In the last few years,
broker-dealers have seen a recent trend by its regulatory authority,
FINRA, in cracking down on the high standard of accuracy and fairness
that brokerage-dealers must adhere to in terminating registered
representatives.
Broker-dealers that are members of the FINRA are
required to file a Form U-5 when terminating their relationship with
a registered representative. Broker-dealers must also describe
the specific reason(s) that the rep was discharged or permitted to
resign. Publishing the reasons or causes for a rep’s
discharge or resignation can be troubling if the reasons disclosed on
the U-5 were false, exaggerated or misleading.
A black mark on one’s U-5 can make it extremely
difficult, and in some cases, impossible, to find another job in the
industry. Therefore, the potential damages against the
broker-dealer for defamatory statements on one’s U-5 can be
exponential, especially if the false statements were intentionally or
recklessly published. In addition to compensatory and punitive
damages, the statements on the U-5 can be ordered to be expunged and
amended to reflect the truth.
In July 2011, a Philadelphia FINRA Panel awarded
Gregory Kipple, a former broker of Wells Fargo, $6.83 million for
wrongful termination and defamation ($4.3 million for lost earnings;
$1 million for defamation; $1 million in punitive damages for
violation of New Jersey’s Conscientious Employee Protection Act;
and $530,000 in cost and attorney’s fees). Wells Fargo was
also ordered to update Kipple’s U-5 to reflect that he was
“terminated without cause.” Kipple was fired in August of
2009 for his “failure to follow the firm’s policies related to
‘know your customers.’” However, Kipple had no direct
involvement or interaction with the specific customer that the
statement was in reference to.
The District Court upheld another FINRA award against
Wells Fargo in July 2011 for submitting defamatory statements on a
discharged employee’s form U-5. The claimant, Kenneth Schafer
alleged that infractions reported on his U-5 were misleading and
pretextual because he was discharged for health reasons.
Schafer was awarded $75,000 in compensatory damages.
In June of 2011, a FINRA Arbitration Panel awarded a
Claimant with a substantial punitive damage award. In Olsen v.
World Equity Group, Olsen alleged defamation, breach of contract, and
tortious interference. Claimant Olson alleged that Respondent
WEG had breached its employment contract with him, wrongfully
terminated him, and maliciously defamed him on his Form U5.
Olson was awarded $285,000 in compensatory damages, $575,000 in
punitive damages, and $282,800 in attorney’s fees. The Panel
also ordered expungement of the defamatory comment from his U-5 which
stated, “Disagreement over advertising policy, rules, and
advertising protocol.” The statement was to be replaced with,
“FINRA Arbitration Panel ruled discharge was wrongfully
administered. FINRA Arbitration Panel questions the appearance of the
stated internal review and/or its effectiveness. FINRA Arbitration
Panel found no violations of investment-related statutes,
regulations, rules or industry standards of conduct.”
In Perales v. Chase Investment Services Corp., also
decided in June 2011, the claimant sought damages for defamation and
expungement of the statements on her U-5 which alleged that she
committed fraud and wrongfully took property. Chase was ordered to
pay Perales $75,000 in compensatory damages and FINRA ordered
expungement of the defamatory statements and recommended replacement
language.
Charles Schwab was punished in 2010 with a substantial
punitive damage award by a FINRA Panel. In that case, Claimant
Timothy Leahy, who was a registered representative with Charles
Schwab, was awarded $1.8 million in total damages, of which $1.5
million was comprised of punitive damages, as well as expungement of
the defamatory statement from his U-5. Leahy’s U-5 stated
that he was terminated for “failure to adhere to HR related
policies.” The Panel found that Schwab conducted an
inefficient human resources investigation, stated false violations as
reasons for his termination, and found that Schwab had the “specific
intent” to harm the Leahy.
In 2009, FINRA found that Questar Capital Corporation
included misleading information on John Saldutte’s U-5 after
terminating him as a registered rep. Saldutte was awarded
$68,000 in compensatory damages and the Panel ordered expungement of
the information contained on his U-5 regarding his termination and
recommended Questar replace the defamatory statement with the
following language: “After conducting a deficient investigation,
the firm wrongfully terminated representative based on erroneous,
misleading, and unjustified conclusion that representative knowingly
participated in unregistered person’s submission of business in
representative’s name.”
If you’re a registered representative and feel you
have been harmed by false or misleading statements published on your
Form U-5 or to third parties, Cosgrove Law, LLC has substantive
experience representing reps and advisers in such matters.
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