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Agostini v. Transamerica

November 23, 2010

MARCO AGOSTINI, PLAINTIFF,
v.
TRANSAMERICA, ET AL., DEFENDANTS.
CHRISTOPHER CIERSKI COUNTERCLAIM PLAINTIFF,
v.
MARCO AGOSTINI, AND THE FINANCIAL INDUSTRY REGULATORY AUTHORITY, COUNTERCLAIM DEFENDANTS.



The opinion of the court was delivered by: Hillman, District Judge

OPINION & ORDER

This matter having come before the Court on Counterclaim Plaintiff Christopher Cierski's (hereinafter "Cierski") Motion for Summary Judgment (Doc. 64); and

IT APPEARING THAT on April 5, 2010, Cierski filed a Counterclaim for a declaratory judgment against Counterclaim Defendants Marco Agostini (hereinafter "Agostini") and the Financial Industry Regulatory Authority (hereinafter "FINRA")*fn1 ;

and

IT FURTHER APPEARING THAT neither Agostini or FINRA opposes entry of summary judgment; and

IT FURTHER APPEARING THAT on June 17, 2010, FINRA sent this Court a letter indicating that FINRA "reviewed the underlying pleadings and related settlement documents . . . [and] determined that it will not oppose the anticipated motion . . . [and] will not enter an appearance in this matter." (Doc. 67); and

THE COURT NOTING THAT on March 13, 2006, Agostini lodged a customer complaint with MBSC Securities Corporation, naming Cierski as a culpable party partly responsible for Agostini's losses stemming from his investment in a Dreyfus/Transamerica Triple Advantage Variable Annuity (hereinafter "Annuity"); and

THE COURT FURTHER NOTING THAT on July 2, 2009, Agostini filed a Complaint with the Superior Court of New Jersey, County of Camden, naming Cierski as a Defendant under the belief that he was partially responsible for Agostini's investment loss; and

THE COURT FURTHER NOTING THAT these claims were solely limited to Cierski's alleged negligent supervision of the investment advisor that recommended the Annuity to Agostini; and

THE COURT FURTHER NOTING THAT because Cierski's name was included on Agostini's Complaint, Cierski's registration records with the Central Registration Depository (hereinafter "CRD") now contain reference to the lawsuit filed July 2, 2009 and Agostini's March 13, 2006 complaint; and

THE COURT FURTHER NOTING THAT the references to the customer complaint and lawsuit will cause harm to Cierski's professional reputation as an investment advisor; and

THE COURT FINDING THAT at the time Agostini purchased the Annuity, Cierski was a customer service representative with no supervisory duties, and was located in a separate department from the Advisor Services department where the individual that sold Agostini the annuity worked; and

THE COURT FURTHER FINDING THAT Cierski did not serve in any supervisory capacity during the time period in which Agostini's losses incurred or when Agostini purchased the Annuity; and

THE COURT FURTHER FINDING THAT Agostini had no contact with Cierski at the time Agostini purchased the Annuity or when he sustained ...


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