D.E. Shaw Hedge Fund Manager Awarded 52 Million Dollars for Defamation

A FINRA arbitration panel awarded a hedge fund manager $60 million in damages for defamation against D.E. Shaw, three members of its executive committee and one of its managing directors.

While FINRA arbitration awards provide very few details, the manager sued for $600 million, plus his deferred compensation, punitive damages, interest and attorneys fees. That is an interesting outcome, given the size of the claim, but the award provides no details as to the basis of the $600 million dollar claims. We obviously have no idea how much his compensation was, but Financial Times reported that he was earning $40 million a year.

Assuming that number to be correct, it appears that the $600 million demand was for more than 10 times his then current compensation. I have no problem with claimants asking for the maximum amount they can justify. If you don’t ask for it, you won’t get it.

So, with that background, the award isn’t shockingly large, nor is it shockingly small, and considering he left in the middle of a year, it probably amounts to a year and a half of compensation.

He also apparently lost his deferred compensation, which might be an issue. Of course, that depends on how his deferred compensation was calculated – sometimes the employee is entitled to a portion of it back, sometimes he isn’t.

There are a couple of other interesting items. First, there are only two arbitrators. This type of case gets three. The award states that one of the arbitrators withdrew and the parties agreed to proceed with the remaining two arbitrators. That goes against the “common wisdom” but there are plenty of valid reasons for doing so – in this case it appears that the arbitrator withdrew after 18 days of hearings. That alone is enough of a reason to go forward with two arbitrators.

Two other points. First the case involved allegations of sexual misconduct, which was the basis of the defamation claim. The Arbitrators went out of their way to state in the award “The Panel specifically finds that Claimant did not commit sexual misconduct.”

But while making that statement, and awarding $52 million dollars, the Panel ordered the manager to pay 1/2 of the forum fees – $46,575.00! Again, I don’t know anything about the case, but given the size of the award, which was for defamation, and the added finding of no misconduct, it seems to me that the hearing fees should have been assessed against the Respondent.

One last point, and this is important – the award is joint and several against the firm, and the 4 individual respondents. That means that each of them is responsible for the $52 million. While I am sure that D.E Shaw will pay the award, making each of the individuals personally responsible sends a very strong message about liability for defamation.

Defamation cases are difficult to win in court, and even more so in arbitration. I have won a few over the years, but it is not easy.

-Mark Astarita

From the Internet:

Financial Times apparently has a detailed analysis of the case, but it is behind a pay wall.  Medium.com has an article on the case, which quotes portions of the Financial Times article. Financial Times also has an article about the award, which for some reason is not behind a paywall.

Bloomberg did a write up, but tucked it behind a paywall.

Business Insider wrote about the case when it first broke. The article references a letter the manager wrote to David Shaw at the time of his separation. The manager posted the letter on his Twitter feed, which is an interesting read if you want to read more about his side of the case.

FINRA Publishes Independent Counsel’s Report on Arbitrator Selection Process

Readers will recall the Georgia Superior Court decision vacating an arbitration award in favor of respondent Wells Fargo Clearing Services, LLC. which found that the arbitrator selection process was manipulated in that case.

Quite honestly, the facts set forth in the decision didn’t make much sense. The court accused FINRA and the attorney of having an agreement to exclude two arbitrators from cases where that particular attorney represented a party because of some sort of dispute between the attorney and those two arbitrators.

FINRA denied the existence of such an agreement, as did the attorney. And the fact is there is simply no need to do that. Parties have the right to strike arbitrators from the selection lists, for any reason, or no reason. In addition, any party can move do have an arbitrator removed for cause.

The decision caused an uproar, with Claimant’s attorneys and politicians screaming about the unfairness of the process. In response, FINRA hired Lowenstein Sandler as independent counsel to provide an independent review and analysis.

Lowenstein found that there was no agreement between the attorney and FINRA, and that “After careful consideration of the evidence obtained during that review, Lowenstein does not believe that there was any agreement between Weiss and FINRA regarding the panels for Weiss’s cases, and  “The evidence further demonstrated that FINRA personnel generally adhered to the policies and procedures and that their actions during the [relevant arbitration] were intended to be fair and reasonable at each step.”

https://www.finra.org/media-center/newsreleases/2022/finra-publishes-independent-counsels-report-arbitrator-selection

Ernst & Young to Pay $100 Million Penalty for Employees Cheating on CPA Ethics Exams and Misleading Investigation

The Securities and Exchange Commission today charged Ernst & Young LLP (EY) for cheating by its audit professionals on exams required to obtain and maintain Certified Public Accountant (CPA) licenses, and for withholding evidence of this misconduct…

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SEC Adopts Rules to Require Electronic Filing for Investment Advisers and Institutional Investment Managers

The Securities and Exchange Commission today adopted amendments to require certain documents filed by investment advisers, institutional investment managers, and certain other entities to be filed or submitted electronically. The amendments also make…

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SEC Announces Spring 2022 Regulatory Agenda

The Office of Information and Regulatory Affairs today released the Spring 2022 Unified Agenda of Regulatory and Deregulatory Actions. The report, which includes contributions related to the Securities and Exchange Commission, lists short- and long-term…

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SEC Charges Egan-Jones Ratings Co. and CEO with Conflict of Interest Violations

The Securities and Exchange Commission today charged Haverford, PA-based Egan-Jones Ratings Company, a nationally recognized statistical rating organization (NRSRO) registered with the Commission in certain ratings classes, with violating conflict of…

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SEC Charges Former Employee of Online Gambling Company with Insider Trading

The Securities and Exchange Commission today announced insider trading charges against David Roda, a former software engineer at Penn National Gaming’s subsidiary Penn Interactive Ventures, in connection with the parent company’s $2 billion acquisition…

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SEC Charges Private Equity Adviser for Failing to Disclose Disproportionate Expense Allocations to Fund

The Securities and Exchange Commission today charged New Jersey-based investment adviser Energy Capital Partners Management LP (ECP) with allocating undisclosed, disproportionate expenses to a private equity fund it advises. ECP agreed to pay a $1…

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SEC Requests Information and Comment on Advisers Act Regulatory Status of Index Providers, Model Portfolio Providers, and Pricing Services

The Securities and Exchange Commission today announced that it is requesting information and public comment on matters related to the activities of certain “information providers,” including whether, under particular facts and circumstances, information…

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IRS Warns Using Offer in Compromise (OIC) Mills

The Internal Revenue Service has cautioned taxpayers with pending tax bills to contact the IRS directly and not go to unscrupulous tax companies that use local advertising and falsely claiming they can resolve unpaid taxes for pennies on the dollar.

“No one can get a better deal for taxpayers, than they can usually get for themselves by working directly with the IRS to resolve their tax issues,” said IRS Commissioner Chuck Rettig. “Taxpayers can check online for their best deal, as well as calling a specialized collection line where they can get fast service by using voice and chat bots or opting to speak with a live phone assistor.”

Offer in Compromise (OIC) “mills” make outlandish claims usually in local advertising regarding how they can settle a person’s tax debt for pennies on the dollar. The reality usually is that taxpayers pay the OIC mill a fee to get the same deal they could have gotten on their own by working directly with the IRS.

Read the full release – IRS urges anyone having trouble paying their taxes to avoid anyone claiming they can settle tax debt for pennies on the dollar, known as OIC mills.