Fort Lauderdale competition lawyer Jonathan Pollard was quoted about FINRA arbitration in an article by FundFire on May 11th, 2016. FundFire is the leading source of market intelligence for money managers, financial advisors and companies in that market space.
The story, by FundFire reporter Danielle Verbrigghe, chronicled the latest developments in an ongoing dispute between Morgan Stanley and a former Morgan Stanley broker, Daniel Curkan. In 2013, Morgan Stanley terminated Curkan after he was arrested for domestic violence. The parties wound up in arbitration when Morgan Stanley demanded Curkan make good on an $840,000 promissory note. Curkan countered alleging that Morgan Stanley used the arrest as pretext and that the real reason for his termination was that the company wanted to steal his book of business.
Given the absurdity of Curkan’s “they didn’t fire me for domestic violence, they fired me to steal my clients” defense, it is not surprising that he lost at arbitration. A FINRA panel ruled that Curkan owed Morgan Stanley more than $1 million for the promissory note, interest and attorneys fees. But Curkan has no intent of going quietly. He has now filed a motion to vacate the arbitrator’s award.
Pollard provided comment on Curkan’s likelihood of overturning FINRA’s decision:
Whether under Florida or federal law, the grounds for vacating an arbitration award are incredibly narrow. The defendant here seems to be traveling on two theories: First that the FINRA arbitrator engaged in misconduct and second that the award was procured by fraud. Let’s take the first one: The only allegation against the arbitrator is that they (or one of them) fell asleep during part of the proceedings. Any lawyer whose practiced long enough has seen a judge nod off on the bench. By itself, that doesn’t amount to misconduct or partiality of any sort— and certainly not misconduct of the level necessary to justify vacating an arbitration award. So that’s just a throw away argument. The defendant’s only real hook here is that MSSB perpetrated a fraud on FINRA and procured the award via fraudulent means. The problem with that theory is that its only viable if the defendant couldn’t have discovered the fraud before or during the arbitration and alerted the panel. If he could have discovered the fraud earlier and presented evidence of the fraud to FINRA during the proceedings, then he’s toast. Even if MSSB committed outright fraud, if he could have discovered it earlier but failed to do so, he’s toast.
Pollard is frequently quoted by national media in stories related to brokers switching firms, and particularly stories that involve the intersection of broker non-compete agreements and The Protocol.
Jonathan Pollard is the principal of Pollard PLLC, a Fort-Lauderdale, Florida based competition law botique focused on non-compete, trade secret and antitrust litigation. For more information, call 954-332-2380.
