On July 29, 2016 a
Exhibit,Appendix
was filed
involving a dispute between
John Tarpinian,
and
Jollene J. Austin,
for Commercial Division
in the District Court of New York County.
Preview
FILED: NEW YORK COUNTY CLERK 08/03/2016 10:58 AM INDEX NO. 653975/2016
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 08/03/2016
EXHIBIT D
BURNS ^ LEVINSON LLP
125SUMMER STREST BOSTON, MA 02110
T 617.345.JOOO F 617.345.3299
BURNSLEV.COM
July 21, 2016
VIA FIRST CLASS MAIL, FINRA DR PORTAL
AND E-MAIL (neprocessingcenter@linra.org)
Katherine Bayer
Regional Director
FINRA Northeast Regional Office
One Liberty Plaza
165 Broadway, 27"^ Floor
New York, N Y 10006-1404
Re: Jollene /. Austin v. John Tarpinian; FINRA Arbitration No: 16-01005
Dear Ms. Bayer:
Enclosed is John Tarpinian's Statement of Answer and Affirmative Defenses to Claimant's
Statement of Claim (the "Answer") in the above referenced matter. Four copies of the Answer
will be provided by first class mail for the Director and each of the arbitrators.
Mr. Tarpinian expressly objects to the submission of this dispute to FINRA Dispute
Resolution on the grounds that Claimant's claims are neither arbitrable under the FINRA Code of
ArbitratiQii Trtjr subject to an arbitration agreement between the parties. Accordingly, Mr.
Tarnfipian is iiol submitting a signed Submission Agreement with the Answer.
Enclosures
CC: Stuart D. Meissner, Esq. (via E-Mail Stuart@smeissner.com and First Class Mail)
Meissner Associates
99 Main Sti-eet
Suite 303
Nyack, N Y 10960
Samantha T. Denny (via E-Mail neprocessingcenter@finra.org)
Case Assistant
MASSACHUSETTS •::NEW VORK :::RHODE ISLAND
FINRA DISPUTE RESOLUTION ARBITRATION
Jollene J . Austin,
Claimant,
V. A R B I T R A T I O N NO: 16-01005
John Tarpinian
Respondent.
JOHN TARPINIAN'S STATEMENT OF ANSWER AND AFFIRMATIVE DEFENSES
TO CLAIMANT'S STATEMENT OF CLAIM
I. OBJECTION TO JURISDICTION
As an initial matter, John Tarpinian (referred to as the "Respondent" in the FINRA
Statement of Claim filed by Jollene J . Austin ("Claimant")) hereby expressly objects to the
submission of this dispute to FINRA Dispute Resolution on the grounds that the Claimant's claims
are neither arbitrable under the FINRA Code of Arbitration nor the subject of an arbitration
agreement between the parties. Solely for the purpose of preserving his defenses in this
proceeding, and without waiving his right to seek to enjoin this proceeding in the appropriate
forum, Respondent states as follows:'
IL ANSWER
A. DENIAL OF BACKGROUND
Mr. Tarpinian denies he sexually harassed or abused the Claimant in any way or at any
time. Further, Mr. Tarpinian denies he misused a position of authority or took advantage of
Respondent will beinitiating a petition
to enjoin arbitration proceedingin the applicable state or federal
court, a
copy of which will be provided to the Panel when filed.
information about Claimant or her cun^ent or her past employment. Answering further, Mr.
Tarpinian denies generally the allegations contained in the unnumbered paragraphs of the section
titled "Background" in the Statement of Claim.
B. DENIAL OF S E X U A L HARASSMENT & ABUSE
Mr. Tarpinian denies the allegations contained in the unnumbered paragraphs of the section
titled "Sexual Harassment & Abuse" in the Statement of Claim. Mr. Tarpinian states that activity
between Claimant and Mr. Tarpinian was at all times consensual.
C. DENIAL OF CLAIMS
Mr. Tarpinian denies the allegations contained in Paragraphs 1-4 of the section titled
"Claims" in the Statement of Claim to the extant they make factual allegations and states that no
response is required for the remaining allegations that seek legal relief.
D. DENIAL OF DAMAGES ALLEGATIONS
Mr. Tarpinian denies that Claimant is entitled to the relief requested in Paragraphs 1-4 of
the section titled "Damages" in the Statement of Claim.
m. AFFIRMATIVE DEFENSES
FIRST DEFENSE
There is no agreement between the parties to arbitrate this matter and Mr. Tarpinian does
not consent to arbitration in this forum.
SECOND DEFENSE
The Statement of Claim, in whole or in part, fails to state a claim upon which relief can
be granted.
2
THIRD DEFENSE
This forum lacks subject matter jurisdiction over the causes of action in Claimant's
Statement of Claim.
FOURTH DEFENSE
Claimant's claims are barred by the doctrines of laches, unclean hands, waiver or
estoppel.
FIFTH DEFENSE
Claimant has not alleged that she suffered any harm based on actions by John
Tarpinian.
SIXTH DEFENSE
Conduct complained of by Claimant was consensual or welcomed and was not
undesirable or offensive.
SEVENTH DEFENSE
Claimant's claims are barred in whole or in part because she failed to mitigate her
damages.
EIGHT DEFENSE
Claimant's claims are barred in whole or in part by the applicable statute of limitations.
NINETH DEFENSE
Claimant has failed to join a party or paities necessary for the just adjudication of this
matter and has not stated any reasons for such failure to join a necessary party or parties.
3
IV. RESERVATION OF RIGHTS
Mr. Tarpinian reserves the right to supplement his Answer or to assert additional
defenses or counterclaims as supported by facts developed during discovery.
Dated: July 21, 2016
H.M. George
dlosier@bumslev.com
hmgeorge@burnslev. com
Bums & Levinson LLP
125 Summer Street
Boston, Massachusetts 02110
Telephone: 617.345.3000
Facsimile: 617.345.3299
Attorneys for Respondent
CERHFtCATE OF SERVICE
I hereby certlty that a liue copy of the abovs docummt
w u H i v e d upgo-Ui* allanieiLo) n n i t d (or each olher
'^^y'^^^ c^-
4
Document Filed Date
August 03, 2016
Case Filing Date
July 29, 2016
Category
Commercial Division
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FILED: NEW YORK COUNTY CLERK 08/03/2016 10:58 AM INDEX NO. 653975/2016 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 08/03/2016 EXHIBIT D BURNS ^ LEVINSON LLP 125SUMMER STREST BOSTON, MA 02110 T 617.345.JOOO F 617.345.3299 BURNSLEV.COM July 21, 2016 VIA FIRST CLASS MAIL, FINRA DR PORTAL AND E-MAIL (neprocessingcenter@linra.org) Katherine Bayer Regional Director FINRA Northeast Regional Office One Liberty Plaza 165 Broadway, 27"^ Floor New York, N Y 10006-1404 Re: Jollene /. Austin v. John Tarpinian; FINRA Arbitration No: 16-01005 Dear Ms. Bayer: Enclosed is John Tarpinian's Statement of Answer and Affirmative Defenses to Claimant's Statement of Claim (the "Answer") in the above referenced matter. Four copies of the Answer will be provided by first class mail for the Director and each of the arbitrators. Mr. Tarpinian expressly objects to the submission of this dispute to FINRA Dispute Resolution on the grounds that Claimant's claims are neither arbitrable under the FINRA Code of ArbitratiQii Trtjr subject to an arbitration agreement between the parties. Accordingly, Mr. Tarnfipian is iiol submitting a signed Submission Agreement with the Answer. Enclosures CC: Stuart D. Meissner, Esq. (via E-Mail Stuart@smeissner.com and First Class Mail) Meissner Associates 99 Main Sti-eet Suite 303 Nyack, N Y 10960 Samantha T. Denny (via E-Mail neprocessingcenter@finra.org) Case Assistant MASSACHUSETTS •::NEW VORK :::RHODE ISLAND FINRA DISPUTE RESOLUTION ARBITRATION Jollene J . Austin, Claimant, V. A R B I T R A T I O N NO: 16-01005 John Tarpinian Respondent. JOHN TARPINIAN'S STATEMENT OF ANSWER AND AFFIRMATIVE DEFENSES TO CLAIMANT'S STATEMENT OF CLAIM I. OBJECTION TO JURISDICTION As an initial matter, John Tarpinian (referred to as the "Respondent" in the FINRA Statement of Claim filed by Jollene J . Austin ("Claimant")) hereby expressly objects to the submission of this dispute to FINRA Dispute Resolution on the grounds that the Claimant's claims are neither arbitrable under the FINRA Code of Arbitration nor the subject of an arbitration agreement between the parties. Solely for the purpose of preserving his defenses in this proceeding, and without waiving his right to seek to enjoin this proceeding in the appropriate forum, Respondent states as follows:' IL ANSWER A. DENIAL OF BACKGROUND Mr. Tarpinian denies he sexually harassed or abused the Claimant in any way or at any time. Further, Mr. Tarpinian denies he misused a position of authority or took advantage of Respondent will beinitiating a petition to enjoin arbitration proceedingin the applicable state or federal court, a copy of which will be provided to the Panel when filed. information about Claimant or her cun^ent or her past employment. Answering further, Mr. Tarpinian denies generally the allegations contained in the unnumbered paragraphs of the section titled "Background" in the Statement of Claim. B. DENIAL OF S E X U A L HARASSMENT & ABUSE Mr. Tarpinian denies the allegations contained in the unnumbered paragraphs of the section titled "Sexual Harassment & Abuse" in the Statement of Claim. Mr. Tarpinian states that activity between Claimant and Mr. Tarpinian was at all times consensual. C. DENIAL OF CLAIMS Mr. Tarpinian denies the allegations contained in Paragraphs 1-4 of the section titled "Claims" in the Statement of Claim to the extant they make factual allegations and states that no response is required for the remaining allegations that seek legal relief. D. DENIAL OF DAMAGES ALLEGATIONS Mr. Tarpinian denies that Claimant is entitled to the relief requested in Paragraphs 1-4 of the section titled "Damages" in the Statement of Claim. m. AFFIRMATIVE DEFENSES FIRST DEFENSE There is no agreement between the parties to arbitrate this matter and Mr. Tarpinian does not consent to arbitration in this forum. SECOND DEFENSE The Statement of Claim, in whole or in part, fails to state a claim upon which relief can be granted. 2 THIRD DEFENSE This forum lacks subject matter jurisdiction over the causes of action in Claimant's Statement of Claim. FOURTH DEFENSE Claimant's claims are barred by the doctrines of laches, unclean hands, waiver or estoppel. FIFTH DEFENSE Claimant has not alleged that she suffered any harm based on actions by John Tarpinian. SIXTH DEFENSE Conduct complained of by Claimant was consensual or welcomed and was not undesirable or offensive. SEVENTH DEFENSE Claimant's claims are barred in whole or in part because she failed to mitigate her damages. EIGHT DEFENSE Claimant's claims are barred in whole or in part by the applicable statute of limitations. NINETH DEFENSE Claimant has failed to join a party or paities necessary for the just adjudication of this matter and has not stated any reasons for such failure to join a necessary party or parties. 3 IV. RESERVATION OF RIGHTS Mr. Tarpinian reserves the right to supplement his Answer or to assert additional defenses or counterclaims as supported by facts developed during discovery. Dated: July 21, 2016 H.M. George dlosier@bumslev.com hmgeorge@burnslev. com Bums & Levinson LLP 125 Summer Street Boston, Massachusetts 02110 Telephone: 617.345.3000 Facsimile: 617.345.3299 Attorneys for Respondent CERHFtCATE OF SERVICE I hereby certlty that a liue copy of the abovs docummt w u H i v e d upgo-Ui* allanieiLo) n n i t d (or each olher '^^y'^^^ c^- 4