Miami, FL Merrill Lynch broker Patrick J. Dwyer, a large producer who routinely appears on “top advisor” lists, recently obtained an arbitration award ordering FINRA to expunge seven customer dispute disclosures, which included one arbitration, from his CRD customer complaint history.
Here’s something interesting published here –
Patrick J. Dwyer —is seeking to have customer complaints against him, as a Miami investment advisor, removed from a website because he doesn’t like them being there. Judge Michael P. Linfield will decide whether to grant the relief that’s sought.
While he’s pondering whether the public has a right to know of the complaints or not, he ought to give some thought as to whether there is any justification for Dwyer being allowed to litigate anonymously.
In short, money talks and bullshit walks !
A highly damaging report against Patrick J Dwyer was published at http://www.metnews.com/articles/2015/perspectives060215.htm , among other websites. No, the link does NOT work now. The title of this report was ‘Merrill Lynch wealth advisor ‘Patrick J Dwyer’ is allowed to litigate in partial secrecy‘.
Here are the other consumer complaints published at FINRA –
- Allegations: CLIENTS ALLEGE THAT THEY WANTED TO DELAY THE PURCHASE OF THE DAVIS MANAGED CONSULTS PORTFOLIO.
- Damage Amount Requested: $111,000.00
- Settlement Amount: $111,000.00
- Broker Comment: RESPONDENTS DENY ANY WRONGDOING. THERE WAS A MISUNDERSTANDING BETWEEN THE CLIENT AND FINANCIAL CONSULTANT. FUNDS WERE RECEIVED INTO THE MANAGED ACCOUNT WHICH AUTOMATICALLY TRIGGERED THE INVESTMENTS BY THE MONEY MANAGER. THIS MATTER WAS SETTLED TO AVOID THE EXPENSE AND UNCERTAINTY OF LITIGATION. MOREOVER, THE RELEASE ALLOWS MERRILL LYNCH TO BE REIMBURSED BY THE CLIENT IN THE EVENT THAT THE CUSTOMER HAS A NON-UTILIZED EXCESS SHORT TERM GAIN ON CUSTOMER’S 2001 TAX RETURN
- Allegations: CUSTOMER ALLEGES FINANCIAL ADVISOR MADE UNSUITABLE RECOMMENDATIONS TO PURCHASE ML FOCUS 20 FUND.
- Damage Amount Requested: $255,000.00
- Broker Comment: AN ARBITRATION HAS BEEN FILED, BUT THE FA HAS NOT BEEN NAMED IN THE ARBITRATION.
- Allegations: CUSTOMER ALLEGED FA MADE UNSUITABLE INVESTMENT.
- Damage Amount Requested: $128,524.00
- Broker Comment: UPON INVESTIGATION THE COMPLAINT WAS FOUND TO BE WITHOUT MERIT AND WAS DENIED.
- Allegations: CLIENT ALLEGES THAT THE FA FAILED TO FOLLOW INSTRUCTIONS AND INVESTED THE CLIENT’S ASSETS IN UNSUITABLE INVESTMENTS.
- Damage Amount Requested: $6,800,000.00
Allegations: THE CUSTOMER, THROUGH HER ATTORNEY, ALLEGES UNSUITABLE INVESTMENT RECOMMENDATIONS REGARDING THE USE OF MARGIN.
Broker Comment: CLIENT WAS OVERPAID ON CLOSING OF ACCOUNT. COLLECTION MATTER OPENED AND CLIENT COUNTERED WITH CLAIM OF UNSUITABILITY. MATTER WAS SETTLED BY PAYMENT BY CLIENT TO MERRILL LYNCH.
- Allegations: THE CUSTOMER ALLEGES UNSUITABLE INVESTMENT RECOMMENDATIONS AND MISREPRESENTATION REGARDING THE RISKS AND LIQUIDITY OF HEDGE FUNDS.
- Broker Comment: MERRILL LYNCH FOUND [CUSTOMER’S] CLAIMS TO BE WITHOUT MERIT.
One can make out what the article was all about. Here’s the timeline of what happened in this case –
- Patrick J Dwyer, a top advisor at Merrill Lynch, wants to remove multiple consumer complaints against him at any cost.
- He files a suit against FINRA to expunge his name from any document which is critical of his conduct.
- He successfully managed to expunge complaints against him
- Arbitrators Gave Merrill Broker a Victory that Courts Denied Him
- Finra Fights to Overturn Merrill Broker’s Expungement Victory
- FINRA Accuses High-Profile Miami Broker of Misleading Arbitration Panel
- Floridian Who Wants to Litigate in Secrecy Finds California a Desirable Venue
Now since you’re wondering why I’m writing about Patrick J Dwyer after 4 years of this case, here’s the inside story –
The court ruled in favor of FINRA. Here are the preliminary comments and analysis –
The Court rejects plaintiff’s argument that this is an improper motion for reconsideration. Neither party has ever moved to amend the case caption, and the Court has not issued a ruling as to the issue of the caption. Plaintiff’s previous motion to seal and proceed anonymously did not request such relief. Indeed, at the hearing on that motion, the Court expressly noted that “there is no motion before me to change the name and the caption of this case.” In fact, the court was somewhat surprised that, throughout the course of this litigation, neither defendant FINRA nor the State of California appeared to oppose Plaintiff Dwyer’s effort to litigate this case anonymously. As the court stated in its June 30, 2015 ruling denying Plaintiff Dwyer’s request for expungement: “This case was filed under the name John Doe v. Financial Industry Regulatory Authority. Although plaintiff never requested that he be allowed to file under a pseudonym, defendants did not object to plaintiff being allowed to continue under the pseudonym ‘John Doe’ instead of under his real name. In fact, at several hearings, defense counsel specifically stated that they were not contesting the ability of plaintiff to continue this case under the caption ‘John Doe v. FINRA.’ ”
Defendant requests that the Court issue an order amending the casecaption to “Patrick J. Dwyer v. Financial Industry Regulatory Authority,Inc.” Defendants seek to amend the caption of the pleadings in this action so to reflect plaintiff’s true name. Plaintiff appears to be concerned that revealing his name in this action will publicly disclose that customer complaints were made against him. However, plaintiff appears to concede that these complaints are already publicly available. It appears that plaintiff’s (Patrick J Dwyer) main objection at this stage in the litigation as that revealing his name will publicly disclose that he sought – unsuccessfully – to have the complaints against him expunged. This Court has already ruled against plaintiff Patrick J Dwyer, finding that “the equities weigh heavily against expungement of Plaintiff Patrick J Dwyer’s record.” In addition, Mr. Dwyer’s name has already appeared in the MetNews’ press coverage of this case.
This action is no different than any other action alleging defamation or seeking to expunge FINRA complaints. Plaintiff fails to show that captions in such actions typically include redacted names. The mere fact that plaintiff is a broker and that the complaints against him are embarrassing – or that it is embarrassing that he unsuccessfully sought to have the complaints removed – are not sufficient reasons to override the right of public access to court records.
There are two basic problems with Plaintiff’s argument. First, there are no “special circumstances” in this case in which Plaintiff J Dwyer’s “need for anonymity outweighs prejudice to the opposing party and the public’s interest in knowing the party’s identity.” Plaintiff Patrick J Dwyer has not presented any evidence of damages that warranted expungement of the complaints against him: “First, as indicated above, there is no evidence that the seven complaints against plaintiff are “meritless.” Second, plaintiff’s argument that a prospective investor “will assume” that Plaintiff Dwyer is inferior to another financial advisor who has no complaints on BrokerCheck is itself an assumption. Lastly, this assumption is belied by the undisputed fact that plaintiff is in the top 0.01% of all financial brokers with over $2.5 billion in assets. Perhaps Plaintiff Dwyer is arguing that, without the complaints on BrokerCheck, he would be in the top 0.001% of all brokers, instead of merely the top 0.01% of all brokers . However, once again, plaintiff presents no evidence to support this assumption.”
Thus, after presenting no evidence of harm from the seven complaints he wanted expunged, plaintiff Patrick J Dwyer now wants the Court to presume harm if potential investors or the general public became aware that Plaintiff Dwyer tried to have these complaints expunged. That is not a “special circumstance” warranting anonymity.
Second, this Court has already denied Plaintiff Dwyer’s request for expungement. In other words, Plaintiff Dwyer has not achieved success in this lawsuit. Thus, Plaintiff’s argument that “any success achieved in the lawsuit would be virtually pointless” if the caption reflected his real name posits a counter-factual and is belied by the results of this actions. Although plaintiff may wish anonymity, this Court finds that it is in the public’s interest to know that a court of competent jurisdiction – after weighing all the evidence at trial – found against Plaintiff Dwyer.
Defendants’ motion to change the case caption to reflect Plainitff Dwyer’s true name is GRANTED.
So what did Patrick J Dwyer do ?
Well, the court ruling didn’t stop Patrick J Dwyer to pursue the removal of these consumer complaints, and do whatever it took to deliver results.
A Reputation Management agency was promptly hired to do the deed. Money was spent to file fake copyright takedown notices against these consumer complaints, by planting and backdating the original complaints on a fake website.
Here is one of the fake copyright takedown notices – https://www.lumendatabase.org/notices/12669588
As it stands, this illegal method resulted in metnews.com , among other consumer complaints filed against Patrick J Dwyer to be removed. For a while, this incident was revealed at www.webactivism.com , an investigative blog dedicated to exposing such fraudulent DMCA notices. However, even that report was later removed for reasons unknown. However, here’s a screenshot of that article in partial (acquired from archive.org) –
Finally, here are some totally warranted comments on Patrick J Dwyer published at/by Metnews.com by ROGER M. GRACE , the author of the original post which was removed. He published this after he was forced to remove the original article –
- The advisor is Patrick J. Dwyer who, as I noted here yesterday, wants a court to order the Financial Industry Regulatory Authority (“FINRA”) to remove from its online database seven complaints filed against him by customers. He filed his action as “John Doe” and wanted the public file to contain only papers which have had all references to him by his real name redacted.
- It is easily understood why Dwyer’s lawyers would think there’s a good chance that expungement—the falsification of records through omission—would be granted here. Less and less do California courts view expungement as an “extraordinary remedy.” Pretending that something that did happen didn’t is becoming commonplace.
- Labeling Dwyer or anyone else “Doe” whose real name is not Doe contravenes the public’s interest in access to information about court proceedings and should not be permitted, except in those rare instances where decency mandates nondisclosure.
- The footnote speaks of parties litigating anonymously to protect “legitimate” privacy rights. This connotes something more than a plaintiff’s mere desire for anonymity, as in Dwyer’s case. He’s not a minor, a victim of a sex act, or in some other class which has traditionally been shielded from exposure of identity. He’s a financial advisor whose preference is that his true name not be used in the caption because he doesn’t want it known that he brought an action to have complaints against him purged from a website.
- Why would a Miami investment advisor Patrick J Dwyer bring an action in the Los Angeles Superior Court that could just as well have been brought in Florida?