It's a waiting game for the moment in the legal battle between the CFP Board and two Florida planners.
The judge in the case, Richard Leon of the District Court in Washington D.C., has yet to rule on the board's request for a summary judgment -- which could bring the case to an immediate halt in favor of the certifying body.
It's common practice in lawsuits for one side or the other to request a summary judgment before a case moves to a trial, says Michael Klausner, a professor at Stanford Law School.
"The standard for granting it to one party or the other is that the evidence collected, viewed most favorably to the other side, does not support that side," Klausner says. "In other words, there is no reason to go to trial because the judge can already see that the evidence is one-sided."
The filing aims to convince the court to bring to an immediate halt the case brought in June 2013 by two married Florida planners, Jeffrey and Kimberly Camarda of Fleming Island, Fla. If the board's motion succeeds, the Camardas could appeal.
The CFP Board's argument for a summary judgment can be summed up in two words to the federal court: Butt out. The CFP Board has told Leon that his court has limited rights over its operations as a private nonprofit organization.
"In reviewing a disciplinary action by a private organization, courts do not second-guess the organization's interpretation of its own rules or its evaluation of the evidence," the board says in its motion.
To buttress its claim of authority, the board cites the contract all CFPs sign with the board when they become certified. That contract reads: "CFP Board has the absolute and unrestricted right to revoke, at its sole discretion, any rights I have to use the Certification Marks, if [the] CFP Board, in its sole discretion, finds that I have failed to comply with [the] CFP Board's Standards of Professional Conduct, or these terms."
Those standards describe the board's disciplinary function as a "fair process," the board says in the filings. Yet in the suit, the Camardas contend that the board's treatment of them was anything but fair.
The board has sought to publicly sanction them for calling their firm fee-only, while they also own an insurance agency.
During the time period when the board sought to punish the Camardas, it granted full amnesty to hundreds of other advisors, many from wirehouses and insurance companies, who had been committing similar violations on the board's own website. The board has grown in size to more than 70,000 CFPs, due in part to the addition of CFPs in large firms. The board later conceded that failing to police these ongoing violations was a mistake.
While requests for summary judgment request are common, Klausner says they're far from a sure thing. "I don't have statistics on how often summary judgment motions are granted," he says, "but a reasonable guess would be significantly less than half the time, since the standard is hard to meet."
- CFP Board Names Camardas Case Lawyer as General Counsel
- Disciplinary Chief Exits CFP Board
- CFP Board Backs Off Threat to Punish Kahler
- Camardas, CFP Board Battle Over Client Data