Alternate Dispute Resolution in the Futures Industry - Chapter 2 - Discovery in NFA Arbitrations
Louis F. Burke is the founding Partner of Louis F. Burke PC. Mr. Burke is primarily engaged in commodities/futures litigation before federal and state courts, arbitration proceedings before the National Futures Association (NFA) and FINRA, and administrative proceedings before the Commodity Futures Trading Commission (CFTC) and the Securities and Exchange Commission (SEC). The Firm has acted as counsel in over 100 arbitration hearings before the NFA, FINRA, AAA, and exchanges. The Firm also handles federal and state court litigation and has represented several lead plaintiffs in class actions involving manipulation of the commodity futures markets. The Burke Firm has worked on class action commodities/futures cases that have resulted in recoveries aggregating approximately $300,000,000. In 2012, the American Bar Association, Section of Litigation, appointed Mr. Burke to be co-chair of the Class Action and Derivative Suits committee for a 3 year term. Also in 2012, Mr. Burke was voted by his peers as one of the best commercial litigators in NY. For over 25 years, the Firm has successfully represented investors, brokers, brokerage firms and hedge funds in cases where losses have occurred.
Hugh J. Cadden is the founding member and CEO of the Institute for Regulatory Training and has been specializing in the organization, operation and regulation of financial and trading markets for over thirty years. Over the course of his career, Mr. Cadden has had extensive government, professional and private sector experience in matters relating to Futures Commission Merchants, Broker-Dealers, Investment Advisers, Commodity Trading Advisors, Commodity Funds, Hedge Funds and their respective compliance, supervisory and operational systems and procedures. Mr. Cadden has held senior level positions with the U. S. Commodity Futures Trading Commission including Director of the Division of Trading and Markets and Deputy Director of Enforcement. He also has been registered and licensed with the NASD and the NFA and has been Series 3, 4, 7, 63, 24 and 27 qualified. Mr. Cadden has been qualified as an expert on financial and trading market matters before the Commodity Futures Trading Commission, the Securities and Exchange Commission, United States Tax Court, NASD, AAA and National Futures Association arbitration proceedings and state and federal courts. Mr. Cadden received his B.A. degree from the University of California at Berkeley and his J.D. degree from the University of California, Hastings College of the Law.
Joan Stearns Johnsen is a Mediator and Arbitrator. She began her career as an enforcement attorney with the CFTC in Washington, D.C. She also was in-house at Smith Barney and the Commodity Futures Trading Commission in New York. For the past twenty years, Joan has concentrated her practice in the field of ADR. She is a frequent speaker and trainer having presented on various topics for the NASD/FINRA, PLI, ALI/ABA, The ABA, Westlaw, the Union International des Avocats, The New York Academy of Trial Attorneys, Association for Conflict Resolution, the Bar of the City of New York, and the ABA Section of Dispute Resolution, including serving as frequent program chair and moderator for the Section of Dispute Resolution’s monthly teleconference series. Joan Stearns has written numerous articles and recently published an article on Deal Mediation in the Windsor Review of Legal and Social Issues. Most recently Ms. Johnsen was a Visiting Assistant Clinical Professor and Director of Albany Law School’s Securities Arbitration Clinic where in addition to the Clinic, Joan taught Negotiation and ADR.
Bruce Larrimer is President of Larrimer Associates, Inc. and has over thirty-five years of consulting and regulatory experience in the derivative markets and their underlying cash markets. He has developed, managed, and implemented consulting projects for domestic and foreign financial institutions, brokerage firms, exchanges, clearinghouses, government agencies, trading advisors, funds managers, and commercial traders. Project areas include review and development of internal procedures and the conduct of operational and compliance reviews; new product development and strategic planning; design and onsite set up of commodity exchanges and brokerage firms, design of regulatory and self-regulatory programs and structures; and litigation support, including reconstruction of trading, trade analysis, and industry customs and practices. Mr. Larrimer held various positions with the U.S. Commodity Futures Trading Commission, including serving as Associate Director of the Enforcement Division. He has been qualified as an expert in CFTC enforcement and reparations proceedings, NFA and NASD/FINRA arbitrations, and federal and state court cases. He received BA and MA degrees from The Ohio State University.
Jerry W. Markham is Professor of law at Florida International University College of Law in Miami. He previously served as Professor of law at University of North Carolina at Chapel Hill and as Adjunct Professor of law at Georgetown Law School in Washington, DC. In addition to numerous law journal articles, Markham is the author of the three-volume set Financial History of the United States, which was selected as a Choice Outstanding Academic Title in 2002. He has published a book on the Enron era scandals and a two-volume work on the financial crisis of 2008. Markham also authored a treatise and a history book on the law of commodity futures regulation, and he is the coauthor of a treatise on broker-dealer regulation and four casebooks on corporate law and banking regulation. Before his move to academia, Professor Markham served as chief counsel in the Division of Enforcement, U.S. Commodity Futures Trading Commission; as secretary and counsel for Chicago Board Options Exchange Inc.; and as an attorney in the Office of General Counsel at the Securities and Exchange Commission; and he was a partner with the international firm of Rogers & Wells (now Clifford Chance) in Washington, DC. Professor Markham has also served as a consultant and expert witness in numerous financial services cases.
Douglas J. Pepe is a Partner at Gregory P. Joseph Law Offices LLC. He litigates high-stakes commercial matters on behalf of corporate and institutional clients in cases involving complex issues under the Securities Act, the Securities Exchange Act, the Private Securities Litigation Reform Act, the Securities Litigation Uniform Standards Act, the RICO Act, and other domestic and multinational corporate and derivative litigation, as well as insurance subrogation, mass tort, aircraft disaster and terrorism litigation. Mr. Pepe has both prosecuted and defended billions of dollars in claims implicating a wide variety of complex substantive and procedural issues. Mr. Pepe joined the Firm at its inception in 2001. In 2001-2002, he clerked for United States District Judge Faith S. Hochberg of the United States District Court for the District of New Jersey. From 1999-2001, he was an associate at Fried Frank Harris Shriver and Jacobson, where he practiced in both the Corporate and Litigation departments, working principally in the fields of Mergers & Acquisitions, White Collar Criminal Investigations and Securities Litigation. He is a graduate of Columbia Law School (J.D. 1999; Chancellor Kent Scholar), and the State University of New York at Buffalo (B.A. 1996; summa cum laude). He is Co-Chair of the Mass Torts, Experts and Evidence Subcommittee of the American Bar Association, and previously served as a member of the Federal Legislation and Federal Courts Committees of the Association of the Bar of the City of New York and as the Chairman of the Association’s Subcommittee on Electronic Discovery. Mr. Pepe played a leading role in the Firm’s service on the Court-appointed Executive Committee charged with directing the subrogation and property damage claims arising out of the 9/11 terrorist attack, which were successfully resolved in a $1.2 billion settlement approved by the United States Court of Appeals for the Second Circuit in April 2011. In 2012, Super Lawyers magazine named Mr. Pepe to its “New York Rising Stars” list for Business Litigation. He is the author of numerous articles on complex commercial litigation issues. Mr. Pepe is admitted to practice in New York, New Jersey, the United States Supreme Court, the United States Court of Appeals for the Second Circuit, the United States Court of Appeals for the Federal Circuit, and numerous U.S. District Courts.
Leslie Wybiral is a senior Associate at Louis F. Burke, P.C. Ms. Wybiral has concentrated her practice in the area of futures litigation since 2006. She has extensive experience in securities and commodities litigation. She has acted as counsel in complex class actions involving manipulation of the futures markets. She also regularly represents trading professionals and others in both CFTC and SRO enforcement actions. These representations have involved a wide variety of issues including fraud, net capital rules, failure to supervise, books and records, and other practices affecting securities and futures. As part of her practice she also appears in arbitrations conducted by the National Futures Association and other self-regulatory organizations. Ms. Wybiral received her B.A. in 2001 from Marymount College, and her J.D. in 2005 from New York Law School, where she was an Editor, New York Law School Law Review. She is a member of the American Bar Association’s Section of Litigation, and a member of the New York State Bar Association.
Jeffrey H. Zaiger is an Associate at Gregory P. Joseph Law Offices LLC. His experience is in the prosecution and defense of a broad range of complex commercial disputes in federal and state courts and arbitration proceedings throughout the United States. He acts on behalf of corporate and institutional clients in disputes involving claims of breach of fiduciary duty, fraud, breach of contract, legal malpractice, defamation, insurance coverage, and other complex commercial claims. His recent cases include: defense of a national law firm in a $720 million RICO class action; defense of a global insurance brokerage firm in a derivative action in the Delaware Court of Chancery; representation of a major international bank in a dispute following the theft of a corporate acquisition; and representation of a global asset management firm in a case alleging breach of contract and fiduciary duties. Mr. Zaiger is a graduate of Lafayette College (B.A. cum laude, 2002) and Boston University School of Law (J.D. 2007). He served as Editor-in-Chief of the Boston University International Law Journal. Mr. Zaiger is a member of the Bar in New York and Massachusetts, and he is admitted to practice before the United States Court of Appeals for the Second Circuit and the U.S. District Courts for the Southern and Eastern Districts of New York. Mr. Zaiger is a member of the Federal Bar Council and serves as a member of its First Decade Committee.
This chapter covers disclosure and discovery in NFA arbitration proceedings. The chapter begins with an overview of the governing rules and policy underlying discovery in NFA arbitrations. The chapter then addresses several specific, frequently-encountered issues in NFA discovery, including: automatic pre-hearing document discovery; supplemental party and non-party written discovery; unavailability of discovery depositions without consent; the timing and sequence of written discovery; motions to compel; pre-hearing discovery conferences; discovery sanctions; and NFA disciplinary actions for discovery noncompliance.