On the defense side, we do not have that luxury, and cannot force a regulator to litigate a case - or can we?
In recent years there has been an anecdotal trend towards fighting FINRA and the SEC. Years ago when the NASD changed the structure of its hearing panels, we think we saw an increase in decisions in favor of the broker or firm. We never seem to have a full set of statistics, but over recent years, we have seen evidence of FINRA and the SEC losing more often.
Just a few months ago I successfully represented a broker in a FINRA enforcement proceeding. For a variety of reasons we had to go to a hearing, and we did. FINRA came at my client with all the vigor it could muster, for a case that did not warrant half the time and effort. My client was accused of mis-marking order tickets - to the benefit of his customers, with the knowledge of his firm.
A silly case, it truly was, but FINRA would not back off, and there was a risk for my client. If FINRA had prevailed my client would have received a significant suspension, a fine, a regulatory mark on his license, and other collateral damage. But it was a winnable case for us.
And we did win. After two days of hearing, and multiple submissions, the Hearing Panel dismissed the complaint against my client. My new colleague, Jim Sallah in Florida represented a client in an SEC insider trading case last year, and won - case dismissed, and earlier last year took a FINRA enforcement to trial and won.
- 15% of all litigated SEC and FINRA charges were dismissed. When represented by counsel, FINRA respondents were successful almost 20% of the time.
- Nearly 1/3 of the time, the administrative law judge (ALJ) or the Hearing Panel imposed lower monetary sanctions than the SEC or FINRA prosecutors sought.
- In FINRA hearings, 50% of the time Hearing Panels imposed shorter suspensions and 33% of the time Hearing Panels imposed lower monetary sanctions than those sought by FINRA staff.
- Nearly 43% of SEC respondents were successful in getting charges dismissed or sanctions reduced when they appealed to the Commission from an Administrative Law Judge decision.