REPRESENTATIVE MATTERS

FINRA Arbitration No. 09-05218, decided June 8, 2010. Case brought by bond trading firm seeking to rescind a bond trade 4 ½ years after the  trade date, but within the 6-year eligibility rule and Ohio 6-year statute of limitations on  contract, on the ground of "mutual mistake" under Ohio law. Mr. Gelber's client, another  bond trading firm, sold the bond in a riskless principal transaction. Each side had access,  at the time of the trade, to information published by Bloomberg. There was testimony that  Bloomberg had omitted an applicable sinking fund schedule, creating the alleged "mutual  mistake" - an error in the value (but not the price) of the bond. After Mr. Gelber tried the case  at a full evidentiary hearing, the Ohio Panel ruled fully in favor of Mr. Gelber's client, ruling the  claims were "denied and dismissed, with prejudice."

In Re Optionable Securities Litigation. (June 15, 2009). After Judge Kaplan’s decision  at 577 F. Supp.2d 681 (S.D.N.Y 2008) dismissing the class action, plaintiffs moved  under Rule 60(b) to reopen the case alleging “newly discovered evidence”. After  reviewing the briefs of the parties and hearing oral argument, Judge Paul Crotty, who  was assigned this aspect of the case, denied the motion, and thus permanently closed  the door on the class action. Judge Crotty’s decision can be reviewed by clicking here. securities.stanford.edu/1037/OPBL_01/2009615_r01m_073753.pdf

In re Optionable Securities Litigation,  577 F. Supp.2d 681 (S.D.N.Y 2008)
 In this federal securities fraud class action, Mr. Gelber represented the former CEO of  Optionable, Inc (“OPBL”). The Complaint alleged that OPBL and various individuals  defrauded the market by: (i) misrepresenting how much OPBL’s largest customer, Bank  of Montreal (BMO) affected OPBL’s business (ii) misrepresenting the viability of OPEX,  OPBL’s natural gas trading platform (iii) misrepresenting the nature of an agreement OPBL  had with NYMEX and (iv) failing to disclose the CEO’s alleged old non-securities related  convictions, among other allegations. After full briefing, the Court upheld the arguments  made by Mr. Gelber and other defense counsel on all points and dismissed the Complaint,  in full, as to all defendants. The Court expressly ruled that OPBL had no obligation to disclose  the old convictions because (1) Item 401 of Regulation S-B did not require disclosure and (2)  such disclosure was not, in any event, necessary “to make other statements not false or  misleading”. Plaintiffs failed to meet the judge's deadline to amend the complaint and instead  sought discovery, in violation of the PSLRA. On October 20, 2008, Judge Kaplan entered final  judgment of dismissal in favor of all Defendants.

SEC Opinion and Order (Release No.34-55988), decided June 29, 2007.
Mr. Gelber’s client, the president of a brokerage firm, appealed a decision of the NASD’s  National Adjudicatory Council (“NAC”) permanently barring him from the securities industry in all capacities and ordering him vicariously liable for "restitution" in excess of $3.6 million dollars, for his alleged violations of various NASD rules and the anti-fraud provisions of the  federal securities laws. After carefully evaluating the arguments of the parties, the SEC  found for Mr. Gelber's client. The SEC issued an Order vacating all sanctions, holding that  Mr. Gelber’s client could not be liable for Section 10b or Rule 10b-5 violations, that certain  of the alleged NASD Rule violations were not chargeable to Mr. Gelber’s client and  remanding the case to NASD for re-determination in light of the SEC ruling.

NASD Arbitration No. 02-00641, decided November 2, 2006. 
Case brought by eight former Prudential brokers, part of a group within Pru created  to market to high net worth clients, for breach of contract, defamation,  tortious interference and fraud. Prudential counterclaimed for unpaid portions of forgivable loans among other things. Six of the eight settled; one defaulted. The remaining broker retained Mr. Gelber in early 2005, just weeks before  hearings were  to commence. 

Prudential sought more than $900,000.00, alleging a loan plus interest, against  Mr. Gelber’s client . The Panel not only denied Prudential’s claims, but awarded  Mr. Gelber’s client $625,000.00 in compensatory damages and also assessed  100% of the $44,700.00 remaining forum fees solely against Prudential.

LoPresti v. Massachusetss Mutual Life Ins. Co., et al., (2004 NY Slip Op. 51223; Sup. Ct. Kings Co.) (see also, The Law Report, Vol. 7, No. 5 [Jan. 2005]). 
This case was a New York Donnelly Act (state antitrust) action against multiple  parties, including Mr. Gelber's securities brokerage firm client, over 12b-1 fees  on 403(b) plans (an insurance product) sold to certain hospital employees. Mr.  Gelber, in conjunction with the other defendants, prevailed on a motion to dismiss.

Sefton v. Hewitt, 4 Misc.3d 1001(A) (N.Y. City Civ. Ct. Kings Co. 2004); 
Mr. Gelber successfully defended an architect at trial, defeating various 
contract / professional negligence claims. 

NASD Arbitration No. 03-07013, decided 2005.
An investor seeking six figure damages from losses sustained in four municipal  bond purchases brought this case against Mr. Gelber’s clients, a brokerage firm  and the president of the firm personally. The claimant alleged securities fraud,  common law fraud, negligence and breach of fiduciary duty. Mr. Gelber defended  the claim at a full evidentiary arbitral hearing in 2005. The 2005 decision denied  the claims in their entirety, awarding claimant zero.

Blatt et al. v. Muse Technologies, Inc., et al., 2002 U.S. Dist. LEXIS 18466; Fed. Sec. L. Rep. (CCH) ¶92,004 (D.Mass August 27, 2002)
In defending this federal securities fraud class action suit against a public 
company and its officers, Mr. Gelber, representing the company and two 
officers, succeeded in effectuating a global settlement, after mediation, of 
only 12% of the liability policy, a victory for the defense.

NASD Arbitration No. 01-00732, decided May 24, 2002.
Mr. Gelber represented an individual investor claiming against a brokerage  firm and four individuals alleging unauthorized trading, excessive mark-ups  and unauthorized use of margin, among other things. Respondents argued  that Mr. Gelber’s client ratified the transactions and assumed all the risks of  trading. The case was particularly hard fought, with respondents making  multiple motions, including a motion to dismiss. There were 18 hearing  sessions. The Panel awarded Mr. Gelber’s client a six figure compensatory  damage recovery and also awarded $25,000.00 in punitive damages and  assessed all of the forum fees against Respondents.

Barry Diller et ano. v. Steurken et al., 712 N.Y.S.2d 311 (Sup. Ct. N.Y. Co. 2000) In this publicly reported cyber-squatting case, Mr. Gelber's clients had agreed  to voluntarily return the plaintiff's "name", but plaintiff, represented by a premier 
New York law firm, sought substantial attorneys' fees. Mr. Gelber defeated that  effort on motion.

Advest, Inc. v. Wachtel, et al. 235 Conn., 559, 668 A.D.2d 367 (1995);

Manasse v. Prudential-Bache Securities, Sec. Reg. L. Rep (BNA) Vol. 27, p.1295 (W.D. Pa. 7/20/95);

International Customs Associates, Inc. v. Ford Motor Company, 893 F. Supp. 1251 (S.D.N.Y. 1995);

Dean Witter Reynold’s, Inc. v. Prouse831 F. Supp. 328 (S.D.N.Y. 1993);

Duke v. Touche Ross & Co., 765 F. Supp. 69 (S.D.N.Y. 1991);

Treacy v. Simmons, Fed. Sec. L. Rep. ¶95,920 at 99,567 (S.D.N.Y. 1991);

Farr v. Shearson Lehman Hutton, Inc., 755 F. Supp. 1219 (S.D.N.Y 1991);

Perez-Rubio v. Wyckoff, 718 F. Supp. 217 (S.D.N.Y 1989);

Bernstein v. IDT Corp., 638 F. Supp. 916 (S.D.N.Y 1986);

Northwestern National Bank of Minneapolis v. Fox & Co., 102 F.R.D. 507
(S.D.N.Y 1984);

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