By Jeffrey M. Haber What is a FINRA arbitration? The Financial Industry Regulatory Authority ("FINRA") issued a Regulatory Notice in July 2016 reminding member firms that customers have a right to request arbitration "at any time." In addition, the self-regulator stated that customers do not forfeit their right to a FINRA arbitration by signing an agreement that calls for another venue. The notice also reiterated that FINRA members cannot require registered representatives an

By: Jeffrey Haber In 2010, Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act” or the “Act”) to combat illegal and fraudulent conduct on Wall Street and promote compliance with the federal securities. The Dodd-Frank Act contains whistleblower provisions that authorize the Securities and Exchange Commission (“SEC” or the “Commission”) to pay substantial cash rewards to whistleblowers that voluntarily provide the SEC with informa

In the commercial world, parties to a transaction often allocate the risk of economic loss in the event the transaction is not fully executed by including a sole remedy clause in their agreement. New York courts have long upheld such contractual provisions. However, as the First Department of the New York Supreme Court, Appellate Division, recently held, there are exceptions. One such exception pertains to a party’s grossly negligent conduct. As explained in Morgan Stanley M

Did Tesla violate securities laws by not disclosing a fatal accident? In May, the driver of a Tesla Model S was killed after colliding with a truck while the Autopilot feature, which is designed to assist drivers in steering, braking and avoiding collisions, was engaged. Since October 2014, Tesla Motor Co. has installed autopilot software in all of its cars, even though the feature is still being tested in a public beta. Now, the Securities and Exchange Commission ("SEC") is

By Jeffrey M. Haber The False Claims Act (“FCA” or the “Act”) prohibits businesses and individuals from defrauding the government by knowingly presenting, or causing to be presented, a false claim for payment or approval. Currently, violations of the Act can result in a judgment equal to three times the losses sustained by the government, plus civil penalties of $5,500 to $11,000 for each false claim. The Act rewards whistleblowers (also known as “relators”) who successfully

By Jeffrey M. Haber An agency relationship occurs when a principal gives legal authority to an agent to act on the principal’s behalf when dealing with a third party, and obtains the agent’s consent to be subject to the principal’s control. See Restatement (Third) of Agency §1.01. An agency relationship is a fiduciary one, meaning the agent, acting within the scope of his/her authority, has to act in the best interests of the principal. Under such circumstances, the acts an

By Jeffrey M. Haber New York, New York — July 21, 2016 Jeffrey M. Haber, Esq., an attorney with over twenty-five years of experience litigating complex matters on behalf of institutions and individuals at law firms having a national practice, is proud to announce the opening of his new law firm, The Law Office of Jeffrey M. Haber. The Law Office of Jeffrey M. Haber is dedicated to the representation of corporations, small businesses and high net worth individuals involved in

By Jeffrey M. Haber In Universal Health Services, Inc. v. United States ex rel. Escobar, the U.S. Supreme Court unanimously confirmed that the false certification theory “can be a basis for liability” under “some circumstances.” (See blog post here.) Those circumstances are: (1) the defendant does not merely request payment, but also makes specific representations about the goods or services provided; and (2) the defendant’s failure to disclose noncompliance with material st

What are the elements of a sound business succession plan for investment advisory firms facing disruption?

By: Jeffrey M. Haber After a merger, which agreement controls when both companies have pre-existing contracts with a common third party? In May 2016, Stamford-based Charter Communications Inc. (“Charter”) completed its acquisition of Time Warner Cable (“TWC”), making it the second largest cable provider behind Comcast Corporation. At the time of the acquisition, TWC was the larger of the two companies. As such, TWC was able to negotiate more favorable rates and terms on ca

By: Jeffrey M. Haber This blog will address many aspects of arbitration, including the pros and cons of this alternative dispute resolution mechanism. This installment will look at the difficulties the losing party has challenging the arbitral award. For related discussion, see Vacating an Arbitration Award is an Uphill Battle and Arbitration Award Partially Vacated Because Decision Was Found To Be “Irrational”. Arbitration is a voluntary form of dispute resolution. It is l

Wall Street trade groups are suing to block the DOL's new fiduciary rule for retirement advisors, arguing the agency overstepped its authority.

By Jeffrey M. Haber What are the consequences of submitting inaccurate trade data to the SEC and FINRA? Investment banks and securities firms are well aware of their responsibilities to adhere to the rules promulgated by the Securities Exchange Commission ("SEC") and the Financial Industry Regulatory Authority ("FINRA") regarding trade data, also referred to as "blue sheets." The federal securities laws and FINRA rules require firms to provide blue sheet information to FINRA

By Jeffrey M. Haber In today’s digital world, it is not uncommon for individuals and businesses to memorialize the terms of their oral agreements through email. But are such agreements enforceable? The answer depends on a couple of factors, including whether there is a writing that memorializes the material terms of the agreement. Oral agreements that cannot be performed within one year of the agreement must be in writing. This broad rule, contained in the statute of frauds,

By Jeffrey M. Haber On June 22, 2016, the Department of Justice (“DOJ”) filed a Notice of Supplemental Authority in U.S. ex rel. Westrick v. Second Chance Body Armor, et al., No. 04-0280 (D.D.C.), a case brought under the False Claims Act (“FCA”) against contractors who manufactured and sold bullet proof vests. The purpose of the filing was to notify the court of the U.S. Supreme Court’s unanimous decision in Universal Health Services, Inc. v. United States ex rel. Escobar,

Summary On June 16, 2016, the U.S. Supreme Court decided Universal Health Services, Inc. v. United States ex rel. Escobar, a Medicaid case involving the “implied certification” theory of liability under the False Claims Act (“FCA”). The “implied false certification” theory provides that a defendant may violate the FCA by failing to disclose noncompliance with a relevant statutory, regulatory, or contractual requirement. In Escobar, the Court unanimously confirmed that the th

By Jeffrey M. Haber Like most states in the country, New York is considered to be an “employment at will” state. This means that if there is no written agreement between the employer and employee (such as, a collective bargaining agreement) governing when the employer can fire the employee, the employer has the right to fire the employee at any time for any reason. When this happens, the employee has no legal recourse even when the termination is arbitrary, unfair or unreas

What are the requirements to obtain a monetary award under the SEC Whistleblower Program? In June, the Securities and Exchange Commission ("SEC") announced its second largest whistleblower award of more than $17 million to a former financial services employee (the largest award of $30 million was awarded in 2014). This bounty comes after the SEC issued two awards in May. The securities watchdog continues to see a significant uptick in whistleblower claims. "The information a