When Dever left Oppenheimer, a damaging disclosure was placed on his Form U5 relating to the settlement between Massachusetts and Oppenheimer over Toussaint. It referred to sanctions against Dever, such as a requirement that he retake a licensing exam before working as a supervisor at another brokerage.
Magary, Dever's lawyer, says the confidentiality ruling prevents him from even discussing the Toussaint case with prospective new employers. He can only point to the U5 itself, which includes a response by him, in which he says he "repeatedly requested compliance support but it was never provided." He also says on the form that Oppenheimer denied his request for independent counsel while regulators were investigating the company.
An Oppenheimer spokesman said documents included within the panel's confidentiality order contain sensitive and proprietary information, such as data about employee compensation and customers. Releasing them, he said, would violate state and federal privacy laws, as well as client agreements.
The panel's order extends beyond such documents, however, to encompass the entire proceeding. Parties can agree to confidentiality of such information, but didn't in Dever's case. Lawyers question whether the panel in Dever's case had authority to impose the broad order of secrecy.
Guidance in a manual for Finra arbitrators says that arbitrators "should strive to accomplish the confidentiality sought [by parties] in the least restrictive manner possible." It instructs arbitrators not to reveal what they hear in proceedings, but says that provision should not be interpreted as "imposing a blanket of confidentiality on the parties."
The lawyer who represented Dever in arbitration, Stuart Meissner, is now showing that guidance to Finra panels in other cases early on, and asking for a commitment to follow it.
"After all that has happened on Wall Street, Finra arbitrations-where all investor and whistleblower-type claims are heard-should not be secretive Star Chambers," he said.
An arbitrator on the three-person panel declined to comment on the order. Two others didn't return calls requesting comment.
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