I am on the record, lot of times, with my belief that, at least in theory, FINRA must never ever lose any Enforcement cases it submits. This is the easy factor that if FINRA has any authentic doubts about its capability to dominate in front of a hearing panel, due to the quality of the proof that’s been collected, it does not need to submit a problem; rather, it can simply settle the case inexpensively and/or charge participant with a more benign guideline offense. Offered this vibrant, it is simple to understand why FINRA typically does not lose Enforcement cases. In some cases, nevertheless, it does. These periodic choices usually supply some lesson to be found out in the best ways to protect a FINRA problem; and, if they do not, at least they offer the chance to commemorate a participant’s success.
Recently, Stanley Clayton Niekras, a previously authorized associate, handled to beat FINRA in a one-count grievance that implicated him of making product misstatements in the offense of Rule 2010. Basically, the case comes down to an allegation that Mr. Niekras made the most of a strong relationship he had with a rich, senior couple to cause them to pay him for financial preparation services that he had rendered to them. The couple themselves, it appears, had no concerns with Mr. Niekras. Their adult kids, nevertheless, saw things rather in a different way. Among the kids ultimately submitted a composed problem with FINRA about Mr. Niekras, which eventually resulted in the issuance of the Enforcement action.
According to the choice, the adult kids informed FINRA that their parents were too old to supply any significant help, and agreeably avoided the inspector designated to examine the problem from calling the parents. Therefore, whatever FINRA ever found out before submitting the Enforcement grievance originated from the adult kids and Mr. Niekras, but not from the 2 people who were the “victims” of the supposed misstatements.
That finish to the hearing itself. At the beginning of the hearing, in the opening declaration, the Enforcement lawyer revealed that while the case was undoubtedly about the 2 parents, they were “94 and 95 years of ages, and, sadly, they will not be appearing at this hearing.” Enforcement assured the Hearing Panel, nevertheless, it would speak with the adult child, who would “affirm about discussions she had with her dad.” As the choice put it, this “recommended that, but for their innovative years, the [parents] would have affirmed and Enforcement would not require providing proof through a surrogate.”.
Ends up that FINRA’s tip was way, way off. The choice includes a very comprehensive conversation of the parents’ psychological and physical condition, too comprehensive to state here, but, it boiled down to this finding by the hearing panel:” The records does not show that they struggled with psychological or physical illness avoiding them from having supplied proof, in some type, at least throughout the examination.” Significantly, FINRA didn’t even trouble to obtain the parents to sign Declarations in lieu of offering statement. I am not stating that I promote making use of such– certainly, when faced with Declarations rather of live witnesses, I regularly argue regarding the unfairness, offered the failure to cross-examine the declarant. From FINRA’s point of view, perhaps a Declaration is much better than absolutely nothing. The hearing panel observed, nevertheless, that while the adult child “affirmed that it would have been mentally challenging and uncomfortable for her parents to have offered a composed declaration or statement, she did not indicate any physical or psychological imperfection that would have avoided them from doing so.”.
This resulted in my preferred part of the choice, which states what occurred on the night before the last day of the hearing. Obviously, Mr. Niekras and his lawyer “owned unannounced to the [parents’] home and consulted with the husband for about an hour.” According to Mr. Niekras, the hubby was “very sharp … sharp as a tack.” The choice continues:
Mr. Niekras declared that when he asked [the other half] to affirm, [the spouse] informed him he was uninformed of this case, but “would do anything he might to assist,” consisting of affirming, because Niekras had been devoted to him and had never ever cheated him or provided him with a cost. [The partner] and Niekras scheduled Niekras to get [the partner] the next day to take him to the hearing. When Niekras and his counsel got here at the [ parents’] home the next early morning, [the adult child and one adult kid] existed and [the adult child] informed him not to obtain from his vehicle, so he left.
At the hearing, Mr. Niekras brought these advancements out, and Enforcement essentially supported them. And, in doing so, Enforcement counsel said these soon-to-be-famous lines:
I have not stated this on the record before, but we were particularly asked for not to call [the spouse] to affirm because the understanding by his kids is that it would not benefit him, great for his health. And, we appreciated that because that’s part of what we do as FINRA Enforcement legal representatives. We do not wave around a heavy hand like we might have if we were federal or state district attorneys.
NOW you see why I HAD to blog about this choice.
Regarding the benefits of the case, ends up that without the parents’ statement backing its accusations, FINRA had absolutely nothing but the adult kids. And the hearing panel, to its credit, wasn’t purchasing what they needed to say. About the adult child, in specific, the panel kept in mind that she “restrained the examination and Niekras’s defense by protecting the [parents] from contact with the parties,” which “her neutrality was doubtful” as “she was honestly hostile towards Niekras.”
Not sure what’s so unique about that last observation, as FINRA consistently trots out clients who are “freely hostile” to my customers, yet hearing panels have no issue thinking them, but I expect that’s an issue for another article. The larger issue was that the adult kids were the only ones who affirmed for FINRA, but they were also the only factor that the parents themselves did not appear to affirm. As an outcome, the hearing panel picked not to think the only witnesses that FINRA produced in assistance of the accusations.
Here is what I draw from this case: FINRA Enforcement legal representatives need to keep in mind that even if they exist with a test report from Member Reg with a suggestion to continue with a problem, the proof supporting that suggestion might not exist. Enforcement owes it to potential participants all over really to do its job, to perform a real evaluation of the examination report for sufficiency of proof, not simply to rubber-stamp Member Reg’s viewpoint. Had Enforcement done that here, it would have understood that it might not show a misstatement case without the capability to produce as witnesses the only 2 people who in fact heard the supposed misstatements, and Mr. Niekras would not have needed to go through with this ridiculous charade of a case.