In the Statement of Claim, Claimant requested: compensatory damages in an amount to be determined but in excess of $10,000,000.00 (which is one-half of the amount paid by Respondent JP Morgan to the individual Respondents), plus the growth and income that would have been generated on that book of business had Respondents not violated their duties as alleged in the Statement of Claim; imposition of a constructive trust over the commissions earned by all Respondents for breach of fiduciary duty and conspiracy to breach fiduciary duties and an accounting of the commissions earned; pre-judgment and post-judgment interest at the legal rate during the applicable period; costs and fees of this action, including FINRA fees and expert witness fees; punitive damages in an amount to be determined; and such other relief as the Arbitrators deemed appropriate.In the Statement of Answer, Respondents requested a declaration that Respondents are not liable to Claimant in any respect; a dismissal of the Statement of Claim in its entirety; and such other and further relief as the Panel deemed just and proper.At the hearing, Claimant requested $12,956,619.37. Claimant suggested a minimal figure of $8,098,158.72, if the Panel assumed no growth in the subject assets under management, rather than 5%.
[R]espondent Rothman falsely testified concerning his so-called "Trophy File" and when he took photos of emails; Respondents falsely testified that they "took nothing" with them when they left UBS because, according to them, they were instructed by counsel to take nothing; Respondents spoliated the Salesforce data, which Respondent Sturley testified showed who originated which customers and centers of influence; and Respondents’ counsel’s alleged orchestration of a ruse to deflect attention from the spoliation of the Salesforce data where counsel falsely represented that the Salesforce data was on UBS’ computer system, while knowing his representation was false.
As to the portion of Claimant’s Motion for Sanctions which accused Respondents' counsel of wrongdoing, the Panel did not find that the evidence established such misconduct. As to the portion directed to at least one of the Respondents, the Panel finds that Respondent Rothman engaged in perjury by falsely testifying as to the creation of certain exhibits during the hearing and hereby awards sanctions of $100,000.00 against Respondent Rothman and in favor of Claimant. Accordingly, Respondent Rothman is liable for and shall pay to Claimant the sum of $100,000.00 in sanctions.
Over a year after the June 2022 FINRA Arbitration Award, in July 2023, FINRA entered into a regulatory settlement with Howard Rothman (a Respondent in the arbitration). For the purpose of proposing a settlement of rule violations alleged by the Financial Industry Regulatory Authority ("FINRA"), without admitting or denying the findings, prior to a regulatory hearing, and without an adjudication of any issue, Howard Stuart Rothman submitted a Letter of Acceptance, Waiver and Consent ("AWC"), which FINRA accepted. In the Matter of Howard Stuart Rothman, Respondent (FINRA AWC 2022075401701 / July 27. 2023)
The AWC asserts that Howard Stuart Rothman entered the industry in 2009 and was first registered in 2011 with UBS Financial Services Inc. In accordance with the terms of the AWC, FINRA imposed upon Howard Stuart Rothman a $5,000 fine and a six-month suspension from associating with any FINRA member in all capacities. As alleged in part in the the AWC:
In September 2019, Rothman left UBS along with five other members of his group to join J.P. Morgan. One member of Rothman’s team at UBS, who did not move to J.P. Morgan, filed an employment-related arbitration claim with FINRA against Rothman and the others stemming from their departure from UBS. During the FINRA arbitration hearing, in May 2022, Rothman testified misleadingly about the creation of certain exhibits at the hearing.
Therefore, Rothman violated FINRA Rule 2010.
Bill Singer's Comment
The Missing Rule 13104 Regulatory Referral
The 2023 FINRA Rothman AWC asserts that the "matter originated from an arbitration panel referral." Except there was no mention in the 2022 FINRA
Award of any referral (or intention to refer) by the arbitrators. Contemporaneously with the publication of the June 2022 Arbitration Award, I took FINRA to task for the Arbitration Award's failure to include a Rule 13104 regulatory referral: "JP Morgan Securities Sued For Over $10 Million In Team Dissolution FINRA Arbitration" (BrokeAndBroker.com Blog / June 22, 2022) https://www.brokeandbroker.com/6504/jpm-finra-arbitration/ :
3. FINRA Code of Arbitration Procedure for Industry Disputes Rule 13104: Effect of Arbitration on FINRA Regulatory Activities; Arbitrator Referral During or at Conclusion of Case provides in part that:
(e) At the conclusion of an arbitration, any arbitrator may refer to FINRA for investigation any matter or conduct that has come to the arbitrator's attention during and in connection with the arbitration, either from the record of the proceeding or from material or communications related to the arbitration, which the arbitrator has reason to believe may constitute a violation of the rules of FINRA, the federal securities laws, or other applicable rules or laws.
Why is there no such Rule 13104 referral to FINRA for investigation if three arbitrators found that Respondent Rothman engaged in $100,000 worth of perjury?
My published, public rebuke of the FINRA arbitrators' failure to make a regulatory referral in the FINRA Arbitration Award may have played a large part in FINRA-the-regulator looking into the alleged perjury findings -- can't say that for a fact but I have my suspicions.
Perjury or False Testimony or Misleading Testimony?
The 2023 Rothman AWC found that during the "FINRA arbitration hearing, in May 2022, Rothman testified misleadingly about the creation of certain exhibits at the hearing."
Let's re-read exactly what the FINRA Arbitration Panel found [Ed: emphasis added]:
[T]he Panel finds that Respondent Rothman engaged in perjury by falsely testifying as to the creation of certain exhibits during the hearing and hereby awards sanctions of $100,000.00 against Respondent Rothman and in favor of Claimant. Accordingly, Respondent Rothman is liable for and shall pay to Claimant the sum of $100,000.00 in sanctions.
How fortunate for Rothman that FINRA-the-regulator watered down the arbitrators' finding of "perjury by falsely testifying" to the diluted AWC allegation that the witness merely "testified misleadingly." Nowhere in the 2023 FINRA AWC is Rothman's arbitration testimony characterized as being false or perjurious. Read and then re-read the AWC. You will not find the word "false," and you will not find the world "perjury."
I'm sorry but there is a world of difference between testifying in a misleading fashion versus falsely testifying . . . and there is a world of difference between testifying misleadingly and committing perjury (as was found by the arbitrators and the basis for their awarding $100,000 in sanctions).
Even more unsettling in the 2023 AWC is the lack of any substantive explanation as to what FINRA regulatory staff determined that Rothman had purportedly lied about: The only explanation provided in the AWC is the "the creation of certain exhibits."
Didn't FINRA regulatory staff investigate the arbitrators' allegation of perjury?
Didn't FINRA staff attempt to inquire as to what Rothman did and what he knew and what he testified to under oath at the arbitration?
The best conclusion FINRA offers to us after about a year of investigation is that Rothman created certain exhibits and when asked under oath about his creative activities, the Respondent testified in a "misleading" manner?
What a disgraceful bit of circularity that we are offered in lieu of a meaningful finding by the self-regulatory-organization. Compare the AWC's generic presentation to this fact pattern from the 2022 FINRA Arbitration Award:
What the hell is going on here with the Rothman AWC? Is the public and the industry supposed to guess as to what constituted "misleading" and what was the nature of "certain"? Is this a quiz show or Wall Street regulation?
JP Morgan Overshadows the Proceedings
Having presented us with a dubious version of regulation, FINRA invites (unintentionally) the public and the industry to wonder how much of FINRA's regulatory approach was influenced by the fact that Rothman and his colleagues went to JP Morgan Securities. Would the FINRA arbitration and the FINRA regulatory investigation have turned out different if the issue was about a group of representatives leaving JP Morgan? Would the language in the 2023 Rothman AWC have been more definitive -- more pointed -- if JP Morgan had been the Claimant in a FINRA arbitration against stockbrokers who had left one of its branches, and one of those folks who jumped ship had testified misleadingly about the creation of certain arbitration exhibits? Why do I ask the tough questions about FINRA impartiality and about FINRA's handling of the investigation of Rothman's arbitration testimony? For starters, consider this high-profile case:
"JPMorgan's Chase Private Client group used false evidence to get rid of an advisor. This is how the firm tried to make sure no one knew. (Financial Planning by Ann Marsh)
The arbitrators agreed. They dismissed Burris’ case, denying his claim for $7 million in damages, among details that have been reported previously. But Financial Planning has obtained additional documents not disclosed previously that demonstrate JPMorgan was aware Kazmi provided arbitrators with false evidence. Moreover, they show the bank knew this before the arbitrators returned their decision.
These documents show that, days after the arbitration wrapped up but a week before the panel released its decision, the certainty Kazmi displayed about the authenticity of the letters from clients had evaporated.
“Maybe there was some assistance" from the bank in writing the complaints, Kazmi conceded, without explaining what had led her to doubt the account she gave to arbitrators days before, according to a transcript of a deposition she later gave to a FINRA enforcement officer.
From her office in the Chase Tower in downtown Phoenix, a short walk from Chase Field, home of the Arizona Diamondbacks, Kazmi decided to reach out to another of Burris' former managers, Laya Gavin.
"I called Laya and I asked her because the framework … ," Kazmi told FINRA attorney Margery Shanoff, repeating herself, "the framework seemed to be that this was not created or generated or originated by somebody." Kazmi didn't explain what she meant by "framework," so Shanoff got to the point: "She told you that she did, in fact, type it up?"
"Laya said she typed it," Kazmi said.
"JPMorgan Wrote Complaints After Firing a Whistle-Blower" (DealBook, New York Times / December 3, 2015)
The more serious criticisms of Mr. Burris began to show up on his disciplinary record soon after he went public with his grievances against JPMorgan. In the course of two weeks, three client complaints showed up on his regulatory records.
During his arbitration case, Mr. Burris's lawyer asked a JPMorgan supervisor at his old branch in Arizona whether the client complaints were "written by someone at JPMorgan" or if any JPMorgan employee had "helped" draft them.
"Absolutely not," the JPMorgan employee, Umbreen Kazmi, responded to both questions.
It was only after the arbitration case was over that Mr. Burris tracked down the clients and learned that the letters had, in fact, been drafted by one of his old colleagues at JPMorgan, Ms. Gavin, a close associate of Ms. Kazmi.
For those of you who enjoy playing the Home version of FINRA regulation, see if you can find any regulatory action against JPMS or any of its employees cited in the press accounts above.
Left to Wonder
Beyond wondering if JPMS's involvement as the landing-pad employer in the Seested arbitration influenced FINRA's subsequent regulatory efforts, we must also wonder about just what a registered person has to do in order to get barred. The FINRA Arbitration Panel found that "Respondent Rothman engaged in perjury by falsely testifying." One would have expected that a finding of perjury during a FINRA arbitration would have triggered no less than a Bar from FINRA. To the extent that only a fine and multi-month suspension were imposed upon Rothman, we are left to wonder as to whether the arbitrators over-stated the seriousness of Rothman's alleged perjury; or, in the alternative, if FINRA-the-regulator's investigation determined that Rothman's cited testimony was merely "misleading" rather than false or perjurious -- which could explain the lighter sanctions.
Yes, we can muse and ponder and infer. But that's not the effective regulation of Wall Street. The AWC is not an arbitration document. It is a published, public settlement document involving allegations by FINRA-the-regulator. FINRA's case against Rothman should have been presented to the public in a compelling fashion that fully supported the sanctions imposed. In my opinion, the 2023 Rothman AWC is not compelling and does not support the sanctions. Perhaps if it were better written it might. Perhaps it can't be better written and FINRA's sanctions are inadequate. I don't have the answers and FINRA's AWC doesn't offer any.
Disparate Regulation by FINRA?
As you try to reach your own conclusion about the reasonableness of the $5,000 fine and a six-month suspension FINRA's AWC imposed upon Rothman, consider another case of false testimony during a FINRA arbitration, and see if you can explain why the Respondent in the 2017 AWC was barred whereas in 2023, Rothman was only fined and suspended:
FINRA Bars Rep For Arbitration Perjury
(BrokeAndBroker.com Blog / September 27, 2017)
In today's BrokeAndBroker.com Blog, publisher Bill Singer, Esq. dissects a FINRA arbitration and two FINRA regulatory settlements involving a father and son. What ties these matters together is an allegation by FINRA that the father had lied under oath during his arbitration case against former employers and associates. This is a rare, a very rare, case in which FINRA regulatory action is taken against an arbitration Claimant/witness for lying under oath.
If FINRA the self-regulator is now going to act as a lie detector and bar registered representatives for perjury during arbitrations (as should certainly be the consequence), then such regulatory action will likely influence arbitration settlements and may also prompt more parties to demand regulatory referrals from arbitrators. Assuming that FINRA is now placing such arbitration-perjury matters on its regulatory agenda, the self-regulator must pursue such allegations with equal zeal against its member firms, who are often accused of lying during customer and industry arbitrations. Similarly, given FINRA's inability to "bar" public customers for perjury, the regulator must commit to referring such findings to local, state, and/or federal prosecutors.
Case In Point
In a Financial Industry Regulatory Authority ("FINRA") Arbitration Statement of Claim filed in August 2009, and as amended thereafter, Claimant William Garbarino alleged, in part, breaches of contract and the implied covenant of good faith and fair dealing, tortious interference with business relationship, and defamation. At the close of his arbitration hearing. Claimant withdrew the claims for defamation, conversion, and RICO violations against Respondent Nutmeg; and also withdrew the claim for RICO violations against Respondent RJFS. Claimant Garbarino sought at least $500,000 in damages plus punitive damages, interest, costs, and fees. In the Matter of the FINRA Arbitration Between William Francis Garbarino, Claimant, vs. Raymond James Financial Services, Inc., Nutmeg Investment Group, Charles Meade, and Frank Gavel, Jr., Respondents (FINRA Arbitration 09-04736, November 6, 2014).
Respondents generally denied the allegations and asserted various affirmative defenses. Respondents Nutmeg Investment Group, Meade, and Gavel (the “Nutmeg Respondents”) counter-claimed citing defamation of character and breach of contract.
The FINRA Arbitration Panel found the Nutmeg Respondents jointly and severally liable and ordered them to pay to Claimant Garbarino $3,700 in plus 10% per annum interest until paid; $60,000 in attorneys’ fees.
The FINRA Arbitration Panel found Claimant Garbarino liable and ordered him to pay to:
(1) the award was procured by fraud, corruption, or undue means; (2) the FINRA panel committed misconduct in refusing to postpone the hearing or in refusing to hear evidence pertinent to the arbitration; (3) the FINRA panel exceeded its powers or "so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made"; and (4) the award violates public policy. At oral argument before this court, counsel for the plaintiff waived plaintiffs claims that the award was procured by fraud, corruption or undue means and that the FINRA panel committed misconduct.
Page 4 of the Court's Memorandum
2017 FINRA AWC
For the purpose of proposing a settlement of rule violations alleged by the Financial Industry Regulatory Authority ("FINRA"), without admitting or denying the findings, prior to a regulatory hearing, and without an adjudication of any issue, William F. Garbarino submitted a Letter of Acceptance, Waiver and Consent ("AWC"), which FINRA accepted. In the Matter of William F. Garbarino, Respondent (AWC 2014043695702, September 13, 2017).https://www.finra.org/sites/default/files/fda_documents/RSO-%20William%20F.%20Garbarino-%20CRD%20730278-%202014043695702%20-%20AWC%20%282019-1563263366935%29.pdf
The AWC asserts that William Garbarino was first registered in 1981. The AWC then regales us with this bit of initial-ladened information (Ed: the AWC had previously described “GSR” as a “General Securities Representative”):
During February 2005 through April 2009, Respondent became consecutively registered as a GSR with two FINRA-regulated firms, the latter of which was firm ABC. While registered with ABC, Respondent worked in a group of GSRs and others known as TNG.
In April 2009, Respondent became registered as a GSR with Lincoln Financial Advisors Corporation (“the Firm”).
On April 20, 2017, the Firm filed a Form U5 for Respondent stating that he had been discharged from the Firm on April 6, 2017 as a result of, among other things, That he provided false testimony under oath.
The AWC asserts that in August 2009, Garbarino filed a an employment-related arbitration against TNG and, thereafter, amended his Statement of Claim to include Respondent ABC. Although not specified in the AWC for reasons that I don't quite understand, I'm going to go out on a limb here and guess that the cited "employment-related arbitration" was In the Matter of the FINRA Arbitration Between William Francis Garbarino, Claimant, vs. Raymond James Financial Services, Inc., Nutmeg Investment Group, Charles Meade, and Frank Gavel, Jr., Respondents (Decision, FINRA Arbitration 09-04736, November 6, 2014).
SIDE BAR: I infer from the AWC's reference to Garbarino's August 2009 arbitration that "TNG" is The Nutmeg Group. I would like to infer that "ABC" is the "Raymond James Financial Services" but I'm not quite sure why FINRA opted to use "ABC" for what should have been "RJFS." As to why FINRA thought it necessary to fully disclose "Lincoln Financial Advisors Corporation" in the AWC but hide Raymond James Financial Services behind "ABC" is something that puzzles me and will keep me up for far too many nights.
The AWC asserts that on May 29, 2013, when William Garbarino was testifying under oath at the arbitration hearing:
ABC's counsel showed Respondent a group of the submitted change of broker forms and asked him whether certain of the customers' signatures on the forms were photocopied and used to create new forms.
Respondent testified that the customers' signatures were authentic and not photocopies of the originals. Respondent also testified that “Nothing that came into our office was ever photocopied. A signature would not be photocopied. Forms were sent out, signed appropriately [by the customers] and came back to the office."
The AWC asserts that Garbarino’s above-cited testimony was false because he knew at the time he answered the question that:
his son, who worked in Respondent's office, obtained from certain customers executed, but partially blank signature pages for the change of broker forms, photocopied those pages and used the copies to create falsified new forms containing non-authentic signatures. These falsified forms were then submitted to several annuity companies as originals.
FINRA deemed William Garbarino’s allegedly false testimony as constituting a violation of FINRA Rule 2010. In accordance with the terms of the AWC, FINRA imposed upon William Garbarino a Bar from associating with any FINRA member firm in any capacity.
Bill Singer's Comment
In researching William Garbarino's arbitration and regulatory history, I came upon the FINRA regulatory settlement discussed below. This FINRA AWC references a "WG," who I believe is William Garbarino. The "Matthew E. Garbarino" set forth as the Respondent in this AWC appears to be William's son.
For the purpose of proposing a settlement of rule violations alleged by the Financial Industry Regulatory Authority ("FINRA"), without admitting or denying the findings, prior to a regulatory hearing, and without an adjudication of any issue, Matthew E. Garbarino submitted a Letter of Acceptance, Waiver and Consent ("AWC"), which FINRA accepted. In the Matter of Matthew E. Garbarino, Respondent (AWC 2014043695701, April 10, 2017).
The AWC asserts that starting April 2009, Matthew Garbarino became an unregistered sales assistant with FINRA member firm Lincoln Financial Advisors Corp., where he remained until his voluntary termination in October 2009. In May 2010, Matthew Garbarino re-associated with Lincoln as an unregistered sales assistant and became registered in June 2010. The AWC asserts that he has no prior disciplinary history in the securities industry.
As stated in the “Overview” section of the AWC:
In or about June and July 2009, Respondent obtained from at least five customers of his FINRA-regulated broker-dealer at least eight executed, but partially blank, signature pages from change of broker forms issued by several annuity companies. Respondent copied the signature pages and created at least 18 new change of broker forms by filling in numerous annuity contract numbers on the blank portions of the pages containing the photocopied signatures. Thereafter, Respondent submitted the falsified forms to the annuity companies as authentic, in violation of FINRA Rule 2010.
The AWC asserts that :
In or about June and July 2009, with the knowledge of WG, a General Securities Representative at Lincoln, Respondent obtained from at least five Lincoln customers at least eight executed, but partially blank, signature pages from annuity change of broker forms . . .
Also with WG's knowledge, Respondent copied the signature pages and created at least 18 new change of broker forms by filling in numerous annuity contract numbers on the blank portions of the pages containing the photocopied signatures . . .
In accordance with the terms of the AWC, FINRA imposed upon Matthew Garbarino a $5,000 fine and a a four-month suspension from association with any FINRA member in any capacity.
One frustrating aspect of FINRA's regulatory action against William Garbarino is the absence of any explanation as to how the regulator was alerted to his allegedly false arbitration testimony. There is no referral to the self-regulator noted by the FINRA arbitrators in their FINRA Arbitration Decision. About the only clue we have to the source of FINRA's tip may be in the AWC's assertion that on April 20, 2017, Lincoln filed a Form U5 in which it alleged that Garbarino had "provided false testimony under oath." Of course, that disclosure only raises another question as to how Lincoln learned in April 2017 that William Garbarino has falsely testified during a 2014 hearing involving his 2009 filing of claims in a FINRA Arbitration.
In the Matter of the FINRA Arbitration Between William Francis Garbarino, Claimant, vs. Raymond James Financial Services, Inc., Nutmeg Investment Group, Charles Meade, and Frank Gavel, Jr., Respondents (Decision, FINRA Arbitration 09-04736, November 6, 2014).
William Garbarino v. Raymond James Financial Service, Inc., et al. (Memorandum of Decision, Superior Court, Connecticut / June 29, 2015)
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