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Award
Finra office of dispute resolution
in the matter of the arbitration between:
Respondent
Robert thomas ciaccio, jr.
Mark andrew miranda
Rubin anthony tollinchi nature of the dispute: customer vs. associated persons
Representation of parties
For claimant timothy west: jennifer tarr and mark gaylord, esq. , cold spring advisory group, new york, new york.
Respondent robert thomas ciaccio, jr. appeared pro se. respondent mark andrew miranda appeared pro se. respondent rubin anthony tollinchi appeared pro se.
Case information
Statement of claim filed on or about: december 9, 2015.
Timothy west signed the submission agreement: december 9, 2015.
Joint statement of answer filed by respondents on or about: february 4, 2016. robert thomas ciaccio, jr signed the submission agreement: february 12, 2016. rubin anthony tollinchi signed the submission agreement: february 22, 2016. mark andrew miranda signed the submission agreement: february 24, 2016.
Case summary
Claimant asserted the following causes of action: unsuitability and breach of fiduciary duty.
The cause of action relates to the purchase of various securities.
Unless specifically admitted in the statement of answer, respondents denied the allegations made in the statement of claim and asserted various affirmative defenses.
Case number: 15-03326
hearing site: new york, new york
Relief requested
in the statement of claim, claimant requested that the arbitrator render an award in favor of claimant and against all respondents, jointly and severally, in the principal amount of no less than $86, 524.00, costs in the amount of $5, 000.00, as well as legal fees, expert testimony fees and forum fees, plus such other and further relief as the arbitrator deems appropriate, including punitive damages.
In the statement of answer, respondents requested an award (a) dismissing the statement of claim and the claims contained therein as to them, and each of them, with prejudice; (b) ordering expungement or striking all reference to this arbitration from the registration records maintained by finra central registration depository (“crd”) of robert t. ciaccio, jr. , mark miranda and rubin tollinchi, severally, with the understanding that is pursuant to finra notices to members 99-09, 90-54 and 04-16 and finra rules 2080 and 12805, or confirming an arbitration.
At the hearing, respondents requested that cold spring advisory, and its employees, principals and agents be referred to any appropriate disciplinary or regulatory authority for collusion and other wrongdoings.
Other issues considered and decided
The arbitrator acknowledges that she has read the pleadings and other materials filed by the parties.
Cold spring advisory is not a member finra; therefore, the arbitrator made no determination with respect to respondents’ request for a disciplinary or regulatory referral.
In recommending expungement, the arbitrator relied on the following documentary or other evidence: statement of claim, respondents’ statement of answer, robert thomas ciaccio, jr. ’s brokercheck report, mark andrew miranda’s brokercheck report, rubin anthony tollinchi’s brokercheck report, respondents’ exhibits, claimant’s new account application, claimant’s new account package, claimant’s forensic report, and claimant and respondents’ testimony.
The arbitrator noted that the respondents did not previously file claims requesting expungement of the same disclosures in the central registration depository (“crd”).
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 arbitrator has decided in full and final resolution of the issues submitted for determination as follows:
1. claimant’s claim is denied in its entirety.
2. the arbitrator recommends the expungement of all references to the above - captioned arbitration from registration records maintained by the central registration depository (“crd”) , for robert thomas ciaccio, jr. (crd # 3039424) , with the understanding that, pursuant to notice to members 04-16, robert thomas ciaccio, jr. must obtain confirmation from a court of competent jurisdiction before the crd will execute the expungement directive.
Unless specifically waived in writing by finra, parties seeking judicial confirmation of an arbitration award containing expungement relief must name finra as an additional party and serve finra with all appropriate documents.
3. the arbitrator recommends the expungement of all references to the above - captioned arbitration from registration records maintained by the central registration depository (“crd”) , for mark andrew miranda (crd # 2793426) , with the understanding that, pursuant to notice to members 04-16, mark andrew miranda must obtain confirmation from a court of competent jurisdiction before the crd will execute the expungement directive.
Unless specifically waived in writing by finra, parties seeking judicial confirmation of an arbitration award containing expungement relief must name finra as an additional party and serve finra with all appropriate documents.
4. the arbitrator recommends the expungement of all references to the above - captioned arbitration from registration records maintained by the central registration depository (“crd”) , for rubin anthony tollinchi (crd # 5396377) , with the understanding that, pursuant to notice to members 04-16, rubin anthony tollinchi must obtain confirmation from a court of competent jurisdiction before the crd will execute the expungement directive.
Unless specifically waived in writing by finra, parties seeking judicial confirmation of an arbitration award containing expungement relief must name finra as an additional party and serve finra with all appropriate documents.
Pursuant to rule 12805 of the code, the arbitrator has made the following rule 2080 affirmative findings of fact:
The claim, allegation, or information is factually impossible or clearly erroneous, and the claim, allegation, or information is false.
The arbitrator has made the above rule 2080 findings based on the following reasons:
Claim of unsuitability: the evidence and testimony did not establish that based on claimant’s age, educational background, employment background, indication of his risk tolerance, his investment strategy, as well as his financial situation and time horizon, that the transactions or investment strategy were not suitable for the claimant, even though he did not have prior investment experience. the evidence and testimony did not prove that the respondents solicited over - concentrated positions and a risky options strategy which were not suitable to the claimant the evidence shows that claimant confirmed his investment strategies and risk tolerance in writing, not only with respondents and their brokerage firm, obsidian, but also with a second firm. claimant transferred his account from obsidian to ekn securities. at ekn, he lost significantly more than he lost at obsidian. the new account information applications at both obsidian and ekn, and associated contracts signed with each brokerage firm, contained basically the same information as to claimant’s risk tolerance and investment strategy. those documents also clearly state “in bold” that the products offered involve investment risk including possible loss of principal, and state “that client has read all the documents and agrees to all of the terms and conditions thereof”. claimant testified that he duly signed all such documents. claimant testified that no one at obsidian told him not to read those documents before he signed them.
Breach of fiduciary duty: claimant did not prove that it was a breach of fiduciary duty by respondents to charge $12, 932.00 in commissions while the account sustained an approximate $86, 000.00 loss. indeed, claimant’s expert witness testified that the amount of the commission was no higher than 3%, well within the industry norms. he also testified that he did not detect any churning activities when analyzing the trades and transactions in claimant’s account with obsidian. no other instances of breach of fiduciary duty by the respondents were proved in this hearing, either by written evidence or testimony. the circumstances described surrounding the opening of the claimant’s account with obsidian did not establish any misconduct or breach of fiduciary duty.
5. any and all claims for relief not specifically addressed herein, are denied.