Morgan Stanley Humiliated in $10 Million Employee Loan Arbitration

August 5, 2016

We want our money back and we want it now!  That's the familiar refrain from the former employer when there is an outstanding balance due on what Wall Street calls employee forgivable notes ("EFLs"). Usually, it's a pretty simple equation: The employer lends money subject to terms, repayment is forgiven at certain landmarks in time, if the employee leaves before all of the loan has accrued, the firm wants the unaccrued balance back.

The thing about "pretty simple equations" when it comes to employment disputes, however, is they ain't pretty and they ain't simple equations.

In a recent FINRA arbitration, the likely-confident Morgan Stanley demanded repayment of nearly $10 million in promissory notes. When we're talking about a lawsuit over $10 million in employee loans, ya gotta know that this is gonna be a bloody mess -- which it was.  The former employee gave back as good as he got and demanded some $30 million-plus in damages. Poor, poor, poor Morgan Stanley. I'm guessing the firm didn't see that the light at the end of this particular litigation tunnel was an oncoming train.

Case In Point

In a Financial Industry Regulatory Authority ("FINRA") Arbitration Statement of Claim filed in April 2014, Claimants Morgan Stanley asserted breach of contract for failure to repay fully-executed promissory notes following Respondent Cebert's termination of employment. At the close of the hearing, Claimants requested:
  • $9,925,860.78 per the balances due on the Notes plus pre-judgment interest through June 17, 2016;  
  • $538,046.00  attorneys' fees; and
  • $280,891.24 costs.

In the Matter of the FINRA Arbitration Between Morgan Stanley Smith Barney LLC and Morgan Stanley Smith Barney FA Notes Holdings, LLC, Claimants, vs. Dale Lawrence Cebert, Respondent (FINRA Arbitration 14-01088, August 1, 2016).

Counterclaim

Cebert generally  denied the  allegations, asserted various affirmative defenses, and filed a Counterclaim asserting, in part, defamation, tortious interference with advantageous business relationships and prospective economic  advantage; unfair and deceptive trade practices, and breaches of  contract. At the close of the hearing, Cebert sought:
  • between $16 million and $32 million compensatory damages
  • between $100,000 and $200,000 in discovery sanctions;
  • punitive damages of twice the compensatory damages awarded;
  • $1,042,426.00 in attorneys' fees; and
  • $186,194.41 costs.
The FINRA Arbitration Decision asserts that Cebert also sought:

[A]n injunction enjoining MSSB from  making further false and defamatory statements about Respondent Cebert; the return  by Claimant MSSB of all the files it acquired from Respondent Cebert and Cebert  Wealth Management ("CWM") when it induced him to move into the Sumter Landing  branch office, including but not limited to all CWM business records, and the complete  CWM and MSSB files of all clients who have transferred and who will transfer their  accounts to CWM in the future . . .

Additionally, Cebert sought the expungement of the information contained in the Termination Explanation section of his Form U5, and  reformation of the language to read, "Terminated Without Cause."


At the final evidentiary hearing, Respondent Cebert withdrew all Counterclaims asserted against  Claimant MSSB Notes; and, accordingly, the FINRA Arbitration Panel made no determination on those counterclaims.

Award

The FINRA Arbitration Panel found:

1. Respondent is liable on the claim of breach of promissory note and shall pay to Claimants damages in the amount of $1,260,000.00 for repayment of the Notes dated June 19, 2012, August 29, 2012, and November 2, 2012, inclusive of prejudgment interest. Claimant MSSB is liable on Counts 1, 2, 3, and 5 of the Counterclaim and shall pay to Respondent $2,380,000.00 inclusive of prejudgment interest. Pursuant to the stipulation of the parties, the above amounts are offset. Accordingly, Claimant MSSB is liable and shall pay to Respondent the sum of $1,120,000.00.  

2. Pursuant to the terms of the Notes, Claimants MSSB and MSSB Notes are jointly and severally liable for and shall pay to Respondent attorneys' fees in the amount of $833,940.80 and Respondent is liable for and shall pay to Claimants attorneys' fees in the amount of $107,609.20. Pursuant to the stipulation of the parties, the above amounts are offset. Accordingly, Claimants MSSB and MSSB Notes are jointly and severally liable for and shall pay Respondent attorneys' fees in the sum of $726,331.60.

3. Claimants MSSB and MSSB Notes are jointly and severally liable for and shall pay to Respondent costs in the amount of $148,955.52. Respondent is liable for and shall pay to Claimants costs in the amount of $56,178.25. Pursuant to the stipulation of the parties, the above amounts are offset. Accordingly, Claimants MSSB and MSSB Notes are jointly and severally liable for and shall pay to Respondent costs in the sum of $92,777.27.  

4. The Panel found that although Respondent could have been more diligent and proactive in terms of acclimating himself and his team to some of the requirements and expectations for him and them at Claimant MSSB, the Panel finds a far greater degree of fault on the part of Claimant MSSB during Respondent's employment and after his termination.  

The Panel conducted 39 hearing sessions over the course of 21 days, heard  testimony from 24 fact and 3 expert witnesses, and received over 700 exhibits.  

Assessing the credibility of the witnesses, the Panel finds that, under Florida Statutes, §768.725, Respondent established his entitlement to punitive damages  with clear and convincing evidence of:  

a. A flawed internal investigation that was conducted, acted upon, and reported with reckless disregard for its accuracy and completeness and for the  defamatory consequences it would have for Respondent; and  

b. Communications with Respondent's customers conducted in at least a  grossly negligent manner (if not with a self-serving, malicious motive) by one  or more managers and/or authorized representatives of Claimant MSSB  regarding Respondent and his departure from Claimant MSSB that defamed  or were intended to defame Respondent in the minds of his customers.  

The Panel therefore awards $500,000.00 in punitive damages to Respondent, for which Claimant MSSB is liable.  

5. Pursuant to the stipulation of the parties and the offsets set forth above, Claimants are liable for and shall pay to Respondent the sums due pursuant to items 1, 2, 3 and 4 above for a total of $2,439,108.87.

6. The Panel recommends expungement of the entire Termination Explanation from Section 3 of Respondent Dale Lawrence Cebert's (CRD # 2986573) Form U5 filed on April 2, 2014, by Claimant MSSB and maintained by the CRD. The Reason for Termination shall remain the same. As requested by Respondent, the Panel recommends that the expunged language be replaced with the following language: "Terminated without cause." These recommendations are based on the defamatory nature of the information. In addition, the Panel recommends the expungement of the Yes answer to Question 7F(1) of the foregoing Form U5. The Panel recommends that the answer be changed to No and the accompanying Termination Disclosure Reporting Page be deleted in its entirety.  . .

Bill Singer's Comment

Compliments to the FINRA Arbitration Panel for providing us with sufficient content and context to render this case intelligible.

By way of recap and netting out the various off-setting awards totaling $2,439,108.87, the Panel awarded Cebert:
  • $1,120,000.00 damages;
  • $500,000 punitive damages;
  • $726,331.60. in attorneys fees; and
  • $92,777.27 costs
Also, you need to read and then re-read and then let it sink in the Panel conclusion that there was "clear and convincing evidence" in support of a punitive damages award based upon findings of:

a. A flawed internal investigation that was conducted, acted upon, and reported with reckless disregard for its accuracy and completeness and for the defamatory consequences it would have for Respondent; and

b. Communications with Respondent's customers conducted in at least a grossly negligent manner (if not with a self-serving, malicious motive) by one or more managers and/or authorized representatives of Claimant MSSB regarding Respondent and his departure from Claimant MSSB that defamed or were intended to defame Respondent in the minds of his customers.

If you are a registered rep involved in an employment dispute with your former employer or likely headed for one, make sure to retain a copy of this FINRA Arbitration and take note of how you can leave your firm owing balances on Promissory Notes /
EFLs but still wind up coming out ahead, so to speak.

If you are a FINRA member firm, take heed of the warnings inherent in this $2.4 million net award to a departed registered rep. For starters, never, ever forget that Morgan Stanley was the original Claimant. If you're going to start an employment arbitration, make sure that you're not walking into a minefield. Slap-dash internal investigations, which are often designed to tar the former employee and gain some settlement leverage, are now coming under scrutiny by more arbitration panels. Although there isn't much (if any) precedential value in any FINRA arbitration, the word is now out -- and articles such as this BrokeAndBroker.com Blog story will soon be making the rounds. Similarly, those free whacks you got to take against the former rep in the form of nastygrams to his or her customers and in the form of poisoning-the-well telephone calls are also starting to draw more meaningful scrutiny by arbitrators.

ALSO READ:


(BrokeAndBroker.com Blog, June 17, 2016)

(BrokeAndBroker.com Blog, March 20, 2015)

Wells Fargo Hit With Punitive Damages In FINRA U5 Defamation Case (BrokeAndBroker.com Blog, December 15, 2011)

(BrokeAndBroker.com Blog, June 15, 2011)