.

Samuel E. Cohen

Chair, Securities and Investments Professional Liability Practice Group

SECohen@mdwcg.com

Portrait of Samuel E. Cohen

As Chair of the Securities & Investments Professional Liability Practice Group, Sam represents broker-dealers, registered representatives and registered investment advisors in state and federal court and in Financial Industry Regulatory Authority (FINRA) arbitration proceedings. Sam also represents broker-dealers, registered representatives and registered investment advisors before state and federal regulatory authorities as well as in FINRA investigations, examinations, inquiries and enforcement matters. As well, Sam represents registered representatives in FINRA expungement proceedings. Sam's practice also includes the defense of life insurance agents and brokers, real estate agents and title agents.

From 1996 through 1997, Sam served as a law clerk to the Honorable G. Craig Lord in the Court of Common Pleas of Philadelphia County. Sam graduated from Temple University in 1993 where he received a Bachelor of Business Administration and subsequently his juris doctor in 1996 from Temple University School of Law. At Temple Law School, Sam served as the vice president of his graduating class.

In 2019 Sam was appointed to serve on the Special Olympics PA-Philadelphia Executive Advisory Board. The Executive Advisory Board assists Special Olympics PA-Philadelphia by opening doors to key community and corporate contacts, raising funding for the program, providing high-level support of its strategic objectives and in general, advocating on behalf of its athletes and mission.

    • Temple University Beasley School of Law (J.D., 1996)
    • Temple University (B.B.A., 1993)
    • New Jersey, 1996
    • Pennsylvania, 1996
    • AV® Preeminent™ by Martindale-Hubbell®
    • Pennsylvania Super Lawyers Rising Star (2005-2008)
    • Pennsylvania Bar Association
    • Philadelphia Bar Association
    • Special Olympics Pennsylvania, Philadelphia Executive Advisory Board, 2019-Present
    • Best Interest Reviews: Decoding FINRA Rule 2330 (Variable Annuities), Financial Services Institute OneVoice Conference, January 28, 2025 
    • Outside Business Activities: Overview and Best Practices for Broker-Dealers, 7th Annual CNA Life Agent and Broker-Dealer Conference, October 5, 2023
    • Educational and Technology Tools that May Save You in the Long Run if You Are Named in an Arbitration/Lawsuit, IBDC (Independent Broker Dealer Consortium) Annual Risk Management Conference, May 8, 2023
    • Hiring with Caution: How One Bad Apple Can Spoil Your Business, Alternative & Direct Investment Securities Association (ADISA) Annual Conference and Trade Show, October 11, 2022
    • Claims Involving Life Insurance Impacting Life Agents and Broker-Dealers, Independent Broker Dealer Consortium (IBDC) Annual Conference, September 2021
    • Current Issues Facing Broker-Dealers, Registered Investment Advisors and Their E&O Carriers, Client seminar, June 22, 2021
    • Reconciling SEC and FINRA Examinations in Complex Products and Business Practices. Independent Broker Dealer Consortium 10th Annual Risk Management Conference in Amelia Island, Florida, October 2018.
    • Department of Labor Fiduciary Rule, Delaware County Estate Planning Council, September 2017
    • Reducing Regulatory Exposure: Properly Preparing for FINRA and SEC Regulatory Examination, Independent Broker-Dealer Consortium Annual Conference, September 2017
    • Protecting Seniors, A Priority for FINRA, State and Federal Legislators, and Arbitration Panels, 2016 Cadaret, Grant Advisor Forum, October 21, 2016
    • Legislative Update on Issues of Concern to Financial Advisors and Independent Broker Dealers, Financial Services Institute, April 2010
    • "DOL's Retirement Security Rule Imposes New Fiduciary Standards on Financial Services, Insurance Industries,"The Legal Intelligencer, May 10, 2024
    • "FINRA Proposal Creates Urgency for Brokers Seeking Expungement of Customer Complaints,"The Legal Intelligencer, May 4, 2023
    • "FINRA, the SEC and Congress Aim to Safeguard Senior Investors,"The Legal Intelligencer, May 12, 2022
    • "FINRA Proposes Rule to Streamline Broker/Dealers’ Oversight of Outside Business Activities", Aon Advisor Solutions, Summer 2018 Newsletter 
    • “Protecting Seniors: A Priority for FINRA, Federal and State Legislators, and Arbitration Panels,” Defense Digest, Vol. 22, No. 3, September 2016
    • "Protecting Seniors: A Priority for FINRA, Federal and State Legislators, and Arbitration Panels," Financial Services Institute newsletter, July 2016
    • Legal Updates for Securities, regular contributor, 2015-present
    • "Bum Rap? Wrap Fee Programs Under Scrutiny," Westlaw Journal: Securities Regulation & Litigation, October 2014
    • Case Law Alerts, regular contributor, 2012-present
    • "FINRA Requests Comment On Brokercheck Enhancements," Defense Digest, Vol. 18, No. 2, June 2012
    • "Covenants Not To Compete: Why You May Not Be Able To Work For Your Employer's Competitors," co-author, AgentsofAmerica.org, January 13, 2009
    • "FINRA Moves to Limit Dispositive Motions In Arbitration," PLUS Journal, Volume XXI, Number 1, January 2008
    • "NASD Approves Merger With The New York Stock Exchange," Defense Digest, Vol. 13, No. 2, June 2007
    • "Injured Plaintiff Has No Direct Action Against Tortfeasor's Insurer for Bad Faith," Pittsburgh Legal Journal
    • "Customer Account Statements Must Include Reminder To Customers To Report Inaccuracies In Their Accounts In Writing," Defense Digest, Vol. 13, No. 2, June 2007
    • "529 Plans: Tax Free Withdrawals Now Permanent, But Regulatory Concerns Remain," Defense Digest, Vol. 13, No. 1, March 2007
    • "U.S. Supreme Court Continues Its Strong Support Of Arbitration," Defense Digest, Vol. 12, No. 2, June 2006
    • "Agreements To Arbitrate Upheld By Pennsylvania State And Eastern District Court Despite Alleged Confidential Relationship Between Plaintiff Investors And Defendant Stockbrokers," Defense Digest, Vol. 11, No. 3, September 2005
    • "Judge Reversed On Order Compelling Court Action To Arbitration," Defense Digest, Vol. 10, No. 1, March 2004
    • "NASD Reminds Firm Of Their Discovery Obligations," Defense Digest, Vol. 10, No. 1, March 2004
    • "NASD Members Are Warned To Give Investors Their Required Breaks," PLUS Journal, September 2003, Vol. XVI, No. 9 and Defense Digest, Vol. 9, No. 2, June 2003
    • "Injured Plaintiff Has No Direct Action Against Tortfeasor's Insurer For 'Bad Faith'," Pittsburgh Legal Journal, June 9, 1998
    • "No Assignment -- No Excess Garnishment," Defense Digest, Vol. 4, No. 3, June 1998
    • Defense award obtained on behalf of our client, a registered investment advisor, in a FINRA arbitration involving alleged mismanagement and lack of transparency concerning a Donor Advised Fund. The arbitration panel denied the claims in their entirety and recommended expungement of the claim from our client's registration records.  
    • Defense award obtained in a binding FINRA arbitration in Columbus, Ohio on behalf of a financial advisor. The Claimant alleged unauthorized trading and breach of fiduciary duty in connection with individual stock trades. The Claimant further alleged breach of fiduciary duty in relation to the financial advisor’s recommendation that the account be changed from a commission based to an advisory fee-based account.
    • Defense verdict obtained on behalf of a broker dealer in a FINRA arbitration alleging over concentration in energy and precious metals investments. 
    • Defense verdict obtained on behalf of broker-dealer in arbitration in a suit brought by two retired broker Claimants who sought $5 million dollars in past and future benefits under a retirement program which paid override fees to retired brokers on books of business the retired brokers had developed decades ago.
    • Expungement recommendation obtained in FINRA arbitration on behalf of financial advisor involving investment losses in an advisory account.
    • Defense verdict obtained on behalf of a registered investment advisor and broker-dealer following a four day jury trial in Schuylkill County.  The registered investment advisor and broker dealer were sued by their former client for investment losses.  The Plaintiff was a paraplegic whose wealth was obtained through a jury verdict and settlements related to his injuries.  The case was defended on the basis that the registered investment advisor met the standard of care and did not breach any duties owed to the Plaintiff, as well as the fact that the Plaintiff was net profitable in his investments.  The Plaintiff sought to "cherry pick" losing investments from an overall profitable portfolio.  
    • Defense verdict obtained on behalf of a broker-dealer and a broker in a FINRA arbitration in New York. The Claimant, owner of a broker-dealer, alleged he was being charged an unreasonable mark-up on municipal bond sales and that he was the victim of elder abuse. In granting the motion to dismiss, the arbitration panel found that the Claimant failed to present a basis for his claim and recommended expungement of all references to the arbitration from the broker's records maintained by FINRA on the grounds that the claim, allegation or information was factually impossible or clearly erroneous. As well, the panel found the mark-ups on the municipal bonds sold to Claimant were not unfair or unreasonable and were not inconsistent with industry regulations.  
    • Defense verdict obtained on behalf of broker-dealer in FINRA arbitration where the customer alleged that a violation of her privacy had occurred, as well as asserting claims for fraud, breach of fiduciary duty, negligence and breach of contract.
    • Defense verdict obtained on behalf of a broker-dealer and broker in FINRA arbitration alleging unsuitability and securities fraud in sale of a variable annuity. The defense was presented on the grounds that the variable annuity was suitable to the investment objectives of the customer and that any losses sustained by the customer were market related. 
    • Defense of broker-dealer in "selling away" case in FINRA arbitration alleging failure to supervise broker who allegedly operated a Ponzi scheme while affiliated with the broker dealer. Defense proceeded on the grounds that the broker-dealer's supervision of the broker was reasonable and that the Plaintiff did not sustain any losses in his investment in the scheme. Defense verdict obtained.
    • Motion to dismiss, with prejudice, granted in FINRA arbitration based upon Plaintiff customer's repeated discovery violations. Motion to dismiss upheld in federal district court following petition to vacate arbitration award filed by Plaintiff customer. Motion to dismiss granted in FINRA arbitration based upon FINRA Eligibility Rule.
    • Defense verdict obtained in FINRA arbitration on behalf of broker and broker-dealer where the public customer alleged that she was not properly advised regarding the tax implications resulting from a premature withdrawal from a variable annuity in a IRA account.
    • Motion to dismiss granted on behalf of title insurance agent in Federal civil RICO case.
    • Expungement obtained in FINRA arbitration on behalf of broker in case involving suitability of non-publicly traded REITs.
    • Dismissal on behalf of real estate agent in seller's disclosure case.
    • Dismissal on behalf of supervising life insurance general agent in wrongful termination case.
    • Motion for judgment on the pleadings granted on behalf of title insurance agent in real estate fraud case.

Results

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Summary Judgment Secured for Life Insurance Agent

Defense Verdict Secured in FINRA Arbitration Matter

We obtained a defense verdict in a FINRA arbitration where the claimant donated approximately $600,000 to a donor advised fund in 2012 and took a tax deduction. The claimant alleged that the donor advised fund was mismanaged and lost approximately $140,000 in value in 2022. We defended the fund’s managers in the case based upon the claimant’s lack of standing once the funds were donated. Further, we presented evidence through the respondent’s testimony that the account was managed in accordance with the goals and objectives set for the account. In addition, we presented evidence that the account was overall profitable and performed better than the S&P 500 index during the relevant time period.

Thought Leadership

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DOL's Retirement Security Rule Imposes New Fiduciary Standards on Financial Services, Insurance Industries

May 10, 2024

Like many recent DOL rules related to retirement investing, the retirement security rule is polarizing and is sure to face significant legal challenges, including from the insurance industry to whom the rule applies a new, heightened duty.

Legal Updates for Securities and Investments

FINRA Announces Effective Date for New Procedures for Expungement Requests

August 16, 2023

On August 11, 2023, FINRA published Regulatory Notice 23-12, which offers guidance on recent rule amendments to FINRA Rules 12800 and 12805 related to the expungement of customer dispute information from BrokerCheck.  The below rule amendments become effective on October 16, 2023.  Straight-in requests (an expungement where a broker files an arbitration case against their current or former brokerage firm requesting the expungement of a client complaint) be decided by a three-person panel that is randomly selected from a roster of experienced public arbitrators with enhanced expungement training (Special Arbitrator Roster); Prohibit parties to a straight-in request from agreeing to fewer than three arbitrators to consider their expungement requests, striking any of the selected arbitrators, stipulating to an arbitrator’s removal, or stipulating to the use of pre-selected arbitrators; Provide notifications to state securities regulators of all requests to expunge customer dispute information and a mechanism for state securities regulators to attend and participate in expungement hearings in straight-in requests; Impose strict time limits on the filing of straight-in requests; Specify procedures for requesting expungement of customer dispute information during simplified customer arbitrations; Codify and update the best practices in the Notice to Arbitrators and Parties on Expanded Expungement Guidance (Guidance) applicable to all expungement hearings, which include establishing additional requirements for expungement hearings, facilitating customer attendance and participation in all aspects of the expungement hearings and codifying the panel’s ability to request any evidence relevant to the expungement request; Require the unanimous agreement of the panel to issue an award containing expungement relief; and Establish procedural requirements for filing expungement requests, which include on-behalf-of requests. Brokers with old or dated customer disputes on their BrokerCheck report which are not part of an existing arbitration claim should consider filing an expungement before October 16, 2023, to avoid the forthcoming onerous expungement proceeding requirements.      Legal Update for Securities Litigation – August 16, 2023, has been prepared for our readers by Marshall Dennehey. It is solely intended to provide information on recent legal developments, and is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We welcome the opportunity to provide such legal assistance as you require on this and other subjects. If you receive the alerts in error, please send a note to tamontemuro@mdwcg.com. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2023 Marshall Dennehey. All Rights Reserved.

Firm Highlights

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News

Marshall Dennehey Announces 2027 New Jersey Super Lawyers And Rising Stars

Thought Leadership

Florida Supreme Court Rules Florida Statute §627.70152 Does not Apply Retroactively

In a decision that resolves years of appellate uncertainty and confirms that insurers and insureds alike can rely on the legal framework in place when a policy is issued, the Supreme Court of Florida last week found that Florida Statute §627.70152, which involves an insured’s requirement to provide an insurer with pre-suit notice before filing a suit, cannot be applied retroactively. In Universal Property & Casualty Insurance Company v. Hughes, the Court was presented with the issue of whether the statutory pre-suit notice requirement applied retroactively and whether it would apply to a breach of contract of an insurance policy that was issued before the statute went into effect. Before the Court was an appeal from a homeowner, Ms. Hughes, who sued her insurance carrier, Universal Property & Casualty Insurance Company (Universal) for breach of contract under an insurance policy that was in effect from April 24, 2019 through April 24, 2020. During the policy period, Ms. Hughes suffered a loss and, on May 29, 2019, made a claim for water damage. The carrier investigated the loss and issued payment; Ms. Hughes disputed the payment, finding the amount insufficient for repairs. On July 1, 2021, Florida Statute §627.70152 went into effect, which required insureds to provide notice of intent to initiate litigation against the carrier prior to filing a lawsuit; if an insured filed the lawsuit without complying with §627.70152, a court must dismiss the case without prejudice. On August 4, 2021, Ms. Hughes filed her lawsuit against Universal for breach of contract. Universal moved to dismiss based on her failure to comply with §627.70152. Ms. Hughes contended the notice requirement could not be applied retroactively. The trial court disagreed and dismissed the lawsuit without prejudice, and Ms. Hughes appealed. During the appeal, the Fourth District Court of Appeal, in Cole v. Universal Property & Casualty, 363 So. 3d 1089 (Fla. 4th DCA 2023), ruled that Florida Statute §627.70152 did apply retroactively to policies issued before the effective date of §627.70152. However, the Sixth District Court agreed with Ms. Hughes and overturned the trial court’s ruling, finding the statute could not retroactively apply to policies issued prior to the statute effective date. Thereafter, the other district courts weighed in, with the Third District Court agreeing with the Fourth District Court, and the First, Second and Fifth District Courts agreeing with the Sixth District Court. In resolving the conflict amongst the district courts, the Supreme Court advised “as a general rule, ‘the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.’ Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106, 108 (Fla. 1996). The Court applied the two-step test when deciding whether a statute has retroactive application: “First, the Court must ascertain whether the Legislature intended for the statute to apply retroactively. Second, if such an intent is clearly expressed, the Court must determine whether retroactive application would violate any constitutional principles.” Menendez v. Progressive Exp. Ins. Co., 35 So. 3d 873, 877 (Fla. 2010). In analyzing the Legislature’s intent, the Court must determine whether the Legislature has manifested a clear command for retroactivity in the statutory text.  In review of the statutory text, the Court found nothing in the language of the statute to indicate that the phrase “all suits” was serving another purpose of expanding its reach to suits based on policies that both predate and postdate the enactment of the statute. Buis v. Universal Prop. & Cas. Ins. Co., 394 So. 3d 738, 741 (Fla. 2d DCA 2024). Further, the Court noted the statute has an effective date, which has long been considered to be evidence against retroactive application of a statute. The Court concluded that, on its face, no provision of §627.70152 speaks to application of the statute to insurance policies issued before the statute’s effective date and therefore, the Legislature did not clearly command retroactivity of the statute to include insurance policies issued prior to the enactment of the statute. The Court briefly reviewed Universal’s argument that the presuit notice requirement was procedural, not substantive, and therefore should be applied retroactively; however, the Court agreed with the Sixth District Court’s finding that, in its entirety, §627.70152 transformed an insured’s ability to sue an insurance company under a property insurance policy and an insurer’s obligations to respond to and pay insurance claims, thus making the requirement a substantive change. The Court thereby upheld the decision of the Sixth District and disapproved the decision of the Fourth District in Cole.

Complete Victory Obtained in a Workers’ Compensation Matter

Result

Complete Victory Obtained in a Workers’ Compensation Matter

Defense Victory Obtained in Workers’ Compensation Case

Result

Defense Victory Obtained in Workers’ Compensation Case

Bret E. Dubbert Joins Marshall Dennehey’s Orlando Office as Special Counsel in the Casualty Department

News

Bret E. Dubbert Joins Marshall Dennehey’s Orlando Office as Special Counsel in the Casualty Department

Thought Leadership

The Tolling Trap: Filing Alone Will Not Toll the Statute Without Good-Faith Service

The Eastern District of Pennsylvania recently reinforced a critical limitation on bad faith claims, holding that a timely filing alone will not preserve a cause of action absent a good-faith effort to serve the original process. The plaintiff had presented a claim for underinsured motorist benefits to his auto insurer. The insurer evaluated the claim and determined that the plaintiff’s accident-related damages did not exceed the bodily injury liability insurance limits of the at-fault driver and denied his claim. Among other claims, the plaintiff sought to present a claim for insurance bad faith under 42 Pa. C.S.A. § 8371, to which a two year statute of limitation applies. He first filed a praecipe for writ of summons before the expiration of the statute of limitation. However, the plaintiff did not attempt to serve the praecipe or writ until after the statute of limitations had expired. Additionally, the service failed as the plaintiff had mailed the original process to an incorrect address. Despite receipt of the Postal Service’s failure to deliver the original process, the plaintiff did not attempt to re-serve the writ. Two months later, the plaintiff filed a complaint and then successfully served that complaint. The insurer sought to dismiss the plaintiff’s bad faith claim as time-barred by the statute of limitations. The district court agreed. Though the plaintiff had filed a praecipe for a writ of summons prior to the expiration of the statute of limitations, the statute is only tolled if there is a good faith effort to serve that original process. In this case, the court determined that the plaintiff had failed to perform a “good faith effort to serve the original process”. Additionally, though the filing and service of a complaint can serve as alternative original process when the lawsuit is commenced by the filing of a praecipe for a writ of summons, the plaintiff filed his complaint after the statute of limitations had expired. The plaintiff’s bad faith claim was therefore determined to be barred by the statute of limitations and dismissed by the court, with prejudice. A key takeaway for the defense is not to assume that the statute of limitations has been successfully tolled by a plaintiff merely because a praecipe for a writ of summons or complaint has been filed prior to the expiration of the statute. A filed complaint or writ is only part of the equation. The defense should carefully review the docket and filings to confirm that the plaintiff also performed the requisite good faith effort to serve that original process. A thorough review of the docket may reveal that the plaintiff failed to make the good-faith service efforts necessary to toll the statute of limitations.

Thought Leadership

Commonwealth Court Reaffirms the Constitutionality of Act 111's IRE Provisions

In this case, the claimant sustained a work injury of January 6, 1994, which was acknowledged by Notice of Compensation Payable (NCP). After the claimant’s receipt of 104 weeks of temporary total disability benefits, the employer filed a Request for an Impairment Rating Examination (IRE). The IRE was performed in May 2023 and the IRE physician found that the claimant had a 5% whole person impairment, under the AMA Guides. The employer filed a Petition based on the IRE results, and the Petition was granted by the WCJ. During litigation, the claimant argued that the IRE provisions of Act 111 (Section 306(a.3) of the Act) were not applicable to her injury, since it predated June 24, 1996, the date Act 57 went into effect, and that the IRE provisions were unconstitutional. The Workers’ Compensation Judge (WCJ)) granted the Petition and the Board affirmed. On appeal to the Commonwealth Court, the claimant argued that Act 111 violated the nondelegation doctrine and that its retroactive application to the claimant’s injury was unconstitutional. The court rejected the arguments on the basis that they had already found the same arguments without merit in multiple, prior cases. The court also addressed an argument made by the claimant that Act 111 was procedurally defective under the Pennsylvania Constitution because it was only considered on two days in each House after having undergone amendments and reassignments. The court noted that the Pennsylvania Constitution requires every bill to be considered on three different days in each House. The claimant maintained that, according to the legislative history, the bill did not receive three separate days of consideration from each House when it was assigned a new bill number. The court pointed out, however, that the bill number, H.B. 1840 remained constant and was considered on three occasions by the House. Further, the court concluded that minor amendments to the bill were germane to its original subject, which was to modify the Act’s IRE process, in accordance with Protz II.

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Result

Summary Judgment Obtained in Insurance Coverage Case

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

News

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

Event

CLM 2026 Focus Conference

Allison joins three insurance industry leaders to discuss how cyber coverage disputes, the growing impact of social inflation on bodily injury claim valuation, and the use of artificial intelligence are reshaping the bad faith landscape. The panel will examine emerging sources of extra-contractual exposure, including evolving cyber insurance coverage issues and the challenges of accurately valuing bodily injury claims. Practical approaches to claim evaluation using AI, along with defense strategies designed to help prevent or successfully defend against bad faith litigation, will also be addressed.