Award

FINRA Dispute Resolution

In the Matter of the Arbitration Between:
Claimant
Wells Fargo Advisors, LLC
Case Number: 13-01895
vs.
Respondent
Evan A. Sail
Hearing Site: New York, New York
Nature of the Dispute: Member vs. Associated Person
REPRESENTATION OF PARTIES
For Claimant Wells Fargo Advisors, LLC: Christophers. Griesmeyer, Esq. , Greiman,
Rome & Griesmeyer, LLC, Chicago, Illinois.
For Respondent Evan A. Sail: Michael Kalmus, Esq. , Law Offices of Michael Kalmus,
New York, New York.
CASE INFORMATION
Statement of Claim filed on or about: June 27, 2013.
Claimant signed the Submission Agreement: June 25, 2013.
Statement of Answer and Counterclaim filed by Respondent on or about: September 4,
2013.
Respondent signed the Submission Agreement: October 7, 2013.
CASE SUMMARY
Claimant asserted the following causes of action: breach of promissory note agreement,
unjust enrichment, and conversion.
Unless specifically admitted in his Answer, Respondent denied the allegations made in
the Statement of Claim and asserted various affimnative defenses.
In his Counterclaim, Respondent asserted the following causes of action: breach of
contract and misrepresentation.
Unless specifically admitted in its Answer, Claimant denied the allegations made in the
Counterclaim and asserted various affirmative defenses.
FINRA Dispute Resolution
Arbitration No. 13-01895
Award Page 2 of 5
RELIEF REQUESTED
In the Statement of Claim, Claimant requested compensatory damages in the amount of
$77,693.68, interest, attorneys' fees, costs, lost revenue, specific performance, and any
further relief the Panel deems equitable and just.
At the close of the hearing. Claimant requested compensatory damages in the amount
of $183,326.84, representing the unpaid balance on a promissory note, interest on the
unpaid balance, attorneys' fees, and costs.
In his Answer and Counterclaim, Respondent requested dismissal of Claimant's
Statement of Claim, compensatory damages in the amount of $150,000.00, reasonable
attorneys' fees, interest, liquidated damages in the amount of $150,000.00, costs, and
disbursements.
In its Reply to the Counterclaim, Claimant requested dismissal of the Counterclaim in its
entirety.
OTHER ISSUES CONSIDERED AND DECIDED
The Arbitrators acknowledge that they have each read the pleadings and other
materials filed by the parties.
On or about March 7, 2014 Claimant filed a Motion to Dismiss Respondent's
Counterclaim; Respondent filed a response and Claimant submitted a reply. By Order
dated April 11, 2014 and after due deliberation, the Panel granted the Motion without
prejudice pursuant to Rule 13504(a)(6)(B) of the Code of Arbitration Procedure.
On or about June 26, 2014, Respondent filed a Motion to amend his Answer pursuant to
Rule 13309(b) and (c) to add Third-Party Respondents. Claimant filed an Opposition on
July 3, 2014. After due deliberation, the Panel denied Respondent's Motion on July 9,
2014.
The parties have agreed that the Award in this matter may be executed in counterpart
copies or that a handwritten, signed Award may be entered.
AWARD
After considering the pleadings, the testimony and evidence presented at the hearing,
and the post-hearing submissions, the Panel has decided in full and final resolution of
the issues submitted for determination as follows:
1. Claimant's claims are denied in their entirety.
2. Any and all relief not specifically addressed herein is denied.
FINRA Dispute Resolution
Arbitration No. 13-01895
Award Page 3 of 5
FEES
Pursuant to the Code, the following fees are assessed:
Filing Fees
FINRA Dispute Resolution assessed a filing fee* for each claim:
Initial Claim Filing Fee =$ 1,750.00
Counterclaim Filing Fee =$ 1,425.00
*The filing fee is made up of a non-refundable and a refundable portion.
Member Fees
Member fees are assessed to each member firm that is a party in these proceedings or
to the member firm that employed the associated person at the time of the events giving
rise to the dispute. Accordingly, as a party. Wells Fargo Advisors, LLC is assessed the
following:
Member Surcharge =$ 1,100.00
Pre-Hearing Processing Fee =$ 750.00
Hearing Processing Fee =$ 2,750.00
Adiournment Fees
Adjournments granted during these proceedings for which fees were assessed:
June 17-18. 2014 adiournment bv Respondent =$ 1.125.00
Total Adjournment Fees =$1,125.00
The Panel assessed the $1,125.00 Adjournment Fees to Respondent
Discoverv-Related Motion Fees
Fees apply for each decision rendered on a discovery-related motion.
Two (2) Decisions on discovery-related motions on the papers
with (1) one arbitrator @ $200.00 =$ 400.00
Respondent submitted (2) discoverv-related motions
Total Discovery-Related Motion Fees =$ 400.00
1. The Panel has assessed $200.00 of the discovery-related motion fees to Claimant.
2. The Panel has assessed $200.00 of the discovery-related motion fees to
Respondent
FINRA Dispute Resolution
Arbitration No. 13-01895
Award Page 4 of 5
Hearing Session Fees and Assessments
The Panel has assessed hearing session fees for each session conducted. A session is
any meeting between the parties and the arbitrators, including a pre-hearing conference
with the arbitrators, that lasts four (4) hours or less. Fees associated with these
proceedings are:
Three (3) Pre-hearing sessions with the Panel @ $1,125.00/session = $3,375.00
Pre-hearing conferences: December 30, 2013 1 session
February 13, 2014 1 session
April 9, 2014 1 session
Two (2) Hearing sessions @ $1,125.00/session = $2,250.00
Hearing Dates: August 27. 2014 2 sessions
Total Hearing Session Fees = $5,625.00
1. The Panel has assessed $2,812.50 of the hearing session fees to Claimant
2. The Panel has assessed $2,812.50 of the hearing session fees to Respondent
Al l balances are payable to FINRA Dispute Resolution and are due upon receipt
FINRA Dispute Resolution
Arbitration No. 13-01895
Award Paae 6 of 5
ARBITRATION PANEL
David E. Robbins - PublicArbitrator, Presiding Chairperson
Howard L. Sobel - Public Arbitrator
Carole R. Bernstein - Non-Public Arbitrator
I, the undersigned Arbitrator, do hereby affirm, pursuant to Article 7507 of the Civil
Practice Law and Rules, that I am the individual described herein and who executed this
instrument which is my award.
Concurring Arbitrators' Signatures
The majority of the Panel, after hearing all the
evidence, including the testimony of the parties,
and having reviewed all of the submissions, do
hereby find that Respondent is entitled to a set-off
in the amount due and owing under the
Promissory Note, including any reasonable
attorneys' fees sought thereunder.
Howard L. Sobel Signature Date
Public Arbitrator
Carole R. Beinstein Signature Dale
Non-PuDlic Arbitrator
Dissenting Arbitrator's Signature
The Chair dissents because he believes that the
Respondent's affirmative defense of a set off
(the claim of an unpaid bonus) was not proven
sufficiently to mitigate or offset Claimant's breach
of contract claim, which the Chair believes was
proven by a preponderance of the evidence,
entitling Claimant to the fuji Award it sought.
David E. Robbins
Ro^bir
Public Arbitrator, Presiding Chairperson
September 24, 2014
Date of Service (For FINRA Dispute Resolution office use only)
^ 7
r/.
Si gn
ure Date