC Decision's findings that:

[H]e violated just and equitable principles of trade. He asserts that he supplemented his notes to make them more complete before his customer filed the arbitration demand and observes that FINRA does not contend that the revisions he made were false. Among other things, Tysk argues that his firm's policies did not prohibit his revisions, that FINRA did not conclude that they did, and that he responded to discovery requests as required by FINRA arbitration rules. FINRA argues, among other things, that Tysk's revisions were misleading and were "backdated" because he added detailed entries in the present tense to his notes as late as years after the events he documented.

Page 3 of the 2017 SEC Opinion

FINRA's Opinion "Unclear" and "Did Not Explain"

The 2017 SEC Opinion found that FINRA's 2016 NAC Decision was insufficiently clear as to permit the federal regulator's review. Pointedly, the SEC found that:

[F]INRA's first cause of action alleged that Tysk violated just and equitable principles of trade by violating his firm's document retention policies, but it is unclear from the opinion under review if FINRA concluded that Tysk violated these policies. FINRA's second cause of action alleged that Tysk violated just and equitable principles of trade by violating arbitration discovery rules, but FINRA did not explain in its decision why Tysk's conduct during discovery violated just and equitable principles of trade. For the reasons explained below, we remand this case to FINRA to clarify its findings.

Page 2 of the 2017 SEC Opinion

What Exactly was "Unethical"?

In criticizing FINRA for not adequately explaining its findings in the First Cause, the SEC admonished, in part, that:

We cannot discern from the NAC's decision whether it concluded that Tysk violated firm policies by altering his notes. The NAC explained in a footnote that it "support[ed] the Extended Hearing Panel's finding that Tysk's actions called into serious question whether he complied with Ameriprise's retention policies" (emphasis added). This determination does not appear to constitute a finding that Tysk in fact violated his firm's policies. The NAC also stated, however, that it "support[ed] the Extended Hearing Panel's finding," which unambiguously concluded that "Tysk Violated Ameriprise's Policy." Indeed, Tysk's briefs evidence confusion over what exactly FINRA found in holding him liable under the first cause of action because, despite arguing that FINRA failed to find he violated firm policy, Tysk also challenges FINRA's "finding that Tysk unethically violated Ameriprise policy." 

Page 4 of the 2017 SEC Opinion

Reliance on Counsel

Similarly, in questioning the adequacy of FINRA's explanation for its finding that Tysk's conduct rose to the level of conduct inconsistent with just and equitable principles of trade, the SEC stated that:

Although the NAC found that Tysk "stonewalled producing the requested information until he was compelled by an arbitration order to have his computer examined by a forensic expert," it did not clearly address Tysk's argument that he relied on his counsel's advice in doing so. Elsewhere in its decision, the NAC determined that, because Tysk did not consult an attorney before he altered his notes, his claims of reliance on counsel were not mitigating. But that addresses Tysk's alteration of his notes before the arbitration was filed, rather than the second cause of action based on alleged discovery violations during the arbitration proceeding.

Page 5 of the 2017 SEC Opinion

Unable to make heads or tails out of FINRA's decisions, then Acting SEC Chair Piwowar and Commissioner Stein remanded the case to FINRA.

2019 FINRA OHO Decision On Remand

Some five years after the 2014 OHO Decision, some three years after the 2016 NAC Decision, and some two years after the 2017 SEC Opinion, the Tysk case returned to FINRA's NAC for a second bite of a now very rotten apple.  In the Matter of FINRA Department of Enforcement, Complainant, v. David B. Tysk, Respondent (OHO Decision, Complaint No. 2010022977801r / March 11, 2019) (the "2019 NAC Decision")

Tysk's Conduct Unethical

In 2019, again the NAC found that Tysk was guilty and re-imposed the same sanctions that it had imposed in the 2017 NAC Decision:

[A]fter reviewing the record anew, a preponderance of the evidence demonstrates that Tysk's conduct contravened Ameriprise's retention policies under its Code of Conduct. We determine that Tysk's misconduct violated FINRA's ethical rule because, by altering his ACT! Notes, Tysk created the false impression that he wrote contemporaneous notes of his conversations with GR. 

Page 8 of the 2019 NAC Decision

Going beyond a cursory recitation of its rationale for finding that Tysk had engaged in unethical conduct, the 2019 NAC Opinion addressed the SEC's remand concerns in a more direct manner:

We also find that Tysk's actions were unethical. Tysk did not just enter additional new note entries after GR complained to the firm. He deliberately created misleading evidence regarding when he documented his conversations with GR. Specifically, Tysk created for the first time 54 note entries and intentionally backdated them to make it appear that he had written down notes of detailed discussions with GR, when he had not. Tysk also supplemented 13 preexisting note entries to make it appear that his alterations were part of the original notes. Tysk's altered notes included new details about events and conversations he had with GR that occurred up to three years prior. Many altered notes directly addressed Tysk's investment recommendations that were the subject of GR's complaint. We find that Tysk engaged in a deceptive business practice that did not conform with the moral norms or standards of professional conduct when he altered his ACT! Notes to create the false impression that he entered notes of his conversations with a customer at the time of those conversations. His unethical conduct violated NASD Rule 2110 and FINRA Rule 2010. 

Page 9 of the 2019 NAC Decision

The 2019 NAC Decision also pointedly addresses the question as to whether Tysk's cited conduct during the Arbitration's discovery phase was inconsistent with just and equitable principles of trade. 

Although GR requested Tysk's edits to his ACT! Notes during discovery, Tysk did not produce them when asked. Having a hunch that Tysk's ACT! Notes were doctored, in May 2009, GR's counsel made another discovery request that Tysk provide "[a]ll documents showing edits made by Mr. Tysk to the notes . . . including but not limited to the edits made on May 27, 2008." Tysk's counsel asked Tysk outright whether he knew anything about "any edits being made to the contact reports." Instead of admitting that he altered his ACT! Notes extensively, Tysk responded: "There are no other documents showing edits per the request." Tysk's counsel then repeated Tysk's falsehood in response to GR's discovery request, stating "there are no such responsive documents." It was only when the arbitration panel granted GR's motion to compel discovery and ordered a forensic search of Tysk's computer that GR learned of Tysk's 54 new note entries and 13 note entries with additional details added. Tysk's intentional withholding of discoverable information was conduct inconsistent with just and equitable principles of trade. See Dep't of Enforcement v. Westrock Advisors, Inc., Complaint No. 2006005696601, 2010 FINRA Discip. LEXIS 26, at *19 (FINRA NAC Oct. 21, 2010) (finding the intentional withholding of discoverable information that is in one's possession or control constitutes conduct inconsistent with just and principles of trade). 

Tysk also failed to satisfy the discovery rules under the Arbitration Code. When GR's counsel requested Tysk's edits to the ACT! Notes, FINRA Rule 12506(b)(1) required Tysk to produce them, object to the production, or state the reason why he could not supply the documents showing the edits to his ACT! Notes. The evidence shows that Tysk took none of these courses of action. For example, although Tysk argues that he did not possess previous versions of his ACT! Notes, he still had the obligation under FINRA Rule 12506(b)(1) to explain his inability to produce the requested edits. By failing to act as required in response to GR's discovery request, Tysk violated the rule. Tysk also failed to meet the requirements of FINRA Rule 12506(b)(2). Instead of "us[ing his] best efforts to produce all documents required or agreed to be produced," as required by the rule, the evidence shows that Tysk made no reasonable attempts to search the saved ACT! database files on his computer and determine whether back-ups of his ACT! Notes existed. 

We find that Tysk's discovery violations of the Arbitration Code also contravened just and equitable principles of trade because Tysk acted in bad faith when he knowingly withheld providing his edits to his ACT! Notes in response to GR's discovery request. When Tysk  responded to his counsel that there were no documents showing any edits and revealed nothing regarding his extensive alterations, Tysk was deliberately concealing important information from GR and the arbitration panel. He was acting in bad faith. See Blair Alexander West, Exchange Act Release No. 74030, 2015 SEC LEXIS 102, *23 (Jan. 9, 2015) (finding respondent's concealed actions from his customer and his deceit further demonstrated deliberate intent and bad faith), aff'd, 641 F. App'x 27 (2d Cir. 2016). Had the arbitration panel not granted GR's motion for a forensic search of Tysk's computer, Tysk may well have hidden the truth from the arbitration panel. Tysk's misconduct threatened the integrity of the arbitration process." His failure to adhere to the discovery provisions under the Arbitration Code and withholding of discoverable information in bad faith violated IM-12000 and FINRA Rule 2010. . .

Pages 12 - 13 of the 2019 NAC Decision

Reliance on Counsel

Finally, the 2019 NAC Decision rebuffs any suggestion that the consideration of sanctions should reflect some mitigation arising from Tysk's alleged reasonable reliance on competent legal advice. In pertinent part the Decision states that:

[W]hile Tysk claims that he relied on his attorney to make decisions about documents and information to produce in discovery and for litigation strategy, we find no evidence that Tysk solicited advice from, and was advised by, his attorney to withhold his edits until he was compelled to do so by an arbitration order. In fact, during discovery, Tysk's attorney outright asked Tysk whether he knew about any edits to his notes. Instead of openly admitting to his actions, Tysk diverted the question and answered that no documents showed his edits. Moreover, Tysk testified that, after his confession, he had no discussion with his attorney about whether to disclose to GR that he altered his ACT! Notes. We therefore find no basis to mitigate the sanctions under a reliance on advice of counsel claim.

Page 17 of the 2019 NAC Decision

2021 SEC Opinion

On April 10, 2019, Tysk again appealed FINRA's findings and sanctions to the SEC. In the Matter of the Application of David B. Tysk for Review of Disciplinary Action Taken by FINRA (SEC Opinion; '34 Act Rel. No. 91268; Admin. Proc. File No. 3-17294r / March 5, 2021), (the "2021 SEC Opinion").

In March 2017, four years ago, the SEC first remanded FINRA's case back to the self-regulatory-organization; and, here we are, in March 2021, and the ping pong game continues with the ball back in the federal regulator's court.  Out of respect to your and my exhaustion with this case, let me cut to the chase: The SEC found that FINRA's record did not show that Tysk had violated FINRA Rule 2010 and NASD Rule 2110; and, accordingly the SEC set aside FINRA's finding of liability on both the first and the second causes of action (by Acting SEC Chair Lee and Commissioners Peirce, Roisman, and Crenshaw).

SIDE BAR: By way of re-cap, this is the SEC working definition of FINRA's First and Second Causes of Action [Ed: footnotes omitted]:

[T]he first cause of action alleged that Tysk violated FINRA Rule 2010 and NASD Rule 2110 by "alter[ing] his customer contact notes after receiving" the complaint letter "to bolster his defense of the customer's claim . . . in violation of his firm's policies." The first cause of action also alleged that Tysk had revised his ACT! notes during the arbitration-an allegation FINRA ultimately found unsupported by the facts. The second cause of action alleged that Tysk violated IM-12000 of the FINRA Code of Arbitration and FINRA Rule 2010 by not notifying his client or Ameriprise of the edits to his ACT! notes when he "responded to discovery requests for his notes and when he responded to subsequent requests for edits to his notes."

FINRA's First Cause of Action: High Standards

On appeal, the SEC found in large part that the record of FINRA's proceedings did not establish that Tysk had:
  • violated FINRA Rule 2010 and NASD Rule 2110 with respect to the first cause of action; 
  • unethically created a "false impression" that he made his notes contemporaneously with the events he documented; or
  • supplemented his notes "to bolster his defense" of a potential claim by his former client.
As to the First Cause of Action in FINRA's Complaint, the SEC set aside that finding of violation, in part, because [Ed: footnotes omitted]:

We find that the record does not show that Tysk attempted to create a false impression as to the date he created the notes, either affirmatively or by implication. In May 2008, Tysk added information to his ACT! notes about earlier conversations and interactions with his client and assigned to those notes the dates the events occurred. But Tysk did not explicitly or implicitly represent that he made those entries on the dates of the events to which they pertained. Rather, the only physical record of the notes in the client file -- the printed contact report at issue -- stated on its face that it was last edited by Tysk on May 27, 2008. Testimony from the forensic expert also suggests that it was a "bad installation" of the ACT! program on Tysk's computer -- and not any action on Tysk's part -- which resulted in the program not saving the date each note entry was modified.

FINRA relies on the fact that Tysk manually "overrode the ACT! Notes default prompts that would automatically populate the current date" when he supplemented his notes with new entries. But Tysk says that he entered information about past conversations and events in order to create a chronological record of his relationship with his client, which is a plausible explanation for why Tysk electronically labeled that information with the dates the conversations and events took place rather than the dates he made the notes. Unlike in the cases that FINRA cites, there was no evidence or even allegation that the events Tysk recorded occurred at a different time than the dates that he documented they occurred, which if present would suggest unethical conduct and an intent to mislead.

at Pages 8 - 9 of the 2021 SEC Opinion

As to the allegation that Tysk's supplementation of his notes was intended to enhance his defenses against the customer's complaint, the SEC does not overlook the unsettling nature of Tysk's revisions; however, even after taking his conduct into consideration, the federal regulator admonishes that:

[A]s noted above, over 90% of Tysk's supplements to his notes did not concern the annuity about which the client had complained. And there is no evidence that Tysk or Ameriprise relied upon the supplemented notes during the firm's suitability review. There is also no evidence that after Tysk's client filed his arbitration claim in November 2008 Tysk relied upon his supplemented notes in discussions with Ameriprise or his lawyers-not even the notes relevant to the annuity in question. No party to the arbitration used any version or aspect of the notes to support its case on the issue of suitability during the arbitration hearing. Finally, Tysk's testimony that he told his lawyer that he would not oppose a forensic examination of his computer is undisputed and suggests a lack of unethical purpose in supplementing his notes.

at Page 9 of the 2021 SEC Opinion

Although the SEC makes relatively short shrift of FINRA's finding that Tysk's alleged violation of Ameriprise's Code of Conduct constituted a violation of NASD Rule 2110 and FINRA Rule 2010, as a veteran industry regulatory lawyer, I find that portion of the 2021 SEC Opinion to be among the most important -- and, perhaps, an historic admonition to FINRA as to where it's legitimate regulatory jurisdiction starts and ends. Pointedly, consider this finding by the SEC:

We need not decide whether Tysk violated the cited provision of Ameriprise's Code of Conduct because even if he did so FINRA failed to establish he thereby violated FINRA Rule 2010 and NASD Rule 2110. A violation of a firm policy does not necessarily mean that a registered representative has also violated these rules. On remand, FINRA explained that its conclusion Tysk violated Rules 2010 and 2110 was based on its findings that his "actions violated his firm's policies and constituted unethical conduct." But for the reasons discussed above, we find insufficient evidence that Tysk engaged in unethical conduct. 

at Page 10 of the 2021 SEC Opinion

FINRA's Second Cause of Action: Discovery

In considering FINRA's second cause of action, the SEC also set the self-regulatory-organization's findings aside. Pointedly, the SEC found that FINRA did not prove that Tysk had deliberately produced a misleading document or acted in bad faith. Weighing heavily on the SEC's deliberations was that Tysk's annotations/revisions "made clear on its face that Tysk edited them in May 2008," which undercut the argument that he intended to mislead the customer and arbitrators by presenting the produced materials as of an older, "contemporaneous" date. Additionally, the SEC refused to accept FINRA's findings that Tysk's responses to questions about his edits were rendered by him in "bad faith." Finally, the SEC credited Tysk's testimony as to his lack of expertise in using certain search features of ACT!.

Finally, as to Tysk's alleged violations of FINRA Rule 12506(b), the SEC offered a more constrained view of Tysk's discovery obligations [Ed: footnotes omitted]:

[H]e was under no obligation to create new documents. FINRA found that the contact reports the forensic expert produced "were not creations as Tysk suggests, but rather were printouts of ACT! database files saved on the hard drive." As discussed above, the forensic expert's testimony made clear that his contact reports were not printouts that an ordinary user could generate without forensic expertise. 

at Page 12 of the 2021 SEC Opinion

Also READHigh Standards In Low Places On Wall Street ( Blog /  March 5, 2021)

Bill Singer's Comment

For his  dedicated and superb representation of David B. Tysk, kudos to Eversheds Sutherland (US) LLP's Partner Brian L. Rubin 

What a long, strange trip this has been! 

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