Pro se Plaintiff Jan Harris is a serial litigant.  In 2005, Plaintiff purchased a total of 2,420,000 shares of Bancorp International Group Inc. ("Bancorp" or "the Company") for $17,236.53.  Since that time, Plaintiff has litigated the transaction in at least seven different arbitrations, three federal actions, and one state court action-all without success.  In 2020, Judge Swain dismissed claims brought against Defendant here, holding that any claim was subject to a binding arbitration agreement.  The United States Court of Appeals for the Second Circuit affirmed the dismissal of the claims.  Plaintiff now sues again, bringing this action for breach of fiduciary duty and breach of trust, alleging that Defendant TD Ameritrade Clearing Inc. violated its fiduciary duty to refund her for the purchase of shares of the company.  Defendant TD Ameritrade Clearing Inc. again has moved to dismiss, based on the binding arbitration agreement and principles of res judicata.  [ECF No. 16].  For the reasons stated herein, Defendant's motion is granted. 

After Plaintiff's claims were denied in their entirety on the merits in arbitration, Plaintiff "refilled" her claims in the Southern District of New York in 2017.  SAC ¶ 56; Harris v. TD Ameritrade, Inc. et al., No. 17-cv-06033(LTS)(BCM), ECF No. 1.  In her 2017 complaint, Plaintiff brought claims against Scottrade and TDAC for an accounting and trespass, arguing that they had interfered with her "constitutionally protected right" to "exclusive possession" of the Bancorp shares.  See generally, No. 17-cv-06033(LTS)(BCM), ECF No. 1.  TDAC moved to compel arbitration.  SAC ¶ 56.  Magistrate Judge Moses issued a report and recommendation that recommended, in part, Judge Swain compel arbitration since FINRA was the exclusive forum in which to pursue Plaintiff's claims arising from the Bancorp transaction.  Harris v. TD Ameritrade, Inc., 338 F. Supp. 3d 170, 183-185 (S.D.N.Y. Aug. 14, 2018).  Over Plaintiff's objections, Judge Swain adopted Magistrate Judge Moses' Report, compelled arbitration, and stayed the case.  Harris v. TD Ameritrade, Inc., 338 F. Supp. 3d 170 (S.D.N.Y. Sept. 24, 2018).  After Plaintiff's motion to reconsider was denied by Judge Swain, Plaintiff initiated another FINRA arbitration against TDAC.  That arbitration also was denied.  [ECF No. 17-14].  Plaintiff then sought leave to amend her complaint in the stayed federal case, and to seek a declaratory judgment that the FINRA arbitrations did not preclude her from pursuing her claims in federal court.  See Harris v. TD Ameritrade Inc., 2020 WL 3073235 (S.D.N.Y. Jun. 10, 2020).  After Plaintiff's requests were denied and Plaintiff's claims were dismissed without prejudice to be pursued in arbitration, id. at *3, Plaintiff appealed the decision to the Second Circuit.  The Second Circuit affirmed, "agree[ing] with the district court that Harris was required to arbitrate her claims against" TDAC.  Harris v. TD Ameritrade, Inc., 837 F. App'x. 841 (2d Cir. 2021). 

Shortly after the Second Circuit affirmed the prior case, Plaintiff initiated a seventh FINRA arbitration against TDAC, by her own account "seeking the same relief [she is] seeking in this [case]," SAC ¶ 68, namely, breach of fiduciary duty and breach of trust claims.  SAC ¶ 4.  When FINRA again denied those claims pursuant to Rule 12203(a) as ineligible for arbitration, SAC, Ex. 9, Plaintiff commenced this suit.  SAC ¶¶ 68-69.

In a Financial Industry Regulatory Authority ("FINRA") Arbitration Statement of Claim filed in December 2010, Jan E. Harris-Kimball ("Claimant Harris-Kimball"), proceeding pro se, sought $12,000 in compensatory damages as the result of an alleged breach of contract arising out of Respondent Scottrade's failure to deliver to her accounts share certificates in the common shares of Bancorp International Group, Inc. ("BCIT"). In the Matter of the FINRA Arbitration Between Jan E. Harris-Kimball, Jan E. Harris-Kimball ROTH IRA, and Jan E. Harris-Kimball Traditional IRA, Claimants, vs. Scottrade Inc., a wholly-owned subsidiary of Scottrade Financial Services, Inc., Respondent (FINRA Arbitration 11-00018, September 20, 2011).

[F]rom at least in or about 2020 through at least in or about March 2020, CABRERA, HERNANDEZ, and RAMIREZ engaged in a scheme to deceive U.S. banks and a leading cryptocurrency exchange platform (the "Cryptocurrency Exchange") by purchasing more than $4 million in cryptocurrency and then falsely claiming that the cryptocurrency purchase transactions were unauthorized, deceiving the U.S. banks and the Cryptocurrency Exchange into reversing those transactions and redepositing the money into the bank accounts that the Defendants controlled.  The Defendants then withdrew the money from the bank accounts.

To effect this scheme, the Defendants opened accounts with the Cryptocurrency Exchange, frequently using photos of fake U.S. passports, fake drivers' licenses, and stolen personal identifying information.  The Cryptocurrency Exchange accounts were linked to bank accounts that the Defendants controlled.  The Defendants used money that had been deposited into the linked bank accounts, frequently through a series of cash deposits made using ATMs, to purchase cryptocurrency.  That cryptocurrency was then quickly transferred to other cryptocurrency wallets outside of the Cryptocurrency Exchange that were controlled by the Defendants and their co-conspirators.  After the cryptocurrency was transferred, the Defendants made telephone calls to the U.S. banks during which they falsely represented that the cryptocurrency purchases were unauthorized, leading the banks to reverse the transactions. 

The operation of this scheme by the Defendants resulted in U.S. banks processing more than $4 million in fraudulent reversals and the Cryptocurrency Exchange losing more than $3.5 million worth of cryptocurrency. 

Between 2016 and 2020, RUSSELL DWAYNE LEWIS engaged in a series of brazen schemes to misrepresent his identity, his wealth, and his professional and personal background in order to defraud multiple individuals and at least one corporate entity.  For years, LEWIS lived under assumed names, using the birth date of a real individual with the name of one of his aliases, and utilizing the social security number of yet another individual.  As opportunities arose, LEWIS told increasingly outrageous lies to individuals around him, including a close friend of many years, an individual who turned to him for his claimed expertise in astrology, and representatives of a major company he falsely purported to intend to purchase.

In one scheme, LEWIS befriended an individual ("Victim-1"), claiming to Victim-1 that he was a billionaire businessman.  As part of their increasingly close friendship, and believing that LEWIS was a successful businessman, Victim-1 solicited professional and investment advice from LEWIS.  In response, and with greater frequency over time, LEWIS solicited "investments" from Victim-1 in the tens and then hundreds of thousands of dollars.  Eventually, Victim-1 went to work for LEWIS, working to explore opportunities in business and finance to assist LEWIS in identifying investment opportunities.  LEWIS continued to ask Victim-1 for money, which was characterized as investments and/or loans, and which Victim-1 routinely provided.  LEWIS had Victim-1 seek out investment opportunities, only to repeatedly back out of prospective deals at the last moment, claiming difficulties in accessing his vast wealth.  By 2020, Victim-1 had transferred more than $3 million of loan and/or investment funds to LEWIS in less than three years, virtually none of which was ever paid back.

In addition to his purported business activities, LEWIS also separately charged some individuals for astrological readings and analyses.  One such individual was a widow with four children who met LEWIS in or about 2018 ("Victim-2").  Victim-2 continued to have contact with LEWIS in the coming years, including for astrological readings.  In 2020, over the course of several months, LEWIS defrauded Victim-2 out of approximately $555,000 by pressuring her into paying him money for a purported real estate investment opportunity.  In truth, there was no such investment opportunity, and LEWIS spent Victim-2's money on personal expenses, including office supplies that facilitated and promoted LEWIS's other schemes.  Victim-2 received back virtually none of her "investment."

Finally, in August and September 2020, LEWIS fraudulently attempted to acquire a corporate entity in bankruptcy proceedings ("Corporation-1").  LEWIS made a purported all‑cash offer to purchase Corporation-1 for $290 million, which resulted in weeks of due diligence processes, legal discussions, and negotiations-including through which Getz and others had access to certain of Corporation-1's internal business records and materials.  Corporation-1 and its representatives dedicated significant time and resources to the purported offer, based on the false premise that LEWIS intended to, and could, pay hundreds of millions of dollars for Corporation‑1.  In fact, LEWIS had no intention or ability to purchase Corportion-1, and ultimately he backed out of the deal.

Between July 2021 and September 2021, Kadmon, which, prior to its acquisition by Sanofi, was a publicly-traded biopharmaceutical company traded under the ticker symbol "KDMN" on the NASDAQ, engaged GLASSNER and the Consulting Firm to provide executive compensation consulting services related to a potential acquisition.  In connection with this engagement, GLASSNER had access to material, non-public information, which he misappropriated and, in violation of the duties that he owed to Kadmon, used to trade Kadmon stock and call options between on or about August 3, 2021, and on or about August 23, 2021.  On September 8, 2021, Kadmon publicly announced that it had agreed to be acquired by Sanofi for a per-share price significantly above the share price at which Kadmon was trading.  That day, Kadmon's share price increased by approximately 71% and GLASSNER ultimately profited $368,000 on the Kadmon stock and call options he had previously purchased. 

As part of his plea agreement, GLASSNER has agreed to forfeit $368,000. 

[S]prague participated in a tech support scam that operated from approximately January 2018 through April 2019, which defrauded numerous elderly victims. The conspirators, some of whom were located overseas, falsely represented themselves to be online computer tech support personnel to obtain money from elderly victims who believed that they were paying for necessary computer repairs or installing computer security software.  After the victim agreed to make payment to the telemarketer for purported tech support, access to the victim's computer occurred while the victim believed that a legitimate service had been received. While conspirators were remotely connected to each victim's computer, the conspirators were able to access each victim's personal information, including access to the victim's financial accounts. 

Subsequently, the conspirators contacted each victim to offer purported refunds to the victims for the purchase of the original service. The telemarketers instructed each victim to allow remote access to the computer and then instructed the victim to log into their online banking platform to allow for a direct deposit of the refund. Upon having access to the victim's computer, the telemarketer falsely represented that a deposit had been made into the victim's account and would purport to accidentally deposit large amounts of money into the victim's account.  Conspirators then instructed the victims to return the false overpayment in the form of cash or cashier's checks via U.S. mail and other parcel delivery services to Sprague. 

During her participation in the scheme, Sprague opened various bank accounts in which she was the sole signor on each account. She also opened several post office boxes at authorized depositories in Cape Coral. Sprague routinely deposited the victims' funds into her bank accounts before she disbursed and transferred the proceeds to other members of the conspiracy. Sprague often initiated international wire transfers, that had been funded with victims' funds, to her co-conspirators. She retained a portion of the fraud proceeds to use for her own personal benefit. Sprague received at least $250,000 in proceeds from the fraud.

After the victims conducted cash withdrawals or purchased cashier's checks as form of repayment to the purported technology support company and mailed the money to Sprague, the victims discovered that the refund and purported overpayment were false. During the remote access, the telemarketer often transferred monies from the victim's savings account or line of credit to the victim's checking account to give the fraudulent appearance that the victim's checking account was credited for the refund and purported overpayment.

[S]ingh stole hundreds of thousands of dollars in U.S. Savings Bonds from an elderly woman for whom she provided home health services.  The victim had purchased the bonds for her grandchildren and other relatives.  After the victim died, Singh contacted Glen Campbell, also known as "Nick," who enlisted the help of another individual to redeem the stolen bonds at a financial institution and provide Singh and Campbell with a portion of the proceeds.  Between October 2020 and January 2021, as part of an undercover investigation, law enforcement coordinated the purchase of more than 100 savings bonds, with face values ranging from $50 to $1,000, from Singh and Campbell.  Campbell traveled to Connecticut to complete the transactions.

Singh and Campbell were arrested on January 29, 2021.  In June and July 2021, Singh attempted to obstruct the investigation and prosecution of this matter by offering to pay Campbell if he agreed to lie and provide false testimony.  Singh has been detained since August 4, 2021.

Judge Dooley scheduled sentencing for November 28, at which time Singh faces a maximum term of imprisonment of five years.

Campbell pleaded guilty to the same charge on June 15, 2022, and awaits sentencing.

[C]oelho recruited investors for a business opportunity that purportedly involved Coelho using investor funds to purchase event tickets and then resell those tickets to third parties at a profit. Coelho, who held himself out to be a lawyer and a Wharton School of Business graduate, used his association with persons and entities in the entertainment industry to give the appearance of the means and ability to acquire tickets to certain high-profile events (which could then be resold). Instead of using investors' money to further the purported business, however, Coelho primarily used the funds for personal expenses, entertainment, and cash withdrawals. Coelho created fraudulent documents, including wire transfer receipts, to convince his victims the funds were properly invested and to continue to induce new victim investments. During the course of the scheme, Coelho defrauded three victims out of a total of more than $1.8 million.

At the time of his arrest, Coelho, formerly known as Thomas Jurewitz, had been arrested more than 15 times for fraud-related incidents. He had three outstanding arrest warrants, dating back 20 years, under his prior name. He also faced several civil judgments, largely from failed business ventures.

[F]rom 2014 to 2016, Accettola solicited investments from associates and friends of friends. Accettola offered investors abnormally high short-term returns. Accettola told investors that the money they invested with him was in support of various commercial construction projects in Michigan and Florida. Many of the commercial construction projects that Accettola described to investors did not exist.  Specifically, Accettola solicited investments in support of purported work for a Michigan based manufacturing facility and claimed to be friends with the managing partner of the company.  In reality, Accettola had no connection to company nor was he friends with the managing partner.  In order to perpetuate his fraud, Accettola provided investors with fraudulent emails, contracts, payout schedules and other information purportedly from the company, the managing partner or other company employees.  Between 2014 and November 2016, Accettola defrauded investors of approximately $4,199,846.35. Accettola had a long history of cheating and deceiving people, having previously been convicted of sixteen fraud crimes between 1991 and 2019.

[F]rom April 2017 to August 2019, Watson and Northstar raised approximately $49.5 million from at least 350 investors through sales of securities to fund commercial real estate projects across the country. According to the SEC, Watson and Northstar told investors that they would personally invest 4% to 5% of the equity needed for these projects, which would have totaled approximately $2.8 million, when they actually invested only a small fraction of this amount. The SEC alleges that the false and misleading statements about Watson and Northstar's stake in the projects, or "skin in the game," were critical to investors.

[O]n February 20, 2020, Simmons and Bluefin Acquisition, LLC, a sham company he controlled, issued a phony press release announcing a proposed tender offer to acquire at least 35% of BlueLinx common stock for $24.50 a share, a significant premium over the stock's previous closing price. As alleged, the press release led to a spike in the price of BlueLinx shares, but Simmons was not able to capitalize on the price movement by selling options that he had purchased before the fake tender offer. According to the complaint, late the next day, minutes before his options were set to expire, Simmons issued a second press release to "confirm" the purported tender offer. This second press release, it is alleged, helped Simmons manipulate the price of BlueLinx stock for the second time in two days, allowing him to sell roughly half of his call options and make a small profit.

The SEC's complaint alleges that Simmons's press releases were materially misleading because he had not in fact commenced a tender offer and did not have the financial means to complete the transaction. According to the complaint, to give his purported tender offer the appearance of legitimacy and prolong the positive market reaction long enough to profit from it, Simmons filed false documents through the Commission's online Electronic Data Gathering and Retrieval (EDGAR) system suggesting that he had access to funds to complete the tender offer.

Noll-the CEO of Context Capital Partners-first joined the FINRA Board in August 2020, and has since served on its Executive; Finance, Operations and Technology; Management Compensation (as Chair); Nominating & Governance; and Regulatory Oversight committees. He joined Context Capital Partners in November 2019; prior to that, he was President and CEO of ConvergEx Group. From 2009 to 2013, Noll served as Executive Vice President, Transaction Services, NASDAQ OMX, Inc. in the U.S. and U.K., where he was responsible for all U.S./U.K. equity, options and futures exchanges. From 1994 to 2009, Noll was Managing Director with Susquehanna International Group; and from 1993 to 1994, was Assistant Vice President - Strategic Planning and New Product Development at the Philadelphia Stock Exchange. From 1990 to 1993, he was Manager, Strategic Planning at the Chicago Board Options Exchange. Noll is the Chair of the Board of Trustees of Franklin and Marshall College, where he had earned a bachelor's degree with a double major in government and economics; a member of the Board of Advisors of Owen Graduate School of Management at Vanderbilt University, where he had earned an MBA with a finance concentration; Chair of the Board of the Historical Society of Pennsylvania; and Trustee of the Pennsylvania Academy of Fine Arts.

Between September 4, 2019 and February 12, 2020, while associated with Merrill, Branson effected fourteen unauthorized transactions in three customer accounts held by the same family (Customer A) in violation of FINRA Rule 2010. Branson also exercised discretionary authority with respect to five trades in Customer A's accounts as well as six trades in two additional customers' accounts without obtaining prior written authorization from the customers and without having the accounts accepted as discretionary accounts by Merrill, in violation of FINRA Rules 3260(b) and 2010.

Between January 2017 and November 2018, while he was registered through Network 1, Desando recommended an excessive and unsuitable level of trading in the account of one customer, a sheriffs deputy with limited investment experience. During the relevant period, Desando recommended that the customer place 180 trades in his account, and the customer relied on Desando' s advice and accepted his recommendations. Although the customer's account had an average equity of approximately $30,700, Desando recommended trades with a total principal value of more than $1,700,000. These trades resulted in an annualized turnover rate of more than 28 and collectively caused the customer to pay approximately $37,000 in commissions and other trading costs. Desando's recommended trades resulted in an annualized cost-to-equity ratio of 69 percent, meaning that the customer's account would have had to grow by 69 percent annually just to break even. 

As a result, Desando's recommended securities transactions made it virtually impossible for the customer to realize a positive return and were excessive and unsuitable given the customer's investment profile. Therefore, Desando violated FINRA Rules 2111 and 2010. 

Between January 2017 and October 2018, while he was registered through Arive, Petrou engaged in excessive and unsuitable trading, including the use of margin, in the account of Customer A. Customer A was a retired pharmacist from Georgia and was 67 years old when he opened his account at Arive. Customer A had limited knowledge of the stock market. 

During the relevant period, Petrou recommended that Customer A place 73 trades-all on margin-in his account, and Customer A accepted Petrou's recommendations. Collectively, the trades that Petrou recommended caused Customer A to pay $88,348.13 in commissions and trade costs and another $7,958.52 in margin interest for a total of $96,306.65. This trading resulted in a cost-to-equity ratio of more than 86 percent- meaning the customer's investments had to grow by more than 86 percent just to break even. Although Customer A's account had an average month-end equity of approximately $60,537.26, Petrou recommended purchases with a total principal value of approximately $2,441,587.34, which resulted in an annualized turnover rate in the account of 22. As a result of Petrou's unsuitable recommendations, Customer A realized a loss of approximately $17,000. 

Petrou recommended securities transactions in Customer A's account that were excessive and unsuitable given the customer's investment profile. Therefore, Petrou violated FINRA Rules 2111 and 2010. 

From October 2014 through January 2020, Martinsen participated in private securities transactions (PSTs) by facilitating the sale of approximately $1,100,000 in alternative investments through 55 transactions with 57 firm customers without providing prior written notice to his firm, in violation of NASD Rule 3040, and FINRA Rules 3280 and 2010.

Additionally, from August 2014 through February 2021, Martinsen made at least 150 payments to 38 firm customers, in single or in multiple related payments, totaling approximately $400,000, to compensate them for losses associated with securities investments that Martinsen had recommended. By making these payments, which were not authorized by Centaurus, Martinsen shared in his customers' losses, in violation of FINRA Rules 2150(c) and 2010. 

In March 2016 and April 2017, Witt entered into two separate agreements through which he agreed to service certain customer accounts, including executing trades for those accounts, under joint representative codes (also known as a joint production numbers) that he shared with two retired representatives. The agreements set forth what percentages of the commissions Witt and the retired representatives would earn on trades placed using the joint representative codes. Many of the customers whose accounts were subject to the joint production agreements also had accounts that were not subject to the agreements. 

From May 2016 through November 2020, Witt placed a total of268 trades in accounts that were covered by the joint production agreements using his own personal representative code. Specifically, although the firm's system correctly prepopulated the trades with the applicable joint representative codes, Witt entered the 268 transactions at issue under his personal representative code. Witt negligently failed to verify whether the trade was made in an account that was subject to the joint production agreement. As a result, Morgan Stanley's trade confirmations for the 268 trades inaccurately reflected Witt's personal representative code instead of the joint representative codes that Witt shared with the retired representatives. 

Win's actions resulted in his receiving higher commissions from the 268 trades than what he was entitled to receive pursuant to the agreements. In February 2021, Morgan Stanley reimbursed the retired representatives. 

By causing Morgan Stanley to maintain inaccurate trade confirmations, Witt violated FINRA Rules 451 I and 2010. 

Between May 4, 2018, and June 29, 2018, CIG negligently failed to tell nine investors in two offerings related to GPB Capital Holdings, LLC (GPB Capital) that the issuers failed to timely make required filings with the Securities and Exchange Commission, including filing audited financial statements. By virtue of the foregoing, CIG violated FINRA Rule 2010.