Engineering Arbitration Case Kevin F. O\'Neill vs.

Engineering Arbitration Case

Kevin F. O'Neill vs. Birkelbach Investment Securities, Inc. And William James Murphy

Case Number: 12-00271

Hearing Site: Chicago, Illinois

The case was filed on January 25, 2012. The claimant alleged that the respondent violated the following Acts: the Securities Act Rule 10b-5; the Illinois Blue Sky Law; excessive trading and churning of investment account; unauthorized trading; unsuitability; negligent supervision; breach of fiduciary duty; and Fraudulent misrepresentation.

The claimant also alleged that the respondent accrued $3 million worth of unauthorized trades in his non-discretionary investment account in an eight-month period as well as short-term trading of mutual funds without the Claimant's consent.

Issues Considered

On November 29,2012, Respondent, William James Murphy, filed for bankruptcy therefore all proceedings against him were stayed

On February 27, 2013 Claimant filed a Request for Sanctions and on Feb 28 an amended request for sanctions.

The Procedure

1. Since Birkelbach Investment Securities had no counsel of their own, the Arbitration tribunal (FINRA) appointed an agent (Christopher Wurtizinger). FINRA personally advised respondent of this choice and invited him to participate in conference. Respondent failed to appear.

2. Mr. Wurtizinger participated in conference but did not represent respondent. Wurtizinger said that he did not possess documents or records of respondent.

3. The claimant's Request for Sanctions was granted. Birkelbach was precluded from presenting evidence (due to his absence) and the panel formed negative inferences against Respondent Birkelbach. Respondent's affirmative defenses were also dismissed.

Given Birkelbach's absence, the panel determined that Birkelbach Investment Securities, Inc., had been properly served with the Statement of Claim, filed a Statement of Answer, and received due notice of the hearing, and that the arbitration of the matter would proceed without the Respondent present in accordance with the Code of Arbitration Procedure.

The Decision

The respondent did not file with FINRA Dispute Resolution an executed Submission Agreement (since he did not appear). Nonetheless, he is required to submit to arbitration consequent to the Code of Arbitration Procedure, and is then bound by all the decisions of the Arbitrating court.