Wins & Settlements (part 2)

Douglas and Kristin Mirabelli v. Merrill Lynch, Pierce, Fenner & Smith, Inc. - FINRA No. 10-03400

Lax & Neville LLP recently won a $1.2 million FINRA arbitration award against Merrill Lynch for sales practice abuses concerning the Merrill Lynch Phil Scott Team and the Merrill Lynch Phil Scott Team Income Portfolios. The case was tried during twenty-three (23) hearing sessions. The FINRA arbitration award against Merrill Lynch consisted of $800,219 in compensatory damages which represented Claimants' entire net out-of-pocket losses and interest at the rate of 6% per annum from July 26, 2010 through the date the Award is paid in full. In addition to the $800,219 award in compensatory damages, the Panel awarded Claimants all attorneys' fees requested in the amount of $391,474, along with their costs in the amount of $47,339.91. All hearing session fees were also assessed against Merrill Lynch.

OBEX Securities, LLC vs. Healthzone Limited – Index No. 10-6876 (SAS)

Lax & Neville LLP successfully wins a summary judgment motion in a case defending Healthzone Limited (“Healthzone”), an Australian based health store against claims raised by OBEX Securities, LLC (“OBEX”), a small broker-dealer. On November 3, 2011, the Honorable Shira Scheindlin granted Healthzone’s motion for summary judgment and directed entry of judgment in favor of Healthzone. Specifically, Judge Scheindlin dismissed, with prejudice, OBEX’s breach of contract claim against Healthzone as there was no evidence that Healthzone breached the placement agent agreement because OBEX never introduced any individual or entity to Healthzone that ultimately invested in Healthzone.

Scottrade, Inc. v. Broco Investments, Inc., Valery Maltsev, and Genesis Investments, LLC, 10 Civ. 3537 (RJH)

Lax & Neville LLP successfully defended Genesis Investments, LLC, in a case in which Plaintiff Scottrade, Inc. ("Scottrade"), a securities broker-dealer, attempted to hold Genesis responsible for the actions of other individuals and entities, which "hacked" into Scottrade's computer systems and executed a series of purchases and/or sales in the accounts of Scottrade customers to "pump" up and/or "dump" thinly traded securities for a profit. On March 31, 2011, the Honorable Judge Holwell of the U.S. District Court for the Southern District of New York granted Genesis's motion to dismiss in its entirety and stated that this case presented a question of first impression, i.e., " does a securities broker, whose customers have been defrauded, and who reimburses his customers-but to whom the customers have not assigned their claims, and who other than the reimbursements alleges no damages whatsoever-have standing to sue the alleged fraudsters for violations of [various securities laws]?" The Court held that since Scottrade was not an "actual purchaser or seller of securities," it lacked standing to pursue most of its claims against Genesis, and also dismissed Scottrade's remaining claims.

Westminster Securities Corp. v. Petrocom Energy Limited, Petrocom Limited and Howard Au - 10 Civ. 7893 (DLC)

Judge Cote has confirmed an American Arbitration Association Award against Petrocom Limited and Petrocom Energy Limited ("Petrocom"), a Chinese coal blending company that was recently highlighted in a New York Times article. The esteemed Tribunal of top international arbitrators determined that Petrocom failed to pay placement agent fees and issue warrants when Westminster Securities Corporation ("Westminster") raised over $35 million for Petrocom and its Chairman and Chief Executive Officer, Mr. Howard Au. Specifically, the Tribunal awarded Westminster approximately $10,400,000 in damages, which included placement agent compensation, attorneys' fees and costs and a $50,000 sanction against Petrocom for its "flouting" of the Tribunal's Order, plus a total of 4,080,000 in Warrants. Considering that these warrants are believed to be valued at $2.00 per warrant (at a minimum), the total damages awarded to Westminster exceeded $10 million.

John J. Baker, Natalie N. Baker and Harriet B. Baker v. Merrill Lynch, Pierce, Fenner & Smith, Inc. - FINRA No. 09-06762

Lax & Neville LLP, on behalf of clients of the Merrill Lynch Phil Scott Team, recently won an $880,000 FINRA arbitration award against Merrill Lynch for purported sales practice abuses concerning the Merrill Lynch Phil Scott Team and the Merrill Lynch Phil Scott Team Income Portfolio. Brian Neville and Barry Lax of our office tried the matter which included twenty-six (26) hearing sessions. In addition to the $880,000 award in compensatory damages, the Panel also granted Claimants' Motion for Sanctions and "assessed fees for hearings on discovery to Respondent as sanctions against Respondent for untimely compliance with the Panel's orders to compel the production of documents."

David B. Newman v. Family Management Corporation et al.

Lax & Neville LLP, successfully defended FM Low Volatility Fund, a general partnership, in a securities class action law suit. A group of investors sought to hold FM Low Volatility Fund liable for investments made to feeder funds that in turn invested with Bernard L. Madoff Securities LLC. The Honorable Judge Sands of the U.S. District Court for the Southern District of New York issued the decision on October 20, 2010, dismissing the second amended class action complaint in its entirety. Judge Sands ruled that FM Low Volatility Fund, Family Management Corporation, and its top executives did not willfully ignore “red flags” in order to obtain investment fees. Newman et al., v Family Management Corp. et al, 1:08-cv-11215.

Kevin Kaiser vs. Raoul's Restaurant Corp., Cindy Smith et al. - Index No. 112674/2007

Lax & Neville LLP successfully defends appeal of a summary judgment in an age discrimination and defamation action. Lax & Neville represented Raoul's Restaurant Corp. (“Raoul’s”), a well-known restaurant in New York City, Guy and Serge Raoul, owners of Raoul’s, and Cindy Smith, an employee of Raoul's (collectively, the “Defendants”), before the Supreme Court, Appellate Division, First Department, which unanimously affirmed Judge York’s decision granting the Defendants’ motions for summary judgment dismissing the complaint. Specifically, the Appellate Division held that the Defendants established their entitlement to judgment as a matter of law of Plaintiff’s age-based discrimination claim under the New York City Human Rights law (Administrative Code of the City of New York § 8-107). In reaching its decision, the Appellate Division reasoned that the Defendants articulated legitimate, non-pretextual reasons for firing the Plaintiff, and Plaintiff failed to raise an issue of fact that the reasons proffered by the Defendants were a pretext for discrimination. The Appellate Division also held that the trial court properly dismissed the Plaintiff’s age discrimination claim under the “mixed-motive framework” for discrimination cases. Finally, the Appellate Division held that the trial court properly dismissed Plaintiff’s defamation claim against Ms. Smith under the common interest privilege.

Ilona Meszaros v. Axial International Limited and Saul Marks, 111897/09

Plaintiff, represented by Lax & Neville, was granted summary judgment against Defendant Axial International Limited on the issue of liability in a case for breach of a consignment agreement regarding Plaintiff's engagement ring. After a framed issue hearing on damages, the Honorable Judge Solomon in the Supreme Court of the State of New York entered Judgment against Defendant Axial International Limited on May 20, 2011.

Mintz & Gold, LLP v. Zimmerman, 102758/07: Decided March 30, 2010

Plaintiff, represented by Lax & Neville, successfully won an appeal determining that Plaintiff’s claims of malicious prosecution were not time barred.

Santanu Bhattacharya and Gargi Dasgupta vs. Chicago Investment Group LLC and Mitesh Shere

Claimants’ allegations of unauthorized trading, failure to execute, and negligence against Respondents were dismissed in their entirety. Respondent Shere was represented by Lax & Neville.

Madoff Class Action Adv. Pro. No. 09-1265(BRL)

On June 5, 2009, Lax & Neville filed a class action adversarial proceeding in the United States Bankruptcy Court for the Southern District of New York seeking to obtain a declaratory judgment, pursuant to the Federal Declaratory Judgment Act, 28 U.S.C. 2201, et seq., (i) that the Trustee's definition of "net equity" is incorrect as a matter of law, and (ii) that a customer's "net equity" under SIPA is the value of the securities reflected in the customer's Madoff account as of the SIPA filing date (even where the securities were never actually purchased) less any amounts the customer owes to Madoff. On June 16, 2010, the Second Circuit accepted the direct appeal of the net equity issue.

JLM Chemicals, Inc. v. Summit Resources Group, Inc. 08 Civ. 10296 Decided: April 24, 2009

Defendants' motion to dismiss grafted and Plaintiff's motion to compel arbitration denied based on lack of personal jurisdiction over Defendant since Defendant did not receive invoices containing an arbitration provision until after litigation commenced. Defendant was represented by Lax & Neville.

Citigroup Global Markets, Inc. v. Joseph C. Delaura

Delaura, represented by Lax & Neville, successfully arbitrated Delaura’s claims for wrongful termination and abuse of the Form U-5 and the FINRA Arbitration Panel ordered Citigroup to amend the language contained on Delaura’s Form U-5.

Frank H. Suits, Jr. et al. vs. Merrill Lynch Pierce Fenner & Smith, Inc. and Michael Keefe Gorman NYSE No. 2006-016588

Claimant awarded $128,000 and costs against Merrill Lynch and the registered representative after Lax & Neville successfully arbitrated causes of action including unsuitable investment recommendations, violations of Self-Regulatory Organization Rules, breach of fiduciary duty, violation of the Securities Exchange act and failure to supervise regarding the sale of proprietary products by Respondent in Claimant's fee based account.

United States ex rel. John Glover v. Federation of Protestant Welfare Agencies, No. 05-CV-6522 (S.D.N.Y. Dec. 5, 2008) (oral opinion)

In a qui tam and retaliatory discharge action under the federal False Claims Act by a terminated executive of a federally funded social service agency, Lax & Neville, successfully opposed the defendant agency's summary judgment motion.

Westminster Securities Corp. and John O'Shea vs. HQ Sustainable Maritime Industries, Inc.
AAA No. 13 199 Y 00334 06

Respondent, a Chinese export company, was ordered to pay $528,234.00 to Westminster Securities Corp., an investment bank represented by Lax & Neville, pursuant to an operative placement agent agreement, as well as reprice HQ Sustainable Maritime Industry warrants owed to John O'Shea.

Mintz & Gold, LLP v. Zimmerman, 102758/07: Decided March 30, 2010

Defendant's motion to dismiss was denied pursuant to Civil Rights Law § 70 since Plaintiff, represented by Barry R. Lax, established that Defendant maliciously and vexatiously commenced a subsequent action after the New York Appellate Division stayed the initial proceeding to compel arbitration.

Claimant v. DEPFA Bank, plc Decided: March 22, 2007

In a JAMS arbitration, Claimant, represented by Barry R. Lax, was awarded $1.2 million in unpaid bonuses inclusive of interest and attorneys' fees from DEPFA Bank, plc.

McMahan Securities, Co. L.P. vs. Michael Shillan
NASD 04-05460

Shillan, who was represented by Brian J. Neville, wins $250,000 from his employer, McMahan Securities, Co. L.P., for violations of employment contract law and Florida's Labor Law.

Paul Fitzgerald v. Fahnestock & Co., Inc. and Oppenheimer & Co., Inc.
NYSE No. 2004-015875

Claimant, a former employee of Respondent, through the representation of Barry R. Lax, was awarded $436,000.00 based upon violations of New York Labor Law for Respondent's failure to pay Claimant wages and severance upon his termination.

Mitchell Slater v. Merrill Lynch, Pierce, Fenner & Smith. Inc. and Thomas Fickinger
NASD # 05-04072

Arbitration Panel ordered all references to the customer complaint at issue expunged from Claimant's Form U-5. Claimant was represented by Brian J. Neville.

Albert T. Jenks and Irena L. Jenks v. Securities of America, Inc. et. al.
NASD No. 03-05007

Claimants received $150,294 from Securities of America, Inc., and others, based upon its violation of various federal securities laws including 15 U.S.C. §78(j)(b) and Rule 10b-5 and violations of NASD Rules of Fair Practice and NYSE Rules. Claimants were represented by Brian J. Neville.

Gary Farber v. SunTrust Banks, Inc., et.al.
NYSE No. 2004-015608

Claimant, represented by Barry R. Lax, was awarded $130,000 for Sun Trust's breach of employment agreement, deprivation of severance pay and violation of New York Labor Law.

Lucille Banahan v. Wachovia Securities, Inc.
NASD No: 04-01979

Claimant, represented by Brian J. Neville in Florida, was awarded $135,000.00 for Wachovia Securities's unsuitable recommendations, breach of duty of care, fraud and negligent misrepresentation, violation of federal securities laws and industry rules, failure to supervise and respondeat superior regarding Claimant's investments in annuities, mutual funds and individual stocks.

Kenneth Irving v. Salomon Smith Barney, Michael Lent and William Lent
NYSE No. 2002-011137

Claimant, represented by Brian J. Neville, was awarded $325,000.00 based upon Respondents' unsuitable recommendations, fraud, misrepresentations, and various violations of federal securities laws.

Simerman v. Salomon Smith Barney, Prudential Securities and Patricia E. Selin
NASD No. 02-07640

Claimants, represented by Brian J. Neville, won $116,665.00 from the registered representative for unsuitable recommendations, violation of Section 10(b) of the Securities Exchange Act of 1934, violation of industry rules, and violation of Florida Securities Statutes.

George C. Grivas v. Kerry J. Dukes, et.al.
NASD No. 00-02709

Claimant, represented by Barry R. Lax, awarded $125,000.00 for Respondents violation of Virginia Securities Act, breach of contract, failure to supervise, control person liability and respondeat superior.

Stanley & Laja Shtupak v. JWGenesis Securities, Inc., et al.
NYSE No. 2001-008968

Genesis Securities was liable to Claimants, who were represented by Barry R. Lax, for $45,656.00 for unauthorized and unsuitable trading, and churning, in Claimants margin account.

Our attorneys obtained a $6,100,000 settlement from a large broker/dealer in connection with sales practice abuses. This was a significant settlement as it was more than 75% of the customer's out-of-pocket losses.

Our attorneys obtained a $1,250,000 settlement from a large broker/dealer in connection with sales practice abuses. This was a significant settlement as it was more than 69% of the customer's out-of-pocket losses.

Our attorneys obtained a $1,225,000 settlement from a large broker/dealer in connection with sales practice abuses.

Our attorneys obtained a $1,050,000 settlement from a large broker/dealer in connection with sales practice abuses. This was a significant settlement as it was more than 80% of the customer's out-of-pocket losses.

Our attorneys obtained a $199,000 settlement from a large broker/dealer in connection with sales practice abuses. This was a significant settlement as it was more than 85% of the customer's out-of-pocket losses.

Our attorneys obtained a $150,000 settlement from a large broker/dealer in connection with sales practice abuses. This was a significant settlement as it was more than 60% of the customer's out-of-pocket losses.

Our attorneys obtained a $107,000 settlement from a large broker/dealer in connection with sales practice abuses. This was a significant settlement because the claim was brought by a group of Claimants who purchased the same product at issue from the same broker.

Our attorneys obtained a $300,000 settlement from a small broker/dealer in connection with sales practice abuses. This was a significant settlement as it was more than 175% of the customer's out-of-pocket losses.

Our attorneys obtained a $200,000 settlement from a large broker/dealer in connection with sales practice abuses and trading away.

Our attorneys obtained a $210,000 settlement from a large broker/dealer in connection with an unpaid bonus dispute claim.

Our attorneys obtained a $300,000 settlement from a large broker/dealer in connection with sales practice abuses. This was a significant settlement as it was more than 55% of the customer's out-of-pocket losses.

Our attorneys obtained a $500,000 settlement from a large broker/dealer in connection with sales practice abuses. This was a significant settlement as it was 100% of the customer's out-of-pocket losses.

Our attorneys obtained a $325,000 settlement from a large broker/dealer in connection with sales practice abuses. This was a significant settlement as it was 100% of the customer's out-of-pocket losses.

Sven Grasshoff vs. Aaron Etra - Index No. 650832/2012

Lax & Neville LLP successfully defends the appeal of a motion to dismiss a New York Supreme Court decision in a case involving Plaintiff Sven Grasshoff’s (“Grasshoff’s” or “Plaintiff’s”) investment in a business venture in which Defendant Aaron Etra (“Etra” or Defendant”) allegedly provided “Paymaster services” for the investment. Plaintiff alleged that Defendant violated his contractual and fiduciary obligations by disbursing funds from an escrow account contrary to the terms of the contract, and without authority. The Complaint alleged breach of contract, promissory estoppel, breach of fiduciary relationship, negligent misrepresentation, and conversion, none of which were dismissed by the Supreme Court. Defendant appealed the Supreme Court’s decision, and Lax & Neville represented the Plaintiff before the Supreme Court, Appellate Division, First Department, which unanimously affirmed Judge Eileen Bransten’s decision denying the Defendant’s motion to dismiss the Complaint.

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