Financial Services Litigation Report

Litigation and regulation developments affecting the financial services industry

Yesterday the New Jersey Bureau of Securities (“NJBOS”) issued its Rule Proposal titled “Fiduciary Duty of Broker-Dealers, Agents, Investment Advisers, and Investment Adviser Representatives”.  Below is a link to the Press Release, which in turn includes a link to the Rule Proposal itself.  The Rule Proposal would amend existing section N.J.A.C. 13:47A-6.3 and then add new section N.J.A.C. 13:47A-6.4. https://www.njconsumeraffairs.gov/News/Pages/04152019.aspx We have reviewed the Rule Proposal and identify the below highlights.  The public comment period…
In a case of appellate first impression in New York, the Appellate Division, Second Department held that a mortgage is accelerated upon a lender’s election to do so, notwithstanding an optional reinstatement clause in a mortgage.  In the Dieudonne matter,[1] the Second Department rejected the “MacPherson Argument,” first pronounced by the Supreme Court, Suffolk County[2] and affirmed the dismissal of the lender’s foreclosure complaint as time-barred. The MacPherson Argument reasons that a mortgage…
As noted in our prior update, we continue to cover the NJBOS’ rulemaking activity relating to a uniform fiduciary standard applicable to all investment professionals.  On Monday, November 19, 2018 we attended the second public hearing held by the NJBOS.  There were approximately 40 attendees at the second hearing, with 16 speakers, representing diverse interests, putting formal comments on the record (there were seven speakers at the first hearing). Three takeaways from the second…
This morning we attended the first public hearing held by the NJBOS concerning its pre-proposal to adopt a rule implementing a uniform fiduciary standard for investment professionals, including broker-dealers and investment advisers.  The hearing was administered by New Jersey officials, including Christopher Gerold, Chief of the NJBOS.  There were approximately 40 attendees from diverse backgrounds – investment firms, industry groups, in-house and outside counsel, and consultants.  Here are three takeaways from the hearing:…
Today the New Jersey Bureau of Securities began rulemaking on a proposed uniform fiduciary standard for investment professionals.  Attached below is the Bureau’s Notice of Pre-Proposal.  Comments on the Pre-Proposal are due to the Bureau by December 14, 2018, and the Bureau will hold two (2) informal conferences (on November 2 and November 19, 2018) in order to take testimony, gather facts, and provide for the opportunity of public comment.  Reed Smith will continue to…
Earlier this week, New Jersey Governor Phil Murphy announced that the New Jersey Bureau of Securities would start rulemaking to “impose a fiduciary duty on all New Jersey investment professionals, requiring them to place their clients’ interests above their own when recommending investments.”  The rule is aimed at reconciling the different standards of care that apply to investment professionals, such as broker-dealers and investment advisers.   Addressing the need for this rule, Bureau Chief Christopher Gerold…
On Friday, March 16, 2018, the United States Court of Appeals for the District of Columbia issued its long-awaited ruling in ACA International et al. v. FCC (see attached). The petition before the court challenged aspects of the Telephone Consumer Protection Act (TCPA) Omnibus Declaratory Ruling and Order issued by the Federal Communications Commission (FCC) in July of 2015. Please read the full client alert at reedsmith.com.…
On Friday, March 16, 2018, the United States Court of Appeals for the District of Columbia issued its long-awaited ruling in ACA International et al. v. FCC (see attached). The petition before the court challenged aspects of the Telephone Consumer Protection Act (TCPA) Omnibus Declaratory Ruling and Order issued by the Federal Communications Commission (FCC) in July of 2015. Please read the full client alert at reedsmith.com.…
In an important decision for the collection industry, the court in Michel v. Credit Protection Ass’n L.P., No. 14-cv-8452, 2017 WL 3620809 (N.D. Ill. Aug. 23, 2017), refused to find a debt collection company liable under the TCPA for cell phone calls made on behalf of one creditor (ComEd) when the plaintiff’s oral revocation of consent related to a different creditor (Comcast).  The Michel court reasoned that obtaining consent under the TCPA is creditor-specific and…
In an important decision for the collection industry, the court in Michel v. Credit Protection Ass’n L.P., No. 14-cv-8452, 2017 WL 3620809 (N.D. Ill. Aug. 23, 2017), refused to find a debt collection company liable under the TCPA for cell phone calls made on behalf of one creditor (ComEd) when the plaintiff’s oral revocation of consent related to a different creditor (Comcast).  The Michel court reasoned that obtaining consent under the TCPA is creditor-specific and…