Lobaito v. Financial Industry Regulatory Authority, Inc. , 599 F. App'x 400 ( 2015 )

14-3641-cv
Lobaito v. Fin. Indus. Regulatory Auth., Inc.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 22nd day of April, two thousand fifteen.
PRESENT: JOHN M. WALKER, JR.,
REENA RAGGI,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________
JOSEPH LOBAITO, JR.,
Plaintiff-Appellant,
v. 14-3641-cv
FINANCIAL INDUSTRY REGULATORY
AUTHORITY, INC., FINRA,
Defendant-Appellee.
_____________________________________
FOR APPELLANT: Joseph Lobaito, Jr., pro se, Staten Island,
New York.
FOR APPELLEE: Suzanne Elizabeth Duddy, Financial
Industry Regulatory Authority, Inc.
(FINRA), Washington, D.C.
Appeal from a judgment of the United States District Court for the Southern District
of New York (George B. Daniels, Judge; Henry Pitman, Magistrate Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment entered on September 9, 2014, is AFFIRMED.
Appellant Joseph Lobaito, Jr., pro se, appeals from the dismissal of his action under
the Securities Exchange Act of 1934, 15 U.S.C. § 78a et seq., against the Financial Industry
Regulatory Authority, Inc. (“FINRA”) for the alleged violation of its own rules and
regulations in allowing a comment by his former employer to remain on his licenses
without substantiation. See Fed. R. Civ. P. 12(b)(6). We assume the parties’ familiarity
with the underlying facts, the procedural history of the case, and the issues on appeal.
Upon de novo review, see State Emps. Bargaining Agent Coal. v. Rowland, 494
F.3d 71, 82 (2d Cir. 2007), we conclude, largely for the reasons stated by the magistrate
judge in his thorough and well-reasoned Report and Recommendation, that dismissal was
warranted in this case because FINRA has absolute immunity with respect to actions taken
in furtherance of its regulatory duties, see Standard Inv. Chartered, Inc. v. NASD, 637 F.3d
112, 115 (2d Cir. 2011) (“There is no question that an SRO and its officers are entitled to
absolute immunity from private damages suits in connection with the discharge of their
regulatory responsibilities.”); see also Wachovia Bank, Nat’l Ass’n v. VCG Special
Opportunities Master Fund, Ltd., 661 F.3d 164, 172 (2d Cir. 2011) (explaining that FINRA
is successor to NASD and is SRO). Although Lobaito asks us to modify this rule, we are
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“bound by the decisions of prior panels until such time as they are overruled either by an en
banc panel of our Court or by the Supreme Court.” Johnson v. United States, 779 F.3d
125, 128 (2d Cir. 2015) (internal quotation marks omitted). As a result, Lobaito’s
damages claim fails. Moreover, to the extent Lobaito sought non-monetary relief, he has
waived any such claim. See Appellant’s Br. 6 (“Lobaito is not asking for expungement of
comments but for monetary damages as a result of lost revenue due to FINRA’s actions.”).
Because absolute immunity resolves all of the live issues in this case, we need not address
whether the Exchange Act allows for a private right of action against FINRA or whether
Lobaito’s claims were barred by issue preclusion.
We have considered all of Lobaito’s arguments and find them to be without merit.
Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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