BrokeAndBroker.com Hit With Second 2022 DMCA Takedown Notice After Prevailing in Same Dispute in 2020

September 16, 2022

RESPONSE TO September 13, 2022, DMCA TAKEDOWN NOTICE
AFTER
January 2020 DMCA Takedown Notice Reversed

I, BILL SINGER, am a lawyer who represents securities-industry firms, individual registered persons, Wall Street whistleblowers, and defrauded public investors. 

For nearly four decades, I represented clients before the American Stock Exchange, the New York Stock Exchange, the Financial Industry Regulatory Authority (formerly the NASD), the United States Securities and Exchange Commission; in criminal investigations brought by various federal, state, and local prosecutors; and I have the distinction of representing witnesses during Congressional investigations. In 2015, I achieved a significant award of approximately $1.5 million from the Securities and Exchange Commission on behalf of a whistleblower client, who was the first in-house compliance officer to be declared eligible under the rigorous Dodd-Frank exemptions. 

I am presently Of Counsel to a law firm. Before entering the private practice of law, I was employed in the Legal Department of Smith Barney, Harris Upham & Co.; as a regulatory attorney with both the American Stock Exchange and the NASD (now FINRA); and as a Legal Counsel to Integrated Resources Asset Management. I was formerly Chief Counsel to the Financial Industry Association; General Counsel to the NASD Dissidents' Grassroots Movement; and General Counsel to the Independent Broker-Dealer Association. During my four-decades on the Wall Street regulatory scene, I have been a vocal advocate for securities industry reform and investors rights. I oppose mandatory arbitration for investors and associated person, and am a leading critic of the present form of self-regulation.

Since 1989, I have been a law firm Partner/Of Counsel whose core areas of concentration in securities-industry law are Regulatory/Compliance; White-Collar Criminal; Membership Applications; Issuer Listings; Litigation/Arbitration; and Congressional Investigations. For a number of years, I was a Series 7 and Series 63 stockbroker. Also, I served as a Hearing Officer for the New York City Environmental Control Board and a Business Editor for Prentice-Hall, Inc.

From 1997 to 2011, I was the author of Registered Rep. Magazine's "Street Legal" column. From 2009 to 2013, I authored the "Street Sweeper" column for Forbes.com.  For several years I was the author of the "Summary Discipline" column for Institutional Investor / Wall Street Letter. Also, I hosted the "Side Bar" (Thomson Reuters) and "Case in Point" (Penton/Wealthmanagement.com) video series during which I interviewed leading broker-dealer, investment advisory, and industry compliance guests. 

I am the founder/publisher of the Securities Industry Commentator, RRBDLaw.com, and the BrokeAndBroker.com Blog.

The Securities Industry Commentator was launched in November 1998 under the Rrbdlaw.com website. http://www.rrbdlaw.com/1998/PartI.htm

The BrokeAndBroker.com Blog was launched on or about April 25, 2005, http://www.brokeandbroker.com/index.php?a=blog&id=2 and has published over 6,000 posts since that time. http://www.brokeandbroker.com/index.php?a=archive  

2020 DMCA Takedown Notice

Sometime on or about January 8, 2020, my web hosting service informed me that its Abuse Department had received a DMCA takedown notice 
https://www.lumendatabase.org/notices/19997809 regarding my page: 
http://www.brokeandbroker.com/index.php?a=blog&id=318  
My BrokeAndBroker blog article cited in the DMCA takedown notice, "What Is On First? No, What Is On Second. Who Is In Arbitration," was the 318th posted by me and contained content that I personally authored over 12 years ago on February 25, 2010, as noted in the posted content. As is set forth on the bottom of the page at issue and on all similarly published content (with updated current years):

RRBDLAW.com & Securities Industry Commentator™ © Copyright 1998-2022 Bill Singer. Third party Trademarks, graphics, and/or content are the property of their respective owners.

Blogspot/Fastest Author Orlando "Bill" Ruiz?

The alleged infringed-upon article cited by the DMCA takedown notice was
https://news-postonline.blogspot.com/2010/02/what-is-on-first-no-what-is-on-second.html The article claiming infringement is located under a website titled "Fastest," which appears to be emanating from India and authored by an "Orlando Ruiz" https://fastest-templatesyard.blogspot.com/

The purportedly infringed-upon Blogspot.com/Ruiz article discusses an arcane Wall Street legal issue and has no discernible relationship to the other content posted on the Fastest site. Pointedly, I assert that the Blogspot/Ruiz article is populated with content that has been stolen from my BrokeAndBroker.com archive and re-posted. In addition to the fact that the Blogspot article is a virtual verbatim re-post of my copyrighted intellectual property, it clumsily failed to eliminate a reference/attribution to me by my name ("Bill")  in their re-published article: 

Don't Leave Me This Way. I Can't Survive, Can't Stay Alive

But Bill, you plead and beseech of me, don't leave us this way (with all respects to Gloria Gaynor).  Surely, surely the FINRA Arbitrator at least explained the point of the 2006 Settlement Agreement.  Just give us that much, you beg of me.  Okay, just to toss you one last bone, here is the Arbitrator's definitive explanation of the 2006 Settlement Agreement:

If the so-called Orlando Ruiz had written the 2010 article, the "But Bill" reference above should have been "But Orlando." It's hard to point out a more glaring example of why the article at issue was authored by "Bill Singer" and not "Orlando Ruiz." Similarly, it's hard to imagine a more compelling proof upon which a DMCA Takedown should be denied.

Because the Fastest/Blogspot site appears distributed by Google's Blogger, I filed a request with Google and with Lumen to take down the infringing Orlando Ruiz article. I informed Google and Lumen that I believe that there is no real "Orlando Ruiz," and that said attribution is wholly fictitious. Moreover, there is no online history of any Wall Street legal, regulatory, or compliance content attributed to such an author by the name of Orlando Ruiz but there are some 20-plus years of such authorship attributed to Bill Singer. 

Down But Not Out!

Inexplicably, the DMCA takedown notice was honored against my copyright material, and in response to threats from Google to de-index my site and cease AdSense revenue, I removed my "318" article from its published state but it remained on my content management system in unpublished form. That being said, should this outrageous effort to silence me persist, I will continue to re-post and re-post and re-post the essential elements of the FINRA Lombard v. GunnAllen Arbitration Decision in order to thwart any effort to censor my content. If an aggrieved party or non-party had simply contacted me in 2020, explained why my 2010 article was an issue for them, and provided some compelling reason for the deletion or redaction of his or her name, I may well have been persuaded to offer some accommodation. I never received any such communication. 

I suspect that someone retained a so-called "Reputation" defense company, which misused the DMCA takedown process as a way to delete an unwanted, negative reference from the Internet. There is much literature on this despicable practice and there are growing complaints about the manner in which takedowns are approved and executed. The abuse of this process likely protects the reputations of many fraudsters and criminals, and probably extends to those who are just discomforted by having their name online. I have absolutely no idea as to who may be behind the DMCA notice pertaining to the 2010 FINRA arbitration that I reported, and I have no idea as to their purpose. Be that as it may, the effort failed because I have posted a new story about the same case. In the event that I continue to receive DMCA notices for this story and am forced to un-publish my original, copyrighted content should my appeals fail, I will re-write a new article detailing the very same litigation -- and I will do so as long as I am alive.

Inexplicably, on September 13, 2022, I was the subject of another DMCA Takedown Notice citing the exact same BrokeAndBroker.com Blog #318 and arising from the same Fastest/Blogspot page and source!!!

Here we go again: Did you hear about that 2010 FINRA Arbitration?

As noted
In the Matter of the Arbitration Between Jay Lombard, Claimant vs. GunnAllen Financial, Inc., and David Neil Soiferman, Respondents (FINRA Arbitration Case Number: 09-04105, February 24, 2010)
https://www.finra.org/sites/default/files/aao_documents/09-04105-Award-FINRA-20100224.pdfin 2009, public customer Jay Lombard asserted claims for breach of fiduciary duty, omission of facts, and failure to supervise, which Respondents GunnAllen and Soiferman denied. Claimant Lombard sought $100,000 in compensatory damages and $40,000 in interest. Respondents GunnAllen and Soiferman requested dismissal of the claims. In January 2010, Claimant Lombard withdrew his claims against Respondent Soiferman and attempted to amend his Statement of Claim to add a Jamie Diaz as a new Respondent, which the sole FINRA Arbitrator denied.

In response to remaining Respondent GunnAllen's January 22, 2010, Motion to Dismiss, the sole FINRA Arbitrator dismissed Claimant Lombard's claims as against remaining Respondent GunnAllen. In his rationale, AND QUOTING FROM THE PUBLISHED FINRA ARBITRATION DECISION, the FINRA Arbitrator stated at
https://www.finra.org/sites/default/files/aao_documents/09-04105-Award-FINRA-20100224.pdf):

1. During July 2004 the Claimant, for his retirement account with GunnAllen had purchased in a private placement, as an "Accredited Investor", one Unit of Florida Capital Apartments 2004, Ltd. That purchase and Claimant's subsequent retention of that investment form, in alt their aspects, the gravamen of Claimant's Statement of Claim in this matter. It now appears that in March 2006 Claimant and GunnAllen had entered into a written Settlement Agreement and Release dated March 7, 2006 (the "Agreement" included as part of Exhibit C to Respondent's motion papers) with reference to a dispute that had arisen between them concerning certain alleged improprieties with respect to Claimant's account at GunnAllen, expressing their "desire to compromise and settle all claims, causes of action, injuries, and damages asserted or that may be asserted [emphasis added]" and providing for payment of $5,547.00 to Claimant by GunnAllen, in full settlement. The precise nature of the unspecified improprieties is nowhere described, and has not been identified by either party, apart from their both agreeing that it was completely unrelated to Claimant's July 2004 investment that is the subject of this arbitration proceeding. 

2. The Agreement further states that its "[p]erformance.. .will operate as a genera/ release [emphasis added] by and between GunnAllen and Claimant and their present and former representatives." Nowhere is this "general release" qualified or limited In any way to reference to any specific claim or any kind of claim; as written (and despite its being far from a model of legal draftsmanship in most respects), agreed to and fully performed it is sufficiently broad in its reach to include the claims made by Claimant in his Statement of Claim, which have to do with a transaction entered into almost two years prior to the settlement and are plainly "claims . . . that may be asserted", as indeed they have been, subsequent to execution of the Agreement. The Agreement was signed by both parties, and the required payment was made to Claimant a few days following its execution. 

3. Claimant now asserts that his signature to the Agreement was procured by fraud on the part of GunnAllen's registered representative Jaime Diaz, and that he did not at all understand its purpose or effect as a general release, but was assured that it was simply a document he was required to sign in order to obtain the promised payment, which he did. However, the final paragraph of the Agreement, which Claimant, hardly an uneducated person, indeed a physician, must conclusively be presumed to have read and understood, states in relevant part immediately preceding its signatures that "all parties having consulted legal counsel, or having been advised to consult legal counsel, and having had full opportunity to do so, [emphasis added] . . .hereby acknowledge that the provisions of this Agreement shall be binding upon themselves and respective heirs and next of kin, executors, and administrators." Their respective signatures appear directly below, with Claimant's signature dated March 25, 2006, and that of Jay Marc Israel, Esq., attorney for GunnAllen, dated March 27, 2006. Neither party can now claim not to be bound by the Agreement in any respect. Claimant has admitted that he has at no time sought legal advice concerning the settlement or the Agreement itself, or in connection with his commencement of or participation in any other aspect of the arbitration proceedings in this matter; Claimant asserts that in all respects he was bamboozled by Jaime Diaz, whom he has only now named as a Respondent.

at Pages 2 - 3 of the FINRA Arbitration Decision at

Just In Case You Were Wondering -- Here's the entire original 2010 BrokeAndBroker.com Blog:

What Is On First? No, what is on second. Who is in arbitration.

(BrokeAndBroker.com Blog)

https://www.brokeandbroker.com/index.php?a=blog&id=318


In July 2004, public customer Jay Lombard purchased in his retirement account at GunnAllen Financial, Inc., one Unit of Florida Capital Apartments 2004, Ltd., which was sold to Lombard as an Accredited Investor through a private placement.


And that folks, is about the last intelligible thing that I can say about this oddball case.


2006 Settlement 


In March 2006, Lombard and GunnAllen executed a written Settlement Agreement and Release dated March 7, 2006 (the "Settlement Agreement") with reference to a dispute that had arisen between them concerning certain alleged improprieties with respect to Lombard's account at GunnAllen.  In keeping with the somewhat hush-hush nature of  Wall Street settlements involving public customers, the Settlement Agreement notes that the parties "desire to compromise and settle all claims, causes of action, injuries, and damages asserted or that may be asserted" and provided for the payment of $5,547.00, in full settlement, to Lombard by GunnAllen.  Pointedly, the Settlement Agreement states that its "[p]erformance. . . will operate as a general release by and between GunnAllen and Claimant and their present and former representatives." 


Don't Ask, Don't Tell 


Did the Settlement Agreement have anything whatsoever do to with Lombard's purchase of the Florida Capital apartments 2004, Ltd. private placement Unit? Yes, maybe, possibly, not likely, maybe not, or no. You pick whatever floats your boat because I sure as hell don't have the answer.  Moreover,  Lombard and GunnAllen don't seem willing or able to tell us. 


Why does this all sound like an existential version of Who Is On First? -- my educated guess is that there may be some ironclad confidentiality clause in the Agreement. Among the purposes of settlement agreements is to not spell-out the substance of a customer's complaint.  After all, Wall Street brokerage firms often settle customer complaints for their nuisance value or to simply nip things in the bud.  In such situations, it makes no sense to set forth disputed allegations. Many settled cases go to the grave as pissing contests that neither party concedes but rather than drag out the hostilties, a check gets written, lips are sealed, and the armies return home.


We lawyers get paid big bucks for writing pages of stuff that looks like it says something about something but really just says something about nothing. Something got settled here, but the Agreement isn't giving up that secret.


2009 FINRA Arbitration Complaint 


About five years after Lombard's purchase of the Florida Capital Apartments 2004 Unit, and about three years after the settlement of something, Lombard filed an arbitration Statement of Claim with the Financial Industry Regulatory Authority ("FINRA")  on July 9, 2009, seeking $100,000 in compensatory damages and interest in the amount of $40,000.  Lombard alleged Breach of Fiduciary Duty, Omission of Facts, and Failure to Supervise. To which the respondent brokerage firm and individual broker denied the allegations In the Matter of the Arbitration Between:Jay Lombard (Claimant) vs. GunnAllen Financial, Inc., and David Neil Soiferman (Respondents) (FINRA Case Number: 09-04105, February 24, 2010). 


On January 14, 2010, Claimant Lombard withdrew his claims against Respondent Soiferman and moved to amend the Statement of Claim to add a party. On January 22, 2010, the Arbitrator heard oral arguments on GunnAllen's Motion to Dismiss.  On January 25th, the FINRA Arbitrator denied Lombard's motion to add a new Respondent and granted GunnAllen's Motion to Dismiss.


Why did Lombard name Soiferman and then withdraw that claim, only to seek to add another party? I don't know -- and, yes, I don't know is still on third.  What am I talking about? No, what is on second. Who was Soiferman anyway? No, who is on first.


As best I can tell, and trust me on this, I'm clutching at straws here, Lombard asserted in his 2009 FINRA arbitration Complaint that his signature to the 2006 Agreement was procured by fraud on the part of GunnAllen's registered representative Jaime Diaz (perhaps the party whose name Lombard wanted to replace Soiferman's with?). If that's the case, then why did Lombard name Soiferman to begin with, rather than Diaz?  I don't know.  Yeah, he is still on third. 


Lombard complained that he did not understand that the 2006 Settlement Agreement's purpose or effect was as a General Release. Lombard claims that he was assured that the Settlement Agreement was simply a document that he was required to sign in order to obtain the promised payment.


Did Lombard at least deny signing the Settlement Agreement?  No, he admitted to signing it. Did GunnAllen stiff him on the promised payment? No, the brokerage firm shelled out the bucks as promised.  Then what is Lombard complaining about? Sorry, what is on second.  I don't know why Lombard filed the arbitration complaint. Of course, I don't know is still on third base.    


Physician Heal Thyself


In sorting through this odd case, the FINRA Arbitrator informs us that Lombard is a physician - implying that the good doctor is not an uneducated person.  Given that fact, the Arbitrator notes that it would be fair to assume that Lombard at least read and understood that portion of the Settlement Agreement that states, in relevant part immediately preceding the signature lines (including Lombard's admitted signature), that


all parties having consulted legal counsel, or having been advised to consult legal counsel, and having had full opportunity to do so. . .hereby acknowledge that the provisions of this Agreement shall be binding upon themselves and respective heirs and next of kin, executors, and administrators.


The Old Bamboozle


Lombard admitted that at no time did he seek legal advice concerning the settlement or the Settlement Agreement itself, or in connection with his commencement of or participation in any other aspect of the arbitration.  In fact, Lombard filed his FINRA arbitration complaint pro se. Apparently, this Claimant went commando from start to finish. 


In dismissing Claimant Lombard's case, the Arbitrator phrased it this way: "Claimant asserts that in all respects he was bamboozled by Jaime Diaz, whom he has only now named as a Respondent."


Ah, yes, the old bamboozle! 


Don't leave me this way. I can't survive, can't stay alive


But Bill, you plead and beseech of me, don't leave us this way (with all respects to Gloria Gaynor).  Surely, surely the FINRA Arbitrator at least explained the point of the 2006 Settlement Agreement.  Just give us that much, you beg of me.  Okay, just to toss you one last bone, here is the Arbitrator's definitive explanation of the 2006 Settlement Agreement:


The precise nature of the unspecified improprieties is nowhere described, and has not been identified by either party, apart from their both agreeing that it was completely unrelated to Claimant's July 2004 investment that is the subject of this arbitration proceeding.


Costello: What's the guy's name on first base?


Abbott: No. What is on second.


Costello: I'm not asking you who's on second.


Abbott: Who's on first.


Costello: I don't know.


Abbott: He's on third, we're not talking about him.

UPDATE: September 16, 2022

Apparently, we're now 2 for 2 with victories in 2020 and 2022. Just received on September 16, 2022, in part, in my INBOX:

removals@google.com

10:45 AM 

Hello,

Thanks for reaching out to us.

Due to a Counter Notification request we have already reinstated the following URLs:

https://www.brokeandbroker.com/index.php?a=blog&id=318

If you believe this is in error, please recheck the URLs in question.


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