Comments on the Law

Comments on Rulemaking and Legislation:

Ms. Malecki finds it essential that lawyers who practice in the securities law area get involved in the rulemaking process, which is just what she 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. In fact, in 2013, Malecki Law will be proposing new Ponzi legislation to the State of New York and North American Securities Administrators Association.


Malecki Goes to Washington

In March 2014 and 2015, Ms. Malecki visited Washington DC to attempt to gain additional support for the Investor Choice Act of 2013, currently 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 is 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 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 the Financial Regulatory Authority (FINRA) [a securities industry membership organization), 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 is fighting to make sure the momentum behind this legislation grows.

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Malecki Law Amicus Briefs

Starr v. Fuoco Group LLP et al (N.Y. 2016) - 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. The New York Court of Appeals has not yet ruled.

https://piaba.org/system/files/pdfs/Marc Starr vs. Fuoco Group et al, Mot-2016-00874, Notice of Motion of PIABA's Motion for Leave to File an Amicus Curiae Brief in Support of Plaintiff (August 31, 2016).pdf

Adam M. Nicolazzo, Esq. and Robert M. Van De Veire, Esq. 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. The Supreme Court, Appellate Division, disagreed, though remanded the case for the lower court to consider the investors' alternative arguments.

https://piaba.org/system/files/pdfs/Oppenheimer%20v%20%20Pitch.pdf

Malecki Law, on behalf of and in conjunction with the Public Investors Arbitration Bar Association (PIABA) has filed an amicus brief on Citigroup Global Markets, Inc., against Ghazi Abdullah Abbar et al., in the United States Court of Appeals, Second Circuit, in 2013, which will be heard for oral argument on May 16, 2014. An important case, it will help define what a “customer” is for the purposes of a FINRA arbitration.

Malecki Law has also worked on these Amicus Briefs:

CITIGROUP GLOBAL MARKETS INC. v. GHAZI ABDULLAH ABBAR et. al.

https://piaba.org/system/files/pdfs/Citigroup%20vs.%20Ghazi%20Abbar%20et%20al.pdf

(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 disagreed, holding that Appellees were not customers and were not entitled to FINRA arbitration.

UBS Financial Services v. West Virginia Univ. Hosp., Inc.

http://piaba.org/system/files/pdfs/UBS Financial Services, Inc vs. West Virginia Hospitals (April 4, 2011).pdf

(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.

https://piaba.org/piaba-newsroom/municipal-workers-compensation-fund-inc-vs-morgan-keegan-company-inc-cv-12-1124-brief

(Adam M. Nicolazzo, Esq. on the brief) 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. The Alabama Supreme Court has not yet held argument.

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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):

http://www.gpo.gov/fdsys/pkg/FR-2014-10-15/html/2014-24420.htm

Citigroup Global Markets Inc., vs. Ghazi Abdullah Abbar, et al., No. 13-2172-cv, Brief for Amicus Curiae the Public Investors Arbitration Bar Association in Support of Defendants-Appellants' Request for Reversal (2d Cir.). Ms. Malecki’s and Mr. Nicolazzo’s comment (September 16, 2013).

https://piaba.org/system/files/pdfs/Citigroup%20vs.%20Ghazi%20Abbar%20et%20al.pdf

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):

http://www.finra.org/web/groups/industry/@ip/@reg/@rulfil/documents/rulefilings/p122657.pdf

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):

http://www.sec.gov/rules/sro/finra/2009/34-59916.pdf

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).

http://www.finra.org/web/groups/industry/@ip/@reg/@rulfil/documents/rulefilings/p117683.pdf

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):

http://www.finra.org/web/groups/industry/@ip/@reg/@rulfil/documents/rulefilings/p116990.pdf

And on the same subject (March 20, 2008):

http://www.gpo.gov/fdsys/pkg/FR-2008-03-20/pdf/E8-5572.pdf

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Comments by Ms. Malecki

Here are some examples:

Comment on FINRA Regulatory Notice 14-35: Customer Account Statements. (October 30, 2014)

Comment on SR-FINRA-2014-005 regarding Proposed Amendment to FINRA Rules 12104 and 13104 (May 20, 2014)

Comment regarding File No. SR-FINRA-2013-003, which proposes to bar persons associated with a mutual fund or a hedge fund from serving as a "public" arbitrator for a period of at least two years (the "cooling period"). (February 7, 2013).

http://www.sec.gov/comments/sr-finra-2013-003/finra2013003-33.pdf

Comment on SR-FINRA-2013-018 – Proposed Rule Change Relating to FINRA Rule 8313 – Response to Comments. (June 17, 2013)

http://www.finra.org/web/groups/industry/@ip/@reg/@rulfil/documents/rulefilings/p282571.pdf

Comment made on regarding SR-FINRA-2013-018 regarding the release of disciplinary information to the public. (April 13, 2013 )

http://www.sec.gov/comments/sr-finra-2013-018/finra2013018-3.pdf

Comment regarding File No. SR-FINRA-2013-003, which proposes to bar persons associated with a mutual fund or a hedge fund from serving as a "public" arbitrator for a period of at least two years (the "cooling period"). (February 7, 2013)

http://www.sec.gov/comments/sr-finra-2013-003/finra2013003-33.pdf

Comment on FINRA Notice 12-10 and Form U-4/U-5 reporting and expungement. (April 17, 2012)

http://www.finra.org/web/groups/industry/@ip/@reg/@notice/documents/noticecomments/p126034.pdf

Comment on SR-FINRA-2010-035, regarding the arbitration discovery guide, opining positive change from NTM 99-90, but more is needed (August 24, 2010)

http://www.sec.gov/comments/sr-finra-2010-035/finra2010035-23.htm

Support PIABA’s comment on the proposed revisions to Form U4 and U5 reporting, SR-FINRA­2009-008. (April 17, 2009)

http://www.sec.gov/comments/sr-finra-2009-008/finra2009008-190.pdf

Comment on SR-NASD-2006-088 regarding Proposed NASD Rule 12504 (2006)

Opposition to the Accelerated Approval request of the NASD for the Proposed Rule Change to NASD Arbitration Code, SR-NASD-2003-158 relating to motion practice in arbitration. (2003)

http://www.sec.gov/rules/sro/nasd/nasd2003158/jlmalecki051606.pdf

Comment on SR-NASD-2003-158 regarding Proposed Rule Change to NASD Arbitration Code (2003)

Opposition to the Accelerated Approval request of the NASD for the Proposed Rule Change to NASD Arbitration Code, SR-NASD-2003-158 relating to motion practice in arbitration. (2003)

http://www.sec.gov/rules/sro/nasd/nasd2003158/jlmalecki051606.pdf

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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)

http://www.sec.gov/comments/sr-finra-2011-035/finra2011035-2.pdf

Comment on Regulatory Notice 11-08 regarding Markups, Commissions and Fees (March 28, 2011)

https://www.finra.org/web/groups/industry/@ip/@reg/@notice/documents/noticecomments/p123415.pdf

Comment on pre-dispute arbitration clauses in furtherance of its review of such clauses pursuant to section 921 of the Dodd- Frank Wall Street Reform and Consumer Protection Act (December 3, 2010)

http://www.sec.gov/comments/df-title-ix/pre-dispute-arbitration/predisputearbitration-11.pdf

Comment on Regulatory Notice 2010-22, Changes to Arbitrator List Selection (June 14, 2010)

http://en.youscribe.com/catalogue/tous/professional-resources/law-and-legal/final-comment-re-list-selection-changes-519034

and see:

http://piaba.org/system/files/comment_letter_pdfs/File%20No.%20SR-FINRA-2010-022.pdf

Comment on SR-FINRA-2010-014 Rule Proposal Regarding Inability-to-Pay Defense (May 17, 2010)

http://www.sec.gov/comments/sr-finra-2010-014/finra2010014-3.pdf

Comment on SR-FINRA-2009-075 relating to fees in arbitration (12/21/09)

http://en.youscribe.com/catalogue/tous/professional-resources/law-and-legal/comment-sr-finra-2009-075-postponement-fees-539505

Comment supporting FINRA Rule 9550 Series (Expedited Proceedings for the sick and elderly). (December 15, 2009)

https://www.sec.gov/comments/sr-finra-2009-076/finra2009076-1.pdf

and

http://piaba.org/system/files/comment_letter_pdfs/Comment%20re%20summary%20suspensions%2012%2015%2009.pdf

Comment on Proposed Rule Change~ Elimination of FINRA-DR Mandatory Industry Arbitrator Pursuant to Commission Rule of Practice 192(a) (June 11, 2009)

http://www.sec.gov/rules/petitions/2009/petn4-586.pdf

Comment on FINRA Notice 09-55 regarding Communications with the Public (Nov. 16, 2009):

http://www.finra.org/web/groups/industry/@ip/@reg/@notice/documents/noticecomments/p120401.pdf

Comment on File No. SR-FINRA-2008-047 Proposed FINRA Amendment to Customer Code Rule 12401 Increase in Limits for Single Arbitrator Cases (Oct. 20, 2008)

http://piaba.org/system/files/comment_letter_pdfs/CommentLetter102008.pdf

File No. SR-FINRA-2008-031 Proposed Rule Change Regarding Uniform Submission Agreements (August 6, 2008)

http://www.sec.gov/comments/sr-finra-2008-031/finra2008031-5.pdf

Comment on SR-FINRA-2008-009 Proposed FINRA Amendment to Customer Code Rule 12400(c); Chairperson Eligibility Requirements (April 16, 2008)

http://piaba.org/system/files/comment_letter_pdfs/CommentLetter41608.pdf

Comment on File No. SR-NASD-2007-023 regarding consolidation of NYSE and NASD arbitration and rules.(April 16, 2007)

http://piaba.org/system/files/comment_letter_pdfs/CommentLetter41607.pdf

Comment on SR-2005-079 regarding subpoenas in arbitration (December 7, 2006).

http://www.sec.gov/rules/sro/nasd/nasd2005079/nasd2005079-40.pdf

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