All posts tagged defamation

December, 2014 – Within 48 months of collecting a $3.3 million dollar U-5 defamation Award in Louisville, KY, David B. Cosgrove of Cosgrove Law Group, LLC netted a $600,000 Award in Baltimore, MD.  Beyond the compensation, the Award included full expungement for three different defamatory disclosures on U-5 and U-4 filings.  The Cosgrove Law group team traveled to Baltimore and Washington, D.C. for three different sessions on behalf of a former Raymond James Financial broker. Raymond James’ final pre-hearing offer was only $75,000.  According to the broker: “My business attorney suggested that I reach out to Mr. Cosgrove because he felt my case needed someone who truly specialized in the financial industry and matters involving former broker-dealers.  We were thrilled with the outcome and feel it was a complete victory and success…and we attribute much of that success to Mr. Cosgrove and his team. Thanks to Mr. Cosgrove and his team, the outcome was more than we could ever dream of.”

Broker-Dealer agents and Investment Adviser Representatives frequently sign a host of legal documents when they join up with a B/D or RIA. Such documents may include:

  1. Independent Contractor Agreements
  2. Promissory Notes
  3. Stock Participation Plans
  4. Compliance Procedures Manuals

Unfortunately, Agents and Representatives, in my experience, sign these documents without much thought and almost always without the benefit of legal counsel.

When an Agent and a B/D or a Representative and an RIA decide to part ways, something akin to a divorce proceeding is often on the horizon.  Both sides often feel justified in taking impulsive actions that may have various legal consequences.  It is on this battlefield, either during or after the war, that our attorneys spend many of their days.  The file cabinets are flush with U-5 and promissory note matters.  Every now and then, however, an individual will call us on the eve of, rather than in the midst of or the aftermath of the fray.  This person’s foresight almost always pays in cost effective dividends.

Admittedly, legal counsel’s ability to satisfy the goals of the client are frequently limited by legally binding documents signed during the courtship or in the heat of the honeymoon.  Regardless, legal counsel may assist in navigating the choppy waters of a transition.  Impulsive actions in the areas of recruiting or even sabotage can be counseled against from a cool and objective perspective.  U-5 language, payment plans, and stock payouts can be negotiated.

If the transition is of the kind that will generate a regulatory inquiry, legal counsel will be able to familiarize themselves with the facts of the matter before the letter of inquiry arrives.

In sum, if you anticipate transition conflicts, or are even contemplating changing horses; seek out legal counsel.  If you are already midstream, seek faster.

In 1378, the Statute of Scandalum Magnatum granted judges and church officials in England a legal right to compensation if they had been insulted or defamed. The first Common Law defamation action on record was filed in England in 1507. Back then, however, the cause of action only applied to false utterances regarding criminality, incompetence, and disease. The law evolved dramatically in the United States. Indeed, Supreme Court Justice Stewart once wrote that the tort of defamation “reflects no more than our basic concept of the essential dignity and worth of every human being.1

Defamation law has been somewhat static since the seminal Supreme Court case of New York Times Co. v. Sullivan in 1964. But consider what has changed in the 50 years since that ruling. Let me cite just a few examples of developments that have completely transformed the impactof damages caused by defamatory conduct:

  1. An erosion of society’s perception of what is a private matter;
  2. 24-hour news cycles;
  3. The relative decline of more thorough print media; and
  4. The internet (and the explosion of linked high-speed outlets for the dissemination of falsehoods.)

As the old saying goes, “A lie makes its way around the world before the truth has time to get its pants on.”

I will blog again shortly about the intersection of defamation and U-5 FINRA defamation claims. The lesson for now is as follows: brokers that have suffered from U-5 defamation need to do much more than simply file an arbitration claim. Reputation management is critical.

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1  If you want to dig deeper in to the legal history of defamation law, start with David Hudson’s excellent piece by clicking here.