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Securities & Commodities Litigation

Whether markets are up or down, investors sue the perceived “deep pockets” of financial service providers and similar large entities. From Massachusetts to Arizona, from Michigan to Texas, it is to the responsive, skilled and sophisticated attorneys of Ulmer & Berne that many of the nation’s major corporations, banks and financial service firms turn to confront and resolve charges of securities fraud, misrepresentation, unauthorized trading or alleged violations of SEC and related regulations, whether lodged as individual suits or class actions. Ulmer & Berne attorneys also represent a variety of clients regularly in regulatory and investigatory proceedings in courts, the SEC, FINRA, NYSE and other state and federal bodies.

Corporate directors and officers turn to Ulmer & Berne for advice on shareholder issues, to resolve governance disputes, and to represent special litigation committees. With backgrounds in federal and state securities agencies and daily experience in the trenches of current securities litigation, our attorneys offer client-centered, practical advice and counsel.

Clients see the strength of the firm both in its reach across litigation, arbitration and regulatory proceedings and in its size. Ulmer & Berne is large enough to handle any securities litigation matter anywhere in the nation from its four Midwest offices. At the same time, we are small enough to be efficient, responsive and cost-competitive.

From Ulmer’s Broker-Dealer Law Corner Blog By Alan M. Wolper I read an article this week in Investment News with the following headline: “Brokerage Customers Winning More FINRA Arbitration Cases.” As a guy who defends customer cases, I was naturally intriguied by this. According to the article, “brokerage customers who do file...

Ulmer & Berne LLP is pleased to announce that Partner Frances Floriano Goins has been elected to the Board of Directors of Beck Center for the Arts, a nonprofit performing arts and arts education organization dedicated to inspiring and enriching the quality of life for Northeast Ohioans. Beck Center for the Arts...

From Ulmer’s Broker-Dealer Law Corner Blog By Alan M. Wolper Rightly or wrongly, I don’t know much about cryptocurrencies or digital coins. But that’s ok. What is worrisome, on the other hand, is that I am increasingly concerned that FINRA doesn’t either. And while my own ignorance will have exactly zero impact...

From Ulmer’s Broker-Dealer Law Corner Blog By Alan M. Wolper FINRA loves to tout its supposed intent to bring meaningful cases, cases that matter to the investing public, rather than enforcing “foot faults,” as it has been accused of doing over the years. My own experience with FINRA suggests that while it...

From Ulmer’s Broker-Dealer Law Corner Blog By Kenneth F. Berg I am fortunate to have Ken Berg, a commodities regulatory guru, just down the hall from me, so I’ve never had to learn that stuff too well.  But, here, as you will see, there can be considerable overlap between the securities and the...

Ulmer Partner Richard Hamilton was featured during the June 7 episode of “Nightly Business Report,” a national news program produced by CNBC that airs on PBS. Offering his insider perspective as a former attorney in the DOJ’s Antitrust Division, Hamilton was interviewed regarding the Justice Department’s antitrust probe of Google and...

From Ulmer’s Broker-Dealer Law Corner Blog By Christopher D. Seps I heartily endorse this post from my colleague, Chris, who’s been quiet of late.  It says a lot about FINRA, in terms of how it deigns to spend your assessment money, how fairness in the Enforcement process can be completely illusory, and...

Part II By Kenneth F. Berg This is the second part of a two-part article discussing a defendant’s Seventh Amendment right to jury in an enforcement action by the Commodity Futures Trading Commission under the Commodity Exchange Act for civil monetary penalties.  Part I analyzed existing Supreme Court cases regarding...

From Ulmer’s Broker-Dealer Law Corner Blog By Alan M. Wolper Reading Reg Notice 19-17 makes me think of the legal arguments that I’ve recently read regarding whether a president can be found guilty of obstructing justice if the actions in question were taken out in the open, for everyone to see. Here, FINRA’s proposed...

From Ulmer’s Broker-Dealer Law Corner Blog By Alan M. Wolper I apologize for all the posts this week, but I am traveling and am in a different time zone, so I am awake at hours when, ordinarily, I would be asleep, giving me time to muse.  Anyway, given that, I will not...

From Ulmer’s Broker-Dealer Law Corner Blog By Alan M. Wolper If you are a regular reader of this blog, then you know that over my last few posts, I have been talking about an increasingly visible effort by FINRA to turn its regulatory eye from rogue brokers – who have been an...

Part I By Kenneth F. Berg This is the first of a two-part article discussing a defendant’s Seventh Amendment right to jury in an enforcement action by the Commodity Futures Trading Commission under the Commodity Exchange Act for civil monetary penalties.  Civil penalties for violation of the CEA are now...

From Ulmer’s Broker-Dealer Law Corner Blog By Alan M. Wolper I told you two weeks ago in my blog post that this would happen. I told you that when Robert Cook announced the topics to be taken up at the February/March FINRA Board meeting in Boca Raton, he slipped and used the new phrase...

Ulmer Partner Frances Floriano Goins and Associate Michael Davis Hoenig recently wrote an article for Bloomberg Law entitled, “INSIGHT: Protecting Broker Dealers from Cyber Threats.” In the article, Goins and Hoenig examine a FINRA report that provides broker dealers with best practices for effective cybersecurity, and warn that it is...

From Ulmer’s Broker-Dealer Law Corner Blog By Michael A. Gross Does FINRA have jurisdiction over me? This is a question that I regularly field at the outset of regulatory engagements. My answer differs depending on a number of factors, including the nature of a person’s role and duties at a firm, his...

Ulmer Partner Alan M. Wolper was recently interviewed by PLANADVISER in an article entitled, “B/D Attorney: Don’t Be Distracted by FINRA Examination Priorities Letter.” Wolper provided his insights into the recently published FINRA 2019 priorities list, which he thinks is interesting, but ultimately not all that informative when it comes...

Ulmer & Berne LLP is pleased to announce that five attorneys from its Chicago office have been selected to the 2019 list of Illinois Super Lawyers. The list features the top attorneys in the state, chosen for their demonstrated excellence in the practice of law. Of those named from Ulmer,...

From Ulmer’s Broker-Dealer Law Corner Blog By Alan M. Wolper In what has become an annual, but hardly exciting – I mean, it’s not like anxiously awaiting the day that pitchers and catchers report to Spring Training – tradition, with the turning of the calendar to the new year, FINRA has...

From Ulmer’s Broker-Dealer Law Corner Blog By Alan M. Wolper About a year ago, the SEC offered investment advisors the unique opportunity to report themselves to the SEC if they sold mutual funds to their clients that offered a lower priced share class than the class actually selected by the advisor,...

From Ulmer’s Broker-Dealer Law Corner Blog By Michael A. Gross It is not a wise career move for a registered rep to leave his broker-dealer – thereby abandoning his customers, and affording competitors the opportunity to make his customers their own – and then to begin the long, expensive, and uncertain process...

Ulmer Partner Frances Floriano Goins was recently interviewed for a Global Data Review article entitled, “Facebook could face FTC scrutiny, say privacy lawyers.” Goins provided her insights following The New York Times’ discovery that Facebook has been giving other companies access to users’ personal data and whether this violated Facebook’s...

From Ulmer’s Broker-Dealer Law Corner Blog By Alan M. Wolper What exists at the point where PIABA’s transparent self-interest in getting paid and FINRA’s historical lack of transparency about who is actually driving its agenda regarding arbitrations? This: a late December decision by FINRA to propose a rule that prohibits non-lawyers from...

Ulmer & Berne LLP is pleased to announce the election of four partners to the firm, effective January 1, 2019. This class of new partners includes accomplished attorneys from three of Ulmer’s offices who have diverse experience spanning multiple legal disciplines. “Through their hard work, determination, and dedication to providing...

Ulmer & Berne LLP is pleased to announce that Booker T. Coleman, Jr. has been appointed to serve on the Investigative Division of the Chicago Bar Association’s (CBA) Judicial Evaluation Committee (JEC). The JEC provides an invaluable service to the bench, the bar, and the public through its evaluations of...

Ulmer Partner Michael N. Ungar was recently featured on the cover of Ohio and Kentucky Super Lawyers Magazine with an article about him entitled, “Mike Ungar’s Town.” The article details Ungar’s early life, career at Ulmer, his love of Cleveland and involvement in the community, and his passion for complicated...

From Ulmer’s Broker-Dealer Law Corner Blog By Alan M. Wolper On Friday last week, FINRA released a report discussing the findings from its 2018 exams, providing what it described as “selected observations” that were deemed to have “potential significance.” Even with that tepid introduction, in theory, this is still a great idea, since anyone...

With Justice Brett Kavanaugh recusing himself from the Lorenzo case, which involved forwarded misstatements before the U.S. Supreme Court, attorneys paid close attention to Monday’s oral arguments for any unexpected leanings by the other eight justices. Please click here to read what experts, including Ulmer Partner Kenneth F. Berg, paid...

Ulmer & Berne LLP is pleased to announce the addition of three associates to the firm. Kathryn (Katie) Bartolomucci and Brooke Tyus join Ulmer’s Cleveland office, while Hillary Maynard joins the firm’s Chicago office. “We’re thrilled to bring Katie, Brooke, and Hillary on as associates,” said Scott P. Kadish, Managing...

From Ulmer’s Broker-Dealer Law Corner Blog By Alan M. Wolper If you’ve read this blog for even a short while, you know my feelings on Rule 8210, or, more specifically, how FINRA uses that rule, i.e., as a cudgel to keep member firms and their associated persons in line. Endless 8210 requests...

From Ulmer’s Broker-Dealer Law Corner Blog By Alan M. Wolper Last year I wrote about FINRA’s effort to encourage firms to self-report their problems, pausing to wonder at the suggestion attributed to Jessica Hopper, a Senior Vice President with Enforcement, that cooperating with FINRA by self-reporting “not only fulfills a firm’s regulatory responsibilities, but...

From Ulmer’s Broker-Dealer Law Corner Blog By Alan M. Wolper I just read an article about a research study conducted of FINRA arbitrations by three people associated with Harvard, Stanford, and the University of Texas, respectively, and their overarching conclusion is a doozy. Now, admittedly, I have not read the study itself...

From Ulmer’s Broker-Dealer Law Corner Blog By Blaine F. Doyle I recently had to the opportunity to sit in on a talk from high ranking CFTC and SEC enforcement officials at a local bar association meeting. The purpose of the get together was, in part, to let industry folks and their lawyers...

From Ulmer’s Broker-Dealer Law Corner Blog By Christopher D. Seps When a registered rep contacts us about seeking expungement of customer complaints from his or her CRD record, we always respond that expungement is not a sure thing. It turns out that is more true than ever before because of the...

For five years in a row, Ulmer & Berne LLP partner Frances Floriano Goins has been recognized as one of the nation’s top female litigators by being named in Benchmark’s Top 250 Women in Litigation. This year Goins is recognized as one of only five female litigators in the state of Ohio to...

From Ulmer’s Broker-Dealer Law Corner Blog By Alan M. Wolper A little over a year ago, I blogged about a FINRA Enforcement action against an Ameriprise rep – but, notably, not Ameriprise – to highlight what a great job the firm did in ensuring that its sales force was not engaging in any undisclosed...

From Ulmer’s Broker-Dealer Law Corner Blog By Alan M. Wolper If you are like me, and spend your idle time twiddling around the FINRA website, then you already know that FINRA publishes a variety of mathematical statistics, updated periodically, that provide, along with the sobering tally of the Enforcement actions brought and fines...

From Ulmer’s Broker-Dealer Law Corner Blog By Alan M. Wolper Once upon a time, FINRA at least pretended that it was interested in maintaining a level playing field for claimants and respondents in the arbitrations it administers. Today, all that pretense has been jettisoned.  In Regulatory Notice 18-22, which seeks comments on FINRA’s...

From Ulmer’s Broker-Dealer Law Corner Blog By Alan M. Wolper In most Enforcement cases involving outside business activities, it is the registered rep who is named as the respondent, and the allegation is that the RR failed to provide notice (or timely notice) to his or her broker-dealer about the OBA. On...

From Ulmer’s Broker-Dealer Law Corner Blog By Alan M. Wolper You are not going to believe this one. Here are the unadulterated facts, taken directly from the Order entered by the FINRA Hearing Officer (an Order, by the way, which FINRA elected not to publish on its website): Five days into an Enforcement hearing against...

From Ulmer’s Broker-Dealer Law Corner Blog By Alan M. Wolper About a month ago, I posted a blog about the apparent success that PIABA had achieved in getting two US senators — a Democrat and a Republican — to sponsor a bill to require FINRA to create a fund from which unpaid arbitration awards...

From Ulmer’s Broker-Dealer Law Corner Blog By Alan M. Wolper This week, Charles Schwab consented to pay the SEC a $2.8 million civil penalty for failing to file SARs on certain transactions – suspicious transactions, namely – by a number of independent investment advisors that Schwab had terminated from its platform. This matter is...

The newsletter of the ISBA’s Section on Real Estate Law By Kenneth F. Berg The January 2018 issue of the ISBA Real Estate Newsletter contains a thoughtful article by Paul Peterson, “Presumptively Void Transfers to Caregivers – A Bit of Mercy Please?” Mr. Peterson recommends that the Presumptively Void Transfers...

From Ulmer’s Broker-Dealer Law Corner Blog By Alan M. Wolper I have written before of the ferocious effort by PIABA lawyers to fight for their ability to collect attorneys’ fees on contingency matters – FINRA arbitrations – that they manage to win but which never get satisfied because the respondent broker-dealer has...

From Ulmer’s Broker-Dealer Law Corner Blog By Michael A. Gross When Michael called me to tell me about the subject of this post, I frankly thought he was making it up. The notion that FINRA was seriously suggesting deleting one of the historically recognized essential elements of a churning claim —...

From Ulmer’s Broker-Dealer Law Corner Blog By Alan M. Wolper Many people, myself included, are of the view that FINRA today remains a self-regulatory organization in name only. For years now, FINRA has taken a series of actions decried by its member firms – new rules, new interpretations of old rules, zealous...

From Ulmer’s Broker-Dealer Law Corner Blog By Alan M. Wolper I don’t know how many times I’ve written about FINRA’s efforts over the years to address “rogue brokers,” or what it refers to nowadays more politically correctly as “high-risk brokers.” It doesn’t really matter what blog post you read, or when I...

From Ulmer’s Broker-Dealer Law Corner Blog By Alan M. Wolper A couple of years ago, I blogged about the concept of “reverse churning,” i.e., putting a customer who trades only infrequently into a fee-based account, thus costing the customer a lot more than it would have cost that customer to be in a commission-based...

From Ulmer’s Broker-Dealer Law Corner Blog By Michael A. Gross As loyal readers are undoubtedly already aware, I used to work for NASD, and Michael Gross more recently came to Ulmer from FINRA. That hardly means we win every FINRA Enforcement case we are engaged to defend. To suggest that because we...

From Ulmer’s Broker-Dealer Law Corner Blog By Michael A. Gross I have spoken about FINRA possibly putting an end to the policy of pursuing cases where formal disciplinary action serves little to no regulatory purpose. That welcome paradigm shift may be upon us. This year, FINRA, in essence, pronounced that its “broken...

From Ulmer’s Broker-Dealer Law Corner Blog By Alan M. Wolper I have often used this forum to complain about FINRA’s lack of backbone when it comes to dealing with PIABA, the group of lawyers who represent customers of broker-dealers, principally in arbitrations. Over the years, FINRA has amended its rules time and...

From Ulmer’s Broker-Dealer Law Corner Blog By Alan M. Wolper Expungement is a funny thing, and here’s why: for years, claimants’ counsel have complained loudly to FINRA that expungement was being granted too frequently, that legitimate customer complaints were disappearing from CRD, resulting in an unfair, sanitized representation of brokers’ records that...

From Ulmer’s Broker-Dealer Law Corner Blog By Alan M. Wolper I have used this forum before on occasion to complain about the vagaries of the FINRA arbitration process, and, in particular, the perspective of a respondent’s counsel that the game often seems to be rigged in favor of claimants. Let me give...

Here is a really interesting post from Michael Gross regarding those potentially uncomfortable moments when FINRA calls non-complaining customers. Because FINRA is not the government, it has no subpoena power over these people, and so needs them to cooperate voluntarily. The problem is that FINRA does an awful job of...

On January 12, 2018, the U.S. Supreme Court agreed to review the constitutionality of the SEC’s appointment of its in-house administrative law judges (“ALJs” for short). As we’ve discussed previously on the blog, a trip to SCOTUS seemed inevitable after the 10th Circuit handed down its decision in Bandimere, concluding that the SEC...

I would imagine that the point of FINRA releasing its list of exam priorities each year is to help firms who are actually going to be examined, by providing a glimpse into FINRA’s playbook so they can address, proactively, the issues they know FINRA will focus on. To be forewarned...

Ulmer Partner, Ken Berg, is in the news. Ken is quoted in the Investment News article, “Supreme Court review of SEC judges could roil pending cases.” The article describes how a Supreme Court case on the Securities and Exchange Commission’s use of internal judges could put more than 100 pending...

As I have discussed before, there are some rule violations that are going to happen no matter what FINRA says about them, no matter how many Enforcement cases it brings, and no matter what BDs do to “detect and prevent” such violations. A prime example of such is outside business...

From Ulmer’s Broker-Dealer Law Corner Blog By Alan M. Wolper Once again, Rule 8210 has me frustrated. And angry. Well, not the rule itself, but the aggressive manner in which FINRA continues to wield it, and how its scope is interpreted by hearing panels called upon to consider cases involving what seem...

From Ulmer’s Broker-Dealer Law Corner Blog By Alan M. Wolper As promised, FINRA has released its first Report outlining common findings from its examinations, in an effort to help member firms comply with the rules and, presumably, avoid problems that other firms encountered. A noble idea, especially for an entity not exactly known (at...

From Ulmer’s Broker-Dealer Law Corner Blog By Heidi E. VonderHeide After spending the last few years ferociously denying that there was any constitutional issue with the manner in which SEC Administrative Law Judges (ALJs) were appointed to their position, this morning, the SEC announced that it had “ratified” the prior appointment of each...

From Ulmer’s Broker-Dealer Law Corner Blog By Michael A. Gross Michael discusses the differences in examiners — and, potentially — examination results from District Office to District Office. Remember, however, that such differences aren’t supposed to exist! That’s why the Office of Disciplinary Affairs exists. I suppose the question is whether...

From Ulmer’s Broker-Dealer Law Corner Blog By Alan M. Wolper A week or so ago, I highlighted in a post the acceptance speech of PIABA’s incoming president, Andrew Stoltmann, in which he announced his intent to wage “war” on the securities industry. Bluster aside, Andrew has been true to his word.  His...

From Ulmer’s Broker-Dealer Law Corner Blog By Michael A. Gross Here is a post from Michael Gross about a recent settlement involving the submission of false expense reports.  The issue isn’t the misconduct, but, rather, the rather tepid sanctions imposed. Do I sense the pendulum starting to swing back? – Alan...

From Ulmer’s Broker-Dealer Law Corner Blog By Alan M. Wolper It has been said that there’s no such thing as bad publicity, but I wonder if FINRA feels that way after having been featured in a number of less-than-favorable, or at least curious, media stories over the last couple of weeks. First, two...

From Ulmer’s Broker-Dealer Law Corner Blog By Alan M. Wolper I have stated more than once in these posts that among claimants’ counsel, I have perhaps the greatest respect for Andrew Stoltmann, a fellow Chicagoan. I am not saying that I ever agree with anything he has to say, because I don’t,...

From Ulmer’s Broker-Dealer Law Corner Blog By Alan M. Wolper Bear with me here as I relate the tale of John Saad and his tortuous path through the FINRA Enforcement process and, ultimately, the court system. It is worth following me on this journey, as the upshot of the story is that...

Ulmer & Berne LLP announced that financial services litigator, Jonathon D. Drews, has joined the firm as an associate in its growing Chicago office. The addition of Drews, who comes to Ulmer from Hinshaw & Culbertson LLP, reinforces the firm’s highly-ranked Financial Services & Securities Litigation Practice Group. “Over the...

From Ulmer’s Broker-Dealer Law Corner Blog By Alan M. Wolper I am on the record, many times, with my belief that, at least in theory, FINRA should never lose any Enforcement cases it files. This is for the simple reason that if FINRA has any genuine doubts about its ability to...

From Ulmer’s Broker-Dealer Law Corner Blog By Alan M. Wolper All of you who use Equifax to conduct a part of your CIP responsibilities, raise your hands. Ok, now, only to those of you whose hands are in the air: how many of you have checked your firm’s incident response...

From Ulmer’s Broker-Dealer Law Corner Blog By Alan M. Wolper A little over a year ago, the SEC announced a stunning settlement with Merrill Lynch regarding its violation of SEC Rule 15c3-3, commonly known as the “Customer Protection Rule.” This is an important rule whose name gives away its purpose:  it is designed...

Ulmer & Berne LLP is pleased to announce that Cleveland-based associate Candice Capoziello recently became an Associate Board Member for Recovery Resources. Recovery Resources is a Cleveland nonprofit dedicated to providing prevention, intervention, treatment, and supportive services to initiate, manage, and sustain recovery from addiction and mental health challenges. The...

In a May 25, 2017 decision, the U.S. Court of Appeals for the Seventh Circuit affirmed a Commodity Futures Trading Commission (CFTC) Opinion and Order dismissing a reparations claim based on statute of limitations grounds. Conway Family Trust v. Commodities Futures Trading Commission, No. 16-3289 (7th Cir. 2017). Notably, the court...

SEC Disgorgement Could Face Tough Crowd At High Court From Law360 By Carmen Germaine “Of the cases that are up in front of the Supreme Court, with Gorsuch being appointed, this is not one of the more high-profile cases — there’s many cases that have much more profile and wide-sweeping impacts...

Following an eight-day hearing held in Washington, D.C., a Securities and Exchange Commission (SEC) administrative law judge dismissed the administrative proceedings against Equity Trust Company (Equity Trust),  and found that Equity Trust did not cause the alleged violation of federal securities laws committed by two unrelated parties. Howard Groedel, a...

From Ulmer’s Broker-Dealer Law Corner Blog By Blaine F. Doyle In Homer’s epic poem the Odyssey, Odysseus and the crew of his ship are faced with the impossible choice of either sailing closer to Charybdis, a whirlpool capable of sinking their entire ship, or, alternatively, to Scylla, a sea monster just as...

Ulmer & Berne is ranked in 39 categories in the 2016 U.S. News – Best Lawyers® “Best Law Firms” rankings. Among these, the firm earns U.S. News – Best Lawyers highest rankings in 21 categories. The firm also ranks nationally in 16 categories. Firms included in the 2016 “Best Law...

Ulmer & Berne announces that six of the firm’s partners have been recognized in the 2016 edition of Benchmark Litigation as “State Litigation Stars,” a designation given to those individuals who were recommended consistently as reputable and effective litigators by clients and peers. The following Ulmer & Berne attorneys were...

Chicago-based partner Alan Wolper has been named co-chair of Ulmer & Berne’s Financial Services & Securities Litigation Practice Group. Mr. Wolper joins Cleveland-based partner Frances Floriano Goins in leading the group. Mr. Wolper focuses his practice exclusively on the representation of brokers, broker-dealers and investment advisors. He defends regulatory investigations...

“Michael Nathan Ungar | Ulmer & Berne LLP” Cleveland Jewish News January 15, 2015 Perennial Super Lawyer Michael Nathan Ungar considers settlement of a dispute embroiling Case Western University among his most memorable cases of 2014. Read the full article »

Ulmer & Berne LLP is ranked in 40 categories in the 2015 U.S. News – Best Lawyers® “Best Law Firms” rankings. Among these, the firm earns U.S. News – Best Lawyers’ highest ranking in 23 categories. The firm also ranks nationally in 17 categories. Ulmer & Berne achieved a “Metropolitan Tier...

Ulmer & Berne LLP has been ranked within the top 10 percent of all law firms by The BTI Consulting Group, one of the nation’s leading legal industry research firms, in their recently published 2015 BTI Litigation Outlook report. The firm was selected as a “Litigation Powerhouse” and is named...

Ulmer & Berne LLP was named 2014 Ohio Firm of the Year by Benchmark Litigation at the second annual Benchmark Litigation US Awards held at the Essex Hotel in New York City on January 29, 2014. The US Benchmark Awards were based on a six-month research period involving extensive interviews...

March 2013 – The U.S. Supreme Court’s decision this week in Amgen Inc. v. Connecticut Retirement Plans and Trust Funds, http://www.supremecourt.gov/opinions/12pdf/11-1085_9o6b.pdf, may have a major impact on public companies and their directors and officers seeking early settlement of “fraud-on-the-market” securities fraud cases. The decision has been described as a set-back...

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