- Posts by Benjamin B. Coulter
PartnerBen Coulter is a Partner at Burr & Forman LLP practicing in the General Commercial Litigation Group.
His practice primarily involves the defense of banks, credit unions, brokers, and other financial institutions in securities ...
In XY Planning Network, LLC, et al. v. SEC, et al., the United States Court of Appeals for the Second Circuit rejected a challenge to Regulation Best Interest brought by an organization of investment advisers, an individual investment adviser, seven states, and the District of Columbia. The Court denied the Petitioners’ petition, holding that: the individual investment adviser had standing but the states did not, that § 913(f) of the Dodd-Frank Act authorized the SEC’s promulgation of Regulation Best Interest, and that Regulation Best Interest is not arbitrary and ...
Financial institutions should understand that relying on a power of attorney may subject them to potential liability as the use of powers of attorney becomes more commonplace. The Alabama Supreme Court recently shed some light on this topic in Forbes v. Platinum Mortgage, Inc., No. 1180985, 2020 WL 746533 (Feb. 14, 2020).
In Forbes, Platinum Mortgage and PennyMac Loan Services LLC relied on a power of attorney when executing a $175,000 mortgage. The principal's conservator later claimed that the principal lacked the capacity to execute the power of attorney and initiated the ...
Firms permitting the creation and operation of custodial accounts related to Uniform Transfers to Minors Act (UTMA) or Uniform Gifts to Minors Act (UGMA) transactions must take special notice of Financial Industry Regulatory Authority's (FINRA) recent Regulatory Notice 11-02. This notice requires firms to take steps to establish the identity and age of the custodians and beneficiaries of custodial accounts. Such custodial accounts are tied to UTMA and UGMA transactions allowing individuals to transfer property to a minor without the need for a formal trust.
While some ...
FINRA has proposed a new $100 per-arbitrator fee and a $100 per-arbitrator honorarium for the late cancellation or continuation of prehearing conferences in FINRA arbitrations. The proposed rule change would affect both customer cases and industry cases, and FINRA is seeking to amend FINRA Rules 12214(a), 12500, 12501, 13214(a), 13500, and 13501. In essence, if one or more of the arbitrating parties cancels or obtains a continuance of a prehearing conference within three business days of the scheduled hearing (for example, an Initial Prehearing Conference or "IPHC"), the ...
In Cyan, Inc. v. Beaver County Employees Retirement Fund, the Supreme Court resolved two critical issues for class action claims brought under the Securities Act of 1933 (1933 Act). First, the Supreme Court held that state courts retain jurisdiction to adjudicate class actions brought under the 1933 Act. Second, the Supreme Court held that defendants may not remove class actions alleging only 1933 Act claims.
Cyan has its origin in an initial public offering. Cyan, a telecommunications company, and its officers and directors (the Petitioners), offered and sold shares of Cyan ...
On April 29, the United States Court of Appeals entered an amended order (previously decided on March 17, 2016) that affirmed the decision of the United States District Court for the Southern District of New York in DeKalb County Pension Fund v. Transocean Ltd., Robert L. Long, Jon A. Marshall, and Transocean Inc.
The central issues in the case were (i) what statute of repose applies to a § 14(a) claim under the Securities Exchange Act of 1934? and (ii) when does the statute of repose began to run? This was a particularly thorny question because the private right of action in § 14(a) is ...
On March 4, 2016, the United States Court of Appeals for the Second Circuit affirmed the District Court for the Southern District of New York in Tongue v. Sanofi, No. 15-588-CV, 2016 WL 851797 (2d Cir. Mar. 4, 2016), holding that the District Court properly dismissed the Investor Plaintiffs/Appellants' Complaint. The Plaintiffs alleged that the Defendants, a pharmaceutical company, its predecessor, and three executives, violated § § 10(b), 18, and 20(a) of the Securities Exchange Act of 1934, § § 11 and 12 of the Securities Act of 1933, and state law by making misleading statements ...
On March 1, 2016, the Eleventh Circuit Court of Appeals affirmed the Southern District of Florida in Fried v. Stiefel Labs., Inc., No. 14-14790, 2016 WL 787986 (11th Cir. Mar. 1, 2016), holding that the District Court had properly refused to give a portion of a jury instruction requested by the Plaintiff/Appellant Richard Fried concerning Rule 10b-5(b). Fried is the former CFO of Stiefel Labs. After resigning in 1997, Fried held 30.7881 share of common stock in an Employee Stock Bonus Plan and 10 shares of stock outside of the plan. In August 2007, Fried learned that Stiefel Labs had ...
On February 20, 2015, the Alabama Supreme Court affirmed the order of the Circuit Court of Jefferson County, Alabama dismissing claims asserted by Walter Energy, Inc. against investor Julian A. Treger, his firm Audley Capital Advisors, LLP and other associated investment entities related to a purported "pump and dump" scheme executed by the Audley defendants related to Walter Energy stock. In late 2010, Walter Energy purchased Western Coal Corporation. Walter Energy alleged in the trial court that the Audley defendants initiated a "pump and dump" scheme on July 17, 2011, when ...
On June 30, 2014, the Financial Industry Regulatory Authority ("FINRA") sent its proposed rules to limit the definition of "public arbitrators" to those without any experience in the securities industry. Previously, an arbitrator who had in the past worked in the securities industry but did not currently work in the industry could qualify as a "public" rather than a "non-public" or "industry" arbitrator. See FINRA Rules 12100 and 13100. According to FINRA, people "who represent investors or the financial industry as a significant part of their business would also be classified as ...
In Regulatory Notice 13-40, FINRA announced that the SEC had approved amendments to its Discovery Guide. The Discovery Guide applies to customer cases (rather than intra-industry cases) and outlines presumptively discoverable documents that the parties to an arbitration should exchange without FINRA or an arbitrator intervening. The amendments concern three areas: (1) electronic discovery, (2) product cases, and (3) affirmations. First, the Discovery Guide was amended to clarify that electronic files are "documents" under the meaning of the Discovery Guide and that ...