April 9, 2022
Perhaps the last thing that Plaintiff in a federal lawsuit wants to hear from the judge is "I don't care." In a recent bit of federal litigation, the public customer Plaintiff sort of got that response twice. Once, the Court didn't care if the customer did or didn't sign certain new account agreements. Second, the Court didn't care if the customer had intended to sign or not sign the agreements. Sometimes you sort of get the feeling that your case ain't going well.
When the opening sentence of any governmental report informs you that some bureaucracy has "identified a control deficiency," you know that what follows will require cases of toilet paper and gallons of deodorizer. Frankly -- sadly -- a recent SEC Statement is little more than a generic, non-specific bit of whitewash that stains the federal regulator's reputation. At issue is the improper access by the SEC's Enforcement staff of the SEC's Adjudication database. One is supposed to be walled off from the other. Think of it as if a federal prosecutor had the password to the database of the federal judge hearing a criminal case -- but the defense didn't. The SEC didn't rush to promptly inform the public about what looks like a breach of its confidential files by its own staff. Yet again, we have a government acting one way while insisting that we act another.
In that old Dr. John tune, he sings that "I been in the right place, but it must have been the wrong time." You're right, they just don't write 'em like that anymore! In a recent federal lawsuit against Wall Street's self-regulatory-organization FINRA, we have a Plaintiff who seems to have sued in the wrong court at the wrong time -- not exactly parroting the lines of the song but sort of capturing the spirit.
On Wall Street, there are rules and regulations requiring that a former employer truthfully disclose certain aspects of the firing of a former employee. That disclosure regimen is supposed to ensure that investor protection concerns are addressed by alerting the regulators to any troublesome aspect of the former employee's conduct that prompted the termination. Some think it is a healthy approach to encourage former employers to send up flares and ring alarms, even if it turns out that some of the initial concerns weren't warranted. Others think it's a terrible idea that weaponizes the termination process in a manner designed to hamstring former employees and hobble their abilities to retain their customers or subsequently compete with their former employer. In a recent federal lawsuit, a lot of the pros and cons of Wall Street's termination protocol are on full display.