Pickett v Financial Indus. Regulatory Auth., Inc.

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Pickett v Financial Indus. Regulatory Auth., Inc. 2019 NY Slip Op 33639(U) December 13, 2019 Supreme Court, New York County Docket Number: 655718/2019 Judge: W. Franc Perry Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] NEW YORK COUNTY CLERK 12/13/2019 04:11 PM NYSCEF DOC. NO. 10 INDEX NO. 655718/2019 RECEIVED NYSCEF: 12/13/2019 SUPREME COURT OF TltfE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART. HON. W. FRANC PERRY IAS MOTION 23EFM Justice -----------------------------------------_:-~-------------------------------------X JAY PICKETT, JACOB MCKELVEY ~INDEX NO. MOTION DATE Petitioner, 655718/2019 10/30/2019 MOTION SEQ. NO. -----=-0-"--01-'---- -v,; FINANCIAL INDUSTRY REGULATORY AUTHORITY, INC. (FINRA), DECISION+ ORDER.ON MOTION Respondent. ---------------------------------------------------------------------------------X The following e~filed documents, listed by NYSCEF document number (Motion 001) 2, 9 were read on this motion to/for CONFIRM/DISAPPROVE AWARD/REPORT Petitioners Jay Windsor Pickett, III'and Jacob M. McKelvey ("Petitioners"), through their attorneys, DLP Piper LLP (US), have duly appliedJor an Order pursuant to CPLR § 7510 to confirm the Arbitration Panel's Award served on th~ parties on August 1, 2019, in an arbitration before the Financial Industry Regulatory Authority ("FINRA"), entitled Brian Leggett and Bryson Holdings, LLC v. Wells Fargo Clearing Services, LLC and Jay Windsor Pickett, III (FINRA Case No. 17-01077) ("Arbitration"). Upon reading and filing the following papers submitted to the Court, including the Affirmation of Stefanie M. Wayco, Esq. and Petition to Confirm an Arbitration Award Pursuant to CPLR § 7510, with exhibits A and B annexed th'ereto, including a copy of the FINRA Arbitration Award and FINRA's letter to Petitioners dated September 18, 2019 waiving the obligation under FINRA Rule 2080 to name FINR{\ as a party in this proceeding, and said I application having regularly come on to be heard, and after due deliberation having been had thereon, 655718/2019 PICKETT, Ill, JAY WINDSOR vs. FINANCIAL INDUSTRY Motion No. 001 ' 1 of 4 Page 1 of4 [*FILED: 2] NEW YORK COUNTY CLERK 12/13/2019 04:11 PM INDEX NO. 655718/2019 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 12/13/2019 NOW, upon the application of DLA Piper LLP (US), attorneys for the Petitioners, it is hereby ORDERED AND ADJUDGED that the Petition is hereby granted in all respects, and the Arbitration Panel's Award in the FINRA Arbitration, served on the parties on August 1, 2019, recommending expungement, is confirmed consistent with the below: After considering the pleadings, the testimony and evidence presented at the hearing, the Arbitrators haye decided in full and final resolution of the issues·submitted for '<letermination as follows: 1. Claimants' claims are denied in their entirety .. 2. Claimant Leggett is liable for and shall pay to Respondents the sum of $51,000, representing costs incurred by Respondents in connection with this matter. 3. Any and all claims for relief not specifically addressed herein, including Claimants' request for punitive damages and attorneys' fees, are denied. 4. The Panel recommends the expungement of all references to the above-captioned arbitration from registration records maintained by the CRD, for Respondent Pickett (CRD #2041509) and Non-Party McKelvey must:obtain confirmation from a court of competent jurisdiction before the CRD will execute the expungement directive. · l Unless specifically waived in writing by FINRA, parties seeking judicial confirmation of an arbitration award containing expungement relief must name FINRA as an additional party and serve FINRA with all appropriate documents. Pursuant'to Rule 12805 and the Code of Arbitration Procedure ("Code"), the Panel had made the following Rule 2080 affirmative findings of fact: • The claim, allegation, or information is factually impossible or clearly erroneous; and • The claim, allegation, or information is false. / 655718/2019 PICKETT, Ill, JAY WINDSOR vs. FINANCIAL INDUSTRY Motion No. 001 2 of 4 Page 2 of4. [*FILED: 3] NEW YORK COUNTY CLERK 12/13/2019 04:11 PM NYSCEF DOC. NO. 10 INDEX NO. 655718/2019 RECEIVED NYSCEF: 12/13/2019 The Panel has made the above Rule 2080 findings based on the following reasons: Upon consideration of the full record of evidence, including the documents and testimony, the Panel finds that the claims asserted by Claimants against Respondent Pickett, and the allegations concerning Non-Party McKelvey set forth in Claimants' S~atement of Claim, are without merit and false. Specifically, the Panel finds that the losses sustained by Claimants were solely caused by the trading strategy devised, implemented and undertaken by Claimant Leggett. None of Claimants' alleged losses were caused by Respondent Pickett's and/or Non-Party McKelvey's action, inaction, or advice. The Panel finds that neither Respondent Pickett nor Non-Party McKelvey engaged in any wrongful conduct. Claimant Leggett alleges that he was misled by both Respondent Pickett and Non-Party McKelvey. The Panel finds that neither Respondent Pickett nor Non-Party McKelvey misled Claimant Leggett in any way, and that these allegations are without merit and false. Claimant Leggett's testimony as to these issues was not credible. By e-mail dated April 18, 2016 Claimant Leggett accused Non-Party McKelvey of misleading him with respect to a call option on Amazon. Claimant Leggett's testimony was that Claimant Leggett did not have option experience, did not know how options worked, that he relied on Non-Party McKelvey, and Non-Party McKelvey misled him. However, in a text message from Claimant Leggett to Non-Party McKelvey, dated April 13, 2016, Claimant Leggett stated, "anytime I've ever put in an option to sell it [sic] a certain strike it should automatically execute ... " The Panel concluded from this text message that Claimant Leggett did have option experience, that his testimony to the contrary was untrue, and that his complaints about Non-Party McKelvey were false and untrue. By e-mail dated November 8, 2016, Claimant Leggett complained to Respondent Pickett about the NXPI trades stating, "Jay, I'm [sic] not taking the loss on this trade ... " Further, by e-mail to Respondent Pickett, dated November 11, 2016, Claimant Leggett stated, "Jay, I'm writing to comment about the matter below and let you know after further thought and review of our discussion, that there was simply a misunderstanding about our discussion ... " Based upon Respondent Pickett's testimony at the hearing, and Claimant Leggett's November 11, 2016 e-mail, the Panel 655718/2019 PICKETT, Ill, JAY WINDSOR vs. FINANCIAL INDUSTRY Motion No. 001 3 of 4 Page 3 of4 [*FILED: 4] NEW YORK COUNTY CLERK 12/13/2019 04:11 PM INDEX NO. 655718/2019 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 12/13/2019 concluded that Claimant Leggett's complaints about Respondent Pickett were false and untrue. The Panel's decision to grant the expungement requests ofNonParty McKelvey and Respondent Pickett is ;·buttressed by the Panel's conclusion that Claimant Leggett was not a credible witness, and his complaints about Non-Party McKelvey and Respondent Pickett were false and untrue. Claimant Leggett's testimony was inconsistent and untrue, his testimony was in conflict with the documents entered into evidence, and his testimony was not corroborated by the documents. Accordingly, the Panel finds that the information to be expunged has no meaningful regulatory or investor protection value." ORDERED AND ADJUDGED that all references to the FINRA Arbitration captioned Brian Leggett and Bryson Holdings, LLC v. Wells Fargo Clearing Services, LLC and Jay Windsor Pickett, III (FINRA Case No. 17-01077) be expunged from the FINRA Central Registration Depository ("CRD") records of Petitioners Jay Windsor Pickett, III (CRD # 2041509) and Jacob McKelvey (CRD # 5288433). lJ-/r2/1r- ! W. FRANC PERRY, J.S.C. /DATE/ CHECK ONE: CASE DISPOSED GRANTED D DENIED APPLICATION: SETTLE ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN ~ 655718/2019 PICKETT, Ill, JAY WINDSOR vs. FINANCIAL INDUSTRY Motion No. 001 4 of 4 NO~-~INALDllilOttlN GRANTED IN PART SUBMIT ORDER w. FRANC PERRY, Ill D J.S.C. D OTHER · FIDUCIARY APPOINTM.ENT REFERENCE Page4 of 4 '

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