Preview
FILED: NEW YORK COUNTY CLERK 08/19/2016 01:49 PM INDEX NO. 653975/2016
NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 08/19/2016
EXHIBIT A
B E F O R E FINRA DISPUTE RESOLUTION
IQ the Matter of the Arbitration Between
Jollene J. Austin
Claimant,
Against FINRA # 16-01005
John Tarpiman
Respondent.
OPPOSITION TO MOTION FOR DENIAL OF FEVRA ARBITRATION AND
DISMISSAL / P R E C L U D E FILING OF ANSWER
The Claimant hereby submits this opposition to the Respondent's Motion for
Denial of FINRA Arbitration and to Dismiss, along with a request to preclude the filing
of any Answer in this proceediag for violatkig all provisions of the FINRA Code of
Arbitration Procedure (the "Code") Rule 13303. Such violation was without excuse, as
the instant Motion could have easily been filed long before the deadline for the
Respondent to have filed an Answer and the Uniform Submission Agreement as
mandated, but instead they unilaterally chose to wait from April 15,2016 until May 27,
2016 to first file the instant Motion.
INTRODUCTION
It appears the Respondent manipulates the actual Claim filed so as to adapt to
their Motion. It is not for the Respondent to alter and/or take away facts and/or alter
Causes of Action that are not delineated in the actual Cleiim, simply so as to
accommodate his attempt at avoiding FINRA arbitiation as a fellow associated person,
who, like the Claimant were employed by the very same member firm at the time of the
Austin V. John Tarpinian
Opposition to Respondent's Fonun Dismissal Motion
Page 1 of 7
events in question and all of which as noted herein arose directly from such employment
as well as the Respondent's position of apparent authority in such member firm, as is
clearly alleged in the Statement of Claim, without which none of the facts alleged would
have taken place.
Contrary to the Respondent's Motion, it is patently clear from the facts alleged in
the Statement of Claim that (1) the claims all in fact do "arise out of the business
activities of a member or an associated person and is between and among Associated
Persons" as per the Code and (2) the Claims are not "based on" sexual harassment, but
rather if anything, they are "based on" actual assault and battery by the Respondent as
well as his violation of FINRA's own Conduct Rule 2110 Standards of Commercial
Honor and Principles of Trade. More importantly, despite the Respondent's attempt to
allege otherwise, or incredibly attempt to do so on his own, a plain reading of the Claim
makes clear Ms. Austin sunply did not allege the "violation" of any "employment
statute" and thus Rule 13201 of the Code is irrelevant to this proceeding. Fmther, even if
one were to somehow imilaterally convert our Cause of Action of Sexual Harassment into
a statutory based claim, which it is not, there are six (6)' other Causes of Action which
have nothing to do with sexual harassment, and thus again rendering Rule 13201 wholly
inapplicable.
Fmther the entire basis for the instant Motion, Rule 13203, a rarely utilized rule,
is discretionary as it states that the Director "may" decline to permit.... Such does not
state that he must do anything. More importantly, there is simply no basis to assert that
the dispute is somehow inappropriate or that somehow accepting the Claim would pose
some risk of health or safety of arbitiators, staff or parties or their representatives. It is
Austin V. John Tarpinian
Opposition to Respondent's Fonun Dismissal Motion
Page 2 of7
clear that the allegations all arose directly as a result of Ms. Austin having been hired and
being employed by a Member firm which the Respondent claimed to have been an
owner/pattner in. It is alleged that as a person in authority he was able to abuse such
authority by doing the heinous acts he is accused of doing, and doing so on one occasion
in a location that he utilized as his home/office where he conducted member business
after having been physically banned from working in the member firm's home office and
teUing her that he supposedly needed to discuss member business with her after the
market close.
The Claims All Clearly Arise Out of the Business Activities of the Associated Person
Contrary to the Respondent's assertion, the Claim is replete with references to
how the Claims all arose from the business activities of both Associated Persons and their
member firm at the time, Newport Coast Securities ("Newport"). All the followmg facts
are contained within the Claim making it abundantly clear that the allegations all arose
from the business activities of Mr. Tarpinian in relation to the Claimant who is also an
associated person:
• Ml". Tarpinian represented to the Claimant that he was a "partner/owner" of
Newport dming her hiring process.
• Mr. Tarpinian made clear that the Claimant would be part of his "team" and as a
result he received a 30% override from the Claimant's commissions.
• Mr. Tarpinian used his position and knowledge of her dependence on her j ob so
as to physically take advantage of and physically abuse the Claimant and attempt
to keep her silent.
' The First Claim refers to Physical Assault, Sexual Assault, Battery, & False Imprisoiunent
Austin V. John Tarpinian
Opposition to Respondent's Fonun Dismissal Motion
Page 3 of?
• The Claimant explained to her sister-in-law that she needed her job and that she
feared she would lose it if she refused to go with him to dinner
• Mr. Tarpinian instructed the Claunant that she had to purchase certain
investments for her clients and that he made the rules. He instructed her that she
could not purchase any other products for her clients, other than his structured
notes and certain exchange traded funds.
• The second assault took place on April 15, 2015, inside Mr. Tarpinian's
apartment and in effect was his office at the time, after he requested that the
Claimant meet him outside the office so as to discuss busmess.
• The Claimant reported the physical abuse to compliance who purportedly reported
it to management of Newport.
As such, it is patently clear that, contrary to the Respondent's assertion. Rule
13200 is fully satisfied. The Respondent relies on case law which has nothing to do with
the facts alleged here, let alone even the jiuisdiction of this matter, which is New York^.
Unlike the Valentine Capital case cited to, this matter does not involve either party being
involved in any outside business activity at the time which was not FINRA regulated.
Both Tarpinian and the Claimant solely worked for Newport and at all times were
associated with Newport from which employment the facts arose. Further, as the above
facts delineate the actions all arosefi-omMr. Tarpinian's position or purported registered
position with Newport. The Eppinger case is even more distinguishable, as such case
involved two members and their divorce agreement, which divorce obviously had nothing
to do with being a registered representative. Again, the instant facts clearly all arise from
Austin V, John Tarpinian
Opposition to Respondent's Fotum Dismissal Motion
Page 4 of 7
the employment relationship the parties had as registered representatives with member
firm Newport, and all arose directly out of such activity.
Code Rule 13201 is Inapplicable to the Instant Claim as there are no
Statutory Employment Discrimination Claims Asserted
What is clear on the face of the pleadings is that there are no "Statutory"
Employment Discrimination claims alleged in the Claim, nor was this case filed as such,
and thus Rule 13201 is wholly inapplicable. Contrary to the Respondent's argument the
Claimant did not allege a violation of Title V n of the Civil Rights Act of 1964 or any
other state statue for that matter. The instant matter's claims are founded in Tort, not
statutory. Further, it is clear that common law claims such as assault, battery, infliction of
emotional distress, etc. are not statuary and thus are not covered by Rule 13201. The form
or sexual harassment alleged is synonymous with the assault / battery claims. Further, the
statutes that the Respondent refers to all relate to actions that can be filed against one's
employer which the Respondent, as they noted, was not. hi accord with such, the 1998
FINRA proposal the Respondent relies upon makes clear that the aim of such proposal
was so that ''employees receive special protection from discriminatory conduct by
employers". Such was never meant to be used to attempt to protect actual tortfeasors like
Mr. Tarpinian fi-om direct tort based common law actions in arbitration. Mr. Tarpmian
was not the Claimant's employer. All of the Federal and State statutes cited to by the
Respondent are inapphcable, not only because they were clearly not even alleged in the
instant Claim as causes of action, thus removing any appUcability of Rule 13201, but they
could not be alleged since Mr. Tarpiirian was not Ms. Austin's employer and they all
^ Respondent cites cases solely from California and Florida having nothing to do with this case.
Austin V. John Tarpinian
Opposition to Respondent's Forum Dismissal Motion
Page 5 of?
relate to actions against one's employer. The Shen case which the Respondent cites
actually supports the notion that the U4 signed by the Respondent mandates that he
arbitiate anything that arises out of the business activity of the member. As such, it
appears such case actually stands in opposition to any dismissal of the instant matter.
Fmther, the Herman case once again is an action against one's employer unlike the
instant matter, and was based on a statutory age and gender employment discrimination
claims unlike the instant matter and having nothing to do with common law tort claims
which are not covered by Rule 13201.
RESPONDENT'S ANSWER MUST B E P R E C L U D E D AS H A V I N G NOW
FAILED TOTIMELY FILE & SERVE SUCH ANSWER AND UNIFORM
SUBMISSION A G R E E M E N T AS MANDTED UNDER THE CODE
Code Rule 13303 mandates that the Respondent file their Answer specifying all
the relevant facts and available defenses along with a signed and dated submission
agieement within 45 days of receipt of the statement of claim. As per FINRA's service
letter in the instant matter, the date the Respondent was required to file such Answer and
submission agreement was today, June 6,2016. To the extend they have not done so, we
hereby request that FINRA reject any unilateral attempt to file such Answer as no agreed
extension has been requested, let alone presented. Further, as the instant Motion could
have been filed and adjudicated long ago, but instead had not been filed until May 27,
2016, there is simply no basis to deny the instant request to preclude, and as such the
Respondent should be deemed to have defaulted on the instant Claim. The sole issue to
be decided by the Panel should now be the assessment of damages against Mr. Tarpinian
due to his default.
Austin V. John Tarpinian
Opposition to Respondent's Forum Dismissal Motion
Page 6 of 7
Conclusion
For all the foregoing reasons, the Director must deny the Respondent's Motion.
Further the Director should grant the Claimant's request for preclusion of the
Respondent's Answer i f and when ever filed, for failure to file such in accordance with
Code Rule 13303 and should deem that the Respondent to have effectively defaulted on
the Claim as a result. We further respectfully request tliat all attorney's fees and costs
associated with having to respond to the instant frivolous Respondent Motion be assessed
against the Respondent.
Dated: June 6,2016
Respectfully submitted,
Meissner Associates
Bv: _StuaAl '2).0TLiAa^
Stuart Meissner Esq.
Attorney for the Claimant
99 Main Street, Suite 303
NyackN.Y. 10960
212-764-3100
cc: David Losier Esq. 646-607-3071
Austin V. John Tarpinian
Opposition to Respondent's Forum Dismissal Motion
Page 7 of7
Preview
FILED: NEW YORK COUNTY CLERK 08/19/2016 01:49 PM INDEX NO. 653975/2016 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 08/19/2016 EXHIBIT A B E F O R E FINRA DISPUTE RESOLUTION IQ the Matter of the Arbitration Between Jollene J. Austin Claimant, Against FINRA # 16-01005 John Tarpiman Respondent. OPPOSITION TO MOTION FOR DENIAL OF FEVRA ARBITRATION AND DISMISSAL / P R E C L U D E FILING OF ANSWER The Claimant hereby submits this opposition to the Respondent's Motion for Denial of FINRA Arbitration and to Dismiss, along with a request to preclude the filing of any Answer in this proceediag for violatkig all provisions of the FINRA Code of Arbitration Procedure (the "Code") Rule 13303. Such violation was without excuse, as the instant Motion could have easily been filed long before the deadline for the Respondent to have filed an Answer and the Uniform Submission Agreement as mandated, but instead they unilaterally chose to wait from April 15,2016 until May 27, 2016 to first file the instant Motion. INTRODUCTION It appears the Respondent manipulates the actual Claim filed so as to adapt to their Motion. It is not for the Respondent to alter and/or take away facts and/or alter Causes of Action that are not delineated in the actual Cleiim, simply so as to accommodate his attempt at avoiding FINRA arbitiation as a fellow associated person, who, like the Claimant were employed by the very same member firm at the time of the Austin V. John Tarpinian Opposition to Respondent's Fonun Dismissal Motion Page 1 of 7 events in question and all of which as noted herein arose directly from such employment as well as the Respondent's position of apparent authority in such member firm, as is clearly alleged in the Statement of Claim, without which none of the facts alleged would have taken place. Contrary to the Respondent's Motion, it is patently clear from the facts alleged in the Statement of Claim that (1) the claims all in fact do "arise out of the business activities of a member or an associated person and is between and among Associated Persons" as per the Code and (2) the Claims are not "based on" sexual harassment, but rather if anything, they are "based on" actual assault and battery by the Respondent as well as his violation of FINRA's own Conduct Rule 2110 Standards of Commercial Honor and Principles of Trade. More importantly, despite the Respondent's attempt to allege otherwise, or incredibly attempt to do so on his own, a plain reading of the Claim makes clear Ms. Austin sunply did not allege the "violation" of any "employment statute" and thus Rule 13201 of the Code is irrelevant to this proceeding. Fmther, even if one were to somehow imilaterally convert our Cause of Action of Sexual Harassment into a statutory based claim, which it is not, there are six (6)' other Causes of Action which have nothing to do with sexual harassment, and thus again rendering Rule 13201 wholly inapplicable. Fmther the entire basis for the instant Motion, Rule 13203, a rarely utilized rule, is discretionary as it states that the Director "may" decline to permit.... Such does not state that he must do anything. More importantly, there is simply no basis to assert that the dispute is somehow inappropriate or that somehow accepting the Claim would pose some risk of health or safety of arbitiators, staff or parties or their representatives. It is Austin V. John Tarpinian Opposition to Respondent's Fonun Dismissal Motion Page 2 of7 clear that the allegations all arose directly as a result of Ms. Austin having been hired and being employed by a Member firm which the Respondent claimed to have been an owner/pattner in. It is alleged that as a person in authority he was able to abuse such authority by doing the heinous acts he is accused of doing, and doing so on one occasion in a location that he utilized as his home/office where he conducted member business after having been physically banned from working in the member firm's home office and teUing her that he supposedly needed to discuss member business with her after the market close. The Claims All Clearly Arise Out of the Business Activities of the Associated Person Contrary to the Respondent's assertion, the Claim is replete with references to how the Claims all arose from the business activities of both Associated Persons and their member firm at the time, Newport Coast Securities ("Newport"). All the followmg facts are contained within the Claim making it abundantly clear that the allegations all arose from the business activities of Mr. Tarpinian in relation to the Claimant who is also an associated person: • Ml". Tarpinian represented to the Claimant that he was a "partner/owner" of Newport dming her hiring process. • Mr. Tarpinian made clear that the Claimant would be part of his "team" and as a result he received a 30% override from the Claimant's commissions. • Mr. Tarpinian used his position and knowledge of her dependence on her j ob so as to physically take advantage of and physically abuse the Claimant and attempt to keep her silent. ' The First Claim refers to Physical Assault, Sexual Assault, Battery, & False Imprisoiunent Austin V. John Tarpinian Opposition to Respondent's Fonun Dismissal Motion Page 3 of? • The Claimant explained to her sister-in-law that she needed her job and that she feared she would lose it if she refused to go with him to dinner • Mr. Tarpinian instructed the Claunant that she had to purchase certain investments for her clients and that he made the rules. He instructed her that she could not purchase any other products for her clients, other than his structured notes and certain exchange traded funds. • The second assault took place on April 15, 2015, inside Mr. Tarpinian's apartment and in effect was his office at the time, after he requested that the Claimant meet him outside the office so as to discuss busmess. • The Claimant reported the physical abuse to compliance who purportedly reported it to management of Newport. As such, it is patently clear that, contrary to the Respondent's assertion. Rule 13200 is fully satisfied. The Respondent relies on case law which has nothing to do with the facts alleged here, let alone even the jiuisdiction of this matter, which is New York^. Unlike the Valentine Capital case cited to, this matter does not involve either party being involved in any outside business activity at the time which was not FINRA regulated. Both Tarpinian and the Claimant solely worked for Newport and at all times were associated with Newport from which employment the facts arose. Further, as the above facts delineate the actions all arosefi-omMr. Tarpinian's position or purported registered position with Newport. The Eppinger case is even more distinguishable, as such case involved two members and their divorce agreement, which divorce obviously had nothing to do with being a registered representative. Again, the instant facts clearly all arise from Austin V, John Tarpinian Opposition to Respondent's Fotum Dismissal Motion Page 4 of 7 the employment relationship the parties had as registered representatives with member firm Newport, and all arose directly out of such activity. Code Rule 13201 is Inapplicable to the Instant Claim as there are no Statutory Employment Discrimination Claims Asserted What is clear on the face of the pleadings is that there are no "Statutory" Employment Discrimination claims alleged in the Claim, nor was this case filed as such, and thus Rule 13201 is wholly inapplicable. Contrary to the Respondent's argument the Claimant did not allege a violation of Title V n of the Civil Rights Act of 1964 or any other state statue for that matter. The instant matter's claims are founded in Tort, not statutory. Further, it is clear that common law claims such as assault, battery, infliction of emotional distress, etc. are not statuary and thus are not covered by Rule 13201. The form or sexual harassment alleged is synonymous with the assault / battery claims. Further, the statutes that the Respondent refers to all relate to actions that can be filed against one's employer which the Respondent, as they noted, was not. hi accord with such, the 1998 FINRA proposal the Respondent relies upon makes clear that the aim of such proposal was so that ''employees receive special protection from discriminatory conduct by employers". Such was never meant to be used to attempt to protect actual tortfeasors like Mr. Tarpinian fi-om direct tort based common law actions in arbitration. Mr. Tarpmian was not the Claimant's employer. All of the Federal and State statutes cited to by the Respondent are inapphcable, not only because they were clearly not even alleged in the instant Claim as causes of action, thus removing any appUcability of Rule 13201, but they could not be alleged since Mr. Tarpiirian was not Ms. Austin's employer and they all ^ Respondent cites cases solely from California and Florida having nothing to do with this case. Austin V. John Tarpinian Opposition to Respondent's Forum Dismissal Motion Page 5 of? relate to actions against one's employer. The Shen case which the Respondent cites actually supports the notion that the U4 signed by the Respondent mandates that he arbitiate anything that arises out of the business activity of the member. As such, it appears such case actually stands in opposition to any dismissal of the instant matter. Fmther, the Herman case once again is an action against one's employer unlike the instant matter, and was based on a statutory age and gender employment discrimination claims unlike the instant matter and having nothing to do with common law tort claims which are not covered by Rule 13201. RESPONDENT'S ANSWER MUST B E P R E C L U D E D AS H A V I N G NOW FAILED TOTIMELY FILE & SERVE SUCH ANSWER AND UNIFORM SUBMISSION A G R E E M E N T AS MANDTED UNDER THE CODE Code Rule 13303 mandates that the Respondent file their Answer specifying all the relevant facts and available defenses along with a signed and dated submission agieement within 45 days of receipt of the statement of claim. As per FINRA's service letter in the instant matter, the date the Respondent was required to file such Answer and submission agreement was today, June 6,2016. To the extend they have not done so, we hereby request that FINRA reject any unilateral attempt to file such Answer as no agreed extension has been requested, let alone presented. Further, as the instant Motion could have been filed and adjudicated long ago, but instead had not been filed until May 27, 2016, there is simply no basis to deny the instant request to preclude, and as such the Respondent should be deemed to have defaulted on the instant Claim. The sole issue to be decided by the Panel should now be the assessment of damages against Mr. Tarpinian due to his default. Austin V. John Tarpinian Opposition to Respondent's Forum Dismissal Motion Page 6 of 7 Conclusion For all the foregoing reasons, the Director must deny the Respondent's Motion. Further the Director should grant the Claimant's request for preclusion of the Respondent's Answer i f and when ever filed, for failure to file such in accordance with Code Rule 13303 and should deem that the Respondent to have effectively defaulted on the Claim as a result. We further respectfully request tliat all attorney's fees and costs associated with having to respond to the instant frivolous Respondent Motion be assessed against the Respondent. Dated: June 6,2016 Respectfully submitted, Meissner Associates Bv: _StuaAl '2).0TLiAa^ Stuart Meissner Esq. Attorney for the Claimant 99 Main Street, Suite 303 NyackN.Y. 10960 212-764-3100 cc: David Losier Esq. 646-607-3071 Austin V. John Tarpinian Opposition to Respondent's Forum Dismissal Motion Page 7 of7