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ABM Industry Groups, LLC v. Palmarozzo, et al. (Lawyers Weekly No. 12-035-17)

COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT.
1784CV00819-BLS2
____________________
ABM INDUSTRY GROUPS, LLC
v.
JOSEPH PALMAROZZO and COMPASS FACILITY SERVICES, INC.
____________________
MEMORANDUM AND ORDER DENYING PLAINTIFF’S
MOTION FOR A PRELIMINARY INJUNCTION
ABM Industry Groups, LLC, seeks a preliminary injunction that would enforce restrictive covenants signed by Joseph Palmarozzo while he was working for ABM as a branch manager. ABM provides janitorial and building maintenance services at larger facilities and projects. It is a large, publicly-traded company that generates roughly $ 5 billion in annual revenues. Palmarozzo left ABM in December 2016 to become the general manager at Compass Facility Services, Inc., a much smaller company that generates around $ 15 million in annual revenues by providing janitorial services at relatively small facilities. Palmarozzo overseas CFS’s operations; he has no responsibility for and no role in sales. ABM seeks an order that would bar Palmarozzo from working for CFS, compel Palmarozzo to comply with the non-competition and non-solicitation covenants in his ABM employment contract, and bar him from using or divulging any confidential information belonging to ABM.
The Court will DENY the motion for a preliminary injunction because ABM has not proved that it will likely succeed in proving that its non-competition agreement with Mr. Palmarozzo is enforceable or that Palmarozzo has violated his non-solicitation or non-disclosure agreements.
1. Legal Standards.
1.1. Motions for Preliminary Injunction. “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). To the contrary, “the significant remedy of a preliminary injunction should not be granted unless the plaintiffs had made a clear showing of entitlement thereto.” Student No. 9 v. Board of Educ., 440 Mass. 752, 762 (2004). “Trial judges have broad discretion to grant or deny injunctive relief.” Lightlab Imaging, Inc. v. Axsun Technologies, Inc., 469 Mass. 181, 194 (2014).
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A plaintiff is not entitled to preliminary injunctive relief if it cannot prove that it is likely to succeed on the merits of its claim. See, e.g., Fordyce v. Town of Hanover, 457 Mass. 248, 265 (2010) (vacating preliminary injunction on this ground); Wilson v. Commissioner of Transitional Assistance, 441 Mass. 846, 858-859 (2004) (same). Nor may a plaintiff obtain a preliminary injunction without proving that it will suffer irreparable harm in the absence of such an order, and that such harm to the plaintiff from not granting the preliminary injunction would outweigh any irreparable harm that defendants are likely to suffer if the injunction issues. See, e.g., American Grain Products Processing Institute v. Department of Pub. Health, 392 Mass. 309, 326-329 (1984) (vacating preliminary injunction on this ground); Nolan v. Police Comm’r of Boston, 383 Mass. 625, 630 (1981) (same). “The public interest may also be considered in a case between private parties where the applicable substantive law involves issues that concern public interest[s].” Bank of New England, N.A. v. Mortgage Corp. of New England, 30 Mass. App. Ct. 238, 246 (1991). Under Massachusetts law, “[a] covenant not to compete contained in a contract for personal services” is only enforceable to the extent that it is consistent with the public interest. All Stainless, Inc. v. Colby, 364 Mass. 773, 778 (1974).
1.2. Non-Compete and Non-Solicitation Agreements. An employee’s agreement not to compete with his or her employer by soliciting away customers or potential customers may be enforced under Massachusetts law only to the extent necessary to protect the employer’s legitimate business interests—which include guarding against the release or use of trade secrets or other confidential information, or other harm to the employer’s goodwill, but do not include merely avoiding lawful competition—and to the extent it is reasonable in scope in terms of the activities it restricts, the geographic limitations it imposes on those activities, and the length of time it is in effect. See New England Canteen Services, Inc. v. Ashley, 372 Mass. 671, 673-676 (1977); All Stainless, 364 Mass. at 778-780.
The employer has the burden of proving that the agreement protects legitimate business interests and thus is enforceable. New England Canteen Services, supra, at 675; Folsum Funeral Service, Inc. v. Rodgers, 6 Mass. App. Ct. 843 (1978) (rescript).
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“Protection of the employer from ordinary competition … is not a legitimate business interest,” however, “and a covenant not to compete designed solely for that purpose will not be enforced.” Marine Contractors, Inc. v. Hurley, 365 Mass. 280, 287-288 (1974); accord, e.g., Boulanger v. Dunkin’ Donuts, Inc., 442 Mass. 635, 641 (2004), cert. denied, 544 U.S. 922 (2005).
Thus, “[a]n employer may prevent his employee, upon termination of his employment, from using, for his own advantage or that of a rival and to the harm of his employer, confidential information gained by him during his employment; but he may not prevent the employee from using the skill and general knowledge acquired or improved through his employment.” Abramson v. Blackman, 340 Mass. 714, 715-16 (1960); accord, e.g., Richmond Bros., Inc. v. Westinghouse Broadcasting Co., Inc., 357 Mass. 106, 111 (1970); Woolley’s Laundry v. Silva, 304 Mass. 383, 387 (1939). “The ‘right (of an employee) to use (his) general knowledge, experience, memory and skill’ promotes the public interest in labor mobility and the employee’s freedom to practice his profession and in mitigating monopoly.” Dynamics Research Corp. v. Analytic Sciences Corp., 9 Mass. App. Ct. 254, 267 (1980), quoting J. T. Healy & Son v. James A. Murphy & Son, 357 Mass. 728, 740 (1970); accord Club Aluminum Co. v. Young, 263 Mass. 223, 226-227 (1928).
A contractual covenant restraining competition by a former employee “will be enforced ‘only to the extent that is reasonable and to the extent that it is severable for the purposes of enforcement.’ ” Blackwell v. E-M. Helides, Jr., Inc., 368 Mass. 225, 229 (1975), quoting All Stainless, supra, at 778.
2. Relief Sought against Mr. Palmarozzo. ABM is not entitled to preliminary injunctive relief against Mr. Palmarozzo because it has not met its burden of proving that it is likely to succeed on its claims that Palmarozzo breached his non-competition, non-solicitation, or non-disclosure covenants.
2.1. Sufficiency of Consideration and Suggestion of Duress. At the outset, the Court notes that it is not convinced by Palmarozzo’s arguments that his employment agreement with ABM is unenforceable for lack of consideration and because it was signed under duress. Nonetheless, the Court concludes that ABM has
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not met its burden of proving it is entitled to preliminary injunctive relief, as discussed in the following sections.
The written employment agreement that Palmarozzo accepted in 2015 was supported by adequate consideration, even though Palmarozzo had already been working for ABM for many years as an at-will employee and was not given any additional compensation in exchange for agree to non-competition, non-solicitation, and non-disclosure covenants.
Continued at-will employment is sufficient consideration to support a non-compete agreement in Massachusetts, just as it is sufficient consideration to support other contractual terms. Economy Grocery Stores Corp. v. McMenamy, 290 Mass. 549, 552 (1935) (covenant not to compete signed eighteen months after defendant began working for plaintiff as at-will employee “was not void for lack of consideration” because “it implied … a promise on the part of the plaintiff to employ the defendant” thereafter); accord Sherman v. Pfefferkorn, 241 Mass. 468, 473 (1922); see also Smith v. Graham Refrigeration Products Co., Inc., 333 Mass. 181, 186 (1955) (agreement to forego salary until employer’s financial condition improved); Horner v. Boston Edison Co., 45 Mass. App. Ct. 139, 143 (1998) (release of claims).
Since Palmarozzo was employed at will by ABM, his employer “”could modify [the] terms [of employment] or ‘terminate … [the employment] at any time for any reason or for no reason at all,’ with limited exceptions, such as public policy considerations.” York v. Zurich Scudder Investments, Inc., 66 Mass. App. Ct. 610, 614 (2006) (enforcing change of incentive compensation terms for sales person employed at will), quoting Gram v. Liberty Mut. Ins. Co., 384 Mass. 659, 668 n. 6 (1981).
The fact that Palmarozzo was told he could not continue to work for ABM if he did not sign the agreement does not show that the contract is voidable on the grounds of economic duress. See United Shoe Machinery Co. v. La Chapelle, 212 Mass. 467, 477 (1912) (same as to assignment of rights in shoe machinery made by employee in exchange for continued employment). A contract entered into under physical or economic duress that “deprives the victim of his unfettered will” is voidable. Cabot Corp. v. AVX Corp., 448 Mass. 629, 637 (2007). However, “[t]he assertion of duress must be proved by evidence that the duress resulted from defendant’s wrongful and
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oppressive conduct and not by plaintiff’s necessities.” Id. at 638, quoting International Underwater Contrs., Inc. v. New England Tel. & Tel. Co., 8 Mass. App. Ct. 340, 342 (1979), and W.R. Grimshaw Co. v. Nevil C. Withrow Co., 248 F.2d 896, 904 (8th Cir. 1957). Merely urging another party to accept a deal that is less generous than they would like, and threatening not to do business with them if they do not, is not economic duress even if the demand is made of someone in difficult financial circumstances. See Boston Medical Center v. Secretary of Executive Office of Health and Human Services, 463 Mass. 447, 464 & 468-469 (2012); Cabot Corp., 448 Mass. at 638-639.
2.2. Non-Competition Agreements. Although Palmarozzo’s employment agreement is an enforceable contract, the Court concludes that ABM has not shown that it is likely to succeed in proving that the non-competition covenant is enforceable, because ABM has not met its burden of proving that enforcing the covenant will protect against misuse of confidential information or loss of goodwill. It appears that ABM’s “purpose in attempting to enforce the covenant is to protect itself from ordinary competition. This it cannot do.” New England Canteen Services, 372 Mass. at 676.
2.2.1. No Confidential Information. There is no evidence and ABM does not claim that Palmarozzo copied and took with him any information belonging to ABM.
ABM is not entitled to enforce the non-competition covenant on the ground that Palmarozzo came to know the identities of some of ABM’s clients and their janitorial needs and requirements. An employee is free to carry away his own memory of customers’ names, needs, and habits and use that information, even to serve or to solicit business from those very customers. Such “remembered information” is not confidential because the information itself, as distinguished from an employer’s compilation of such information into a list or database, is known to the customers and thus not kept secret by the employer. American Window Cleaning Co. of Springfield, Mass. v. Cohen, 343 Mass. 195, 199 (1961); accord Angell Elevator Lock Co. v. Manning, 348 Mass. 623, 625 (1965); Woolley’s Laundry, 304 Mass. at 391-392; May v. Angoff, 272 Mass. 317, 320 (1930).
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Similarly, although ABM asserts that Palmarozzo has knowledge of “ABM’s marketing plans, business strategies, pricing structures, and fees,” it has not met its burden of proving that any of that sort of information known to Palmarozzo was kept confidential, rather than shared with customers and potential customers in the regular course of ABM’s business. Prices that ABM actually quotes to or charges its customers are not confidential and provide no basis for enforcing a non-competition agreement. American Window Cleaning, 343 Mass. at 199 (remembered information as to employer’s prices is not confidential). ABM also “has no proprietary interest” in merchandising techniques, strategies, or methods that are disclosed to potential customers and thus are not kept confidential. National Hearing Aid Centers, 2 Mass. App. Ct. at 290; accord United Tool & Indus. Supply Co. v. Torrisi, 356 Mass. 103, 106 (1969).
Finally, ABM asserts that Palmarozzo has knowledge of “other proprietary and confidential systems, process, and procedures.” That sort of conclusory assertion is insufficient to demonstrate that ABM is entitled to a preliminary injunction enforcing the non-competition covenant. As ABM conceded at oral argument, there is nothing confidential about the manner in which ABM provides janitorial services to its clients.
2.2.2. No Threat to Goodwill. Nor does it appear likely that ABM will succeed in proving that Palmarozzo’s non-competition agreement is needed to protect ABM’s good will with its customers. “Good will” is “a company’s positive reputation in the eyes of its customers or potential customers. Good will is generated by repeat business with existing customers or by referrals to potential customers.” North American Expositions Co. Ltd. P’ship v. Corcoran, 452 Mass. 852, 869 (2009) (internal citations omitted).
In the past ten years ABM and CFS have both bid on the same job only once, and only one former ABM customer has switched and hired CFS to do its janitorial work instead.
The evidence demonstrates that Palmarozzo had nothing to do with ABM’s loss of one customer to CFS after Palmarozzo stopped working for ABM. The customer that switched is known as MediTech. ABM presented an affidavit asserting that it received a letter from that client stating that MediTech cancelled its contract with
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ABM after learning “confidential information relating to ABM’s workforce and business strategies” from Palmarozzo, who had been MediTech’s contact at ABM. That assertion is false because it grossly mischaracterizes what MediTech actually wrote. Defendants provided a copy of this letter. The letter states that MediTech canceled its contract because ABM had been reducing the number of hours that ABM employees spent cleaning MediTech’s facilities, ABM did so without notifying MediTech, and ABM did not adjusting its monthly rates to account for this reduction in labor hours. The letter makes clear that MediTech tried to speak with Palmarozzo after realizing all of this, but was told that Palmarozzo had recently left the company. In sum, MediTech cancelled its contract because ABM’s own business practices had obliterated the goodwill had previously established with MediTech, not because Palmarozzo helped CFS steal the client away.
The Court credits Defendants’ undisputed evidence that Palmarozzo is not and will not be involved in any sales efforts by CFS, and that in any case CFS and ABM almost never compete for the same customers because ABM’s janitorial services business focuses on accounts that are much too large for CFS to handle. Under these circumstances, it seems unlikely that whatever good will that ABM may have with its remaining customers will be harmed if Palmarozzo continues to work for CFS.
2.3. Non-Solicitation Agreement. ABM is not entitled to a preliminary injunction enforcing the non-solicitation covenant because it has not met its burden of proving that it is likely to succeed in proving that Palmarozzo ever breached it. See generally Fordyce, 457 Mass. at 265. The Court assumes without deciding that ABM is entitled to enforce Palmarozzo’s covenant not to solicit any ABM client that Palmarozzo worked with and was responsible for while he was employed by ABM. But ABM has not shown that Palmarozzo ever breached this covenant or is likely to do so in the future. The Court credits the undisputed evidence that Palmarozzo will play no role in any sales efforts by CFS. And, as discussed above, it finds that Palmarozzo had nothing to do with the decision by one customer to cancel its contract with ABM in January 2017 and hire CFS to provide janitorial services instead.
2.4. Non-Disclosure Agreement. Although the parties’ non-disclosure agreement remains in force and Palmarozzo remains bound by it, ABM is not entitled
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to a court order enforcing this confidentiality provision because—as discussed above—it has not shown that it is likely to succeed on its claim that Palmarozzo has violated or will violate his obligation not to disclose confidential information belonging to ABM.
3. Relief Sought against Compass Facility Services. Finally, ABM is also not entitled to any preliminary injunctive relief against CFS. ABM claims that CFS tortiously interfered with its contractual relations with Palmarozzo and engaged in unfair and deceptive practices in violation of G.L. c. 93A. ABM has not shown that it is likely to succeed on either of these claims.
The tortious interference claim against CFS is likely to fail because ABM has been unable to muster any evidence that Palmarozzo breached his employment agreement with ABM, as discussed above. See generally Weiler v. PortfolioScope, Inc., 469 Mass. 75, 84 (2014) (proof that defendant knowingly induced third party to break contract is element of claim for tortious interference with contractual relations); JNM Hospitality, Inc. v. McDaid, 90 Mass. App. Ct. 352, 354-355 & 357 (2016) (where landlord did not breach lease, third party cannot be liable for intentionally interfering with lease to detriment of tenant). CFS was free to compete for MediTech’s business so long as it did not do so “through improper motive or means.” Brewster Wallcovering Co. v. Blue Mountain Wallcoverings, Inc., 68 Mass. App. Ct. 582, 608-609 (2007) (reversing jury finding that defendant tortuously interfered with customer relationships).
The claim against CFS under Chapter 93A is likely to fail for the same reason. Since ABM’s claim under c. 93A is based solely on and thus “is wholly derivative of” its claims for breach of contract and tortious interference with contractual relations, and ABM has not shown it is likely to succeed in proving that Palmarozzo ever breached his employment agreement, ABM is unlikely to succeed in proving its claim under c. 93A. See Pembroke Country Club, Inc. v. Regency Savings Bank, F.S.B., 62 Mass. App. Ct. 34, 40-41 (2004) (ordering judgment in favor of defendant); accord, e.g., Macoviak v. Chase Home Mortgage Corp., 40 Mass. App. Ct. 755, 760, rev. denied, 423 Mass. 1109 (1996) (c. 93A claim “necessarily fail[s]” where it “is solely
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based upon … underlying claim for common law” tort and that tort claim fails as a matter of law).
ORDER
Plaintiff’s motion for a preliminary injunction is DENIED.
March 30, 2017
___________________________
Kenneth W. Salinger
Justice of the Superior Court read more

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Posted by Massachusetts Legal Resources - April 4, 2017 at 1:58 pm

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Aiguier v. Financial Industry Regulatory Authority, Inc., et al. (Lawyers Weekly No. 12-029-17)

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COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT
CIVIL ACTION
NO. 16-02491 BLS I
DUSTIN AIGUIER
v.
FINANCIAL INDUSTRY REGULATORY AUTHORITY, INC., CUSTOMER 1-W, CUSTOMER 1-H, CUSTOMER 2, CUSTOMER 3, CUSTOMER 4-W, and
CUSTOMER 4-H
and
THE SECURITIES DIVISION OF THE OFFICE OF THE SECRETARY OF STATE, intervener
MEMORANDUM OF DECISION AND ORDER ON THE DEFENDANTS’ MOTIONS TO DISMISS
INTRODUCTION
This case, once again, raises the issue of whether, or pursuant to what standard, the Superior Court may adjudicate a claim made by a registered representative of a securities broker-dealer that he is entitled to have records of customer complaints expunged from the data bases maintained by defendant Financial Industry Regulatory Authority, Inc. (FINRA). Plaintiff Dustin Aiguier was formerly a registered representative of New York Life Securities LLC (NYLife). While with NYLife, four complaints were lodged against him by six of his customers (including two sets of spouses) (collectively, the Customers). The plaintiff has filed a complaint which he styles: “Amended Petition for an Order of Expungement of Customer Dispute Information from the Central Registration (CRD System)” (the Complaint). In addition to FINRA, the Complaint also names the Customers as defendants (although the plaintiff seeks no relief with respect to them). The Securities Division of the Office of the Secretary of the
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Commonwealth has intervened in this action as a defendant on the ground that it is a primary regulator of the securities industry in Massachusetts and is responsible for protecting the public’s interest in access to information concerning customer complaints. The case is now before the court on all of the defendants’ motions to dismiss the Complaint. They move for dismissal asserting that: (a) the Superior Court lacks subject matter jurisdiction (Mass.R.Civ.P. 12(b)(1)) and (b) the Complaint fails to state a claim on which relief may be granted (Mass.R.Civ.P. 12(b)(6)). For the reasons that follow, their motions are allowed.
FACTUAL BACKGROUND
The court will begin by summarizing the relevant factual allegations in the Complaint, assumed to be true for purposes of this motion, as well as relevant information contained in attachments to the Complaint, to the extent necessary to address the issues raised by the defendants’ motions. It will then describe the regulatory framework relevant to this dispute.
The Plaintiff’s relationship to NYLife and the Customer Complaints
The plaintiff was a registered representative of NYLife until June 3, 2015, when he was discharged. Four written complaints against him were submitted to NYLife by his customers, each involved the sale of annuities. NYLife settled each of the claims without an arbitration proceeding being commenced. As required by FINRA rules, it reported the claims and settlements to FINRA, and a description of each claim and the settlement, as well as the plaintiff’s response to each claim, are available to the public on FINRA’s BrokerCheck website. The complaints are reported in BrokerCheck in the following order: the first was received on September 10, 2015 and settled for $ 40,229.37; the second was received on August, 13, 2015
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and settled for $ 95,961.16; the third was received on July 28, 2015 and settled for $ 12,286.78; and the fourth was received on January 1, 2013 and settled for $ 8,500.
After the plaintiff left NYLife, its representatives solicited customer complaints against him. Three of these complaints were the result of this solicitation, which was in some way related to a pyramid scheme engaged in by a NYLife management employee.
The disclosures regarding the first three claims and settlements are false and misleading.1 As to the fourth, the plaintiff followed all rules and procedures in the sales process, NYLife found that he had not engaged in any wrong doing, and the settlement was made in the interest of good customer relations.
FINRA
FINRA is a private, not-for-profit corporation organized under the laws of Delaware. It is a self-regulatory organization (SRO) registered with the Securities and Exchange Commission (the SEC). Under federal securities law, as an SRO, it plays a central role in the regulation of the securities industry. As applicable to this case, FINRA is required to “establish and maintain a system for collecting and retaining registration information” for representatives of broker-dealers. See 15 U.S.C. §§78o-3(i)(1)(A) and (i)(5). In forms approved by the SEC, FINRA collects, among other items, “information about registered personnel, including customer complaints . . . .” See SEC Release No. 34-71959, 79 Fed. Reg. 22734 (Apr. 17, 2014); see also Desiderio v. Nat’l Ass’n Sec. Dealers, 191 F.3d 198, 201 (2nd Cir. 1999) (“the SEC . . . must approve all [FINRA’s] rules and regulations”). The complaints are recorded in an electronic
1 There is an allegation in the Complaint that a manager at NYLife “improperly recognizes revenues prematurely and then reverses them subsequently.” The court has difficulty understanding how this allegations ties to the plaintiff’s allegations that three of the claims are false and misleading. The complaint contains additional allegations concerning records and reports that allegedly establish that the Customer claims are false or misleading, but these allegations are not material to any issue raised by the motions to dismiss.
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database called the Central Registration Depository (CRD) which FINRA maintains in compliance with federal securities law and an agreement with the state securities regulators in all 50 states. The federal securities law requires that this complaint information, as well as other data, be available to the public. See 15 U.S.C. § 78o-3(i)(1)(B) (“A registered securities association shall . . . establish and maintain a . . . a readily accessible electronic or other process, to receive and promptly respond to inquiries regarding . . . registration information on its members and their associated persons.”). FINRA fulfills this obligation with an on line internet resource which it calls BrokerCheck. The four customer complaints lodged against the plaintiff, as well as information concerning the reason that NYLife discharged him, are available to the public on BrokerCheck together with the plaintiff’s response to each complaint.
FINRA has promulgated Rule 2080, which addresses the means by which information concerning a broker that exists in the CRD may be expunged. It states, in relevant part:
(a) Members or associated persons seeking to expunge information from the CRD system arising from disputes with customers must obtain an order from a court of competent jurisdiction directing such expungement or confirming an arbitration award containing expungement relief.
(b) Members or associated persons petitioning a court for expungement relief or seeking judicial confirmation of an arbitration award containing expungement relief must name FINRA as an addition party and serve FINRA with all appropriate documents unless this requirement is waived pursuant to subparagraph (1) or (2) below.
(1) Upon request, FINRA may waive the obligation to name FINRA as a party if FINRA determines that the expungement relief is based on affirmative judicial or arbitral finding that:
(A) The claim allegation or information is factually impossible or clearly erroneous;
(B) The registered person was not involved in the alleged investment related sales practice violation, forgery, theft, misappropriation or conversion of funds; or
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(C) The claim, allegation or information is false.
(2) If the expungement relief is based on judicial or arbitral findings other than those described above, FINRA, in its sole discretion and under extraordinary circumstances, also may waive the obligation to name FINRA as a party if it determines that:
(A) The expungement relief and accompanying findings on which it is base are meritorious; and
(B) The expungement would have no material adverse effect on investor protection, the integrity of the CRD system or regulatory requirements.
FINRA has also promulgated Rules 12805 and 13805 which set out the manner in which an arbitration panel is to address matters of expungement that are brought before it. These Rules direct the panel to:
(a) Hold a recorded hearing session (by telephone or in person) regarding the appropriateness of expungement. This paragraph will apply to cases, . . . , even if a customer did not request a hearing on the merits;
(b) In cases involving settlements, review settlement documents and consider the amount of payments made to any party and any other terms and conditions of a settlement;
(c) Indicate in the arbitration award which of the Rule 2080 grounds for expungement serve(s) as the basis for its expungement order and provide a brief written explanation of the reason(s) for its finding that one or more Rule 2080 grounds for expungement applies to the facts of the case;
(d) Assess all forum fees for the hearing session in which the sole topic is the determination of the appropriateness of the expungement request against the parties requesting expungement relief.
See September 2015, FINRA Notice to Arbitrators and Parties on Expanded Expungement
Guidance.
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DISCUSSION
The defendants argue that the Superior Court does not have jurisdiction to adjudicate the plaintiff’s claim. The complaint does not allege the basis for the court’s jurisdiction. It also does not indicate whether the plaintiff’s claim arises under the common law or a state or federal statute or regulation. Rather, following the factual allegations, the Complaint simply asks that the “Court enter an order pursuant to FINRA Rule 2080 expunging Disclosure” of the four Customer complaints against him that are disclosed in BrokerCheck. This seems to presume that this court has subject matter jurisdiction under Rule 2080 to adjudicate a dispute between the plaintiff and FINRA. It does not.
This court addressed this same issue in Hundley v. Financial Industry Regulatory Authority, Inc., CA No. 14-2523-BLS 1 (Sup.Ct., May 15, 2015). In that case the court noted that Rule 2080 was only a procedural directive that told a registered representative to obtain an order from a court of competent jurisdiction, but not the basis on which such a court would adjudicate a dispute between a registered representative and another party concerning whether the registered representative was entitled to expungement.2 Subpart (b) of Rule 2080 only explains the circumstances under which the associated person should, or need not, name FINRA as a party to the case, but offers no guidance as to who the adverse party would be in addition to FINRA, which is only the custodian of records created by the broker-dealer. In Hundley, this court provided the following explanation of why Rule 2080 cannot be the basis for jurisdiction in the Superior Court.
2 Indeed, Rule 2080 seems to assume that, in many instances, arbitrators or a court would have already adjudicated the grounds for expungement before the court order referenced in this rule is sought. See Section (b)(1) “Upon request, FINRA may waive the obligation to name FINRA as a party if FINRA determines that the expungement relief is based on affirmative judicial or arbitral finding that . . . “ and Section (b)(2) “If the expungement relief is based on judicial or arbitral findings other than those described above, . . . .”
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It seems doubtful that FINRA, a private Delaware corporation, could promulgate a rule for its members that had the effect of directing a state court to hold a particular kind of hearing or to make particular types of findings in aid of the administration of FINRA’s data base. Indeed, in cases such as the one before the court where the customer lost interest in pursuing his claim after expressing his displeasure with Hundley to his employer, it is difficult to see how this court could adjudicate the issues necessary to make the type of findings that the arbitration panel is directed to make in Rule 12805. Rule 12805 authorizes the panel to consider a representative’s request for expungement even when the complaining customer has not filed a claim, in order to provide a forum in which a broker could request relief in the nature of expungement [even when the customer was uninterested in the proceeding]. This rule seems to envision an abbreviated telephone hearing, adequate under some circumstances to rule on a request for expungement. The Superior Court generally sits to adjudicate disputes between adverse parties and relies on the adversary system for the presentation of cases. What would the Superior Court do if FINRA waived Hundley’s obligation to name it as a defendant? Could it allow Hundley to file a complaint in which there is no party defendant? Or perhaps Hundley should be required to name his customer as a defendant even though all the customer did was complain to SAI about Hundley’s conduct more than six years ago?
In the present case, NYLife settled with the customers after investigating the claims and no arbitration proceeding was begun. Nonetheless, the result is the same. The customers have no financial interest in the outcome of the claims the plaintiff asserts in the Complaint and may well be disinterested in whether BrokerCheck reports their complaints against him or not. Indeed, the Complaint does not purport to state a claim against any Customer or request any relief from the Customers. The court finds no basis on which they can be included as defendants in this case. It appears that NYLife has paid for an attorney to represent them and move for dismissal of the Complaint, but the court has grave concerns about naming a person as a defendant in a case in which no claim is asserted against him/her, thereby putting that person to the potential expense of retaining counsel to explain the nature of the proceeding and what if anything he/she must do in response to being served with a summons and complaint.
In Hundley, this court then went on to comment on a decision by a Federal District Court in a similar case:
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In In the Matter of Lickless, 2011 WL 2471022 (N.D. Cal., June 22, 2011) the broker filed a complaint in a California state court seeking expungement of information concerning him in the CRD. FINRA removed the case to Federal court. The District Court, however, concluded that “[t]here is nothing in the [Securities] Act, rules or regulations that provide substantive criteria as to when expungement is appropriate. . . .While FINRA Rule 2080 addresses expungement, it only sets forth procedures, not a substantive duty.” Id. at 4. Therefore, the District Court held that the complaint for expungement raised no question of Federal law, and it remanded the case to the California state court for lack of Federal jurisdiction. This court agrees with the Federal court’s conclusion: Rule 2080 creates no legal obligation or duty for the court to enforce.
Since Lickless was decided, three other Federal District Courts have also concluded that Rule 2080 does not create either Federal jurisdiction or give rise to a question of Federal law and therefore, as courts of limited jurisdiction, they lacked jurisdiction to hear cases in which registered representatives sought expungement of customer complaints. See Spalding v. FINRA, 2013 WL 1129396 (N.D. Ga., Mar. 19, 2013); Doe v. FINRA, 2013 WL 6099270 (C.D. Ca., Nov. 19, 2013); Flowers v. FINRA, 2015 WL 9487450 (S.D. Ca., Sept. 24, 2015). While the Massachusetts Superior Court is a court of general jurisdiction, each of these cases supports this court’s view that Rule 2080 does not create any substantive rights for a court to enforce or a private cause of action in which a registered representative could bring an action against some unidentified party, in addition to FINRA, so that his right to expungement could be adjudicated in an adversary proceeding. The court does not have subject matter jurisdiction to decide a case putatively brought under Rule 2080.
Although not mentioned in the Complaint, at oral argument the plaintiff stated that he was not proceeding under a right established by Rule 2080 (or any other statute), but rather under the Superior Court’s general equitable jurisdiction. In Hundley, the court addressed this possible basis for jurisdiction as well, even though it was not raised by the plaintiff in that case. It began by noting, that, in Lickless, after the Federal District Court remanded the case to the California Superior Court, that court dismissed it. The plaintiff registered representative appealed, and the
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Court of Appeal reversed. See Lickliss v. Financial Industry Regulatory Authority, 208 Cal App. 4th 1125 (2012). Again, in Hundley, this court considered the implications of that opinion:
The Court of Appeal held that Lickliss did not only invoke Rule 2080 in requesting expungement, but also the court’s equitable powers. It noted, as had the Federal court, that Rule 2080(b)(1) is a procedural rule that governs when FINRA may waive the requirement that it be a party to court proceedings for expungement. The Court of Appeal commented that the facts alleged in the complaint supported Lickliss’ contention that the customer complaints against him were very old and stale. It then held as follows: “Exercising that right [to seek expungement] under a rule that provides no substantive criteria for delivering the remedy of expungement, Lickliss called upon the court’s inherent equitable powers to weigh the equities favoring expungement against the detriment to the public should expungement be granted. This is enough to pass demurrer.” Id. at 1135. There does not appear to be any record of what happened to Lickliss’ case thereafter.
As it did in Hundley, this court does not find that, under Massachusetts law, a court of general jurisdiction has the inherent equitable authority “to weigh equities favoring expungement against the detriment to the public should expungement be granted.” Indeed, the court has found no Massachusetts case in which a court has ordered expungement of a record maintained by a private entity. If FINRA had created a specific right to expungement in its rules, and then refused to expunge records when a registered representative allegedly had met all of the criteria for expungement, the registered representative might well be able to state a claim in the nature of breach of contract that could be adjudicated in a state court. As explained above, Rule 2080 does not do that.
If the court treats FINRA as if it were a government agency (it is certainly heavily regulated by the SEC), the court’s authority to order expungement, in the absence of a statute expressly prescribing that remedy is very limited. In Vacaro v. Vacaro, 425 Mass. 153 (1997), the Supreme Judicial Court addressed the question of whether a probation record recording the entry of a chapter 209A restraining order could be expunged on the motion of the defendant, when the order was vacated. The SJC reviewed the statutory scheme that required retention of c.
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209A records, but limited public access to them. It then explained that expungement was generally available only in two circumstances: (1) when the statutes that direct that certain records be kept also grant a court the power to expunge them (Id. at 157); and (2) when the government’s retention of a record violates a person’s due process rights.3 As noted, there is no statute, regulation or FINRA rule that directs expungement, rather Rules 2080, 12805, and 13805 only provide a mechanism for arbitration of a registered representative’s request that records be expunged.
Turning to the due process argument, the plaintiff is unable to establish that FINRA (if it constitutes a government actor in this regard) has violated the plaintiff’s due process rights. FINRA is not alleged to have taken any action in this case other than posting on BrokerCheck information that was provided to it by NYLife that reflects that the plaintiff’s customers made written complaints against him and NYLife settled the claims. FINRA played no role in the assertion of the complaints or their resolution. There is no allegation that FINRA took some action to cause NYLife to discharge the plaintiff or to prevent him from acting as a registered representative for some other broker-dealer. At worst, the posting of this information on a publicly available database might impair the plaintiff’s reputation among potential customers. However, proving an injury to reputation is insufficient to establish a due process violation under either the United States Constitution or Article 12 of the Massachusetts Declaration of Rights. As the SJC explained in Vacaro: “The United States Supreme Court has held that a person’s
3 Expungement of Chapter 209A orders has also been ordered where the wrong person was identified as the party defendant. See Commonwealth v. Alves, 86 Mass. App. Ct. 210 (2014). However, in the Complaint, the plaintiff alleges that the Customers were his customers at NYLife. Expungement has also been ordered where a restraining order entered as a result of a fraud on the court. See Commonwealth v. Adams, 65 Mass. App. Ct. 725 (2006). No court has played any role in the posting of the Customer complaints on BrokerCheck. It may also be noted that in the Appeals Court’s recent decision J.S.H. v. J.S., No. 15-P-1607 (March 1. 2017), the Court held that the “argument that the records should be expunged because there was insufficient legal or factual basis for the c. 258 order to have issued is without merit.” Slip Op. 4. That is, at best, what the plaintiff alleges in this case, i.e., the Customer complaints did not have any merit.
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reputation is not a protected liberty interest under the Fourteen Amendment to the United States Constitution unless ‘a right or status previously recognized by state law [is] distinctly altered or extinguished.’ Paul v. Davis, 424 U.S. 693, 711 (1976).” Id. at 160; see also n. 8 (“This analysis is referred to as the ‘stigma plus’ test for determining whether an injury to an individual’s reputation constitutes a deprivation of [protected] liberty or property interest.”). The SJC held that it would follow the teaching of Paul “in deciding whether art. 12 has been violated.” Id. at 161.
At oral argument, the plaintiff argued that he can meet the “stigma plus” test because he is now a registered representative of another broker-dealer, but subject to special supervision under a consent order that he entered into with the Securities Division. The plaintiff’s argument answers itself. He is subject to special conditions under a “consent order” that he agreed to enter into in connection with an adjudicatory proceeding before the Securities Division of the Office of the Secretary of State conducted pursuant to G.L. c. 110A, § 207A, with rights of appeal to the Superior Court under G.L. c. 30A, § 14. Even if that proceeding and consent order are related to any of the Customer complaints reported in BrokerCheck, he is not subject to any limitations in his work as a registered representative because they were reported in BrokerCheck. Indeed, he would have had to disclose those complaints when he applied for association with a new broker-dealer on Form U4 whether or not they were available to the public on BrokerCheck. And, if he wished to litigate the validity of any Customer complaint in that proceeding, he had a forum affording him due process in which to do so.
At argument, the plaintiff also placed great reliance on Police Comm’r of Boston v. Municipal Court of Dorchester Dist., 374 Mass. 640 (1978), but the case is not helpful to him. In that case, the SJC held that “a Juvenile Court [has the power] to issue appropriate orders
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[including expungement] ancillary to their existing statutory and common law jurisdiction.” Id. at 661 and n. 15. It explained that “where a juvenile proceeding has been terminated due to the absence of any evidence of delinquency, expungement would seem justified. . . . The power of a court in such circumstances is not dependent on its possession of general equity powers, but is an incident of and ancillary to the court’s original jurisdiction.” Id. at 662. (Internal citatations omitted, emphasis added) Police Comm’r of Boston does not support the plaintiff’s contention that the Superior Court has some free standing equitable jurisdiction to adjudicate a case in which a party claims that, on balance, equities favor the expungement of a record maintained by a state agency where no statute provides a right to seek expungment under identified standards and there is no due process violation associated with their retention.
Moreover, the plaintiff has an adequate remedy at law. Under FINRA rules 12805 and 13805, the plaintiff has the right to demand arbitration of his claim that the records of the Customer complaints should be expunged. In such an arbitration the adverse party would be NYLife, an entity with an obvious interest in contesting the allegations concerning its conduct averred in the Complaint, but which is not a defendant in this case. A review of the Complaint clearly demonstrates that the party against whom all of the plaintiff’s factual allegations are directed is NYLife, which allegedly solicited three of the Customers to lodge complaints against the plaintiff in connection with a vaguely described pyramid scheme perpetrated by the manager of its Boston office. Of course, the plaintiff cannot name NYLife as a defendant in this action because his application to be a registered representative of NYLife on Form U4, the uniform application for securities industry registration, includes a provision in which the applicant “agrees to arbitrate any dispute, claim or controversy that may arise between me and my firm, or a customer.” A court ought not reach to find equity jurisdiction to adjudicate a claim against
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FINRA, which is only the record custodian, as a means to circumvent the arbitration provisions that govern the resolution of claims that the plaintiff asserts against NYLife.4
Accordingly, this court holds that it does not have jurisdiction in equity to consider the plaintiff’s claim for expungement. And, even if equitable jurisdiction existed, the facts alleged, if true, would not support an order of expungement, and, therefore, the Complaint fails to state a claim.
ORDER
For the foregoing reasons, the defendants’ motions to dismiss are ALLOWED. Final Judgment shall enter dismissing the Complaint.
______________________
Mitchell H. Kaplan
Justice of the Superior Court
Dated: March 10, 2017
4 It may be noted that the plaintiff served the manager of NYLife with a subpoena to appear at a deposition on October 13, 2016, before the Amended Petition for Expungement was even filed on November 2, 2016, well knowing that FINRA would move to dismiss it. The court entered an order that the deposition not go forward until after the motion to dismiss was heard. read more

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Posted by Massachusetts Legal Resources - April 4, 2017 at 10:24 am

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Menino Wants Cab Industry Investigated

Boston Mayor Thomas Menino wants a review of the taxi industry.

With the local taxicab industry thrust into the spotlight by a major media outlet, Boston’s mayor ordered an oversight review.

Mayor Thomas Menino wants to hire an expert on the industry to review Boston’s taxicab industry, according to the Boston Globe Tuesday.

The Globe ran an investigative story on the industry, unearthing the fact that owners who routinely violate police regulations coerce cab drivers into paying bribes to get access to their cabs.

“We have real problems, and I’m very concerned about it,’’ Menino told the Globe during an interview in his office. “We’re not going to tolerate this nonsense.’’ 

Menino said the review will include a look at the Boston Police Department’s oversight of the taxi industry, according to the Globe.

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Posted by Massachusetts Legal Resources - April 3, 2013 at 3:25 pm

Categories: Arrests   Tags: , , ,