Removal of FINRA Arbitrator Cited by Schwab and Interactive Brokers in HFT Customer Dispute

January 3, 2023

As we start a new year, we are asked, yet again, to consider whether FINRA provides a fair arbitration venue. Yet again, we are asked to consider whether FINRA is competently running its arbtration venue. Yet again, we are asked to consider whether FINRA is making an effort to tackle the growing chorus of complaints by both the industry and public customers about a lack of policing of its roll of arbitrators and a lack of effective, timely intervention to nip problems in the bud. All of which prompts veteran industry reform advocate Bill Singer, Esq. to call upon FINRA's Board of Governors to conduct an inquiry. To do something. To do anything. Yet again, Bill knows that FINRA's lackluster Board will likely punt, if even that. 

2019 FINRA Arbitration Statement of Claim

In a FINRA Arbitration Statement of Claim filed in November 2019 and as amended, public customer Claimants asserted breach of contract; breach of the covenant of good faith and fair dealing; negligence; unsuitability; violations of Consumer Protection Act, Revised Code of Washington ("RCW") 48.30, et seq.; and violations of Washington State Securities Act, RCW 21.20, et seq. Ultimately, Claimants sought no less than $4 million plus interest in damages.

SIDE BAR: As classified in the FINRA Arbitration Award:

Hereinafter, Emilie Dawson, Bryce Dawson, Nadine Dawson, Tony Eason, Christine Eason, Brandon Ehrlich, Natasha Ehrlich, Carol Hilton, Ian Hilton, Joann LaCanfora, Robert LaCanfora, Irene Guerrero, Peter Guerrero, David Miller, Carrie Miller, Gary Wyatt, and Martha Wyatt are collectively referred to as "Leon Guerrero Claimants".

. . .

Hereinafter, Stephen Apt, Pamela Apt, Hamilton, Stephen Naramore, Diana Naramore, Robinson, Capdevielle, Rogers, and McQuery are collectively referred to as "Naramore Claimants". 

As set forth in the FINRA Arbitration Award "The causes of action relate to an alleged high-frequency trading strategy in unspecified securities within Claimants' retirement accounts." 

Respondents Charles Schwab and Interactive Brokers generally denied the allegations and asserted affirmative defenses. 

FINRA Arbitration Award

The FINRA Arbitration Panel found Respondents liable and ordered them to pay to Claimants as follows:

Respondent Interactive Brokers: 
  • $2,727,394.65 in compensatory damages plus interest
  • Leon Guerrero Claimants: $835,300.41 in attorneys' fees
  • Naramore Claimants: $149,056.58 in attorneys' fees
  • $600 filing fee joint/several with Schwab

Respondent Charles Schwab: 
  • $606,087.70 in compensatory damages plus interest
  • Leon Guerrero Claimants: $278,433.37 in attorneys' fees
  • Naramore Claimants: $49,685.52 in attorneys' fees
  • $600 filing fee joint/several with Interactive

The FINRA Arbitration Award makes reference to the composition of the Panel as:
  • Katherine H. O'Neil, Public Arbitrator/Presiding Chairperson
  • David Gonzales, Public Arbitrator
  • Frederick Allan Kaseburg, Public Arbitrator
Public Arbitrator Kaseburg is denoted in the Award as a "Dissenting" Arbitrator but no further explanation or clarification is provided beyond that characterization.

2021 Schwab's and Interactive Brokers' Motions to Vacate/ Washington Superior Court

On April 23, 2021, Schwab petitioned the State of Washington Superior Court/King County that the FINRA Arbitration Award be vacated, a re-hearing ordered before a new Panel, and that costs be awarded.
Charles Schwab & Co., Inc., a California corporation, Plaintiff, vs. Irene And Peter Leon Guerrero, a married couple, Joann And Robert Lacanfora, a married couple, Brandon And Natasha Ehrlich, a married couple, Gary And Martha Wyatt, a married couple, Carol And: Ian Hilton, a married couple, Tony And Christine Eason, a married couple, David And Carrie Miller, a married couple, Emilie And Bryce J. Dawson, a married couple, and Nadine Dawson, Holly Robinson and Benjamin Capdevielle, a married couple, Stephen and Diana Naramore, a married couple, Eugene T. Rogers and Shannon A. McQuery, a married couple, Patricia Hamilton, a single person, Stephen W. and Pamela N. Apt, a married couple, Defendants (Charles Schwab's Petition to Vacate Arbitration Award, State of Washington Superior Court/King County, 21-2-05414-1 / April 23, 2021) 
https://www.finra.org/sites/default/files/aao_documents/19-03250%281%29.pdf

https://www.finra.org/sites/default/files/aao_documents/19-03250%282%29.pdf

FINRA Arbitrator Bridgen Cited for Nondisclosures

Given the overlap of the two Petitions, we note below the pertinent allegations only from the Schwab Petition [Ed: footnotes omitted]:

6. On December 15, 2020, the Panel issued a written order that held Schwab and Interactive Brokers liable for negligence, breach of contract, and violations of the Washington Consumer Protection Act. Schwab and Interactive Brokers then discovered for the first time that one of the arbitrators, Pamela Bridgen, was a plaintiff in an ongoing civil securities fraud case pending in United States District Court for the Southern District of California. See Bridgen et al. v. Lee et al., 3:14-cv-0052-BGS-NLS (S.D. Cal.). Ms. Bridgen had omitted this information from her Arbitrator Disclosure Report in violation of FINRA rules. In fact, Ms. Bridgen's involvement as a plaintiff in ongoing securities litigation temporarily disqualified her from serving as an arbitrator under FINRA rules. 

7. Ultimately, Schwab and Interactive Brokers discovered Ms. Bridgen's involvement in three cases and her interest in a brokerage account at Scottrade. Although FINRA rules required Ms. Bridgen to report such activity and interests in her Disclosure Report and other checklists provided to the parties, Ms. Bridgen had failed to do so.

REMOVAL OF ARBITRATOR PAMELA BRIDGEN, RESUMPTION OF
ARBITRATION PROCEEDINGS, AND THE PANEL'S FINAL ORDER 

8. Based on this discovery, Schwab and Interactive Brokers asked the Panel to recuse themselves and requested that FINRA remove the Panel. While the Panel refused to recuse themselves, FINRA ultimately removed Ms. Bridgen, citing a rule allowing the FINRA Director of Arbitration to remove an arbitrator based "on information required to be disclosed . . . that was not previously known by the parties." FINRA denied Schwab and Interactive Brokers' joint request to remove the two other Panel members without reasoning, and replaced Ms. Bridgen with a new arbitrator. 

9. On March 26, 2021, the two original Panel members issued a damages ruling (the "Award") that awarded Defendants over $3.3 million in damages and $1.3 million in attorneys' fees. The newly-appointed Panel member dissented from the ruling without reasoning. A true and correct copy of the Award is attached to this Petition as Exhibit "A."

at Page 4 of the Schwab Petition

There are a lot of moving parts concerning Arbitrator Bridgen's coming and going, so let's slow it all down and make sure we understand the nuances:

  • The FINRA Arbitration was bifurcated into liability and damages portions, and the Panel heard 11 days of testimony from November 20, 2020, to December 14, 2020 -- and found Respondents liable on December 15, 2020.

  • Upon learning of Arbitrator Bridgen's alleged conflicts, Schwab and Interactive Brokers asked all arbitrators to recuse themselves from the Panel and requested that FINRA remove the Panel. 

  • The Panel refused to recuse themselves; however, FINRA ultimately removed Arbitrator Bridgen, replaced her with Arbitrator Kaseburg, but did not remove the other two Arbitrators. 

  • The damages portion of the Arbitration was conducted with closing arguments on March 10 - 11, 2021.

  • The two Original Arbitrators awarded damages and fees on March 26, 2021, but the Replacement Arbitrator dissented without providing any explanation. 

  • Inexplicably -- I would say "shockingly . . . perhaps "disgracefully" -- the FINRA Arbitration Award discloses NOTHING about the challenge to Arbitrator Bridgen, the request for the Panel's recusal, the intervention of the FINRA Director of Arbitration, or the apparent replacement of Arbitrator Bridgen by Arbitrator Kaseburg.
2021 Vacatur Granted by Washington Superior Court: FINRA's Remedy Insufficient

In granting Schwab's Petition to Vacate, in pertinent part the Superior Court found that:

[Ms.] Bridgen's failure to disclose her involvement in a factually similar securities-related dispute (and related bankruptcy litigation) was fatal to her ability to serve as a neutral decision-maker. FINRA recognized this failing, and removed Ms. Bridgen from the arbitration panel. The question before the Court is not whether Ms. Bridgen's participation caused evident partiality. The question is whether the remedy imposed by FINRA was sufficient. The Court concludes that it was not. "A finding of evident partiality in one arbitrator generally requires vacatur of the arbitration award." Schmitz v. Zelveti, 20 F.3d 1043, 1049 (9th Cir. 1994). The fact that the arbitrator who substituted in for Ms. Bridgen dissented from the remaining panelists is not dispositive of the issue of prejudice, but is instructive. See Id. (noting that a tainted panel is reasonably inferred "when the other panel members vote with the evidently partial arbitrator."). 

Defendants ask the Court to consider whether Plaintiffs waived their objection to Ms. Bridgen's evident partiality by raising the issue only after the panel issued its tentative ruling on liability. The Court agrees that the timing of the objection is suspect, but concludes that the issue of vacatur is not waived. Unlike many of the cases cited by Defendants, Ms. Bridgen did not leave a trail of clues that Plaintiffs should have been expected to follow. She was not selected by the opposing party, and therefore presumed to be possibly aligned with that party. The Court does not find that Plaintiffs were on constructive notice of Ms. Bridgen's bias. Although Plaintiffs raised the issue of bias after a significant portion of their case had been litigated, they did not raise the issue for the first time after arbitration concluded.

at Pages 3 - 4 of Charles Schwab & Co., Inc., a California corporation, Plaintiff, vs. Irene And Peter Leon Guerrero, a married couple, Joann And Robert Lacanfora, a married couple, Brandon And Natasha Ehrlich, a married couple, Gary And Martha Wyatt, a married couple, Carol And: Ian Hilton, a married couple, Tony And Christine Eason, a married couple, David And Carrie Miller, a married couple, Emilie And Bryce J. Dawson, a married couple, and Nadine Dawson, Holly Robinson and Benjamin Capdevielle, a married couple, Stephen and Diana Naramore, a married couple, Eugene T. Rogers and Shannon A. McQuery, a married couple, Patricia Hamilton, a single person, Stephen W. and Pamela N. Apt, a married couple, Defendants (Order Granting Petition to Vacate Arbitration Award, State of Washington Superior Court/King County, 21-2-05414-1 / October 26, 2021) 
https://www.finra.org/sites/default/files/aao_documents/19-03250%283%29.pdf

2022 Washington Court of Appeals Reverses Superior Court: The High Hurdle

In response to the Superior Court's Vacatur of the FINRA Arbitration Award, the Defendants appealed to the Court of Appeals.
https://brokeandbroker.com/PDF/GuerreroOpWACtApp221227.pdf

The Court of Appeals frames the threshold issue as follows:

The Brokers negotiated for FINRA rules and remedies in the event of a dispute with investors. FINRA Rule 12407(b) expressly states: 

After the first hearing session begins, the Director may remove an arbitrator based only on information required to be disclosed under Rule 12405 that was not previously known by the parties. The Director may exercise this authority upon request of a party or on the Director's own initiative. Only the Director may exercise the authority under this paragraph (b). 

The issue the Brokers took with Bridgen was her nondisclosure and affirmative misrepresentation of her role in ongoing litigation of a similar subject to the dispute between the Customers and Brokers. Bridgen's suit was somewhat comparable to the controversy here; a customer brought a claim against a financial advisor for marketing an investment strategy as low risk, but which resulted in significant losses. However, a key distinguishing fact was that Bridgen filed suit against her financial advisor, not a brokerage firm. Additionally, unlike other cases where vacatur was upheld based on evident partiality, Bridgen did not have a relationship or connection to the Customers, Brokers, or firms representing them in arbitration. See, e.g., Monster Energy Co. v. City Beverages, LLC, 940 F.3d 1130, 1135-36 (9th Cir. 2019) ("under our case law, to support vacatur of an arbitration award, the arbitrator's undisclosed interest in an entity must be substantial, and that entity's business dealings with a party to the arbitration must be nontrivial"); Ploetz for Laudine L. Ploetz, 1985 Tr. v. Morgan Stanley Smith Barney LLC, 894 F.3d 894, 899 (8th Cir. 2018) (a decision on vacatur on this basis turns "on whether the undisclosed relationship demonstrates that the arbitrator had evident partiality"); Positive Software Sol., Inc. v. New Century Mortg. Corp., 476 F.3d 278, 283 (5th Cir. 2007) ("in nondisclosure cases, an award may not be vacated because of a trivial or insubstantial prior relationship between the arbitrator and the parties to the proceeding"). In the absence of authority establishing that vacatur is proper where the sole basis for the claim of evident partiality is that an arbitrator has been involved in similar litigation, we decline to so hold.

at Pages 7 - 8 of the Court of Appeals Opinion

Let's see what we're being asked to accept by the Court of Appeals. FINRA has a Rule permitting the Director of Arbitration to remove an Arbitrator for nondisclosure. Arbitrator Bridgen allegedly failed to make required disclosures, the hearing proceeded with her on the Panel, and, after all of that, Eureka!!!, the arbitrator's nondisclosure is disclosed and the FINRA Director of Arbitration removes Bridgen from the Panel and replaces her with a spanking, new arbitrator. 

Is that it? Does that all add up to a "no harm, no foul?"

In reversing the Superior Court and remanding for entry of an Order Confirming the FINRA Arbitration Award, the Court of Appeals found:

FINRA applied the remedy of removing Bridgen for nondisclosure in violation of its rules and reconstituting the arbitration panel. This remedy was precisely one for which the Brokers negotiated by selecting arbitration under FINRA as part of the express terms of the contract. While they assert that Bridgen's participation in the liability stage of the arbitration tainted the panel, offering only Kaseburg's dissent in support of this claim, that is not the standard for vacatur of the arbitration award. Because the Brokers fail to allege evident partiality on the part of the FINRA Director as to the remedy decision, or the newly-constituted panel which issued the final award, they fail to meet their "high hurdle," and vacatur was improper. As such, we reverse and remand for entry of an order confirming the arbitration award. 

at Page 8 of the Court of Appeals Opinion

Bill Singer's Comment

For starters, the FINRA Arbitration Award is a disgrace given what we now know transpired procedurally. Please -- go read the FINRA Award for yourself and write down whatever you can find that disclosed the challenge to Arbitrator Bridgen, the request for the Panel's recusal, or the fact that the FINRA Director of Arbitration removed Bridgen and replaced her with Kaseburg. As is evident from the Award itself, all references to Arbitrator Bridgen and the Director of Arbitration's intervention are omitted from the Award. I mean, seriously, how the hell did FINRA allow that hot, flaming, pile of horseshit to get published? 

Somewhat lost in the shuffle of the FINRA Arbitration Award, Superior Court Opinion, and Court of Appeal Opinion is that a sitting Judge considered the parties' arguments concerning whether FINRA provided an impartial arbitration hearing, and this is what that jurist (not me) found in pertinent part:

[Ms.] Bridgen's failure to disclose her involvement in a factually similar securities-related dispute (and related bankruptcy litigation) was fatal to her ability to serve as a neutral decision-maker. FINRA recognized this failing, and removed Ms. Bridgen from the arbitration panel. The question before the Court is not whether Ms. Bridgen's participation caused evident partiality. The question is whether the remedy imposed by FINRA was sufficient. The Court concludes that it was not. . . .

at Page 3 of the Superior Court Opinion

Yes, the Superior Court's Vacatur was subsequently reversed by the Court of Appeals. The appellate court did not tackle the issue as to whether the arbitration was fairly conducted but rested its reversal upon the premise that Schwab and Interactive had failed to "allege evident partiality on the part of the FINRA Director as to the remedy decision, or the newly-constituted panel which issued the final award, they fail to meet their "high hurdle," and vacatur was improper." But that finding doesn't go to the core issue as to whether FINRA is providing a fair arbitration venue -- whether FINRA is competently running its venue, whether FINRA is making an effort to tackle the growing chorus of complaints by both the industry and public customers about a lack of policing of its roll of arbitrators and a lack of effective, timely intervention to nip problems in the bud. About the only positive takeaway from the Court of Appeals' reversal of the Superior Court is that it shines the light of hypocrisy on this disclaimer atop each FINRA Dispute Resolution Services Award:

Awards are rendered by independent arbitrators who are chosen by the parties to issue final, binding decisions. FINRA makes available an arbitration forum -- pursuant to rules approved by the SEC -- but has no part in deciding the award.

FINRA has no part in deciding the award? Gimme a break. 

I call upon FINRA's lackluster Board of Governors to review this case and take immediate and prompt remedial action. 

The Board will likely do nothing. After all, FINRA's Board of Governors has earned a reputation over the years as a Do-Nothing Board. Oh, sure, the Board may hire an outside law firm to look into the issue. Been there. Done that. Read: "Georgia Court Of Appeals Reverses Leggett v. Wells Fargo" (BrokeAndBroker.com /  August 3, 2022)
https://www.brokeandbroker.com/6589/leggett-wells-fargo-finra/