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Badge - Super Lawyers Jenice L. Malecki

Comments on the Law

Comments on Rulemaking and Legislation

It is essential for lawyers who practice in the securities law area to get involved in the rulemaking process to help their clients, which is just what Jenice Malecki has done. By both working with regulators directly, commenting on legislation, speaking with regulators on panels at conferences and seminars, as well as working with whistleblowers and commenting on SEC rulemaking, FINRA Rulemaking, and legislation, Ms. Malecki wants to make a difference.


Malecki Goes to Washington

In March 2014 and 2015, Ms. Malecki visited Washington DC to gain additional support for the Investor Choice Act of 2013, formerly on the United States House of Representatives Floor, meeting with the offices of the following Honorable Members of Congress: Rep. John Dingell, Rep. Blaine Luetkemeyer, and Rep. Stephen Lynch. She also met with the offices of United States Senate members, including Sen. Charles Schumer and Sen. Kirsten E. Gillibrand to ask them to introduce similar legislation in the Senate.

The Investor Choice Act of 2013 was a narrow bill designed to give investors a choice of going either to arbitration or court to have their claims for unscrupulous brokerage practices heard. As it stands now, since a court holding in the early 1990s, investors have been forced into arbitration through contracts of adhesion imbedded in virtually every new account application for virtually every brokerage firm in America, which forces them to arbitrate their claims at a securities industry membership organization Financial Regulatory Authority (FINRA), before arbitrators that are not necessarily a jury of their peers, but a group of sophisticated business people. Many times, elderly people, and their retirement assets are the subject of these cases, and currently, although many worked a lifetime to amass these assets, paying taxes all along, their access to the United States justice system has been blocked. Ms. Malecki fought to raise momentum for this legislation.

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Malecki Law Amicus Briefs

Starr v. Fuoco Group LLP et al (N.Y. 2016) – Malecki Law appeared on behalf of the Public Investor Arbitration Bar Association (PIABA) to the New York Court of Appeals seeking a grant of certiorari review of the New York Supreme Court, First Department's holding that financial advisors cannot be held to answer for extra-contractual causes of action because they are not "professionals" within the meaning of N.Y. C.P.L.R. § 214.

Malecki Law was on the brief to the Supreme Court of New York, Appellate Division, First Department. The brief stated that the lower court's decision to compel a second arbitration proceeding to enforce discovery violations in the first arbitration proceeding should be affirmed.

Malecki Law has also worked on these Amicus Briefs: CITIGROUP GLOBAL MARKETS INC. v. GHAZI ABDULLAH ABBAR et. al.

(Jenice L. Malecki, Esq. appeared on behalf of PIABA) The brief stated that Appellees were customers of the FINRA member, within the definition of the FINRA Rules. The Second Circuit ultimately held that Appellees were not customers and were not entitled to FINRA arbitration. UBS Financial Services v. West Virginia Univ. Hosp., Inc.

(Jenice L. Malecki, Esq. appeared on behalf of PIABA) the brief stated that WVHUS was a customer within the definition of the FINRA Rules. The Second Circuit agreed, holding that WVUH, which issued bonds that UBS advised, was a customer of UBS and could arbitrate its dispute with UBS in a FINRA arbitration. See UBS Financial Services v. West Virginia Univ. Hosp., Inc., 660 F.3d 643 (2d Cir. 2011). Municipal Workers Compensation Fund, Inc. v. Morgan Keegan & Company, Inc.

The brief stated that two arbitrators who failed to fully disclose ties to the respondent were biased and the Court should vacate the arbitration award.

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Malecki Comments Cited by SEC

Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Order Approving a Proposed Rule Change, as Modified by Partial Amendment No. 1, To Broaden Arbitrators' Authority To Make Referrals During an Arbitration Proceeding. Ms. Malecki’s comment cited by SEC (October 8, 2014)

Financial Industry Regulatory Authority, Inc. (“FINRA”) filed with the Securities and Exchange Commission (“SEC” or “Commission”) a proposed rule change to amend FINRA Rule 2267 (Investor Education and Protection) to require that members include a prominent description of and link to FINRA BrokerCheck, as prescribed by FINRA, on their websites, social media pages and any comparable Internet presence and on websites, social media pages and any comparable Internet presence relating to a member’s investment banking or securities business maintained by or on behalf of any person associated with a member. Ms. Malecki’s comment cited by SEC (01/04/2013):

File No. SR-FINRA-2010-053 – Proposed Rule Change to Amend the Panel Composition Rule, and Related Rules, of the Code of Arbitration Procedure for Customer Disputes, to Provide Customers with the Option to Choose an All Public Arbitration Panel in All Cases; Response to Comments and Partial Amendment No. 1. Ms. Malecki’s comment cited by SEC (12/16/2010)

Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Order Approving a Proposed Rule Change as Modified by Amendment No. 1 and Notice of Filing and Order Granting Accelerated Approval to Filing as Amended by Amendment No. 2 Relating to Changes to Forms U4, U5, and FINRA Rule 831. Ms. Malecki’s comments cited numerous times by SEC (May 13, 2009)

SEC [Release No. 34–59189; File No. SR–FINRA– 2007–021]

Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Order Approving Proposed Rule Change, as Modified by Amendment No. 1 Thereto, Relating to Amendments to the Code of Arbitration Procedure for Customer Disputes and the Code of Arbitration Procedure for Industry Disputes To Address Motions To Dismiss and To Amend the Eligibility Rule Related to Dismissals. Ms. Malecki’s comment cited by SEC (December 31, 2008).

File No. SR-FINRA-2007-021 – Proposed Rule Change to Amend Rules 12206 and 12504 of the Code of Arbitration Procedure for Customer Disputes and Rules 13206 and 13504 of the Code of Arbitration Procedure for Industry Disputes to Address Motions to Dismiss and to Amend the Provision of the Eligibility Rule Related to Dismissals; Response to Comments. Ms. Malecki’s comment cited by FINRA (09/15/2008)

And on the same subject (March 20, 2008)

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Comments by Ms. Malecki

Here are some examples:

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Comments by PIABA, While Ms. Malecki was on the Board of Directors and Secretary of that Organization

Ms. Malecki has been on the Board of Directors, in an executive position, as Secretary of the Public Investors Arbitration Bar Association (“PIABA”) and, with PIABA, has also commented on legislation as part of that group and Board:

Comment re: SR-FINRA-2011-035 - Notice of Filing of Proposed Rule Change to Adopt FINRA Rules 2210 (Communications with the Public), 2212 (Use of investment Companies Rankings in Retail Communications), 2213 (Requirements for the Use of Bond Mutual Fund Volatility Ratings), 2214 (Requirements for the Use of Investment Analysis Tools), 2215 (Communications with the Public Regarding Security Futures), and 2216 (Communications with the Public About Collateralized Mortgage Obligations (CMOs)) in the Consolidated FINRA Rulebook (August 23, 2011)

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Client Reviews
★★★★★
Jenice Malecki is a highly successful securities law attorney. She is a brilliant strategist. She is a well respected litigator who knows how to win in court. As a former CEO and President of a public company traded on the NASDAQ (and currently a College President), I can attest, as a client, that Jenice Malecki's understanding of the law along with her business acumen and intellectual gravitas resulted in a 100% victory in my case before the Supreme Court of New York State. Jenice is a passionate and determined lawyer -- I want her in my corner -- anytime!​ Dr. John J. McGrath
★★★★★
I worked with Jenice and her team to successfully resolve a brokerage / securities related issue for an elder relative and was quite pleased with how they walked us through the process and took into account the challenges that age sometimes unfortunately present. They were all professional - and effective. I would use them again without question if the need arose. Bart
★★★★★
I have NO hesitation in recommending Jenice Malecki. She made a horrible situation bearable and performed above and beyond our expectations. April Voorhis
★★★★★
I highly recommend Malecki Law. It was a gratifying experience having Ms. Malecki incharge of our case. She is a true professional with a lot of experience. Jose Zorrilla