Securities Industry Commentator by Bill Singer Esq

October 30, 2020

Court Denies Jury Trial to Plaintiff Brummer in Defamation Case
The SEC awarded over $10 million to a whistleblower; however, the SEC's Claim Review Staff ("CRS") issued additional Preliminary Determinations recommending that Claimants #2 and #3 be denied an award. As alleged in part in the SEC Order Determining Whistleblower Award Claims, '34 Act Rel. No. 34-90284; Whistleblower Proc. File No. 2021-3 / October 29, 2020)

[I]n reaching that determination, we positively assessed the following facts: (1) Claimant 1's information caused the Responsible Investigative Staff to open the Investigation; (2) it was Claimant 1's information and ongoing assistance that led directly to almost every factual finding and charge against the Company; (3) Claimant 1 provided substantial assistance to the Responsible Investigative Staff, providing them with key evidence, communicating over a dozen times with the Responsible Investigative Staff, helping to decipher communications and distill complex issues, and saving significant Commission time and resources; (4) Claimant 1 raised concerns about the Company's conduct internally, and, after determining the Company would not remedy the problem, reported Claimant 1's concerns to the Commission; and (5) the law enforcement interests are very high.

Since 2015, the Blog and the Securities Industry Commentator have reported about developments in an ongoing lawsuit involving allegations of defamation by Plaintiff Brummer against Defendant Wey and others. The nature of the ongoing civil case was characterized in part in Christopher Brummer, Plaintiff, v. Benjamin Wey, FNL Media LLC, and NYG Capital LLC d/b/a New York Global Group, Defendants (Order with Notice of Entry, Supreme Court of the State of New York/County of New York, No. 153583/2015 / March 14, 2016)

Plaintiff commenced this action on April 22, 2015, asserting three causes of action for defamation, defamation per se, and intentional infliction of emotional distress (Mot. Wipper Aff., Exh. A). Plaintiff, is a professor of law at Georgetown University Law Center and the sole African-American on the National Adjudicatory Council (NAC). He was part of a panel that upheld a decision by the Financial Industry Regulatory Authority. Inc. ("FINRA"), issuing a lifetime ban from the security industry against two African-American stockbrokers: non-parties William Scholander and Talman Harris. NYG Capital LLC d/b/a New York Global Group (hereinafter referred to individually as "NYGG") is a U.S. and Asia based strategic market entry advisory, venture capital, and private equity investment group that services clients worldwide. FNL Media, LLC. is described in the Complaint as a division or subsidiary of NYGG, and the owner of TheBlot, a website and online digital magazine that claims to combine investigative journalism with reader-submitted opinions. According to the Complaint Benjamin Wey is the CEO of NYGG. a publisher and contributor to TheBlot (Mot. Wipper Aff., Exh. A). 

The Complaint alleges that almost a month after the NAC panel wrote the decision upholding the FINRA lifetime ban on non-parties William Scholander and Talman Harris. TheBlot. an on-line magazine. began publishing a series of articles defaming the plaintiff. The articles are described by plaintiff as falsely characterizing him as a "racist," an "Uncle Tom," as having an affair with a married woman, as being under investigation and implicated in fraud. Plaintiff also alleges that the defendants posted comments under a false identity and altered photographs of the plaintiff. Plaintiff claims that he is a private individual that had an excellent professional and personal reputation which has been damaged by the defendants' defamatory statements that resulted in the loss of work together with other damages (Mot. Wipper Aff .. Exh. A). 

Readers are urged to consider: 
"Setting The Record Straight By Bill Singer, Esq." ( Blog, April 9, 2018)

In Christopher Brummer, Plaintiff, v. Benjamin Wey, FNL Media LLC, and NYG Capital LLC d/b/a New York Global Group, Defendants (Decision and Order, Supreme Court of the State of New York/County of New York, No. 153583/2015 / October 28, 2020), the Court granted Defendants' Motion to Vacate Plaintiff's Jury Demand, Strike the Action from the Jury Calendar, and Place on the Nonjury Trial Calendar; and denied Plaintiff's Cross-Motion for a Determination of Non-Waiver of Right to a Jury.
The CFTC's Division of Enforcement issued new guidance for enforcement staff when recommending the recognition of a respondent's cooperation, self-reporting, or remediation in CFTC enforcement orders.
As asserted in part in the CFTC Release:

The guidance describes  potential scenarios where the staff may recommend the recognition of a respondent's self-reporting, cooperation or remediation by the Commission in an enforcement action: (i) no self-reporting, cooperation, or remediation; (ii) no self-reporting, but cognizable cooperation and/or remediation that warrant recognition but not a recommended reduction in penalty; (iii) no self-reporting, but substantial cooperation and/or recognition resulting in a reduced penalty; and (v) self-reporting, substantial cooperation, and remediation resulting in a substantially reduced penalty.

This staff guidance does not change DOE's existing practice regarding how it will evaluate self-reporting, cooperation, or remediation, or how enforcement staff will consider reductions in penalties in connection with self-reporting, cooperation or remediation in accordance with the self-reporting and cooperation advisories issued in 2017. [See CFTC Press Release No. 7518-17] Rather, it clarifies how that recognition will be reflected in CFTC enforcement orders.
In the hurry-up world of Wall Street, profits are often measured in seconds. Timing is everything. Get in early. Get out before it's too late. But in an industry so dependent upon timing, the rules about when and how an order is taken and when it is executed are not clear. While a stockbroker or a trader frets about when is the right time to buy or sell, profits may be squandered and losses accumulate. In a recent FINRA regulatory settlement, time ran out for one industry respondent.