An irreverent Wall Street Blog
Pro Se Employee Eviscerated in FINRA Employment Expungement Arbitration
May 3, 2018
Mind your manners! Listen up everyone: Wall Street is no longer a rough and tumble, winner-takes-all place. Proper etiquette will now be observed. You gentleman and ladies will say "please," "thank you," and "excuse me." You will always be polite to everyone at all times. Think this is a joke? Well, perhaps you might read today's BrokeAndBroker.com Blog article about a recent FINRA arbitration and, when you're finished, say "thank you" to that nice man Mr. Singer.
Case In Point
In a Financial Industry Regulatory Authority ("FINRA") Arbitration Statement of Claim filed in August 2017, pro se associated person Claimant Kuhn asserted breach of contract for
compensation/commissions owed; defamation on the Form U5; securities fraud; and failure to supervise in connection with his employment and termination from Respondent BG Strategic Advisors LLC. Claimant sought $1,291,358.90 for; compensation owed; $500,000 for lost wages and loss of career; $250,000 in punitive damages; $2,000 in FINRA filing fees; $446.06 in expenses; $450 in attorneys' fee; and the expungement of allegedly false information on his Form U5. At the close of the hearing, Claimant requested a total of $1,307,077.32 in damages, inclusive of interest at the rate of 7%, costs and attorneys' fees. In the Matter of the FINRA Arbitration Between Ryan Michael Kuhn, Claimant, vs. BG Strategic Advisors LLC and Benjamin H. Gordon, Respondents (FINRA Arbitration 17-02040, April 30, 2018)
Respondents generally denied the allegatios and asserted various affirmative defenses.
Expungement
The FINRA Arbitration Panel denied Claimants claims and left unchanged the form U5's "Reason for Termination." The Panel recommended, however, the expungement of the "Termination Comment" and proposed that it be revised to state:
Did not follow company policy by missing work and being impolite to colleagues.
Bill Singer's Comment
Online FINRA BrokerCheck records as of May 3, 2018, disclose that Kuhn first passed a registration examination in January 2017. Although the heading "Employment History" on BrokerCheck shows Kuhn was employed by BG Strategic Advisors, LLC from March 2016 to December 2016, the heading "Registration History" states that "No information reported" for any firms with which a broker would have been previously registered.
When I speak to potential law clients about expungement, I often quote George Bernard Shaw's warning that "There are two tragedies in life. One is to lose your heart's desire. The other is to gain it." In many proposed expungement cases, those are wise words of wisdom. Sometimes what looks like a victory, even if only a partial win, may prove worse than if you had opted to never sue in the first place.
Until such time as a FINRA Panel of Arbitrators or a judge in court has denied your application for an expungement, you may still have some control over the "narrative" about what happened and why. Once you tell your story to an independent panel or court and they rule against you, things begin to harden in stone. It's no longer a he-said-she-said tale but now something etched in stone by purportedly impartial folks. By pursuing expungement, you may have made a bad situation worse by now having to address a contrary arbitration decision or a court opinion during an employment interview. Remember that a FINRA Arbitration Decision is published online and easily obtainable.
Veteran expungement lawyers know that FINRA arbitrators have an odd way of revising defamatory or inaccurate language. Notwithstanding their best intentions, such scriveners often recommend revised language that doesn't always burnish an associated person's reputation. Not knowing what the original comment stated, it's hard to tell whether the arbitrators' wordsmithing was an improvement or exacerbation. Be that as it may, Kuhn now has to deal with a published, public FINRA Arbitration Decision -- which likely has the online half-life of Tellurium-128. And what does that somewhat timeless and ageless revised "Termination Comment" say about Kuhn? Oh, it suggests that it has a problem showing up for work and when he does arrive, he's rude to his colleagues. You ever see a job posting seeking folks who are eager to miss work and who have a demonstrated ability to be impolite in the office?
- FINRA Rule 2080: Obtaining Customer Dispute Expungement
- FINRA Rule 2081: Prohibited Conditions Relating to Expungement of Customer Dispute
- FINRA Rules 12805 and 13805: Expunging Customer-Dispute Information Under Rule 2080