Tuesday, March 21, 2006

More SIA News

Today's sessions included two on arbitration, one featuring Linda Fienberg from the NASD, who always draws a crowd because of her interesting and timely comments.

Ms. Fienberg confirmed that the NASD will not be doing away with the industry arbitrator on its panels, but it is making significant changes to arbitrator selection, including three lists - industry, public and a separate list for a Chairman. The arbitrators on the chairman list have all been trained as Chairman, and hopefully we will avoid the situation that has cropped up of completely inexperienced chairman.

She also reported that the discovery arbitrator pilot is moving along and is being well received, and the direct communication program (which has been a blessing) is doing well, with no problems.

Ms. Fienberg also gave an update on the new discovery guidelines, which the NASD has been working on for two years, and which they can't seem to obtain a consensus. Working with groups of claimant and defense attorneys, they are attempting to come up with 2 or 3 categories of documents that should be produced, up front, in every case. While it is not a surprise that they are having a hard time with this, since every case, no matter how similar is different, and the more "lists" they put together, the more control they remove from the arbitrators, she indicated that they hope to have a proposal out by year's end.

Monday, March 20, 2006

Appeals Court Overturns Frank Quattrone Conviction

Oh boy, here we go again. The Wall Street Journal is reporting that the Second Circuit has overturned the conviction of Frank Quattrone, the former Credit Suisse First Boston banker convicted in May of 2004 for witness tampering and obstruction of justice.

According to Law.com, the appeals court has granted Quattrone a new trial, with a new judge. The court ruled the jury instructions were erroneous.

Law.com's piece on the decision is here, with links to the WSJ story and the full opinion. Professor Bainbridge weighs-in here.

Back Dating Options

Truth on the Market is quickly becoming one of my favorite blogs. Billed as a blog providing "Academic commentary on law, business, economics and more" the blog is the work of a self-described "group of young law professors."

The blog is interesting because those of us who practice law look at issues differently from law professors. We are looking for the practical implications, they are looking at the theoretical. But the two are not mutually exclusive, and often the academics can provide useful insights into the legal issues that practitioners might not have the time or inclination to delve into.

Professor Manne's post I look pretty young but IÂ?m just backdated, yeah on the apparent practice of backdating options grants to corporate officers is a recent example. The practice might not actually be backdating, but it certainly appears questionable when corporate officers are granted options that just happen to be priced at the recent low of the stock's price. Professor Manne provides an analysis that provides an different view than the reaction that a securities law practitioner might have of the practice.

One Regulator's View of 3012 and 3013 Compliance

One interesting topic at the SIACL conference today was the "issue" of what to do about the producing branch office manager. Some of the panelists from the regulatory side confirmed that the new rules regarding compliance reviews and certifications will not result in a "gotcha" violation and that the regulators understand that many firms will need to feel their way through the new rules.

He confirmed that the examiners have been trained to look for violations of the new 3012 and 3013 requirements, but to also understand and acknowledge reasonable, good faith attempts at compliance.

Good news for many small firms who worked their way through the rules and who will be making their new certifications in April. We have been working with a number of small firms on these issues, which are particularly unique to their situations. Our advice has been to do the best you can, and ask yourself, is there anything more than an examiner could require me to do, in my situation? If the answer is no, you probably have a reasonable, good faith effort at compliance.

What do you get when you take 2,000 securities lawyers....

and put them at a hotel in South Florida? What sounds like a bad joke is actually the 37th Annual Securities Industry Association's Compliance and Legal Division Seminar. With over 2,000 attendees, it is the largest gathering of securities lawyers and compliance directors in the country.

I am at the seminar, and last night's welcome reception was attended by more securities lawyers than you could shake a stick at.

I am actually late for the opening remarks by SIAC&L's President Paul Merolla, and the NASD's Mary Shapiro but will post more information later.

Friday, March 17, 2006

Let the Smear Begin - Spitzer vs. Grasso

Well, the Spitzer vs. Grasso trial must be starting soon, and you don't need to watch the trial calendar to understand that.

A Washington Post headline today screams "Grasso Took the Fifth In SEC Trading Probe" a little, and irrelevant, tidbit set lose by Spitzer's office in arguments before Judge Ramos.

Spitzer's office told Judge Ramos that in connection with an unrelated investigation into the specialist firms at the Exchange in an SEC deposition.

Spitzer is apparently trying to use that assersion against Grasso in his case, claiming that he refused to answer questions about his role as a regulator, in the unrelated SEC investigation, therefore he was not entitled to the compensation he received.

What? That clearly makes no sense. Now, I getting his from an article in the Washington Post, and they may not have grasped the legal argument, but I think they understood it and reported it correctly. Assuming they did, this is nonsense. Individuals take the Fifth all the time, and while it is technically based upon the premise that "the answer may tend to incriminate me" the invocation does not mean that the answer does incriminate him, nor does it mean that he did anything wrong. We all have the right not to provide information about ourselves to prosecutors, despite the recent losses in constitutional protections and privileges that we have witnessed of late.

Witnesses take the Fifth for a lot of reasons...often to stop an overly aggressive prosecutor from taking advantage of his ability to bring multiple investigations, or to use a civil lawsuit for discovery in a criminal case.

More to the point, while the Washington Post quotes a legal scholar saying that the invocation of the 5th in the unrelated investigation is admissible in the Spitzer vs. Grasso case, I do not believe that to be an accurate statement. While it could be admissible in the specialist trials if Mr. Grasso is called as a witness, it is not admissible in this civil case, between unrelated parties, on unrelated issues.

The argument does not appear to have any legal basis, so one has to question why Spitzer would even raise the issue, and why he would reveal supposedly confidential information from a private investigation. The answer is clear, he is doing so in order to gain an advantage in civil litigation, to get that headline from the Washington Post, and to smear Mr. Grasso in the press.

This is a war between Spitzer and Mr. Grasso. I understand litigation as war. But this war is being financed by the taxpayers of the State of New York, for the sole benefit of the millionaires who own (or owned) the New York Stock Exchange, by an Attorney General who loves headlines, but does not always get results.

And everyone knows it...even the Judge, who is quoted in the Post as saying:"You've having a war, and I'm the civilian caught in the crossfire."

And the people of the State of New York are suffering the collateral damage.

You Can Beat NASD Enforcement

There is a prevailing thought among brokers and firms that when faced with an NASD Enforcement proceeding, the firm or broker must settle the case. The thought is premised upon the belief that the NASD has unlimited resources, it gets to pick the cases it brings, and questions about the independence of the hearing panels.

Quite a bit has changed in enforcement proceedings over the years, and while the Staff still gets to pick it cases, and throw money at those cases, hearing panels today consist of an NASD Hearing Officer and two members of the industry. The perceived bias (which I am not convinced existed) has been diminished by that change, and the restructuring of the hearing process.

Brokers and firms are winning enforcement proceedings. Unfortunately, while the NASD loves to tout their "wins" with press releases, they are not a forthcoming with their "losses" but news of those losses does leak out.

I was somewhat surprised to see this press release, where the NASD announced a loss, and apparently a pretty significant loss, since an NASD hearing panel dismissed a disciplinary complaint against Invemed Associates, which charged Invemed with unlawful profit-sharing activities in late 1999 and early 2000 in connection with 'hot' IPO shares it allocated to its customers.

Unless the matter is appealed to NASD's National Adjudicatory Council (NAC), or is called for review by the NAC, the hearing panel's decision becomes final after 45 days.

Thursday, March 16, 2006

Grasso Motion to Dismiss Denied

This is not a surprise, but Judge Ramos denied Grasso's motion to dismiss Spitzer's complaint on the grounds that the Attorney General lacks standing to bring the complaint.

That is undoubtedly the right legal decision, but one really has to wonder why the Attorney General is using public funds to attempt to recover millions of dollars for a bunch of millionaires.

The decision is here, the link in the title is the Law.com article on the decision.

Wednesday, March 15, 2006

Short-Selling Plaintiffs

PointofLaw.com has an interesting discussion among legal scholars regarding short-selling plaintiffs and what, if anything to do about them.

The issue is the allegation that a plaintiff, or his attorney, who is about to file a class action suit against a public company sells the company's stock short prior to filing the suit, hoping that the stock will go down after the announcement.

The debate is over whether that is legal, what can be done about it, and whether anything should be done about it.

Most commentators are not fans of class action attorneys, and there is a bit of a bias in the discussion against the plaintiff's bar, but the discussion brings up a number of interesting issues regarding short selling and insider trading. Just how far are we willing to go to level the playing field in securities trading?

The discussion is here. Thanks to The 10b-5 Daily for bringing the discussion to our attention.

Bad-Mouthing the Hedge Fund Registration Rule

Talk about hitting the nail on the head, I found this quote today at Investors Offshore:
the controversial hedge fund registration rule that dissipates our scarce examination resources and does not add to our enforcement authority

As many commentators said (myself included, here) the SEC did not need to register hedge fund managers, the rule would not add anything to enforcement goals, and the SEC can't possibly review all of the managers anyway.

The speaker? None other than SEC Commissioner Atkins.

So what did we accomplish other than to cost thousands of managers, and tens of thousands of investors, additional expenses?

Tuesday, March 14, 2006

NASD to Ameriprise: Pay up or shut down

According to InvestmentNews.com (free registration required) the NASD has threatened to suspend Ameriprise Financial for failing to pay a $230,000 arbitration award to a former broker.


On March 1, NASD of Washington notified Ameriprise that it has until March 22 to pay a formerly affiliated registered representative, Frank P. Marzano, in its tussle for client information - or else face suspension.

Minneapolis-based Ameriprise faces the dire consequences because of its "failure to comply with the award," according to a letter that was sent to the company and signed by Jennifer L. Kozielski, the NASD case administrator.

"You are hereby given notice of NASD's intent to suspend the firm's membership," because it has yet to comply with the arbitration ruling, she wrote.

The failure to honor an arbitration award is a violation of NASD rules, and the NASD has instituted suspension procedures for firms who do not pay awards in a timely fashion.

It is extremely unusual to see a firm not pay an award, and in particular a firm the size of Ameriprise - which is the former American Express Financial Advisors.

Given the extreme penalty for failing to pay - the suspension would shut down the firm's brokerage operations - one can only wonder what Ameriprise is thinking in allowing this matter to get as far as a suspension letter.

According to the article, the firm has until March 22 to pay the award.

Wednesday, March 8, 2006

Merrill Plans to Help Retiring Brokers

The WSJ is reporting a "new" plan at Merrill Lynch that will allow retiring brokers to continue to receive commissions on their customer accounts after they retire.

While it is being spun as an attempt to help brokers, it is undoubtedly designed to keep customers. And is this really anything new? Wirehouses have been using retirement agreements, where a retiring rep gets paid a percentage of the commissions generated by his customers after he leaves, for years.

But ultimately, the announcement is good news for reps who are looking to retire, and for those reps who are looking to take over their accounts

NYSE Shares Begin Trading

The NYSE's stock begins trading today, with all sorts of comments and announcements about cost-cutting, maximizing revenue through increased trading fees, adding products like exchange-traded funds, futures and derivatives as well as Thain's desires for acquisitions and global ambitions.
The NY Times has a roundup of opinions.

Motion Denied as Incomprehensible

You gotta love this. A federal bankruptcy judge, denies a motion with the line:

"The Defendant?s motion is accordingly denied for being incomprehensible."

I intended to blog this story, but Professor Bainbridge beat me to it, and did a much better job. Its worth reading, since the court also quoted lines from an Adam Sandler movie - and Professor Bainbridge has a link to the actual motion.

Believe me, it is incomprehensible. Thank goodness it does not appear to have been filed by an attorney.

Pitt vs. Spitzer

"Eliot Spitzer is New York's AG, and you know what that stands for - Aspiring Governor."

And with that quip, Harvey Pitt comes out swinging. According to John Crudele's column, the former Chairman of the SEC has quite a bit to say about Elliot Spitzer.

Mr. Pitt apparently shares the views of many commentators, myself included, about Mr. Spitzer's use of his office, his work on the Merrill Lynch Research case, and the Grasso case. And none of his views are flattering.


"Eliot Spitzer isn't really concerned about public investors," Pitt continued. "He's concerned about moving on to higher public office." And, says Pitt, he's using big companies as "whipping boys."

Pitt says that Spitzer "extracted" a huge settlement from Merrill Lynch and then put the money into the state coffers rather than return it to investors. "Why? Because he wasn't concerned about investors," said Pitt.



The Grasso case is one of my favorite Spitzer peeves (and I have quite a few). Putting aside the merits of the case, he is using his public office, and public funds, to pursue a private case that benefits a private entity. There is no public benefit to the lawsuit, so why is he using taxpayer dollars to pursue it?

Mr. Pitt:
I have very strong concerns about what the motivation of (the Grasso) case is," says Pitt. Spitzer "is expending a great amount of public resources to effectively pursue an issue which is by and large a private dispute. I think there are a lot better things he can spend his time on, although they might not be as newsworthy."


Newsworthy? Headlines? Oh, I thought he was pursuing the rights of the people of the State of New York.

Friday, March 3, 2006

Settlement Reached in BlackBerry Dispute

There was just too much money at stake:
The maker of the BlackBerry e-mail device Friday said it settled its long-running patent dispute with a small Virginia-based firm, averting a possible court-ordered shutdown of the BlackBerry system and a disruption of wireless service for millions of users.

Morgan Settles Suit on Overtime

Joining the recent crowd of firms settling overtime pay allegations, Morgan Stanley has agreed to pay as much as $42.5 million to settle a lawsuit demanding overtime pay for its California brokers.

The suit, which was filed on behalf of about 5,000 current and former commission-based brokers and broker trainees in the state, claimed that New York-based Morgan Stanley failed to pay required overtime and improperly deducted money from paychecks.

Thursday, March 2, 2006

Broker Wins $1 Million in Defamation Claim Against Claimant's Attorney

""When a dog bites a man that is not news. But when a man bites a dog, that is news." -Charles A. Dana, New York Sun publisher,1882.

And this is certainly news. According to two web sites, a former Salomon Smith Barney broker has sued a customer's attorney for defamation - and won a million dollar jury verdict.

Registered Rep magazine is reporting that a claimant's attorney,Stuart Goldberg, has been ordered to pay Philip Spartis, once one of the top producers in the Salomon Smith Barney system, one million dollars in compensatory and punitive damages for defamation.

I have not been able to obtain a copy of the pleadings, but it appears from the article at Registered Rep and at SquawkBlog that Goldberg has been representing Worldcom investors. Spartis is at the center of the Salomon Smith Barney portion of that debacle, and is apparently a respondent.

For whatever reason, it appears that Goldberg posted a number of articles at his web site which were critical of Spartis. Those articles apparently sparked the lawsuit.

I have represented hundreds upon hundreds of brokers over the years. Many of those brokers wanted to sue the claimant's attorney, but that cause of action just doesn't fly. The law considers statements made in the context of a judicial proceeding (including arbitration) to be privileged. You cannot sue someone for defamation for something that they said in the context of a lawsuit.

But apparently Goldberg made these statements on his web site, and by my reading of the law (part of my practice is also representing web site developers and publishers), those statements are not going to be privileged. You can say whatever you want in a pleading (within limits) but not on your website.

This is an interesting outcome, to be sure. I have often advocated taking an aggressive approach to some types of customer claims, (see Fight Back - but suing the customer's attorney is a bit over the top, even for me.

But the details remain to be disclosed, and I am trying to determine what exactly it was that Mr. Goldberg said or wrote about Mr. Spartis that caused a million dollar verdict.

As a securities arbitration attorney, I am interested. As an attorney who posts on the web, I am even more interested. I will post more when I find out.